U.S. Supreme Court
Slaughterhouse Cases, 83 U.S. 16 Wall. 36 36 (1872)
Slaughterhouse Cases*
83 U.S. (16 Wall.) 36
ERROR TO THE SUPREME COURT OF
LOUISIANA
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. 83 U. S.
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
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,
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
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
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
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
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
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 [Footnote 1]) 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. "
"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.
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,
pending the action of the court on the merits. The opinion on that
motion is reported in 77 U. S. 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
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
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
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.
It 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
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, [Footnote 2]
"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 [Footnote 3] 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, [Footnote 4]
"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. "
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, [Footnote 5] 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. [Footnote 6] 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.
To the same purpose are the recent
cases of the The License Tax, [Footnote 7] and United States v. De Witt. [Footnote 8] 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
[Footnote 9] in relation to the power of Congress to
organize
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
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.
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,
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.
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. [Footnote 10] And it is all that we deem necessary to say
on the application of that article to the statute of Louisiana, now under
consideration.
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
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,
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
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.
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.
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. [Footnote 11]
"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, [Footnote 12] 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,
[Footnote 13] 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
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
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
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. [Footnote 14] 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,
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
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
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.
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.
See infra, pp. 83 U. S.
85, 83
U. S. 86.
2
Commentaries 340.
Commonwealth v. Alger, 7 Cushing 84.
Thorpe
v. Rutland and Burlington Railroad Co.,
27 Vermont 149.
22 U. S.
9 Wheaton 203.
36 U. S. 11 Peters 102.
72 U.
S. 5 Wallace 471.
76 U. S. 9
id., 41.
17 U. S. 4
Wheaton 316.
Matter
of Turner, 1 Abbott United States Reports 84.
4
Washington's Circuit Court 371.
79 U. S. 12 Wallace 430.
75 U.
S. 8 id., 180.
73 U. S.
6 Wallace 36.
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
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
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
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
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
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
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
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,
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, [Footnote 2/1] and, in April of the following year, the
Civil Rights Act was passed. [Footnote 2/2] 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
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. [Footnote 2/3]"
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
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
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. [Footnote 2/4]"
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.
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
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
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. [Footnote 2/5]
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, [Footnote 2/6] 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
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, [Footnote 2/7] 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
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
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
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
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
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. [Footnote 2/8]"
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. "
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." [Footnote 2/9]
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
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. [Footnote 2/10] 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, [Footnote 2/11] which was
before the Supreme Court of Illinois, we have a case similar in all its
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
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, [Footnote 2/12] 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,
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, [Footnote 2/13] 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,
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. [Footnote 2/14] As stated by
the Supreme Court of Connecticut in
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. [Footnote 2/15]
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.
The proclamation of its ratification
was made on that day (13 Stat. at Large 774).
14 id.
27.
Congressional Globe, 1st Session,
39th Congress, part 1, page 474.
Calhoun's Works, vol. 2, p. 242.
May 31st,
1870; 16 Stat. at Large 144.
4
Washington's Circuit Court 380.
75 U. S. 8
Wallace 168.
Coke's Reports, part 11, page 86.
Journals of Congress, vol. i, pp. 28-30.
Live-Stock
&c. Association v.
The Crescent City, &c., Company,
1 Abbott's United States Reports 398.
45
Illinois 90.
25
Connecticut 19.
7 Paige
261.
"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."
"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.
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
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,
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
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
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
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
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;
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
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
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
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
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
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
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.
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
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. [Footnote 3/1]
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
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
laws, and laws impairing the obligation of contracts, [Footnote 3/2] 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. [Footnote 3/3]
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"
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.
I earnestly hope that the
consequences to follow may prove less serious and far-reaching than the
minority fear they will be.
Barron v.
Baltimore, 7 Peters 243; Livingston v.
Moore, ib. 32 U.
S. 551; Fox v.
Ohio, 5 Howard 410, 429 [argument of counsel -- omitted]; Smith v.
Maryland, 18 id. 71; Pervear v. Commonwealth, 5 Wallace 476; Twitchell v. Commonwealth, 7 id.
321.
Constitution of the United States,
Article I, Section 10.
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.