§ 369. In considering that extent of the judicial power of the United States which is described by the clauses of the Constitution above cited, it is farther necessary to ascertain the meaning of the terms a State and a citizen of a State, as therein employed. In doing this, it is proper, in following the method herein adopted in such inquiries, first to refer to existing judicial interpretation of those terms, so far as it is to be found, and afterwards to compare such interpretation with general principles applied to the history of jurisprudence in this country.

The words whose signification, in this connection, is to be ascertained are State and citizen. With regard to the first, it has been held that it means (here at least, if not in every place where it is used in the Constitution) one of those corporate bodies or organizations which are known in the political system of the United States, as the "several States," and which, in the language of some jurists or publicists, are " members of the American Confederacy;" or, negatively, that "a Territory" of the United States, or such a political district as the District of Columbia is not a State within the meaning of this clause, and that, therefore, a citizen of such a Territory or district is not a citizen of a State under this clause.2

§ 370. This question of the meaning of the term a State arises in determining the rights and obligations of private persons, (incident to personal condition or status,) as they depend upon, or are created, or are enforced, by other clauses in the

1 2 Peters' R. 312; R. M. Charlton's Geo. R., 374.

2 Hepburn v. Elzey, 2 Cranch, 452; question of the jurisdiction of U. S. Circuit Courts under act of Congress, and whether a citizen of the District of Columbia is a citizen of a State in view of those acts. But the Court, Marshall, C. J., argues the question as under the provision in the Constitution, concluding: :-"It is true that as citizens of the United States and of that particular district which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens and to the citizens of every State in the Union, should be closed upon them. But this is a subject for legislative not for judicial consideration." Of course, since the Court decided on the meaning of the Constitution, it was not intended to say that this could be changed by legislative action of Congress, unless by its proposing an amendment of the Constitution. The same doctrine in reference to a citizen of one of the Territories of the United States was asserted by the same court in Corporation of New Orleans v. Winter, 1 Wheaton, 91. And by State courts, Sturges v. Davis, N. Y. Supreme Court, Feb. term, 1826, mentioned in 1 Paine and Duer's Pract., p. 12, but not reported; Hoggin v. Squiers, 2 Bibb, (Ky.,) 334; Seton v. Hanham, R. M. Charlton's Geo. R., 374, where the meaning of the word State in Art. IV., sec. 1, was considered.

Constitution. And there is much that has the authority of juridical practice, if not of judicial opinion, to show that the term State has not, in the various instances in which it is used in the Constitution, been always taken in this restricted sense, while, at the same time, it would be difficult to show any reason (other than views of political expediency remaining unexpressed in the breast of the expounders) why the term should have been interpreted with more latitude in one instance than in others.

Since the meaning of the term a State, in those clauses which more directly affect personal condition, will require consideration in a later portion of this treatise, the further examination of the question will not be pursued here; except in observing, that it will hereinafter be urged that the interpretation of the term may depend upon the proper construction of the clauses or provisions in which it occurs.' And that, under the construction of this provision, there is much reason for maintaining, (as has, in fact, by juridical practice, been maintained in reference to other clauses wherein the term occurs,) that the word State should not here be restricted to the organized "several States" alone, but that it should be taken to include those geographical jurisdictions, in and for which, under the government of Congress, is severally exercised that portion of the powers of sovereignty which in and for a "several State" are exercised by the people of the State or by the State Government.2

§ 371. With regard to the term citizen, in this part of the Constitution, it has been held in the recent case of Dred Scott v. Sandford, (December, 1856,) 19 Howard, pp. 403, 427, that the question, "Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by

'It being supposed that construction and interpretation are each employed, of necessity, wherever the meaning of any written instrument is to be ascertained. The explanation of the distinction in the use of these terms must likewise be reserved for another place.

that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution ?" must be answered in the nega tive. In other words, assuming that there are no persons of African or Ethiopian race or descent, now domiciled in the United States, except such as derive their descent, in whole or in part, from African negroes imported as slaves, it has been held in the above-named case, that the distinction of race, which has been set forth in some of the former chapters, is to be considered in determining the meaning of the term citizen in this clause of the Constitution; and that, affirmatively, only whites, or persons of Caucasian race, can be such citizens; or, negatively, that no person of African or Ethiopian race can be such a citizen.

§ 372. It will not be attempted here to examine the correctness of the proposition above stated: partly for a reason similar to that above given for deferring inquiry into the meaning of the term State, viz.: that the meaning of the word citizen must hereafter be considered in the exposition of rights and obligations of persons arising out of other clauses in the Constitution, more directly affecting personal condition, in which also the term is found.

It may, however, be observed in reference to the above named decision that the Court, or the several Justices sustaining that answer to the question propounded by Chief Justice Taney in the Opinion of the Court, seem to have assumed, as preliminary to their inquiry, that in this clause the term citizen is used in one of its meanings, (a sense which is not its only one in vernacular use,) that is, in the sense of a person enjoying a certain condition or status, manifested in the exercise of certain civil and political privileges or immunities.'

Now, as has been herein above suggested in reference to the term State, it is here supposed in reference to the term citizen, that the interpretation of the term may depend upon the con

See Opinion of the Court, pp. 403-425; Mr. Justice Daniel's Opinion, pp. 475482, particularly p. 481, where the applicability of the other meaning of the term is noticed as having been urged, but at the same time it is summarily discarded.

struction of the clause or provision in which it occurs, and that it is not necessarily concluded that the word has the same signification in every connection in which it has been employed in the Constitution; that, here the question is not so much one of a right or privilege in certain legal persons, to sue and be sued in certain courts, as it is a question of public municipal law, of the distribution of jurisdiction or juridical power; that this clause must be construed with reference to the international relation of the States or the several jurisdictions (severally under that sovereignty which is said to be "reserved" to the States) into which the entire dominion known as the United States of North America is divided, and with reference to the application of a law having authority as national-municipal law, but operating as international private law, (quasi-international law ;)' that the object of the provision (by construction) being to give jurisdiction for the application of that law, persons are here called citizens in reference to that element in the definition of citizen which ordinarily determines questions of personal jurisdiction in the application of international private law, and that this element has no reference to the civil or political liberty, (privileges and immunities of legal persons,) but simply to their quality of being legal persons, domiciled in this or that forum of jurisdiction.2

The Opinion of the Court does not go to the extent of saying, that no person of African race, descended from persons who had been introduced into the country as slaves, could be a citizen in this sense. Though there are passages in that Opinion and in those of some of the associate Justices which may appear to lead to that among other unexpressed deductions.

In Mr. Justice McLean's brief examination of this part of

As will be further explained in the next chapter.

2 Mr. Justice Curtis, in maintaining views of the personal extent of the term different from that contained in the Opinion of the Court, seems likewise to have assumed that the word citizen refers to a condition of civil and political privilege, and that it must be supposed to have the same meaning wherever used in the Constitution.

Whatever may have been the intention, the reasoning in the Opinion of the Court and in those of the Justices who most fully considered this question, seems to have more direct bearing on the use of the word in the Fourth Article of the Constitution. It will therefore be more particularly noted herein, when considering the effect of the provisions in that Article upon conditions of freedom and its opposites.

the case, his conclusion on this point seems to be expressed in the following, on p. 531 of the Report:-"It has never been held necessary, to constitute a citizen within the act that he should have the qualifications of an elector. Females and minors may sue in the Federal Courts, and so may any individual who has a permanent domicil in the State under whose laws his rights are protected, and to which he owes allegiance. Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him."

§ 373. The extent of the judicial power of the national Government is thus to be ascertained from the Constitution of the United States. That of the judicial power in each of the States is determined not only by its own several Constitution but by the Constitution of the United States, which, in defining the powers of such several State, may be said to limit the State Governments in each function: restraining their power over the relations of private persons, not only by its express prohibitions, but also by its requisition or guarantee of a republican Government. The extent of this guarantee can only be determined by general principles of public law; which, however, from the historical character of public law in every country, can, in this, be determined only from the history of jurisprudence in the British empire and in the United States.

According to a newspaper report, copied from the Chicago Press of July 15, 1857, in a suit in the U. S. Circuit Court, by a colored man of Illinois against a citizen of Wisconsin, the defendant pleaded to the jurisdiction of the Court and averred that the plaintiff was a person of color, to wit, a negro; but the demurrer was sustained by Judge McLean, saying, "The Constitution and the act of Congress of 1789 give jurisdiction to the federal courts between citizens of different States. In the sense used, the term citizen may well be held to mean free man who has a permanent domicil in a State, being subject to its laws in acquiring and holding property, in the payment of taxes and in the distribution of his estate among his creditors or to his heirs at his decease. Such a man is a citizen, so as to enable him to sue, as I think, in the federal courts. The objection has never been made, so far as I know or believe, to his right to sue in this court, that he is not entitled to vote."