Article 4, Section 2, Clause 1

Document 10

Campbell v. Morris

3 Harr. & McH. 535 Md. 1797

On the first point it must be observed; that this law makes a distinction between our own citizens and others, in this, that an attachment cannot be obtained against a citizen of Maryland, who is out of the state, unless he has absconded from justice, whereas one may be had against a citizen of any other state, who does not reside here; and hence they contend for the defendant that this law is repugnant to the 4th article of the federal constitution, sec. 2. by which it is declared, "That the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

The object of the convention in introducing this clause into the constitution, was to invest the citizens of the different states with the general rights of citizenship; that they should not be foreigners, but citizens. To go thus far was essentially necessary to the very existence of a federate government, and in reality was no more than had been provided for by the first confederation in the fourth article.

But it never could have been the intention of the framers of our national government, to melt down the states into one common mass; to put the citizens of each in the exact same situation, and confer on them equal rights: this principle would have been wholly destructive of the state government.

The expressions, however, of the fourth article convey no such idea. It does not declare that "the citizens of each state shall be entitled to all privileges and immunities of the citizens of the several states." Had such been the language of the constitution, it might, with more plausibility, have been contended that this act of assembly was in violation of it; but such are not the expressions of the article; it only says that "The citizens of the several states shall be entitled to all privileges and immunities of citizens in the several states." Thereby designing to give them the rights of citizenship, and not to put all the citizens of the United States upon a level; consequently, the injury, as to the effect of a law of any state, will not be whether it makes a discrimination between citizens of the several states; but whether it infringes upon any civil right, which a man as a member of civil society must enjoy. In the present case we must inquire whether the law of 1795, c. 56. takes from Robert Morris any of the privileges of a citizen.

It is difficult to conceive how the act of assembly can have such an effect; how the general provisions of the law can do injury or injustice to any man. To be sure, in particular instances, like all general regulations, it may effect injustice.

A man who resides out of the states, would have a complete exemption from his creditors as to his property in this state, if it was not liable to attachment. He cannot be arrested because no process of the state can reach his person. This property, the only fund for the payment of debts, would be protected, if in such instances as this it may not be seized on attachment, or some other process of a similar nature. If resident in any part of America, he may be proceeded against in the federal courts, but if out of the United States, there would be no remedy.

This act of assembly can never be in violation of a man's civil rights, until it is proved that to make his property liable for the payment of his debts constitutes the violation.

In the present instance the interest of the absent person is abundantly protected by the provisions of the law. A writ must issue at the time of the attachment, to which the defendant may appear and dissolve the attachment; if he neglect to appear, the property is condemned and sold on a fieri facias; he has a year to come in after the attachment, and controvert the propriety of the claim. Can a law of this nature be considered as infringing on the rights or privileges of a citizen? If it were so, a knave could secure his property against all the authority of the government.

If the state, at the adoption of the general government, ought to have retained any portion of independent power, it should be that of legislating on the subject of its own jurisprudence, and the manner of proceeding in courts of justice; the goodness or badness of the provisions made on those subjects, is for the legislatures to decide; the execution of the laws only remains for the courts. The obvious necessity of some mode to recover debts from an absent person, has given rise to the different attachment laws of this state. The law of 1715, c. 40. requires the return of non est, against a non-resident, before an attachment can be obtained; this will take in our own citizens, provided they reside out of the state. The act of 1795, c. 56. does not authorize an attachment against a citizen of Maryland, unless he absconds from justice, but gives remedy against any other person not being a citizen of this state, and not residing therein." This expression affects citizens of other states. In this way has the assembly thought proper to legislate on this subject; they have made the mode of recovery somewhat more dilatory against the citizens of our own state, than against those of other states; still there is no infraction of the privileges and immunities of a citizen, and, of consequence, no violation of the fourth article of the federal constitution.

The Founders' Constitution
Volume 4, Article 4, Section 2, Clause 1, Document 10
The University of Chicago Press

Easy to print version.