sons on board of vessels, while within their harbors, to imprisonment, &c., have never been brought before the tribunals of the national government.'

The resolution of Congress, March 2, 1821, providing for the admission of the State of Missouri on a certain condition," has sometimes been referred to as a recognition, by Congress, of free blacks as citizens under this provision.' But it is certainly nothing more than an affirmance or recognition of the provision in the Constitution as it stands, without determining either the personal extent of the terms "citizens of each State," or the nature of the privileges and immunities to which they are entitled under it.

636. The decision of the Supreme Court of the United States in Dred Scott v. Sandford, on the plea in abatement that the plaintiff was not a citizen in the sense of the word in Article III. sec. 2, of the Constitution, has been noticed in the first volume. Strictly speaking, it is not an authority in point on the question, Who are citizens in the sense of the word in the fourth Article? But those members of the court who discussed the plea, with the exception of Judge McLean, evidently suppose the word to have like force in either place. And their reasoning indicates that the question under the fourth Article was more the object of their attention than was that under the third. The extracts herein given are those which seem most material in this connection, though it must be remembered that disconnected from the rest they may not give an adequate idea of the reasoning.

On page 403 of the report, in 19 Howard, Chief Justice Taney, delivering the opinion of the court, says:

"The question is simply this: Can a negro, whose ancestors

1 From the fact that Mr. Hoar, of Massachusetts, who visited Charleston, S. C., in 1843 or 1844, with the known intention of bringing the question of the constitutionality of the law of South Carolina before the national judiciary for the protec tion of colored seamen from his own State, was expelled from that city by the violence of a mob, it would appear that the citizens had not sufficient confidence in the validity of their legislation to allow it to be subjected to inquiry even in the judicial tribunals of their own State. For if no action lies in the U. S. courts, it would have been the power of the State courts to protect the citizen against any usurpation of jurisdiction.

2 Ante, p. 168.

3

Jay's Inquiry, &c, p. 43. Curtis, J., in 19 Howard, 587.

Vol. I. p. 434.

were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

"It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.' And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves."

After a paragraph relating to the status of Indians,' the Chief Justice continues, on p. 404:

'The reader will note the importance of this statement of the issue in connection with other questions discussed in these opinions. It is remarkable too that here and afterwards in stating his conclusion (19 How. 427), the Chief Justice recognizes the question to be, Who are citizens of a State? though in the argument it is assumed that the citizenship in question is not citizenship in respect to a State, but in respect to a different political person, that is, the United States, or that the question is, who are citizens of the United States?

19 How. 403:-"The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate [404] right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our government. It

"We proceed to examine the case as presented by the pleadings.

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.' The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.'

is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people."

This recognition of the possible citizenship of Indians is important in view of the general question. The argument seems to recognize their possible citizenship as a consequence of the recognition in international public law, and by the United States, of political communities composed of Indians, and the doctrine seems to be implied in other places that political communities composed of negroes have not and cannot be so recognized. This idea is prominently maintained in Judge Daniel's opinion, 19 How. 475. See ante, vol. I. p. 321, note, and the reflex of these opinions in the Florida case, ante, p. 195, n.

See the note on this passage, ante, vol. I. p. 412, n. 2.

2 And on p. 409 of the report, referring to the laws of the States, "they show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery and governed as subjects with absolute and despotic power," &c. The doctrine seems to be implied that

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. * * *

"In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [406] rights and immuni

the rights of a white inhabitant are in no wise the effects of law, but, like the sovereignty possessed by the people (ante, vol. I. p. 414), a right above law. See also the Florida case, above cited.

ties which the Constitution and laws of the State attached to that character.

"It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

"The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State and in its own courts?

"The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and consequently, was not entitled to sue in its courts.

"It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State com