ascending in a regular gradation from township schools to a state university, wherein tuition shall be gratis, and equally open to all." R. S. 1838, pp. 48, 49.

While the above constitution was in force, the legislature provided for a general common school system, the 102d section of which act was as follows:

"When any school is supported in any degree by the public school fund, or by taxation, so long as the money so derived shall be expending thereon, such school shall be open and free to all the white children resident within the district, over five and under twenty-one years of age." Chap. 15, R.

8. 1843, p. 321.

In the case of Lewis v. Henley, 2 Ind. 332, this court was required to place a construction upon the above quoted section, and it was held that negro children were not entitled to admission to the schools with the white children, and that the legislature had the right, under the constitution, to exclude negro children from our public schools. It was further held that, although the negroes might be entitled to share in the funds derived from the sale of lands donated by Congress, yet they would have to do so in separate schools, and not in schools with white children.

Both constitutions provided for a general and uniform system of common schools; both provided that the tuition should be free and the schools equally open to all. Both constitutions deprived the negroes of all political rights. If the legislature, under the constitution of 1816, had the right to exclude the negroes from the public schools for white children, it is difficult to see why it may not be done under the present constitution.

Having reached the true construction of the constitution of this State, as it came from the hands of its framers and received the sanction of her qualified voters, the next step is to find out the extent of its qualification or change by the Constitution of the United States.

Section 2 of article 4 of the Constitution of the United States declares, that "the citizens of each state shall be enti

tled to all privileges and immunities of citizens in the several states."

This section, at an early date, received a construction in the case of Corfield v. Coryell, which has ever since been recognized and approved. It relates only to "those privileges and immunities which are fundamental," and which may all be comprehended under the following heads: "Protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole."

In the Slaughter-House Cases, the Supreme Court of the United States said: "Its sole purpose was to declare to the several states, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction." It did not compel the state, into which the citizen of another state removed, to allow him the exercise of the same rights which he enjoyed in the state from which he removed. Corfield v. Coryell, 4 Wash. C. C. 371; Slaughter-House Cases, 16 Wal. 76, 77; Bradwell v. The State, 16 Wal. 130; Ward v. Maryland, 12 Wal. 430; Conner v. Elliott, 18 How. 591; Brown v. State of Md., 12 Wheat. 448, 449; People v. Brady, 40 Cal. 198; Story Const., secs. 1805, 1806; Cooley Const. Lim. 15, 16, 397; Potter's Dwarris on Stat. 525, 526; Sears v. The Board, etc., 36 Ind. 267; The Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48.

It is well settled by repeated decisions of the federal and state courts, that with the exception of the limitations imposed upon the powers of the states by section 10 of article 1 of the Constitution of the United States, the several states were left as before the Federal Union was formed, with full power to declare the rights of their citizens, without interference from the Federal Government.

It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the state gov

vernments by their respective constitutions, remain unaltered and unimpaired, except so far as they were granted to the government of the United States. In one of the states of the Union, colored children were entitled to admission into schools for white children, and to be taught with white children, and yet, if a person residing in such state should remove into some other state, where such right is denied, the right so exercised in the state from which the person removed would be lost, because it was not one of those fundamental rights which accompany the person, but a domestic regulation exclusively within the constitutional and legislative power of each state, and to be regarded in the nature of a domestic regulation necessary for the good of the whole people, or which the good of the people of one state, in their sovereign judgment, required to be different from the regulation in another, as best securing "the general comfort and prosperity of the state." Story Const., secs. 1353, 1409; Cooley Const. Lim. 573, 574; 2 Kent Com. 71; 2 Op. Att'y Gen❜l, 426; Commonwealth v. Alger, 7 Cush. 84; The City of New York v. Miln, 11 Pet. 139; Slaughter-House Cases, 16 Wal. 62; Bradwell v. The State, 16 Wal. 130; Thayer v. Hedges, 22 Ind. 282; Potter's Dwarris on Stat. 352, 452, 455, 461.

It is very plain that the tenth amendment of the Constitution of the United States cannot receive such construction as will aid the claim of the appellee. It declares, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" and the power to fix the qualifications of the citizen of the state, and to establish his rights in the state, is one of the powers expressly reserved to the state by this amendment; for there is no express limitation of the power of the states in the Federal Constitution in this respect, as it then stood, and such limitation could not exist without express mention. Rawle Const. 84, 87; Story Const., sec. 1904; Works of Webster, vol. 3, p. 322; Cooley Const. Lim. 19; Federalist, 140; Slaughter-House Cases, 16 Wal. 70, 71, 72, 73 ; Barron v. Mayor, etc., 7 Pet. 243; Smith v. State of Md.,

18 How. 71 ; Pervear v. The Commonwealth, 5 Wal. 475 ; Barker v. The People, 3 Cow. 686; James v. The Commonwealth, 12 S. & R. 220; Jane v. Commonwealth, 3 Met. Ky. 18; Lincoln v. Smith, 27 Vt. 336; Warren v. Paul, 22 Ind. 276; The State, ex rel. Lakey, v. Garton, 32 Ind. 1.

That the views hereinbefore expressed correctly represent the relative powers of the federal and state governments at the close of the great civil war, and until after the ratification of the amendments to the Constitution of the United States, which followed the termination of that contest, cannot, we think, be successfully controverted.

We next proceed to determine whether such amendments, or either of them, have worked a change, and, if they have, to what extent.

The thirteenth amendment was proposed by Congress on the 1st day of February, 1865, and declared by the Secretary of State to have been ratified December 18th, 1865. It declares that" neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction ;" and "Congress shall have power to enforce this article by appropriate legislation." 3 Ind Stat. 579.

This amendment was to prevent any question in the future as to the effect of the war and the President's proclamation of emancipation upon slavery; and its obvious purpose was to forbid all shades and conditions of African slavery. SlaughterHouse Cases, 16 Wal. 68, 69.

It had no other office, and its real effect was more for the future than the present. As to the matter of social and political rights, the African was left just where section 37, article 1, of our state constitution left him, and subject to all the inconveniences and burdens inoident to his color and race, except his former one of servitude. He was a person whose place and office, in the body politic, was yet to be designated and established. He possessed no political rights, in the usual and

proper sense of that term, through, or had none conferred by,

this enactment.

Following this constitutional amendment, the civil rights bill of April 9th, 1866, was enacted by Congress, the first section of which declares who are citizens of the United States, and specifies certain rights which shall be accorded to such citizens in the states and territories, and the residue is made up of pains and penalties for violation of the rights sought to be conferred, and the machinery for enforcing its provisions.

It is not worth while to enquire into the effect of this act, or whether the Federal Constitution, which made citizens of the different states citizens of the United States, could be changed by a simple congressional enactment; for it is clear, admitting it to be valid, that it does not relate to or bear upon the right claimed in this case, for it purports only to confer upon negroes and mulattoes the right, in every state and territory, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and the full and equal benefit of all laws and proceedings for the security of person and property as enjoyed by white citizens, and subjects them to like pains and penalties. 3 Ind. Stat. 589. In this nothing is left to inference. Every right intended is specified.

The fourteenth amendment to the Federal Constitution was proposed by Congress July 16th, 1866, and declared by the Secretary of State to have been ratified July 28th, 1868. It consists of several sections, but section 1 is the only one necessary to this examination. It declares, that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."