APPENDIX I.o

A.

JUDICIAL DETERMINATIONS OF QUESTIONS OF CITIZENSHIP.

In the preparation of this memorandum the aim has been to collect cases dealing with the fact of citizenship and to omit cases adjudicating the rights and duties of citizens. Whenever it has seemed necessary to gives cases involving these latter subjects, they have been limited as much as possible. Effort has been made to present a fairly full collection of cases bearing on the fact of citizenship, but no attempt has been made to analyze and get out the fundamental theories of citizenship, more than was absolutely necessary for the classification. Indeed, the purpose has been to make merely a classified digest of the cases. Moreover, the classification used has not been adopted with a view to supporting any theory of citizenship, but because it seemed at the same time the most familiar as well as the most scientific. No hesitancy has been felt in the use of dicta, since it has been sought not only to give the express adjudications on the subject, but also the judicial thought on the matter.

It has not been thought advisable to enter into any discussion as to what is citizenship, this question being largely theoretical and one upon which a wide difference of view might exist. It may not, however, be amiss to begin the subject by a quotation from a decision of the Supreme Court defining the word "citizen:

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States" and " natural-born citizen of the United States." By the original Constitution every Representative in Congress is required to have been "seven years a citizen of the United States" and every Senator to have been "nine years a citizen of the United States;" and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." The fourteenth article of amendment, besides declaring 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," also declares that "no State shall make or enforce any law which shall abridge the privileges or 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." And the fifteenth article of amendment declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.”

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this respect, as in other respects, it must be interpreted in the light of the common

This compilation aims to present the judicial construction and interpretation of the various sections and provisions of the statutes relating to citizenship and naturalization which have been the subject of judicial decision.

Inasmuch as the naturalization act of June 29, 1906, has not as yet been passed upon by the courts, it is not referred to in the text. It has, however, been printed in the appendix of laws hereunto annexed, so that all the statutes bearing upon the questions of citzenship and naturalization may be included.

law, the principles and history of which were familiarly known to the framers of the Constitution. (Per Mr. Justice Gray in United States v. Wong Kim Ark, 1897, 169 U. S., 649, 654.)

In a subsequent paragraph of the same opinion the court sets forth the two methods by which citizenship of the United States may be acquired. He says:

The fourteenth amendment of the Constitution, in the declaration 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." contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States, can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts. (P. 702.)

And in the earlier case of Minor v. Happersett (1874), 21 Wall., 162, 167, Mr. Chief Justice Waite made the same classification:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.

This classification, which, as suggested above, has the merit of being not only scientific, but the one usually followed, has been adopted in this report, and accordingly the matter following will be divided into two parts," Citizenship by birth" and "Citizenship by naturalization." with a third part discussing more or less briefly the question of "Loss of citizenship, by expatriation or otherwise."

However, before proceeding to a discussion of the subject according to such plan two preliminary questions should be disposed of.

FIRST. STATE AND FEDERAL CITIZENSHIP.

From the very earliest decisions the courts have recognized two citizenships perfectly distinct, and, from some viewpoints, wholly independent one of the other. Indeed, the Constitution itself recognized and provided for such citizenship, Article III, section 2, as does also the language of the fourteenth amendment. (See Slaughterhouse cases, 1872, 16 Wall., 36, 73.") This point, therefore, needs little consideration beyond naming decisions in which the matter was more or less directly adjudicated or referred to. It may be said, however, that certainly as early as 1795 the fact that a man might be a citizen both of a State and of the United States was recognized by the Supreme Court of the United States. (Talbot v.

It seems thoroughly well recognized that from these two citizenships there arise two sets of rights, one set being within the protection of the Federal Government under the fourteenth amendment and the other left to regulation by the State. (See Ex parte Kinney, 1879, 3 Hughes, 1, and cases cited; Cully v. B. & O. R. R., 1876, id., 536; and also the early case of Corfield v. Coryell, 1823, 4 Wash. C. C., 371, 380, where the rights of citizens of the United States are comprehensively but briefly sketched.

Jansen, 1795, 3 Dall., 133. And see Gassies v. Ballon, 1832, 6 Peters, 759.) The principle has received a rather careful statement in the case of United States v. Cruikshank, 1785, 92 U. S., 542, 550:

**

The people of the United States resident within any State are subject to two governments: one State and the other national; but there need be no conflict between the two. The powers which one possesses the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. This does not, however, necessarily imply that the two governments possess powers in common or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties and claims protection from both. The citizen can not complain because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts from disobedience to its laws. In return he can demand protection from each within its own jurisdiction."

As suggested above, the courts have always recognized the distinction between the two citizenships. In Talbot . Jansen, supra, it appeared that provision had been made by a State constitution for renunciation of allegiance to the State. While recognizing the efficacy of this so far as it concerned the State, the Supreme Court held that it had no effect as to the party's allegiance to the United States. Therefore a State citizenship may be lost by renunciation, or, as it appears from Prentice . Brannan, 2 Blatch., 162, by a residence outside the State, without in any way affecting the national citizenship. Moreover, it has been held that one who, during the late rebellion, espoused the cause of the South and maintained his allegiance to the State did not and could not by this act renounce his citizenship of the United States. (Planters' Bank v. St. John, 1869, 1 Woods, 585.') While some courts have, indeed, scouted the idea that there can be a citizen of a State unless he be also a citizen of the United States (Lanz v. Randall, 1876, 4 Dill., 428), and hence that to become citizen of a State he must comply with the national naturalization laws, op cit.. this result has not always been reached, however, for in the case of In re Wehlitz, 1863, 16 Wis., 443, where the facts before the court were similar to that in the case last cited, the court held that one might be a citizen of a State although not a citizen of the United States, and hence to become a citizen of a State it was not necessary that the national naturalization laws should have been complied with This later seems to be the general view. (See Desbois's case, 1812, 2 Martin, 185; United States v. Laverty, 1813, 3 Martin, 733; American Insurance Co. v. Canter, 1828, 1 Peters, 511.)

The question of State citizenship, as distinct from national citizenship, is most frequently raised in connection with two classes of cases. First, those in which it is sought to compel State authorities to per

This question of dual allegiance is, of course, thoroughly well recognized, and it has been held also that the allegiance to the United States is paramount. (United States v. Greiner, 1861, 4 Phila., 396, 402. And see involving this principle, but not deciding questions of citizenship. Cohens v. Virginia, 1821, 6 Wheat.. 264, 381; Ableman v. Booth, 1858, 21 How., 506, 517.)

For other cases bearing on the status of residents in the South during the civil war, see The Peterhoff, 1866, 5 Wall., 28; U. S. v. Greiner, 1861, 4 Phil., 396; Hoskins v. Gentry, 1865, 12 Duv. (63 Ky.), 285; Zacharie e. Godfrey, 1869, 99 Am. Dec., 506, and note.

mit an applicant to vote on the theory that suffrage is the inalienable right of a citizen, and, secondly, those in which the question to be determined is whether or not a party is a citizen of the United States or of a State within the clauses of the Constitution relating to jurisdiction of the Federal courts.

First. The right of suffrage. While some courts have insisted that such was one of the distinguishing marks of citizenship, if not of national citizenship, then of citizenship of the State (see In re Wehlitz, 1863, 16 Wis., 443), yet the courts almost unanimously have denied that the two had any necessary connection, and that not only might persons who are not citizens exercise the elective franchise (City of Minneapolis v. Reum, 1893, 56 Fed., 576), but that citizens as such were not entitled to vote, not even within the provisions of the fourteenth amendment. A number of cases bearing on the subject are collected in note below.a

Second. The question of citizenship as affecting jurisdiction.This point may, for the purposes of this report, be briefly disposed of. In the case of Prentiss e. Brannon, 1851, 2 Blatch., 162, already referred to, it appeared that a party had left the United States and had gone to Canada, where he had lived for a number of years. It was held that although he had lost, by such residence, his State citizenship, within the meaning of the constitutional provision which permits citizens of different States to bring suit in the Federal courts, he had not lost his national citizenship. The same result was reached under similar circumstances (except that one party was still resident abroad) in Picquet v. Swan, 1828, 5 Mason, 35; and see as to the residence of corporations, Catlett & Keith. Insurance Co., 1826, 1 Paine C. C., 594.

a See holding that the elective franchise is not a necessary incident of citizenship: 1. As to negroes-Smith v. Moody, 1866, 26 Ind., 299; United States v. Crosby, 1871, 1 Hughes, 448; Anthony . Holderman, 1871, 7 Kans.. 50; Van Valkenburg v. Brown, 1872, 43 Cal., 42; United States v. Petersburg, 3 Hughes, 493; United States v. Reese, 1875, 92 U. S., 214; and see Opinions of Justices, 1857, 44 Me., 507. 2. As to women-Spencer v. Board, 1873, 8 D. C., 169; United States v. Anthony, 1873, 11 Blatch., 200; Minor v. Happersett, 1874. 21 Wall., 162; Dorsey v. Brigham, 177 Ill., 250; Gougar v. Timberlake, 1896, 148 Ind., 38; and see also People v. Oldtown, 1878, 88 Ill., 202; also Ware v. Wisner, 1883, 50 Fed., 310, holding that women are citizens. 3. As to minors-Lyons v. Cunningham, 1884, 66 Cal., 42; and see People v. Oldtown, supra. 4. As to Indians, holding that though they may have voted, this did not make them citizens-Laurent v. State, 1863, 1 Kans., 313, 315. 5. As to aliens-Spragins v. Houghton, 1840, 2 Seam. (3 Ill.), 377; In re Wehlitz, 1863, 16 Wis., 443; United States v. Hirschfield, 1876, 13 Blatch.. 330; Lanz v. Randall, 1876, 4 Dill., 425; City of Minneapolis v. Reum, 1893, 56 Fed., 576. An averment in pleading that one was "a citizen and resident" was held not equivalent to a specific charge that he was an "elector "-Blanck v. Pausch, 1885, 113 II., 60. That the elective franchise is not a right of citizenship is shown also by the fact that the courts have repeatedly sustained legislation which provides for a certain prior residence before voting in the county, town, and precinct. See Anthony v. Holderman, 1871, 7 Kans., 50. And for the imposition of other requirements for voting see Anderson v. Baker, 1865, 23 Md., 531; People v. De La Guerra, 1870, 40 Cal., 311.

In McGregor v. McGregor, 1864, 1 Keyes, 133, 136, the question was raised as to whether or not a citizen leaving State A and going into State B, where he became a permanent resident, thereby losing his citizenship of State A. was an alien within the meaning of the statutes and the Constitution relating to jurisdiction of Federal courts. In discussing the matter Denio, J., said:

"The respondent is a native of this State, but, at the time of applying for letters testamentary, was domiciled in the State of Iowa. He was not an

This same question has frequently arisen with relation to the citizenship of an inhabitant of the District of Columbia, whether such a one was a citizen of a State within the meaning of the Constitution, and the answer has uniformly been in the negative, though the courts have in most cases at the same time either expressly asserted or assumed that the parties were, notwithstanding this, citizens of the United States. (See Hepburn v. Ellzey, 1805, 2 Cranch, 445; Reily. Lamar, 1805, 2 Cr., 344; Westcott's Lessee v. Fairfield, 1811, Peters C. C., 45; Vasse v. Mifflin, 1825, 4 Wash. C. C., 519; Barney v. Baltimore City, 1867, 6 Wall., 280; Cissel v. McDonald, 1879, 16 Blatch., 150.)

The same result has been reached where the question has arisen in connection with an inhabitant of a Territory. (Corporation of New Orleans . Winter, 1816, 1 Wheat., 91. See American Ins. Co. v. Canter, 1828, 1 Peters, 511.) And in Sinks v. Reese, 1869, 19 Ohio St., 306, the same ruling was declared with reference to residents of Government reservations.

SECOND. STATUS OF RESIDENTS.

The question must arise as to whether or not one may gain or lose citizenship in the nation by residence in or away from a country. Some phases of this are discussed in connection with questions of expatriation, part 3, but a few preliminary statements seem desirable.

It is entirely clear that one who resides in a country assumes a certain relationship to it which differs from that assumed toward any other foreign nation, and that on its part the nation in which he resides stands in a relationship toward its alien residents different from that which it has toward nonresident aliens. The relationship existing between a country and an alien resident was explained by Mr. Chief Justice Gray in United States v. Wong Kim Ark, 1897, 169 U. S., 649, 655, as follows:

Such allegiance and protection were mutual-as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem-and where not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.

inhabitant of this State, but he was not, in any sense known to the law, an alien. It would be quite preposterous to say that a native-born citizen of this State becomes an alien to its laws by going to reside in another of the States in the Union, or even in a foreign country. (See Ludlam v. Ludlam, June term, 1863). * *** The provision of the Federal Constitution which de clares that the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States, precludes the objection of alienage from being set up in any State against a person born in any of the United States, and constitutes all such persons, for all legal purposes, citizens of each State in the Federal Union. (Art. 4, sec. 2; Lemon v. The People, 20 N. Y., 562, 607.) They are not, it is true, resident citizens of any State except the one in which they are domiciled, and can not claim any rights belonging peculiarly to residents out of their own State. But the statutory disability attaches only to such as are both aliens and nonresidents. There is no reason to suppose that the term alien was used in this statute in any other than its legal sense. That is, at the same time, its popular meaning, and the word when used simply and without any qualifying language can not have any other signification than the one which the law and common parlance affixes to it. This alleged ground of disqualification can not, therefore, be sustained."