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jects of foreign states, are not citizens of the United States. The dictum is therefore in both cases obiter, and the meaning of the constitutional provision has not been settled by the supreme interpreting organ in a case directly in point.

What now are the privileges and immunities of citizens of the United States for the abridgment of which no commonwealth may make or enforce any law? Two principal views may be taken of this subject. The first is, that they cover the whole civil liberty of the individual, as recognized in our constitutional system; the whole domain of individual autonomy, as protected by constitutional law against governmental encroachment proceeding from either the general government or the commonwealths. The second is, that they cover only a part of this liberty, a section of this domain; the other part or division being determined wholly by the commonwealths and protected only by the commonwealths. There is no doubt that the latter was the legal view of our system down to the time of the incorporation of the thirteenth and fourteenth amendments in the constitution. There is no doubt that, from the adoption of the constitution of 1781 to the civil war of 1861, the commonwealths held the position, in our system, of chief definers and protectors of individual liberty; and that the general government, while forbidden to invade this sphere itself, was intrusted with the defense of it against the commonwealths at but few points. It is just as true, on the other hand, that the history of those eighty years demonstrated the error and the danger of this distribution of power. If history ever taught anything, it is that civil liberty is national in origin, content and sanction. Not all mankind, indeed, are capable of enjoying the same degree of civil liberty; and when the state is composed of different nationalities, occupying distinct portions of its territory, it may be a sound public policy to make the degree of civil liberty accorded correspond with the degree of general civilization which each may have attained; but this again is only saying that civil liberty

is national where the state is a conglomerate of different nations. On the other hand, where the population of the state is substantially national, i.e. where the population of the state speaks a common language and has attained a substantial consensus of opinion in regard to the fundamental principles of rights and wrongs, there the nationalization of civil liberty has become complete in fact, and, if it has not already become so in law, the impulse to adjust the form to the reality will never rest until it forces the public law of the state, upon this subject, into correspondence with its political science.

I say that if history has taught anything in political science, it is that civil liberty is national in its origin, content and sanction. I now go further, and I affirm that if there is but a single lesson to be learned from the specific history of the United States, it is this. Seventy years of debate and four years of terrible war turn substantially upon this issue, in some part or other; and when the Nation triumphed in the great appeal to arms, and addressed itself to the work of readjusting the forms of law to the now undoubted conditions of fact, it gave its first attention to the nationalization in constitutional law of the domain of civil liberty. There is no doubt that those who framed the thirteenth and fourteenth amendments intended to occupy the whole ground and thought they had done so. The opposition charged that these amendments would nationalize the whole sphere of civil liberty;1 the majority accepted the view;2 and the legislation of the Congress for their elaboration and enforcement proceeded upon that view. In the face of all of these well-known facts, it was hardly to be doubted that, when a case involving this question should be presented to the Supreme Court of the

1 Congressional Globe, 1st session, 39th Congress, part 3, pp. 2530-38.

2 Ibid., p. 2542.

3 United States Statutes at Large, vol. 14, p. 27 ff.; vol. 16, p. 140 ff.; vol. 18 part 3, p. 336 ff.

United States, the final interpreting organ of the constitution upon all issues touching directly individual liberty, this great body would unanimously declare the whole domain of civil liberty to be under its protection against both the general government and the commonwealths. Great, therefore, was the surprise felt by the scientific students of our political history when, in the December term of 1872, the decision in the Slaughter House Cases1 was announced, taking the other ground, viz; that still only a part of civil liberty has been nationalized, and that by far the larger and more important part is still subject, without appeal, to the power of the commonwealths. This opinion was concurred in by only a bare majority of the court. Both the chief justice, who had been one of the principal actors in the great conflict through which it was supposed that the thorough-going settlement of this question had been reached, and Mr. Justice Field, who was regarded as the sturdy defender of the powers of the commonwealths against centralization, dissented. Mr. Justice Field wrote the dissenting opinion, which was concurred in by Chief Justice Chase and Justices Swayne and Bradley. He held, to quote his own language, that the fourteenth 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" (commonwealth) "legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the constitution, or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and

1 U. S. Reports, 16 Wallace, 36.


most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State" (commonwealth) "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" (commonwealth) "legislation of that character. . . . What, then, are the privileges and immunities which are secured against abridgment by State" (commonwealth) "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, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property. That act, it is true, was passed before the fourteenth amendment was adopted, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the national government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act, under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment. . . . The privileges and immunities designated are those which of right belong to the citizens of all free governments."

Expressed in the nomenclature which I have adopted in this treatise, Mr. Justice Field and his three learned colleagues held that the fourteenth amendment had nationalized the common law in regard to civil liberty, and had placed its protection and development under the power and guardian

ship of the United States judiciary. Mr. Justice Miller, who delivered the opinion of the majority, should have no objection to that view. Upon what other principle can his own opinion and that of the majority of the Court stand in the case of Watson v. Jones?1 In that case, decided before the Slaughter House Cases, he affirmed a decision and decree of the Circuit Court of the United States, which overturned a decision of the highest court of law of the commonwealth of Kentucky, upon a question which, according to all previous canons of interpretation and practice, could come before the courts of the United States only because of the fact that the parties to the controversy were residents of dif ferent commonwealths, and which, therefore, should have been decided by the United States courts in accordance with the law as determined by the highest court of law of the commonwealth. There is only one other possible principle upon which it can stand, vis; that the common law in reference to the fundamental principles of individual liberty was always national, both before as well as after the enactment of the thirteenth and fourteenth amendments. But this Mr. Justice Miller would doubtless deny even more strenuously than that it was made so by the thirteenth and fourteenth amendments.

From whatever point of view I regard the opinion of the Court in the Slaughter House Cases, - from the historical, political, or juristic, — it appears to me entirely erroneous. It appears to me to have thrown away the great gain in the domain of civil liberty won by the terrible exertions of the nation in the appeal to arms. I have perfect confidence that the day will come when it will be seen to be intensely reactionary and will be overturned. But until then it is the law of the land, and as such I must state it in detail.

The opinion declares that "there is a citizenship of the

1 U. S. Reports, 13 Wallace, 679.

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