States. Third: What native-born persons should be citizens of the United States. The first-named power, that of establishing a uniform rule of naturalization, was granted; and here the grant, according to its terms, stopped."

Referring to that clause of the Constitution which provides that "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States," Justice Curtis says: "Nowhere else in the Constitution is there anything concerning a general citizenship; but here privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship - how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of several States, and, as such, the privileges and immunities of general citizenship, derived from and guaranteed by the Constitution, are to be enjoyed by them. It would seem that if it had been intended to constitute a class of native-born persons within the States, who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. Laying aside, then, the case of aliens, concerning which the Constitution has recognized the general principle of public law, that allegiance and citizenship depend on the place of birth, that it has not attempted practically to apply this principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends on

their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were the people of the United States,' for whom and whose posterity the government was declared in the preamble of the Constitution to be made; that each of them was a citizen of the United States at the time of the adoption of the Constitution,' within the meaning of those words in that instrument; that by them the government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them the necessary conclusion is, that those persons born within the several States, who by force of their respective constitutions and laws, are citizens of the State, are thereby citizens of the United States. It has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons born within their respective limits, shall acquire by birth citizenship of the United States, and it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress."

In effect, the Dred Scott decision held that native-born negroes, whether free or slave, living in the United States, though subjects of, that is, owing allegiance to the United States, were not, and could not either by state or federal action, be made "citizens" of "of the United States within the meaning of the Constitution.

9 At the first hearing of this case before the Supreme Court, four justices, McLean, Catron, Grier, and Campbell, held that the plea in abatement, setting up the question of citizenship, was not properly before the court because the defendant had submitted and pled over to the merits. Justice Nelson was in doubt as to this. Upon the second hearing, Nelson agreed with these four, and, consequently, no one of the five a majority of the court — discussed the question in the opinions which they individually rendered. Justices Wayne and Daniel agreed with Taney and Curtis that the plea was properly before. the court.

130. The Fourteenth Amendment.

In 1868 was adopted the Fourteenth Amendment which provides 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."

The two main purposes of this declaration undoubtedly were: (1) The assertion that national citizenship is primary and paramount to state citizenship; and (2) the granting of both national and state citizenship to the negro. That national citizenship was to be paramount is shown not only in the words just quoted, but in the further provision of the amendment that "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."

In the Slaughter House Cases, as we have already learned,10 the Supreme Court held, in effect, that this amendment did not have the effect of absorbing state citizenship and its appurtenant rights into the national citizenship, but that the two remain as distinct as before. Upon this point the court declare: "It [the clause defining citizenship] declares that persons may be citizens of the United States without regard to the 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. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. The next observation is more important. It is, that the dis

10 Ante, § 86.

1.1

11 This interpretation of the phrase "subject to its jurisdiction" was a mere dictum of the court, the point not being involved in the suit at bar. Moreover it was an incorrect dictum so far as regards persons born within the United States of parents who are aliens. U. S. v. Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

tinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual."

In the above it will be noticed that the court declare that an additional element is necessary to convert a federal citizen into a state citizen. This additional element, furthermore, is one the giving or refusing of which is not within the control of the State. By the mere act of taking up residence within a State, which the State cannot prevent, a federal citizen, ipso facto, becomes a citizen of the State. The State thus no longer has any power to determine who shall be or become its own citizens. The federal Constitution fixes that once for all.

shall exist,

But though the States may not determine who shall constitute its citizen body, they still retain, as the decision in the Slaughter House Cases goes on to declare, a full authority, free from federal supervision and control, to decide what political privileges as, for instance, the right to vote, or to hold office and who shall be entitled to enjoy them. Thus, upon the one hand, federal and state citizenship does not entitle one, of right, to the suffrage or qualify him for public office. Upon the other hand, the States may grant, and in a number of cases have granted, these privileges to aliens who, though not naturalized, have declared their intention, according to the requirements of the national law regulating naturalization, of becoming United States citizens.

Since the adoption of the Fourteenth Amendment there has been no question but that all persons, including negroes, born or naturalized in the United States become by mere residence in a

State citizens of the State. Furthermore, there is, and has been, no question but that, as Taney says in his opinion in the Dred Scott case, a State cannot, by granting its citizenship to an alien, create such a one a federal citizen or endow him with any of the privilege appertaining to that status, for the right of naturalization is, as we shall see, exclusively vested in the Federal Gov

ernment.

But though it has never been authoritatively so decided by the Supreme Court of the United States, it would seem that while a State cannot prevent a federal citizen from becoming one of its own citizens, it may grant its own citizenship to one not a federal citizen, and even to one, as for instance a Mongolian, who, according to existing federal law, cannot become a federal citiThis position is taken by the state court of Wisconsin in

zen.

In a line of decisions it has been held that a person may by residence abroad lose his state citizenship within the meaning of the constitutional provision which opens the federal courts to suits between citizens of different States, without losing his federal citizenship.13

Whether or not a State may make an alien one of its own citizens is quite largely an academic question; for, as already said, it can, without making him such, endow him with all the privileges of citizenship, and even give him the franchise. In Arkansas, Indiana, Kansas, Missouri, Nebraska, South Dakota, Texas, Oregon, and Wisconsin, the alien can, according to existing (1909) law, vote at all elections, if he has declared his intention to become a citizen of the United States. It may be added, also, that in a number of States, the alien who has made this declaration is given certain privileges which are denied to other aliens; for example, to hold real estate, and to be employed on public works. By federal law, also, he may preëmpt and acquire public lands: and, if he dies before becoming actually natural

14

12 16 Wis. 443. See also Desbois' Case, 2 Martin, 185. Contra, Lanz v. Randall, 4 Dill. 428.

13 Prentiss v. Brennan, 2 Blatchf. 162; Picquet v. Swan, 5 Mason, 35. 14 Rev. Stat., Secs. 2259, 2289.