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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.

New York.


NOTE: Page numbers listed are those from the original print edition. They are included for reference purposes only.



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


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


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


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 Laws 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


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



Expatriation...................................................... 263


Immigration of Chinese.............................................275



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.


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 lying in between the Great Lakes and the Ohio and Mississippi rivers became a part of the country acknowledged as independent. Settlers rapidly flocked to that territory, and conditions there called for the organization of some sort of political body for its government. Neither the Federal government, nor the State of Virginia, had been able to discharge their debts to Revolutionary soldiers, and Virginia, before the cession of her territory to the United States, had issued many military land grants in this territory to her soldiers. When the Continental army at Newburg threatened to march upon Philadelphia in the year 1783, because it had not been paid, its violence was allayed by the assurances of General Washington that he would do all in his power to induce the government to make provision for discharging its obligations to the soldiers, in part at least, by military land grants in the Northwest Territory. Pursuant to that pledge, Congress did make large land grants in the Northwest Territory, in that portion now known as Ohio, to Revolutionary soldiers. After the armies were disbanded, large colonies of people from the original States promptly settled in the Ohio territory, under the leadership of Paul Carrington of Virginia, and General Rufus Putnam of Connecticut, and thus it came about that at the time of the passage of this famous ordinance, a considerable and representative body of unorganized people were in occupancy of the Northwest Territory, demanding some form of government and some right of representation.

The ordinance passed by the Continental Congress pursuant to this urgency, announced certain fundamental articles which were to rest upon any and all governments formed in the territory, and declared that the obligation to adopt these fundamental principles should be regarded as a compact between the original States and the people and States in said territory, and that, having been adopted, they should forever remain unalterable, unless by common consent.

It will be noted, that Congress was so doubtful of its own powers, that it made the compact obligatory, not between the United States and the people of this territory, but between the original States and the people.

It is unnecessary to enumerate at length the fundamental principles laid down for the government of the Northwest Territory.[13] The Act provided for the erection of the territory into a district; for a law of descents; and for a form of civil government, under a governor and secretary appointed by Congress. It gave the people of the territory the 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."[15]

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 as 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:


"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."[26]

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:


"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.


Congress, by an Act approved April 30, 1900, [40] passed an Act to provide a government for the Territory of Hawaii. In Chapter I, Section 4, of that Act it was set forth that all persons who were citizens of the Republic of Hawaii on August 12, 1898, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii; and all citizens of the United States residing there on or since August 12, 1898, and all citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year, shall be citizens of the Territory of Hawaii. The fifth section declared that the Constitution and laws of the United States, except such as are locally inapplicable, shall have the same force and effect in the Territory as elsewhere in the United States, with certain specific exceptions.

The Act provides for a legislature composed of a senate and a house of representatives, for general elections, and that all legislative proceedings shall be conducted in the English language. It confers a large degree of legislative power upon the legislature, and extends a broad franchise to all inhabitants who are citizens of the United States and have resided in the Territory not less than a year, twenty-one years old, registered, and able to speak, read, and write the English or the Hawaiian language. It provides, however, for the appointment by the President of the United States of a governor, secretary, chief justice and justices of the Supreme Court, and judges of the circuit courts; and that the governor shall nominate, and, by and with the advice and consent of the senate of the Territory appoint, an attorney-general, treasurer, commissioner of public lands, commissioner of agriculture and forestry, superintendent of public works, superintendent of public instruction, auditor, and other officers; but all the officers appointed under the Act are to be citizens of the Territory. By the terms of the Act, Section 85, the delegate to the House of Representatives of the United. States, to serve during each Congress, shall be elected by the voters qualified to vote for members of the house of representatives of the legislature; such delegate shall possess the qualifications necessary for membership of the Senate of the legislature of Hawaii. Every delegate shall have a seat in the United States House of Representatives, with the right of debate but not of voting.

From the foregoing recital of the Constitution and government of Hawaii, it will be seen that the government organized in that Territory is very similar in its general characteristics to that organized in the Northwest Territory by the Ordinance of 1787.


Congress proceeded April 12, 1900, to enact a civil government for the island of 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, 1900, 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.


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 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 11th 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, 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.

[4] (1849) 7 How. (U. S.) 1.

[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 v. Pausch, (1885) 113 Ill. 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, (1898) 177 Ill. 258, 69 Am. 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, (1897) 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 Op. 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) 6 Pet. 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, 642.

[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. 567; 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. Bidwell, (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) 16 Pet. (U.S. 611.

[26] White v. Hart, (1871) 13 Wall. U.S. 646; Osborn v. Nicholson, (1871) 13 Wall. U.S. 654; Slaughter-House Cases. (1872) 16 Wall. U.S. 36; Strander v. West Virginia, (1879) 100 U.S. 303; Exp. Virginia, (1879) 100 U.S. 339; Civil Rights Case, (1883) 109 U.S. 3; Plesey v. Ferguson, (1896) 163 U.S. 537; Robertson 9. Baldwin, (1897) 165 U.S. 275.

"When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel.... The proclamation of President Lincoln expressed an accomplished fact and to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the 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] 1. U.S. 507; Shivley v. Bowlby, (1894) 152 U.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.




By Birth

PURSUANT to the provisions of the XIV Amendment to the Constitution of the United States, the Federal statutes provide as follows: "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." [1]

This language has been held to include a person born in the United States of parents of Chinese descent and subjects of the Emperor of China, they being at the time of his birth domiciled residents, engaged in business in the United States.[2] It has also been held to embrace the half-breed children of a white father and an Indian mother living apart from her tribe, born within the United States, reared and educated as other children of citizens; [3] and even under the XIII Amendment colored persons were held to be citizens.[4] But an Indian born a member of one of the Indian tribes within the United States[5] does not, merely by reason of his birth in the United States and his separation from his tribe and residence among white citizens, become a citizen. A negro born in slavery and afterwards becoming a citizen of the Cherokee Nation has been held to be not an Indian.[6]

By special enactment, all persons born in the country formerly known as the Territory of Oregon and subject to the jurisdiction of the United States on the 18th day of May, 1872, are declared citizens of the United States.[7]

By Naturalization.

We have already seen that the power to enact a uniform system of naturalization laws was among the first bestowed upon Congress by the Constitution.

Naturalization is defined to be the act of adopting a foreigner and clothing him with the privileges of a native citizen.[8] The power of naturalization is vested exclusively in Congress by the Constitution, and cannot be exercised by the State.[9] Although the power to enact naturalization laws existed from the time the Constitution went into effect in 1789, the earliest Act of Congress on the subject of naturalization was passed April 14, 1802, thirteen years after the Constitution went into effect. Under the last named Act and sundry amendments, admission to citizenship of three principal classes of persons was provided for, to wit:

First, aliens who had resided for a certain time within the limits and under the jurisdiction of the United States, to be naturalized individually by proceedings in a court of record.[10]

Second, the children of persons so naturalized dwelling within the United States and being under the age of twenty-one at the time of such naturalization.[11]

Third, foreign-born children of American citizens coming within the definitions prescribed by Congress.[12]

Length of Residence Necessary.

As early as 1813 Congress enacted that an alien, to be entitled to admission as a citizen, must have resided within the United States for a continuous term of five years.[13] This general provision is modified by several special enactments, as follows:

An alien who has enlisted and has been honorably discharged from the regular volunteer forces of the Army of the United States is not required to prove more than one year's residence.[14]

A seaman being a foreigner who declares his intention of becoming a citizen and then serves three years aboard a merchant vessel of the United States is entitled to be admitted.[15]

An alien may be admitted to become a citizen of the United States in the following manner, and not otherwise:[16]

First, a preliminary declaration of intention must be made. It must be made at least two years prior to his admission to citizenship. It must be made under oath before a circuit or district court of the United States or a district or supreme court of the Territories, or a court of record of any of the States having common-law jurisdiction,[17] and a seal and a clerk.[18] The declaration must state that it is the bona fide intention of the applicant to become a citizen of the United states, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, particularly by name to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject.[19] By an amendment enacted February 1, 1876,[20] the preliminary declaration of intention may be made before the clerk of any of the courts named above.[21]

A preliminary declaration, however, is not required in the following cases:

1. The widow and children of an alien who has made his preliminary declaration and died before he was actually naturalized, are declared to be citizens upon taking the oaths prescribed by law.[22]

2. By an act passed May 26, 1824, [23] an alien being under twenty-one years of age who has resided in the United States three years next preceding his arrival at age, and who has continued to reside therein to the time he makes application to be admitted a citizen, may, after he attains the age of twenty-one and after he has resided five years within the United States, including the three years of his minority, be admitted without preliminary declaration.[24]

3. By an Act passed July 17, 1862,[25] an alien of the age of twenty-one years and upwards, who has enlisted or may enlist in the armies of the United States, [26] and has been honorably discharged, shall be admitted to become a citizen of the United states upon his petition, without any previous declaration of his intention. [27]

4. By an Act passed July 26, 1894,[28] aliens over twenty-one years of age, honorably discharged from the navy or marine corps after five consecutive years' service in the navy, or one enlistment in the marine corps, may be admitted without any previous declaration.

Second, he shall, at the time of his application to be admitted, declare on oath before some one of the courts specified;

a. That he will support the Constitution of the United States.

b. That he renounces and abjures all allegiance and fidelity to any foreign prince, etc.

c. Particularly, by name, the prince or potentate of whom he was subject.

d. The proceedings shall be recorded by the clerk. Third, it shall be made to appear to the court:

a. That he has resided in the United States five years at least.

b. Within State or Territory one year at least.

c. That during that time he has behaved as a man of good character.[29]

d. That he is attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.[30]

e. But the oath of the applicant does not prove his residence.[31] Fourth, in case the alien applying to be admitted to citizenship has borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites make an express renunciation of his title or order of nobility in the Court to which his application is made, and his renunciation shall be recorded in the court.

The fifth and sixth clauses of the Naturalization Law may be omitted, as they simply declared certain persons residing in the United grates prior to the 29th of January, 1795, and between June 18, 1798, and June 18, 1812, to be citizens, and are no longer of any practical importance.

The Naturalization Law further provides concerning children, as follows:

1. Children under age when their parents were duly naturalized under any law of the United States; or,

2. Children whose parents previous to the passing of the United States naturalization laws became citizens of any State; or,

3. Children born out of the limits and jurisdiction of the United States, of persons who are or have been citizens of the United States -

All the above are declared to be citizens of the United States.


By Birth.

Every State in the Union has enacted, either in its constitution or in its statutes, that all persons born in the State shall be deemed citizens of the State. The language is not identical, but it will be found substantially the same by reference to the constitutions and statutes of the several States.

By State Enactments.

All the States have, in one form or another, provided that all persons born in any other State of the Union who may be or become residents of the State enacting the law, and all aliens naturalized under the laws of the United States who may be or become residents of the State, shall be citizens of the State. A particular inspection of the laws of each State will be necessary to ascertain the precise language in which this general principle is declared, and the length of residence requisite in any particular state to require citizenship therein.

By Federal Enactments

The XIV Amendment to the Constitution of United States declares that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the State wherein they reside. The question what residence entitles a native or a naturalized citizen to all the privileges of citizenship in a particular State is generally determined by some State enactment prescribing the length of residence necessary to entitle a person to all the privileges of State citizenship. Until the enactment of the XIV Amendment, no attempt was ever made by the Federal government to define or limit the rights of citizenship in any State.


We have already seen that under certain Federal statutes the widow and children of an alien who has made his preliminary declaration, and died without being actually naturalized, have certain inchoate rights of citizenship which they may make perfect upon taking the oaths prescribed by law, even though they have not been within the limits of the nation, or of the State. So, too, children born out of the limits and jurisdiction of the United States, of persons who are citizens of the United States, are deemed citizens of the United States; and by the statutes of many of the States they are also deemed citizens of the State whereof their parents are citizens. For example, the author of this volume was born in Rio de Janeiro, Brazil, in 1846, of parents who were citizens of the United States and of the state of Virginia. By the terms of the Federal statutes he is a citizen of the United States; and by the terms of the statutes of Virginia, all children, wherever born, whose fathers or if he be dead whose mother, was a citizen of Virginia at the time of the birth of such children, were to be deemed citizens of that State. A notable instance of such foreign birth is George B. McClellan, the present mayor of New York city, who was born in Dresden, Saxony. At the time of his birth his parents were citizens of New Jersey, his father, Capt. George B. McClellan, being in the service of the United States abroad. He is as much a citizen of the United States and of the State of New Jersey as if he had been born in Trenton, the capital of the State of New Jersey.

But the citizenship of children whose fathers were citizens is qualified to this extent: the rights of citizenship of the parent do not descend to the children if the parents have never resided in the United States. Thus, if Mayor George B. McClellan had never resided in the United States, his son, George B. McClellan, third, would not inherit his father's right of citizenship in the United States.


As a matter of course, Men may be citizens, and we will not discuss that further.

Women may be citizens as well as men.[32] The statutes of the United States expressly provide that 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. The naturalization laws themselves provide [33] that the widow of an alien who has complied with the first condition of naturalization, and died without being actually naturalized, shall be considered a citizen.

The political status of the wife follows that of the husband, with the modification that there must be withdrawal from her native country, or equivalent act expressive of her election to renounce her citizenship as a consequence of her marriage.[34]

The citizenship acquired by the wife by marriage to a citizen of the United States is not a qualified or contingent one, but is as enduring and unqualified as if she had been naturalized upon her own formal application.[35] It may therefore happen that an alien may come to this country and become a citizen, whereby his wife, who might herself be lawfully naturalized, shall be deemed a citizen, although she did not come to the United States until after his death. His citizenship, in such case, confers citizenship upon her.[36] An alien woman whose husband became a naturalized citizen of the United States, thereby herself became a citizen, although she may have been living at a distance from her husband for years and may never have come into the United States until after his death.[37] And a woman married to a citizen of the United States is, by reason of her marriage, to be deemed a citizen, irrespective of the time or place of marriage, and although she may never have resided in the United States.[38] An alien widow of a naturalized citizen of the United States, although she never resided within the United States during the lifetime of her husband, is a citizen of the United States and is entitled to dower in his real estate.[39] A woman born in France, whose father was a citizen of the United States, and who married a French citizen and continued after the death of her husband to reside in France, is a citizen of France but not of the United States.[40]

Children may be citizens. They are citizens by birth, and, as seen above, become citizens through the naturalization of their parents. By the express terms of the statute, however, the children born abroad of American citizens, whether the parents be citizens by birth or by naturalization, do not transmit their right of citizenship to their children unless they have themselves resided in the United States.


A citizen of the United States does not thereby necessarily become a citizen of any particular State. This distinction is clearly pointed out in the Slaughter-house Cases cited above. The XIV Amendment declares 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, but the amendment does not attempt to define what constitutes residence in the States. It might very well happen, for example, that a person had been naturalized in one State and lost his residence in that State by removing from it, without having acquired a residence in another State to which he had removed. The XIV Amendment cannot be so read as to make him a resident of any State except on the terms prescribed generally by the laws of that State for the acquisition of citizenship therein.[41]

A curious anomaly resulting from the last-named condition in our complex system of national and State governments is found in the following state of facts:

The Constitution of the United States provides (Art. I, Sec. 2) that the House of Representatives shall be composed of members chosen every second year by the people of the several States, and electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. The naturalization laws give an alien no political rights as a citizen of the United States until he has been admitted to citizenship. In many of the States the qualifications for electors of the most numerous branch of the State legislature are bestowed upon aliens who have made their preliminary declarations; consequently, it happens that in many instances the persons who vote for members of the Congress of the United States are not even citizens of the United States. Under this condition, it is conceivable that in the different States the votes of aliens to the United States might elect sufficient members of the House of Representatives of the United States to control action of the Congress of the United States.

[1] Rev. Stat. U.S., Sec. 1992, 1 Fed. Stat. Annot. 785; The Slaughter-House Cases, (1872) 83 U.S. 36; In re Rodriguez, (1897) 81 Fed. Rep. 353.

"While this amendment.... was intended primarily for the benefit of the negro race, It also confers the right of citizenship upon persons of all other races, white, yellow, or red, born or naturalized in the United States, and `subject to the jurisdiction thereof.' The language has been held to embrace even Chinese, to whom the laws of naturalization do not extend." In re Rodriguez (1897) 81 Fed. Rep. 353.

[2] U.S. v. Wong Kim Ark. (1898) 169 U.S. 649; Citizenship etc., (1884) 21 Fed. Rep. 905; Lee Sing Far 9. U.S., (C.C.A. 1899) 94 Fed. Rep. 834; In re Yung Sing Hee, (1888) 36 Fed. Rep. 437; In re Giovanna, (1899) 93 Fed. Rep. 659; In re Wy Shing, (1898) 36 Fed. Rep. 553; Ex p. Chin King, (1888) 35 Fed. Rep. 354.

[3] U.S. v. Hadley, (1900) 99 Fed. Rep. 437; U.S. v. Ward(1890) 42 Fed. Rep. 320; U.S. v. Higgins, (1901) 110 Fed. Rep. 609, distinguishing U.S. v. Higgins, (1900) 103 Fed. Rep. 348. See also Farrell v. U.S., (C.C.A. 1901) 110 Fed. Rep. 942; Ex. p. Reynolds, (1879) 5 Dill. U.S. 394.

[4] Hall v. De Cuir, (1877) 95 U.S. 509. See also U.S. v. Rhodes, (1866) 1 Ab. U.S. 28, 27 Fed. Cas. No. 16,151.

[5] Elk v. Wilkins, (1884) 112 U.S. 94; U.S. v. Osborne, (1880) 6 Sawy. U.S. 406; U.S. v. Boyd, (C.C.A. 1897) 82 Fed. Rep. 547.

"Indians born within the territorial limits of the United States. members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more , born in the United States and subject to the jurisdiction thereof,, within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.... Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being `naturalized in the United States,' by or tinder home treaty or statute." Elk v. Wilkins, (1884) 112 U. S. 94.

By Act of Congress, of Feb. 8, 1887. every Indian born within the territorial limits of the United States to whom allotments of land shall have been made under the provisions of the act, or under any law or treaty, and every indian born within the territorial limits of the United States who has voluntarily taken up, within said limits. his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life. is declared to be a citizen of the United States and entitled to all the rights, privileges, and immunities of such citizens. U. S. v. Kopp, (1901) 110 Fed. Rep. 160; In re Celestine, (1902) 114 Fed. Rep. 553; State v. Denoyer, (1897) 6 N. Dak. 586. See also U.S. v. Boyd, (C.C.A. 1897) 83 Fed. Rep. 547.

[6] Alberly v. U. S., (1896) 162 U. S. 499.

The term "Indian" is one descriptive of race, and therefore men of other races who are adopted into an Indian tribe do not thereby become Indians. They may by such adoption become entitled to certain privileges In the tribe, and make themselves amenable to its laws and usages. Yet they are not Indians. Responsibility to the laws of the United States cannot thus be thrown off and a right acquired to be treated by the government and its officers as if they were Indians born. U.S. v. Rogers, (1846) 4 How. U.S. 567. See also Westmoreland v. U.S., (1895) 155 U.S. 545; Roff v. Burney, (1897) 168 U. S. 218; Raymond v. Raymond, (C. C. A. 1897) 83 Fed. Rep. 721.

[7] Rev. Stat. U.S., Sec. 1995, 1 Fed. Stat. Annot.788.

[8] Bouvier's Law Dictionary. Osborn v. U.S. Bank, (1824) 9 Wheat. U.S. 827; Boyd v. Thayer, (1892) 143 U.S. 162; Postmaster at New Orleans, (1858) 9 Op. Atty. Gen., 259; Minneapolis v. Reum, (1893) 12 U.S. App. 446; Am. & Engl. Encyc. of Law (2d ed.) Vol. 6, p. 19.

[9] U. S. v. Villato, (1797) 2 Dall. (Pa.) 373; Thurlow v. Massachusetts, (1847) 5 How. U.S. 504; Smith v. Turner,. (1849) 7 How. U.S. 283; Chirse v. Chirse, (1817) 2 Wheat. U.S. 269; Collet v. Collet, (1792) 2 Dall. U.S. 294; U.S. v. Wong Kim Ark. (1898) 169 U.S. 640.

That the exercise of the power to pass naturalization laws by the State governments is incompatible with the grant of a power to Congress to pass uniform laws on that subject, is obvious, from the consideration that the former would be dissimilar and frequently contradictory; whereas the system is directed to be uniform, which can only be rendered so by the exclusive power in one body to form them. Golden v. Prince, (1814) 3 Wash. (U. S.) 313.

Our foreign intercourse being exclusively committed to the general government, it is peculiarly their province to determine who are entitled to the privileges of American citizens, and the protection of American government. And the citizens of any one State being entitled by the Constitution to enjoy the rights of citizenship in every other State, that fact creates an interest in this particular in each other's acts, which does not exist with regard to their bankrupt laws; since State acts of naturalization would thus be extra-territorial in their operation, and have an influence on the most vital interests of other States. Ogden v. Saunders, (1827) 12 Wheat (U.S.) 277.

[10] See U.S. Rev. Stat., Title XXX, Sec. 2165, 5 Fed. Stat. Annot. 200.

[11] See U.S. Rev. Stat., Title XXX, Sec. 2172, 5 Fed. Stat. Annot. 209.

[12] U.S. Rev. Stat., Title XXX, Sec. 1993, 1 Fed. Stat. Annot. 786.

[13] U.S. Rev. Stat., Title XXX, Sec. 2170, 5 Fed. Stat. Annot. 208.

[14] U.S. Rev. Stat., Sec. 2166,5 Fed. Stat. Annot. 205.

[15] U.S. Rev. Stat., Sec. 2174, 5 Fed. Stat. Annot. 210.

[16] U.S. Rev. Stat., Sec. 2165, 5 Fed. Stat. Annot. 200.

[17] Congress has power to confer and the State courts authority to accept and exercise the power to nationalize aliens. Levin v. U. S.. (C. C. A. 1904) 128 Fed. Rep. 826; Croesus Min, etc., Co. v. Colorado Land, etc., Co.. (1884) 19 Fed. Rep. 78. A State court is the judicial agency of the Federal Government in such proceedings. People v. Sweetman, (Supm. Ct. Gen. T. 1857, 3 Park. Crim. N.Y. 374; In the Matter of Christern. (1978) 43 N. Y. Super. Ct. 523.

Congress cannot constrain a State court to exercise this jurisdiction, and the State legislatures may, if they see fit, limit or restrain the exercise of this jurisdiction by the State courts. Rushworth v. Judges. (1895) 58 N.J.L. 97. Ex p. Knowles, (1855) 5 Cal. 300; Matter of Ramsden, (N.Y. Super. Ct. Spec. T. 1857) 13 How. Pr. (N.Y.) 429

Concerning the meaning of "having common-law jurisdiction" see Levin v. U.S. (C.C.A. 1904) 128 Fed. Rep. 826; U.S. v. Power (1877) 14 Blatchf. U.S. 223; Gladhill, Petitioner, (1844) 8 Met. (Mass.) 168; Citizenship: Levy's Case, (1874) 14 Op. Atty. Gen. 509; Morgan v. Dudley, (1857) 18 B. Mon. (Ky.) 693; U.S. v. Lehman, (1899) 39 Fed. Rep. 49; Ex p. Tweedy, (1884) 22 Fed. Rep. 34 Matter of Conner, (1870) 39 Cal. 98; People v. McGowan. (1875) 77 Ill. 649; People v. Sweetmen, (Supm. Ct. Gen. T. 1857) 2 Park. Crim. (N.Y.) 358; Ex p. McKenzie, (1897) 51 S. Car. 244.

"If the court may exercise any part of that jurisdiction it is within the language of the statute and within its meaning as well." U.S. v. Power, (1877) 14 Blatchf. U.S. 223.

[18] As to a court without a clerk, see Dean, Petitioner, (1891) 23 Me. 489; Ex p. Cregg, (1854) 2 Curt. U.S. 98; State v. Whittemore, (1870) 50 N.H. 245; State v. Webster, (1878) 7 Web. 471; Gladhill, Petitioner, (1844) 8 Met. (Mass.) 171.

The court must have a clerk distinct from the judge; not necessarily an officer denominated clerk, but a permanent recording officer, charged with the duty of keeping a true record of the doings of the court and afterwards of authenticating them. Dean, Petitioner, (1891) 83 Me. 489.

[19] Omission of name not fatal. ex p. Smith. (1647) 8 Blackf. (Ind.) 395.

"An applicant for naturalization is a suitor, who, by his petition, institutes a proceeding in a court of justice for the judicial determination of an asserted right. Every such petition must, of course, allege the existence of all facts, and the fulfillment of all conditions. upon the existence and fulfillment of which the statutes which confer the right asserted have made it dependent." In re Bodek, (1894) 63 Fed. Rep. 813, 3 Pa. Dist. 725.

[20] 19 Stat. L., c. 5. p. 2, 5 Fed. Stat. Annot. 205.

[21] In re Langtry, (1887) 31 Fed. Rep. 879; Andres v. Arnold (1889) 77 Mich. 87.

The last named case discusses the location of the place at which the clerk may take the declaration. See also Butterwortb, Applicant, (1846) 1 Woodb. & M. U.S. 323.

Proof of declaration Is made by production of the record or by due certification thereof. In re Fronascone, (1900) 99 Fed. Rep. 48; State v. Barrett, (1889) 40 Minn. 65; Berry v. Hull, (1892) 6 N. Mex. 643.

[22] Rev. Stat. U. S. Sec. 2168, 5 Fed. Stat. Annot. 205.

[23] Rev. Stat. U. S. Sec. 2167, 5 Fed. Stat. Annot. 206.

[24] Contzen v. U.S. (1900) 179 U.S. 195.

If he has lived in the United States five years when he attains the age of twenty-one years, he may be admitted to citizenship the next day. Schutz's Petition, (1886) 64 N.H. 241.

[25] U.S. Stat. L., Vol. 12, p. 597. This is now Sec. 2166 of the Revised Statutes. See 5 Fed. Stat. annot. 205.

[26] In re Bailey, (1872) 2 Sawy. U.S. 200; Berry v. Hull, (1892) 6 N. Mex. 643.

[27] In re Bailey, (1872) 2 Sawy. U.S. 200; Berry v. Hull, (1892) 6 N. Mex. 643.

[28] U.S. Stat. L., Vol. 28, p. 124, 5 Fed. Stat. Annot. 206.

[29] The fact that he cannot read or write does not make him ineligible, if he is shown to be of good moral character. In re Rodriquez, (1897) 81 Fed. Rep. 355. But a perjurer is ineligible. In re Spenser, (1878) 5 Sawy. U.S. 195; and a Socialist was rejected. Ex p. Sauer, (1891) 81 Fed. Rep. 355, note.

"Upon general principles it would seem that whatever is forbidden by the law of the land ought to be considered, for the time being, immoral, within the purview of this statute." In re Spenser, (1878) 5 Sawy. U.S. 195.

[30] But a foreigner ignorant of the English language and who did not know the name of the President, but thought that Washington was President, was held ineligible. In re Kanska Nian, (1889) 6 Utah 259.

[31] See 5 Fed. Stat. Annot., p. 202, and the following cases cited: In re Bodek, (1894) 63 Fed. Rep. 814; Lanz v. Randall, (1876) 4 Dill. U.S. 425; Baird v. Byrne, (1854) 3 Wall. Jr. (C. C.) 1; Johnson v. U.S., (1893) 29 Ct. Cl. 1; State v. Barrett, (1889) 40 Minn. 65; Matter of -, (1845) 7 Hill (N. Y.) 137; In re Spenser, (1878) 5 Sawy. U.S. 195; Ex p. Sauer, (1891) 81 Fed. Rep. 355, note; Matter of Clark, (1854) 18 Barb. (N.Y.) 446; Citizenship—Levy's Case, (1874) 14 Op. Atty. Gen. 509; Matter of Christern, (1878) 43 N. Y. Super. Ct. 623; McCarthy v. Marsh. (1851) 5 N.Y. 263; State v. Macdonald, (1877) 24 Minn. 48; Banks v. Walker, (1848) 3 Barb. Ch. (N.Y.) 438; Sprat v. Spratt, (1830) 4 Pet. U.S. 406; Green v. Salas (1887) 31 Fed. Rep. 106; Stark 9. Chesapeake Ins. Co., (1813) 7 Cranch U.S. 420; The Acorn, (1870) 2 Abb. U.S. 434; People v. McGowan, (1875) 77 Ill. 644; Ritchie v. Putnam, (1835) 13 Wend. (N.Y.) 524; Com. v. Towles, (1835) 5 Leigh (Va.) 743; McDaniel v. Richards, (1821) 1 McCord L. (S. Car.) 187; State v. Hoeflinger, (1874) 35 Wis. 393; Vaux v. Nesbit, (1826) 1 McCord Eq. (S. Car.) 352; In re McCoppin, (1869) 5 Sawy. U.S. 630; Contzen v. U.S. (1900) 179U.S. 191; Boyd v. Thayer, (1892) 143 U.S. 178; Blight v. Rochester, (1822) 7 Wheat. U.S. 546; Strickley v. HIll, (1900) 22 Utah 268; Hogan v. Kurtz, (1876) 94 U.S. 773; Kreitz v. Behrensmeyer, (1888) 125 Ill. 141; People v. McNally, (Supm. Ct. Spec. T. 1880) ?9 How. Pr. (N.Y.) 500; Sasportas v. De la Motta, (1858) 10 RichEq. (S. Car.) 38; Nalle v. Fenwick, (1826) 4 Rand. (Va.) 585; Miller v. Reinhart, (1855) 18 Ga. 239; Belcer v. Farren, (1891) ?9 Cal. 78; Matter of Desty, (N.Y. Super. Ct. Spec. T. 1880) 8 Abb. ". Cas. (N.Y.) 250; Prentice v. MIller, (1890) 82 Cal. 570; Slade v. Minor, (1817) 2 Cranch (C.C.) 139; Gagnon v. U.S. (1902) ?8 Ct. Cl. 10; Dryden v. Swinburne, (1882) 20 W. Va. 89; Navigation Laws, (1883) 17 Op. Atty. Gen. 534; In re An Alien, (1842) 12 ed. Cas. No. 201a; Anonymous, (1846) 4 N.Y. Leg. Obs. 98, 11 ed. Cas. No. 465; U.S. v. Norsch, (1890) 42 Fed. Rep. 417; U.S. v. Grottkau, (1887) 30 Fed. Rep. 672.

[32] Minor w. Hoppersett, (1874) 21 Wall. U.S. 142; U.S. Stat. L., Sec. 1994, 1 Fed. Stat. Annot. 786; Dorsey v. Brigham, (1898) 177 Ill. 250; Kane v. McCarthy, (1869) 63 N. Car. 299.

Since the extension of the naturalization laws to persons of African descent, this statutory provision is applicable to negro as well as white women. Broadis v. Broadis, (1898) 66 Fed. Rep. 951.

[33] Rev. Stat. U.S. Sec. 2168, 5 Fed. Stat. Annot. 207.

[34] Ruckgaber v. Moore, (1900)104 Fed. Rep. 948.

[35] Leonard v. Grant, (1880) 5 Fed. Rep. 11; U.S. v. Kellar, (1882) 13 Fed. Rep. 82, (1882) 11 Biss. U.S. 314.

"No law expressly providing for a temporary or contingent citizenship is known to the legislation of the United States, and so unusual and singular a purpose ought not to be attributed to Congress without an explicit provision to that effect." Leonard v. Grant (1880) 5 Fed. Rep.11.

[36] Kelly v. Owen. (1868) 7 Wall. U.S. 496.

Notwithstanding the letter of the statute "might herself be lawfully naturalized," it is only necessary that the woman should be a person of the class or race permitted to be naturalized by existing laws. It is not required that she should have the statutory qualifications as to residence, conduct, and opinions. Being the wife of a citizen, she is regarded as qualified for citizenship, and therefore is considered a citizen. Leonard v. Grant, (1880) 5 Fed. Rep. 11.

[37] Headman v. Rose, (1879) 63 Ga. 458.

[38] See (1874) 14 Op. Atty.-Gen. 402; but see Ruckgaber v. Moore, (1900) 104 Fed. Rep. 948.

[39] Burton v. Burton, (1864) 1 Keyes (N.Y.) 359; approved in Kelly v. Owen, (1868) 7Wall. U.S. 496; Kane v. McCarthy, (1869) 63 N. Car. 299.

[40] Berthemy's Case, (1866) 12 Op. Atty.-Gen. 7.

[41] "Not only may a man be a citizen of the United Sates without being a citizen of a State,but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." Slaughter-House Cases, (1872) 16 Wall. U.S. 36.





The word allegiance is employed to express the obligation of fidelity and obedience due by the individual, as a citizen, to his government, in return for the protection he receives from it. Fidelity is evidenced not only by obedience to the laws of one's country, and lip-service, but by faithful disclosure to the government of the property owned by the citizen, which, with that of other citizens, is subject to the burdens necessary to sustain the government; by the payment of the citizen's just share of taxation, and by responding with cheerfulness and alacrity to all calls lawfully made by the government to bear arms or render other personal service for the common defense and for the security of the liberties and the general welfare of his State.

Obedience consists of respect for, observance of, and aid in maintaining, the laws of the government.

The Different Kinds of Allegiance.

The books describe allegiance[1] as arising in four ways:

1. Natural allegiance — that which arises by nature and birth.

2. Acquired allegiance — that arising by denization or naturalization.

3. Local allegiance — that arising from temporary residence, however short, in a country.[2]

4. Legal allegiance — that arising from oath.

Formal Compact Not Necessary to Create Allegiance.

It is by no means essential that a formal compact between a citizen and his government shall exist in order to create the duty of allegiance.[3] If a de facto government is established, overthrowing and supplanting a de jure government and the citizen remains under the newly established government, he assumes the duty of allegiance to it, which always exists between the governing and the governed.[4] When a government is changed, those disaffected do not owe immediate allegiance to the changed authority, but should be allowed a reasonable time to depart, and the court and jury should determine what is such reasonable time[5]

Of Dual Allegiance.

The peculiar nature and constitution of our government has created a dual allegiance on the part of our citizens; an allegiance due to the national government and to the State government. In theory these two have been, from the outset, entirely compatible with each other. In practice, however, they gave rise to a great debate, which lasted over seventy years, and culminated in one of the bloodiest civil wars in history.

This controversy was primarily due to the following facts:

1. That the States which formed the Union were independent sovereign States, entitled to the unqualified allegiance of their citizens, before the Union existed.

2. That, whatever may have been the quality and priority of the allegiance due to the Federal government by the citizens of the States which formed the Union, that Federal allegiance was junior in time to the allegiance which they owed to their States.

3. That by Amendment X to the Federal Constitution, adopted almost simultaneously with the Constitution, all powers — not delegated to the United States by the Constitution or prohibited by it to the States were reserved to the States respectively, or to the people; and

4. That although the question of the right of a State to withdraw from the Union, if dissatisfied with its operations, was fully considered and debated in the convention which framed the Constitution, there was no expression in the instrument, as it was finally adopted, definitely settling the existence or nonexistence of that right, and it was left an open and debatable question.

As a consequence, much confusion existed for many years, in the minds of any citizens, upon the question whether, in an issue between the State and the Nation, what was known in the debates of the period as their paramount allegiance was due primarily to the State or to the Nation by citizens of both. Without going further into that protracted and bloody argument, it is sufficient to say that the views of citizens upon the right of a State to withdraw from the Union and upon the question whether, in such a crisis, the paramount allegiance of the citizen was due to his State or to the Nation, differed so irreconcilably in different sections of the Union that, when certain States and their citizens attempted to withdraw or secede from the Union, the attempt was resisted by the other States and their citizens who still adhered to the United States, and a bloody civil war followed, waged by the States which adhered to the Union, and in the name of the United States, the outcome of which was that those who claimed that the Union was an "an indissoluble Union of indestructible States," and that paramount allegiance was due to the United States by every citizen, completely triumphed, and that doctrine is now established beyond question.

Since the great Civil War the oath of allegiance to the nation administered to persons entering its military and naval service pledges the party taking it that he will thenceforth bear true faith and allegiance to the United States, and will support, protect, and defend it against all enemies whatsoever, "foreign or domestic." For the peace of the nation it would have been better if such an unqualified oath of paramount allegiance had been exacted from all public servants from the foundation of the government; for it is a historic fact that at the outbreak of the great Civil War many persons who had for years been in the military and naval service of the United States, a large proportion of whom had been educated by the Federal government, had never been called upon to take an oath of paramount allegiance to the United States, and consequently felt at liberty to resign their position in the Federal Service, and tender their services to their native States, under the firm and conscientious conviction that the latter were entitled to their paramount allegiance. Among them were men whose exalted lives and spotless characters exclude all questions of purity of their motives, and whose action only emphasizes the difficulty of discovering conclusively and deciding where paramount allegiance was due under all the circumstances.

Fortunately, this question, in the light of the arbitrament of war, can never recur. Henceforth it must be conceded that, whenever the two allegiances, Federal and State, of an American citizen, are in apparent -conflict, the latter must yield to the former. There can be no such thing, under our system, as allegiance to a State, in conflict with allegiance to the Federal government.

Of Patriotism.

The spirit in the citizen that, originating in love of country, results in obedience to its laws, the support and defense of its existence, rights, and institutions, and the promotion of its welfare, is called patriotism. The more unselfish and self-sacrificing is the spirit displayed by the citizen the higher and more exalted his patriotism. Such a citizen is called a patriot.

In the experience of governments, the citizens who evade bearing their personal burdens of citizenship, or, when tested, lack courage to discharge those burdens, are not so numerous as, and are much more readily discovered than, those who evade the lawful burdens upon their property, and who, by clothing it or concealing it where it cannot be reached for taxation, cast the burden of taxation unduly upon their fellow-citizens, while reaping a full share of benefits. Such citizens are not a whit less faithless or detestable than the physical skulkers or cowards. It is the citizen who yields the legitimate share of his property, as well as the proper services of his person, to the lawful demands of his country for support, who is the real patriot. Yet, partly because the crime is not so apparent, and partly because of the power of wealth to buy condonement of crime, the scorn of mankind has never been visited as relentlessly upon the tax-dodger as upon the coward.

Of Treason.

The antithesis of allegiance and patriotism is treason. Treason is defined as "a breach of allegiance to a government committed by one under its protection."[6] Under the English law there were two kinds of treason, high and petit. High treason embraced the crime which we generally know as treason. Petit treason embraced sundry acts now treated as distinct crimes, and when a servant killed his master, a wife her husband, or an ecclesiastical person his superior.[7] In America we have only simple treason.

By the Federal Constitution, treason is defined as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."[8] The same instrument provides that the President and Vice-President and all civil officers of the United Stated may be removed from office for treason;[9] and it likewise rendered senators and representatives liable to arrest for treason.[10] But the Constitution expressly requires, for conviction of treason, the testimony of two witnesses to the same overt act, or a confession in open court. Our country has been singularly blessed in the small number of prosecutions for treason. The decisions have been correspondingly few.[11]

A whole chapter of the Revised Statutes, consisting of eight sections, is devoted to "crimes against the existence of the government." The crimes defined are treason, misprision of treason, inciting or engaging in rebellion or insurrection, criminal correspondence with foreign government, seditious conspiracy, recruiting soldiers or sailors to serve against the United States, and enlistment to serve against the United States. Of these crimes the punishment for treason and misprision of treason were enacted in 1790, and the punishment for criminal correspondence with foreign governments was enacted in 1799; all the other offenses mentioned in the chapter and the punishments therefor were declared by statutes enacted in 1861 and 1862 after the outbreak of the great Civil War.[12] The federal decisions on the constitutional and statutory offense of treason are very few,[13] and show within what narrow limits the crime of treason is con[ceiv]ed under our system.

Of misprision of treason, which consists in concealing, or in failing to disclose and make known, the commission of the crime of treason, as soon as may be, it is sufficient to say that but three cases are known to the author in which the discussion of this crime has occurred.[14]

And as the other acts in the chapter on crimes against the existence of the government were passed after the Civil War was flagrant, the attempt to enforce them would have been in effect to make them ex post facto laws, so that they were not vigorously enforced.[15]

Treason is often described in the books as the greatest crime known to the law.[16] The individual guilty of treason is known as a traitor.[17] Every citizen owes to his government support and loyalty until he openly renounces his country and becomes a citizen or subject of another country, or his government is supplanted by another in a manner beyond his control. Thus if a de facto government is established over him in a manner beyond his control, by which the de jure government theretofore existing is entirely supplanted, that entitles the de facto government to his allegiance, and to obey it is not treason to the de jure government, even if that rightful or de jure government shall be afterwards restored.[18] But the doctrine of the English law has not always admitted the above rule, for in the celebrated case of General Vane, who took no part in the execution of Charles I but subsequently commanded the Parliamentary Army, it was held that his plea that the Parliamentary government was de facto did not justify obedience to its commands and Vane was executed.[19]

The law of treason in England is based on the English statute 25 Edw. III, stat. 5, c. 5. The definition of treason in our Constitution, Article III, Section 3, Clause 1, is taken from the third and fourth sections of the English act.[20] The American courts have followed the construction put upon the language by the English courts.[21]

The Constitution having defined the crime of treason, it is beyond the power of Congress either to broaden or contract the definition of treason, or to punish as treason what is not defined to be treason in the Constitution, or to fail to punish as treason what the Constitution declares to be such.[22]

In some of the States the State constitution defines the crime of treason against the States; in others it is left to the regulation of statutes.[23] For example, in a former constitution of Alabama the definition of treason was similar to that in the Constitution of the United States. In a case arising in that State for aiding a rebellion of Slaves, it was said that while the crime contained several, but not all, of the elements of treason, it might be indicted as a separate crime, since it did not fall within the constitutional definition of treason.

In the State of Virginia, one of the oldest of the States, the constitutions of the State have not attempted to define the crime of treason against the State, but have left it to statutory enactment. It has been held that the crime of constructive treason is not recognized in the United States.[24]

Of Dual Treason.

A citizen may commit a dual act of treason, by reason of his act being equally treasonable again at the distinct sovereignties of the Nation and the State. The act may be a single act, yet the offenses against the Nation and the State be distinct and punishable by both.

Treason against the United States is committed by invasion of national sovereignty.[25] Treason against a State is committed by acts directed against the sovereignty of the State, as an attempt to over throw the State government.[26] It was said in U. S. v. Bollman,[27] that the intention with which treason is committed determines the species of treason, and that no injury, even if it extend to an attempt to oppose and destroy the laws and government of any one of the States, will amount to treason against the United States.

In the case of Ex p. Quarrier[28] it was said that if, by the act, treason is committed against both State and Federal governments, the traitor is liable to punishment by each sovereignty.

But in the case cited, a citizen of West Virginia, in the great rebellion, waged war, as a Confederate soldier, against the United Staten, and it was held that although West Virginia was a component part of the Union his act was not treason against her, for treason against her could only be committed by acts done directly against her State government.

Perhaps the most widely known act of treason against both sovereignties, in our country, is the celebrated but unreported case of Virginia v. John Brown and others. In the year 1859, in a time of profound peace, John Brown and a party of armed followers suddenly appeared in the night time at Harper's Ferry, Virginia, seized the United States arsenal and arms, and from that position, in which they fortified themselves, sent forth small parties to seize Sundry citizens of Virginia and to incite Virginia slaves to insurrection. While in possession of the United States arsenal they fired upon citizens and killed and wounded fifteen persons. It subsequently developed that they were proceeding under a plan of government formulated in Canada, which contemplated the liberation of the slaves and the installation of a government wholly inconsistent with the existing government, Federal and State. Both Federal and State authorities employed their military forces to suppress this violent outbreak. The stronghold in which Brown and a few companions had entrenched themselves, an engine house on the Harper's Ferry arsenal reservation of the United States, was carried by assault by a party of United States marines, under a heavy fire from Brown and his party, and a marine wan killed before the insurgents were captured.

The acts committed by Brown and his party fell clearly within all the definitions of what constitutes the actual levying of war against the United States. They had formed themselves into a body and marched with weapons, offensive and defensive, with a public design that was unmistakable. This had been held to constitute levying war.[29] They had by force of arms seized, occupied, and appropriated an arsenal of the United States, and turned its guns upon Federal authority, which was an unequivocal act of war.[30] They had held it against the government.[31] They had refused to surrender, and resisted, with murder, the attempt of the government to re-possess itself of its property. All these constituted treason against the United States.

Their offenses were equally treason against the State of Virginia, whose laws denounced as treason, with the penalty of death, and without. pardoning power in the executive, the acts of -

1. Establishing, without authority of the legislature, any government in the State, or holding or executing in such usurped government any office, or professing allegiance or fidelity to it;

2. Or resisting the execution of the laws, under color of its authority.

3. Advising or conspiring with slaves to rebel or make insurrection, or with any person to induce a slave to rebel or make insurrection, whether such rebellion or insurrection be made or not.

The above laws had been on the statute-books of Virginia for many years before this outbreak.

The prisoners were delivered over by the military forces of the United States to the State authorities of Virginia, and were promptly tried for treason against the State, convicted, condemned, and hanged; so that the United States had no opportunity to prosecute them for the offense of treason against itself. The excitement of the times upon the subject of slavery was Ouch that, although the acts of John Brown and his associates were plainly treason against the United States and the State of Virginia, indefensible on any plea but that of insanity, and although Brown himself refused to allow that plea to be interposed in his behalf, and declared that he had a fair trial, his execution was denounced as an act of murder by many anti-slavery people, and he is still canonized in "John Brown the Martyr."

The Elements of the Offense.

All the book's concur that an act of treason is composed of two elements, to wit: the intention, and the overt act.[32] The intent alone is not sufficient to constitute treason. Nor are mere words, whether spoken, written, or printed, of themselves treason.[33] Words spoken are admissible to establish treasonable intent, but little weight is to be attached to the mere declaration of a party.[34]

What constitutes an overt act has been the subject of much discussion. An overt act is undoubtedly essential to the levy of war. To that there must be a combination or association of people united by a common purpose in a conspiracy directed against the government.[35]

The time of the formation of a treasonable design is immaterial. The preconcerted action to which a number of people are privy is a necessary element of an intention to levy war. The conspiracy may be proven either by the declarations of the individuals or by proof of the proceedings at the meetings. After proof of the conspiracy to effect a treasonable design the deed of one, in pursuance of that design, is the act of all.[36]

The overt act contemplated by the language of the Constitution is generally the actual employment of force by a collection of men; but, all preparatory arrangements having been completed, the assembling of a number of men to execute the treasonable design is an overt act of levying war. Not so, however, unless they are in condition to carry out their treasonable design. [37]

The quantum of the force employed is immaterial. This is generally displayed by the use of employment of arms and military array, but these are not indispensably requisite.[38] There must, however, be in all cases some unequivocal act of resistance, which, in its nature, shows a purpose to resort, if necessary, to conflict with the government.[39]

The seizure of a fort or arsenal by a body of men;[40] holding the same;[41] the mere cruising of an armed vessel, though no ships are encountered;[42] the marching of a body of men immediately to perform their treasonable design; the moving from a particular to a general place of rendezvous, are all unequivocal acts of levying war. The design need just be to overthrow the entire government. It is sufficient if it contemplates the overthrow of government or the suppression of laws in a particular locality, or even the coercion of the government in state matters or acts of sovereignty.[43] If the demonstration be only to subserve some private purpose, such as individual profit, the removal of a particular nuisance, a private quarrel, or a demonstration of the strength and number of a political party to procure the liberation or mitigation of punishment of political prisoners, the offense is not treason.[44]

While rioting and the levying of war against the government are closely allied, there is a distinction. In riots the object of the disturbances is to satisfy a particular grievance; in treason the intention is to overthrow the government.[45] The question is always one of intention, to be gathered from the particular transaction. The English doctrine of constructive levying of war, which holds various forms of rioting to be in effect levying war against the government, has not been favorably regarded by the American judiciary. It was thought to be too great a stretch of the constitutional definition of treason, and in the case of United States v. Hanway (supra) Mr. Justice Grier said: "The better opinion there [in England] at present seems to be that the term "Levying war" should be confined to insurrections and rebellions for the purpose of overturning the government by force and arms. Many of the cases of constructive treason quoted by Foster, Hale, and other writers would perhaps now be treated merely as aggravated riots or felonies."

The words "adhering to enemies" have received frequent construction.[46] The term "enemies, of as used in the Constitution, applies only to the subjects of a foreign power in a state of open hostility to this country. The inhabitants of a neutral country may, by participation in acts of hostility, become enemies, but they are so regarded only while so engaged. Even upon capture neutrals cease to be enemies, and become entitled to the rights of subjects of a neutral country.[47]

The words "adhering," "giving aid and Comfort," have also been construed. Joining the enemy during time of war is a most emphatic way of giving aid and comfort to the enemy.[48] Nothing can excuse that offense except compulsion under fear of immediate death.[49] The burden of proof in such case is on the accused. He must prove not only coercion, but that he quitted the enemy's service as soon as possible. Giving aid and comfort to the enemy, such as supplying to the enemy arms, ammunition, provisions, etc., is evidence of lack of loyalty. Any material assistance to enemies or rebels is treason.[50]

Communicating with or advising the enemy, or furnishing him with valuable information, even where the letters are intercepted, is an act of treason.[51] And delivering a fort by bribery or other sympathy with the enemy is direct assistance to the enemy.[52] It is otherwise when such an act is the result of cowardice or imprudence. Even that act is, however, punishable by martial law. Cruising on an armed vessel which belongs to the hostile country is an overt act of aid and comfort to the enemy. All of the above instances being necessarily direct attacks on his government by the citizen, his motive is immaterial.[53]

Treason being a crime peculiar in its nature, to which there is not attached the odium or disrepute connected with other felonies,, evidence tending to show former good reputation has not the same weight as it may have in ordinary crimes, like burglary or arson, as tending to show the improbability of the prisoner's commission of the offense, since the purest motives indulged in by the most honorable men are not inconsistent with the offense of treason. This was said in Dammaree's Case.[54] But it is not a satisfactory reason. For more odium and disrepute are attached to the crime of treason than to any other known to the law. It is true that it is a peculiar crime and has sometimes manifested itself in men who, prior to its commission, had seemed above such baseness; whereas the commission of burglary or arson is generally the culmination of a previously bad record. And this is about all that can be said of the reason for the distinction.

Consideration of the evidence required to prove treason, and of the defense, is omitted as beyond the scope of this treatise, and the subject may be concluded with the remark that treason is a crime of so high a nature that it does not admit of accessories but all who are in any way connected with it are principals.[55]


[1] Funk & Wagnall's Standard Dictionary; Carlisle v. U.S. (1872) 16 Wall. U.S. 147; U.S. Greiner, (1861) 4 Phila. (Pa.) 306, 18 Leg. Int. (Pa.) 149, 26 Fed. Cas. No. 15,262; Calvin's Case, 7 Coke 1; State v. Hunt. (1834) 2 Hill L (S. Car.) 1; U.S. v. Greathouse, (1862) 2 Abb.U.S. 364; Chargeto Grand Jury, (1861) 1Sprague U.S. 602; Bouvier's Law Dictionary, tit. Treason; Foster's Crown Law, 183.

[2] Am. & Eng. Encyc. of Law, p. 148, (2d Ed.) . Brown's Law Dictionary (Sprague's Ed.) ; Powers of Congress, (1855) 8 Op. Atty.-Gen. 139; Rights of Expatriation, (1859) 9 Op. Atty.-Gen. 356; Carlisle v. U.S., (1872) 16 Wall. U.S. 147; Inglis v. Sailor's Snug Harbor, (1830) 3 Pet U.S. 155; Jackson v. Goodell. (1822) 20 Johns (N.Y.) 188; 1 Blackstones Com. 366. Allegiance is often spoken of as fealty. Wallace v. Harmstad, (1863) 44 Pa. St. 501. Nature of alien's allegiance to country of his residence. 1 East p. C. c. 2, Sec. 4; 1 Hale P. C. 10; Foster's Crown Law Discourse, Sec. 2; 2 Kent's Com. 63-64; Carlisle v. U.S., (1872) 16 Wall. U.S. 147; Homestead Case, (1892) I Pa. Dist. 785; The Schooner Exchange v. M'Faddon, (1812) 7 Cranch U.S. 116; Ex p. Rey-nolds, (1879) 5 Dill. U.S. 394; Ex p. Thompson, (1824) 3 Hawks (N. Car.) 362.

[3] Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53.

[4] Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman, (1781) 1 D&IL 4Pa.) 53. The Confederate government never a true de facto government, Keppel w. Petersburg R. Co., (1868) Chase U.S. 167, 14 Fed. Cas. No. 7,722; Sprott v. U.S., (1874) 20 Wall. U.S. 459; Shortridge v. Macon, (1867) Chase U.S. 136. The vanquished owe allegiance to the victor, Hanauer v. Woodruff. (1872) 15 Wall U.S. 439; U.S. v. Rice, (1819) 4 Wheat. U.S. 246; Thorington v. Smith, (1868) 8 Wall. U.S. 1. Duration of victor's sovereignty coextensive with bis absolute control, Fleming v. Page, (1850) 9 How. U.S. 603.

In such a cases the inhabitants pass under a temporary allegiance to the de facto government, and are bound by such laws, and such only, as it chooses to recognize and impose. From the nature of the case, no other laws can be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Per Story, J., in U. S. v. Rice. (1819) 4 Wheat U.S. 246.

[5] Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53.

[6] 28 Ain. & Eng. Encyc. of Law, 457; Rex v. Cranburne. (1696) 13 How. St. Tr. 227; Rex v. Vaughan, (1696), 13 How. St. Tr. 526; U. S. v. Wiltberger, (1820) 5 Wheat. U.S. 76; Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53; 1 Hales' Pleas of Crown, 48; U.S. v. Greiner, (1861) 4 Phila.(Pa.) 396; 18 Leg.Int.(Pa.) 149; 26 Fed. Cases No. 15,262.

[7] 28 Am. & Eng. Encyc. of Law p. 458; State W. Bilansky, 3 Minn. 246.

[8] U. S. Const. Art.. III, See. 3, Cl. 1.

[9] U. S. Const. Art. II, Sec. 4. Cl. 1.

[10] U. S. Const.. Art I. Sec. 6, Cl. 1.

[11] U.S. v. Insurgents, (1796) 2 Dall. U.S. 336; U.S. v. Mitchell, (1795) 2 Dall. U.S. 348; Ex p. Bollman, (1807) 4 Cranch U.S. 76; Burr's Trial, 4 Cranch U.S. 469.

[12] Rev. Stat. U.S., Title LXX, Ch. 2, Secs. 5331-5338.

[13] U.S. v. Insurgents, (1795) 2 Dall. U.S. 335; U.S. v. Mitchell, (1795) 2 Dall. U.S. 348; U.S. v. Villato. (1797) 2 Dall. U.S. 370; Ex p. Bollman.(1887) 4 Cranch U.S. 75; U.S. v. Pryor, (1814) 3 Wash. U.B. 234; U.S. v. Hanway, (1851) 2 Wall. Jr. (C. C.) 139; 1 Burr's Trial, 14-16; 2 Burr's trial, 402, 405, 417; U.S. v. Hoxie, (1808) 1 Paine U.S. 265; U.S. v. Greathouse, (1863) 2 Abb. U.S. 384; Confiscation Cases, (1873) 20 Wall. U.S. 92; Wallach v. Van Riswick, (1876) 93 U.S. 274.

[14] U.S. v Wiltberger, (1820) 5 Wheat. U.S. 97; Confiscation Cases,(1872) 1 Woods U.S.221; U.S. v. Tract of Land.(1871)1 Woods U.S. 475.

"Since the adoption of the Constitution but few Cases of indictment for treason have occurred, and most of them not many years afterwards." U.S. v. Hanaway, (1851) 2 Wall. Jr. (C. C.) 201.

[15] Ex p. Lange, (1873) 18 Wall. U.S. 163.

[16] U.S. v. Hoxie, (1808) I Paine U.S. 265; Charge to Grand Jury, (1851) 2 Curt U.S. 630. 30 Fed. Cases No. 18,269; Charge to Grand Jury, (1861) I Bond U.S. 600; Charge to Grand Jury, (1861) 4 Baltchf. U.S. 518, 30Fed. Cases No. 18,720.

"Under the laws of the United States, the highest of all crimes is treason. It must be so in every civilized state; not only because the first dutyr ofa state is self-preservation, but because this crimenaturally leads to and involves many others destructiveof the safety of individualsand of the peace and welfare of society." Charge to Grand Jury, (1851) 2Curt. U.S. 633.

[17] U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.

[18] Thorington v. Smith, (1868) 8 Wall. U.S. 1; Respublica v. Chapman, (1781) 1 Dall. (Pa.) 53; Keppel v. Petersburg R. Co., (1868) Chase U.S. 167, 14 Fed. Cases No. 70,722.

[19] (1662) J. Kel. 14, 6 How. St. Tr. 119.

[20] U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.

"The clause was borrowed from an ancient English statute, enacted in the year 1352, in the reign of Edward the Third, commonly known as the Statute of Treasons. Previous to the passage of that statute, there was great uncertainty as to what constituted treason. Numerous offences were raised to its grade by arbitrary construction of the law. The statute was passed to remove this uncertainty, and to restrain the power of the crown to oppress the subject by constructions of this character. It comprehends all treason under seven distinct branches. The framers of our constitution selected one of these branches, and declared that treason against the United states should be restricted to the acts which it designates." U.S. v. Greathouse, (1863) 2 Abb. U.S. 371.

[21] U.S. v. Hoxie, (1808) 1 Paine U.S. 265; Charge to Grand Jury, (1851) 2 Curt.U.S. 630, 30 Fed Cases No. 18,269; U.S. v. Greiner, (1861) 4 Phila. (Pa.) 515; U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; U.S. v.Hanaway, (1851) 2 Wall. Jr. (C.C.) 200.

"The term [levying war] is not for the first time applied to treason by the Constitution of the United States. It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom we borrowed it." Per Marshall, C.J.in U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.

"These terms, `levying war,'` adhering to enemies,' `giving them aid and comfort,' were not new. They had been well known in English jurisprudence at least as far back as the reign of Edward III. They had been frequently the subject of judicial exposition, and their meaning was to a great extent well settled." Charge to Grand Jury, (1861) 1 Sprague U.S. 603.

[22] U.S. v. Greathouse, (1863) 2 Abb. U.S. 371; U.S. v. Fries, (1799) 3 Dall. (Pa.) 515, 9 Fed. Cases No. 5,126; Homestead Case, (1892) 1 Pa. Dist. 785.

[23] State v. McDonald, (1837) 4 Port. (Ala.) 449.

[24] Ex p. Bollman, (1807) 4 Cranch U.S. 75.

"The framers of our Constitution, who not only defined and limited the crime, but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that itshould be inflicted under the influence of those passions which the occasion seldom fails to excite,and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is, therefore, more safe as well as more consonant to the principles of our Constitution, that the crime of treason should not be extendedby construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide." Per Chief Justice Marshall, in Ex p. Bollman, (1807) 4 Cranch U.S. 127.

[25] U.S. v. Hoxie, (1808) 1 Paine U.S. 265.

[26] charge to GrandJury, (1842) 1 Story U.S. 614; People v. Lynch, (1814) 11 Johns. (N.Y.) 550; Ex p. Quarrier, (1866) 2 W. Va. 569.

[27] (1807) 4 Cranch U.S. 127.

[28] (1866) 2 W. Va. 569.

[29] Rexv. Vaughn, (1696) 13 How. St. Tr. 531.

[30] Charge to Grand Jury, (1861) 1 Sprague U.S. 602; Charge to Grand Jury, (1861) 4 Blatchf. U.S. 518, 30 Fed. Cases No. 18,720.

[31] Foster's Crown Law, 208.

[32] U.S. v. Hanway, (1851) 2 Wall. Jr. (C.C.) 169; U.S. v. Pryor, (1814) 3 Wash. U.S. 234; Law of Treason, (1842) 1 Story U.S. 614; Reg. v. Gallagher. (1883) 15 Cox (C. C.) 291; Rex v. Stone, (1796) 6 T. R. 527; Case of Armes, (1596) Popham 121, Foster 208; Reg. v. Frost, (1939) 9 C. & P. 129, 38 E.C.L. 70.

"The plain meaning of the words 'overt act' as used in the Constitution and the statute, is an act of a character susceptible of clear proof, and not resting in mere inference or conjecture. They were intended to exclude the possibility of a conviction of the odious crime of treason, upon proof of facts which were only treasonable by construction or inference, or which have no better foundation than mere suspicion." Charge to Grand Jury, (1861) I Bond U.S. 611, 30 Fed. Cases No. 18,272.

[33] Law of Treason, (1861) 6 Blattchf. U.S. 649; Charge to Grand Jury, (1861) I Bond U.S. 609; State v. M'Donald. (1837) 4 port. (Ala.) 449; Chichester v. Philips, (1680) T. Raym. 404.

"The intention, being the chief constituent of the offense, must be proved by some developmout of less equivocal import" Stato v. M'Donaid. (1837) 4 Port. (Ala.) 449.

[34] Rex v. Cook, (1696) 13 How. St. Tr. 391.

[35] Reg. v. Frost. (1839) 9 C. & P. 129, 38 E.C.L. 70.

[36] Rex v. Regicides, (1660) 5 How. St. Tr. 1224; Reg. V. McCafferty. (1867) 10 Cox C. C. 603; Rex v. Dammaree, (1710) 15 How. St. Tr. 609.

[37] U. S. v. Burr, (1807) 25 Fed. Cases No. 14,693.

[38] Messenger's Trial, J. Kel. 70, and cases above cited.

[39] Hawk. P. C. 55, and cases of U.S. v. Burr and others above cited.

[40] Charge to Grand Jury. (1881) 1 Sprague U.S. 602; Charge to Grand Jury, (1861) 4 Blatchf. U.S. 518 , 30 Fed. Cases No. 18,270.

[41] Foster's Crown Law 208.

[42] U.S. v. Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.)149; Rex v. Vaughn, (1696) 13 How. St. Tr. 486.

[43] U.S. v. Greathouse, (1863) 2 Abb. U.S. 364; Charge to Grand Jury, (1842) 1 Story U.S. 614; Homestead Case, (1892) 1 Pa. Dist. 785; U.S. v. Vigol, (1795) 2 Dall. U.S. 346; Ex p. Bollman, (1807) 4 Cranch U.S. 75.

" In respect to the treasonable desigu, it is not necessary that it should be a direct and positive intention entirely to subvert or overtthrow the government. It will be equally treason, if the intention is by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity." Charge to Grand Jury. (1942) 1 Story U.S. 616.

[44] U.S. v. Hanway, (1851) 2 Wall. Jr. (C.C.) 205, and cases above cited.

[45] 1 Hale P.C. 145.

"When the object of an insurrection is of a local or private nature, not having a direct tendency todestroy all property and all government by numbers and armed forces, itwill not amount to treason;and in these and other cases that occur, the true criterion is the intention with which the parties assembled." U.S. v. Hoxie, (1808) 1 Paine U.S. 271.

[46] Rex v. Vaughn, (1696) 13How. St. Tr. 525; Charge to Grand Jury, (1861) 1 Sprague U.S. 607.

[47] Sparenburgh v. Bannatyne, (1797) 1 B.&P. 163.

The character of alien enemy arises from the party being under the allegiance of the state at war with us; the allegiance being permanent, the character is permanent, and on that ground he is alien enemy, whether in or out of prison. But a neutral, whether in or out of prison, cannot, for that reason, be an alien enemy; he can be alien enemy only with respect to what he is doing under a local or temporary allegiance to a power at war with us. When the allegiance determines, the character determines. Sp[arenburgh v. Bannatyne, (1797) 1 B. & P. 163.

"The term `enemies' as used in the second clause, according to its settled meaning at the time the Constitution was adopted, applies only to the subjects of the foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government. An enemy is always the subject of a foreign power who owes no allegiance to our government or country." U.S. v. Greathouse, (1863) 2 Abb. U.S. 372, per Field, J.

The duty of allegiance to the United States owed by a citizen of one of the southern States, at a time when its revolutionary secession was threatened buthad not been consummated, could not be affected by any convicted or forced allegiance to the State. He could not then, as a citizen of the State, pretend to be a public enemy of the United States, in any sense of the word "enemy" which distinguishes its legal meaning from that of traitor. U.S. V.Greiner, (1861) 4 Phila. (Pa.) 396, 18 Leg. Int. (Pa.) 149.

[48] Gordon's Case, (1746) 1East P.C. 71; M'Growther's Case(1746)1East P.C. 71, Foster's Crown Law 13; U.S. v. Greiner, (1861) 4 Phila. (Pa.)396, 18 Leg. Int. (Pa.) 149.

"The words in the definition, `adhering to their enemies,' seem to have no special significance, as the substance is found in the words which follow — `giving them aid and comfort.'" Charge toGrand Jury, (1861) 1 Bond U.S. 609.

"In general, when war exists, any act clearly indicating a want of loyalty to the government, and sympathy with its enemies, and which, by fair construction, is directly in furtherance of their hostile designs, gives them aid and comfort. Or, if this be the natural effect of the Act, though prompted solely by the expectation of pecuniary gain, it is treasonable in character." Charge to Grand Jury, (1861) 1 Bond U.S. 611, 30 Fed. Cases No. 18,272.

[49] Hawk, P.C. 54; Respublica v. M'Carthy, (1781) 2 Dall. (Pa.) 86; U.S. v. Vigol, (1796) 2 Dall. U.S. 346; Trial of Regicides, J. Kel.13.

"In the eye of the law, nothing will excuse the act of joining an enemy but the fear of immediate death; not the fear of any inferior personal injury, nor the apprehension of any outrage upon property." Respublica, v. M'Carty, (1781) 2 Dall. (Pa.) 88.

[50] Fosters' Crown Law, 217; U.S. v. Pryor, (1814) 3 Wash. U.S. 234; U.S. v. Burr, (1807) 25Fed. Cases No. 14,693; Charge to Grand Jury, (1861) 1 Bond U.S. 696, 30 Fed. Cases No. 18,272; Hanauer v. Doane, (1870) 12 Wall. U.S. 347; Carlisle v. U.S., (1872) 16Wall. U.S. 147.

"He who, being bound by his allegiance to a government, sells goods to the agent of an armedcombination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof. He voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequence of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act." Hanauer v. Doane, (1870) 12 Wall. U.S. 342; see also Crlisle v. U.S. (1872) 16 Wall. U.S. 147.

[51] Foster's Crown Law, 217; Rex v. Gregg, (1708) 14 How. St. Tr. 1376.

[52] 1 Hale P.C. 168.

[53] Charge to Grand Jury, (1861) 1 Bond U.S.609, 30 Fed. Cases No. 18,272; Hanauer v.Doane, (1870) 12 Wall. U.S. 342; Sprott v. U.S. (1874) 20 Wall. U.S. 450; Carlisle v. U.S.(1872) 3 Wash. U.S. 147.

The motives by which a prisoner in the hands of the enemy, seeking means of escape, was induced to attempt the commission of an act constituting the crime of treason, and by which there are the strongest reasons to believe that he was most sincerely actuated, would certainly palliate the enormity of the crime. U.S. v. Pryor, (1814) 3 Wash. U.S. 234.

[54] Rex v. Dammaree, (1710)15 How. St. Tr.604. (55) As respects the order of trial, however, the whole reason of the law, relative to the principal and the accessory, seems to apply in full force to a case of treason committed by one body of men in conspiracy with others who are absent. Whether the adviser of an assemblage be punishable with death as a principal oras an accessory, his liability to punishment depends upon the degree of guilt attached to an act which has been perpetrated by others; and which, if it be a criminal act, renders them guilty also. His guilt, therefore, depends on theirs; and their guilt cannot be legally established in a prosecution against him. Per Marshall, C.J., in U.S. v. Burr, (1807) 25 Fed. Cases No. 14,693.

For a valuable citation of authorities concerning the elements conditioning treason, the proofs necessary to establish it, and the defenses thereto, see Vol. 28, Am. & Eng. Encyc. of Law (2d Ed.) 457-471.



The rights, privileges, and immunities now enjoyed by citizens of the States composing the United States, whether as citizens of the States or of the United States, originated in rights possessed or claimed by the inhabitants of the thirteen American colonies, while they were dependencies of Great Britain. The struggle of the American colonists for independence was based upon the claim that they were denied, by the parent government, rights, privileges, and immunities which were their common heritage as British freemen, or which had from time to time been granted specifically to the American colonies.

No written chart in existence, then or now, has ever attempted to enumerate, clarify, and define in one succinct expression, the rights, liberties, and franchises possessed by English subjects, nor is it the purpose of this volume to attempt to do that. It is sufficient to say that the liberties and right of self-government of the British people, beginning with the declarations of Magna Charta, have been ascertained and declared from time to time, during six centuries of conflict between the people of the British realm and their successive sovereigns, until they are now well established and quite thoroughly understood.

Notwithstanding the British people have retained in their government the form of a limited monarchy, they have established for themselves as against their constitutional monarch, a measure of popular sovereignty and personal liberty as great as that possessed by any other people in the world. Our boast is that ours is a free republic; that it is doubtful whether, although we have a president instead of a king, and a supreme court with certain power to control both executive and legislative action, the King of England, on the whole, possesses as much independent authority as the President of the United States.

Although the struggle of the American colonists was based upon the claim that the parent government denied the inhabitants of the colonies the guaranteed rights of British citizens, the American colonists, even under British dominion, were accorded and actually enjoyed many rights, privileges, and franchises, peculiar to themselves, not enjoyed by Englishmen at home, or even of British origin; some of which have not, to this day, been adopted in their entirety in England.

Source of American Plan of Government and Rights of Citizenship.

Many of the declarations of popular rights set forth in the American Declaration of Independence were of rights which were not of English origin. The American colonists had become familiar with the rights of citizenship possessed in other countries, both from the fact that some of them resided in Holland for a time, before they came to America, and from the further fact that the New York colony was essentially Dutch in its original settlement and government. It is plain to see, by comparison with other historic documents, that the Declaration of Independence of 1776 was modeled, to a large extent, not upon English precedents, but upon the written constitution of the Netherlands Republic, called The Union of Utrecht, of 1579.

The manifesto issued by the rebels at the time of Bacon's Rebellion in Virginia in 1676 contains much from the same source. The Union of Utrecht and Bacon's Rebellion antedated, one by one hundred years and the other by three years, the Exclusion Act of 1679, by which James ][I of England was deposed, and which, by some writers, has been referred to as the source from which the claim set forth in the Declaration of Independence were derived.

Nor did the American ideas of a written constitution and a supreme court emanate altogether from Englishmen. They were the results of the co-operative labors of Puritans and Cavaliers, Dutchmen, Huguenots, and Scotch-Irishmen, assembled in convention in America, working for a common end, upon models derived from many countries with whose governments they were familiar. For example, the demand for the separation of Church and State, which is a leading tenet of American government, is not of British origin. Virginia was foremost in this contention. She abolished tithes and forfeited glebe lands. The change was brought about through the influence of Patrick Henry, a Scotch dissenter; and of Thomas Jefferson, a man of Welsh origin, with views derived from a study of Dutch precedents.

So, too, the abolition of privileged classes was distinctly anti-English.

The American system of land tenures, the abrogation of entails and primogenitures, and our methods of transfer of real estate, are all anti-English in their origin. Entails and primogenitures were cherished institutions of England. Our system of transferring real estate by the registration of deeds came from Holland, and has not, even to the present day, been fully adopted in England. Our laws governing the transfer of personal property and our whole system of mercantile law are adaptations of Continental and Roman methods, modified so as to make them applicable to our modern conditions. We owe nothing to England for our system of elections or for our public prosecutors. The idea of a public prosecutor or commonwealth's attorney came from Holland.

Our system of charitable institutions, hospitals, and prisons is not modeled upon English precedents. The charitable institutions, hospitals, and prisons of the colonies antedated those in England. The first of these established in the American colonies were copied from Dutch models, and the admirable system now existing in England is derived largely from a study and adoption of those which were first established in the Dutch colony of New York and in the Quaker colony of Pennsylvania.

So, too, the American citizen derived his principles of religious toleration, not from England, but from the Dutch. As late as 1663, when the representatives of the Crown in the English colonies were, under orders from England, persecuting Quakers and Anabaptists and demanding that they take the oath of allegiance and conformity or suffer punishment; when Puritans were driving Pilgrims from Massachusetts into Rhode Island, and Virginians placing the King's broad arrow on the houses of dissenters in Maryland, the Dutch colony of New York was receiving orders from Amsterdam proclaiming that the conscience of men ought to remain free. The orders read: "Let every one remain free as long as he is modest, moderate, his political conduct irreproachable, and as long as he does not offend others or oppose the government"[1] This was twenty years before Penn came to America, and, even after he came, the Scotch-Irish and Germans were driven from Pennsylvania by Logan's oppressive administration of the Quaker laws, and sought asylum in the Shenandoah valley of Virginia.

The Pilgrims in Rhode Island proscribed Catholics and deprived them of suffrage, on account of their religion, from 1719 to 1783.

Mr. Madison is authority for the statement that the example of Holland led to the constitutional provision forbidding Congress from making any enactment "respecting an establishment of religion" or abridging the freedom of the press.

Perhaps there is no other thing in which the citizen of the United States takes greater pride than in our system of public education. The privilege of public-school education for his children is possessed by every citizen of the United States in the State of which he is a citizen, no matter how humble or ignorant he may be or how limited his own rights. This privilege, like the others named, is distinctly not of English origin. At the time of the departure of the original colonists from England for America, no system of public education existed in Great Britain. None exists there to-day, comparable, in thoroughness, with our own. Long residence in Holland made some of the earliest American settlers familiar with the benefits of public education and the advantages of the free school system of the Dutch. But a thorough system of free education was installed in the Dutch colony of New York fully twenty years before any school system was adopted by the New England colony,. Sparseness of population in the southern colonies rendered free schools almost impracticable there. But they were established in the populous Dutch communities and among the Scotch-Irish of the Shenandoah valley in Virginia, from the time of the earliest settlements there.

Notwithstanding the southern colonies were backward, the greatest impetus to public education in the Northwest Territory, after the colonies were independent, came from the southern section; for when Virginia ceded her rights in the Northwest Territory to the Federal government, she demanded through her representatives in Congress, Richard Henry Lee and Paul Carrington, the condition in the Ohio ordinance of 1787, requiring that alternate sections of the public lands should be dedicated to purposes of public education.[2]

Having now traced the ideas of the American colonists concerning plans of government and rights of citizenship to the sources whence they sprung, let us next consider how far these rights have been incorporated in the governments which they established.[3]

Rights of Citizens of the States.

Let us first examine the rights of citizens as citizens of the States; for these clearly antedate whatever rights they possess as citizens of the United States, by a period equal to that which elapsed between the acknowledgment of the independence of the thirteen independent colonies by Great Britain, and the formation of the Union by the States themselves.

No State in the Union has ever sought to embody in one written chart a full expression of all the rights, privileges, and immunities of its citizens. Nor will the attempt now be made. On this subject we shall content ourselves with the language of Mr. Justice Washington, construing Section 2 of Article IV of the Constitution of the United States, which provides: "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." He said:

"The inquiry is, What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges 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 these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general beads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole."[4]

Mr. Justice Miller, in the Slaughter-House Cases,[5] said, with reference to this observation of Mr. Justice Washington:

"The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted."

While it is undoubtedly true that the attempt to enumerate these rights of citizenship would be more tedious than difficult, and while it may be unnecessary to enumerate and classify them, especially as the order of their enumeration varies in the different States, it seems proper to advert to the earlier expressions in the first bill of rights framed by one of the original States, to ascertain what our Revolutionary forefathers conceived to be the most important of the rights for which they were contending.

State Bills of Rights.

The Bill of Rights of Virginia, drafted by George Mason, is perhaps the most famous of all these bills of rights, and may be taken as an example, as it was made the model of many States afterwards formed. It was unanimously adopted by the Virginia convention, June 12, 1776.[6] It recites the following as basic and foundational principles of government, and declares that they pertain to the good people of the commonwealth and their posterity:

1. That all men are by nature equally free, independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable.

3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various forms and modes of government, that is beat which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the, danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.

4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

5. That the legislative and executive powers of the State should be separate and distinct from the judiciary; and, that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into the body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all or any part of the former members to be again eligible, or ineligible, as the laws shall direct.

6. That election of members to serve as representatives of the people, in assembly, ought to be free; and that all men having sufficient evidence of permanent common interest with and attachment to the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.

7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

8. That, in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial and impartial by of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his pears.

9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments indicted.

10. That general warrants, whereby an officer or messenger may be commanded to search suspected place without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

11. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, us dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia ought to be erected or established within the limits thereof.

15. That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love and charity, towards each other.

This immortal declaration of the principles of popular sovereignty has been set forth at length because it embodies in itself the substance of all similar declarations in the other colonial conventions, and was either incorporated into the Declaration of Independence itself, which was adopted twenty-two days later, or into the earliest amendments of the Constitution of the United States. Of the first ten amendments to the Constitution of the United States, which may be considered as adopted contemporaneously with the Constitution itself, six merely reaffirm the principles enunciated in George Mason's bill of rights.

National Declaration of Independence.

When we come to a study of the Declaration of Independence itself we find a reassertion of principles concerning the equality of men, their unalienable rights, that government is instituted to secure those rights, that it derives its just powers from the consent of the governed, and the right of the people, when it becomes destructive of those ends, to alter or abolish it and institute a new government.

After declaring that long established governments should not be changed for light and transient causes, it proceeds to arraign the British government for a long train of abuses and usurpations. We may gather, from the enumeration of those abuses, the following claims made by the revolutionists concerning the rights, privileges, and immunities of citizens:

1. The right of representation in the legislature, a right inestimable to them.

2. The right to have representative bodies assembled at usual and comfortable places convenient to the depository of their public records.

3. The right to have frequent sessions of the legislature.

4. The right to have a system of naturalization laws.

5. The right to have an independent judiciary.

6. The right to oppose a multitude of offices.

7. The right to oppose standing armies in time of peace.

8. The right to have the civil power superior to the military power.

9. The right to resist quartering of armed troops among them.

10. The right to trade with the outside world.

11. The right to as voice in taxation.

12. The right to trial by a jury of the vicinage.

13. The right of local self-government.

The Federal Constitution.

We have already seen that during the period in which the States co-operated under articles of confederation, the rights, privileges, and immunities of their citizens were derived exclusively from their respective States, and that the power of the United States did not extend to the control of the individual, save in a few limited and specified cases; and that as then constituted the United States did not attempt to grant or guarantee to the individual citizen any rights, privileges, or immunities, save to citizens of one State in another State.[7]

When, upon the adoption of the Federal Constitution, Federal power operated directly upon individual citizens of the limited States, the number of Federal guarantees of their rights was extended also. These guarantees were the necessary correlatives of the specific powers granted to the Federal government, and are the supreme law of the land on the subjects to which they refer.

But it by no means follows from this that the Federal government is supreme concerning all the rights, privileges, and immunities of the citizen. On the contrary, while it is supreme in its sphere and possesses ample authority to enforce the powers expressly delegated to it by the Constitution, it is only a government of delegated and limited powers, and the States, in forming it, expressly retained and reserved in themselves the absolute control, direction, and sovereignty over their citizens concerning a vast residuum of rights, privileges, and immunities which, prior to the adoption of the Constitution, they had regulated exclusively.[8] For instance, it has never been contended that the Constitution, as originally framed, created in the Federal government any power to establish any code of municipal law applicable to the States composing it, regulative of all private rights between man and man in society, or that Congress may usurp the powers of State legislatures concerning such legislation. The Supreme Court of the United States has repeatedly taken occasion to point out that no such power exists, either under the original Constitution or by virtue of any of the amendments.[9] As we shall see later, a vast amount of litigation which has arisen under the constitutional amendments has been based upon a confused notion that the XIII, XIV, and XV Amendments in some way altered and extended the general scope of Federal powers, even to the point of effecting this fundamental change. But an unbroken line of Federal decisions has denied that such a change in the organic structure of the Federal government was either contemplated or effected by the amendments, and point out that the legislation which Congress is authorized to enact under the amendments is not general legislation upon the rights of citizens, but only certain corrective legislation, if such be necessary, to counteract State legislation prohibited by the amendments upon special subjects named in the amendments.[10]

When we come to examine the multitudinous decisions of the Supreme Court on questions which have arisen under the amendments it will be seen that the cases have for the most part not originated in any alleged act of the Federal government invading the sphere of State action, but upon the contention made by citizens of the States that Federal powers, as enlarged by the amendments, are much more far-reaching and restrictive upon State powers than the Federal courts themselves have been willing to admit. The decisions rendered by the Supreme Court have in an overwhelming majority of cases been against the broad effect of the constitutional amendments as authorizing extended Federal powers, or as restricting State powers, contended for by the citizens; and they declare unanimously the continuing power of the States, notwithstanding the amendments, to regulate exclusively the rights, privileges, and immunities of citizens upon the matters in issue, subject only to the particular limitations named in the amendments.[10]

Seeing now that the rights, privileges, and immunities of the citizens are dependent, for acknowledgment and protection, upon dual governments, just as the allegiance of the citizen is due to dual governments, let us next consider the safeguards and protections of those rights offered to the citizen by the Federal and State governments. And, as the Federal government, although limited in its sphere, is supreme, and as all other rights, not derived from or guaranteed by it, depend for their recognition and protection upon the States, the orderly method of consideration would seem to be, to inquire first what rights of the citizen the Federal government grants or undertakes to protect, and what it has neither granted nor undertaken to guarantee. For all rights not so granted or guaranteed by the Federal government are dependent for their existence and their continuance upon the State of which the individual is a citizen.[11]

Rights, Privileges, and Immunities Granted or Guaranteed to the Citizen by the United States.

These may be classified as follows:

1. Rights granted or guaranteed by the Constitution of the United States as originally framed, or by the first twelve amendments thereto.

2. Rights granted or guaranteed by the XIII, XIV, and XV Amendments.

First, then, the rights, privileges, or immunities granted or guaranteed to the citizen by the Constitution of the United States as originally framed, or by the first twelve amendments thereto, are, in the order of their enumeration, or by necessary implication, as follows:

1. A right, That citizens of the States composing the Union, having the qualifications requisite for electors of the most numerous branch of the State legislature, shall possess the right and privilege of electors for members of the House of Representatives of the United States chosen every second year by the people of the United States. (Art. I, Sec. 2, Cl. 1.)[12]

2. A privilege. That such citizens shall be eligible to membership of the House of Representatives, if they possess certain qualifications of age, length of citizenship, and are inhabitants of the State from which they are chosen. (Art. I, Sec. 2, Cl. 2.)

3. A right. That representatives and direct taxes shall be apportioned, among the several States, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. This clause is, however., amended, in respect to apportionment of representation, by the XIV Amendment, Sec. 2. [13]

4. A right. To have an enumeration or census, every ten years, according to law, to determine the basis of representation, but with a proviso that representatives shall not exceed one for every 30,000, but that each State shall have at least one representative. (Art. I, Sec. 2, Cl. 3, Par. 2) [14]

5. A privilege. That citizens possessing defined (qualifications of age, length of residence, and habitation, shall be eligible as United Staten senators. (Art. I, . 3, Cl. 3.)

6. An immunity. Against the trial of impeachments by any other body than the Senate, or conviction without a concurrence of two-thirds of the members present; and against any judgment in such case extending further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. (Art. I, . 3, Cl. 6.)[15]

7. An immunity. From arrest, except for treason, felony, or breach of the peace, while attending Congress as a member or going to or returning from the same; and from being questioned for any speech or debate in either House. (Art. I, Sec. 6, Cl. 1.)[16]

8. A right. That all bills for raising revenue shall originate in the House of Representatives. (Art. I, Sec. 7, Cl. 1.)[17]

9. A right. To have the executive sanction of all laws before they become effective, unless they be passed over the President's veto. (Art. I, Sec. 7, Cl. 2.) [18]

10. A right. That all duties, imposts, and excises imposed by Congress shall be uniform throughout the United States. (Art. I, Sec. 8, Cl. 1.)[19]

11. An immunity. From any laws passed by any State, or other authority than Congress, regulating commerce with foreign nations and among the several States, and with the Indian tribes. (Art. I. Sec. 8, Cl. 3.)[20]

12. A right. To uniform Federal laws of naturalization and bankruptcy throughout the United States. (Art. I, Sec. 8, Cl. 4.)[21]

13. A right. To a Federal coinage and standard of weights and measures. (Art. I, See. 8. el. 5.)[22]

14. A right. To an established Federal postal system and post roads. (Art. I, See. 8, CL 6.)[23]

15. A right. To a Federal system of patent rights and copyrights. (Art. I, Sec. 8, Cl. 8.)[24]

16. A right. To a supreme court and a system of federal courts inferior to the supreme court. (Art. III, Secs. 1 and 2; Art. I, Sec. 8, Cl. 9.)[25]

17. A right To Federal protection against piracies and felonies committed on the high seas and offences against the law of nations. (Art. I, Sec. 8, Cl. 10.)[26]

18. An immunity. Against any declaration of war or the granting of letters of marque and reprisal except by the United Staten. Art. I, Sec. 8, Cl. 4.)[27]

19. An immunity. Against any appropriations for war purposes by Congress, under its power to raise and support armies, for a longer term than two years. (Art. I, See. 8, Cl. 12.)[28]

20. A right. To the creation and maintenance of a navy by the Federal government (Art. I, Sec. 8, Cl. 13.)[29]

21. A right. To the use of the militia under the call of the Federal government, for executing the laws of the Union, suppressing insurrections, and repelling invasions. (Art. I, See. 8, 01. 15.)[30]

22. A right. To exclusive Federal legislation by Congress over a territory not exceeding ten miles square as a seat of government, and like authority over all places purchased for forts, magazines, arsenals, and dockyards. (Art. I, See. 8, Cl. 17.)[31]

23. A right. To the privilege of the writ of habeas corpus, save when it may be suspended for public safety, in time of rebellion or invasion. (Art. I, Sec. 9, Cl. 2.)[32]

24. An immunity. Against any bill of attainder or ex post facto law. (Art. I, Sec. 9, Cl. 3.)[33]

25. An immunity. Against any capitation or other direct tax except in proportion to the census above provided for. (Art. I, See. 9, Cl. 4.)[34]

26. An immunity. Against any tax or duty on articles exported from any State. (Art, I, See. 9, Cl. 5.)[35]

27. An immunity. Against any preference to the ports of one State over those of another; and against the entrance, clearance, or payment of duties by vessels bound to or from the ports of one State to or from the ports of another State. (Art. I, Sec. 9, Cl. 6.)[36]

28. An immunity. Against the granting of any titles of nobility by the United States. (Art. I, Sec. 9, Cl. 8.)[37]

29. Immunities. Against any treaty, alliance, or confederation entered into by any State, and the granting of letters of marque or reprisal by any State, and against the coinage of money or emission of bills of credit by any State and the making of anything but gold and silver coin a tender in payment of debts by any State; and the passage of any bill of attainder or ex post facto law, or law impairing the obligation of contracts, or grant of any title of nobility by any State. (Art. I, Sec. 10, Cl. 1.)[38]

30. An immunity. From the laying of any impost or duties on imports or exports by any State, without the consent of Congress. (Art. I, Sec. 10, Cl. 2.)[39]

31. Immunities. From any duty of tonnage laid by any State without the consent of Congress, or the keeping of troops or ships of war in time of peace by any State, or the entering into an agreement or compact with another State or a foreign power, or engaging in war unless actually invaded or in such immediate danger as will not admit of delay. (Art. I, Sec. 10, Cl. 3.)[40]

32. A privilege. Of being presidential and vice-presidential elector in the manner provided by the legislation of. the State. (Art. II, Sec. 1, Cl. 1 and 2.)[41]

33. A privilege. Of being President provided the citizen possesses the requisite qualifications of birth, age, and residence. (Art II, Sec. 1, Cl. 4.)[42]

34. A privilege. Of being Vice-President subject to the same qualifications as last named. (Art. II, Sec. 1, Cl. 4.)

35. A privilege. Of suing in the federal courts, on the terms and subject to the conditions of jurisdiction set forth in the Constitution and laws. (Art. III, Secs. 1 and 2.)

36. A right. To trial by jury in the State where the crime is charged to have been committed in any trial for crime in a federal court, except in case of impeachment, and when the crime is not committed within any State the trial to be at such place or places as Congress directs. (Art. III, Sec. 2.)[43]

37. An immunity. From the charge of treason against the United States, except for levying war against them, or for adhering to their enemies, giving them aid and comfort (Art III, Sec. 3, Cl. 1. See Of Treason, supra, pp. 74 et seq.)

38. A right. To demand, in cases of trial for treason, the testimony of two witnesses to the same overt act, or a confession in open court, as the only basis, of conviction. (Art. III, Sec. 3, Cl. 1.)[44]

39. An Immunity. Against any attainder of treason working corruption of blood or forfeiture, except during the life of the person attainted. (Art. III, Sec. 3, Cl. 2.)[45]

40. A right. To demand that each State shall give full faith and credit to the public acts, records, etc., and judicial proceedings of every other State. (Art. IV, Sec. 1.)[46]

41. A right. In the citizens of each State to enjoy all the Privileges and immunities of citizens in the several States. (Art. IV, Sec. 2, Cl. 1.)[47]

42. A right. To demand from any State the extradition and removal of any person who shall flee thereto, who is charged, in another State, with treason, felony, or other crane. (Art. IV, Sec. 21 Cl. 2)[48]

43. A right. To demand the delivery, on claim of the party entitled, of any person held to service or labor, in one State, who has escaped to another State. (Art. IV, Sec. 2, 01. 3.)[49]

44. A right. To the performance of the guarantee of the United States that every State in the Union shall have a republican form of government, and that the United States will protect each of them from invasion and against domestic violence. (Art. IV, Sec. 4.)[50]

45. A right. In each State to equal suffrage in the Senate. (Art. V.)

These being the only rights, privileges, and immunities guaranteed to citizens by the Constitution itself, the following additional appear in the first twelve amendments to the Constitution:[51]

46. An immunity. Against any law of Congress respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press. (Art. I.)[52]

47. A right. Of the people peaceably to assemble, and to petition the government for a redress of grievances. (Art. I)[53]

48. A right. Of the people to keep and bear arms. A right not to be infringed. (Art. II.)[54]

49. An immunity. From the quartering of troops in any house in time of peace without the consent of the owner, or in time of war, except in a manner to be prescribed by law. (Art. III.)

50. An immunity. Against unreasonable searches or seizures. (Art. IV.)[55]

51. A right. To demand that search warrants shall not issue except upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or things to be seized. (Art. IV.)[56]

52. A right. That no citizen be held to answer to the Federal government for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service. (Art. V.)[57]

53. An immunity. From being twice put in jeopardy of life or limb for the same offense. (Art. V.)[58]

54. An immunity. From being a witness against himself. (Art. V.)[59]

55. A right. To due process of law before being deprived of life,, liberty, or property. (Art. V.)[60]

56. A right. To just compensation for any property taken for public use. (Art. V.)[61]

57. A right. To speedy and public trial in all cases of criminal prosecutions by an impartial jury of the district wherein any crime is charged to have been committed, the district to have been previously ascertained by law; to be informed of the nature and ,cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. (Art. VI.)[62]

58. A right. In suits at common law, involving a value exceeding twenty dollars, to a trial by jury. (Art. VII.)[63]

59. An immunity. From having any fact tried by a jury re-examined in any court of the United States, otherwise than according to the rules of common law. (Art. VII.)[64]

60. An immunity. Against the requirement of excessive bail, against the imposition of excessive fines, and against the infliction of cruel and unusual punishments. (Art. VIII.)[65]

61. A declaration. That the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. (Art. IX.)[66]

62. A guarantee. That the powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people. (Art. X.)[67]

In Lloyd v. Dollinson, decided on May 16,1904, the Supreme Court said that the first eight amendments to the Constitution of the United States have reference to powers exercised by the government of the United States and not to those of the states.[68]

The Eleventh Amendment to the Constitution relates simply to a limitation of Federal judicial power, and the Twelfth Amendment to the manner in which presidential and vice-presidential electors shall meet and cast and certify the electoral vote, and to the manner of deciding the result; so that they have no direct significance or bearing on the rights of citizenship.

The first ten amendments to the Constitution were proposed to the legislatures of the several States by the First Congress, September 25, 1789. They were ratified by the States, beginning with New jersey, November 20, 1789, and ending with Virginia, December 15, 1791. There is no evidence on the journals of Congress that the legislatures of Connecticut, Georgia, or Massachusetts ratified them. The Eleventh Amendment was proposed to the legislatures of the several States by the Third Congress, September 5, 1794, and was declared to have been ratified by the legislatures of three-fourths of the States, in a message from the President to Congress dated January 8, 1798.

The Twelfth Amendment to the Constitution was proposed to the legislatures of the several States by the Eighth Congress, December 12, 1803; in lieu of the original third paragraph of the first section of the second article, and was declared adopted in a proclamation of the Secretary of State, September 25, 1804.

From 1804 to 1865 the Constitution and twelve amendments remained unchanged.

It was not until February 1, 1865, that the Thirteenth Amendment or first of the great "war amendments" was proposed. It was declared adopted in a proclamation of the secretary of state, dated December 18, 1865. The Fourteenth Amendment was proposed June 16, 1866, and declared adopted July 21, 1868. The Fifteenth Amendment was proposed February 27,1869, and proclaimed as adopted March 30, 1870.

Let us now inquire into the rights, privileges, and immunities of citizens, as citizens of the United States and of their respective States, during the first seventy-six years of the Union, and afterwards examine how far these rights have been modified, or State and Federal control of them changed, by the amendments consequent upon the great Civil War.

The following reflections must result to every student of the subject, from the aforegoing recital.

First. That the correlative relations of government and citizenship were absolute and unqualified as between the States and their citizens after the States gained independence and prior to the formation of the Union.

Second. That the Federal government when formed was one of limited scope and powers, and after its formation, notwithstanding the creation and recognition of the sixty-odd Federal rights, privileges, and immunities as citizens of the Union, above set forth, a vast residuum of power and control over the rights, privileges, and immunities of their citizens remained in the States.

Third. That the Federal government, while supreme in its sphere, was not framed to reach, and its creation did not affect, the undelegated powers of the States, in municipal affairs, over their own citizens and that its power over such was expressly negatived by the instrument which brought it into being.

This is so manifest that the Constitution might well have begun with the language of the last of the ten first amendments, for the States existed before their representatives created the Union by the delegation of certain enumerated powers, and it goes without saying that "the powers not delegated to the United States by the Constitution are reserved to the States respectively or to the people."

The rights of citizens, both as citizens of the United States and of the States, under nearly every clause of the Constitution and the first twelve amendments, were fully considered and defined before the outbreak of our great Civil War, by the Supreme Court of the United States. To the great glory of that tribunal it may be truly said that its interpretations have been universally recognized as wise, conservative and just; that if it has erred at all it has been either towards the reserved powers of the States than towards an enlargement of Federal power by implication; that for the most part its judgments have remained unaffected by the excitements and changes of civil conflict; and that, even concerning such of its decisions as have been reversed by the logic of events, the wisdom and justice of its action upon the law and the facts then before it are now universally admitted, however bitterly they may have been aspersed at the time those decisions were rendered.

The footnotes on the foregoing pages have set forth every decision of the Supreme Court upon every clause of the Constitution and amendments, bearing on the rights, privileges, and immunities of citizens, and a careful study of those decisions, as they relate to each of the subjects above set forth, must be the only satisfactory road to a mastery of the subjects. What follows is a mere surface index of the substance of the decisions upon the most important of those questions, intended to stimulate to a thorough study of the cases.

The citation of authorities in connection with a statement of the minor topics is deemed a sufficient reference to them.

Proceeding to consider the more important topics in the order of their presentation above, we come first to the subject —

Taxation of the Citizens
(Right 3 above).

The power of taxation of the citizen by the States is unlimited by law save concerning taxes on exports or imports or tonnage duties. It is limited in the United States by only three conditions, the first being that it cannot tax exports, the second that direct taxes shall be apportioned among the several States according to their respective numbers, and the third that all duties, imposts, and excises shall be uniform throughout the United States. [69]

The grant of taxing power to the United States by the Constitution has been held to be an absolute grant subject only to the above limitations. Moreover, the power of taxation possessed by the United States over citizens of the District of Columbia has been held to be as unlimited as that possessed by the States over their citizens.

Many cases have arisen in which the question was whether the particular tax involved in the controversy was a direct tax; but in all such cases the decision turned on that, as a question of fact, and was not instructive beyond the understanding of the particular statute involved; for, with the nature of the tax settled, the legal principles applicable to it were those stated above.

A most thorough and exhaustive discussion of the nature and extent of Federal taxing power and of what does and does not constitute a direct tax will be found in the case of Pollock v. Farmers' L. & T. Co.[70]

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

(Immunity 7 above).

This is an old and salutary provision intended to secure to the representative the utmost degree of freedom in the discharge of his public duties. A similar provision will be found in the constitutions of most of the States concerning their State legislators, and the provision was adopted from the privileges accorded to members of the British Parliament. As to the nature and extent of the privilege, the case of Kilbourn v. Thompson[71] will be found instructive. Mr. Justice Story in his Commentaries on the Constitution (Sw. 866) refers to it as a "great and vital privilege."

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

(Immunity 11 above).

This exclusive power of regulating commerce was conferred upon Congress for a reason. It was the offspring of many short-sighted, vexatious, and discriminating regulations imposed by the States upon vessels from other States entering their ports, while they retained the power to legislate on the subject under the Articles of Confederation. The transfer of the subject to exclusive Federal control was made deliberately after these embarrassing experiences. Nearly a hundred years ago the Supreme Court declared that it was doubtful whether any of the evils of weakness under the Articles of Confederation contributed more to the adoption of the Constitution than the conviction that commerce ought to be regulated by Congress."

No clause of the Federal Constitution has given rise to more litigation than this so-called commerce clause. It was first interpreted by Chief Justice Marshall in Gibbons v. Ogden,[72] and its scope and legal effect have been under consideration in about two hundred and fifty cases since then decided by the Supreme Court of the United States. Many volumes have been written concerning the rights of citizens under this clause, and it would be beyond the scope of this work to set forth even an epitome of the decisions interpreting it rendered by the Supreme Court.

We shall content ourselves with a statement of a few of the leading principles settled by the adjudicated cases, and the remark that the litigation has, for the most part, arisen out of acts of State legislatures, which have been challenged as invading the exclusive province of Congress to regulate interstate commerce, etc.

The first important case arising under this clause was, as above stated, Gibbons v. Ogden,[73] and the last case of importance decided by the Supreme Court is the celebrated so-called "merger decision," involving the right of Congress, in the exercise of its power to regulate commerce, to pass laws forbidding the merger of corporations owning parallel and competing lines and engaged in interstate commerce.[74]

The master mind of Marshall in the first case announced the following fundamental principles, which remain undisturbed:

1. That the grant of powers to Congress, in the particulars named, was not only absolute and embraced the power to regulate navigation, but was exclusive of any rights of States to legislate on the subject.

2. That it did not affect the right of the States to legislate on purely internal commerce or to enact inspection laws and health laws, or purely police regulations.

3. That the laws last named "form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the general government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress, and consequently they remain subject to State legislation."

4. But where the States, in the exercise of the powers last mentioned, enact laws which come in conflict with Federal laws regulating commerce, the acts of the State must yield to the laws of Congress. That the nullity of all such acts is produced by the declaration that the Constitution is supreme.[75]

Throughout all the multitudinous litigation which has followed arising under this clause the soundness of these principles has never been questioned. If the case has arisen upon a State statute the question has been, does the State statute directly legislate on the forbidden subject? If so, it is void. Does it although within the general scope of State power, in its effect regulate interstate commerce, etc.? If so, it must yield to the exclusive power of Congress to control.[76]

If it be a mere regulation of inspection, or health, or exercise of the unquestioned police powers of the State, and its effect on commerce be utterly incidental and not determinative, then it is a law within the powers of the State.

If the question has arisen upon a Federal statute, the first inquiry has invariably been, Is the law, fairly construed, a regulation of that class of commerce committed absolutely and exclusively by the Constitution to the regulation of Congress? If so, it is a valid law, for the power to legislate is as broad as the grant of exclusive control.

These questions have arisen in infinite variety and complexity, presenting new aspects in each successive case, and it is impossible to generalize them in this discussion. The opposing views in each case are the result of two theories which have given rise to most of the controversies between Federal and State authority, viz., on the one hand, the theory of broad latitudinarian construction of Federal powers, and, on the other, the theory of strict construction. Pursuing the one or the other of these theories, men of the highest intellect and character have, from the foundation of the government, been arrayed in opposition to each other upon every important question of construction that has arisen, and perhaps no more striking illustration of this irreconcilable conflict of views may be found in our whole judicial literature than in the earnest, almost angry, discordance of our Supreme Court in the last important decision on this commerce clause.[77]

But the constitutional inhibition does not prevent the States from enacting laws which prevent non-residents from engaging in certain classes of employments within their limits. Such, for example, is the right of a State to limit the right to fish and hunt, within her borders to her own citizens. It has been held that the States did not invest the Federal government with any portion of their power and control over fishing and hunting within their borders; that the fish and shellfish and game in every State belong to, peculiarly and of right, and form part of the food supply of, the people in each State, and that it is within the police powers of the State, without any right of interference by Federal authority, to determine who shall and who shall not take the fish and game within her borders, and even to prohibit the shipping of the same beyond the limits of the State. Thus when a Virginia law punished a citizen of Maryland for taking oysters from Virginia oyster beds, and he claimed that he was engaged in commerce, the Supreme Court sustained the State law, and denied the claim of license to fish in Virginia waters as a matter of commercial right.[78] So, a law of Connecticut regulating the manner of taking game in that State and forbidding its exportation was held valid.[79] The duty of preserving the game was declared to be a trust for her own people. And State laws prohibiting exhaustive methods of fishing in waters within State jurisdiction, or the use of destructive instruments, are within the powers of the State.[80]

The Right of the Citizen to the Writ of Habeas Corpus
(Right 23 above)

Blackstone calls the writ of habeas corpus "the most celebrated writ in the English law,"[81] and he refers to the ruinous Habeas Corpus Act of England, 31 Charles II, c. 2, as "frequently considered as another Magna Charta."

The Supreme Court of the United States has characterized it: "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom. In England, after a long struggle, it was firmly guaranteed by the famous Habeas Corpus Act of May 27, 1679. — It was brought to America by the colonists and claimed as among the immemorial rights descended to them from their ancestors.[82] Of this writ it may be said truly that it has elicited more encomiums from bench and bar than any other in the book, and that discussion of it seems to arouse whatever of eloquence judges and advocates may possess.

In form it is a writ emanating from the judicial source intrusted with its keeping and issuance, directed to the custodian of any person detained on a criminal or a civil charge, directing him to produce the body of the person in custody at a time and place designated in the writ, together with the causes of his detention, and then and there to submit to and receive whatever judgment the judge or court awarding the writ shall consider in that behalf. The name of the writ originated in the fact that at the time it came into use all writs in England were written in Latin, and this particular writ directed the custodian of the prisoner "habeas corpus," "thou shalt have the body" of so and so, at such and such time and place.

It is not within the purpose of this work to elaborate the different kinds of writs of habeas corpus and the different purposes for which they are invoked. That may be seen by reference to the authorities quoted. There were writs of habeas corpus ad respondendum, or to enable the party applying for the writ to obtain an answer of some sort from the party in custody; and writs ad satisfaciendum, or to satisfy a judgment or other demand, which writ does not exist with us; or ad proseguendum, ad testificandum, ad deliberandum, to prosecute something, to testify about something, to deliberate about something. It is a common thing, for example, where a prisoner confined in jail or penitentiary is a necessary witness at a trial, to have him produced in court by a writ of habeas corpus ad testificandum issued by the trial judge or other authority.

But the common writ the one cherished as none other, is the writ of habeas corpus ad subjiciendum et recipiendum, commanding the custodian to produce the body of his prisoner and submit to and receive whatever judgment the judge or court awarding the writ shall see fit to render. The power of the judge or court issuing the writ is, upon the production of the accused together with the causes of his detention, and after hearing the matter fully, to discharge him, admit him to bail, or remand him to custody. Nearly all the States have guarantees of the privileges of the writ of habeas corpus in their constitutions, and all have statutes providing for the manner of its issuing.

But there is this distinction between writs of habeas corpus issued by Federal courts and judges and those issued by State courts and judges. A writ may issue from Federal authority to a person holding another in custody under State authority, in certain cases.[83] But a State court or judge cannot issue a writ of habeas corpus against a person having a prisoner in custody under the authority of the United States.[84]

The reason for the distinction is obvious from the frame of the government, for the Federal jurisdiction is, in its sphere, supreme, and where Federal and State laws conflict the latter must yield to the former, and the view of their jurisdiction taken by Federal tribunals must prevail. So that while an inquiry by a Federal tribunal into a detention under State authority would be determinative, a like inquiry by a State tribunal into a detention under Federal authority would not be determinative or obligatory on the Federal authority.[85]

The cases cited above in the note attached to the statement of the rights of the citizen to the writ of habeas corpus (note 4, p. 125) will furnish the Student with such further information as he may desire concerning the origin, nature and history of, and the manner of applying for, the writ, and the cases to which it does not extend, as well as those to which it does extend. We may leave the subject with the final remark that the suspension of the writ, no matter what may have been the exigency on which such action has been justified, has always been viewed with the utmost jealousy by the American people, and the opinion of Chief Justice Taney in the habeas corpus case of Ex p. Milligan [86] is one of the finest pieces of judicial eloquence in American jurisprudence.

Of the Immunity of the Citizen Against Bills of Attainder and Ex Post Facto Laws.
(Immunity 24 above).

This immunity is guaranteed, both as against the Nation and the State (Art. I, Sec. 9, Cl. 3, and Art. I, See. 10, Cl. 1.)[87]

A bill of attainder is a legislative act which inflicts punishments without a judicial trial.[88] Such bills were, in England, sometimes directed against individuals by name and sometimes against a class. They were contrary to the whole spirit of our institutions, and so were forbidden by general consent in the Constitution, both as against the Nation and the State.

No question of importance arose from any attempt to pass such measures until the period of our Civil War, when laws enacted by Missouri and West Virginia, and even the rules adopted by the Supreme Court of the United States itself, were challenged as in effect bills of attainder. The discussions in the arguments and opinions in the case of Cummings v. Missouri,[89] and Ex p. Garland,[90] are full of historical and legal information on this subject, and should be carefully read by the student.

"An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed." The State legislature can pass no ex post facto law.[91] This is the language of Chief Justice Marshall in the first case in which such legislation came under the eye of the Supreme Court. And of the reasons leading to the adoption of those clauses of the Constitution forbidding such legislation either by the Nation or the State, he said: "Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment.... The restrictions on the legislative power of the States are obviously founded in this sentiment."

But an act imposing a succession tax on an estate after its devolution, during the period of administration, was held not to be an ex post facto law. [92]

Of the Immunity of the Citizen Against State Laws Impairing the
Obligation of Contracts

(Immunity 29 above).

The same reasons which prompted the Federal guarantee against the passage of bills of attainder or ex post facto laws by the States doubtless produced this guarantee also.[93] It has given rise to an immense amount of litigation. The principle is so plain that a statement of the law is sufficient, but the difficulty and doubt in the many cases that have arisen of the nature and extent of the rights have been in determining whether the State law asserted in a particular case did impair the vested right claimed.

As may be seen by reference to the long list of authorities cited in connection with the statement of this immunity, it would be impossible to consider, in this volume, the numerous phases which the discussion of the nature and extent of the rights of the citizen under this clause has assumed. That would make a volume in itself.

The case which sets forth with most learning and ability the nature and extent of this particular Federal guarantee, and the one most frequently cited, is Charles River Bridge v. Warren Bridge.[94] It was decided in 1837, and the opinion of the court was delivered by Chief Justice Taney in one of the strongest of his many able opinions. But there were three dissents. The dissenting opinions of Mr. Justice McLean and Mr. Justice Story, the latter concurred in by Mr. Justice Thompson, are such striking, powerful presentations of opposing views that in them is found the germ of many a subsequent effort made to unsettle the principles fixed by the great decision. This case was confined, however, to a discussion of how far public grants of franchises are revocable by State legislation without violating the clause of the Constitution above referred to. It did not involve consideration of many other classes of State legislation upon which the question of the impairment of contracts has arisen.

One leading distinction, however, running through the decisions, should be briefly referred to, to wit: The prohibition does not restrain the States from changing remedies, and a change in a remedy provided to enforce a right is not necessarily an impairment of the right itself.[95]

To a full comprehension by the practicing lawyer of the meaning of this clause and its bearing upon State legislation, a study of the authorities cited in the footnote is necessary, indeed indispensable. As there is no middle ground between this brief consideration, and one so elaborate that it would occupy unwarranted space in this general treatise, the subject is left to some other author who shall deal with it as a specialty.

Of the Right of the Citizens of Each State
to All the Privileges and Immunities of
Citizens in the Several States.

(Right 41 above).

This provision was in the Articles of Confederation. Indeed, it was the only direct guarantee from the United States to the individual citizen contained in that instrument.

In the first case decided by the Supreme Court, involving the construction of this clause, Chief Justice Marshall said that a corporation was "Certainly not a citizen" in the sense that the word is used in the clause referred to.[96] And in the next case the same illustrious authority held that a citizen of the United States, residing in any State of the Union, is a citizen of that State.[97] In later cases it has been repeatedly decided that corporations are not citizens of the State of their creation within the meaning of the clause now under consideration; that they are creatures of the local law of the place of their creation, without any absolute right to recognition in other States.[98]

A State statute denying jurisdiction to the State courts over a suit by a foreign corporation against a foreign corporation has been held not to violate this clause of the Constitution.[99] But when a State law made it a condition for the admission of a foreign corporation to do business in the State that the corporations admitted would abstain from removing any suits brought against it or otherwise resorting to the federal courts, the condition was held to be void as in conflict with the Constitution of the United States. This was decided, however, rather as an abridgement of the rights of the corporation under Amendment XIV than as against its right as the citizen of another State.[100]

A State law admitting a foreign corporation to do business in the State on the condition that creditors who were residents of the State granting the permit should have priority in the distribution of its assets over nonresident creditors was likewise held to violate the constitutional guarantee against discrimination.[101] It was said, in one of the cases, that the only limit of the State's right to exclude foreign corporations is where they are employed by the Federal government or are strictly engaged in interstate or foreign commerce.[102]

A State law which imposes a tax upon resident merchants at one rate, and another tax upon non-residents, for the privilege of transacting the same character of business, at a higher or discriminating rate, is a violation of the provision we are discussing.[103]

In some of the cases which have been decided the State law has been assailed on the double ground that it discriminated against citizens of other States and was regulative of interstate commerce. The decisions rendered have in some instances held the law to be unconstitutional on the latter ground and have ignored the former, although it was apparently equally tenable.[104]

Under the decision in the famous Dred Scott case a free negro whose ancestors were brought to this country and sold as slaves was held not to be a "Citizen" in the sense that the word was used in the Constitution. Bitterly as this decision was assailed at the time it was rendered, its logic was unanswerable as the law then stood. This has been changed by the XIII, XIV, and XV Amendments, and it has been frequently said in the decisions upon those amendments that they were passed in order to reverse this ruling.

There are, however, sundry things concerning which States may legislate discriminating between residents and nonresidents, One of the earliest of these decisions was that marital rights of a special nature, bestowed by a State upon its own citizens residing within its borders, do not accrue to the nonresident widow of a deceased nonresident husband who owned property in that State. It was held that such rights were attached to the contract of marriage in cases in which the State controlled it and were not of the class of personal rights of a citizen intended by this clause of the Constitution.[105]

A State tax on shares of nonresidents in a corporation of Connecticut, on a basis different from that on which residents were taxed, was, under the peculiar tax laws of Connecticut, held not to be a discrimination.[106]

And a State law saving the statute of limitations to a resident plaintiff against an absent defendant, but allowing it to run against a nonresident plaintiff, has been held not to discriminate against the citizen of another State within the meaning of this clause. It was held to be a change of remedy and not the deprivation of a right.[107]

An act of a State legislature granting exclusive privileges for twenty-five years to maintain within a designated area a slaughter-house, landings for cattle, and yards for enclosing cattle intended for sale or slaughter, and prohibiting all others, was held to be within the police power of the State, unaffected by the Federal Constitution or its amendments, and to be a regulation for the health and comfort of the people.[108] A law of the State of Iowa making persons liable for any damages accruing from their allowing cattle from Texas to run at large and spread a disease known as Texas fever was held to work no discrimination, and to be within the police powers of the States.[109] A similar law against introducing diseased live stock into Colorado was upheld.[110] In the case of Rasmussen v. Idaho,[111] the proclamation of the governor of Idaho forbidding the introduction from other States of sheep with scab was held to be no discrimination against other States and a legitimate exercise of the police powers of the State.

State laws forbidding non-residents from fishing or hunting within the limits of the State, or prescribing terms upon which they way do so, have been upheld as constitutional, on the ground that the States never surrendered to the Federal government any of their rights touching fishing or hinting; that the fish or game of the State is a part of the food supply of the citizens, in which the citizens of other States have no interest or personal rights or privileges; and that a State may control the subject in the exercise of its police power,[112] and as a thing held in trust for its own people.

The question of the right of the State to inspect meat and provision and other food supplies, and her right to regulate the liquor traffic, is the subject of a number of the decisions hereinafter considered, but in those cases decided adversely to the State the decision has been placed either upon the interstate commerce clause or upon the rights asserted under the XIV Amendment, and they will be found under the discussion of the latter subject.

Of the Federal Guarantee of Extradition of Fugitives from Justice
(Right 42 above).

Pursuant to this obligation the Congress has enacted statutes providing for the extradition from one State to another of fugitives from justice. These Federal statutes control the demand, and statutes have been passed in all the States providing measures in accordance with the Federal laws. In the first case of extradition presented to the Supreme Court, the prisoner was indicted in Canada and requisition was made by the Canadian government on the governor of Vermont, who undertook to deliver him. He applied for a habeas corpus on the ground that such a delivery could only be made to a foreign government on a requisition upon the United States, and that the United States would not, as had been shown by its action in another case, honor the requisition because there was no treaty. The Vermont court dismissed the writ, and the Supreme Court, by a divided court, sustained the action of the State court.[113] In another case it was held to be the duty of the governor of one State, on the demand of the governor of another State, and the production of the indictment, duly certified, to deliver up a fugitive from justice; that the function of the former is merely ministerial, and that he has no right to exercise any discretionary power; that he is under moral obligation to perform the compact of the Constitution, Congress having regulated the manner of performance; but that no law of Congress could coerce a State officer to perform his duty, and a motion for a mandamus against the governor was denied.[114] And again it was held that the Federal statute demanding surrender of a fugitive from justice found in one of the States or Territories, to the State in which he stands accused, applies to Territories as well as States and embraces every offense known to the law, including misdemeanors.[115]

In one case a man charged with crime in Kentucky fled to West Virginia. A requisition issued for him. While the governor of West Virginia was considering his extradition the man was seized in West Virginia, forcibly abducted to Kentucky, and there held for trial. He instituted proceedings seeking to have himself returned to West Virginia. The Supreme Court held that there was no mode provided by the Constitution or laws of the United States, by which Federal authority could restore him to West Virginia.[116]

And a fugitive returned to a demanding State has no immunity from other indictments against him by the State from which he fled, after he is returned.[117] But the Supreme Court has said that to extradite a man on one charge and try him on another is dishonorable.[118] The governor of a State, upon whom demand is made for the surrender to another State of a citizen who is charged with being a fugitive from justice, may refuse the requisition if it be satisfactorily shown to him that the accused was not in the State at the time the alleged offense was committed, or since, for in that case the fact that he fled from justice is negatived.[119]

From the foundation of the government and notwithstanding the absolute power of Congress to regulate the terms of surrender of fugitives, the governors of States have been disposed to show independence on this subject of honoring requisitions. In the days of slavery it was difficult to secure the surrender of fugitive slaves, and impossible to secure the surrender of persons charged in a slave State with having aided slaves to escape and having then themselves fled. The case of Kentucky v. Dennison[120] is an illustration in point. In some States the executive, before honoring the requisition of the governor of the demanding State, claims the right to examine the indictment upon which the demand is based, and to determine whether it is in due form, or to decide whether it charges an offense punishable under the laws of the demanding State, which is equivalent to deciding a demurrer to the indictment; and even to hear testimony to determine the question of probable guilt or innocence. A notable instance of this is the case of a recent governor, indicted for complicity in the murder of his political rival, who, having fled first to one and then to another State, was demanded by the authorities of the State from which he fled, of the authorities of both States in which he sought asylum, but has been protected from delivery. Perhaps, in the instance cited, it was best so, but the better opinion is that if a crime is charged and demand is made, in due form, accompanied by an exemplified copy of the indictment, the duty of the executive upon whom the demand is made is to surrender the accused to the demanding State, whether he may think him properly or improperly indicted, innocent or guilty, leaving the questions of the sufficiency of the indictment and his guilt or innocence to be determined by the lawfully constituted authorities of the demanding State upon his trial there.[121]

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.

(Right 43 above).

This once exciting clause has, since the abolition of slavery, ceased to possess much practical importance. It may be left, with the authorities cited in connection with it, to the study of those interested in the controversies to which slavery gave rise.

Of the Federal Guarantee to the Citizen that His State Shall Have a Republican Form of Government.
(Right 44 above).

In the first case in which the Supreme Court was called upon to enforce this guarantee it decided that the question which of two rival governments existing in a State was the lawful government of the State was not a judicial but a political question; that is, that it was to be decided by the legislative and executive departments and not by the judiciary. The case arose out of conditions bordering upon civil war in the State of Rhode Island in 1842, resulting from an attempt of certain citizens of that State to change the organic law of Rhode Island from government under a charter granted by Charles II, which it had continued as its form of government after the Revolution, to government under a new constitution framed by the people. The trouble originated in the fact that while it was alleged that a majority of the people desired a new constitution, there was no provision in the existing law for the calling of any convention. The charter government continued, notwithstanding certain people assembled and framed and attempted to put into operation a new government. One Dorr was chosen governor by the adherents of the new government, and at once came in conflict with the old regime. The dispute was popularly known as "Dorr's Rebellion," and the situation soon led to military conflict, the arrest, trial, and conviction of Dorr, and his sentence to imprisonment for life (although he was subsequently pardoned). In the excitement the Federal judiciary was appealed to, and to the appeal it gave the above reply.

The Federal executive and other departments had held intercourse with the old government and so continued to recognize it, and, although neither of the State governments could, as they were administered then, be said to be a republican government, under the decision that it was a political question, to be disposed of by Congress, the factions in Rhode Island were allowed to flounder on, and finally untangle their troubles for themselves without Federal interference. So in that instance this Federal guarantee of a republican government proved to be not a very practical thing.[122]

The next occasion upon which the Supreme Court considered this Federal guarantee was after the great Civil War. The State of Texas attempted, in 1861, to secede. Her government and her people waged war on the United States for four years. In 1865 she was overcome by force of arms, and her territory was occupied by the military forces of the United States, and her government was temporarily administered by provisional appointees of the President of the United States and afterwards by governors appointed under an act of Congress, by a military commander, Texas being a part of Military District No. 5, composed of Texas and Louisiana, pursuant to an Act of Congress of March, 1867. A State convention, assembled under the authority of the United States in 1866, passed an ordinance looking to the recovery of certain bonds alleged to belong to the State, and one J. W. Throckmorton, a governor whom that convention had elected, authorized the bringing of the suit. Two subsequent military governors, Hamilton and Pease, further ratified this action. The bill was an original bill filed by Texas as a State in the Supreme Court, and while this condition of her statehood continued it prayed an injunction concerning certain bonds and their delivery to the State. The defense, among other things, questioned:

1. The authority of the parties named to prosecute a suit in the name of Texas.

2. The right of Texas, after her course in the Civil War, to sue as a State of the Union.

It fell to the lot of Chief Justice Chase to decide the status of the States which had attempted to secede, after they were conquered by the United States and before they were fully restored to their relations as States of the Union. In a great opinion the following points were decided:

1. That the term State, as used in the Constitution, most frequently expresses the combined idea of people, territory, and government; a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.

2. That the Union of these States under a common Constitution, forming a distinct and greater political unit, is that which was designated by the Constitution as the United States, and made, of the people and States composing it, one people and one country.

3. That the guarantee to every State of a republican form of government was a guarantee to the people of that State.

4. That the Union was indissoluble.

5. That the States nevertheless possessed a right of self-government, sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly or by fair implication delegated to the Union; that without the States in union there could be no such political body as the United States.

6. That the preservation and the maintenance of their governments was as much within the care of the Federal authority as was the preservation of the national government itself.

7. That the United States was an indestructible government of indestructible States.

8. That the guarantee of republican government in the Union, to the State, was as binding on the United States as the guarantee of perpetual union, and that Texas was entitled to the performance of that guarantee by the final act whereby she became a new member of the Union.

9. That her attempt at secession and all acts intended to give it effect were null.

10. That the State continued to exist as a member of the Union, notwithstanding its temporary government had been destroyed to preserve the Union.

11. That the United States, having preserved its own existence, was engaged in performing its equally sacred obligation to provide a republican form of government to the State.

12. That this was a political guarantee to be performed by the Congress.

13. That Congress was empowered to judge of the ways and means of accomplishing that result, and the provisional and temporary military governments then existing were lawful means to that end in a case in which the hostile State government had been destroyed, and until new and loyal republican State governments could be organized.

14. That it behooved the judiciary to recognize the continual existence of the seceding States as members of the Union, notwithstanding the temporary suspension of their relations to the Union by the force of the events above referred to.

No epitome of this great decision can do it justice. It is among the most luminous expositions extant of the vital questions of which it treats, and was followed thenceforth in every department of the government.[123]

In a later case the point was made that the form of government of a State was not republican in the sense guaranteed by the Constitution; that is to say, that certain State statutes in the frame and execution were not. The Supreme Court reiterated that the question was a political question, and that if the "form of government" existing in a State was recognized by the legislative and executive departments, the judiciary ought not to question it, and must follow the interpretations of the State laws placed on them by the highest State court.[124]

In a very recent case the Supreme Court, called upon to decide upon the case of rival contestants for the office of governor of a State, declined to do so, declaring that it was pre-eminently a case for decision by the court of last resort in the State. When the Federal guarantee off a republican form of government, and the XIV Amendment were invoked, it dismissed the contention by declaring that the enforcement of that guarantee was intrusted to the political department of the government, and that the powers of the judiciary concerning it were not so enlarged by anything in the XIV Amendment as to give the court power to review the judgment of a State court of last resort on a question of State elections.[125]

From the foregoing, which embrace all the utterances of the Supreme Court concerning its powers under the guarantee clause, it will be seen that the citizen has little or nothing to hope for, in the way of its enforcement, from the Federal judiciary. Indeed, judging by the recent utterances of that court, not only in this regard, but on the subject of extradition,[126] and in numerous cases where attempts have been made to secure its aid against gross frauds the suffrage,[127] it would seem to be willing to surrender its existence and power as a coordinate department of the Federal government, and gladly abandon to Congress and the executive all efforts to enforce the law, except in matters not political.

We come now to consider those rights, privileges, and immunities of the citizen guaranteed by the early amendments to the Constitution.

The Immunity of the Citizen Against Any Law of Congress
Respecting an Establishment of Religion or Prohibiting the Free Exercise Thereof.

(Amendment I.)

Either by the bill of rights, the constitution, or the law, of every State of the Union, a similar guarantee is given to its citizens, concerning State laws. This does not mean that the people either of the Nation or of the State hold religion in contempt or desire to belittle it. On the contrary, the oldest of the bills of rights contains reverential references to religion or the duty which we owe to our Maker. The Christian religion was judicially declared to be a part of the common law of Pennsylvania.[128] But the English Established Church had become exceedingly obnoxious to the colonists, and their ideas of religious liberty had been imbibed from Dutch and Lutheran examples, and stimulated by what they regarded as oppressions of the regularly established Church. Hence the prohibition above set forth.[129]

The first case arising under this clause involved the effect of the constitutions, national and State, and laws enacted thereunder, upon property of the Episcopal Church in Virginia. The case arose touching certain church property in Alexandria, which city was at that time in the District of Columbia. The court held that the religious establishment of England was adopted, so far as applicable, in the colony of Virginia, and that the freehold of church lands was in the parson; that legislative grants were irrevocable; that the Act of Virginia of 1776, confirming to the Episcopal Church, as successor of the Established Church, its rights to lands, was not contrary to the State constitution and did not infringe any rights, civil, political, or religious, under the State constitution; that later acts seeking to divest the Episcopal Church of Virginia of property acquired previous to the Revolution were null, etc.[130] By this decision, and others similar in other States, the Episcopal Church retained much property in the older colonies.

The Supreme Court has held that the prohibition above does not make good the plea of a person accused of an offense against morality and decency, that he has acted pursuant to the tenets of his religious belief, which were those of a Mormon.[131] It was said, "Religious freedom is guaranteed everywhere throughout the United States so far as congressional interference is concerned." Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were violative of social duties or subversive of good order. "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.' ' The law punishing polygamy was upheld as intended to prevent a pernicious practice, no matter what was the belief of the party engaging in it The opinion delivered by Chief Justice Waite is both interesting and instructive and equally applicable to other religious immoralities than polygamy.

In a later case the Supreme Court declared that bigamy and polygamy are crimes by the laws of the United States, by the laws of Idaho, and by the laws of all civilized and Christian countries; and to call their advocacy a tenet of religion is to offend the common sense of mankind; that a crime is none the less such, nor less odious, because sanctioned by what any particular sect may designate as religion; and that the first amendment to the Constitution was never intended as a protection from punishment for acts inimical to the peace, good order, and morals of society.[132]

In a case recently decided, it was held that placing an isolated hospital building built by the government in charge of another hospital, which was under the control of Sisters of the Roman Catholic Church, was not obnoxious to the constitutional prohibition against laws respecting an establishment of religion.[133]

Of the Right of the Citizen to Free Speech.
(Amendment I.)

This right is also guaranteed to their citizens by all the States. Of it, it is sufficient to say that it is a right to be confined within the bounds of decency and morality, and gives no immunity from arrest and punishment for treasonable, seditious, and inflammatory appeals. In time of war numerous arrests have been made by 'the authority of military commissions, and citizens have been actually deported by presidential orders without trial by jury, and after vainly seeking redress under habeas corpus proceedings.[134] And in time of peace, under Federal statutes authorizing the deportation of anarchists, persons have, from time to time, been indicted, arrested, and punished or deported, for seditious, anarchistic, and nihilistic utterances and publications.

The justification for such action is that while the constitutions, Federal and State, guarantee freedom of speech and of the press, the persons so speaking or publishing are answerable to the public authorities for their acts in the interests of good citizenship, morality, and decency.[135]

Of the Freedom of the Press.
(Amendment I.)

The freedom of the press has been described as one of the great bulwarks of liberty. Unquestionably the suppression of fair discussion of public measures in the press was, under the system against which the colonists rebelled, one of the most odious forms of tyranny. On the other hand, those who, in that day, were so ardent for the absolute liberty of the press could not have foreseen the immense increase in public and private printed matter which was to occur; the almost unlimited power for good or evil which the press was to possess; the irreparable nature of the injuries which it is often able to inflict; or the irresponsible hands into which so large a portion of the press of our day was, in time, to pass.[136]

The State constitutions and statutes which guarantee the freedom of the press, for the most part, couple with that guarantee the condition that the persons so printing shall be answerable in damages for any abuse of the privilege. But the privilege itself is regarded as of such dignity and sanctity that the courts of sundry States have held that an injunction will not lie to restrain the publication of an alleged libel, and the only redress of a party libeled is to bring an action for damages after the fact or prosecute the offender criminally.[137]

Rights Guaranteed by Amendments II-VIII, XI, and XII.

Of the other rights guaranteed by the amendments from II to VIII we shall not speak in detail, because their nature, extent, and full interpretation will be found sufficiently considered in the authorities cited in connection with their statement.[138] Nor do the amendments numbered XI and XII bear directly on our subject.

Having now come to the war amendments, let us proceed to consider them in their order.

[1] Broadhead's History of New York, 1770.

[2] "The practice of setting apart section No. 16 of every township of public lands, for the maintenance of public schools is treaceable to the ordinances of 1785, being the first enactment for the disposal by sale of the public lands in the western territory. The appropriation of public lands for that object became a fundamental principle by the ordinance of 1787, which settled terms of compact between the people and States of the northwestern territory, and the original States, unalterable except by consent. One of the articles affirmed that `religion, morality, and knowledge, being necessary for good government and the happiness of mankind.' and ordained that 'schools. and the means of education, should be forever encouraged.' This principle was extended, first by congressional enactment (1 Stat. at large, 550, para. 6), and afterward, in 1802, by compact between the United States and Georgia, to the southwestern territory. The earliest development of this article in practical legislation, is to be found in the organization of the state of Ohio, and the adjustment of its civil polity, according to the ordinance. preparatory to its admission to the Union." Cooper v. Roberts, (1855) 18 How. U.S. 177.

[3] So persuasive of all our early acts were the examples of the Dutch that even our national emblem is singularly like the flag of the United Netherlands.

[4] Corfield V. Coryell. (1823) 4 Wash. U.S. 371. See also Ward v. Maryland, (1870) 12 Wall. U.S. 430.

[5] 16 Wall U.S. 76.

"The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere." Minor v. Happersett, (1874) 21 Wall. U.S. 170.

[6] Revised Code of Virginia, 1819, Vol. 1. page 31.

[7] "The Confederation was a league of friendship of the States with each other, so declared in the articles and entered into `for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion. sovereignty, trade. or any other pretense whatever.' But its articles did not form a constitution or ordinance of government, with power to enforce its provisions upon each other, or even a compact having any coherence or binding force other than that of a league of friendship, which its members only claimed them to constitute." Wharton v. Wise. (1894) 153 U.S. 167.

[8] "A reasonable interpretation of that instrument [the Federal Constitution] necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly. in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first claim is to be found In the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, etc.; of the second claim, the prohibition of a State to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the latter and spirit of the Eleventh Amendment of the Constitution, but, upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being 'the supreme law of the land,' are of paramount authority, and the State laws, so far, and so far only, as such incompatibility exists, must necessarily yield." Houston v. Moore, (1820) 5 Wheat. U.S. 49. See also M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 406; Cohen v. Virginia, (1821) 6 Wheat U.S. 414; Ableman w. Booth, (1858) 21 How. U.S. 516; Legal Tender Cases, (1870) 12 Wall. U.S. 543; Tarble's Case, (1871) 13 Wall. U.S. 406; Ex p. Siebold. (1879) 100 U. S. 398; Chinese Exclusion Case, (1889) 130 U.S. 604; Is re Quarles, (1895) 158 U.S. 535.

[9] Civil Rights Cases, (1883 109 U.S. 3.

[10] "A State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or retained by the Constitution of the United States. By virtue of this, it is not only the right, but the boundless and solemn duty of a State, to advance the safety. happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject, or the manner of its exercise is not surrendered or restrained in the manner just stated. All those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called `internal police,' are not thus surrendered or restrained; and consequently, in relation to these, the authority of the State is complete, unqualified, and exclusive." New York v. Mila, (1837) 11 Pet. U.S. 139.

"Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted, with powers greatly restricted, only upon the States. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in The Federalist, thus: `The Federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes'" Lane County v. Oregon, (1868) 7 Wall. U.S. 76.

[11] Under the very peculiar constitution of this government, although the citizens owe supreme allegiance to the Federal government, they owe also a qualified allegiance to the State in which they are domiciled. Their persons and property are subject to its laws. The Brig Army Warwick, (1862) 2 Black U.S. 673.

[12] Ex p. Yarbrough. (1884) 110 U.S. 651; in re Green, (1890) 134 U.S. 377; McPherson v. Blacker, (1892) 146 U.S. 1; Wiley v. Sinkler, (1900) 179 U.S. 58; Swaford v. Templeton,. (1902) 185 U.S. 487.

"The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the State in which they are chosen, but has its foundation in the Constitution of the United States." Wiley v. Sinkler (1900) 179 U.S. 58, approving Ex p. Yarbrough, (1884) 110 U.S. 651.

[13] Dred Scott v. Sandford, (1856) 19 How. U.S. 393; Veazie Bank v. Fenno, (1869) 8 Wall. U.S. 533; Scholey v. Rew, (1874) 23 Wall. U.S. 331; De Treville v. Smalls, (1878) 98 U.S. 517; Gibbons v. District of Columbia, (1886) 116 U.S. 404; Pollock v. Farmers' L & T. Co., (1895) 157 U.S. 429; Pollock v. Farmers' L. & T. Co., 158 U.S. 601; Thomas v. U.S, (1904) 192 U. S. 363.

See infra note 9, P. 114.

"The men who framed and adopted that instrument [the Constitution] had just emerged from the struggle for independence, whose rallying cry had been that `taxation and representation go together' .... The States were about, for all national purposes embraced in the Constitution, to become one, united under the same laws. But as they still retained their jurisdiction over all persons and things within their territorial limits, except where surrendered to the general government or restrained by the Constitution, they were careful to see to it that taxation and representation should go together, so that the sovereignty reserved should not be impaired, and that when Congress, and especially the House of Representatives, where it was specifically provided that all revenue bills must originate, voted a tax upon property, it should be with the consciousness, and under the responsibility, that in so doing the tax so voted would proportionately upon the immediate constituents of those who imposed it." Pollock v. Farmers' L.& T. Co., (1895) 157 U.S. 429.

[14] "The direct and declared object of this census is, to furnish a standard by which `representatives, and direct taxes, may be apportioned among the several States which may be included within this Union.'" Loughborough v. Blake, (1820) 5 Wheat. U.S. 317.

[15] "The House of Representatives has the sole right to impeach officers of the government. and the Senate to try them." Kilbourn v. Thompson, (1880) 103 U.S. 190.

[16] Anderson v. Dunn, (1821) 6 Wheat. U.S. 204; Coxe v. McLenachan, (1798) 3 Dall. U.S. 478; Kilbourn v. Thompson, (1880) 103 U.S. 168.

[17] Field v. Clark, (1802) 143 U.S. 649; Twin City Bank v. Nebeker (1897) 167 U.S. 196.

"The construction of this limitation is practically well settled by the uniform action of Congress. According to that construction, it has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes which incidentally create revenue.'" U.S. v. Norton, (1875) 1 U.S. 569; Twin City Bank v. Nebeker, (1897) 167 U.S. 202.

[18] Field v. Clark (1892) 143 U.S. 649; U.S. v. Ballin (1892) 144 U.S. 1; Twin City Bank v. Nebeker (1897) 167 U. S. 196; La Abra Silver Min. Co. v. U. S., (1899) 176 U. S. 423; Wilkes County v. Coler, (1901) 180 U.S. 506; Fourteen Diamond Rings v. U.S. (1901) 183 U. S. 176.

"The purpose of the Constitution is to secure to the people of this country the best legislation by the simplest means. Its framers being mindful of the errors and oversights which are bred in the heat and strife and divided responsibility of legislative assemblies, and which they had repeatedly beheld in State legislatures, determined to secure to the people the benefits of revision. and to unite with the power of revision the check of undivided responsibility, and to place the power in the hands of the person in whom the nation reposed, for the time being. the most confidence" U.S. v. Well, (1894) 29 Ct. Cl. 540.

[19] Hylton v. U.S. (1796) 3 Dall. U.S. 171; M'Culloch v. Maryland, (1819) 4 Wheat. U.S. 316; Loughborough v. Blake, (1820) 5 Wheat. U.S. 317; Obborn v. U. S. Bank (1824) 9 Wheat. U.S. 738; Weston w. Charleston, (1829) 2 Pet. U.S. 449; Dobbins v. Erie County, (1842) 16 Pet. U.S. 435; Thurlow v. Massachusetts, (1947) 5 How. U.S. 504; Cooley v. Board of Wardens, (1851) 12 How. U.S. 299; McGuire v. Massachusetts, (1865) 3 Wall. U.S. 387; Van Allen v. Assessors, (1865) 3 Wall. U.S. 573; Bradley v. People, (1866) 4 Wall. U.S. 459; License Tax Cases (1866) 5 Wall. U.S. 462; Pervear w. Massachusetts. (1866) 5 Wall. U.S. 475; Woodruff v. Patham, (1868) 8 Wall. U.S. 123; Hinson v. Lott, (1868) 8 Wall. U.S. 148; Veazie Bank v. Fenno, (1869) 8 Wall. U.S. 633; Collector v. Day, (1870) 11 Wall. U.S. 113; U.S. v. Singer, (1872) 15 Wall. U.S. 111; State Tax on Foreign-held Bonds, (1872) 15 Wall. U.S. 300; U.S. v. Baltimre, etc., R. Co., (1872) 17 Wall U.S. 322; Union Pac. R. Co. v. Peniston, (1873) 18 Wall. U.S. 5; Scholey v. Row, (1874) 23 Wall. U.S. 331; Merchants Nat. Bank v. U.S. (1879) 101 U. S. 1; Springer v. U.S. (1881) 102 U.S. 592; Legal Tender Cases, (1884) 110 U.S. 421; Head Money Cases (1884) 112 U.S. 680; Van Brocklin v. Tennessee 117 U.S. 151; Field w. Clark, (1892) 143 U. S. 649. New York, etc., R. Co. v. Pennsylvania, (1894) 153 U.S. 628; Pollack v. Farmers' L. & T. Co., (1895) 157 U.S. 429; U.S. v. Realty Co., (1896) 163 U.S. 427; In re Kollock, (1807) 165 U.S. 526; Nicol v. Ames, (1899) 173 U.S. 509; Knowlton v. Moore, (1900) 178 U.S. 41; Delima v. Bidwell, (1901) 182 U.S. 1; Dooley v. U.S. (1901) 182 U.S. 222; Fourteen Diamond Rings v. U.S. (1901) 183 U.S. 176; Felsenbeld v. U.S., (1902) 186 U.S. 126; Thomas v. U.S. (1904) 192 U.S. 363. See supra, note 3, p. 112.

[20] Gibbons v. Ogden, (1824) 9 Wheat. U.S. 1; Brown v. Maryland (1827) 12 Wheat U.S. 419; Willson w. Black Bird Creek Marsh Co., (1829) 2 Pet. U.S. 245; Worcester v. Georgia, (1832) 6 Pet. U.S. 515; New York v. Miln, (1837) 11 Pet. U.S. 102; U. S. v. Coombs, (1838) 12 Pet. U.S. 72; Holmes v. Jennison, (1840) 14 Pet. U.S. 640; Thurlow v. Massachusetta, (1847) 5 How. U.S. 604; Smith v. Turner, (1849) 7 How. U.S. 283; Nathan v. Louisiana (1850) 8 How. U.S. 73; Mager v. Grima (1850) 8 How. U.S. 490; U. S. v. Marigold. (1850) 9 How. U.S. 560; Cooley v. Board of Wardens, (1851) 12 How. U.S. 299; The Propeller Genesee Chief v. Fitzhugh, (1851) 12 How. U.S. 443; Pennsylvania v. Wheeling, etc., Bridge Co., (1851) 13 How. U.S. 518; Veazie v. Moore, (1862) 14 How. U.S. 568; Smith v. Maryland, (1855) 18 How. U.S. 71; Pennsylvania v. Wheeling. etc., Bridge Co., (1853) 18 How. U.S. 421; Sinnot v. Davenport (1859) 22 How. U.S. 227; Foster v. Davenport. (1859) 22 How. U.S. 244; Conway v. Taylor(1861) 1 Black U.S. 603; U.S. v. Holliday, (1865) 3 Wall. U.S. 407; Gilman v. Philadelphia (1865) 3 Wall. U.S. 713; The Passaic Bridges, 3 Wall. U.S. 782; Southern Steamship Co. v. Port Wardens (1867) 6 Wall. U.S. 31; Crandall v. Nevada, (1867) 6 Wall. U.S. 35; White's Bank v. Smith (1868) 7 Wall. U.S. 646; Waring v. Mobile (1868) 8 Wall. U.S. 110; Paul v. Virginia (1868) 8 Wall. U.S. 168; Thomson v. Pacific R. Co. (1869) 9 Wall.U.S. 579; Downham v. Alexandria (1869) 10 Wall. U.S. 173; Clinton Bridge (1870) 10 Wall. U.S. 454; The Daniel Ball (1870) 10 Wall U.S.557; Liverpool Ins. Co. v. Massachusetts (1870) 10 Wall U.S. 566; The Montello (1870) 11 Wall. U.S. 411; Ex p. McNiel (1871) 13 Wall U.S. 236; State Freight Tax Case (1872) 15 Wall. U.S. 232; State Tax on Railway Gross Receipts (1872) 15Wall. U.S. 284; Osborne v. Mobile (1872) 16 Wall. U.S. 479; Chicago, etc., R. Co. v. Fuller (1873) 17Wall. U.S.560; Bartemeyer v. Iowa (1873) 18 Wall. U.S. 129; Delaware Railroad Tax (1873) 18 Wall. U.S. 206; Peete v. Morgan (1873) 19 Wall. U.S. 581; Dubuque, etc., R. Co. v. Richmond (1873) 19 Wall. U.S. 584; Baltimore, etc., R. Co. v. Maryland (1874) Wall. U.S. 456; The Lottawanna, (1874) 21 Wall. U.S. 558; Waltan v. Missouri, (1875) 91 U.S. 275; Henderson v. New York. (1876) 92 U. & 259; Chy Long v. Freedman. (1875) 92 U.S. 275; South Carolina v. Georgia, (1876) 93 U.S. 4; Sherlock v. Alling, (1876) 93 U.S. 99; U.S. v. 43 Gallons of Whisky, (1876) 93 U.S. 188; Foster v. New Orleans (1876) 94 U.S. 246; MaCready v. Virginia, (1876) 94 U.S. 391; @niW, Hannibal Etc., R. Co. v. Husen, (1877) 95 U.S. 465; Pound v. Turck, (1877) 95 U.S. 459; Hall v. De Cuir, (1877) 95 U.S. 485; Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 96 U.S. 1; Boston Beer co. v. Massachusetts (1877) 97 U.S. 25; Cook v. Pennsylvania (1878) 97 U.S. 566; Wheeling, etc., Transp. Co. v. Wheeling (1878) 99 U.S. 273; Northwestern Union Packet Co. v. St.Louis (1879) 100 U.S. 423; Guy v. Baltimore (1879) 100 U.S. 434; Kirtland v. Hotchkiss (1879) 100 U. S. 491; Howe Mach. Co. v. Gage, (1879) 100 U. S. 676; Trade-mark Cases (1879) 100 U.S. 82; Wilson v. McNamee, (1881) 102 U.S. 572; Tiernan v. Rinker, (1880) 102 U. S. 123; Lord v. Goodall, etc., Steamship Co., (1881) 102 U. S. 641; Mobile County v. Kimball, (1881) 102 U.S. 691; Western Union Tel. Co. v. Texas, (1881) 105 U.S. 460; Newport, etc., Bridge Co. v. U.S., (1881) 105 U. S. 470; Wiggins Ferry Co. v. East St. Louis, (1882) 107 U.S. 365; Turuer v. Maryland, (1882) 107 U.S. 38; Escanaba etc., Transp. Co. v. Chicago, (1892) 107 U. S. 678; Miller v. New York, (1883) 169 U.S. 383; Moran v. New Orleans. (1884) 112 U.S. 69; Foster v. Kansas, (1884) 112 U.S. 201; Head Money Cases. (1884) 112 U.S. 680; Cardwell v. American Bridge Co., (1885) 113 U. S. 205; Cooper Mfg. Co. v. Ferguson, (1885) 113 U.S. 727; Gloucester Ferry Co. v. Pennsylvania. (1885) 114 U.S. 196; Brown v. Houston. (1895) 114 U.S. 622; Railroad Commission Cases (1886) 116 U.S. 307, 347, 352; Walling v. Michigan, (1886) 116 U.S. 446; Coe v. Errol, (1886) 116 U.S. 517; Pickard v. Pullman Southern Car. Co., (1886) 117 U.S. 34; Tennessee v.Pullman Southern Car Co. (1886) 117 U.S. 51; Morgan's Steamship Co. v. Louisiana Board of Health (1886) 118 U.S. 455; Wabash, etc., R. Co. v. Illinois (1886) 118 U.S. 557; U.S. v. Kagama (1886) 118 U.S. 375; Philadelphia Fire Assoc v. New York (1886) 119 U.S. 110; Johson v. Chicago, etc., Elevator Co. (1886) 119 U.S. 388; Robbins v. Shelby County Taxing Dist. (1887) 120 U.S. 489; Corson v. Maryland, (1887) 120 U. S. 502; Fargo v. Michigan, (1887) 121 U.S. 230; Philadelphia.. etc., Steamship Co., v. Pennsylvania. (1887) 122 U.S. 322; Western Union Tel. Co. v. Pendleton (1887) 122 U.S. 347; Sands v. Manitee River Imp. Co.. (1887) 123 U.S. 288; Smith v. Alabama (1888) 124 U.S. 465; Willamette Iron Bridge Co. v. Hatch (1888) 125 U.S. 1; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania (1888) 126 U.S. 181; Bowman v. Chicago, etc., R. co. (1888) 125 U.S. 406; Western Union Tel. Co. v. Atty.-Gen. (1888) 125. U.S. 630; California v. Central Pac. R. Co., (1889) 127 U. S. 1; Ratterman v. Western Union Tel. Co. (1888) 127 U.S. 411; Leloup v. Mobile, (1888) 127 U.S. 640; Kidd v. Pearsaon, (1888) 128 U. S. 1; Asher v. Texas (1888) 128 U.S. 129; Nashville, etc., R. co. v. Alabama, (1888) 128 U.S. 96, Stoutenburgh v. Hennick, (1889) 129 U.S. 141; Kimmish v. Ball, (1889) 129 U.S. 217; Western Union Tel. Co. v. Alabama State Board of Assessment, (1889) 132 U.S. 472; Fritts v. Palmer, (1889) 132 U.S. 282; Louisville, etc. R. Co. v. Mississippi, (1890) 133 U.S. 587; Leisy v. Hardin (1890) 135 U.S. 100; Cherokee Nation v. Southern Kansas R. Co. (1890) 135 U.S. 641; McCall v. California, (1890) 136 U.S. 104; Norfolk, etc., R. Co. v. Pennsylvania, (1890) 136 U.S. 114; Minnesota v. Barber, (1890) 136 U.S. 318, Texas, etc., R. Co. v. Southern Pac. Co., (1890) 137 U.S. 48; Brimmer v. Rebman, (1891) 138 U.S. 78; Manchester v. Massachusetts (1891) 139 U. S. 240; In re Rahrer, (1891) 140 U.S. 646; Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U.S. 18; Massachusetts v. Western Union Tel. Co.. (1891) 141 U.S. 40; Crutcher v. Kentucky, (1891) 141 U.S. 47; Voight v. Wright (1891) 141 U.S. 62; Henderson Bridge Co. v. Henderson (1891) 141 U.S. 679; In re Garnett (1891) 141 U.S. 1; Maine v. Grand Trunk R. Co., (1881) 142 U.S. 217; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651; Pacific Express Co. v. Seibert, (1802) 142 U.S. 339; Horn Silver Min. Co. v. New York, (1892) 143 U.S. 305; Field v. Clark. (1892) 143 U.S. 849; O'Neil v. Vermont. (1892) 144 U.S. 323; Ficklen v. Shelby County Taxing Dist. (1892) 145 U.S. 1; Lehigh Valley R. Co. v. Pennsylvania. (1892) 145 U.S. 102; Harman v. Chicago, (1893) 147 U.S. 396; Monongahela Nav. Co. v. U.S. (1893) 148 U.S. 312; Brennan v. Titusville, (1894) 153 U.S. 289; Brass v. North Dakota. (1894) 163 U.S. 391; Ashley v. Ryan. (1894) 153 U.S. 436; Luxton v. North River Bridge Co. (1894) 153 U.S. 525; Postal Tel.-Cable Co. v. Charleston (1894) 153 U.S. 692; Covington, etc.. Bridge Co. v. Kentucky (1894) 154 U.S. 204; Interstate Commerce Commission v. Brimson (1894) 154 U.S. 447; Plumley v. Massachusetts(1894) 155 U.S. 461; Texas, etc. R. Co. v. Interstate Transp. Co., (1895) 155U.S. 585; Hooper v. California (1895) 155 U.S. 648; Postal Tel.-Cable Co. v. Adams (1895) 155 U.S. 688; U.S. v. E.C. Knight Co., (1895) 156 U.S. 1; Emert v. Missouri (1895) 156 U.S. 296; Pittsburg, etc., Coal Co. v. Louisiana (1895) 156 U.S. 590; Gulf, etc., R. Co. v. Hefley (1895) 158 U.S. 98; New York, etc., R. Co. V. Pennsylvania (1895) 158 U.S. 431; In re Debs (1895) 158 U.S. 564; Greer v. Connecticut (1896) 161 U.S. 519; Western Union Tel. Co. v. James, (1896) 162 U.S. 650; Western Union Tel. Co. v. Taggart, (1896) 163 U. S. 1; Illinois Cent. R. Co. v. Illinois, (1896) 163 U. S. 142; Hennington v. Georgia (1896) 163 U.S. 299; Osborne v. Florida, (1897) 164 U.S. 650; Scott v. Donald, (1897) 165 U.S. 58; Adams Express Co. v. Ohio State Auditor (1897) 165 U.S. 194; Lake Shore, etc., R. Co. v. Ohio (1897) 165 U.S.365; New York, etc., R.Co.v.New York (1897) 165 U.S. 628; Gladson v. Minnesota (1897) 166 U.S. 427; Henderson Bridge Co.v. Kentucky (1897) 166 U.S. 150; St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs (1897) 168 U.S. 349; Chicago, etc., R. Co. v. Solan (1898) 169 U.S. 133; Missourti, Etc., R. Co. v. haber (1898) 169 U.S. 613; Richmond, etc., R. Co. v. R. A. Patterson Tobacco Co., (1898) 169 U.S. 311; Rhodes v. Iowa (1898) 170 U.S. 412; Vance v. W.A. Vandercook Co., (1898) 170U.S. 438; Schollenberger v. Pennsylvania (1898) 171 U.S. 1; Collins v. New hampshire (1898) 171 U.S. 30; Patapaco Guano Co. v. North Carolina Board of Agriculture (1898) 171 U.S. 345; New York v. Roberts (1898) 171 U.S. 658; Hopkins v. U.S. (1898) 171 U.S. 578; Anderson v. U.S. (1898) 171 U.S. 604; Green Bay, etc., Canal Co. v. Patten Paper Col, (1898) 172 U.S. 58; lake Shore, etc., R. Co. v. Ohio (1899) 173U.S. 285; Henderson Bridge Co. v. Henderson (1899) 173U.S. 592; Missouri, etc., R. Co. v. McCann (1899) 174 U.S. 580; Addyston Pipe, etc., Co. v. U.S. (1899) 175 U.S. 211;Louisiana v. Texas (1900) 176 U.S. 1; U.S. v. Bellingham Bay Boom Co. (1900) 176 U.S. 211; Lindsay, etc., Co. v. Mullen (1900) 176 U.S. 126; Water-Pierce Oil Co. v. Texas (1900) 177 U.S. 28 New York L. Ins.Co. v. Cravens (1900) 178 U.S. 389; Scranton v. Wheeler (1900) 179 U.S. 141; Williams v. Fears (1900) 179 U.S. 270; Wisconsin etc., R. Co. v. Jacobson (1900) 179 U.S. 287; Chesapeake, etc., R. Co. v. Kentucky (1900) 179 U.S. 388; Reymann Brewing Co. v. Brister (1900) 179 U.S. 445; W. W. Cargill Co. v. Minnesota (1900) 180 U.S. 452; Rasmussen v. Idaho (1901) 181 U.S. 198; Smith v. St. Louis, etc., R. Co. (1901) 181 U.S. 248; Capital City Dairy Co. v. Ohio (1902) 183 U.S. 238; Louisville,etc., R. Co. V Kentucky (1902) 183 U.S.503; Nutting v. Massachusetts (1902) 183 U.S. 553; McChord v. Louisville, etc., R. Co.(1902) 183 U.S. 483; Louisville, Etc., R. Co. v. Eubank (1902) 184 U.S. 27; Stockard v. Morgan (1902) 185 U.S. 27; Minneapolis, etc., R. Co. v. Minnesota (1902) 186 U.S. 257; Reid v. Colorado (1902) 187 U.S. 137; Western Union Tel. Co. v. New Hope (1903) 187 U.S. 419; Diamond Glue Co. v. U.S. Glue Co. (1903) 187 U.S. 611; Lousiville, etc., Ferry Co. v. Kentucky (1902) 188 U.S. 385; U.S. v. Lynah (1903) 188U.S. 445; Cummings v. Chicago (1903) 188 U.S. 410; The Roanoke (1903) 189 U.S. 185; Montgomery v. Portland (1903) 190 U.S. 89; Petterson v. Bark Eudora (1903) 190 U.S. 169; Allen v. Pullman's Palace Car Co., (1903) 191 U.S. 171; New York v. Knight (1904) 192 U.S. 21; Postal Tel.-Cable Co. v. Taylor (1904) 192 U.S. 64; Crossman v. Lurman (1904) 192 U.S. 189; St. ClairCounty v. Interstate Sand Co., etc., (1904) 192 U.S. 189; Buttfield v. Stranahan (1904) 192U.S. 470; American Steel, etc., Co. v. Speed (1904) 192 U.S. 500; Northern Securities Co. V. U.S. (1904) 193 U.S. 197.

[21] Sturges v. Crowninshield (1819) 4 Wheat. U.S. 122; M'Millan v. M'Neill (1819) 4 Wheat. U.S. 131; Ogden v. Saunders (1827) 12 Wheat. U.S. 213; Boyle v. Zacharie (1832) 6 Pet. U.S. 348; Gassies v. Ballon (1832) 6 Pet. U.S. 761; Beers v. Haughton (1835) 9 Pet. U.S. 329; Suydam v. Broadmax (1840) 14 Pet. U.S. 67; Cook v. Moffat (1847) 5 How. U.S. 295; Dred Scott v. Sandford (1856) 19 How. U.S. 393; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651; Hanover Nat. Bank v. Moyses(1902) 186 U.S. 181.

The power of Congress to pass bankrupt laws is not exclusive, but that power may be exercised by the States except when it is actually exercised by Congress and the State laws conflict with the Federal law. It is not the mere existence of the power to enact such laws, but its exercise by Congress, which is incompatible with the exercise of the same power by the State. Otherwise with the power to pass uniform Federal laws of naturalization. "The citizens of any one state being entitled by the Constitution to enjoy the rights of citizenship in every other state, that fact creates an interest in this particular in each other's acts, which does not exist with regard to their bankrupt laws; since State acts of naturalization would thus be extra-territorial in their operation, and have an influence on the most vital interest of other States. On these grounds, State laws of naturalization may be brought under one of the four heads or classes of powers precluded to the States, to wit, that of incompatibility." Ogden v. Saunders (1827) 12 Wheat U.S. 277. See also Peirce v. New Hampshire (1847) 5 How. U.S. 585; Dred Scott v. Sandford (18560 19 How. U.S. 405; Gilman v. Lockwood (1866) 4 Wall. U.S. 410; Brown v. Smart (1892) 145 U.S. 457.

[22] Briscoe v. Kentucky Com. Bank (1837) 11 Pet. U.S. 267; Fox v. Ohio (1847) 5 How. U.S. 410; U.S. v. Marigold (1850) 9 How. U.S. 560; Legal Tender Cases (1870) 12 Wall. U.S. 545; The Miantinomi (1855) 3 Wall. Jr. (C.C.) 46,17 Fed. Cases No. 9,521.

"The Constitution was intended to frame a government as distinguished from a league or compact, a government supreme in some particulars over States and people. It was designed to provide the same currency, having a uniform legal value in all the States. It was for this reason the power to coin money and regulate its value was conferred upon the Federal Government, while the same power as well as the power to emit bills of credit was withdrawn from the States. The States can no longer declare what shall be money, or regulate its value. Whatever power there is over the currency is vested in Congress." Legal Tender Cases (1870) 12 Wall. U.S. 545.

[23] Pennsylvania v. Wheeling, etc., Bridge Co., (1855) 18 How. U.S. 421; Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 94 U.S. 1; Ex p. Jackson (1877) 96 U.S. 727; In re Rapier, (1892) 143 U.S. 110; Horner v. U.S. (1892) 143 U. S. 207; In re Debs (1895) 158 U. S. 564; Illinois Cent. R. R. Co. v. Illinois (1896) 163 U. S. 142; Gladson v. Minnesota, (1897) 166 U. S. 427.

"Post-offices and post-roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are place with in the power of Congress, because, being national in their operation, they should be under the protecting care of the national government... As they were entrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State regulation." Pensacola Tel. Co. v. Western Union Tel. Co. (1877) 96 U.S. 1.

"The States before the Union was formed could establish post offices and post-roads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence on the people. When the power to establish post offices and post-roads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective." In re Rapier (1892) 143 U.S. 134.

[24] Grant v. Raymond, (1832) 6 Pet. U.S. 218; Wheaton v. Peters (1834) 8 Pet. U.S. 501; Trade-Mark Cases (1879) 100 U.S. 82; Burrow-Giles Lith. Co. v. Sarony (1884) 111 U.S. 53; U.S. v. Duell (1899) 172 U.S. 576:

"No State can limit, control, or even exercise the power. Woolen v. Banker (1877) 2 Flipp. U.S. 33,30 Fed. Cases No. 18,030.

[25] Chisholm v. Georgia (1793) 2 Dall. U.S. 419; Stuart v. Laird (1803) 1 Cranch. U.S. 299; U.S. v. Peters (1809) 5 Cranch U.S. 115; Cohen v. Virginia (1821) 6 Wheat. U.S. 264; Martin v. Hunter (1816) 1 Wheat. U.S. 304; Osborn v. U.S. Bank (1824) 9 Wheat. U.S. 738; Benner v. Porter (1850) 9 How. U.S. 235; U.S. v. Ritchie (1854) 17 How. U.S. 525; Murray v. HobokenLand, etc., Co. (1855) 18 How. U.S. 272; Ex p. Vallandigham (1863) 1 Wall. U.S. 243; Pennoyer v. Neff (1877) 95 U.S. 714; U.S. v. Union Pac. R. Co. (1878) 98 U.S. 560; Mitchell v. Clark (1884) 110 U.S. 633; Ames v. Kansas (1884) 111 U.S. 449; In re Loney (1890) 134 U.S. 373; In re Green (1890) 134 U.S. 377; McAllister v. U.S. (1891) 141 U.S. 174; Robertson v. Baldwin (1897) 165 U.S. 275; Hanover Nat.Bank v. Moyses (1902) 186 U.S. 181.

It is manifest that the Constitution requires a supreme court to be established. But Congress is also bound "to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one ore more inferior courts; they might parcel out the jurisdiciton among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all time, vested either in an original or appelate form, in some courts created under its authority." Per Story, J., in Martin v. Hunter (1816) 1 Wheat. U.S. 331.

[26] U.S. v. Palmer (1818) 3 Wheat U.S. 610; U.S. v. Wiltberger(1820) 5 Wheat U.S. 76; U.S. v. Smith (1820) 5Wheat U.S. 153; U.S. v. Furlong (1820) 5 Wheat. U.S. 184; U.S. v. Arjona (1887) 120 U.S. 479.

The power of the United States to punish an act constituting an offense against the law of nations does not prevent a State from providing for the punishment of the same thing, where the act is an offense against the authority of the State as well as that of the United States. U.S. v. Arjona (1887) 120 U.S. 479.

[27] Brown v. U.S. (1814) 8 Cranch U.S. 110; American Ins. Co. v. 356 Bales Cotton (1828) 1 Pet. U.S. 511; Mrs. Alexander's Cotton (1864) 2 Wall U.S. 404; Miller v. U.S. (1870) 11 Wall. U.S. 268; Tyler v. Defrees (1870) 11 Wall. U.S. 331; Stewart v. Kahn (1870) 11 Wall U.S. 493; hamiltonv. Dillin (1874) 21 Wall U.S. 73; Lamar v. Browne (1875) 92 U.S. 187; Mayfield v. Richards (1885) 115 U.S. 137; Chinese Exclusion Case (1889) 130 U.S. 581; Church ofJesus Christ v. U.S. (1890) 136 U.S. 1; Nishimura Ekiu v. U.S. 142 U.S. 651.

"The Federal power has a right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any State of the Union. If this right is dependent in any sense, however limited, upon the pleasure of the State, the government itself may be overthrown by an obstruction to its exercise." Crandall v. Nevada (1807) 6 Wall. U.S. 44.

[28] Crandall v. Nevada (1867) 6 Wall. U.S. 35; Nishimura Ekiu v. U.S. (1892) 142 U.S. 651.

"The legislation of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on this point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even uncautious enough to be willing to repose in it so improper a confidence." Hamilton, in The Federalist, No. XXVI.

"Among the powers assigned to the national government, is the power to raise and support armies and the power `to provide for the government and regulation of the land and naval forces.' The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive.... No interference with the execution of this power of the national government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency of, if it did not utterly destroy, this branch of the public service." Tarble's Case (1871) 13 Wall. U.S. 408.

[29] U.S. v. Bevans (1818) 3 Wheat. U.S. 336; Dynes v. Hoover (1857) 20 How. U.S. 85.

"The authority to build and equip vessels of war is, doubtless, implied in the power to declare war, but the same authority is more directly conferred by the power to `provide and maintain a navy.'" U.S. v. Burlington, etc., Ferry Co. (1884) 1 Abb. U.S. 28, 27 Fed. Cases No. 16,151.

[30] Houston v. Moore (1820) 5 Wheat. U.S. 1; Martin v. Mott (1827) 12 Wheat. U.S. 19; Luther v. Borden (1849) 7 How. U.S. 1; Crandall v. Nevada (1867) 6 Wall U.S. 35; Texas v. White (1868) 7 Wall U.S. 700; Presser v. Illinois (1886) 116 U.S. 252.

"So long as the militia are acting under the military jurisdiction of the State to which they belong, the powers of legislation over them are concurrent in the general and State government. Congress has power to provide for organizing, arming, and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as State militia, the power of the State governments to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the general government, operating upon the same subject." Houston v. Moore (1820) 5 Wheat. U.S. 16.

[31] Hepburn v. Ellzey (1804) 2 Cranch U.S. 445; Loughborough v. Blake (1820) 5 Wheat. U.S. 317; Cohen v. Virginia (1821) 6 Wheat. U.S. 264; American Ins. Co. v. 356 Bales of Cotton(1828) 1 Pet. U.S. 511; Kendall v. U.S. (1838) 12 Pet. U.S. 524; U.S. v. Dewitt (1869) 9 Wall. U.S. 41; Dunphy v. Kleinsmith (1870) 11 Wall. U.S. 610; Willard v. Presbury (1871) 14 Wall U.S. 676; Kohl v. U.S. (1875) 91 U.S. 367; Phillips v. Payne (1875) 92 U.S. 130; U.S. v. Fox (1876) 94 U.S. 315; Ft. Leavenworth R. Co. v. Lowe (1885) 114 U.S. 525; Gibbons v. District of Columbia (1886) 116 U.S. 404; Van Brocklin v. Tennessee (1886) 117 U.S. 151; Stoutenburgh v. Hennick (1889) 129U.S. 141; Geofroy v. Riggs(1890) 133 U.S. 258; Benson v. U.S. (1892) 146 U.S. 325; Shoemaker v. U.S. (1893) 147 U.S. 282; Chappell v. U.S. (1896) 160 U.S. 499; Ohio v. Thomas (1899) 173 U.S. 276; wightv. Davidson (1901) 181 U.S. 371.

"When the title is acquired by purchase by consent of the legislatures of the States, the Federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that Congress shall have `like authority' over such places as it has over the district which is the seat of government; that is, the power of `exclusive legislation in all cases whatsoever.' Broader or clearer language could not be used to exclude all other authority than that of Congress." Ft. Leavenworth R. Co. v. Lowe (1885) 114 U.S. 532.

[32] U.S. v. Hamilton, (1795) 3 Dall. U.S. 17; Hepburn v. Eltzey, (1804) 2 Cranch U.S. 446; Ex p. Bollman, (1807) 4 Cranch U.S. 76; Ex p. Kearney, (1822) 7 Wheat. U.S. 38; Ex p. Watkins, (1830) 3 Pet. U.S. 193; Ex p. Milburn, (1636) 9 Pet. U.S. 704; Holmes v. Jennison, (1840) 14 Pet. U.S. 640; Ex p. Dorr (1845) 3 How. U.S. 103; Luther v. Borden, (1849) 7 How. U.S. 1; Ableman v. Booth, (1858) 21 How. U.S. 506; Ex p. Vallandigham, (1863) 1 Wall. U.S. 243; Ex p. Milligan, (1868) 4 Wall. U.S. 2; Ex p. McCardle, (1868) 7 Wall. U.S. 508; Ex p. Yerger, (1868) 8 Wall. U.S. 85; Tarble's Case, (1871) 13 Wall. U.S. 307; Ex p. Lange, (1873) 18 Wall. U.S. 163; Ex p. Parks, (1876) 93 U.S. 18; Ex p. Karstendick, (1876) 93 U. S. 396; Ex p. Virginia, (1879) 100 U.S. 339; In re Neagle (1890) 135 U. S. 1; in re Frederich (1893) 149 U.S. 70.

"The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress." Prigg v. Pennsylvania (1842) 16 Pet. U.S. 619.

[33] Fletcher v. Peck (1810) 6 Cranch U.S. 87; Ogden v. Saunders (1827) 12 Wheat. U.S. 213; Watson v. Mercer (1834) 9 Pet. U.S. 88; Carpenter v. Pennsylvania (1854) 17 How. U.S. 456; Locke v. New Orleans (1866) 4 Wall U.S. 172; Cummings v. Missouri (1866) 4 Wall. U.S. 277; Ex p. Garland (1866) 4 Wall. (C.S.) 333; Drehman v. Tittle (1869) 8 Wall. U.S. 595; Klinger v. Missouri (1871) 13 Wall. U.S. 257; Pierce v. Carskadon (1872) 16 Wall. U.S. 234; Hopt v. Utah (1884) 110 U.S. 574; Cook v. U.S. (1891) 138 U.S. 157; Neely v. Henkel (1901) 180 U.S. 109; Southwestern coal Co. v. McBride (1902) 185 U.S. 499.

[34] License Tax Cases (1866) 5 Wall. U.S. 462; Springer v. U.S. (1881) 102 U.S. 586; Nicol v. Ames (1899) 173 U.S. 509.

"If Congress sees fit to impose a capitation, or other direct tax, it must be laid in proportion to the census; if Congress determines to impose duties, imposts, and excises, they must be uniform throughout the United States. These are not strictly limitations of power. They are rules prescribing the mode in which it shall be exercised." Veazie Bank v. Fenno (1869) 8 Wall. U.S. 541.

[35] Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Pace v. Burgess (1875) 92 U.S. 372; Turpin v. Burgess (1886) 117 U.S. 504; Pittsburg, Etc., Coal Co. v. Bates (1895) 156 U.S. 577; Nicol v. Ames (1899) 173 U.S. 509; Williams v. Fears (1900) 179 U.S. 270; De Lima v. Bidwell (1901) 182 U.S. 151; Fourteen Diamond Rings v. U.S. (1901) 183 U.S. 176; Cornell v. Coyne (1904) 192 U.S. 418.

"The purpose of the restriction is that exportation, all exportation, shall be free from national burden." Fairbank v. U.S. (1901) 181 U.S. 292.

[36] Cooley v. Board of Wardens (1851) 12 How. U.S. 299; Pennsylvania v. Wheeling, Etc., Bridge Co. (1855) 18 How. U.S. 421; Munn v. Illinois (1876) 94 U.S. 113; Northwestern Union Packet Co. v. St. Louis (1879) 100 U.S. 423; Cincinnati, etc., Packet Co. v. Catlettsburg (1881) 105 U.S. 559; Spraigue v. Thompson (1886) 118 U.S. 90; Morgan's Steamship co. v. Louisiana Board of Health (1886) 118 U.S. 455; Johnson v. Chicago, etc., Elevator Co. (1886) 119 U.S. 388.

This clause "is a limitation upon the power of Congress to regulate commerce, for the purpose of producing entire commercial equality within the United States, and also a prohibition upon the State to destroy such equality by any legislation prescribing a condition upon which vessels bound from one State shall enter the ports of another State." Per Mr. Justice Wayne, in Norris v. Boston (1849) 7 How. U.S. 414. See also Pennsylvania v. Wheeling, etc., Bridge Co. (1855) 18 How. U.S. 433; Williams v. The Lizzie Henderson (1880) 20 Fed. Cases No. 17, 726a.

"This provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs." Munn v. Illinois (1876) 94 U.S. 135.

[37] "A State is forbidden to enter into any treaty, alliance, or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to Congress." Per Mr. Chief Justice Marshall, in Barron v. Baltimore (1833) 7 Pet. U.S. 249.

[38] Decisions relating to making anything but gold and silver coin a tender in payment of debts. Craig v. Missourt (1830) 4 Pet. U.S. 410; Byrne v. Missouri (1834) 8 Pet. U.S. 40; Briscoe v. Kentucky Com. Bank (1837) 11 Pet. U.S. 257; Darrington v. Branch Bank (1851) 13 How. U.S. 12.

Decisions relating to ex post facto law. Calder v. Bull (1798) 3 Dall. U.S. 386; Watson v. Mercer (1834) 8 Pet. U.S. 88; Carpenter v. Pennsylvania, (1854) 17 How. U.S. 466; Locke v. New Orleans, (1866) 4 Wall. U.S. 172; Ex p. Garland (1866) 4 Wall U.S. 333; Gut v. Minnesota, (1869) 9 Wall. U.S. 35; Kring v. Missouri, (1882) 107 U.S. 221; Jaehne v. New York