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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

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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.

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

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 În 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,"

the question has been presented singly for adjudication. According to the synthetical arrangement of the international questions arising in respect to the recognition of slavery which is herein followed, the cases in which these dicta have been given will appropriately be arranged under other issues. It will be seen by the analysis of any supposed case, that the owner's claim, he being a citizen of some State, to slave property in some other State in which he appears as domestic alien, may be urged on one or more of three distinct grounds:

1. As being supported by this provision.

2. As being a special case supported by another provision in this Article.

3. As being supported by private international law, as ordinarily received and without reference to the Constitution of the United States.

In most of the reported cases in which a claim of this kind has been made, it has been founded on the second of these grounds, in the case of a fugitive from service. But in the greater number of cases wherein such a claim made in a non-slaveholding State has been maintained, it is at the same time judicially affirmed or implied that the claim could not be maintained on any other ground.'

The judicial dicta affirming the claim on this ground are, it is believed, almost exclusively to be found in the opinions of the courts of the slaveholding States, in declarations of what the courts of the non-slaveholding States ought to decide on this question.'

§ 672. There are a few cases in which the claim may have

'These cases will be given in Chapter XXV., under the question, Who are fugitives from labor? The cases where the claim to exercise ownership has been denied on the ground that the slave was not fugitive are to be particularly noticed in this connection; as Respublica v. Richards, 2 Dallas, 225; Butler v. Hopper, 1 Wash. C. C. 499; Commonwealth v. Holloway, 2 S. & R. 305.

In many cases in the slaveholding States, where the question has been of sta tus after return to the former slave domicil, it has been held that the slave has not acquired freedom by being temporarily within a free State. See cases noted in Cobb's Law of Slavery, pp. 216, 217. In most of these the unwritten international law alone is relied on as thus supporting slavery in the free State. In Lewis . Fullerton (1821), 1 Rand. 22, and Julia v. McKinney (1833), 3 Missouri, 272, judicial dicta attribute the same consequence to this provision. The doctrine was alluded to in argument in Dred Scott's case, but not regarded by the court. See Nelson, J., 19 How. 468.

been based on the first and third of the grounds above enumerated.

In the case of Sewall's slaves (1829), 3 Am. Jurist, 404, it was held that the owner of slaves emigrating from Virginia to Missouri was to be recognized as owner while passing through Indiana. But the judge attributed this consequence. to the unwritten international law; and says expressly: "But this right, I conceive, cannot be derived from any provision of positive law."

In Willard v. The People (1843), 4 Scammon, 461, the right of a slave-owner from Kentucky passing through Illinois, was maintained on the doctrine of international comity. But in the opinion of the court, ib. 471, it is also said that, were such owners to be regarded as foreigners, "we could not deny them this international right without a violation of our duty. Much less could we disregard their constitutional right as citizens of one of the States to all the rights, immunities, and privileges of citizens of the several States." Lockwood, J., in a separate opinion, relied entirely on the doctrine of international comity, to be applied at the discretion of the courts.'

In Commonwealth v. Aves (1836), 18 Pick. 193, also known as Med's case, the owner, a citizen of Louisiana, had brought the slave to Boston, intending to remain there a few months. The claim of the owner was disallowed. Shaw, Ch. J., delivering the opinion of the court, said: "The Constitution and laws of the United States, then, are confined to cases of slaves escaping from other States and coming within the limits of this State, without the consent and against the will of their masters, and cannot by any sound construction extend to a case where the slave does not escape," &c.

The case Jackson v. Bullock (1837), 12 Conn. p. 38, arose out of similar circumstances, and was decided in the same manner. Williams, Ch. J., held and said it had been conceded that the owner, a citizen of Georgia, could claim "nothing by

This judge states the doctrine very broadly (4 Scam. 474), saying that from the authorities he cites, "the conclusion follows that the courts of this State have the power, independent of legislature enactment, under the law of comity and the exercise of a sound discretion, of determining what laws of other States shall be exercised and enforced in this."

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