SLAUGHTER-HOUSE CASES.; THE BUTCHERS' BENEVOLENT ASSOCIATION OF
NEW ORLEANS v. THE CRESCENT CITY LIVE-STOCK LANDING AND SLAUGHTER-HOUSE
COMPANY.; PAUL ESTEBEN, 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.
SUPREME COURT OF THE UNITED STATES
83 U.S. 36; 1872 U.S. LEXIS 1139; 21 L. Ed. 394; 16 Wall.
36
DECEMBER, 1872, Term
[summary material removed]
OPINION: [*57] [***402] 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 Live-Stock Landing and Slaughter-House
Company in the exercise [**41] 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, n11 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.
n11 See supra, p. 36, sub-title.
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, [*58] pending the action of the court on
the merits. The opinion on that motion is reported in 10 Wallace, 273.
On account of the importance of the questions involved in these cases they
were, by permission of the court, taken up out of their order on the docket and
argued in January, 1872. At that hearing one of the justices was absent, and it
was found, on consultation, that there was a diversity of views among those who
were present. [***403] Impressed with the gravity of the questions
raised in the argument, the court under [**42] 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, n12 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.
n12 See subtitle, supra, p. 36. -- REP.
The [**43] 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 [*59] to
review the judgment of the State court on those questions is clear and is
imperative.
The statute thus assailed as unconstitutional was passed March 8th, 1869, and
is entitled "An act to protect the health of the city of New Orleans, to
locate the stock-landings and slaughter-houses, and to incorporate the Crescent
City Live-Stock Landing and 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
slaughter-houses or abattoris within those limits except by the corporation
thereby created, which is also limited to certain places afterwards mentioned.
Suitable penalties are enacted [**44] 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 stock-yards,
stock-landings, and slaughter-houses, and imposes upon it the duty of erecting,
on or before the first day of June, 1869, one grand slaughter-house 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 live-stock landing
and slaughter-house business within the limits and privilege granted by the
act, and that all such animals shall by landed at the stock-landings and slaughtered
at the slaughter-houses 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 [**45]
stock-landings [*60] and slaughter-houses 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
slaughter-houses 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 [**46] 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 sence 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 stock-yards, and [*61] the other to
slaughter-houses. 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
[**47] 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 slaughter-house 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, [***404] 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 od 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
[**48] 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
[*62] duties and guards imposed upon the company, can be said to
destroy the business of the butcher, or seriously interfere with its pursuit.
The power here exercised by the legislature of Louisiana is, in its essential
nature, one which has been, up to the present period in the constitutional
history of this country, always conceded to belong to the States, however it
may now be questioned in some of its details.
"Unwholesome trades, slaughter-houses, operations offensive to the senses,
the [**49] 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, n13 "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 n14 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.
n13 2 Commentaries, 340.
n14 Commonwealth v. Alger, 7 Cushing, 84.
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 and social life, and the
beneficial use of property. "It extends," says another eminent judge,
n15 "to the protection of the lives, limbs, health, comfort, and quiet of
all [**50] 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."
n15 Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont, 149.
[*63] The regulation of the place and manner of conducting the
slaughtering of animals, and the business of butchering within a city, and the
inspection of the animals to be killed for meat, and of the meat afterwards,
are among the most necessary and frequent exercises of this power. It is not,
therefore, needed that we should seek for a comprehensive definition, but
rather look for the proper source of its exercise.
In Gibbons v. Ogden, n16 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
[**51] 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."
n16 9 Wheaton, 203.
The exclusive authority of State legislation over this subject is strikingly
illustrated in the case of the City of New York v. Miln. n17 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 [**52] 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.
n17 11 Peters, 102.
[*64] To the same purpose are the recent cases of the The License
Tax, n18 and United States v. De Witt. n19 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.
n18 5 Wallace, 471.
n19 9 Id. 41.
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
slaughter-houses, 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 [**53] are appropriate, are stringent, and effectual. But
it is said that in creating a corporation for this purpose, and conferring upon
it exclusive privileges -- [***405] 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 altained 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 McCullock
v. [**54] The State of Maryland, n20 in relation to the power of
Congress to organize [*65] the Bank of the United States to aid in the
fiscal operations of the government.
n20 4 Wheaton, 316.
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, [**55] 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 [*66]
establishes that the contest was between the crown, and the people represented
in Parliament.
But we think it may be safely affirmed, that the Parliament of Great Britain,
representing the people in their [**56] 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 [**57] 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 or 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.
[*67] This court is thus called upon for the first time to give
construction to these articles.
We do not conceal from ourselves the great responsibility which this duty
devolves upon us. No questions so farreaching 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, and 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
[**58] 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 is 1789. Of these all but
the last were adopted so soon afterwards as to justify the statement
[***406] 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 last 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 [**59] 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; [*68] additional powers to the Federal government;
additional restraints upon those of the States. Fortunately that history is
fresh within the memory of us all, and its leading features, as they bear upon
the matter before us, free from doubt.
The institution of African slavery, as it existed in about half the State 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
[**60] 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 re-establishing
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 [**61] of the restored Union as one of its
fundamental articles. Hence the thirteenth article of amendment of that
instrument. [*69] Its two short sections seem hardly to admit of
construction, so vigorous is their expression and so appropriate to the purpose
we have indicated.
"1. Neither slavery nor involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted, shall exist within the
United States or any place subject to their jurisdiction.
"2. Congress shall have power to enforce this article by appropriate
legislation."
To withdraw the mind from the contemplation of this grand yet simple declaration
of the personal freedom of all the human race within the jurisdiction of this
government -- a declaration designed to establish the freedom of four millions
of slaves -- and with a microscopic search endeavor to find in it a reference
to servitudes, which may have been attached to property in certian 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 [**62] 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 reducting 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. n21 And it
is all that we deem necessary to say on the application of that article to the
statute of Louisiana, now under consideration.
n21 Matter of Turner, 1 Abbott United States Reports, 84.
[*70] The process of restoring to their proper relations with the
Federal government and with the other States those which had sided with the
rebellion, undertaken under the proclamation of President Johnson
[**63] 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 [**64] men, either because the laws for their
protection were insufficient or were not enforced.
[***407] 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 accordinaly 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 [*71] ratified that article by a formal
vote of their legislative bodies.
Before we proceed to examine more critically the provisions of this amendment,
on which the plaintiffs in error rely, let us complete and dismiss the history
of the recent amendments, as that history relates to the general purpose which
pervades them all. A few years' experience satisfied the thoughtful men
[**65] 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 [**66] 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,
[*72] mentions the negro by speaking of his color and his slavery.
But it is just as true that each of the other articles was addressed to the
grievances of that race, and designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this protection. Both
the language and spirit of these articles are to have their fair and just
weight in any question of construction. Undoubtedly while negro slavery alone
was in the mind of the Congress which proposed the thirteenth article, it
forbids any other kind of slavery, now or hereafter. If Mexican peonage or the
Chinese coolie labor system shall develop slavery of the Mexican or Chinese
race within our territory, [**67] 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 accom plish 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 [**68] 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 [*73] this proposition was sound
or not had never been judicially decided. But it had been held by this court,
in the celebrated Dred Scott case, only a few years before the outbreak of the
civil war, that a man of African descent, whether a slave or not, was not and
could not be a citizen of a State or of the United States. This decision, while
it met the condemnation of some of the ablest statesmen and constitutional
lawyers of the country, had never been overruled; and if it 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 a clear and comprehensive
definition of citizenship which should declare what should constitute
citizenship [**69] 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 [***408] 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 [**70] of a State is clearly recognized and
established. [*74] Not only may a man be a citizen of the United
States without being a citizen of a State, but an important element is
necessary to convert the former into the latter. He must reside within the
State to make him a citizen of it, but it is only necessary that he should be
born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and
a citizenship of a State, which are distinct from each other, and which depend
upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this amendment of
great weight in this argument, because the next paragraph of this same section,
which is the one mainly relied on by the plaintiffs in error, speaks only of
privileges and immunities of citizens of the United States, and does not speak
of those of citizens of the several States. The argument, however, in favor of
the plaintiffs rests wholly on the assumption that the citizenship is the same,
and the privileges and immunities guaranteed by the clause are the same.
The language is, "No [**71] 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.
[*75] If, then, there is a difference between the privileges and
immunities belonging to a citizen of the United States as such, and those
belonging to the citizen of the [**72] 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 [**73] 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 1825. n22
n22 4 Washington's Circuit Court, 371.
[*76] "The inquiry," he says, "is, what are the
privileges and immunities of citizens of the several States? We feel no
hesitation in confining these expressions to those privileges and immunities
which are fundamental; which belong of right to the citizens of all free
governments, and which have at all times been enjoyed by citizens of the
several States which compose this Union, from the time of their becoming free,
independent, and sovereign. What these fundamental principles are, it would be
[**74] 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, n23 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 [**75]
governments were created to establish and secure.
n23 12 Wallace, 430.
In the case of Paul v. Virginia, n24 the court, in expounding this clause of
the Constitution, says that "the privileges [***409] 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 [*77] States under their constitution
and laws by virtue of their being citizens."
n24 8 Id. 180.
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. [**76]
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 [**77] 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 [*78]
plaintiffs in error be sound. For not only are these rights subject to the
control of Congress whenever in its discretion any of them are supposed to be
abridged by State legislation, but that body may also pass laws in advance,
limiting and restricting the exercise of legislative power by the States, in
their most ordinary and usual functions, as in its judgment it may think proper
on all such subjects. And still further, such a construction followed by the
reversal of the judgments of the Supreme Court of Louisiana in these cases,
would constitute this court a perpetual censor upon all legislation of the
States, on the civil rights of their own citizens, with authority to nullify
such as it did not approve as consistent with those rights, as they existed at
the time of the adoption of this amendment. The argument we admit is not always
the most conclusive which is drawn from the consequences urged against the
adoption of a particular construction of an instrument. But when, as in the
case [**78] 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 [*79] and [**79]
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 be
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. n25 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 all operations of foreign commerce are conducted, to the
subtreasuries, 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, [**80] 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.
n25 6 Wallace, 36.
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
[***410] foreign nations, [*80] are dependent upon
citizenship of the United States, and not citizenship of a State. One of these
privileges is conferred by the very article under consideration. It is that a
citizen of the United States can, of his own volition, become a citizen of any
State of the [**81] 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 fourteenth 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 [**82] 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 [*81] is sufficient to say
that under no construction of that provision that we have ever seen, or any
that we deem admissible, can the restraint imposed by the State of Louisiana
upon the exercise of their trade by the butchers of New Orleans be held to be a
deprivation of property within the meaning of that provision.
"Nor shall any State deny to any person within its jurisdiction the equal
protection of the laws."
In the light of the history of these amendments, and the pervading
[**83] 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
[**84] 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
[*82] never been very well defined in public opinion, such a
division has continued from that day to this.
The adoption of the first eleven amendments to the Constitution so soon after
the original instrument was accepted, shows a prevailing sense of danger at
that time from the Federal power. And it cannot be denied that such a jealousy
continued to exist with many patriotic men until the breaking out of the late
civil war. It was then discovered that the true danger to the perpetuity of the
Union was in the capacity of the State organizations to combine and concentrate
all the powers of the State, and of contiguous States, for a determined
resistance to the General Government.
Unquestionably this has given great force to the argument, and added largely to
the number of those who believe in the necessity [**85] 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 States 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
[**86] of the Constitution, or of any of its parts.
[*83] The judgments of the Supreme Court of Louisiana in these
cases are
AFFIRMED.
DISSENTBY: FIELD; BRADLEY; SWAYNE
DISSENT: Mr. Justice FIELD, dissenting:
I am unable to agree with the majority of the [***411] courts 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 slaughter-houses, 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 [**87] establish any stock-landing, yards, slaughter-houses, 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 [*84] yarded, sheltered, and protected, if
necessary; and that the company shall be entitled to certain prescribed fees
for the use of its wharves, and for each animal landed, and be authorized to
detain the animals until the fees are paid, and if not paid within fifteen
[**88] 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 slaughter-house 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 slaughter-houses at any points
consistent with the provisions of the act.
The act then provides that when the slaughter-houses and accessory buildings
have been completed and thrown opon for use, public notice thereof shall be
given for thirty days, and within that time "all other stock-landings and
slaughter-houses 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." [**89]
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
[*85] from the provisions I have cited, but it is declared in
express terms in the act. In the third section the language is that the
corporation "shall have the sole and exclusive privilege of conducting and
carrying on the live-stock, landing, and slaughter-house 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 [**90] intended for sale or slaughter in the parishes
of Orleans and Jefferson," and "the exclusive privilege of having
slaughtered" in its slaughter-houses 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 [**91] 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 [*86] is
this: That prior to the passage of the act in question they were engaged in the
lawful and necessary business of procuring and bringing to the parishes of
Orleans, Jefferson, and St. Bernard, animals suitable for human fodd, 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
[***412] 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 [**92]
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 any one 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 [**93] 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 [*87] show that the
position has some support in the fundamental law of the country.
It is contended in justification for the act in question that it was adopted in
the interest of the city, to promote its cleanliness and protect its health,
and was the legitimate exercise of what is termed the police power of the
State. That power undoubtedly extends to all regulations affecting the health,
good order, morals, peace, and safety of society, and is exercised on a great
variety of subjects, and in almost numberless ways. All sorts of restrictions
and burdens are imposed under it, and when these are not in conflict with any
constitutional prohibitions, or fundamental principles, they cannot be
successfully assailed in a judicial tribunal. With this power of the State and
its legitimate exercise I shall not differ from the majority of the court. But
under the pretence of prescribing a police regulation the State cannot be
permitted to encroach [**94] 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 [**95] and slaughtering calle, but no such
[*88] object could possibly justify legislation removing such
buildings from a large part of the State for the benefit of a single
corporation. The pretence of sanitary regulations for the grant of the
exclusive privileges is a shallow one, which merits only this passing notice.
It is also sought to justify the act in question on the same principle that
exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can
find no support there. Those grants are of franchises of a public character
appertaining to the government. Their use usually requires the exercise of the
sovereign right of eminent domain. It is for the government to determine when
one of them shall be granted, and the conditions upon which it shall be
enjoyed. It is the duty of the government to provide suitable roads, bridges,
and ferries for the convenience of the public, and if it chooses to devolve
this duty to any extent, or in any locality, upon particular individuals or
corporations, it may of course stipulate for such exclusive privileges
connected with the franchise as it may deem proper, without encroaching upon
the freedom or the just rights of [**96] 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
[*89] for twenty-five years, for an extensive district and a large
population, in a single corporation, or its exercise is for that period
restricted to the establishment of the corporation, [**97] 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 a 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 [***413] 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
[**98] 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
[*90] previously prevailed in this country, and to which the recent
civil war owed its existence, that I was not prepared, nor am I yet, to give to
it the extent and force ascribed by counsel. Still it is evident 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 [**99] 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 every one 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 [**100] 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, [*91] and would equally constitute an
element of servitude. The counsel of the plaintiffs in error therefore contend
that "wherever a law of a State, or a law of the United States, makes a
discrimination between classes of persons, which deprives the one class of
their freedom or their property, or which makes a caste of them to subserve the
power, pride, avarice, vanity, or vengeance of others," there involuntary
servitude exists within the meaning of the thirteenth amendment.
It is not necessary, in my judgment, for the disposition of the present case in
favor of [**101] 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, n26 and in
April of the following year the Civil Rights Act was passed. n27 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."
n26 The proclamation of its ratification was made on that day (13 Stat. at
Large, 774).
n27 14 Id. 27. [**102]
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
[*92] servitude. Senator Trumbull, who drew the act and who was its
earnest advocate in the Senate, stated, on opening the discussion upon it in
that body, that the measure was intended to give effect to the declaration of
the amendment, and to secure to all persons in the United States practical
freedom. After referring to several statutes passed in some of the Southern
States, discriminating between the freedmen and white citizens, and after
citing the definition of civil liberty given by Blackstone, the Senator said:
"I take it that any statute which is not equal to all, and which deprives
any citizen of civil rights, which are secured to other citizens, is an unjust
encroachment upon his liberty; and it is in fact a badge of servitude which by
the Constitution is prohibited." n28
n28 Congressional Globe, 1st Session, 39th Congress, part 1, page 474
[***414] By the [**103] 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 foot 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
[**104] the peasantry in some parts of France, where, as says a
French [*93] writer, the peasant was prohibted "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 [**105] 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 [*94] process of law, nor deny to any person within its
jurisdiction the equal protection of the laws."
The first clause of this amendment determines who are citizens of the
[**106] United States, and how their citizenship is created. Before
its enactment there was much diversity of opinion among jurists and statesmen
whether there way 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,
[**107] 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." n29
n29 Calhoun's Works, vol. 2, p. 242.
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.
[*95] The Chief Justice, in that case, and a majority of the court
with him, held that the words "people of the United States" and
"citizens" were synonymous terms; that the people of the respective
States were the parties to the Constitution; that these people consisted of the
free inhabitants of those States; that they had provided in their Constitution
for the adoption of a uniform rule of naturalization; that they and their
descendants and persons naturalized [**108] 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 [***415] 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 [**109] 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 equcation 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 [*96] their existence from its legislation, and cannot
be destroyed by its power.
The amendment does not attempt to confer any new privileges or immunities upon
citizens, or to enumerate or define those already existing. It assumes that
there are such privileges and immunities which belong of right to citizens as
such, and ordains that they shall not be abridged by State legislation. If this
inhibition has no reference to privileges and immunities of this character, but
only refers, as held by the majority of the court in their opinion, to such
privileges and immunities as were before its adoption specially designated
[**110] 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 [**111] 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 [*97] of a similar
character, extending the protection of the National government over the common
rights of all citizens of the United States. Accordingly, after its
ratification, Congress re-enacted the act under the belief that whatever doubts
may have previously existed of its validity, they were removed by the
amendment. n30
n30 May 31st, 1870; 16 Stat. at Large, 144.
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, n31 Mr. Justice
Washington said he had "no hesitation [**112] 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 [**113] discussions
[*98] in Congress upon the passage of the Civil Rights Act repeated
reference was made to this language of Mr. Justice Washington. It was cited by
Senator Trumbull with the observation that it enumerated the very rights
belonging to a citizen of the United States set forth in the first section of
the act, and with the statement that all persons born in the United States,
being declared by the act citizens of the United States, would thenceforth be
entitled to the rights of citizens, and that these were the great fundamental
rights set forth in the act; and that they were set forth "as appertaining
to every freeman."
n31 4 Washington's Circuit Court, 380.
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 the States in their enjoyment, nor can [**114] 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, n32
[***416] 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 [*99] their business
within the State; and in the case cited the validity of the discriminating
provisions of the statute of Virginia between her own corporations and the
corporations of other States, was assailed. It was contended that the statute
in this [**115] 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 thought 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 as 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
[**116] 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, or those States; and that the special
privileges which they conferred must, therefore, be enjoyed at home unless the
assent [*100] of other States to their enjoyment therein were
given. And so the court held, that a corporation, being a grant of special
privileges to the corporators, had no legal existence beyond the limits of the
sovereignty where created, and that the recognition of its existence by other
States, and the enforcement of its contracts made therein, depended purely upon
[**117] the assent of those States, which could be granted upon
such terms and conditions as those States might think proper to impose.
32 8 Wallace, 168.
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 non-resident 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 non-resident trader
contravened the clause [**118] 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 non-resident, was subject by the statute of
Maryland to a greater burden than was imposed upon a like privilege of her own
citizens. The privileges of the non-resident were in this particular abridged
by that legislation.
That 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 [*101] the protection of every citizen of the
United States against hostile and discriminating legislation against him in
favor of others, whether they reside in the same or in different States. If
under the fourth article of the Constitution equality of privileges and
immunities is secured between citizens of different States, under the
fourteenth amendment the same equality is secured between citizens of the
United States.
It will not be pretended that under the fourth article of the Constitution any
State could create a monopoly in any known trade or manufacture in
[**119] 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 non-resident
citizens from engaging in a similar manufacture or sale. The non-resident
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 [***417] protection of every
citizen of the United States against the creation [**120] 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 [*102] held void at
common law in the great Case of Monopolies, decided during the reign of Queen
Elizabeth.
A monopoly is defined "to be an institution or allowance from the
sovereign power of the State by grant, commission, or otherwise, to any person
or corporation, for the sole buying, selling, making, working, or using of
anything, whereby any person or persons, bodies politic or corporate, are
sought to be restrained of any freedom or liberty they had before, or hindered
in their lawful trade." All such grants relating to any known trade or
manufacture have been held by all the judges of England, whenever they have
come up for consideration, to be void at common law as destroying the freedom
of trade, discouraging labor and industry, restraining [**121]
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 [**122] 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 [*103] right to import playing-cards,
and the entire traffic in them, and the sole right to make such cards within
the realm. The defendant, in disregard of this patent, made and sold some gross
of such cards and imported others, and was accordingly sued for infringing upon
the exclusive privileges of the plaintiff. As to a portion of the cards made
and sold within the realm, he pleaded that he was a haberdasher in London and a
free citizen of that city, and as such had a right to make and sell them. The
court held the plea good and the grant void, as against the common law and
divers acts of Parliament. "All trades," said the court, "as
well mechanical as others, which prevent idleness (the bane of the commonwealth)
and exercise men and youth in labor for the maintenance of themselves and their
families, and for the increase of their substance, to serve the queen when
occasion shall require, are profitable for the commonwealth, and therefore the
grant [**123] to the plaintiff to have the sole making of them is
against the common law and the benefit and liberty of the subject." n33
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 cloth-worker, 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 cloth-worker, 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 cloth-worker 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."
n33 Coke's Reports, part 11, page 86. [**124]
[*104] Although the court, in its opinion, refers to the increase in
prices and deterioration in quality of commodities which necessarily result
from the grant of monopolies, the main ground of the decision was their
interference with the liberty of the subject to pursue for his maintenance and
that of his family any lawful trade or employment. This liberty is assumed to
be the natural right of every Englishman.
The struggle of the English people against monopolies forms one of the most
interesting and instructive chapters in their history. It finally ended in the
passage of the statute of 21st James I, by which it was declared "that all
monopolies and all commissions, grants, licenses, charters, and letters-patent,
to any person or persons, bodies politic or corporate, whatsoever, of or for
the sole buying, selling, making, working, or using of anything" within
the realm or the dominion of Wales were altogether contrary to the laws of the
realm and utterly void, with the exception of patents for new inventions for a
limited period, and for printing, then supposed to belong to the prerogative of
the king, and for the preparation and manufacture of certain articles and
ordnance [**125] 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 [***418]
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." n34 [*105] Of the statutes, the benefits of which
was thus claimed, the statute of James I against monopolies was one of the most
important. [**126] 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."
n34 Journals of Congress, vol. i, pp. 28-30.
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 [**127] 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 [*106] citizen of the United States
should be able to plead his citizenship of the republic as a protection against
any similar invasion of his privileges and immunities.
So fundamental has this privilege of every citizen to be free from disparaging
and unequal enactments, in the pursuit of the ordinary avocations of life, been
regarded, that few instances have arisen where [**128] 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. n35 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 [**129] 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."
n35 Live-Stock, &c., Association v. The Crescent City, &c., Company (1
Abbott's United States Reports, 398).
In the City of Chicago v. Rumpff, n36 which was before the Supreme Court of
Illinois, we have a case similar in all its [*107] features to the
one at bar. That city being authorized by its charter to regulate and license
the slaughtering of animals within its corporate limits, the common council
passed what was termed an ordinance in reference thereto, whereby a particular
building was designated for the slaughtering of all animals intended for sale
or consumption in the city, the owners of which were granted the exclusive
right for a specified period to have all such animals slaughtered at their
establishment, they to be paid a specific sum for the privilege of slaughtering
there by all persons exercising it. The validity [**130] 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, al 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 [**131] 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 [***419] be paid a specific sum for
the privilege, what would prevent the making a [*108] similar
contract with some other person that all of the vegetables, or fruits, the
flour, the groceries, the dry goods, or other commodities should be sold on his
lot and he receive a compensation for the privilege? We can see no difference
in principle."
n36 45 Illinois, 90.
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 [**132]
City Gas Company, n37 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 [**133] 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, [*109] yet the whole theory of a free
government is opposed to such grants, and it does not require even the aid
which may be derived from the Bill of Rights, the first section of which
declares 'that no man or set of men are entitled to exclusive public emoluments
or privileges from the community,' to render them void."
n37 25 Connecticut, 19.
In the Mayor of the City of Hudson v. Thorne, n38 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 [**134] 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."
n38 7 Paige, 261.
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, [*110] throughout the whole
country, is the distinguishing privilege of citizens of the United States. To
them, everywhere, all pursuits, all professions, [**135] 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. n39 As stated by the [***420] [**136]
supreme court of Connecticut, in [*111] the case cited, grants of
exclusive privileges, such as is made by the act in question, are opposed to
the whole theory of free government, and it requires no aid from any bill of
rights to render them void. That only is a free government, in the American
sense of the term, under which the inalienable right of every citizen to pursue
his happiness is unrestrained, except by just, equal, and impartial laws. n40
n39 "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."
n40 "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.) [**137]
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.
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 slaughter-houses, landings for cattle, and yards for
[*112] confining cattle intended for slaughter, within the parishes
of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve
hundred square miles, including the city of New Orleans; and prohibiting all
other persons [**138] from building, keeping, or having
slaughter-houses, 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
slaughter-houses 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 slaughter-houses, in a district of nearly
twelve hundred square miles, for the supply of meat for a large city, a
reasonable regulation of that [**139] 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
derviative, 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, [*113] and an equality
of rights with every other citizen; and the whole power of the nation is
pledged to sustain him in that right. He is not bound to cringe to any
superior, or to pray for any act of grace, as a means of enjoying all the
rights and privileges enjoyed by other citizens. And when the spirit of
lawlessness, mob violence, and sectional hate can be so completely repressed as
to give full practical effect to this right, we shall be a happier nation, and
a more prosperous [**140] 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 State 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 [**141] 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
[*114] his most valuable rights, and one which the legislature of a
State cannot invade, whether restrained by its own constitution or not.
The right of a State to regulate the conduct of its citizens is undoubtedly a
very broad and extensive one, and not to be lightly restricted. But there are
certain fundamental rights which this right of regulation cannot infringe. It
may [***421] 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 [**142] 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
Englishment; the [**143] 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 [*115] him but by lawful judgment of his
peers or by the law of the land." English constitutional writers expound
this article as rendering life, liberty, and property inviolable, except by due
process of law. This is the very right which the plaintiffs in error claim in
this case. Another of these rights was that of habeas corpus, or the right of
having any invasion of personal liberty judicially examined into, at once, by a
competent judicial magistrate. Blackstone classifies these fundamental rights
under three heads, as the absolute rights of individuals, to wit: the right of
personal security, the right of personal liberty, and the right of private
property. And of the last he says: "The third absolute right, inherent in
every Englishman, is that of property, which consists in the free use,
enjoyment, [**144] 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, [**145] 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
[*116] was the first political act of the American people in their
independent sovereign capacity, lays the foundation of our National existence
upon this broad proposition: "That all men are created equal; that they
are endowed by their Creator with certain inalienable rights; that among these
are life, liberty, and the pursuit of happiness." Here again we have the
great threefold division of the rights of freemen, asserted as the rights of
ma. 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 sway 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 [**146] 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. Corgell, n41 is very instructive. Being [*117] called upon to
expound that clause in the fourth article of the Constitution, which declares
that "the citizens of each State shall be entitled to all the privileges
[**147] 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 fell 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 for the time of their becoming free, independent, and sovereign. What
these fundamental [***422] 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;
[**148] 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."
n41 4 Washington, 380.
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; [*118] which belong, of right, to the
citizens of all free governments."
It is true the courts have usually regarded the clause referred to as securing
only an equality of privileges with the citizens of the State in which the
parties are found. Equality before the [**149] 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. [**150] 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 [*119] of citizens of the
United States, or, what is still stronger for the force of the argument, the
rights of all persons, whether citizens or not.
But even if the Constitution were silent, the fundamental privileges and
immunities of citizens, as such, would be no less real and no less inviolable
than they now are. It was not necessary to say in words that the citizens of
the United States should have and exercise all the privileges of citizens; the
privilege of buying, [**151] 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 be
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 slaughter-houses 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 [**152] a right to impose?
The keeping of a slaughter-house 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 slaughter-house 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 [*120] qualities of a police regulation. If it were
really a police regulation, it would undoubtedly be within the power of the
legislature. That portion of the act which requires all slaughter-houses 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 slaughter-houses 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 [**153] to me strange that it can be
viewed in any other light.
The granting of monopolies, or exclusive [***423] 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 prize and so jealously preserve. 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
[**154] 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 [*121] acquaintance with legal history to know that grants
of this kind of franchises are totally different from the monopolies of
commodities or of ordinary callings or pursuits. These public franchises can
only be exercised under authority from the government, and the government may
grant them on such conditions as it sees fit. But even these exclusive
privileges are becoming more and more odious, and are getting to be more and
more regarded as wrong in principle, and as inimical to the just rights and
greatest good of the people. But to cite them as proof of the power of
legislatures to create mere monopolies, such as no free and enlightened
community any longer endures, appears to me, to say the least, strange and
illogical.
Lastly: Can the Federal courts administer relief to citizens of the United
States whose privileges and [**155] 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 [**156] and immunities
of citizens of the United States, except [*122] in a few specified
cases, that cannot be said now, since the adoption of the fourteenth amendment.
In my judgment, it was the intention of the people of this country in adopting
that amendment to provide National security against violation by the States of
the fundamental rights of the citizen.
The first section of this amendment, after declaring that all persons born or
naturalized in the United States, and subject to its jurisdiction, are citizens
of the United States and of the State wherein they reside, proceeds to declare
further, that "no State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law, nor deny to any person within its jurisdiction the equal protection of the
laws;" and that Congress shall have power to enforce by appropriate
legislation the provisions of this article.
Now, here is a clear prohibition on the States against making or enforcing any
law which shall abridge the privileges or immunities of citizens of the United
States.
If my [**157] views are correct with regard to what are the
privileges and immunities of citizens, if 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 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 [*123] violated
by State law, which was sustained by the State court, and we are called upon in
a legitimate and proper way to afford redress. Our jurisdiction and our duty
are plain and imperative. [**158]
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 [***424] 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 [**159]
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 posing a law impairing the obligation
of a contract, it would execute itself. The point would [*124] be
regularly raised, in a suit at law, and settled by final reference to the
Federal court. As the privileges and immunities protected are only those
fundamental ones which belong to every citizen, they would soon become so far
defined as to cause but a slight accumulation of business in the Federal
courts. Besides, the recognized existence of the law would prevent its frequent
violation. But even if the business of the National courts should be increased,
Congress [**160] 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.
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 [**161] 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 [*125] the 16th of June, 1866, and the fifteenth on
the 27th of February, 1869. These amendments are a new departure, and mark an
important epoch in the constitutional history of the country. They trench
directly upon the power of the States, and deeply affect those bodies. They
are, in this respect, at the opposite pole from the first eleven. n42
n42 Barron v. Baltimore, 7 Peters, 243; Livingston v. Moore, Ib. 551; Fox v.
Ohio, 5 Howard, 429; Smith v. Maryland, 18 Id. 71; Pervear v. Commonwealth, 5
Wallace, 476; Twitchell v. Commonwealth, 7 Id. 321.
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. [**162] 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, action 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 [**163]
of race, color, or previous condition of servitude. Until this amendment was
adopted the subject [*126] to which it relates was wholly within
the jurisdiction of the States. The General Government was excluded from
participation.
The first section of the fourteenth amendment is alone involved in the
consideration of these cases. No searching analysis is necessary to eliminate
its meaning. Its language is intelligible and direct. Nothing can be more
transparent. Every word employed has an established signification. There is no
room for construction. There is nothing to construe. Elaboration may obscure,
but cannot make clearer, the intent and purpose sought to be carried out.
(1.) Citizens of the States and of the United States are defined.
(2.) It is declared that no State shall, by law, abridge the privileges or
immunities of citizens of the United States.
(3.) That no State shall deprive any person, whether a citizen or not, of life,
liberty, or property, without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.
A citizen of a State is ipso facto a citizen of [***425] the United
States. No one can be the [**164] 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 herein question throws the shield of its protection.
All those which belong to the citizen of a State, except as to bills of
attainder, ex post facto [*127] laws, and laws impairing the
obligation of contracts, n43 are left to the guardianship of the bills of
rights, constitutions, and laws of [**165] 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.
n43 Constitution of the United States, Article I, Section 10.
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 [**166] 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. n44
n44 Corfield v. Coryell, 4 Washington, 380; Lemmon v. The People, 26 Barbour,
274, and 20 New York, 626; Conner v. Elliott, 18 Howard, 593; Mrray 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.
[*128] It is admitted that the plaintiffs in error are citizens of
the United States, and persons within the jurisdiction of Louisiana.
[**167] 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 [**168] 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"
[*129] was meant all persons within the jurisdiction of the State.
No distinction is intimated on account of race or color. This court has no
authority to interpolate a limitation that is neither expressed nor implied.
Our duty is to execute the law, not to make it. The protection provided was not
intended to be confined to those of any particular race or class, but to embrace
equally all races, classes, and conditions of men. It is objected that the
power conferred is novel and large. The answer is that the novelty was known
and the measure deliberately adopted. The power is beneficent in its nature,
and cannot [**169] be abused. It is such as should exist in every
well-ordered system of policy. 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 every one 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 extend of that limitation it turns, as it
[***426] 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 [**170] 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.
[*130] I earnestly hope that the consequences to follow may prove
less serious and far-reaching than the minority fear they will be.