Constitution, or even the usus loquendi of the time of its adoption.' As to the other acts, and all similar enactments, it must be objected that they speak of citizens in a relation towards the powers held by the national government, and therefore use the word only as equivalent to domiciled inhabitant, native or naturalized. Therefore, they do not indicate who is citizen of a State, unless as they may show that, by the usus loquendi, citizen means, wherever used in the Constitution, any such domiciled inhabitant.

656. There does not seem to be anything in the argument of construction by intention which can either change or confirm the interpretation already arrived at. And it is very obvious that any further construction will be in all probability nothing but construction according to present views of legislative policy.*

'For which purpose it is referred to by Judge Taney, 19 How. 421; ante, p. 294; and by Mr. Wirt, 1 Op. U. S. Atty. Gen'l, 506, where, after arguing from the disabilities of free negroes in Virginia that they are not citizens of the United States, he also holds that those terms in acts of Congress and the Constitution are not applicable to any free negroes, because, if they were, they should be held to have the privileges and immunities of citizens in other States under the fourth Article, and be eligible even to the Presidency.

Mr. Brightly, in his Digest, p. 842, under the act of 1820, § 4, declaring any citizen of the United States, engaged in the slave trade, punishable as a pirate, notes from United States v. Darhaud, as of 3 Wallace, Jr. (not published):-"Citizenship within the meaning of this act is not what may be called citizenship of domicil, nor is it such citizenship as has been claimed by diplomatic assertion, under our naturalization laws, for one who has formally declared his intention to become a citizen without having proceeded further; but it is that citizenship which has a plain, simple, every-day meaning; that unequivocal relation between every American and his country which binds him to allegiance and pledges to him protection." So in Talbot v. Jansen, 3 Dallas, 152, one was held to be a citizen of the United States who was not a citizen of any particular State.

Mr. Westlake, an English writer, in a recent work on Private International Law, § 26, says:-" The American use of the term citizen is indistinct. A citizenship of a particular State is recognized, as well as one of the Union; and the term is sometimes used to express the enjoyment of full internal political rights, so as to be denied to persons of color, who, even in many of the free States, are not suf fered to hold office or vote for public officers. But it is only with the citizenship of the United States that we have in this place to do, and with that in the largest sense; for we are here considering the distribution of men between nations which have a recognized standing by each others' side; and all public relations are reserved to the Union by its Constitution; wherefore a slave or a person of color, whatever his rights at home, is internationally a member of the body called the United States, since that is the government under which he stands in relation to foreigners."

Ante, § 650.

What may be styled the argument ab inconvenienti is not uncommonly employed in cases wherein the rights of the negro inhabitants are considered. In

§ 657. It would seem that a question might hereafter be raised of the capacity for citizenship, in view of this provision of some, who are neither of the negro nor of the European or white race. Chief Justice Taney said that a person of the aboriginal or Indian race who "should leave his tribe or nation and take up his abode with the white population, would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people." In the same place he has said that Indians may be naturalized by Congress. Whether this involves the proposition that no person of the Indian race can be a citizen of the United States unless so naturalized, may however be doubted.' If any of that race may be such a citizen, or a citizen of a State, without such naturalization, they are probably such as are no longer living among a tribe recognized as a corporate body either by the national government or by the State within whose limits they may be."

The question may also arise in cases of persons born in this country of parents of some Asiatic or Polynesian race.*

Hobbs v. Fogg, 6 Watts, 559, 560, the doctrine-that the possession of citizenship which is to be recognized under this provision is determined by the law of the State of domicil only-is indicated, though in a singular manner. It is there held that a domiciled free negro cannot be a freeman or elector in Pennsylvania (ante, p, 72, n.), because it would be very inconvenient to expect other States to recognize him as a citizen in view of this provision. But this is not equal to Judge Taney's arguing (19 How. 423, ante, p. 296) that negroes cannot be citizens in view of this clause-because, if they were, they would be entitled to its benefits!

2

19 Howard, 404. Ante, p. 281, note.

The act of Congress, for the relief of the Stockbridge Indians in Wisconsin Territory, V. St. U. S. 647, provides for a division of the tribe lands, after which, by sec. 7, they are declared citizens of the United States and entitled to all the privileges of such. They are not said in the act to be naturalized. The question has been raised whether an Indian or person of mixed blood, "retaining tribal relations,” can at the same time enjoy the privileges of a "citizen of the United States," under the Land laws. Mr. Cushing, in Op. July 5, 1856, 7 Op. of Atty. Gen., 746, holds the negative; and further (as in Op. of May 23, 1855, ib. 175), that a white who may have joined himself to a tribe, ceases to be a citizen of the U. S. The paper is of interest, particularly as the writer recognizes the inevitable negro as remotely interested in the question. Mr. Cushing also affirms the more general proposition-" In fine, no person of the race of the Indians is a citizen of the U. S. by right of local birth. It is an incapacity of his race:" and holds it certain that the "civilized persons of Indian descent not members of any tribe," who, by the Constitution of Wisconsin may vote, are not citizens of the United States. But in what sense, then, were the Stockbridge Indians made citizens?

In respect to a State in which they may live, Indians, whether they are members of a tribe or not, are, as a general rule, in a peculiar condition of tutelage. 2 Kent's Comm. 73, and cases.

So if naturalization, under the present law of Congress, limiting it to "free white persons," were claimed for aliens of those races or of the negro races, or

In view of any limitation of the terms "citizens of each State" by physiological distinctions, it may become necessary, as in cases of persons known to be of mixed race, for the judiciary to determine how persons of the white, or "citizen race,” may be discriminated from the negro or other incapacitated races. For reasons already stated, it would appear that the rule could not be taken either by a State or national tribunal from the law of the particular State in which the question might arise. It would appear, too, that as the question is of the extent of a term in the Constitution, it would not be competent for the national legislature to fix upon a criterion to be used by the national judiciary. The national courts would be obliged to discover a common-law discrimination. They would probably be justified in deducing it from a comparison of the standards which have been followed by the States, especially by the older ones.'

§ 658. It will be necessary, in the next chapter, to consider whether the privileges and immunities guaranteed by this provision to the persons known as "the citizens of each State," must not be limited by the police powers of each State. But it is proper here to notice some dicta,' to the effect that, either

those called in South Carolina and Georgia laws "free Moors, Lascars, or other colored subjects of countries beyond the Cape of Good Hope." Ante, pp. 98, 105. 1 Ante, §§ 604-606.

2 It is with this idea probably that Kent, in 2 Comm. pp. 72, 256, refers to the statutes and decisions of some of the States. Most of the State statutes on this subject have been noted. See ante, Va. p. 4; Ky. p. 19; N. Car. p. 86; Tenn. p. 90; Ga. 105; Ohio pp. 121, 122; Ind. pp. 128, 131; Ill. p. 185; Ark. p. 173; lowa p. 177; Texas p. 197; Cal. p. 204; and decisions N. Car. p. 88, n.; S. Car. 98, n.; Ohio pp. 118, n.; 121, n.; 122, n. The most common rule seems to be, that one fourth or more of negro blood incapacitates, in matters of evidence (on negro incapacity as witness, see Appendix to Appleton's Rules of Ev.); and from the authorities cited by Kent, it may be said that, "if the admixture of African blood does not exceed one eighth, the person is deemed white."

In The Passenger cases, 7 Howard 283-573, the question was of the relative extent of the powers of the States and of the national government in respect to the entry, &c., of foreign aliens. But the language of several of the judges will apply as well to domestic aliens. The court was divided, and of the minority, Ch. J. Taney, in his opinion, 7 How. 457, distinguished the question, Whether the federal government has the power "to compel the States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit," as lying at the foundation of the controversy. And said, "For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person or class of persons whom it might deem dangerous to its peace or likely to produce a physical or moral evil among its citizens, then any treaty

the persons who are to be recognized as citizens may be discriminated by each State in the exercise of its police power, or, that, any persons, though admitted to be citizens, may yet be excluded from any benefit from this provision at the discretion. of the State, whenever it professes to exercise this power. Though it be apparent that the extent of "the privileges and immunities," in the latter part of the provision may, consistently, be subject to the police power, yet the doctrine above stated seems to render the constitutional provision utterly nugatory.

§659. In determining who are "citizens of each State," a question also arises as to the meaning of the word State in this clause. This question has not probably as yet been raised in any reported case. The authorities on the meaning of the same word in the third Article, and in the first section of the fourth Article, have been noted.' The question will hereinafter be considered in connection with a similar inquiry arising under other clauses of this Article.

or law of Congress invading this right and authorizing the introduction of any person or description of persons against the consent of the State, would be a usurpation of power which this court could neither recognize nor enforce. I had supposed this question was not now open to dispute. It was distinctly decided in Holmes v. Jennison, 14 Peters 540; in Groves v. Slaughter, 15 Peters 449; and in Prigg v. The Commonw. of Pennsylvania, 16 Peters, 539. If these cases are to stand, the right of the State is undoubted. And it is equally clear that, if it may remove from among its citizens any person or description of persons whom it regards as injurious to their welfare, it follows that it may meet them at the threshold and prevent them from entering," &c. And to the same effect on p. 467.

That the negro was not forgotten here, appears from the opinions of some of the other judges. Judge Wayne, ib. 426, said:"But I have said the States have the right to turn off paupers, vagabonds, and fugitives from justice, and the States where slaves are have a constitutional right to exclude all such as are from a common ancestry and country, or of the same class of men." And Judge Grier, ib. 457:-" Nor the right of any State, whose domestic security might be endangered by the admission of free negroes, to exclude them from her borders. This right of the State has its foundation in the sacred law of self-defence, which no power granted to Congress can restrain or assail." Mr. Berrian, in 2 Op. U. S. Atty. Gen'l, justified the law of South Carolina as within the police power. See ante, p. 97, note, where it should also have been noted that Mr. Wirt, 1 Op. U. S. Atty. Gen'l, 659, had held the law unconstitutional as interfering with the powers of Congress to regulate commerce.

In 20 N.Y., 611, Denio, J. says:-"But it does not seem to me clear that one who is truly a citizen of another State can be thus excluded, though he may be a pauper or a criminal, unless he be a fugitive from justice. The fourth Article of confederation contained an exception to the provision for a common citizenship, excluding from its benefits paupers and vagabonds, as well as fugitives from justice; but this exception was omitted in the corresponding provision of the Constitution." Mr. Justice Curtis (19 How. 584, ante, p. 312, note) would seem to argue differently. Ante, p. 267; and Vol. I. p. 433, note.

CHAPTER XXIV.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE PRIVILEGES AND IMMUNITIES OF CITIZENS GUARANTEED IN THE FIRST PARAGRAPH OF THE SECOND SECTION OF THE FOURTH ARTICLE OF THE CONSTITUTION.

§ 660. When the personal application of the terms, “the citizens of each State," has been settled, it remains to consider the second inquiry arising under the clause in the fourth Article: What are the rights intended by the phrase, “all privileges and immunities of citizens"?'

The terms, privileges and immunities, are, obviously, in themselves indeterminate, and hardly more significant than rights. There can be no controversy about their individual meaning. Their whole force must be derived from the word citizen with which they are coupled; and the question here is, What standard of the rights of citizenship is intended?

As has been shown, a preliminary question arises as to the meaning of citizen-that is, whether it means domiciled inhabitant, native or naturalized only, or such inhabitant holding a particular condition of civil privilege. But under this part of the clause, these two questions-of the meaning of citizen, and the standard of the rights of citizenship-cannot easily be distinguished, since the nature of the citizenship intended must consist in privileges and immunities of some kind.

The question presents itself, as already stated,' whether the intended standard of these privileges and immunities depends

1 Ante, § 634.

Ante, § 633.

Ante, § 634, question 2; in which section, under question 1, it was also argued that the extent of the terms, "the citizens of each State," cannot be determinable by the law of the State in which those may appear who claim to be such. But the reason there given will not apply here to exclude the law of such State as one of the possible standards of the privileges and immunities of citizenship for this part of the clause.