Two Citizens Under The Constitution (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/ <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>
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."
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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.
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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.
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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.
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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.
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“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.
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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
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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.
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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. (To see online click the following link and then scroll to page 1205 http://books.google.com/books?hl=en&id=7GlCAAAAIAAJ&dq=%22Constitution +of+the+United+States%22,+David+Kemper+Watson&printsec=frontcover&sourc e=web&ots=KpkmjQr9AC&sig=w88OD6KZMFXKfOMjjCL1q0KiNDo&sa=X&oi=book_resu lt&resnum=1&ct=result )