U. S. 26; Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578; and Smyth v. Ames, 169 U. S. 466, in which "it is now settled that corporations are persons within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law as well as the denial of the equal protection of the laws." Thus it was settled that corporations are "persons" but not citizens entitled to the "privileges or immunities of citizens of the United States." As the Santa Clara case involved a domestic corporation it was afterwards held in Philadelphia Fire Ass'n. v. New York, 119 U. S. 110, that a state could prescribe whatever condition it saw fit for permitting a foreign insurance company to transact business within its limits even to the extent of total exclusion although it could not exclude an individual. Such power of exclusion can not be applied, however, to corporations engaged in interstate commerce, or to agencies of the General Government. "The only limitation upon this power of the state to exclude a foreign corporation from doing business within its limits, or hiring officers for that purpose, or to exact conditions for allowing the corporation to do business or hire officers there, arises where the corporation is in the employ of the Federal Government, or where its business is strictly commerce, interstate or foreign. The control of such commerce, being in the Federal Government, is not to be restricted by state authority."

§ 122. Two bulwarks against the unlawful or unequal exercise of state power. Due consideration has now been given to the creative part of Section 1, which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." What remains is the protective part which declares that "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

Due Process-16

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." As explained heretofore the final clause guaranteeing the equal protection of the laws is an American invention that originated with the framers of the Fourteenth Amendment, and therefore stands entirely apart from the due process clause which came to us from the mother country. The equal protection clause will therefore be made the subject of Part III, where it will be treated entirely apart from the due process clause, which is the subject of Part II. The two clauses have, however, one motive in common that must never for a moment be lost sight of. Prior to the adoption of the Fourteenth Amendment the citizens of a state could rely for due process, or for protection against unequal laws upon the institutions of the state alone. When such protection was denied the Federal Government had no right whatever to interfere. Section 1 was intended to fill that vacuum by imposing two limitations universal in their application. In the words of the Court in the Civil Rights Cases, 109 U. S. 3. "It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amendment. It has a deeper and broader scope. It nullifies and makes all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the Amendment invests Congress with power to enforce it by appropriate legislation." To quote again the words of the Court in Hibben v. Smith, 191 U. S. 310: "The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state

legislation affecting life, liberty, and property as is offered by the Fifth Amendment against similar legislation by Congress."

§ 123. Due process clauses of Fifth and Fourteenth amendments should receive identical construction. There is no foundation for the idea that the ancient English formula of due process of law-thus expressed in the Fifth Amendment, "No person shall be deprived of life, liberty, or property, without due process of law;" and thus expressed in the Fourteenth Amendment, "nor shall any state deprive any person of life, liberty, or property, without due process of law-" should not receive an identical construction, regardless of the part of the constitution in which it is contained. The fact that the formula passed first into the Fifth Amendment, and thence into the Fourteenth only strengthens the idea that it should have the same meaning in both. It is not likely that any doubt would ever have been entertained as to a truth so obvious had it not have been for the grave mistake made in the definition first given of due process as contained in the Fifth Amendment in the case of Murray v. Hoboken Land and Improvement Co., 18 How. 272, heretofore examined at great length. The fact was then emphasized that the unsound definition thus given was formally repudiated, first in Hurtado v. California, 110 U. S. 516, and then in Twining v. New Jersey, 211 U. S. 78. In the case last cited the Court said: "Of course, the part of the Constitution then before the Court was the Fifth Amendment. If any different meaning of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision." And yet something like a doubt had been expressed in the earlier case of Carroll v. Greenwich Ins. Co., 199 U. S. 401, where it was said that "While we need not affirm that in no instance could a distinction be taken, ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a state

law in like terms was void under the Fourteenth. It is true that, by the provision in the body of the instrument, Congress has power to regulate commerce, and that the act of Congress referred to in the cases cited was passed in pursuance of that power. But even if the Fifth Amendment were read as contemporaneous with the original Constitution, the power given in the commerce clause would not be taken to override it so far as the Fifth Amendment protects fundamental personal rights. It is only on the ground that the right to combine at will is a fundamental personal right that it can be held to be protected by the Fourteenth Amendment, from any abridgement by the states." If that statement was really intended to express a doubt as to the question at issue, it was removed by the subsequent and emphatic declaration that "If any different meaning of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision."

§ 124. Only national citizenship as such protected against state action by the due process clause of Section 1. In the Slaughter House Cases, 16 Wall. 36, these declarations were made: "It is quite clear, then, that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual. . . . If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the state as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the Amendment. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the United States as such, and that they are left to the state governments for security and protection, and not by this article placed under the special care of the Federal Government, we may hold ourselves

excused from defining the privileges and immunities of citizens of the United States which no state can abridge, until some case involving these privileges may make it necessary to do so. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the Fourteenth Amendment under consideration." That case grew out of an attempt upon the part of the butchers of New Orleans to induce the Supreme Court of the United States to annul an act of the state legislature creating a certain monopoly, because, they said, that it abridged their privileges and immunities as citizens of the United States of property rights without due process of law, contrary to Section 1 of the Fourteenth Amendment. The Court denied relief upon the ground that whatever rights had been violated, if any, belonged to "citizens of the states as such," and not to citizens of the United States as such. In other words that the subject matter was one entirely under the control of the police power of the State of Louisiana whose Supreme Court had approved of the manner in which it had been exercised in that particular case.

In order to guarantee to the states as great a latitude as possible in the regulation of their systems of interior law, it was likewise held in Hurtado v. California, 110 U. S. 516, that they are under no obligation to perpetuate the grand jury as a means of presentment even in a case of murder; that a conviction for murder in the first degree and a sentence of death, where the prosecution was begun by information, is not illegal by reason of conflict with the due process of law clause of the Fourteenth Amendment. The Court said: "We are to construe this phrase (due process of law) in the Fourteenth Amendment by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes specific and express provision for per