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.

JUDICIAL FUNCTION OF THE STATES.

437

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.

1

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."

CHAPTER XIII.

CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH REFERENCE TO THE PUBLIC LAW OF THE UNITED STATES.-THE SUBJECT CONTINUED.-OF THE DISTRIBUTION OR CLASSIFICATION OF PRIVATE LAW, AFFECTING THOSE CONDITIONS, WHICH MAY BE MADE UNDER A REFERENCE TO PUBLIC LAW.

§ 374. It is farther necessary, in considering the connection. of freedom and its opposites with the public law of the Union, according to the distinction in that respect which was made in the last preceding chapter,' to ascertain the extent or jurisdiction of all civil or political powers within the dominion of the United States. The extent or jurisdiction of sovereign or political power, or, more properly speaking, of the law proceeding from that power, is either territorial (over certain territory and persons and things therein) or personal, (over persons individually, without regard to the territory in which they may be found.)

§ 375. The jurisdiction of the powers of the national Government is various; being either, for certain purposes, over all the territorial (geographical) dominion of the United States, whether States or Territories, and over all persons within that dominion, whether also subject to a State dominion, or to the powers held by a State, or not; or, for the same purposes and others, the nature of each of which will be hereinafter considered, over the Territories, the District of Columbia, lands which, though belonging to the United States, are not included geographically

1 Ante, § 359.

NATIONAL AND LOCAL JURISDICTION.

439

within the limits of a State dominion, or, being within one, are excepted from its jurisdiction, and over all persons and things therein exclusively. Congress has certain powers of legislation, some granted for certain purposes in absolute terms, as specific grants of power, and without mention of limits, which legislation has a national extent or jurisdiction without distinction of persons or places; and some granted for certain districts only, having only a local jurisdiction. The judgment of the national judiciary is entitled to recognition and is to be enforced wherever the laws which it asserts have territorial or personal jurisdiction. The executive power has equal recognition, because its action accompanies the jurisdiction of the laws, the execution of which is intrusted to it.

§ 376. The limits of the several States within which, under the Constitution, they or the people of each are to possess their separate share of sovereign powers, have been determined as to some by the recognition of their ancient colonial boundaries, and by agreements with the other States, or with the United States or the national Government; and as to others by the legislation of Congress in their creation under the Constitution.' The territory not known under the geographical division of the several States (not being occupied by a people known separately in the public law of the country as possessing that separate share of sovereign powers which, by that law, is cognizable only in the people of a State of the United States as a definite political person) must necessarily be under the exclusive sovereignty of the United States, or the united people of all the States, in their integral and national possession of sovereign power. For the several States, which before possessed lands lying beyond their present State limits, have conveyed those lands with their right of dominion or jurisdiction to the United States, and under the Constitution of the United States a single State cannot perform those acts of national sovereignty by which territory may be acquired under international law. The nature of that

1 Art IV. sect. 3. "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress."

power which may be exercised over this territory by the United States, through their constituted instruments, must be determined by the natural or necessary law of nations,' as applied in public law to the action or mode of existence of sovereign states; or, by the reception, interpretation, or application of that law by the United States or by the national Government as their instrument; the latter being controlled in that respect by the Constitution, as the only legislative exposition of the mode in which any of the sovereign powers of the United States (i. e., of the people of the United States) are to be exercised.2

§ 377. From the existence of this division of sovereign national powers to create law between the Government of the United States and the several States, which has been set forth in the last preceding chapter, and from the difference in the territorial jurisdiction of the laws thus originating, which has been above considered, a distinction may be made in the municipal laws of the United States, as being either national or local.

The national municipal law of the United States thus distinguished is that which originates in the national sovereignty of the United States, (people of the United States,) and which has national extent and jurisdiction over all persons and things within the domain of the United States, whether States, or territory not organized under a State sovereignty.

1 Ante, § 49.

The doctrine of the Supr. Court, in Dred Scott's case, 19 How. pp. 447, 449, 451, Opinion of Court, and cap. 3, is that whether the power of Congress, or of the national Government, over the Territories is derived from the "territory-or-other-property" clause, (Art. IV, sec. 3,) or is a necessary result of the existence of that Government and of its relation to the States and the people of the U. S.-Congress or that Government is not sovereign in a Territory as the people of a State are sovereign within the limits of that State, but that it is, like a State Government, restricted by the law from which it derives its existence, and that there are clauses in the Const. of the U. S., which, in and for territory, have an effect similar to that of a Bill of Rights in a State Constitution.

66

Mr. Benton, in his Examination of this case, holds that the Constitution of the U. S. does not have any such effect as private law in the Territories; that no rights of private persons can be exercised under it without an act of Congress." See his introductory note. The general doctrine of the Court may be admitted, and then the question is, whether the right of a master in respect to a slave (domiciled, before, in a slave-holding State) is a right protected by the Constitution, thus operating as a Bill of Rights and as private law. This is a distinct question, and on this Mr. Benton's Examination has but little bearing. His whole argument being that Congress has absolute unrestricted power in the Territories.