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familiar, as household words, to the men of the Revolution. Upon it had mainly turned, at least in the colonies which were under charters, the exciting discussions which preceded the separation from the mother country. As to its proper force and effect, there was no doubt then, and there can be none now. The “liberties and immunities of free and natural subjects, were those essential rights belonging, under the fundamental law of England, to all persons born in the realm and owing free and natural allegiance to the sovereign power therein. They were the rights, the recognized possession of which, as incident to their allegiance and free condition, distinguished the status of such subjects from that of the alien, from that of the subject by conquest, and while villainage lasted, from that of the serf. In other words,-since in England there were no subjects by conquest, and since every subject by birth, villainage being obsolete and abolished, was a liber homo within the meaning of Magna Charta, the rights conveyed by the language above quoted were precisely ‘those rights to which strangers to the British state had only a qualified and contingent title, but to which persons born in the realm had, by the cardinal doctrines of the common law, an absolute and unqualified title.” That is to say,+of the two guaranties, the former was designed to have, as we have seen, precisely
ing of the term in that and similar instruments, is better expressed, according to more modern usage, by the word “privileges,' which has therefore generally taken its place. For example, in the charter of Connecticut, as published in connection with its laws before and about the time of the Revolution, the side note against the provision we have quoted, is, “guaranties the pricileges of natural born subjects.” We might well insist therefore on the completeness of the verbal coincidence, in the two forms of guaranty, if it were at all necessary to our purpose. It is plain enough, we think, as it is, that the one was borrowed from the other.
such an effect as it was well understood the latter did have ; in pursuance of which design, the language of the latter, with the single change of “natural subject' into ‘citizen,” was adopted as the language of the former. Is it possible to add to the proof that “the privileges and immunities of free citizens’ were understood to be identical with the recognized and essential rights of free subjects and free men in England These facts, therefore, while they give to our former argument intended to fix the meaning of the term citizen, as used here and elsewhere in the law, the force of demonstration, clearly refer us again, for the further definition of these privileges and immunities, to that important part of our common and constitutional law which declares the rights of individuals considered as members of the state. These rights have been classified on a previous page, as ‘the rights of conscience, of person, and of property;’ those ‘essential rights, for the protection of which in the citizen the STATE exists, and in the exercise of which he manifests His individual existence; which the state is therefore bound to protect, ‘by its force, its laws, and its tribunals;” or in other words, by the exertion of all its powers, legislative, judicial, and executive. In the lan: guage of Sir William Blackstone." “they may be reduced to three primary articles: the right of per: sonal security, the right of personal liberty, and the right of private property; the preservation of which may be justly said to include the preservation of our civil immunities in their largest and most extensive sense.” In the language of Judge Mills, already quoted,t they consist in “the liberty of person and o conscience, the right of acquiring and possessing property, of marriage and the social relations, of suit and
defense in court, and security in —-T
* 1 Comm. 129. Ante, page 440.
person, estate and reputation.” By Judge Washington, of the U. S. Court, in a case hereafter to be cited,
they are “comprehended under the
following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.” Such, therefore, are ‘the privileges and immunities of citizens;’ and we proceed now to notice, very briefly, the language of the two following clauses in the original article.” Those clauses guarded specially important personal rights and privileges, and rights of property; by expressly prohibiting any restrictions by the states upon the enjoyment of those rights not equally imposed upon their own inhabitants. They were omitted when the article was transferred to the Constitution, simply because they were plainly included within the general guaranty.f. It has never been doubted, therefore, that the restraints they imposed on the states are as fully in force now as they were under the Confederation. They are important to our present purpose in two particulars: first, as exemplifying the general nature of the rights intended to be protected, and so fortifying the construction we have given to the controlling clause ; and second, as marking, in very emphatic language, the evils felt or feared, before the states confederated, from the absence of such restraints upon them as this article imposed, and so confirming our account of its general object and of its intended operation. The states, therefore, intended to secure “absolute and unqualified’ protection for “civil immunities, in their largest and most extensive sense.” On the other hand, it was
* Ante, page 424. Federalist, No. 40.
plainly not within the scope of their intention to secure, in the same absolute manner, the merely political rights of voting and holding office. If South Carolina should forbid citizens of other states to acquire a title to land within her limits till after ten years actual residence therein, her law to that effect would be clearly unconstitutional; but she may and does withhold from them, during the whole of that term of residence, the privilege of holding the office of governor, and her right to do so can not be questioned. In like manner, a law of any state confining the right to commence actions in its courts to such persons as had been residents in the state not less than three months, would clearly deny to persons thereby excluded essential privileges of citizenship; yet there is no state in the Union which does not limit, at the very least to that extent, the right to vote at its elections. Laws imposing such restraints in respect to the rights of suffrage and eligibility, though in force in all the states at the time they confederated, formed no part of the evils which the covenant in question was designed to remedy, and were no ways affected by its adoption. They were based, not “on the alienage of the persons upon whom they acted,’ but on the undoubted power of the state over all persons within its limits, whether native or foreign, to discriminate between them, by such tests as might be adapted to the purpose, in respect to their fitness to exercise an important trust. From that day to this they have continued to have their full effect, under the complete control of the individual states, to enlarge or restrain their operation at their sole discretion. A person from any one state entering any other must take these laws as he finds them, and will be entitled or not to vote and hold office according as he is or is not within the general description by which they designate the persons to whom the enjoyment of political rights shall be limited. To say more, is to say that he is in better condition than if he had been born in the state. In one sense only can he be said to receive absolute and unqualified protection in the enjoyment of such rights. If they are vested in him by the general laws of the state, he can not, any more than a native born citizen, be defeated in their exercise by any other authority, or deprived of them by arbitrary or special enactments. Such then was the intended and the actual effect of the constitutional guaranty, as we gather it from its history and its language; to PROTECT Essex.TIAL RIGHTs; a high and important purpose which takes no cognizance of accidental distinctions between the persons possessing such rights, and admits no restrictions which can not be positively proved to have been expressly intended and clearly declared. It is not, however, to be concealed that this exposition, as well as the conclusion which rests upon it, must inevitably fail, if the construction put upon the article by the Tennessee Court" is to stand as law. That remarkable decision made no appeal to history, or to precedent decisions by courts of equal dignity in other states, and by tribunals of high authority under the Federal Constitution. It professed to appeal merely to the internal evidence furnished by the language of the article itself. Yet in the very act of making that appeal, it was found necessary, in order to justify a state law depriving an unfortunate class of persons of essential rights, to call in the aid of other words no where to be found in that article. The Constitution declares that “the citizens of each state shall be entitled” to certain privileges in every other; the court, as we have seen, found it necessary to say that only “ the most favored class of citizens”
were so entitled. The Constitution guaranties “the privileges and immunities of citizens ;” the court interpreted that language as if it were. “the privileges and immunities of the most favored class of citizens.” We may well ask, therefore, upon what authority it assumed thus to “add to the words written in the book of the prophecy " The sources of evidence to which the court did not appeal, and which should reveal the necessity, if any existed, for such an addition, we have examined fully, and as we think, fairly ; and pursuing the method we have proposed, we proceed now to cite two important decisions, sufficient, even without the strong proof already adduced, to establish the construction we have given by the mere weight of judicial authority. The first case arose in Maryland, within a few years after the Constitution was adopted ; a fact which gives it a peculiar value in settling the meaning of both parts of the contested article. Through the whole case, it was conceded that the term “citizen' in that article had as broad a meaning and application as in any other part of the Constitution; and that the privileges and immunities of citizens consisted in “protection to property and person in the same manner in which citizens of the state are protected.” The court said,” “It is agreed that this does not mean the right of holding office, the right of election or of being elected.”—“It means that the citizens of all the states shall have the advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state in the same manner as the property of citizens of the state.”— “It secures and protects personal rights.” On appeal to the highest court in the state, it was further
* Ante, page 423.
* Campbell vs. Morris, 3 Harris and McHenry, 553.
said:” “The object of the Convention in introducing this clause was to invest the citizens of the different states with the general rights of citizens, so that they should be, not foreigners but citizens.” And also, and very emphatically—“The inquiry as to the effect of a law of any state”—to determine whether it violates the guaranty of the Constitution or not, “will be, whether it infringes any civil right, which a man as a member of civil society must enjoy.” In the other case to which we alluded,t one of the most distinguished judges of the U. S. Supreme Court, Judge Washington, uses the following language: “We feel no hesitation in confining these expressions to such privileges and immunities as are in their nature fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states composing this Union. They may be comprehended under the following general heads,” &c.; The judgment in this case, proceeding from the highest tribunal which has yet pronounced upon the meaning of the language in question, till overruled by a superior authority, must be considered as decisive. We base upon it, and upon the facts before adduced, our protest against the attempt to restrict the protection any more than the possession of such rights to any favored class of citizens. We hold the proof to be complete, that those primary, essential rights, in respect to which the most venerable principles of English law, our own Declaration of Independence, and every state constitution in the land, declare the absolute equality of all men, are the very
* Campbell vs. Morris, 3 Harris and McHenry, 565.
f §§ vs. Coryell, 4 Wash. Cir. C. Rep. 471.
# See the passage, ante, p. 431.
Vol. III. 55
rights which each state, by her solemn covenant with her sister states, was seeking to protect. To protect IN whom, we ask, if not in all the persons whose equal right to such protection at her hands was so explicitly acknowledged 2 If we are to believe that there were any persons, like that unfortunate class whose rights we would maintain, within the natural scope and reason of so high a purpose, but whom, nevertheless, that purpose did not contemplate, we ask for the express words, in the body of the covenant itself, which directly exclude them from its benefits ; in the absence of such words, we ask for extrinsic evidence, plain and positive, adequate to prove in the contracting parties the common intention to exclude, and at the same time to account for the fact that that common intention was no where manifested in words. Till that evidence is produced, we continue to insist on an inference, founded in reason and justice, and fortified in advance by an array of undeniable facts, showing that the class of persons in question were directly within the purview of the guaranty when it was originally given. There is but one possible way of escaping from the conclusions to which we have been brought. Every attempt to establish a definition of citizenship different from that which we have given, must inevitably fail. Every effort to derive any different conclusion from the history and language of the article itself, must prove equally unavailing. Both branches of our argument converge upon this single result; to compel those who would exclude the free blacks from ‘the privileges of citizens,’ to deny that that class of persons have any rights which our states hold themselves bound to recognize and protect. Reluctance to state in plain words so odious a proposition, has led to the various attempts which we have noticed to reconcile that purpose of exclusion with some sort of a meaning of the term citizen, with some sort of construction of the words ‘privileges and immunities of citizens;' but every speculation of the kind, and every possible objection to any part of our reasoning or the application of it, falls back upon and resolves itself into a mere, downright, naked negative. “All this is very true of while persons, but with regard to blacks it does not hold. They are an inferior, degraded race, and it can not be that they are citizens.” This prevalent habitual prejudice, for it is nothing more, ensures a welcome reception for arguments in themselves no better than absurdities, and prevents the access to the mind of truths which otherwise no same man would ever have dreamed of calling in question. Upon such an arbitrary, obstinate negation, di
rect argument can make but little.
impression ; but if we are not mistaken, it is pregnant with an affirmation, which needs only to be disclosed to be abhorred. If the free negro is not a citizen, what is he 2 If he can not claim protection as an absolute and unqualisied right at the hands of the state which holds him in allegiance and subjection, what are his rights, how are they defined and how secured 2 We may gather an answer to these grave questions from the language of the court and counsel in the Tennessee case. It was said, arguendo, “Negroes are mere sojourners in the land, inmates, allowed usually by tacit consent, sometimes by special enactment, certain specific rights; but their status and that of the citizen are not the same.” And by the court; “An emancipated or otherwise free black is not a freeman in the sense of Magna Charta or of our Constitution.”—That is to say, if this language really speaks the law of Tennessee,” a constitutional enactment
declaring that “no freeman shall be imprisoned, disseized of his liberties or privileges, outlawed, or in any manner deprived of his life, liberty or property,” does not protect the freeman who happens to be black from any one or all of these acts of tyranny, proceeding from the legislative power. The judges were perfectly correct in deducing from their decision, that the free negro is not a citizen, these abominable consequences. They were perfectly correct in supposing that they could not declare him no citizen, without at the same time declaring him to be out of the scope of a fundamental law protecting essential rights. No other language can describe the condition of a person, born in a state but disowned by it as a member. It is a condition in which he is entitled to no rights whatever, and is exposed without remedy or redress to all possible wrongs. For he can not be said to be entitled to rights which he holds merely at sufferance. Whatever they may be, if his title deed is nothing better than ‘tacit consent’ or ‘special enactment,” they may be swept away at any moment by an open denial or by an equally special and arbitrary act of repeal. It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state. For the state and the citizen spring at once and together from the ordi
* Judge Catron, now of the U.S. supreme Court, speaking of the importance of the
zation of the foreign subject.
control which that state exerts through its courts over emancipation by deed, uses the following language. “The right acquired by the slave is an impersect right until the State, the community of which such person is to become a member, assents to the contract.—It is adopting into the body politic a new member.—It is an act of sovereignty, just as much as the naturaliThe highest act of sovereignty a government can erform, is to adopt a new member with all the privileges of citizenship.” 6 Yerer, 126. An obiter dictum, but significant. his was said in 1834.