required a consideration of those words as used in the original constitution in reference to citizens of the States; and it may be long before we are called upon to furnish a definition of the term as applying to citizens of the United States. 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 essential character, its constitution or its laws. “One of these is well described in the case of Crandall v. Nevada (6 Wallace, 36). It is said to be the right of the citizen of this great country, protected by implied guaranties of its Constitution, 'to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the sub-treasuries, land-offices, and courts of justice in the several States.' And, quoting from the language of Chief Justice Taney, in another case, it is said, 'that for all the great purposes for which the federal government was established we are one people, with one common country. We are all citizens of the United States; and it is as such citizens that their rights are supported in this court in Crandall v. Nevada. "Another privilege of a citizen of the United States is to demand the care and protection of the federal government over his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territories of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is, that as a citizen of the United States any person can, of his own volition, become a citizen of any State of the Union by acquiring a residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth amendments, and by the other clause of the fourteenth next to be considered. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, even if they exist, 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 United States; nor shall any 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 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 laws. The first of these paragraphs has been in the federal 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. The 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. It is sufficient to say here that under no construction of the third provision that we have ever seen, nor any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trades by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. "Nor shall 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. But if the States did not conform their laws to its requirements, then by the fifth section of the article 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 that 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 demand a decision at our hands. We find no such case in 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 never been very well defined in public opinion, such a division has continued from that day to this. "The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense, at that time, of danger 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 arguments, and added largely to the numbers 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 any purpose to disturb the main features of the general system. Under the 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 found that this court, so far as its functions required, has always held, with a steady and an even hand, the balance between State and federal 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." The other case to which reference has been made was that of Bradwell v. The State of Illinois. The plaintiff in error was a woman, and had applied to the State court for examination as to her qualifications for admission to the bar. The court had denied the application, on the ground that only men could be licensed to practice under the State law; and the case came before this court on the claim that the plaintiff had been denied a privilege secured to her by the Constitution of the United States. After a statement of the case, the court proceed to say: "Three propositions may be considered properly before this court. As regards the provision of the Constitution that citizens of each State shall be entitled to all the rights and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly her case, to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State where the laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislature. The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont. While she remained in Vermont that circumstance made her a citizen of that State, but she states at the same time that she is now a citizen of the United States, and that she is now and has been for many years past a resident of Chicago, in the State of Illinois. The fourteenth amendment declares that citizens of the United States are citizens of the State within which they reside; therefore plaintiff was at the time of her application a citizen of the United States and a citizen of the State of Illinois. We do not here mean to say that there may not be temporary residence in one State with intent to return to another, which will not create citizenship in the former; but the plaintiff states nothing to take her case out of the definition of citizenship of the State as defined by the first section of the fourteenth amendment. In regard to the fourteenth amendment, the counsel for the plaintiff in this case truly says that there are privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit a State from abridging them; and he proceeds to argue that admission to the bar of the State of a person who possesses the requisite learning and character is one of those which the State may not deny. In this latter proposition we are not able to concur with the counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States in that relation and character, and that it is these, and these alone, which a State is forbidden to abridge. But the right to admittance to practice law in the court of a State is not one of these. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend upon citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in State and federal courts, who were not citizens of the United States or of any State. But on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of a State, and as to the federal courts, it would relate to citizenship of the United States. The opinion delivered in the slaughter-house cases from Louisiana renders an elaborate argument in the present case unnecessary, for unless we are wholly and radically mistaken in the principles on which these cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the federal government, as its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment on these cases is founded. It is sufficient to say they are conclusive of the present case. The judgment of the State court is therefore affirmed." |