were those secured by the provisions relating to grand and petit juries." In the foregoing account of the "Insular Cases" there has been given a statement not only of the prevailing but of the dissenting opinions. Furthermore, to some extent, the effort has been made to present the reasoning employed in their support. This has been done not solely because of the very great importance of the constitutional questions involved, but also because, as a matter of fact, there is some ground for believing that the judgments rendered have by no means definitely fixed the law upon these points. Therefore it is quite desirable that we should be supplied with the principle upon which; possibly, if not probably, the doctrine finally accepted will be founded. One important point is to be noticed in the very beginning of a criticism of the prevailing opinions in these cases. As will have been seen from the account that has been given of the case, though there was a judgment concurred in by five justices in Downes v. Bidwell, namely, the judgment that the tax uniformity clause was not applicable to the island Porto Rico, one of these five justices based his conclusion upon reasoning that was repudiated both by the four justices who concurred in the judgment and by the four who dissented from it. There was therefore declared in that case no constitutional doctrine that received the approval of a majority of the court. Moreover, the four justices who concurred with Justice Brown in the judgment that was rendered did so upon a principle that a clear majority of the court had just declared invalid in the case of De Lima v. Bidwell; whereas the four dissenting justices based their opinion upon a principle which that case had held sound.1 DISTRICT OF COLUMBIA THE Constitutional status of the district used as the seat of the Federal Government is almost exactly the same as that of the territories. In the case of Loughborough v. Blake (5 Wh., 317), so often cited in the Insular Cases, Chief Justice Marshall emphatically declared, as we have already learned, that the District of Columbia was a part of the United States, and that in legislating for it Congress is restrained by the limitations constitutionally placed upon the exercise of its powers. The Downes case, however, has held this to be an erroneous dictum. As early as 1804, in Hepburn v. Ellzey (2 Cr., 445), it was held that the District of Columbia was not a State in the sense in which that word is used in the constitutional clause that gives to the federal courts ... 1 Upon this point see the remarks of Professor J. W. Burgess in the "Political Science Quarterly," XVI (1901), p. 504. The opinion of this competent critic, himself a firm believer in imperialism as a principle of Anglo-Saxon politics, is as follows: "The judgment in the Downes case is nothing but an arbitrary bit of patchwork. Its purpose is to satisfy a certain demand of fancied political expediency in the work of imperial expansion. It is based upon the narrowest possible view of that expediency; for I venture to affirm that in the prosecution of that policy the simple knowledge on the part of those to be made subject to it that the constitutional liberties of the great republic were to be extended to them, as well as the powers extended over them, would be worth to us an army of a million of men." jurisdiction in suits between citizens of different States. In De Geofroy v. Riggs (133 U. S., 258) it was, however, declared that the District was one of "the States of the Union" within the meaning of that term as used in an international agreement.1 The reasoning by which Marshall in the Loughborough case found the District entitled to the protection of the limiting clauses of the Constitution, was approved by the dissenting justices in the Downes v. Bidwell case, and repudiated by the majority justices. These latter, however, affirmed, as a matter of fact, that the protection of these constitutional limitations had been extended over the District by a specific act of Congress.2 1 This case is cited by Justice Brown in his opinion in the case of Downes v. Bidwell, as illustrating the broader, international use of the term "United States." 216"Statutes at Large," chap. 62, sec. 34. CHAPTER XV CITIZENSHIP THE subject of citizenship in the United States is one the exact legal definition of which is not yet settled, notwithstanding the fact that an amendment to the Constitution has been adopted, the chief purpose of which was to effect this. As adopted, the federal Constitution contained no definition of citizenship. Impliedly, however, it recognized a state citizenship in that clause which provides that "citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." It also would seem to have recognized a federal citizenship in the clauses providing that the President shall be "a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution;" that Senators and Representatives shall have been nine and seven years respectively citizens "of the United States;" and that Congress shall have the power to pass laws regulating the naturalization of aliens. The relationship between these two citizenships,state and national,-however, the Constitution did not expressly determine. By some it was asserted that there was no federal citizenship apart from state citizenship-that one became a citizen of the United States only by being or becoming a citizen of one of the States. Calhoun has been credited with holding this view. This, however, is not quite correct. In a speech delivered in the United States Senate in 1833 upon the then pending Force Bill, he declared: "If by a citizen of the United States he [Senator Clayton] means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or territory, a sort of a citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. . . . Every citizen is a citizen of some State or territory, and as such, under an express provision of the Constitution, is entitled to all the privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States." 2 From this it will be seen that Calhoun recognized not only a state citizenship but a territorial citizenship, which latter of course could be derived only from a federal source. What he and others of the States' Rights school held was that as between state citizenship and federal citizenship, the former was the more fundamental; that, in other words, the latter was derived from the former. The fact of the federal control of naturalization Calhoun explained by alleging that that power was one which enabled Congress simply to 1 Brannon, "The Fourteenth Amendment," p. 17. |