§ 643. The conclusion of the same author in the note to 2 Comm. 256, is more definite as to the extent of this clause to persons of color, though his language illustrates the necessity of defining the word citizen. After mentioning some of the State laws placing free blacks in an inferior condition, and some which prohibit their immigration, and some authorities against their being considered "citizens of a State," he remarks: "If, at common law, all human beings born within the liegeance of the king, and under the king's obedience, were natural-born subjects and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. Blacks, whether born free or in bondage, if born under the jurisdiction and allegiance of the United States, are natives and not aliens. They are what the common law terms natúral-born subjects. Subjects and citizens are in great degree convertible terms as applied to natives."

So far as citizen is merely opposed to foreigner or alien, natural-born subject and citizen are terms fully convertible. And so the terms are ordinarily used in works on international law. But the question is, whether citizen is here used in this sense only, or refers to that condition which exists under the internal law of some one country. In a sentence preceding the above citation, the author remarks: "Perhaps, after all, the question depends more on a verbal than on an essential distinction." But, in law, words are things, and words being used to determine essential relations, a verbal distinction is an essential distinction. When used to discriminate the native or naturalized inhabitants of distinct national jurisdictions the terms are commonly equivalent. But citizen may also be used without exclusive reference to that distinction, and with regard to internal laws establishing different conditions of privilege among the domiciled subjects of the state. This provision is quasi-international in effect as between the several States; but still it is the law of one nation; so that it may be a question whether persons are here called citizens in reference to that relation in which they are principally contrasted with persons

subject to other jurisdictions, or so called as possessing a certain degree of privilege under the internal law.

If these terms are not fully but only in a degree "convertible," the question occurs as to degree in this instance. The next sentence in Kent's note shows that the different uses of the word are to be determined by the connection in which it stands," And though the term citizen seems to be appropriate to republican freemen, yet we are all, equally with the inhabitants of other countries, subjects; for we are all bound by a1legiance and subjection to the government and law of the land.' The privilege of voting, and the legal capacity for office, are not essential to the character of a citizen,-for women are citizens without either, and free people of color may enjoy the one, and may acquire, and hold, and devise, and transmit by hereditary descent, real and personal estates."

From the remainder of the note, Kent's opinion seems to have been that, though citizen is not here simply equivalent to subject, the only distinction between those domiciled inhabitants, native or naturalized, who are citizens, and those who are not, is in the quality of free as opposed to bond condition."

$644. An examination, independent of authority, will here be attempted, of the question arising under the first part of the clause,

What is the personal extent of the terms, the citizens of each State? or who are the persons thereby intended?

Assuming, on the reasons and authorities already presented, that only those persons can be intended who are inhabitants of a State, native or naturalized under an act of Congress,'

The first inquiry is-whether all such persons are included in the descriptive terms, or whether they refer to a portion standing in a certain privileged relation toward the supreme power of the State?

If the latter is the true conclusion,

A second inquiry is-whether the possession of the char

1 Compare ante, p. 271, note.

So far as Kent and Story express an opinion, they support that interpretation of citizen in the third Article, which was herein before maintained, Vol. I., p. 436.

3

* Ante, p. 277.

acter of citizen of a State is determined by the law of the State of domicil, or depends on some national or common standard?

The inhabitants of the United States are subject both to the powers held by the national government and to those held by the several State in which they may be domiciled. But the persons here indicated by the terms, "the citizens of each State," are called citizens of, and in respect to, the State of which they are domiciled inhabitants, not in respect to that national sovereignty in reference to which, also, they have a domicil, and to whose authority, in the same State, they are also at the same time subject, though in different relations. This construction the phraseology and the whole connection. seem obviously to require.' Now the question is,—whether the persons to be recognized are determined solely by the juridical act of the State of domicil, or whether there is some common limitation of the personal extent of the words so that, even though the persons are called citizens of a State in a relation towards that State, the possession of the character of citizen of such State, so far as it is to be recog nized in other States under this provision, is not altogether dependent on the will of such several State? It has already been shown that the terms here used to express the common intent of the parties, must be interpreted according to the anterior use of such terms by the same parties; that the same rule applies in the interpretation of the legislation of any one state, in which case it derives its authority from the single authority of such state, and therefore it is applicable to the Constitution regarded as the act of the integral people; but that, in its present application, the force of the rule is ascribed to that usage of nations in their reciprocal action which originates "the positive or practical law of nations."

This former use of words by the constituent parties can only be found in the enunciation of law which had had international effect among the States and colonies. But whether

This seems to be recognized by the judges of the Supreme Court whose opinions in Dred Scott's case have been cited, in the commencement of their inquiry, though they all lose sight of it in their reasonings.

the law which had this effect rested on the authority of the empire or nation and had a national extent, or rested on the several authority of a colony or a State and had only local extent, it must in a great degree have been identified with the international usage of all civilized nations. The use of terms by the constituent parties, in this branch of jurisprudence, is therefore in a great degree identified with the use of such terms in the general international law of civilized nations.

§ 645. The meaning of the term citizen (the subject of the first inquiry above stated) must be supposed to be one received in the several States, since the mere signification of terms must be supposed to be one commonly known to all the constituting parties. But it does not appear that, for any similar reason, the personal extent of the term in this clause (the subject of the second inquiry), though with that extent the term is used in expressing a common rule of action, should be one adopted by each State, or even by any one State, in its several juridical action.'

2

The various possible meanings of citizen in this clause have been indicated with reference to those definitions or fundamental relations which make the natural or necessary law of nations. If the ordinary juridical use of the term by the declaring party or parties, the States or the people of the United States, had not been sufficiently uniform to indicate the particular meaning of the term in this case, reference must be had to the usage and practice of nations in similar international relations to determine the particular meaning here intended.

If the term citizen is taken in the sense of domiciled inhabitant, native or naturalized, under a law of Congress, there can be little or no controversy as to its personal extent; for the facts constituting domicil are so settled in the national recognition of civilized nations that they must be assumed to be the same in the local law of every several jurisdiction within the United States.

So though "privileges and immunities of citizens," in the last part of the clanse, are received by the constituent parties as a measure of franchises in a common rule, it does not appear that the standard of citizenship, as a condition of privilege and immunity, should be that adopted in the internal law of each State or of any State.

Ante, §§ 627-631.

VOL. II.--21

But if the term is taken in the enlarged sense, with limited personal application, having different personal extent in different States, it seems necessary to interpret the whole clause, as above supposed, with reference to the usage and practice of nations in applying statutes or compacts affecting private persons in international relations like those contemplated in this provision, in order to determine the personal extent of the word in this clause; that is, whether each State is to determine the extent of the word, as applicable to its own domiciled inhabitants, or whether there is a national or common standard of the personal extent of the term among the inhabitants of the States.

If, therefore, there is any criterion of the meaning of the terms, other than their anterior ordinary juridical use by the same parties, which, under rules of interpretation or construction, may be resorted to in either of these inquiries (i. e., 1, as to the meaning of the term; 2, as to its personal extent); that criterion is the same in either instance, viz.: the juridical practice of nations in allowing or disallowing within their several jurisdictions the rights and privileges attributed to alien persons under the law of their domicil.

§ 646. The possession of that degree of civil privilege which constitutes the citizen, in that sense of the word and of its cognates in which it is distinguished from the term subject, is determined by the internal law of some one state' and, except as identified with the term subject, the word citizen is not now a term employed in the international law. An international recognition of distinctive conditions of civil privilege may be traced in the history of the jurisprudence of the Roman republic and empire. Admitting that no international law, in the modern sense of an ascertained code of imperfect sanction for independent nations, could have been recognized under the Roman empire,' still a quasi-international private law, being

Ante, § 627.

Ante, Vol. I. p. 147. The reasons for commencing an inquiry of this sort by referring to the Roman law, have been explained. Vol. I. p. 144. That law is often spoken of as the source of the modern international public law. See 1 Kent's Comm. 7. But it is so only by being an exponent of universal jurisprudence. See H. S. Maine's Ancient Law (London, 1861), p. 101, and the whole 4th chapter of that work.