immunities of citizens of the United States? likewise survived. This question, however, received an answer from the Supreme Court of the United States in the Slaughter House cases, decided in 1873, and is therefore no longer open in the same sense with the question first referred to. By the Slaughter House decision the privileges and immunities appurtenant to citizenship of the United States were determined to be different and distinct from those appurtenant to state citizenship. The latter were described as those privileges and immunities which are fundamental in character; Which belong of right to the citizens of all free governments and which have at all times been enjoyed by citizens of the several states which compose the Union from the time of their becoming free, independent and sovereign; . . . [as, for example,] protection by the government ; . . . with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject nevertheless to such restrictions as the government may justly prescribe for the general good of the whole. In contrast with privileges and immunities such as these, the privileges and immunities of citizenship of the United States were described as merely those special and limited privileges and immunities arising from the special and limited scope, under the constitution, of the federal or United States authority. Examples were given as follows: To come to the seat of government to assert any claim upon that government, to transact any business with it, to seek its protection, to share its offices, to engage in administering its functions. Free access to its seaports, through which all operations of foreign commerce are conducted; to the sub-treasuries, land offices and courts of justice in the several states. To demand the care and protection of the federal government over life, liberty and property when on the high seas or within the jurisdiction of a foreign government. To peaceably assemble and petition for redress of grievances. To use the navigable waters of the United States, however they may penetrate the territory of the several states. To become a citizen of any one of the several states by a bona-fide residence therein. That the privileges and immunities of citizenship of the United States were not held to include the fundamental rights of life, liberty and property was the cause of much criticism of the decision in the Slaughter House cases and of earnest protest against it. Without these rights, citizenship of the United States was deemed by many a status void alike of substantial rights and of honor. Some idea of the revolutionary lengths to which the United States Supreme Court was thought to have gone, in the definition of citizenship of the United States given in the Slaughter House cases, may be gained from the expressions of Mr. Justice Field, Mr. Justice Bradley and Mr. Justice Swayne in their dissenting opinions. Said Mr. Justice Field: It [the fourteenth amendment] assumes that there are . . . . . privileges and immunities which belong of right to citizens as such and ordains that they shall not be abridged by state legislation. If this inhibition has no references to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no state could ever have interfered by its laws, and no constitutional provision was required to inhibit such interference. ... But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence. Said Mr. Justice Bradley: I think sufficient has been said to show that citizenship is not an empty name, but that, in this country at least, it has connected with it certain rights, privileges and immunities of the greatest importance. And to say that these rights and immunities attach only to state citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people. Said Mr. Justice Swayne: The privileges and immunities of a citizen of the United States include, among other things, the fundamental rights of life, liberty and property, and also the rights which pertain to him by reason of his membership of a nation. . . . Without . . . authority [to secure the above enumerated rights and privileges] any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats by a limitation not anticipated the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation, it turns, as it were, what was meant for bread into a stone. That the decision in the Slaughter House cases defeated by a limitation not anticipated the intent of those by whom the fourteenth amendment was framed is doubtless true. The fact that Mr. Trumbull's interpretation of the scope of citizenship of the United States—an interpretation rejected by the court in these cases-was acquiesced in by virtually the whole of Congress shows it to be so. What the Supreme Court did by the Slaughter House decision was so to take advantage of the wording of the fourteenth amendment, in certain clauses, as to preserve to the several states at least some of those powers which they had for eighty years possessed, and without which their very existence, in any considerable sense, must terminate. Said Mr. Justice Miller, giving the opinion of the court: Was it the purpose of the fourteenth amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned [i.e. of personal security, personal liberty and private property] from the states to the federal government? And where it declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the states? All this and more must follow, if the proposition of the plaintiffs in error be sound. . . . The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress; . . . when in fact it radically changes the whole theory of the relations of the state and federal governments to each other and of both these governments to the people; the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt. The stress laid by the court in the Slaughter House cases upon the distinct and separate character of citizenship of the United States and citizenship of a state suggests a query not raised or considered in those cases, viz.: Recognizing it as a fact that a person can be a citizen of the United States and at the same time not be a citizen of a state, is the converse of the proposition true? Can a person be a citizen of a state and at the same time not be a citizen of the United States? In other words, is it true, necessarily, that a citizen of a state is ipso facto a citizen of the United States? Let Mr. Benjamin Abbott reply. He says: If citizenship can, since the fourteenth amendment, be forfeited, as unquestionably it might be before; if a loss of citizenship may be imposed by a statute as a penalty for an offence; it would seem that, under possible legislation, a person convicted under an act of Congress imposing disfranchisement might cease to be a citizen of the Union, yet, because the offence was against the United States alone or because there was no corresponding penal law in his state, he might be deemed to continue a citizen of the state.1 But is it not possible in another way for a person to be a citizen of a state without being a citizen of the United States? Is it not within the power of a state to grant to an alien residing within its limits all the rights and privileges enjoyed by its native-born or naturalized citizens, so far as such rights and privileges are under the control of that state, in other words, to naturalize an alien to the extent of its own exclusive jurisdiction? If so, he would be a citizen of that state, yet not a citizen of the United States; for he could only become the latter by complying with the requirements of some uniform rule of naturalization prescribed by the United States. Said the United States Supreme Court, through Chief Justice Taney, in the Dred Scott case: 1 Law Dictionary, vol. I, p. 226. We must not confound the rights of citizenship which a state may confer within its own limits and the rights of citizenship as a member of the Union. He [a person] may have all the rights and privileges of a citizen of a state and yet not be entitled to the rights and privileges of a citizen in any other state. . . . Each state may . . . confer them [i.e. the rights and privileges of state citizenship] upon an alien or any one it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other The rights which he would acquire would be restricted to the state which gave them. . . . No state since the adoption of the constitution can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a state under the federal government, although, so far as the state alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the constitution and laws of the state attached to that character. But lest the preceding opinion from the Dred Scott case be unfavorably regarded by some on account of its source, a brief passage from Mr. John M. Pomeroy's Constitutional Law (paragraph 390) will be quoted. It is as follows: While it is settled, then, upon principle, authority and continuous practice, that the Congress of the United States has exclusive authority. to make rules for naturalization, it must not be understood that the states are deprived of all jurisdiction to legislate respecting the rights and duties of aliens. They may permit or forbid persons of alien birth to hold, acquire or transmit property; to vote at state or national elections, etc. These capacities do not belong to United States citizenship as such. Congress would transgress its powers were it to assume to make rules upon these subjects. It is a question of some speculative interest, whether citizenship of the United States, as defined in the Slaughter House cases, existed prior to the adoption of the fourteenth amendment to the constitution or was created by it. If the views of Mr. Calhoun or of Mr. Curtis as to the scope of citizenship of the United States were, at the time expressed, well founded, citizenship of the United States was created by the fourteenth amendment. For, according to the views of each of these dis |