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but the XIV. Amendment
prohibits any State from abridging the privileges or
immunities of citizens of the United States, whether its own
citizens or any others. It not merely requires equality of
privileges, but it demands that the privileges and
immunities of all citizens shall be absolutely unabridged
and unimpaired.

In the same opinion, after enumerating some "privileges" of the
citizens, such as were pertinent to the case on trial, but
declining to enumerate all, the Court further says:

These privileges can not be invaded without sapping the
foundation of Republican government. A Republican government
is not merely a government of the people, but it is a free
government.... It was very ably contended on the part of the
defendants that the XIV. Amendment was intended only to
secure to all citizens equal capacities before the law. That
was at first our view of it. But it does not so read. The
language is, "No State shall abridge the privileges or
immunities of citizens of the United States." What are the
privileges and immunities of the citizens of the United
States? Are they capacities merely? Are they not also
rights?

The Court in this seems to intimate very strongly that the
amendment was intended to secure the natural rights of citizens,
as well as their equal capacities before the law.

In a case in the Supreme Court of Georgia, in 1869, the question
was before the court whether a negro was competent to hold office
in the State of Georgia. The case was ably argued on both sides,
Mr. Akerman, the present Attorney General of the United States,
being of counsel for the petitioner. Although the point was made
and argued fully, that the right to vote and hold office were
both included in the privileges and immunities of citizens, and
were thus guaranteed by the XIV. Amendment, yet that point was
not directly passed upon by the court, the court holding that
under the laws and constitution of Georgia, the negro citizen had
the right claimed. In delivering the opinion, Chief Justice Brown
said:

It is necessary to the decision of this case to inquire what
are the "privileges and immunities" of a citizen, which are
guaranteed by the XIV. Amendment to the Constitution of the
United States. Whatever they may be, they are protected
against all abridgment by legislation.... Whether the
"privileges and immunities" of the citizens embrace
political rights, including the right to hold office, I need
not now inquire. If they do, that right is guaranteed alike
by the Constitution of the United States and of Georgia, and
is beyond the control of the legislature.

In the opinion of Justice McKay, among other propositions, he
lays down the following:

2d. The rights of the people of this State, white and black,
are not granted to them by the constitution thereof; the
object and effect of that instrument is not to _give_, but
to restrain, deny, regulate and guarantee rights, and all
persons recognized by that constitution as citizens of the
State have _equal, legal and political rights_ except as
_otherwise expressly declared_.

3d. It is the settled and uniform sense of the word
"citizen," when used in reference to the citizens of the
separate States of the United States, and to their rights as
such citizens, that it describes a person entitled to every
right, _legal and political_, enjoyed by any person in that
State, unless there he some express exceptions made by
positive law covering the particular persons, whose rights
are in question.

In the course of the argument of this case, Mr. Akerman used the
following language upon the point, as to whether citizenship
carried with it the right to hold office:

It may be profitable to inquire how the term (citizen) has
been understood in Georgia.... It will be seen that men whom
Georgians have been accustomed to revere believed that
citizenship in Georgia carried with it the right to hold
office in the absence of positive restrictions.

The majority of the committee having started out with the
erroneous hypothesis that the term "privileges of citizens of the
United States," as used in the XIV. Amendment, means no more than
the term "privileges of citizens," as used in section 2 of
article 4, discuss the question thus:

The right of suffrage was not included in the privileges of
citizens as used in section 2, article 4, therefore that
right is not included in the privileges of citizens of the
United States, as used in the XIV. Amendment.

Their premise being erroneous their whole argument fails. But if
they were correct in their premise, we yet claim that their
second position is not sustained by the authorities, and is shown
to be fallacious by a consideration of the principles of free
government. We claim that from the very nature of our Government,
the right of suffrage is a fundamental right of citizenship, not
only included in the term "privileges of citizens of the United
States," as used in the XIV. Amendment, but also included in the
term as used in section 2, of article 4, and in this we claim we
are sustained both by the authorities and by reason. In Abbott
_vs._ Bayley, (6 Pick., 92,) the Supreme Court of Massachusetts
says:

"The privileges and immunities" secured to the people of
each State, in every other State, can be applied only to the
case of a removal from one State into another. By such
removal they become citizens of the adopted State without
naturalization, and have a right to sue and be sued as
citizens; and yet this privilege is qualified and not
absolute, for they can not enjoy the right of suffrage or
eligibility to office without such term of residence as
shall be prescribed by the constitution and laws of the
State into which they shall remove.

This case fully recognizes the right of suffrage as one of the
"privileges of the citizen," subject to the right of the State to
regulate as to the term of residence--the same principle was laid
down in the case of Corfield _vs._ Coryell in the Supreme Court
of the United States. Justice Washington, in delivering the
opinion of the court, used the following language:

"The privileges and immunities conceded by the Constitution
of the United States to citizens in the several States," are
to be confined to those which are in their nature
fundamental, and belong of right to the citizens of all free
governments. Such are the rights of protection of life and
liberty, and to acquire and enjoy property, and to pay no
higher impositions than other citizens, and to pass through
or reside in the State at pleasure, and to enjoy the
elective franchise as regulated and established by the laws
or constitution of the State in which it is to be exercised.

And this is cited approvingly by Chancellor Kent. (2 Kent, sec.
72).

This case is cited by the majority of the Committee, as
sustaining their view of the law, but we are unable so to
understand it. It is for them an exceedingly unfortunate
citation.

In that case the court enumerated some of the "privileges of
citizens," such as are "in their nature fundamental and belong of
right to the citizens of all free governments" (mark the
language), and among those rights, place the "right of the
elective franchise" in the same category with those great rights
of life, liberty, and property. And yet the Committee cite this
case to show that this right is not a fundamental right of the
citizen! But it is added by the Court that the right of the
elective franchise "is to be enjoyed as regulated and established
by the State in which it is to be exercised." These words are
supposed to qualify the right, or rather take it out of the list
of fundamental rights, where the Court had just placed it. The
Court is made to say by this attempt in the same sentence, "the
elective franchise is a fundamental right of the citizen, and it
is not a fundamental right." It is a "fundamental right,"
provided the State sees fit to grant the right. It is a
"fundamental right of the citizen," but it does not exist, unless
the laws of the State give it. A singular species of "fundamental
rights!" Is there not a clear distinction between the regulation
of a right and its destruction? The State may regulate the right,
but it may not destroy it.

What is the meaning of "regulate" and "establish?" Webster says:
Regulate--to put in good order. Establish--to make stable or
firm. This decision then is, that "the elective franchise is a
fundamental right of the citizen of all free governments, to be
enjoyed by the citizen, under such laws as the State may enact to
regulate the right and make it stable or firm." Chancellor Kent,
in the section referred to, in giving the substance of this
opinion, leaves out the word establish, regarding the word
regulate as sufficiently giving the meaning of the Court. This
case is, in our opinion, a very strong one against the theory of
the majority of the Committee.

The Committee cite the language of Mr. Webster, as counsel in
United States _vs._ Primrose.



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