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Only a natural-born citizen who has reached the age of thirty-five years and has resided fourteen years “within the United States” is eligible to the Presidency. Will it be contended that a man born in Colorado Territory in 1864 was not born in the United States? Or that a man born in Ohio in the same year and taken in infancy to what is, since 1889, the State of Washington, has not resided fourteen years in the United States? The Fifteenth Amendment reads: “The right of citizens of the

United States to vote shall not be denied or "abridged by the United States or by any State on account of race, color, or previous condition of “servitude.” This Amendment plainly contemplates a power in Congress to confer the suffrage. Now Congress can neither confer, deny, nor abridge the suffrage in any State, for each State has the exclusive power to designate its voting body, subject only to the limitation of this Amendment." The field of federal action in the matter of suffrage is then beyond the States, and the Amendment declares, in effect, that if Congress shall create a voting body in a Territory it cannot deny the suffrage to any citizen of the United States therein, that is to say, to any person owing allegiance to the United States, because of “race, color, or previous condition of “servitude.”

1 See U. S. v. Cruikshank, 92 U. S. 542, 555.

The broad powers of the States in the matter of the suffrage are well illustrated in the voting body designated by the Constitution of Minnesota, Art. VII, Sec. 1: “Every male person of the age of twenty

, one years or upwards, belonging to either of the following classes, who shall have resided in the United States one year, and in this State for four months next preceding any election, shall be entitled to vote at such election, in the election district of which he shall at the time have been for ten days a resident, for all officers that now are, or hereafter may be elected by the people. First: Citizens of the United States. Second: Persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States upon the subject of naturalization. Third : Persons of mixed white and Indian blood who have adopted the customs and habits of civilization. Fourth: Persons of Indian blood residing in this State, who have adopted the language, cus1U. S. v. Wong Kim Ark, 169 U. S. 649. 2 U. S. v. Wong Kim Ark, 169 U. S. 649, 674.

We need not rely upon an inspection of constitutional texts alone to sustain our broad definition of a natural-born citizen of the United States. The Supreme Court declares that recourse must be had to the common law to determine who are native-born citizens, and the common law, ignorant of our State boundaries, makes all persons born within the dominion and jurisdiction of the sovereign natural-born subjects, or, in our republican phrase, “citizens.” The Court says in the case cited: “Passing by ques“tions once earnestly controverted, but finally put at "rest by the Fourteenth Amendment of the Consti

tution, it is beyond doubt that, before the enactment “of the Civil Rights Act of 1866 or the adoption of “the Constitutional Amendment, all white persons, "at least, born within the sovereignty of the United

States, whether children of citizens or of foreigners, “excepting only children of ambassadors or public “ministers of a foreign government, were native-born "citizens of the United States.' This statement toms and habits of civilization, after an examination before any District Court of the State, in such manner as may be provided by law, and shall have been pronounced by said court capable of enjoying the rights of citizenship within the State."

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presents the opening words of the Fourteenth Amendment in their true light. They do not create citizenship of the United States, but affirm the preëxisting common-law rule of citizenship by birth, and secure to “all persons ” the benefit of this rule, which as applied by the federal courts of this country in the past ignored the African race.

Indians and Foreigners

Persons who, though born in the United States, are not citizens, because not subject to the jurisdiction, are the children of foreign ministers, of Indians, and of alien enemies in occupation of our soil."

Tribal Indians within the domain of the original States were set apart by the Constitution as a peculiar people, and with each extension of territory other tribes have been surrounded. Congress cannot make a man an “Indian” by calling him one, because, though the status of the Indian is in some respects indeterminate and in all respects anomalous, it is settled, at least, that he is a person born in the allegiance of a tribe of barbarous or savage origin, having its seat in United States territory, yet being, in the language of the Supreme Court, “a distinct po"litical community." There are natives in the Phil


' ippines who appear to have maintained their political organization during the overlordship of Spain, as had the Seminoles in Florida, and who, like the Seminoles, will be segregated as Indians.

1 See U. S. v. Wong Kim Ark, 169 U. S. 649, 693. 2 Elk v. Wilkins, 112 U. S. 94, 99.

The “Moros," as the Mohammedan natives are called, are in the “Indian” class. The Tagals and some other races are for the most part above it, though I confess that at one time I assumed, ignorantly, that the great majority of the islanders were barbarians. The Tagals are now miscalled a “tribe" merely to insinuate the propriety of treating them with the contempt usually displayed by civilized conquerors towards barbarians. In reality they emerged from the tribal state long ago, and at the time of our coming to the Philippines were the most conspicuous section of the great body of the Christian subjects of Spain in the islands.

“Alien enemies" is not a legal description of the Filipinos in arms. Without suggesting a general likeness between them and the Confederates of 1861, in one respect their positions are not altogether dissimilar. Said the Supreme Court of the insurgent State of Texas and its people: “The State did not

cease to be a State, nor her citizens to be citizens of “the Union. If this were otherwise, the State must “have become foreign, and her citizens foreigners. “The war must have ceased to be a war for the suppression of rebellion, and must have become a war “for conquest and subjugation.”i In point of fact, the war in Luzon is waged for conquest and subjugation, yet it is not a foreign war. Like the Civil War it is an insurrection against the United States, and the status of the insurgents is determined, like that of the Confederates, by our assertion of sovereignty, and not by their assertion of independence.

1 Texas v. White, 7 Wallace 700, 726.

The Chinese and the other foreigners in the Philippines are within the protection of the rule that while an alien “lawfully remains here he is entitled to the 'benefit of the guaranties of life, liberty, and prop

erty secured by the Constitution to all persons, of "whatever race, within the jurisdiction of the United « States. His personal rights when he is in this "country and such of his property as is here during “his absence, are as fully protected by the supreme “law of the land as if he were a native or naturalized “citizen of the United States.” 1

The Privilege of Election - The Plebiscite

Treaties of annexation involving a part only of national territory frequently provide that the subjects or citizens of the ceding state may elect to retain their old allegiance, either unconditionally, or where the land is well peopled, and the acquiring state is unwilling to run the risk of having a large body of aliens domiciled in its territory, upon condition that they emigrate within a certain time. This election is often called a "right," and as such it may be conceded in an amicable transfer between states negotiating on an equal basis; but in case of a conquest it is nothing more than a privilege granted by the conqueror, who thereby waives his right to forbid the emigration of persons whom he might hold as subjects or citizens. In either case its real value often depends on the ability of the people to find homes elsewhere. This privilege was properly accorded,

1 Lem Moon Sing v. U. S., 158 U. S. 538, 547. 2 See U. S. v. Repentigny, 5 Wallace 211, 260.


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