lar rights they are, nor what relation they have, if any, with citizenship. And they suggest, without affirming, that there may be different grades of citizenship, of higher and lower degree in point of legal virtue and efficacy; one grade "in the sense of the Constitution," and another inferior grade made by a State, and not recognized by the Constitution.

In my opinion the Constitution uses the word "citizen" only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body-politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other. And I have no knowledge of any other kind of political citizenship, higer or lower, statal or national; or of any other sense in which the word has been used in the Constitution, or can be used properly in the laws of the United States. The phrase "a citizen of the United States," without addition or qualification, means neither more nor less than a member of the nation. And all such are, politically and legally, equal. The child in the cradle and its father in the Senate are equally citizens of the United States. And it needs no argument to prove that every citizen of a State is, necessarily, a citizen of the United States; and to me it is equally clear that every citizen of the United States is a citizen of the particular State in which he is domiciled.

And as to voting and holding office, as that privilege is not essential to citizenship, so the deprivation of it by law is not a deprivation of citizenship. No more so in the case of a negro than in case of a white woman or child.

In common speech the word "citizen," with more or less of truth and pertinency, has a variety of meanings. Sometimes it is used in contrast with soldier; sometimes with farmer or countryman; sometimes with alien or foreigner. Speaking of a particnlar man, we ask, Is he a citizen or a soldier? meaning, Is he engaged in civil or military pursuits? Is he a citizen or a countryman? meaning, Does he live in the city or in the country? Is he a citizen or an alien? meaning, Is he a member of our bodypolitic or some other nation? The first two predicates relate only to the pursuits and to the place of abode of the person. The last is always and wholly political, and concerns only the political and governmental relations of the individual. And it is only in this last sense, the political, that the word is ever used in the Constitution and statutes of the United States.

We have natural-born citizens, (Constitution, article 2, § 5,) not made by law or otherwise, but born. And this class is the large majority-in fact, the mass of our citizensfor all others are exceptions specially provided for by law. As they become citizens in the natural way, by birth, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and become citizens or subjects of another nation. For we have no law (as the French have) to decitizenise a citizen who has become such either by the natural process of birth or by the legal process of adoption. And in this connection the Constitution says not one word, and furnishes not one hint, in relation to the color or to the ancestral race of the "natural-born citizen." Whatever may have been said in the opinions of judges and lawyers, and in State statutes, about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution itself does not make the citizens; (it is, in fact, made by them.) It only intends and recognizes such of them as are natural-homeborn-and provides for the naturalization of such of them as were alien-foreign-bornmaking the latter, as far as nature will allow, like the former.

And I am not aware of any provision in our laws to warrant us in presuming the existence in this country of a class of persons intermediate between citizens and aliens. In England there is such a class, clearly defined by law, and called denizens. "A denizen," says Sir William Blackstone, "is an alien born, but who has obtained, er donatione regis, letters-patent to make him an English subject; a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien and a natural-born subject, and partakes of both of them."-(Sharwood's Com., 374.) In this country I know of but one legal authority tending to show the existence of such a class among us. One of my learned predecessors, Mr. Legaré, (4 Opin., 147,) supposes that there may be such a class, and that free colored persons may be ranked in it. Yet, in that same opinion, he declares that a "free man of color, a native of this country, may be admitted to the privileges of a pre-emptioner under the 10th section of the act of the 4th September, 1841." And that act declares that a pre-emptioner must be either a citizen of the United States or a person who had declared his intention to become a citizen, as required by the naturalization laws. Of course the "colored man" must have been a citizen, or he could not have entered the land under that act of Congress. If not a citizen then by virtue of his native birth, he never could become one by force of law, for our laws extend the privileges of naturalization to such persons only as are “aliens, being free white persons," and he was neither; not alien, because natural-born in the country; and not a free white person, because, though free, confessedly “a man of color."

As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than the "accident of birth"-the fact that we happened to be born in

the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body-politic.

If this be a true principle—and I do not doubt it-it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the "natural-born" right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books, which, I think, cannot fail to remove all such doubts: Kent's Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin's case; 4 Term Rep., p. 300, Doe v. Jones; 3 Pet. Rep., p. 246, Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney, in 2 Am. Law Reporter, 193.

In every civilized country the individual is born to duties and rights-the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all-sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. In most countries the old law was broadly laid down that this natural connection between the individual and his native country was perpetual-at least that the tie was indissoluble by the act of the subject alone. (See Bl. Com. supra; 3 Pet. Rep.)

But that law of the perpetuity of allegiance is now changed, both in Europe and America-in some countries by silent acquiescence; in others by affirmative legislation. In England, while asserting the perpetuity of natural allegiance, the King, for centuries past, has exercised the power to grant letters of denization to foreigners, making them English subjects, and the Parliament has exercised at pleasure the power of naturalization.

In France the whole subject is regulated by written law, which plainly declares who are citizens, (citoyens français,) and who are only the French, (Français,) meaning the whole body of the French people. (See Les Codes Français, titre premier.) And the same law distinctly sets forth by what means citizenship and the quality of French may be lost and regained; and maintains fully the right of expatriation in the subject, and the power of naturalization in the nation to which he goes.

In the United States it is too late now to deny the political rights and obligations conferred and imposed by nativity; for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural, and therefore things of which the laws must take cognizance. Acting out this guiding thought, our Constitution does no more than grant to Congress (rather than to any other department) the power "to establish a uniform rule of naturalization." And our laws made in pursuance thereof indue the made citizen with all the rights and obligations of the natural citizen. And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, (10 Statutes, 604,) provides that "persons," (not white persons,) "persons heretofore born, and hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States."

"SEC. 2. And be it further enacted, That any woman who might lawfully be naturalized under the existing laws, married or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen."

But for that act, children of our citizens who happen to be born at London, Paris, or Rome, while their parents are there on a private visit of pleasure or business, might be brought to the native home of their parents, only to find that they themselves were aliens in their father's country, incapable of inheriting their father's land, and with no right to demand the protection of their father's Government.

That is the law of birth at the common law of England, clear and unqualified; and now, both in England and America, modified only by statutes made from time to time, to meet emergencies as they arise.

Every citizen of the United States is a competent member of the nation, with rights and duties, under the Constitution and laws of the United States, which cannot be destroyed or abridged by the laws of any particular State. The laws of the State if they conflict with the laws of the nation are of no force. The Constitution is plain beyond

cavil upon this point. Article 6: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." And from this I assume that every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State. Citizenship of the United States is an integral thing, incapable of legal existence in fractional parts. Whoever, then, has that franchise is a whole citizen and a citizen of the whole nation, and cannot be (as the argument of my learned predecessor seems to suppose) such citizen in one State and not in another.

I fully concur in the statement that "the description, citizen of the United States, used in the Constitution, has the same meaning that it has in the several acts of Congress passed under the authority of the Constitution." And I freely declare my inability to conceive of any second or subordinate meaning of the phrase as used in all those instruments. It means in them all the simple expression of the political status of the person in connection with the nation-that he is a member of the body-politic. And that is all it means, for it does not specify his rights and duties as a citizen, nor in any way refer to such "rights, privileges, and immunities" as he may happen to have, by State laws or otherwise, over and beyond what legally and naturally belong to him in his quality of citizen of the United States. State laws may, and do-nay, must-vest in individuals great privileges, powers, and duties which do not belong to the mass of their fellow-citizens, and, in doing so, they consult discretion and convenience only. One citizen, who happens to be a judge, may, under proper circumstances, sentence another to be hanged, and a third, who happens to be governor, may grant a pardon to the condemned man, who, as a citizen, is the undoubted peer of both the judge and the governor.

The Constitution, I suppose, says what it means, and does not mean what it does not say. It says nothing about "the high characteristic privileges of a citizen of the State," (of Virginia, or any other.) I do not know what they were; but certainly in Virginia, for the first half of the existence of the commonwealth, the right of suffrage was not one of them. For during that period no man ever voted there because he was a free white adult male citizen. He voted on his freehold, in land; and no candidate, in soliciting his election, appealed to the people or to the citizens, but to the freeholders only, for they alone could vote.

(F.)

Chief Baron Pigott's refusal of a mixed jury in Warren's case.

The CHIEF BARON. My learned brother and I do not entertain the least doubt as to the course we ought to adopt in reference to this proceeding. It is essential to sustain the application; and, assuming the court has the power to grant it, the practice has been invariably to award a jure de medietate, as it is called, wherever an alien claims it. But assuming the authority of the court, upon which I will not now cast the slightest doubt, it is perfectly plain the person who claims a jury de medietate linguæ must be an alien. It is very truly put by the counsel for the prisoner that what the prisoner contends for in the present case is, that by reason of what appears-assuming the statement to be fact-what appears stated in the suggestion, he is an alien, and he is not now under the allegiance of the Queen. I cannot allow that proposition to be put forward without meeting it with a prompt and unhesitating denial. According to the law of England, a law which has been administered without any variation or doubt from the very earliest times, he who once is under the allegiance of the English sovereign remains so forever. It would be really almost pedantry for me to cite authorities on that subject. They are familiar to every lawyer. I shall cite one English authority, and I shall then cite some American authorities of the greatest weight and highest reputation. In the first volume of Blackstone's Commentaries, pages 269 and 270, the law is thus stated: "Allegiance, both express and implied, is, however, distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from natural-born subjects. This is a tie which cannot be severed or altered by any change of time, place, or cir cumstance, nor by anything but the united concurrence of the legislature. An Englishman who removes to France or to China owes the same allegiance to the King of Eng land there as at home, and twenty years hence as well as now. For it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former, for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes al

In

legiance, may be entangled by subjecting himself absolutely to another, but it is his own act that brings him into these straits and difficulties of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bonds by which he is connected to his natural prince." Blackstone then proceeds to show that local allegiance, which by foreigners is due to the monarch, continues so long as the foreigners reside within the kingdom. The maxim of the law on this subject, referred to by Sir Michael Foster, page 184 of his treatise, and referred to by a variety of other authorities, is nemo potest exuere patriam. I said I would only refer to one English authority. I have brought down, with a view to some possible matter which might have arisen, some American authorities; and I don't think it is unuseful to cite these authorities on the subject now before us. Story's "Conflict of Laws," page 23, section 21, referring to the general maxim or rule that the laws of one State do not bind property or persons in another, he says: "Upon this rule there is often engrafted an exception of some importance to be rightly understood. It is, that although the laws of a nation have no direct binding force or effect except upon persons within its own territories, yet that every nation has a right to bind its own subjects by its own laws in every other place. In one sense this exception may be admitted to be correct and well-founded in the practice of nations; in another sense it is incorrect, or at least it requires qualification. Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native-born subjects everywhere, and consequently that its laws extend to and bind such subjects at all times and in all places. This is commonly adduced as a consequence of what is called natural allegiance; that is, of allegiance to the government of the territory of a man's birth. Thus, Mr. Blackstone says, natural allegiance is such as is due from all men born within the King's dominions immediately upon their birth.” He then proceeds to quote the passage from Blackstone which I have cited. In Chancellor Kent's Commentaries, in the second volume, page 42, the following is laid down as English law. He is expounding the American law; and, expounding the American law, founded as it is on the law of England, he says

"It is the doctrine of the English law, that natural-born subjects owe an allegiancewhich is intrinsic and perpetual, and which cannot be divested by any act of their own."

He then cites an English authority in the case of McDonnell, who was tried for high treason in 1746, by Lord Chief Justice Lee, and who, he says:

"Though born in England, had been educated in France, and spent his riper years there. His counsel spoke of the doctrine of natural allegiance as slavish and repugnant to the principles of their revolution. The court, however, said that it had never been doubted that a subject born, taking a commission from a foreign prince and committing high treason, was liable to be punished, as a subject, for that treason. They held that it was not in the power of any private subject to shake off his allegiance and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown. Entering into foreign service without the consent of the sovereign, or refusing to leave such service when required by proclamation, is held to be a misdemeanor at common law."

Chancellor Kent then deals with the question, how far the English law prevails in America. He says:

"It has been a question [here he leaves the English law and proceeds to expound the other] frequently and gravely argued, both by theoretical writers and in frequent discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country."

That is, whether in America that doctrine is recognized. Its recognition there or repudiation could not in the slightest degree affect this country or its tribunals. Chancellor Kent then proceeds with an elaborate review of the authorities, and he closes thus, stating his view of the American law:

"From this historical review of the principal discussions in the Federal courts on this interesting subject of American jurisprudence, the better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of Government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered."

I have thought it right to cite these two great American authorities-Mr. Justice Story in his book on the Conflict of Laws, that is, on the laws of nations as they relate to each other, and Chancellor Kent expounding the law of America, and expounding it in the first instance by an exposition of the law of England, which is its foundation. We in our courts have been in the habit of treating, not merely with respect, but with reverence, these two great lights of the laws of America. We have cited them in our courts of justice; they have been quoted in our forensic discussions. The principles laid down by them in interpreting in America the laws of England as they are adopted there, have been approved and adopted by some of the ablest judges.

that have sat on the British bench. Mr. Justice Story was himself a great judge. So was Chancellor Kent; and some of the finest contributions that have ever been made to the science of jurisprudence, or to the law of England as a science, have been made by these two great men from whose works I have read these passages. I have thought it not unuseful, since I had the opportunity of doing so, of stating that this was the law as laid down by the great authorities in America, because I think it is desirable that they who in America formed views-I will say no more now than that-with respect to what is passing, or what is expected to pass, within the dominions of the Crown of England, should be aware of the obligations imposed on them if they have ever been under the allegiance of the Crown of England; and how, according to the laws of England, they may be dealt with when they are found here. For these reasons we are of opinion that the objection made by the attorney-general is well founded, and that we ought not to comply with this application, and that the prisoner is not entitled to a jury de medietate linguæ.

(G.)

Memorandum on Prussian laws.

[Translation.]

By the terms of section 1 of the law of 3d September, 1814, (Collections of laws for the year 1814, p. 79,) every Prussian subject who has attained the age of twenty full years is obliged to serve in the army.

In consequence, in each year all the young men of that age must present themselves at a certain time before the military commission of the circle in which they are domiciled, to be examined as to their fitness to render service, and designated, the case happening, to the detachment in which they are to be incorporated.

This obligation to present themselves for service is not extinguished by time. Whoever does not appear at the point indicated is held to serve at a more advanced age; and, if he can be got hold of, is enrolled under the flag before any other.

Service in the army in active employ lasts three years. (Section 6 of the law above mentioned.)

During the two years following, the soldier is dismissed on leave and belongs to the reserve; thenceforward he is not called into service until a war or an increase of the active force requires it.

After the expiration of these two years, the soldier passes for seven years into the first levy of landwehr, (land-guard,) which in time of peace musters only annually for some weeks of drill.

These seven years completed, the soldier becomes a member for seven years longer of the second levy of the landwehr, which is only called out in time of war. Whoever evades the duties of the landwehr is obliged to take part therein at a later time, and his more advanced age does not exempt him from such call.

Emigration is not permitted, except with express leave from the government. This permission cannot be granted to males between seventeen and twenty-five years of age, unless they produce a certificate from the commission for recruiting the army, testifying that they do not propose to expatriate themselves for the sole purpose of evading their military obligations. (Section 17 of the law of 31st December, 1842, on the mode in which the quality of subject of Prussia is acquired and lost. Bulletin of the Laws of the year 1843, p. 15, et seq.)

This certificate serves also as a guide when it is required to determine if there is reason to grant to minors authority to emigrate with their parents.

Soldiers belonging to the army in active service, or to the reserve, do not obtain leave to expatriate themselves until they have been dismissed.

On the other hand, the service in the first or second levy of the landwehr does not prevent the person who may still be subject to such service from disengaging himself from the ties which bind him to his native land; one exception alone is made to this regulation, which is when the landwehr is called into active service.

Whoever leaves Prussia without permission, and thereby evades service either in the army, in active service, or the landwehr, incurs a penalty of 50 to 1,000 crowns, or incurs an imprisonment of one month to one year. (Section 110 of the Penal Code of April 14, 1851.)

But the payment of the penalty or the infliction of the punishment of imprisonment does not dispense with the obligation to render the military service. This obligation continues the rather until he who may have neglected his duty discharges it completely.

Proceedings are taken against such persons the moment it is perceived that they are