Mr. Wells could go backwards a century in the way that Mr. West moved forward, and were to find himself in a society of the economists of one hundred years ago, his ideas and economic doctrines would be in as full harmony with the society in which he would find himself as Mr. West's usages and tastes in the matter of clothing were in the society into which he entered. His companions would never discover from his reasoning or from his economic axioms or doctrines that they had a stranger in their midst who had lived all his life in a later century, and who was familiar with the wonderful changes in its economic conditions.

SIMON N. PATTEN.

CITIZENSHIP OF THE UNITED STATES.

THE

HE question has sometimes arisen: Who, upon the wellestablished principles of general law, are the citizens of a modern state? Not necessarily all of the inhabitants; for in the case of slavery (assuming, for the purposes of illustration, slavery still to exist in parts of the world more or less civilized), the slaves are inhabitants but not citizens; and in the case of subject peoples, like the Indian tribes in the United States, these subject peoples are inhabitants but not citizens; and in the case of resident representatives or citizens of foreign states and their families, said representatives or citizens and their families are inhabitants but they are not citizens. A comprehensive definition of citizenship in the abstract is that by Mr. Justice McLean in the celebrated Dred Scott case. He says: "The most general and appropriate definition of the term citizen is a freeman." This is true in the sense that all citizens are freemen, but not in the sense (alone important here) that all freemen are citizens. For foreigners in a state may be freemen but they are not citizens. Recognizing the distinction between the inhabitants of a state and its citizens, Mr. Caleb Cushing defines the latter as "the sovereign, constituent ingredients of the government," which of course only freemen, native or naturalized, can be. To the same effect speaks Mr. Chief Justice Waite in United States vs. Cruikshank. His words are:

Citizens are members of the political community to which they belong. They are the people who compose the community and who in their associated capacity have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.

The question, however, may be seriously put, whether in this definition of citizenship by Mr. Cushing and the late chief jus

tice an important distinction has not been wholly overlooked. By predicating citizenship of those persons who constitute the "sovereign ingredients" of the state, who compose the "political community," "-do they not restrict it to electors, to those invested with the suffrage? The political community in a state differs from the civil community. It is less numerically, but it comprehends greater privileges. Membership therein implies the possession not only of the civil rights, but of the privilege of participating in the sovereignty; whereas membership in the civil community alone implies merely the possession of the civil rights, i.e. the rights of personal security, of personal liberty and of private property. That neither Mr. Caleb Cushing nor Chief Justice Waite intended by his language thus to narrow the scope of citizenship is plain. The thought of each evidently was that sovereignty resides in the civil as well as in the political community. But the better opinion is otherwise. Thus says Sir Henry Maine:

Nor again can sovereignty be said to reside in the entire community an error to which French writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals except the entirety of the people ought to be recognized as superior; but a dogma like this is something very different from the statement of a fact; and the truth is that no government corresponding with the description exists in the world. All polities are either monarchies or oligarchies, since even in the most popular women and minors are excluded from political functions.1

It would seem then that the citizens of a state would be more accurately defined as simply its members; it not mattering in the least whether they be of the political or of the civil community or of both. If of the first, they will belong to the class of active citizens, the voting and office-holding class; and if of the second, only to the class of passive citizens, the class of women and minors. Individuals belonging to neither of these classes are aliens. As such they may be either permanently resident in a state (as, for instance, a subject people), or only temporarily resident there (as, for instance, visiting foreigners), 1 Papers, etc. (London, 1855), vol. I, part I, p. 30.

or altogether non-resident. Moreover, "citizenship" and "state membership" being convertible terms, the citizenship of a parent may truthfully be said to attach immediately at birth to a child born out of the jurisdiction of the parent's state; for by a temporary absence from his state an individual manifestly does not lose his membership therein.

The fact that in certain commonwealths of our own Union. aliens are permitted to vote for United States officials-in other words are permitted to belong to the political community in the United States is an anomaly. It is a question discussed in the sequel, whether or not the United States is characterized by the further anomaly that persons not members of either its civil or its political community (the Indians) possess, under the fourteenth amendment to the constitution, the rights of citizenship; and by the still further anomaly, under the same amendment, that children born abroad, whose parents are citizens of the United States, are not themselves citizens thereof.

I.

Any discussion of United States citizenship naturally falls into two parts, corresponding to two historical periods: the first extending from the time of the adoption of the constitution of the United States to the time of the ratification of the fourteenth amendment thereto; and the second, from the time of the ratification of said amendment to the present. During the early part of the first period, citizenship of the United States was a theme not widely canvassed. The reasons for this are obvious. In the first place, citizenship of the several commonwealths was then a theme relatively of much greater importance. Little anxiety was felt for the maintenance of the privileges and immunities of citizenship of the United States, provided those of citizenship of the several commonwealths were maintained. In the second place, the existence of such a thing as citizenship of the United States, in the sense of a citizenship independent of the citizenship of the several commonwealths, was hardly admitted. The federal constitution contained no definition of citizenship of the United States. It contained the provision

that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," but this was simply a declaration to the several commonwealths that whatever rights they granted to their own citizens, those same rights, neither greater nor less, must they grant within their jurisdiction to citizens of other commonwealths. Under this provision a person going from one commonwealth into another acquired no other status than that held by the race or class to which he belonged in the commonwealth into which he went. Special privileges enjoyed by citizens in their own commonwealths were not secured to them in other commonwealths by this clause of the constitution.

That in some sense a citizenship of the United States existed was nevertheless apparent from the words of the constitution itself; such citizenship, though not defined in the constitution, being expressly recognized in the provision thereof that a person to be eligible to the position of representative in Congress must have been "seven years a citizen of the United States"; also in the provision that a person to be eligible to the position of a senator in Congress must have been "nine years a citizen of the United States"; and finally in the provision that no person shall be president of the United States "excepting a natural born citizen or a citizen of the United States at the time of the adoption of the constitution." Concerning citizenship of the United States, Story wrote in his commentaries :

It has always been well understood among jurists in this country that the citizens of each state constitute the body politic of each community, called the people of the states; and that the citizens of each state in the Union are ipso facto citizens of the United States.

Upon an explanation so extremely guarded—not to say uncertain had this question rested for forty years.

About the year 1830 began a time of more energetic discussion of citizenship of the United States. This discussion was incident to that of a broader theme, namely, the nature of the Union; but it was none the less thoroughgoing, at least on the side of state rights. The position taken by that side was