Beruflich Dokumente
Kultur Dokumente
(2nd revision)
©2007 Dan Goodman
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Author's Note:
This is the third in a series of articles on the
Slaughterhouse Casesand Citizenship under the Constitution of the
United States. The first article is "Slaughterhouse Cases, Two
Citizens." The next, "Slaughterhouse Cases, Up Close." The last
in this series is "Privileges and Immunities of a Citizen of the
several States."
Also, this article (Under The Constitution) is the second
(and final) revision to my paper, with the same title, at
http://ssrn.com/
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Abstract:
It is a popular misconception today that because of the
Fourteenth Amendment and the Slaughterhouse Cases, that there is only
one citizen, a citizen of the United States. Such is not the case.
The Supreme Court, in the Slaughterhouse Cases. decidedthat because of
the Fourteenth Amendment, there were now two separate and distinct
citizens under the Constitution of the United States, a citizen of the
United States and a citizen of the several States. [1]
Citizenship under the Constitution was changed by the
Fourteenth Amendment. Before the Fourteenth Amendment there was only
one class of citizens under the Constitution of the United States.
After the adoption of the Fourteenth Amendment, the Supreme Court, in
the Slaughterhouse Cases, decided that there now were two separate and
distinct citizens under the Constitution of the United States.
Before the Fourteenth Amendment there was only one class of
citizens under the Constitution of the United States. A person, as
such, was a citizen in three capacities: as a citizen of a State [2],
as a citizen of the several States [3], and as a citizen of the United
States [4]. Each was based on jurisdiction, that is, the jurisdiction
of the appropriate government and under each a person had rights and
privileges. As a citizen of the State, the constitution and laws of
the individual state provided the rights and privileges. As a citizen
of the several States, a citizen of a State had the same rights and
privileges (in general) as the citizens of the State in which he was
in. And, as a citizen of the United States, the Bill of Rights and
constitutional provisions and amendments plus the laws and treaties of
the United States contained them.
After the adoption of the Fourteenth Amendment, the Supreme
Court of the United States decided in the Slaughterhouse Cases that
because of the Fourteenth Amendment there were now two separate and
distinct citizens under the Constitution of the United States (and not
the Fourteenth Amendment);a citizen of the United States and a citizen
of the several States.
In the Slaughterhouse Cases, the Supreme Court dealt with two
clauses of the Fourteenth Amendment;Section 1, Clause 1 and Section 1,
Clause 2. Citizenship of the United States and citizenship of a state
were treated in Section 1, Clause 1 of the Fourteenth Amendment.
Citizenship of the United States and citizenship of the several States
were covered in Section 1, Clause 2 of the Fourteenth Amendment:
“.. . [T]oestablish 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 1st clause of the 1st section was framed. . ..
The first observation we have to make on this clause is that
it puts at rest both the questions whichwe 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 . . .
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 (2nd clause of the 1st section),
which is the one mainly relied on by the plaintiffs in error,
speaks only of privileges and immunities of citizens of the
United States, and does not speak of those of citizens of the
several states. The argument, however, in favor of the
plaintiffs, rests wholly on the assumption that the citizenship
is the same and the privileges and immunities guaranteed by the
clause are the same.” Slaughterhouse Cases: 83 U.S. 36, 7274.
Moreover, it was decided that citizenship of the United States
and citizenship of a state were now separate and distinct. Privileges
and immunities of a citizen of a state were to be found in the
constitution and laws of the individual state. Privileges and
immunities of a citizen of the United States were to be located at the
Fourteenth Amendment.
Also, the Slaughterhouse court concluded that there were now
two separate and distinct citizens under the Constitution of the
United States (and not the Fourteenth Amendment); a citizen of the
United States and a citizen of the several States:
To wit:
“We do not conceal from ourselves the great responsibility
which this duty devolves upon us. No questions so far reaching
and pervading in their consequences, so profoundly interesting to
the people of this country, and so important in their bearing
upon the relations of the United States and of the several States
to each other, and to the citizens of the states and of the
United States, have been before this court during the official
life of any of its present members. We have given every
opportunity for a full hearing at the bar; we have discussed it
freely and compared views among ourselves; we have taken ample
time for careful deliberation, and we now propose to announce the
judgments which we have formed in the construction of those
articles, so far as we have found them necessary to the decision
of the cases before us, and beyond that we have neither the
inclination nor the right to go.” Slaughterhouse Cases: 83 U.S.
36, at 67 (1873).
And:
“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 (2nd clause of the 1st section),
which is the one mainly relied on by the plaintiffs in error,
speaks only of privileges and immunities of citizens of the
United States, and does not speak of those of citizens of the
several states. The argument, however, in favor of the
plaintiffs, rests wholly on the assumption that the citizenship
is the same and the privileges and immunities guaranteed by the
clause are the same.” Slaughterhouse Cases: 83 U.S. 36, 7374.
[5]
Also:
“Fortunately we are not without judicial construction of this
clause of the Constitution (that is, Article IV, Section 2,
Clause 1). The first and the leading case on the subject is that
of Corfield v. Coryell, decided by Mr. Justice Washington in the
circuit court for the district of Pennsylvania in 1823. 4 Wash
C. C. 371.
'The inquiry,' he says, 'is, what are the privileges and
immunities of citizens of the several States?. . .
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. Maryland. . ..
Having shown that the privileges and immunities relied on in
the argument are those which belong to citizens of the states as
such, and that they are left to the state governments for
security and protection, and not by this article placed under the
special care of the Federal government, we may hold ourselves
excused from defining the privileges and immunities of citizens
of the United Stateswhich no state can abridge, until some case
involving those privileges may make it necessary to do so.”
Slaughterhouse Cases: 83 U.S. 36, 7576, 7879. [6]
It is to be observed that the terms “citizens of the states”
and “citizens of the several states” are used interchangeably by the
Slaughterhouse court. And they are employed in contradistinction to
the term “citizens of the United States.”
Therefore, before Slaughterhouse (and possibly Ward [7]), one
could be a citizen of the several States and a citizen of the United
States. However, after Slaughterhouse, one can be a citizen of the
United States or a citizen of the several States, but not both.
To make clear that a citizen of the United States is not the
same as a citizen of the several States, there is the following:
“To determine, then, who were citizens of the United States
before the adoption of the [14th] amendment it is necessary to
ascertain what persons originally associated themselves together
to form the nation, and what were afterwards admitted to
membership. Looking at the Constitution itself we find that it
was ordained and established by 'the people of the United
States,' and then going further back, we find that these were the
people of the several States that had before dissolved the
political bands which connected them with Great Britain, and
assumed a separate and equal station among the powers of the
earth, and that had by Articles of Confederation and Perpetual
Union, in which they took the name of 'the United States of
America,' entered in to a firm league of friendship with each
other for their common defence, the security of their liberties
and their mutual and general welfare, binding themselves to
assist each other against all force offered to or attack made
upon them, or any of them, on account of religion, sovereignty,
trade, or any other pretence whatever.
Whoever, then, was one of the people of either of these
States when the Constitution of the United States was adopted,
became ipso facto a citizen a member of the nation created by
its adoption. He was one the persons associating together to form
the nation, and was, consequently, one of its original citizens.
As to this there has never been a doubt. Disputes have arisen as
to whether or not certain persons or certain classes of persons
were part of the people at the time, but never as to their
citizenship if they were.” Minor v.
Happersett
: 88 U.S. 162, 167
(1874).
Privileges and immunities of a citizen of the United States are in the
Fourteenth Amendment. For a citizen of the several States, they are
located at Article IV, Section 2 of the Constitution: [9]
“The intention of section 2, Article IV (of the
Constitution), was to confer on the citizens of the several
States a general citizenship, and to communicate all the
privileges and immunities which the citizen of the same State
would be entitled to under like circumstances.” Cole v.
Cunningham: 133 U.S. 107, 113114 (1890). [10]
By force of the Fourteenth Amendment, a citizen of the United
States residing in a state of the Union becomes a citizen of that
state. As such he or she would have privileges and immunities found
in the Fourteenth Amendment plus those privileges and immunities
provided for under the constitution and laws of the state where he or
she resides (Slaughterhouse). A citizen of the several States
domicile in an individual state becomes by Article IV, Section 2,
Clause 1, acitizen of that state. As such he or she would have
privileges and immunities located in Article IV, Section 2, Clause 1,
plus those privileges and immunities provided for under the
constitution and laws of the state where he or she is domicile (Cole).
Therefore in any state of the Union now, there are two state
citizens, a citizen of the United States and a citizen of the several
States.
The Slaughterhouse Caseschanged to whom Article IV, Section 2,
Clause 1 applied. Before it applied to a citizen of a state, whereas
with the adoption of the Fourteenth Amendment, it applies to a citizen
of a state who is a citizen of the several States.
Article IV Section 2, Clause 1, stills relates to a citizen of
a state, but to one who is a citizen of the several States, as
distinguished from a citizen of the United States:
“The court below proceeded upon the assumption that
petitioner was a citizen of the United States; and his status in
that regard is not questioned. The effect of the privileges and
immunities clause of the Fourteenth Amendment, as applied to the
facts of the present case, is to deny the power of Ohio to impose
restraints upon citizens of the United States resident in Alabama
in respect of the disposition of goods within Ohio, if like
restraints are not imposed upon citizens resident in Ohio.
The effect of the similar clause found in the Fourth Article
of the Constitution (section 2), as applied to these facts, would
be the same, since that clause is directed against discrimination
by a state in favor of its own citizens and against the citizens
of other states. Slaughterhouse Cases (LiveStock Dealers' &
Butchers' Ass'n v. Crescent City LiveStock Landing & Slaughter
House Co.), Fed.Cas. No. 8,408, 1 Woods 21, 28; Bradwell v. State
of Illinois, 16 Wall. 130, 138.” Whitfield v. State of Ohio: 297
U.S. 431, 437 (1936).
One was therefore a citizen of a state, then a citizen of the
several States under Article IV, Section 2, Clause 1, before the
Fourteenth Amendment and the Slaughterhouse Cases, whereas after
Slaughterhouse, one is under Article IV, Section 2, Clause 1, acitizen
of the several States, then a citizen of a state. This is because
there are two state citizens, a citizen of the United States and a
citizen of the several States. To this is that before the Fourteenth
Amendment, a citizen of the several States and a citizen of the United
States were considered distinct whereas after the Fourteenth Amendment
and the Slaughterhouse Cases, a citizen of the several States and a
citizen of the United States were determined to be separate and
distinct. [11]
__________________
[1] Minor
v.
Happersett
: 88 U.S. 162, 165 (1874)
“Before its adoption the Constitution of the United States
did not in terms prescribe who should be citizens of the United
States or of the several States [8], yet there were necessarily
such citizens without such provision.”
Senator Jacob Howard, Congressional Globe Senate, 39th
Congress, 1st Session, Page 2765.
". . . Before the adoption of the Constitution of the United
States, the citizens of each State were, in a qualified sense at
least, aliens to one another, for the reason that the several
States before that event were regarded by each other as
independent Governments, each one possessing a sufficiency of
sovereign power to enable it to claim the right of
naturalization; and, undoubtedly, each one of them possessed for
itself the right of naturalizing foreigners, and each one, also,
if it had seen fit so to exercise its sovereign power, might have
declared the citizens of every other State to be aliens in
reference to itself. With a view to prevent such confusion and
disorder, and to put the citizens of the several States on an
equality with each other as to all fundamental rights, a clause
was introduced in the Constitution declaring that "the citizens
of each State shall be entitled all privileges and immunities of
citizens in the several States."
The effect of this clause was to constitute ipso facto the
citizens of each one of the original States[,] citizens of the
United States. And how did they antecedenty become citizens of
the several States? By birth or by naturalization. They became
such in virtue of national law, or rather of natural law which
recognizes persons born within the jurisdiction of every country
as being subjects or citizens of that country. Such persons were,
therefore, citizens of the United States as were born in the
country or were made such by naturalization; and the Constitution
declares that they are entitled, as citizens, to all the
privileges and immunities of citizens in the several States. They
are, by constitutional right, entitled to these privileges and
immunities, and may assert this right and ask for their
enforcement whenever they go within the limits of the several
States of the Union.
It would be a curious question to solve what are the
privileges and immunities of citizens of each of the States in
the several States. I do not propose to go at any length into
that question at this time. It would be a somewhat barren
discussion. But it is certain the clause was inserted in the
Constitution for some good purpose. It has in view some results
beneficial to the citizens of the several States, or it would not
be found there; yet I am not aware that the Supreme Court have
ever undertaken to define either the nature or extent of the
privileges and immunities thus guarantied. . . . But we may
gather some intimation of what probably will be the opinion of
the judiciary by referring to a case adjudged many years ago in
one of the circuit courts of the United States by Judge
Washington; and I will trouble the Senate but for a moment by
reading what that very learned and excellent judge says about
these privileges and immunities of the citizens of each State in
the several States. It is the case of Corfield vs. Coryell, found
in 4 Washington's Circuit Reports, page 380. Judge Washington
says:
'The next question is whether the act infringes that
section of the Constitution which declares that 'the
citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.
The inquiry is, what are the privileges and immunities
of citizens in the several States? . . .'
Such is the character of the privileges and immunities spoken
of in the second section of the fourth article of the
Constitution."
[2] ArticleIII, Section 2 and Article IV, Section 2, Clause 1,
Constitution of the United States.
"The judicial Power shall extend . . . to Controversies
between two or more States; (between a State and Citizens of
another State [repealed by the Eleventh Amendment]);between
Citizens of different States;between Citizens of the same State
claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or
Subjects."
Alexander Hamilton, Federalist Papers, no. 80, "The Powers of
the Judiciary"
"It may be esteemed the basis of the Union, that 'the
citizens of each State shall be entitled to all the privileges
and immunities of citizens of the several States.' And if it be a
just principle that every government ought to possess the means
of executing its own provisions by its own authority, it will
follow, that in order to the inviolable maintenance of that
equality of privileges and immunities to which the citizens of
the Unionwill be entitled, the national judiciary ought to
preside in all cases in which one State or its citizens are
opposed to another State or its citizens. To secure the full
effect of so fundamental a provision against all evasion and
subterfuge, it is necessary that its construction should be
committed to that tribunal which, having no local attachments,
will be likely to be impartial between the different States and
their citizens, and which, owing its official existence to the
Union, will never be likely to feel any bias inauspicious to the
principles on which its is founded."
[3] ArticleIV, Section 2, Clause 1, Constitution of the United
States:
“The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.”
Joseph Story, Commentaries on the Constitution 3§1800 (1833):
“It is obvious, that, if the citizens of each state were to
be deemed aliens to each other, they could not take, or hold real
estate, or other privileges, except as other aliens. The
intention of this clause was to confer on them, if one may say
so, a general citizenship; and to communicate all the privileges
and immunities, which the citizens of the same state would be
entitled to under the like circumstances.”
[4] Article II, Section 5, Constitution of the United States:
“No person except a natural born citizen, or a citizen of the
United States, at the time of the adoption of this Constitution,
shall be eligible to the office of President.”
[5] Maxwell
v. Dow
: 176 U.S. 581, 587 (1900)
“In the Slaughterhouse Cases, 16 Wall. 36, 21 L. ed. 394, the
subject of the privileges or immunities of citizens of the United
States, as distinguished from those of a particular state, was
treated by Mr. Justice Miller in delivering the opinion of the
court. He stated that the argument in favor of the plaintiffs,
claiming that the ordinance of the city of New Orleans was
invalid, rested wholly on the assumption that the citizenship is
the same and the privileges and immunities guaranteed by the
Fourteenth Amendment are the same as to citizens of the United
States and citizens of the several states. This he showed to be
not well founded; that there was a citizenship of the United
States and a citizenship of the states , which were distinct from
each other, depending upon different characteristics and
circumstances in the individual.”.
[6] The Slaughterhouse court also did the following:
On page 75 of its opinion it states:
"In the Constitution of the United States, which superseded
the Articles of Confederation, the corresponding provision is
found in section two of the fourth article, in the following
words: 'The citizens of each State shall be entitled to all the
privileges and immunities of citizens OF the several States.' "
However, Article IV, Section 2, Clause 1 states:
"The citizens of each State shall be entitled to all
privileges and immunities of citizens IN the several States."
And, on page 76, it reads:
"Fortunately we are not without judicial construction of this
clause of the Constitution (that is, Article IV, Section 2,
Clause 1). The first and the leading case on the subject is that
of Corfield v. Coryell, decided by Mr. Justice Washington in the
circuit court for the district of Pennsylvania in 1823. 4 Wash C.
C. 371.
'The inquiry,' he says, 'is, what are the privileges and
immunities of citizens OF the several States?'"
But, in Corfield v. Coryell, it is written:
“The inquiry is what are the privileges and immunities of
citizens IN the several states?”
Words in law are deliberately chosen. The Supreme court, in its
opinion, deliberately changed the word, as indicated above; that is,
IN to OFfor a reason. That reason, as already stated was to establish
a citizen of the several States, distinguishable from a citizen of the
United States. (That is, privileges and immunities of citizens OF
(not IN) the several States and privileges and immunities of citizens
of the United States)
Examples of this being done since the Slaughterhouse Cases
include::
". . . [I]t was also decided that a corporation did not have
the rights of its personal members, and could not invoke that
provision of §2, article 4, of the Constitution of the United
States, which gave to the citizens of each state the privileges
and immunities of citizens OF the several states. See also
Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U.S.
181 , 31 L. ed. 650, 8 Sup. Ct. Rep. 737; Ducat v. Chicago, 10
Wall. 410, 19 L. ed. 972." WatersPierce Oil Company v. State of
Texas: 177 U.S. 28, 45 (1900).
“There can be no doubt that Balk, as a citizen of the state
of North Carolina, had the right to sue Harris in Maryland to
recover the debt which Harris owed him. Being a citizen of North
Carolina, he was entitled to all the privileges and immunities of
citizens OF the several states, one of which is the right to
institute actions in the courts of another state.” Harris v.
Balk: 198 U.S. 215, 223 (1905).
This was done in a similar way too before the Slaughterhouse
Cases. See the case of Ward v. The State of Maryland, Note [7] and
from Corfield v. Coryell, 6 Fed. Cas. 546, case no. 3,230 C.C.E.D.Pa.
(1823), there is the following:
“The next question is, whether this act infringes that
section of the constitution which declares that ‘the citizens of
each state shall be entitled to all the privileges and immunities
of citizens IN the several states?’ The inquiry is, what are the
privileges and immunities of citizens IN the several states? We
feel no hesitation in confining these expressions to those
privileges and immunities which are, in their nature,
fundamental; which belong, of right, to the citizens of all free
governments; and which have, at all times, been enjoyed by the
citizens OF the several stateswhich compose this Union, from the
time of their becoming free, independent, and sovereign. What
these fundamental principles are, it would perhaps be more
tedious than difficult to enumerate. They may, however, be all
comprehended under the following general heads: Protection by the
government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and
obtain happiness and safety; subject nevertheless to such
restraints as the government may justly prescribe for the general
good of the whole. The right of a citizen of one state to pass
through, or to reside in any other state, for purposes of trade,
agriculture, professional pursuits, or otherwise; to claim the
benefit of the writ of habeas corpus; to institute and maintain
actions of any kind in the courts of the state; to take, hold and
dispose of property, either real or personal; and an exemption
from higher taxes or impositions than are paid by the other
citizens of the state; may be mentioned as some of the particular
privileges and immunities of citizens, which are clearly embraced
by the general description of privileges deemed to be
fundamental: to which may be added, the elective franchise, as
regulated and established by the laws or constitution of the
state in which it is to be exercised. These, and many others
which might be mentioned, are, strictly speaking, privileges and
immunities, and the enjoyment of them by the citizens of each
state, in every other state, was manifestly calculated (to use
the expressions of the preamble of the corresponding provision in
the old articles of confederation) ‘the better to secure and
perpetuate mutual friendship and intercourse among the people of
the different states of the Union.’ But we cannot accede to the
proposition which was insisted on by the counsel, that, under
this provision of the constitution, the citizens OF the several
statesare permitted to participate in all the rights which belong
exclusively to the citizens of any other particular state, merely
upon the ground that they are enjoyed by those citizens; much
less, that in regulating the use of the common property of the
citizens of such state, the legislature is bound to extend to the
citizens of all the other states the same advantages as are
secured to their own citizens." Corfield
v. Coryell
: 6 Fed. Cas.
546, 551552, case no. 3,230 C.C.E.D.Pa. (1823).
See also Note [1] Senator Jacob Howard, Congressional Globe.
[7] Ward
v. State of Maryland
: 79 U.S. 418, 430431 (1870)
“Comprehensive as the power of the states is to lay and
collect taxes and excises, it is, nevertheless, clear, in the
judgment of the court, that the power cannot be exercised to any
extent in a manner forbidden by the Constitution; and inasmuch as
the Constitution provides that the citizens of each state shall
be entitled to all privileges and immunities of citizens in the
several states, it follows that the defendant might lawfully
sell, or offer or expose for sale, within the district described
in the indictment, any goods which the permanent residents of
the state might sell, or offer or expose for sale in that
district, without being subjected to any higher tax or excise
than that exacted by law of such permanent residents.
Grant that the states may impose discriminating taxes against
the citizens of other states, and it will soon be found that the
power conferred upon Congress to regulate interstate commerce is
of no value, as the unrestricted power of the states to tax will
prove to be more efficacious to promote inequality than any
regulations which Congress can pass to preserve the equality of
right contemplated by the Constitution among the citizens of the
several states.”
[8] Congressional
Globe
House of Representatives, 42nd Congress,
2nd Session, Bill 1592, page 1 & 2:
"Whereas said tax laws, in their practical operation, have
not had the effect contemplated when they were enacted, of
imposing a burden upon the consumers, but said taxes have fallen
exclusively on producers who, while paying this especial tax on
cotton, and which, at that time, were especially burdensome,
have, in common with citizens of the several States, paid their
due proportion of all other taxes; . . . “ (Before
Slaughterhouse Cases, February 12, 1873)
Congressional Globe House of Representatives, Volume 74, Page
163:
"Resolved, That the Committee on Banking and Currency be
instructed to inquire what legislation is necessary in order to
provide for a more equitable distribution of the national
currency among the citizens of the several States, and to report
by bill or otherwise." (After Slaughterhouse Cases, December 19,
1873)
Slaughterhouse Casesdecided on (opinion issued) April 14,
1873.
[9] Maxwell
v. Dow:
176 U.S. 581, 587 (1900)
So it was held in the oyster planting case, McCready v.
Virginia, 94 U.S. 391, that the right which the people of that
State acquired to appropriate its tide waters and the beds
therein for taking and cultivating fish, was but a regulation of
the use, by the people, of their common property, and the right
thus acquired did not come from their citizenship alone, but from
their citizenship and property combined. It was, therefore, a
property right and not a mere privilege or immunity of
citizenship, and for that reason the citizen of one State was not
invested by the Constitution of the United States with any
interest in the common property of the citizens of another State.
This was a decision under another section of the Constitution
(section second of article fourth) from the one under discussion,
and it gives to the citizens of each State all privileges and
immunities of citizens of the several States, but it is cited for
the purpose of showing that where the privilege or immunity does
not rest alone upon citizenship, a citizen of another State does
not participate therein.
In this case the privilege or immunity claimed does not rest
upon the individual by virtue of his national citizenship, and
hence is not protected by a clause which simply prohibits the
abridgment of the privileges or immunities of citizens of the
United States. Those are not distinctly privileges or immunities
of such citizenship, where everyone has the same as against the
Federal Government, whether citizen or not.
The Fourteenth Amendment, it must be remembered, did not add
to those privileges or immunities.”
[10] “Th(is) clause established a general citizenship among the
citizens of the several States. In Cole v. Cunningham, (fn 59) the
court said:
“The intention of section 2, Article IV (of the
Constitution), was to confer on the citizens of the several
States a general citizenship, and to communicate all the
privileges and immunities which the citizen of the same State
would be entitled to under like circumstances.” ( 59)
fn 133 U.S.
107, 113114.” The Constitution of the United States, Its History
and Construction, Volume II; David Kemper Watson, LL.B., LL.D.,
of the Columbus, Ohio, Bar; Chicago; Callaghan & Company; ©1910;
Chapter XLV, Page 1218. (See Illustration A for quote of text
from page 1205 to 1221)
[11] Maxwell v. Dow: 176 U.S. 581, at 586, 587, 588, 590, 591, 592,
594, 596 (1900)
".. . Postponing an inquiry in regard to this last
objection until we have examined the other, we proceed to inquire
what are the privileges and immunities of a citizen of the United
States whichno State can abridge? . ..
It is conceded that there are certain privileges or
immunities possessed by a citizen of the United States because of
his citizenship, and that they cannot be abridged by any action
of the States. . ..
In the Slaughterhouse cases, 16 Wall. 36, the subject of the
privileges or immunities of citizens of the United States, as
distinguished from those of a particular State, was treated by
Mr. Justice Miller in delivering the opinion of the court. He
stated that the argument in favor of the plaintiffs, claiming
that the ordinance of the city of New Orleans was invalid, rested
wholly on the assumption that the citizenship is the same and the
privileges and immunities guaranteed by the Fourteenth Amendment
are the same as to citizens of the United States and citizens of
the several States. This he showed to be not well founded; that
there was a citizenship of the United States and a citizenship of
the States, which were distinct from each other, depending upon
different characteristics and circumstances in the individual.
. ..
He then proceeded to inquire as to the meaning of the words
'privileges and immunities' as used in the amendment, and said
that the first occurrence of the phrase in our constitutional
history is found to be in the fourth article of the old
confederation, in which it was declared:
'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 egress 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.'
A provision corresponding to this he found in the
Constitution of the United States in section 2 of the fourth
article, wherein it is provided that ‘the citizens of each State
shall be entitled to all the privileges and immunities of
citizens of the several States.’ What those privileges were is
not defined in the Constitution, but the justice said there could
be but little question that the purpose of both those provisions
was the same, and that the privileges and immunities intended
were the same in each. He then referred to the case of Corfield
v. Coryell, decided by Mr. Justice Washington in the Circuit
Court for the District of Pennsylvania in 1823, 4 Washington C.C.
371, where the question of the meaning of this clause in the
Constitution was raised. Answering the question what were the
privileges and immunities of citizens of the several States, Mr.
Justice Washington said in that case:
'We feel no hesitation in confining these expressions to
those privileges and immunities which are in their nature
fundamental; which belong of right to the citizens of all
free governments, and which have at all times been enjoyed
by citizens of the several States which compose this Union
from the time of their becoming free, independent and
sovereign. What these fundamental principles are it would be
more tedious than difficult to enumerate. They may, however,
be all comprehended under the following general heads:
Protection by the government; . . . The enjoyment of life
and liberty with the right to acquire and possess property
of every kind, and to pursue and obtain happiness and
safety, subject, nevertheless, to such restraints as the
government may prescribe for the general good of the whole.
. ..
If the rights granted by the Louisiana legislature did not
infringe upon the privileges or immunities of citizens of the
United States, the question arose as to what such privileges
were, and in enumerating some of them, without assuming to state
them all, it was said that a citizen of the United States, as
such, had the right to come to the seat of government to assert
claims or transact business, to seek the protection of the
government or to share its offices; he had the right of free
access to its seaports, its various offices throughout the
country, and to the courts of justice in the several States; to
demand the care and protection of the General Government over his
life, liberty and property when on the high seas or within the
jurisdiction of a foreign government; the right, with others, to
peaceably assemble and petition for a redress of grievances; the
right to the writ of habeas corpus, and to use the navigable
waters of the United States, however they may penetrate the
territory of the several States; also all rights secured to our
citizens by treaties with foreign nations; the right to become
citizens of any State in the Union by a bona fide residence
therein, with the same rights as other citizens of that State,
and the rights secured to him by the Thirteenth and Fifteenth
amendments to the Constitution. . ..
The definition of the words "privileges and immunities," as
given by Mr. Justice Washington, was adopted in substance in Paul
v. Virginia, 8 Wall. 168, 180, and in Ward v. Maryland, 12 Wall.
418, 430. These rights, it is said in the Slaughterhouse cases,
have always been held to be the class of rights whichthe State
Governments were created to establish and secure. . ..
In speaking of the meaning of the phrase 'privileges and
immunities of citizens of the several States' under section
second, article fourth of the Constitution, it was said by the
present Chief Justice, in Cole v. Cunningham, 133 U.S. 107, that
the intention was:
'to confer on the citizens of the several States a
general citizenship, and to communicate all the privileges
and immunities which the citizens of the same State would be
entitled to under the like circumstances, and this includes
the right to institute actions.' . ..
These cases show the meaning which the courts have attached
to the expression, as used in the fourth article of the
Constitution, and the argument is not labored which gives the
same meaning to it when used in the Fourteenth Amendment.
That the primary reason for that amendment was to secure the
full enjoyment of liberty to the colored race is not denied, yet
it is not restricted to that purpose, and it applies to everyone,
white or black, that comes within its provisions. But, as said in
the Slaughterhouse cases, the protection of the citizen [of the
United States] in his rights as a citizen of the Statestill
remains with the State. . ..
So it was held in the oyster planting case, McCready v.
Virginia, 94 U.S. 391, that the right which the people of that
State acquired to appropriate its tidewaters and the beds therein
for taking and cultivating fish was but a regulation of the use,
by the people, of their common property, and the right thus
acquired did not come from their citizenship alone, but from
their citizenship and property combined. It was, therefore, a
property right, and not a mere privilege or immunity of
citizenship, and, for that reason, the citizen of one State was
not invested by the Constitution of the United States with any
interest in the common property of the citizens of another State.
This was a decision under another section of the Constitution
(section second of article fourth) from the one under discussion,
and it gives to the citizens of each State all privileges and
immunities of citizens of the several States, but it is cited for
the purpose of showing that, where the privilege or immunity does
not rest alone upon citizenship, a citizen of another State does
not participate therein.
In this case, the privilege or immunity claimed does not rest
upon the individual by virtue of his national citizenship, and
hence is not protected by a clause which simply prohibits the
abridgment of the privileges or immunities of citizens of the
United States. Those are not distinctly privileges or immunities
of such citizenship, where everyone has the same as against the
Federal Government, whether citizen or not.
The Fourteenth Amendment, it must be remembered, did not add
to those privileges or immunities."
*****************************
Illustration A
Chapter XLV Full Faith and Credit
(page 1205)
The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.
Charles Pinckney was the author of this important provision.(fn
32) It was reported by the Committee of Detail and inserted in the
Constitution without change from the form in which it is found in the
plan of the Constitution, which Mr. Pinckney submitted to the
Convention. It is one of the important clauses of the Constitution.
It was a principle of English law that a subject of the King could
own and dispose of property in any of His Majesty's possessions and
that he was entitled to the rights and privileges of the inhabitants of
each colony regardless of his actual residence.
Lord Coke decided in Calvin's case that, after the union of England
and Scotland, "A man born in Scotland after the accession of King
James the First to the English throne, which was in 1603, and during
his reign, may hold land in England." (fn 33) The time when the
expression, "the privileges and im
_________
32 More than a third of a century after the Convention which framed
the Constitution, Mr. Pinckney was a member of the House of
Representatives, when the Missouri Compromise was before that body. In
a speech on that subject he said that he was the author of this
clause:
"It appears by the Journal of the Convention that formed the
Constitution of the United States, that I was the only member of that
body that ever submitted a plan of a Constitution completely drawn in
articles and sections, and this having been done at a very early stage
of their proceedings, the article on which now so much stress is laid,
and on the meaning of which the whole of this question is made to
turn, and which is in these words: 'The citizens of each State shall
be entitled to all privileges and immunities in every State," having
been made by me, it is supposed I must know, or perfectly recollect,
what I meant by it. In answer, I say that at the time I drew that
Constitution, I perfectly knew that there did not then exist such a
thing in the Union as a black or colored citizen, nor could I then
have conceived it possible such a thing could ever have existed in it;
nor, notwithstanding all that is said on the subject, do I now believe
one does exist in it." Annals of Congress, (1821), 2 Sess. 16th Cong.,
1134.
33 Coke's Reports, 1 English Reports King's Bench, Reprint Book 6,
379.
(page 1206)
munities, "became recognized in English law is not known. The writers
on English constitutional laws do not seem to mention it. But in the
first charter which King James granted to Virginia, which was in 1606,
was this expression:
"Also we do, for Us, and our Heirs and Successors, Declare by these
Presents, that all and every, the Persons being our Subjects, which
shall dwell and inhabit within every or any of the said several
Colonies and Plantations, and every of their children, which shall
happen to be born within any of the Limits and Precincts of the said
several Colonies and Plantations, shall have and enjoy all Liberties,
Franchises and Immunities, within any of another Dominions to all
intents and purposes, as if they had been abiding and born, within
this our Realm of England, or any other of our said Dominions." (fn 34)
In the resolutions which Patrick Henry prepared and presented to
the Virginia Assembly in 1765 the first one read, "That the first
adventurers, and settlers of this His Majesty's Colony and dominion
brought with them . . . all the privileges, franchises and immunities,
that have been held, enjoyed, and possessed by the people of Great
Britain." (fn 35)
Among the American Colonists who were subjects of the King this
principle was respected and observed and a person residing in one
colony could own, hold and dispose of property in any other, and was
entitled to the benefitof the laws of such colony the same as the
citizens thereof. Such was the condition of public sentiment when
Congress appointed a committee to prepare Articles of Confederation.
The report of that committee, made on the 12th of July, 1776, contained
the first formal expression of opinion relating to privileges and
immunities of citizens made by the American Congress and was in this
language:
"The inhabitants of each colony shall henceforth always enjoy the
same rights, liberties, privileges, immunities and advantages, in the
other colonies, which the said inhabitants now have, in all cases
whatever." (fn 36)
34 Poore's
Charters
, vol. 2, 1891, 1892.
35 Wirt's
Life of Henry
, 74.
36 Secret Journals of Congress, vol. 1, 292.
(page 1207)
A few days after this report the following resolution was passed by
Congress:
"All foreigners who shall leave the armies of his Britannic Majesty
in America and chuse to become members of these States; they shall be
protected in the free exercise of their respective religions and be
invested with the rights, privileges, and immunities of natives as
established by the laws of the States." (fn 37)
In Douglas v. Stephens, Chancellor Ridgelysaid: "So far was the
sentiment of community of interest carried that the people of Delaware
were often represented in their Legislature and in Congress by persons
who resided in Pennsylvania. Even after the adoption of the
Declaration of Independence, Mr. McKean, who resided in Philadelphia,
was a member of the Delaware General Assembly, and General Dickinson of
New Jersey and Mr. of Philadelphia were Representatives
of Delaware in the Congress of the United States and Mr. McKean
actually signed the Articles of Confederation, on behalf of Dela
37 Secret Journals of Congress, vol. 2, 292.
The occasion for the passage of this resolution furnishes an
interesting view of some occurrences during the Revolutionary War. The
resolution in full reads:
"Whereas the Parliament of Great Britain have thought fit by a late
act, not only to invite our troops to desert our service, but to direct
compulsion of our people, taken at sea, to serve against their country;
"Resolved, therefore, that these States will receive all such
foreigners who shall leave the armies of his Britannic Majesty in
America, and shall chuse to become members of any of these States; and
they shall be protected in the free exercise of their respective
religions, and be invested with the rights, privileges and immunities
of natives as established by the laws of these States; and, moreover,
that this Congress will provide for every such person fifty acres of
unappropriated lands in some of these States, to be held by him and his
heirs in absolute property." Journal of Congress, vol. 2, 292.
During the Revolutionary War, Jefferson, while Governor of
Virginia, issued a proclamation reciting the aforesaid resolution, and
added:
"I further promise all Foreigners, who shall leave the armies of
his Britannic Majesty while in this State and repair to me at this
place, that they shall receive from this Commonwealth a further
donation of two cows and an exemption, during the present war and
their continuance in this State, from all taxes, for the support
thereof, and from all militia and military service." Ford's Writings
of Jefferson, vol. 2, 445.
(page 1208)
ware when he presided in the Supreme Court of Pennsylvania."(fn 38)
Privileges and Immunities of Citizens. — It is important to
understand as definitely as possible the meaning of the words,
"privileges and immunities," as used in this clause, though the courts
have always declined to define them unless compelled to do so in order
to properly decide the cause at issue. Mr. Justice Curtis in Connor v.
Elliott, (fn 39) in considering this term said: "It is safer, and more
in accordance with the duty of a judicial tribunal, to leave its
meaning to be determined, in each case, upon a view of the particular
rights asserted and denied therein." In Ward v. Maryland, (fn 40) it
was said: "Attempt will not be made to define the words 'privileges and
immunities,' or to speak of the rights which they are intended to
secure, and protect, beyond what may be necessary to the decision of
the case before the court."
Chief Justice "Waite, in McCready v. Virginia, (fn 41) cited with
approval the language of Mr. Justice Curtis in Connor v. Elliott, and
added: "Citizens of one State are not invested by this clause of the
Constitution with any interest in the common property of the citizens
of another State." Mr. Justice Harlan, in Blake v. McClung, (fn 42)
said: "This court has never undertaken to give any exact or
comprehensive definition of the words 'privileges and immunities' in
Article 4 of the Constitution."
The word "privilege" as used in this clause signifies a peculiar
advantage, exemption, or immunity — such privileges as would be common
or the same in every State. (fn 43) It is defined to be exemption from
such burdens as others are subjected to. (fn 44)
Immunity is defined to be, an exemption from serving in an office,
or performing duties which the law generally requires other citizens to
perform. (fn 45)
The Articles of Confederation contained this provision:
38 1 Del. Ch. 465468.
39 18 Howard, 593.
40 12 Wallace, 418. 430.
4194 U. S. 391 395.
42 172 U. S. 239, 248.
43 Douglas v. Stephens, 1 Del. Ch. 465476.
44 Bouvier.
45 Bouvier.
(page 1209)
“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 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, provided, etc." (fn 46)
Mr. Madison, in No. 42 of the Federalist,commented on this
provision. His discussion of it will be found at page 613 of the first
volume of this work, where it is quoted at length.
When the Constitutional Convention met, the men who composed it
were familiar with the principle and language we are considering and
both were older than American constitutional liberty. So appropriate
was it that both should be incorporated in the Constitution that the
provision was adopted by the Convention by all the States voting for it
except South Carolina, (fn 48) which voted against it, and Georgia,
whose vote was divided. Without change it was accepted by the
Committee on Style and became part of the Constitution, being one of
the very few pro
46 Articles of Confederation, Art. 4.
(the number 47 is omitted)
48 Journal, 624.
It is singular Mr. Pinckney's own State should have been against
him on this provision. In a speech delivered in the Convention Mr.
Pinckney said:
"The Federal Government should possess the exclusive right of de
claringon what terms the privileges of citizenship and naturalization
should be extended to foreigners. At present the citizens of one State
are entitled to the privileges of citizens in every State. Hence it
follows, that a foreigner, as soon as he is admitted to the rights of
citizenship in one becomes entitled to them in all. The States
differed widely in their regulations on this subject. I have known it
already productive of inconveniences, and think they must increase. The
younger States will hold out every temptation to foreigners, by making
the admission to offices less difficult in their governments, than the
older. I believe in some States, the residence whichwill enable a
foreigner to hold any office, will not in others entitle him to vote.
To render this power generally useful, it must be placed in the Union,
where alone it can be equally exercised." Moore's American Eloquence,
vol. 1, 368.
(page 1210)
visions which did not undergo some change during the proceedings of
the Convention.
The framers of the Constitution had the same desire to cement and
perpetuate the feeling of good will and confidence among the citizens
of each State and to secure their equal rights in the other States
whichactuated the framers of the Articles of Confederation, and the
members of the Colonial Congress. This was shown by the fact that the
provision we are considering was adopted without debate and by a
practically unanimous vote by the Constitutional Convention.
Had this provision been omitted, State comity would then have been
depended upon to secure that friendly relationship which exists between
such citizens and the enforcement of such rights as this provision
secures. Now a citizen of a State or of the United States need not
rely upon State comity or national legislation for the enjoyment of
those privileges and immunities which have formed so important a part
of our constitutional history and which are granted to him by that
instrument. They are given him by an authority which State comity
cannot reachor national legislation influence. The great principle has
become a part of the organic law of the nation and is written into the
letter and spirit of the Constitution. What had been a cherished
principle of State comity has become a constitutional provision.
There can be little doubt, when we consider the purpose which
influenced the Convention to insert this clause, that the framers of
the Constitution meant that the citizens of each State should be
entitled in the other States to the legal rights of the citizens of
those States. Had the clause read in that way it would have been more
easily understood. Certainly the ultimate purpose of the provision is
to secure to the citizens of any particular State whatever rights they
may have in other States of the Union.
The rights which the clause was intended to secureare those of the
citizens of the States. It does not undertake to confer any right,
privilege or immunity on any one not a citizen of a State, as distinct
from citizens of the United States. No mention or reference is made to
citizens of the United States. If such a distinction came into the
mind of the Convention or of any member of it, there is
(page 1211)
nothingin this clause, or in any clause of the original Constitution
which indicates it. Citizenship of the United States, as separate from
citizenship of the States, does not seem to have been contemplated at
that time. Certainly the language of this clause can only be predicated
on citizenship of the States. (fn 49)
In Brittle v. the People, (fn 50) Chief Justice Mason, in his
dissenting opinion, said: "The words 'privileges and immunities' have
been treated as synonymous with rights." And Denio, J., in Lemmon v.
The People, (fn 51) in referring to the privileges and immunities of
citizens under this clause, observed: "The meaning is, that in a given
State, every citizen of every other State shall have the same
privileges and immunities — that is, the same rights — which the
citizens of that State possess." •
In ex parte Coupland, (fn 52) it was held: "The word 'privilege'
properly signifies an exemption from some duty, and immunity from some
general burden or obligation, a right peculiar to some individual or
body."
This clause refers only to privileges and immunities of citizens of
the States.
The privileges and immunities embraced by this section are those
belonging only to citizens of the States.
This provision came before the Supreme Court of Delaware at a very
early period and it was held: "The only reasonable construction to be
given to this clause is that of placing all the citizens of the United
States on the same footing, and extending to them a perfect equality in
their rights, privileges and immunities. If one citizen has
49 Mr. Hannis Taylor after quoting this constitutional provision
says, "Beyond that point the frarners of the more perfect Union were
not prepared to go. They did not attempt to do more than establish an
interstate citizenship to which they imparted the qualities of denying
to every State the right to discriminate in favor of its own citizens
as against those of any other State. There was no attempt whatever,
either in the Constitution itself or in any act of Congress passed
after its adoption, to establish or define citizenship of the United
States as such, as a distinct and independent thing from State
citizenship." Origin and Growth of the English Constitution, 76.
50 2 Nebraska, 239.
5120 New York, 608.
52 26 Texas, 420.
(page 1212)
a privilege to which others are not entitled then they are not entitled
to all privileges and immunities of citizens in the several States.
"It was further held, that a privilege cannot be extended so far as
that no particular advantage can be given by any State to its own
citizens, but such as must be extended to all citizens in every State
in the Union; because, the privileges secured are not such as are given
to citizens in one or more States by the State laws, but must be such
as the citizens in the several States, that is, in all the States, are
entitled to. The great object to be attained was to prevent a citizen
in one State from being considered an alien in another State."
"Our situation antecedent to the formation of the first General
Government, in 1778, rendered such a provision necessary; and
accordingly a similar clause was inserted in the Articles of
Confederation then adopted, from which the second section of the Fourth
Article of the Constitution of the United States was probably taken.
The privileges and immunities are not enumerated or described; but they
are all privileges common in the Union — which certainly excludes those
privileges which belong only to citizens of one or more States, and not
to those in every other State." (fn 53)
The clause was first considered in the Federal Courts in the case
of Corfield v. Coryell, (fn 54) in 1823, where Mr. Justice Washington
defined privileges and immunities, and the courts without hesitation
have accepted and followed his definition. In his opinion he says:
"The inquiry is, what are the privileges and immunities of
citizens in the several States? We feel no hesitation in confining
these expressions to those privileges and immunities which are, in
their nature, fundamental; which belong, of right, to the citizens of
all free governments; and which have at all times been enjoyed by the
citizens of the several States which compose this union, from the time
of their becoming free, independent and sovereign. What these
fundamental principles are, it would perhaps be more tedious than
difficult to enumerate. They may, however, be all comprehended under
the following general
53 Douglas,
Adm'n
.,
v. Stephens
, 1 Delaware Chancery, 465, 476, 477.
54 Washington, C. C., 380, 386.
(page 1213)
heads; protection by the government; the enjoyment of life and liberty,
with the right to acquire and possess property of every kind, and to
pursue and obtain happiness and safety; subject nevertheless to such
restraints as the government may justly prescribe for the general good
of the whole. The right of a citizen of one State to pass through, or
to reside in any other State, for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of the writ
of habeas corpus; to institute and maintain actions of any kind in the
courts of the State; to take, hold and dispose of property, either real
or personal; and an exemption from higher taxes or impositions than
are paid by the other citizens of the State; may be mentioned as some
of the particular privileges and immunities of citizens, which are
clearly embraced by the general description of privileges deemed to be
fundamental; to which may be added, the elective franchise, a regulated
and established by the laws or constitution of the State in which it is
to be exercised. These, and many others which might be mentioned, are,
strictly speaking, privileges and immunities, and the enjoyment of them
by the citizens of each State, in every other State, was manifestly
calculated (to use the expressions of the preamble of the
corresponding provision in the old Articles of Confederation), 'the
better to secure and perpetuate mutual friendship and intercourse among
the people of the different States of the Union.' "
These privileges and immunities are: first, the enjoyment of life
and liberty, with the right to acquire and possess property of every
kind, and to pursue and obtain happiness and safety; second, the right
of a citizen of one State to pass through, or reside in, any other
State, for purposes of trade, agriculture, professional pursuits, or
otherwise; third, to claim the benefit of the writ of habeas corpus;
fourth, to institute and maintain actions of any kind in the courts of
the State; fifth, to take, hold and dispose of property; sixth,
exemption from higher taxes or impositions than are paid by the other
citizens of the State; seventh, the elective franchise as regulated and
established by the laws or constitution of the State in which it is to
be exercised. They are fundamental and arise from the fact of
citizenship and nothing else, and belong
(page 1214)
tothe citizen as of right. The list does not, however, include all
privileges and immunities which citizens of the States were entitled to
at that time, for the opinion says, "There were many others which might
be mentioned," and the number has since been greatly enlarged, for it
must appear selfevident that a great and powerful people, living in
the broadest current of national life and activity, in the course of
almost a century would of necessity create new privileges and
immunities, so that the number would increase with the development of
national resources, growth and strength. These new privileges and
immunities of citizens of the States are no less fundamental than those
mentioned in Corfield v. Coryell.
Many of them have been grouped by an eminent writer on the
Constitution, (fn 55) as follows:
"Privileges, in general sense, including both those under State and
Federal citizenship, include the right to go and come through all the
territory under the jurisdiction of the United States on lawful
business or pleasure; to keep and bear arms; to make contracts; to
acquire, hold and dispose of property; to sue and have admission to the
courts and the benefit of habeas corpus, and other legal remedies and
the public records and books; to carry on lawful business, to use the
mails, railroads, telegraphs, telephones, and other common carriers of
the citizen's person, goods, or intelligence; to use public highways
and easements; to be exempt from unreasonable searches of his domicile
or premises, or seizure of his property; to enjoy light and air; to
marry and have family; to seek happiness and pleasure; to worship God,
and attend public worship of God and other public assemblages of the
people; to entertain what religious opinions conscience dictates, and
worship accordingly; to witness public demonstrations, to attend
theaters and other public amusements; to obtain education in letters,
music, art, profession, science, mechanics, or the like; to attend the
public schools, no matter by what name known, common, graded or normal
schools, academies, colleges or universities; to go to foreign lands;
to peaceably assemble and confer upon religion, politics or business,
to write and
55 Brannon on the Fourteenth Amendment, 65.
(page 1215)
express opinions upon public matters of business or religion; to
petition the Government for redress of grievances; freedom of the
press."
Others could be added to the list, but it would be useless to do
so. They embrace almost everything which conduces to the enjoyment of
life and the successful conduct of business, and all are based upon the
rights of citizenship, and are such as legitimately flow from that
relation.
Illustrations of this clause.— An act of the General Assembly of
Virginia provided that before any insurance company not incorporated in
that State could carry on its business there it must first obtain a
license for that purpose; and that such license should not be granted
it until after the company had deposited with the State treasurer
certain specified bonds to a certain amount. A later act declared that
no person "without a license authorized by law, should act as agent for
any foreign insurance company" under a penalty of not less than fifty
nor more than five hundereddollars for each offense, etc. Samuel Paul,
who resided in that State, became the agent of insurance companies
incorporated in other States which desired to carry on insurance in
Virginia. Following the statute, Paul filed with the proper official
of the State his authority from the aforesaid companies to act as their
agent. Then he applied to the proper officer for a license to act as
such agent within the State, and offered to comply with all the
requirements of the statute concerning foreign insurance companies
except the provision requiring a deposit of bonds with the State
treasurer. He did not comply with this provision, neither did the
companies which he represented, and his license was refused upon that
ground, but he undertook to act in Virginia as the agent for the
foreign companies without license, and issued a policy in the name of
one of such companies to a citizen of Virginia. For violating the
statute he was indicted, tried and convicted, and on error to the
supreme court of the State the judgment was affirmed.
The case went to the Supreme Court of the United States, as it was
claimed that the act of the Virginia General Assembly was in violation
of the clause of the
(page 1216)
Federal Constitution under consideration. Mr. Justice Field (fn 56)
said (p. 177):
"The term citizen as used in the clause in question, applies only
to natural persons, members of the body politic, owing allegiance to
the State, not to artificial persons created by the legislature, and
possessing only the attributes which the legislature has prescribed."
Again (p. 180):
"It was undoubtedly the object of the clause in question to place
the citizens of each State upon the same footing' with citizens of
other States, so far as the advantages resulting from citizenship in
those States are concerned. It relieves them from the disabilities of
alienage in other States; it inhibits discriminating legislation
against them by other States; it gives them the right of free ingress
into other States, and egress from them; it insures to them in other
States the same freedom possessed by the citizens of those States in
the acquisition and enjoyment of property and in the pursuit of
happiness; and it secures to them in other States the equal protection
of their laws. It has been justly said that no provision in the
Constitution has tended so strongly to constitute the citizens of the
United States one people as this.
"Indeed, without some provision of the kind removing from the
citizens of each State the disabilities of alienage in the other
States, and giving them equality of privilege with citizens of those
States, the Republic would have constituted little more than a league
of States; it would not have constituted the Union which now exists.
"But the privileges and immunities secured to citizens of each
State in the several States, by the provision in question, are those
privileges and immunities which are common to the citizens in the
latter States under their constitution and laws by virtue of their
being citizens. Special privileges enjoyed by citizens in their own
States are not secured in other States by this provision. It was not
intended by the provision to give to the laws of one State any
operation in other States. They can have no such operation, except by
the permission, express or implied, of those States. The special
privileges which they
56 Paul v. Virginia, 8 Wallace, 168, 177, 180.
(page 1217)
confer must, therefore, be enjoyed at home, unless the assent of other
States to their enjoyment therein be given."
Ward v. Maryland, (fn 57) was a case where a statute of Maryland
provided that all persons engaged in the business of trading resident
in that State should secure a license for which they were to pay a
certain sum not to be less than twelve dollars, and not to exceed one
hundred and fifty dollars per month, according to the business in which
they were engaged. T he same statute made it a criminal offense for any
nonresident person to engage in business in said State by selling
goods, wares or merchandise other than certain exempted articles
without first obtaining a license to do so, for which he was required
to pay the sum of three hundred dollars.
This was held a violation of the clause in question. Delivering
the opinion of the court, Mr. Justice Clifford said (p. 430) :
"Beyond doubt the words 'privileges and immunities' are words of
very comprehensive meaning, but it will be sufficient to say that the
clause plainly and unmistakeably secures and protects the right of a
citizen of one State to pass into any other State of the Union for the
purpose of engaging in lawful commerce, trade, or business without
molestation; to acquire personal property, to take and hold real
estate, to maintain actions in the courts of the State, and to be
exempt from any higher taxes or excises than are imposed by the State
upon its own citizens.
"Comprehensive as the power of the States is to lay and collect
taxes and excises, it is nevertheless clear, in the judgment of the
court, that the power can not be exercised to any extent in a manner
forbidden by the Constitution; and inasmuch as the Constitution
provides that the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States, it follows
that the defendant might lawfully sell, or offer or expose for sale,
within the district described in the indictment, any goods which the
permanent residents of the State might sell, or offer or expose for
sale in that dis
57 12 Wallace, 418.
(Page 1218)
trict, without being subjected to any higher tax or excise than that
exacted by law of such permanent residents."
In the Slaughter House Cases (fn 58) Mr. Justice Miller approved
the definition of privileges and immunities as given by Mr. Justice
Washington in Corfield v. Coryell, and also approved the decision in
Ward v. Maryland, and said:
"The description, when taken to include others not named, but which
are of the same general character, embraces nearly every civil right
for the establishment and protection of which organized government is
instituted."
Again, quoting from Paul v. Virginia, and citing the clause in
question, he said, (p. 77):
"The constitutional provision 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."
The clause established a general citizenship among the citizens of
the several States. — In Cole v. Cunningham, (fn 59) the court said:
"The intention of section 2 of article 4 was to confer on the
citizens of the several States a general citizenship, and to
communicate all the privileges and immunities which the citizens of
the same State would be entitled to under the like circumstances, and
this includes the right to institute actions."
In Blake v. McClung, (fn 60) Mr. Justice Harlan after having
reviewed the above cases, said:
"The foundation upon which these cases rests cannot, however,
stand, if it be adjudged to be in the power of one State, when
establishing regulations for the conduct
58 16 Wallace, 76.
59 133 U. S., 113, 114.
60 172 U. S., 252, 256.
============
(page 1219)
of private business of a particular kind, to give its own citizens
essential privileges connected with that business which it denies to
citizens of other States."
Again (p. 256):
"We must not be understood as saying that a citizen of one State is
entitled to enjoy in another State every privilege that may be given in
the latter to its own citizens. There are privileges that may be
accorded by a State to its own people in which citizens of other States
may not participate except in conformity to such reasonable regulations
as may be established by the State. For instance, a State cannot
forbid citizens of other States from suing in its courts, that right
being enjoyed by its own people; but it may require a nonresident,
although a citizen of another State, to give bond for costs, although
such bond be not required of a resident. Such a regulation of the
internal affairs of a State cannot reasonably be characterized as
hostile to the fundamental rights of citizens of other States. So, a
State may, by a rule uniform in its operation as to citizens of the
several States, require residence within its limits for a given time
before a citizen of another State who becomes a resident thereof shall
exercise the right of suffrage or become eligible to office. It has
never been supposed that regulations of that character materially
interfered with the enjoyment by citizens of each State of the
privileges and immunities secured by the Constitution to citizens of
the several States. The Constitution forbids only such legislation
affecting citizens of the respective States as will substantially or
practically put a citizen of one State in a condition of alienage when
he is within or when he removes to another State, or when asserting in
another State the rights that commonly appertain to those who are a
part of the political community known as the People of the United
States, by and for whom the Government of the Union was ordained and
established."
This clause does not include corporations. — The history of this
clause shows that the term "citizens" has always been used as
representing persons or inhabitants of a State, and that it does not
include corporations. While corporations may be citizens of a State,
for some purposes they are not citizens within the meaning of this
clause.
(page 1220)
When the language from which this provision was taken was used by the
Colonial Congress and afterwards by the Articles of Confederation, few
if any corporations had been formed within the territory now known as
the United States and it is therefore reasonable to assume they were
not within the contemplation of the framers of this language when it
was used in the Colonial Congress, in the Articles of Confederation, or
in the Constitution.
In Blake v. McClung, supra, it was held : "A corporation is to be
deemed, for some purposes, a citizen of a State under whose laws it was
organized, but it is equally well settled and we now hold, that a
corporation is not a citizen within the meaning of the constitutional
provision, that 'the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.' “ (fn 61)
A law of Ohio provided, "Whenever the death of a citizen of this
State has been or may be caused by a wrongful act, neglect or default
in another State, territory or foreign country, for which a right to
maintain an action and recover damages in respect thereof is given by
a statute of such State, territory or foreign country, such right of
action may be enforced in this State within the time prescribed for the
commencement of such action by the statute of such other State,
territory or foreign country."
A citizen of Pennsylvania in the employment of a railroad company,
having met his death in the State of Pennsylvania, an action was
brought in the State of Ohio for the recovery of damages. The Supreme
Court of that State held that under the statute in question the action
could not be maintained.
In reviewing this judgment the Supreme Court of the United States,
in Chambers v. Baltimore & Ohio Railroad, (fn 62) held: "The courts of
Ohio were open in such cases to plaintiffs who were citizens of other
States if the deceased was a citizen of Ohio; they were closed to
plain
61 In an opinion rendered by Mr. Justice Curtis, after his
retirement from the United States Supreme Court, he held this clause
did not include corporations, but that it did include a partnership
composed of citizens of different States. Life and Writings of B. R.
Curtis, vol. 1, 294, 295.
62 207 U. S. 142149.
(page 1221)
tiffswho were citizens of Ohio if the deceased was a citizen of another
State. So far as the parties to the litigation are concerned, a State
by its laws made no discrimination based on citizenship, and offered
precisely the same privileges to citizens of other States which it
allowed to its own. Consequently the statute did not violate the
privileges and immunities conferred by the Constitution of the United
States; and the right to bring suit and defend against a suit in a
State court is a privilege and immunity within the provisions of that
clause of the Federal Constitution."
Privileges and immunities conferred by the Federal Constitution are
not denied to owners of mines by the enactment of a statute by a State
which provides that only experienced mine managers and examiners shall
be employed and which requires the managers and examiners of mines to
provide safe places for the employees. (fn 63)
63 Wilmington Star Mining Co. v. Fulton, 205 U. S., 60, 73.
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