weary land, such a sentence as this, from the Federalist,*" It seems to be a construction 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 the privileges of free citizens in the latter." But alas! the great rock is only an optical illusion. The inhabitants not citizens' of which Mr. Madison was speaking, were aliens! They were persons who not being by birth inhabitants, "any state might have allowed to become inhabitants." The framers of the original article, in their zeal for making the terms of the mutual grant large enough, had made them too large. They were too large, simply as including under the word ' inhabitants,' aliens resident but not naturalized; who, though confessedly not citizens, were thus declared to be entitled to the rights of citizens. It is unnecessary to dwell on the inconveniences, as detailed by Mr. Madison, which might have arisen from this oversight. To guard against any possible evils from that source, and to simplify the expression by using but one of the three terms, free inhabitants,' free citizens,' and 'the people,' all obviously referring to the same persons, the change in question was made. To complete the remedy, the exclusive power of naturalizing foreigners was given to Congress; a measure "by which," says Mr. Madison, "provision is made against these and all other consequences, proceeding from the defect of the Confederation upon this head;" a measure, nevertheless, which could possibly affect no class of persons but aliens. These facts we gather, fairly as we think, from the number of the Federalist which we have quoted; the journals of the Convention, the Madison Papers, and so far as we know, the debates in the state conventions, disclose no

* No. 40.

Vol. III.

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other reason for the change of language. These are clearly sufficient ; if any thing more was intended, the evidence of the fact is no where to be found; and it is incredible, that with the diversity of views in the Federal Convention, and amid the storm of opposition which the plan of government it formed encountered in every part of the country, assailing even its minutest features, any change in the operation of an article which Mr. Hamilton calls "the fundamental basis of the Constitution," as it had been of the Confederacy, could have been effected in silence in the Convention, and adopted throughout the country without a syllable of comment.

The free inhabitants,' therefore, of 1778, aliens excepted, were the 'citizens' of '87.

But the three cases to which we have attended, do not exhaust the legal authorities upon the construction of the article.

It was decided in Missouri, by Judge Mullanphy, some two or three years ago, that free persons of color are citizens and protected by the constitutional guaranty. We know this only by a newspaper notice of the trial and decision which we remember to have seen at the time; and it has since been stated that the case was appealed to the highest state court, and the decision affirmed; but we have not had access to the report of the case, as the volume which would contain it has not yet appeared, or at least not in the eastern market.

Mr. Hamilton, in the eightieth number of the Federalist, speaks of the word citizen in this clause, and the same word in the clause giving jurisdiction to the United States Courts in cases between citizens of different states,' as precisely similar in meaning and application; justifying such jurisdiction on the ground that it ought to be coëxtensive with that guaranty, and competent to enforce its provisions. Now it is ab

solutely impossible, as we conceive, under the decisions upon this clause, to shut out of the Federal Courts a free colored man who should bring a suit there in the usual form against a citizen of a different state. And we believe no lawyer would think of advising a client, so sued by a colored man, to resist his action, if he had no other defense than a plea to the jurisdiction, on the ground that the plaintiff was not, as he must aver himself to be, a citizen of the state in which he resides. The question, so far as we know, has never been raised, and in the usual course of private litigation probably never would be; it might be, very easily, if any thing would be gained by a decision of it; and that, too, without going to South Carolina for the purpose, or incurring the ban of the empire either from its chivalry' or its sovereignty.'

6

Judge Story expresses himself in a similar manner in repeated instances throughout that part of his Commentaries, in which he speaks of the jurisdiction of the Federal Courts.*

In the Kentucky case which we have considered, the court was divided in opinion, two against one. The opinion of Judge Mills, dissenting, clearly and ably exposes many of the perplexities which must arise from applying the definition of citizenship given by the majority of the court. We quote his own, as commending itself at once to our ideas of reason and right, and as confirming and strongly fortifying every thing we have said on the subject. "A citizen, then, is one who owes to the government allegiance, service, and money by way of taxation, and to whom the government in turn guaranties liberty of conscience and person, the right of acquiring and possessing property, of marriage and the social relations, of suit and defense, and of security in person, estate, and

* See particularly, Arts. 1684, 1687.

reputation. To aliens we extend these privileges by courtesy, to others secure them."*

And in further support of our conclusions, we take pleasure in cit ing the authority of Chancellor Kent. "The privilege of voting, and the legal capacity for office, are not essential to the character of a citizen, for women are citizens without either.-Citizens, under our constitutions and laws, mean free inhabitants, born within the United States, or naturalized under the act of Congress. If a slave born in the United States, be manumitted or otherwise lawfully discharged from bondage, or if a black man be born in the United States, and born free, he becomes thenceforward a citizen, but under such disabilities as the laws of the states respectively deem it expedient to prescribe to free persons of color."t

We hold it, therefore, to be prov ed that free persons of color are cit izens within the general meaning of the term, and can not be excluded from its comprehension in the second section of the fourth article of the Federal Constitution.

To show that this is no novel doc. trine, we cite the following as a few of the instances in which, either expressly, or by unavoidable implication, they are designated as citizens.

1st. The Act of Congress, passed 1803, to prevent the importation of certain persons, prohibits the im porting of "any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States." 2 Story's Laws U. S. 886.

2d. The constitution of New York, Art. II, Sec. 1, gives “colored citizens" a right to vote upon a property qualification; and by the Revised Statutes, Vol. I, page 134, colored persons, offering to be made voters, are required to swear

* 1 Littell, 342.

+ Comm. Vol. II, 258, note.

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that

3d. In nine of the states in which colored men are not entitled to vote, they are excluded by prefixing to the word citizen,' in the clause of their constitutions prescribing the qualifications of voters, the word 'white,' showing that in the absence of that adjective they would be included; and in five of the states in which they do vote, they are entitled to the privilege, in common with all others, under the description of 'citizens.'

4th. The Act of Virginia, passed Dec. 20th, 1785, prescribing the qualifications of electors, says, "Every male citizen, (other than free negroes or mulattoes,) of this commonwealth."

5th. On the 11th of April, 1783, the eighth of the Articles of Confederation was amended so as to provide that the charges of war and other expenses should" be defrayed out of a common treasury, which should be supplied by the several states, in proportion to the whole number of white, and other free citizens and inhabitants, of every age, sex, and condition, including those bound to service for a term of years, and three-fifths of all other persons not comprehended in the foregoing definition, except Indians not taxed in each state." We give the whole, for the sake of its history, as showing the origin of the famous three-fifths clause in our constitution. To show that the expression white and other free citizens,' was not adopted at random, we find that it appeared in three different forms while the amendment was pending. It was first reported by a committee on the 20th March, as, "in propor tion to the number of inhabitants of every age, sex, and condition, except Indians not paying taxes in each state;" recommitted and reported March 28th, "the whole number of free inhabitants, and threefifths," &c.; and adopted in com

6

6

The language of this article was embodied in various propositions submitted to the Federal Convention in 1787.* On the 11th of June, it was moved by Judge Wilson of Pennsylvania, "that the right of suffrage in the lower house, ought to be in proportion to the whole number of white and other free citizens' and inhabitants," &c. The motion was seconded by Mr. Pinckney of South Carolina, who it seemed did not hesitate to admit that there were citizens other than white.' On the 15th of June, Mr. Patterson of New Jersey, moved "that the requisitions upon the states ought to be in proportion," &c. as before. The seventh resolution, agreed upon in committee of the whole, June 19th, regulated the suffrage in the lower house in the language already quoted. On the 6th of August, a draft of a constitution was reported, an article in which provided that direct taxation should be as above. This was formally accepted, and then with the other articles, referred to a committee of style, by whom the expres sion was shortened to the form in which it now stands in Art. I, Sec. 2, of the Constitution, using the single word 'person,' instead of

white and other free citizens, and inhabitants.' The committee were not authorized and did not profess to make any alteration in substance. Thus it appears most fully that the CONVENTION which framed the Constitution, recognized the fact that there were CITIZENS OTHER THAN WHITE.'

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6th. The right of free persons of color, as citizens" of any state, to sue "citizens of other states" in the Federal Courts, as we have already remarked, has never been called in question.

7th. It has been expressly decided

* See Journals of Federal Convention and Madison Papers.

by the Supreme Court of North Carolina, that free blacks are citizens within the meaning of a general law protecting slave property belonging to 'citizens of the state.' And finally,

8th. A law of Virginia, passed Dec. 23, 1792, entitled "An Act declaring who shall be deemed citizens of this commonwealth," &c. enacts "that all free persons born within the limits of this commonwealth-shall be deemed CITIZENS of this commonwealth;"† a declaration of more than local authority, since it was apparently intended to be, as it in fact is, merely in affirmation of the common law doctrine of allegiance and of course citizenship by birth.

There remains one important source of evidence to which we have made but a partial appeal. The inquiry in which we are engaged would be of little moment, if it were to terminate merely in deciding that particular persons are or are not to be designated by a particular name; it takes all its importance from the rights depending on that decision. Our object thus far has been to prove that whatever those rights may be, so far as they depend on the term 'citizen' employed in the guaranty, they are, by the guaranty, secured to free persons of color as being citizens. As subordinate to that proof, we have had occasion, in general terms, and by reference to our fundamental laws, to point out those rights. We propose now to show, by facts and arguments independent of the preceding, that the intention and effect of the article in question, as gathered from its history, its language, and judicial decisions upon it, is to protect and secure those very rights; and in whatever persons, not being aliens to the United States, they may be vested as rights.

A well established rule of law and

* 4 Devereux, 340.

Laws of Virginia, Richmond, 1792.

of common sense for interpreting the provisions of a new enact. ment, directs our inquiries to the old law, the evil, and the remedy.

The guaranty, the history and proper construction of which we are now to examine, first became the law of the land under the Articles of Confederation. The articles containing it, in its original and in its present form, we have elsewhere quoted at length. It has always been conced. ed that with a single exception al ready explained, the two were iden tical in purpose and in general effect; both being intended to guard against certain evils which had been experi enced before the states confederated. What was, then, the evil in the former condition of things which this covenant was intended to remedy, and what was the remedy which it furnished?

The states before confederating, were separate and complete political bodies, each independent of the oth ers and foreign to them. The members of one were not in that capacity members of any other, and had no legal right, any more than other aliens, to put themselves in that relation. Each state assumed and exercised the right to declare, by laws of its own, framed with exclusive reference to its own interests, what rights strangers should enjoy within its jurisdiction, and to what disabilities they should be subject. The sense of mutual dependence, and the strong pressure of external danger, proved inadequate to prevent, in many instances, the unjust and arbitrary exercise of these sove reign powers. Obeying the dictates of a short-sighted and selfish policy, the states shaped their legislation so as to secure as far as possible, each for itself and its citizens, a monopoly in the benefits of their mutual intercourse and dealings. The property of non-residents was burdened with peculiar taxes. The transit trade through the importing states was harassed by vexatious discrimina

tions. The right of suit in courts was extended to inhabitants of other states only on unequal and onerous conditions; and the collection of debts, by this and other means, made to them difficult and expensive. These evils were aggravated by counter-legislation, working injury to the rights of individuals, and sowing dissension and hostility among neigh. boring states.

Such were the particular grievances; but they all had their origin in this-that each state might, and to a greater or less extent did, subject the inhabitants of the others to the civil disabilities of alienage. That is, in short, the old law was that each state had the power to treat the people of the others as aliens; the evil was that they did so treat them; and the remedy was a mutual surrender of that power and practice. The obvious operation of such a surrender, as between the states, must have been precisely that of a general and mutual law for instant naturalization. It destroyed at once throughout the confederate states, the legal consequences of separate allegiance, as affecting individual rights. It stopped the operation of state laws based on the alienage of the persons upon whom they act ed. It vested in the persons in each state to whose benefit it enured an unconditional right to enter and reside in any other state; and when there, put them in the same situation as if they had been born there; bringing them within the protection, as well as the power of the state law. From this simple statement of the general nature of the evil and the general nature of the remedy, we derive, by obvious inference, a single but important proposition, the

This description would perhaps apply to the actual state of things after the Articles of Union were adopted more perfectly than to that before; especially after the close of the war. (See Madison Papers, pp. 711, 712, 898. Story on Const. $1684.) The defect then was not in the law itself, but in the means of enforcing it.

truth of which we believe to be beyond the reach of denial, question, or cavil. Whoever may have been the persons, in any given state, protected by the mutual convenants, the RIGHTS intended to be secured to such persons in other states, were neither more nor less than those rights to which as strangers they had, under the law of nature and the common law, only a qualified and contingent title, but to which, if born in the state, they would have had, under the same law, an ABSOLUTE and UNQUALIFIED title.

With this general description of the rights intended to be guaran tied, we proceed to examine the language in which the guaranty was embodied, with the view to deter mine, more specifically, the nature and extent of those rights. The effect of that fundamental compact was not left to be gathered from words of doubtful import. Its language was chosen apparently for the very reason that it set forth, in apt and legal phrase, sanctioned by previous usage and understood by the contracting parties, exactly such a covenant as we have shown they must have intended to make. We wish to call especial attention to the fact, no less interesting as matter of history than important to our present purpose, that the operative words of the original guaranty, were, mutatis mutandis, the very words which in our colonial charters secured to our ancestors the essential rights of English freemen. In the former, were guarantied to the free inhabitants of each state, "all privileges and immunities of free citizens in the several states:" in the latter, were guarantied to the king's subjects in the colonies, "all liberties and immunities of free and natural subjects in any of his dominions.' This language had become

* See Charters of Conn., Mass., R. I., &c. The word 'liberties' here used is the same as libertates' in Magna Charta. (Ante, page 415, note.) The true mean