§ 1805, 1806, are on the consequence and efficacy of the clause. They will be principally noticeable hereinafter, under the second inquiry; as he does not propose the question, Who are citizens? But his views on that point perhaps may be conjectured from what he here says. The first of these sections contains only an analysis of the corresponding provision in the Articles of Confederation, which is taken from the Federalist, and will be noticed hereafter. His original comment on this clause is in § 1806: "The provision in the Constitution avoids all this ambiguity [attributed to the Article of Confederation]. It is plain and simple in its language, and its object is not easily mistaken. Connected with the exclusive power of naturalization in the national government, it puts at rest many of the difficulties which affected the construction of the Article of Confederation. It is obvious that, if the citizens of each State were to be deemed aliens to each other they could not take or hold real estate or other privileges except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under like circumstances." By his allusion to naturalization, and his contrasting these citizens with "other aliens," the author seems to indicate domicil and native birth, or naturalization, as the only requisites of citizenship.

8641. But, when considering the jurisdiction of the national courts, under Art. III. sec. 2, the same author remarks, Comm. (B. III. c. 38), § 1693: "The next inquiry growing out of this part of the clause is, Who are to be deemed citizens of different States within the meaning of it? Are all persons born within a State to be deemed citizens of that State, notwithstanding any change of domicil?" Here the author evidently. assumes that citizen in this clause is only equivalent to native or naturalized inhabitant having a domicil. But he answers the inquiry by referring to the clause in the fourth Article"The answer to this inquiry is equally plain and satisfactory. The Constitution having declared that the citizens of each State shall be entitled to the privileges and immunities of citizens in the several States,' every person who is a citizen of one

State, and removes into another with the intention of taking up his residency and habitancy there, becomes ipso facto a citizen of the State where he resides; he then ceases to be a citizen of the State from which he has removed his residence. Of course, when he gives up his new residence or domicil, and returns to his native or other State residence or domicil, he re-acquires the character of the latter. What circumstances shall constitute such a change of residence or domicil, is an inquiry more properly belonging to a treatise upon public or municipal law than to commentaries upon constitutional law." In the continuation of the section the author gives a brief description of the nature of domicil as usually understood.

This is equivalent to saying that the clause in the fourth Article shows that the citizenship which depends upon domicil is determined by the intention to assume a residence, formed by the citizen who removes. But if the conclusion here attributed to the fourth Article is presented as a complete answer to the question-Who are citizens of a State?-arising under the third Article, then it is really founded on an assumption that citizens and native or naturalized inhabitants having a domicil would be convertible terms in either Article; and the circumstances determining domicil in a State are then settled by the ordinary juridical definition. Thus the author views the clause in the fourth Article as simply giving a right of inter-immigration to the domiciled inhabitants, native or naturalized, of each State. But before attributing this consequence to this clause, the value of the term citizen in that place should have been independently ascertained.

But if citizen in this clause indicates one in a condition of privilege and immunity not necessarily belonging to every domiciled inhabitant of a State, it obviously cannot be said that, because those who are citizens in this sense may become domiciled inhabitants of any other State, as incident to the privilege and immunity of citizen in such State, therefore any domiciled inhabitant, native or naturalized, of a State, may become such in every other State.

$642. Kent's observations are, in like manner, indeterminate by not fixing the sense of the word citizen. He says, 2

Comm. 71, that the clause in the fourth Article "applies only to natural-born or duly naturalized citizens." It must, however, be assumed, as by Story, in the remarks just cited, that here "the citizens of each State" must be persons who have at least a domicil in some one State; that while it is admitted that they must be subjects of the United States by birth or naturalization, the fact of domicil in a State is the more essential characteristic. The question is, whether this is the only essential characteristic in the case of native or naturalized inhabitants. The commentator would, from the sentence quoted, appear to hold the affirmative. He proceeds to say: "And if they remove from one State to another, they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made and to none other." If the words "same description" refer to the qualitative words "natural-born or duly naturalized citizens,” then by "the citizens of each State" the commentator understood all domiciled inhabitants, native or naturalized. But, in the next sentence, "the qualifications of citizens" are spoken of as something beyond those given by birth and domicil, and as fixed either by the "policy" of the State of domicil, or by that of the State into which the person may remove. The author says: "The laws and usages of one State cannot be permitted to prescribe qualifications for citizens to be claimed and exercised in other States in contravention to their local policy." This might be construed to mean that each State (in view of persons entering its limits) is to judge who are "citizens of each State"-each other State or the persons intended by this clause. But more probably the author intended "qualifications of citizens" to refer to the degree of privilege the persons.designated should enjoy in "every other State" by force of the last part of the clause. His views on this point will be considered hereinafter. From the whole it may be inferred that in his view any domiciled inhabitant of a State, native or naturalized, is included under "the citizens of each State" in the fourth Article, and that, thereby, any such persons have at least the right to remove to another State and become domiciled inhabitants therein.

§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 natural-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 a'legiance 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 & of be attempted, of the question arising under the first pie dethe clause,

nited

What is the personal extent of the terms, the citize pareach State? or who are the persons thereby intended? e had

Assuming, on the reasons and authorities already ɔnal sented, that only those persons can be intended who are inll. itants of a State, native or naturalized under an act of Cogress,

3

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?

1

If the latter is the true conclusion,

A second inquiry is—whether the possession of the char

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.