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.

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; Ĝa. 105; Ohio pp. 121, 122; Ind. pp. 128, 131; Ill. p. 135; Ark. p. 173; Iowa 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 n ure 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

2 Ante, § 633.

1 Ante, § 634. Ante, § 634, question; 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 w ch those may appear who claim to be such. But the reason there given will no apply here to exclude the law of such State as one of the possible standards of he privileges and immunities of citizenship for this part of the clause.

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 zaid 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 on-resident plaintiffs was not in violation of this provision. The court relied or 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.