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The majority of the court were not able to accept this construction of the Amendment which, as we have seen, would have opened such possibilities of increasing the federal powers at the expense of those of the States. Referring to "the history of the times" in which the Thirteenth, Fourteenth and Fifteenth Amendments were adopted, the court found in them a unity of purpose, the protection of the freed negroes, and not an intention radically to alter the constitutional character of the Union. Attention is called to the fact that the Fourteenth Amendment implies and by its language recognizes a continuance of a distinction between federal and state citizenship, and that from this it follows that the privileges and immunities attaching to or growing out of each are to be distinguished. "Was it the purpose of the Fourteenth Amendment," the court ask, "by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal Government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the control of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by state legiswould perhaps be more tedious than difficult to enumerate. They may, how ever, 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 reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.”

lation, 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. But when, as in the case before us, these consequences are so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relation of the state and federal governments to each other and of both of 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 Congress which proposed these Amendments, nor by the legislatures of the States, which ratified them."

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With reference to the question that is immediately suggested, as to what are these distinctively federal rights which the States. are not to infringe, the court says: Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the state governments for security and protection, and not by this article placed under the special care of the Federal Government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so. But lest it should be said that no such privileges and immunities are to be found if those we have

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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." 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 countries are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.' And, quoting from the language of Chief Justice Taney in another case, it is said 'that for all the great purposes for which the Federal Government was established, we are one people, with one common country, we are all citizens of the United States,' and it is, as such citizens, that their rights are supported by this court in Crandall v. Nevada. Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as the other citizens of that State. To these may be added the rights secured by the Thirteenth and Fifteenth Articles of

56 Wall. 35; 18 L. ed. 745.

Amendment, and by the other clause of the Fourteenth, next to be considered."

§ 87. Effect of Fourteenth Amendment upon Rights Enumerated in First Eight Amendments.

In Ex parte Spies the point was urged upon the court that the privileges and immunities secured against federal infringement by the first eight Amendments to the federal Constitution, were, because so secured, federal privileges and immunities, which, according to the Fourteenth Amendment, and the doctrine of the Slaughter House Cases the States might not abridge or deny. The counsel for Spies in his argument said: "The position I take is this. Though originally the first ten Amendments were adopted as limitations on federal power, yet in so far as they secure and recognize fundamental rights. - common law rights of the man, they make them privileges and immunities of the man as a citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words while the ten Amendments, as limitations on power, only apply to the

Cooley, in his Principles of Constitutional Law, p. 245, gives the following enumeration of distinctively federal rights: "A citizen of the United States," he says, “as such has the right to participate in foreign and interstate commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are coerced by its law. . . . So every citizen may petition the federal authorities which are set over him in respect to any matter of public concern; may examine the public records of the federal jurisdiction; may visit the seat of government without being subjected to the payment of a tax for the privilege; may be purchaser of the public lands on the same terms with others; may participate in the government if he comes within the conditions of suffrage, and may demand the care and protection of the United States when on the high seas, or within the jurisdiction of a foreign government. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an immunity which pertains to federal citizenship." "One very plain and unquestionable immunity," Cooley adds, "is exemption from any tax burden, or imposition under state laws, as a condition to the enjoyment of any right or privilege under the laws of the United States."

7123 U. S. 131; 8 Sup. Ct. Rep. 22; 31 L. ed. 80.

Federal Government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power as the ten Amendments had limited federal power."

The court, however, found that, in fact, no right of Spies secured by the first eight Amendments had been violated, and that, therefore, it was not necessary to pass upon this constitutional point which his counsel had raised.

In Maxwell v. Dow, however, the court found itself compelled to pass specifically upon this point. The court in its majority opinion denied the claim set up, asserting that the mere fact that a certain privilege or immunity was guaranteed against federal infringement did not operate to make such a privilege or immunity distinctively federal in character. With reference to the rights enumerated in the first eight Amendments, the court said: "In none are the privileges or immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons as against the Federal Government, entirely irrespective of such citizenship. As the individual does not enjoy them as a privilege of citizenship of the United States, therefore, when the Fourteenth Amendment prohibits the abridgement by the States of those privileges or immunities which he enjoys as such citizen, it is not correct or reasonable to say that it covers and extends to certain rights which he does not enjoy by reason of his citizenship, but simply because those rights exist in favor of all individuals as against the federal governmental powers. The nature of the character of the right of trial by jury is the same in a criminal prosecution as in a civil action, and in neither case does it spring from nor is it founded upon the citizenship of the individual as a citizen of the United States, and if not, then it cannot be said that in either case it is a privilege or immunity which alone belongs to him as such citizen." "

8 176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597.

9 Justice Harlan rendered a dissenting opinion in the course of which he said: "It seems to me that the privileges and immunities enumerated in

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