and that too while, in all the States, social discriminations maintained the spirit of the former legal distinction.

§ 650. If then the anterior juridical action of the constituent parties may be referred to, in interpreting the meaning of the terms used, it would seem to indicate that the persons designated "the citizens of each State," in this clause of the fourth Article,' are not all who under the internal law of a State possess the rights of citizenship, even in the sense of a condition of privilege superior to that of simple domiciled inhabitant native or naturalized under a law of Congress, but that the extent of the term must be confined to free persons of the European or white race.

§ 651. In the preceding pages it has been attempted to interpret the several terms, the meaning of which is here in question, by the former juridical action of the constituent parties and their political predecessors.

Perhaps it may be possible to distinguish this from constru ing the whole enactment by the intention of the parties in this particular instance, or by ascertaining the spirit and reason of this provision, irrespectively of the conclusions drawn from the words themselves when interpreted or construed as above attempted.

If such distinction can be made, it seems that such intention, or such spirit and reason, can only be known by other acts of the same parties or their representatives which are more nearly contemporaneous with this provision and have a more direct connection with the relations which are its subject matter than was that general course of juridical action which has already been referred to as a means of interpreting or construing the words here employed.

The conclusion here presented is supposed not to be inconsistent with the opinion that, in the third Article, citizen of a State, means simply a legal person, native or naturalized, domiciled in some State. (Ante, § 372.) It is not a received principle that a word occurring in different places in the same instrument is always to be understood in the same sense. Story, in his rules of interpreting the Constitution, Comm. § 454, says:-" "It is by no means a correct rule of interpretation to construe the same word in the same sense wherever it occurs in the same instrument." The whole section is important in these inquiries. Vattel, L. ii., c. 17, § 281:-"We are to take expressions which are susceptible of different significations, in each article, according as the subject requires-pro substrata materia-as the masters of the art say." Lieber's Herm. 119:-"We are by no means

It is very obvious that the intention of a lawgiver or the reason and spirit of his enactments will always be differently understood according to different preconceived views in the minds of the inquirers as to what that intention or reason and spirit ought to have been.'

Among the indications of the intention of the legislator in any particular enactment, must be the previous action of the same legislator in reference to the same topic of law or similar relations."

$652. The Articles of Confederation, which rested on a sovereignty identical in its ultimate basis, if not in its political form,' with that by which the Constitution was established, contain a provision concerning this same international relation between the States and their respective inhabitants, the wording of which is essentially different. The provision, which is in the fourth Article, has been already quoted. From the use of the adjective "free," in connection with "inhabitants" and "citizens" in the first proposition contained in this Article, it would seem that the only distinction, in respect to international privilege, intended was founded on the possession or nonpossession of personal freedom; that while all free domiciled. inhabitants of a State, paupers, &c., excepted, were to possess the rights of free citizens in the several States, whatever these might have been, "the people" generally, meaning all the domiciled inhabitants of a State, should have a distinct degree of this international privilege not in itself equivalent to "the privileges and immunities of free citizens in the several States."

bound to take an ambiguous word in that meaning in which it may occur in another passage of the same text; for words, as it is well known, have different meanings in different contexts." The question occurs, indeed, Is the word ambiguous? 'Lieber's Hermeneutics, 127.

This may not be easily distinguishable from that interpretation of the terms from the former juridical action of the parties which has herein been already attempted. The construction now tried may perhaps be described as a comparison of the effect of the words of the enactment whose meaning is in question (as that effect has been understood by interpretation) with the effect of words of enactments in pari materia (as that effect may be understood by interpretation). Ante, § 845. Ante, § 485. Ante, p. 3, note.

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4

Compare Curtis, J., 19 How. 575, and Ch. J. Taney, ib. 418, ante, pp. 302, 293. Judge Taney says, "It is very clear that, according to their accepted mean that day, the words 'free inhabitants,' notwithstanding their generality, did not include the African race, whether free or not; for the fifth section of the ninth

It is important in this connection to notice that aliens may either appear within the forum as persons proposing to assume the condition of domiciled inhabitants, relinquishing thereby any claim to the continuance of a class of rights held by them under the local law of their former domicil which they might have retained in the forum had they appeared therein as temporary residents; or they may appear in this latter character, claiming, by international law and as aliens to the forum, rights conferred by the law of a country they have temporarily left, and in which they have still their domicil.

The domiciled inhabitants of one of the several States may appear within the territory of another State in either of these characters. Perhaps this Article of Confederation is to be read in view of this distinction, and it may be concluded that it was framed with special reference to the existence of slavery, and the intention was to discriminate in the international obligations of the States in reference to the inhabitants of any one State; so that while to each of "the free inhabitants," whether white or black, the right was secured of becoming at least a domiciled inhabitant of any State, slaves could only pass from one to the other as aliens; while their permanent location in the State into which they should come or be brought would depend upon the subsequent determination of such State, untrammeled by this provision.'

Article provides that Congress should have the power to agree upon the number of the land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State,""&c. The only inference, in most minds, from the use of "free inhabitants" in one place, and 'white inhabitants" in another, would be that the first term would include inhabitants not white. But the Chief Justice says, "Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words 'free inhabitants' in the preceding Article, to whom privileges and immunities were so carefully secured in every State." This reasoning, if admissible, is so only in the doctrine of construction by the intention of the lawgiver learned aliunde, stated in the last section. Compare the Judge's argument from the militia laws, ante, p. 290, note.

In this view, the language of this Article of Confederation is not so inconsistent or difficult of interpretation as has been supposed in Letter No. 42 of the Federalist, and by Judge Story, who adopts the language of that letter. Comm. § 1805. It was remarked by the Federalist that there is a strange confusion in this language. Why the terms free inhabitants are used in one part of the article, free

If the above is the true meaning of the Article of Confederation, it would be impossible, by any definition of the term "citizen" in the fourth Article of the Constitution, to make the effect of the latter equivalent to that of the Article of Confederation. For if citizens in the Constitution is taken to be equivalent only to free subject, or free domiciled inhabitant, it would give to all "the people of each State," free of condition, the right of becoming domiciled inhabitants of any other State, instead of the mere right of ingress and regress without change of domicil. And if the term in the Constitution is to be taken to express the possession of a condition of civil privilege beyond that implied in "free inhabitants," it limits to those particular persons who may possess that condition even the right of ingress and regress.

But the mere change of the terms used indicates a difference of intention.' It may be inferred that "the citizens of each State" spoken of in the Constitution are to be distinguished from "free inhabitants" and from "the people" of such State; that not all the free inhabitants are now to be "entitled to all the privileges and immunities of free citizens in the several States," nor are all domiciled inhabitants now to have free ingress and regress without change of domicil, under the law of national authority; but that this right of ingress and regress, under that law, is now limited to those who may also become domiciled inhabitants of a State, and that now those who are thus privileged are distinguished not merely by the possession of personal freedom, but by the possession of a superior degree of civil privilege denominated citizenship, whatever that may be and by whatever standard or juridical authority its personal extent is to be determined. And whether this extent is determined for the domiciled inhabitants of each

citizens in another, and people in another; or what is meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce,' cannot easily be determined. It seems to be a construction, however, scarcely avoidable, that those who come under the denomination of free inhabitants of a State, though not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter," &c.

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1 Taney, Ch. J., 19 How. 419; ante, p. 298. Judge Curtis argues, 19 How. 584, ante, p. 312, note, on the supposition that the intention must have been on each occasion the same.

State by its several standard, or by some criteria common to the constituent parties, is the question herein already considered.

§ 653. Before examining certain acts of national legislation which have been referred to by commentators on this provision as indicating the intention of the parties, it may be neces sary to consider the modes in which citizenship, in the sense of a superior condition of civil privilege, may exist under that division of sovereign power which is found in the United States.

If citizenship consists in the possession of those individual and relative rights which in each State depend on the sovereign powers" reserved" in the States severally, there can be no doubt that the negro or Indian inhabitants may, by the juridical will of the State, be citizens within its jurisdiction, for there is nothing in the Constitution of the United States limiting the powers of the States in this respect. It has been said that the citizen of a State is also a citizen of the United States, and undoubtedly this must be, in a certain sense, true. Each inhabitant of a State, being subject to a distributed sovereignty, owes a correspondingly distributed allegiance, and stands in the relation of subject towards the people of the United States and the people of the State at the same time, though in a different sphere of action. Though the rights of citizenship, in the enlarged sense, depend on the will of the State wherein he is domiciled, he is yet, while enjoying those rights, a citizen both in reference to the sovereignty of the State and that held by the government of the United States. But the comparative national or local extent of that citizenship must be determined by the distribution, under public law, of the power to maintain those privileges and immunities wherein it consists. From the sovereign nature of the powers held by the States severally, upon his going into another State the rights and privileges of his citizenship would continue or cease to exist at the will of this latter, if there were limitation of those powers in the Constitution. So that although his subjection in respect to the national powers would continue, his citizenship, in the sense of a privileged condition, would not have a national character;