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United States and a citizenship of a State" (commonwealth),\ "which are distinct from each other and which depend upon different characteristics and circumstances in the individual"; that "there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State" (commonwealth) "as such"; that "the latter must rest for their security and protection where they have heretofore rested," and the former only "are placed under the protection of the Federal Constitution"; that the privileges and immunities of a citizen of the United States are free access to the seat of government of the United States in order "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 its administrative functions; free access to the seaports, the sub-treasuries, land offices, and courts of justice in the several States" (commonwealths); protection over "life, liberty, and property, when on the high seas or within the jurisdiction of a foreign government"; the "right to assemble peaceably and petition for redress of grievances; the privilege of the writ of habeas corpus; the right to use the navigable waters of the United States; all rights secured to our citizens by treaties with foreign nations; the right to become a citizen of any State" (commonwealth) "of the Union by a bona fide residence therein, with the same rights as other citizens of that State" (commonwealth). "To these may be added the rights secured by the thirteenth and fifteenth articles of amendment and by the other clauses of the fourteenth." I do not find in this enumeration the privilege of United States citizenship, created by article IV, section 2, paragraph 1 of the constitution, that "citizens of each State" (commonwealth) "shall be entitled to all privileges and immunities of citizens in the several States" (commonwealths). Of course this is mere oversight, since the court has relieved a citizen of one common
wealth going into another from any discriminations which the latter may have sought to make against him.1 I shall not enter upon any further criticism of this most ominously important decision. I will only add that, coming at the time when the reaction had begun to set in against the pronounced nationalism of the preceding decade, it partook of the same, and set the direction towards the restoration of that particularism in the domain of civil liberty, from which we suffered so severely before 1861, and from which we are again suffering now.
Lastly, against what power is the inhibition in this clause of the constitutional provision directed? The language upon this point is a little different from that employed in the clause which I have considered on pages 209 and 210. In the case which I am now discussing it is declared that “ State" (commonwealth) "shall make or enforce any law which shall abridge," etc.; in the other case the provision reads: "nor shall any State" (commonwealth) "deny," etc. The two expressions, however, have one and the same signification. The commonwealth can act only through the making and enforcing of laws; in fact, it can act upon the individual only by the process of enforcing the laws. The phrase "no State" (commonwealth) "shall make or enforce any law" means, therefore, practically, that no commonwealth shall, through any of the instrumentalities employed by it in the administration of government, do anything or omit anything which will abridge the privileges and immunities of a citizen of the United States.2 The inhibition is therefore directed against any of the agents or officers of the commonwealth authorized to exercise its governmental powers. I have already pointed out the fact that a late decision of the Supreme Court of the United States has modified this sound rule somewhat, and, as I think, injuriously. The commonwealth may escape
1 Ward v. Maryland, U. S. Reports, 12 Wallace, 163.
3 p. 210.
the charge of a violation of "due process" and, by parity of reasoning, of abridging "the privileges and immunities of a citizen of the United States," if the injury to the individual should occur through an erroneous decision made by one of the courts of the commonwealth under a commonwealth statute which, if properly interpreted, would not inflict the injury. By parity of reasoning, again, I do not see why the commonwealth may not escape responsibility for the erroneous interpretation of such a statute by one of its executive officers in the course of its enforcement. In fact, this would not be at all so dangerous to the liberty of the individual, since he might apply to the commonwealth courts for protection against the same; while, in case the erroneous interpretation should be made by the highest court of the commonwealth, he can find no relief, should the United States courts be shut against him, except, perchance, through an appeal to the commonwealth legislature itself. Should he go there, however, he would meet another difficulty, vis; the principle in our system that the judicial interpretations of law stand, in the order of supremacy, above the legislative. If the court should adhere to its interpretation, the legislature can defeat it only through impeachment of the judges. In short, it is practically impossible for the individual to secure the protection of his immunities and privileges as a citizen of the United States against such erroneous interpretation of a commonwealth statute by the highest court of the commonwealth unless he can take his case to the bar of the United States courts.
Such, however, is the law upon the subject; and, reiterated briefly, it is that the inhibition in this clause of the constitutional provision is directed against the law-making power of the commonwealths, those governmental agents of the commonwealths executing its laws under correct interpretation
1 Arrowsmith v. Harmoning, 118 U. S. Reports, 194.
thereof, and those officials and agents whom the law-making power of the commonwealth clothes with discretionary powers, and who, in the exercise of these powers, abridge any of the privileges and immunities of a citizen of the United States. These are the commonwealth organs which are comprehended in the term "State" as employed in this provision, and whose acts are to be regarded as the acts of the "State." The acts of any other organs, when coming into conflict with the privileges and immunities of a citizen of the United States, are ultra vires, and the commonwealth is not responsible for them; i.e. their correction cannot be assumed by the courts of the United States, but must be left with the commonwealth.
4. Finally, the Court has decided that the constitutional provision vesting in the Congress of the United States the power "to regulate commerce with foreign nations, and among the several States" (commonwealths), "and with the Indian tribes," is an inhibition upon the commonwealths in behalf of the individual, and renders any attempt of the commonwealths to restrict the ingress and egress of persons, or
any manner to regulate the same beyond police necessities, null and void. What the police necessities of the commonwealths in this respect are, the Court, as in other cases, reserves to itself to determine in detail. I have treated of the general character of the police power and will make reference to what I have already said rather than indulge in repetition.3
II. The Immunities in respect to Private Property.
The individual is authorized by the constitution to invoke the aid of the United States government, in certain cases against the general power of controlling property, attributed in our system to the commonwealths.
1 Art. I, sec. 8, § 3.
2 Henderson et al. v. Mayor of N. Y. et al., 92 U. S. Reports, 259; Welton v. Missouri, 91 U. S. Reports, 275; Wabash &c. Railway Co. v. Illinois, 118 U. S. Reports, 557. 3 p. 213 ff.
1. The commonwealths are inhibited, without the consent of the legislature of the United States, from levying and collecting any imposts or duties upon any article in the hands of the person who sends it directly to, or receives it directly from, a foreign country, except in so far as this shall be necessary to defray the expenses incurred by the commonwealth in examining the article and making certification as to its quality or fitness for use;1 from levying and collecting any charge upon any vessel according to its tonnage, as an instrument of commerce, for entering or leaving a port or navigating the public waters of the country;2 and from levying and collecting any tax upon the property and lawful agencies and instrumentalities of the general government, no matter in whose hands they may be found, or upon franchises conferred by Congress, or upon receipts of a telegraph company from intercommonwealth business, or upon receipts from any intercommonwealth business carried on by anybody. Finally, the legislatures of the commonwealths are inhibited from exercising their general powers of legislation in regard to taxation or eminent domain in such a manner as to take, or to authorize anybody to take, private property, without the owner's consent, for any but a public object. It is not said that the legislature of a commonwealth is thus inhibited, should it be specifically authorized thereto by a provision of the constitution of the commonwealth.
1 Constitution, Art. I, sec. 10, § 2; Brown v. Maryland, U. S. Reports, 12 Wheaton, 419; Turner v. Maryland, 107 U. S. Reports, 38.
2 Constitution, Art. I, sec. 10, § 3; Huse v. Glover, 119 U. S. Reports, 543. 3 McCulloch v. Maryland, U. S. Reports, 4 Wheaton, 316; Dobbins v. The Commissioners of Erie County, Ibid. 16 Peters, 435; Bank Tax Cases, Ibid. 2 Wallace, 200; Van Brocklin v. Tennessee, 117 Ibid. 151.
4 California v. Central Pacific R. R. Co., 127 U. S. Reports, I.
5 Rotterman v. Western Union Telegraph Co., 127 U. S. Reports, 411.
6 Wabash &c. Railway Co. v. Illinois, 118 U. S. Reports, 557; Robbins v. Shelby Taxing District, 120 Ibid. 489.
Loan Association v. Topeka, U. S. Reports, 20 Wallace, 655; Parkersburg v. Brown, 106 U. S. Reports, 487; Cole v. La Grange, 113 U. S. Reports, I.