Boyd was born in Ireland in 1834, of Irish parents. His father
emigrated to the United States in 1844 with all his family and
settled in Ohio, in which state he has since resided continuously.
In 1849, the father duly declared his intention to become a citizen
of the United States, but there is no record or other written
evidence that he ever completed his naturalization by taking out
his naturalization certificate after the expiration of the five
years. For many years after the expiration of that time, however,
he exercised rights and claimed privileges in Ohio, which could
only be claimed and exercised by citizens of the United States and
of the state. The son, on attaining majority, voted in Ohio under
the belief that his father had become a citizen. In 1856, he
removed to Nebraska, in which state he resided continuously until
the commencement of this action. He voted there at all elections,
held various offices there which required him to take an oath to
support the Constitution of the United States, served in the army
during the war, was a member of a convention to frame a state
constitution, was Mayor of Omaha and, after thirty years of
unquestioned exercise of such rights and privileges, was elected
Governor of the State of Nebraska, receiving a greater number of
votes than any other person voted for. He took the oath of office
and entered on the discharge of its duties. His predecessor, as
relator, filed an information in the
Page 143 U. S. 136
Supreme Court of Nebraska in which were set forth the facts as
to the declaration of intention by Boyd's father, and it was
further averred that the father did not become a citizen during the
son's minority, nor until the October term of the Court of Common
Pleas in Muskingum County, Ohio, in the year 1890, when the son was
56 years of age, and it was claimed that Boyd, the son, never
having himself been naturalized, was not at the time of his
election a citizen of the United States, and was not, under the
Constitution and laws of Nebraska, eligible to the office of
governor of that state, and the relator therefore prayed judgment
that Boyd be ousted from that office, and that the relator be
declared entitled to it until a successor could be elected. To this
information the respondent, in his answer, after stating that his
father, on March 5, 1849, when the respondent was about fourteen
years of age, made before a court of the State of Ohio his
declaration of intention to become a citizen of the United States,
and averring
"that his father for forty-two years last past has enjoyed and
exercised all of the rights, immunities and privileges and
discharged all the duties of a citizen of the United States and of
the State of Ohio, and was in all respects and to all intents and
purposes a citizen of the United States and of the State of
Ohio,"
and particularly alleging his qualifications to be a citizen,
and his acting as such for forty years, voting and holding office
in that state, further distinctly alleged
"on information and belief that prior to October, 1854, his
father did in fact complete his naturalization in strict accordance
with the acts of Congress known as the naturalization laws, so as
to admit and constitute him a full citizen of the United States
thereunder, he having exercised the rights of citizenship herein
described, and at said time in formed respondent that such was the
fact."
To this answer the relator interposed a demurrer, and on these
pleadings the court below entered a judgment of ouster against
Boyd, to which judgment a writ of error was sued out from this
Court.
Held:
(1) That, as the defense relied on arose under an act of
Congress and presented a question of federal law, this Court had
jurisdiction to review it (FIELD, J., dissenting).
(2) That the fact that the respondent's father became a citizen
of the United States was well pleaded, and was admitted by the
demurrer.
(3) That upon this record, Boyd had been for two years next
preceding his election to the office of governor a citizen of the
United States and of the State of Nebraska.
(4) That where no record of naturalization can be produced,
evidence that a person having the requisite qualifications to
become a citizen did in fact and for a long time vote and hold
office and exercise rights belonging to citizens is sufficient to
warrant a jury in inferring that he has been duly naturalized as a
citizen.
And it was further
held by FULLER, C.J., and
BLATCHFORD, LAMAR, and BREWER, JJ.:
(5) That the supreme court having denied to Boyd a right or
privilege
Page 143 U. S. 137
existing under the Constitution of the United States, this Court
had jurisdiction on that ground also to review the judgment of the
Supreme Court of Nebraska.
(6) That even if the father did not complete his naturalization
before the son attained majority, the son did not lose the inchoate
status which he had acquired through his father's declaration of
intention to become a citizen, and that he occupied in Nebraska the
same position which his father would have occupied had he emigrated
to that state.
(7) That within the intent and meaning of the acts of Congress,
he was made a citizen of the United States and of the Nebraska
under the organic and Enabling Acts of Congress and the act
admitting that state into the union.
(8) That Congress has the power to effect a collective
naturalization on the admission of a state into the union, and did
so in the case of Nebraska.
(9) That the admission of a state on an equal footing with the
original states involves the adoption, as citizens of the United
States, of those whom Congress makes members of the political
community and who are recognized as such in the formation of the
new state with the assent of Congress.
(10) That the rule prescribed by § 4 of the Act of April
14, 1802, 2 Stat. 155, c. 28, was to be a uniform rule, and there
was no reason for limiting such a rule to the children of those who
had been already naturalized, but, on the contrary, the intention
was that the act of 1802 should have a prospective operation.
The case was stated by the Court as follows:
On the 13th of January, A.D. 1891, leave was granted to John M.
Thayer, by the Supreme Court of the State of Nebraska, to file an
information against James E. Boyd to establish the relator's right
to the office of governor of that state and to oust the respondent
therefrom.
It appears from the record that the Attorney General of the
state refused to prosecute the action, and this is so stated in the
information, which then alleges:
"1. On the Tuesday next succeeding the first Monday of November
of the year 1888, he, the said John M. Thayer, was, and for more
than two years next preceding that time had been, a citizen of the
United States and of this state, and then had, and now has, all the
qualifications required by law to hold the office of Governor of
the State of Nebraska."
"2. At the general election of this state at the date
aforesaid,
Page 143 U. S. 138
for the election of governor and all state officers in
accordance with the provision of the constitution and laws of this
state, he was duly elected governor; that he duly qualified and
entered upon the duties of said office on the first Thursday after
the first Tuesday in January, 1889, and ever since then has
exercised, and now exercises, the duties of said office."
"3. That his said election and oath of office as governor made
it his duty to hold his office for the term of two years from the
first Thursday after the first Tuesday in the January next after
his election, and until his successor should be elected and
qualified."
"4. That there was held another general election of this state
on the Tuesday next succeeding the first Monday of November in the
year 1890 for the election of governor and other officers, and the
returns of said election for the officers of the executive
department were, as required by the Constitution, sealed up and
transmitted by the returning officers to the Secretary of State,
directed to the Speaker of the House of Representatives, who did,
on the 8th day of January, 1891, immediately after the organization
of the house, and before proceeding to other business, open and
publish the same in the presence of a majority of each house of the
legislature, who were for that purpose assembled in the hall of the
House of Representatives."
"5. That said returns, so sealed up, transmitted, opened, and
published, showed that the whole number of votes cast at said
general election for the several persons voted for for the office
of governor aggregated 214,090; that of said number of votes so
cast for governor, James E. Boyd received 71,331, J. H. Powers
received 70,187, L.D. Richards received 68,878, and there were
scattering 3,694, and James E. Boyd, being the person having the
highest number of votes for the office of governor, was by said
speaker declared duly elected governor for the term of two years
from the first Thursday after the first Tuesday of January, 1891,
and until his successor should be elected and qualified, and
relator exhibits herewith, and makes a part hereof, a duly
certified and authenticated copy of said returns."
"6. That thereupon the said James E. Boyd took the oath of
Page 143 U. S. 139
office required to be taken by the executive officers before
they enter upon their official duties, and has usurped and invaded
the office of Governor of Nebraska, and has unlawfully attempted,
and now unlawfully attempts, to hold the said office and perform
the duties of Governor of Nebraska, and will continue so to do
unless ousted therefrom by the judgment of this honorable
court."
"7. But the relator further gives the court to understand and be
informed that the said James E. Boyd was not at the time of his
said pretended election, on the said Tuesday next succeeding the
first Monday of November, 1890, a citizen of the United States, and
because he was not, as aforesaid, then a citizen of the United
States, he was not then eligible to the office of governor of this
state, and as yet no person eligible thereto has been elected and
qualified to succeed your informant, and it is the bounden duty of
the relator to hold and continue in the office of governor until
some person eligible thereto shall be elected and qualified as his
successor; that in truth and in fact the said James E. Boyd was
born in Ireland, of alien parents, in about the year 1834; that he
was brought to this country, when about ten years of age, by his
father, whose name was and is Joseph Boyd, who settled in about the
year 1844 at Zanesville, Muskingum County, in the State of Ohio,
where he has ever since resided and now resides; that the said
Joseph Boyd, father of the said James Boyd, has never, since he
came to this country and settled at Zanesville, Ohio, resided at
any other place."
"That on the fifth day of March, 1849, at, in, and during the
February (1849) term of the Common Pleas Court of said Muskingum
County, in the State of Ohio, the said Joseph Boyd, a native of
Ireland, and father, as aforesaid, of the said James E. Boyd, and
when the said James E. Boyd was about fifteen years of age, in open
court declared it to be his
bona fide intention to become
a citizen of the United States, and to renounce and abjure forever
all allegiance and fidelity to every foreign prince, potentate,
state, or sovereignty whatsoever, and particularly the queen of
Great Britain and Ireland, and the following is a true and full
copy of the journal entry from the records
Page 143 U. S. 140
of the said Common Pleas Court of the said Muskingum County,
Ohio, showing such declaration of intention, to-wit:"
"[Here follows the entry referred to.]"
"And your informant has and exhibits to the court a duly
certified transcript of the said record entry as found on page 187
of said journal, vol. 'T.'"
"8. And relator further gives the court to understand and be
informed that the said Joseph Boyd, father aforesaid of said James
E. Boyd, never, while the said James E. Boyd was under the age of
twenty-one years, applied to be admitted to become a citizen of the
United States, and was never naturalized, and never did become a
citizen of the United States while the said James E. Boyd was under
the age of twenty-one years. That at, in, and during the October
(1890) term of the said common pleas court held within and for the
County of Muskingum, in the State of Ohio, and never before and not
until after the said James E. Boyd was upwards of twenty-one years
of age, and not until he was of the age of fifty-six years, the
said Joseph Boyd, father of the said James E. Boyd, a native of
Ireland, and up to that time and then a subject of the Queen of
Great Britain and Ireland, appeared in open court, and made
application to be admitted to become a citizen of the United
States, and proved to the satisfaction of the court that he
declared his intention to become a citizen of the United States on
the fifth day of March, 1849, before the Court of Common Pleas of
Muskingum County, Ohio, and also produced his certificate of such
declaration of intention, and that he had resided within the limits
of the United States five years then last past, and for one year at
least then last past within the State of Ohio, and that during that
time he had behaved as a man of good moral character, attached to
the principles of the Constitution of the United States and well
disposed to the good order and happiness of the same, and thereupon
the said Joseph Boyd made solemn oath that he would support the
Constitution of the United States, and that he did absolutely and
entirely renounce and abjure all allegiance and fidelity to every
foreign prince, potentate, state, or sovereignty, and particularly
to Great Britain and Ireland and the Queen of England, whose
subject
Page 143 U. S. 141
he then was; and, the court being then satisfied that the said
Joseph Boyd had complied with the laws of the United States
relating to the naturalization of aliens, it was ordered that he
be, and he then was, admitted to become a citizen of the United
States, and a certificate was then issued to him, and before that
time he had never been and was not a citizen of the United States,
and the following is a copy of the journal entry from the records
of the Common Pleas Court of said Muskingum County, Ohio, showing
such application of the said Joseph Boyd to be admitted to become a
citizen and his admission to citizenship of the United States,
to-wit:"
"[Here follows the record referred to.]"
"And the relator has and exhibits to the court a duly certified
transcript of the said record entry as found on page 145 of said
journal, volume 42."
"9. And the relator further shows that careful and diligent
search has been made by the Clerk of the Court of Common Pleas of
said Muskingum County, Ohio, through all the records of his said
office, and that the only record or journal entry in any shape or
form in said court and in the records thereof of or concerning the
declaration of intention to become and application of the said
Joseph Boyd to be admitted a citizen of the United States in said
office is found upon page 187 of Journal 'T' and upon page 145 of
Journal 42, and the only record or journal entries in said office
of the naturalization of said Joseph Boyd is found upon said page
145 of said Journal No. 42, and that said two entries constitute
the only and entire record of the naturalization of said Joseph
Boyd, as shown by the records and journals of said court, and the
relator exhibits and shows to the court the certificate of the
clerk of said court, duly signed and made under oath, showing such
facts."
"10. And the relator further shows that the said James E. Boyd
has never at any time declared his intention to become a citizen of
the United States, nor has he ever made application to be admitted
as a citizen of the United States, but he has ever remained an
alien and a subject to the queen of Great Britain and Ireland."
"And relator says by reason of the premises, and by reason
Page 143 U. S. 142
of the legal disqualification of the said James E. Boyd to hold
said office of governor, the said election for governor was and is
null and void."
"11. And the relator further shows that notwithstanding the fact
that the said James E. Boyd was and is ineligible to the office of
governor as aforesaid, and notwithstanding the fact the relator is
bound to continue in and hold the office of governor, and is
entitled to the peaceable and undisturbed possession of the office
of governor and the furniture and records thereof, yet the said
James E. Boyd has usurped and invaded the office of Governor of
Nebraska unlawfully, and has unlawfully undertaken to perform the
duties of said office, and the relator has refused and refuses for
the reason hereinbefore stated to surrender said office to said
defendant, and will not do so unless required so to do by the
judgment of this honorable court, upon due hearing had."
"Wherefore the said John M. Thayer prays judgment that the
defendant, James E. Boyd, be declared not entitled to said office,
and that he be ousted therefrom, and that he, the said John M.
Thayer, be declared entitled to such office until such time as some
person eligible thereto shall be elected and qualified as his
successor, and that the said James E. Boyd be enjoined from
invading the said office and from interfering in any manner with
the furniture, records, or anything therein or pertaining thereto
or in any manner interfering or intermeddling with the relator in
the performance of the duties of Governor of Nebraska."
The respondent, on the 16th of February, 1891, filed his motion
to dismiss the cause for that the relator had no right, title, or
authority in law to institute or maintain the action; that the
petition did not state grounds sufficient to constitute a cause of
action; that the petition showed on its face that respondent was
the duly elected, qualified, and acting
de jure governor
of the state, and entitled in law to hold that office, and bound to
discharge the duties thereof, for and during the term of two years
from and after January 8, 1891. This motion was overruled, and the
respondent was ruled to answer, which he did as follows:
Page 143 U. S. 143
"Now comes the respondent, James E. Boyd, and admits that the
Attorney General of this state refuses to prosecute this action,
and protests and insists and avers the fact to be that the
information herein is insufficient in law to require to respondent
to make answer thereto, for that it does not show that said John M.
Thayer has any right or title to the said office of Governor of
Nebraska, or that he has any right, title, or authority to
institute, maintain, or prosecute this action and for that said
information does not state facts sufficient to constitute a cause
of action."
"Further answering, respondent admits the allegations of the
first, second, third, fourth, and fifth paragraphs of the
information, except as hereinafter shown. Further answering, said
respondent shows to the court that said John M. Thayer was at the
regular state election held in the State of Nebraska in November,
A.D. 1888, elected to the office of governor of this state for a
term thereof commencing in January, 1889, and that upon the canvass
of the votes cast at said election he was duly declared to be so
elected; that the term of said office is fixed by the constitution
to commence on the first Thursday after the first Tuesday in
January succeeding the election, and continues for a period of two
years, and until his successor shall be elected and qualified, and
the respondent further says that the laws of Nebraska at all times
herein mentioned provided that, if a qualified incumbent of the
office holds over by reason of the non-election or non-appointment
of his successor, he shall qualify within ten (10) days from the
time at which his successor, if elected, should have qualified by
taking the oath of office and executing and having approved and
filed for record his official bond in the sum of fifty thousand
($50,000.00) dollars conditioned for the faithful performance of
the duties of the office as by law required."
"Respondent further says that the said John M. Thayer continued
as the actual incumbent of said office down to the time when this
respondent qualified as governor of this state on the 8th day of
January, 1891, which was the first Thursday after the first Tuesday
in January succeeding the election in question. Respondent further
says that the said John M.
Page 143 U. S. 144
Thayer has never since the 8th day of January, 1891, qualified
anew as Governor of the State of Nebraska; that he has not since
that date taken or filed the official oath required by law, nor has
he had his official bond executed or approved or filed for record,
as by law required, to qualify him anew if no party was elected to
hold said office of governor from and after the said 8th day of
January, as he alleges in his information, but which respondent
denies, and in this behalf further alleges the fact to be that
after the said 8th day of January, 1891, the respondent entered
into the office of Governor of the State of Nebraska, and the said
John M. Thayer from that time and thereafter wholly surrendered,
abandoned, and removed from said office, and has not since in any
manner, directly or indirectly, occupied or possessed the same or
assumed or pretended to assume to perform any of the functions
thereof, but wholly surrendered the same, and vacated said
office."
"Answering the sixth paragraph of said information, the
respondent admits that after his election to the said office and
the canvass of the returns, and after he had been declared elected
to the said office by the Speaker of the House of Representatives
in the presence of a majority of the legislature, as required by
law, he, on the 8th of January, 1891, took the oath of office,
executed and filed his official bond, did all other acts and things
required by law of him to be done to qualify and entitle him to
enter into the possession, use, and enjoyment of said office and to
discharge the duties thereof, and the respondent denies that he has
usurped or invaded the said office or unlawfully attempted at any
time to hold said office and to perform the duties thereof, but
avers the fact to be that at and from the commencement of the term
of his said office, from January 8, 1891, he has been and now is
the duly elected and qualified Governor of the State of Nebraska,
in the quiet, legal, and actual possession and enjoyment of said
office, and discharging its duties; that he has been recognized so
to be by all of the departments and officers of the state
government."
"And the respondent further avers the fact to be that the said
John M. Thayer ceased to be the incumbent of said office in law and
in fact with the expiration of the 8th day of January,
Page 143 U. S. 145
A.D. 1891, and prior to the commencement of this action."
"Answering the eighth paragraph of said information, the
respondent denies all the allegations thereof except that he was
born in Ireland, of alien parents, in the year 1834; that he was
brought to this country, when about ten years of age, by his
father, Joseph Boyd, who settled about the year 1844 in Belmont
County, Ohio, where he resided for several years, and thereafter
removed to Zanesville, Muskingum County, Ohio, where he has ever
since resided."
"Respondent also admits that his father, on or about March 5,
1849, when respondent was about 14 years of age, declared his
intention to become a citizen of the United States and to renounce
and abjure forever all allegiance and fidelity to every foreign
prince, potentate, state, and sovereignty whatever, and
particularly the Queen of Great Britain and Ireland, and that the
alleged exemplification of the record thereof, copied in said
information, respondent believes is a true copy."
"Answering the eighth paragraph of said information, respondent
says he admits the facts therein alleged except as in this answer
otherwise averred, but denies the conclusions of law and facts
therein stated."
"Respondent further avers that his father, for forty-two years
last past, has enjoyed and exercised all of the rights, immunities,
and privileges, and discharged all the duties, of a citizen of the
United States and of the State of Ohio, and was in all respects and
to all intents and purposes a citizen of the United States and of
the State of Ohio at all times disclaiming and abjuring allegiance
to every foreign prince, potentate, state, or sovereignty; that
during all of said times said Joseph Boyd behaved as a man of good
moral character, attached to the principles of the Constitution of
the United States and well disposed to the good order and happiness
of the same; that when the said Joseph Boyd settled in the State of
Ohio as aforesaid, it was his
bona fide intention to make
the United States his permanent residence; that at that time he did
in fact disclaim and abjure all allegiance and fidelity to the
Queen of Great Britain and Ireland and to every other foreign
prince, potentate, state, and sovereignty, and for about 40 years
acted
Page 143 U. S. 146
in the belief that he was a citizen of the United States, at all
said times exercising the elective franchise without question or
challenge, voting for all officers of the state and federal
governments the same as a native-born citizen of the United States
and of the State of Ohio."
"Respondent further says that about the year 1870, said Joseph
Boyd was elected to the office of justice of the peace in said
Muskingum County, Ohio, and thereupon took an oath to support the
Constitutions of the United States and of the State of Ohio, and
for several years held said office, exercising all the rights,
franchises, powers, and duties of said office, and has for years
last past held office under the Constitution and laws of Ohio,
to-wit, weighmaster in the City of Zanesville, which office he now
holds."
"Respondent further says that he was informed by his father as
early as the year 1855 that he, the said Joseph Boyd, was a citizen
of the United States, and entitled in law and in fact to all the
rights, privileges, and immunities of a citizen of the United
States and of the State of Ohio, and that ever since said time this
respondent has so believed and accepted the fact so to be, and
never heard the fact challenged or questioned till after he was
elected to the office of governor of this state in 1890. Respondent
further says that he did, upon arriving at the age of 21 years,
exercise the elective franchise in said Muskingum County, Ohio, in
the fall of 1855."
"The respondent further alleges on information and belief that
prior to October, 1854, his father did in fact complete his
naturalization in strict accordance with the acts of Congress known
as the 'Naturalization Laws,' so as to admit and constitute him a
full citizen of the United States thereunder, he having exercised
the rights of citizenship herein described, and at said time
informed respondent that such was the fact; that when his father
applied to be registered in Ohio in October, 1890, under a new law,
he was required to produce his citizenship papers, and, being
unable to find all thereof, he appeared before said Court of Common
Pleas of Muskegon County at the October term thereof, 1890, and the
proceedings described in the ninth paragraph of the information
were had as therein set
Page 143 U. S. 147
out, but respondent avers the fact to be, on information and
belief, that in the matter of said proceedings, said Joseph Boyd
acted unadvisedly and ignorantly, the said last-named proceedings
being in that event unnecessary."
"Respondent further says that in the year 1856, at the age of
22, he left his father's home in Ohio in the firm belief that he,
respondent, was a citizen of the United States in law and in fact
to establish himself in life; that he went to the State of Iowa,
where he resided for a few months."
"In the month of August, 1856, respondent removed to the
Territory of Nebraska, which was then to a large extent a
wilderness, and settled in Douglas County, where he resided for two
years, working at his trade as a carpenter, and in 1857 he was
elected county clerk of said county, and took an oath to support
the Constitution of the United States and the provisions of the
organic act under which the Territory of Nebraska was created.
Respondent removed to what is now Buffalo County, near old Fort
Kearney, which was then upon the extreme frontier, in the fall of
1858, where he engaged in the business of farming, in the midst of
great perils from hostile Indians, suffering years of extreme
hardship. In 1864, at the time of the Indian outbreak in said
vicinity, when the lives and property of settlers were destroyed or
endangered, when many settlers were massacred, when hostile Indians
killed cattle before the door of the home of his family, he
volunteered his services as a soldier of the United States, which
were accepted by the United States government, he being sworn into
its military service by order of General R. B. Mitchell; that he
served as a soldier of the United States, without compensation or
reward, to protect the men, women, and children of the frontier and
to maintain the authority, honor, and flag of the United States
government."
"In the year 1866, respondent was elected a member of the House
of Representatives of Nebraska to represent the Counties of Buffalo
and Hall; that he served as such officer in the following session
of the legislature, to which was submitted the proposition of the
Congress of the United States to accept the first constitution of
this state, with the conditions imposed
Page 143 U. S. 148
by the act of Congress known as the 'Enabling Act,' below named;
that before entering upon the duties of said office, he took the
oath required by law, and swore to support the Constitution of the
United States and the provisions of the organic act under which the
Territory of Nebraska was created."
"In 1868, respondent removed to Douglas County, where he has
since resided. In the year 1871, respondent was elected by the
electors of said county a member of the convention of the people of
the State of Nebraska to form a state constitution, and, after
taking the oath required by law to support the constitutions of the
United States and State of Nebraska, in fact served as a member of
said convention."
"In the year 1875, the respondent was elected by the electors of
said county a member of the convention of the people of the State
of Nebraska to form a constitution, which convention discharged
that duty in the year 1875, which resulted in forming the
constitution under which the government of this state has since
existed. Respondent, after taking the oath required by law to
support the constitutions of the United States and of this state,
in fact served as a member of said convention."
"In 1880, respondent was elected and acted as President of the
City Council of the City of Omaha."
"In 1881, respondent was elected Mayor of the City of Omaha, and
served in said office for two years. In 1885, respondent was again
elected to said office of mayor, and served for two years, and
before taking the office of mayor each of said times respondent
took an oath to support the constitutions of the United States and
of the State of Nebraska."
"Respondent further says that during said period of over 30
years, he has exercised the elective franchise in said territory
and State of Nebraska and enjoyed all the rights, privileges, and
immunities of a citizen of the United States and of said territory
and state."
"Respondent further says that for over 32 years last past, he
has been in fact and in law a citizen of the United States and of
said territory and state; that neither the United States nor the
Territory or State of Nebraska has ever challenged his
Page 143 U. S. 149
citizenship or sought to oust him of the franchise actually
enjoyed and exercised by him to be a citizen of the United States,
and that it is not competent for this relator so to do; that if his
said right and privilege of being a citizen of the United States is
subject to challenge, it is solely for the United States, in its
sovereign capacity, to challenge the same."
"And he further avers that he was at the time of the election in
question, and for more than two years prior thereto, eligible to be
elected to and to hold said office of governor for the term in
question."
"Respondent further says that in 1849, it was his
bona
fide intention to be a citizen of the United States, and that
he then renounced and abjured forever all allegiance and fidelity
to every foreign prince, potentate, state, or sovereignty whatever,
and particularly the Queen of Great Britain and Ireland; that
during all the time since, he has behaved as a man of good, moral
character, attached to the principles of the Constitution of the
United States and well disposed to the good order and happiness of
the same, and all said time has absolutely renounced and abjured
all allegiance and fidelity to every foreign prince, potentate,
state, or sovereignty, and particularly the Queen of Great Britain
and Ireland."
"Further answering, respondent shows to the court that after his
said election as governor, and after he had learned for the first
time that his citizenship had been questioned, and on December 16,
1890, he went before the District Court of the United States for
the District of Nebraska for the purpose of removing all doubts
that might arise thereafter in respect thereof, and by petition to
said court represented to that court the facts necessary to be
known in that behalf touching his said history and citizenship of
the United States, insisting therein that he was and had been for
more than two years next preceding his election to the office of
governor in November, 1890, a citizen of the United States, and
also representing to said court that a question had been raised as
to his citizenship; whereupon said court, by its judgment, found,
determined, and adjudged that he was in fact and law a full citizen
of the United States, and respondent avers that he is,
Page 143 U. S. 150
and for many years last past has been, a citizen of the United
Stated within the meaning and requirements of the acts of Congress
of the United States, a copy of which petition, judgment, and
record is hereto attached and made part of this answer."
"Respondent denies the allegations of the 9th, 10th, and 11th
paragraphs of said information, except that he refuses to surrender
said office of governor to the said relator, and all other
allegations of said information not hereinbefore admitted or
specially answered."
"Wherefore respondent prays to be hence dismissed, with his
costs in this behalf most wrongfully expended, and for such other
and further relief as may be just and proper."
Attached to the answer was a duly certified copy of the
proceedings of the United States district court therein referred
to.
To this answer the relator demurred, and assigned as grounds of
demurrer that the answer did not state facts sufficient to
constitute a defense; that the facts stated were insufficient to
justify the respondent in holding and exercising the office of
governor; that the answer showed on its face that the respondent
was an alien, and ineligible to the office of Governor of Nebraska
in November, 1890 at the time of his pretended election; that the
answer admitted the facts pleaded in the information, showing the
right of the relator to hold the office of governor; that the
exhibits filed by the respondent showed him not to have been a
citizen of the United States prior to December, 1890, wherefore
relator prayed judgment of the court upon the pleadings that the
respondent be ousted from said office of Governor of Nebraska, and
that relator be reinstated therein.
On the 12th of March, 1891, the cause was heard upon the
demurrer, and on the 5th of May of that year the court announced
its opinion, two of the three judges concurring and one dissenting,
and entered judgment of ouster as against respondent and
reinstating the ralator in said office. On the same day, a writ was
issued in accordance with said judgment, and the relator put into
possession of said office in place
Page 143 U. S. 151
of the respondent. The opinions will be found reported, in
advance of the official series, in 48 N.W. 739. A writ of error was
thereupon sued out from this Court.
Page 143 U. S. 157
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
1. In
State v. Stein, 13 Neb. 529, it was held that
where the state at large was interested in a proceeding in
quo
warranto, the Attorney General was, as at common law, the
proper person to institute it, but when the information was filed
by an individual to oust the incumbent from an office and install
the relator therein, it was a personal remedy on behalf of the
individual claiming to be aggrieved, and the state was but a
nominal party.
In the case at bar, the Attorney General refused to file the
information, and the relator obtained leave to prosecute it in the
name of the state, but on his own behalf, as, under the statute, he
was authorized to do. Compiled Stat.Neb. 1891, c. 71, p. 626; Code
Civ.Proc. Tit. 23, p. 954.
Page 143 U. S. 158
By section 2 of article V of the Constitution of the State of
Nebraska, in force November 1, 1875, it was provided:
"No person shall be eligible to the office of governor or
lieutenant governor who shall not have attained the age of thirty
years and been for two years next preceding his election a citizen
of the United States and of this state. None of the officers of the
executive department shall be eligible to any other state office
during the period for which they shall have been elected."
Comp.Stat.Neb. 1891, p. 26.
In
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 549,
Mr. Chief Justice Waite, delivering the opinion of the Court,
said:
"Citizens are the members of the political community to which
they belong. They are the people who compose the community, and
who, in their associated capacity, 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."
There is no attempt in this definition -- which was entirely
sufficient for the argument -- to exclude those members of the
state who are citizens in the sense of participation of civil
rights, though not in the exercise of political functions.
The Constitution provides that no person shall be a
representative who has not been "seven years a citizen of the
United States," Art. I, Section 2, par. 2; that no person shall be
a senator who has not been "nine years a citizen of the United
States," Art. I, Section 3, par. 3; that no person shall be
eligible to the office of President of the United States "except a
natural-born citizen or a citizen of the United States at the time
of the adoption of this Constitution," Art. II, Section 1, par. 4;
and that "the citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states," Art.
IV, Section 2, par. 1; and Congress is empowered "to establish an
uniform rule of naturalization," Art. I, Section 8, par. 4. But
prior to the adoption of the Fourteenth Amendment, there was no
definition of citizenship of the United States in the
instrument.
Mr. Justice Story, in his Commentaries on the Constitution,
says: "Every citizen of a state is
ipso facto a citizen of
the
Page 143 U. S. 159
United States." Sect. 1693. And this is the view expressed by
Mr. Rawle in his work on the Constitution, c. 9, pp. 85-86. Mr.
Justice Curtis, in
Dred Scott v.
Sandford, 19 How. 393,
60 U. S. 576,
expressed the opinion that under the Constitution of the United
States "every free person, born on the soil of a state, who is a
citizen of that state by force of its Constitution or laws, is also
a citizen of the United States." And Mr. Justice Swayne, in
The Slaughter-House
Cases, 16 Wall. 36,
83 U. S. 126,
declared that "a citizen of a state is
ipso facto a
citizen of the United States." But in
Dred Scott
v. Sandford, 19 How. 393,
60 U. S. 404,
Mr. Chief Justice Taney, delivering the opinion of the Court,
said:
"The words 'people of the United States' and 'citizens' are
synonymous terms, and mean the same thing. They both describe the
political body who, according to our republican institutions, form
the sovereignty and who hold the power and conduct the government
through their representatives. They are what we familiarly call the
'sovereign people,' and every citizen is one of this people, and a
constituent member of this sovereignty. . . . In discussing this
question, we must not confound the rights of citizenship which a
state may confer within its own limits and the rights of
citizenship as a member of the union. It does not by any means
follow, because he has all the rights and privileges of a citizen
of a state, that he must be a citizen of the United States. He may
have all of the rights and privileges of the citizen of a state and
yet not be entitled to the rights and privileges of a citizen in
any other state, for previous to the adoption of the Constitution
of the United States, every state had the undoubted right to confer
on whomsoever it pleased the character of citizen, and to endow him
with all its rights. But this character, of course, was confined to
the boundaries of the state, and gave him no rights or privileges
in other states beyond those secured to him by the laws of nations
and the comity of states. Nor have the several states surrendered
the power of conferring these rights and privileges by adopting the
Constitution of the United States. Each state may still confer them
upon an alien, or anyone it thinks proper, or upon any class or
description of persons; yet he would not be a citizen in the sense
in
Page 143 U. S. 160
which that word is used in the Constitution of the United
States, nor entitled to sue as such in one of its courts, nor to
the privileges and immunities of a citizen in the other states. The
rights which he would acquire would be restricted to the state
which gave them. The Constitution has conferred on Congress the
right to establish a uniform rule of naturalization, and this right
is evidently exclusive, and has always been held by this Court to
be so. Consequently no state since the adoption of the Constitution
can, by naturalizing an alien, invest him with the rights and
privileges secured to a citizen of a state under the federal
government, although, so far as the state alone was concerned, he
would undoubtedly be entitled to the rights of a citizen, and
clothed with all the rights and immunities which the Constitution
and laws of the state attached to that character."
The Fourteenth Amendment reads:
"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. No state shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive any
person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection
of the laws."
In
The Slaughter-House
Cases, 16 Wall. 36, it was held by this Court that
the first clause of the Fourteenth Article was primarily intended
to confer citizenship on the negro race, and secondly to give
definitions of citizenship of the United States and citizenship of
the states, and it recognized the distinction between citizenship
of a state and citizenship of the United States by those
definitions; that the privileges and immunities of citizens of the
states embrace generally those fundamental civil rights for the
security and establishment of which organized society was
instituted, and which remain, with certain exceptions, mentioned in
the federal Constitution, under the care of the state governments,
while the privileges and immunities of citizens of the United
States are those which arise out of the nature and essential
character of the national
Page 143 U. S. 161
government, the provisions of its Constitution, or its laws and
treaties made in pursuance thereof, and that it is the latter which
are placed under the protection of Congress by the second clause of
the Fourteenth Amendment.
In
Gassies v.
Ballon, 6 Pet. 761,
31 U. S. 762,
Mr. Chief Justice Marshall declared that "a citizen of the United
States residing in any State of the union is a citizen of that
state," and the Fourteenth Amendment embodies that view.
The Supreme Court of Nebraska decided that James E. Boyd had not
been for two years next preceding his election a citizen of he
United States, and hence that under the constitution of the state,
he was not eligible to the office of governor, and that he was not
a citizen of the United States because during his entire residence
in the territory from 1856 to 1867, and in the state from 1867 to
November 4, 1890, the date upon which he was elected governor, he
was a subject of Great Britain and Ireland.
Arrival at this conclusion involved the denial of a right or
privilege under the Constitution and laws of the United States,
upon which the determination of whether Boyd was a citizen of the
United States or not depended, and jurisdiction to review a
decision against such right or privilege necessarily exists in this
tribunal.
Missouri v. Andriano, 138 U.
S. 496. Each state has the power to prescribe the
qualifications of its officers and the manner in which they shall
be chosen and the title to offices shall be tried, whether in the
judicial courts or otherwise. But when the trial is in the courts,
it is "a case," and if a defense is interposed under the
Constitution or laws of the United States and is overruled, then,
as in any other case decided by the highest court of the state,
this Court has jurisdiction by writ of error.
We do not understand the contention to involve directly a denial
of the right of expatriation, which the political departments of
this government have always united in asserting, Lawrence's Wheaton
925; Whart.Confl.Laws § 5; 8 Op.Attys.Gen. 139; 9
Op.Attys.Gen. 356; Act of Congress of July 27, 1868, 15 Stat. 223,
c. 249; Rev.Stat. § 1999, but that it is insisted that Boyd
was an alien upon the ground that the
Page 143 U. S. 162
disabilities of alienage had never been removed, because he had
never been naturalized.
Naturalization is the act of adopting a foreigner and clothing
him with the privileges of a native citizen, and relator's position
is that such adoption has neither been sought nor obtained by
respondent under the acts of Congress in that behalf.
Congress, in the exercise of the power to establish a uniform
rule of naturalization, has enacted general laws under which
individuals may be naturalized, but the instances of collective
naturalization, by treaty or by statute, are numerous.
Thus, although Indians are not members of the political
sovereignty, many classes of them have been made citizens in that
way.
Elk v. Wilkins, 112 U. S. 94. By
the Treaty of September 27, 1830, provision was made for such heads
of families of the Choctaws as desired it to remain and become
citizens of the United States. 7 Stat. 335. By the Treaty of
December 29, 1835, such individuals and families of the Cherokees
as were averse to a removal west of the Mississippi and desirous to
become citizens of the states where they resided were allowed to do
so.
Id., p. 483. By the Act of Congress of March 3, 1843,
it was provided that on the completion of certain arrangements for
the partition of the lands of the tribe among its members,
"the said Stockbridge tribe of Indians, and each and every of
them, shall then be deemed to be, and from that time forth are
hereby declared to be, citizens of the United States to all intents
and purposes, and shall be entitled to all the rights, privileges,
and immunities of such citizens."
5 Stat. 647. And such was the Act of March 3, 1839, 5 Stat. 349,
351, relating to the Brothertown Indians of Wisconsin.
The Act of Congress approved February 8, 1887, 24 Stat. 388, c.
119, was much broader, and by its terms made every Indian situated
as therein referred to a citizen of the United States.
Manifestly the nationality of the inhabitants of territory
acquired by conquest or cession becomes that of the government
under whose dominion they pass, subject to the right of election on
their part to retain their former nationality by removal or
otherwise, as may be provided.
Page 143 U. S. 163
All white persons or persons of European descent who were born
in any of the colonies or resided or had been adopted there before
1776 and had adhered to the cause of independence up to July 4,
1776, were by the declaration invested with the privileges of
citizenship.
United States v.
Ritchie, 17 How. 525,
58 U. S. 539;
Inglis v. Trustees of Sailors'
Snug Harbor, 3 Pet. 99. In
McIlvaine
v. Coxe's Lessee, 4 Cranch 209, it was held that
Mr. Coxe had lost the right of election by remaining in New Jersey
after she had declared herself a state, and had passed laws
pronouncing him to be a member of the new government, but the right
itself was not denied.
Shanks v.
Dupont, 3 Pet. 242.
Under the second article of Jay's Treaty, 8 Stat. 116, 117,
British subjects who resided at Detroit before and at the time of
the evacuation of the Territory of Michigan, and who continued to
reside there afterwards without at any time prior to the expiration
of one year from such evacuation declaring their intention of
becoming British subjects became
ipso facto, to all
intents and purposes, American citizens.
Crane v. Reeder,
25 Mich. 303.
By Section 3 of Article IV of the Constitution, "new states may
be admitted by the Congress into this union." The section, as
originally reported by the committee of detail, contained the
language:
"If the admission be consented to, the new state shall be
admitted on the same terms as the original ones. But the
legislature may make conditions with the new states concerning the
public debt which shall be then subsisting."
These clauses were stricken out, in spite of strenuous
opposition, upon the view that wide latitude ought to be given to
the Congress, and the denial of any attempt to impede the growth of
the western country. Madison Papers, 5 Elliot 381, 492-493; 3
Gilpin 1456.
And paragraph 2 was added, that
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States, and nothing in this
Constitution shall be so construed as to prejudice any claims of
the United States, or of any particular state. "
Page 143 U. S. 164
By article three of the Treaty of Paris of 1803, 8 Stat. 200,
202, it was provided that
"The inhabitants of the ceded territory shall be incorporated in
the union of the United States, and admitted as soon as possible,
according to the principles of the federal Constitution, to the
enjoyment of all the rights, advantages, and immunities of citizens
of the United States, and in the meantime they shall be maintained
and protected in the free enjoyment of their liberty, property, and
the religion which they profess."
It was said by Mr. Justice Catron in his separate opinion in
Dred Scott v.
Sandford, 19 How. 393,
60 U. S.
525:
"The settled doctrine in the state courts of Louisiana is that a
French subject coming to the Orleans Territory, after the treaty of
1803 was made and before Louisiana was admitted into the union, and
being an inhabitant at the time of the admission, became a citizen
of the United States by that act; that he was one of the
inhabitants contemplated by the third article of the treaty, which
referred to all the inhabitants embraced within the new state on
its admission. That this is the true construction I have no
doubt."
In
Desbois' Case, 2 Martin 185, decided in 1812, one
Desbois, of French birth, applied for a license to practice as a
counselor and attorney at law in the superior courts of Louisiana,
and by one of the rules of the court the applicant could not be
admitted unless he was a citizen of the United States. Desbois
conceded that he had no claim to citizenship by birth nor by
naturalization under the acts of Congress to establish a uniform
rule on that subject, but he contended that there was a third mode
of acquiring citizenship of the United States -- namely the
admission into the union of a state of which he was a citizen. He
contended that as he had, in the year 1806, removed to and settled
with his family in the City of New Orleans in the Territory of
Orleans in contemplation of the enjoyment of all the advantages
which the laws of the territory and of the United States held out
to foreigners removing into that territory, and had ever since
considered it as his adopted country, he had become a citizen under
the Act of Congress of March 2, 1805, further providing for the
territorial government
Page 143 U. S. 165
of Orleans, the Enabling Act of February 20, 1811, and that of
April 8, 1812, admitting the state.
Judge Martin, who delivered the opinion of the court, referred,
among other things, to the fact that the act of Congress
authorizing the formation of the state government of Louisiana was
almost literally copied from that which authorized that of Ohio,
and, pointing out that by the first section of the latter statute,
the inhabitants of the designated territory were authorized to form
for themselves a state constitution, while by the fourth section,
the persons entitled to vote for members of the convention were
described as, first, all male citizens of the United States, and
next all other persons having in all other respects the legal
qualifications to vote for members of the General Assembly of the
territory, which were a freehold of fifty acres of land in the
district and citizenship of one of the states and residence in the
district, or the like freehold and two years' residence in the
district, said:
"The word 'inhabitants' in the first section of this act must be
taken
lato sensu; it cannot be restrained so as to include
citizens of the United States only, for other persons are
afterwards called upon to vote. There is not any treaty or other
instrument which may be said to control it. Every attempt to
restrict it must proceed on principles absolutely arbitrary. If the
word is to be taken
lato sensu in the act passed in favor
of the people of one territory, is there any reason to say that we
are to restrain it in another act, passed for similar purposes, in
favor of the people of another territory?"
And after an able discussion of the subject, he concluded that
the applicant must be considered a citizen of the State of
Louisiana, and entitled to all the rights and privileges of a
citizen of the United States.
In 1813, in
United States v. Laverty, 3 Martin 733,
Judge Hall, of the district court of the United States, held that
the inhabitants of the Territory of Orleans became citizens of
Louisiana and of the United States by the admission of Louisiana
into the union, denied that the only constitutional mode of
becoming a citizen of the United States is naturalization by
compliance with the uniform rule established by Congress,
Page 143 U. S. 166
and fully agreed with the decision in
Desbois' Case,
which he cited.
By the Ordinance for the government of the Northwest Territory
of July 13, 1787, it was provided that as soon as there should be
5,000 free male inhabitants of full age in the district thereby
constituted, they were to receive authority to elect
representatives to a General Assembly, and the qualifications of a
representative in such cases were previous citizenship of one of
the United States for three years and residence in the district, or
a residence of three years in the district and a fee-simple estate
of 200 acres of land therein. The qualifications of electors were a
freehold in 50 acres of land in the district, previous citizenship
of one of the United States, and residence, or the like freehold,
and two years' residence in the district. And it was also provided
that there should be formed in the territory not less than three
nor more than five states, with certain boundaries, and that
whenever any such state should contain 60,000 free inhabitants,
such state should be admitted by its delegates in Congress on an
equal footing with the original states in all respects whatever,
and should be at liberty to form a permanent constitution and state
government provided it should be republican and in conformity with
the articles of compact. 1 Stat. 51
a, Rev.Stat., 2d ed.,
Organic Laws 13, 14.
Reference to the various acts of Congress creating the Indiana
and Illinois Territories, 2 Stat. 58, c. 40, 2 Stat. 514, c. 13,
the Enabling Acts under which the state governments of Ohio,
Indiana, and Illinois were formed, 2 Stat. 173, c. 40 3 Stat. 289,
c. 57; 2 Stat. 428, c. 67, and the act recognizing and resolutions
admitting those states, 2 Stat. 201, c. 7; 3 Stat. 399, 536, and to
their original constitutions, establishes that the inhabitants or
people who were empowered to take part in the creation of these new
political organisms, and who continued to participate in the
discharge of political functions, included others than those who
were originally citizens of the United States. And that the action
of Congress was advisedly taken is put beyond doubt by the language
used in the legislation in question.
In the case of the admission of Michigan, this was
strikingly
Page 143 U. S. 167
shown. By the act of Congress of January 11, 1805, 2 Stat. 309,
c. 5, a part of the Indian Territory was constituted the Territory
of Michigan, and a government in all respects similar to that
provided by the Ordinance of 1787 was established. The Act of
February 16, 1819, 3 Stat. 482, c. 22, authorized that territory to
send a delegate to Congress and conferred the right of suffrage on
the free white male citizens of the territory who had resided one
year therein next preceding the election and had paid county or
territorial taxes. The Act of March 3, 1823, 3 Stat. 769, c. 36,
provided that all citizens of the United States having the
qualifications prescribed by the Act of February 16, 1819, should
be entitled to vote and be eligible to office. By an act of the
territorial legislature of January 26, 1835, the free white male
inhabitants of the territory of full age, who had resided therein
three months preceding "the fourth day of April next in the year
one thousand eight hundred and thirty-five," were authorized to
choose delegates to form a constitution and state government.
Mich.Laws 1835, pp. 72, 75. Delegates were elected accordingly, and
a constitution completed June 29, 1835, and ratified by a vote of
the people November 2, 1835, which provided that every white male
citizen above the age of twenty-one years, who had resided in the
state six months next preceding any election, should be entitled to
vote at any election,
"and every white male inhabitant of the age aforesaid, who may
be a resident of the state at the time of the signing of this
Constitution, shall have the right of voting as aforesaid."
1 Charters & Constitutions 983, 984. This constitution was
laid before Congress by President Jackson in a special message,
December 9, 1835, and a bill was introduced for the admission of
Michigan into the union. While this was under consideration, an
amendment to the provision that, on the assent's being given by a
convention of the people of Michigan to certain boundaries defined
in the bill, the state should be admitted, to strike out the words
"people of the said state," and insert "by the free male white
citizens of the United States over the age of twenty-one years,
residing within the limits of the proposed state," was voted down,
as was also another amendment proposing
Page 143 U. S. 168
to insert, after that part of the bill which declared the
Constitution of the new state ratified and confirmed by Congress,
the words, "except that provision of said Constitution by which
aliens are permitted to enjoy the right of suffrage." The act was
passed June 15, 1836, and, the conditions imposed having been first
rejected, and then finally accepted, the state was admitted into
the union by the Act of January 26, 1837.
In all these instances citizenship of the United States, in
virtue of the recognition by Congress of the qualified electors of
the state as citizens thereof, was apparently conceded, and it was
the effect in that regard that furnished a chief argument to those
who opposed the admission of Michigan. It may be added as to that
state that the state constitution of 1850, as amended in 1870,
preserved the rights as an elector of "every male inhabitant
residing in the state on the 24th day of June, 1835." And in
Attorney General v. Common Council, 78 Mich. 545, 563, the Supreme
Court of Michigan assigned, as one of the reasons for holding the
registry law under consideration invalid, that no provision was
therein made for this class of voters, nor for the inhabitants who
had resided in Michigan in 1850, and declared their intention to
become citizens of the United States, who had the right to vote
under the Constitution of 1850.
The sixth article of the treaty of 1819 with Spain, 8 Stat. 256,
contained a provision to the same effect as that in the treaty of
Paris, and Mr. Chief Justice Marshall said,
Insurance
Co. v. Canter, 1 Pet. 511,
26 U. S.
542:
"This treaty is the law of the land, and admits the inhabitants
of Florida to the enjoyment of the privileges, rights, and
immunities of the citizens of the United States. It is unnecessary
to inquire whether this is not their condition, independent of
stipulation. They do not, however, participate in political power;
they do not share in the government till Florida shall become a
state. In the meantime, Florida continues to be a territory of the
United States, governed by virtue of that clause in the
Constitution which empowers Congress 'to make all needful rules and
regulations respecting the territory or other property belonging to
the United States.' "
Page 143 U. S. 169
At the second session of the Twenty-seventh Congress, in the
case of David Levy, who had been elected a delegate from the
Territory of Florida, where it was alleged that he was not a
citizen of the United States, it was held by the House Committee on
Elections that "it matters nothing whether the naturalization be
effected by act of Congress, by treaty, or by the admission of new
states, the provision is alike applicable."
The question turned on whether Mr. Levy's father was an
inhabitant of Florida at the time of its transfer to the United
States, as the son admitted that he was not a native-born citizen
of the United States, but claimed citizenship through that of his
father, effected by the treaty while he was a minor. The argument
of the report in support of the position that
"no principle has been more repeatedly announced by the judicial
tribunals of the country and more constantly acted upon than that
the leaning, in questions of citizenship, should always be in favor
of the claimant of it,"
and that liberality of interpretation should be applied to such
a treaty, is well worthy of perusal. Contested Elections, 1834-35,
2d Sess. 38th Cong. 41.
By the eighth article of the Treaty with Mexico of 1848, those
Mexicans who remained in the territory ceded, and who did not
declare within one year their intention to remain Mexican citizens,
were to be deemed citizens of the United States. 9 Stat. 930.
By the annexation of Texas, under a joint resolution of Congress
of March 1, 1845, and its admission into the union on an equal
footing with the original states, December 29, 1845, all the
citizens of the former republic became, without any express
declaration, citizens of the United States. 5 Stat. 798; 9 Stat.
108;
McKinney v.
Saviego, 18 How. 235;
Cryer v. Andrews, 11
Tex. 170;
Barrett v. Kelly, 31 Tex. 476;
Carter v.
Territory, 1 N.M. 317.
It is too late at this day to question the plenary power of
Congress over the territories. As observed by Mr. Justice Matthews,
delivering the opinion of the Court in
Murphy v. Ramsey,
114 U. S. 15,
114 U. S.
44:
"It rests with Congress to say whether in a given case any of
the people resident in the
Page 143 U. S. 170
territory shall participate in the election of its officers or
the making of its laws, and it may therefore take from them any
right of suffrage it may previously have conferred, or at any time
modify or abridge it, as it may deem expedient. The right of local
self-government, as known to our system as a constitutional
franchise, belongs, under the Constitution, to the states and to
the people thereof, by whom that Constitution was ordained and to
whom, by its terms, all power not conferred by it upon the
government of the United States was expressly reserved. The
personal and civil rights of the inhabitants of the territories are
secured to them, as to other citizens, by the principles of
constitutional liberty which restrain all the agencies of
government, state and national; their political rights are
franchises which they hold as privileges, in the legislative
discretion of the Congress of the United States. . . . If we
concede that this discretion in Congress is limited by the obvious
purposes for which it was conferred, and that those purposes are
satisfied by measures which prepare the people of the territories
to become states in the union, still the conclusion cannot be
avoided that the act of Congress here in question is clearly within
that justification."
Congress having the power to deal with the people of the
territories in view of the future states to be formed from them,
there can be no doubt that in the admission of a state a collective
naturalization may be effected in accordance with the intention of
Congress and the people applying for admission.
Admission on an equal footing with the original states in all
respects whatever involves equality of constitutional right and
power, which cannot thereafterwards be controlled, and it also
involves the adoption as citizens of the United States of those
whom Congress makes members of the political community, and who are
recognized as such in the formation of the new state with the
consent of Congress.
The organic law under which the Territory of Nebraska was
organized, approved May 30, 1854, 10 Stat. 277, c. 59, provided in
its fourth section for a legislative assembly,
Page 143 U. S. 171
consisting of a council and a house of representatives, and that
the members of the assembly should have the qualification of voters
as thereinafter prescribed. Its fifth section was as follows:
"SEC. 5.
And be it further enacted that every free
white male inhabitant above the age of twenty-one years who shall
be an actual resident of said territory and shall possess the
qualifications hereinafter prescribed shall be entitled to vote at
the first election, and shall be eligible to any office within the
said territory, but the qualifications of voters, and of holding
office at all subsequent elections, shall be such as shall be
prescribed by the legislative assembly,
provided that the
right of suffrage and of holding office shall be exercised only by
citizens of the United States, and those who shall have declared on
oath their intention to become such, and shall have taken an oath
to support the Constitution of the United States and the provisions
of this act,
and provided further that no officer,
soldier, seaman, or marine, or other person in the army or navy of
the United States, or attached to troops in the service of the
United States, shall be allowed to vote or hold office in said
territory by reason of being on service therein."
Sections 10, 11, and 12 of chapter 9 of a General Code for that
territory, entitled "Elections," approved January 26, 1856, read
thus:
"SEC. 10. Every free white male citizen of the United States who
has attained the age of twenty-one years and those who shall have
declared on oath their intention to become such and shall have
taken an oath to support the Constitution of the United States and
the provisions of the organic law of this territory shall be
entitled to vote in the precinct where he resides at all elections,
provided he has been an inhabitant of this territory forty
days and of the county twenty days next preceding the
election."
"SEC. 11. Any member of the board of electors or persons who
have voted at such election may challenge any elector proposing to
vote, whereupon one of the said board shall tender to such elector
the following oath: I, A. B., solemnly swear that I am a citizen of
the United States, or that I have taken
Page 143 U. S. 172
an oath to become such (as the case may be); that I have been an
inhabitant of the County of _____ for the last twenty days and in
this territory for the last forty days, and have attained the age
of twenty-one years, to the best of my knowledge and belief."
"Upon taking such oath, his ballot shall be received."
"SEC. 12. Any person taking any of the oaths herein contained,
knowing them to be false, shall be deemed guilty of perjury."
Sess.Laws Neb. 1855-56, pp. 50, 51.
By section 4 of chapter 27, entitled "Officers," Sess.Laws Neb.
1855-56, p. 79, it was enacted:
"Neither shall any person be entitled to hold any office of
trust or profit in this territory unless he be a free white male
citizen of the United States, and over the age of twenty-one
years."
If by this provision it was intended by the territorial
legislature to deprive those who had declared their intention of
becoming citizens of the right to hold office, we do not regard the
attempt to do so as substantially affecting the argument.
By an act respecting elections approved January 10, 1862,
Sess.Laws Neb. 1861-62, p. 92, it was provided that every free
white male citizen of the United States, and those who had in
accordance with the laws of the United States filed their
declaration of intention to become such, and who had attained the
age of twenty-one years, should be entitled to vote at any election
in this territory. Punishment was prescribed for persons who should
vote when not citizens of the United States, or when they had not
declared their intention to become such, and provision was made for
challenges on the ground that the person had not made the
declaration, provided that no such declaration of intention need be
produced where the person stated that, by reason of the
naturalization of his parents, or one of them, he had become a
citizen of the United States, and when or where his parent or
parents were naturalized. Similar provisions were contained in an
act passed in 1864. Sess.Laws Neb. 1864, p. 108.
On April 19, 1864, Congress passed an act
"to enable the people of Nebraska to form a Constitution and
state government, and for the admission of such state into the
union on
Page 143 U. S. 173
an equal footing with the original states."
13 Stat. 47. The first section was:
"That the inhabitants of that portion of the Territory of
Nebraska included in the boundaries hereinafter designated be, and
they are hereby, authorized to form for themselves a constitution
and state government, with the name aforesaid, which state, when so
formed, shall be admitted into the union as hereinafter
provided."
The third section read:
"That all persons qualified by law to vote for representatives
to the General Assembly of said territory shall be qualified to be
elected, and they are hereby authorized to vote for and choose
representatives to form a convention, under such rules and
regulations as the governor of said territory may prescribe, and
also to vote upon the acceptance or rejection of such Constitution
as may be formed by said convention, under such rules and
regulations as said convention may prescribe, and if any of said
citizens are enlisted in the Army of the United States, and are
still within said territory, they shall be permitted to vote at
their place of rendezvous; . . . and the governor of said territory
shall, by proclamation, on or before the first Monday of May next,
order an election of the representatives aforesaid to be held on
the first Monday in June thereafter throughout the territory, and
such election shall be conducted in the same manner as is
prescribed by the laws of said territory regulating elections
therein for members of the House of Representatives, and the number
of members to said convention shall be the same as now constitute
both branches of the legislature of the aforesaid territory."
Section five provided for the submission of the constitution to
the qualified voters of the territory, as thereinbefore designated,
and that if a majority of the legal votes were cast for the
constitution, the result should be certified to the President,
whereupon it should be his duty
"to issue his proclamation declaring the state admitted into the
union on an equal footing with the original states without any
further action whatever on the part of Congress."
No action was taken by the convention which was elected under
this law, but a constitution was subsequently framed by
Page 143 U. S. 174
the territorial legislature, which completed it February 9,
1866. It was submitted to the people at an election held June 21,
1866, and ratified by a vote of 3,938 against 3,838.
On the 9th of February, 1867, 14 Stat. 391, an act for the
admission of Nebraska into the union became a law which recited
that whereas, on the 19th of April, 1864, Congress passed an act to
enable the people of Nebraska to form a constitution and state
government, and offered to admit said state when so formed into the
union upon compliance with certain conditions therein specified,
and whereas it appears that said people have adopted a constitution
which, upon due examination, is found to conform to the provisions
and comply with the conditions of said act, and that they now ask
for admission into the union, therefore, be it enacted, etc.,
"that the constitution and state government which the people of
Nebraska have formed for themselves be, and the same is hereby,
accepted, ratified, and confirmed, and that the said State of
Nebraska shall be, and is hereby declared to be, one of the United
States of America, and is hereby admitted into the union upon an
equal footing with the original states in all respects
whatsoever."
By the second section it was declared that the new state was
entitled to all the rights, privileges, grants, and immunities, and
was subject to all the conditions and restrictions, of the Enabling
Act. By the third section the fundamental condition was imposed
upon the taking effect of the act that there should be, within the
State of Nebraska, no denial of the elective franchise, or of any
other right, to any person by reason of race or color, excepting
Indians not taxed, and the further fundamental condition that the
legislature of the state should declare the assent of the state to
such conditions, proof of which being transmitted to the President,
he, by proclamation, should announce the fact, and the admission of
the state should be accomplished. This third section was accepted
and ratified by the Legislature of Nebraska on the 20th of February
following, and declared to be part of the organic law of the state,
whereupon, on March 1, 1867, 14 Stat. 820, the President issued his
proclamation that
"Whereas the Congress of the United States did, by an act
Page 143 U. S. 175
approved on the nineteenth day of April one thousand eight
hundred and sixty-four, authorize the people of the Territory of
Nebraska to form a constitution and state government, and for the
admission of such state into the union on an equal footing with the
original states, upon certain conditions in said act specified, and
whereas said people did adopt a constitution conforming to the
provisions and conditions of said act, and ask admission into the
union,"
etc., therefore the admission of the state into the union was
complete.
This constitution provided, Article II, §§ 1, 2,
Charters and Constitutions 1205, that the electors should be white
citizens of the United States and white persons of foreign birth
who had declared their intention to become such, and it was
therefore that Congress imposed the condition referred to which
operated to prevent discrimination by reason of color, and may have
had a broader effect which it is not now necessary to consider.
The fourteenth section of the first article, 2 Charters and
Constitutions 1204, read as follows:
"No distinction shall ever be made by law between resident
aliens and citizens in reference to the possession, enjoyment, or
descent of property;"
and this, it seems to us, taken in connection with the other
provisions, was a clear recognition of the distinction between
those who had and those who had not elected to become aliens.
It follows from these documents that Congress regarded as
citizens of the territory all who were already citizens of the
United States and all who had declared their intention to become
such. Indeed, they are referred to in section three of the Enabling
Act as citizens, and by the organic law the right of suffrage and
of holding office had been allowed to them. Those whose
naturalization was incomplete were treated as in the same category
as those who were already citizens of the United States. What the
state had power to do after its admission is not the question.
Before Congress let go its hold upon the territory, it was for
Congress to say who were members of the political community. So far
as the original states were concerned, all those who were citizens
of such states became, upon the formation of the union, citizens of
the United
Page 143 U. S. 176
States, and upon the admission of Nebraska into the union "upon
an equal footing with the original states in all respects
whatsoever," the citizens of what had been the territory became
citizens of the United States and of the state.
As remarked by Mr. Chief Justice Waite in
Minor v.
Happersett, 21 Wall. 162,
88 U. S.
167:
"Whoever, then, was one of the people of either of these states
when the Constitution of the United States was adopted became
ipso facto a citizen -- a member of the nation created by
its adoption. He was one of the persons associating together to
form the nation, and was consequently one of its original citizens.
As to this there has never been a doubt. Disputes have arisen as to
whether or not certain persons or certain classes of persons were
part of the people at the time, but never as to their citizenship
if they were."
But it is argued that James E. Boyd had never declared his
intention to become a citizen of the United States, although his
father had, and that because, as alleged, his father had not
completed his naturalization before the son attained his majority,
the latter cannot be held to come within the purview of the acts of
Congress relating to the territory and the admission of the state,
so as to be entitled to claim to have been made a citizen
thereby.
The Act of March 26, 1790, 1 Stat. 103, c. 3, provided for the
naturalization of aliens, and then that
"the children of such persons so naturalized, dwelling within
the United States, being under the age of twenty-one years at the
time of such naturalization, shall also be considered as citizens
of the United States."
The third section of the Act of January 29, 1795, 1 Stat. 414,
415, c. 20, provided
"That the children of persons duly naturalized, dwelling within
the United States, and being under the age of twenty-one years at
the time of such naturalization, and the children of citizens of
the United States, born out of the limits and jurisdiction of the
United States, shall be considered as citizens of the United
States,"
etc.
The fourth section of the Act of April 14, 1802, 2 Stat. 153,
155, c. 28, carried into the Revised Statutes as section 2172,
Page 143 U. S. 177
was:
"That the children of persons duly naturalized under any of the
laws of the United States or who, previous to the passing of any
law on that subject by the government of the United States, may
have become citizens of anyone of the said states under the laws
thereof, being under the age of twenty-one years at the time of
their parents being so naturalized or admitted to the rights of
citizenship, shall, if dwelling in the United States, be considered
as citizens of the United States."
In
Campbell v.
Gordon, 6 Cranch 176, it was held that this section
conferred the rights of citizenship upon the minor child of a
parent who had been duly naturalized under the act of 1795,
although the child did not become a resident of the United States
until she came here after that, but before the act of 1802 was
passed.
The rule was to be a uniform rule, and we perceive no reason for
limiting such a rule to the children of those who had been already
naturalized. In our judgment, the intention was that the act of
1802 should have a prospective operation.
United States v.
Kellar, 13 F. 82;
West v. West, 8 Paige 433;
State v. Andriano, 92 Mo. 70;
State v. Penney, 10
Ark. 621;
O'Connor v. State, 9 Fla. 215.
By the second section of the Act of March 26, 1804, 2 Stat. 292,
c. 47, 293, if any alien who had complied with the terms of the act
should die without having completed his naturalization, his widow
and children should be considered citizens upon taking the oaths
prescribed by law, and this was carried forward into section 2168
of the Revised Statutes.
By the first section of the Act of May 26, 1824, 4 Stat. 69, c.
186, carried forward into section 2167 of the Revised Statutes, any
alien, being a minor, who shall have resided in the United States
three years next preceding his arrival at majority and continued to
reside therein, may, upon reaching the age of twenty-one years and
after a residence of five years, including three years of minority,
be admitted a citizen of the United States without having made
during minority the declaration of intention required in the case
of aliens.
The statutory provisions leave much to be desired, and the
attention of Congress has been called to the condition of the
Page 143 U. S. 178
laws in reference to election of nationality, and to the
desirability of a clear definition of the status of minor children
of fathers who had declared their intention to become citizens, but
had failed to perfect their naturalization, and of the status
gained by those of full age by the declaration of intention. 2
Whart.Int.Dig. 340-341, 350.
Clearly minors acquire an inchoate status by the declaration of
intention on the part of their parents. If they attain their
majority before the parent completes his naturalization, then they
have an election to repudiate the status which they find impressed
upon them, and determine that they will accept allegiance to some
foreign potentate or power, rather than hold fast to the
citizenship which the act of the parent has initiated for them.
Ordinarily this election is determined by application on their own
behalf, but it does not follow that an actual equivalent may not be
accepted in lieu of a technical compliance.
James E. Boyd was born in Ireland, of Irish parents, in 1834,
and brought to this country in 1844 by his father, Joseph Boyd, who
settled at Zanesville, Muskingum County, Ohio, and on March 5,
1849, declared his intention to become a citizen of the United
States. In 1855, James E. Boyd, who had grown up in the full belief
of his father's citizenship, and had been assured by him that he
had completed his naturalization by taking out his second papers in
1854, voted in Ohio as a citizen. In August, 1856, he removed to
the Territory of Nebraska. In 1857 he was elected and served as
County Clerk of Douglas County; in 1864 he was sworn into the
military service, and served as a soldier of the federal government
to defend the frontier from an attack of Indians; in 1866 he was
elected a member of the Nebraska Legislature, and served one
session; in 1871 he was elected a member of the convention to frame
a state constitution, and served as such; in 1985 he was again
elected and served as a member of the convention which framed the
present state constitution; in 1880 he was elected and acted as
president of the city council of Omaha, and in 1881 and 1885,
respectively, was elected mayor of that city, serving in all four
years. From 1856 until the state was
Page 143 U. S. 179
admitted, and from thence to this election, he had voted at
every election, territorial, state, municipal, and national. He had
taken, prior to the admission of the state, the oath required by
law in entering upon the duties of the offices he had filled, and
sworn to support the Constitution of the United States and the
provisions of the organic act under which the Territory of Nebraska
was created. For over thirty years prior to his election as
governor, he has enjoyed all the rights, privileges, and immunities
of a citizen of the United States, and of the territory and state,
as being in law, as he was in fact, such citizen.
When he removed to Nebraska, that territory was to a large
extent a wilderness, and he spent years of extreme hardship upon
the frontier, one of the pioneers of the new settlement, and one of
the inhabitants who subsequently formed a government for
themselves. The policy which sought the development of the country
by inviting to participation in all the rights, privileges, and
immunities of citizenship those who would engage in the labors and
endure the trials of frontier life, which has so vastly contributed
to the unexampled progress of the nation, justifies the application
of a liberal, rather than a technical, rule in the solution of the
question before us.
We are of opinion that James E. Boyd is entitled to claim that,
if his father did not complete his naturalization before his son
had attained majority, the son cannot be held to have lost the
inchoate status he had acquired by the declaration of intention,
and to have elected to become the subject of a foreign power, but,
on the contrary, that the oaths he took and his action as a citizen
entitled him to insist upon the benefit of his father's act, and
placed him in the same category as his father would have occupied
if he had emigrated to the Territory of Nebraska; that in short he
was within the intent and meaning, effect and operation, of the
acts of Congress in relation to citizens of the territory, and was
made a citizen of the United States and of the State of Nebraska
under the organic and Enabling Acts and the act of admission.
(2) Another and shorter course of reasoning leads to the same
conclusion.
Page 143 U. S. 180
The respondent, in his answer, after stating that his father, on
March 5, 1849, when the respondent was about fourteen years of age,
made before a court of the State of Ohio his declaration of
intention to become a citizen of the United States, and
averring
"that his father for forty-two years last past has enjoyed and
exercised all of the rights, immunities, and privileges, and
discharged all the duties, of a citizen of the United States and of
the State of Ohio, and was in all respects and to all intents and
purposes a citizen of the United States and of the State of
Ohio,"
and particularly alleging his qualifications to be a citizen,
and his acting as such for forty years, voting and holding office
in that state, further distinctly alleges,
"on information and belief, that prior to October, 1854, his
father did in fact complete his naturalization in strict accordance
with the acts of Congress known as the 'Naturalization Laws,' so as
to admit and constitute him a full citizen of the United States
thereunder, he having exercised the rights of citizenship herein
described, and at said time informed respondent that such was the
fact."
As the allegation last quoted sets up a right and privilege
claimed under the laws of the United States, this Court must
determine for itself the question of the sufficiency of this
allegation, and is not concluded by the view taken of that question
by the Supreme Court of Nebraska. In the words of Mr. Justice
Miller, speaking for this Court:
"The question whether a plea sets up a sufficient defense, when
the defense relied on arises under an act of Congress, does
present, and that necessarily, a question of federal law; for the
question is and must be does the plea state facts which under the
act of Congress constitute a good defense?"
Mitchell v. Clark, 110 U. S. 633,
110 U. S.
645.
It is true that naturalization under the acts of Congress known
as the "Naturalization Laws" can only be completed before a court,
and that the usual proof of naturalization is a copy of the record
of the court. But it is equally true that where no record of
naturalization can be produced, evidence that a person, having the
requisite qualifications to become a citizen, did in fact and for a
long time vote and hold office, and exercise
Page 143 U. S. 181
rights belonging to citizens, is sufficient to warrant a jury in
inferring that he had been duly naturalized as a citizen.
Blight v.
Rochester, 7 Wheat. 535,
20 U. S. 546;
Hogan v. Kurtz, 94 U. S. 773,
94 U. S. 778.
And by the Constitution of Ohio of 1851, none but white male
citizens of the United States were entitled to vote or to hold
office. Article 5, sec. 1; Article 15, sec. 4; Charters and
Constitutions 1472, 1478.
Such being the settled law, we can have no doubt that the fact
that the respondent's father became a naturalized citizen of the
United States before October, 1854, is well pleaded in the
allegation in question, and is therefore admitted by the demurrer.
The allegation
"that prior to October, 1854, his father did in fact complete
his naturalization in strict accordance with the acts of Congress
known as the 'Naturalization Laws' so as to admit and constitute
him a full citizen of the United States thereunder"
necessarily implies that he had been duly naturalized before a
court as required by those laws. Specific allegations of the time
and place at which, and of the court before which, he was so
naturalized, or setting forth a record of his naturalization, would
have been superfluous, and, in view of the respondent's imperfect
information, as manifest upon the face of the allegation, of a
transaction taking place so long ago, hardly possible.
Under this allegation, and the earlier allegations leading up to
it, if traversed, a jury would have been warranted in inferring
that the respondent's father became a citizen of the United States
before October, 1854, and consequently that the respondent himself
was likewise a citizen.
For this reason, without regard to any other question argued in
the case, the respondent was entitled to judgment upon the
demurrer.
MR. JUSTICE HARLAN, MR. JUSTICE GRAY, and MR. JUSTICE BROWN
concur in the conclusion of the court upon the latter course of
reasoning only.
All the justices except MR. JUSTICE FIELD, unite in holding that
this Court has jurisdiction of the case, and that upon this record
James E. Boyd had been for two years next preceding
Page 143 U. S. 182
his election to the office of governor, a citizen of the United
States and of the State of Nebraska.
The judgment of the Supreme Court of Nebraska is reversed,
and the cause remanded to be proceeded in according to law and in
conformity with this opinion.
MR. JUSTICE FIELD, dissenting.
I dissent from the judgment just rendered. I do not think that
this Court has any jurisdiction to determine a disputed question as
to the right to the governorship of a state, however that question
may be decided by its authorities. I agree that the states of the
American union are not in all respects independent political
communities; I agree that they do not possess that supreme
political authority which would entitle them to be called
"sovereign states" in the full sense of those terms, as they are
often designated. They are qualified sovereignties, possessing only
the powers of an independent political organization which are not
ceded to the general government or prohibited to them by the
Constitution. But except as such powers are ceded to the general
government or prohibited to them, the states are independent
political communities. This is not a matter of argument or
inference, but is the express declaration of the Tenth Amendment.
As forcibly stated by Mr. Justice Nelson, speaking for this
Court,
"the general government and the states, although both exist
within the same territorial limits, are separate and distinct
sovereignties, acting separately and independently of each other
within their respective spheres. The former in its appropriate
sphere is supreme, but the states within the limits of their powers
not granted, or, in the language of the Tenth Amendment,
'reserved,' are as independent of the general government as that
government, within its sphere, is independent of the states."
Collector v.
Day, 11 Wall. 113,
78 U. S. 124.
In no respect is this independence of the states more marked or
more essential to their peace and tranquility than in their
absolute power to prescribe the qualifications of all their state
officers, from their chief magistrate to the lowest official
employed in the administration of their
Page 143 U. S. 183
local government; to determine the manner of their election,
whether by open or secret ballot, and whether by local bodies or by
general suffrage; the tenure by which they shall hold their
respective offices; the grounds on which their election may be
contested, the tribunals before which such contest shall be made,
the manner in which it shall be conducted, and the effect to be
given to the decision rendered. With none of these things can the
government of the United States interfere. In all these
particulars, the states, to use the language of Mr. Justice Nelson,
are as independent of the general government as that government,
within its sphere, is independent of the states. Its power of
interference with the administration of the affairs of the state
and the officers through whom they are conducted extends only so
far as may be necessary to secure to it a republican form of
government, and protect it against invasion, and also against
domestic violence on the application of its legislature, or of its
executive when that body cannot be convened. Constitution Article
IV, Section 4. Except as required for these purposes, it can no
more interfere with the qualifications, election, and installation
of the state officers than a foreign government. And all attempts
at interference with them in those respects by the executive,
legislative, or judicial departments of the general government are,
in my judgment, so many invasions upon the reserved rights of the
states and assaults upon their constitutional autonomy.
No clause of the Constitution can be named which in any respect
gives countenance to such invasion. The fact that one of the
qualifications prescribed by the state for its officers can only be
ascertained and established by considering the provisions of a law
of the United States in no respect authorizes an interference by
the general government with the state action. Because an officer of
a state must be a citizen of the United States, it does not follow
that the tribunals of the United States can alone determine that
fact and that the decision of the state in respect to it can be
supervised and controlled by the federal authorities. Nor is there
any decision of this Court that sanctions any such interference.
There is a mere dictum in
Missouri v. Andriano,
138 U. S. 496,
138 U. S. 499,
but no decision to that effect.
Page 143 U. S. 184
That case involved a contest between the parties for the office
of sheriff of a county in Missouri. Among other things, the
constitution of that state declared that no person should be
elected to any office in the state who was not a citizen of the
United States. The relator claimed to have been in possession of
the office since 1884, and entitled to continue until his successor
was elected, commissioned, and qualified, and that the respondent
was not entitled to the office because he was not a citizen under
the Constitution of the United States, having been born in Germany
and not having been naturalized. To this the respondent replied,
admitting his foreign birth and that he had never been naturalized
under the laws of the United States, but claiming that under the
act of Congress of 1802, he became and was a citizen by the
naturalization of his father, that act providing that the children
of citizens of the United States should, though born out of their
limits and jurisdiction, be considered as citizens.
Under that act, the Supreme Court of Missouri held that the
respondent was a citizen of the United States. The case coming to
this Court, it was decided that when a decision of a state court
was in favor of a right or privilege claimed under a statute of the
United States, this Court had no jurisdiction to review it, and the
writ of error was accordingly dismissed. In the opinion delivered
by the Justice of this Court, it was said that, had the judgment of
the Supreme Court of Missouri been adverse to the claim of the
respondent, there could be no doubt of his right to a writ of error
from this Court to review its ruling, a question which was not in
judgment, and what therefore was said respecting it was a mere
dictum, without authoritative force.
The office of sheriff was not a right or privilege claimed under
a law of the United States, but was a right or privilege claimed by
the election under the laws of Missouri. The mere fact that it was
necessary that the incumbent of the office should also be a citizen
of the United States did not of itself give him a right to that
office. It would indeed be a strange ruling to declare that an
office which required the votes of the people of a state or of one
of its districts was a right or privilege
Page 143 U. S. 185
under a law of the United States because one of the
qualifications of the incumbent was that he should be a citizen of
the United States. The necessity of referring to a law of the
United States to ascertain what constituted citizenship did not
make the respondent's right to the office dependent upon that fact
in any such sense as to bring it within the cognizance of the
federal courts. Equally might it be said that a contested claim to
a seat in the legislature of a state could be brought under their
cognizance when the ground of contest happened to be the disputed
citizenship of one of the contestants. It is true the answer to the
attempted exercise of jurisdiction by the courts in the latter case
would be that it is the settled law of legislative bodies, and
hitherto recognized in all our state constitutions, that each house
shall be the exclusive judge of the election and qualification of
its members. But no less settled, and hitherto universally
recognized, in this country is the law which vests exclusive
jurisdiction in each state over the election, qualification, and
installation of its chief executive. There seems to me to be the
same inappropriateness and want of authority in proceeding in the
federal courts for the office in the one case as in the other.
My objection to the decision is not diminished by the fact that
there is no power in this Court to enforce its decision upon the
State of Nebraska should resistance be made to it. Should the
incumbent declared by this Court not to be entitled to the office
refuse to surrender it, and the state authorities should stand by
him in such refusal, what could be done about it? He might well
say:
"I have been declared by the duly constituted authorities of the
state, who alone have the right to inquire into the matter, to be
entitled to the office, and I deny the authority of the general
government, or any department of it, to interfere with my
possession of the office."
How could this Court in such case enforce its order? The
presence of the marshal with a posse to attempt it would be a
painful exhibition of weakness. Would the Court call upon the
general government to sent an army into the state to force upon it
a governor who has been declared by its duly constituted
authorities not to be entitled to the office, and to
Page 143 U. S. 186
oust the one who has been declared by them to be entitled to
it?
I doubt whether any such proceeding would be successfully
carried out, or that the attempt to do it would be sustained by the
executive, or by Congress, or by the people anywhere. I can see
only mischief and trouble to follow from the assertion of any such
power over the authorities of a state as is claimed in this case.
If the right of this Court to interfere in this case can be
sustained, every candidate for office alleging that the successful
party has not some qualification prescribed by statute, which can
only be defined by reference to a federal law, will claim a right
to invoke the interference of the federal judiciary to determine
whether he ought or not to have been declared elected. There is
always and naturally much bitterness and disturbing effect
following interferences by the general government with affairs
exclusively belonging to a state, and this result would be greatly
augmented by recognizing the right here asserted as vested in the
federal judiciary. Few things, in my judgment, would have a greater
tendency to destroy the independence and autonomy of the states,
reduce them to a humiliating position, and engender constant
irritation. Suppose the authorities of the state do decide
erroneously as to the qualification of a person elected -- if the
state acquiesces in the decision, what public policy is to be
subserved by invoking the interference respecting it of the federal
authorities, whom the decision does not concern?
There is already sufficient irritation from alleged
interferences, whether true or not, in local matters by such
authorities, without adding to it a thousandfold by subjecting the
qualifications of state officers and their installation to
unauthorized federal scrutiny.
I therefore at the outset earnestly protest against the
assumption of any such authority.
