NOTES UPON LECTURE VI.

Wide influence of

THE relations between the individual and the LECTURE VI. State throughout Christendom, (Russia perhaps the American docexcepted,) have been vastly modified by the trine of citizeninfluence of the naturalization laws and treaties

of the United States.

ship.

tem.

When the war of the American Revolution broke The feudal sysout, the feudal relation still prevailed between the sovereign and the subject, modified to some extent by the progress of civilization, and by the influences of modern thought. The duties of the subject and the rights of the sovereign under that system sprang from occupation of the soil by the former under tenure from the latter, either by the actual tenant, or by the lord to whom he was feudally attached.

In this respect feudalism differed from the Roman law. civil law. The Roman citizen's rights came from the State, of which he formed an integral part. The common sovereignty was lodged in the people as a whole. "The Emperor Julian said that States are immortal, that is, that they may be so because a People is that kind of body which consists of separate elements, but is subject to one name, and has one habit, as Plutarch says as one spirit, Paulus. This spirit or habit in a people is the full and perfect common

LECTURE VI.
Roman law.

Relations of the citizen to the

State in America.

Interstate citizen

by the Articles of Confederation.

participation of civil life; the first production of which is the sovereignty, the bond by which the State is held together, the vital breath drawn by so many thousands, as Seneca speaks.":

1

Thus, in the social system which prevailed under the civil law, the citizen was but an integral part of the State; while, under the feudal system he was the subject of the sovereign, who was master of the soil. Under the American system his duties to the State survive, marked and defined, however, by positive law; but he has the right to determine for himself who shall be that sovereign, and in whose service those duties shall be performed.

The first act of Congress, pointing towards its subsequent policy in the matter of citizenship, is to be found in the Articles of Confederation.

The Fourth Article of the Articles of Confedship established eration provided that, "the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States."

Of this the historian says: "In the republics of Greece, citizenship had in theory been confined to a body of kindred families, which formed an hereditary caste, a multitudinous aristocracy. Such a system could have no permanent vital

1 Grotius, De jure Belli et Pacis, Lib. 2, c. 9, § 3. Whewell's ed. Cambridge, 1853, vol. 2, p. 2.

ship established

Confederation.

ity; and the Greek republics, as the Italian LECTURE VI. republics in after ages, died out for want of Interstate citizencitizens. America adopted the principle of the by the Articles of all-embracing unity of society. As the American territory was that of the old thirteen Colonies, so the free people residing upon it formed the free people of the United States. . . . That which gave reality to the Union was the article which secured to the free inhabitants' of each of the States all privileges and immunities of free citizens in the several States.' Congress appeared to shun the term 'people of the United States.' It is nowhere found in their Articles of Confederation, and rarely and only accidentally in their votes; yet by this act they constituted the free inhabitants of the different States one people. Congress, while it left the regulation of the elective franchise to the judg ment of each State in the Articles of Confederation, in its votes and its treaties with other powers, reckoned all the free inhabitants, without distinction of ancestry, creed, or color, as subjects or citizens. But America, though the best representative of the social and political acquisitions of the eighteenth century, was not the parent of the idea in modern civilization that man is a constituent member of the State of his birth, irrespective of his ancestry. It was already the public law of Christendom.”1

This provision of the Articles of Confederation was incorporated into the Constitution; and to

1 Bancroft's History, Last Revise, vol. 5, pp. 200, 206, 207.

LECTURE VI.
Naturalization

laws.

Relation of the

zen to the govern

ion

h th

in

act

it was added the power to establish a un: forE
system of naturalization. Congress exerc
this power in March, 1790. Under this 'n b
two years' previous residence was requi red.
aile
This was repealed in January, 1795, and a 1
vious declaration of intention after an at lea
three years' residence was required, and a resi-
dence of at least five years before naturalization.2
Further changes were made from time to time,
and the law as it now stands is codified in the
Revised Statutes of the United States.3

ใน

These laws, however, led up to the doctrine naturalized citi- of expatriation and citizenship as now underment of his native stood; but that doctrine was not accepted by other powers, and was by no means insisted upon, in its full extent, by our own political officers.

country.

In the wars of the French revolution and the French empire, Great Britain, as Mr. Justice Miller points out, entirely disregarded them. In the midst of the negotiations for peace which terminated in the Treaty of Ghent, Mr. Alexander Baring, when urged by Mr. Gallatin to lend his official influence to the conclusion of a treaty on the basis desired by the United States, answered: "I must freely confess that, highly as I value a state of peace and harmony with America, I am so sensible of the danger to our naval power from anything like an unrestricted admission of your principles, that I should almost incline to think it safer to consider

st

all

an American as an inevitable concomitant of a LECTURE VI. French war, and to provide for it accordingly." naturalized citiAnd when the treaty of peace was made and zen to the governpromulgated, it was found to contain absolutely nothing about this dispute, which, as Mr. Justice Miller has justly said, was one of the main causes of the war.

Meanwhile, as this country increased in population, largely in consequence of emigration, the same old question arose, but in a different form, as pointed out by Mr. Justice Miller. The Prussian army, which was still kept up practically on the basis devised by Stein after the battle of Jena, demanded military duty from Prussians who had been to America, and had been naturalized there as citizens of the United States, and had returned to Prussia. To a person who, under such circumstances claimed his protection as Minister of the United States at Berlin, Mr. Wheaton answered, declining to interfere, upon the ground that, on the applicant's return to his native country, his former nationality reverted. Mr. Everett and Mr. Webster substantially agreed with Mr. Wheaton. Mr. Cass took a somewhat more advanced position; but until the spring and summer of 1868, the question may be fairly regarded as an open one.

ment of his native country.

On the 22d of February in that year Mr. The naturalizaBancroft concluded at Berlin the first of a series tion treaties. of such treaties, a list of which will be found in

1 Baring to Gallatin, M., Ms. Department of State. Notes and Treaties (ed. 1889) p. 1327.