Waiver of the Right. By the constitutions of several of the states it is provided that the right of trial by jury may be waived by the parties in all civil issues. But even without this clause it would be entirely competent for those interested to agree that the court should proceed to determine the cause without a jury.227 Accordingly, when the defendant has an opportunity to demand a trial by jury, and omits to do so, he cannot complain that his constitutional rights are denied him if the trial proceeds without a jury.228 And so, where a default is suffered in an action for damages, the court may proceed to assess the damages. The defendant has no constitutional right to have them assessed by a jury.220 227 Greason v. Keteltas, 17 N. Y. 491; Baird v. Mayor, etc., 74 N. Y. 382; Garrison v. Hollins, 2 Lea (Tenn.) 684. 228 Flint River Steamboat Co. v. Foster, 5 Ga. 194; Leahy v. Dunlap, 6 Colo. 552; Foster v. Morse, 132 Mass. 354. 229 Raymond v. Railroad Co., 43 Conn, 596; Hopkins v. Ladd, 35 Ill. 178. CHAPTER XIX. POLITICAL AND PUBLIC RIGHTS. 224-229. Citizenship. 230. Double Citizenship in the United States. 231. Privileges of Citizens of the United States. 232-234. The Right of Suffrage. 235. Freedom of Speech and of the Press. 236. Same Criticisms of Government. 237. Same-Censorship of the Press. 238-242. Same-Privileged Communications. CITIZENSHIP. 224. The fourteenth amendment to the federal constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 225. With respect to the manner of acquiring citizenship, the citizens of the United States are divided into two classes: (a) Native born citizens. (b) Naturalized citizens. 226. Citizenship in the United States is not restricted to adults or males, but belongs equally to women and children. 227. Corporations cannot be citizens of the United States. 228. The native Indians, though born within the United States, can become citizens only by naturalization. 229. The right of expatriation is fully recognized in this country. Before the adoption of the fourteenth amendment, the rights and status of a citizen of the United States were very doubtful. It was even uncertain whether there was anything under the federal system corresponding to citizenship in the several states. Many publicists contended that if there was a citizenship of the United States, it was possessed by virtue of, and resulted from, citizenship in a state. This of course excluded from the definition of citizenship all the residents of the United States who were not citizens of some state, including the inhabitants of the territories and of the District of Columbia, Indians, and negroes. These persons, it was thought by some, were not citizens at all. In the Dred Scott Case, Chief Justice Taney stated that the question at issue was as follows: "Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the constitution of the United States, and as such become entitled to all the rights and privileges and immunities guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the constitution." And this question was answered in the negative.1 The purpose of the fourteenth amendment was to secure to the newly emancipated colored race the rights and privileges which belonged to them, since the abolition of slavery by the thirteenth amendment, in common with all others living under the protection of federal law. It conferred upon them citizenship in the United States, with all its privileges. It did not make them citizens of the states. But it gave them the right to acquire citizenship in a state, in addition to their federal citizenship, by residence therein. Though necessarily general in its terms, this amendment applies especially and peculiarly to these people. There have been very few cases in which its benefits have been invoked by any others. It is held that no white person born within the limits of the United States and subject to their jurisdiction, or born without those limits and subsequently naturalized, owes his status of citizenship to the amendment.' The promotion of colored persons to citizenship, by this provision, is an admission of them to all the rights and priv ileges of white citizens in the same manner and to the same extent. They cannot be distinguished from other citizens, by legislation, for 1 Dred Scott v. Sandford, 19 How. 393, 403. > Van Valkenburg v. Brown, 43 Cal. 43. any of the causes which previously characterized their want of citizenship. But at the same time, it must be remembered that the fourteenth amendment does not add to the privileges or immunities of citizens, but only furnishes additional protection for the privi leges already existing. Definition of Citizenship. Citizenship is the status or character of being a citizen. And a citizen of a given state or country is one who owes it allegiance and is entitled to its protection. The two correlative ideas of allegiance and protection form the basis of the legal and political conception of citizenship. The citizen is subject to the jurisdiction of his country and to its laws. He owes it loyalty, his services at need, and his money to defray its expenses. In return he is entitled to claim its protection against domestic violence and foreign oppression. The possession of civic rights is not the test of citizenship. There are many who are legally incapable of voting for public offi cers or of filling the offices themselves, who are none the less citiNeither is mere inhabitancy of a country a test of citizenship. For resident aliens owe a local and temporary allegiance to the state wherein they live and are amenable to its ordinary laws. But where the two characteristics of allegiance and protection are found in their completeness and together, there citizenship exists. Native Born Citizens. zens. The fourteenth amendment divides the citizens of the United States into two classes. First, those who are born in the United States and subject to the jurisdiction thereof." Second, those who are naturalized in the United States and subject to the jurisdiction thereof. In order to belong to the first class two things must con 8 Burns v. State, 48 Ala. 195. 4 Minor v. Happersett, 21 Wall. 162. Allegiance is the obedience due to the sovereign; and persons born in the allegiance of the king are his natural subjects and no aliens. The allegiance is not limited to any spot, and is due to the king in his natural capacity, rather than his political capacity. Calvin's Case, 2 How. St. Tr. 559. An act of congress passed in 1866 provides that "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." Rev. St. U. S. § cur. The person must have been born within the United States and subject to the jurisdiction thereof. This jurisdiction "must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as a part of their own country. This extra-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, whilst within the waters of the United States and consequently within their territorial jurisdiction, are also excepted. They are considered as born within the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States." So if a stranger or traveler passing through the country, or temporarily residing here, but who has not himself been naturalized and who claims to owe no allegiance to our government, has a child born here, who goes out of the country with his father, such child is not a citizen of the United States, because he was not subject to its jurisdiction. But the children, born within the United States, of permanently resident aliens, who are not diplomatic agents or otherwise within the excepted classes, are citizens. And this is true even where the parents belong to a race of persons (such as the Chinese) who cannot acquire citizenship for themselves by naturalization. Children of American parIn re Look Tin Sing, 21 Fed. 905. Miller, Const. 279. In re Look Tin Sing, 21 Fed. 905; In re Wong Kim Ark, 71 Fed. 382. In the case last cited it was said: "At the common law, if the parent be under the actual obedience of the king, and the place of the child's birth be within the king's obedience as well as in the dominion, the child becomes a subject of the realm; in other words, birth within the realm was deemed conclusive. This was decided in Calvin's Case, reported by Lord Coke, 7 Coke, 1, and has always been recognized as the common-law doctrine. 1 Bl. Comm. 366; 2 Kent, Comm. 9; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583; U. S. v. Rhodes, 1 Abb. U. S. 28, Fed. Cas. No. 16,151. By the law of nations, birth follows the political status of the father, and of the mother when the child is illegitimate. Bar, Int. Law, § 31; Vatt. Law Nat. §§ 212-215; Sav. Priv. Int. Law, 351. The fourteenth amendment to the constitution of the United States must be controlling upon the question presented for decision in this matter, |