Lead Opinion
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 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,
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 super
On account of the importance of the questions involved in these eases 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 wore present. Impressed with the gravity of the questions raised in the argument, the court under, .these circumstances ordered that the cases be placed on the calendar and reargiled before a full bench. This argument was had early in February last.
Preliminary to t.he 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,
The records show that the plaintjffs 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 Üñited States. The jurisdiction and the duty of this court
The statute thus assailed as unconstitutional was-passed March 8t-h,-1869, and is entitled'“An act to protect the health of the city o.f 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 lauding or slaughtering of animals whose fiesh 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 abattoirs within those limits- except by the corporation thereby created, which is also limited to certain places after-wards mentioned; Suitable penalties are enacted for violations of this prohibition.
• The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers.
The -third aud 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 slaughterhouse of sufficient capacity for slaughtering five hundred animals per day.
It declares that the company, after it shall have-prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole aud 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 be landed at the stock-landings and slaughtered at the slaughterhouses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat aud for each animal landed.
Section five orders the closing up of all other stock-land
These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us.
This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of. persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens — the whole of the butchers of the city — of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of .themselves and their families; and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city.
But a critical examination of the act hardjy justifies these assertions.
It is true that it grants, for a period of twenty-five years, exclusive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations' to be hereafter stated. But it is not true that it deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food.
The act divides itself into two main grants of privilege,— the one in reference to stock-landings and stock-yards, and
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,-that it is'both the right and the duty of the legislative body — the supreme power of the State or municipality — tó prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.
The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary,.the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so, to- slaughter in their houses; and. they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place.
The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the
The power here exercised by the legislature of Louisiana is, in its essential - uature, 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 deposit of powder, the application of steam power tq propel cars, the building with combustible materials, and the burial of the dead, may all,” says Chancellor Kent,
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 úse of property. “It extends,” says another eminent .judge,
In Gibbons v. Ogden
The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln.
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, aud to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges — privileges which it is said constitute a monopoly — the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as- to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best a Stained 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 ease of McCulloch v. The State of Maryland,
It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law.
Unless, therefore, it can be maintained that the exclusive privilege granted • by this charter to the corporation, is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a-consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the statute, and we are not advised that they are on the whole exorbitant or unjust.
The proposition is, therefore, reduced to these terms: Can any exclusive privileges be granted to any of its citizens, or to a corporation, by.the legislature of a State?
The eminent and learned counsel who has twice argued the negative of this question, has displayed a research into the history- of monopolies in England, and the European continent, only equalled by the eloquence with which they are denounced.
But it is to be observed, that all such references are to monopolies established by the monarch in derogation of the-rights of his subjects, or arise out of transactions in which-the people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so fully stated in the brief, was undoubtedly a contést 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
But we think it may be safely affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies'of this country, have from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges — privileges denied to other citizens — privileges which come within any just definition of the word monopoly, as .much as those now under consideration ; and that the power •to do this has never been questioned or denied.. Nor can it he 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, he 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 constitu-' tion of the State, the Supreme Court of Louisiana hawing necessarily passed on that question, it would not be open to review in this court.
The plaintiffs in error accepting this issue, allege that- the statute is a violation of the Constitution of the United States in these several particulars:
That it creates an involuntary servitude forbidden by the thirteenth article of amendment;
That it abridges the privileges and immunities of citizens of the United States;
That it denies to the plaintiffs the equal protection of the laws; ánd,
That it deprives them of their property without due process of law; contrary to the provisions of the first section oí ■the fourteenth article of amendment.
We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions' so far-reaching and pervading in theii 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 pf its present members. We have given every opportunity for a full tearing at the bar; we have discussed it freely and compared views amoiij ourselves; we have taken ample time for careful delibeiation, and w.e now propose to announce the judgments which we have formed in the construction of those articles,, so far as .we have found them necessary to the decision of the cases before, us, and beyond that we have neither the inclination nor the right to go.
Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the Twelfth, adopted in eighteen hundred and'three, was so nearly so as'to have become, like all the others, historical and of another age.- But within the 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 of doubt coueeruing 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;
The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction ánd those who desired additional safeguards for its security and perpetuation, culminated in -the effort, on the part of most of the States in Which slavery existed, to separate from the Federal government, and to resist its'authority. This constituted the war of the- rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.
In that struggle slavery, as a legalized social relation, perished. ■ It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do nothing.less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services.and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. ' The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in 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 of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that iustru
“ 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.
“ 2. Congress shall have power to enforce this article by appropriate legislation.”
To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all' the human race within the jurisdiction of this government— a declaration designed to establish the freedom of four millions of slaves — and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.
That a personal servitude was meant is proved by the use of the word “involuntary,” which can only apply to human beings. The exception of servitude as a punishment for crime gives-an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose, was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship, for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase, on a 'writ of habeas- corpus under this article, illustrates this course of observation.
■ They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside ou 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 bacl men, either because the laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis, of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they
Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete aud dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors, of the other two amendments that, notwithstanding 'the restraints of those articles on the States, aud 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 face of men distinctively marked as was the negro, living in the midst of another and domiuant'race, could neyer be fully secured in their person and their property without the right of suffrage.
Hence the fifteenth amendment, which declares that “ the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of che newly-made freeman aud citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms,
We do not say that ho 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, 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 Hot be of African descent. But what we do say, and what we wish tó be 'understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to th’d purpose which we have said-was'the. pervading spirit of them all, the evil which they were designed to i’emedy, 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 fibst 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. erhiuent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. "Whether
To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the' United States, and also citizenship of a State, the first clause of the first section was framed.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, áre citizens of the United States and of the State wherein they reside.”
The first observation, we have to make on this clause is, tliat.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 establish the citizenship,of the negro can' admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction 'between citizenship of the United States and citizenship of a State is clearly recognized and established.
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 ou the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.
The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” ' It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when'it is so carefully used, aud 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 under.standingly 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.
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 iu section two of the fourth article, in the following words: “ The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”
There can be but little question that the- purpose of both ■these provisions is the same, and that the privileges and immunities intended are the same in each. Iu the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give som,e 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 iu the Circuit Court for the District of Pennsylvania iu 1828.
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,
In the case of Paul v. Virginia,
The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.
Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.-
It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the /very few express limitations which the Federal Constitution imposed upon the States — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation , of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make of enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow, if the proposition of the
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
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 iaws.
One of these is well described in the case of 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 tile. 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 foreigu nations,'
But it is useless to'pursue this branch of the inquiry, since we are of opinion that the tights claimed by these plaintiff's in drror, 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 Uuited States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within itá jurisdiction thé equal protection of its laws.”
The argument has not been much pressed in these cases that the defendant’s charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of 'these paragraphs has .been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions'of nearly all the States, as a restraint upon the power of the States. This law. then, has practically been the same as it'now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.
We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it
“Nor sliall any State deny to any person within its jurisdiction the equal protection of the laws.”
In the light of the history of these amendments, and the pervading purpose of 'them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be' remedied by this clause, and by it such laws are forbidden.
If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever’ be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, tha.t 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 ease iu the one before us, and do not deem it necessary .to go over the argument again, as it may have relation to this particular clause of the amendment.
In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has
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, arid added largely to the number of those who believe in the necessity of a strong National government.
But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments afiy purpose to destroy the main features of the gen-' eral system.- Undertbe 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 fouud that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Féderal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.
Affirmed.
Notes
See subtitle, supra, p. 36. — Rep.
2 Commentaries, 340.
Commonwealth v. Alger,
Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont, 149.
9 'Wheaton, 203.
5 Wallace, 471.
9 Id. 41.
Matter of Turner, 1 Abbott United States Reports, 84.
4 Washington’s Circuit Court", 371.
12 Wallace, 430.
8 Id. 180.
6 Wallace, 36.
Dissenting Opinion
dissenting:
I am unable’ to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from tlieir judgment.
The cases grow out of the act of the legislature of the State of Louisiana, entitled An act to pi’otect 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, 1889, to “land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or 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 rivei’, “ 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
The act then requires the corporation to erect a grand slaughter-house of sufficient dimensions to accommodate all butchers, a.nd 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 open 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.”
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 fol
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 w-as instituted by the attorney-general of the State, in the name of the State, to protect the corporation in the enjoyment of these privileges, and to prevent an association of stock-dealers and butchers from acquiring a tract of land in the same district with the corporation, upon which to erect suitable buildings for receiving, keeping, aud 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
No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to
It is contended in justification for the act in question that it was adopted iu 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 thq court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.
In the law in question there are only two provisions which can properly be called police regulations — -the one’ which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When .these requirements are complied with, the sanitary purposes of the act are accomplished. Iu 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 lauding, keeping, and slaughtering cattle withiii 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 oil 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 froifi its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such
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 fiud no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to 'devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching- upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.
Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an-exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without, him, would not have existed. It thus only recognizes in the inventor a temporary property iu the product of his own brain.
The act of Louisiana presents the naked case, uhaccompanied 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
If exclusive privileges of this character can be granted to a corporation of seventeen persous, 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 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 grantéd for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained,.there is no monopoly, in the most odious form, which may not be upheld.
The question presented is, therefore, one of-the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth i amendment does afford sufih protection, and was1 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.
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 Eights 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, vaásalage, villenage, peonage, and,all other forms of compulsory service'for the mere benefit or pleasure of1 others. Nor is1 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 avocatious of life without other testraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a • condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term; in a condition of slavery, but probabty 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 wmuld 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, forcé him to labor for the benefit or pleasure of another,
It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed ajid adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on 'the eighteenth of Detíepaber, 1865,
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 invol
By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food fop market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion ■of each animal slaughtered. Every man in these parishes who has a.horse or other animal for sale, must carry him to the yards and stables of this company, and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company,' and that district embraces over eleven hundred square miles. .The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in.the last century upon the peasantry in áome parts of France, where, as says a French
, But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keejúng of ovens, machines, grindstones, wine-presses, and for all the numerous trades and pursuits for the prosecution of which buildiugs are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration.
It is not necessary, however, as I have said, to. rest my objections to the' act in question upon tne 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 Eights 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 déclares 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
The first clause of this amendment determines who are citizens of the United State's, and how their citizenship is created. Before its enactment there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number the opinion prevailed that there -was no such-citizenship independent of the citizenship of.the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his c'elebrated speech in 'the Senate upon the Force Bill, in'1838, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States;- he said: “ If by citizen of the United States he means a citizen' at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found-in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution; is entitled to all privileges and immunities .of citizens in the several States; and it is. in this and no other sense that we are citizens of the United States.”
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 l$,w. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizen-, ship in the several States, under their constitutions and laws.
The first clause of the fourteenth amendment changes this whole subject, and removes .it from the region of discussion aud doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or-' laws of any State or the condition of their apcestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free- citizen, now belong to him' as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. .They are thus -affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and'morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way caii they be affected by the action of the State, or by. the residence of the citizen therein. - .They do not derive
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 iu the Constitution or necessarily7 implied as belonging to citizens of the United States,dt was a vain and idle enactmeut, which accomplished nothing, and most unnecessarily excited Congress and'the people on its passage. "With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.
What, then, are the privileges and immunities which are secured against abridgment by State legislation ?
In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right “ to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and .property.” ' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legis
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 citizeus 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,
The privileges and immunities designated'in the second section of the fourth article of the Constitution áre, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other .States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens-. It is a clause which insures equality iu 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,
The whole purport of the decision was, that citizens of one State do not carry '.wdth them iuto other States any special privileges or immunities, conferred by the law's 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 paymeut 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 nouresident trader contravened tli.e clause' securing to the- citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which urns an essential incident to his ownership, possessed by the non-resideut, wras subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of- her own citizens. The privileges of the non-resident were in this particular abridged by that legislation.
What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of'other States, the fourteenth amendment does for
It will not be pretended that under the fourth article of the Constitution any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude nou-resideut citizens from engaging in a similar manufacture or sale. The nou-resideut 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 other’s, and thus, as respects them, the monopoly would cease. If this were not so it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them.
Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly whatever. The privileges and .immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were
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 havp come up for consideration, to be void at common law as destroying the freedom- of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of .buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others' may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade. It thus covers-in every particular the possession and use of suitable, yards, stables, and buildings for keeping aud 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 aud selling the animals themselves. It equally restrains the butchers in the freedom and liberty they previously had, and hihders 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
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, rriáking, 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 pf 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 certairi articles and ordnance intended for the prosecution of war.
The common law of England, as is thus seen, condemned all monopolies in any- known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their lawful trade. The statute of James I, to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequently disregarded by the sovereigns of that country.
The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the colonists, together with the English statutes, and was established h.ere 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.”
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 ex-.efcisfe, without restraint, his' art, trade, or, profession, au.d §úch .has béeirthe law of France and of her colonies' ever .since’,' and that law prevailed in Louisiana at the time of her cession .to flip United States. Since then, notwithstanding tile 'existence ,in that State of the civil'law as the basis qf her j'urispTU deuce, freedom of pursuit has been always recognized as the common right of her’citizens. But were this otherwise, the fourteenth ahlendment secures the like protection do all citizens in that State against any abridgment of their common Tights, 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 thfe trader in Lopdon could plead that he was a free' citizen of that city against the enforcement to his injury of monopolies, surely‘tmder the fourteenth amendment every
So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that few instances have arisen where the principle, has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactfnent 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.
In the City of Chicago v. Rumpff
It is true that the court,in this opinion was speák-ing of a municipal ordinance and not of an act of the legislature of a State. But, as it is justly observed by counsel, a legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than' a municipal government. These rights are protected from invasion by the'fundamental law.
In the case of the Norwich Gaslight Company v. The Norwich City Gas Company,
In the Mayor of the City of Hudson v. Thorne,
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,
The proclamation of i¡ts ratification was made on that day (13 Stat. at Large, 774).
14 Id. 27.
Congressional Glotie, 1st Session, 39tli Congress, part 1, page 474
Calhoun’s Works, vol. 2, p. 242.
May 31st, 1870; 16 Stat. at Large, 144.
4 Washington’s Circuit Court, 380.
8 Wallace, 168.
Coke’s Eeports, part 11,-page 86.
Journals of Congress, vol. i, pp. 28-30.
Live-Stock, &c., Association v. The Crescent City, &c., Company (1 Abbott’s United States Reports, 398).
45 Illinois, 90.
25 Connecticut, 19.
“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 thóso who might be disposed to employ him. As it hinders the one.from working at what he thinks proper, so it hinders theothers from employing whom they think proper.” (Smith’s Wealth of Nations; b, 1, eh'. 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
“ 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.)
Dissenting Opinion
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
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 aud 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'honses, in a district of nearly twelve hundred square miles, for the supply of meat for a large city, a reasonable 'regulation of that employment which the legislature has a right tb 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 o.f, the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein,
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 andimmunites of a citizen of the United States? Is the right, libei-ty, or' privilege of choosing any lawful employment one of them?
If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and' immunities as citizens of that particular State ? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States', or only as citizens of the State? Would they have no redress but to appeal to the courts of that particular State ?
This seems to me to be the essential question before us for consideration. And,’in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all -lawful regulations) is one of
The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which-this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government d’annot claim the privileges of citizens in another government; that prior to the union of our North American States the citizens of one State could not claim the privileges of citizens in another State; or, that after the uniou wTas 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 bj' express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States.
The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation’s history. One of these fundamental rights was expressed in these words, found in Magua Oharta: “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
The privileges and immunities of Englishmen were established and secured by long usage and by various acts.of Parliament. But it may be said that the Parliament of' England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically this is so, but practically it is not. England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any'material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the. support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution.
This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which
For the. preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a -freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.
I think sufficient has been said to show, that citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a*very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people.
On this point the often-quoted language of Mr. Justice Washington, in Corfield v. Coryell,
-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, funda-men
It is true the courts have usually regarded the clause referred to as securing ouly an equality of privileges with the citizens of the State in which the párties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this; however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens.
But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.- The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were ouly 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 im*
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 thau they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and’enjoying property; the privilege of engaging in any lawful employment for a livelihood ; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated; and' among these none tis more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all.
II. The next-question to be determined in this case is: Is a monopoly or exclusive right, given to one person, or corporation, to the exclusion- of all others, to keep slaughterhouses in a district of nearly twelve hundred square miles, for the supply of meat for a great city, a reasonable regulation of that employment which the legislature has a right to impose ?
The keeping of a slaughter-house is part of, and incidental ‘to, the trade of a butcher — one of the- ordinary occupations of human life. To compel á 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
The granting of monopolies, or exclusive privileges to individuals or-corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was-so felt by tbe'English nation as far back as thp 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 nó English-speaking people have ever endured such an odious badge of tyranny.-
It has been suggested that this was a mere legislative act, and that the British Parliament, as well as our own legislatures, have frequently disregarded it-, by granting exclusive privileges for érecting ferries, railroads, markets, and other establishments Of a public kind. It requires but-a slight
Lastly: Can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment this eould 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 $lso 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 iuto-another State) was largely left to State laws and State courts, where they will still continue .to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves.
Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens, of the United States, except
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 aud 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 j liberty, or property,, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;” and that Congress shall have power to enforce by appropriate legislation the provisions of this article.
Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.
If my views are correet'with regard to what are the privileges and immunities of citizens, it follows conclusively that any. law which .establishes a 'sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.
• The amendment also prohibits any State from depriving any person (citizen or otherwise) of life, liberty, or property, without due process of law.
In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of. choice is a portion ofdheir 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
It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and .I think it was purposely so expressed.
The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestatiou.
But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States, and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal eoui’ts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged.
In my judgment no such practical inconveniences would arise. Very little, if any, legislation' on the part of Congress would be required to carry the amendment into effect. Like the prohibition against passing a law impairing the obligation of a contract, it would execute itself. The point would
In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed.
4 Washington, 380.
Dissenting Opinion
dissenting:
• I concur in the dissent in these cases and in the views expressed by my brethren, Mr. Justice Field and Mr. Justice Bradley.' I desire, however, to submit a few additional remarks.
The first eleven amendments to the Constitution were intended to be checks and limitations upon the government which that instrument called into existence. They had their origin in a spirit of jealousy on the part-of the States, which existed when the Constitution was adopted. The first ten were proposed in 1789 by the first Congress at its first session after the organization of the government. The eleventh was proposed in 1794, and the twelfth in 1803. The one last mentioned regulates the mode of electing the .President aud Vice-President. It neither increased nor diminished the power of the General Government, aud may be said in that respect to occupy neutral ground. No further amendrpents 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 oil
Fairly construed these amendments may be said to rise to the dignity of a new Magna Charta. The thirteenth blotted out slavery and forbade forever its restoration. It struck the .fetters from four- millions of human beings and raised them at once to the sphere of freemen. This was an act of grace and justice performed by the Nation. Before the war it could have been done only by the States where the institution existed, acting severally and separately from each other. ' The power then rested wholly with them. In that way, apparently, such a result could never have occurred. The power of Congress did not extend to the subject, except in the Territories.
The fourteenth amendment consists of five sections. The first is as follows: “All persons born or naturalized within the United' States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they, reside. No State sliall make any law which shall abridge the privileges or immunities of citizens of the United States, nor shall auy State deprive any person of life; liberty, ■or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The fifth section declares-that Congress shall have power to enforce the provisions of this amendment by appropriate legislation.
The fifteenth amendment declares that the right to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Until this amendment was adopted the sub
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 significa-' tion. There is no room for construction.1 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 ipsa fado a citizen óf the United States. No one can be the former without being also the latter; but the latter, by losing his' residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. “ The privileges and-immunities ” of a citizen of the United States'include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation. ' The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection. All those which belong to the citizen of a State, except as to bills of attainder, ex post fado
In the next category, obviously ex industriñ, 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 persou,” aud “life,” “liberty,” aud “ 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 G-od, and the right to preserve it is the most-sacred of the rights of man. Liberty is freedom from- all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty.. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. “Due process of. law” is the application of the law as it exists in the fair and regular course of administrative procedure! “ The equal protection of tile 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.
(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 case.s, as presented in the record, are clearly within the letter and meaning of both the negative categories'of the sixth section. The judgments before us should, therefore, be reversed.
These amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. The provisions of this section are all eminently conservative in their character. They are a bulwark of defence, and can never be made an engine of oppression. The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language “ citizens of the United States” was meant all such citizens; and by “ any person”
Barron v. Baltimore,
Constitution of the United States, Article I, Section 10.
Corfield v. Coryell, 4 Washington, 380; Lemmon v. The People, 26 Barbour, 274, and 20 New York, 626; Conner v. Elliott,