tion of laws, there is a presumption in favor of the continuance of that law of personal privilege in its effect on private persons, if not in its authority.

Private international law is founded not only on a recognition of alienage but on the recognition of a previous subjection. different from that of native or, more generally, of domiciled subjects. It is characterized by allowance, or disallowance, of rights and duties in relations existing under some law other than that of the forum of jurisdiction (i. e., other than its internal or local law), by allowing that other law to attach to aliens personally, and, generally, by applying laws as personal laws. It would seem therefore, that, from the character of the provision, there must be some standard of "the privileges and immunities of citizens" distinct from the law of the forum in which they appear as domestic aliens. For the same reason there is a presumption that this standard must be one common to the parties.

The inquiry here is indeed distinct from the question, Who, as citizens, are entitled to the benefit of this provision? But, if these are persons privileged according to some national standard,' there seems to be a reasonable parallelism in holding that the measure of "the privileges and immunities of citizens" is also a national one.

It is in accordance with the argument already followed to say that the effect of this clause is to continue the pre-existing common law of the colonies so far as it contained a standard of the rights of citizens of one locality appearing as domestic aliens within another jurisdiction; although, by the revolution and the establishment of new forms of government, the privileges and immunities of citizenship in the case of domiciled inhabitants became altogether determinable by local law."

1 Ante, Vol. I. p. 48.

2 Ante, § 650.

Ante, §§ 433-436. In 20 N. Y. 607, Denio, J., says: "No provision of that instrument has so strongly tended to constitute the citizens of the United States one people as this. Its influence in that direction cannot be fully estimated without a consideration of what would have been the condition of the people if it or some similar provision had not been inserted. Prior to the adoption of the Articles of Confederation, the British colonies on this continent had no political connection, except that they were severally dependencies on the British crown. Their relation to each other was the same which they respectively bore to the other English colonies, whether in Europe or Asia. When, in consequence of the Revolution, they severally beVOL. II.-23

§ 668. This interpretation being admitted, it is evident that other rights and privileges, not included in this standard, might properly be denied in a State to the citizen of another State, even though they should be actually enjoyed by the residents within the forum of jurisdiction, and be similar to those held by such citizen of another State in his place of domicil. And this conclusion seems reconcilable with the language of Kent, Story, and most of the judicial decisions.

§ 669. The question occurs-Are there then privileges and immunities which, even if denied by a State in the exercise of its several power to all its domiciled inhabitants, can be claimed under this provision of the Constitution in favor of domestic aliens being citizens of some other State? If a State should enact laws which, as its municipal, local, or internal law, should abrogate rights which, though not specially guaranteed by the national Constitution in favor of the domiciled inhabitants of the States as against the powers held by the States severally, were yet such as had always been deemed essential to civil liberty,―if, for example, trial by jury were denied in cases directly involving loss of personal security or personal liberty; or if the rights which exist in the relation of family, should be denied to any of the white or "citizen" race; or if acts previously deemed, in the jurisprudence of England and America, essential to civil liberty and among the natural prerogatives of freemen were declared criminal,-would the operation of such State law on citizens of other States, be limited by the guarantee given in this clause?

If the guarantee in the fourth section of this fourth Article

came independent and sovereign States, the citizens of each State would have been under all the disabilities of alienage in each other, but for a provision in the compact into which they entered, whereby that consequence was avoided." This is an entirely unsupported assertion and a most deluding misstatement. They would not have been aliens to each other, because they had not been aliens before, and on the principle of the continuation of law alone, the inhabitants of one colony would have had in the others all the rights which they could have enjoyed before, when they had all been included in the British empire. If a State might have legislated its citizens and those of the other States into a reciprocal alienage-it could have been only by taking the attitude of revolution or secession. The judge's statement, however, accords with the common notion-which lies at the foundation of the doctrine of separate State sovereignty, in the secessionists' sense-that the colonies acquired independence singly-a doctrine utterly at variance with history. See ante, Vol. I. p. 408, note.

of a republican form of government to every State in the Union' affects this question, it must do so by having equal effect as to the rights of all the inhabitants of the State, whether domiciled or alien, and any rights which may be secured by that guarantee rest on the national, municipal, or internal law of the Constitution, rather than on the quasi-international law.

If the individual and relative rights' formerly attributed by "common law" to the white or European domiciled inhabitant are thus internationally supported by the Constitution of the United States in the case of "the citizens of each State" appearing as domestic aliens in other States, the common law may truly be said to form a part of the national law; and if these rights are in any way maintainable in the courts of the national judiciary, these courts may be said to have to this extent a common-law jurisdiction' in cases wherein these rights are in controversy.

§ 670. It is a principle of "the natural or necessary law of nations" that, unless limited by international agreements, every state or nation has the right, based on the right and duty of self-preservation, to exclude from its limits such aliens as it may think proper; or, after their admission, place them under restrictions exceptional to the general freedom of action accorded to other aliens, when their presence is deemed dangerons to the security of the state. This right is exercised through

1

Ante, § 424. Sec. 4, of Art. IV. "The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence." This clause is the only one in the Constitution which contemplates anything like a diplomatic recognition, on the part of the National Government, of the State Governments. It seems to contain a repudiation of the right of secession claimed as a consequence of States-rights doctrine. An usurping minority declaring the secession of the State, might deprive the State-the people of the State-of their right, under this guarantee, to the protection of the nation. It bears also against the doctrine that in each State the sovereignty of the State is held by the State government, and not by the people of the State. (See Vol. I. p. 421, n.) Besides, is a republican government nothing but the absolutism of a numerical majority? If an essential feature of republican government is, that the minority have rights, does not this provision place under the protection of the national government the right of a minority to continue citizens of the United States?

The rights called "personal rights" in the case of Campbell v. Morris, ante, p. 345, and some authorities which follow it.

Ante, §§ 428, 429. Whether any rights may be thus maintained by the national judiciary will depend on the construction of this provision. Ante, §§ 601,

602.

that sometimes called the police power. Laws which in view of vagrancy and pauperism restrict the entry of persons from other jurisdictions, may be considered an exercise of this power; though it must be assumed that it is always exerted in view of some injury to the state, real or fancied, proceeding from the stranger in his private or individual character, and not on account of his nationality or character as the subject of some particular foreign state. For if so exerted it would acquire the character of public or national action, to be judged of according to public international law.

As this power is vested in the national government only, if at all, in reference to foreign aliens, and is not specifically prohibited to the several States, it is among the so-called "reserved" powers of the States, and may be exercised in reference to all persons coming from other States, unless they are exempted from such power by some provision of the Constitution.'

However indescribable may be the extent of "the privileges and immunities of citizens" guaranteed by this provision, it would seem that it should limit the power above spoken of, in the hands of the several States, in respect to all persons included under the terms, "the citizens of each State;" so that no State can ever exercise this power against white domestic aliens, as such aliens, however dangerous their presence may be deemed by the local authority to the interests of the State. This power cannot be exercised against them as aliens to exclude them from the limits of the State or prevent their enjoyment of the rights and privileges of citizens; at least when no act contrary to the local (internal) law of the State-the law applying generally to all persons within its limits has been committed by them under its jurisdiction; the intent of the provision being at least this-that those who are "citizens of a State" shall in every other State be liable only to the same restraint as the domiciled citizens thereof, and be subject, in the

1 In Crandall's case, before referred to, Judge Daggett (10 Conn. 347) argued that the State law might be justified as an exercise of the power to regulate schools, and that the same power would apply to white persons from other States. On the power of the States over paupers, vagabonds, and fugitives from justice, as affected by this provision, see the opinions noted, ante, p. 341.

exercise of individual or "personal" rights, only to laws which apply equally to all persons resident or present within those limits.'

Or, supposing that "the citizens of each State" are not altogether excepted from the exercise of this police power when they appear in other States as domestic aliens, yet, according to the argument herein before set forth, the nature of that power, or the extent to which it may be allowed to interfere with the civil or social action of such citizens, must be determined by some common standard. This can only be found in the history of the previous international and quasi-international law of the same country-that is, in that which had force as a national law or the internal law of the nation, identified in a great degree with the common law of England as the standard of "personal rights," and in that which in each colony was determined by its several will.

Whether the extent of this power, in this instance, will be determinable in the courts of each State, and, in the last resort, by the national judiciary, is a question which depends on the construction of this provision.

§ 671. The extent of the terms, "privileges and immunities of citizens," is manifestly of great importance in determining the territorial extent and recognition of those individual and relative rights which constitute civil freedom as the condition of a private person within the United States. But since it is impracticable to gather from the existing authorities or from the principles of interpretation herein followed any more limited description than has been already attempted, the inquiry will not be prosecuted further, except as connected with the international recognition of slavery or of rights of ownership in respect to slaves, in the several States.

There are probably many judicial dieta which might be referred to as bearing on one or the other side of this question; while there is probably no reported case in which

'Therefore, the citizens of other States have, as individuals, a right to be present in every other State, and are not there as invaders, however unwelcome their presence may be, even when they come as an organized army to maintain the laws of the United States against the usurpation of the State government or even of the people of the State usurping the powers of the people of the United States in the name of "secession,"