state, but his rights of citizenship under one of these governments will be different from those he has under the other."1 $235. The fourteenth amendment added nothing to the rights of citizenship.-The fourteenth amendment did not add to the rights, privileges and immunities of citizens of the United States; it simply furnished an additional guaranty for the protection of such rights, privileges and immunities as the citizen of the union already had and possessed.*2 § 236. Expatriation-Right of declared by federal statute.An act of congress declares: "Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed; therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic." 43 § 237. Same-Not accomplished by mere declaration of intention. A mere declaration of an intention to expatriate one's self is not, of itself, sufficient to effect a change of citizenship; and it has, accordingly, been held that a citizen of the United States who has renounced his allegiance to this government, or declared an intention of expatriation, but who has not emigrated to and become a subject or citizen of a foreign kingdom or republic, and who remains domiciliated within the United States, is still a citizen of the United States.** 41 Slaughter-House Cases, 16 Wall. 74 (21:408); United States v. Cruikshank, 92 U. S. 542, 569 (23:588); Minor v. Happersett, 21 Wall. 162, 178 (22:627). 42 Minor v. Happersett, 21 Wall. 162, 178 (22:627); Slaughter- 43 U. S. Rev. Stat. sec. 1999. (d) THE PRIVILEGES AND IMMUNITIES OF THE CITIZENS OF THE SEVERAL STATES. § 238. Complex nature of those rights denominated "privileges and immunities of citizens."-An analysis of the decisions of the supreme court of the United States bearing on the subject, will show that the ascertainment, application and enforcement of those rights which are denominated in the constitution as "the privileges and immunities of citizens," and the distinction between "the privileges and immunities of citizens of the United States," and the "privileges and immunities of citizens in the several states" are bottomed and proceed upon the following principles, which are shown by a long and unbroken line of decisions, to be political axioms in our system of government, namely: 1. We have in our political system two governments, each distinct from the other, namely: (1) the government of the United States in which is vested the national sovereignty, and (2) a government of each of the several states in which is vested the municipal sovereignty; and these governments are, each, respectively, supreme in the sphere of action assigned to it by the constitution, with the right of final decision in the government of the United States in all cases of conflict of authority between the two governments; and the constitution, laws and treaties of the United States are the supreme law of the land. 2. The citizens of this country are invested with a dual citizenship, namely: (1) They are citizens of the United States and owe them allegiance and are entitled to their protection, and (2) they are citizens of the state in which they reside and owe it allegiance and are entitled to its protection. 3. Every citizen is invested (1) with certain rights, denominated in the constitution as the privileges and immunities of citizens of the United States, and (2) certain rights, denominated in the same instrument as "all the privileges and immunities of citizens of the several states." 4. The privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the state, rest alone upon their character and quality as citizens of the national government, and arise out of the nature and essential character of the national government, and are granted or secured by the constitution of the United States. 5. The privileges and immunities of citizens of the state, as distinguished from the privileges and immunities of citizens of the United States, rest alone upon their character and quality as citizens of the state, and arise out of the nature and essential character of the state government; but the right of "the citi zens of each state" to enjoy "all privileges and immunities of citizens of the several states" is protected by the constitution of the United States.45 153 (1:549); The Santissima Trinidad, 7 Wheat. 283 (5:454). See, also, Comities v. Parkinson, 56 Fed. 556, 560; Ware v. Wisner, 50 Fed. 312. 45 U. S. Const. Art. IV, sec. 2, cl. 1, and XIV, Art. of Amendment, sec. 1; Slaughter-House Cases, 16 Wall. 33, 77 (21:394); Maxwell v. Dow, 176 U. S. 581, 617 (44:597); United States v. Cruikshank, 92 U. S. 542, 569 (23:588); Minor v. Happersett, 21 Wall. 162 (22: 627); Re Kemmler, 136 U. S. 436 (34:519); Walker v. Sauvinet, 92 U. S. 90 (23:678); Paul v. Virginia, 8 Wall. 180 (19:360); Ward v. Maryland, 12 Wall. 430 (20:453); Bradwell v. Illinois, 16 Wall. 130 (21:442); Cole v. Cunningham, 133 U. S. 107 (33.538); Blake v. McClung, 172 U. S. 239 (43:432); Conner v. Elliott, 15 How. 591 (15:497); Corfield v. Coryell, 4 Wash. 371, Fed. Cas. 3,230. "The fourteenth amendment did not radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of a state. Protection of life, liberty, and property rests primarily with the states, and the amendment furnishes an additional guaranty against any encroachment by the states upon those fundamental rights which belong to citzenship, and which the state governments were created to secure. The privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citi zens of the states, are indeed protected by it; but those are privileges and immunities arising out of the nature and essential character of the national government, and are granted or secured by the constitution of the United States." Chief Justice Fuller in Re Kemmler, 136 U. S. 436, 448 (34:519). "We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other. "Citizens are members of the political community to which they belong. They are the people who compose the community, and who, in their associated cap § 239. Privileges and immunities of citizens not defined in the constitution.-The constitution does not define the privileges and immunities of citizens of the United States, nor those acity, 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. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose. "Experience made the fact known to the people of the United States, that they required a national government for national purposes, The separate governments of the separate states, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated states. For this reason, the people of the United States, 'in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty' to themselves and their posterity, ordained and established the government of the United States, and defined its powers by a constitution, which they adopted as its fundamental law, and made its rule of action. "The government thus established and defined is to some extent a government of the states in their political capacity. It is, also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction. "The people of the United States resident within any state are subject to two governments: one state and the other national; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the constitution. All powers not granted to it by that instrument are reserved to of the citizens of the states; and for such definition resort must be had to other sources.1 46 § 240. Privileges and immunities of citizens defined by judicial inclusion and exclusion only. The supreme court has never undertaken to give any exact or comprehensive definition of the words "privileges and immunities of citizens," as used in the original constitution, and in the fourteenth amendment, but has, by the "gradual process of judicial inclusion and exclusion," determined, in each case as it has been presented, whether the particular right therein asserted and denied is protected by the constitution as a privilege or immunity of state or national citizenship." In one case arising under the second section of the fourth article of the constitution, the court said: "We do not deem it needful to attempt to define the meaning of the word 'privileges,' in this clause of the constitution. It is safer, and more in accordance with the duty of a judicial tribunal, to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. And especially is this true when we are dealing with so broad a provision, involving matters, not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief.' 48 § 241. History of the words "privileges and immunities of citizens"-Colonial charters. In all the colonial charters granted by the British crown to the American colonists, except, perhaps, that of Pennsylvania, it was provided that all persons being English subjects and inhabiting the colonies and their children born therein, or on the seas going or returning, should have, possess and enjoy "all liberties, franchises and immuni the states or the people. No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States." Chief Justice Waite in United States v. Cruikshank, 92 U. S. 542, 569 (23:588). 46 Minor v. Happersett, 21 Wall. 162, 178 (22:627). 47 Conner v. Elliott, 18 How. 591 (15:497); Ward v. Maryland, 12 Wall. 430 (20:453); Minor v. Happersett, 21 Wall. 167, 178 (22:627); Blake v. McClung, 172 U. S. 239 (43:432). 48 Connor v. Elliott, 18 How. 591 (15:497). |