mary reason for the adoption of that amendment was to secure the enjoyment of liberty to the colored race; yet it is not restricted to that purpose, and it applies to every one, white or black, who comes within its provisions. But the protection of the citizen in his rights as a citizen of the state still remains with the state; and sovereignty, for the protection of the rights of life and personal liberty within the respective states, rests alone with the states. The amendment is directed against state action; it is prohibitory in its character; its provisions are prohibitions upon the states, and the legislation which congress is authorized to enact is such legislation as may be appropriate to enforce the prohibition, and correct and annul the prohibited state action and provide relief against it.72 In the "Civil Rights Cases," in which the supreme court held the first and second sections of the "Civil Rights Act" unconstitutional, Mr. Justice Bradley, delivering the opinion of the court, said:

"The first section of the fourteenth amendment, which is the one relied on, after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory on the states. It 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 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.' 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 void 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

72 Slaughter-House Cases, 16 Wall. 36 (21:394); United States v. Cruikshank, 92 U. S. 542 (23: 588); Civil Rights Cases, 109 U. S. 3, 62 (27:836); United States v. Harris, 106 U. S. 629, 644 (27: 290); Hurtado v. California, 110 U. S. 516 (28:232); Brown v. New Jersey, 175 U. S. 172 (44:119); McNulty v. California, 149 U. S. 645 (37:882); Re Kemmler, 136 U.

S. 436, 448 (34:519); Hodgson v. Vermont, 168 U. S. 262 (42:461); Holden v. Hardy, 169 U. S. 366 (42:780); Ballu v. Nebraska, 176 U. S. 83 (44:382); Re Converse, 137 U. S. 624 (34:796); Caldwell v. Texas, 137 U. S. 692 (34:816); Leiper v. Texas, 139 U. S. 462 (35: 225); Virginia v. Rives, 100 U. S. 313 (25:667); United States v. Cruikshank, 1 Woods, 316.

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 the power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effect of such prohibited state laws and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with the power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state. proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must, necessarily, be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. Until some state law has been passed or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against state laws and state acts done under state authority. Of course, legislation may and should be provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, state laws, or state action of some kind, adverse to the right of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights

*

appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make congress take the place of the state legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property, which include all civil rights that men have, are, by the amendment, sought to be protected against invasion on the part of the state without due process of law, congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a state to any persons, of the equal protection of the laws is prohibited by the amendment, therefore congress may establish laws for their equal protection. In fine, the legislation which congress is authorized to adopt in this behalf, is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the states may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the state may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

"An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the states. It is not preddicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states: it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in states that may have violated the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the couduct of in-.

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dividuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authority." § 206. Same-Same-Same-Individual invasion of the rights guarantied by the fourteenth amendment.-Inasmuch as the prohibitions of the fourteenth amendment have reference to state action exclusively, and not to any action of private individuals, it, therefore, follows that congress has no power to enact legislation framed to protect from invasion by private persons the rights guarantied by the amendment; " and congress cannot confer on the federal courts jurisdiction to indict, try and punish private individuals for conspiring to deprive citizens of the United States, in a state, of the rights secured by the amendment.75 Congress had no power to enact the second section of the enforcement act of April 20, 1870, which attempted to make it a highly penal offense for two or more persons in any state or territory to "conspire or go in disguise upon the highway or on the premises of another for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges or immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws." 76 That provision of the statute has been held unconstitutional and the supreme court, in passing upon its validity, after a review of the authorities, said:

"These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the fourteenth amendment. The language of that amendment does not leave the subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has

73 Civil Rights Cases, 109 U. S. 3, 62 (27:836).

74 Ex parte Commonwealth of Virginia, 100 U. S.. 313, 338 (25: 667); United States V. Cruikshank, 92 U. S. 544 (23:588); United States v. Harris, 106 U. S.

629, 644 (27:290); Civil Rights Cases, 109 U. S. 3, 62 (27:841).

75 United States v. Cruikshank, 92 U. S. 544 (23:588).

76 17 U. S. Stat. at L. 13, 14, U. S. Rev. Stat. sec. 5519.

deprived any person of life, liberty or property, without due process of law, nor denied to any persons within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative and construed by its judicial and administered by its executive departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon congress. And in the "Civil Rights Cases," Mr. Justice Bradley, stated the principle of constitutional construction as follows:

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"In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefore to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothed the congress with power to provide a remedy. This abrogation and denial of rights for which the states alone were or could be responsible, was the great seminal and fundamen

77 Harris v. United States, 629 644 (27:290).