§ 463. “A Subject of the Queen.”

The clause of the Bill of 1891, cited above, provided that a State should not make or enforce any law abridging any privilege or immunity of citizens of other States, nor deny to any person, within its jurisdiction, the equal protection of the laws. The framers of that clause did not define State citizenship, as distinguished from municipal citizenship. The term citizen was a novel one in the connection in which it was used. The clause was constructed out of pre-existing materials to be found in two clauses in the Constitution of the United States, viz., (1) “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” (Art. IV. sec. 2.) (2) “Nor shall any State . . deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, sec. 1.)

Referring to the importance of the first of these provisions, Von Holst says:—“To it is chiefly due the fact that, step by step with the progressive development of the United States, the practical nationalization of the people proceeds.” (Const. Law, p. 247.) The marginal note to the clause of the Draft Bill referred to reads:—“And

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protection of citizens of the Commonwealth;” that note is not warranted by the clause itself, which did not mention a citizenship of the Commonwealth, but only protected the privileges and immunities of citizens of States.

Sec. 117 of the present Constitution represents the modest outcome of an attempt on the part of the Convention of 1898 to improve the work of 1891, and to establish a status capable of being designated “Federal citizenship.” It was suggested that in a federal Commonwealth, such as was being called into existence, there should be a full-bloomed national citizenship above and beyond and immeasurably superior to State citizenship. A person might be a domiciled resident of a State and an elector for a State, but at the same time he would occupy a broader and more dignified relationship in his membership of the great federated community, of which the States were separate parts and entities; and that relationship ought to be expressly defined. These contentions, apparently logical, were not sustained. Membership of the federal Commonwealth may, as a legal relation, be deduced from the Constitution, but it is not expressed there in the concrete form which the advocates of the foregoing views proposed.

According to the root meaning of the word, as well as its original use, a citizen was a member of a city. The political life of ancient Greece knew nothing higher or more developed than a city commonwealth, which occasionally combined with other city commonwealths in a kind of Federal Union. The independent self-ruling city was the political unit and the political ideal. A citizen was a member of a city state. The city was, to the Greek, his all in all; he was above all things a citizen. His political career and horizon were restricted to a city community. (Freeman's Greater Greece and Greater Britain, p. 18.) The Greek felt the tie of membership of such a community, with all the duties which sprang from membership. He owed faith and loyalty to his city—loyalty in its true and ancient sense of obedience to the law. The tie was local; the duty was local; of a tie of personal allegiance, binding and subjecting him to a personal superior—of loyalty in that sense the old Greek, the Phœnician never had any thought or experience (id. pp. 19–20.)

In the Roman Republic the term “civitas” expressed the bundle of rights and obligations connoted by citizenship; the conceptions involved in the Roman civitas implied citizenship in an enlarged sense, as denoting not the membership of a city state, as known to the Greeks, but the membership of a complex and highly organized political community which, beginning in the city of the Seven Hills, expanded into a national republic, which united all Italy and then all the known world into one Empire. According to Roman law men were originally divided into citizens (cives) and aliens (perigrini). The rights of citizens fell into two branches, political and civil. Political rights were those relating to the electoral and legislative powers (jus suffragii) and capacity for office (jus honorum); civil rights related to property (commercium) or to marriage (connubium). Aliens were deprived of political rights. They were also refused proprietary and family rights, except to a limited extent. (Poste's Gaius, p. 176.)

In the middle ages, during which the monarchies of modern times grew and became organized, personal allegiance or subjection became the tie which bound the people together, causing them to rally round and acknowledge a leader, who in return for allegiance and service afforded them his protection. Allegiance and subjection were then the test of membership of a political community. The members of such a community owing personal duty to a single sovereign were called “subjects.” That relationship was one that could not be acquired or lost without the permission of the personal sovereign.

“By the English common law, founded on the principle of feudal ligeance and homage, none were admissible as natural-born subjects, if they were not born in a place actually possessed at the time of their birth, either by the king himself or by some prince doing homage to him for it; except, first, the children of any subjects born beyond sea who at the birth of those children should be in the service of the Crown; secondly, the sovereign's children born during the royalty of their parents; and, thirdly,

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the heir of the Crown wherever born.” (Report of the Naturalization Committee, Part I. 1869.)

There is thus a fundamental distinction between a “citizen” as understood in ancient Greece, in ancient Rome, and in modern republics, and a “subject” as understood at common law. (See Note, “A Subject or a Citizen,” § 144, supra.)

The framers of the Constitution of the United States had no difficulty in the selection of a word to denote membership of the nation which they helped to organize. The people of the United States, having successfully rebelled against George III., ceased to be subjects of a monarch; they only recognized the obligation of loyalty to their country, to their Constitution, and to their political institutions. Hence they naturally reverted to the wider conception of citizen, as known to the Roman law, in order to express the idea of membership of the new federal community; they also used the same term to express the idea of membership of the minor groups, the States, within the federal community.

The original Constitution, in its sections relating to the organs of government, provided that no person should be qualified to be elected President or member of Congress unless he was “a citizen of the United States” of so many years standing; these clauses clearly contemplated and recognized, but did not define, a federal citizenship. Then Art. IV. s. 2 provided that the citizens of each State should be entitled to the privileges and immunities of citizens of the several States. This clause recognized a State citizenship distinct from and independent of a Federal citizenship, and from this State citizenship certain important results of advantage to citizens were intended to flow. From these provisions there was deduced the idea, so commonly met with in federal literature, that in a federation there is a dual citizenship as well as a dual system of government. The Constitutional development and formulation of a Federal citizenship was completed by the famous Fourteenth Amendment, passed after the Civil War to establish the equality and freedom of the negro race:—

“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.”

Dr. Burgess has pointed out that before the adoption of that amendment the Constitution contained no definition of citizenship, either of the United States or of a State. It referred to a citizenship of the United States as a qualification for membership of Congress and for the Presidential office, but it did not declare what should constitute such citizenship. The leaders of the State-rights party held that citizenship of the United States was but the consequence of citizenship in some State. The Supreme Court itself indicated that it was inclining to the same view in the decision that a man of African descent could not be a citizen of a State or of the United States; i.e., that the United States Government had not the power to make him so. (Dred Scott v. Sandford, 19 How. 393; Burgess, Political Sc. I. p. 219.)

“This amendment, therefore, reverses the previously-established principle. According to it, citizenship is primarily of the United States; and secondarily and consequently, of the locality in which the citizen of the United States may reside. Citizenship, both of the United States and of the States, is thus conferred by the Constitution of the United States and the laws of Congress made in accordance therewith. The States can neither confer nor withhold citizenship of the United States. A citizen of the United States is now, ipso jure, a citizen of the State in which he may fix his residence; and if any State should undertake to defeat the spirit of this provision by the enactment of hostile laws in regard to the gaining of residence within its limits, any individual suffering injury from the same may invoke the interpretation of the term ‘residence’ by the United States judiciary, and the aid of the general government in the protection of his liberty under that interpretation. There is nothing in this provision, indeed, which would prevent a State from permitting an alien to exercise the privileges of a citizen within the State so far as that particular State is concerned. The provision was meant to enlarge the enjoyment of these privileges, not to contract them.

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It is easy to see, however, that a State may abuse this power to the detriment of the whole people of the United States. For example, a State might permit aliens to hold real estate in such quantities and under such tenures as to introduce a very disturbing element into our general system of ownership of land. I will say nothing at this point concerning the possible, nay, actual, abuse of this power by the States in permitting aliens to exercise the suffrage, since the suffrage cannot be classed among the civil or private rights.” (Burgess, Political Sc. I. p. 219.)

In framing the Constitution of a Federal Commonwealth under the Crown, and in determining the status, conditions, and incidents of membership thereof, several technical difficulties were encountered, such as, what designation should be assigned and what privileges and immunities could be annexed to that membership?

In view of the historical associations and the peculiar significance of the terms “citizens” and “subjects,” one being used to express the membership of a republican community, and the other that of a community acknowledging an allegiance to a personal sovereign, it was obvious that there might have been an impropriety in discarding the time-honoured word “subject” and in adopting a nomenclature unobjectionable in itself but associated with a different system of political government.

Whatever be the reason, rightly or wrongly, the term “citizen” has been rejected and does not appear in the Constitution. In several notable passages in the instrument, the phrase, “the people of the Commonwealth,” is used to denote the personal units composing the national elements of the Commonwealth. The members of the House of Representatives are chosen by “the people of the Commonwealth” (sec. 24). In reckoning the number of “the people of the Commonwealth,” persons belonging to disqualified races are not to be counted (sec. 25). In reckoning the numbers of “the people of the Commonwealth or of a State,” aboriginal natives are not to be counted (sec. 127.) This is the nearest approach in the Constitution to a designation equivalent to citizenship, and intended to indicate membership of the Federal community. When it is sought to express a narrower political relationship than that of the Commonwealth, the phrase “the people of the States” is used. The senators for each State are chosen by “the people of the State” (sec. 7). The number of members of the House of Representatives in each State is determined by dividing “the people of each State” by the quota (sec. 24—ii.). Where it is sought to express a political relationship more comprehensive than either that of the State or that of the Commonwealth, the term used is one denoting British nationality—“a subject of the Queen.” Thus the different gradations of political status recognized by the Constitution are:—

Subjects of the Queen:

People of the Commonwealth:

People of a State.}

In their political relations, as subjects of the Queen, the people are considered as inhabitants and individual units of the Empire over which Her Majesty presides. That is the widest political relationship known to British law. “I am a British subject,” is equal in practical and Imperial significance to the proud boast of the Roman “civis Romanus sum.” Subjects of the Queen, or British subjects, have rights, privileges, and immunities secured to them by Imperial law, which they may assert and enjoy without hindrance in any part of the Queen's dominions, and in British ships on the high seas. In a modified degree some of those rights, privileges, and immunities, founded on treaty, may be enforced in foreign countries. The whole naval and military strength of the Empire, and the assistance of its highest courts of justice, may be invoked for the vindication of those rights, privileges, and immunities.

The people of the Commonwealth constitute only one group of the subjects of the Queen. The people of the Commonwealth are those people who are permanently domiciled within the territorial limits of the Commonwealth. Territorially such people may be called Australians, but constitutionally they are described as British subjects or subjects of the Queen. They do not lose their character as people of the Commonwealth by migrating from one State to another, any more than they lose their national character

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by migrating from one part of the Empire to another, or sojourning in foreign countries. Their privileges and immunities as people of the Commonwealth are secured and guaranteed to them, without regard to their residence in a particular State.

The people of a State compose a group of the people of the Commonwealth. Their privileges and immunities, as members of a State community, depend on their residence within the limits of the State, and their compliance with the requirements of State laws. Within each State there are minor municipal groups designated citizens.

In this connection it is interesting to notice how the need of some word to express colonial citizenship has evolved the phrase “subject of a colony,” first made use of by Sir G. J. Turner, L.J., in Low v. Routledge, L.R. 1 Ch. 42, 1865. Referring to this expression, a writer in 31 Canad. L.J. 37, says: “There is no such thing as a Canadian, Australian, or Indian subject.” Mr. Lefroy, commenting on this observation, admits that in an international sense no doubt this is so; but argues that the authorities on the extra-territorial application of colonial laws show that “there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such.” (Lefroy, Legisl. Power in Canada, p. 329, n.)

Assuming that the establishment of a distinct membership of the Federal community may be inferred from those passages in the Constitution which allude to “the people of the Commonwealth,” we now proceed to consider what incidents are annexed to such a status, and how they can be enforced and how differentiated from incidents annexed to the other condition, State membership, which may be inferred from the use of the expression, “the people of the State.”

FEDERAL PRIVILEGES AND IMMUNITIES.—In the Constitution of the Commonwealth there is no special section corresponding to the Fourteenth Amendment of the American Constitution, declaring who are “the people of the Commonwealth,” affirming their privileges and immunities, and placing them beyond the power of the States to abridge. Since the decision of the Supreme Court of the United States in the celebrated Slaughter-house Cases (16 Wall. 36), it has been doubted, by competent American jurists, whether the Fourteenth Amendment was really necessary in order to place Federal privileges and immunities beyond State control. The mere fact that the Constitution has created privileges and immunities is, it is argued, of itself sufficient to place them beyond the reach of unfriendly State legislation. The State laws can only operate within the sphere of power assigned to the States. The same reasoning applies to the Constitution of the Commonwealth, and accounts for the absence of any affirmation similar to that of the Fourteenth Amendment. The privileges and immunities of the people of the Commonwealth exist within the sphere of Federal power, and by the Constitution itself the Federal laws are paramount and supreme; they cannot be impaired or abridged by State legislation. (Cooley's Principles of Const. Law, 274.)

Although there is no special section affirming the existence of Federal privileges and immunities, such privileges and immunities may be gathered from the express provisions or necessary implications of the Constitution. Among the most prominent Federal privileges may be mentioned those relating to the suffrage—the right to vote at elections for both houses of the Federal Parliament (sec. 41); the right to participate, on terms of equality, in trade and commerce between the States and with other countries (secs. 51—i. and 99); the right to have the benefit of the postal, telegraphic, and telephonic services (sec. 51—v.); the right to share the protection of the naval and military forces of the Commonwealth (sec. 51—vi.); the right to use the navigable waters of the Commonwealth for the purposes of trade and commerce (sec. 98); the right to pass from one State into another and to hold intercourse with foreign countries (secs. 51—i. and 92). To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed. (Story, Comm. § 1937; Crandall v. Nevada, 6 Wall. 35.)

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Immunities are generally the corollaries of privileges. Where a privilege is granted there must be an exemption from interference or obstruction in the enjoyment of the privilege. Consequently, a State could not pass laws which would operate as burdens and impositions and prevent the free exercise of Federal privileges. Thus a State could not require an importer of foreign merchandise to pay a tax for a license to sell such goods. (Brown v. Maryland, 12 Wheat. 419.) Free intercourse between the States being established by the Constitution, a State could not impose a tax on travellers entering or leaving the State. (Crandall v. Nevada, 6 Wall. 35.) The people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts. (Insurance Co. v. Morse, 20 Wall. 445.) A State could not interfere with the freedom of inter-state trade by demanding license fees from the vendors of goods imported from other States (sec. 92).

ENFORCEMENT OF FEDERAL PRIVILEGES AND IMMUNITIES.—As there is no necessity for specially declaring that the privileges and immunities of the people of the Commonwealth may not be abridged by the States, so there is no necessity for specifying any procedure by which they may be enforced. They may be described as self-executing. Every privilege or immunity conferred by the Constitution implies a prohibition against anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a State, in violation of any constitutional privilege or immunity, would be null and void; the courts would not enforce it.