EMLIN M'CLAIN. 23 SPECIAL ADDRESS. CITIZENSHIP OF THE UNITED STATES EMLIN MCCLAIN, OF DES MOINES. The recognition in our constitutional system of written constitutions as a part of the law which the courts are to interpret and apply, has had the effect of making the judiciary a co-ordinate department of government in the full sense Our courts share in the molding of our governof the termi. mental policy and the development of our institutions, and have in that respect a responsibilty equally great wth that of the legislative and executive departments. A corresponding power as to the interpretation of treaties, which by the Federal constitution are made a part of the law of the land, imposes upon the judiciary like responsibilities with referQuestions of statesmanship ence to our foregn relations. and diplomacy, which in other forms of government are exclusively within the scope of the legislative and executive departments, become for us matters for the consideration of the judiciary as well, and it is necessary, therefore, that the judges shall possess and employ the learning, the judgment and the capacity for forecastng the consequences of a rule of interpretation or decision which are recognized as essential to broad statesmanship, and also the knowledge of international law and the full appreciation of the foreign policies which wisdom would dictate, not only for an immediate emergency, but for all time, such as ought to characterize SPECIAL ADDRESS. the skillful and accomplished diplomatist. For the discharge of the duties of a judge in this respect something more is required than a knowledge of precedents and keen discernment in the application of the rules of private law to individual cases. Chief Justice Marshall is revered as a great jurist, but his fame rests rather upon the exercise by him of a wise statesmanship and the possession of sound and vigorous views as to the foreign relations of the government whose system and policies he did much to mold, than upon his technical knowledge of the law or his skill in its application. He is rightly ranked among the foremost statesmen of his time and country, but such rank was not achieved solely or principally by his services in the legislature and the constitutional convention of Virginia, and in the House of Representatives, but rather by his opinions in the cases of Marbury V. Madison, Gibbons v. Ogden, McCullough v. Maryland, and other cases in which the true nature of our constitutional system was developed. He was an able diplo matist, but his fame in that respect rests not upon his services as Secretary of State under President Adams nor as one of the commissioners to France for the purpose of preserving peace with that country without the sacrifice of our independence and self-respect as one of the family of nations, but rather on his opinions in the cases of "The Nereide," "The Exchange," "The Venus," "the Gran Para," and like cases in which the foreign policy of the federal government was developed. The great chief justice and his associates had much to do with determining the course of our political as well as our constitutional history, and their successors, from time to time down to the present day, have justly been credited with a large and beneficent influence in the building of this nation. And let us not hesitate to recognize now and at all times the debt which the nation owes to the judges of our highest judicial tribunal for the care, patience, skill, learning and judgment with which great questions of in EMLIN M'CLAIN. ternal and foreign policy have been considered and decided. That their views have not always been harmonious, that they have been unable to agree at once on the fundamental principles which ought to guide their decisions in determining some of the new and intricate questions which have come before them, should not be a subject of regret, but rather of congratulation, for their very differences give to us an assurance that every possible phase of the subjects con sidered has been presented and discussed, and that out of such discussion will eventually come the announcement of principles on which our governmental policy may safely rest. If our wisest legislators have been radically divided in their views as to the interpretation of the federal constitution in determining the relations of the government to newly acquired territory beyond the limits of the North American continent, as to which our constitutional forefathers in their long foresight with reference to the possible extension of the dominion of the United States had no anticipation or dream, it is not surprising that the justices of the Supreme Court should also differ in the interpretation to be given to that constitution as applied to the people of such territory, or the true poli y to be pursued by the government in its relations to such peoples. If questions like these can come before the courts, then they are proper for the consideration of lawyers, and the members of the legal profession are not only justified, but may properly be expected to take an intelligent interest in their solution, and to exercise a controlling influence in molding the public judgment, for back of the government stands the body of the people, and the success of any governmental policy must ultimately rest on their intelligent approval. These considerations justify the presentation to the members of a bar association of such a subject as has been chosen for this address,-Citizenship in the United States as a Legal Status, and the privileges and immunities involved SPECIAL ADDRESS. as incident to that status. In the consideration of such questions we are not only warranted, but required to have constantly in view the public interest and welfare, not only of the people of the newly-acquired territory, but of the whole people, and the conséquences to them of the adoption of any proposed policy and course of conduct. Let us be anxious that these questions be rightly solved; but let us also free ourselves from any unreasonable and merely captious fear that whatever the solution reached, after wise consideration, the principles of our system of government will be overthrown, or that it may be found inadequate to the emergencies arising out of new conditions. Inability to so interpret our constitution or develop our institutions as to meet such new conditions will result, if it does result, not in consequence of any lack of wisdom in laying the foundations of our system of government, or from insurmountable obstacles which new conditions have occasioned, but from incapacity and lack of courage and secure confidence in the judgment and ability of an enlightened people to do justice and keep in mind the ultimate purposes of government. The subject of citizenship and its privileges and immunities is involved in our foreign relations and in our constitutional system, in diplomacy, and in statesmanship, and, as a necessary preparation for considering the problems recently forced upon us by the acquisition of territory inhabited by alien races, not nomadic bands of Indians living under tribal governments, but peoples more or less civilized and enlightened, although living heretofore under a system of government and laws radically differing from our own, we should have in mind the difficulties as to citizenship which have already arisen, and the conclusions which have been reached in solving these difficulties, in order that the new problems may be solved in harmony with the principles already recognized and established. It becomes necessary, therefore, to notice for a few minutes the historical development of the EMLIN M'CLAIN. conception of citizenship which now prevails in this country, for it will soon become apparent that the term has necessarily with us a meaning differing somewhat from that with which it has been used elsewhere. Indeed, it is very interesting to notice at the very beginning of the discussion that this term, as employed in our constitutional documents and in common parlance, is not in general use, either in a legal or colloquial way, among the people of Great Britain, from whom our legal and popular language and institutions have been so largely derived. In European countries, where the civil law prevails, citizenship is a term of definite significance, but English writers on constitutional and international law speak not of British citizens, but of British subjects, and possibly there is here some clue to the solution of the questions which have perplexed and are still perplexing us. The Roman citizen was such originally by reason of membership, by actual or fictitious relation, of a tribe or class. He inherited the right to the protection of the laws and participation in the affairs of government. An alien or foreigner was one not belonging to such tribe or class. Citizenship did not pertain to the Roman by reason of birth or residence within the territory of the sovereign state, but as a privilege resulting from individual relationship. True it was that in course of time citizenship was extended to all, but it was so extended by incorporation of those not enjoying the privilege into the class of those who were entitled to enjoy it. It was not a territorial right, so to speak, but a personal right. It did not have necessary relation to the sovereign authority of the government over the individual, but to the privileges which the individual was allowed to enjoy, especially by reason of some participation in the affairs of government. The feudal system involved conceptions of personal relation between a superior and an inferior, as well as of territorial sovereignty. But its primary concern was with the |