4. The domiciled inhabitants, native or naturalized, of each State, who therein enjoy citizenship, as something beyond the mere condition of domiciled inhabitants, native or naturalized, shall be entitled to the privileges and immunities of citizenship as something beyond the mere condition of domiciled inhabitants, native or naturalized, in the several States.

§ 632. It has been shown that under the distribution of powers between the States and the national government, either source of law might confer on persons of foreign birth the rights which the native born inhabitant of a State holds in respect to such source; though neither of these could, unless by special provision, change the relation between such persons and the other source of law. Without such provision neither the national government nor the States could, separately, naturalize such persons; that is, place them in the relation of the native-born inhabitant, which exists towards each of these coexistent possessors of power.'

The Constitution vests in Congress the power to establish a uniform rule of naturalization. A rule of naturalization, whether uniform or not in its action in the different States and its application to aliens, could have but one effect or consequence—that is, to place the alien in the relation or position of a native-born inhabitant, who is in each State the natural subject of both the State and the United States. Some of the States have conferred upon aliens privileges held by native inhabitants under their several authority, without reference to naturalization under the law of Congress. Even if such grant of privilege is valid under the Constitution, it is evident that such persons are still alien in respect to the national government, or the United States, holding sovereign powers within the same jurisdiction. In arguing against such grants of privilege by the States, or against State acts of naturalization as they have been called, it has been said that foreigners might thus become citizens of a several State; and then, by the operation of this provision, they would be admitted to the privileges and immunities of citizens in the several States; and

1

1 Ante, §§ 391, 384.

'Curtis, J., 19 How. 578, and authorities.

that thus the State would in fact pass a naturalization law having uniform extent or operation in the several States: an effect which in all probability would prevent the result intended by the grant of power to Congress-that is, the establishment of one uniform rule of naturalization. But whether such socalled naturalization on the part of a State is valid under the Constitution or not, it may be said, in reference to the above supposed extension of its effects under this provision, that it does not appear that the foreigner would become a citizen of a State, in the sense of this provision; even if citizen here indicates only a native or naturalized inhabitant having a domicil.' Such foreigner would not by such State law be in the same relation as the native in respect to all laws operating in that State; and it must first be proved that the term citizen, in each part of this clause, only designates a person holding a certain relation towards the several State in which he is domiciled, and has no reference to his relation towards the United States and the national government.

Besides, by public international law (positive or practical law of nations), the relation of an alien-born inhabitant to his former sovereign continues, to a certain extent, to be recognized even in the country in which he is an alien; so that his obligations, under public law, in respect to that country and its civil power, are different from those of the native, until, by naturalization, the sovereign of such country has conferred new rights and transferred his obligations under public law. Hence the rights acquired by an alien, by such an exercise, of the "reserved" powers of a State, are not the same as those of the native, even in relations which, in the case of the native, are

'See Chirac v. Chirac, 2 Wheat. 261; Taney, Ch. J., 19 How. 405; Daniel, J., ib. 482; Curtis, J., ib. 578; McLean, J., ib. 533:-"No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress. Congress has power to establish a uniform rule of naturalization.' It is a power which belongs exclusively to Congress, as intimately connected with our Federal relations. A State may authorize foreigners to hold real estate within its jurisdiction, but it has no power to naturalize foreigners, and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization, and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States, which has no warrant in the Constitution."

under its several share of sovereign power. Every private right derives a part of its essence from public law, and involves the coexistence of correspondent obligations imposed by that law.' All rights of a native inhabitant in each State are modified by his obligations, under the public law and Constitution of the United States, in reference to the nation and the powers held by the government of the United States. Therefore, whether citizen and subject are taken to be equivalent terms or not, the alien not naturalized in respect to the United States, or the national authority, is a citizen in an imperfect sense, even in respect to the several State. The privileges that have been granted to him by the State are not only local, merely, but are imperfect franchises, not constituting a status recognized in public international law. Therefore, the term citizen in this provision, whether taken to mean a subject merely, or a subject holding a particular degree of civil privilege, should not be taken to apply to aliens who hold the rights of native inhabitants only under the juridical authority of some several State.

It is not, however, necessary to consider this somewhat intricate question any farther; at least not in this connection, since the conclusion above stated may be taken to be supported by all the commentators on this provision of the fourth Article,' who uniformly assume that the term citizen here used refers only to persons native, or naturalized under the law of Congress. In each of the four readings of this provision before given, the word naturalized will therefore be taken to refer to naturalization under the law of Congress.

§633. Supposing the signification of the term citizen in either or both parts of the provision to be that of domiciled inhabitant, native or naturalized under the law of Congress, the meaning of these terms, or the nature of the relation expressed by them, may be taken to be too well settled, or too simple, to allow of any controversy. The possession of citizenship, in that sense, or its personal extent, may be supposed to be sufficiently obvious; the facts or circumstances which constitute

tum."

2

'Bacon, De Aug. L. 8, c. 3, s. 3:-"Sub tutela juris publici latet jus privaStory's Comm., § 1806.

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 inhab itants 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.