Incorporation
Second Attempt under the P&I Clause
Butchers’ Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co. (1873)
111 U.S. 746 (1873)
Vote: 5-4
Decision: Reversed
Majority: J. Miller, joined by J. Clifford, J. Strong, J. Hunt, J. Davis
Dissent: J. Field, joined by J. Chase, J. Swayne, J. Bradley
Notes of Reporter before the Court:
(see https://www.law.cornell.edu/supremecourt/text/83/36 for full disposition.)
Mr. John A. Campbell, and also Mr. J. Q. A. Fellows, argued the case at much length and on the authorities, in behalf of the plaintiffs in error. The reporter cannot pretend to give more than such an abstract of the argument as may show to what the opinion of the court was meant to be responsive.
The learned counsel quoting Thiers, contended that ‘the right to one’s self, to one’s own faculties, physical and intellectual, one’s own brain, eyes, hands, feet, in a word to his soul and body, was an incontestable right; one of whose enjoyment and exercise by its owner no one could complain, and one which no one could take away. More than this, the obligation to labor was a duty, a thing ordained of God, and which if submitted to faithfully, secured a blessing to the human family.’
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Now, the act of the Louisiana legislature was in the face of all these principles; it made it unlawful for men to use their own land for their own purposes; made it unlawful to any except the seventeen of this company to exercise a lawful and necessary business for which others were as competent as they, for which at least one thousand persons in the three parishes named had qualified themselves, had framed their arrangements in life, had invested their property, and had founded all their hopes of success on earth. The act was a pure MONOPOLY; as such against common right, and void at the common law of England. And it was equally void by our own law.
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But if this monopoly were not thus void at common law, would be so under both the thirteenth and the fourteenth amendments.
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Lest some competitor may present more tempting or convenient arrangements, the act directs that all of these shall be closed on a particular day, and prohibits any one from having, keeping, or establishing any other; and a peremptory command is given that all animals shall be sheltered, preserved, and protected by this corporation, and by none other, under heavy penalties.
Is not this ‘a servitude?’ Might it not be so considered in a strict sense? It is like the ‘thirlage’ of the old Scotch law and the banalites of seignioral France; which were servitudes undoubtedly. But, if not strictly a servitude, it is certainly a servitude in a more popular sense, and, being an enforced one, it is an involuntary servitude.
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The act is even more plainly in the face of the fourteenth amendment. That amendment was a development of the thirteenth, and is a more comprehensive exposition of the principles which lie at the foundation of the thirteenth.
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But the fourteenth amendme