In Ex parte Spies7 the point was urged upon the court that the privileges and immunities secured against federal infringement by the first eight Amendments to the federal Constitution, were, because so secured, federal privileges and immunities, which, according to the Fourteenth Amendment, and the doctrine of the Slaughter House Cases the States might not abridge or deny. The counsel for Spies in his argument said: "The position I take is this. Though originally the first ten Amendments were adopted as limitations on federal power, yet in so far as they secure and recognize fundamental rights - common law rights - of the man, they make them privileges and immunities of the man as a citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words while the ten Amendments, as limitations on power, only apply to the Federal Government, and not 10 the States, yet in so far as they declare or recognize rights of persons, these rights are theirs as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power as the ten Amendments had limited federal power."

6 Cooley, in his Principles of Constitutional Law, p. 245, gives the following enumeration of distinctively federal rights: "A citizen of the United States," he says, " as such has the right to participate in foreign and interstate commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are coerced by its law. . . . So every citizen may petition the federal authorities which are set over him in respect to any matter of public concern; may examine the public records of the federal jurisdiction; may visit the seat of government without being subjected to the payment of a tax for the privilege; may be purchaser of the public lands on the same terms with others; may participate in the government if he comes within the conditions of suffrage, and may demand the care and protection of the United States when on the high seas, or within the jurisdiction of a foreign government. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an immunity which pertains to federal citizenship." "One very plain and unquestionable immunity," Cooley adds, "is exemption from any tax burden, or imposition under state laws, as a condition to the enjoyment of any right or privilege under the laws of the United States."

7 123 U. S. 131; 8 Sup. Ct. Rep. 22; 31 L, ed. 80.

The court, however, found that, in fact, no right of Spies secured by the first eight Amendments had been violated, and that, therefore, it was not necessary to pass upon this constitutional point which his counsel had raised.

In Maxwell v. Dow,8 however, the court found itself compelled to pass specifically upon this point. The court in its majority opinion denied the claim set up, asserting that the mere fact that a certain privilege or immunity was guaranteed against federal infringement did not operate to make such a privilege or immunity distinctively federal in character. With reference to the rights enumerated in the first eight Amendments, the court said: "In none are the privileges or immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons as against the Federal Government, entirely irrespective of such citizenship. As the individual does not enjoy them as a privilege of citizenship of the United States, therefore, when the Fourteenth Amendment prohibits the abridgement by the States of those privileges or immunities which he enjoys as such citizen, it is not correct or reasonable to say that it covers and extends to certain rights which he does not enjoy by reason of his citizenship, but simply because those rights exist in favor of all individuals as against the federal governmental powers. The nature of the character of the right of trial by jury is the same in a criminal prosecution as in a civil action, and in neither case does it spring from nor is it founded upon the citizenship of the individual as a citizen of the United States, and if not, then it cannot be said that in either case it is a privilege or immunity which alone belongs to him as such citizen." 9

8 176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597.

9 Justice Harlan rendered a dissenting opinion in the course of which he said: "It seems to me that the privileges and immunities enumerated in