fully, that against such statutes the due process clause would afford no protection because the principle of "the equal protection of the laws" had no place in it,—such a principle had never been recognized in the English constitutional system. It was also realized that Section 4 of Article IV of the Constitution which declares that "The United States shall guarantee to every State of this Union a republican form of government" was too vague and indefinite to give adequate protection. Prompted by such conditions American jurists made an invention, creating equality before the law and securing equal laws, a guarantee that never existed prior to the adoption of the Fourteenth Amendment. In that way the due process clause was supplemented by a new creation of a broader scope and deeper significance. Referring to provisions of the Constitution existing prior to the adoption of the new amendments, and particularly to the Fifth Amendment, Senator Howard, who introduced the Fourteenth Amendment in the Senate on behalf of the Reconstruction Committee, said: "Section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable everyone of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty." In explaining "In the provision for equal protection of the laws Senator Poland said of equality: "It is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstand

ing this, we know that state laws exist, and some of them of very recent enactment, in direct violation of these principles. It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the very foundation of all republican government if they be denied or violated by the States, and I can not doubt but that every senator will rejoice in aiding to remove all doubt upon this power of Congress.

The moment the amendment passed from the political arena to the Supreme Court the manifest historical fact was promptly recognized that the protection of the negro race was the primary and immediate cause of its adoption. In the Slaughter House Cases, 16 Wall. 36, Mr. Justice Miller said: "Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.' In the light of the history of these amendments, and the prevailing purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of the laws of the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden." Mr. Justice Field, in his dissenting opinion, said: "After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone the Senator (Trumbull) said: 'I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon liberty; and it is in fact a badge of servitude which by the Constitution is prohibited: Cong. Globe, 1st Sess., 39 Cong., part I, p. 474." Nevertheless the wise and patriotic jurists, who thus frankly stated the true facts as to the history of the amendment, at once resolved to sever it from its history, in order to give it a broad national significance according to its terms which, fortunately, did not refer to the exist

ence of race distinctions in any form whatsoever. In the weighty words of Mr. Justice Bradley: "It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed. The mischief to be remedied was not merely slavery and its incidents and consequences. The amendment was an attempt to give voice to the strong national yearning for that time and condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect in every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman without fear of violence or molestation." And in Yick Wo v. Hopkins, 118 U. S. 356, Mr. Justice Matthews said: "These provisions (of Section 1) are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." The ripe fruit of that wise rule of construction was embodied in the Railroad Tax Cases 8 Sawy. 238, by Mr. Justice Field who said: "Oppression of the person and spoliation of property by any state were thus forbidden, and equality before the law was secured to all. With the adoption of the amendment the power of the states to oppress any one under any pretense or in any form was forever ended; and thenceforth all persons within their jurisdiction could claim equal protection under the laws. No state-such is the sovereign command of the whole people of the United States-no state shall touch the life, the liberty, or the property of any person, however humble his lot or exalted his station, without due process of law; and no state, even with due process of law, shall deny to any one within its jurisdiction the equal protection of the laws."

§ 20. The rule of inclusion and exclusion. Despite the fact that the meaning of the two formulas contained in Section 1 of the amendment, as limitations upon the powers of the states, has been definitely ascertained, it is gravely difficult in a particular case to determine when the act of a state, executive, legislative, or judicial, takes away from a citizen of the United States, as such, a right so fundamental that its loss may be said to "deprive any person of life, liberty, or property, without due process of law," or "deny to any person within its jurisdiction the equal protection of the laws." Foreseeing that difficulty at the outset the Supreme Court determined to meet it in each case by a discreet and cautious working rule best described in its own language: "But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require with the reasoning on which such decisions may be founded." Davidson v. New Orleans, 96 U. S. 97. In a word, the rule is that when a citizen of the United States, as such, complains. that a fundamental right guaranteed by the clauses in question has been taken away, the court will ascertain in that particular case whether the right is an incident of national citizenship, and as such within its protection, or an incident of state citizenship, whose protection belongs to the state alone. If it appears that the right claimed is an incident of national citizenship, then the ultimate question arising is, whether or no that right as protected by the amendment has been actually taken away by state action, executive, legislative or judicial. The natural and inevitable tendency always impelling the court to narrow rather than extend its jurisdiction arises out of the principle of self-preservation. After stating that so long as the due process of law clause was only a part of the Fifth

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Amendment it "has rarely been invoked in the judicial forum, or the more enlarged theatre of public discussion," attention was called to the fact, as early as 1878, that "while it has been a part of the Constitution, as a restraint upon the power of the states, only a few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their citizens of life, liberty, or property, without due process of law." Davidson v. New Orleans, 96 U. S. 97. For the last thirty-six years the court has been applying its rule of inclusion and exclusion to the ever rising tide of cases before it, and the result is a body of unique and profoundly important judicial literature which the author is now striving to condense and arrange in a more complete and systematic form than it has ever assumed before. This body of literature is unique because it embodies the result of an effort upon the part of the only court in the world's history ever endowed with such a power to annul national and state laws whenever they attempt to violate the rights of the national citizen as guaranteed by the national constitution. When the framers of the French Constitution of 1795 defined legal equality by declaring: "L'égalité consiste en ce que la loi est la même pour tous, soit qu'elle protège, soit qu'elle punisse," they did not conceive of a supreme tribunal armed with the power to enforce such equality in every case in which it might be denied. The judicial power as the ultimate supreme power in the state is purely an American creation. Here it is supposed to express the last word of the people when their political agents have transcended the bounds set by their written constitutions. Thus we have realized, in our own way, the dream of Savigny, who gave expression to a path-breaking idea, unfamiliar before his time, when in his Beruf unserer Zeit, which appeared in 1814, he said that law is a part and parcel of the life of a nation, "not a garment merely which has been made to please the fancy and can be taken off at pleasure and