6.

privileges of a citizen in any other State. Id. Nor have the States surrendered the power and privilege of conferring the rights and privileges of citizens, by adopting the Constitution of the United States. Each State may still confer them upon an alien, or Can a State any one it thinks proper, or upon any class or description of make citipersons; yet he would not be a citizen in the sense in which the zens of the word is used in the Constitution of the United States, nor entitled States? to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. Id. The State cannot make a man a member of the community of the United States by making him a member of its own. Id. 406.

United

"I fully concur in the statement that the description, citizen of the 19, 30, 35, 63 United States, used in the Constitution, has the same meaning that 69, 170. it has in the several acts of Congress passed under the authority

of the Constitution." (William Wirt, Attorney-General, 1 Op. 7th

Nov. 1821, vol. 1, p. 506.) Bates on Citizenship, pp. 17, 18.

But it means in them all the simple expression of the political status of the person in connection with the nation--that he is a member of the body politic. Id. 18.

93.

It is said in the opinion that "the allegiance which the free man Was a free of color owes to the State of Virginia, is no evidence of citizenship, negro a citizen of for he owes it not in consequence of an oath of allegiance." (1 Op. Virginia? 506, Wirt.) "This proposition surprises me; perhaps I do not understand it. The oath of allegiance is not the cause but the consequence of citizenship. Upon the whole I am of the opinion that free persons of color in Virginia are not citizens of the United States, within the intent and meaning of the acts regulating the coasting and foreign trade." (1 Op. 510, Wirt.) Bates on Citizenship, 19. As an authority this opinion is rebutted by the opinion of Attorney-General Legaré, of 15th March, 1843. (4 Op. 147.) Bates, Id. He held that a colored man was a citizen of the United States, entitled to a pre-emption. Id.

66

entitled

"If this be so (that is, if they be negroes), they are not citizens Were free of the United States," entitled to passports under the act of 18th negroes in August, 1856, which restricts the right to citizens. (William L. any State Marcy, Sec'y of State, 4th Nov. 1856.) Bates on Citizenship, 20. to all the But see the certificate offered, which is equivalent to a passport. privileges? Id. The citizens here spoken of are those who are entitled to all the privileges and immunities of citizens." But free negroes, by whatever appellation we call them, were never in any of the States entitled to all the privileges and immunities of citizens, and consequently were not intended to be included when this word was used in the Constitution. (The State of Tennessee v. Ambrose, 1 Meigs, 331.) Bates on Citizenship, 21.

The meaning of the language is that no privilege by, or immunity Construe the allowed to the most favored class of citizens in said State shall be language? withheld from a citizen of any other State. (Tennessee v. Ambrose, 1 Meigs, 331.) Bates on Citizenship. Either a free negro is not a citizen in the sense of the Constitution, or, if a citizen, he is entitled to all the privileges and immunities of the most favored class of citizens. But this latter consequence will be contended for by no one. It must then follow that they are not

How does

citizens. (Tennessee v. Ambrose. 1 Meigs, 331.) Bates on Citithe Consti- zenship. But the Constitution speaks of citizens only, without any tution speak of citizens? reference to their rank, grade, or class, or to the number or magnitude of their rights and immunities-citizens simply, without an adjective to qualify their rights. Id.

221.

274.

What was

of the

Scott v. Sandford, 19 How. 393, reviewed. Id. 24. It is shown that it only determines that persons of African descent, whose ancestors were of pure African blood, who have been brought to this country and sold, are not citizens of Missouri in the sense in which that word is used in the Constitution. Bates on Citizenship.

Indeed the exclusive right of the State of Missouri to determine and regulate the status of persons within her territory was the only point in judgment in the Dred Scott case, and all beyoud this was obiter. (Ex parte Simmons, 4 Wash. C. C. R. 396; Groves v. Slaughter, 15 Pet. 508; Strader v. Graham, 10 How. 92.) Lemmon v. The People, 20 N. Y. (6 Smith), 624.

The intention of this clause was to confer on the citizens of each

the intention State all the privileges and immunities which the citizens of the guaranty? same would be entitled to under the like circumstances. (Story's Const. § 1806.) Smith v. Moody, 26 Ind. 301. Among which privileges and immunities is the right to become a citizen of any one of the several States, by becoming a resident thereof. Id.

Is Scott v. Sandford law?

6.

274.

18.

the several

A citizen of the United is a citizen of that State. v. Moody, 26 Ind. 301.

States residing in any State of the Union, (Gassies v. Ballou, 6 Peters, 761.) Smith

The thirteenth article of the Constitution of Indiana denies these rights to all persons of African descent. Id.

The case of Scott v. Sandford, 19 How. 417, 422, 423, quoted. Id. The opinions of Attorneys-General Bates and Legaré, ante, quoted. Id. 303.

The opinion in Scott v. Sandford, though never formally overruled, is now disregarded by every department of the government. Id. 304. Passports are granted to free men of color; Congress declares them to be citizens; the Supreme Court of the United States admits them to its bar. Id.

At the time of the adoption of the Constitution, all free nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens. (The State v. Manuel, 4 Dev. Bat. 20.) Smith v. Moody, 26 Indiana, 304.

Who were 222. "OF CITIZENS IN THE SEVERAL STATES."-This was in-meant by tended to secure to the citizens of every State, within every other, citizens of the privileges and immunities (whatever they might be) accorded in States? each to its own citizens, and no others. Lemmon v. The People, 144, 221, 206. 20 N. Y. (6 Smith), 627. See Confederation, Art. IV. ante, p. 10. It did not mean that the citizens of Virginia, who were entitled to hold slaves there, could bring those slaves into New York and hold them as such, in accordance with the laws of Virginia. Lem

221,

mon v. People, 20 N. Y. (6 Smith), 627. Jackson v. Bulloch, 12 Conn. 38.

As a general principle, the slaves who were carried from slave to What was free States, with the permission of their masters, and permitted to the effect of reside there, obtained their freedom; and the owners could not slaves from carrying resume their control over them as slaves upon the return of such a slave to a slaves to such slave States. Harry v. Lyles, 4 H. & McHen. 215; free State ? Baptiste v. Volundrum, 5 H. & Johns. 86; Davis v. Jaquin, Id. 100, 107: Respublica v. Blackmore, 2 Yates, 234; C. S., Addis. 284; David v. Porter, 4 H. & McHen. 418; Gilmer v. Fanny Gilmer, Id. 143; Lewis v. Fullerton, 1 Rand. 15; Butler v. Hopper, 1 Wash. C. C. 499; Vincent v. Duncan, 2 Missouri, 214; Milly v. Smith, Id. 36; Winney v. Whitesides, 1 Id. 472; Julia v. McKinney, 3 Id. 270; Nat. v. Ruddie, Id. 400; Vincent v. Duncan, Id. 214; Rankin v. Lydia, 2 A. K. Marshall, 467. See the cases fully collected in Wheeler's Law of Slavery, 335-388; Cobb on Slavery. The result of the cases seems to be that the citizen of one State does not carry the local laws of his State, which are repugnant to the laws of his new domicile into that State. But when he goes 18, 226–228. into a State, he is entitled to all the rights and privileges of the citizens of that State, no more, no less. He is not entitled to vote, as one of his privileges, until the Constitution or laws of that State give him the power. See Story's Confl. Laws, § 321-327.

It is fresh in the memory of all that the Southern school occupied the ground that this was not the law as to the Territories, but that the citizen might carry his slave there, and hold him as a slave, despite any law of Congress or the Territories, until a State Constitution was formed for admission into the Union.

221.

The opposite extreme held, that neither Congress nor the Terri- 226–225. torial legislature, nor both combined, could legalize slavery in the common territory;" but that it could only be legalized by a State Constitution, when the people were about to apply for admission into the Union. A subject which led to such opposite absurdities, might well be called a very obscuring one. See Cobb on Slavery passim, Douglas's Speeches for ten years; the Debates in Congress from 1848 to 1860; Benton's Thirty Years, and the political platforms everywhere. Scott v. Sandford, 19 How. 393.

This "GUARANTY" applies to the people of the United States, whether existing in States complete, or in inchoate States called Territories. 6 Op. 304.

The fourth article of the Confederation quoted (ante, p. 10). Congress refused to insert the word "white." Id. It is clear that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and by reason of their citizenship in certain States were, citizens of the United States. Smith v. Moody, 26 Ind. 305; Bates on Citizenship.

226.

p. 9.

the obliga

[2] A person charged in any State with treason, What are felony, or other crime, who shall flee from justice, and tions as to be found in another State, shill, on demand of the from executive authority of the State from which he fled, justice?

fugitives

What does

66

person mean?

16, 20, 21, 22, 24, 35, 46,

be delivered up, to be removed to the State having jurisdiction of the crime.

223. "A PERSON," in practice, has been held to extend to free and slave; naturalized and not naturalized; white, Indiau, and colored; male and female; in fact, not only to the " "people,' the "numbers," or "inhabitants;" the "citizens," "aliens," and 144, 169, 220, "all others;" but to every manner of "PERSON," whether resident, 226, 228. CHARGED IN ANY STATE WITH TREASON, FELONY, OR 215, 192, 194, or not, who is "

110-116.

For what crimes?

OTHER CRIME.

It is not necessary that the crime charged should constitute an offense at the common law. In the matter of William Fetter, 3 Zabr. 311. It is enough that it is a crime against the laws of the State from which he fled. Johnson v. Riley, 13 Ga. 97; In the 213, 193, 194. matter of Clark, 9 Wend. 221; Commonwealth v. Daniels, 6 Penn. L. J. 428; Hayward's Case, 1 Am. L. J. 231. The words embrace every act made punishable by the laws of the State. Kentucky v. Ohio, 24 How. 99. Misdemeanors as well as treason. Id. 100, 102. By the act of 12th Feb. 1793, 1 St. 302, provision is made to carry into practical effect this provision of the Constitution. Johnson v. Riley, 13 Ga. 133. All that is required is to produce the copy of an indictment found, or an affidavit made, before a magis. trate of such State, charging the person so demanded with having committed a crime against the governor. Id.

flee"?

8.

224. "WHO SHALL FLEE FROM JUSTICE AND BE FOUND IN ANWhat is "to OTHER STATE."-To FLEE is to run away, as from danger or evil; as "the wicked flee when no man pursueth." Webster's Dic., FLEE. Here, to be "found in another State" is sufficient without any actual flight.

Upon what may the

fugitive be arrested?

A fugitive from justice may be arrested and detained until a formal requisition can be made by the proper authority. Commonwealth v. Deacon, 10 S. & R. 135; Dow's Case, 6 Harr. 39; In the matter of William Fett r, 3 Zabr. 311; The State v. Buzine, 4 Harring, 572; In the matter of Clark, 9 Wend. 221; Goodhue's Case, 1 City Hall Recorder. 153; Gardner's Case, 2 Johns. 477; Commonwealth v. Wilson, Phila. R. 80. The executive upon whom the demand is made, cannot go behind the demand and accompanying charge of the governor demanding, to determine whether, by the laws of his own State, the offense charged is a crime. Each State, as a sovereign, must determine for itself, what is a crime. Johnson v. Riley, 13 Ga. 133-4. And see the case of McGoffin, Governor of Kentucky v. Dennison, Governor of Ohio, 24 How. 99, 100, 106. The duty of the executive on whom the demand is made, is merely ministerial. Id. This article was substantially copied from an article of the Confederation, which required the demand to be made upon the executive. The same rule was intended. Id. 102-3; ante, Art. III. p. 10. The right to demand is absolute; and the duty to deliver, correlative. Id. 103. The proceedings should correspond to the act of 12th February, 1793. Id. The governor on whom the demand is made, cannot look to the sufficiency of the indictment. Id 106-7. While the act of Congress conclusive? declares that it is the "duty" of the governor to comply with the

Is the indictment

demand, there is no power in the Supreme Court of the United States to enforce the performance of this moral duty. Kentucky v. Ohio, 24 How. 107-8.

The relator insists on his discharge, on the ground of insufficiency What are and illegality of the warrant; in this, that it does not show by recital, the requi that the representation and demand of the governor of the State of sites of? Arkansas, was accompanied with a copy of an indictment found, or an affidavit made, before some magistrate of the State of Arkansas, certified to by said executive as being duly authenticated, and charging the relator with having committed the crime of forgery within the said State; and we are of opinion, that, on the ground set forth, he is entitled to his discharge. Ex parte Thornton, 9 Tex. 614-5. The chief-justice quoted the foregoing clause of the Constitution and the act of 1793, and concluded the things necessary are:-1. A copy of the indictment found, or affidavit made, charging the alleged fugitive with having committed the crime. 2. The certificate of the executive of Arkansas, that such copy was authentic. (Ex parte Clark, 9 Wend. 222, cited.) The counsel for Thornton had relied upon this case, and Buckner v. Finley, 2 Pet. 586; Ex parte Holmes, 12 Vt. 631; Case of Jose Ferriara de los Santos, 2 Brock. 493; The matter of Short, 10 S. & R. 125; Holmes v. Jennison, 14 Pet. 540; Warden v. Abell, 2 Wash. Va. 359, 380. The alleged crime must have been committed in the State from which the party is claimed to be a fugitive; and he must be actually a fugitive from that State. Ex parte Joseph Smith, 3 McLean, 133; Hayward's Case, 1 Am. L. J. 231; In the matter of William Fetter, 3 Zabr. 311. The affidavit, when that form of evidence is adopted, must be at What must least so explicit and certain that, if it were laid before a magistrate, the affidavit it would justify him in committing the accused to answer the charge. 6 Penn. L. J. 414, 418. It must state positively that the alleged crime was committed in the State from which the party is alleged to be a fugitive, and that the party is actually a fugitive from the State. Ex parte Smith, 3 McLean, 121, 132; Fetter's Case, 3 Zabr. 311; In the matter of Hayward, 1 Sandf. S. C. 701; Degant v. Michael, 3 Cart. 396.

For the general principles, as an international question, see 1 Kent's Com. Lect. 2, p. 36; Matter of Washburn, 4 John. Ch. R. 106; Rex v. Bull, 1 Am. Jurist, 297; Vattel, B. 2, § 76, 77; Rutherforth Inst. B. 2, ch. 9, § 12; Commonwealth v. Deacon, 10 Serg. & R. 125; 1 Am. Jur. 297; Commonwealth v. Green, 17 Mass. 515, 546-548; In re Fetter, 3 Zabr. 311; Executive Document of 1840, 1 Sess. 26 Cong. No. 99.

225. "SHALL ON DEMAND, ETC., BE DELIVERED UP."-A precept by the governor of a State, appointing an agent to receive a fugitive from justice, reciting that he had made a requisition, agreeably to the Constitution and laws of the United States, upon the governor of the State into which the fugitive was alleged to have escaped, is prima facie evidence, for the protection of the agent, of the truth of the recitals. Commonwealth v. Hall, 9 Gray (Mass.), 267. A prima facie case is all that is necessary. Somerset's Case, 20 State Trials 79 Story's Const. § 1812.

contain?