naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State" (commonwealth) "wherein they reside."1 Before the adoption of the fourteenth amendment the constitution contained no definition of citizenship, either of the United States or of a commonwealth. It referred to a citizenship of the United States as a qualification for membership in the two houses of Congress and for the presidential office, but it did not declare what should constitute such citizenship. Before the adoption of this amendment the leaders of the statesrights party held that citizenship of the United States was but the consequence of citizenship in some State (commonwealth).2 Finally, before the adoption of this amendment, the Supreme Court itself indicated that it was inclining to the same view in the famous decision which declared that a man of African descent could not be a citizen of a State (commonwealth) or of the United States; i.e. that the United States government had not the power to make him so."

This amendment, therefore, reverses the previously estab lished principle. According to it, citizenship is primarily of the United States; and secondarily and consequently, of the locality in which the citizen of the United States may reside. Citizenship, both of the United States and of the commonwealths, is thus conferred by the constitution of the United States and the laws of Congress made in accordance therewith. The commonwealths can neither confer nor withhold. citizenship of the United States. A citizen of the United States is now, ipso jure, a citizen of the commonwealth in which he may fix his residence; and if any commonwealth should undertake to defeat the spirit of this provision by the enactment of hostile laws in regard to the gaining of resi dence within its limits, any individual suffering injury from

1 Constitution, Amendments, Art. XIV, sec. I.

2 Calhoun's Works, vol. II, p. 242.

3 Dred Scott v. Sanford, U. S. Reports, 19 Howard, 393.

the same may invoke the interpretation of the term residence. by the United States judiciary, and the aid of the general government in the protection of his liberty under that interpretation. There is nothing in this provision, indeed, which would prevent a commonwealth from permitting an alien to exercise the privileges of a citizen within the commonwealth so far as that particular commonwealth is concerned. The provision was meant to enlarge the enjoyment of these privileges, not to contract them. It is easy to see, however, that a commonwealth may abuse this power to the detriment of the whole people of the United States. For example, a commonwealth might permit aliens to hold real estate in such quantities and under such tenures as to introduce a very disturbing element into our general system of ownership of land. I will say nothing at this point concerning the possible, nay, actual, abuse of this power by the commonwealths in permitting aliens to exercise the suffrage, since the suffrage cannot be classed among the civil or private rights.

I think a great deal of the confusion of thought which prevails in reference to this subject, wherever a federal system of government exists, is occasioned by the failure to distinguish between the state and the two governments. The individual is not a citizen of either government, but of the state back of both. He derives his citizenship, with all its immunities and rights, from the state; and the two governments have only the duty and the power of observing and protecting those immunities and rights, each in the sphere assigned to it by the state. I will endeavor to expand this view still further when I come to inquire what are "the privileges and immunities of a citizen of the United States."

Before leaving the subject of citizenship, however, I must call attention to the fact that this provision of the fourteenth amendment does not cover every possible case. Children born in foreign countries, of parents who are citizens of the Uni

ted States, and becoming, afterwards, subject to the jurisdiction of the United States without being naturalized, do not have their status expressly determined by this clause. Neither do persons born or naturalized in the United States and temporarily out of the jurisdiction of the United States. Neither do alien women married to citizens of the United States. Two of these cases had been already provided for by a statute of Congress before the adoption of the fourteenth amendment, vis; the first and the third. The statute confers citizenship in the first case, provided the father has resided in the United States, and, in the third case, provided the woman is capable of naturalization.1 As to the second case, our custom regards citizenship as continuing through any temporary absence, i.e. any absence which contemplates. a resumption of permanent residence in the United States; although the person, unless enjoying diplomatic extra-territoriality, becomes temporarily subject to the civil, police and criminal jurisdiction of the foreign power, and any protection which our government may exercise over him, at such time, must be through the forms of diplomacy.2

I must also call attention to the fact that the Supreme Court of the United States, in its first interpretation of this clause, excludes children born in the United States, of parents who are citizens or subjects of foreign states, from United States citizenship.3 The language of Mr. Justice Miller, who delivered the opinion of the Court, is as follows: "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." Now, consuls and the citizens and subjects of foreign states, unless they are of the family or suite of an

1 United States Statutes at Large, vol. 10, 604.

2 Wheaton, International Law, Boyd's edition, Chap. II; Bluntschli, Das Mo. derne Völkerecht, 338.

3 Slaughter House Cases, U. S. Reports, 16 Wallace, 36.

ambassador or minister, are themselves subject, while in the United States, to the jurisdiction of the United States and of the commonwealths wherein they sojourn. Certainly, then, their children are. The learned justice seems to have had some other meaning in his mind for the phrase "subject to its jurisdiction" than that commonly held. The general understanding in regard to this phrase is that it signifies being within the territorial limits of the state concerned, and not enjoying the extra-territoriality of international custom. Certainly under such a definition the children born within the United States, of parents who are foreign consuls or subjects of foreign states, but who do not belong to the family or suite of an ambassador or minister or of the diplomatic head of a foreign state, are not, by the words of the fourteenth amendment, excluded from the citizenship of the United States, but are included among those enjoying the same. The Civil Rights Act of April 9th, 1866, declared, "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed," to be citizens of the United States. If Mr. Justice Miller's interpretation of the law rested upon the language of this act, no fault could be found with it; but, of course, the constitutional provision overrides the act wherever they differ, and it is the constitutional provision upon which he rests his explanation. I think the dictum of the Court is wiser law than the constitution, but I do not think it is the law as expressed in the constitution.

In a later case Mr. Justice Gray, expressing the opinion of the Court, upholds the view of this subject advanced by Mr. Justice Miller, and gives a definition to the phrase "subject to the jurisdiction thereof." He says: "The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but com

1 United States Statutes at Large, vol. 14, p. 27.

pletely subject to their political jurisdiction, and owing them direct and immediate allegiance."1 According to this definition the constitutional provision should read: All persons born or naturalized within the United States, and owing the United States direct and immediate allegiance, are citizens of the United States, etc. But to whom does a person born in a given state owe direct and immediate allegiance? This is a question as yet for each state to determine for itself. The juristic world has found two principal answers to it. They are called in legal language the jus soli and the jus sanguinis. The English common law contained the jus soli at the time of our separation from the motherland; it is therefore the law of the United States, unless changed by constitutional or statutory provision. This has not happened. Now, what is the doctrine of the jus soli upon this point? It is that any person born within the territory of a given state, and over which the state has established government, owes direct and immediate, or better, primary and natural, allegiance to that state, no matter whether his parents be citizens or subjects of, or aliens in, the said state. There is one case only of exception to this rule, viz; children born of parents who are extra-territorial persons; i.e. who are the diplomatic heads or the diplomatic agents of foreign states. I do not think that the dictum of Mr. Justice Gray logically sustains the doctrine of Mr. Justice Miller. The point actually decided in the case of Elk v. Wilkins was that an Indian, belonging to an organized tribe recognized by the government of the United States, could become a citizen of the United States under the fourteenth amendment only by way of naturalization. This is doubtless a sound interpretation of that provision, but it does not rest at all for its validity upon the dictum that children born in the United States, of parents who are sub

1 Elk v. Wilkins, 112 U. S. Reports, 94.

2 Munroe Smith, Nationality, in Cyclopædia of Political Science &c. (Ed. Lalor) vol. 2, p. 941 ff.