APPENDIX M.

EVOLUTION OF AMERICAN CITIZENSHIP.

PAPER BY WILLIAM L. SCRUGGS, OF ATLANTA.

Some of our Latin-American neighbors object to our colloquial phrase "American Citizenship." They tell us there are sixteen other independent republics on this Continent, and that a citizen of any one of these may as rightfully lay claim to the title of "American." They seem to forget that we preceded them into the great family of nations by nearly half a century, and that we came in under the name and title of "The United States of America "-not "The United States of North America," as they delight to call us. Of course by "American Citizenship" we mean specifically citizenship of the United States; and by "The United States" we mean a single national entity, as distinguished from a league or compact between sovereign states.

That there can be no national entity without people, is a selfevident proposition. There must be an association of persons; an association of persons for their mutual protection, advantage, and general welfare; and they must be bound together by the tie of common obedience to some central authority. For without such common obedience, there is anarchy; and anarchy excludes the idea of national unity.

Each individual thus associated and bound together becomes a member of the nation; and, for mere convenience, it has been found. necessary to give a name to this membership. The object is to indicate by title each individual, and his relation to the community of which he is a member.

For this purpose we employ the terms "citizen" and "subject." The choice between them, and the specific or technical meaning to be ascribed to the one selected, is the prerogative of every independent State. But in their general sense, the two words are (213)

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convertible terms. International law knows no distinction between them-neither of them signifying anything more than individual membership of the nation.

For some reason which does not clearly appear of record, our British ancestors, the founders of our government, chose the alien term "citizen" instead of the indigenous and more familiar word "subject," as the title of membership of the new nation. This was a radical departure from their traditional forms of speech, and could hardly have been capricious or accidental. There must have been a purpose in it. And the natural inference is that, by the term "citizen" they meant to indicate a self-governing state. Yet this is only an inference. For they made no attempt to define the word "citizen"; nor did they indicate any choice between its various definitions then current.

And this, too, must have been the result of design rather than oversight. For not one of those definitions would have accurately described the condition of the people of this country; while to have formulated a new definition, applicable to future conditions, would have required a prescience quite beyond human reason. So, with prudent forethought, the Fathers left the technical meaning of the word to be evolved with the progressive unfoldment of a national public sentiment.

Take, for illustration, Aristotle's definition, which was the one then generally accepted, namely, that "a citizen is one to whom belongs the right of taking part in both the deliberative and judicial proceedings of the community of which he is a member." This seems to exclude all female members of the community; and if, in order to avoid this, we assume, as we reasonably may, that the pronoun "he" is here employed in a generic sense, we come to a still greater difficulty. For we then have the naked proposition that every citizen, without regard to sex or condition, has the right of participation in both the legislative and judicial proceedings of the government, which, as a matter of fact, was never true in any age or country. It was never true even in the most licentious of the ancient democracies. It was never true in the most democratic of the ancient republics. Nor is it true of any country of modern times. All Greek citizens were neither legislators nor magistrates, much less both at the same time. All Roman citizens were not even qualified electors, much less lawgivers and judges. In the

Dutch republic, the right to vote was never coextensive with citizenship. In Switzerland less than half the citizens are voters. In France, the cradle of modern democracy, every French woman is a citizen, yet no French woman has ever voted. In the Latin-American republics, where there has been the nearest approach to universal suffrage, no woman was ever an elector. And in our own country, where women are recognized citizens, no woman is a legal voter in virtue of her citizenship.

Again, traditional forms of speech often survive the reasons for their use, and thus become either meaningless or misleading. No one, for instance, ever thinks of applying the title of "citizen" to a British subject; no one ever thinks of applying the term "subject " to an American citizen. As a reason for this distinction, we are told that the subject is merely governed, whereas the citizen also govBut if this was ever true, it is no longer true. In England, many subjects also govern-in that sense they are "citizens" according to the generally accepted definition of a hundred years ago. In the United States many citizens are merely governed-in that sense they are "subjects " according to the same definition.

erns.

It results, then, that in the process of time, there have been evolved two classes of citizens and two classes of subjects, namely, one which has and one which has not the right of suffrage. And since the two similar classes sustain identical relations to their respective governments, the dissimilarity of title involves merely a distinction without a difference. Any native-born or naturalized person of either sex, entitled to full protection in the exercise and enjoyment of all the natural or so-called private rights, as distinguished from political rights and franchises, is a citizen or subject -the choice between the terms being no longer material.

One of the peculiar features, then, of our constitutional and political history is, that, up to about thirty-three years ago, there had never been any attempt at an authentic definition of the phrase citizenship of the United States." We searched in vain for such a definition. It could be found neither in the Constitution, nor in our legislative annals, nor in our judicial decisions, nor in the consentaneous action of any two of the coordinate departments of the government. In its elements and its details, citizenship of the United States seems to have been as little understood, and as much open to speculative criticism, as it was at the foundation of the

government. Eighty years of experience had taught us neither the exact meaning of the term nor any very clear conception of the thing itself. We were justly proud of the title of American citizen, and appreciated its benefits; but whether it meant membership of a nation, or membership of a constituent commonwealth, we hardly knew.

Our first attempt at an authentic definition of the phrase was made as late as July, 1868-just thirty-three years ago. It will be found in Article XIV. of the Constitution, usually cited as "the Fourteenth Amendment." It is therein declared 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." And the Codes of the several States, conforming to this definition, each now declares, in substance, that "all citizens of the United States residing in the State" are citizens of the State-thus excluding by implication all persons who are not citizens of the United States.

This was the turning point in our national history. It marked the close of a distinct era in the evolution of American citizenship. It created, for the first time, a central authority demanding the personal obedience of every individual citizen, and thus made us a nation in fact as well as in name. Up to that time it had been a mooted question whether a person could be a citizen of the United States except as he was such incidentally by reason of his citizenship of one of the constituent commonwealths or states. Consequently, whether his primary allegiance was not due to the State, even as against the authority of the federal government. And, corollary to this, whether a person born and residing in the District of Columbia or other mere territory of the Union, although in the United States, and subject to its jurisdiction, was in reality a citizen of the United States. The Fourteenth Amendment settled this vexed question at once and forever by establishing a citizenship of the United States independent of State lines. A person may now be a citizen of the United States without being a citizen of any one of the several States; but by no conceivable possibility can he be a citizen of a particular State without being first a citizen of the United States.

I am aware that there are still differences of opinion on this latter point. It is pointed out that in some of the States--as, for

instance, in Kansas and Minnesota, and some half-dozen others-a resident alien enjoys a quasi-citizenship. After having made a preliminary declaration of intention to become a citizen of the United States, he is admitted to the privileges of the ballot in the State wherein he resides, and this is said to be the highest evidence of citizenship. But this anomalous condition of affairs is, it seems to me, of very doubtful legality. Certainly, the national government can take no cognizance of it in passing upon the right of such person to protection as an American citizen. He is not a member of either State or nation; for a mere declaration of intention to become a citizen does not, in itself, make him a citizen. It is not in the power of the State to naturalize him. Nor can a State alter, modify, or nullify a naturalization law of Congress.

It is likewise true that our national Supreme Court has declared, incidentally, that "there is a citizenship of the United States and a citizenship of the respective States." The Fourteenth Amendment declares the same thing directly: a citizen of the United States is also a citizen of the particular State" wherein he resides." He owes it a secondary allegiance. He is amenable to its laws in so far as they are in accord with the Constitution and laws of the United States. It may tax his person and property. It may deprive him of his property for non-payment of taxes. It may, by judicial process, deprive him of life or liberty for violations of its criminal code. But it can not expatriate him; that is an attribute of sovereignty pertaining only to the nation. Nor can the State deprive him of any one of the natural rights incident to his membership of the nation. He is, first of all, a citizen of the United States, and, as such, may invoke its power against an unconstitutional act of the State legislature.

On the other hand, it is well to remember that there still remain certain constitutional rights of the particular States, especially with respect to the suffrage, which can not be ignored. Thus, for instance, under an existing law of Congress, an alien resident of a territory may become a qualified elector therein. He may vote at the first election, and, under certain specified conditions, he may vote at subsequent elections. But suppose he remains an alien resident after the territory has been admitted to full statehood? It is then a question well worth considering whether, in the absence of some enabling act of the State legislature, he can be deemed a legally