
    The State vs. Claiborne.
    CoNSTlTU'riONAL Law. Who is a citizen — Const, XJ. S. Art, 4, § 2. Free blacks are not citizens within the meaning of the provisions of the Constitution of the United States, Art. 4, § 2, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’*
    Same. State Statute. A State statute making it unlawful “for any free person of color to remove himself to the State to reside therein, and remain therein 20 days,” does not violate this provision of the Constitution of the United States.* Amy v. Smith, 1 Littell, 326.
    SAME. Who is a freeman — Const, of TennArt. 1, $ 8. 3NTor does such a statute violate the Constitution of Tennessee, Art. 1, § 8, “providing that “no free man shall betaken,” &c., for by freeman, is here meant one who is entitled to all the privileges and immunities of the most favored class; and if it meant more, the provision only applies to those who are already citizens of the States; and con’ sequently would not prevent the States from passing laws prohibiting a given class of persons from becoming citizens.
    The grand jury of Maury county indicted the defendant oni the 8th of January, 1838, upon the act of 1831, c 102, for this, that being a free person of color, emancipated agreeably to the laws, now and heretofore in force and use in the State' of Kentucky, one of the United States, he did, after the passing of the act of 1831, feloniously and unlawfully remove himself to this State, to wit, to the county of Maury, to reside therein, and did remain therein 20 days, and still feloniously doth reside in the county of Maury, contrary, &c.
    And for this, that being such free person of color, emancipated as aforesaid, the defendant did, on the 1st of January, 1834, feloniously remove himself to this State, to wit, in the county of Maury, to reside therein, and there feloniously did remain 20 days, and moré, to wit, from, &c. to &c., and during all the time aforesaid, hath, and still doth, feloniously re-main therein, &c.; and during all the time aforesaid, feloniously hath presumed and attempted to reside therein, &c.
    The defendant demurred to this indictment. The courtr Dillahunty Judge, sustained the demurrer, discharged the defendant, and ordered the county to pay the costs; whereupon the Attorney General, Thomas, prayed an appeal in the nature of a writ of error to this court, and the defendant entered into a recognizance to appear, &c.
    
    The act of 1831 creates this offence in the following words:
    “It shall not be lawful for any free - person of color, (whether he be born free, or emancipated agreeably to the' laws in force and use, either now, or at any other time, many State, within the United States, or elsewhere,) to remove himself to this State to reside therein, and remain therein twenty days.”
    
    The Attorney General said, that the question presented- by this demurrer is — -whether this Act of Assembly is in conflict with the Constitution of the United States, art. 4, § 2, that “The citizens of each State shall be entitled to all the privileges and immunities- of citizens in the several States.” 3 Story’s Comm. Const. §1799, 1800.
    Any sovereign State, i. e. one “which governs itself independently of foreign powers” — Wheaton’s Int. Law. ch. 2, § 1 — could pass sucha law as the act of 1831: so could one of a system of confederated States — Id. Ibid. § 4; Id. pt. 2. c. 2, § 7. All laws of naturalization proceed upon the assumption of such right, for if a- State may prescribe conditions of citizenship, in other words, the mode in which foreigners may become citizens, it may exclude them altogether. 3 Story’s Comm. Const. § 1097 to 1099. Puffendorff’s Law of Nat. & Nations, b. 7, c. 2, § 20.
    
      It is conceded, however, that a member of a “Composite State,” such as the government of the United States is, cannot pass laws to exclude citizens of one of the Component States. In this particular they are not sovereign States, more especially when the form of government contains such an article as that above cited. This brings us to the question — Whether the defendant was a citizen of Kentucky? If he/ Was he cannot be excluded from Tennessee; and this involves the question, — Who is a citizen?
    Puffendorff says, that — “Since every State is constituted by men’s submitting their wills to a single person, or to an assembly, they principally have a title to the name of members, by whose covenants the society was first incorporated, and they who regularly succeed into the place of these primitive founders. And since these acts belong to the masters of families, they should seem to merit this name by an especial right,” &c. See the whole passage, book 7, ch. 2, § 20.
    The Legislature of Virginia, by an act passed December 18, 1789, allowed the people of Kentucky to call a Convention — “To consider and determine whether it be expedient for, and the will of the good people of the said district, that the same be erected into an independent State.” The members of this Convention were to be elected “by the free male inhabitants of each county, above the age of 21 years, in like manner as delegates to the General Assembly have been elected within said District. Rev. of 1803, p. 50.
    The act of December 20, 1785, concerning election of members of that body, ascertains the qualifications of electors of members of the General Assembly, and expressly excepts “free negroes and mulattoes.” So that this class of the population of Kentucky had no hand in the Convention above mentioned. This convention was authorised to take the “necessary provisional measures for the election and meeting of a Convention, with full power and authority to frame and establish a Fundamental Constitution of Government for the proposed State.” Act of 1789, ch. 14, § 16. Revisal of 1803, p. 50, et seq. The Convention thus provided for, framed the Kentucky Constitution of 1792, the first section of the third article of which, provides that — “In elections by the? citizens, all free male citizens of the age of 21 years,” &dV “shall enjoy the right of an elector,” &c. 1 Littell’s Laws,-27, 28. The Constitution of 1799, art. 2, § 8, provides that “In all elections for representatives, every free male citizen (negroes, mulattoes and Indians excepted,) who,” &c. “shall enjoy the rights of an elector,” &c. — Id. 40 — and this section settles the qualifications of electors in all popular elections; as well ás in elections of representatives.
    We see, then, that free persons of color are industriously excluded from the right of suffrage in Kentucky; that they were not concerned in establishing the government of the State; it was not by their covenants that the society was incorporated, and consequently, their successors are not citizens, according to the description of a citizen cited from Puf-fendorff.
    The definition of civis and civitas, in the Latin Lexicon of^ Forceliini, a work which “has superseded all other Latin Dictionaries,” Penny Cyc. art. Facciolati, is entirely conformable to this view of the matter. Ciáis, he says, is homo liber, urbis, aut oppicli incola, eteodem cum ceteris jure utensj a free man, an inhabitant of a city or town, using the same law with the rest. Civitas is — civium multitudoin eodem loco Kabitans, eodemque jure vivens', a number of people inhabiting the sanie place, and living under the same law. Here equality of civil rights is made the test of citizenship; as in Puffen-dorff, participating in the mutual covenants by which the society was incorporated, is made the test of social membership. In Amy v. Smith, 1 Littell’s R. 326, the Court of Appeals of Kentucky say — “No one can be a citizen of a State, in the correct sense of the term, who is not entitled,upon the terms prescribed by the institutions of the State, to all the rights and privileges conferred by those institutions upon the highest class of society.” See the case from page' 331 to 335.
    Upon the citizen of Kentucky, who comes into Tennessee, no office, duty, part, charge, trust, post, employment, function, burden, impost, tax or obligation, shall be imposed, which is not, at the same time, under similar circumstances, imposed upon the native citizen of Tennessee. This is what the constitution means when it provides for sameness of immunities. But this is not all. The citizen of Kentucky migrating to Tennessee, shall have title to demand, upon the same terms, from the government of Tennessee, whatever prerogative, license, special right or grant is allowed to native Tennessee citizens. This is what is meant by sameness oí privileges. It has been sometimes supposed, but erroneously, that the words immunity and privilege in this clause of the constitution are synonimous, and that the phrase is a pleonasm. 3 Harris & McH. 553.
    This Union is a State. Its territory is one and indivisible. Whoever is a member of any one of the separate societies which co-exist within that territory, is, for that cause, a member of all and every of those societies. He is a member of the Composite State, and, therefore, is also a member of the component States. Being born upon that territory, though of parents who are not members of the State, invests the infant with the right of membership. The children of English parents born upon our territory, are citizens of the United States.— But would the children of native Africans, immigrants to this country, be citizens by birth? The English immigrant, if a “free white person,” may be naturalized: the African cannot. Can the offspring of those who are incapable of citizenship become citizens? The free white man, when naturalized, is, ipso facto, clothed with all the immunities and privileges which are enjoyed by the native citizens of the Union, and every component part of it: and with all their rights too, eligibility to the Presidency and Vice-Presidency excepted. The free white man, born within the United States, is entitled to all the privileges, immunities and rights of American citizenship, be his parents of whatsoever nation. See Vattel, book 1, c. 19.
    But birth will not confer these advantages upon a negro or an Indian. If so, a man may acquire by the accident of birth, what the government itself has no right to grant. No negro, or descendant of negroes, is a citizen of the Union, or of any of-the States. They are mere “sojourners in the land,” inmates, allowed usually by tacit consent, sometimes by legislative, enactment, certain specific rights. Their status and that of the citizen is not the same. Vattel, book 1, § 213. But the clause of the Constitution in question, applies to citizens, not to sojourners or inmates. The attribute of sovereignty, whereby independent States may exclude foreigners from their territories, at pleasure, is taken, by the people of the Union from the States, as it relates to those who are citizens of the component States; but that attribute remains as to all those who are not such citizens. New York may pass laws to exclude foreigners from landing or coming within its limits. But if these foreigners land in any State from which they are not excluded, and are there naturalized, New York can no longer exclude them.
    January 2.
    Undoubtedly, there may be in a State, a class of people with limited privileges and immunities, who may still be called “citizens,” but it is not in this sense that the word is used in our Constitution. See 1 Niebuhr’s Hist, after 965; Potter’s Greek Ant. book 1, c. 10 — particularly page 73, Boyd’s Ed. Glasgow 1837; Vattel, book 1, sec. 213. The words are: “The citizens of each State shall be entitled to all the privileges,” &c. The citizens meant in this provision are those who are entitled to all, not some privileges and immunities.— But free negroes are not entitled to all the privileges of white persons in any of the States. They, therefore, are not citizens in the sense of the Constitution.
    Nicholson, with whom were Pillow and E. PI. Ewing, argued that the crime is malum prohibitum, and exists only by statute. Of what does it consist? 1st. Removal to the State; 2nd, to reside therein; 3d, remaining 20 days. Yet all these ingredients may concur and no crime be committed. There is still a fourth requisite. The person removing, &c. must be a person of color; and even then the offence is not made out; he must be free.
    
    Penal statutes are taken strictly and literally in the point of defining the fact and the punishment. Dwarris Stat. 736.— Part of the fact to be “strictly defined,” is the character of the supposed offender as to complexion. The words of the statute are “free person, of color.” We may know as individuals, that “free negroes” are intended by the statute, but we do not derive this knowledge from its language. The words will embrace all persons of all shades of complexion; strictly speaking, they will apply to all persons except those of the African or black complexion. How then are we to arrive at the offenders intended to be described? Must we draw our conclusion from the construction of the words, “who have been emancipated,” &c., and by connecting them together, construe the whole description as meaning free negroes? This mode of making out the offence will not answer, because it is well settled that the law does not allow of constructive offen-ces. No man incurs a penalty unless the act which subjects him to it, is clearly both within the spirit and the letter of the statute imposing such penalty. 3 Bing. 580.
    We are not helped out of this difficulty by any statute of the State defining the term “free persons of color.” When the phraseology of this statute is compared as to its generality and ambiguity, with several penal statutes of England, which have been construed, it is apprehended that the conclusion is well founded, that no such offence is here described as can be punished.
    By statute of 1 Ed. 6, c- 12, persons convicted of stealing horses should not have the benefit of clergy. The courts were of opinion that this did not extend to him who stole one horse. In like manner, by the 14 G. 2, c. 1, persons who should steal sheep or any other cattle, were deprived of clergy. Most clearly these words would embrace bulls, cows, heifers, &c., yet they were looked upon as too loóse to create so high an offence. This latter case would seem to apply with peculiar force to the statute under consideration. So far as the stealing of sheep was enumerated, the statute was good, but beyond that it defined no punishable offence.
    In this case there is not any particular enumeration, but the whole description of the offender is so general, that it cannot with certainty be applied to free negroes more than to other free persons who are colored, such as the tawny Asiatic or copper-colored Indian.
    This act creates a highly penal offence, one which abridges the liberty of a freeman, and therefore ought to receive the .strictest construction. 4 Bing. 183.
    2. But the act is a violation of the Constitution of the U. S. art. 4, § 2. At most the State can only claim the right to restrict the privileges of this class of freemen, so as to allow them such only as persons of the same description are entitled to in Tennessee. 2 Kent, 71.
    January 4.
    The history, however, of the admission of Missouri into, ¿he Union, shows that the then Congress was of opinion that a clause in the Constitution of that State, directing the Legislature to pass laws, “to prevent free negroes and mulattoes from coming to and settling in the State,” was a violation of the provision of the Constitution of the U. S. in question. Accordingly, the resolution, providing for the adnaission of Missouri, declared it to be on condition that that “clause in her Constitution should not be construed to authorise the passage of any Jaw, and that no law should be passed in conformity thereto, by which any citizen of either of the States, in the Union, should be excluded from the enjoyment of any of the privileges and immunities to which such citizen was entitled under the Constitution of the United States.” Serg. Const. Law, 384, 5. It was a work of supererogation to make the provisions, except upon the ground that free negroes and mulattoes were to be regarded as citizens of the respective States in which they might reside.
    It is not pretended that this is a conclusive exposition of the constitutional provision under discussion; but it is certainly entitled to great weight and consideration. 2 Kent, 258, note d.
    
    3. This statute is also a violation of our own Constitution, Art; 1, § 8, for it provides for “exiling a freeman” without law, unless the question of its constitutionality be first settled, or taken for granted. 2 Yerger, 260, 554, 599.
    
      
       His Honor, tbecircuit Judge, sustained the demurrer,not becausehe thought the act of Assembly unconstitutional, — for upon that point he entertained the same opinion as that afterwards expressed by this court; — but, upon the ground —that the terms employed by the Legislature, in defining the offence prohibited, were so general, and wanting in precision, as to leave it a matter of uncertainty and conjecture, what persons were meant by the act. “Persons of color,” he' thought, included all persons, not white; but it could hardly be meant to exclude from the State, any other persons of color, but those descended from ne-groes; and there was nothing in the language to restrain the prohibition to that class only of colored persons. [Reporter.
      
    
   Green, J.

delivered the opinion of the court.

The defendant was indicted in the Circuit Court of Maury County, under the act of 1831, ch. 102, as a free man of color, emancipated in Kentucky, for removing into this State and residing here, more than twenty days. To this indictment he demurred, which demurrer was sustained by the court, and the Attorney General prosecutes this appeal on behalf of the State.

Several grounds have been taken to sustain the judgment of the circuit court; but that which is chiefly relied on is, — that the act in question is unconstitutional, being repugnant to the provisions of the 2nd Section of the 4th Article of the Constitution of the United States. That section provides, that “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.”

The enquiry then is, whether the defendant, a man of color, emancipated in Kentucky, was a citizen of that State in the sense of the constitution?

Who then is a citizen? Chancellor Kent says, 2 Com. 258, note, that the term is “appropriate to republican freemen;” and certainly among the Romans, where the term had its origin, a citizen was entitled to all privileges, immunities and rights, civil and political. Free negroes have always been a degraded race in the United States, having the right, it is true, of controling their own actions and enjoying the fruit of their own labor, but deprived of almost every other privilege of the free citizen, and constituting an inferior caste in society, — with whom public opinion has never permitted the white population to associate on terms of equality, and in relation to whom, the laws have never allowed the enjoyment of equal rights, or the immunities of the free white citizen.

As this was the description of these people, at the time the Constitution was adopted, can we understand the word “citizen” as used in the section under consideration, as applicable to them?

“The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” says the Constitution. 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.

In this country, under the free government created by the Constitution, whose language we are expounding, the humblest white citizen is entitled to all the “privileges and immu-' nities” which the most exalted one enjoys. Hence,- in speaking of the rights, which a citizen of one State should enjoy in every other State, as applicable to white men, it is very properly said, that he should be entitled to all the “privileges and immunities” of citizens in such other State. The meaning of the language is, that no privilege enjoyed by, or immunity allowed to, the most favored class of citizens in said State, shall be withheld from a citizen of any other State. How can it be said, that he enjoys all the privileges of citizens, when he is scarcely allowed a single right in common with the mass of the citizens of the State?

It cannot be; — And, therefore, either the 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 contendeded for by no one. It must then follow, that they are not citizens.

But it is contended that they are an inferior order of citizens, subject to many disabilities, and that when they remove into another State, they are entitled to all the “privileges and immunities,” which free negroes in such State enjoy.

In the first place, this argument is already refuted, if we have shown, that a person entitled to all the privileges and immunities of citizens, cannot be restricted in any rights which any class of citizens exercise. But if this construction were allowable, it would not avail the defendant any thing. By the act of 1831, c. 102, s. 2. Slaves, who may be emancipated, are required to leave the State, and the owner desirous of emancipating a slave, must give bond and security in a sum equal to the value of the slave, conditioned that he will forthwith leave the State. The introduction of a resident negro, into the class of the defendant, by emancipation, would entitle him to no “privilege or immunity” in this State, but he must forthwith remove his residence from it. How then, according to the argument, can he be entitled to any privilege or immunity here? Nor would it seem consistent policy, to drive an emancipated slave from us, whose habits and character are known, and permit the introduction from abroad^. ^ítíiout restriction, of others whose characters are unknown, and from whom there may be greater dangers.

Upon the whole, by whatever appellation we may designate free negroes, whether as perpetual inhabitants, or citizens of án inferior grade, we feel satisfied, that they are not citizens in the sense of the Constitution: and, therefore, when coming among us, are not entitled to all the “privileges and immunities” of citizens of this State.

2. It is contended that this act is in derogation of the 8th section of the bill of rights of this State. We think the word “Freeman” as used in the bill of rights, is of equally extensive signification with the word citizen as used in the Constitution of the U. States: and that although the defendant by his emancipation in Kentucky, obtained a qualified freedom, be did not become a “freeman” in the sense of Magna Charta, or of our Constitution.

In these instruments, the' word is used in its largest sense, and means, as does citizen in the Constitution of the United States, one who is entitled to all the privileges and immunities of the most favored class of the community.

An emancipated slave, is called a freeman in common parlance, and in reference to his former state, he is so, having acquired privileges and immunities which he did not enjoy before. But in reference to the condition of the white citizen, his condition is still that of a degraded man, aspiring to no equality of rights with white men, and possessing a very few only, of the privileges pertaining toa “freeman” or “citizen.”

But this provision of our Constitution can only apply to our own citizens, and not to foreigners. If this law applied to Englishmen or Frenchmen it would be constitutional, were it not for treaties and naturalization laws; for surely every free State has a right to prevent foreigners going to it, and to punish those who violate such laws.

The language must therefore be restricted to freemen of this State, for the protection of whom, alone, the provision is made.

Judgment reversed, and cause remanded.  