domicil being supposed to be agreed upon. By this signification of the term the provision would, under the first of the readings before supposed, give to all domiciled inhabitants of each State, native, &c., only a right to enter and remain within other States of the Union, being therein subject to whatever regulations and distinctions the State has the power to establish among its own domiciled inhabitants; and the only rights which the domestic alien could claim, against the power of the State, would be such as the Constitution of the United States may have guaranteed to all persons subject to State jurisdiction. Under the third of the readings above supposed, this international right of entry, then limited to those domestic aliens only who are "citizens" in the sense of having a peculiar condition of privilege, would, in like manner, make their subjection, in the State forum to which they might come as domestic aliens, the same as that of the domiciled inhabitants of the State.

Supposing a condition of civil privilege, beyond that attributable to persons simply as the domiciled inhabitants of a State, native or naturalized, to be implied by the term citizen, the question would arise under the third and fourth of the readings above given, What is the personal extent of the term "the citizens of each State," in this sense of the word citizen? and under the second and fourth readings, What is the nature of the privileges and immunities secured or guaranteed by that latter part of the clause?

§ 634. Not only then must the use of the term citizen, in this provision, be determined, either in the sense of a domiciled inhabitant, native or naturalized, under the law of Congress, or in the sense indicating a condition of superior privilege; but, if the latter sense is adopted, it must be inquired:

1. Whether the persons to be so regarded as "citizens of each State" are determined by the juridical will of the State of their domicil; or whether there is some national or common standard for their recognition. (For, since the persons alluded to are spoken of as being citizens in the State of their domicil, it cannot be supposed that their claim to that denomination is

to be determined by the will of the State in which they may afterwards appear as aliens.)

2. Whether the nature of the rights here called "the privileges and immunities of citizens," which are, by this provision, to be enjoyed by "the citizens of each State" in the several States, depends upon the law of their domicil, or the law of the State in which they may appear as aliens; or whether some common criterion of those privileges and immunities is here implied, and if so, where it is to be found.

It may at first seem unwarrantable to attribute such a latitude to the inquiries arising under this provision. But, as will be shown, in searching for authoritative expositions of this clause, all, or nearly all, these varieties of meaning have been actually supposed or maintained in judicial opinions, or by the most distinguished commentators on this provision, or in the arguments held before State legislatures when considering laws proposed for the regulation of international relations towards other States of the Union.

§ 635. The interpretation of the term citizens of each State in this provision has probably been judicially considered only in cases wherein the question has been: Can persons of negro race be citizens, within the meaning of this clause? The State statutes prohibiting the immigration of free blacks have been enumerated, and the cases noted in which the question of their validity, in view of this clause, has been discussed.' So far as judicial opinion has been expressed on the question, it seems almost unanimous that these laws would be unconstitutional, were negroes to be held citizens of a State in view of this provision, and also that negroes are not such citizens.

The questions of the constitutionality of those State laws which prohibit the immigration of free colored persons, or of those, of some seaboard States, which subject free colored per

1 See Ante, the statutes and cases noted, under laws of Virginia, pp. 5, 9; Kentucky, pp. 15, n., 16, 18, n.; Maryland, pp. 20, 21; Connecticut, p. 45; Delaware, pp. 78, 80; North Carolina, p. 86; Tennessee, p. 92; South Carolina, pp. 97, 99, 100; Georgia, pp. 104, 105, 107; Ohio, p. 118; Indiana, pp. 130, 131; Illinois, pp. 134, 135, 136; Mississippi, pp. 146, 147, 148; Alabama, pp. 151, 152; Louisiana, pp. 158, 161, 163; Missouri, p. 170; Arkansas, p. 172; Iowa, pp. 176, 177; Florida, pp. 191, 193, 195; Texas, p. 197; Oregon, p. 216.

sons on board of vessels, while within their harbors, to imprisonment, &c., have never been brought before the tribunals of the national government.'

The resolution of Congress, March 2, 1821, providing for the admission of the State of Missouri on a certain condition," has sometimes been referred to as a recognition, by Congress, of free blacks as citizens under this provision.' But it is certainly nothing more than an affirmance or recognition of the provision in the Constitution as it stands, without determining either the personal extent of the terms "citizens of each State," or the nature of the privileges and immunities to which they are entitled under it.

636. The decision of the Supreme Court of the United States in Dred Scott v. Sandford, on the plea in abatement that the plaintiff was not a citizen in the sense of the word in Article III. sec. 2, of the Constitution, has been noticed in the first volume. Strictly speaking, it is not an authority in point on the question, Who are citizens in the sense of the word in the fourth Article? But those members of the court who discussed the plea, with the exception of Judge McLean, evidently suppose the word to have like force in either place. And their reasoning indicates that the question under the fourth Article was more the object of their attention than was that under the third. The extracts herein given are those which seem most material in this connection, though it must be remembered that disconnected from the rest they may not give an adequate idea of the reasoning.

On page 403 of the report, in 19 Howard, Chief Justice Taney, delivering the opinion of the court, says:

"The question is simply this: Can a negro, whose ancestors

1 From the fact that Mr. Hoar, of Massachusetts, who visited Charleston, S. C., in 1843 or 1844, with the known intention of bringing the question of the constitutionality of the law of South Carolina before the national judiciary for the protec tion of colored seamen from his own State, was expelled from that city by the violence of a mob, it would appear that the citizens had not sufficient confidence in the validity of their legislation to allow it to be subjected to inquiry even in the judicial tribunals of their own State. For if no action lies in the U. S. courts, it would have been the power of the State courts to protect the citizen against any usurpation of jurisdiction.

2 Ante, p. 168.

3

Jay's Inquiry, &c, p. 43. Curtis, J., in 19 Howard, 587.

Vol. I. p. 434.

were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

"It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.' And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves."

After a paragraph relating to the status of Indians,' the Chief Justice continues, on p. 404:

The reader will note the importance of this statement of the issue in connection with other questions discussed in these opinions. It is remarkable too that here and afterwards in stating his conclusion (19 How. 427), the Chief Justice recognizes the question to be, Who are citizens of a State? though in the argument it is assumed that the citizenship in question is not citizenship in respect to a State, but in respect to a different political person, that is, the United States, or that the question is, who are citizens of the United States?

219 How. 403:-"The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate [404] right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our government. It

"We proceed to examine the case as presented by the pleadings.

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.' The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.'

is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people."

This recognition of the possible citizenship of Indians is important in view of the general question. The argument seems to recognize their possible citizenship as a consequence of the recognition in international public law, and by the United States, of political communities composed of Indians, and the doctrine seems to be implied in other places that political communities composed of negroes have not and cannot be so recognized. This idea is prominently maintained in Judge Daniel's opinion, 19 How. 475. See ante, vol. I. p. 321, note, and the reflex of these opinions in the Florida case, ante, p. 195, n.

1

See the note on this passage, ante, vol. I. p. 412, n. 2.

And on p. 409 of the report, referring to the laws of the States, "they show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery and governed as subjects with absolute and despotic power," &c. The doctrine seems to be implied that