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Argument for Defendant in Error.
the “inhabitants' shall be incorporated, ... and admitted as soon as possible
to the enjoyment of all the rights, advantages and immunities of citizens of the United States, and in the meantime,” etc. Neither the circumstances nor the language make the case analogous or similar to the Nebraska case.
The Nebraska enabling act empowers only the inhabitants who are qualified voters, free, white male inhabitants above the age of twenty-one years, who are already citizens of the United States, or have declared their intention to become such, to prepare a constitution; and provides that this constitution shall be preliminary to the admission of the State into the Union, not preliminary to the admission of the inhabitants to citizenship of the United States.
The closing paragraph of section 5 of the enabling act, referring to the former language of the same section, which relates to the adoption or rejection of the constitution by the qualified voters, which closing paragraph assumes that the constitution has been adopted, says: “Whereupon it shall be the duty of the President of the United States to issue his proclamation declaring the State admitted into the Union on an equal footing with the original States;” i. e. the new State from that time stands in line with every other State in the Union, with all the privileges and under all the burdens of a state government. No mention is made of the inhabitants; no statement is made that the inhabitants are admitted to citizenship as in the treaty of Paris. No foreigners or aliens are adopted, nor are any made citizens of the United States.
All the inhabitants of the Territory who were aliens when the same was made a State remained aliens, and no privileges were accorded them which they would not have enjoyed before had they removed from the Territory to a State already admitted. The distinction made in the constitution and the legislation of that State between citizens and aliens is at war with the suggestion that all the inhabitants of Nebraska were citizens of Nebraska and made ipso facto citizens of the United States by the admission of the State into the Union. How can such legislation be harmonized with the argument that all
Opinion of the Court.
inhabitants were citizens? If all inhabitants were citizens, why was there a provision in the Constitution and in the statutes providing that aliens should file their declaration of intention to become citizens of the United States before they were entitled either to vote or to hold office? To say that the aliens inhabiting the Territory when the State was admitted into the Union were thereby made citizens of the United States is in conflict with the political history of this country from the time the first State was admitted into the Union down to the present day.
The Organic Act, the enabling act, the act admitting the State, are each and all simple legislative exertions of the powers of Congress, and in no correct sense treaties or the exercise of the treaty-making power. For the reasons herein before stated we submit in conclusion of this part of the discussion, that there is no analogy between the case of the acquisition by treaty of foreign territory and the status of the inhabitants of the Territory so acquired and the case of the national ownership of the public domain and the status of the people residing therein with the consent of the national government, which first erects a territorial government and subsequently makes provision to admit the Territory thus erected as a State of the Union.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
(1) In State of Nebraska ex rel. Glenn v. Stein, 13 Nebraska, 529, it was held that where the State at large was interested in a proceeding in quo warranto, the attorney general was, as at common law, the proper person to sinstitute it, but when the information was filed by an individual to oust the incumbent from an office and install the relator therein, it was a personal remedy on behalf of the individual claiming to be aggrieved, and the State was but a nominal party.
In the case at bar the attorney general refused to file the information, and the relator obtained leave to prosecute it in the name of the State, but on his own behalf, as under the statute he was authorized to do. Compiled Stat. Neb. 1891, c. 71, p. 626; Code Civ. Proced. Tit. 23, p. 954.
Opinion of the Court.
By section 2 of article V of the constitution of the State of Nebraska, in force November 1, 1875, it was provided: “No person shall be eligible to the office of governor, or lieutenant governor, who shall not have attained the age of thirty years,
, and been for two years next preceding his election a citizen of the United States and of this State. None of the officers of the executive department shall be eligible to any other State office during the period for which they have been elected.” Comp. Stat. Neb. 1891, p. 26.
In United States v. Cruikshank, 92 U.S. 542, 549, Mr. Chief Justice Waite, delivering the opinion of the court, said: “Citizens are the 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.” There is no attempt in this definition, which was entirely sufficient for the argument, to exclude those members of the State who are citizens in the sense of participation in civil rights, though not in the exercise of political functions.
The Constitution provides that no person shall be a representative who has not been “seven years a citizen of the United States,” (Art. I, sec. 2, par. 2;) that no person shall be a senator who has not been “nine years a citizen of the United States,” (Art. I, sec. 3, par. 3 ;) that no person shall be eligible to the office of President of the United States “except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution,” (Art. II, sec. 1, par. 4 ;)
4 and that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," (Art. IV, sec. 2, par. 1.) And Congress is empowered “to establish an uniform rule of naturalization,” (Art. I, sec. 8, par. 4.) But prior to the adoption of the Fourteenth Amendment there was no definition of citizenship of the United States in the instrument.
Mr. Justice Story, in his Commentaries on the Constitution, says: “Every citizen of a State is ipso facto a citizen of the
Opinion of the Court.
United States." (Sec. 1693.) And this is the view expressed by Mr. Rawle in his work on the Constitution. (c. 9, pp. 85, 86.) Mr. Justice Curtis, in Dred Scott v. Sandford, 19 How. 393, 576, expressed the opinion that under the Constitution of the United States "every free person born on the soil of a State, who is a citizen of that State by force of its constitution or laws, is also a citizen of the United States.” And Mr. Justice Swayne, in The Slaughter-House Cases, 16 Wall. 36, 126, declared that “a citizen of a State is ipso facto a citizen of the United States.” But in Dred Scott v. Sandford, 19 How. 393, 404, Mr. Chief Justice Taney, delivering the opinion of the court, said: “The words 'people of the United States' and citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the “sovereign people' and every citizen is one of this people, and a constituent member of this sovereignty.
In discussing this question, 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. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in
any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one ii thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in
Opinion of the Court.
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 States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, 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."
The Fourteenth Amendment reads : “ 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. No State shall make or enforce any law which shall abridge the privileges or 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."
In The Slaughter-House Cases, 16 Wall. 36, it was held by this court that the first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States, and citizenship of the States, and it recognized the distinction between citizenship of a State and citizenship of the United States by those definitions ; that the privileges and immunities of citizens of the States embrace generally those fundamental civil rights for the security and establishment of which organized society was instituted, and which remain, with certain exceptions mentioned in the Federal Constitution, under the care of the State governments; while the privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national