Time: Sun Jul 06 15:55:47 1997
by primenet.com (8.8.5/8.8.5) with ESMTP id PAA28594;
Sun, 6 Jul 1997 15:47:30 -0700 (MST)
by usr08.primenet.com (8.8.5/8.8.5) with SMTP id PAA22289;
Sun, 6 Jul 1997 15:47:17 -0700 (MST)
Date: Sun, 06 Jul 1997 15:47:13 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Right of Election, 2 classes of citizens
[This text is formatted in Courier 11, non-proportional spacing.]
Additional citations proving there is a Right of Election:
That the general principle of such a right of electing, to
remain under the old or to contract a new allegiance, was
recognized, is apparent from the case of Com. v. Chapman, 1
Dal., 53, and other cases cited. Those who adhered to the
new government and transferred their allegiance thereto,
became citizens of the same. All who were free, had this
right of election, else they were not free. No particular
color nor descent was required to confer this right of
election. It resulted from freedom, and the necessity
resting upon all to make an election. When it was made, and
the individual determined to adhere to the new state, he was
necessarily a member and a citizen of the same. He
sustained the same relation to the new government by choice,
which he had sustained to the old by birth.
[44 Maine 528-529 (1859), Appleton concurring]
[emphasis and underlines added]
Mr. Kelley [of North Carolina] ... "contended for the broad
principle that all men are entitled to equal rights and
privileges; that nothing but arbitrary power can forbid
their free exercise, and that it is contrary to all the
principles of free government to tax a man and refuse him a
right to vote for a member to the legislature." Debates on
the Constitution of North Carolina in 1835, 357.
[44 Maine 533 (1859), Appleton concurring]
[emphasis and underlines added]
Slavery is therefore regarded as a condition imposed upon
the individual by the municipal law.
[44 Maine 525 (1859), Appleton concurring]
[emphasis added]
... [F]or it is certain, that in the sense in which the word
"citizen" is used in the federal constitution, "citizen of
each state," and "citizen of the United States," are
convertible terms; they mean the same thing; for "the
citizens of each state are entitled to all privileges and
immunities of citizens in the several states," and "citizens
of the United States" are, of course, citizens of all the
United States.
[44 Maine 518 (1859), Hathaway dissenting]
[italics in original, underlines added]
Additional citations proving two classes of citizenship:
It does not by any means follow, because he has all the
rights and privileges of a citizen of a state, that he must
be a citizen of the United States.
[Dred Scott v. Sandford, 19 How. 405 (1856)]
Under our complex system of government there may be a
citizen of a state who is not a citizen of the United States
in the full sense of the term. This result would seem to
follow unavoidably from the nature of the two systems of
government.
[In Re Wehlitz, 16 Wis. 443 (1863)]
This distinction between citizenship of the state and of the
United States is also very clearly implied in several
provisions both of the constitution and laws of this state.
There, wherever the full right of citizenship of the United
States is intended, it is so expressed, as in respect to the
office of governor, lieutenant governor or judge, it is
provided that no person shall be eligible who is not a
"citizen of the United States." This form of expression
would never have been used if it had been supposed that no
person could be a citizen of the state without being also a
citizen of the United States. In that case, the word
"citizen" alone would have been used.
[In Re Wehlitz, 16 Wis. 443 at 474 (1863)]
... [T]herefore, the militia law drops the language which is
used when a full citizenship of the United States is
intended, and provides that all able bodied "citizens" shall
be liable to military duty. This change of phraseology was
not accidental or unmeaning, but was entirely based upon the
well understood distinction between a citizen of the state
merely, and a citizen of the United States.
[In Re Wehlitz, 16 Wis. 443, 478 (1863)]
The first clause of the fourteenth amendment made negroes
citizens of the United States, and citizens of the State in
which they reside, and thereby created two classes of
citizens, one of the United States and the other of the
state.
[Cory et al. v. Carter, 48 Ind. 327 (1874)]
[headnote 8, emphasis added]
Judge Cooley, in his great work on Constitutional
Limitations, on page 54, says: "A cardinal rule in dealing
with written instruments is that they are to receive an
unvarying interpretation, and that their practical
construction is to be uniform."
[Cory et al. v. Carter, 48 Ind. 327, 335 (1874)]
Is a voter under the constitution of the State of Indiana,
though not a citizen of the United States, eligible to hold
the office of township trustee? ... The constitution [of
Indiana], and its fair interpretation, therefore, conduct us
to the conclusion that the contestee was eligible to the
office of township trustee, and that he is entitled to hold
it, and exercise its functions.
[McCarthy v. Froelke, 63 Ind. 507, 509-511 (1878)]
One may be a citizen of a State and yet not a citizen of the
United States. Thomasson v. State, 15 Ind. 449; Cory v.
Carter, 48 Ind. 327 (17 Am. R. 738); McCarthy v. Froelke,
63 Ind. 507; In Re Wehlitz, 16 Wis. 443.
[McDonel v. State, 90 Ind. 320, 323 (1883)]
[underlines added]
For it would seem incompatible with the spirit of our laws
to exclude one from the jury box who was eligible to act as
jury commissioner in selecting jurors; or as sheriff in
empanneling a jury; or as judge to preside at the trial.
[McDonel v. State, 90 Ind. 320, 324 (1883)]
One may be a citizen of a state, and yet not a citizen of
the United States -- McDonel v. State, 90 Ind. 320.
[4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11]
[underlines added]
The first clause of the fourteenth amendment of the federal
Constitution made negroes citizens of the United States, and
citizens of the state in which they reside, and thereby
created two classes of citizens, one of the United States
and the other of the state -- Cory v. Carter, 48 Ind. 327,
17 Am. Rep. 738.
[4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11]
[emphasis and underlines added]
... Rights and privileges of a citizen of the state or of
the United States.
[Harding v. Standard Oil Company]
[182 F. 421 (USCC, Ill. 1910)]
One may be a citizen of the United States, and yet not a
citizen of any state.
[Hough v. Societe Electrique Westinghouse de Russie]
[231 F. 341 (USDC, NY, 1916)]
-----------------------------------------------------------------
c/o General Delivery
San Rafael [zip code exempt]
California state
September 10, 1993
Ray Feyereisen
c/o General Delivery
Houston, Texas Republic
Postal Code 77253/tdc
Dear Ray:
I did some more research today, to explore some of the cases
which support the position that one can be a State Citizen
without necessarily being a citizen of the United States. You
already knew about Crosse; here are the relevant paragraphs:
Both before and after the Fourteenth Amendment to the
federal Constitution, it has not been necessary for a person
to be a citizen of the United States in order to be a
citizen of his state. United States v. Cruikshank, 92 U.S.
542, 549, 23 L.Ed. 588 (1875); Slaughter-House Cases, 83
U.S. (16 Wall.) 36, 73-74, 21 L.Ed. 394 (1873); and see
Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895). See
also Spear, State Citizenship, 16 Albany L.J. 24 (1877). ...
[B]ut we find nothing in Reum [City of Minneapolis v. Reum,
56 F. 576, 581 (8th Cir. 1893)] or any other case which
requires that a citizen of a state must also be a citizen of
the United States, if no question of federal rights or
jurisdiction is involved. As the authorities referred to in
the first portion of this opinion evidence, the law is to
the contrary.
[Crosse v. Board of Supervisors of Elections]
[221 A.2d 431 (1966), emphasis and underlines added]
Corpus Juris is another source of authorities which support this
position:
So a person may be a citizen of a particular state and not a
citizen of the United States46 ....
[11 C.J., Sec. 3, p. 777]
Footnote 46 lists the following cases:
Harding v. Standard Oil Co., 182 Fed. 421 (1910)
McDonel v. State, 90 Ind. 320 (1883)
State v. Fowler, 41 La. Ann. 380, 6 S. 602 (1889)
The reference librarian at the County Law Library and I
searched in vain for McDonel v. State; they're going to put
their special legal beagle on that search. Here's what Harding
said:
In the Constitution and laws of the United States the term
["citizenship"] is generally, if not always, used in a
political sense to designate one who has the rights and
privileges of a citizen of a state or of the United States.
Baldwin v. Franks, 120 U.S. 678, 7 Sup. Ct. 656, 30 L.Ed.
766. A person may be a citizen of a state but not of the
United States; as, an alien who has declared his intention
to become a citizen, and who is by local law entitled to
vote in the state of his residence, and there exercise all
other local functions of local citizenship, such as holding
office, right to poor relief, etc., but who is not a citizen
of the United States. Taney, C.J., in Dred Scott v.
Sandford, 19 How. 405, 15 L.Ed. 691; Slaughterhouse Cases,
16 Wall. 74, 21 L.Ed. 394.
[Harding v. Standard Oil Co. et. al., 182 Fed. 421 (1910)]
[emphasis and underlines added]
I really love the pertinent quote from State v. Fowler, which was
decided by the Louisiana Supreme Court in 1889:
A person who is a citizen of the United States is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular
state and not a citizen of the United States. To hold
otherwise would be to deny to the state the highest exercise
of its sovereignty, -- the right to declare who are its
citizens. The sovereignty of the citizens of a republic has
its highest assertion in representative government, and is
constituted in its political order in the representation of
persons, and not of classes or of interests.
[State ex rel. Leche v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]
The Crosse court cites Short v. State, which came to essentially
the same conclusion in the following long passage:
And then, as to the objection that this local law is
repugnant to that clause in the fourteenth amendment of the
federal constitution which declares that "no state shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States," it is
sufficient to say that the interpretation of that clause by
the supreme court in the Slaughterhouse Cases, 16 Wall. 36,
is a complete answer to this objection. There is a
distinction, says Justice Miller, between citizenship of the
United States and citizenship of a state.
[Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895)]
[emphasis and underlines added]
The Crosse court cites Short v. State, but I could find in
the latter decision no statements which took the exact position
we are seeking; nevertheless, it does cite the Slaughterhouse
Cases and also Bradwell v. State, 16 Wall. 130. In the Bradwell
case, Mr. Justice Miller, speaking for the court, says:
The protection designed by that clause, as has been
repeatedly held, has no application to a citizen of the
state whose laws are complained of.
[emphasis added]
Also, I think I have already mentioned this book, but it's
worth mentioning again. See if you can get your hands on a copy
of A Treatise on Citizenship by Birth and by Naturalization, by
Alexander Porter Morse, Boston: Little, Brown, and Company, 1881.
Buried near the end of this voluminous treatise is a section
entitled "State Citizenship -- Its Existence". In addition to
the big cases like Dred Scott, Slaughterhouse and Cruikshank, he
mentions the following in his footnotes:
Corfield v. Coryell, 4 Wash. C.C. 371
Conner v. Elliott, 18 How. 591
Donovan v. Pitcher, 53 Ala. 411
Cully v. Baltimore, etc., R.R. Co., 1 Hughes 536
Prentiss v. Brennan, 2 Blatchf. 162
Frasher v. State, 3 Tex. Ct. App. 267
Reilly v. Lamar, 2 Cranch 344
He also writes, "That there is a state citizenship, see Registry
Act of California of 1865-1866, sect. 11." I pulled it; check
it out.
So, you thought you were caught up with all your work, did
you?
Carry on, and peace be with you.
Sincerely yours,
/s/ John E. Trumane
# # #
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine
tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU
website: http://www.supremelaw.com : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
Tucson, Arizona state : state zone, not the federal zone
Postal Zone 85719/tdc : USPS delays first class w/o this
As agents of the Most High, we came here to establish justice. We shall
not leave, until our mission is accomplished and justice reigns eternal.
========================================================================
[This text formatted on-screen in Courier 11, non-proportional spacing.]
Return to Table of Contents for
Supreme Law School: E-mail