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Protection of the persons and property of aliens

Aliens are, by the general doctrines of public law, entitled to the same protection of persons and property that is enjoyed by the citizens of the State in which they are resident. In all cases, when injured, the same means of redress that are open to citizens must be given to them. But they are, of international right, entitled to no special privileges in these respects.5

623; 32 L. ed. 1068. That this power of exclusion may be exercised through administrative officers without judicial intervention, see Chapter LIV of this treatise. The leading cases are: Ekiu v. United States, 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146; Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905; Lem Moon Sing v. United States, 158 U. S. 538; 15 Sup. Ct. Rep. 967; 39 L. ed. 1082; Turner v. Williams, 194 U. S. 279; 24 Sup. Ct. Rep. 719; 48 L. ed. 979; United States v. Ju Toy, 198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040; Chin Low v. United States, 208 U. S. 8; 28 Sup. Ct. Rep. 201; 52 L. ed. 369.

5 See Moore, Digest of International Law, IV, 534, and authorities there cited. For a discussion of the constitutional and international questions arising out of injuries to resident aliens, see the author's larger treatise, § 126, and also the monograph by J. I. Chamberlain, The Position of the Federal Government of the United States in Regard to Crimes Committed Against Subjects of a Foreign Nation Within the States.

CHAPTER XII

Citizenship defined

AMERICAN CITIZENSHIP

The citizen or subject body of a State, regarded from the point of view of other States, that is, from the point of view of international law, constitutes one homogeneous body, all the members of which have the same status, the same rights and duties. Considered, however, from the point of view of the constitutional or municipal law of the State in question, they may be grouped into distinct classes, with differing public and private rights. Thus it is that in the constitutional jurisprudence of the United States are to be found at present not only a distinction between Federal and State citizenship, but, within the class of Federal citizenship (as including all those persons subject to the full sovereignty of the United States) a distinction between those who are "citizens of the United States" according to the meaning of the phrase as used in the Constitution of the United States, and those, who, though subjects of the United States, are not citizens within this narrower constitutional sense.1

State and Federal citizenship distinguished

As adopted, the Federal Constitution contained no definition of citizenship. Impliedly, however, it recog

1 In the opinions rendered in the case of Minor v. Happersett, 21 Wall. 162; 22 L. ed. 627, is to be found a general discussion of the subject of citizenship. See also a valuable congressional report on citizenship, H. R. Doc. 326, 59th Cong., 2d Session.

nized a State citizenship in that clause which provides that "citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." It would also seem to have recognized a Federal citizenship in the clauses providing that the President shall be "a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution"; that Senators and Representatives shall have been nine and seven years respectively citizens "of the United States"; and that Congress shall have the power to pass laws regulating the naturalization of aliens.

There has never been any question as to the existence under the Constitution of a distinction between State and Federal citizenship. The only dispute has been as to the relationship of the two. Prior to the argument of the Dred Scott case 2 there was surprisingly little discussion of this point. The opinion generally held seems, however, to have been that every citizen of a State was a citizen of the United States.

In effect, the Dred Scott decision held that native-born negroes, whether free or slave, living in the United States, though subjects of, that is, owing allegiance to, the United States, were not, and could not by either State or Federal action, be made "citizens" of the United States within the meaning of the Constitution.

The Fourteenth Amendment

In 1868 was adopted the Fourteenth Amendment which provides 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."

The two main purposes of this declaration undoubtedly

2 Scott v. Sandford, 19 How. 393; 15 L. ed. 691.

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were: (1) The assertion that national citizenship is primary and paramount to State citizenship, and (2), the granting of both national and State citizenship to the negro. That national citizenship was to be paramount was shown not only in the words just quoted, but in the further provision of the amendment that "no State shall make or enforce any law which shall abridge the privileges and 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."

3

In the Slaughter House Cases, as we have already learned, the Supreme Court held, in effect, that this amendment did not have the effect of absorbing State citizenship and its appurtenant rights into the national citizenship, but that the two remain as distinct as before. Upon this point the court declare that the clause defining citizenship provides that "persons may be citizens of the United States without regard to the citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States."

Since the adoption of the Fourteenth Amendment there has been no question that all persons (including negroes) born or naturalized in the United States become by mere residence in a State citizens of the State. Furthermore there is, and has been, no question that, as Taney says in his opinion in the Dred Scott case, a State cannot, by granting its citizenship to an alien, give him Federal citizenship or endow him with any of the privileges appertaining to that status, for the right of naturalization is, as will be seen, vested exclusively in the Federal Government.

3 16 Wall. 36; 21 L. ed. 394.

Inhabitants of the District of Columbia and of a Territory are not citizens of a State within the meaning of the Constitution. They are, however, of course, citizens of the United States.a

Wong Kim Ark case

In the case of United States v. Wong Kim Ark,5 decided in 1898, the Supreme Court was called upon to determine whether, under the terms of the Fourteenth Amendment, persons born in the United States of alien parents, are citizens of the United States. In this case the question was as to the citizenship of a child of Chinese parents who not only were not citizens of the United States, but could not, under the existing laws, become such by naturalization. In sustaining Ark's citizenship the court held that the clause of the Amendment declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," is but declaratory of the common-law principle unreservedly accepted in England since Calvin's case (the case of Postnati, decided in 1608) and in the United States since the Declaration of Independence, that all persons, irrespective of the nationality of their parents, born within the territorial limits of a State, are, ipso facto, citizens of that State. The court admitted that the principle of the Roman law according to which the citizenship follows that of the parent, irrespective of the place of birth, has been accepted by certain of the European nations, but denied that this principle had become a true and universal rule of international law, or, if it had, that it had superseded the rule of the common law.

4 Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332; American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242.

5 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

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