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in that relation. The term employed to point out the persons beneficially interested in the guaranty, can not possibly be taken as a word of mere personal description. It indicates not their color, or position in society, but simply their political condition; points out legal attributes, not physical characteristics; is a word of definition, not of specific designation. Nor is there any sort of reason, at least when we look at the clause in its highest character as a law and not merely a covenant, —why it should be tried by any other standard than that of existing law. As a permanent law of the nation, it declares at all times and in words of present time: The citizens of each state—those who are now citizens,—shall be entitled to all privileges of citizens in every State.
In reply to these suggestions, it might be said: that the guaranty of reciprocal privileges to the citizens of different states was given in view of citizenship as it was at the time, and therefore, though a given state may now if she chooses elevate the colored race within her borders to the condition of citizens, yet that she can not, against the original and continuing intent of the other states, introduce new parties to the benefit of the mutual stipulations, and can not therefore make free persons of color citizens within the meaning of the Constitution.
The objection we have here stated, we regard as presenting the strongest point which can be made on the other side of the question; stronger, we think we may venture to say, than any we have seen distinctly presented in the arguments upon that side that have come to our notice. Of course, if it can be made good, the inference from the proposition, which we have been last considering, must fail. We shall endeavor therefore to meet it fairly and effectually, though with neces. sary brevity.
Of course, if the views we have taken be correct, the mere fact of non-citizenship, supposing it proved, will not of itself support the objection. The exclusion would cease with the reason of it. But the argument assumes a distinct understanding, present in the minds of all the contracting parties, that the free blacks as a race were not, and were not to be, included in the operation of the guaranty; an understanding, forming an essential part of the whole transaction, and in view of which the parties acted. Such an intention, if it could be clearly and positively proved as having governed the "original compact, might be admitted as adequate to control its language and ingraft upon the mutual guaranty a permanent exception in the case of free persons of color. But what amount of extrinsic evidence can establish such an intention, in view of the plain fact, that it was not expressed ? This might have been done, very easily and naturally, by simply saying ‘the white citizens' instead of ‘the citizens' of each state ; and no reason can be assigned why, if this was distinctly intended, it should not have been thus distinctly said. The further fact, that the power to naturalize foreigners was intrusted, without limitation, to Congress, so that that body might at any time introduce aliens of African descent to all the privileges of citizens, is still more decisive. That that power has lain dormant, as far as colored persons are concerned, is true, but the fact is immaterial; that the states should have distinctly purposed permanently to exclude all colored persons from those privileges, and at the same time put it absolutely into the power of a majority in Congress at any time to defeat that purpose, is utterly impossible. And, on the other hand, the only evidence thatever has been or can be offered to show the existence of such an intention, is the mere presumption that per
sons so degraded would not have been placed on the footing of citizens. What ground there is for that presumption, in view of the fact, that they were placed on such a footing, under the Articles of Confederation, our readers can judge. Finally, it would be enough to say, that this presumption, as well as the whole argument, assumes as a clearly proved and recognized fact, that there was no such thing as negro citizenship at the time the Constitution was adopted. Now, without resorting to the general argument of our former article, the single fact that under the law of Virginia at that time in force, free negroes, in common with all other free persons born in the state, were declared to be citizens of the state, completely destroys this assumption, the argument based upon it, and the conclusion to which they both lead. And it will not be denied, that in North Carolina, where the colored free man had the right to vote, in the more northern states in which the work of abolition had been commenced, and especially in Massachusetts, whose constitutional law upon the subject had already been established on its present basis, the free negro was as clearly a citizen as in Virginia, although those states had not followed her example in expressly affirming with respect to him the common law doctrine of citizenship by birth. Considering it established, that free persons of color in general are protected under the Constitution as citizens, or if not, that at least such persons in Massachusetts are as citizens of that state “entitled to all privileges and immunities of citizens in the several states,” we are now to consider the question, whether the laws of South Carolina violate in respect to them the constitutional guaranty. The material parts of the law, out of which the controversy has arisen, were quoted in our last num
ber at page 411. Recurring to the passage, it will be seen, that the enactment is, “that it shall not be lawful for any free negro or person of color to come into the state on board any vessel, &c.,” and that any such person so entering the state shall be liable in the first instance to imprisonment, and afterwards, upon re-entering or continuing in the state, to corporal punishment and to be sold as a slave. The imprisonment, it will be observed, though in the nature of a penalty for entrance contrary to the act, is not inflicted by ordinary process of law, as the sentence of a court after trial and conviction, but summarily by an executive officer, whenever the person is found on board any vessel within the state ; and in the subsequent proceedings the only fact required to be proved is that the person has been in the state before, and received warning to leave it. The question therefore, arising under the Constitution, is— has South Carolina a right to enforce this law upon the citizens of other states ? In prohibiting their entrance into that state, and in subjecting them to arbitrary imprisonment, to inflictions of bodily pain, and to absolute slavery for life, alledging against them no offense except the coming and being within the state, does she, or does she not, deny to them the privileges and immunities of citizens In other words, is the right of free entrance into any of the states of the Union, and of exemption from arbitrary violence therein, as a consequence of such entrance, among those privileges and immunities 2 It never has been doubted, it never can be doubted, that the right of entering any of the states of the Union as freely as the citizens of that state themselves may enter it, is the very first among the privileges of citizens. And if the guaranty is not violated by an absolute and unqualified denial of this right, then
it can not be violated by any act whatever. For if a state retains complete power to exclude, whenever she thinks it necessary or expedient, that is, at her own and sole discretion, the citizens or any class of the citizens, or any single citizen of another state, she certainly must have the power to enforce the exclusion by any means which she can command, whether of precaution or penalty, by walls, gates and forts, or by imprisonment, stripes, and enslavement, by the agency of sheriffs, or of soldiers and bayonets. The power to make any given act a crime, implies the power to make the forfeiture of rights the punishment of the crime. A cheap expedient therefore for withholding from any class of citizens any specific privilege, conceded to be included under the general grant, would be to make their entrance into the state a crime, and a forfeiture of the given privilege the punishment of the crime. The whole law then is plainly a nullity, unless it conveys to the citizens of each state a perfect right to enter and be in any other state ; or at least, as complete a right as the citizens of that state themselves can have. Obviously the right to enjoy any given privilege, or immunity in any state, would be merely nugatory, without the right to enter and be in the state for the purpose of such enjoyment. If a person is excluded from a state, he is necessarily and effectually excluded from all privileges and immunities in it. But furthermore, not only is the right of entrance one and the first of the privileges granted, as being necessary to the enjoyment of any of them, but it comes within the general description independently, by reason of its intrinsic nature. We have heretofore shown, that the general object of the guaranty was to protect essential rights, those primary rights, which belong to men as members of the state, and which
all free states recognize and hold themselves bound to protect; which the cardinal principles of the common law, adopted in our Constitutions and bills of rights, secure or ought to secure against all invasion, whether by the illegal violence of individuals or by acts of aggressive legislation. Now the effect of this guaranty was to take the citizen of any state out of the condition of alienage, in which as a stranger he would be with respect to other states, and to introduce him at once to the benefits of that common, declared and fundamental law, recognized in all the states as limiting and controlling their action with respect to their members. It makes him at once a member of any state in which he chooses, whether temporarily or permanently, to assume that character; and clothes him in advance with all the rights essentially belonging to that relation. Now the very first of the rights, which belong to man as a member of the state, is the right to live and be in the state. A man born in a state, placed by the act of his Maker under its power and protection, has the highest of all possible titles to existence within the state and under the shelter of its law. If he has not this right, he has no right whatever as against the state; just as he has absolutely no rights whatever as against a foreign state, so long as it chooses to withhold the right of coming within its limits. And a state can do no higher violence to the relation which the Author of nature has created between itself and its members in the very act of ordaining their and its existence, making it to live only in their life, than by arbitrarily severing that connection, and putting a citizen by a force as purely physical as that which an individual despot might use, beyond its limits and out of its protection. His right to live in the state is at least only inferior to his right to live. To expel or banish a citizen,who has committed no crime, has therefore always been regarded as an act of high-handed despotism: and that a citizen shall not be liable to banishment or exile, even as a punishment for crime, is an express provision of many of our bills of rights. Now it makes no difference as to the essential nature of the act as a violation of natural and civil rights, whether a citizen, who is within the state, is forcibly removed beyond its limits, and forbidden to cross them and come back, or one, who is accidentally without, is absolutely precluded from returning. An act of the Massachusetts legislature, declaring that Gov. Everett, returning to the state from abroad, should not be permitted to enter it, would be utterly null and void, and could not be enforced, so long as her Declaration of Rights stands as her fundamental law ; unless the judicial and executive powers, conspiring with the legislative, the whole power of the state should be directed to the forcible subversion of all his rights as a citizen and a man. And the fundamental law, which, administered by an independent judiciary in Massachusetts, would protect Mr. Everett, being adopted by the Federal Constitution in the capital provision which we are discussing, being made the fundamental law of the land for the protection of every citizen in every state, being administered by the national tribunals, and supported by the whole power of the Union, would protect Governor Hammond and every other citizen of South Carolina against a similar enactment by the Massachusetts legislature, that he or they should not be permitted to enter that state. In other words, the right of citizens of South Carolina to enter the state of Massachusetts is under the Constitution as high and as sacred as that of the citizen of Massachusetts himself to enter it. It will be remembered, that under
the Articles of Confederation the guaranty of the right of ingress was one of the specific precautions under the general guaranty, which we are now discussing.” “The people of each state,” it is declared, “shall have free ingress and egress to and from any other state.” And it was well understood, that the right thus given was, as we have described it, the very first among the privileges, and immunities intended to be secured to the citizens of each state in every other, and the one on which all the others depend. For, continuing our quotation, it is said—“ and shall enjoy therein all privileges, &c.” To secure and perpetuate mutual intercourse was, in fact, declared in the preamble to be one of the leading objects of the whole covenant. These provisions, though not transferred to the present Constitution, have not less, either of importance, significance, or force, now, than they had the day they were first adopted. Though dead they still speak. The specific guaranties were omitted, not because they were withdrawn, but because they were plainly included under the general guaranty. The preamble was omitted, not because of any change of purpose, but because that purpose was so well understood, that a statement of it was not needed. The original covenant between the states and the existing law over them, are, therefore, with a single exception heretofore pointed out,f identical in purpose and effect. Every restraint, imposed on the states under the Confederation, is still in force under the Constitution. This doctrine was decisively af. firmed by Judge Washington in the case of Corfield and Coryell, formerly quoted ; and in fact the right in question was put first, as
we have said it ought to be, in the enumeration of privileges and immunities secured by the constitutional guaranty. His language is: “The right of a citizen of one state to pass through, or to reside in, any other state, for purposes of trade, agriculture, professional pursuits, or otherwise ; to claim the benefit of the writ of habeas corpus: to institute and maintain actions of any kind in the courts of the state : to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by other citizens of the state ; may be maintained as some of the particular immunities or privileges, which are clearly embraced in the general description of privileges, deemed to be fundamental : to which may be added the elective franchise, as regulated and established by the laws and constitution of the state in which it is to be exercised.” The right of a citizen of one state to enter and continue in any other, is thus shown to be “one of the particular privileges clearly embraced in the general description.” The law therefore of South Carolina, so far as it prohibits such entrance to citizens of Massachusetts or any other state, denies to them one of the “privileges and immunities of citizens;” and all other provisions of the law designed to enforce that prohibition fall of course under the same condemnation. For it is not denied, that exemption from arrest, imprisonment, stripes and enslavement, is one of the immunities which any citizen may claim so long as he violates no law ; but the only enactment, the violation of which is in the present instance alledged as subjecting the free negro to those inflictions, is that which forbids his entrance into and continuance in the state : and this is void and no law, if the Constitution, the supreme law of the land, gives and guaranties to him the right of entrance.
Here, then, is a plain, direct, and positive conflict between a law of South Carolina and a provision in the Constitution of the United States. The one declares, as really as if those were its very words, the citizen of Massachusetts shall, the other that he shall not, have the right to enter and reside in South Carolina. The one positively withholds the identical privilege, which the other as positively guaranties. What is more, the conflict in the case of any given citizen, upon whom the state law is enforced, is not partial, but to the full extent of the operation, both of that law and of the constitutional guaranty. The language and proper effect of the latter is, You shall enjoy all privileges and immunities of citizenship in South Carolina: that of the former, You shall enjoy none of them.
This, it would seem, must be the end of the question ; and yet we have only reached the threshold of the discussion. Not that any part of our argument, or rather statement, is controverted: not that the conclusion is impeached on the ground of any logical defect in the connection of the parts: the objection touches neither subject, predicate nor copula, neither major nor minor, in the syllogisms into which our reasoning may be very easily thrown. But it is insisted on behalf of South Carolina, in the face of a demonstration that one of her laws is in positive irreconcilable conflict with a supreme law, that she has nevertheless a constitutional power to make and enforce that law. In justice to South Carolina we must say, that we do not understand her to make any such claim on her own behalf. She is willing her laws should be reconciled with the Constitution, if it can be, but she is not anrious for it. The power by virtue of which she claims “ the right to exclude from her territories any person whose presence she considers dangerous to her peace,” is ex