1861. April Term.

Baker

V.

Wise, Governor.

promote the general welfare. It seems agreed, from the manner of expounding or defining the words "immunities and privileges " by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean the right of election, the right of holding office, the right of being elected. The court are of opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State in the same manner as the property of the citizen of the State is protected. It means such property shall not be liable to any taxes or burdens which the property of the citizen is not subject to. It secures and protects personal rights." He added that "a restriction of the power of the State legislatures to establish modes of proceeding for the recovery of debts is not to be inferred from the clause under consideration." In that case the words of the law whose constitutionality was questioned are: "If any person whatsoever, not being a citizen of this State and not residing therein, shall or may be indebted unto a citizen of this State, or of any other of the United States, or if any citizen of this State, being indebted to another citizen thereof, shall actually run away, abscond, or fly from justice, or secretly remove from his place of abode, with the intent to evade the payment of his or her just debts, such creditor may in either case make application, &c., for an attachment," &c.

It was argued that the statute put the citizen of another State on a worse footing than the citizens of the State of Maryland; as by its provisions an attachment could not issue against a citizen of that State unless he was absconding or departing with a design to defraud his creditors, whereas, in the case of a citizen of another State, it was only necessary to show that he lived out of

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the State, and without any default or fraud on his part he was liable to be proceeded against. But the objection was without avail, and the validity of the law was sustained by the court. See also Ward v. Morris, 4 Harris & McH. 330, in which a decision was made to the like effect. See also Corfield v. Coryell, 4 Wash. C. C. R. 370.

Like differences between the modes of proceeding against the citizens or residents of other States and the modes of proceeding against their own citizens or inhabitants will be found in the laws of most of the States; and I know of no decision in which it has been held that, by such discriminations, the citizens of such other States are deprived of any of their rightful privileges and immunities. A like discrimination is made in our own laws, and, I presume, in the laws of other States, in demanding of the resident of another State, seeking to enforce by suit a demand against a resident of this State, that he give security for the payment to his adversary of the costs of the suit in case he is cast in his suit; not only so, but that he also secure to the officers of the law the fees for the services they may be required to render him in the discharge of their respective duties whilst a resident of the State is free to prosecute his suit without giving such security.

In neither of these instances can it be said that the non-resident is deprived of any of the immunities of citizenship, in the sense contemplated in the Constitution. He is held ultimately responsible for nothing that he would not have to meet were he a resident citizen of the State; though his responsibilities are enforced in a mode differing from that adopted in the case of the citizen of the State-a difference justified by the difference in the relative situations of the two parties. The presence of the person of the citizen, and his consequent immediate amenability to the process of the court, justly exempts

1861. April Term.

Baker
V.

Wise,
Governor.

1861. April Term.

Baker

V.

Wise, Governor.

him from a proceeding in the one instance and a demand for security in the other, that are deemed just and necessary in the case of the non-resident, who is beyond the reach of the ordinary process of the law.

The principle exhibited in the foregoing illustrations admits, obviously, of a further extension. Whilst all the property in the State, whether owned by its own citizens or the citizens of other States, is entitled to its protection, the State has an undoubted right to see that no property within its limits and jurisdiction, by whomsoever owned, becomes the source of annoyance to the community or of danger to the lives or peace or property of its citizens. It would seem equally just that, when any species of property, whether from its peculiar situation or other cause, though that cause be the absence or non-residence of the owner, becomes the source of peculiar or extraordinary danger to the community, the State should have the right to adopt such regulations of police, and set on foot such measures of vigilance, as it may in its wisdom deem best calculated to guard against the threatened mischief. There is no injustice in subjecting the property of one class of citizens of the State to stricter regulations than those applied to the like property of another class of citizens of the State, if the discrimination is founded in a stronger necessity for rigor in the one case than in the other; nor is there any injustice in adopting a greater degree of vigilance in respect to the property of citizens of other States than is observed in respect to the like property owned by citizens of this State, if there is greater danger, or reasonable grounds for the apprehension of greater danger, to the safety of the public from the presence of such property in the one case than in the other.

It will be agreed too, I conceive, that in passing upon the law under consideration, respect for the legislaturenay, sheer justice to that body-requires of us that we

give it credit for fair and reasonable dealing; that we are to take it for granted that the legislature has fairly endeavored to adapt the provisions of the law to the end avowedly sought to be accomplished; that under the pretext of providing a better protection to the slave property of the State, the legislature has not contemplated the sinister purpose of conferring upon the resident citizens of this State undue advantages over the citizens of the other States.

Is there, then, no good reason for the discrimination objected to ?—no just ground for the search of vessels owned by the citizens of other States, or by our own citizens who have abandoned their residence in Virginia, which does not apply with equal force to vessels owned by the resident citizens of the State?

We have seen by a reference to the laws on the subject that they not only subject to seizure and forfeiture any vessels which may be used as instruments for aiding in the escape of slaves, and visit with severe penalties all masters of vessels who may aid any slave to escape, but also extend to all persons who, by affording any facility or otherwise," shall be in any manner accessory to the escape or attempt to escape of such slaves."

In the absence of a right to search the departing vessels of non-resident owners, have we under these laws as complete a protection against them as is afforded in the case of resident owners? To my mind it is obvious that we have not. In the case of vessels owned by resident citizens, we have in their residence and amenability to the process of our courts a safeguard against their knowingly allowing their vessels to be used as instruments or facilities to aid in the escape of slaves, which we cannot have against the owners of vessels residing beyond our jurisdiction; as to the latter the provisions of the statute in respect to the accessory to the offence are without sanction or force; beyond the reach of the law, its de

1861. April

Term.

Baker

V.

Wise, Governor.

1861. April Term.

Baker

V.

Wise, Governor.

nunciations, as to them, are comparatively without its terrors. It is true that in respect to the forfeiture and loss of the vessels, in case of detection, the resident and non-resident owners are under the influence of the like motives to dissuade and deter them from embarking in any criminal enterprise of the kind. But in respect of personal responsibility the two classes of owners stand on wholly different and unequal footings-a difference arising out of the very circumstance of residence in the one case and non-residence in the other. The resident uses his property-his vessel-under a sense of personal accountability for a violation of the law-the fear of an infamous punishment; a powerful restraining influence, which, if not wholly inoperative in the case of the nonresident, must, from the very nature of things, act upon him with a far slighter degree of force. The law, therefore, as it seems to me, is not necessarily obnoxious to the charge of injustice or partiality because of its requiring a measure of vigilance to be observed in respect to the vessels of non-residents, in the act of leaving the State, from which the vessels of resident citizens are exempted. The law makes no distinction between the resident and non-resident in respect to the penalties attached to its violation. In each case the vessel is liable to seizure and forfeiture; and this, without regard to the innocence or complicity of the owner, wherever he may reside. The measure of corporal punishment with which it seeks to visit the owner who is in any manner accessory to the commission of an offence is in both cases the The difference in its treatment of the two classes of owners of vessels consists in its adopting a measure of preventive justice in respect to the vessel of the nonresident which it dispenses with in the case of the vessel of the resident owner. This difference is perfectly consistent with the promptings and movements of an even-handed justice. It does not necessarily imply the

same.