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as restrictions upon the powers of the local commonwealths, but only upon the various departments which administer the public affairs of the entire nation, and which were created by the organic law. So far, then, as the states do not infringe upon express provisions in the Constitution specially addressed to them, or upon those implied in the whole scope of that instrument, and in the grants of power to the general government, they may regulate their own internal economy as seems best to themselves. The United States are forbidden either by the legislative, executive, or judicial departments, to deprive a person of any of the immunities and privileges guarded by the Bill of Rights. The states may, in respect to their own inhabitants, if consistent with their own organic laws, infringe upon them all.
§ 233. This construction of the Constitution is supported by the judgments both of the national and the local courts. In the case of Barron v. The Mayor of Baltimore 1 the Supreme Court of the United States gave an authoritative interpretation to these clauses. The facts, it is true, applied only to one provision, — that which forbids the taking of private property for public use without just compensation. The plaintiff claimed that the city of Baltimore had taken his property for public use without just compensation, and that a statute of the Maryland legislature authorizing the act was void as being opposed to the negative clause of the United States Constitution already quoted. The reasoning of the court is equally applicable to all these general provisions of the Bill of Rights. C. J. Marshall says: “ The plaintiff contends that the case comes within that clause of the fifth amendment to the Constitution, which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state as well as that of the United States. The question thus pre. sented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own
1 7 Peters' R. 243.
government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers to be conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons, and for different purposes. If these propositions are correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions upon their respective governments, as their wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest."
$ 234. The interpretation thus formally given by the Supreme Court of the United States is authoritative and final, and it has been repeatedly confirmed by the judgments of state tribunals. In New York it was decided by the Supreme Court in the case of Murphy v. The People, that a statute of that state, providing for the summary trial and conviction of a person charged with petty larceny, not being op: posed to the local constitution, was not controlled by any of the amendments to the United States Constitution. In the case of Barker v. The People, the subject was considered and decided by the Court of Errors — then the tribunal of last resort — of the same state. Barker had been indicted and convicted for the offence of sending a challenge to fight a duel. The punishment awarded by the statute was, that the party so convicted “shall be incapable of holding, or 12 Cowen’s R. 815.
2 3 Cowen's R. 686.
being elected to, any post of profit, trust, or emolument, civil or military, under this state.” The defendant insisted that this statute was in derogation of that clause in the amendments to the United States Constitution, which forbids the infliction of cruel and unusual punishments. The court arrived at the conclusion that the provision in question only regulates the legislative and judicial action of the United States, and has no application to the punishment of crimes against a state. The same doctrine has been held by the Supreme Court of Pennsylvania in James v. The Commonwealth. It has also been decided in New York and in Connecticut, that the provisions of the amendments, declaring that no person shall be deprived of his property without due process of law, and that in suits at common law, where the amount in controversy exceed twenty dollars, the trial by jury shall be preserved, are restrictive only upon the general government and its officers.
§ 235. The rule of interpretation is thus firmly established, but the rule itself is certainly an unfortunate one. The United States, as the sovereign, as supreme over all state governments, should be able to afford complete protection to its citizens. It is not enough that this protection should be estended to citizens while abroad; it should be as powerful at home. The citizen should be guarded in the enjoyment of his civil rights of life, liberty, limb, and property, against the unequal and oppressive legislation of the states. The rule under consideration, taken in connection with another principle which I will now merely mention, effectually prevents the national courts from maintaining the rights of citizens against the encroachments of the states, so far as those rights are affected by positive restrictions. This second principle was briefly alluded to in § 144. In respect to cases arising under the Constitution and laws of the United States, the jurisdiction of the national tribunals is final and conclusive, and to their judgments the state legislatures and courts must yield. But in respect to cases arising solely under state laws, where the national Constitution is not brought in question, the jurisdiction of the United States courts is not final and conclusive,
1 12 S. & R. 220.
and their decisions are based upon, and follow, the expositions of those laws which have been made by the state judiciary.
§ 236. To illustrate : in a case arising under the clauses of the Constitution forbidding a state to pass bills of attainder, ex post facto laws, or laws impairing the obligation of a contract, the Supreme Court would finally and absolutely decide the question whether a given state statute was in fact opposed to these clauses, and would not be bound at all by the opinions and judgments of the state courts upon the same matter in controversy. The national government may thus give its citizens complete protection against the state legislation which is inhibited by these salutary provisions. But in a case arising under the clause in a state constitution which forbids a person to be deprived of life, liberty, or property without due process of law, the Supreme Court of the United States cannot pass directly and independently upon the question whether a given state statute, or a given act done under the authority of the state, is opposed to this clause, but must defer to, and be controlled by, the judgments of the courts of the same cominonwealth which have settled the construction given to their own organic law. Here is plainly a vast field open for injustice and oppression by individual states, which the nation has now no means of preventing. Thus, let it be supposed that the constitution of a certain state contains clauses securing to the people the right of keeping and bearing arms; and declaring that no person shall be deprived of life, liberty, and property without due process of law. Let it also be supposed that the legislature of the same state passes statutes by which certain classes of the inhabitants — say negroes — are required to surrender their arms, and are forbidden to keep and bear them under certain penalties; and also statutes by which the same class of persons are required to be hired out and to labor in a certain prescribed manner, and in case of failure to comply with these regulations, these persons are declared to be vagrants, and liable to be seized, and by a summary proceeding, bound out to service for a term of years. An individual of the class mentioned in these statutes incurs some or all of their penalties; is proceeded against. He insists that the statutes in question are opposed to the Bill of Rights in the state constitution; the local courts settle the law against him, and hold that all this legislation is in conformity with the organic law of the commonwealth. Now, this person could obtain no redress from the national courts under the amendments to the United States Constitution which we are considering. Whatever might be the opinion of the judges, they must administer the local law as it has been administered by the local judiciary.
§ 237. This is a result which is dismaying, and a remedy is needed. Such a remedy is easy, and the question of its adoption is now pending before the people. The first section of the proposed fourteenth amendment to the United States Constitution is in these words: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” I consider this amendment to be by far more important than any which has been adopted since the organization of the government, except alone the one abolishing the institution of slavery. It would give the nation complete power to protect its citizens against local injustice and oppression ; a power which it does not now adequately possess, but which, beyond all doubt, should be conferred upon it. Nor would this amendment interfere with any of the rights, privileges, and functions which properly belong to the individual states. When the Constitution has from the beginning contained prohibitions upon the power of the states to pass bills of attainder, ex post facto laws, or laws impairing the obligation of contracts, it is strange that a provision forbidding acts which deprive a person of life, liberty, or property, without due process of law, was not also inserted at the outset; it is more than strange that any objection can be urged against the proposition to now remedy the defect.
$ 238. The constitutional guaranties contained in the first eight amendments, being thus solely intended as barriers against any encroachments of the general government upon the liberties of the citizen, are binding with equal force upon