Weekly national intelligencer., 1857-06-27

constitution and laws. And my opinion ls that under
the Constitution of the United States every free person
born on the soil of State who citizen of that State
force of its constitution or laws is also citizen of the
/ United States.
will proceed to state the grounds of that opinion
The first section of the second article of the Constu
ton uses the language natural born citizen" 1t
thus assumes that citizenship may be acquired by birth.
Undoubtedly this language Of the Constitution used
in reference to that principle of public law, well under
stood in this country at the time of the adoption of the
Constitution which referred citizenship to the place OF
birth At the Declaration of Independence, and ever
SINCE the received general doctrine has been, in con-
formity with the common law, that free persons born
wi hin either of the colonies subjects of the
king that by the Declaration of Independence and the
consequent acquisition of sovereignty by the several
Sates all such persons ceased to be subjects and be-
came citizens of the several States except
of them were dsfranchsed by the Legislative power of
the States avaed themselves seasonaby of the right
adhere to the British Crown in the civil contest and
thus to continue British subjects Mclvan v. Coxe's
Lessee, Cranch 209; Ingis Sailors Snug Harbor,
8 Peters, p. SO; Shanks v Dupont Ibid, p. 242)
The Constitution having recognised the rule that per-
born within the several States citizens of the
/ United States, one of four things must be true
First That the Constitution itself has described what
persons shall shall not be citizens of the
United States; or
Second That it has empowered Congress to do
1hird That all free persons born within the several
States citizens of the United States; or,
Fourth That it is left each State determine what
free persons born within its limits shall be citizens of
If there be such thing citizenship of the United
States acquired by birth within the States which the
Constitution expressly recognises and denies,
then these four alternatives embrace the entire subject
and it only remains to select that which is true
That the Constitution itself has defined citizenship of
the United States by declaring what born within
the several States shall shall not be citizens of the
United States will not be pretended 1t tconains such
declaration We may dismiss the first alternative as
| without doubt unfounded.
Has it empowered Congress to enact what free per-
born within the several States shall or shall not be
citizens of the United States?
Before examining the various provisions of the Con-
stituton which may relate to this question: it is mpor
ant to consider for moment the substantial nature of
this inquiry 1t is, in effect, whether the Constitution
has empowered Congress to create privileged classes
within the States who alone be entitled the fran
chses and powers of citizenship of the United States
If be admitted that the Constitution has enabled Con-
gress to declare what free persons born within the
raj States shall be citizens of the United States it must
at the time be admitted that it is unlimited
power If this subject is within the control of Congress
it must depend wholly its discretion for certainly
limits of that discretion be found in the Constitution,
which is wholly silent concerning it, and the necessary
consequence that the Federal Government may select
classes of persons within the several States who alone
be entitled to the political privileges of citizenship
of the United States If this power exists what persons
born within the States may be President Vice Pres
dent of the United States members of either House
of Congress, hold any Office enjoy any privilege
whereof citizenship of the United States is necessary
qualification depend solely the will of Congress
BY virtue of it, though Congress grant title of
nobility. they may olgarchy, in whose hands
would be concentrated the entire power of the Federal
/ Government.
1t is substantive power. distinct in its nature from
all ohers capable of affecting only the relations of
the States to the General Government, but of controlling
the political condition of the people of the United States
Certainly ought find this power granted by the
Constitution at least by necessary inference be-
fore say it does not remain to the States the
people proceed therefore, to examine all the provi
haor
| this subject.
Among the powers expressly granted to Congress is
the power establish uniform rule of naturalization
1t is not doubted that this is power to prescribe rule
for the removal of the disabilities consequent foreign
birth To hold that it extends further than this would
do violence to the meaning of the term naturalization,
fixed in the common law, Co. Lit, a, l29 YES,
sen 2S6; Bl. Com, $685. and in the minds of those
who in framing adopting the Constitution
Vt in this of comforting alien and his
issue the rights and powers of native born citizen that
it was employed in the Declaration of Independence 1t
was in this It expounied in the Federalst NO.
42 has been understood by Congress- by the Judiciary
e Wheat, 259 269 8 Wash. B., 3l3, 322; II Wheat,
! 277,) and by commentators the Constitution 6
/ Storys Com. on Con-, 1-3 Rawle on Con-, 84-SS;
| fuckers Bl Com App, 255-259.
1t appears then, thas the only power expressly grant
ed to Congress to legislate concerning citizenship is
fined to the removal of the disabilities of foreign BIRTH
Whether there be any thing in the Constitution from
which broader power may be implied will best be seen
when come to examine the two other alternatives,
which whether all free persons born the soil of the
several States only such of them may be citizens
of each State respectively thereby citizens of the
United States. The last of these alternatives in my
judgment, contains the truth
Undoubtedly, as has already been said it is prnc
pie OF public law recognised by the Constitution ITSELF
that birth the soil of country both the duties
and confers the rights of citizenship But must be
membered that though the Constitution to form
Government and under it the United States of Amerc
to be united sovereign nation, which loyalty
and obedience on the side and from which protec
tion and privileges the other would be DUE yet the
several sovereign States whose people then citizens
not only continue in existence, but with powers
unimpaired except far they granted by the
people to the National Government
Among the powers unquestionably possessed by the
several States that of determining what persons
should and what persons should not be citizens 1t
practicable to confer the Government of the Union
this entire power. 1t embraced what may, well enough
for the purpose in vew be divided into three parts
First The power to remove the disabilities of alienage,
either by special acts in reference to each Individual
by establishing rule of naturalization to be admins
tered and applied by the courts. Second Determining
what persons should enjoy the privileges of citizenship
Third What nayeborn persons should be citizens of
the United States.
The frstnamed power, that of establishing uniform
rule of naturalization granted and here the grant,
according to its terms, stopped Constituting Constitu
on containing only limited and defined powers Of gov
ernmen the argument derived from this definite and
sriced power to establish rule of naturalization
be admitted to be exceedingly strong do not say it
is necessarily decisive 1t might be controlled by other
parts Of the Constitution But when this particular sub
ject of citizenship under consideration and in the
clause specially intended define the extent of power
concerning it, find particular part of this entire
pswer separated from the residue and conferred the