Getting a Passport as a citizen of a State under Article IV Section 2 Clause 1
of the Constitution of the United States of America, In Addition
©2011 Dan Goodman
(with permission)
Note: This is the third of three articles on this topic by the author. The second article is on the preceding page.
It is entitled "Getting a Passport as a citizen of a State under Article IV, Section 2, Clause 1
of the Constitution of the United States of America, More"
The first article is on the page before that.
It is entitled "Getting a Passport as a citizen of a State under Article IV, Section 2, Clause 1
of the Constitution of the United States of America"
A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution cannot obtain a passport, as such a citizen, since the ratification of the Fourteenth Amendment:
“But however this may be, there is no question that there is a citizenship in a state as well as a citizenship in the United States, and that the two citizenships are not identical. There is also no question that, so far as concerns our relation to foreign powers, we have but one nationality, --that of the United States. ‘Although citizens of the United States,’ says Judge Cooley(page 648) (4th ed. Story on Const. § 1937 (page 658)), ‘are commonly citizens of the individual states, this is not invariably the case; and if it were, the privileges which pertain to citizenship under the general government are as different in their nature from those that belong to citizenship in a state as the functions of the one government are different from those of the other. . . . A citizen of the United States, as such, has the right to demand protection against the wrongful action of foreign authorities; to have the benefit of passports for travel in other countries; . . . but the duty of protection to a citizen of a state in his privileges and immunities as such is not by this clause (Section 1, Clause 2, of the Fourteenth Amendment) devolved upon the general government, but remains with the state itself where it naturally and properly belongs [Footnote 1].’
If a citizen of a state desire a passport or safe-conduct to travel in a foreign state he can only receive it as a citizen of the United States; if he desire consular protection abroad, it can only be as a citizen of the United States; if he seek for a sovereign to redress injuries sustained by him abroad, to the United States he must look. No state can issue extradition process to arrest abroad a person who has committed a crime on one of its subjects; the process must issue from the United States. No state can impose regulations on foreign commerce; internationally, this can only be done by the United States. Nor can the nationality of any particular state be recognized in any way by a foreign sovereign; internationally, our only nationality is that of the United States, our only sovereign its government.” A Treatise on the Conflict of Laws or Private International Law, Second Edition; Francis Wharton, LL. D., (Philadelphia: Kay and Brother); 1881, page 23, Note.
https://books.google.com/books?id=NOFAAAAAYAAJ&pg=PA23#v=onepage&q&f=false
As emphasized in the second paragraph of the quote from Wharton, Conflicts of Laws, a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, can only seek redress to injuries sustained by him (or her) abroad by looking to the United States government, not to the government of the particular State. Which means that a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is a citizen of the United States, for purposes of nationality under international law:
“§ 32. In several important relations, therefore, as is well shown by Savigny, domicil determines the particular territorial jurisprudence to which every individual is subjected. It is true that, at the first view, this feature of domicl may be said to apply with peculiar exclusiveness to the several states of a common empire, in their relations to each other; as in the case of the states . . . of the American Union . . . . No one can doubt that, from the reason of the thing, as well as from the force of precedent, when a dispute arises between a subject of one of these particular states and a subject of another, it is the law of particular domicl that is to settle the legal character of each. In relation to all other jurisdictions in the United States, for instance, a person domiciled in Massachusetts [Footnote 2] is to be viewed as clothed with the incidents with which the Massachusetts law invests individuals. His will must be executed according to Massachusetts formalities. His goods descend according to the Massachusetts law of intestacy. His personal rights are, with certain restrictions, to be defined by Massachusetts jurisprudence. His nationality is that of the United States, and by the laws of the United States he is bound in all matters in which the United States ARE sovereign. But in all matters in which the states are sovereign, his domicil is in his particular state [Footnote 3], [Footnote 4]; and the same distinction applies to the citizens of other federative empires.” A Treatise on the Conflict of Laws or Private International Law, Second Edition; Francis Wharton, LL. D., (Philadelphia: Kay and Brother); 1881, page 73, §32.
https://books.google.com/books?id=NOFAAAAAYAAJ&pg=PA73#v=onepage&q&f=false
And it also means that a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, can obtain a passport under 22 U.S.C. 212. This is because such a citizen owes allegiance to the United States, that is the several States united.
Story, (5th) Comments on the Constitution, writes the following on the word “citizen”:
“§ 1932. The word ‘citizen’ is employed in the law in different senses under different circumstances. As generally employed, however, it may be said to mean a person owing allegiance to the government, and entitled to protection from it.” Commentaries on the Constitution of the United States, Fifth Edition; Joseph Story, LL. D., (Boston: Little, Brown, and Company); 1891, Volume II, page 683, §1932.
https://books.google.com/books?id=Vr75ZxjpyRoC&pg=PA683#v=onepage&q&f=false
A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is entitled to privileges and immunities of a citizen of the several States, under Article IV, Section 2, Clause 1 of the Constitution [Footnote 5], and as such is now also a citizen of the several States, under Article IV, Section 2, Clause 1 of the Constitution. [Footnote 6]
Before the Fourteenth Amendment, a citizen of a State was also a citizen of the United States [Footnote 7]. Before the Fourteenth Amendment, a citizen of the United States was the same as a citizen of the several States united [Footnote 8]. Therefore, a citizen of a State, before the Fourteenth Amendment, was also a citizen of the several States united [Footnote 10].
However, the Fourteenth Amendment changed that. In the Slaughterhouse Cases, the Supreme Court split the two equivalent terms. Thereafter, there was a citizen of the United States and a citizen of the several States (united):
“It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” Slaughterhouse Cases: 83 U.S. 36, 74 (1873).
https://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA74#v=onepage&q&f=false
Since the Fourteenth Amendment and the Slaughterhouse Cases, there is a citizen of the United States, who is not a citizen of the several States (united) and a citizen of the several States (united) who is not a citizen of the United States. [Footnote 11]
A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is also a citizen of the several States; that is, a citizen of the several States united. As such, a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, owes allegiance to the several States united; that is, the United States:
“Whoever, owing allegiance to the United States [Footnote 12], levies war against THEM [Fn 12] or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” 18 U.S.C. 2381 (2010).
https://www.law.cornell.edu/uscode/718/usc_sec_18_00002381----000-.html
22 U.S.C. 212 (2010) states:
“No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.”
https://www.law.cornell.edu/uscode/422/usc_sec_22_00000212----000-.html
The Supreme Court of the United States says this about the word “citizen” used in the Constitution and laws of the United States:
“ . . . In the Constitution and laws of the United States, the word ‘citizen’ is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a State or of the United States.” Baldwin v. Franks: 120 U.S. 678, at 690 (1887).
https://books.google.com/books?id=c04GAAAAYAAJ&pg=PA690#v=onepage&q&f=false
So the term “citizens” used in 22 U.S.C. 212, refers to both a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, and a citizen of the United States, under Section 1 of the Fourteenth Amendment.
Thus, a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, since the adoption of the Fourteenth Amendment, can get a passport under 22 U.S.C. 212.
__________________
Footnotes:
1. Privileges and immunities of citizen of a State are located in the constitution and laws of an individual State:
“. . . Whatever may be the scope of section 2 of article IV — and we need not, in this case enter upon a consideration of the general question — the Constitution of the United States does not make the privileges and immunities enjoyed by the citizens of one State under the constitution and laws of that State, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another State under its constitution and laws.” McKane v. Durston: 153 U.S. 684, at 687 (1894).
https://books.google.com/books?id=mmkUAAAAYAAJ&pg=PA687#v=onepage&q=&f=false
2. “We come to the contention that the citizenship of Edwards was not averred in the complaint or shown by the record, and hence jurisdiction did not appear.
In answering the question, whether the Circuit Court had jurisdiction of the controversy, we must put ourselves in the place of the Circuit Court of Appeals, and decide the question with reference to the transcript of record in that court.
Had the transcript shown nothing more as to the status of Edwards than the averment of the complaint that he was a ‘resident of the State of Delaware,’ as such an averment would not necessarily have imported that Edwards was a citizen of Delaware, a negative answer would have been impelled by prior decisions. Mexican Central Ry. Co. v. Duthie, 189 U.S. 76; Horne v. George H. Hammond Co., 155 U.S. 393; Denny v. Pironi, 141 U.S. 121; Robertson v. Cease, 97 U.S. 646. The whole record, however, may be looked to, for the purpose of curing a defective averment of citizenship, where jurisdiction in a Federal court is asserted to depend upon diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such allegation, that is sufficient. Horne v. George H. Hammond Co., supra and cases cited.
As this is an action at law, we are bound to assume that the testimony of the plaintiff contained in the certificate of the Circuit Court of Appeals, and recited to have been given on the trial, was preserved in a bill of exceptions, which formed part of the transcript of record filed in the Circuit Court of Appeals. Being a part of the record, and proper to be resorted to in settling a question of the character of that now under consideration, Robertson v. Cease, 97 U.S. 648, we come to ascertain what is established by the uncontradicted evidence referred to.
In the first place, it shows that Edwards, prior to his employment on the New York Sun and the New Haven Palladium, was legally domiciled in the State of Delaware. Next, it demonstrates that he had no intention to abandon such domicil, for he testified under oath as follows: ‘One of the reasons I left the New Haven Palladium was, it was too far away from home. I lived in Delaware, and I had to go back and forth. My family are over in Delaware.’ Now, it is elementary that, to effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil, and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350.
As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 thru 383 (1904).
https://books.google.com/books?id=tekGAAAAYAAJ&pg=PA381#v=onepage&q&f=false
3. “Referring to §1307 of Mr. Justice Story’s Commentaries on the Constitution, and the cases cited, to which he added Benton v. Burgot, 10 S. & R. 240, the learned judge inquired: ‘What, then, is the right of a state to exercise authority over the persons of those who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it?’ (p. 450) and quoted from Vattel, Burge, and from Mr. Justice Story (Conflict of Laws, c. 14, §539), that ‘ “no sovereignty can extend its process beyond its own territorial limits to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals,” ’ and thus continued: ‘ “Such is the familiar, reasonable, and just principle of the law of nations; and it is scarce supposable that the framers of the Constitution designed to abrogate it between States which were to remain as independent of each other, for all but national purposes, as they were before the revolution. . . . . (page 296)
Publicists concur that domicile generally determines the particular territorial jurisprudence to which every individual is subjected. As correctly said by Mr. Wharton, the nationality of our citizens is that of the United States, and by the laws of the United States they are bound in all matters in which the United States ARE sovereign; but in other matters, their domicile is in the particular State, and that determines the applicatory territorial jurisprudence. A foreign judgment is impeachable for want of personal service within the jurisdiction of the defendant, this being internationally essential to jurisdiction in all cases in which the defendant is not a subject of the State entering judgment; and it is competent for a defendant in an action on a judgment of a sister State, as in an action of a foreign judgment, to set up as a defense, want of jurisdiction, in that he was not an inhabitant of the State rendering the judgment and had not been served with process and did not enter his appearance. Whart. Conflict Laws, §§ 32, 654, 660; Story Conflict Laws, §§ 539, 540, 586.
John Benge was a citizen of Maryland when he executed this obligation. The subject-matter of the suit against him in Pennsylvania was merely the determination of his personal liability.” Grover & Baker Sewing Machine Company v. Radcliffe: 137 U.S. 287, at 296, 297 thru 298 (1890).
https://books.google.com/books?id=htIGAAAAYAAJ&pg=PA296#v=onepage&q&f=false
4. To see that a citizen of the United States, under Section 1 of the Fourteenth Amendment, cannot have a domicile in a particular State, refer to the author’s work “Citizenship and Domicile: Before and After the Fourteenth Amendment.”
5. “There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of another State.” Harris v. Balk: 198 U.S. 215, at 223 (1905).
https://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA223#v=onepage&q=&f=false
“. . . So, a State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office. It has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each State of the privileges and immunities secured by the Constitution TO CITIZENS OF THE SEVERAL STATES. The Constitution forbids only such legislation affecting citizens of the respective States as will substantially or practically put a citizen of one State in a condition of alienage when he is within or when he removes to another State, or when asserting in another State the rights that commonly appertain to those who are part of the political community known as the People of the United States, by and for whom the Government of the Union was ordained and established. Blake v. McClung: 172 US. 239, at 256 thru 257 (1898).
https://books.google.com/books?id=G2oUAAAAYAAJ&pg=PA256#v=onepage&q&f=false
6. “The intention of section 2 of Article 4 was to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions.” Cole v. Cunningham: 133 U.S. 107, at 113 thru 114 (1890).
https://books.google.com/books?id=oGYUAAAAYAAJ&pg=PA113#v=onepage&q=&f=false
“In speaking of the meaning of the phrase ‘privileges and immunities of citizens of the several States,’ under section second, article fourth, of the Constitution, it was said by the present Chief Justice, in Cole v. Cunningham, 133 U.S. 107, that the intention was ‘to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions..’ “ Maxwell v. Dow: 176 U.S. 581, at 592 (1900).
https://books.google.com/books?id=8toGAAAAYAAJ&pg=PA592#v=onepage&q&f=false
7. “The defendant in error is alleged in the proceedings to be a citizen of the United States, naturalized in Louisiana, and residing there. This is equivalent to an averment that he is a citizen of that state.” Gassies v. Ballon: 31 U.S. (Peters 6) 761,762 (1832).
https://books.google.com/books?id=ES43AAAAIAAJ&pg=RA1-PA762#v=onepage&q&f=false
“This cause has been heard on demurrer to the bill, which alleges, in substance, that the defendant was born prior to April 6, 1841, at Fishmoyne, in the parish of Down and Inch, and county of Tipperary, Ireland, and was an alien; that he remained there till 18(6)2, when he came to this country, and arrived at New York about May 13th of that year, when over 18 and about 20 years old (Note: 1841 + 20 = 1861, thus 1862, not 1882); that on October 22, 1867, without having made any declaration of intention to become a citizen of the United States, he presented a petition for naturalization to the superior court of the city of New York, . . . that thereupon the required oaths were taken, and a certificate in due form was issued. . . . .
. . . But, whatever the fact was, the administration of the oaths and issuing of the certificate showed the satisfaction of the court as to the requirements, constituting a judgment of admission to citizenship, with the force of such a judgment upon the status of the applicant. . . .
The defendant became a citizen of the state of New York, AS WELL AS of the United States.” United States v. Gleason: 78 F. Rep. 396 (1897).
https://books.google.com/books?id=1ZoKAAAAYAAJ&pg=RA1-PA396#v=onepage&q=&f=false
8. “The act of Congress referred to in the first section of the act of 11th April, 1799 is repealed and supplied by an act passed 14th April, 1802, which is incorporated in this note for the purpose of connecting the whole law on the subject.
‘An act to establish an uniform rule of naturalization, and to repeal the acts heretofore passed on that subject.
Be in enacted, &c. That any alien being a free white person, may be admitted to become a citizen of the United States, or any of them [See Footnote 9], on the following conditions, and not otherwise:
First, That he shall have declared, on oath or affirmation, before the Supreme, Superior, District or Circuit Court of some one of the states or of the territorial districts of the United States, or a Circuit or District Court of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce for ever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whereof such alien may, at the time, be a citizen or subject.
Secondly, That he shall, at the time of his application to be admitted, declare on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state, or sovereignty whereof he was before a citizen or subject, which proceedings shall be recorded by the clerk of the court.’ ” Laws of the Commonwealth of Pennsylvania, From the Fourteenth Day of October, One Thousand Seven Hundred. Republished, Under the Authority of the Legislature with Notes and References, Volume 4, (1810); Philadelphia: John Bioren, page 364.
https://books.google.com/books?id=HO1BAAAAYAAJ&pg=PA364#v=onepage&q=&f=false
9. The term “the United States,” as used therein, refers to the several States united:
“At the time of the formation of the constitution, the States were members of the confederacy united under the style of ‘the United States of America,’ and upon the express condition that ‘each State retains its sovereignty, freedom, and independence.’ And the consideration that, under the confederation, ‘We, the people of the United States of America,’ indubitably signified the people of the several States of the Union, as free, independent and sovereign States, coupled with the fact that the constitution was a continuation of the same Union (“a more perfect Union”), and a mere revision or remodeling of the confederation, is absolutely conclusive that, by the term, ‘the United States’ is meant the several States united as independent and sovereign communities; and by the words, ‘We, the people of the United States,’ is meant the people of the several States as distinct and sovereign communities, and not the people of the whole United States collectively as a nation.” Stunt v. Steamboat Ohio: 4 Am. Law. Reg. 49, at 95 (1855), Dis. Ct., Hamilton County, Ohio; and (same wording) Piqua Bank v. Knoup, Treasurer: 6 Ohio 261, at 303 thru 304 (1856).
https://books.google.com/books?id=pWhKAAAAYAAJ&pg=PA95#v=onepage&q&f=false
https://books.google.com/books?id=UfADAAAAYAAJ&pg=PA303#v=onepage&q&f=false
This is also shown in the Constitution of the United States of America at Article II, Section 1, Clause 7, whereat it states:
“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
10. “ . . . For all national purposes embraced by the federal constitution, the states and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign to, and independent of each other.” Buckner v. Finley: 27 U.S. (Peters 2) 586, at 590 (1829).
https://books.google.com/books?id=lm8DAAAAQAAJ&pg=PA590#v=onepage&q&f=false
“ . . . [T]he States of this Union, although united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sovereignties, independent of each other.” Commonwealth of Kentucky v. Dennision: 65 U.S. (Howard 24) 66, at 100 (1860).
https://books.google.com/books?id=FpkGAAAAYAAJ&pg=PA100#v=onepage&q&f=false
“The people of the United States constitute one nation, under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence. The States disunited might continue to exist. Without the States in union there could be no such political body as the United States.
Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved.” Lane County v. the State of Oregon: 74 U.S. (Wall. 7) 71, at 76 (1868).
https://books.google.com/books?id=MfY7AAAAIAAJ&pg=PA76#v=onepage&q&f=false
reaffirmed, at White v. State of Texas: 74 U.S. (Wall. 7) 700, at 725 (1868).
https://books.google.com/books?id=MfY7AAAAIAAJ&pg=PA725#v=onepage&q&f=false
11. Privileges and immunities of a citizen of the several States are not the same as the privileges and immunities of a citizen of the United States:
“ ‘ . . . The privileges and immunities of citizens of the United States protected by the fourteenth amendment, are privileges and immunities arising out of the nature and essential character of the federal Government, and granted or secured by the Constitution.’ Duncan v. Missouri (1904) 152 U.S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485; Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394.
The provisions of section 2, art. 4, of the federal Constitution, that citizens of each state shall be entitled to privileges and immunities of citizens of the several states, are held to be synonymous with rights of the citizens. Corfield v. Coryell, supra. This section is akin to the provision of section 1 of the fourteenth amendment, as respects privileges and immunities, but the former is held not to make the privileges and immunities (the rights) enjoyed by citizens of the several states the measure of the privileges and immunities (the rights) to be enjoyed as of right, by a citizen of another state, under its Constitution and laws. McKane v. Durston, 153 U.S. 684, 14 Sup. Ct. 913, 38 L. Ed. 867. This rule necessarily classifies citizens in their rights to the extent that a citizen of one state when in another state must be governed by the same rules which apply to the citizens of that state as to matters which are of the domestic concern of the state. Cole v. Cunningham, 133 U.S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; People v. Gallagher, 93 N.Y. 438, 45 Am. Rep. 232; Butchers’ Union v. Crescent City, Mo., 111 U.S. 746, 4 Sup Ct. 652, 28 L. Ed. 585; Ex parte Kinney, 14 Fed. Cas. 602; Douglas v. Stephens, 1 Del. Ch. 465.” Strange v. Board of Commission: 91 N.E. 242, at 246 (1910).
https://books.google.com/books?id=T_QKAAAAYAAJ&pg=PA246#v=onepage&q=&f=false
“§ 1937. It is to be observed, however, that it is not the privileges (and immunities) of citizens of the several States which are to be protected under the clause now being considered (Section 1, Clause 2 of the Fourteenth Amendment), but ‘the privileges and immunities of citizens of the United States.’ The difference is in a high degree important.” Commentaries on the Constitution of the United States, Fifth Edition; Joseph Story, LL. D., (Boston: Little, Brown, and Company); 1891, Volume II, page 683, §1937.
https://books.google.com/books?id=Vr75ZxjpyRoC&pg=PA687#v=onepage&q&f=false
12. The term “the United States,” as used therein, refers to the several States united:
“At the time of the formation of the constitution, the States were members of the confederacy united under the style of ‘the United States of America,’ and upon the express condition that ‘each State retains its sovereignty, freedom, and independence.’ And the consideration that, under the confederation, ‘We, the people of the United States of America,’ indubitably signified the people of the several States of the Union, as free, independent and sovereign States, coupled with the fact that the constitution was a continuation of the same Union (“a more perfect Union”), and a mere revision or remodeling of the confederation, is absolutely conclusive that, by the term, ‘the United States’ is meant the several States united as independent and sovereign communities; and by the words, ‘We, the people of the United States,’ is meant the people of the several States as distinct and sovereign communities, and not the people of the whole United States collectively as a nation.” Stunt v. Steamboat Ohio: 4 Am. Law. Reg. 49, at 95 (1855), Dis. Ct., Hamilton County, Ohio; and (same wording) Piqua Bank v. Knoup, Treasurer: 6 Ohio 261, at 303 thru 304 (1856).
https://books.google.com/books?id=pWhKAAAAYAAJ&pg=PA95#v=onepage&q&f=false
https://books.google.com/books?id=UfADAAAAYAAJ&pg=PA303#v=onepage&q&f=false
This is also shown in the Constitution of the United States of America at Article III, Section 3, Clause 1, whereat it states:
“Treason against the United States, shall consist only in levying War against THEM.”
https://www.archives.gov/exhibits/charters/constitution_transcript.html
Note: The author is aware of an inconsistency in his presentation in this work and his related works on this topic. That inconsistency is that since the Slaughterhouse Cases, a citizen of the United States is now not the same as a citizen of the several States as well as a citizen of the several States is now not the same as a citizen of the United States. And yet a citizen of the several States is now the same a citizen of the United States, for purposes of nationality. The answer to this inconsistency is that there are some provisions from the organic Constitution of the United States of America, as shown above, and at [Footnote 9] that still show “the United States” as being the same as “the several States united.” Which means either the Slaughterhouse Cases, is invalid for splitting the equivalent terms, or that for purposes of nationality, in the United States, there are now two citizens: a citizen of the United States and a citizen of the several States united. The author favors the latter:
“If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress. Save for the powers committed by the Constitution to the Union, the State of Florida has retained the status of a SOVEREIGN. . . . .
. . . When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.” Skiriotes v. State of Florida: 313 U.S. 69, at 77, 78 thru 79 (1941).
https://scholar.google.com/scholar_case?case=9757650854292938204
However, in the area of marriage (and divorce) a particular State has exclusive authority:
“ . . . [I]t is certain that the Constitution of the United States confers no power whatever upon the government of the United States to regulate marriage in the States or its dissolution.” Andrews v. Andrews: 188 U.S. 14, at 32 (1903).
https://books.google.com/books?id=Gd4GAAAAYAAJ&pg=PA32#v=onepage&q&f=false
“ . . . Every state has the power to enact laws which will personally bind its citizens while sojourning in a foreign jurisdiction provided such laws profess to so bind them, and to declare that marriages contracted between its citizens in foreign states in disregard of the statutes of the state of their domicile will not be recognized in the courts of the latter state, though valid where celebrated. Roth v. Roth, 104 Ill. 35, 44 Am Rep. 81. The question, therefore, is whether the statute quoted was clearly intended to apply to marriages contracted outside the state, for, unless the intention is clear, the operation of the statute must be limited to marriages within the state . . . .
. . . These cases sustain the principle that, where a state has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a positive policy of the state for the protection of the morals and good order of society against serious social evils, a marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void.” Wilson v. Cook: 100 N.E. 222, at 222 thru 223 (1912).
https://books.google.com/books?id=3PwKAAAAYAAJ&pg=PA222#v=onepage&q&f=false
A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is a citizen of the several States, when on the high seas:
“Action to have a certain marriage between plaintiff and defendant declared valid and binding upon the parties. A second amended complaint alleged: That on August 2, 1897, defendant was a minor of the age of 15 years and 10 months, and that her father, one A. C. Thomson, was her natural and only guardian. Plaintiff was of the age of 21 years and 10 months, and both plaintiff and defendant were citizens and residents of Los Angeles county, Cal. On said day plaintiff and defendant, at Long Beach, on the coast of California, boarded a certain fishing and pleasure schooner, of 17 tons burden, called the ‘J. Willey,’ duly licensed under the laws of the United States, of which W. L. Pierson was captain, and was enrolled as master thereof, and had full charge of said vessel. Said vessel proceeded to a point on the high seas about nine miles from the nearest point from the boundary of the state and of the United States. The parties then and there agreed, in the presence of said Pierson, to become husband and wife, and the said Pierson performed the ceremony of marriage, and, among other things, they promised in his presence to take each other for husband and wife, and he pronounced them husband and wife. Neither party had the consent of the father or mother or guardian of defendant to said marriage. . . .
Appellant contends (1) that the marriage is valid because performed upon the high seas; and (2) that it would have been valid if performed within this state, because there is no law expressly declaring it to be void. Respondent presents the case upon two propositions, claiming (1) that no valid marriage can be contracted in this state, except in compliance with the prescribed forms of the laws of this state, and contract a valid marriage.
Sections 4082, 4290, 722, Rev. St. U.S., are cited by appellant as recognizing marriages at sea and before foreign consuls, and that section 722 declares the common law as to marriage to be in force on the high seas on board American vessels. We have carefully examined the statutes referred to, and do not find that they give the slightest support to appellant’s claim. The law of the sea, as it may relate to the marriage of citizens of the United States domiciled in California, cannot be referred to the common law of England, any more than it can to the law of France or Spain, or any other foreign county. We can find no law of congress, and none has been pointed out by appellant, in which the general government has undertaken or assumed to legislate generally upon the subject of marriage on the sea. Nor, indeed, can we find in the grant of powers to the general government by the several states, as expressed in the national constitution, any provision by which congress is empowered to declare what shall constitute a valid marriage between citizens of the several states upon the sea, either within or without the conventional three-mile limit of the shore of any state; and clearly does no such power rest in congress to regulate marriages on land, except in the District of Columbia and the territories of the United States, or where is power of exclusive jurisdiction. We must look elsewhere than to the acts of congress for the law governing the case in hand.” Norman v. Norman: 54 Pac. Rep. 143, 143 thru 144 (1898).
https://books.google.com/books?id=-QwLAAAAYAAJ&pg=PA143#v=onepage&q&f=false
According to the United States Navy, one can be a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, without being a citizen of the United States, under the Fourteenth Amendment:
“As a man may be a citizen of a State without being a citizen of the United States, and as Section 1428, Revised Statutes, requires all officers of all United States vessels to be citizens of the United States, all officers of the Naval Militia must be male citizens of the United States as well as of the respective States, Territories, of the District of Columbia, of more than 18 and less than 45 years of age.” General Orders of Navy Department (Series of 1913); Orders remaining in force up to January 29, 1918; General Order No. 153, Page 17, Para 73.
https://books.google.com/books?id=zYEtAAAAYAAJ&pg=PA17#v=onepage&q&f=false
And, from the “United States Naval Institute Proceedings”, Volume 45, No. 7, July 1919, at page 1790 thru 1791 there is the following:
https://books.google.com/books?id=kEELP3wiHvAC&pg=PA1790#v=onepage&q&f=false
“Merchant Marine . . .
The nationality of those shipped as officers (excluding masters) and men (counting repeated shipments) before United States Shipping Commissioners, as returned to the Bureau of Navigation, Department of Commerce, was as follows for 1914 and 1919:
Nationality 1914 1919
Others 11,442 38,811
Those classed as “others” are mainly from the countries of South America, citizens of the several states which have been created by the war, and Swiss shipping as stewards.—U.S. Bulletin, 9/8.”
This report of the Nationality of Crews can be seen for the years 1907 through 1922, inclusive, at these links:
https://books.google.com/books?id=8y0pAAAAYAAJ&pg=PA38#v=onepage&q&f=false
https://books.google.com/books?id=oC4pAAAAYAAJ&pg=PA14#v=onepage&q&f=false
(on page 15)
Again, a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is a citizen of the several States, on the high seas.
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To read the second article by the author on this topic click this link:
To read the first article by the author on this topic click this link: