1. The omission to state, in the certificate of division of
opinion between the judges of the circuit court in a criminal
proceeding, that the point of difference is certified "upon the
request of either party or their counsel," is not fatal to the
jurisdiction of this Court where such request can be fairly
inferred.
2. Section 5519 of the Revised Statutes (
post, p.
106 U. S. 632)
is unconstitutional.
At the November Term, 1876, of the Circuit Court of the United
States for the Western District of Tennessee, an indictment, based
on sec. 5519 of the Revised Statutes, was returned by the grand
jury against one R. G. Harris and nineteen others. The indictment
contained four counts. The first count charged as follows:
"That R. G. Harris [and nineteen others, naming them], yeomen,
of the County of Crockett, in the State of Tennessee, and all late
of the county and district aforesaid, on, to-wit, the fourteenth
day of August, in the year of our Lord one thousand eight hundred
and seventy-six, in the County of Crockett, in said state and
district, and within the jurisdiction of this Court, unlawfully,
with force and arms, did conspire together with certain other
persons whose names are to the grand jurors aforesaid unknown, then
and there, for the purpose of
Page 106 U. S. 630
depriving Robert R. Smith, William J. Overton, George W. Wells,
Jr., and P. M. Wells, then and there being citizens of the United
States and of said state, of the equal protection of the laws, in
this, to-wit, that therefore, to-wit, on the day and year
aforesaid, in said county, the said Robert R. Smith, William J.
Overton, George W. Wells, Jr., and P. M. Wells, having been charged
with the commission of certain criminal offenses, the nature of
which said criminal offenses being to the grand jurors aforesaid
unknown, and having upon such charges then and there been duly
arrested by the lawful and constituted authorities of said state,
to-wit, by one William A. Tucker, the said William A. Tucker then
and there being a deputy sheriff of said county, and then and there
acting as such, and having been so arrested as aforesaid, and being
then and there so under arrest and in the custody of said deputy
sheriff as aforesaid, they, the said Robert R. Smith, William J.
Overton, George W. Wells, Jr., and P. M. Wells, were there and then
by the laws of said state entitled to the due and equal protection
of the laws thereof, and were then and there entitled under the
said laws to have their persons protected from violence when so
then and there under arrest as aforesaid. And the grand jurors
aforesaid, upon their oaths aforesaid, do further present that the
said R. G. Harris, (and 19 others, naming them) with certain other
persons whose names are to the said grand jurors unknown, did then
and there, with force and arms, unlawfully conspire together as
aforesaid then and there for the purpose of depriving them, the
said Robert R. Smith, William J. Overton, George W. Wells, Jr., and
P. M. Wells, of their rights to the due and equal protection of the
laws of said state, and of their rights to be protected in their
persons from violence while so then and there under arrest as
aforesaid, and while so then and there in the custody of the said
deputy sheriff, and did then and there deprive them, the said
Robert R. Smith, William J. Overton, George W. Wells, Jr., and P.
M. Wells, of such rights and protection, and of the due and equal
protection of the laws of the said state, by then and there, while
so under arrest as aforesaid, and while so then and there in the
custody of the said deputy sheriff as aforesaid, beating, bruising,
wounding,
Page 106 U. S. 631
and otherwise ill treating them, the said Robert R. Smith,
William J. Overton, George W. Wells, Jr., and P. M. Wells, contrary
to the form of the statute in such case made and provided, and
against the peace and dignity of the United States."
The second count charged that the defendants, with force and
arms, unlawfully did conspire together for the purpose of
preventing and hindering the constituted authorities of the State
of Tennessee, to-wit, the said William A. Tucker, deputy sheriff of
said county, from giving and securing to the said Robert R. Smith
and others, naming them, the due and equal protection of the laws
of said state, in this, to-wit, that at and before the entering
into said conspiracy, the said Robert R. Smith and others, naming
them, were held in the custody of said deputy sheriff by virtue of
certain warrants duly issued against them, to answer certain
criminal charges, and it thereby became and was the duty of said
deputy sheriff to safely keep in his custody the said Robert R.
Smith and others while so under arrest, and then and there give and
secure to them the equal protection of the laws of the State of
Tennessee, and that the defendants did then and there conspire
together for the purpose of preventing and hindering the said
deputy sheriff from then and there safely keeping, while under
arrest and in his custody, the said Robert R. Smith and others, and
giving and securing to them the equal protection of the laws of
said state.
The third count was identical with the second, except that the
conspiracy was charged to have been for the purpose of hindering
and preventing said William A. Tucker, deputy sheriff, from giving
and securing to Robert R. Smith alone the due and equal protection
of the laws of the state.
The fourth count charged that the defendants did conspire
together for the purpose of depriving said P. M. Wells, who was
then and there a citizen of the United States and the State of
Tennessee, of the equal protection of the laws, in this, to-wit,
said Wells having been charged with an offense against the laws of
said state, was duly arrested by said Tucker, deputy sheriff, and
so being under arrest was entitled to the due and equal protection
of said laws, and to have his
Page 106 U. S. 632
person protected from violence while so under arrest, and the
said defendants did then and there unlawfully conspire together for
the purpose of depriving said Wells of his right to the equal
protection of the laws, and of his right to be protected in person
from violence while so under arrest, and
"did then and there deprive him of such rights and protection,
and of the due and equal protection of the laws of the State of
Tennessee, by then and there, and while he, the said P. M. Wells,
was so then and there under arrest as aforesaid, unlawfully
beating, bruising, wounding, and killing him, the said P. M. Wells,
contrary to the form of the statute in such case made and
provided,"
&c.
The defendants demurred to the indictment on several grounds,
among them the following:
"1. Because the offenses created by section 5519 of the Revised
Statutes of the United States, and upon which section the aforesaid
four counts are based, are not constitutionally within the
jurisdiction of the courts of the United States, and because the
matters and things therein referred to are judicially cognizable by
state tribunals only, and legislative action thereon is among the
rights reserved to the several states and inhibited to Congress by
the Constitution of the United States,"
and
"2. Because the said section 5519 of the Revised Statutes of the
United States, insofar as it creates
Page 106 U. S. 633
offenses and imposes penalties, is in violation of the
Constitution of the United States and an infringement of the rights
of the several states and the people thereof."
The case was heard in the circuit court on the demurrer to the
indictment, and, as the record states:
"Came the district attorney on behalf of the United States, and
came also the defendants indicted herein, by their attorneys, when
this case came on to be heard before the Hon. John Baxter, Circuit
Judge, and the Hon. Connally F. Trigg, District Judge, presiding,
on the demurrer of the said defendants, filed herein on the fifth
day of February, A.D. 1878, to the indictment herein, and the said
judges being divided in opinion on the point of the
constitutionality of the section of the Revised Statutes of the
United States on which the said indictment is based, being section
No. 5519 thereof, . . . after argument, hereby direct the said
point . . . to be certified to the Supreme Court of the United
States for its decision thereon, and the same is accordingly
ordered. And it is further ordered by the court that this case be
continued until the decision of said Supreme Court in the
premises."
Section 651 of the Revised Statutes, which authorizes
certificates of division of opinion, declares:
"Whenever any question occurs on the trial or hearing of any
criminal proceeding before a circuit court upon which the judges
are divided in opinion, the point upon which they disagree shall,
during the same term, upon the request of either party or their
counsel, be stated under the direction of the judges, and certified
under the seal of the court to the Supreme Court at their next
session, but nothing herein contained shall prevent the cause from
proceeding if, in the opinion of the court, further proceedings can
be had with out prejudice to the merits."
MR. JUSTICE WOODS delivered the opinion of the Court, and, after
making the foregoing statement, proceeded as follows:
The certificate of division of opinion in this case does not
Page 106 U. S. 634
expressly state that the point of difference between the judges
was certified "upon the request of either party or their counsel."
Neither party challenges the jurisdiction of this Court, but it has
occurred to us as a question, and we have considered it, whether
this omission in the certificate is fatal to our jurisdiction, and
we have reached the conclusion that it is not.
It fairly appears from the certificate that the point upon which
the judges differed in opinion was stated, under their direction,
in the presence of the counsel of both parties, without objection
from either, and it is expressly stated that the cause was
continued until the decision of this Court upon the point of
difference between the judges could be rendered. Had no certificate
of division of opinion been made, the result must have been a
judgment against the indictment, although the difference of opinion
arose upon the demurrer of defendant, for no judgment could have
been given against the defendant upon the indictment if the judges
were not agreed as to the constitutionality of the law upon which
it was based. Hence it became the duty of the prosecuting officer,
and the interest of the government which he represented, to request
a certificate of division of opinion for the determination of the
question by this Court. The case is brought to this Court by the
counsel for the United States upon the point stated in the
certificate; the case is suspended until our decision upon the
point certified is made, and he asks us to decide the question upon
which the judges of the circuit court differed. These
circumstances, all of which appear of record, considered in
connection with the fact that the court made the certificate, raise
the legal presumption that a request for the certificate was duly
preferred. The record evidence of the fact of the request by
counsel for the United States is incontrovertible.
It is suggested that under section 649 of the Revised Statutes,
which provides that a jury may be waived "whenever the parties or
their attorneys of record file with the clerk a stipulation in
writing waiving a jury," this Court has decided that the fact that
the stipulation was in writing and filed with the clerk must appear
of record in order to entitle the party to the review of the
rulings of the court in the progress of the trial
Page 106 U. S. 635
provided by sec. 700, and therefore that in the present case,
the record should distinctly show the request. But ยง 649 expressly
requires that the waiver of the jury shall be in writing and shall
be filed with the clerk. The section which provides for a
certificate of division of opinion makes no such requirement in
relation to the request for a certificate.
In one case, the jurisdictional fact is the filing of a certain
paper writing with the clerk; in the other, the making of a
request, which may be oral, to the court. In either case, when the
jurisdictional fact fairly appears by the record, our jurisdiction
attaches. So in this case, if the request may be fairly inferred
from such circumstances as we have mentioned, that is all that is
necessary to satisfy the statute. In
Supervisors v.
Kennicott, 103 U. S. 554,
this Court held that when a stipulation in writing was filed with
the clerk, by which it was provided that the case might be
submitted to the court on an agreed statement of facts, but which
contained no express waiver of a jury, yet this amounted to a
waiver sufficient to meet the requirements of section 649. And
though the right of trial by jury is a constitutional one, yet this
Court has declared that when it simply appeared by the record that
a party was present by counsel and had gone to trial before the
court without objection or exception, a waiver of his right to a
jury trial would be presumed, and he would be held in this Court to
the legal consequences of such waiver.
Kearney v.
Case, 12 Wall. 275.
We are therefore of opinion that the request by counsel of the
United States for a certificate of division is sufficiently shown
by the record in this case, and that our jurisdiction is clear.
We pass to the consideration of the merits of the case. Proper
respect for a coordinate branch of the government requires the
courts of the United States to give effect to the presumption that
Congress will pass no act not within its constitutional power. This
presumption should prevail unless the lack of constitutional
authority to pass an act in question is clearly demonstrated. While
conceding this, it must nevertheless be stated that the government
of the United States is one of delegated, limited, and enumerated
powers.
Martin
Page 106 U. S. 636
v. Hunter, 1 Wheat. 304;
McCulloch
v. Maryland, 4 Wheat. 316;
Gibbons v.
Ogden, 9 Wheat. 1. Therefore every valid act of
Congress must find in the Constitution some warrant for its
passage. This is apparent by reference to the following provisions
of the Constitution: section 1 of the first article declares that
all legislative powers granted by the Constitution shall be vested
in the Congress of the United States. Section 8 of the same article
enumerates the powers granted to the Congress and concludes the
enumeration with a grant of power
"to make all laws which shall be necessary and proper to carry
into execution the foregoing powers and all other powers vested by
the Constitution in the government of the United States, or in any
department or officer thereof."
Article X of the amendments to the Constitution declares
that
"The powers not delegated to the United States by the
Constitution nor prohibited by it to the states are reserved to the
states respectively or to the people."
Mr. Justice Story, in his Commentaries on the Constitution,
says:
"Whenever, therefore, a question arises concerning the
constitutionality of a particular power, the first question is
whether the power be expressed in the Constitution. If it be, the
question is decided. If it be not expressed, the next inquiry must
be whether it is properly an incident to an express power and
necessary to its execution. If it be, then it may be exercised by
Congress. If not, Congress cannot exercise it."
Sec. 1243, referring to Virginia Reports and Resolutions,
January, 1800, pp. 33-34; President Monroe's Exposition and Message
of May 4, 1822, p. 47; 1 Tuck.Black.Com.App. 287-288; 5 Marshall's
Wash.App. note 3; 1 Hamilton's Works 117, 121.
The demurrer filed to the indictment in this case questions the
power of Congress to pass the law under which the indictment was
found. It is therefore necessary to search the Constitution to
ascertain whether or not the power is conferred.
There are only four paragraphs in the Constitution which can in
the remotest degree have any reference to the question in hand.
These are Section 2 of Article IV of the original Constitution and
the Thirteenth, Fourteenth, and Fifteenth
Page 106 U. S. 637
Amendments. It will be convenient to consider these in the
inverse of the order stated.
It is clear that the Fifteenth amendment can have no
application. That amendment, as was said by this Court in the case
of
United States v. Reese, 92 U. S.
214,
"relates to the right of citizens of the United States to vote.
It does not confer the right of suffrage on anyone. It merely
invests citizens of the United States with the constitutional right
of exemption from discrimination in the enjoyment of the elective
franchise on account of race, color, or previous condition of
servitude."
See also United States v. Cruikshank, 92 U. S.
542. Section 5519 of the Revised Statutes has no
reference to this right. The right guaranteed by the Fifteenth
Amendment is protected by other legislation of Congress, namely by
sections 4 and 5 of the Act of May 31, 1870, c. 114, and now
embodied in sections 5506 and 5507, Revised Statutes.
Section 5519, according to the theory of the prosecution and as
appears by its terms, was framed to protect from invasion by
private persons the equal privileges and immunities under the laws
of all persons and classes of persons. It requires no argument to
show that such a law cannot be founded on a clause of the
Constitution whose sole object is to protect from denial or
abridgment by the United States or states on account of race,
color, or previous condition of servitude the right of citizens of
the United States to vote.
It is however strenuously insisted that the legislation under
consideration finds its warrant in the first and fifth sections of
the Fourteenth Amendment. The first section declares
"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. 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."
The fifth section declares "The Congress shall have power to
enforce by appropriate legislation the provisions of this
amendment."
Page 106 U. S. 638
It is perfectly clear from the language of the first section
that its purpose also was to place a restraint upon the action of
the states. In the
Slaughterhouse
Cases, 16 Wall. 36, it was held by the majority of
the Court, speaking through MR. JUSTICE MILLER, that the object of
the second clause of the first section of the Fourteenth Amendment
was to protect from the hostile legislation of the states the
privileges and immunities of citizens of the United States, and
this was conceded by MR. JUSTICE FIELD, who expressed the views of
the dissenting Justices in that case. In the same case the Court,
referring to the Fourteenth Amendment, said that
"if the states do not conform their laws to its requirements,
then by the fifth section of the article of amendment Congress was
authorized to enforce it by suitable legislation."
The purpose and effect of the two sections of the Fourteenth
Amendment above quoted were clearly defined by MR. JUSTICE BRADLEY
in the case of
United States v. Cruikshank, 1 Woods 316,
as follows:
"It is a guarantee of protection against the acts of the state
government itself. It is a guarantee against the exertion of
arbitrary and tyrannical power on the part of the government and
legislature of the state, not a guarantee against the commission of
individual offenses, and the power of Congress, whether express or
implied, to legislate for the enforcement of such a guarantee does
not extend to the passage of laws for the suppression of crime
within the states. The enforcement of the guarantee does not
require or authorize Congress to perform 'the duty that the
guarantee itself supposes it to be the duty of the state to
perform, and which it requires the state to perform.'"
When the case of
United States v. Cruikshank came to
this Court, the same view was taken here. The Chief Justice,
delivering the opinion of the Court in that case, said:
"The Fourteenth Amendment prohibits a state from depriving any
person of life, liberty, or property without due process of law or
from denying to any person the equal protection of the laws, but
this provision does not add anything to the rights of one citizen
as against another. It simply furnishes an additional guarantee
against any encroachment by the states upon the fundamental rights
which belong to every citizen as a
Page 106 U. S. 639
member of society. The duty of protecting all its citizens in
the enjoyment of an equality of rights was originally assumed by
the states, and it remains there. The only obligation resting upon
the United States is to see that the states do not deny the right.
This the amendment guarantees, and no more. The power of the
national government is limited to this guarantee."
92 U.S.
92 U. S. 542.
So, in
Virginia v. Rives, 100 U.
S. 313, it was declared by this Court, speaking through
Mr. Justice Strong, that "these provisions of the Fourteenth
Amendment have reference to state action exclusively, and not to
any action of private individuals."
These authorities show conclusively that the legislation under
consideration finds no warrant for its enactment in the Fourteenth
Amendment.
The language of the amendment does not leave this 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 deprived any person of life, liberty, or
property without due process of law, or denied to any person 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.
Section 5519 of the Revised Statutes is not limited to take
effect only in case the state shall abridge the privileges or
immunities of citizens of the United States or deprive any person
of life, liberty, or property without due process of law or deny to
any person the equal protection of the laws. It applies no matter
how well the state may have performed its duty. Under it, private
persons are liable to punishment for conspiring to deprive anyone
of the equal protection of the laws enacted by the state.
In the indictment in this case, for instance, which would be a
good indictment under the law if the law itself were valid, there
is no intimation that the State of Tennessee has passed
Page 106 U. S. 640
any law or done any act forbidden by the Fourteenth Amendment.
On the contrary, the gravamen of the charge against the accused is
that they conspired to deprive certain citizens of the United
States and of the State of Tennessee of the equal protection
accorded them by the laws of Tennessee.
As, therefore, the section of the law under consideration is
directed exclusively against the action of private persons, without
reference to the laws of the states or their administration by the
officers of the state, we are clear in the opinion that it is not
warranted by any clause in the Fourteenth Amendment to the
Constitution.
We are next to consider whether the Thirteenth Amendment to the
Constitution furnishes authority for the enactment of the law under
review. This amendment declares that
"Neither slavery nor involuntary servitude, except as a
punishment of crime whereof the party shall have been duly
convicted, shall exist within the United States or any place
subject to their jurisdiction. . . . Congress shall have power to
enforce this article by appropriate legislation."
It is clear that this amendment, besides abolishing forever
slavery and involuntary servitude within the United States, gives
power to Congress to protect all persons within the jurisdiction of
the United States from being in any way subjected to slavery or
involuntary servitude except as a punishment for crime, and in the
enjoyment of that freedom which it was the object of the amendment
to secure. Mr. Justice Swayne, in
United States v. Rhodes,
1 Abb. (U.S.) 28; MR. JUSTICE BRADLEY, in
United States v.
Cruikshank, 1 Woods 308.
Congress has, by virtue of this amendment, declared in sec. 1 of
the Act of April 9, 1866, c. 31, that all persons within the
jurisdiction of the United States shall have the same right in
every state and territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and
to none other.
But the question with which we have to deal is does the
Page 106 U. S. 641
Thirteenth Amendment warrant the enactment of sec. 5519 of the
Revised Statutes. We are of opinion that it does not. Our
conclusion is based on the fact that the provisions of that section
are broader than the Thirteenth Amendment would justify. Under that
section, it would be an offense for two or more white persons to
conspire, etc., for the purpose of depriving another white person
of the equal protection of the laws. It would be an offense for two
or more colored persons, enfranchised slaves, to conspire with the
same purpose against a white citizen or against another colored
citizen who had never been a slave. Even if the amendment is held
to be directed against the action of private individuals as well as
against the action of the states and United States, the law under
consideration covers cases both within and without the provisions
of the amendment. It covers any conspiracy between two free white
men against another free white man to deprive the latter of any
right accorded him by the laws of the state or of the United
States. A law under which two or more free white private citizens
could be punished for conspiring or going in disguise for the
purpose of depriving another free white citizen of a right accorded
by the law of the state to all classes of persons -- as, for
instance, the right to make a contract, bring a suit, or give
evidence -- clearly cannot be authorized by the amendment which
simply prohibits slavery and involuntary servitude.
Those provisions of the law, which are broader than is warranted
by the article of the Constitution by which they are supposed to be
authorized, cannot be sustained.
Upon this question, the case of
United States v. Reese,
92 U. S. 214, is in
point. In that case, this Court had under consideration the
constitutionality of the third and fourth sections of the Act of
May 31, 1870, c. 114, and now constituting sections 2007, 2008, and
5506 of the Revised Statutes. The third section of the act made it
an offense for any judge, inspector, or other officer of election
whose duty it was, under the circumstances therein stated, to
receive and count the vote of any citizen to wrongfully refuse to
receive and count the same, and the fourth section made it an
offense for any person by force, bribery, or other unlawful means
to hinder or delay any
Page 106 U. S. 642
citizen from doing any act required to be done to qualify him to
vote.
The indictment in the case charged two inspectors of a municipal
election in the State of Kentucky with refusing to receive and
count at such election the vote of William Garner, a citizen of the
United States of African descent. It was contended by the
defendants that it was not within the constitutional power of
Congress to pass the section upon which the indictment was based.
The attempt was made by the counsel for the United States to
sustain the law as warranted by the Fifteenth Amendment to the
Constitution of the United States. But this Court held it not to be
appropriate legislation under that amendment. The ground of the
decision was that the sections referred to were broad enough not
only to punish those who hindered and delayed the enfranchised
colored citizen from voting on account of his race, color, or
previous condition of servitude, but also those who hindered or
delayed the free white citizen. The Court, speaking by the Chief
Justice, said:
"It would certainly be dangerous if the legislature could set a
net large enough to catch all possible offenders, and leave it to
the courts to step inside and say who could be rightfully detained
and who should be set at large. This would to some extent
substitute the judicial for the legislative department of the
government. The courts enforce the legislative will when
ascertained, if within the constitutional grant of power. But if
Congress steps outside of its constitutional limitation and
attempts that which is beyond its reach, the courts are authorized
to, and, when called upon, must, annul its encroachment upon the
reserved rights of the states and the people."
And the Court declared that it could not limit the statute so as
to bring it within the constitutional power of Congress, and
concluded:
"We must therefore decide that Congress has not as yet provided
by appropriate legislation for the punishment of the offenses
charged in the indictment."
This decision is in point, and, applying the principle
established by it, it is clear that the legislation now under
consideration cannot be sustained by reference to the Thirteenth
Amendment to the Constitution.
There is another view which strengthens this conclusion. If
Page 106 U. S. 643
Congress has constitutional authority under the Thirteenth
Amendment to punish conspiracy between two persons to do an
unlawful act, it can punish the act itself, whether done by one or
more persons. A private person cannot make constitutions or laws,
nor can he with authority construe them, nor can he administer or
execute them. The only way, therefore, in which one private person
can deprive another of the equal protection of the laws is by the
commission of some offense against the laws which protect the
rights of persons, as by theft, burglary, arson, libel, assault, or
murder. If, therefore, we hold that section 5519 is warranted by
the Thirteenth Amendment, we should by virtue of that amendment,
accord to Congress the power to punish every crime by which the
right of any person to life, property, or reputation is invaded.
Thus, under a provision of the Constitution which simply abolished
slavery and involuntary servitude, we should, with few exceptions,
invest Congress with power over the whole catalogue of crimes. A
construction of the amendment which leads to such a result is
clearly unsound.
There is only other clause in the Constitution of the United
States which can in any degree be supposed to sustain the section
under consideration -- namely the second section of Article IV,
which declares that
"The citizens of each state shall be entitled to all the
privileges and immunities of citizens of the several states."
But this section, like the Fourteenth Amendment, is directed
against state action. Its object is to place the citizens of each
state upon the same footing with citizens of other states, and
inhibit discriminative legislation against them by other states.
Paul v.
Virginia, 8 Wall. 168.
Referring to the same provision of the Constitution, this Court
said in the
Slaughterhouse Cases, ubi supra, that it
"did not create those rights which it called privileges and
immunities of citizens of the states. It threw around them in that
clause no security for the citizen of the state in which they were
claimed or exercised. Nor did it profess to control the power of
the state governments over its own citizens. Its sole purpose was
to declare to the several states that whatever those rights, as you
grant or establish them to your
Page 106 U. S. 644
own citizens, or as you limit or qualify or impose restrictions
on their exercise, the same, neither more nor less, shall be the
measure of the rights of citizens of other states within your
jurisdiction."
It was never supposed that the section under consideration
conferred on Congress the power to enact a law which would punish a
private citizen for an invasion of the rights of his fellow citizen
conferred by the State of which they were both residents on all its
citizens alike.
We have therefore been unable to find any constitutional
authority for the enactment of section 5519 of the Revised
Statutes. The decisions of this Court above referred to leave no
constitutional ground for the act to stand on.
The point in reference to which the judges of the circuit court
were divided in opinion must therefore be decided against the
constitutionality of the law.
