596
THE GREEN BAG
property in all cases except labor con troversies, it would be clearly the exercise of class legislation, partial in its character. It would deny to the plaintiff whose prop erty was threatend by a labor conspiracy the protection of the law guaranteed by the Constitution, while giving that pro tection to every other litigant in connection with every other controversy. The state courts, as well as the courts of the United States, when confronted with such an attempt to deprive the citizen of the equal protection of the law, would wipe such a law from the statute book as quickly as hoar frost vanishes before the morning sun. The fifth amendment to the Constitu tion of the United States guarantees to every person that he shall not be deprived of life, liberty, or property without the due process of law, and the fourteenth amend ment contains precisely the same language applied to the state, with the additional clause declaring that the state shall not "deny to any person with its jurisdiction the equal protection of the laws." It is a serious and interesting question as to whether, in the absence of such a specific provision in the fifth amendment, there is a guaranty of the equal protection of the law, so far as Congressional legislation is concerned, by virtue of the provisions of the fifth amendment to the Constitution guaranteeing due process of law. I think I can establish the proposition that the Congress of the United States, under the fifth amendment, is bound by the funda mental principles of eternal right and has no power to deprive any person of the equal protection of the law. In the case of Budd v. The State (3 Humphries, 483) the question was whether a statute of the state of Tennessee could be sustained that made it a felony on the part of the officers and agents of a certain bank to do certain acts that were not made felonies when done by officers of other banks in Tennes ee; that made one law for the officers of the Union Bank of the state
of Tenres ee and another for the officers and agents of other banking corporations in the state. It was contended by the counsel for the respondent that the statute in question was in contravention of the constitution of Tenrersee, which provides that no man shall be disreized or imprisoned, etc., but "by the judgment of his peers or the law of the land," practically a quotation from Magna Charta, and made a part of the constitution of Tennessee. Upon this question the court said, the opinion being drawn by Judge Reese, whom I understand to have been a man of high character and great legal ability: "If the felony affected only all the clerks of all the merchants of Nashville, or of Davidson county, or of middle Tennessee, would that in either case be 'the law of the land '? It is believed none would so contend. And why not? Simply because the law of the land is a rule alike embracing and equally affecting all persons in getieral, or all persons who exist or may come into the like state and circumstances. A partial law, on the contrary, embraces only a portion of those persons who exist in the same state and are surrounded by like cir cumstances. If peculiar felonies affecting all the people, or certain of the public officers of East Tennessee only, were held to be 'the law of the land1 it would be difficult to say for what object that clause was inserted in the Bill of Rights. One of its objects has been stated in various ad judications in our state to have been to protect the feeble and the obnoxious from the injury and the injustice of the strong and the powerful and, in general, to protect minori ties from the wrongful action of majorities. This being its scope and purpose, would it not interdict the legislature from passing such an act as is last above referred to, for instance, creating certain acts of nonfeasance or malfeasance of the register of the western district, although a public officer, a felony, leaving the register of
