course the most favored, class of persons in aristocratic republics; upon which usage is based the idea of citizenship, which we find in some of the older treatises on natural and politic law.* Modern authorities on these subjects, such as Montesquieu, Vattel, and Rutherforth, taking a more correct and liberal view of the essential relations of the individual to the state, have used the word 'citizen' as denoting simply a member of the state,' and as including, in general, all persons in free condition, under its proper power and protection. From them we borrowed it, when we threw off the yoke of Great Britain, and have ever since used it instead of the term subject, as being, in the language of Chancellor Kent,† "more appropriate to republican freemen."

But further, and more positively, we object to the definition here given, as utterly untenable, and for two sufficient reasons:

First. That it excludes persons who confessedly are citizens, within the guaranty of the Constitution, and whom it ought to include.

Second. That it includes persons who confessedly are not citizens, and whom it ought accordingly to exclude.

should prohibit young men, natives of South Carolina and under twenty one years of age, from coming into the state with the purpose of seeking admission to Yale College, no one would hesitate to say that such enactments would be in violation of rights guarantied to those persons as citizens under the Constitution. This objection is thus met by the Kentucky judges:-"It is true that women and children do not possess personally those rights and privileges in any state in the Union; but they are generally dependent on adult males, through whom they enjoy the benefit of them."-Through whom, then, does the single woman, of full age, and completely sui juris, enjoy this benefit? Or the women and children whose kinsmen are not voters? Or the nullius filius? Persons of this description are not entitled to enjoy, and do not enjoy, political privileges, in any manner, whether in person or by proxy, nor on any terms. And such cases disclose the impossibility of making the possession of such privileges the test of citizenship.-It is further said: "It is a rule of common law as well as of common sense, that females and infants should in this respect partake of the quality of those adult males who belong to the same class and condition in society, and of course they will or will not be citizens according as the adult males of the same class are or are not."-A difficult test of citizenship to be applied in some of the states; for in Connecticut at least it is understood that the law knows no difference of social rank or condition as making a difference in the possession of civil rights. But we waive this point.— If the question at issue were merely the appropriateness of a name, we certainly might "call them citizens or not," just as we might call them Yahoos or not, 66 according as the adult males of the same class were or were not." But we question whether it is really the doctrine of

the common law that women enjoy essential rights because they happen to be the wives or daughters of men that do. Women born in this country, though of parents who are aliens, acquire and hold real estate, pursue their remedies in court, and claim and receive in every respect the protection of equal laws, in their own right as members of the state, owing allegiance to it by birth, and contributing to its support by the payment of such taxes as its laws may impose. So too in England. And being thus entitled, suo jure, to such privileges, they enjoy them personally, if at all, though their fathers and husbands do not; and are wronged by being deprived of them, though their fathers and husbands are no ways hindered or restricted in the enjoyment of theirs. In like manner, a woman excluded from political privileges, is none the less excluded though all her male kindred vote and hold office. Numberless questions arise, very easy to ask and very difficult to answer, on the supposition that the citizenship of women and children depends upon that of the adult males of the same class. Concede that a free man of color is not a citizen, and suppose a white woman, a foundling perhaps, whose parentage has never become known, chooses to marry him; she may lose caste, but does she lose citizenship, with her quasienjoyment of political rights and all? It would seem to follow that a native woman marrying an alien is no longer a citizen, and that an alien woman marrying a natural born citizen acquires rights of citizenship; yet it has been expressly decided that her status as alien or citizen is noways affected by such marriage. But the simple and obvious fact is, citizenship depends on a relation to the state, and not to other persons; on a personal, immediate

*1 Cowen, 89. 3 Peters' U. S. Reports, 242.

possession of its attributes; if the enjoyment of political as well as civil rights is one of these, as the definition given would make it, then those who are not themselves entitled to such enjoyment, are themselves no citizens. Women and children, then, are not citizens within the definition of the Kentucky court; but they nevertheless are citizens, beyond all question, within the meaning of the Constitution.

Furthermore, the definition excludes naturalized citizens, who may not be entitled to rights of suffrage and eligibility on equal terms with natural born citizens. A person naturalized under the law of Congress, and domiciled in any state, becomes immediately a citizen of that state; is entitled to sue as such in the Federal Courts, to hold real estate in any state in the Union, and to claim the benefit of the article now in discussion; yet if he goes to Arkansas, he is shut out from the right and privilege of being elected governor; and if he happens to be domiciled in Rhode Island, he can not vote nor hold office on the same terms as the most favored class of society, but only on a property qualification, not required of natural born citizens under similar circumstances. And it is as clearly within the competency of any state entirely to exclude by its constitution citizens who are not native born from the exercise of the elective franchise, as it is to restrict them in it by requiring two, five, twenty one, or a hundred years residence. Moreover, if this definition be correct, a person naturalized never becomes a citizen of the United States, though Congress has done its best to make him one; for he is not entitled to the right and privilege of being a Senator or Representative in Congress on the same terms as a more favored class, nor to the right and privilege of being President or Vice President on any terms. Persons so restricted and excluded certainly are not "entitled, upon

zen in the article in question a meaning different from its ordinary legal meaning, is one decided in Tennessee in the year 1838.* In that case the court said, "The citi zens spoken of are those entitled to all the privileges and immunities of citizens. But free negroes were never in any state entitled to all the privileges of citizens, and consequently were not intended to be included when this word was used in the Constitution." And further, "The meaning of the language is, that no privilege enjoyed by, or immunity allowed to, the most favored class of citizens in said state, shall be withheld from a citizen of any other state."-So far as this language is intended to declare the general meaning and effect of the article in the Constitution, it must be examined in another place. Taken as a definition of the citizenship intended therein, it means one of two things either the citizens spoken of are those entitled to all the privileges and immunities enjoyed by any persons whatever who are citizens; or else, they are those entitled to all the privileges and immunities of citizenship.' If the former be meant, it is open to all the objections already made to the definition in the Kentucky case; if the latter, it is as if we should say, 'the triangles spoken of in the fourth proposition of the first book of Euclid, are those possessing all the properties of triangles.' That is, the term as here used includes all citizens whatsoever, whether more or less favored in respect to privileges not essential to that character.

We know of but one other reported case in which the question has been raised, whether free persons of color are citizens or not, within the meaning of the constitutional guaranty; which is the case in this state already alluded to. That case arose under

State vs. Claiborne, 1 Meigs, 331-340. + Miss Crandall's case, 10 Conn. 340.

a law making it a penal offense to instruct, in any school in this state, colored persons not inhabitants of the state, without the previous consent in writing of the selectmen of the town in which such school was situated. Upon the trial of Miss Crandall, who was charged with violating this law, she was defended on the ground that the law was void, as prohibiting the exercise of a fundamental right, guarantied to the persons she had instructed, as citizens of the states in which they respectively belonged. Judge Daggett charged the jury that those persons were not citizens within the meaning of the Constitution. Miss Crandall was convicted, and the case went up to the Supreme Court of the state, where it was fully argued ; but a defect in the legal proceedings made it unnecessary for the Court to examine the constitutional question. It may not be improper, however, to say, that it is well understood at the bar, that, had it been necessary to decide the point, the charge of the Judge at the jury trial would have been overruled, perhaps by a unanimous Court, at most with the single dissent of Judge Daggett. Any opinion of that eminent Judge is certainly entitled to high respect; but he does not appear, in that case, to have examined the great question at issue with his usual care; and his reasons for his judgment, the most important of which we have already quoted, were abundantly shown by the distinguished counsel before the Court of Errors, Judge Goddard and Gov. Ellsworth, to be quite inadequate to sustain his conclusions. No other case arose under the law, which was soon after. wards repealed.

And now, in opposition to all such attempts to restrict and narrow in this particular case what we have shown to be the general usage of the disputed term, we not merely urge the negative objection, that they are not sustained by proof, but we under

take to show, by positive and independent evidence, that free persons of color, were directly, and we might almost say expressly, within the purview of this guaranty, when it was originally given. The article of the Constitution which embodies it, was adopted, with no change of purpose, from the fourth of the Articles of Confederation, which is in these words." The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and egress to and from any other state, and shall enjoy therein all privileges of trade and commerce, subject only to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided such restrictions shall not extend so far as to prevent the removal of property imported into any state, to any other state of which the owner is an inhabitant;" &c. The article in the Constitution is, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." It will be seen that only the general and governing clause of the guaranty has been retained, omitting those containing specific precautions. Now whatever may be said of the article in its present form, there is no mistaking its original comprehensiveness. More general words could not have been used, to denote that each state was making that important covenant, not in behalf of any favored class, but of its whole population. That the terms' inhabitants,' the people,' 'owners' of property, conveying no distinction of black or white, applied to free persons of color, would seem too plain for proof. But yet

there is proof. For the fact that four classes of persons, to wit, slaves, paupers, vagabonds, and fugitives from justice, are ex industria excepted, is, by all rational rules of construction, conclusive as to the fact that no others were intended to be excepted. The further and important fact that an attempt was made to except also, in express terms, the free colored inhabitants, and failed, puts the matter beyond all possible doubt. For, when the Articles of Confederation, having been submitted to the state legislatures, were before the Congress for final action, the delegation from South Carolina, under instructions from that state, moved to amend the clause now cited, by inserting the word white, so as to read the free white inhabitants,' &c., and the amendment was REJECTED, by a decisive vote.* Free persons of color were thus declared to be entitled to all the privileges and immunities of citizens. Has that guaranty been withdrawn?

At first sight, it would seem to be a suspicious circumstance, that in the article as it now stands, the word 'citizens' is substituted for 'free inhabitants.' We can easily imagine how a plausible and quite natural, but very harmless speculation, might be built up on this basis. The change was obviously made in order to exclude some class of free inhabitants who were not citizens, but who had become entitled, under the provisions of the former article, to all the privileges of citizens. And what class should that be, if not that inferior and degraded caste which South Carolina was so anxious to put in the category of slaves, paupers, vagabonds and fugitives from justice, and which from that day to this has been found so notoriously "dangerous to her peace?" And then might rise up, like a great rock in a

* Journals of Cong. of Conf. June 25th, 1778.