Who is a citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decision in our courts, nor by the continued and consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning of the Government. Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly.
In most instances, within my knowledge, in which the matter of citizenship has been discussed, the argument has not turned upon the existence and the intrinsic qualities of citizenship itself, but upon the claim of some right or privilege as belonging to and inhering in the character of a citizen. In this way we are easily led into errors both in fact and principle. We see individuals, who are known to be citizens, in the actual enjoyment of certain rights and privileges, and in the actual exercise of certain powers, social and political, and we, inconsiderately, and without any regard to legal and logical consequences, attribute to those individuals, and to all of their class, the enjoyment of those rights and privileges, and the exercise of those powers, as incidents to their citizenship, and belonging to them only In their quality of citizens.
In such cases it often happens that the rights enjoyed and the powers exercised have no relation whatever to the quality of citizen, and might be as perfectly enjoyed and exercised by known aliens. For instance, General Bernard, a distinguished soldier and devoted citizen of France, for a long time filled the office of general of engineers in the service of the United States, all the time avowing his French allegiance, and, in fact, closing his relations with the United States by resigning his commission and returning to the service of his own native country. This and all such instances (and they are many) go to prove that in this country the legal capacity to hold office is not confined to citizens, and therefore that the fact of holding any office for which citizenship is not specially prescribed by law as a qualification is no proof that the incumbent is an American citizen.
Again, with regard to the right of suffrage, that is, the right to choose officers of government, there is a very common error, to the effect that the right to vote for public officers is one of the constituent elements of American citizenship, the leading faculty indeed of the citizen, the test at once of this legal right and the sufficient proof of his membership of the body-politic. No error can be greater than this, and few more injurious to the right understanding of our constitutions, and the actual working of our political government. It is not only not true in law or in fact, in principle or in practice, but the reverse is conspicuously true; for I make bold to affirm that, viewing the nation as a whole, or viewing the States separately, there is no district in the nation in which a majority of the known and recognized citizens are not excluded by law from the Tight of suffrage. Besides those who are excluded specially on account of some personal defect, such as paupers, idiots, lunatics, and men convicted of infamous crimes, and, in some States, soldiers, all females, and all minor males are also excluded. And [Page 1369] these, in every community, make the majority; and yet, I think, no one will venture to deny that women and children, and lunatics, and even convict felons, may he citizens of the United States.
Our code (unlike the codes of France, and perhaps some other nations) makes no provision for loss or legal deprivation of citizenship. Once a citizen, whether natus or natus, (as Sir Edward Coke expresses it,) always a citizen, unless changed by the volition and act of the individual. Neither infancy nor madness nor crime can take away from the subject the quality of citizen. And our laws do, in express terms, declare women and children to be citizens. See, for one instance, the act of Congress of February 10, 1855, 10 Stat., 604.
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 upon the fact of home, birth, and upon the laws of the several States. Even in the important matter of electing members of Congress it does no more than provide that “the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in the several States shall have the qualifications requisite for the electors of the most numerous branch of the State legislature.” Here the word citizen is not mentioned, and it is a legal fact, known of course to all lawyers and publicists, that the constitutions of several of the States, in specifying the qualifications of electors, do altogether omit and exclude the words citizen and citizenship. will refer, in proof, to but three instances.
1. The constitution of Massachusetts, adopted in 1779–’80, in article 4 of section 3, cap. 1, provides as follows: “Every male person, being twenty-one years of age, and resident of a particular town in this Commonwealth for the space of one year next preceding, having a freehold estate within the same town of the annual income of three pounds, or any estate of the value of sixty pounds, shall have the right to vote in the choice of representative or representatives for said town.”
2. The constitution of North Carolina, adopted in 1776, after a bill of rights, and after reciting that “whereas allegiance and protection are, in their nature, reciprocal, and the one should of right be refused where the other is withdrawn,” declares, in section 8, that all freemen at the age of twenty-one years, who have been inhabitants of any one county within the State twelvemonths immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the house of commons for the county in which he resides.”
3. The constitution of Illinois, adopted in 1818, in article 2, section 27, declares that “in all elections all white male inhabitants above the age of twenty-one years, having resided in the State six months next preceding the election, shall enjoy the right of an elector; but no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election.”
These three constitutions belong to States widely separated in geographical position, varying greatly from each other in habits, manners, and pursuits, having different climates, soils, productions, and domestic institutions, and yet not one of the three has made citizenship a necessary qualification for a voter; all three of them exclude all females, but only one of them (Illinois) has excluded the black man from the right of suffrage. And it is historically true that the practice has conformed to the theory of those constitutions respectively; for, without regard to citizenship, the colored man has not voted in Illinois, and freemen of all colors have voted in North Carolina and Massachusetts.
From all this it is manifest that American citizenship does not necessarily depend upon nor co-exist with the legal capacity to hold office, and the right of suffrage, either or both of them. The Constitution of the United States, as I have said, does not define citizenship; neither does it declare who may vote, nor who may hold office, except in regard to a few of the highest national functionaries. And the several States, as far as I know, in exercising that power act independently, and without any controlling authority over them, and hence it follows that there is no limit to their power in that particular but their own prudence and discretion; and therefore we are not surprised to find these faculties of voting and holding office are not uniform in the different States, but are made to depend upon a variety of facts, purely discretionary, such as age, sex, race, color, property, residence in a particular place, and length of residence there.
On this point, then, I conclude that no person in the United States did ever exercise the right of suffrage in virtue of the naked, unassisted fact of citizenship. In every instance the right depends upon some additional fact and cumulative qualification, which may as perfectly exist without as with citizenship.
I am aware that some of our most learned lawyers and able writers have allowed themselves to speak upon this subject in loose and indeterminate language. They speak “of all the rights, privileges, and immunities guaranteed by the Constitution to the citizen,” without telling us what they are. They speak of a man’s citizenship as defective and imperfect, because he is supposed not to have “all the civil rights,” (all the jura civitatis, as expressed by one of my predecessors,) without telling what particular [Page 1370] 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 particular 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 body-politic 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-horn citizens, (Constitution, article 2, § 5,) not made by law or otherwise, but horn. And this class is the large majority—in fact, the mass of our citizens—for 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—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making 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, ex 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 [Page 1371] 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 horn 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 in due 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 [Page 1372] cavil upon this point. Article 6: “This Constitution, and the laws of the United States which shall he 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.