Page images
PDF
EPUB

prohibited to the States. The social status of the people, and their personal and relative rights as respects each other, the definition and arrangements of property, were among the reserved powers of the States; the provision conferring rights of citizenship upon the citizens of every State in every other State, was inserted substantially as it stood in the Articles of Confederation. The question now to be considered is, how far the State jurisdiction over the subjects just mentioned is restricted by the provision we are considering, or, to come at once to the precise point in controversy, whether it obliges the State governments to recognize in any way, within their own jurisdiction, the property in slaves which the citizens of States in which slavery prevails may lawfully claim within their own States-beyond the case of fugitive slaves. The language is, that they shall have the privileges and immunities of citizens in the several States. In my opinion, the meaning is, that in a given State every citizen of every other State shall have the same privileges and immunities-that is, the same rightswhich the citizens of that State possess. In the first place, they are not to be subjected to any of the disabilities of alienage. They can hold property by the same titles by which every other citizen may hold it, and by no other. Again, any discriminating legislation which should place them in a worse situation than a proper citizen of the particular State would be unlawful. But the clause has nothing to do with the distinctions founded on domicil. A citizen of Virginia, having his home in that State, and never having been within the State of New York, has the same rights under our laws which a nativeborn citizen domiciled elsewhere, would have, and no other rights. Either can be the proprietor of property here, but neither can claim any rights which under our laws belong only to residents of the State. But where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the last-mentioned State-not according to those which obtain in his own. The position that a citizen carries with him, into every State into which he may go, the legal institutions of the one in which he was born, cannot be supported. A very little reflection will

show the fallacy of the idea. Our laws declare contracts depending upon games of chance or skill, lotteries, wagering policies of insurance, bargains for more than seven per cent. per annum of interest, and many others, void. In other States such contracts, or some of them, may be lawful. But no one would contend that if made within this State by a citizen of another State where they would have been lawful, they would be enforced in our courts. Certain of them, if made in another State and in conformity with the laws there, would be executed by our tribunals, upon the principles of comity; and the case would be the same if they were made in Europe, or in any other foreign country. The clause has nothing to do with the doctrine of international comity. That doctrine, as has been remarked, depends upon the usage of civilized nations. and the presumed assent of the legislative authority of the particular State in which the right is claimed; and an express denial of the right by that authority is decisive against the claim." The judge refers to the legislation of New York excluding slavery, and further considers the claim of the slaveowner in that case.'

§ 663. It is not probable that any right or obligation has been judicially sustained in any case as a legal effect derived from this provision alone. In many instances, probably, it has been urged in support of claims which have not been judicially sustained. Such cases can only show what effects the provision does not produce. Among these must be classed, according to the existing decisions, the claim of a citizen of a slaveholding State to any right of a slave-owner or master in the jurisdiction of another State. The question in such cases will be particularly examined in the latter part of this chapter.

§ 664. In the passage cited in the last chapter from Story's Comm. § 1806,' he seems to assume that the privileges and immunities guaranteed to the "citizens of each State," whoever these may be, "in every other State," are as indeterminate as those of the domiciled inhabitants of such other State. He has said the intention was to confer "a general citizenship,

1

See the other opinions noticed where this claim is hereinafter considered.

2

* Ante, p. 315.

and to communicate all the privileges which the citizens of the same State would be entitled to under like circumstances." If the circumstances which are to affect the enjoyment of these rights are to be judged of solely by the State of jurisdiction in reference to the domestic aliens, as fully as in the case of its own citizens, then the "general citizenship" hereby conferred, is only the right of assuming the simple relation of domiciled inhabitant, whose privileges and immunities vary in each State under local laws. At most, the citizen of another State is entitled only to a degree of privilege and immunity already attributed by the State to some of its permanent inhabitants, and there is no general standard of citizenship, as a condition of privilege beyond that of domiciled subject, having a quasiinternational effect between the States.

Of like effect is all that Kent has observed on this point:"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 none other. The privileges thus conferred are local and territorial in their nature. 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.""

§ 665. In considering the effect of this clause, that distinction must be remembered which results from the fact that aliens may appear within the forum either as persons proposing to assume the relation of domiciled inhabitants, relinquishing any claim which they might have had by international law or compact to a condition of privilege primarily existing under the law of their former domicil, had they chosen to appear only as temporary residents of the forum; or they may appear in this latter character, and as then retaining the relation, recognized in international law, of subjects or domiciled inhabitants of the place from which they came; and as claiming rights, in the forum, due to them in the character of aliens."

The "citizens" of the States may appear in either of these

1 Ante, p. 317.

'Ante, p. 332.

positions within another State. In the first of these, the clause seems to give them only the right of inter-immigration, or acts like a State naturalization law for such persons in every State wherein they may select a residence. If Kent and Story, in the passages cited, referred only to "citizens" in this position, the correctness of their remarks seems unquestionable. For it cannot be doubted but that the power of each State is the same in respect to each of its domiciled inhabitants.

The language above cited from 9 Johnson and 4 Washington, C. C., may have very different bearing on "citizens of each State," according as they may appear in one or the other of these positions. In neither opinion does the court notice such a distinction. Chancellor Kent, in 9 Johnson, would make the privileges given by the local law the measure of "the privileges and immunities of citizens" for domestic aliens in either position: under which standard, if there should be distinctions of condition among the domiciled inhabitants, it would be necessary to discriminate citizens from other States in classes corresponding with those distinctions.

The case from 4 Wash. C. C. seems to recognize the existence of some national and quasi-international standard of rights which are "fundamental and belong of right to the citizens of free governments," as maintained by this clause against the power of the States over the citizens of other States.

§ 666. Since the provision is admitted to be international in its effects, it would seem that it can apply to "citizens" only while in a position recognized by international law, and that can be only while they are domestic aliens. Therefore, it may be affirmed that the clause applies to "the citizens of each State" appearing in another State, only so long as they have not acquired a domicil in such other State.'

It may be objected that if the citizens of each State are protected by this clause only as domestic aliens, and to the extent only of acquiring a domicil, being thereafter absolutely subject to the local authority, they may be immediately ex

Judge Taney, 19 How. 422, ante, p. 295:-"Neither does it apply to a person who, being the citizen of a State, migrates to another State," &c. Judge Parker, in 6 Pick. ante, p. 345, seems to be alone in saying that the clause applies only "in case of removal."

pelled, and this practically annuls the secured right of inter-immigration. But the question is only-Does the Constitution intend more than is above stated? And, on the other hand, it is obvious that the extent of the reserved powers of the States is indefinitely limited by attributing any operation to this clause after a domicil is acquired.

This view of the clause renders it unnecessary to consider whether political rights-the right of voting or of being eligible to office-are secured at all by this provision; for these rights are in their nature incident to the status of domiciled persons only.'

None of the authorities above cited are very precise in supporting any one of the criteria already indicated.' However, it may be gathered from them that they reject altogether the law of the State of the citizen's domicil as the standard of the privileges and immunities to be accorded to him in each other State. It seems, too, that they would find the standard rather in the rights enjoyed by citizens domiciled in the forum of jurisdiction, than in a national standard of privilege.

3

$667. According to what has already been said, this question can be determined only by construing the provision with reference to that international and quasi-international law which formerly prevailed as between the colonies and States. It would be difficult to show that any privileges and immunities of any of the inhabitants of the colonies or other parts of the empire, or of the States before the Constitution, when appearing as domestic aliens in other parts of the empire or in other States, were measured either by the law of their local domicil or by that of the colony or State wherein they might be. It has been seen that the common law of the personal rights of inhabitants of England had a personal extent in all parts of the empire before the revolution. On the principle of the continua

1

Murray v. McCarty, 2 Munford, 398. See, in Debates in the New York Convention of 1821, remarks of Chief Justice Spencer on the question of negro suffrage. Sept. 20th; Carter and Stone's report, p. 195.

2 Ante, § 342.

It seems generally supposed that rights and privileges not allowed to any domiciled inhabitant cannot be claimed by the citizen of another State. The most remarkable exception to this has been in the claim of the owners of slaves to hold them in the free States under this provision. See post.

Ante, §§ 605, 606.

« ՆախորդըՇարունակել »