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lomatic or official capacity, are citizens of the United States by virtue of the clause of the Fourteenth Amendment relating to citizenship.

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

The language of this clause is directed against the States. It does not apply to persons, either individually or collectively. The Supreme Court in Virginia v. Rives,50 stated the doctrine to be: "The provisions of the Fourteenth Amendment have reference to State action exclusively, and not to any action of a private individual.”

Mode of enforcing the Amendment.-The power of Congress to enforce the amendment is derived from the fifth clause thereof, but the method, or manner, by which it may be enforced is left entirely to Congress. "It may," said the court in Virginia v. Rives (p. 318), "enforce the prohibitions whenever they are disregarded by either the legislative, the executive or the judicial department of the State. The mode of enforcement is left to its discretion."

The prohibition against a State making or enforcing any law which shall abridge the privileges of citizens of the United States involves an examination of what are such privileges. This subject we have already discussed, and it is not considered necessary to repeat what has been said, more than to note what is not, or what is, a denial by the States of the privileges and immunities of citizens.

What action by a State is not a denial of the privileges and immunities of citizens under the Fourteenth Amendment. It is not a denial of such privileges and immunities for a State to regulate the qualifications of jurors, providing no discrimination is made against any class of citizens because of their race; In re Shibuya Ingiro;51 nor to prohibit marriage between whites and blacks; Ex parte Kinney;52 nor to provide for separate

50 100 U. S., 313, 318.

51 140 U. S., 291, 297, 298. 52 Fed. Cas. No. 7, 825.

61

schools for white and colored children;53 nor to require druggists to take out a license to sell liquors; nor to require railroad companies to fence their roads;55 nor to regulate the sale of patents;56 nor to fix the hours which shall constitute a day's labor in certain cases;57 nor to provide for a succession tax;58 nor to tax foreign fertilizers ;59 but this was held invalid as being a regulation of interstate commerce and as violating Art. I, Sec. 10; nor to regulate the employment of women in certain places;60 nor to provide separate coaches for white and colored persons; nor to close business places at certain hours; nor to prohibit games on Sunday;63 nor to forbid the setting aside of a verdict in certain cases;*4 nor the passage of a municipal, ordinance which regulates public speaking in city parks on the Sabbath;65 nor the passage of a law or an ordinance taxing gift enterprises and dealers in stamps ;66 nor to prohibit the practice of the professions;67 nor to require a person to register and declare his intention to become a citizen a prescribed period before voting; nor to authorize labor unions to organize for proper purposes;" ;69 nor to punish the sale of intoxicating liquors.70

What action by a State is a denial of the privileges and immunities of citizens under the Fourteenth Amendment. It is a denial of such privileges for a State to

53 Ward v. Flood, 48 Cal., 36, 49; State ex rel. v. McCann et al. 21 Ohio State, 198.

54 Gray v. Connecticut, 159 U. S., 74, 77.

55 Minneapolis et al. v. Emmons, 149 U. S., 364, 368.

56 Reeves v. Conning, 51 Fed. Rep., 775, 783.

57 Holden v. Hardy, 169 U. S., 366, 395.

58 Blackstone v. Miller, 188 U. S., 189, 207.

59 Am. Hort. Co. v. Agricultural Society N. C., 43 Fed. Rep., 609.

60 In re Considine, 83 Fed. Rep., 157.

61 Plessy v. Ferguson, 163 U. S., 537, 551.

62 State ex rel. v. Judge, etc., 39 La. Ann., 133.

63 State v. Hogreiver, 152 Ind., 652, 658.

64 Louisville & Nashville R'd. Co. v. Woodson, 134 U. S., 614, 623.

65 Davis v. Massachusetts, 167 U. S., 44, 47.

66 Humes v. City of Ft. Smith, 93 Fed. Rep., 857, 863.

67 In re Lockwood, 154 U. S., 116.

68 Pope v. Williams, 193 U. S., 621, 632.

69 United States v. Moore, 129 Fed. Rep., 631.

70 Bartemeyer v. Iowa, 18 Wallace, 129, 132.

prohibit the employment of a particular nationality;" or pass an act excluding persons from jury service because of their color or race;72 or prohibit the use of the national flag as an advertising medium until Congress legislates concerning it;73 or pass a statute providing for weighing coal at the mines under certain conditions.74

71 In re Tiburcio Parrott, 1st Fed. Rep., 481. 72 State v. Joseph, 45 La. Ann., 905.

73 Halter et al. v. Nebraska, 205 U. S., 34, 45. 74 State v. Peel Splint Coal Co., 36 W. Va., 802.

Concerning the subject of naturalization, Mr. Paterson in his plan of a Constitution provided, "That the rule for Naturalization ought to be the same in every State." Journal, 166.

Had this suggestion been adopted there could have been no such embarrassment or complexity as has grown out of this subject, for no State could have made requirements for naturalization different from those prescribed by the Constitution or Congress, and entire uniformity would prevail on the question throughout the United States, as it should.

CHAPTER LXI.

FOURTEENTH AMENDMENT, CONTINUED.

Nor shall any State deprive any person of life, liberty or property without due process of law.

"The Constitution," said Chief Justice Waite, in Munn v. Illinois, "contains no definition of the word 'deprive' as used in the Fourteenth Amendment. To determine its signification, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection." After tracing the history of the use of private property, the Chief Justice further said (p. 125): "Down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The Fourteenth Amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a deprivation."

The language of this clause is almost identical with. the corresponding clause in the Fifth Amendment, and it is not considered necessary to repeat the discussion of that clause. In Twining v. New Jersey, Mr. Justice Moody, in referring to the term, "due process of law," said it appeared in the Fifth Amendment, and, "If any different meaning of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision." In this opinion the learned Justice has given an historical discussion of "due process of law" which he concludes in this language.

"From the consideration of the meaning of the words

1 94 U. S., 113, 123-125.

2 211 U. S., 101.

in the light of their historical origin this court has drawn the following conclusions:

"First: What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.

"Second: It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practised by our ancestors is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straightjacket, only to be unloosed by constitutional amendments.

"Third: But, consistently with the requirements of due process, no change in ancient procedure can be made. which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.''

A statute which required corporations to produce their books for examination and also required the officers and employes of the corporation to testify in order to determine if the laws of the State had been complied with, is not a violation of the due process clause of the amendments. As there is little or no difference in the meaning of "due process of law" under the two amendments so there is little if any difference in the meaning of the word "liberty" in the amendments.

No term in the Constitution is more generally misunderstood than the term "liberty." In common understanding it is largely taken to mean one's right to do, to act, to speak, and to write just as one chooses irrespective of the effect such conduct may have on others. Such a conception of liberty is erroneous and harmful. There is no authority in the Constitution of 3 211 U. S., 100, 101.

4 Hammond Packing Co. v. Arkansas, 212 U. S., 323, 348.

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