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Syllabus |
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1. The legislature of Louisiana, on the
8th of March, 1869, passed an act granting to a corporation, created by
it, the exclusive right, for twenty-five years, to have and maintain
slaughterhouses, landings for cattle, and yards for inclosing cattle
intended for sale or slaughter within the parishes of Orleans,
Jefferson, and St. Bernard, in that State (a territory which, it was
said -- see infra, p. 85 -- contained 1154 square miles, including the
city of New Orleans, and a population of between two and three hundred
thousand people), and prohibiting all other persons from building,
keeping, or having slaughterhouses, landings for cattle, and yards for
cattle intended for sale or slaughter, within those limits, and
requiring that all cattle and other animals intended for sale or
slaughter in that district, should be brought to the yards and
slaughterhouses of the corporation, and authorizing the corporation to
exact certain prescribed fees for the use of its wharves and for each
animal landed, and certain prescribed fees for each animal slaughtered,
besides the head, feet, gore, and entrails, except of swine. Held, that
this grant of exclusive right or privilege, guarded by proper limitation
of the prices to be charged, and imposing the duty of providing ample
conveniences, with permission to all owners of stock to land, and of all
[p*37] butchers to slaughter at those places, was a police regulation
for the health and comfort of the people (the statute locating them
where health and comfort required), within the power of the state
legislatures, unaffected by the Constitution of the United States
previous to the adoption of the thirteenth and fourteenth articles of
amendment.
2. The Parliament of Great Britain and the State legislatures of this
country have always exercised the power of granting exclusive rights
when they were necessary and proper to effectuate a purpose which had in
view the public good, and the power here exercised is of that class, and
has, until now, never been denied.
Such power is not forbidden by the thirteenth article of amendment and
by the first section of the fourteenth article. An examination of the
history of the causes which led to the adoption of those amendments and
of the amendments themselves demonstrates that the main purpose of all
the three last amendments was the freedom of the African race, the
security and perpetuation of that freedom, and their protection from the
oppressions of the white men who had formerly held them in slavery.
3. In giving construction to any of those articles, it is necessary to
keep this main purpose steadily in view, though the letter and spirit of
those articles must apply to all cases coming within their purview,
whether the party concerned be of African descent or not.
While the thirteenth article of amendment was intended primarily to
abolish African slavery, it equally forbids Mexican peonage or the
Chinese coolie trade when they amount to slavery or involuntary
servitude, and the use of the word "servitude" is intended to
prohibit all forms of involuntary slavery of whatever class or name.
The first clause of the fourteenth article was primarily intended to
confer citizenship on the negro race, and secondly to give definitions
of citizenship of the United States and citizenship of the States, and
it recognizes the distinction between citizenship of a State and
citizenship of the United States by those definitions.
The second clause protects from the hostile legislation of the States
the privileges and immunities of citizens of the United States, as
distinguished from the privileges and immunities of citizens of the
States.
These latter, as defined by Justice Washington in Corfield v. Coryell,
and by this court in Ward v. Maryland, embrace generally those
fundamental civil rights for the security and establishment of which
organized society is instituted, and they remain, with certain
exceptions mentioned in the Federal Constitution, under the care of the
State governments, and of this class are those set up by plaintiffs.
4. The privileges and immunities of citizens of the United States are
those which arise out of the nature and essential character of the
national government, the provisions of its Constitution, or its laws and
treaties made in pursuance thereof, and it is these which are placed
under the protection of Congress by this clause of the Thirteenth
amendment.
It is not necessary to inquire here into the full force of the clause
forbidding a State to enforce any law which deprives a person of life,
liberty, [p*38] or property without due process of law, for that phrase
has been often the subject of judicial construction, and is, under no
admissible view of it, applicable to the present case.
5. The clause which forbids a State to deny to any person the equal
protection of the laws was clearly intended to prevent the hostile
discrimination against the negro race so familiar in the States where he
had been a slave, and, for this purpose, the clause confers ample power
in Congress to secure his rights and his equality before the law.
The three cases -- the parties to which, as plaintiff and defendants in
error, are given specifically as a subtitle, at the head of this report,
but which are reported together also under the general name which, in
common parlance, they had acquired -- grew out of an act of the
legislature of the State of Louisiana, entitled
An act to protect the health of the City of New Orleans, to locate the
stock landings and slaughterhouses, and to incorporate "The
Crescent City Live-Stock Landing and Slaughter-House Company,"
which was approved on the 8th of March, 1869, and went into operation
on the 1st of June following, and the three cases were argued together.
The act was as follows:
SECTION 1. Be it enacted, &c., That from and after the first day of
June, A.D. 1869, it shall not be lawful to land, keep, or slaughter any
cattle, beeves, calves, sheep, swine, or other animals, or to have,
keep, or establish any stock-landing, yards, pens, slaughterhouses, or
abattoirs at any point or place within the city of New Orleans, or the
parishes of Orleans, Jefferson, and St. Bernard, or at any point or
place on the east bank of the Mississippi River within the corporate
limits of the city of New Orleans, or at any point on the west bank of
the Mississippi River above the present depot of the New Orleans,
Opelousas, and Great Western Railroad Company, except that the "Crescent
City Stock Landing and Slaughter-House Company" may establish
themselves at any point or place as hereinafter provided. Any person or
persons, or corporation or company carrying on any business or doing any
act in contravention of this act, or landing, slaughtering or keeping
any animal or animals in violation of this act, shall be liable to a
fine of $250 for each and [p*39] every violation, the same to be
recoverable, with costs of suit, before any court of competent
jurisdiction.
The second section of the act created one Sauger and sixteen other
person named, a corporation, with the usual privileges of a corporation,
and including power to appoint officers and fix their compensation and
term of office, to fix the amount of the capital stock of the
corporation and the number of shares thereof.
The act then went on:
SECTION 3. Be it further enacted, &c., That said company or
corporation is hereby authorized to establish and erect at its own
expense, at any point or place on the east bank of the Mississippi River
within the parish of St. Bernard, or in the corporate limits of the city
of New Orleans, below the United States Barracks, or at any point or
place on the west bank of the Mississippi River below the present depot
of the New Orleans, Opelousas, and Great Western Railroad Company,
wharves, stables, sheds, yards, and buildings necessary to land, stable,
shelter, protect, and preserve all kinds of horses, mules, cattle, and
other animals, and from and after the time such buildings, yards, &c.,
are ready and complete for business, and notice thereof is given in the
official journal of the State, the said Crescent City Live-Stock Landing
and Slaughter-House Company shall have the sole and exclusive privilege
of conducting and carrying on the livestock landing and slaughterhouse
business within the limits and privileges granted by the provisions of
this act, and cattle and other animals destined for sale or slaughter in
the city of New Orleans, or its environs, shall be landed at the
livestock landings and yards of said company, and shall be yarded,
sheltered, and protected, if necessary, by said company or corporation,
and said company or corporation shall be entitled to have and receive
for each steamship landing at the wharves of the said company or
corporation, $10; for each steamboat or other watercraft, $5, and for
each horse, mule, bull ox, or cow landed at their wharves, for each and
every day kept, 10 cents; for each and every hog, calf, sheep, or goat,
for each and every day kept, 5 cents, all without including the feed,
and said company or corporation shall be entitled to keep and detain
each and all of said animals until said charges are fully paid. But
[p*40] if the charges of landing, keeping, and feeding any of the
aforesaid animals shall not be paid by the owners thereof after fifteen
days of their being landed and placed in the custody of the said company
or corporation, then the said company or corporation, in order to
reimburse themselves for charges and expenses incurred, shall have
power, by resorting to judicial proceedings, to advertise said animals
for sale by auction, in any two newspapers published in the city of New
Orleans, for five days, and after the expiration of said five days, the
said company or corporation may proceed to sell by auction, as
advertised, the said animals, and the proceeds of such sales shall be
taken by the said company or corporation and applied to the payment of
the charges and expenses aforesaid, and other additional costs, and the
balance, if any, remaining from such sales, shall be bold to the credit
of and paid to the order or receipt of the owner of said animals. Any
person or persons, firm or corporation violating any of the provisions
of this act, or interfering with the privileges herein granted, or
landing, yarding, or keeping any animals in violation of the provisions
of this act, or to the injury of said company or corporation, shall be
liable to a fine or penalty of $250, to be recovered with costs of suit
before any court of competent jurisdiction.
The company shall, before the first of June, 1869, build and complete A
GRAND SLAUGHTERHOUSE of sufficient capacity to accommodate all butchers,
and in which to slaughter 500 animals per day; also a sufficient number
of sheds and stables shall be erected before the date aforementioned to
accommodate all the stock received at this port, all of which to be
accomplished before the date fixed for the removal of the stock landing,
as provided in the first section of this act, under penalty of
forfeiture of their charter.
SECTION 4. Be it further enacted, &c., That the said company or
corporation is hereby authorized to erect, at its own expense, one or
more landing places for livestock, as aforesaid, at any points or places
consistent with the provisions of this act, and to have and enjoy from
the completion thereof, and after the first day of June, A.D. 1869, the
exclusive privilege of having landed at their wharves or landing places
all animals intended for sale or slaughter in the parishes of Orleans
and Jefferson, and are hereby also authorized (in connection) to erect
at its own expense one or more slaughterhouses, at any points or places
[p*41] consistent with the provisions of this act, and to have and
enjoy, from the completion thereof, and after the first day of June,
A.D. 1869, the exclusive privilege of having slaughtered therein all
animals the meat of which is destined for sale in the parishes of
Orleans and Jefferson.
SECTION 5. Be it further enacted, &c., That whenever said
slaughterhouses and accessory buildings shall be completed and thrown
open for the use of the public, said company or corporation shall
immediately give public notice for thirty days, in the official journal
of the State, and within said thirty days' notice, and within, from and
after the first day of June, A.D. 1869, all other stock landings and
slaughterhouses within the parishes of Orleans, Jefferson, and St.
Bernard shall be closed, and it will no longer be lawful to slaughter
cattle, hogs, calves, sheep, or goats, the meat of which is determined
for sale within the parishes aforesaid, under a penalty of $100, for
each end every offence, recoverable, with costs of suit, before any
court if competent jurisdiction; that all animals to be slaughtered, the
meat whereof is determined for sale in the parishes of Orleans or
Jefferson, must be slaughtered in the slaughtehouses erected by the said
company or corporation, and upon a refusal of said company or
corporation to allow any animal or animals to be slaughtered after the
same has been certified by the inspector, as hereinafter provided, to be
fit for human food, the said company or corporation shall be subject to
a fine in each case of $250, recoverable, with costs of suit, before any
court of competent jurisdiction; said fines and penalties to be paid
over to the auditor of public accounts, which sum or sums shall be
credited to the educational fund.
SECTION 6. Be it further enacted, &c., That the governor of the
State of Louisiana shall appoint a competent person, clothed with police
powers, to act as inspector of all stock that is to be slaughtered, and
whose duty it will be to examine closely all animals intended to be
slaughtered, to ascertain whether they are sound and fit for human food
or not, and if sound and fit for human food, to furnish a certificate
stating that fact to the owners of the animals inspected, and without
said certificate no animals can be slaughtered for sale in the
slaughterhouses of said company or corporation. The owner of said
animals so inspected to pay the inspector 10 cents for each and every
animal so inspected, one-half of which fee the said inspector shall
retain for his services, and the other half of said fee shall be [p*42]
paid over to the auditor of public accounts, said payment to be made
quarterly. Said inspector shall give a good and sufficient bond to the
State, in the sum of $5,000, with sureties subject to the approval of
the governor of the State of Louisiana, for the faithful performance of
his duties. Said inspector shall be fined for dereliction of duty $50
for each neglect. Said inspector may appoint as many deputies as may be
necessary. The half of the fees collected as provided above, and paid
over to the auditor of public accounts, shall be placed to the credit of
the educational fund.
SECTION 7. Be it further enacted, &c., That all persons
slaughtering or causing to be slaughtered cattle or other animals in
said slaughterhouses shall pay to the said company or corporation the
following rates or perquisites, viz.: for all beeves, $1 each; for all
hogs and calves, 50 cents each; for all sheep, goats, and lambs, 30
cents each, and the said company or corporation shall be entitled to the
head, feet, gore, and entrails of all animals excepting hogs, entering
the slaughterhouses and killed therein, it being understood that the
heart and liver are not considered as a part of the gore and entrails,
and that the said heart and liver of all animals slaughtered in the
slaughterhouses of the said company or corporation shall belong, in all
cases, to the owners of the animals slaughtered.
SECTION 8. Be it .further enacted, &c., That all the fines and
penalties incurred for violations of this act shall be recoverable in a
civil suit before any court of competent jurisdiction, said suit to be
brought and prosecuted by said company or corporation in all cases where
the privileges granted to the said company or corporation by the
provisions of this act are violated or interfered with; that one-half of
all the fines and penalties recovered by the said company or corporation
[sic in copy -- REP.] in consideration of their prosecuting the
violation of this act, and the other half shall be paid over to the
auditor of public accounts, to the credit of the educational fund.
SECTION 9. Be it further enacted, &c., That said Crescent City
Livestock Landing and Slaughter-House Company shall have the right to
construct a railroad from their buildings to the limits of the city of
New Orleans, and shall have the right to run cars thereon, drawn by
horses or other locomotive power, as they may see fit; said railroad to
be built on either of the public roads running along the levee on each
side of the Mississippi [p*43] River. The said company or corporation
shall also have the right to establish such steam ferries as they may
see fit to run on the Mississippi River between their buildings and any
points or places on either side of said river.
SECTION 10. Be it further enacted, &c., That at the expiration of
twenty-five years from and after the passage of this act, the privileges
herein granted shall expire.
The parish of Orleans containing (as was said [n1] ) an area of 150
square miles, the parish of Jefferson of 384, and the parish of St.
Bernard of 620, the three parishes together 1154 square miles, and they
having between two and three hundred thousand people resident therein,
and, prior to the passage of the act above quoted, about 1,000 persons
employed daily in the business of procuring, preparing, and selling
animal food, the passage of the act necessarily produced great feeling.
Some hundreds of suits were brought on the one side or on the other; the
butchers, not included in the "monopoly" as it was called,
acting sometimes in combinations, in corporations, and companies and
sometimes by themselves, the same counsel, however, apparently
representing pretty much all of them. The ground of the opposition to
the slaughterhouse company's pretensions, so far as any cases were
finally passed on in this court, was that the act of the Louisiana
legislature made a monopoly and was a violation of the most important
provisions of the thirteenth and fourteenth Articles of Amendment to the
Constitution of the United States. The language relied on of these
articles is thus:
AMENDMENT XIII
either slavery nor involuntary servitude except as a punishment for
crime whereof the party shall have been duly convicted, shall exist
within the United States, nor any place subject to their jurisdiction.
AMENDMENT XIV
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. [p*44]
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.
The Supreme Court of Louisiana decided in favor of the company, and
five of the cases came into this court under the 25th section of the
Judiciary Act in December, 1870, where they were the subject of a
preliminary motion by the plaintiffs in error for an order in the nature
of a supersedeas. After this, that is to say, in March, 1871, a
compromise was sought to be effected, and certain parties professing,
apparently, to act in a representative way in behalf of the opponents to
the company, referring to a compromise that they assumed had been
effected, agreed to discontinue "all writs of error concerning the
said company, now pending in the Supreme Court of the United States;"
stipulating further "that their agreement should be sufficient
authority for any attorney to appear and move for the dismissal of all
said suits." Some of the cases were thus confessedly dismissed. But
the three of which the names are given as a subtitle at the head of this
report were, by certain of the butchers, asserted not to have been
dismissed. And Messrs. M. H. Carpenter, J. S. Black, and T. J. Durant,
in behalf of the new corporation, having moved to dismiss them also as
embraced in the agreement, affidavits were filed on the one side and on
the other; the affidavits of the butchers opposed to the "monopoly"
affirming that they were plaintiffs in error in these three cases, and
that they never consented to what had been done, and that no proper
authority had been given to do it. This matter was directed to be heard
with the merits. The case being advanced was first heard on these,
January 11th, 1872; Mr. Justice Nelson being indisposed and not in his
seat. Being ordered for reargument, it was heard again February 3d, 4th,
and 5th, 1873. [p*57] | |
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| Opinions
MILLER, J., Opinion of the Court
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| Mr.
Justice MILLER, now, April 14th, 1873, delivered the opinion of the
court.
These cases are brought here by writs of error to the Supreme Court of
the State of Louisiana. They arise out of the efforts of the butchers of
New Orleans to resist the Crescent City Livestock Landing and
Slaughter-House Company in the exercise of certain powers conferred by
the charter which created it, and which was granted by the legislature
of that State.
The cases named on a preceding page, [*] with others which have been
brought here and dismissed by agreement, were all decided by the Supreme
Court of Louisiana in favor of the Slaughter-House Company, as we shall
hereafter call it for the sake of brevity, and these writs are brought
to reverse those decisions.
The records were filed in this court in 1870, and were argued before it
at length on a motion made by plaintiffs in error for an order in the
nature of an injunction or supersedeas, [p*58] pending the action of the
court on the merits. The opinion on that motion is reported in 10
Wallace 273.
On account of the importance of the questions involved in these cases,
they were, by permission of the court, taken up out of their order on
the docket and argued in January, 1872. At that hearing, one of the
justices was absent, and it was found, on consultation, that there was a
diversity of views among those who were present. Impressed with the
gravity of the questions raised in the argument, the court, under these
circumstances, ordered that the cases be placed on the calendar and
reargued before a full bench. This argument was had early in February
last.
Preliminary to the consideration of those questions is a motion by the
defendant to dismiss the cases on the ground that the contest between
the parties has been adjusted by an agreement made since the records
came into this court, and that part of that agreement is that these
writs should be dismissed. This motion was heard with the argument on
the merits, and was much pressed by counsel. It is supported by
affidavits and by copies of the written agreement relied on. It is
sufficient to say of these that we do not find in them satisfactory
evidence that the agreement is binding upon all the parties to the
record who are named as plaintiffs in the several writs of error, and
that there are parties now before the court, in each of the three cases,
the names of which appear on a preceding page, [*] who have not
consented to their dismissal, and who are not bound by the action of
those who have so consented. They have a right to be heard, and the
motion to dismiss cannot prevail.
The records show that the plaintiffs in error relied upon, and asserted
throughout the entire course of the litigation in the State courts, that
the grant of privileges in the charter of defendant, which they were
contesting, was a violation of the most important provisions of the
thirteenth and fourteenth articles of amendment of the Constitution of
the United States. The jurisdiction and the duty of this court [p*59] to
review the judgment of the State court on those questions is clear, and
is imperative.
The statute thus assailed as unconstitutional was passed March 8th,
1869, and is entitled
An act to protect the health of the city of New Orleans, to locate the
stock landings and slaughterhouses, and to incorporate the Crescent City
Livestock Landing aud Slaughter-House Company.
The first section forbids the landing or slaughtering of animals whose
flesh is intended for food within the city of New Orleans and other
parishes and boundaries named and defined, or the keeping or
establishing any slaughterhouses or abattoirs within those limits except
by the corporation thereby created, which is also limited to certain
places afterwards mentioned. Suitable penalties are enacted for
violations of this prohibition.
The second section designates the corporators, gives the name to the
corporation, and confers on it the usual corporate powers.
The third and fourth sections authorize the company to establish and
erect within certain territorial limits, therein defined, one or more
stockyards, stock landings, and slaughterhouses, and imposes upon it the
duty of erecting, on or before the first day of June, 1869, one grand
slaughterhouse of sufficient capacity for slaughtering five hundred
animals per day.
It declares that the company, after it shall have prepared all the
necessary buildings, yards, and other conveniences for that purpose,
shall have the sole and exclusive privilege of conducting and carrying
on the livestock landing and slaughterhouse business within the limits
and privilege granted by the act, and that all such animals shall be
landed at the stock landings and slaughtered at the slaughterhouses of
the company, and nowhere else. Penalties are enacted for infractions of
this provision, and prices fixed for the maximum charges of the company
for each steamboat and for each animal landed.
Section five orders the closing up of all other stock landings [p*60]
and slaughterhouses after the first day of June, in the parishes of
Orleans, Jefferson, and St. Bernard, and makes it the duty of the
company to permit any person to slaughter animals in their
slaughterhouses under a heavy penalty for each refusal. Another section
fixes a limit to the charges to be made by the company for each animal
so slaughtered in their building, and another provides for an inspection
of all animals intended to be so slaughtered by an officer appointed by
the governor of the State for that purpose.
These are the principal features of the statute, and are all that have
any bearing upon the questions to be decided by us.
This statute is denounced not only as creating a monopoly and
conferring odious and exclusive privileges upon a small number of
persons at the expense of the great body of the community of New
Orleans, but it is asserted that it deprives a large and meritorious
class of citizens -- the whole of the butchers of the city -- of the
right to exercise their trade, the business to which they have been
trained and on which they depend for the support of themselves and their
families, and that the unrestricted exercise of the business of
butchering is necessary to the daily subsistence of the population of
the city.
But a critical examination of the act hardly justifies these
assertions.
It is true that it grants, for a period of twenty-five years, exclusive
privileges. And whether those privileges are at the expense of the
community in the sense of a curtailment of any of their fundamental
rights, or even in the sense of doing them an injury, is a question open
to considerations to be hereafter stated. But it is not true that it
deprives the butchers of the right to exercise their trade, or imposes
upon them any restriction incompatible with its successful pursuit, or
furnishing the people of the city with the necessary daily supply of
animal food.
The act divides itself into two main grants of privilege, the one in
reference to stock landings and stockyards, and [p*61] the other to
slaughterhouses. That the landing of livestock in large droves, from
steamboats on the bank of the river, and from railroad trains, should,
for the safety and comfort of the people and the care of the animals, be
limited to proper places, and those not numerous it needs no argument to
prove. Nor can it be injurious to the general community that, while the
duty of making ample preparation for this is imposed upon a few men, or
a corporation, they should, to enable them to do it successfully, have
the exclusive right of providing such landing places, and receiving a
fair compensation for the service. I
t is, however, the slaughterhouse privilege which is mainly relied on
to justify the charges of gross injustice to the public and invasion of
private right.
It is not, and cannot be successfully controverted that it is both the
right and the duty of the legislative body -- the supreme power of the
State or municipality -- to prescribe and determine the localities where
the business of slaughtering for a great city may be conducted. To do
this effectively, it is indispensable that all persons who slaughter
animals for food shall do it in those places and nowhere else.
The statute under consideration defines these localities and forbids
slaughtering in any other. It does not, as has been asserted, prevent
the butcher from doing his own slaughtering. On the contrary, the
Slaughter-House Company is required, under a heavy penalty, to permit
any person who wishes to do so to slaughter in their houses, and they
are bound to make ample provision for the convenience of all the
slaughtering for the entire city. The butcher then is still permitted to
slaughter, to prepare, and to sell his own meats; but he is required to
slaughter at a specified place, and to pay a reasonable compensation for
the use of the accommodations furnished him at that place.
The wisdom of the monopoly granted by the legislature may be open to
question, but it is difficult to see a justification for the assertion
that the butchers are deprived of the right to labor in their
occupation, or the people of their daily service in preparing food, or
how this statute, with the [p*62] duties and guards imposed upon the
company, can be said to destroy the business of the butcher, or
seriously interfere with its pursuit.
The power here exercised by the legislature of Louisiana is, in its
essential nature, one which has been, up to the present period in the
constitutional history of this country, always conceded to belong to the
States, however it may now be questioned in some of its details.
Unwholesome trades, slaughterhouses, operations offensive to the
senses, the deposit of powder, the application of steam power to propel
cars, the building with combustible materials, and the burial of the
dead, may all,
says Chancellor Kent, [n2]
be interdicted by law, in the midst of dense masses of population, on
the general and rational principle that every person ought so to use his
property as not to injure his neighbors, and that private interests must
be made subservient to the general interests of the community.
This is called the police power, and it is declared by Chief Justice
Shaw [n3] that it is much easier to perceive and realize the existence
and sources of it than to mark its boundaries, or prescribe limits to
its exercise.
This power is, and must be from its very nature, incapable of any very
exact definition or limitation. Upon it depends the security of social
order, the life and health of the citizen, the comfort of an existence
in a thickly populated community, the enjoyment of private social life,
and the beneficial use of property. "It extends," says another
eminent judge, [n4]
to the protection of the lives, limbs, health, comfort, and quiet of
all persons, and the protection of all property within the State, . . .
and persons and property are subjected to all kinds of restraints and
burdens in order to secure the general comfort, health, and prosperity
of the State. Of the perfect right of the legislature to do this, no
question ever was, or, upon acknowledged general principles, ever can be
made, so far as natural persons are concerned. [p*63]
The regulation of the place and manner of conducting the slaughtering
of animals, and the business of butchering within a city, and the
inspection of the animals to be killed for meat, and of the meat
afterwards, are among the most necessary and frequent exercises of this
power. It is not, therefore, needed that we should seek for a
comprehensive definition, but rather look for the proper source of its
exercise.
In Gibbons v. Ogden, [n5] Chief Justice Marshall, speaking of
inspection laws passed by the States, says:
They form a portion of that immense mass of legislation which controls
everything within the territory of a State not surrendered to the
General Government -- all which can be most advantageously administered
by the States themselves. Inspection laws, quarantine laws, health laws
of every description, as well as laws for regulating the internal
commerce of a State, and those which respect turnpike roads, ferries, &c.,
are component parts. No direct general power over these objects is
granted to Congress, and consequently they remain subject to State
legislation.
The exclusive authority of State legislation over this subject is
strikingly illustrated in the case of the City of New York v. Miln.
[n6] In that case, the defendant was prosecuted for failing to comply
with a statute of New York which required of every master of a vessel
arriving from a foreign port in that of New York City to report the
names of all his passengers, with certain particulars of their age,
occupation, last place of settlement, and place of their birth. It was
argued that this act was an invasion of the exclusive right of Congress
to regulate commerce. And it cannot be denied that such a statute
operated at least indirectly upon the commercial intercourse between the
citizens of the United States and of foreign countries. But
notwithstanding this, it was held to be an exercise of the police power
properly within the control of the State, and unaffected by the clause
of the Constitution which conferred on Congress the right to regulate
commerce. [p*64]
To the same purpose are the recent cases of the The License Tax,
[n7] and United States v. De Witt. [n8] In the latter case, an
act of Congress which undertook as a part of the internal revenue laws
to make it a misdemeanor to mix for sale naphtha and illuminating oils,
or to sell oil of petroleum inflammable at less than a prescribed
temperature, was held to be void because, as a police regulation, the
power to make such a law belonged to the States, and did not belong to
Congress.
It cannot be denied that the statute under consideration is aptly
framed to remove from the more densely populated part of the city the
noxious slaughterhouses, and large and offensive collections of animals
necessarily incident to the slaughtering business of a large city, and
to locate them where the convenience, health, and comfort of the people
require they shall be located. And it must be conceded that the means
adopted by the act for this purpose are appropriate, are stringent, and
effectual. But it is said that, in creating a corporation for this
purpose, and conferring upon it exclusive privileges -- privileges which
it is said constitute a monopoly -- the legislature has exceeded its
power. If this statute had imposed on the city of New Orleans precisely
the same duties, accompanied by the same privileges, which it has on the
corporation which it created, it is believed that no question would have
been raised as to its constitutionality. In that case the effect on the
butchers in pursuit of their occupation and on the public would have
been the same as it is now. Why cannot the legislature confer the same
powers on another corporation, created for a lawful and useful public
object, that it can on the municipal corporation already existing? That
wherever a legislature has the right to accomplish a certain result, and
that result is best attained by means of a corporation, it has the right
to create such a corporation, and to endow it with the powers necessary
to effect the desired and lawful purpose, seems hardly to admit of
debate. The proposition is ably discussed and affirmed in the case of
McCulloch v. The State of Maryland [n9] in relation to the power
of Congress to organize [p*65] the Bank of the United States to aid in
the fiscal operations of the government.
It can readily be seen that the interested vigilance of the corporation
created by the Louisiana legislature will be more efficient in enforcing
the limitation prescribed for the stock landing and slaughtering
business for the good of the city than the ordinary efforts of the
officers of the law.
Unless, therefore, it can be maintained that the exclusive privilege
granted by this charter to the corporation is beyond the power of the
legislature of Louisiana, there can be no just exception to the validity
of the statute. And, in this respect, we are not able to see that these
privileges are especially odious or objectionable. The duty imposed as a
consideration for the privilege is well defined, and its enforcement
well guarded. The prices or charges to be made by the company are
limited by the statute, and we are not advised that they are, on the
whole, exorbitant or unjust.
The proposition is therefore reduced to these terms: can any exclusive
privileges be granted to any of its citizens, or to a corporation, by
the legislature of a State?
The eminent and learned counsel who has twice argued the negative of
this question has displayed a research into the history of monopolies in
England and the European continent only equalled by the eloquence with
which they are denounced.
But it is to be observed that all such references are to monopolies
established by the monarch in derogation of the rights of his subjects,
or arise out of transactions in which the people were unrepresented, and
their interests uncared for. The great Case of Monopolies, reported by
Coke and so fully stated in the brief, was undoubtedly a contest of the
commons against the monarch. The decision is based upon the ground that
it was against common law, and the argument was aimed at the unlawful
assumption of power by the crown, for whoever doubted the authority of
Parliament to change or modify the common law? The discussion in the
House of Commons cited from Macaulay clearly [p*66] establishes that the
contest was between the crown and the people represented in Parliament.
But we think it may be safely affirmed that the Parliament of Great
Britain, representing the people in their legislative functions, and the
legislative bodies of this country, have, from time immemorial to the
present day, continued to grant to persons and corporations exclusive
privileges -- privileges denied to other citizens -- privileges which
come within any just definition of the word monopoly, as much as those
now under consideration, and that the power to do this has never been
questioned or denied. Nor can it be truthfully denied that some of the
most useful and beneficial enterprises set on foot for the general good
have been made successful by means of these exclusive rights, and could
only have been conducted to success in that way.
It may, therefore, be considered as established that the authority of
the legislature of Louisiana to pass the present statute is ample unless
some restraint in the exercise of that power be found in the
constitution of that State or in the amendments to the Constitution of
the United States, adopted since the date of the decisions we have
already cited.
If any such restraint is supposed to exist in the constitution of the
State, the Supreme Court of Louisiana having necessarily passed on that
question, it would not be open to review in this court.
The plaintiffs in error, accepting this issue, allege that the statute
is a violation of the Constitution of the United States in these several
particulars:
That it creates an involuntary servitude forbidden by the thirteenth
article of amendment; That it abridges the privileges and immunities of
citizens of the United States;
That it denies to the plaintiffs the equal protection of the laws; and,
That it deprives them of their property without due process of law,
contrary to the provisions of the first section of the fourteenth
article of amendment. [p*67]
This court is thus called upon for the first time to give construction
to these articles.
We do not conceal from ourselves the great responsibility which this
duty devolves upon us. No questions so far-reaching and pervading in
their consequences, so profoundly interesting to the people of this
country, and so important in their bearing upon the relations of the
United States, of the several States to each other, and to the citizens
of the States and of the United States, have been before this court
during the official life of any of its present members. We have given
every opportunity for a full hearing at the bar; we have discussed it
freely and compared views among ourselves; we have taken ample time for
careful deliberation, and we now propose to announce the judgments which
we have formed in the construction of those articles, so far as we have
found them necessary to the decision of the cases before us, and beyond
that, we have neither the inclination nor the right to go.
Twelve articles of amendment were added to the Federal Constitution
soon after the original organization of the government under it in 1789.
Of these, all but the last were adopted so soon afterwards as to justify
the statement that they were practically contemporaneous with the
adoption of the original; and the twelfth, adopted in eighteen hundred
and three, was so nearly so as to have become, like all the others,
historical and of another age. But within the first eight years, three
other articles of amendment of vast importance have been added by the
voice of the people to that now venerable instrument.
The most cursory glance at these articles discloses a unity of purpose,
when taken in connection with the history of the times, which cannot
fail to have an important bearing on any question of doubt concerning
their true meaning. Nor can such doubts, when any reasonably exist, be
safely and rationally solved without a reference to that history, for in
it is found the occasion and the necessity for recurring again to the
great source of power in this country, the people of the States, for
additional guarantees of human rights, [p*68] additional powers to the
Federal government; additional restraints upon those of the States.
Fortunately, that history is fresh within the memory of us all, and its
leading features, as they bear upon the matter before us, free from
doubt.
The institution of African slavery, as it existed in about half the
States of the Union, and the contests pervading the public mind for many
years between those who desired its curtailment and ultimate extinction
and those who desired additional safeguards for its security and
perpetuation, culminated in the effort, on the part of most of the
States in which slavery existed, to separate from the Federal government
and to resist its authority. This constituted the war of the rebellion,
and whatever auxiliary causes may have contributed to bring about this
war, undoubtedly the overshadowing and efficient cause was African
slavery.
In that struggle, slavery, as a, legalized social relation, perished.
It perished as a necessity of the bitterness and force of the conflict.
When the armies of freedom found themselves upon the soil of slavery,
they could do nothing less than free the poor victims whose enforced
servitude was the foundation of the quarrel. And when hard-pressed in
the contest, these men (for they proved themselves men in that terrible
crisis) offered their services and were accepted by thousands to aid in
suppressing the unlawful rebellion, slavery was at an end wherever the
Federal government succeeded in that purpose. The proclamation of
President Lincoln expressed an accomplished fact as to a large portion
of the insurrectionary districts when he declared slavery abolished in
them all. But the war being over, those who had succeeded in
reestablishing the authority of the Federal government were not content
to permit this great act of emancipation to rest on the actual results
of the contest or the proclamation of the Executive, both of which might
have been questioned in after times, and they determined to place this
main and most valuable result in the Constitution of the restored Union
as one of its fundamental articles. Hence, the thirteenth article of
amendment of that instrument. [p*69] Its two short sections seem hardly
to admit of construction, so vigorous is their expression and so
appropriate to the purpose we have indicated.
1. 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.
2. Congress shall have power to enforce this article by appropriate
legislation.
To withdraw the mind from the contemplation of this grand yet simple
declaration of the personal freedom of all the human race within the
jurisdiction of this government -- a declaration designed to establish
the freedom of four millions of slaves -- and with a microscopic search
endeavor to find in it a reference to servitudes which may have been
attached to property in certain localities requires an effort, to say
the least of it.
That a personal servitude was meant is proved by the use of the word "involuntary,"
which can only apply to human beings. The exception of servitude as a
punishment for crime gives an idea of the class of servitude that is
meant. The word servitude is of larger meaning than slavery, as the
latter is popularly understood in this country, and the obvious purpose
was to forbid all shades and conditions of African slavery. It was very
well understood that, in the form of apprenticeship for long terms, as
it had been practiced in the West India Islands, on the abolition of
slavery by the English government, or by reducing the slaves to the
condition of serfs attached to the plantation, the purpose of the
article might have been evaded if only the word slavery had been used.
The case of the apprentice slave, held under a law of Maryland,
liberated by Chief Justice Chase on a writ of habeas corpus under this
article, illustrates this course of observation. [n10] And it is all
that we deem necessary to say on the application of that article to the
statute of Louisiana, now under consideration. [p*70]
The process of restoring to their proper relations with the Federal
government and with the other States those which had sided with the
rebellion, undertaken under the proclamation of President Johnson in
1865 and before the assembling of Congress, developed the fact that,
notwithstanding the formal recognition by those States of the abolition
of slavery, the condition of the slave race would, without further
protection of the Federal government, be almost as bad as it was before.
Among the first acts of legislation adopted by several of the States in
the legislative bodies which claimed to be in their normal relations
with the Federal government were laws which imposed upon the colored
race onerous disabilities and burdens and curtailed their rights in the
pursuit of life, liberty, and property to such an extent that their
freedom was of little value, while they had lost the protection which
they had received from their former owners from motives both of interest
and humanity.
They were in some States forbidden to appear in the towns in any other
character than menial servants. They were required to reside on and
cultivate the soil without the right to purchase or own it. They were
excluded from many occupations of gain, and were not permitted to give
testimony in the courts in any case where a white man was a party. It
was said that their lives were at the mercy of bad men, either because
the laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have
been mingled with their presentation, forced upon the statesmen who had
conducted the Federal government in safety through the crisis of the
rebellion, and who supposed that, by the thirteenth article of
amendment, they had secured the result of their labors, the conviction
that something more was necessary in the way of constitutional
protection to the unfortunate race who had suffered so much. They
accordingly passed through Congress the proposition for the fourteenth
amendment, and they declined to treat as restored to their full
participation in the government of the Union the States which had been
in insurrection until they [p*71] ratified that article by a formal vote
of their legislative bodies.
Before we proceed to examine more critically the provisions of this
amendment, on which the plaintiffs in error rely, let us complete and
dismiss the history of the recent amendments, as that history relates to
the general purpose which pervades them all. A few years' experience
satisfied the thoughtful men who had been the authors of the other two
amendments that, notwithstanding the restraints of those articles on the
States and the laws passed under the additional powers granted to
Congress, these were inadequate for the protection of life, liberty, and
property, without which freedom to the slave was no boon. They were in
all those States denied the right of suffrage. The laws were
administered by the white man alone. It was urged that a race of men
distinctively marked, as was the negro, living in the midst of another
and dominant race, could never be fully secured in their person and
their property without the right of suffrage.
Hence, the fifteenth amendment, which declares that
the right of a citizen of the United States to vote shall not be denied
or abridged by any State on account of race, color, or previous
condition of servitude.
The negro having, by the fourteenth amendment, been declared to be a
citizen of the United States, is thus made a voter in every State of the
Union.
We repeat, then, in the light of this recapitulation of events, almost
too recent to be called history, but which are familiar to us all, and
on the most casual examination of the language of these amendments, no
one can fail to be impressed with the one pervading purpose found in
them all, lying at the foundation of each, and without which none of
them would have been even suggested; we mean the freedom of the slave
race, the security and firm establishment of that freedom, and the
protection of the newly made freeman and citizen from the oppressions of
those who had formerly exercised unlimited dominion over him. It is true
that only the fifteenth amendment, in terms, [p*72] mentions the negro
by speaking of his color and his slavery. But it is just as true that
each of the other articles was addressed to the grievances of that race,
and designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this
protection. Both the language and spirit of these articles are to have
their fair and just weight in any question of construction. Undoubtedly
while negro slavery alone was in the mind of the Congress which proposed
the thirteenth article, it forbids any other kind of slavery, now or
hereafter. If Mexican peonage or the Chinese coolie labor system shall
develop slavery of the Mexican of Chinese race within our territory,
this amendment may safely be trusted to make it void. And so, if other
rights are assailed by the States which properly and necessarily fall
within the protection of these articles, that protection will apply,
though the party interested may not be of African descent. But what we
do say, and what we wish to be understood, is that, in any fair and just
construction of any section or phrase of these amendments, it is
necessary to look to the purpose which we have said was the pervading
spirit of them all, the evil which they were designed to remedy, and the
process of continued addition to the Constitution, until that purpose
was supposed to be accomplished as far as constitutional law can
accomplish it.
The first section of the fourteenth article to which our attention is
more specially invited opens with a definition of citizenship -- not
only citizenship of the United States, but citizenship of the States. No
such definition was previously found in the Constitution, nor had any
attempt been made to define it by act of Congress. It had been the
occasion of much discussion in the courts, by the executive departments,
and in the public journals. It had been said by eminent judges that no
man was a citizen of the United States except as he was a citizen of one
of the States composing the Union. Those, therefore, who had been born
and resided always in the District of Columbia or in the Territories,
though within the United States, were not citizens. Whether [p*73] this
proposition was sound or not had never been judicially decided. But it
had been held by this court, in the celebrated Dred Scott case, only a
few years before the outbreak of the civil war, that a man of African
descent, whether a slave or not, was not and could not be a citizen of a
State or of the United States. This decision, while it met the
condemnation of some of the ablest statesmen and constitutional lawyers
of the country, had never been overruled, and if was to be accepted as a
constitutional limitation of the right of citizenship, then all the
negro race who had recently been made freemen were still not only not
citizens, but were incapable of becoming so by anything short of an
amendment to the Constitution.
To remove this difficulty primarily, and to establish clear and
comprehensive definition of citizenship which should declare what should
constitute citizenship of the United States and also citizenship of a
State, the first clause of the first section was framed.
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.
The first observation we have to make on this clause is that it puts at
rest both the questions which we stated to have been the subject of
differences of opinion. It declares that persons may be citizens of the
United States without regard to their citizenship of a particular State,
and it overturns the Dred Scott decision by making all persons born
within the United States and subject to its jurisdiction citizens of the
United States. That its main purpose was to establish the citizenship of
the negro can admit of no doubt. The phrase, "subject to its
jurisdiction" was intended to exclude from its operation children
of ministers, consuls, and citizens or subjects of foreign States born
within the United States.
The next observation is more important in view of the arguments of
counsel in the present case. It is that the distinction between
citizenship of the United States and citizenship of a State is clearly
recognized and established. [p*74] Not only may a man be a citizen of
the United States without being a citizen of a State, but an important
element is necessary to convert the former into the latter. He must
reside within the State to make him a citizen of it, but it is only
necessary that he should be born or naturalized in the United States to
be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or circumstances
in the individual.
We think this distinction and its explicit recognition in this
amendment of great weight in this argument, because the next paragraph
of this same section, which is the one mainly relied on by the
plaintiffs in error, speaks only of privileges and immunities of
citizens of the United States, and does not speak of those of citizens
of the several States. The argument, however, in favor of the plaintiffs
rests wholly on the assumption that the citizenship is the same, and the
privileges and immunities guaranteed by the clause are the same.
The language is, "No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States." It is a little remarkable, if this clause was intended as
a protection to the citizen of a State against the legislative power of
his own State, that the word citizen of the State should be left out
when it is so carefully used, and used in contradistinction to citizens
of the United States in the very sentence which precedes it. It is too
clear for argument that the change in phraseology was adopted
understandingly and, with a purpose.
Of the privileges and immunities of the citizen of the United States,
and of the privileges and immunities of the citizen of the State, and
what they respectively are, we will presently consider; but we wish to
state here that it is only the former which are placed by this clause
under the protection of the Federal Constitution, and that the latter,
whatever they may be, are not intended to have any additional protection
by this paragraph of the amendment. [p*75]
If, then, there is a difference between the privileges and immunities
belonging to a citizen of the United States as such and those belonging
to the citizen of the State as such, the latter must rest for their
security and protection where they have heretofore rested, for they are
not embraced by this paragraph of the amendment.
The first occurrence of the words "privileges and immunities"
in our constitutional history is to be found in the fourth of the
articles of the old Confederation.
It declares
that the better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union, the
free inhabitants of each of these States, paupers, vagabonds, and
fugitives from justice excepted, shall be entitled to all the privileges
and immunities of free citizens in the several States, and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions, and restrictions as the
inhabitants thereof respectively.
In the Constitution of the United States, which superseded the Articles
of Confederation, the corresponding provision is found in section two of
the fourth article, in the following words: "The citizens of each
State shall be entitled to all the privileges and immunities of citizens
of the several States."
There can be but little question that the purpose of both these
provisions is the same, and that the privileges and immunities intended
are the same in each. In the article of the Confederation, we have some
of these specifically mentioned, and enough perhaps to give some general
idea of the class of civil rights meant by the phrase.
Fortunately, we are not without judicial construction of this clause of
the Constitution. The first and the leading case on the subject is that
of Corfield v. Coryell, decided by Mr. Justice Washington in the
Circuit Court for the District of Pennsylvania in 1823. [n11] [p*76]
"The inquiry," he says,
is what are the privileges and immunities of citizens of the several
States? We feel no hesitation in confining these expressions to those
privileges and immunities which are fundamental; which belong of right
to the citizens of all free governments, and which have at all times
been enjoyed by citizens of the several States which compose this Union,
from the time of their becoming free, independent, and sovereign. What
these fundamental principles are it would be more tedious than difficult
to enumerate. They may all, however, be comprehended under the following
general 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.
This definition of the privileges and immunities of citizens of the
States is adopted in the main by this court in the recent case of Ward
v. The State of Maryland, [n12] while it declines to undertake an
authoritative definition beyond what was necessary to that decision. The
description, when taken to include others not named, but which are of
the same general character, embraces nearly every civil right for the
establishment and protection of which organized government is
instituted. They are, in the language of Judge Washington, those rights
which are fundamental. Throughout his opinion, they are spoken of as
rights belonging to the individual as a citizen of a State. They are so
spoken of in the constitutional provision which he was construing. And
they have always been held to be the class of rights which the State
governments were created to establish and secure.
In the case of Paul v. Virginia, [n13] the court, in expounding
this clause of the Constitution, says that
the privileges and immunities secured to citizens of each State in the
several States by the provision in question are those privileges and
immunities which are common to the citizens in the latter [p*77] States
under the constitution and laws by virtue of their being citizens.
The constitutional provision there alluded to did not create those
rights, which it called privileges and immunities of citizens of the
States. It threw around them in that clause no security for the citizen
of the State in which they were claimed or exercised. Nor did it profess
to control the power of the State governments over the rights of its own
citizens.
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 would be the vainest show of learning to attempt to prove by
citations of authority that, up to the adoption of the recent
amendments, no claim or pretence was set up that those rights depended
on the Federal government for their existence or protection beyond the
very few express limitations which the Federal Constitution imposed upon
the States -- such, for instance, as the prohibition against ex post
facto laws, bills of attainder, and laws impairing the obligation of
contracts. But, with the exception of these and a few other
restrictions, the entire domain of the privileges and immunities of
citizens of the States, as above defined, lay within the constitutional
and legislative power of the States, and without that of the Federal
government. Was it the purpose of the fourteenth amendment, by the
simple declaration that no State should make or enforce any law which
shall abridge the privileges and immunities of citizens of the United
States, to transfer the security and protection of all the civil rights
which we have mentioned, from the States to the Federal government? And
where it is declared that Congress Shall have the power to enforce that
article, was it intended to bring within the power of Congress the
entire domain of civil rights heretofore belonging exclusively to the
States?
All this and more must follow if the proposition of the [p*78]
plaintiffs in error be sound. For not only are these rights subject to
the control of Congress whenever, in its discretion, any of them are
supposed to be abridged by State legislation, but that body may also
pass laws in advance, limiting and restricting the exercise of
legislative power by the States, in their most ordinary and usual
functions, as in its judgment it may think proper on all such subjects.
And still further, such a construction followed by the reversal of the
judgments of the Supreme Court of Louisiana in these cases, would
constitute this court a perpetual censor upon all legislation of the
States, on the civil rights of their own citizens, with authority to
nullify such as it did not approve as consistent with those rights, as
they existed at the time of the adoption of this amendment. The
argument, we admit, is not always the most conclusive which is drawn
from the consequences urged against the adoption of a particular
construction of an instrument. But when, as in the case before us, these
consequences are so serious, so far-reaching and pervading, so great a
departure from the structure and spirit of our institutions; when the
effect is to fetter and degrade the State governments by subjecting them
to the control of Congress in the exercise of powers heretofore
universally conceded to them of the most ordinary and fundamental
character; when, in fact, it radically changes the whole theory of the
relations of the State and Federal governments to each other and of both
these governments to the people, the argument has a force that is
irresistible in the absence of language which expresses such a purpose
too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress
which proposed these amendments, nor by the legislatures of the States
which ratified them.
Having shown that the privileges and immunities relied on in the
argument are those which belong to citizens of the States as such, and
that they are left to the State governments for security and protection,
and not by this article placed under the special care of the Federal
government, we may hold ourselves excused from defining the privileges
[p*79] and immunities of citizens of the United States which no State
can abridge until some case involving those privileges may make it
necessary to do so.
But lest it should be said that no such privileges and immunities are
to he found if those we have been considering are excluded, we venture
to suggest some which owe their existence to the Federal government, its
national character, its Constitution, or its laws.
One of these is well described in the case of Crandall v. Nevada.
[n14] It is said to be the right of the citizen of this great country,
protected by implied guarantees of its Constitution,
to come to the seat of government to assert any claim he may have upon
that government, to transact any business he may have with it, to seek
its protection, to share its offices, to engage in administering its
functions. He has the right of free access to its seaports, through
which operations of foreign commerce are conducted, to the
sub-treasuries, land offices, and courts of justice in the several
States.
And quoting from the language of Chief Justice Taney in another case,
it is said
that, for all the great purposes for which the Federal government
was established, we are one people, with one common country, we
are all citizens of the United States
and it is, as such citizens, that their rights are supported in this
court in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand the
care and protection of the Federal government over his life, liberty,
and property when on the high seas or within the jurisdiction of a
foreign government. Of this there can be no doubt, nor that the right
depends upon his character as a citizen of the United States. The right
to peaceably assemble and petition for redress of grievances, the
privilege of the writ of habeas corpus, are rights of the citizen
guaranteed by the Federal Constitution. The right to use the navigable
waters of the United States, however they may penetrate the territory of
the several States, all rights secured to our citizens by treaties with
foreign nations, [p*80] are dependent upon citizenship of the United
States, and not citizenship of a State. One of these privileges is
conferred by the very article under consideration. It is that a citizen
of the United States can, of his own volition, become a citizen of any
State of the Union by a bona fide residence therein, with the same
rights as other citizens of that State. To these may be added the rights
secured by the thirteenth and fifteenth articles of amendment, and by
the other clause of the fourteenth, next to be considered.
But it is useless to pursue this branch of the inquiry, since we are of
opinion that the rights claimed by these plaintiffs in error, if they
have any existence, are not privileges and immunities of citizens of the
United States within the meaning of the clause of the thirteenth
amendment under consideration.
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 its laws.
The argument has not been much pressed in these cases that the
defendant's charter deprives the plaintiffs of their property without
due process of law, or that it denies to them the equal protection of
the law. The first of these paragraphs has been in the Constitution
since the adoption of the fifth amendment, as a restraint upon the
Federal power. It is also to be found in some form of expression in the
constitutions of nearly all the States as a restraint upon the power of
the States. This law, then, has practically been the same as it now is
during the existence of the government, except so far as the present
amendment may place the restraining power over the States in this matter
in the hands of the Federal government.
We are not without judicial interpretation, therefore, both State and
National, of the meaning of this clause. And it [p*81] is sufficient to
say that under no construction of that provision that we have ever seen,
or any that we deem admissible, can the restraint imposed by the State
of Louisiana upon the exercise of their trade by the butchers of New
Orleans be held to be a deprivation of property within the meaning of
that provision.
"Nor shall any State deny to any person within its jurisdiction
the equal protection of the laws."
In the light of the history of these amendments, and the pervading
purpose of them, which we have already discussed, it is not difficult to
give a meaning to this clause. The existence of laws in the States where
the newly emancipated negroes resided, which discriminated with gross
injustice and hardship against them as a class, was the evil to be
remedied by this clause, and by it such laws are forbidden.
If, however, the States did not conform their laws to its requirements,
then by the fifth section of the article of amendment Congress was
authorized to enforce it by suitable legislation. We doubt very much
whether any action of a State not directed by way of discrimination
against the negroes as a class, or on account of their race, will ever
be held to come within the purview of this provision. It is so clearly a
provision for that race and that emergency that a strong case would be
necessary for its application to any other. But as it is a State that is
to be dealt with, and not alone the validity of its laws, we may safely
leave that matter until Congress shall have exercised its power, or some
case of State oppression, by denial of equal justice in its courts,
shall have claimed a decision at our hands. We find no such case in the
one before us, and do not deem it necessary to go over the argument
again, as it may have relation to this particular clause of the
amendment.
In the early history of the organization of the government, its
statesmen seem to have divided on the line which should separate the
powers of the National government from those of the State governments,
and though this line has [p*82] never been very well defined in public
opinion, such a division has continued from that day to this.
The adoption of the first eleven amendments to the Constitution so soon
after the original instrument was accepted shows a prevailing sense of
danger at that time from the Federal power. And it cannot be denied that
such a jealousy continued to exist with many patriotic men until the
breaking out of the late civil war. It was then discovered that the true
danger to the perpetuity of the Union was in the capacity of the State
organizations to combine and concentrate all the powers of the State,
and of contiguous States, for a determined resistance to the General
Government.
Unquestionably this has given great force to the argument, and added
largely to the number of those who believe in the necessity of a strong
National government.
But, however pervading this sentiment, and however it may have
contributed to the adoption of the amendments we have been considering,
we do not see in those amendments any purpose to destroy the main
features of the general system. Under the pressure of all the excited
feeling growing out of the war, our statesmen have still believed that
the existence of the State with powers for domestic and local
government, including the regulation of civil rights the rights of
person and of property was essential to the perfect working of our
complex form of government, though they have thought proper to impose
additional limitations on the States, and to confer additional power on
that of the Nation.
But whatever fluctuations may be seen in the history of public opinion
on this subject during the period of our national existence, we think it
will be found that this court, so far as its functions required, has
always held with a steady and an even hand the balance between State and
Federal power, and we trust that such may continue to be the history of
its relation to that subject so long as it shall have duties to perform
which demand of it a construction of the Constitution or of any of its
parts. [p*83]
The judgments of the Supreme Court of Louisiana in these cases are
AFFIRMED.
*
The Butchers' Benevolent Association of New Orleans v. The Crescent
City Live-Stock Landing and Slaughter-House Company.
Paul Esteban, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B.
Beaubay, William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J.
Gitzinger, J. P. Aycock, D. Verges, The Live-Stock Dealers' and
Butchers' Association of New Orleans, and Charles Cavaroc v. The State
of Louisiana, ex rel. S. Belden, Attorney-General.
The Butchers' Benevolent Association of New Orleans v. The Crescent
City Live-Stock Landing and Slaughter-House Company
1. See infra, pp. 85, 86.
2. 2 Commentaries 340.
3. Commonwealth v. Alger, 7 Cushing 84.
4. Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont
149.
5. 9 Wheaton 203 .
6. 11 Peters 102.
7. 5 Wallace 471.
8. 9 id., 41.
9. 4 Wheaton 316.
10. Matter of Turner, 1 Abbott United States Reports 84.
11. 4 Washington's Circuit Court 371.
12. 12 Wallace 430.
13. 8 id., 180.
14. 6 Wallace 36.
| |
| | |
|
|
| FIELD,
J., Dissenting Opinion
| |
| Mr.
Justice FIELD, dissenting.
I am unable to agree with the majority of the court in these cases, and
will proceed to state the reasons of my dissent from their judgment.
The cases grow out of the act of the legislature of the
State of Louisiana, entitled
An act to protect the health of the city of New Orleans, to locate the
stock-landings and slaughterhouses, and to incorporate "The
Crescent City Live-Stock Landing and Slaughter-House Company,"
which was approved on the eighth of March, 1869, and went into operation
on the first of June following. The act creates the corporation
mentioned in its title, which is composed of seventeen persons
designated by name, and invests them and their successors with the
powers usually conferred upon corporations in addition to their special
and exclusive privileges. It first declares that it shall not be lawful,
after the first day of June, 1869, to
land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or
other animals, or to have, keep, or establish any stock-landing, yards,
slaughterhouses, or abattoirs within the city of New Orleans or the
parishes of Orleans, Jefferson, and St. Bernard,
except as provided in the act, and imposes a penalty of two hundred and
fifty dollars for each violation of its provisions. It then authorizes
the corporation mentioned to establish and erect within the parish of
St. Bernard and the corporate limits of New Orleans, below the United
States barracks, on the east side of the Mississippi, or at any point
below a designated railroad depot on the west side of the river,
wharves, stables, sheds, yards, and buildings, necessary to land,
stable, shelter, protect, and preserve all kinds of horses, mules,
cattle, and other animals,
and provides that cattle and other animals, destined for sale or
slaughter in the city of New Orleans or its environs shall be landed at
the landings and yards of the company, and be there [p*84] yarded,
sheltered, and protected, if necessary, and that the company shall be
entitled to certain prescribed fees for the use of its wharves, and for
each animal landed, and be authorized to detain the animals until the
fees are paid, and, if not paid within fifteen days, to take proceedings
for their sale. Every person violating any of these provisions, or
landing, yarding, or keeping animals elsewhere, is subjected to a fine
of two hundred and fifty dollars.
The act then requires the corporation to erect a grand slaughterhouse of
sufficient dimensions to accommodate all butchers, and in which five
hundred animals may be slaughtered a day, with a sufficient number of
sheds and stables for the stock received at the port of New Orleans, at
the same time authorizing the company to erect other landing-places and
other slaughterhouses at any points consistent with the provisions of
the act.
The act then provides that, when the slaughterhouses and accessory
buildings have been completed and thrown open for use, public notice
thereof shall be given for thirty days, and within that time,
all other stock-landings and slaughterhouses within the parishes of
Orleans, Jefferson, and St. Bernard shall be closed, and it shall no
longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the
meat of which is determined [destined] for sale within the parishes
aforesaid, under a penalty of one hundred dollars for each and every
offence.
The act then provides that the company shall receive for every animal
slaughtered in its buildings certain prescribed fees, besides the head,
feet, gore, and entrails of all animals except of swine.
Other provisions of the act require the inspection of the animals before
they are slaughtered, and allow the construction of railways to
facilitate communication with the buildings of the company and the city
of New Orleans.
But it is only the special and exclusive privileges conferred by the act
that this court has to consider in the cases before it. These privileges
are granted for the period of twenty-five years.
Their exclusive character not only follows [p*85] from the provisions I
have cited, but it is declared in express terms in the act. In the third
section, the language is that the corporation
shall have the sole and exclusive privilege of conducting and carrying
on the livestock, landing, and slaughterhouse business within the limits
and privileges granted by the provisions of the act.
And in the fourth section, the language is that, after the first of
June, 1869, the company shall have
the exclusive privilege of having landed at their landing-places all
animals intended for sale or slaughter in the parishes of Orleans and
Jefferson,
and "the exclusive privilege of having slaughtered" in its
slaughterhouses all animals the meat of which is intended for sale in
these parishes.
In order to understand the real character of these special privileges,
it is necessary to know the extent of country and of population which
they affect. The parish of Orleans contains an area of country of 150
square miles; the parish of Jefferson 384 square miles, and the parish
of St. Bernard 620 square miles. The three parishes together contain an
area of 1154 square miles, and they have a population of between two and
three hundred thousand people.
The plaintiffs in error deny the validity of the act in question so far
as it confers the special and exclusive privileges mentioned. The first
case before us was brought by an association of butchers in the three
parishes against the corporation to prevent the assertion and
enforcement of these privileges. The second case was instituted by the
attorney general of the State, in the name of the State, to protect the
corporation in the enjoyment of these privileges and to prevent an
association of stock dealers and butchers from acquiring a tract of land
in the same district with the corporation upon which to erect suitable
buildings for receiving, keeping, and slaughtering cattle and preparing
animal food for market. The third case was commenced by the corporation
itself to restrain the defendants from carrying on a business similar to
its own in violation of its alleged exclusive privileges.
The substance of the averments of the plaintiffs in error [p*86] is
this: that, prior to the passage of the act in question, they were
engaged in the lawful and necessary business of procuring and bringing
to the parishes of Orleans, Jefferson, and St. Bernard animals suitable
for human food, and in preparing such food for market; that, in the
prosecution of this business, they had provided in these parishes
suitable establishments for landing, sheltering, keeping, and
slaughtering cattle and the sale of meat; that, with their association
about four hundred persons were connected, and that, in the parishes
named, about a thousand persons were thus engaged in procuring,
preparing, and selling animal food. And they complain that the business
of landing, yarding, and keeping, within the parishes named, cattle
intended for sale or slaughter, which was lawful for them to pursue
before the first day of June, 1869, is made by that act unlawful for
anyone except the corporation named, and that the business of
slaughtering cattle and preparing animal food for market, which it was
lawful for them to pursue in these parishes before that day, is made by
that act unlawful for them to pursue afterwards except in the buildings
of the company, and upon payment of certain prescribed fees, and a
surrender of a valuable portion of each animal slaughtered. And they
contend that the lawful business of landing, yarding, sheltering, and
keeping cattle intended for sale or slaughter, which they in common with
every individual in the community of the three parishes had a right to
follow, cannot be thus taken from them and given over for a period of
twenty-five years to the sole and exclusive enjoyment of a corporation
of seventeen persons or of anybody else. And they also contend that the
lawful and necessary business of slaughtering cattle and preparing
animal food for market, which they and all other individuals had a right
to follow, cannot be thus restricted within this territory of 1154
square miles to the buildings of this corporation, or be subjected to
tribute for the emolument of that body.
No one will deny the abstract justice which lies in the position of the
plaintiffs in error, and I shall endeavor to [p*87] show that the
position has some support in the fundamental law of the country.
It is contended in justification for the act in question that it was
adopted in the interest of the city, to promote its cleanliness and
protect its health, and was the legitimate exercise of what is termed
the police power of the State. That power undoubtedly extends to all
regulations affecting the health, good order, morals, peace, and safety
of society, and is exercised on a great variety of subjects, and in
almost numberless ways. All sorts of restrictions and burdens are
imposed under it, and, when these are not in conflict with any
constitutional prohibitions or fundamental principles, they cannot be
successfully assailed in a judicial tribunal. With this power of the
State and its legitimate exercise I shall not differ from the majority
of the court. But under the pretence of prescribing a police regulation,
the State cannot be permitted to encroach upon any of the just rights of
the citizen, which the Constitution intended to secure against
abridgment.
In the law in question there are only two provisions which can properly
be called police regulations -- the one which requires the landing and
slaughtering of animals below the city of New Orleans, and the other
which requires the inspection of the animals before they are
slaughtered. When these requirements are complied with, the sanitary
purposes of the act are accomplished. In all other particulars, the act
is a mere grant to a corporation created by it of special and exclusive
privileges by which the health of the city is in no way promoted. It is
plain that if the corporation can, without endangering the health of the
public, carry on the business of landing, keeping, and slaughtering
cattle within a district below the city embracing an area of over a
thousand square miles, it would not endanger the public health if other
persons were also permitted to carry on the same business within the
same district under similar conditions as to the inspection of the
animals. The health of the city might require the removal from its
limits and suburbs of all buildings for keeping and slaughtering cattle,
but no such [p*88] object could possibly justify legislation removing
such buildings from a large part of the State for the benefit of a
single corporation. The pretence of sanitary regulations for the grant
of the exclusive privileges is a shallow one which merits only this
passing notice.
It is also sought to justify the act in question on the same principle
that exclusive grants for ferries, bridges, and turnpikes are
sanctioned. But it can find no support there. Those grants are of
franchises of a public character appertaining to the government. Their
use usually requires the exercise of the sovereign right of eminent
domain. It is for the government to determine when one of them shall be
granted, and the conditions upon which it shall be enjoyed. It is the
duty of the government to provide suitable roads, bridges, and ferries
for the convenience of the public, and if it chooses to devolve this
duty to any extent, or in any locality, upon particular individuals or
corporations, it may of course stipulate for such exclusive privileges
connected with the franchise as it may deem proper, without encroaching
upon the freedom or the just rights of others. The grant, with exclusive
privileges, of a right thus appertaining to the government, is a very
different thing from a grant, with exclusive privileges, of a right to
pursue one of the ordinary trades or callings of life, which is a right
appertaining solely to the individual.
Nor is there any analogy between this act of Louisiana and the
legislation which confers upon the inventor of a new and useful
improvement an exclusive right to make and sell to others his invention.
The government in this way only secures to the inventor the temporary
enjoyment of that which, without him, would not have existed. It thus
only recognizes in the inventor a temporary property in the product of
his own brain.
The act of Louisiana presents the naked case, unaccompanied by any
public considerations, where a right to pursue a lawful and necessary
calling, previously enjoyed by every citizen, and in connection with
which a thousand persons were daily employed, is taken away and vested
exclusively [p*89] for twenty-five years, for an extensive district and
a large population, in a single corporation, or its exercise is for that
period restricted to the establishments of the corporation, and there
allowed only upon onerous conditions.
If exclusive privileges of this character can be granted to a
corporation of seventeen persons, they may, in the discretion of the
legislature, be equally granted to single individual. If they may be
granted for twenty-five years, they may be equally granted for a
century, and in perpetuity. If they may be granted for the landing and
keeping of animals intended for sale or slaughter, they may be equally
granted for the landing and storing of grain and other products of the
earth, or for any article of commerce. If they may be granted for
structures in which animal food is prepared for market, they may be
equally granted for structures in which farinaceous or vegetable food is
prepared. They may be granted for any of the pursuits of human industry,
even in its most simple and common forms. Indeed, upon the theory on
which the exclusive privileges granted by the act in question are
sustained, there is no monopoly, in the most odious form, which may not
be upheld.
The question presented is, therefore, one of the gravest importance not
merely to the parties here, but to the whole country. It is nothing less
than the question whether the recent amendments to the Federal
Constitution protect the citizens of the United States against the
deprivation of their common rights by State legislation. In my judgment,
the fourteenth amendment does afford such protection, and was so
intended by the Congress which framed and the States which adopted it.
The counsel for the plaintiffs in error have contended with great force
that the act in question is also inhibited by the thirteenth amendment.
That amendment prohibits slavery and involuntary servitude, except as a
punishment for crime, but I have not supposed it was susceptible of a
construction which would cover the enactment in question. I have been so
accustomed to regard it as intended to meet that form of slavery which
had [p*90] previously prevailed in this country, and to which the recent
civil war owed its existence, that I was not prepared, nor am I yet, to
give to it the extent and force ascribed by counsel. Still it is
evidence that the language of the amendment is not used in a restrictive
sense. It is not confined to African slavery alone. It is general and
universal in its application. Slavery of white men as well as of black
men is prohibited, and not merely slavery in the strict sense of the
term, but involuntary servitude in every form.
The words "involuntary servitude" have not been the subject of
any judicial or legislative exposition, that I am aware of, in this
country, except that which is found in the Civil Rights Act, which will
be hereafter noticed. It is, however, clear that they include something
more than slavery in the strict sense of the term; they include also
serfage, vassalage, villenage, peonage, and all other forms of
compulsory service for the mere benefit or pleasure of others. Nor is
this the full import of the terms. The abolition of slavery and
involuntary servitude was intended to make everyone born in this country
a freeman, and, as such, to give to him the right to pursue the ordinary
avocations of life without other restraint than such as affects all
others, and to enjoy equally with them the fruits of his labor. A
prohibition to him to pursue certain callings, open to others of the
same age, condition, and sex, or to reside in places where others are
permitted to live, would so far deprive him of the rights of a freeman,
and would place him, as respects others, in a condition of servitude. A
person allowed to pursue only one trade or calling, and only in one
locality of the country, would not be, in the strict sense of the term,
in a condition of slavery, but probably none would deny that he would be
in a condition of servitude. He certainly would not possess the
liberties nor enjoy the privileges of a freeman. The compulsion which
would force him to labor even for his own benefit only in one direction,
or in one place, would be almost as oppressive and nearly as great an
invasion of his liberty as the compulsion which would force him to labor
for the benefit or pleasure of another, [p*91] and would equally
constitute an element of servitude. The counsel of the plaintiffs in
error therefore contend that
wherever a law of a State, or a law of the United States, makes a
discrimination between classes of persons which deprives the one class
of their freedom or their property or which makes a caste of them to
subserve the power, pride, avarice, vanity, or vengeance of others,
there involuntary servitude exists within the meaning of the thirteenth
amendment.
It is not necessary, in my judgment, for the disposition of the present
case in favor of the plaintiffs in error, to accept as entirely correct
this conclusion of counsel. It, however, finds support in the act of
Congress known as the Civil Rights Act, which was framed and adopted
upon a construction of the thirteenth amendment, giving to its language
a similar breadth. That amendment was ratified on the eighteenth of
December, 1865, [n1] and, in April of the following year, the Civil
Rights Act was passed. [n2] Its first section declares that all persons
born in the United States, and not subject to any foreign power,
excluding Indians not taxed, are "citizens of the United States,"
and that
such citizens, of every race and color, without regard to any previous
condition of slavery, or involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted, shall have
the same right in every State and Territory in the United States 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 to full and equal benefit of all laws and proceedings for
the security of person and property, as enjoyed by white citizens.
This legislation was supported upon the theory that citizens of the
United States, as such, were entitled to the rights and privileges
enumerated, and that to deny to any such citizen equality in these
rights and privileges with others was, to the extent of the denial,
subjecting him to an involuntary [p*92] servitude. Senator Trumbull, who
drew the act and who was its earnest advocate in the Senate, stated, on
opening the discussion upon it in that body, that the measure was
intended to give effect to the declaration of the amendment, and to
secure to all persons in the United States practical freedom. After
referring to several statutes passed in some of the Southern States
discriminating between the freedmen and white citizens, and after citing
the definition of civil liberty given by Blackstone, the Senator said:
I take it that any statute which is not equal to all, and which deprives
any citizen of civil rights which are secured to other citizens, is an
unjust encroachment upon his liberty, and it is in fact a badge of
servitude which by the Constitution is prohibited. [n3]
By the act of Louisiana, within the three parishes named, a territory
exceeding one thousand one hundred square miles, and embracing over two
hundred thousand people, every man who pursues the business of preparing
animal food for market must take his animals to the buildings of the
favored company, and must perform his work in them, and for the use of
the buildings must pay a prescribed tribute to the company, and leave
with it a valuable portion of each animal slaughtered. Every man in
these parishes who has a horse or other animal for sale must carry him
to the yards and stables of this company and for their use pay a like
tribute. He is not allowed to do his work in his own buildings, or to
take his animals to his own stables or keep them in his own yards, even
though they should be erected in the same district as the buildings,
stables, and yards of the company, and that district embraces over
eleven hundred square miles. The prohibitions imposed by this act upon
butchers and dealers in cattle in these parishes, and the special
privileges conferred upon the favored corporation, are similar in
principle and as odious in character as the restrictions imposed in the
last century upon the peasantry in some parts of France, where, as says
a French [p*93] writer, the peasant was prohibited
to hunt on his own lands, to fish in his own waters, to grind at his own
mill, to cook at his own oven, to dry his clothes on his own machines,
to whet his instruments at his own grindstone, to make his own wine, his
oil, and his cider at his own press, . . . or to sell his commodities at
the public market.
The exclusive right to all these privileges was vested in the lords of
the vicinage. "The history of the most execrable tyranny of ancient
times," says the same writer, "offers nothing like this. This
category of oppressions cannot be applied to a free man, or to the
peasant, except in violation of his rights."
But if the exclusive privileges conferred upon the Louisiana corporation
can be sustained, it is not perceived why exclusive privileges for the
construction and keeping of ovens, machines, grindstones, wine-presses,
and for all the numerous trades and pursuits for the prosecution of
which buildings are required, may not be equally bestowed upon other
corporations or private individuals, and for periods of indefinite
duration.
It is not necessary, however, as I have said, to rest my objections to
the act in question upon the terms and meaning of the thirteenth
amendment. The provisions of the fourteenth amendment, which is properly
a supplement to the thirteenth, cover, in my judgment, the case before
us, and inhibit any legislation which confers special and exclusive
privileges like these under consideration. The amendment was adopted to
obviate objections which had been raised and pressed with great force to
the validity of the Civil Rights Act, and to place the common rights of
American citizens under the protection of the National government. It
first 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.
It then declares that
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
[p*94] process of law, nor deny to any person within its jurisdiction
the equal protection of the laws.
The first clause of this amendment determines who are citizens of the
United States, and how their citizenship is created. Before its
enactment, there was much diversity of opinion among jurists and
statesmen whether there was any such citizenship independent of that of
the State, and, if any existed, as to the manner in which it originated.
With a great number, the opinion prevailed that there was no such
citizenship independent of the citizenship of the State. Such was the
opinion of Mr. Calhoun and the class represented by him. In his
celebrated speech in the Senate upon the Force Bill in 1833, referring
to the reliance expressed by a senator upon the fact that we are
citizens of the United States, he said:
If by citizen of the United States he means a citizen at large, one
whose citizenship extends to the entire geographical limits of the
country without having a local citizenship in some State or Territory, a
sort of citizen of the world, all I have to say is that such a citizen
would be a perfect nondescript; that not a single individual of this
description can be found in the entire mass of our population.
Notwithstanding all the pomp and display of eloquence on the occasion,
every citizen is a citizen of some State or Territory, and, as such,
under an express provision of the Constitution, is entitled to all
privileges and immunities of citizens in the several States; and it is
in this and no other sense that we are citizens of the United States.
[n4]
In the Dred Scott case, this subject of citizenship of the United States
was fully and elaborately discussed. The exposition in the opinion of
Mr. Justice Curtis has been generally accepted by the profession of the
country as the one containing the soundest views of constitutional law.
And he held that, under the Constitution, citizenship of the United
States in reference to natives was dependent upon citizenship in the
several States, under their constitutions and laws. [p*95]
The Chief Justice, in that case, and a majority of the court with him,
held that the words "people of the United States" and "citizens"
were synonymous terms; that the people of the respective States were the
parties to the Constitution; that these people consisted of the free
inhabitants of those States; that they had provided in their
Constitution for the adoption of a uniform rule of naturalization; that
they and their descendants and persons naturalized were the only persons
who could be citizens of the United States, and that it was not in the
power of any State to invest any other person with citizenship so that
he could enjoy the privileges of a citizen under the Constitution, and
that therefore the descendants of persons brought to this country and
sold as slaves were not, and could not be, citizens within the meaning
of the Constitution.
The first clause of the fourteenth amendment changes this whole subject,
and removes it from the region of discussion and doubt. It recognizes in
express terms, if it does not create, citizens of the United States, and
it makes their citizenship dependent upon the place of their birth, or
the fact of their adoption, and not upon the constitution or laws of any
State or the condition of their ancestry. A citizen of a State is now
only a citizen of the United States residing in that State. The
fundamental rights, privileges, and immunities which belong to him as a
free man and a free citizen now belong to him as a citizen of the United
States, and are not dependent upon his citizenship of any State. The
exercise of these rights and privileges, and the degree of enjoyment
received from such exercise, are always more or less affected by the
condition and the local institutions of the State, or city, or town
where he resides. They are thus affected in a State by the wisdom of its
laws, the ability of its officers, the efficiency of its magistrates,
the education and morals of its people, and by many other
considerations. This is a result which follows from the constitution of
society, and can never be avoided, but in no other way can they be
affected by the action of the State, or by the residence of the citizen
therein. They do not derive [p*96] their existence from its legislation,
and cannot be destroyed by its power.
The amendment does not attempt to confer any new privileges or
immunities upon citizens, or to enumerate or define those already
existing. It assumes that there are such privileges and immunities which
belong of right to citizens as such, and ordains that they shall not be
abridged by State legislation. If this inhibition has no reference to
privileges and immunities of this character, but only refers, as held by
the majority of the court in their opinion, to such privileges and
immunities as were before its adoption specially designated in the
Constitution or necessarily implied as belonging to citizens of the
United States, it was a vain and idle enactment, which accomplished
nothing and most unnecessarily excited Congress and the people on its
passage. With privileges and immunities thus designated or implied no
State could ever have interfered by its laws, and no new constitutional
provision was required to inhibit such interference. The supremacy of
the Constitution and the laws of the United States always controlled any
State legislation of that character. But if the amendment refers to the
natural and inalienable rights which belong to all citizens, the
inhibition has a profound significance and consequence.
What, then, are the privileges and immunities which are secured against
abridgment by State legislation?
In the first section of the Civil Rights Act, Congress has given its
interpretation to these terms, or at least has stated some of the rights
which, in its judgment, these terms include; it has there declared that
they include the right
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 to full and equal benefit of all laws and proceedings for
the security of person and property.
That act, it is true, was passed before the fourteenth amendment, but
the amendment was adopted, as I have already said, to obviate objections
to the act, or, speaking more accurately, I should say, to obviate
objections to legislation [p*97] of a similar character, extending the
protection of the National government over the common rights of all
citizens of the United States. Accordingly, after its ratification,
Congress reenacted the act under the belief that whatever doubts may
have previously existed of its validity, they were removed by the
amendment. [n5]
The terms "privileges" and "immunities" are not new
in the amendment; they were in the Constitution before the amendment was
adopted. They are found in the second section of the fourth article,
which declares that "the citizens of each State shall be entitled
to all privileges and immunities of citizens in the several States,"
and they have been the subject of frequent consideration in judicial
decisions. In Corfield v. Coryell, [n6] Mr. Justice Washington
said he had
no hesitation in confining these expressions to those privileges and
immunities which were, in their nature, fundamental, which belong of
right to citizens of all free governments, and which have at all times
been enjoyed by the citizens of the several States which compose the
Union, from the time of their becoming free, independent, and sovereign;
and, in considering what those fundamental privileges were, he said that
perhaps it would be more tedious than difficult to enumerate them, but
that they might be
all comprehended under the following general heads: protection by the
government; the enjoyment of life and liberty, 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 justly prescribe for the general good of the whole.
This appears to me to be a sound construction of the clause in question.
The privileges and immunities designated are those which of right belong
to the citizens of all free governments. Clearly among these must be
placed the right to pursue a lawful employment in a lawful manner,
without other restraint than such as equally affects all persons. In the
discussions [p*98] in Congress upon the passage of the Civil Rights Act,
repeated reference was made to this language of Mr. Justice Washington.
It was cited by Senator Trumbull with the observation that it enumerated
the very rights belonging to a citizen of the United States set forth in
the first section of the act, and with the statement that all persons
born in the United States, being declared by the act citizens of the
United States, would thenceforth be entitled to the rights of citizens,
and that these were the great fundamental rights set forth in the act;
and that they were set forth "as appertaining to every freeman."
The privileges and immunities designated in the second section of the
fourth article of the Constitution are, then, according to the decision
cited, those which of right belong to the citizens of all free
governments, and they can be enjoyed under that clause by the citizens
of each State in the several States upon the same terms and conditions
as they are enjoyed by the citizens of the latter States. No
discrimination can be made by one State against the citizens of other
States in their enjoyment, nor can any greater imposition be levied than
such as is laid upon its own citizens. It is a clause which insures
equality in the enjoyment of these rights between citizens of the
several States whilst in the same State.
Nor is there anything in the opinion in the case of Paul v. Virginia,
[n7] which at all militates against these views, as is supposed by the
majority of the court. The act of Virginia of 1866 which was under
consideration in that case provided that no insurance company not
incorporated under the laws of the State should carry on its business
within the State without previously obtaining a license for that
purpose, and that it should not receive such license until it had
deposited with the treasurer of the State bonds of a specified
character, to an amount varying from thirty to fifty thousand dollars.
No such deposit was required of insurance companies incorporated by the
State, for carrying on [p*99] their business within the State; and in
the case cited, the validity of the discriminating provisions of the
statute of Virginia between her own corporations and the corporations of
other States was assailed. It was contended that the statute in this
particular was in conflict with that clause of the Constitution which
declares that "the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States." But
the court answered, that corporations were not citizens within the
meaning of this clause; that the term citizens as there used applied
only to natural persons, members of the body politic owing allegiance to
the State, not to artificial persons created by the legislature and
possessing only the attributes which the legislature had prescribed;
that, though it had been held that where contracts or rights of property
were to be enforced by or against a corporation, the courts of the
United States would, for the purpose of maintaining jurisdiction,
consider the corporation as representing citizens of the State, under
the laws of which it was created, and to this extent would treat a
corporation was a citizen within the provision of the Constitution
extending the judicial power of the United States to controversies
between citizens of different States, it had never been held in any case
which had come under its observation, either in the State or Federal
courts, that a corporation was a citizen within the meaning of the
clause in question, entitling the citizens of each State to the
privileges and immunities of citizens in the several States. And the
court observed that the privileges and immunities secured by that
provision were those privileges and immunities which were common to the
citizens in the latter States, under their constitution and laws, by
virtue of their being citizens; that special privileges enjoyed by
citizens in their own States were not secured in other States by the
provision; that it was not intended by it to give to the laws of one
State any operation in other States; that they could have no such
operation except by the permission, expressed or implied, of those
States; and that the special privileges which they conferred must,
therefore, be enjoyed at home unless the assent [p*100] of other States
to their enjoyment therein were given. And so the court held that a
corporation, being a grant of special privileges to the corporators, had
no legal existence beyond the limits of the sovereignty where created,
and that the recognition of its existence by other States, and the
enforcement of its contracts made therein, depended purely upon the
assent of those States, which could be granted upon such terms and
conditions as those States might think proper to impose.
The whole purport of the decision was that citizens of one State do not
carry with them into other States any special privileges or immunities,
conferred by the laws of their own States, of a corporate or other
character. That decision has no pertinency to the questions involved in
this case. The common privileges and immunities which of right belong to
all citizens, stand on a very different footing. These the citizens of
each State do carry with them into other States, and are secured by the
clause in question in their enjoyment upon terms of equality with
citizens of the latter States. This equality in one particular was
enforced by this court in the recent case of Ward v. The State of
Maryland, reported in the 12th of Wallace. A statute of that State
required the payment of a larger sum from a nonresident trader for a
license to enable him to sell his merchandise in the State than it did
of a resident trader, and the court held that the statute, in thus
discriminating against the nonresident trader, contravened the clause
securing to the citizens of each State the privileges and immunities of
citizens of the several States. The privilege of disposing of his
property, which was an essential incident to his ownership possessed by
the nonresident, was subjected by the statute of Maryland to a greater
burden than was imposed upon a like privilege of her own citizens. The
privileges of the nonresident were in this particular abridged by that
legislation.
What the clause in question did for the protection of the citizens of
one State against hostile and discriminating legislation of other
States, the fourteenth amendment does for [p*101] the protection of
every citizen of the United States against hostile and discriminating
legislation against him in favor of others, whether they reside in the
same or in different States. If, under the fourth article of the
Constitution, equality of privileges and immunities is secured between
citizens of different States, under the fourteenth amendment, the same
equality is secured between citizens of the United States.
It will not be pretended that, under the fourth article of the
Constitution, any State could create a monopoly in any known trade or
manufacture in favor of her own citizens, or any portion of them, which
would exclude an equal participation in the trade or manufacture
monopolized by citizens of other States. She could not confer, for
example, upon any of her citizens the sole right to manufacture shoes,
or boots, or silk, or the sole right to sell those articles in the State
so as to exclude nonresident citizens from engaging in a similar
manufacture or sale. The nonresident citizens could claim equality of
privilege under the provisions of the fourth article with the citizens
of the State exercising the monopoly as well as with others, and thus,
as respects them, the monopoly would cease. If this were not so, it
would be in the power of the State to exclude at any time the citizens
of other States from participation in particular branches of commerce or
trade, and extend the exclusion from time to time so as effectually to
prevent any traffic with them.
Now what the clause in question does for the protection of citizens of
one State against the creation of monopolies in favor of citizens of
other States, the fourteenth amendment does for the protection of every
citizen of the United States against the creation of any monopoly
whatever. The privileges and immunities of citizens of the United
States, of every one of them, is secured against abridgment in any form
by any State. The fourteenth amendment places them under the
guardianship of the National authority. All monopolies in any known
trade or manufacture are an invasion of these privileges, for they
encroach upon the liberty of citizens to acquire property and pursue
happiness, and were [p*102] held void at common law in the great Case of
Monopolies, decided during the reign of Queen Elizabeth.
A monopoly is defined
to be an institution or allowance from the sovereign power of the State
by grant, commission, or otherwise, to any person or corporation, for
the sole buying, selling, making, working, or using of anything, whereby
any person or persons, bodies politic or corporate, are sought to be
restrained of any freedom or liberty they had before, or hindered in
their lawful trade.
All such grants relating to any known trade or manufacture have been
held by all the judges of England, whenever they have come up for
consideration, to be void at common law as destroying the freedom of
trade, discouraging labor and industry, restraining persons from getting
an honest livelihood, and putting it into the power of the grantees to
enhance the price of commodities. The definition embraces, it will be
observed, not merely the sole privilege of buying and selling particular
articles, or of engaging in their manufacture, but also the sole
privilege of using anything by which others may be restrained of the
freedom or liberty they previously had in any lawful trade, or hindered
in such trade. It thus covers in every particular the possession and use
of suitable yards, stables, and buildings for keeping and protecting
cattle and other animals, and for their slaughter. Such establishments
are essential to the free and successful prosecution by any butcher of
the lawful trade of preparing animal food for market. The exclusive
privilege of supplying such yards, buildings, and other conveniences for
the prosecution of this business in a large district of country, granted
by the act of Louisiana to seventeen persons, is as much a monopoly as
though the act had granted to the company the exclusive privilege of
buying and selling the animals themselves. It equally restrains the
butchers in the freedom and liberty they previously had and hinders them
in their lawful trade.
The reasons given for the judgment in the Case of Monopolies
apply with equal force to the case at bar. In that case, a patent had
been granted to the plaintiff giving him the sole [p*103] right to
import playing cards, and the entire traffic in them, and the sole right
to make such cards within the realm. The defendant, in disregard of this
patent, made and sold some gross of such cards and imported others, and
was accordingly sued for infringing upon the exclusive privileges of the
plaintiff. As to a portion of the cards made and sold within the realm,
he pleaded that he was a haberdasher in London and a free citizen of
that city, and, as such, had a right to make and sell them. The court
held the plea good and the grant void, as against the common law and
divers acts of Parliament. "All trades," said the court,
as well mechanical as others, which prevent idleness (the bane of the
commonwealth) and exercise men and youth in labor for the maintenance of
themselves and their families, and for the increase of their substance,
to serve the queen when occasion shall require, are profitable for the
commonwealth, and therefore the grant to the plaintiff to have the sole
making of them is against the common law and the benefit and liberty
of the subject. [n8]
The case of Davenant and Hurdis was cited in support of this position.
In that case, a company of merchant tailors in London, having power by
charter to make ordinances for the better rule and government of the
company so that they were consonant to law and reason, made an ordinance
that any brother of the society who should have any cloth dressed by a
clothworker not being a brother of the society should put one-half of
his cloth to some brother of the same society who exercised the art of a
clothworker, upon pain of forfeiting ten shillings,
and it was adjudged that the ordinance, although it had the countenance
of a charter, was against the common law, because it was against the
liberty of the subject; for every subject, by the law, has freedom and
liberty to put his cloth to be dressed by what clothworker he pleases,
and cannot be restrained to certain persons, for that, in effect, would
be a monopoly, and, therefore, such ordinance, by color of a charter
or any grant by charter to such effect, would be void. [p*104]
Although the court, in its opinion, refers to the increase in prices and
deterioration in quality of commodities which necessarily result from
the grant of monopolies, the main ground of the decision was their
interference with the liberty of the subject to pursue for his
maintenance and that of his family any lawful trade or employment. This
liberty is assumed to be the natural right of every Englishman.
The struggle of the English people against monopolies forms one of the
most interesting and instructive chapters in their history. It finally
ended in the passage of the statute of 21st James I, by which it was
declared
that all monopolies and all commissions, grants, licenses, charters, and
letters-patent, to any person or persons, bodies politic or corporate
whatsoever, of or for the sole buying, selling, making, working, or
using of anything
within the realm or the dominion of Wales were altogether contrary to
the laws of the realm and utterly void, with the exception of patents
for new inventions for a limited period, and for printing, then supposed
to belong to the prerogative of the king, and for the preparation and
manufacture of certain articles and ordnance intended for the
prosecution of war.
The common law of England, as is thus seen, condemned all monopolies in
any known trade or manufacture, and declared void all grants of special
privileges whereby others could be deprived of any liberty which they
previously had, or be hindered in their lawful trade. The statute of
James I, to which I have referred, only embodied the law as it had been
previously declared by the courts of England, although frequently
disregarded by the sovereigns of that country.
The common law of England is the basis of the jurisprudence of the
United States. It was brought to this country by the colonists, together
with the English statutes, and was established here so far as it was
applicable to their condition. That law and the benefit of such of the
English statutes as existed at the time of their colonization, and which
they had by experience found to be applicable to their circumstances,
were claimed by the Congress of the United Colonies in 1774 as a part of
their "indubitable rights and liberties." [n9] [p*105] Of the
statutes the benefits of which was thus claimed, the statute of James I
against monopolies was one of the most important. And when the Colonies
separated from the mother country, no privilege was more fully
recognized or more completely incorporated into the fundamental law of
the country than that every free subject in the British empire was
entitled to pursue his happiness by following any of the known
established trades and occupations of the country, subject only to such
restraints as equally affected all others. The immortal document which
proclaimed the independence of the country declared as self-evident
truths that the Creator had endowed all men
with certain inalienable rights, and that among these are life, liberty,
and the pursuit of happiness; and that to secure these rights
governments are instituted among men.
If it be said that the civil law, and not the common law, is the basis
of the jurisprudence of Louisiana, I answer that the decree of Louis
XVI, in 1776, abolished all monopolies of trades and all special
privileges of corporations, guilds, and trading companies, and
authorized every person to exercise, without restraint, his art, trade,
or profession, and such has been the law of France and of her colonies
ever since, and that law prevailed in Louisiana at the time of her
cession to the United States. Since then, notwithstanding the existence
in that State of the civil law as the basis of her jurisprudence,
freedom of pursuit has been always recognized as the common right of her
citizens. But were this otherwise, the fourteenth amendment secures the
like protection to all citizens in that State against any abridgment of
their common rights, as in other States. That amendment was intended to
give practical effect to the declaration of 1776 of inalienable rights,
rights which are the gift of the Creator, which the law does not confer,
but only recognizes. If the trader in London could plead that he was a
free citizen of that city against the enforcement to his injury of
monopolies, surely, under the fourteenth amendment, every [p*106]
citizen of the United States should be able to plead his citizenship of
the republic as a protection against any similar invasion of his
privileges and immunities.
So fundamental has this privilege of every citizen to be free from
disparaging and unequal enactments in the pursuit of the ordinary
avocations of life been regarded that few instances have arisen where
the principle has been so far violated as to call for the interposition
of the courts. But whenever this has occurred, with the exception of the
present cases from Louisiana, which are the most barefaced and flagrant
of all, the enactment interfering with the privilege of the citizen has
been pronounced illegal and void. When a case under the same law under
which the present cases have arisen came before the Circuit Court of the
United States in the District of Louisiana, there was no hesitation on
the part of the court in declaring the law, in its exclusive features,
to be an invasion of one of the fundamental privileges of the citizen.
[n10] The presiding justice, in delivering the opinion of the court,
observed that it might be difficult to enumerate or define what were the
essential privileges of a citizen of the United States, which a State
could not by its laws invade, but that, so far as the question under
consideration was concerned, it might be safely said that
it is one of the privileges of every American citizen to adopt and
follow such lawful industrial pursuit, not injurious to the community,
as he may see fit, without unreasonable regulation or molestation and
without being restricted by any of those unjust, oppressive, and odious
monopolies or exclusive privileges which have been condemned by all free
governments.
And again:
There is no more sacred right of citizenship than the right to pursue
unmolested a lawful employment in a lawful manner. It is nothing more
nor less than the sacred right of labor. In the City of Chicago v.
Rumpff, [n11] which was before the Supreme Court of Illinois, we
have a case similar in all its [p*107] features to the one at bar. That
city being authorized by its charter to regulate and license the
slaughtering of animals within its corporate limits, the common council
passed what was termed an ordinance in reference thereto, whereby a
particular building was designated for the slaughtering of all animals
intended for sale or consumption in the city, the owners of which were
granted the exclusive right for a specified period to have all such
animals slaughtered at their establishment, they to be paid a specific
sum for the privilege of slaughtering there by all persons exercising
it. The validity of this action of the corporate authorities was
assailed on the ground of the grant of exclusive privileges, and the
court said:
The charter authorizes the city authorities to license or regulate such
establishments. Where that body has made the necessary regulations,
required for the health or comfort of the inhabitants, all persons
inclined to pursue such an occupation should have an opportunity of
conforming to such regulations, otherwise the ordinance would be
unreasonable, and tend to oppression. Or, if they should regard it for
the interest of the city that such establishments should be licensed,
the ordinance should be so framed that all persons desiring it might
obtain licenses by conforming to the prescribed terms and regulations
for the government of such business. We regard it neither as a
regulation nor a license of the business to confine it to one building
or to give it to one individual. Such an action is oppressive, and
creates a monopoly that never could have been contemplated by the
General Assembly. It impairs the rights of all other persons, and cuts
them off from a share in not only a legal, but a necessary, business.
Whether we consider this as an ordinance or a contract, it is equally
unauthorized as being opposed to the rules governing the adoption of
municipal by-laws. The principle of equality of rights to the
corporators is violated by this contract. If the common council may
require all of the animals for the consumption of the city to be
slaughtered in a single building, or on a particular lot, and the owner
be paid a specific sum for the privilege, what would prevent the making
a [p*108] similar contract with some other person that all of the
vegetables, or fruits, the flour, the groceries, the dry goods, or other
commodities should be sold on his lot and he receive a compensation for
the privilege? We can see no difference in principle.
It is true that the court in this opinion was speaking of a municipal
ordinance, and not of an act of the legislature of a State. But, as it
is justly observed by counsel, a legislative body is no more entitled to
destroy the equality of rights of citizens, nor to fetter the industry
of a city, than a municipal government. These rights are protected from
invasion by the fundamental law.
In the case of the Norwich Gaslight Company v. The Norwich City Gas
Company, [n12] which was before the Supreme Court of Connecticut, it
appeared that the common council of the city of Norwich had passed a
resolution purporting to grant to one Treadway, his heirs and assigns,
for the period of fifteen years, the right to lay gas pipes in the
streets of that city, declaring that no other person or corporation
should, by the consent of the common council, lay gas pipes in the
streets during that time. The plaintiffs, having purchased of Treadway,
undertook to assert an exclusive right to use the streets for their
purposes, as against another company which was using the streets for the
same purposes. And the court said:
As, then, no consideration whatever, either of a public or private
character, was reserved for the grant; and as the business of
manufacturing and selling gas is an ordinary business, like the
manufacture of leather, or any other article of trade in respect to
which the government has no exclusive prerogative, we think that, so far
as the restriction of other persons than the plaintiffs from using the
streets for the purpose of distributing gas by means of pipes can fairly
be viewed as intended to operate as a restriction upon its free
manufacture and sale, it comes directly within the definition and
description of a monopoly, and, although we have no direct
constitutional provision against a monopoly, [p*109] yet the whole
theory of a free government is opposed to such grants, and it does not
require even the aid which may be derived from the Bill of Rights, the
first section of which declares "that no man or set of men are
entitled to exclusive public emoluments or privileges from the
community," to render them void.
In the Mayor of the City of Hudson v. Thorne, [n13] an
application was made to the chancellor of New York to dissolve an
injunction restraining the defendants from erecting a building in the
city of Hudson upon a vacant lot owned by them, intended to be used as a
hay-press. The common council of the city had passed an ordinance
directing that no person should erect, or construct, or cause to be
erected or constructed, any wooden or frame barn, stable, or hay-press
of certain dimensions within certain specified limits in the city
without its permission. It appeared, however, that there were such
buildings already in existence, not only in compact parts of the city
but also within the prohibited limits, the occupation of which for the
storing and pressing of hay the common council did not intend to
restrain. And the chancellor said:
If the manufacture of pressed hay within the compact parts of the city
is dangerous in causing or promoting fires, the common council have the
power expressly given by their charter to prevent the carrying on of
such manufacture; but as all by-laws must be reasonable, the common
council cannot make a by-law which shall permit one person to carry on
the dangerous business and prohibit another who has an equal right from
pursuing the same business.
In all these cases, there is a recognition of the equality of right
among citizens in the pursuit of the ordinary avocations of life, and a
declaration that all grants of exclusive privileges, in contravention of
this equality, are against common right, and void.
This equality of right, with exemption from all disparaging and partial
enactments, in the lawful pursuits of life, [p*110] throughout the whole
country, is the distinguishing privilege of citizens of the United
States. To them, everywhere, all pursuits, all professions, all
avocations are open without other restrictions than such as are imposed
equally upon all others of the same age, sex, and condition. The State
may prescribe such regulations for every pursuit and calling of life as
will promote the public health, secure the good order and advance the
general prosperity of society, but, when once prescribed, the pursuit or
calling must be free to be followed by every citizen who is within the
conditions designated, and will conform to the regulations. This is the
fundamental idea upon which our institutions rest, and, unless adhered
to in the legislation of the country, our government will be a republic
only in name. The fourteenth amendment, in my judgment, makes it
essential to the validity of the legislation of every State that this
equality of right should be respected. How widely this equality has been
departed from, how entirely rejected and trampled upon by the act of
Louisiana, I have already shown. And it is to me a matter of profound
regret that its validity is recognized by a majority of this court, for
by it the right of free labor, one of the most sacred and
imprescriptible rights of man, is violated. [n14] As stated by the
Supreme Court of Connecticut in [p*111] the case cited, grants of
exclusive privileges, such as is made by the act in question, are
opposed to the whole theory of free government, and it requires no aid
from any bill of rights to render them void. That only is a free
government, in the American sense of the term, under which the
inalienable right of every citizen to pursue his happiness is
unrestrained, except by just, equal, and impartial laws. [n15]
I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr.
Justice BRADLEY to state that they concur with me in this dissenting
opinion.
1. The proclamation of its ratification was made on that day (13 Stat.
at Large 774).
2. 14 id. 27.
3. Congressional Globe, 1st Session, 39th Congress, part 1, page 474.
4. Calhoun's Works, vol. 2, p. 242.
5. May 31st, 1870; 16 Stat. at Large 144.
6. 4 Washington's Circuit Court 380.
7. 8 Wallace 168.
8. Coke's Reports, part 11, page 86.
9. Journals of Congress, vol. i, pp. 28-30.
10. Live-Stock &c. Association v. The Crescent City, &c.,
Company, 1 Abbott's United States Reports 398.
11. 45 Illinois 90.
12. 25 Connecticut 19.
13. 7 Paige 261.
14. "The property which every man has in his own labor," says
Adam Smith,
as it is the original foundation of all other property, so it is the
most sacred and inviolable. The patrimony of the poor man lies in the
strength and dexterity of his own hands; and to hinder him from
employing this strength and dexterity in what manner he thinks proper,
without injury to his neighbor, is a plain violation of this most sacred
property. It is a manifest encroachment upon the just liberty both of
the workman and of those who might be disposed to employ him. As it
hinders the one from working at what he thinks proper, so it hinders the
others from employing whom they think proper.
(Smith's Wealth of Nations, b. 1, ch. 10, part 2.)
In the edict of Louis XVI, in 1776, giving freedom to trades and
professions, prepared by his minister, Turgot, he recites the
contributions that had been made by the guilds and trade companies, and
says:
It was the allurement of these fiscal advantages, undoubtedly, that
prolonged the illusion and concealed the immense injury they did to
industry and their infraction of natural right. This illusion had
extended so far that some persons asserted that the right to work was a
royal privilege which the king might sell, and that his subjects were
bound to purchase from him. We hasten to correct this error, and to
repel the conclusion. God, in giving to man wants and desires rendering
labor necessary for their satisfaction, conferred the right to labor
upon all men, and this property is the first, most sacred, and
imprescriptible of all.
He, therefore, regards it
as the first duty of his justice, and the worthiest act of benevolence,
to free his subjects from any restriction upon this inalienable right of
humanity.
15. Civil liberty, the great end of all human society and government, is
that state in which each individual has the power to pursue his own
happiness according to his own views of his interest, and the dictates
of his conscience, unrestrained, except by equal, just, and impartial
laws.
1 Sharswood's Blackstone 127, note 8.
| |
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| BRADLEY,
J., Dissenting Opinion
| |
| Mr.
Justice BRADLEY, also dissenting.
I concur in the opinion which has just been read by Mr. Justice Field,
but desire to add a few observations for the purpose of more fully
illustrating my views on the important question decided in these cases,
and the special grounds on which they rest.
The fourteenth amendment to the Constitution of the United States,
section 1, declares that no State shall make or enforce any law which
shall abridge the privileges and immunities of citizens of the United
States.
The legislature of Louisiana, under pretence of making a police
regulation for the promotion of the public health, passed an act
conferring upon a corporation, created by the act, the exclusive right,
for twenty-five years, to have and maintain slaughterhouses, landings
for cattle, and yards for [p*112] confining cattle intended for
slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a
territory containing nearly twelve hundred square miles, including the
city of New Orleans; and prohibiting all other persons from building,
keeping, or having slaughterhouses, landings for cattle, and yards for
confining cattle intended for slaughter within the said limits; and
requiring that all cattle and other animals to be slaughtered for food
in that district should be brought to the slaughterhouses and works of
the favored company to be slaughtered, and a payment of a fee to the
company for such act.
It is contended that this prohibition abridges the privileges and
immunities of citizens of the United States, especially of the
plaintiffs in error, who were particularly affected thereby, and whether
it does so or not is the simple question in this case. And the solution
of this question depends upon the solution of two other questions,
to-wit:
First. Is it one of the rights and privileges of a citizen of the United
States to pursue such civil employment as he may choose to adopt,
subject to such reasonable regulations as may be prescribed by law?
Secondly. Is a monopoly, or exclusive right, given to one person to the
exclusion of all others, to keep slaughterhouses, in a district of
nearly twelve hundred square miles, for the supply of meat for a large
city, a reasonable regulation of that employment which the legislature
has a right to impose?
The first of these questions is one of vast importance, and lies at the
very foundations of our government. The question is now settled by the
fourteenth amendment itself, that citizenship of the United States is
the primary citizenship in this country, and that State citizenship is
secondary and derivative, depending upon citizenship of the United
States and the citizen's place of residence. The States have not now, if
they ever had, any power to restrict their citizenship to any classes or
persons. A citizen of the United States has a perfect constitutional
right to go to and reside in any State he chooses, and to claim
citizenship therein, [p*113] and an equality of rights with every other
citizen, and the whole power of the nation is pledged to sustain him in
that right. He is not bound to cringe to any superior, or to pray for
any act of grace, as a means of enjoying all the rights and privileges
enjoyed by other citizens. And when the spirit of lawlessness, mob
violence, and sectional hate can be so completely repressed as to give
full practical effect to this right, we shall be a happier nation, and a
more prosperous one, than we now are. Citizenship of the United States
ought to be, and, according to the Constitution, is, a sure and
undoubted title to equal rights in any and every States in this Union,
subject to such regulations as the legislature may rightfully prescribe.
If a man be denied full equality before the law, he is denied one of the
essential rights of citizenship as a citizen of the United States.
Every citizen, then, being primarily a citizen of the United States,
and, secondarily, a citizen of the State where he resides, what, in
general, are the privileges and immunities of a citizen of the United
States? Is the right, liberty, or privilege of choosing any lawful
employment one of them?
If a State legislature should pass a law prohibiting the inhabitants of
a particular township, county, or city, from tanning leather or making
shoes, would such a law violate any privileges or immunities of those
inhabitants as citizens of the United States, or only their privileges
and immunities as citizens of that particular State? Or if a State
legislature should pass a law of caste, making all trades and
professions, or certain enumerated trades and professions, hereditary,
so that no one could follow any such trades or professions except that
which was pursued by his father, would such a law violate the privileges
and immunities of the people of that State as citizens of the United
States, or only as citizens of the State? Would they have no redress but
to appeal to the courts of that particular State?
This seems to me to be the essential question before us for
consideration. And, in my judgment, the right of any citizen to follow
whatever lawful employment he chooses to adopt (submitting himself to
all lawful regulations) is one of [p*114] his most valuable rights, and
one which the legislature of a State cannot invade, whether restrained
by its own constitution or not.
The right of a State to regulate the conduct of its citizens is
undoubtedly a very broad and extensive one, and not to be lightly
restricted. But there are certain fundamental rights which this right of
regulation cannot infringe. It may prescribe the manner of their
exercise, but it cannot subvert the rights themselves. I speak now of
the rights of citizens of any free government. Granting for the present
that the citizens of one government cannot claim the privileges of
citizens in another government, that, prior to the union of our North
American States, the citizens of one State could not claim the
privileges of citizens in another State, or that, after the union was
formed, the citizens of the United States, as such, could not claim the
privileges of citizens in any particular State, yet the citizens of each
of the States and the citizens of the United States would be entitled to
certain privileges and immunities as citizens at the hands of their own
government -- privileges and immunities which their own governments
respectively would be bound to respect and maintain. In this free
country, the people of which inherited certain traditionary rights and
privileges from their ancestors, citizenship means something. It has
certain privileges and immunities attached to it which the government,
whether restricted by express or implied limitations, cannot take away
or impair. It may do so temporarily by force, but it cannot do so by
right. And these privileges and immunities attach as well to citizenship
of the United States as to citizenship of the States.
The people of this country brought with them to its shores the rights of
Englishmen, the rights which had been wrested from English sovereigns at
various periods of the nation's history. One of these fundamental rights
was expressed in these words, found in Magna Charta:
No freeman shall be taken or imprisoned, or be disseized of his freehold
or liberties or free customs, or be outlawed or exiled, or any otherwise
destroyed; nor will we pass upon him or condemn [p*115] him but by
lawful judgment of his peers or by the law of the land.
English constitutional writers expound this article as rendering life,
liberty, and property inviolable except by due process of law. This is
the very right which the plaintiffs in error claim in this case. Another
of these rights was that of habeas corpus, or the right of having any
invasion of personal liberty judicially examined into, at once, by a
competent judicial magistrate. Blackstone classifies these fundamental
rights under three heads, as the absolute rights of individuals, to-wit:
the right of personal security, the right of personal liberty, and the
right of private property. And, of the last, he says:
The third absolute right, inherent in every Englishman, is that of
property, which consists in the free use, enjoyment, and disposal of all
his acquisitions, without any control or diminution save only by the
laws of the land.
The privileges and immunities of Englishmen were established and secured
by long usage and by various acts of Parliament. But it may be said that
the Parliament of England has unlimited authority, and might repeal the
laws which have from time to time been enacted. Theoretically, this is
so, but practically it is not. England has no written constitution, it
is true, but it has an unwritten one, resting in the acknowledged, and
frequently declared, privileges of Parliament and the people, to violate
which in any material respect would produce a revolution in an hour. A
violation of one of the fundamental principles of that constitution in
the Colonies, namely, the principle that recognizes the property of the
people as their own, and which, therefore, regards all taxes for the
support of government as gifts of the people through their
representatives, and regards taxation without representation as
subversive of free government, was the origin of our own revolution.
This, it is true, was the violation of a political right, but personal
rights were deemed equally sacred, and were claimed by the very first
Congress of the Colonies, assembled in 1774, as the undoubted
inheritance of the people of this country; and the Declaration of
Independence, which [p*116] was the first political act of the American
people in their independent sovereign capacity, lays the foundation of
our National existence upon this broad proposition:
That all men are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty, and
the pursuit of happiness.
Here again we have the great three-fold division of the rights of
freemen, asserted as the rights of man. Rights to life, liberty, and the
pursuit of happiness are equivalent to the rights of life, liberty, and
property. These are the fundamental rights which can only be taken away
by due process of law, and which can only be interfered with, or the
enjoyment of which can only be modified, by lawful regulations necessary
or proper for the mutual good of all; and these rights, I contend,
belong to the citizens of every free government.
For the preservation, exercise, and enjoyment of these rights the
individual citizen, as a necessity, must be left free to adopt such
calling, profession, or trade as may seem to him most conducive to that
end. Without this right, he cannot be a freeman. This right to choose
one's calling is an essential part of that liberty which it is the
object of government to protect, and a calling, when chosen, is a man's
property and right. Liberty and property are not protected where these
rights are arbitrarily assailed.
I think sufficient has been said to show that citizenship is not an
empty name, but that, in this country, at least, it has connected with
it certain incidental rights, privileges, and immunities of the greatest
importance. And to say that these rights and immunities attach only to
State citizenship, and not to citizenship of the United States, appears
to me to evince a very narrow and insufficient estimate of
constitutional history and the rights of men, not to say the rights of
the American people.
On this point, the often-quoted language of Mr. Justice Washington, in
Corfield v. Coryell, [*] is very instructive. Being [p*117]
called upon to expound that clause in the fourth article of the
Constitution which declares that "the citizens of each State shall
be entitled to all the privileges and immunities of citizens in the
several States," he says:
The inquiry is what are the privileges and immunities of citizens in the
several States? We feel no hesitation in confining these expressions to
those privileges and immunities which are, in their nature, fundamental,
which belong, of right, to the citizens of all free governments, and
which have at all times been enjoyed by the citizens of the several
States which compose this Union from the time of their becoming free,
independent, and sovereign. What these fundamental privileges are it
would perhaps be more tedious than difficult to enumerate. They may,
however, be all comprehended under the following general heads:
protection by the government; the enjoyment of life and liberty, 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 justly prescribe for the general good
of the whole; the right of a citizen of one State to pass through, or to
reside in, any other State for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of the writ of
habeas corpus; to institute and maintain actions of any kind in the
courts of the State; to take, hold, and dispose of property, either real
or personal; and an exemption from higher taxes or impositions than are
paid by the other citizens of the State, may be mentioned as some of the
particular privileges and immunities of citizens which are clearly
embraced by the general description of privileges deemed to be
fundamental.
It is pertinent to observe that both the clause of the Constitution
referred to and Justice Washington, in his comment on it, speak of the
privileges and immunities of citizens in a State, not of citizens of a
State. It is the privileges and immunities of citizens, that is, of
citizens as such, that are to be accorded to citizens of other States
when they are found in any State; or, as Justice Washington says,
privileges and immunities which are, in their nature, fundamental;
[p*118] which belong, of right, to the citizens of all free governments.
It is true the courts have usually regarded the clause referred to as
securing only an equality of privileges with the citizens of the State
in which the parties are found. Equality before the law is undoubtedly
one of the privileges and immunities of every citizen. I am not aware
that any case has arisen in which it became necessary to vindicate any
other fundamental privilege of citizenship; although rights have been
claimed which were not deemed fundamental, and have been rejected as not
within the protection of this clause. Be this, however, as it may, the
language of the clause is as I have stated it, and seems fairly
susceptible of a broader interpretation than that which makes it a
guarantee of mere equality of privileges with other citizens.
But we are not bound to resort to implication, or to the constitutional
history of England, to find an authoritative declaration of some of the
most important privileges and immunities of citizens of the United
States. It is in the Constitution itself. The Constitution, it is true,
as it stood prior to the recent amendments, specifies, in terms, only a
few of the personal privileges and immunities of citizens, but they are
very comprehensive in their character. The States were merely prohibited
from passing bills of attainder, ex post facto laws, laws impairing the
obligation of contracts, and perhaps one or two more. But others of the
greatest consequence were enumerated, although they were only secured,
in express terms, from invasion by the Federal government; such as the
right of habeas corpus, the right of trial by jury, of free exercise of
religious worship, the right of free speech and a free press, the right
peaceably to assemble for the discussion of public measures, the right
to be secure against unreasonable searches and seizures, and above all,
and including almost all the rest, the right of not being deprived
of life, liberty, or property without due process of law. These and
still others are specified in the original Constitution, or in the early
amendments of it, as among the privileges and immunities [p*119] of
citizens of the United States, or, what is still stronger for the force
of the argument, the rights of all persons, whether citizens or not.
But even if the Constitution were silent, the fundamental privileges and
immunities of citizens, as such, would be no less real and no less
inviolable than they now are. It was not necessary to say in words that
the citizens of the United States should have and exercise all the
privileges of citizens; the privilege of buying, selling, and enjoying
property; the privilege of engaging in any lawful employment for a
livelihood; the privilege of resorting to the laws for redress of
injuries, and the like. Their very citizenship conferred these
privileges, if they did not possess them before. And these privileges
they would enjoy whether they were citizens of any State or not.
Inhabitants of Federal territories and new citizens, made such by
annexation of territory or naturalization, though without any status as
citizens of a State, could, nevertheless, as citizens of the United
States, lay claim to every one of the privileges and immunities which
have been enumerated, and among these none is more essential and
fundamental than the right to follow such profession or employment as
each one may choose, subject only to uniform regulations equally
applicable to all.
II. The next question to be determined in this case is: is a monopoly or
exclusive right, given to one person, or corporation, to the exclusion
of all others, to keep slaughterhouses in a district of nearly twelve
hundred square miles, for the supply of meat for a great city, a
reasonable regulation of that employment which the legislature has a
right to impose?
The keeping of a slaughterhouse is part of, and incidental to, the trade
of a butcher -- one of the ordinary occupations of human life. To compel
a butcher, or rather all the butchers of a large city and an extensive
district, to slaughter their cattle in another person's slaughterhouse
and pay him a toll therefor is such a restriction upon the trade as
materially to interfere with its prosecution. It is onerous,
unreasonable, arbitrary, and unjust. It has none of the [p*120]
qualities of a police regulation. If it were really a police regulation,
it would undoubtedly be within the power of the legislature. That
portion of the act which requires all slaughterhouses to be located
below the city, and to be subject to inspection, &c., is clearly a
police regulation. That portion which allows no one but the favored
company to build, own, or have slaughterhouses is not a police
regulation, and has not the faintest semblance of one. It is one of
those arbitrary and unjust laws, made in the interest of a few scheming
individuals, by which some of the Southern States have, within the past
few years, been so deplorably oppressed and impoverished. It seems to me
strange that it can be viewed in any other light.
The granting of monopolies, or exclusive privileges to individuals or
corporations is an invasion of the right of others to choose a lawful
calling, and an infringement of personal liberty. It was so felt by the
English nation as far back as the reigns of Elizabeth and James. A
fierce struggle for the suppression of such monopolies, and for
abolishing the prerogative of creating them, was made, and was
successful. The statute of 21st James abolishing monopolies was one of
those constitutional landmarks of English liberty which the English
nation so highly prizes and so jealously preserves. It was a part of
that inheritance which our fathers brought with them. This statute
abolished all monopolies except grants for a term of years to the
inventors of new manufactures. This exception is the groundwork of
patents for new inventions and copyrights of books. These have always
been sustained as beneficial to the state. But all other monopolies were
abolished as tending to the impoverishment of the people and to
interference with their free pursuits. And ever since that struggle, no
English-speaking people have ever endured such an odious badge of
tyranny.
It has been suggested that this was a mere legislative act, and that the
British Parliament, as well as our own legislatures, have frequently
disregarded it by granting exclusive privileges for erecting ferries,
railroads, markets, and other establishments of a public kind. It
requires but a slight [p*121] acquaintance with legal history to know
that grants of this kind of franchises are totally different from the
monopolies of commodities or of ordinary callings or pursuits. These
public franchises can only be exercised under authority from the
government, and the government may grant them on such conditions as it
sees fit. But even these exclusive privileges are becoming more and more
odious, and are getting to be more and more regarded as wrong in
principle, and as inimical to the just rights and greatest good of the
people. But to cite them as proof of the power of legislatures to create
mere monopolies, such as no free and enlightened community any longer
endures, appears to me, to say the least, very strange and illogical.
Lastly: can the Federal courts administer relief to citizens of the
United States whose privileges and immunities have been abridged by a
State? Of this I entertain no doubt. Prior to the fourteenth amendment,
this could not be done, except in a few instances, for the want of the
requisite authority.
As the great mass of citizens of the United States were also citizens of
individual States, many of their general privileges and immunities would
be the same in the one capacity as in the other. Having this double
citizenship, and the great body of municipal laws intended for the
protection of person and property being the laws of the State, and no
provision being made, and no machinery provided by the Constitution,
except in a few specified cases, for any interference by the General
Government between a State and its citizens, the protection of the
citizen in the enjoyment of his fundamental privileges and immunities
(except where a citizen of one State went into another State) was
largely left to State laws and State courts, where they will still
continue to be left unless actually invaded by the unconstitutional acts
or delinquency of the State governments themselves.
Admitting, therefore, that formerly the States were not prohibited from
infringing any of the fundamental privileges and immunities of citizens
of the United States, except [p*122] in a few specified cases, that
cannot be said now, since the adoption of the fourteenth amendment. In
my judgment, it was the intention of the people of this country in
adopting that amendment to provide National security against violation
by the States of the fundamental rights of the citizen.
The first section of this amendment, after declaring that all persons
born or naturalized in the United States, and subject to its
jurisdiction, are citizens of the United States and of the State wherein
they reside, proceeds to declare further that
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;
and that Congress shall have power to enforce by appropriate legislation
the provisions of this article.
Now here is a clear prohibition on the States against making or
enforcing any law which shall abridge the privileges or immunities of
citizens of the United States.
If my views are correct with regard to what are the privileges and
immunities of citizens, it follows conclusively that any law which
establishes a sheer monopoly, depriving a large class of citizens of the
privilege of pursuing a lawful employment, does abridge the privileges
of those citizens.
The amendment also prohibits any State from depriving any person
(citizen or otherwise) of life, liberty, or property, without due
process of law.
In my view, a law which prohibits a large class of citizens from
adopting a lawful employment, or from following a lawful employment
previously adopted, does deprive them of liberty as well as property,
without due process of law. Their right of choice is a portion of their
liberty; their occupation is their property. Such a law also deprives
those citizens of the equal protection of the laws, contrary to the last
clause of the section.
The constitutional question is distinctly raised in these cases; the
constitutional right is expressly claimed; it was [p*123] violated by
State law, which was sustained by the State court, and we are called
upon in a legitimate and proper way to afford redress. Our jurisdiction
and our duty are plain and imperative.
It is futile to argue that none but persons of the African race are
intended to be benefited by this amendment. They may have been the
primary cause of the amendment, but its language is general, embracing
all citizens, and I think it was purposely so expressed.
The mischief to be remedied was not merely slavery and its incidents and
consequences, but that spirit of insubordination and disloyalty to the
National government which had troubled the country for so many years in
some of the States, and that intolerance of free speech and free
discussion which often rendered life and property insecure, and led to
much unequal legislation. The amendment was an attempt to give voice to
the strong National yearning for that time and that condition of things,
in which American citizenship should be a sure guaranty of safety, and
in which every citizen of the United States might stand erect on every
portion of its soil, in the full enjoyment of every right and privilege
belonging to a freeman, without fear of violence or molestation.
But great fears are expressed that this construction of the amendment
will lead to enactments by Congress interfering with the internal
affairs of the States, and establishing therein civil and criminal codes
of law for the government of the citizens, and thus abolishing the State
governments in everything but name; or else, that it will lead the
Federal courts to draw to their cognizance the supervision of State
tribunals on every subject of judicial inquiry, on the plea of
ascertaining whether the privileges and immunities of citizens have not
been abridged.
In my judgment, no such practical inconveniences would arise. Very
little, if any, legislation on the part of Congress would be required to
carry the amendment into effect. Like the prohibition against passing a
law impairing the obligation of a contract, it would execute itself. The
point would [p*124] be regularly raised in a suit at law, and settled by
final reference to the Federal court. As the privileges and immunities
protected are only those fundamental ones which belong to every citizen,
they would soon become so far defined as to cause but a slight
accumulation of business in the Federal courts. Besides, the recognized
existence of the law would prevent its frequent violation. But even if
the business of the National courts should be increased, Congress could
easily supply the remedy by increasing their number and efficiency. The
great question is what is the true construction of the amendment? When
once we find that, we shall find the means of giving it effect. The
argument from inconvenience ought not to have a very controlling
influence in questions of this sort. The National will and National
interest are of far greater importance.
In my opinion the judgment of the Supreme Court of Louisiana ought to be
reversed.
*4 Washington 380. | |
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|
| SWAYNE,
J., Dissenting Opinion
| |
| Mr.
Justice SWAYNE, dissenting.
I concur in the dissent in these cases and in the views expressed by my
brethren, Mr. Justice Field and Mr. Justice Bradley. I desire, however,
to submit a few additional remarks.
The first eleven amendments to the Constitution were intended to be
checks and limitations upon the government which that instrument called
into existence. They had their origin in a spirit of jealousy on the
part of the States which existed when the Constitution was adopted. The
first ten were proposed in 1789 by the first Congress at its first
session after the organization of the government. The eleventh was
proposed in 1794, and the twelfth in 1803. The one last mentioned
regulates the mode of electing the President and Vice-President. It
neither increased nor diminished the power of the General Government,
and may be said in that respect to occupy neutral ground. No further
amendments were made until 1865, a period of more than sixty years. The
thirteenth amendment was proposed by Congress on the 1st of February,
1865, the fourteenth on [p*125] the 16th of June, 1866, and the
fifteenth on the 27th of February, 1869. These amendments are a new
departure, and mark an important epoch in the constitutional history of
the country. They trench directly upon the power of the States, and
deeply affect those bodies. They are, in this respect, at the opposite
pole from the first eleven. [n1]
Fairly construed, these amendments may be said to rise to the dignity of
a new Magna Charta. The thirteenth blotted out slavery and forbade
forever its restoration. It struck the fetters from four millions of
human beings, and raised them at once to the sphere of freemen. This was
an act of grace and justice performed by the Nation. Before the war, it
could have been done only by the States where the institution existed,
acting severally and separately from each other. The power then rested
wholly with them. In that way, apparently, such a result could never
have occurred. The power of Congress did not extend to the subject,
except in the Territories.
The fourteenth amendment consists of five sections. The first is as
follows:
All persons born or naturalized within 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 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.
The fifth section declares that Congress shall have power to enforce the
provisions of this amendment by appropriate legislation.
The fifteenth amendment declares that the right to vote shall not be
denied or abridged by the United States, or by any State, on account of
race, color, or previous condition of servitude. Until this amendment
was adopted the subject [p*126] to which it relates was wholly within
the jurisdiction of the States. The General Government was excluded from
participation.
The first section of the fourteenth amendment is alone involved in the
consideration of these cases. No searching analysis is necessary to
eliminate its meaning. Its language is intelligible and direct. Nothing
can be more transparent. Every word employed has an established
signification. There is no room for construction. There is nothing to
construe. Elaboration may obscure, but cannot make clearer, the intent
and purpose sought to be carried out.
(1) Citizens of the States and of the United States are defined.
(2) It is declared that no State shall, by law, abridge the privileges
or immunities of citizens of the United States.
(3) That no State shall deprive any person, whether a citizen or not, of
life, liberty, or property, without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws.
A citizen of a State is ipso facto a citizen of the United States. No
one can be the former without being also the latter; but the latter, by
losing his residence in one State without acquiring it in another,
although he continues to be the latter, ceases for the time to be the
former. "The privileges and immunities" of a citizen of the
United States include, among other things, the fundamental rights of
life, liberty, and property, and also the rights which pertain to him by
reason of his membership of the Nation. The citizen of a State has the
same fundamental rights as a citizen of the United States, and also
certain others, local in their character, arising from his relation to
the State, and, in addition, those which belong to the citizen of the
United States, he being in that relation also. There may thus be a
double citizenship, each having some rights peculiar to itself. It is
only over those which belong to the citizen of the United States that
the category here in question throws the shield of its protection. All
those which belong to the citizen of a State, except as a bills of
attainder, ex post facto [p*127] laws, and laws impairing the obligation
of contracts, [n2] are left to the guardianship of the bills of rights,
constitutions, and laws of the States respectively. Those rights may all
be enjoyed in every State by the citizens of every other State by virtue
of clause 2, section 4, article 1, of the Constitution of the United
States as it was originally framed. This section does not in anywise
affect them; such was not its purpose.
In the next category, obviously ex industria, to prevent, as far as may
be, the possibility of misinterpretation, either as to persons or
things, the phrases "citizens of the United States" and "privileges
and immunities" are dropped, and more simple and comprehensive
terms are substituted. The substitutes are "any person," and "life,"
"liberty," and "property," and "the equal
protection of the laws." Life, liberty, and property are forbidden
to be taken "without due process of law," and "equal
protection of the laws" is guaranteed to all. Life is the gift of
God, and the right to preserve it is the most sacred of the rights of
man. Liberty is freedom from all restraints but such as are justly
imposed by law. Beyond that line lies the domain of usurpation and
tyranny. Property is everything which has an exchangeable value, and the
right of property includes the power to dispose of it according to the
will of the owner. Labor is property, and as such merits protection. The
right to make it available is next in importance to the rights of life
and liberty. It lies to a large extent at the foundation of most other
forms of property, and of all solid individual and national prosperity.
"Due process of law" is the application of the law as it
exists in the fair and regular course of administrative procedure. "The
equal protection of the laws" places all upon a footing of legal
equality and gives the same protection to all for the preservation of
life, liberty, and property, and the pursuit of happiness. [n3] [p*128]
It is admitted that the plaintiffs in error are citizens of the United
States, and persons within the jurisdiction of Louisiana. The cases
before us, therefore, present but two questions.
(1) Does the act of the legislature creating the monopoly in question
abridge the privileges and immunities of the plaintiffs in error as
citizens of the United States?
(2) Does it deprive them of liberty or property without due process of
law, or deny them the equal protection of the laws of the State, they
being persons "within its jurisdiction?"
Both these inquiries I remit for their answer as to the facts to the
opinions of my brethren, Mr. Justice Field and Mr. Justice Bradley. They
are full and conclusive upon the subject. A more flagrant and
indefensible invasion of the rights of many for the benefit of a few has
not occurred in the legislative history of the country. The response to
both inquiries should be in the affirmative. In my opinion, the cases,
as presented in the record, are clearly within the letter and meaning of
both the negative categories of the sixth section. The judgments before
us should, therefore, be reversed.
These amendments are all consequences of the late civil war. The
prejudices and apprehension as to the central government which prevailed
when the Constitution was adopted were dispelled by the light of
experience. The public mind became satisfied that there was less danger
of tyranny in the head than of anarchy and tyranny in the members. The
provisions of this section are all eminently conservative in their
character. They are a bulwark of defence, and can never be made an
engine of oppression. The language employed is unqualified in its scope.
There is no exception in its terms, and there can be properly none in
their application. By the language "citizens of the United States"
was meant all such citizens; and by "any person" [p*129] was
meant all persons within the jurisdiction of the State. No distinction
is intimated on account of race or color. This court has no authority to
interpolate a limitation that is neither expressed nor implied. Our duty
is to execute the law, not to make it. The protection provided was not
intended to be confined to those of any particular race or class, but to
embrace equally all races, classes, and conditions of men. It is
objected that the power conferred is novel and large. The answer is that
the novelty was known, and the measure deliberately adopted. The power
is beneficent in its nature, and cannot be abused. It is such as should
exist in every well-ordered system of polity. Where could it be more
appropriately lodged than in the hands to which it is confided? It is
necessary to enable the government of the nation to secure to everyone
within its jurisdiction the rights and privileges enumerated, which,
according to the plainest considerations of reason and justice and the
fundamental principles of the social compact all are entitled to enjoy.
Without such authority, any government claiming to be national is
glaringly defective. The construction adopted by the majority of my
brethren is, in my judgment, much too narrow. It defeats, by a
limitation not anticipated, the intent of those by whom the instrument
was framed and of those by whom it was adopted. To the extent of that
limitation, it turns, as it were, what was meant for bread into a stone.
By the Constitution as it stood before the war, ample protection was
given against oppression by the Union, but little was given against
wrong and oppression by the States. That want was intended to be
supplied by this amendment. Against the former, this court has been
called upon more than once to interpose. Authority of the same amplitude
was intended to be conferred as to the latter. But this arm of our
jurisdiction is, in these cases, stricken down by the judgment just
given. Nowhere than in this court ought the will of the nation, as thus
expressed, to be more liberally construed or more cordially executed.
This determination of the majority seems to me to lie far in the other
direction. [p*130]
I earnestly hope that the consequences to follow may prove less serious
and far-reaching than the minority fear they will be.
1. Barron v. Baltimore, 7 Peters 243 ; Livingston v. Moore,
ib. 551; Fox v. Ohio, 5 Howard 429; Smith v. Maryland,
18 id. 71; Pervear v. Commonwealth, 5 Wallace 476; Twitchell
v. Commonwealth, 7 id. 321.
2. Constitution of the United States, Article I, Section 10.
3. Corfield v. Coryell, 4 Washington 380; Lemmon
v. The People, 26 Barbour 274, and 20 New York 626; Conner v.
Elliott, 18 Howard 593; Murray v. McCarty, 2 Mumford 399;
Campbell v. Morris, 3 Harris & McHenry 554; Towles's
Case, 5 Leigh 748; State v. Medbury, 3 Rhode Island 142; 1
Tucker's Blackstone 145; 1 Cooley's Blackstone 125, 128. |
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