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Page:Harvard Law Review Volume 1.djvu/159

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Indian “should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which belong to an emigrant from any other foreign people.” If this was true in 1856, it is no less true since the fourteenth amendment; and it is as true of any Indian who is a transient visitor among the whites as it is of a permanent resident.

But it is said that the statute which gives an action in this case is simply a punitory measure against the town, and that the excepted persons are not thereby deprived of the equal protection of the law. If this were a true description of the character and purpose of the statute, it is by no means certain that it would support the defendant’s conclusion. But it seems not to be the just view of the statute. There was no private action at common law in such cases, because the town was considered to be acting as an agency of the public, and its duty was considered to be owing to the public, and not to any individual; and the remedy was in the name of the public by indictment, a proceeding in this sort of case which was criminal only in form. Mower v. Leicester, 9 Mass. 247; Hill v. Boston, 122 Mass. 344; Gibson v. Preston, L. R. 5 Q. B., at p. 222; Queen v. Stephens, L. R. 1 Q. B. 702. When a private action of tort is given against the town, it is given for the benefit of the injured person, that he may recover compensation for his injury. And if this benefit is conferred upon one class of persons and denied to another class, the law establishes inequality of benefit or privilege. If in giving a new action, such a discrimination may be made, it would seem, on the same principle, that an existing right might be taken away from some and not from others. And if one action or remedy may be taken away from a given class of persons, five or ten actions, or all of them, may be taken away. But, as it has been said by the Supreme Court of the United States, the granting of “the equal protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U. S., at p. 369. Accordingly, in Pearson v. Portland, 69 Maine, 278, it was held that a statute similar to the one now in question which took away the action from citizens of other States or countries that did not give a like remedy in like cases to citizens of Maine was unconstitutional, as denying to such foreigners the equal protection of the laws.

It is urged that this legislation is a legitimate exercise of the police power; but by whatever name it be called, it seems to be, in truth, an attempt by one State to secure a certain benefit for its citizens which is now denied to them in other States and countries, by means of a denial to the citizens of these other States or countries of the equal benefit and protection of the laws within its own borders. This particular mode of accomplishing the object, whether it be called an exercise of the police power or anything else, is in terms forbidden by the Constitution. And it may be added that, as regards Indians in the cause at bar, it is a total and absolute denial of the benefit of this action against the towns without any qualification whatever,— a denial to all of them, as a class, of a privilege which is totally and absolutely denied to no one else. But the fourteenth amendment secures full equality of protection to all persons. In commenting on the two clauses of the fourteenth amendment relating to “persons,” it was said by the Supreme Court (Strong, J.), in Strauder v. West Virginia, 100 U. S. 303, 307, in language as applicable to all other