Page images
PDF
EPUB

Parker, Ch. J., p. 91, asked: By this provision, " are the jurisdictions and governments so amalgamated that they are not in any respect to be considered as foreign to each other? In all national matters they are, in many respects, one and the same, being subject to the same laws and the same government; but in all matters of domestic regulation they may be considered as foreign; as, for instance, in all their criminal jurisdiction, and rules affecting property, except so far as either is subject to the laws of the United States. *** The jurisdictions of the several States, as such, are distinct, and in most respects foreign. The Constitution of the United States makes the people of the United States subjects of one government quoad every thing within the national power and jurisdiction, but leaves them subjects of separate and distinct governments. The privileges and immunities secured to the people of each State can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or eligibility to office, without such term of residence as shall be prescribed by the Constitution and laws of the State into which they remove. They shall have the privileges and immunities of citizens: that is, they shall not be deemed aliens, but may take and hold real estate, and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized. The constitutional provision referred to is necessarily limited and qualified; for it cannot be pretended that a citizen of Rhode Island coming into this State to live is ipso facto entitled to the full privileges of a citizen, if any term of residence is prescribed as preliminary to the exercise of political or municipal rights.'

[ocr errors]

In Crandall v. The State (1834), 10 Conn. 343,' Judge Daggett, in charging the jury, said of this provision, "It has been urged that it is made to direct exclusively the action of the general government, and therefore can never be applied to State laws. This is not the opinion of the court. The plain

'Ante, p. 46.

and obvious meaning of this provision is to secure to the citizens of all the States the same privileges as are secured to our own by our own State laws." The question was not considered by the Supreme Court of Errors, in reversing the judgment of the court below.

In Conner v. Elliott (1855), 18 How. 593, Mr. Justice Curtis, delivering the opinion of the court, said that it had been insisted" that, as the laws of Louisiana provide that a contract of marriage made in that State or the residence of persons there in the relation created by marriage shall give rise to certain rights on the part of each in property acquired within that State, by force of the Article of the Constitution above recited, all citizens of the United States wherever married and residing obtain the same rights in property acquired in that State during the marriage. We do not deem it needful to attempt to define the meaning of the word privileges in this clause of the Constitution. It is safer, and more in accordance with the duty of a judicial tribunal, to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. And especially is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct, and a failure to make it so would certainly produce mischief.

"It is sufficient for this case to say that according to the express words and clear meaning of this clause, no privileges are secured by it except those which belong to citizenship. Rights attached by the law to contracts, by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed "privileges of a citizen," within the meaning of the Constitution. Of that character are the rights now in question," &c.

It will be remembered that the meaning of this clause of the Constitution was not involved in the decision of the Dred Scott case.' But the authority which has popularly been at

1
1 Ante, p. 280.

tributed to the Opinions in that case, as expository of this provision requires a notice of the dieta bearing on the present point of inquiry. In a portion of his Opinion already cited, Chief Justice Taney said that the provision guarantees rights to a person included within the description "citizens of each State," only while temporarily within it; that it gives him no political rights therein, but that "whenever he goes into another State the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State."

On p. 425 of the report, the Judge says, of the case of Legrand v. Darnall, "This case, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State [i. e., to make a negro either a citizen of a State in view of this provision, or a citizen of the United States]. It would also give it to an individual. For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognized him as a citizen,' he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety."

In Lemmon v. The People (1860), 20 N. Y. 608, Judge Denio, after speaking of the corresponding provision in the Articles of Confederation, says, "The Constitution organized a still more intimate Union, constituting the States for all external purposes, and for certain enumerated domestic objects, a single nation; but still the principle of State sovereignty was retained as to all subjects except such as were embraced in the delegations of power to the General Government or

[blocks in formation]

But it would have been this State which had exercised the obnoxious power -not the father.

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.

8664. 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. * Ante, p. 315.

« ՆախորդըՇարունակել »