control of Congress, whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as, in its judgment, it may think proper on all such subjects. And still further, such a construction, followed by the reversal of the judgment of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of the amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions, when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people, the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt." 1

The court then proceed to eumerate what are to be considered as the privileges and immunities of the United States which the States cannot abridge, and which are as follows:

"To come to the seat of government to assert any claim upon that government, to transact any business with it, to seek its protection, to share its offices, to engage in administering its functions.

Free access to its seaports, through which all operations of foreign commerce are conducted; to the sub-treasuries, land-offices, and courts of justice in the several States.

"To demand the care and protection of the Federal Government over life, liberty, and property, when on the high seas or within the jurisdiction of a foreign government.

"To peaceably assemble and petition for redress of grievances. "The writ of habeas corpus.

"To use the navigable waters of the United States, however they may penetrate the territory of the several States.

"To become a citizen of any one of the several States by a bonafide residence therein."

The judgment of the court was that these were the only privileges and immunities whose protection is provided for in this amendment, and that the ordinary and relatively more important privileges and immunities of citizenship "are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration."

The noble fundamental purpose of the court in checking the literal operation of the fourteenth amendment is to be found expressed in the closing paragraphs of the opinion.

“But however pervading this sentiment [the desire for a strong national government] and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States, with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property— was essential to the complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the nation.

"But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance

between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution or of any of its parts."

This instance furnishes one of the most striking proofs of the thesis, that political constitutions are a growth, evolved from all the forces of society, both material and spiritual.

We find first a novel principle of politics, i.e., that of a dual government, with separate autonomies, proposed and adopted by a nation, but its consequences yet unknown. There is a faint recognition

at once even in the written Constitution of one consequence, viz., a dual citizenship, but the relative strength and obligation of the two separate citizenships are not referred to. After remaining in doubt for many years, it is claimed by the State Rights' party-and the claim is indorsed and pronounced to be the supreme law of the land by the Supreme Court of the United States-that the citizenship of the United States is an incident of, and depends for existence upon, the citizenship of the States. This decision of the Supreme Court was practically overruled by the findings of the court of war, but in order to provide a technical repeal, an amendment to the Federal Constitution was adopted, declaring the federal citizenship to be the primary and allimportant thing, while the citizenship of the States was subordinate and incidental to it. While it is

very likely that the people did not wish to do more, except possibly in the South, than to establish the perpetual supremacy of the National Government and of national citizenship over State governments and State citizenship, the literal scope was such, that a strict enforcement of the amendment would have resulted in a complete reduction of the States to the condition of provinces, and a grant to the United States Government of a supervisory control over the smallest concerns of life.

Alarmed at the peril in which the people stood, and deeply impressed with the necessity of providing a remedy, the Supreme Court of the United States averted the evil consequences by keeping the operation of the amendment within the limits which they felt assured would have been imposed by the people, if their judgment had not been blinded with passion, and which in their cooler moments they would ratify. The so-called strict-constructionists may assert that this was an unwarranted exercise of the judicial power, and one that could become the effective instrument of tyranny; this may be so. But if by constitutional law we mean those rules which serve to define and limit the powers of government, we must pronounce the decision of the court in the Slaughter-house cases to be a successful modification of the rule found in the fourteenth amendment. That this reflected the prevalent, but perhaps then

unexpressed, sense of right, is proven by the fact that no attempt was made to overrule it by additional legislation; nor was there any outcry against it, after the people had recovered from their surprise at this bold limitation of their written commands. Although there have been some material but minor modifications of the rule in subsequent decisions, the ruling of the court in these cases is still a part of the constitutional law of the United States, serving as a bulwark to the States in their struggle for autonomy and self-government.