being everywhere dependent upon the will of the State within whose limits he might be found. If the rights incident to citizenship in the enlarged sense can in any case be maintained in reference to foreign jurisdictions, they would, in the instance of those who hold them under the State law, be maintained by the national authority, and in relations with foreign governments such persons would claim the rights belonging to citizenship in the enlarged sense in the character of persons owing allegiance to the national authority. In this view, the citizen of a State may be said to possess civil privileges as a citizen of the United States; being, of course, always a citizen of the United States in that sense in which citizen and subject are equivalent terms of international law.' But since in each State his individual and relative rights would depend upon the State powers, he could not be said to possess the constituent privileges of his citizenship under a national law; though his subjection to the powers held by the national government and his allegiance to the nation continues irrespectively of the will of the people of the several State of which he is an inhabitant. The object of this provision of the fourth Article is to give something of national citizenship under a quasi-international law.

These distinctions must be borne in mind when in determining who are citizens under this provision it is said, as by Story, in his Comm. § 1806: "The intention of this clause was to confer on them, if one may so say, a general citizenship ;"

'It is in this sense only that a citizen of one of the States can claim the char acter of a citizen of the United States in foreign countries, or that the national government, in a passport, asks foreign governments to recognize any one as such citizen. The refusal of the State Department to give the ordinary passport to negroes (spoken of by Judge Taney, 19 How. 421, as supported by Mr. Cushing; but I have not found any opinion on that point in the published Opinions of Atty. Gen'l), seems utterly without reason under any known theory of international action, or to have been dictated by zeal on the part of those in office to justify the States which insist that negroes are not citizens within the purview of this provision of the fourth Article. Mr. Legare, 4 Op U. S. Atty. Gen'l 147, without discussing how far a negro "may be a citizen in the highest sense of the word-that is, one who enjoys in the fullest manner all the jura civitatis under the Constitution of the U. S.," was of opinion that the purpose of the pre-emption law of 1841 was only to exclude aliens; that free negroes have at least the rights of denizens, and are capable of all the rights which mere birth under the ligeance of a country bestows."

2 But this general citizenship is a condition of privilege which is the effect of this provision. Judge Taney would have a general citizenship exist which should

and "every citizen of a State is ipso facto a citizen of the United States."

654. The terms of the second and third section of the first Article of the Constitution, declaring that none shall be eligible as a Representative who has not been "seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen," nor as Senator unless for nine years "a citizen of the United States," and an inhabitant of the State, and of the first section of the second Article, that "no person except a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution," and fourteen years "a resident within the United States," shall be eligible as President-have been referred to as showing the meaning of the words "the citizens of each State," in this clause. Thus Judge Curtis, in 19 Howard, 571, 572,' refers to the last of these with that purpose, arguing from it that citizen in the fourth Article is, likewise, equivalent to free subject, native or naturalized.

"Citizen of the United States," may well be concluded to have this meaning in these clauses of the Constitution, because the domiciled inhabitants of the States are spoken of in their relation to the national powers. But it is not necessary to admit that "citizens of each State" means citizens in this sense only; for, under the powers held by the States, citizenship may be more than the simple condition of free domiciled inhabitant, native or naturalized.

$655. As Congress has never legislated in reference to this provision, there is no legislative action which can be referred to as contemporary construction except the State laws already noted. But acts of Congress, under powers given by other parts of the Constitution, especially such as were closely subsequent to its adoption, may perhaps be referred to as an index of the intention in this provision of those from whom it derives its authority, or of its spirit and meaning. Though, as the

limit this provision, and as there is no general condition of privilege except that created by this clause, he is obliged to invent one. See also the note on Judge Curtis's argument. Ante, p. 308.

This portion of Judge Curtis's argument was omitted in citing from his opinion. Ante, p. 301.

validity of such acts depends upon the Constitution, only such acts can here be referred to as have been always regarded as within the powers of Congress.

It is on this principle only that it would be proper to refer to the naturalization laws of Congress declaring who may become citizens of the United States,' or to the act of Congress of 1803, To prevent the importation of slaves into the United States, which provides that "no master of a vessel or other person shall import any negro, mulatto, or other person of color, not a native, a citizen, or registered seaman of the United States;" or to the act declaring that "every free, able-bodied white citizen," may be enrolled in the militia, or the act of 1813, 2 St. U. S. 809, that it should not "thereafter be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States."

From this last only it might be inferred that "citizen of the United States," in the public law of the nation, means more than domiciled inhabitant, native or naturalized. But it is too remote in time to be referred to as showing the intention of the

'Judge Taney, 19 Howard, 419, refers to act of 1793, which "confines the right of becoming citizens 'to aliens being free white persons.'" These acts enable aliens to become citizens. But they rest upon the power to declare a uniform rule of naturalization. Therefore, the alien becomes citizen only in acquiring the character he would have had if born in the United States. By discriminating the whites among aliens as alone capable of becoming citizens, the act does not declare that, of native born persons, only whites are citizens; even if citizen in the act means more than native or naturalized subject. It seems hard to deny that a negro born in the United States needs no naturalization to make him a negro born in the United States. But Judge Taney, ib. 420, thought it necessary to deny that Congress had power to naturalize Indians and negroes" born in this country." See ante, p. 294.

2 See Jay's Inquiry, 41. Curtis, J., 19 How. 587. Ante, p. 313, note. This statute is not cited by Judge Taney. The word native is in all probability used here to designate a slave born in the United States who is brought back from some foreign country to which he had been carried.

3

* Judge Taney, 19 How. 420:-"The word white is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the government, whether they were slave or free; but it is repudiated and rejected from the duties of citizenship in marked language." Most persons would think that this discrimination of white citizens indicated that there might be citizens of some other complexion. See Jay's Inquiry, p. 41, arguing from this and similar discriminations.

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Constitution, or even the usus loquendi of the time of its adoption. As to the other acts, and all similar enactments, it must be objected that they speak of citizens in a relation towards the powers held by the national government, and therefore use the word only as equivalent to domiciled inhabitant, native or naturalized. Therefore, they do not indicate who is citizen of a State, unless as they may show that, by the usus loquendi, citizen means, wherever used in the Constitution, any such domiciled inhabitant.

§ 656. There does not seem to be anything in the argument of construction by intention which can either change or confirm the interpretation already arrived at.' And it is very obvious that any further construction will be in all probability nothing but construction according to present views of legislative policy.*

For which purpose it is referred to by Judge Taney, 19 How. 421; ante, p. 294; and by Mr. Wirt, 1 Op. U. S. Atty. Gen'l, 506, where, after arguing from the disabilities of free negroes in Virginia that they are not citizens of the United States, he also holds that those terms in acts of Congress and the Constitution are not applicable to any free negroes, because, if they were, they should be held to have the privileges and immunities of citizens in other States under the fourth Article, and be eligible even to the Presidency.

Mr. Brightly, in his Digest, p. 842, under the act of 1820, § 4, declaring any citizen of the United States, engaged in the slave trade, punishable as a pirate, notes from United States v. Darhaud, as of 3 Wallace, Jr. (not published):-"Citizenship within the meaning of this act is not what may be called citizenship of domicil, nor is it such citizenship as has been claimed by diplomatic assertion, under our naturalization laws, for one who has formally declared his intention to become a citizen without having proceeded further; but it is that citizenship which has a plain, simple, every-day meaning; that unequivocal relation between every American and his country which binds him to allegiance and pledges to him protection." So in Talbot v. Jansen, 3 Dallas, 152, one was held to be a citizen of the United States who was not a citizen of any particular State.

Mr. Westlake, an English writer, in a recent work on Private International Law, 26, says:-" The American use of the term citizen is indistinct. A citizenship of a particular State is recognized, as well as one of the Union; and the term is sometimes used to express the enjoyment of full internal political rights, so as to be denied to persons of color, who, even in many of the free States, are not suf fered to hold office or vote tor public officers. But it is only with the citizenship of the United States that we have in this place to do, and with that in the largest sense; for we are here considering the distribution of men between nations which have a recognized standing by each others' side; and all public relations are reserved to the Union by its Constitution; wherefore a slave or a person of color, whatever his rights at home, is internationally a member of the body called the United States, since that is the government under which he stands in relation to foreigners."

3

Ante, § 650.

What may be styled the argument ab inconvenienti is not uncommonly employed in cases wherein the rights of the negro inhabitants are considered. In

§ 657. It would seem that a question might hereafter be raised of the capacity for citizenship, in view of this provision of some, who are neither of the negro nor of the European or white race. Chief Justice Taney said that a person of the aboriginal or Indian race who "should leave his tribe or nation and take up his abode with the white population, would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people." In the same place he has said that Indians may be naturalized by Congress. Whether this involves the proposition that no person of the Indian race can be a citizen of the United States unless so naturalized, may however be doubted. If any of that race may be such a citizen, or a citizen of a State, without such naturalization, they are probably such as are no longer living among a tribe recognized as a corporate body either by the national government or by the State within whose limits they may be.'

The question may also arise in cases of persons born in this country of parents of some Asiatic or Polynesian race."

Hobbs v. Fogg, 6 Watts, 559, 560, the doctrine-that the possession of citizenship which is to be recognized under this provision is determined by the law of the State of domicil only-is indicated, though in a singular manner. It is there held that a domiciled free negro cannot be a freeman or elector in Pennsylvania (ante, p, 72, n.), because it would be very inconvenient to expect other States to recognize him as a citizen in view of this provision. But this is not equal to Judge Taney's arguing (19 How. 423, ante, p. 296) that negroes cannot be citizens in view of this clause because, if they were, they would be entitled to its benefits!

19 Howard, 404. Ante, p. 281, note.

The act of Congress, for the relief of the Stockbridge Indians in Wisconsin Territory, V. St. U. S. 647, provides for a division of the tribe lands, after which, by sec. 7, they are declared citizens of the United States and entitled to all the privileges of such. They are not said in the act to be naturalized. The question has been raised whether an Indian or person of mixed blood, “retaining tribal relations," can at the same time enjoy the privileges of a “citizen of the United States," under the Land laws. Mr. Cushing, in Op. July 5, 1856, 7 Op. of Atty. Gen., 746, holds the negative; and further (as in Op. of May 23, 1855, ib. 175), that a white who may have joined himself to a tribe, ceases to be a citizen of the U. S. The paper is of interest, particularly as the writer recognizes the inevitable negro as remotely interested in the question. Mr. Cushing also affirms the more general proposition-" In fine, no person of the race of the Indians is a citizen of the U. S. by right of local birth. It is an incapacity of his race:" and holds it certain that the "civilized persons of Indian descent not members of any tribe," who, by the Constitution of Wisconsin may vote, are not citizens of the United States. But in what sense, then, were the Stockbridge Indians made citizens?

In respect to a State in which they may live, Indians, whether they are members of a tribe or not, are, as a general rule, in a peculiar condition of tutelage. 2 Kent's Comm. 73, and cases.

So if naturalization, under the present law of Congress, limiting it to "free white persons," were claimed for aliens of those races or of the negro races, or