on the law of the domicil of "the citizens of each State," or on the law of the State forum in which they appear as aliens; or whether some common criterion is here implied, and, if so, how it is to be ascertained.

§ 661. If there is any State legislation in respect to the privileges and immunities which such "citizens" from other States shall enjoy within the legislating State,' this may be referred to as juridical exposition of the legal rights guaranteed by this phrase.

§ 662. There are very few judicial decisions which can be cited as directly in point in this inquiry. Those which have been referred to under the former question have but little bearing here.

In Campbell v. Morris (1797), 3 Har. & McHenry, 553–556, the law of Maryland authorizing the attachment of the property of non-resident debtors, was held not to be any violation of the rights of citizens of other States under this provision. The opinion of the Court of Appeals on this point is not given. In the court below it was said, "It seems agreed, from the manner of expounding or defining the words 'immunities and privileges' by the counsel on both sides, that particular and limited operation is to be given to these words, and not a full and comprehensive one." The judge proceeds to specify political rights as not included; notices, as being among the rights guaranteed, the right of holding real and personal property in the same manner as the citizens of the forum; and adds a remark of importance in this connection, notwithstanding its brevity," It secures and protects personal rights."*

In Livingston v. Van Ingen (1812), 9 Johns. 577, where the State law giving exclusive privileges of navigation in the waters of the State was in question, it was said by Kent, Ch. J.: The provision "means only that the citizens of other States

1 As, for instance, any laws taxing property of non-residents; requiring security from them, in actions at law, beyond that required of others.

Mr. Cushing, 7 Op. U. S. Atty. Gen. 753,-" that unexplored clause of the Constitution."

* This case is referred to in Haney v. Marshall, 9 Maryl. 194, where it was held that the State statute requiring security for costs from non-resident plaintiffs was not in violation of this provision. The court relied on the long-undisputed existence of such laws.

shall have equal rights with our own citizens, and not that they shall have different or greater rights. Their persons and property must, in all respects, be equally subject to our law."

In Corfield v. Coryell (1823), 4 Wash. C. C. R. 371, where the validity of the New Jersey law of June 9, 1820, sec. 6, prohibiting non-residents to fish for oysters, was questioned, Washington, J., said: "We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental—which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through or to reside in any other State for purposes of trade, &c. ; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property; and an exemption from higher taxes, &c., than are paid by the other citizens of the State." To these was to be added, the elective franchise, as regulated by the law of the State where it should be exercised. But the judge denied that citizens of the several States "are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State merely upon the ground that they are enjoyed by the latter," as, in this instance, the fishery.

In Abbot v. Bayley (1827), 6 Pick. 89, the question was whether the plaintiff could sue as feme sole, having a husband living in another State who had abandoned her and had married another; and the opinion was that the case was not affected by anything in the Constitution of the United States.

Parker, Ch. J., p. 91, asked: By this provision, " are the jurisdictions and governments so amalgamated that they are not in any respect to be considered as foreign to each other? In all national matters they are, in many respects, one and the same, being subject to the same laws and the same government; but in all matters of domestic regulation they may be considered as foreign; as, for instance, in all their criminal jurisdiction, and rules affecting property, except so far as either is subject to the laws of the United States. * * *The jurisdictions of the several States, as such, are distinct, and in most respects foreign. The Constitution of the United States makes the people of the United States subjects of one government quoad every thing within the national power and jurisdiction, but leaves them subjects of separate and distinct governments. The privileges and immunities secured to the people of each State can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or eligibility to office, without such term of residence as shall be prescribed by the Constitution and laws of the State into which they remove. They shall have the privileges and immunities of citizens: that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized. The constitutional provision referred to is necessarily limited and qualified; for it cannot be pretended that a citizen of Rhode Island coming into this State to live is ipso facto entitled to the full privileges of a citizen, if any term of residence is prescribed as preliminary to the exercise of political or municipal rights."

In Crandall v. The State (1834), 10 Conn. 343,' Judge Daggett, in charging the jury, said of this provision, "It has been urged that it is made to direct exclusively the action of the general government, and therefore can never be applied to State laws. This is not the opinion of the court. The plain

'Ante, p. 46.

and obvious meaning of this provision is to secure to the citizens of all the States the same privileges as are secured to our own by our own State laws." The question was not considered by the Supreme Court of Errors, in reversing the judg ment of the court below.

In Conner v. Elliott (1855), 18 How. 593, Mr. Justice Curtis, delivering the opinion of the court, said that it had been insisted" that, as the laws of Louisiana provide that a contract of marriage made in that State or the residence of persons there in the relation created by marriage shall give rise to certain rights on the part of each in property acquired within that State, by force of the Article of the Constitution above recited, all citizens of the United States wherever married and residing obtain the same rights in property acquired in that State during the marriage. We do not deem it needful to attempt to define the meaning of the word privileges in this clause of the Constitution. It is safer, and more in accordance with the duty of a judicial tribunal, to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. And especially is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct, and a failure to make it so would certainly produce mischief.

"It is sufficient for this case to say that according to the express words and clear meaning of this clause, no privileges are secured by it except those which belong to citizenship. Rights attached by the law to contracts, by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed "privileges of a citizen," within the meaning of the Constitution. Of that character are the rights now in question," &c.

It will be remembered that the meaning of this clause of the Constitution was not involved in the decision of the Dred Scott case. But the authority which has popularly been at'Ante, p. 280.

1

tributed to the Opinions in that case, as expository of this provision requires a notice of the dicta bearing on the present point of inquiry. In a portion of his Opinion already cited, Chief Justice Taney said that the provision guarantees rights to a person included within the description "citizens of each State," only while temporarily within it; that it gives him no political rights therein, but that "whenever he goes into another State the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State."

On p. 425 of the report, the Judge says, of the case of Legrand v. Darnall, "This case, however, strikingly illustrates. the consequences that would follow the construction of the Constitution which would give the power contended for to a State [i. e., to make a negro either a citizen of a State in view of this provision, or a citizen of the United States]. It would also give it to an individual. For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognized him as a citizen,' he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety."

In Lemmon v. The People (1860), 20 N. Y. 608, Judge Denio, after speaking of the corresponding provision in the Articles of Confederation, says, "The Constitution organized a still more intimate Union, constituting the States for all external purposes, and for certain enumerated domestic objects, a single nation; but still the principle of State sovereignty was retained as to all subjects except such as were embraced in the delegations of power to the General Government or 1 Ante, p. 295.

But it would have been this State which had exercised the obnoxious power -not the father.