''t^^ir*" i^' "> ^f*~"^^- ' ' *
UNIVERSITY OF CALIFORNIA
THE RIGHT OF SUFFRAGE IN THE
UNITED vSTATES. ^
BY TALIESIN EVANS.
j AMERICAN CITIZENSHIP i
I. FEDERAL CITIZENSHIP .... 2
II. STATE CITIZENSHIP . . . . . 54
- THE RIGHT OF SUFFRAGE .... 61
I. VOTING QUALIFICATIONS IN THE SEVERAL STATES 85
II. VOTING QUALIFICATIONS IN THE TERRITORIES 140
III. THE DISTRICT OF COLUMBIA . . .141
IV. ANALYSIS OF VOTING QUALIFICATIONS . 143
V. OFFICE-HOLDING AND THE ELECTIVE FRANCHISE 147
THE FEDERAL CONSTITUTION . . . .177
AMENDMENTS TO THE CONSTITUTION . . 189
APPENDIX . . . . . . 194
INDEX ... 199
In the preparation of this book, no special claim is
made to originality, for it is, to a large extent, a compi-
lation of national and state laws affecting citizenship and
the right of voting in the United States, and of such
questions relating thereto as have, from time to time,
been passed upon by the Courts. Public sentiment in
the United States is drifting rapidly in the direction of
"restricted foreign immigration." At the same time,
the nature of the restrictions now placed upon it, is not
as generally understood as it should be. But there is an
impression, amounting almost to a conviction, that
further restrictions are needed to defend the ballot box
the palladium of our liberties as it is open, in many
quarters, to direct assault by the unnaturalized foreigner,
who has no sympathy with our institutions or interest in
our national welfare. Perhaps a perusal of these pages
will show the weak points in our political system. An
effort has been made to treat the subject in a manner and
in a form that will make it acceptable and instructive to
the American student, and interesting and useful to those
of foreign birth who are desirous of obtaining the priv-
ilege of American citizenship and the right of the elective
franchise. TAUESIN EVANS.
OAKLAND, CAI,., March i, 1892.
The ordinary definition of citizenship is "the state
of being vested with the rights and privileges of a
citizen." Such a definition is, however, vague and uncer-
tain at best. It involves the determination of what con-
stitutes a citizen, and what are the rights and privileges
which a citizen enjoys to the exclusion of the person who
is not a citizen. A citizen, in the popular meaning of
the word, is .a member of the community to which he
belongs. Citizens are the people who compose the com-
munity, 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 for the protection of their individual as well as their
collective rights (i). Citizenship, therefore, implies mem-
bership in a nation. As a member of the body politic, a
citizen, whether native or naturalized, is a person who
owes allegiance to the government, who must submit to
taxation for its support and give it service in case of
necessity, and who is entitled, in return, to "liberty of
person and conscience, to the right of acquiring and pos-
sessing property, of marriage and the social relations, of
suit and defense, and to security in person, estate and
reputation (2)." Citizenship, in this broad and general
(1) 92 U. S. Rep. 542.
(2) i Litt. (K.), 323-
2 AMERICAN CITIZENSHIP.
sense, draws no line as to sex, age, race, color or condi-
tion, providing the person claiming it has been born
within the territorial boundaries of the nation, and is
under its jurisdiction, or has been naturalized in con-
formity with its laws, or has acquired it through the
operation of a treaty, or by means of a special act of Con-
gress, or by means of any other regular and lawful method,
and has not, through the commission of any unlawful act,
or any other cause, forfeited what he may have acquired
by either of the processes described.
The political interpretation of citizenship in the United
States implies the right to vote at all elections held for
the filling of public offices or for the determination of
measures affecting the public welfare, and a qualification
to fill such offices as may be in the gift of the people or
attainable by appointment.
American citizenship is divided, however, into two
separate and distinct classifications Federal and State
each of which may be entirely independent of the other.
I. FEDERAL CITIZENSHIP.
A person may be a citizen of the United States without
enjoying State citizenship and the special rights andpriv-
leges which State citizenship confers.
Prior to the adoption of the Fourteenth Amendment of
the Constitution of the United States, no mode existed of
FEDERAL CITIZENSHIP. 3
obtaining citizenship of the United States, except by first
becoming a citizen of some State. It had been long con-
tended, and had been held by many learned authorities,
and had never been judicially decided to the contrary,
that there was no such thing as a citizen of the United
States, except as that condition arose from citizenship of
some State. The Fourteenth Amendment of the Consti-
tution set that controversy at rest, for it defines and
declares who shall be citizens of the United States,
namely: "all persons born or naturalized in the United
States and subject to the jurisdiction thereof." Congress
was empowered by the amendment "to enforce by appro-
priate legislation" its provisions; and it did so, by enact-
ing that ' 'all persons born in the United States, and not
subject to any foreign power, excluding Indians not taxed,
are declared to be citizens of the United States ( i ) . " The
constitutional qualification, "subject to the jurisdiction
thereof," was intended to exclude the children of foreign
representatives, who, if born in the United States, are
recognized as being born within "obedience and allegi-
ance of the country which the parents officially represent."
But whatever special rights and privileges it may be in
the power of a State to confer upon its citizens, there are
certain constitutional rights which all Federal citizens
enjoy in common (2), whether they are citizens of States
or not. As to these common rights, the Federal Con-
stitution establishes an equality between all persons,
although it may be unable to confer equality as to othe r
(1) Rev. Stats. U. S., Sec. 1992.
( 2 ) 3 Hughes. 13.
4 FEDERAL CITIZENSHIP.
privileges (i). These, rights in common are known as
"privileges and immunities," and are fundamental in
character. These privileges and immunities have been
judicially defined to be "the right to come to the seat of
government to assert any claim he (the citizen) may have
upon the government ; to transact any business he may
have with it ; to seek its protection ; to share its offices ;
to engage in administering its functions ; to have free
access to its seaports, through which all the operations of
foreign commerce are conducted ; to use the navigable
waters of the United States, however they may penetrate
the territory of the several States ; to free access to
the sub- treasuries, the land offices, the revenue offices
and the courts of justice in the several States ; to peace-
ably assemble and petition for redress and grievances ;
to the privilege of the writ of habeas corpus ; to demand
the care and protection of the Federal Government over
his life, liberty and property, when on the high seas or
within the jurisdiction of a foreign government ; the
enjoyment of all rights secured to citizens by foreign
treaties with foreign nations, and the right to become a
citizen of any State, of his own volition, by a bona fide
residence therein (2)."
These general privileges of Federal citizenship may
be acquired :
By inheritance that is, by virtue of one's parentage or
place of birth.
(1) 3 Hughes, 16.
(2) 6 Wallace, 35, 44; 16 Wallace, 36.
FEDERAL CITIZENSHIP. 5
By marital relations.
By the cession or transfer of foreign territory.
By special act of Congress.
By admission of a territory to Statehood.
FEDERAL CITIZENSHIP BY INHERITANCE.
Federal citizenship may be acquired by inheritance, by
virtue of the citizenship of the father, irrespective of the
place of birth. Thus, a child born in a foreign country,
whose father is a citizen of the United States, is a Fed-
eral citizen by virtue of his father's citizenship, and under
the law of expatriation (i). But a child born abroad, of
persons once citizens of the United States, who have be-
come citizens of a foreign power, is not a citizen of the
United States (2). And there is a statutory limitation to
the right of descent of such citizenship, for if a Federal
citizen thus born abroad remains abroad, and has issue
without ever having resided within the territorial bound-
aries of the United States, such issue has no claim to
All children heretofore or hereafter born out of the limits and jurisdiction
of the United States, whose fathers were or may be at the time of their birth
citizens thereof, are declared to be citizens of the United States ; but the rights
ol citizenship shall not descend to children whose fathers never resided in the
United States.- Rev. Stats. U. S., Sec. 799?.
But the child of a Federal representative born while
abroad in an official capacity (3), and a child born of
American parents on board an American vessel lying in
(1) 4 McCrary, 66; 3 Ball., 133.
(2) 14 Atty. Gen. op. 295.
(3) i Abb. U. S. 28, 40; i Am. T. I,. U. S. S. C. 22.
6 FEDERAL CITIZENSHIP.
a foreign port or sailing on the high seas, are native born
citizens (i) of the United States, because, by a fiction of
law, the foreign residence of any official representative
and a vessel carrying the national flag, are construed to
be American soil, each being within the protection and
obedience of the sovereign government (2). It has been
held, however, that a female child born abroad whose
father was an American citizen, but whose mother was a
native of the country in .which she was born, and who
subsequently remained in the land of her nativity and
married a citizen .thereof, was a citizen of that country
and not of the United States (3).
Federal citizenship may be acquired by inheritance by
virtue of the place of birth, irrespective of the status of the
Birth within the dominion and jurisdiction of the
United States creates citizenship of itself (4).
All persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United States.
Rev. Stats. U. S. , Sec. 1992.
To secure this birthright to the offspring, it is not nec-
essary that the residence of the parents within the domin-
ion and jurisdiction of the United States shall be bona
fide or permanent. If the child is born "within the
dominion and jurisdiction" during the temporary sojourn-
ment of its alien parents, it is enough. The child thus
born is a natural born citizen. To illustrate : Julia
Lynch was born in New York in the year 1819, of
(i) 5 Blatchford, 18.
(2, 3 Peters, 99.
(3) 12 Atty. Gen. op. ,7.
(4) Sandf. 584, 639; 21 Fed. Rep. 905; 17 Chicago I,eg. News, 57.
FEDERAL CITIZENSHIP. 7
alien parents, during their temporary sojournmemt in
that city. The temporary character of their residence in
New York was shown by their return to their native
country the same year. But Julia was held by the
s/ Court to be a citizen of the United States, on the prin-
ciple that ' 'every person born within the dominion and
allegiance of the United States, whatever the situation
of the parents, is a natural born citizen (i)."
Federal citizenship may be acquired by inheritance by
virtue of the place of birth, notwithstanding the ine" legi-
bility of the parents to citizenship. The Chinese are
ineligible to citizenship of the United States by .,a pro-
hibitory act of Congress (2), but "a person born within
the United States of Chinese parents residing therein
and not engaged in any diplomatic or official capacity
under the Emperor of China, is a citizen of the United
States (3)," notwithstanding the parental disability.
But an Indian born within the dominion of the United
States whose parents are members of an Indian tribe,
does not acquire Federal citizenship by virtue of his
birthplace, for the reason that Indian tribes are not sub-
ject to the jurisdiction of the United States or owing it
allegiance, and the child has, therefore, not been born
within Federal jurisdiction (4).
The naturalization of the alien father confers Federal
citizenship on the minor child (5).
(i)Saiidf.,58 3 .
(2) Passed February 18, 1875.
(3) 21 Fed. Rep., 905; 10 Sawyer, 353; 35 F. R, 354; 36 F. R. 437, 553.
(4) 2 Sawyer 118; 6 Sawyer, 406; 10 Atty. G. op. 328, 329; 211 U. S. 94: 25 Mich
303; 38 Texas 96; 58 Maine 353: 8 Paige 433; 9 Florida 205.
(5) Rev. Stats. U. S., Sec. 2172.
FEDERAL CITIZENSHIP BY MARRIAGE.
Federal citizenship may be acquired by marriage.
Any woniau who is now or may hereafter be married to a citizen of the
United States, and who might herself be lawfully naturalized, shall be deemed
a citizen. Rev. Stats. U. S , Sec. 1994.
If the husband is an alien at the time of marriage, and
afterwards becomes naturalized, the wife becomes a citi-
zen by virtue of her husband's naturalization (i). And
her marriage to a naturalized citizen makes her a citizen,
although she may have lived for years at a distance
from him, and may never have come to this country
until after his death (2). Her citizenship is not lost,
either, by surviving her husband; but she may lose it by
marrying an alien (3). But the marriage of a femme
sole> or single woman, of United States citizenship with
an alien, produces no dissolution of her native allegiance
(4), nor does the act of marriage confer citizenship upon
him. A married woman, of alien birth, may be natu-
ralized, however, without the consent of her husband (5).
The marriage tie makes a widow and her children
citizens, even though the husband and father may not
have been a citizen at the time of death, provided he
had declared his intention to become one.
When any alien, who has complied with the first condition specified in
section twenty-two hundred and six.y-five, dies before he is actually natural-
ized, the widow und the children of such alien shall be considered as citizens
of the United States, and shall be entitled to all rights and privileges as
such, upon taking the oath prescribed by law. Rev. Stats. U. S., Sec. 2168.
(i) 7 Wall. 496, isAtty. G. op; 116, 600; 6 Sawyer 603; 5 F. R. 82; n Biss. 314;
44 N. Y. Sup. Ct. 535.
(2^63 Ga. 458; 80 N.Y. 171; 63 N. C. 299; 26 How. Pr. 474; 14 Atty. G. op. 402,
(3) 3 Pet. 242; 15 Atty. G. op. 600; 16 t ed. Rep. 211.
(4) 3 Pet 99, 242.
\5) isBlatch. 406.
FEDERAL CITIZENSHIP. 9
The widow and orphans of an alien resident whose
fulfillment of other requirements of the naturalization
laws, after declaring his intention to become a citizen,
has been interrupted by death, acquire citizenship by
virtue of the principle which relieves the owner of an
insured vessel or cargo of the penalty of loss, when such
loss is caused by an act of God through the agency of the
elements or other unforeseen and unavoidable event. If
they were deprived of the benefit of his bonajide intention
(an intention which it is reasonable to presume he would
have faithfully carried into effect had he lived) through
his death, they would be suffering the penalty of an act
of God, for which no man can be held responsible.
"The children of persons who have been duly naturalized under any law
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 any one
of the States, under the laws thereof, being under the age of twenty-one years
at the time of the naturalization of their parents, shall, if dwelling in the
United states, be considered as citizens thereof; and the children of persons
who now are, or have been, citizens of th6 United States, shall, though born
out of the limits and jurisdiction of the United States, be considered as citizens
thereof; but no person hereafter proscribed by any State, or who has been
legally convicted of having joined the army of Great Britain during the Revo-
lutionary War, shall be admitted to become a citizen without the consent of
the legislature of the State in which such person was proscribed." Rev. Stats.
U. S. , Sec. 2172.
FEDERAL CITIZENSHIP BY TERRITORIAL CESSION.
The transfer of territory from one nation to another
carries with it the allegiance of those remaining in it at
the time of the transfer (i). Thus, the allegiance of resi-
dents of territory ceded to the United States is thereafter
due to the United States, unless differently specified in
the articles of cession (2) . The doctrine of election of per-
(1) Peters, 542.
(2) i McAllister^-Circ. o/* Cal.), 193.
10 FEDERAL CITIZENSHIP.
sons who are residents of annexed territory, to become
citizens of the country to which it has been annexed, or to
return to their mother country, has been recognized by the
courts (i). The treaty of Guadalupe Hidalgo (2), ceding
Mexican territory to the United States, gave Mexicans
(3) residing within the ceded territory the right to choose
their allegiance within one year after the date of the ex-
change of treaty ratifications. Those who remained in
.the territory, ceded, after the expiration of one year, with-
out having declared their intention to retain the character
of Mexicans, were considered to have elected to become
citizens of the United States (a). The inhabitants of
(1) 20 How., 8 ; itJ How.,. 235 ; i New Mexico, 29, 317 ; 3 Ala., 546 ; i Clark'
Pa., 214 ; 2 Mast., La., 185; i McAllister, 186.
(2) Article VIII of the Treaty of Queretaro.
(.3) The language of the treaty is "Mexicans," not Mexican citizens,
and it has been contended that such of the Indian race as had severed
their tribal relations and adopted the civilization of the Franciscan
missionaries, and become attached to the several mission establish-
ments located in the territory ceded, and who are commonly known
as Mission Indians, come under the operation of the term " Mexi-
cans"; but the point has never been judicially determined.
(a) "Mexicans now established in territories previously belonging to Mexico,
and which remain, for the future, within the limits of the United States, as
defined by the present treaty, shall be free to continue where they now reside,
or to remove at any time to the Mexican Republic, retaining the property
which they possess in the said territories, or disposing thereof^ and removing
the proceeds wherever they please, without their being subjected, on this
account, to any contribution', tax, or charge whatever,
Those who shall prefer to remain in the said territories may either retain
the title and rights of Mexican citizens, or acquire those of citizens of the United
States. But they shall be under the obligation to make their election within
one year from the date of the exchange of ratifications of this treaty ; and
those who shall remain in the said territorie after the expiration of that year,
without having declared their intention to retain their character of Mexicans,
shall be considered to have decided to become citizens of theUnited States.
In the said territories, property of every kind, now belonging to Mexicans
not established there, shall be inviolably respected. The present owners, the
heirs of these, and all Mexicans who may hereafter acquire said property by
contract, shall enjoy with respect to it guarantees equally ample as if the same
belonged to citizens of the United States." Article VIII, Treaty of Queretaro,
May 26, 1848.
"The Mexicans who, in the territories aforesaid, shall not preserve the
character of citizens of the Mexican Republic, conformably with what is stipu-
lated in the preceding article, shall be incorporated into the Union of the
FEDERAL CITIZENSHIP. II
Louisiana were incorporated in the Union of the United
States, and admitted to all the rights of Federal citizen-
ship, promptly after the ratification of the treaty of
cession (b). The treaty with Russia, ceding to the United
States the territory of Alaska, ratified and proclaimed
June 20, 1867, gave the inhabitants of the ceded territory
(uncivilized tribes excepted) the right of reserving their
national allegiance and returniiig-to Russia within three
years ; those remaining in the ceded territory after that
period were admitted to United States citizenship (c)-.
The annexation of the Republic of Texas as a State gave
its citizens Federal citizenship, subject to the provisions
of the State Constitution (d). By the cession of the Flor-
idas to the United States by Spain, the allegiance of the
United States, and be admitted at the proper time (to be judged of by the
Congress of the United States) to the enjoyment of all the rights of citizens
of the United States, according to the principles of the Constitution ; and in
the meantime shall be maintained and protected in the free enjoyment of
their liberty and property, and secured in the free exercise of their religion
without restriction."^^. IX, Treaty of Queretaro, May 26, 1848.
(b) "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
principle of the Federal Constitution, to the enjoyment of all the rights,
advantages and immunities of citizens of the United States ; and in the mean
time they shall be maintained and protected in the free enjoyment of their
liberty, property and the religion which they profess." Art. Ill, Treaty of
Paris, April 30, 1803.
(c) " The inhabitants of the ceded territory, according to their choice, re-
serving their natural allegiance, may return to Russia within three years ; but
if they should prefer to remain in the ceded territory, they, with the exception
of uncivilized native tribes, shall be admitted to the enjoyment of all the
rights, advantages and immunities of citizens of the United States, and shall
be maintained a d protected in the free enjoyment of their liberty, property and
religion. The uncivilized tribes will be subject to such laws and regulations
as the United States may from time to time adopt in regard to aboriginal tribes
of that country." Art. Ill, Treaty of Washington, June 20, 1867.
(d) ''All free male persons over the age of twenty-one years (Indians not
taxed, Africans and descendants of Africans excepted), who shall have resided
six months in Texas, immediately preceding the acceptance of this Constitu-
tion by the Congress of the United States, shall be deemed qualified elect-
ors.".^. 2, Art. II, Const, of Texas, 1845.
12 FEDERAL CITIZENSHIP.
inhabitants thereof was transferred peremptorily to the
United States, with the somewhat indefinite provision
* 'as soon as may be consistent with the principles of the
Federal Constitution (e)."
The principle that the allegiance of the citizens of ceded
territory passes from the nation making the cession to
the nation receiving it, at the time the cession is consum-
mated, is, however, limited in its application and opera-
tion. It relates only to the natural born citizens of the
nation making the cession. Naturalized citizens of the
nation making the cession residing within the territory
ceded at the time of the transfer, do not share with the
native born in this political transition. The act of ces-
sion restores the naturalized citizen to his original civil
and political status, whatever that may have been before
he became naturalized, for the reason that the allegiance
which he owed to the government of his adoption was
purely voluntary and statutory (i).
Birth binds man by the tie of natural allegiance to the
soil ; and the right to change the political relations of an
inhabitant of ceded territory from the sovereign govern-
ment making the cession, and within whose dominion
and under whose jurisdiction such inhabitant was born,
(e) "The inhabitants of the ceded territories shall be secured in the free exer-
cise of their religion, without any restriction; and all those who may desire
to remove to the Spanish dominions shall be permitted to sell or export their
effects, at any time whatever, without being subject, in either ca^e, to duties.