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stand also for ideas which are in their nature correlative. And their mutual relation is something beyond that of individuals to an aggregate or mass. The citizens are the primary elements upon which the state, an ideal, but distinct and organized body, exercising sovereign powers, is, by free and mutual recognition, constituted. They are the persons by whom, and for whom, the state exists. The recognition of rightful authority in the state, is the essence of the citizen's allegiance. The recognition by the state, in word or deed, of the origin and end of its authority, as from and for the citizen, establishes his claims upon it, and so defines his legal and distinctive rights. And we say here too, his distinctive rights; since there may in fact be persons over whom a state, even a free state, exercises an arbitrary and self-assumed power, limited only by its own will, and against natural right; such are slaves; and there may and must be persons, without its territorial limits, external to it and not members in it, and having no natural right to put themselves in that relation and to claim a participation in its privileges. Unless, therefore, words are more important than things, that part of our fundamental law which declares the rights of individuals, considered as members of the state, defines the essential and distinctive rights of citizens, even if that particular word is not once used in such declaration. But that it is actually used, and for that specific purpose, is indicated by such articles as the following:— The preamble to the constitution of Massachusetts declares, that the body politic is formed by “a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by the same laws for the common good.” In the constitution of Kentucky, “the representatives of the people of the state in convention assembled,
to secure to all the citizens thereof, the right of life, liberty, and property, and of pursuing happiness, do ordain and establish,” &c. The constitution of New York, Art. VII, Sec. 1, declares, that “No member of this state shall be disfranchised, or deprived of any rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” The bill of rights of New Hampshire, Art. XIV, declares that “Every citizen of this state ought to find a certain remedy, by having recourse to the laws, for all wrongs or injuries which he may receive, in person, property, or character. He ought to obtain right and justice freely, without being obliged to purchase it, —completely, and without any denial,—promptly, and without any delay; conformably to the laws.” That of Massachusetts contains a similar provision, except that the expression ‘subject of this commonwealth’ is used instead of “citizen of this state.” Nearly all the state constitutions declare, that “Every citizen may freely write, speak, and publish his sentiments on all subjects, being responsible for the abuse of that privilege.”
* These articles are borrowed substantially from the famous twenty-ninth chapter of Magna Charta, which Blackstone calls “the foundation of the liberty of Englishmen.” It is, being interpreted, in these words: “No free man (liber homo) shall be taken, or imprisoned, or disseised of his freehold, or privileges, (libertatibus,) or free customs, or be outlawed, or exiled, or in any manner destroyed, neither will we pass upon him, nor condemn him, unless by the lawful judgment of his peers, or by the law of the land. To no man will we sell, to no man deny, or delay, right or justice.” This guaranty, in some form or other, enters into the fundamental law of all our states, and of the United States. The expression “liber homo' has been variously rendered by the words freeman, citizen, subject, member of the community, person, and man. In the Southern constitutions, for obvious reasons, the term ‘freeman' has been generally preferred.
By the constitution of Alabama, Art. I, Sec. 27, “Emigration from this state shall not be prohibited, nor shall any citizen be exiled.”
There is no force in the objection, that these are asserted as the rights of men, of human beings, and not of citizens. They are most truly the rights of men; but nevertheless of men under government; and the declaration of them has force as law only against the particular government whose laws declare them. Our laws declare that they are rights which all men ought to enjoy, and which our citizens shall enjoy.
It may be further said, though the objection has been in substance anticipated, that the possession of such rights is not distinctive of citizens, inasmuch as we recognize and protect them also in aliens.—Obeying the dictates of courtesy towards friendly nations, of a wise and liberal policy, and, in the absence of especial cause taking them out of that category, of natural reason and justice, we in some measure do; but by no means as matter of unqualified right. In common with all other nations, we assert the prerogative, belonging to us as a distinct community, and essential to our national sovereignty, of admitting to our territories or excluding from them, at our sole discretion, foreigners, the subjects or citizens of other states. We determine at what point of time, if at all, and upon what conditions, they shall acquire the right to be considered members of the state. Up to that point, their enjoyment of natural personal rights is limited by conflict with the perfect rights of the state and its proper members; of the extent of which conflict, and of its limiting effect, the state itself is from the nature of the case the sole judge; its sovereign powers being only restrained by its relations to other states, by virtue of which their members may have acquired rights recognized by the natural or conven
tional law of nations.” As a matter of fact, our treatment of aliens has been marked by a liberality of which history has furnished few examples. Yet even here, most if not all of our states have at some period of their history found it necessary to exercise their acknowledged power of putting aliens under a different law from that which governs their own citizens. In many of them, the common law restriction as to the power of holding real estate is in some modified form to this day continued.t And in case of a war, the subjects by birth of a hostile power, not being naturalized, might be compelled to quit the United States, or if permitted to remain, to comply with such requirements as the policy of the nation might dictate. But against all such exercise of discretionary power, our bills of rights protect and secure, distinctively, the rights of citizens. Furthermore, the rights thus asserted are rights to which all persons owing allegiance are entitled by virtue of their allegiance. For the fact, as it exists in our law, is not more clearly recognized than the reason of the fact. The doctrine of allegiance and hs incidents, though it has come to us as positive law from the mother country, is not a mere relic of English feudalism; in all that is essential, it only affirms and adopts the principles which enlightened reason discovers in the unwritten code of nature. And both agree in declaring, that the duty of protection on the part of the government in respect of fundamental rights, and of allegiance and obedience on the part of the subject, L obedience especially to the laws defining his active duties to the state, in the way of service and contribu
* It may be observed, that in making these statements we have omitted to notice, since it is not necessary to our main purpose, the dirisun imperium between the general and state governments. f See Kent, Vol. II, pp. 53–63.
tion,-are in their nature correlative, and conditioned each upon the other. Our inquiries, therefore, conducted through the several departments of natural and international law, the law and practice under the Constitution, and the municipal law of the states, lead to the conclusion, that the rights and duties which distinguish the status of the citizen, appertain to all free persons born in a state, and so owing allegiance by birth to the state and the United States;–unless indeed we venture on the desperate alternative of calling in question that cardinal doctrine of the natural and the common law, the doctrine of natural allegiance. In a somewhat noted case in this state,” involving the question whether free blacks are citizens, it was urged, apparently to show that the doctrine of allegiance, and of course
citizenship, by birth, was not univer
sal; that slaves and Indians, though born in our territories, are confessedly not citizens. The exception, if it can be called one, is only apparent. It is such an exception as is said to prove the rule; for it shows that the rule fails where the reason fails, and no where else. The slave, it is universally conceded, is not and can not be a member of the state. He is a mere appendage to a member. Deprived, by the mere will and force of the state, of essential personal rights, he is by his condition legally incapable of allegiance, as of any other personal duty. Even obedience is not to him a duty, but a necessity. Under no theory of government does his subjection to the state depend upon any consent of his own, express or implied; unless it can be implied from unresisting submission to irresistible power. The laws which determine his relation to the state are to him
simply commands, as much so as the fiat of his or his ancestor's conqueror, whose mere will and force, subverting his own, first consigned him to a distant servitude.” A person in such condition, though born within the territorial limits of a state, is to that ideal body a thing altogether foreign and external. The members of Indian tribes, too, are not members of our states. They are born within the territories, but not within the ligeance of our governments. They constitute distinct, though domestic and dependent communities, which our laws do not, proprio vigore, reach and bind. This was expressly decided by the Supreme Court of the United States, in the case of Worcester vs. the State of Georgia, f overruling the attempt of that state to extend her jurisdiction over the tribes within her borders. It must be observed, that in the various kinds of legal usage to which we have appealed, to determine what is involved in the word citizen, the nature of the case requires scrupulous accuracy in the use of that term. For in every instance it is possible, and in many the fact is of constant occurrence, that legal rights, litigated between parties, may depend on the construction to be given to it. And obviously, it is only such a usage that can determine its legal force and application. The essence of the status of citizenship consists in the rights and duties it involves. What these are, mere dictionary authority can not decide. Popular usage has given to the term in question various meanings more or less extensive; and we should seek in vain to derive from these any definite, safe, or consistent conclusions as to its meaning and effect in law. And not unfrequently, even in our constitutions and laws, the term is used with little regard to strict accuracy. But it may be observed, that in such cases, legal accuracy is not requisite, and is not professed. Thus, the constitution of Pennsylvania, Art. I, Sec. 2, provides, that “The representatives shall be chosen annually by the citizens of Philadelphia and of the respective counties.” In this case, and in a few others of like character, the term is used in a loose sense to distinguish the body of actual voters. It is merely a convenient designation, borrowed from popular usage, of a particular class of persons, whose rights as such do not however depend upon the use of that term, but upon the possession of certain known qualifications, expressly pointed out by the law. Nor was it ever supposed that these are the only persons in Pennsylvania who can sue as citizens of that state in the Federal Courts, or who are protect
* Miss Crandall's case, 10 Connecticut Reports, 340. 53
* It is a great mistake to suppose that the essence of slavery in American law is a mere right of property in the services of the slave. The master perhaps has nothing more; but the laws can not give him that right, without asserting, in the state itself, an arbitrary and absolute powcr over the slave. That power inay be very mildly and humanely erercised, but it is there, and practically asserted, in the enlightened and Christian state, as fully as in the veriest despot. Its actual exercise, being discretionary, by no means limits its potential exercise. Under the Federal Constitution, the relation of master and slave is recognized only as an existing fact under state laws. To the United States, considered as a distinct sovereignty, acting directly upon all persons within its limits, the slave, in common with all others, sustains only a Koi." relation. (See opinion of Judge 1'Lean, 15 Peters, 506–7) That composite State, by virtue of this relation, has a kind of claim upon the allegiance, services, and obedience of the slave, controlled ordinarily by the prior claim of the master under the state law, but taking effect as a perfect right, the instant the slave is emancipated. (See remark of Chancellor Kent hereafter quoted at page 426.) To this residuary right we may refer the power claimed for the United States, in a case of the last o as in the perils of war, to emancipate slaves and employ them in its armies. Such a power is asserted by John Quincy Adams; we doubt whether it would be conceded by Mr. Calhoun. f 6Peters, 516; see also 20 Johnson,710.
ed by the guaranty of the article in discussion. We conclude, then, that wherever definite personal rights, recognized by the law, depend upon the use of the term citizen, whether in the law of nations, as received and applied in this country, in trea. ties, in the Constitution of the United States, in the practice of the Federal Courts, or in the constitutions and bills of rights of the states, it applies to all persons, who, being born under the jurisdiction of a state or the United States, or having been duly naturalized, owe allegiance and its incidents according to the doctrine of the common law. We state this broad proposition, declaring what we conceive to be the legal application of the term, with entire confidence, and challenge the production of an instance, in the whole range of law to which it refers, in which it has a different use, unless the contested clause in the Constitution furnishes such an instance. But an exception to a usage so uniform and universal, is not to be taken for granted without the most positive and convincing proof, establishing at once the fact of a change of meaning, and the necessity for it, by evidence at least as decisive as that which establishes the general rule. We know of but two attempts, in any reported cases, to define and apply the term in a different way; and we propose now to examine the reasoning upon which the judgments in those cases, that free persons of color were not citizens within the meaning of the contested clause, were respectively based. The first arose in Kentucky, and was decided by the Court of Appeals in that state in the year 1823." We quote nearly the whole opinion of the court:— “The term citizen is derived from the Latin word civis, and signifies in
* Reported, 1 Littell, 326.
its primary sense one who is vested with the freedom and privileges of a city.” “If we go back to Rome, whence the term citizen had its origin, we shall find in the illustrious period of her republic, that citizens were the highest class of subjects to whom the jus civitatis belonged, and that the jus civitatis conferred on those who were in possession of it all rights and privileges, civil, political, and religious.” “At an early period after the subversion of the Roman empire, when civilization had begun again to progress, the cities in every part of Europe, either by usurpation or concession from their sovereigns, obtained extraordinary privileges in addition to those which were common to the other subjects of their respective countries; and one who was invested with these extraordinary privileges, whether he was an inhabitant of the city or not, or whether he was born in it or not, was deemed a citizen.” “When the term came to be applied to the inhabitants of a state, it necessarily carried with it the same signification with respect to the privileges of the state ; and it is in this sense that the term is believed to be generally if not universally understood in the United States. This, indeed, evidently appears to be the sense in which the term is used in the clause of the Constitution under consideration; for the terms “privileges and immunities,” which are expressive of the object intended to be secured to the citizens of each state in every other, plainly import, according to the best usages of our language, something more than the ordinary rights of personal security and property, which, by the courtesy of all civilized nations, are extended to the citizens or subjects of other countries while they reside among them. No one can, therefore, in the correct sense of the term, be a citizen of the state who is not entitled, upon the terms prescribed by the institutions of the state, to all
the rights and privileges conferred by those institutions upon the highest class of society.” Now we do very much doubt whether the whole compass of our law furnishes an instance in which the term citizen can be proved to have the meaning here given to it. It has sometimes a larger, sometimes a more limited meaning, but never, to our knowledge, this meaning. The larger is the signification we have assigned ; the other includes merely the body of legal voters, as in an article already quoted.* The instances in which, beyond all pretense of doubt, the former meaning obtains, in treaties, in constitutions, and in reported cases, may be numbered by thousands; we have yet to be shown the first in
which there is room for a conjec
ture, that possibly the term may import only the possession of corporate privileges, after the manner in which a person is said to acquire the freedom of a city. And yet, “it is believed that this is the sense in which the term is generally if not universally understood in the United States " Taken as a statement of a fact, it has no shadow of foundation; taken as an analogy, to illustrate the general statement, it must go for what it is worth. But it is by no means true that the term has been introduced into our law by any such historical progress. That it has been so used as is here stated, is not questioned;f and particularly to distinguish a more favored, not of
* Penn. Const. Art. I, Sec. 2.
+ But the court was certainly mistaken in supposing that the ciris was by the Roman law, always and necessarily entitled to the possession of “all rights and privileges, civil, political, and religious.” Those who were so entitled were undoubtedly called, nur' 18&ny, the citizens, as they are sometimes with us; but there were persons, excluded from the suffragium and the honores, who were nevertheless cires, though “cives non optimo jure.' This fact is clearly stated by Savigny, who was called by Mr. Legare, (2 Howard's U. S. Rep. 522,) “the greatest