It can not be denied, that

of its male citizens fr

; from which it follow immunities" which i by any State. The right of f ovision of the second set t State shall deny th right to se

The basis of representation the 1: ber of such male citizens shall be r

In the first place, it is to be o State, which is the whole nur,ver infants-is only to be red iced w. mue inhabitants of such State."

..ts under the age of twenty-one s of representation in such Stat pation of its male inhabitants, etc. not reduced in the proportion we bears to the number of persons-man in the proportion which the number of the whole number of male citizens twenty

The right of citizens of the United States to vote slow t on account of race, color, or previous condition of servitu le

This amendment was wholly unnecessary upon *} Amendment had established or recognized the r'' It recognizes the right of a State to exclude a," restrains that power so far as to provide that on on account of race, color, or previous coacht case, the power of exclusion recognized by touched by the XV. It is also worthy of not. VOL. II.-10.

Senator Carpenter before the Supreme Court.

617

All persons born and naturalized in the United States, etc., are citizens of the United States, and of the State wherein they reside.

Of course, women, as well as men, are included in this provision, and recognized as citizens. This Amendment further declares:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

If the privileges and immunities of a citizen can not be abridged, then, of course, the privileges and immunities of all citizens must be the same. The second section of this Amendment provides that

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians, not taxed. But when the right to vote at any election, etc., is denied to any of the male inhabitants, being twenty-one years of age, etc., the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

It can not be denied, that the right or power of a State to exclude a portion of its male citizens from the right to vote, is recognized by this second section; from which it follows, that the right to vote is not one of the "privileges or immunities" which the first section declares shall not be abridged by any State. The right of female suffrage is also inferentially denied by that provision of the second section, above quoted, which provides that when a State shall deny the right to vote to any male citizen,

The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens in such State. In the first place, it is to be observed that the basis of representation in a State, which is the whole number of persons-male and female, adults and infants-is only to be reduced when the State shall exclude a portion "of the male inhabitants of such State." The exclusion of female inhabitants, and infants under the age of twenty-one years, does not effect a reduction of the basis of representation in such State. And, again, when a State does exclude a portion of its male inhabitants, etc., the basis of representation in such State is not reduced in the proportion which the number of such excluded males bears to the number of persons-male and female-in such State; but only In the proportion which the number of such (excluded) male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This provision assumes that females are no part of the voting population of a State. The XV. Amendment is equally decisive. It recognizes the right —that is, power-of any State to exclude a portion of its citizens from the right to vote, and only narrows this right in favor of a particular class. Its language is:

The right of citizens of the United States to vote shall not be denied or abridged, etc., on account of race, color, or previous condition of servitude.

This amendment was wholly unnecessary upon the theory that the XIV. Amendment had established or recognized the right of every citizen to vote. It recognizes the right of a State to exclude a portion of its citizens, and only restrains that power so far as to provide that citizens shall not be excluded on account of race, color, or previous condition of servitude. In every other case, the power of exclusion recognized by the XIV. Amendment is untouched by the XV. It is also worthy of notice that, throughout the XIV. VOL. II.-40.

and XV. Amendments, voting is not treated as, or denominated a privilege, and evidently was not intended to be, nor regarded as included in the “privileges or immunities" of a citizen, which no State can abridge for any cause whatever. I have taken this pains to distinguish between the "privileges and immunities" of a citizen, and the "right" of a citizen to vote, not because I feared that this court would deny one, even if the other would follow, but to quiet the fears of the timid and conservative.

I come now to the narrower and precise question before the court: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the XIV. Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court? It was provided by the original Constitution:

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

Under this provision each State could determine for itself what the privileges and immunities of its citizens should be. A citizen emigrating from one State to another carried with him, not the privileges and immunities he enjoyed in his native State, but was entitled, in the State of his adoption, to such privileges and immunities as were enjoyed by the class of citizens to which he belonged by the laws of such adopted State. A white citizen of one State, where no property qualification for voting was required, emigrating to a State which required such qualification, must conform to it before he could claim the right to vote. A colored citizen, authorized to hold property in Massachusetts, emigrating to South Carolina, where all colored persons were excluded from such right, derived no aid, in this respect, from the Constitution of the United States, but was compelled to submit to all the incapacities laid by the laws of that State upon free persons of color born and residing therein. A married woman, a citizen of the State of Wisconsin, where by law she was capable of holding separate estate, and making contracts concerning the same, emigrating to a State where the common law in this regard prevailed, could not buy and sell property in her own name, or contract in reference thereto.

But the XIV. Amendment executes itself in every State of the Union. Whatever are the privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries them with him into any other State of the Union. It utters the will of the United States in every State, and silences every State constitution, usage, or law which conflicts with it. If to be admitted to the bar, on attaining the age and learning required by law, be one of the privileges of a white citizen in the State of New York, it is equally the privilege of a colored citizen in that State; and if in that State, then in any State. If no State may "make or enforce any law" to abridge the privileges of a citizen, it must follow that the privileges of all citizens are the same. We have already seen that the right to vote is not one of those privileges which are declared to be common to all citizens, and which no State may abridge; but that it is a political right, which any State may deny to a citizen, except on account of race, color, or previous condition of servitude. It therefore only remains to determine whether admission to the bar belongs to that class of privileges which a State may not abridge, or that

Privileges and Immunities versus Rights.

619 class of political rights as to which a State may discriminate between its citizens.

In discussing this subject, we are compelled to use the words "privileges and immunities" and the word "rights" in the precise sense in which they are employed in the Constitution. In popular language, and even in the general treatises of law writers, the words "rights" and "privileges" are used synonymously. Those privileges which are secured to a man by the law are his rights; and the great charter of England declares that the ancient privileges enjoyed by Englishmen, are the undoubted rights of Englishmen. But, as we have seen, the XIV. and XV. Amendments distinguish between privileges and rights; and it must be confessed that it is paradoxical to say, as the XIV. Amendment clearly does, that the "privileges" of a citizen shall not be abridged, while his "right" to vote may be. But a judicial construction of the Constitution is wholly different from a mere exercise in philology. The question is not whether certain words were aptly employed—but the context must be searched to ascertain the sense in which such words were used.

It is evident that there are certain "privileges and immunities" which belong to a citizen of the United States as such; otherwise it would be nonsense for the XIV. Amendment to prohibit a State from abridging them; and it is equally evident from the XIV. Amendment that the right to vote is not one of those privileges. And the question recurs whether admission to the bar, the proper qualification being possessed, is one of the privileges which a State may not deny. In Cummings vs. Missouri, 4 Wall., 321, this court say: In France, deprivation or suspension of civil rights, or some of them-and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning-are punishments prescribed by her code. The theory upon which our political institutions rest is, that all men have certain inalienable rights-that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or extension of any of these rights for past conduct is punishment, and can be in no otherwise defined.

No broader or better enumeration of the privileges which pertain to American citizenship could be given. "Life, liberty, and the pursuit of happiness; and, in the pursuit of happiness, all avocations, all honors, all positions, are alike open to every one; and in the protection of these rights all are equal before the law." In ex parte Garland (4 Wall., 378) this court say:

The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. . . . . The order of admission is the judgment of the court, that the partics possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been