issue writs of habeas corpus "in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they being subjects or citizens of a foreign State and domiciled therein, shall be committed or confined, or in custody, under or by any authority of law, or process founded thereon, of the United States, or of any of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission or order or sanction of any foreign State or Sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof." 11

The constitutionality of this act can scarcely be questioned. In so far as the United States admits, and properly admits, itself to be responsible to foreign States, it has undoubtedly an implied constitutional power to extend its judicial power sufficiently to enable it to discharge the obligations which its international relations may impose upon it.

It will be observed that under the statutory authority conferred by Section 753 the federal court may, by writs of habeas corpus, obtain possession of, and release persons situated as was McLeod. But it does not give to the federal courts the power to prevent, or secure the punishment of persons committing, acts of violence or other illegal acts within the States upon aliens. That they should be given this authority because, by such acts, the United States may become responsible to foreign powers has been several times suggested in presidential communications to Congress, and

11 Stat. at L. v. 539. At present, as stated in the Revised Statutes (Sec. 753) the power of the federal courts to issue writs of habeas corpus is as follows: "Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign State, and domiciled therein, is in custody for an act done or omitted, under any alleged right, title, authority, privilege, protection, or exemption, claimed under the commission, or order, or sanction of any foreign State, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify."

bills providing this have been introduced in that body but never as yet enacted into law. President Harrison in his annual message of December, 1891, referring to the lynching of the Italians at New Orleans, said: "Some suggestions growing out of this unhappy incident are worthy the attention of Congress. It would, I believe, be entirely competent for Congress to make offenses against the treaty rights of foreigners domiciled in the United States cognizable in federal courts. This has not, however, been done, and the federal officers and courts have no power in such cases to intervene either for the protection of a foreign citizen or for the punishment of his slayers. It seems to me to follow, in this state of the law, that the officers of the State charged with police and judicial powers in such cases must, in the consideration of international questions growing out of such incidents, be regarded in such sense as federal agents as to make this government answerable for their acts in cases where it would be answerable if the United States had used its constitutional power to define and punish crimes against treaty rights."

A bill carrying out the suggestion here made was introduced into Congress but not enacted into law, and from time to time since then substantially similar measures have been urged upon Congress in presidential messages, and have been introduced and debated but without result. The matter has also been debated by the American Bar Association and the American Society of International Law. The constitutionality of a law giving this additional jurisdiction to the federal courts has been questioned, but, it would seem, not with good reason. A decision of the Supreme Court that would seem to sanction such legislation is that of United States v. Arjona.'2 Arjona, the defendant, was indicted under an act of Congress of 1884 providing for the punishment of persons counterfeiting the securities of foreign governments. Upon the constitutionality of this act being questioned upon the ground that, though the United States had the implied right to declare criminal the counterfeiting of its own bonds and notes, it had not the power thus to protect those of the other powers, the 12 120 U. S. 479; 7 Sup. Ct. Rep. 628; 30 L. ed. 728.

.

Supreme Court, in its opinion, say: "The National Government is made responsible to foreign nations for all violations by the United States of their international obligations, and because of this Congress is expressly authorized to define and punish offenses against the law of nations.' Consequently a law which is necessary and proper to afford this protection is one that Congress may enact because it is one needed to carry into execution a power conferred by the Constitution on the Government of the United States exclusively. There is no authority in the United States to require the passage and enforcement of such a law by the States. Therefore, the United States must have the power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another nation and which the law of nations has imposed upon them as part of the international obligations. This, however, does not prevent a State from providing for the punishment of the same thing, for here, as in the case of counterfeiting the coin of the United States, the act may be an offense against the authority of a State, as well as that of the United States.'

"13

13 Cf. on this whole subject the essay by J. I. Chamberlain, The Position of the Federal Government of the United States in Regard to Crimes Committed against the Subjects of a Foreign Nation Within the States. Also Reports of American Bar Association for 1891, 1892, 1893; Congressional Record, 52nd Congress, 1st Session, 1892; Annual Message of President, December, 1901, and Proceedings of the American Society of International Law, 1907.

17

CHAPTER XVII.

AMERICAN CITIZENSHIP.

§ 127. Citizenship Defined.

From the consideration of the status of aliens, we turn to an examination of the status of citizens or subjects.

The citizen or subject body of a State, regarded from the viewpoint of other States, that is, from the viewpoint of International Law, constitutes one homogeneous body, all the members of which have the same status, the same rights and duties. Considered, however, from the viewpoint of the constitutional or municipal law of the State in question, they may be grouped into distinct classes, with differing public and private rights. Thus it is that in the constitutional jurisprudence of the United States we have at present not only a distinction between federal and state citizenship, but, within the class of federal citizens, as including all those persons subject to the full sovereignty of the United States, a distinction between those who are "citizens of the United States" according to the meaning of that phrase as used in the Constitution of the United States, and those who, though subjects of the United States, are not citizens within this narrower constitutional

sense.

In Minor v. Happersett,' decided in 1875, the definition of citizenship, its essential character, and the privileges necessarily attached to its possession, were examined in passing upon the claim made that a woman, as a citizen of the United States, might not, simply because of her sex, be denied by a State the right of suffrage. In denying this claim, Chief Justice Waite, who rendered the unanimous opinion of the court, declared: "There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the per121 Wall. 162; 22 L. ed. 627.

sons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words 'subject,' inhabitant,' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterward adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more."2

2 See, holding that the elective franchise is not a necessary incident of citizenship: 1. As to negroes Smith v. Moody, 1866 (26 Ind. 299); United States v. Crosby, 1871 (1 Hughes, 448); Anthony v. Holderman, 1871 (7 Kans. 50); Van Valkenburg v. Brown, 1872 (43 Cal. 42); United States v. St. Petersburg (3 Hughes, 493); United States v. Reese, 1875 (92 U. S. 214; 23 L. ed. 563); and see Opinions of Justices, 1857 (44 Me. 507). 2. As to women - Spencer v. Board, 1873 (8 D. C. 169); United States v. Anthony, 1873 (11 Blatchf. 200); Minor v. Happersett, 1874 (21 Wall. 162; 22 L. ed. 627); Dorsey v. Brigham (177 Ill. 250); Gougar v. Timberlake, 1896 (148 Ind. 38); and see also People v. Oldtown, 1878 (88 Ill. 202); also Ware v. Wisner, 1883 (50 Fed. 310) holding that women are citizens. 3. As to minors-Lyons v. Cunningham, 1884 (66 Cal. 42); and see People v. Oldtown, supra. 4. As to Indians, holding that though they may have voted, this did not make them citizens-Laurent v. State, 1863 (1 Kans. 313). 5. As to aliens - Spragins v. Houghton, 1840 (2 Scam. 3 Ill. 377); In re Wehlitz, 1863 (16 Wis. 443); United States v. Hirschfield, 1876 (13 Blatchf. 330); Lanz v. Randall, 1876 (4 Dill. 425); City of Minneapolis v. Reum, 1893 (56 Fed. 576). An averment in pleading that one was a citizen and resident" was held not equivalent to a specific charge that he was an "elector"- Blanck v. Pausch, 1885 (113 Ill. 60). That the elective franchise is not a right of citizenship is shown also by the fact that the courts have repeatedly sustained legislation which provides for a certain prior residence before voting in the county, town, and precinct. See Anthony v.