Page:Harvard Law Review Volume 9.djvu/349

A NEW NATION, 321 " In the early history of the organization of the government, its statesmen seem to have divided on the Hne which should separate the powers of the National Government from those of the State governments, and though this line has never been very well defined in public opinion such a division has continued from that day to this. " The adoption of the first eleven Amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be de- nied that such a jealousy continued to exist with many patriotic men until the breaking out of the late Civil War. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State and contiguous States for a determined resistance to the General Government. " Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National Government. " But however pervading this sentiment, and however it may have con- tributed to the adoption of the Amendments we have been considering, we do not see in those Amendments any purpose to destroy the main features or the general system. Under the pressure of all the excited feeling grow- ing 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 essen- tial to the perfect working of our 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." Thus grudgingly did the majority of the court in 1873 recognize a possible extension of the National powers. In order to minimize this extension, a majority of the court in this case construed the words " privileges and immunities " in the Fourteenth Amendment to include only such privileges and immu- nities as pertain to the citizens in their relations to the National Government ; e. g. such as the right of free access to the seaports and to the seat of government, the United States Courts, and the sub-treasuries, etc., as distinguished from the whole body of privi- leges and immunities which pertain to citizens in their domestic or every-day relations. But this view did not escape severe criticism. In the case of Butchers' Union Co. v. Crescent City Co.,^ decided ten years after 1 III U.S. 746.