"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 . . . 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.""

There is one further fact which should be noted in regard to the several State Constitutions, all of which were framed and in force prior to 1781, namely, that in many of them, notably those of Pennsylvania, Delaware, Maryland, and North Carolina, there was a provision declaring that the people of the State ought to have the sole right of regulating the internal government and police thereof.

From 1781 until 1787, when our present Constitution was framed, the evils which existed were many and serious; so much so that the country was drifting toward, if not on the verge of anarchy.2

Among these evils was the inability of the Congress to raise money to pay its debts or meet its expenses. Another was its powerlessness to provide the country with sound money, and still another its inability to secure from the States the performance of the several Treaties which had been made with England and European powers. The currency of the country was entirely disorganized. Still other evils were caused by the jealousies existing among the several States, leading to commercial quarrels and almost to actual warfare between different States. But the effect of all this was to increase rather than diminish the feeling of State independence. The character of the Federal Government, moreover, thus far had not been such as to invite any one to rely upon it for protection of any class of rights whatsoever.

Congress having under the Articles of Confederation no power to act directly upon the people, but only upon the States, had practically no power at all, and after the close of the war became more and more incapable of performing any valuable service to the country.

Such then, in brief, was the condition of things when the fifty

1 Bryce, The American Commonwealth, Vol. I. p. 662.

2 See Fiske, Critical Period of American History, Chapter IV.

five delegates assembled, in the summer of 1787, to revise the Articles of Confederation. But it was already apparent to the leading delegates that something besides patching was necessary, and the Convention speedily set about the work of preparing a new framework for a new National Government.

Even a cursory study of the debates in the Convention shows with what reluctance the power of acting in any way directly upon the individual citizens was granted to the Federal Government.

There was an ever present fear that the Federal Government even its friends hesitated to call it National - would swallow up, or at least overshadow the States, and extinguish local independence. The feeling of many-I may say of very manyof the delegates was the same as that of one of our present historians:

"If the day should ever arrive (which God forbid !) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the States shall have been so far lost as that of the Departments of France, or even so far as that of the Counties of England, on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever." 1

The work of the Convention was in a considerable degree a matter of compromise, or rather of a series of compromises. The power to regulate foreign and interstate commerce was secured for the National Government only by conceding to the Slave States a continuance of the slave trade for twenty years.2

Hamilton's suggestion that the National Government be given powers practically unlimited was received with extreme disapproval. The New Jersey plan, providing for a Confederacy, left the States with no essential curtailment of their sovereign power. The Virginia Plan, while providing for a Union under a National Government, sought to clothe such government with power only in matters relating to the national peace and harmony.3

The Scheme of Government which was finally framed and adopted was briefly as follows:

1 John Fiske, The Critical Period of American History, p. 238.

2 Curtis, Constitutional History of the United States (1889), Vol. I. p. 305.

3 See Report of the Committee of the Whole, reported to the Convention, June 13, 1787, given in Curtis, Constitutional Hist. of U. S., Vol. I. pp. 365, 366.

I. The National Government alone was charged with the duty and with the power of regulating what may be called matters of national concern. The chief of these were treaties and the foreign relations of the country, the army and navy, foreign and interstate commerce, the currency, and the post office. To insure the performance of these duties, power to raise money was granted, and three departments of the National Government were provided for, viz. the Legislative, the Executive, and the Judicial.

II. The States were left with all the other ordinary powers of internal government, such as legislation on private law, civil and criminal, the maintenance of law and order, the creation of local institutions, education, and the relief of the poor.

III. In a few matters a concurrent power was given to the National Government and the States; e. g. in controversies between citizens of different States, the parties, if so minded, could have their rights determined in the State Courts, or, at the option of any party who might fear unfair discrimination, cases could be taken into the Courts of the United States.

IV. Certain prohibitions were provided applicable to both the National and the State Governments; e. g. that no tax should be laid on exports from any State.

V. Certain prohibitions were imposed on the National Government alone. These were contained in Article I. § 9, and in the first ten Amendments. Among these were provisions intended to secure the life, liberty, and property of individuals from being unjustly assailed by the National Government.

VI. Certain prohibitions were imposed on the States alone. These were contained in Article I. § 10. They were of two kinds : First, provisions intended to keep the States from attempting to exercise any of the powers intrusted solely to the National Government. Second, the following provisions intended to protect individuals against oppressive State legislation, viz.: "No State shall ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

VII. Provision was made for securing the rights of non-residents, that is, of citizens of one State when in another State.

The language used on this point was largely taken from Article IV. of the Articles of Confederation.1

The first paragraph of § 2 is as follows: "The citizen of each

1 See Article IV. of Constitution, §§ 1 and 2.

State shall be entitled to all privileges and immunities of citizens in the several States."

The important thing to be noticed in all the foregoing summary is that except in the three specified cases of bills of attainder, ex post facto criminal laws, and laws impairing the obligation of contracts - no attempt was made to protect the individual citizens from oppressive treatment by their own States. The States could oppress their own citizens without limit in all matters of domestic concern. They could abolish trial by jury in criminal or civil cases. They could suppress freedom of speaking and establish a censorship of the press. It was not a part of the scheme of government embodied in the Constitution that the National Government should be authorized to interfere between any State and its own citizens.

"To have authorized such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view, as the wisest policy, local government for local affairs, general government for general affairs only." 1

As there was no language in the Constitution which could afford any ground for supposing that the United States Supreme Court had any power of protecting a citizen in his rights, privileges, and immunities as against his own State and its tribunals, it is not surprising that few cases are to be found in which protection for such rights has been sought in this quarter. This cannot be attributed to any unwillingness of the citizens to look to the National Power for such help as it could afford. The one clause in the Constitution extending the Federal protection to individual civil rights, I refer to Article I. § 10, paragraph 1, "No State shall... pass any . . . law impairing the obligation of contracts," has given the United States Supreme Court more work to do and more cases to deal with than any other clause in the entire Constitution.3

Having shown as far as we may in the space allowed what the frame of the National Government was prior to the adoption of

1 Judge Cooley, cited in Bryce, The American Commonwealth, Vol. I. p. 331. See HARVARD LAW REVIEW, Vol. I. pp. 322-326, Article by Wm. H. Dunbar, entitled "The Anarchists' Case."

2 See Scott v. Sanford, 19 Howard, 395, 452 (1856).

8 See Baker, Annotated Constitution of the United States (1891), pp. 68-101, for a partial list of such cases.

the Thirteenth, Fourteenth, and Fifteenth Amendments, we come now in conclusion to a consideration of the magnitude and extent of the changes effected by those Amendments. "The revolution. worked by these Amendments is a momentous one, and must be judged by consequences which time alone can disclose." 1

It is to be noticed in the first place that the language of the Fourteenth Amendment is sufficiently broad and comprehensive to embrace all the rights of the individual citizens, and place them under the shelter and protection of the National power. The words "privileges and immunities," and "life, liberty, and property," had been long in use when the Fourteenth Amendment was framed. The words "liberties and immunities," as we have seen, were used in the Charter of the Province of Massachusetts Bay. The same words, and the words "life, liberty, and property," were used in the Declaration of Rights adopted by the Continental Congress, October 10, 1774.2 The words "life, liberty, or property" were used in the Fifth Amendment, framed in 1789, and the words "privileges and immunities" were used in the Constitution itself, Article IV. § 2. The words "privileges and immunities" were defined by Mr. Justice Washington, sitting in the Circuit Court of the United States for Pennsylvania in 1825, in the case of Corfield v. Coryell, 4 Wash. C. C. 371. 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 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 main

1 Hare's American Constitutional Law, Vol. II. p. 748 (1889).

2 All these words were used in many of the State Constitutions. See Cooley's Constitutional Limitations, 6th ed. (1890), pp. 429, 430.