STUDIES IN CONSTITUTIONAL LAW
A TREATISE ON AMERICAN CITIZENSHIP
by
JOHN S. WISE
EDWARD THOMPSON COMPANY
NORTHPORT, LONG ISLAND, N.Y.
1906
INTRODUCTORY
It is believed that in it will be found every decision of
the Supreme Court upon the questions discussed.
No effort has been made to pad the volume with the arguments
pro and con upon points decided, or to cite opinions on the same
point, distinguishing one case from another.
The principles decided have been given their appropriate
places. The discussions concerning why one case decided did not
fall within the principle decided by another case, have been
purposely omitted as tending to make a volume of case law as
distinguished from one of legal principles. Such discussions
tend to befog the legal principle decided rather than make it
plain, and to weary even the professional man. They must be
encountered when the authorities cited are examined.
The whole object of the author has been attained if he has
succeeded in putting the origin, nature, and obligations of the
citizen in form sufficiently attractive to enlist a more
widespread understanding among educated Americans of their rights
and obligations as American citizens; for the present ignorance
of our people and the confusion in their apprehension of the
subject would be something incredible in older countries.
In the hope that the need of the book is real, and not
imaginary, that it may be accepted in a spirit of charity, and
that some one better equipped may soon arise to improve upon it,
it is respectfully submitted to the profession and to the
public.
JOHN S. WISE
New York
TABLE OF CONTENTS.
NOTE: Page numbers listed are those from the original print
edition and do not correspond to the electronic form. They
are included for reference purposes only should one care to
check them against the original.
CHAPTER 1. OF CITIZENSHIP GENERALLY.
PAGE
Definition of Citizenship.......................................... 2
American Citizenship-Its Origin and Kinds.......................... 4
State Citizenship.................................................. 5
Citizenship of the Northwest Territory............................ 13
Citizenship of the United States.................................. 17
Qualified Citizenship in Territorial and Acquired Possessions..... 34
Hawaii - Its Goverment............................................ 37
Puerto Rico ...................................................... 39
Guam.............................................................. 42
Philippine Islands................................................ 42
Citizenship in Our Insular Possessions............................ 46
CHAPTER II. HOW AMERICAN CITIZENSHIP MAY BE ACQUIRED.
In the Nation:
By Birth...................................................... 51
By Naturalization............................................. 53
Length of Residence Necessary................................. 55
In a State:
By Birth...................................................... 61
By State Enactments........................................... 61
By Federal Enactments......................................... 62
Outside the Nation or States...................................... 62
Of the Persons who May he Citizens................................ 63
National and State Citizenship Not Necessarily Coexistent......... 66
CHAPTER III. OF THE OBLIGATIONS AND DUTIES OF THE CITIZENS
TO THE NATION AND THE STATE.
Allegiance........................................................ 68
Different Kinds of Allegiance..................................... 69
Formal Compact Not Necessary to Create Allegiance................. 69
Of Dual Allegiance................................................ 70
Of Patriolism..................................................... 73
Of Treason........................................................ 74
Of Dual Treason................................................... 80
Elements of the Offense .......................................... 83
CHAPTER IV. OF THE RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE CITIZEN.
In General........................................................ 92
Source of American Plan of Government and Rights of Citizenship... 93
Rights of Citizens of the States.................................. 98
State Bills of Rights............................................ 100
National Declaration of Independence............................. 104
The Federal Constitution......................................... 106
Rights, Privileges, and Immunities Granted or Guaranteed to
the Citizen of the United States ............................ 111
Taxation of the Citizen.......................................... 152
Of the Immunity of the Citizen from Arrest, While Attending
Congress, and in Going to and Returning from the Same,
and from Being Questioned in any other Place for any
Speech or Debate............................................ 153
Of the Immunity of the Citizen from State Interference with
the Regulation of Commerce with Foreign Nations and
among the Several States and with the Indian Tribes.......... 154
Right of the Citizen to the Writ of Habeas Corpus................ 159
Of the Immunity of the Citizen Against Bills of Attainder and
Ex Post Facto Laws........................................... 163
Of the Immunity of the Citizen Against STATE Lawn Impairing
the Obligation of Contracts.................................. 165
Of the Right of the Citizens of Each State to All the Privileges
and Immunities of Citizens in the Several States............. 167
Of the Federal Guarantee of Extradition of Fugitives from
Justice................................................. 174
The Guarantee to the Citizen that Persons Held to Service or
Labor in one State and Escaping to another Shall Not Be
Discharged Thereby from Such Service or Labor but Shall
Be Delivered up...............................................178
Of the Federal Guarantee to the Citizen that His State Shall
have a Republican Form of Government......................... 178
The Immunity of the Citizen Against any Law of Congress Respecting
an Establishment of Religion or Prohibiting the
free Exercise Thereof........................................ 185
Of the Right of the Citizen to Free Speech....................... 188
Of the Freedom of the Press...................................... 189
Rights Guaranteed by Amendments II to VIII, XI, and XII...........190
CHAPTER V. PRIVILEGES AND IMMUNITIES UNDER THE WAR AMENDMENTS.
The Thirteenth Amendment......................................... 192
The Fourteenth Amendment......................................... 194
Of the Regulation of Ordinary Business Pursuits by the states.... 211
The Right to Regulate Woman's Rights............................. 214
The Right to Regulate the Practice of Professions................ 215
Of Suffrage...................................................... 215
Reduction of the Representation of the States In Congress........ 223
The Right of States to Regulate State Procedure Especially
Concerning the summoning and Constitution of Juries.............. 235
Of the Power of the State to Control and Regulate the Business
of Corporations In the State..................................... 241
Its Right to Control the Conduct of Individuals 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 State Elections............. 249
Due Process of Law............................................... 249
Of the Equal Protection of the Law............................... 254
The Fifteenth Amendment.......................................... 257
CHAPTER VI. OF THE PROTECTION OF CITIZENS ABROAD................ 261
CHAPTER VII. OF EXPATRIATION, ALIENS AND WHO MAY NOT BECOME CITIZENS
Expatriation..................................................... 263
Aliens............................................................267
Immigration of Chinese............................................275
CHAPTER 1:
OF CITIZENSHIP GENERALLY
It is not proposed, in this work, to cast back in the
history of government, to the ethnic origin of the terms citizen
and citizenship, or to institute of any comparisons between the
grade or quality citizenship enjoyed by those who are subject to
the jurisdiction of the United States, or the States composing
it, and that possessed by citizens of other governments, ancient
or modern. Such researches and comparisons, however interesting
they might prove, would be almost endless, and, in a book of this
character, would tend to divert the student from a study of the
origin and nature of American citizenship, national and state,
without shedding any practical light upon the real question to
which the volume is addressed.
We shall therefore proceed to ascertain the origin and
define the nature and quality of citizenship enjoyed by
individuals who are subject to the jurisdiction of the United
States, either as citizens of the United States, or as citizens
of some particular component State, Territory, or possession of
the United States.
CITIZENSHIP
Definition of Citizenship
The latest approved definition of the term citizenship is
that found in the Standard Dictionary (1898), which describes it
as "the status of a citizen with its rights and privileges." (1)
The status of a citizen implies the existence of:
[1] A political body established to promote the general
welfare and collective, as well as individual, rights
of those composing it.
[2] Individuals who have established, or submitted
themselves to the dominion of, that political body. (2)
[3] Such benefit from, or participation in, the
administration of that political body by the
individuals composing it, that they may be designated
as citizens, and not as mere subjects of a despot or an
absolute monarch under whom they have no voice in
administration.
The same authority above quoted defines a citizen as "a
member of a nation or sovereign state, especially a republic; one
who owes allegiance to a government and is entitled to protection
from it." That definition is broad enough to make every subject a
citizen of the government to which be owes allegiance, and from
which he receives protection; but the term citizen, as it is
commonly understood, implies membership of a political body in
which the individual enjoys popular liberty to a greater or less
degree. (3) It does not necessarily follow from this definition,
that the grade or quality or privileges of citizenship must be
identical in all citizens, even in republican governments. In
the Roman government, a citizen might or might not be invested
with all the civil privileges of the government. (4) In Many
cases arising under our system, it has been repeatedly decided
that the bestowal Of political Privileges upon an individual is
not essential to Constitute him a citizen(5)
Ordinarily the term citizen, applied to the individual unit
in any government, implies that he enjoys a greater degree of
participation in the affairs of his government than would be
implied if he were referred to as a subject.
In a constitutional monarchy like Great Britain, the
individual units composing it are referred to indifferently as
citizens or as subjects. In an absolute monarchy like Russia,
the idea of subjection to the ruler overshadows that of
citizenship, and the individual subject is seldom referred to as
a citizen, except in diplomatic intercourse between his
government and other nations.
In a free democracy like the United States, where there is
no sovereign and no subject, the units composing the political
body are properly designated as citizens. This subject is
discussed in a most interesting way by the Supreme Court of the
United States in the case of Minor v. Happersett. (6)
American Citizenship
Its Origin and Kinds
In the seventeenth and eighteenth centuries, the British
government planted or acquired thirteen distinct colonies on the
continent of North America, and governed them, prior to July 4,
1776, under the system of English laws as applied by the colonial
policy of Great Britain, with George III as a constitutional
monarch. Each of these colonies had been founded or acquired
separately and at a different time, and each was governed under
its own distinct charter or commission. The inhabitants of all
the colonies were British citizens or subjects. The several
local governments, under which the colonies respectively
conducted their domestic affairs, were not independent political
societies, of which they might be said to be citizens. While
they were inhabitants of their respective colonies, they were
citizens of Great Britain, and their local governments were mere
dependencies, acting under concessions from the parent
government. A comparison of the several colonial
administrations of these colonies will make plain at once how
different were their several domestic administrations. The
colonial organization of Massachusetts was altogether different
from that of Maryland; that of Virginia altogether different from
that of Rhode Island. The charters of the colonial organizations
of South Carolina and New York had little resemblance to each
other, and so on with all the colonies.
The mother country, while exacting paramount allegiance to
herself from all her colonies, had, in her dealings with them,
permitted each to indulge its idiosyncrasies in matters of local
concern, with so little regard to uniformity of administration,
that the thirteen colonies grew up with little of similitude in
their charter rights, and little in common in their local forms
of government. What they had in common was their British
citizenship, and their common grievances against the parent
government, which, as they conceived, had deprived them of the
right of local self-government. This British citizenship, in
common, was the germ of their united action, and afterwards
became the foundation of a new citizenship, known as American
citizenship, on which all citizenship, whether of the United
States, or of the States and Territories and possessions subject
to its jurisdiction, now rests. And this brings us to -
State Citizenship
The thirteen independent American colonies by a joint
Declaration of Independence dated July 4, 1776, asserted their
common purpose to maintain that they were free, independent, and
sovereign States. That declaration, if it could be successfully
maintained, carried with it as a result, that their respective
inhabitants were no longer citizens or subjects of Great Britain,
but were thenceforth citizens of the States in which they
respectively resided. England resisted this contention until
September 3, 1783, at which time she entered into a definitive
treaty of peace with the representatives of these colonies,
recognizing the colonies, name by name, as free, independent, and
sovereign States.
After thus gaining their independence, some of the States
proceeded to adopt new constitutions forthwith, conforming their
government to their changed conditions; while others found their
royal charters so well adapted to a free government, that they
continued to live under them for many years. The most remarkable
instance of this is the State of Rhode Island, which continued to
govern itself under the forms of its royal charter until the year
1843. Even then, the attempt to adopt a new constitution
resulted in a domestic conflict, familiarly known as Dorr's
Rebellion, for a full account of which see the opinion of the
Supreme Court in the case of Luther v. Borden. (7)
While the revolutionary struggle lasted, the colonies,
calling themselves States, cooperated with each other through the
device of a league under the name of the United States,
represented by a Continental Congress. The objects for which
this league and congress were created, were to assert and
prosecute measures in common for attaining the independence of
the States. Through this league, they also bound themselves by
mutual obligations, not to negotiate for peace, or for any other
purpose, with the parent country, save through the appointees of
the Continental Congress; and the peace which was finally
negotiated was brought about by a treaty entered into on behalf
of the United Colonies, by commissioners appointed by the
Continental Congress.
But the independence demanded by the colonies and the
citizenship recognized by Great Britain were the independence and
citizenship of thirteen sovereign and independent States, and not
of any one national political body. This could not have been
otherwise, for the words "United States," while they were
employed in the Declaration of Independence and in the Articles
of Confederation under which the revolutionary struggle was
conducted, were manifestly used in a plural sense, as expressing
the States united, and the compact entered into between the
colonies shows, upon its face, that it was not entered into to
create a new political body reaching or operating upon the unit
of the citizen. All the powers possessed by the confederated
government were derived from and to be exercised upon and through
the legislatures which created it, representing States and not
individuals. Any effort of the federal authority to command or
enforce allegiance to it directly from the citizens of those
States, save in a few particulars provided for in the Articles of
Confederation, would have aroused indignant protests from the
States, and would, perhaps, have resulted in a dissolution of the
confederacy.
The date insisted upon by the thirteen States, as that at
which their inhabitants ceased to be colonial subjects of Great
Britain, and became citizens of their respective States, was July
4, 1776. The English authorities, on the other hand, fixed
September 3, 1783, the date of the definitive treaty
acknowledging the independence of the States, as the true date
from which to reckon. (8) This question has long since ceased to
be of any importance as bearing upon any property rights, and in
so far as it relates to whether State citizenship antedated
national citizenship, it makes no difference which date is
assumed to be correct; for the relations of the States to the
federal compact were substantially the same in 1776 as in 1783.
The Declaration of Independence affirmed that the United
Colonies ought to be free and independent States. The Articles
of Confederation were agreed upon by delegates November 15, 1777.
After announcing a name for the confederacy between the States,
it proceeded to declare that each State retained "its
sovereignty, freedom and independence, and every power,
jurisdiction and right, which is not by this confederation
expressly delegated to the United States in Congress assembled."
The Congress was composed of delegates chosen annually, as State
legislatures might direct, and the delegates were maintained by
the States. In determining questions in the Congress, each State
had one vote. The duty of raising their respective quotas of
troops was imposed upon the States, and the privilege of naming
all officers of or under the rank of colonel. The States
undertook to supply all funds to the common treasury, and the
taxes for defraying the expenses of the confederacy were to be
laid and levied by the state legislature, each State paying her
proportion. There was no president or common ruler over the
confederacy of States, and the limited federal authority
conferred upon Congress by the Articles of Confederation was
intrusted to the control and direction of a committee of
Congress.
Such was the confederacy existing between the States when
Great Britain acknowledged them as independent sovereign States.
It requires little argument to demonstrate that a mere agency
such as this, operating under a limited authorization and without
any power to levy taxes or draft troops, was not a political body
entitled to claim that any individual was its citizen, and while
State citizenship necessarily followed at once to the inhabitants
of the colonies, respectively, upon the acknowledgment of their
independence, no citizenship of the United States was recognized
or even existed.
The writings of Mr. Hamilton and Mr. Madison, preserved in
The Federalist, written long after the acknowledgment of the
independence of the colonies, are full of complaints against the
Articles of Confederation, on this score. They are appeals for a
change from this condition, and urge upon the people to remedy
these defects by adopting the proposed constitution and creating
the new citizenship. The Constitution of the United States was
proposed September 17, 1787, and the operations of the government
began under it March 4, 1789. The Federalist papers were written
in that interval, urging the adoption of the Constitution by the
States. In the fifteenth paper of The Federalist (9), Mr.
Hamilton discusses "the insufficiency of the present
confederation to the preservation of the Union," as follows:
"The great and radical vice in the construction of the
existing confederation is the principle of legislation for
states or governments, in their corporate or collective
capacities, and as contradistinguished from the individuals
of which they consist .... Except as to the rule of
appointment, the United States has an indefinite discretion
to make requisitions for men and money; but they have no
authority to raise either, by regulations extending to the
individual citizens of America. The consequence of this is,
that although in theory their resolutions concerning those
objects are laws, constitutionally binding on the members of
the Union, yet in practice they are mere recommendations
which the States observe or disregard at their option. If
we still adhere to the design of a national government ...
we must extend the authority of the Union to the Persons of
the citizens the only proper objects of government."
Again, in the twenty-third paper (10) the same illustrious
authority declared: "If we are in earnest about giving the Union
energy and duration, we must abandon the vain project of
legislating upon the States in their collective capacities; we
must extend the laws of the federal government to the individual
citizens of America."
The above citations, which are but two of many, are
sufficient to demonstrate that under the peculiar organization of
the United States, as it was originally formed, the powers or
authority of the general government did not extend to
individuals, 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
ratifications until after the operations of the government had
begun.
In the United States custom house at New York, one may see a
list of the vessels which entered the port of New York during the
first year after the Constitution of the United States went into
effect, and in that list, entered as vessels arriving from
"foreign ports," are several ships from Rhode Island.
Thus we see that, in eleven of the original States, State
citizenship antedated Federal citizenship over five years, and in
two other States nearly seven years.
Speaking of the interim between the acknowledgment of the
independence of the colonies and the adoption of the
Constitution, John Fiske, in his History of the United States,
says:
"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." (11)
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."
If these requirements had been literally conformed to, there
could have been no election for representatives to Congress for
seven years after the adoption of the Constitution, and no one
would have been eligible as a senator for nine years thereafter.
The language employed by the convention was less careful than
that which had been used by Congress in July of the same year, in
framing the ordinance for the government of the Northwest
Territory. Congress had made the qualification rest upon
citizenship of "one of the United States," and this was doubtless
the intent of the convention which framed the Constitution, for
it cannot have meant anything else.
The silence of the Constitution and its failure to define
the meaning of the word citizen, either by way of inclusion or
exclusion, has been the subject of much judicial comment. (16)
Perhaps the best expression concerning it is that of the Supreme
Court of the United States, when it declares: "In this respect,
as in other respects, it must be interpreted in the light of the
common law, the principles and history of which were familiarly
known to the framers of the Constitution. (17)
In the famous case of Dred Scott v. Sandford (18), it was
said that the words "people of the United States " and "citizens"
are synonymous terms; that they "describe the political body
which, according to our republican institutions, forms the
sovereignty which holds the power and conducts the government
through its representatives."
Sundry opinions of the attorney-generals of the United
States are to the same effect. In one of these, rendered in
1862, it is said: "The Constitution of the United States does not
declare who are and who are not citizens, nor does it attempt to
describe the constituent elements of citizenship; it leaves that
quality where it found it, resting on the fact of home birth and
upon the laws of the several States." (19)
It was not difficult to ascertain, on the principles above
announced, who were citizens of the United States under the
original Constitution. The citizens of Vermont and Kentucky,
when those States were admitted, assumed their relations to the
Union as naturally as did those of any of the original States.
So, also, the citizens of the region now constituting five great
States erected in the Northwest Territory became citizens of the
United States the instant the Constitution was adopted. (20)
By the Constitution, power was given Congress (Article IV,
Section 3, Clause 2) to dispose of and make all needful rules and
regulations respecting the territory or other property belonging
to the United States. Under this power, the process of governing
the Territories and organizing them into States was simplified.
(21)
By easy transition the territory acquired from France known
as the Louisiana Territory, and the Florida cession from Spain,
and the territory acquired from Mexico by conquest, were first
governed territorially. Under these territorial governments the
inhabitants made their first attornment as citizens of the United
States to the Federal authority, and when the States created from
this territory were organized and admitted, they assumed their
obligations of dual citizenship to State and Nation, of a nature
and a quality identical with that of citizens of the old States.
Besides these citizens, who became such in a body, a vast
number of citizens of the United States were created under the
powers of naturalization conferred upon Congress by the
Constitution.
Among the first powers conferred upon Congress by Article 1,
Section 8, Clause 4, was "to establish a uniform rule of
naturalization." (22)
Laws were passed, and the naturalized citizens admitted
under these laws distributed themselves among the several State
or Territorial communities of which they became members. But it
did not follow as a necessary, consequence that a naturalized
citizen of the United States became also a citizen of any State
or Territory.
The original Constitution remained unchanged concerning
citizenship, from 1789 until July 28, 1868, when the Fourteenth
Amendment to the Constitution was adopted. Before entering into
a discussion of the effect upon citizenship, and the manner of
enforcement, of that amendment, a brief historical statement is
necessary.
Even prior to the adoption of the Constitution, sectional
jealousies existed between the States. The basis of
representation in the national Congress was a fruitful source of
controversy between them. The population of the northern
colonies was almost exclusively white and free, whereas that of
the southern colonies consisted, to a large extent, of black
slaves. The extent to which this black population was to be
considered in arranging a basis of representation gave rise to
many of the controversies between the sections, at the outset.
The basis of representation in Congress fixed by the
Constitution, Article 1, Section 2, Clause 3, apportioned
representatives among the several States according to their
respective numbers, which were to be determined by adding to the
whole number of free persons, three-fifths of all other persons,
exclusive of Indians not taxed.
The Constitution conferred power on Congress to dispose of
and make all needful rules and regulations respecting the
territory, or other property, belonging to the United States.
(23) It likewise conferred upon Congress the power to admit new
States into the Union. (24)
The Constitution contained a provision that no person held
to service or labor in one State, under the laws thereof,
escaping into another State, should in consequence of any law or
regulation therein be discharged from such service or labor, but
that he should be delivered up on claim of such party to whom
such service or labor might be due. (25)
The relative strength of the sections North and, South was
altogether different at that time from what it is at present;
even the white population of the southern States, in which
slavery existed, as compared with that of the northern States,
where slavery did not exist was proportionately larger than it is
at present, and on the basis set forth above the northern States
were jealous of the preponderance of representation given to the
southern States. It was argued by those opposed to the
Constitution in the North, that it placed the northern States,
especially the small ones, at the mercy of the southern States,
in the Union. It was this argument, no doubt, that made Rhode
Island reluctant to become a member of the Union. On the other
hand, the southern States realized that the population of the
North was growing much more rapidly than that of the South, and
that it was spreading into the Territories and would demand that
those Territories be formed into new States and admitted into the
Union as free States. It was argued by those opposed to the
Union in the South, that such a result was inevitable; that in a
short time the slave-holding 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:
ARTICLE XIII.
"SECTION 1. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction."
December 18, 1865, the secretary of state proclaimed that
twenty-seven of the thirty-six State's had, by their
legislatures, ratified this amendment. This included
ratification by the legislatures of the States of Virginia,
Louisiana, Tennessee, Arkansas, South Carolina, Alabama, North
Carolina, and Georgia, all of which States had attempted to
secede, and were completely within the control of the Federal
military power at the date of their alleged ratification of this
amendment. It has since been claimed that they were under duress
at the time of their alleged ratifications, but the Supreme Court
of the United States, in the case of White v. Hart,(27)
considered and disposed of this plea of duress, as it related to
the State of Georgia, in a way so effectual that it need not be
further referred to. (28)
The negro having thus been emancipated by the power of war,
and his status changed from that of a slave to a freeman, it was
proposed, for reasons satisfactory to the dominant party, to
alter his civil and political status as it had been defined by
the case of Dred Scott v. Sandford. Accordingly, the Congress of
the United States, on January 16, 1866, proposed to the
legislatures of the several States the following amendment to the
Constitution:
ARTICLE XIV.
"Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws." (29)
The amendment contains three other sections, but none of
them refers 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, land subject to the
jurisdiction thereof,' would appear to have been to exclude
by the fewest and fittest words (besides children of members
of the Indian tribes, standing in a peculiar relation to the
national government, unknown to the common law), the two
classes of cases - children born of alien enemies in
hostile occupation, and children of diplomatic
representatives of a foreign state - both of which, as has
already been shown, by the law of England, and by our own
law, from the time of the first settlement of the English
colonies in America, had been recognized exceptions to the
fundamental rule of citizenship by birth within the
country."
Qualified Citizenship in Territorial and Acquired Possessions
Recent events, the result of which was not foreseen, have
created an entirely new and unprecedented citizenship in the
United States. It is the limited and rudimentary citizenship of
the inhabitants of our newly acquired territory in Alaska, Puerto
Rico, the Philippine and the Ladrone Islands, and in Hawaii. The
status of those citizens is the result of changed conditions in
the territory which they inhabit. The oldest of these
possessions is Alaska, purchased by the United States from
Russia, and governed as a Territory. The latest expression of
the Supreme Court of the United States, defining the status of
Alaskan citizenship, is in an opinion delivered April 10, 1905.
(33)
In April, 1898, the United States declared war against the
Kingdom of Spain, in a quarrel between the two nations concerning
the government by Spain of the island of Cuba, a Spanish
possession. In May, 1898, the naval forces of the United States
invaded the Philippine Islands, another Spanish possession, soon
followed by the land forces of the United States. In July, 1898,
the military forces of the United States invaded the island of
Puerto Rico, another Spanish possession. By a protocol dated
August 12, 1898 (34), hostilities were suspended between the
United States and Spain, upon the understanding that Spain would
cede to the United States: the island of Puerto Rico, and other
islands under Spanish sovereignty in the West Indies, also an
island in the Ladrones to be selected by the United States.
By a treaty dated December 10, 1898 (35), Spain actually
ceded to the United States the island of Puerto Rico, and the
other islands under Spanish sovereignty in the West Indies, and
the island of Guam in the Ladrone group, and by the same treaty
she ceded to the United States the archipelago known as the
Philippine Islands, by boundaries. Provision was made in the
treaty for the protection of Spanish subjects, natives of the
peninsula residing in the ceded territory, for the protection of
the religion of the inhabitants of the territories ceded, and for
the protection of certain civil rights. By a treaty dated
November 7, 1900 (36), Spain ceded all islands belonging to the
Philippine archipelago, lying outside the lines described in the
prior treaty, particularly the islands of Sulu and Sibitu.
By a protocol dated March 29, 1900 (37), the period fixed by
the former treaty for Spanish subjects to declare their intention
to retain their Spanish nationality was extended six months.
Thus, within a year from the outbreak of the war with Spain,
the United States acquired all the above named islands, with many
millions of inhabitants, and undertook by Article IX of the
Treaty of December 10, 1898, that "the civil rights and political
status of the native inhabitants of the territories ceded to the
United States shall be determined by the Congress."
While these events were transpiring the Republic of Hawaii,
whose government extended over a group of islands in the Pacific,
known as the Hawaiian Islands, formally signified its consent, in
the manner provided by its constitution, to cede absolutely and
without reservation to the United States of America, all rights
of sovereignty of whatsoever kind in and over the Hawaiian
Islands or their dependencies, and also to cede and transfer to
the United States the absolute fee and ownership of all public,
government, or crown lands, public buildings or edifices, ports,
harbors, military equipment, and all other public property of
every kind and description belonging to the government of the
Hawaiian Islands, together with every right and appurtenance
thereunto appertaining. This proposition was presented to the
Congress of the United States, and accepted July 7, 1898, by a
joint resolution (38), which provided that "said cession is
accepted, ratified, and confirmed, and that the said Hawaiian
Islands and their dependencies be, and they are hereby, annexed
as part of the territory of the United States and are subject to
the sovereign dominion thereof, and that all and singular the
property and rights hereinbefore mentioned are vested in the
United States of America."
It was further provided that "until Congress shall provide
for the government of such islands all the civil, judicial, and
military powers exercised by the officers of the existing
government in said islands shall be vested in such person or
persons, and shall be exercised in such manner, as the President
of the United States shall direct; and the President shall have
power to remove said officers and fill the vacancies so
occasioned." The municipal legislation of the Hawaiian Islands,
subject to certain limitations, was to remain in force until the
Congress of the United States should otherwise determine. The
United States government assumed the debts of the islands, not to
exceed $4,000,000. As act was passed forbidding the immigration
of Chinese. The President was required to appoint five
commissioners to recommend to Congress such legislation
concerning the Hawaiian Islands as they should deem necessary or
proper. (39)
Thus it will be seen, that in the year 1898 the United
States gained an immense accession of citizenship in territory
lying far beyond its original confines, inhabited by people
altogether different from those who had constituted its citizens
theretofore. It will also be seen, both in the joint resolution
accepting sovereignty over the Hawaiian Islands, and in the
treaty accepting the cession of the Spanish possessions, that the
United States assumed complete authority to govern all the newly
acquired territory.
Let us now consider what government it has, up to the
present time, provided for these several possessions, an
examination essential to an understanding of the grade and
quality of citizenship which their inhabitants enjoy.
HAWAII -- ITS GOVERNMENT
Congress, by an Act approved April 30, 1900 (40), passed an
Act to provide a government for the Territory of Hawaii. In
Chapter I, Section 4, of that Act it was set forth that all
persons who were citizens of the Republic of Hawaii on August 12,
1898, are hereby declared to be citizens of the United States and
citizens of the Territory of Hawaii; and all citizens of the
United States residing there on or since August 12, 1898, and all
citizens of the United States who shall hereafter reside in the
Territory of Hawaii for one year, shall be citizens of the
Territory of Hawaii. The fifth section declared that the
Constitution and laws of the United States, except such as are
locally inapplicable, shall have the same force and effect in the
Territory as elsewhere in the United States, with certain
specific exceptions.
The Act provides for a legislature composed of a senate and
a house of representatives, for general elections, and that all
legislative proceedings shall be conducted in the English
language. It confers a large degree of legislative power upon
the legislature, and extends a broad franchise to all inhabitants
who are citizens of the United States and have resided in the
Territory not less than a year, twenty-one years old, registered,
and able to speak, read, and write the English or the Hawaiian
language. It provides, however, for the appointment by the
President of the United States of a governor, secretary, chief
justice and justices of the Supreme Court, and judges of the
circuit courts; and that the governor shall nominate, and, by and
with the advice and consent of the senate of the Territory
appoint, an attorney general, treasurer, commissioner of public
lands, commissioner of agriculture and forestry, superintendent
of public works, superintendent of public instruction, auditor,
and other officers; but all the officers appointed under the Act
are to be citizens of the Territory. By the terms of the Act,
Section 85, the delegate to the House of Representatives of the
United States, to serve during each Congress, shall be elected by
the voters qualified to vote for members of the house of
representatives of the legislature; such delegate shall possess
the qualifications necessary for membership of the Senate of the
legislature of Hawaii. Every delegate shall have a seat in the
United States House of Representatives, with the right of debate
but not of voting.
From the foregoing recital of the Constitution and
government of Hawaii, it will be seen that the government
organized in that Territory is very similar in its general
characteristics to that organized in the Northwest Territory by
the Ordinance of 1787.
PUERTO RICO
Congress proceeded April 12, 1900, to enact a civil
government for the island of Puerto Rico and adjacent islands.
(41) The Act provides that all inhabitants continuing to reside
in Puerto Rico, who were Spanish subjects on the 11th day of
April, 1899, and then resided in Puerto Rico, and their children
born subsequent thereto, shall be deemed and held to be citizens
of Puerto Rico, and as such entitled to the protection of the
United States, and they, together with such citizens of the
United States as may reside in Puerto Rico, shall constitute a
body politic under the name of The People of Puerto Rico, with
governmental powers as conferred in the Act. By Section 14, the
statutory laws of the United States not locally inapplicable,
except as otherwise provided, and except the internal-revenue
laws, are to have the same force and effect in Puerto Rico as in
the United States. Section 16 provides that all judicial process
shall run in the name of the United States, to wit, the President
of the United States, and that all penal prosecutions in the
local courts shall be conducted in the name and under the
authority of the people of Puerto Rico, and that all officials
authorized by the Act shall take an oath to support the
Constitution of the United States and the laws of Puerto Rico.
The legislative authority provided by the Act was empowered
to amend, alter, modify, or repeal any law or ordinance, civil or
criminal. Congress, however, retained the right in the President
to appoint a governor and other executive officers and members of
an executive council. The legislative body consists of the
executive council and the house of delegates, and is known as the
Legislative Assembly of Puerto Rico; the house of delegates
comprises thirty-five members elected biennially by the qualified
voters from the seven districts into which the island is divided.
All citizens of Puerto Rico, bona fide residents for a year, and
possessed of other qualifications under the laws and military
orders, are allowed to vote. The legislative authority extends
to all matters of a legislative character not locally
inapplicable, including the power to create, consolidate, and
reorganize the municipalities, and to amend, alter, modify, or
repeal all laws and ordinances of Puerto Rico, not inconsistent
with the provisions of the bill. A judicial power is created,
but the judges are appointed by the President of the United
States, and Puerto Rico is made a judicial district for the
purposes of Federal jurisdiction, with appeal to the Supreme
Court of the United States. The writ of habeas corpus is
extended to the Territory, and a commission was appointed to
compile and revise the laws of Puerto Rico and report a permanent
plan of government within a year.
By acts passed in 1902, a cadet at West Point and a
midshipman at Annapolis are authorized from the Territory of
Puerto Rico (42), and citizens of Puerto Rico are made eligible
for enlistment in the Puerto Rico regiment, with the right to
order them outside the service of the island.
By a proclamation dated July 25, 1901, the President
declared that the civil government of Puerto Rico had been
organized in accordance with the provisions of the Act of
Congress. (43)
From the foregoing, it will be seen that the government of
Puerto Rico is even more like that provided for the Northwest
Territory, than the government of Hawaii, as the legislative body
of Puerto Rico consists of an executive council appointed by the
President to act in conjunction with the house of delegates; but
the acknowledgment that the inhabitants of Puerto Rico are
citizens of the United States is expressly withheld in the
declaration of the Act of Congress of April 12, 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.
GUAM
No special provision of law seems to have been enacted
concerning the inhabitants of the island of Guam, or defining the
status of their citizenship.
THE PHILIPPINE ISLANDS
The Philippine Islands occupy an immense space upon the map.
Their inhabitants consist of a vast number of tribes, varying in
intelligence and civilization. By an Act of Congress passed
March 2, 1901, the President of the United States was authorized
to establish a temporary civil government over the Philippine
Islands (44), in the following language: "All military, civil,
and judicial powers necessary to govern the Philippine Islands,
acquired from Spain by the treaties concluded at Paris on the
10th day of December, 1898, and at Washington on the 7th day of
November, 1900, shall, until otherwise provided by Congress, be
vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for
the establishment of civil government and for maintaining and
protecting the inhabitants of said islands in the free enjoyment
of their liberty, property, and religion," etc.
Pursuant to the powers vested in him, the President of the
United States created a civil commission, which has, from that
time until the present, continued to administer the affairs of
the Philippine Islands.
By an Act passed July 1, 1902, Congress(45) approved and
ratified and confirmed the action of the President in creating
the Philippine Commission, and in authorizing the commission to
exercise the powers of government to the extent and in the manner
and form and subject to the regulation and control set forth in
the instructions of the President to the Philippine Commission
dated April 7, 1900; in creating the offices of civil governor
and vice-governor of the Philippine Islands, and authorizing said
civil governor and vice-governor to exercise the powers of
government to the extent and in the manner and form set forth in
the executive order dated June 21,1901, and in establishing four
executive departments of government in the islands, as set forth
in the Act of the Philippine Commission.
It is necessary to go into the details of the organization
of that commission. It is sufficient to say that it was
organized for the purpose of securing to the inhabitants of the
Philippine Islands a stable and safe government by the United
States until such time as its people shall be deemed capable of a
larger degree of self-government.
Congress by the Act of July 1, 1902, Section 5 (46),
provided a series of safeguards for the protection of life and
liberty of the inhabitants of the Philippines. The rights
guaranteed by that section are those set forth in the Declaration
of Independence, modified by the condition of the inhabitants.
Among those rights are, the guarantee that no person shall be
deprived of life, liberty or property, without due process of
law; the right of the criminal to be heard by himself and
counsel and to demand the nature and cause of the accusation;
the guarantee that no person shall be twice put in jeopardy for
the same offense or be compelled to testify against himself; the
right to bail; that no law shall be passed impairing the
obligation of contracts; that there shall be no imprisonment
for debt; that the writ of habeas corpus shall not be suspended;
that no ex post facto law or bill of attainder shall be passed;
in fact, all the civil rights guaranteed by the Constitution of
the United States.
Section 4 (47) of the Act declares that all inhabitants of
the Philippine Islands continuing to reside therein who were
Spanish subjects on the 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 De Lima 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 education to elevate them
to our standard. It is doubtful if they will ever assimilate to
our institutions and whether they will not always need a strong
government. It is questionable whether the injury to our home
government from the ill effects on its simplicity resulting from
this practice of strong government upon our alien subjects will
not be greater than any benefit which we are likely to bestow on
them.
These are the arguments which have arisen against the
inauguration of this new insular policy and the adoption of this
surprising new citizenship. In a treatise like this, it is
sufficient to state the argument without attempting to draw
conclusions. What these insular governments may some day become,
the future alone will disclose. At present, they are
substantially citizens without a voice in their government, and
subjects without a king. They are free, provided they conform to
the standard of right and wrong fixed for them by a well-meaning
and benevolent despot, fixed from a viewpoint altogether
different from their own.
The United States had its birth in the protest of Henry
against the dictation of foreign rulers. Summing up and
denouncing the usurpations of King George, he said: "If this be
treason, make the most of it." The nation which sprung into being
upon this issue has now become the foreign ruler of an alien
people by conquest. It has assumed to revolutionize their mode
of existence, mental, moral, physical, and political. In its
determination to bear the torch of liberty to the remotest people
of the earth, it has marched among them, planted its standard,
proclaimed its rule, and answered their every protest with the
announcement, "This is liberty, and you must make the most of
it." History will record the success or failure of the
experiment.
This completes the enumeration of the different kinds of
citizenship existing under our system of government.
Footnotes to Chapter I:
(1) See also Webster's Dictionary; Century Dictionary; 6 Am.
and Eng. Encyc. of Law (2d ed.) 15; Abrigo v. State, (1890)
29 Tex. App. 149.
(2) "Citizens are the members of the political community to
which they belong. They are the people who compose the
community, and who, in their associated capacity, have
established or submitted themselves to the dominion of a
government for the promotion of their general welfare and
the protection of their individual as well as their
collective rights." U.S. v. Cruikshank, (1875) 92 U.S. 542.
(3) For the purpose of designating by a title the person and the
relation he bears to the nation, the words `subject,'
`inhabitant,' and `citizen' have been used, and the choice
between them is sometimes made to depend upon the form of
the government. 'Citizen' is now more commonly employed,
however, and as it has been considered better suited to the
description of one living under a republican government, it
was adopted by nearly all of the States upon their
separation from Great Britain, and was afterwards adopted in
the Articles of Confederation and in the Constitution of the
United States." Minor v. Happersett, (1874) 21 Wall. U.S.
162.
"The word in never used of the people in a monarchy, since
it involves an idea not enjoyed by subjects, to wit: the
inherent right to partake in the government. The republics
of the Old World were cities, and the word citizen has been
usually in human history only applied to inhabitants of
cities. As, (4) (1849) 7 How. (U. S.) 1.
However, states have in modern times arisen, and republics
have been established, in which the word subjects could not
be properly applied. The people of those republics have
been called citizens, for the simple and obvious reason that
their relation to the state was such an was the relation of
citizens to the city. They were a part of its sovereignty
-- they were entitled to its privileges, its rights,
immunities and franchises. White v. Clements, (1896) 39 Ga.
232.
(5) Thomasson v. State, (1960) 15 Ind. 449; Amy v. Smith,
(1822) 1 Litt. (Ky.) 332.
(6) 6 Am. & Eng. Encyc. 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) 113 111. 60;
Laurent v. State, (1863) 1 Kan. 313; Opinion of Justices,
44 Me. 507; Pomeroy's Municipal Law, pt. 11, c. 2, p. 425;
Dred Scott 9. Sandford, (1856) 19 How. U.S. 422; U.S. v.
Morris. (1903) 125 Fed. Rep. 325; Dorsey v. Brigham, (I898)
177 111. 258,69Am.St.Rep.232; Gougar v. Timberlake, (1897)
148 Ind. 41, 62 Am. St. Rep. 489.
(7) (1849) 7 How. U.S. 1.
(8) Inglis v. Sailor's Snug Harbour, (1830) 3 Pet. (U. S.) 121.
(9) The Federalist (Lodge, 1892), p. 86.
(10) The Federalist (Lodge, 1892), p. 137.
(11) Edition 1900.
(12) Lodge, 1902, p.231.
(13) See the text of ordinance in Vol. 8, Federal Statutes,
Annotated, p. 17.
(14) Every person, and every clan and description of persons, who
were at the time of the adoption of the Constitution
recognized as citizens in the several States, became also
citizens of this new political body." Dred Scott v.
Sandford, (1856) 19 How. (U. S.) 406.
(15) "Whoever ... was one of the people of either of these States
when the Constitution of the United States was adopted,
became 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 persons or certain classes of persons
were part of the people at the time, but never as to their
citizenship as 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 Devs & B. L. (N. Car.)
26, quoted U.S. v. Rhodes, (1866) 1 Abb. U.S. 39. 27 Fed.
Cas. No. 16,151.
(18) Dred Scott v. Sandford, (1856) 19 How. (U. S.) 393.
(19) Citizenship, (1862) 10 0p. Atty.Gen. 382.
(20) Admission on an equal footing with the original States, in
all respects whatever, involves equality of constitutional
right and power, which cannot afterwards he controlled, and
it also involves the adoption as citizens of the United
States of those whom Congress makes members of the political
community, and who are recognized as such in the formation
of the new State with the consent of Congress. Boyd v.
Thayer, (1891) 143 U. S. 143.
(21) McCulloch v. Maryland. (1819) 4 Wheat U.S. 316; American
Ins. Co. v. 356 Bales Cotton, (1828) 1 Pet. U.S. 511; U.S.
v. Gratiot, (1840) 14 Pet. U.S. 526; U. S. v. Rogers,
(1846) 4 How. U. S. 667; Crone V. Harrison, (1853) 16 How.
U.S. 164; U.S. v. Coxe. (1855) 18 How. U.S. 100; Gibson v.
Chouteau, (1871) 13 Wall. U.S. 92; Clinton v. Englebrecht,
(1871) 13 Wall. U.S. 434; Beals 9. New Mexico, (1872) 16
Wall. U.S. 535.
"The Constitution of the United States (article four,
section three) provides, 'that Congress shall have power to
dispose of and make all needful rules and regulations
respecting the territory, or other property, belonging to
the United States.' The term territory, as here used, is
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,
64?.
(23) Const, Art. IV, Sec. 3, Cl. 2; M'Culloch v. Maryland,
(1819) 4 Wheat U.S. 316; American Ins. Co. v. 356 Bales
Cotton, (1828) 1 Pet. U.S. 511; U. S. v. Gratist, (1840) 14
Pet. U.S 526; U. S. v. Rogers, (1846) 4 How. U.S. 56T;
Cross v. Harrison, (1853) 16 How. U.S. 164; U.S. v. Coxe,
(1855) 18 How. U.S. 100; Gibson v. Chouteau, (1871) 13
Wall. U.S. 92; Clinton v. Englebrecht, (1871) 13 Wall. U.S.
434; Beall v. New Mexico. (1872) 16 Wall. U.S. 535; Davis
v. Beason, (1890) 133 U.S. 333; Wisconsin Cent. R. Co. v.
Price County, (1890) 133 U. S. 496; Cope v. Cope, (1891 )
137 U.S. 682; Church of Jesus Christ v. U.S., (1890) 136
U.S. 1; Dooley v. U.S., (1901) 192 U.S. 222; Downes v.
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 slave-holding
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 slave-holding 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
intermeddling with, or obstructing, or abolishing the rights
of the owners of slaves. Prigg. v. Pennsylvania, (1842)
16Pet. (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 an extent
that their freedom was of little value, while they had the
protection which they had received from their former owners
from motives both of interest and humanity .... These
circumstances, whatever of falsehood or misconception may
have been mingled with their presentation, forced upon the
statesmen who had conducted the Federal government in safety
through the rebellion, and who supposed that by the
thirteenth article of amendment they had secured the result
of their labors, the conviction that something more was
necessary in the way of constitutional protection to the
unfortunate race who had suffered so much. They accordingly
passed through Congress the proposition for the fourteenth
amendment, and they declined to treat as restored to their
full participation in the government of the Union of the
States which had been in insurrection, until they ratified
that article by a formal vote of their legislative bodies
Slaughter-House Cases, (1872) I6 Wall. U.S. 70.
(30) See the exhaustive collection of authorities in Vol. 9,
Federal Statutes, Annotated.
(31) Slaughter House Cases, (1872) 16Wall. U.S. 73; to same
effect see Elk v. Wilkins, (1884) 112 U.S.101; U.S. v. 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. 5O7; Shivley v. Bowlby, (1894) 152 U.S. 48; De Lima
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.
# # #
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John S. Wise