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§ 648. These considerations may justify the conclusion that both to determine the meaning of the term citizens of each State in this clause, and also the personal extent of the designation, if it is taken to indicate inhabitants of a State who enjoy a particular degree of civil privilege, it may be construed with reference to the anterior action of the constituent parties in discriminating between foreign and domestic aliens in respect to the enjoyment of civil franchises according to personal distinctions, having herein special regard to those which may have been judicially attributed to universal jurisprudence.

$649. The law, having international effect, which resulted from the juridical action of those who preceded the authors of the Constitution, has been shown to have been in part a national law, resting on a national authority, having a quasi-international extent, and partly local law, resting on the several authority of a colony. So far as the rights which the common law attributed to the subject of European race in America were such as constituted the civil franchises of a citizen (and they may be said to have been such, if the British-born subject was a citizen independently of any political qualifications), the condition of a citizen was recognized, as a superior condition to that of a simple subject of the British empire, under the law having quasi-international effect in the several jurisdictions of which it was composed.

If the political franchises of any subjects of the empire were sustained by the law of national authority and quasi-international effect, it was only in the case of persons who also held their civil privileges under the law of the same authority and effect.

If similar rights were in any several jurisdiction of the empire attributed to any other persons, on appearing therein as aliens, it was under a law of local authority.

Civil citizenship, then, if not sustained by the common law of England operating with personal extent, was dependent for its international recognition on the several juridical will of each colony or separate jurisdiction. Whether citizenship, as the condition of a domiciled inhabitant, was or was not, in every several jurisdiction of the empire, enjoyed exclusively

by persons of European race, it appears that, if enjoyed in any one such jurisdiction by a domiciled inhabitant of negro or Indian race, it had no recognition in any other such jurisdiction under the law of national authority and extent, and that there is no historical evidence of its having been definitely recognized in any colony in the case of persons of those races who might have enjoyed citizenship in some other jurisdiction.'

It does not appear that during the colonial period British subject and British citizen were equivalent terms in juridical use in any part of the empire; unless, perhaps, in the British islands in speaking of British subjects actually within the limits of the four seas.

It has been shown that there was nothing in the political events accompanying the Revolution and preceding the establishment of the Constitution to change the anterior personal condition under private law of any of the inhabitants of the several States, or at least nothing to alter the relative territorial or personal extent of antecedent laws, since the power of the States over the condition of private persons rather became thereby more isolated and independent in those relations which depend on private law, and it has been seen from the course of legislation from the date of the establishment of the independence of the United States to the adoption of the Constitution that the former laws of personal condition continued to exist with very little change, in all the States during that time, except in the case of Massachusetts and Vermont. In these States the ancient distinction between their domiciled inhabitants in respect to capacity for civil and political rights may have been partially or even altogether abolished before the adoption of the Constitution, and it may be that no distinction would have been made between aliens of different races in respect to their enjoyment of the privileges and immunities of citizenship. But a recent abandonment of the distinction in the law of one or two States would hardly have the effect of altering the significancy of words in an international compact,

1 Ante, §§ ́326, 327.

2

Ante, §§ 433-436.

and that too while, in all the States, social discriminations maintained the spirit of the former legal distinction.

650. If then the anterior juridical action of the constituent parties may be referred to, in interpreting the meaning of the terms used, it would seem to indicate that the persons designated "the citizens of each State," in this clause of the fourth Article,' are not all who under the internal law of a State possess the rights of citizenship, even in the sense of a condition of privilege superior to that of simple domiciled inhabitant native or naturalized under a law of Congress, but that the extent of the term must be confined to free persons of the European or white race.

§ 651. In the preceding pages it has been attempted to interpret the several terms, the meaning of which is here in question, by the former juridical action of the constituent parties and their political predecessors.

Perhaps it may be possible to distinguish this from construing the whole enactment by the intention of the parties in this particular instance, or by ascertaining the spirit and reason of this provision, irrespectively of the conclusions drawn from the words themselves when interpreted or construed as above attempted.

If such distinction can be made, it seems that such intention, or such spirit and reason, can only be known by other acts of the same parties or their representatives which are more nearly contemporaneous with this provision and have a more direct connection with the relations which are its subject matter than was that general course of juridical action which has already been referred to as a means of interpreting or construing the words here employed.

'The conclusion here presented is supposed not to be inconsistent with the opinion that, in the third Article, citizen of a State, means simply a legal person, native or naturalized, domiciled in some State. (Ante, § 372.) It is not a received principle that a word occurring in different places in the same instrument is always to be understood in the same sense. Story, in his rules of interpreting the Constitution, Comm. § 454, says:-"It is by no means a correct rule of interpretation to construe the same word in the same sense wherever it occurs in the same instrument." The whole section is important in these inquiries. Vattel, L. ii., c. 17, § 281:-"We are to take expressions which are susceptible of different significations, in each article, according as the subject requires-pro substrata materia-as the masters of the art say." Lieber's Herm. 119:-"We are by no means

It is very obvious that the intention of a lawgiver or the reason and spirit of his enactments will always be differently understood according to different preconceived views in the minds of the inquirers as to what that intention or reason and spirit ought to have been.'

Among the indications of the intention of the legislator in any particular enactment, must be the previous action of the same legislator in reference to the same topic of law or similar relations.'

§ 652. The Articles of Confederation, which rested on a sovereignty identical in its ultimate basis, if not in its political form,' with that by which the Constitution was established, contain a provision concerning this same international relation* between the States and their respective inhabitants, the wording of which is essentially different. The provision, which is in the fourth Article, has been already quoted. From the use of the adjective "free," in connection with "inhabitants" and "citizens" in the first proposition contained in this Article, it would seem that the only distinction, in respect to international privilege, intended was founded on the possession or nonpossession of personal freedom; that while all free domiciled inhabitants of a State, paupers, &c., excepted, were to possess the rights of free citizens in the several States, whatever these might have been, "the people" generally, meaning all the domiciled inhabitants of a State, should have a distinct degree of this international privilege not in itself equivalent to "the privileges and immunities of free citizens in the several States."

bound to take an ambiguous word in that meaning in which it may occur in another passage of the same text; for words, as it is well known, have different meanings in different contexts." The question occurs, indeed, Is the word ambiguous? 1 Lieber's Hermeneutics, 127.

This may not be easily distinguishable from that interpretation of the terms from the former juridical action of the parties which has herein been already attempted. The construction now tried may perhaps be described as a comparison of the effect of the words of the enactment whose meaning is in question (as that effect has been understood by interpretation) with the effect of words of enactments in pari materia (as that effect may be understood by interpretation). Ante, § 345. Ante, p. 3, note. Compare Curtis, J., 19 How. 575, and Ch. J. Taney, ib. 418, ante, pp. 302, 293. Judge Taney says, "It is very clear that, according to their accepted mean that day, the words 'free inhabitants,' notwithstanding their generality, did not include the African race, whether free or not; for the fifth section of the ninth

* Ante, § 485.

It is important in this connection to notice that aliens may either appear within the forum as persons proposing to assume the condition of domiciled inhabitants, rèlinquishing thereby any claim to the continuance of a class of rights held by them under the local law of their former domicil which they might have retained in the forum had they appeared therein as temporary residents; or they may appear in this latter character, claiming, by international law and as aliens to the forum, rights conferred by the law of a country they have temporarily left, and in which they have still their domicil.

The domiciled inhabitants of one of the several States may appear within the territory of another State in either of these characters. Perhaps this Article of Confederation is to be read in view of this distinction, and it may be concluded that it was framed with special reference to the existence of slavery, and the intention was to discriminate in the international obligations of the States in reference to the inhabitants of any one State; so that while to each of "the free inhabitants," whether white or black, the right was secured of becoming at least a domiciled inhabitant of any State, slaves could only pass from one to the other as aliens; while their permanent location in the State into which they should come or be brought would depend upon the subsequent determination of such State, untrammeled by this provision.'

Article provides that Congress should have the power to agree upon the number of the land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State,""&c. The only inference, in most minds, from the use of "free inhabitants" in one place, and "white inhabitants" in another, would be that the first term would include inhabitants not white. But the Chief Justice says, "Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words 'free inhabitants' in the preceding Article, to whom privileges and immunities were so carefully secured in every State." This reasoning, if admissible, is so only in the doctrine of construction by the intention of the lawgiver learned aliunde, stated in the last section. Compare the Judge's argument from the militia laws, ante, p. 290, note.

In this view, the language of this Article of Confederation is not so inconsist ent or difficult of interpretation as has been supposed in Letter No. 42 of the Federalist, and by Judge Story, who adopts the language of that letter. Comm. § 1805. "It was remarked by the Federalist that there is a strange confusion in this language. Why the terms free inhabitants are used in one part of the article, free

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