Although § 5507, Rev.Stat., which provides for the punishment of
individuals who hinder, control or intimidate others from
exercising the right of suffrage guaranteed by the Fifteenth
Amendment, purports on its face to be an exercise of the power
granted to Congress by the Fifteenth Amendment, it cannot be
sustained as an appropriate exercise of such power. That Amendment
relates solely to action by the United States or by any state, and
does not contemplate wrongful individual acts. While Congress has
ample power in respect to elections of Representatives to Congress,
§ 5507 cannot be sustained under such general power, because
Congress did not act in the exercise of such power.
On its face, the section is clearly an attempt to exercise power
supposed to be conferred by the Fifteenth Amendment in respect to
all elections, state and federal, and not in pursuance of the
general control by Congress over particular elections. It would be
judicial legislation for this Court to change a statute enacted to
prevent bribery of persons named in the Fifteenth Amendment at all
elections to one punishing bribery of any voter at certain
elections.
Congress has the power to punish bribery at federal elections,
but it is all important that a criminal statute should define
clearly the offence which it purports to punish, and that, when so
defined it should be within the limits of the power of the
legislative body enacting it.
In December, 1900, an indictment was found by the United States
District Court for the District of Kentucky against the appellee,
Henry Bowman, and one Harry Weaver, based upon section 5507 of the
Revised Statutes of the United States. The indictment charged in
substance that certain "men of African descent, colored men,
negroes, and not white men," being citizens of Kentucky and of the
United States, were, by means of bribery, unlawfully and
feloniously intimidated and prevented from exercising their lawful
right of voting at a certain election held in the Fifth
Congressional District of Kentucky on the 8th day of November,
1898, for the election of a representative in the Fifty-sixth
Congress of the United States.
Page 190 U. S. 128
No allegation is made that the bribery was because of the race,
color, or previous condition of servitude of the men bribed. The
appellee, Henry Bowman, having been arrested and held in default of
bail, sued out a writ of habeas corpus on the ground of the
unconstitutionality of section 5507. The district judge granted the
writ, following reluctantly the decision of the Circuit Court of
Appeals for the Sixth Circuit in
Lackey v. United States,
107 F. 114. From that judgment the government has taken this
appeal.
Section 5507 is as follows:
"SEC. 5507. Every person who prevents, hinders, controls, or
intimidates another from exercising, or in exercising the right of
suffrage, to whom that right is guaranteed by the Fifteenth
Amendment to the Constitution of the United States, by means of
bribery or threats of depriving such person of employment or
occupation, or of ejecting such person from a rented house, lands,
or other property, or by threats of refusing to renew leases or
contracts for labor, or by threats of violence to himself or
family, shall be punished as provided in the preceding
section."
The Fifteenth Amendment provides:
"SEC. 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
state on account of race, color, or previous condition of
servitude."
"SEC. 2. The Congress shall have power to enforce this article
by appropriate legislation. "
Page 190 U. S. 135
MR. JUSTICE BREWER delivered the opinion of the Court.
The single question presented for our consideration is whether
section 5507 can be upheld as a valid enactment, for, if
Page 190 U. S. 136
not, the indictment must also fall, and the defendant was
rightfully discharged. On its face, the section purports to be an
exercise of the power granted to Congress by the Fifteenth
Amendment, for it declares a punishment upon anyone who, by means
of bribery, prevents another to whom the right of suffrage is
guaranteed by such amendment from exercising that right. But that
amendment relates solely to action "by the United States or by any
state," and does not contemplate wrongful individual acts. It is in
this respect similar to the following clauses in the Fourteenth
Amendment:
"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."
Each of these clauses has been often held to relate to action by
a state, and not by individuals. As said in
Virginia v.
Rives, 100 U. S. 313,
100 U. S.
318:
"The provisions of the Fourteenth Amendment of the Constitution
we have quoted all have reference to state action exclusively, and
not to any action of private individuals."
Again, in
Ex Parte Virginia, 100 U.
S. 339,
100 U. S.
346:
"They have reference to actions of the political body
denominated a state, by what ever instruments or in whatever modes
that action may be taken. A state acts by its legislative, its
executive, or its judicial authorities. It can act in no other way.
The constitutional provision therefore must mean that no agency of
the state, or of the officers or agents by whom its powers are
officers or agents by whom its powers are jurisdiction the equal
protection of the laws."
Again, in
United States v. Cruikshank, 92 U. S.
542,
92 U. S.
554:
"The Fourteenth Amendment prohibits a state from denying to any
person within its jurisdiction the equal protection of the laws;
but this provision does not, any more than the one which precedes
it, and which we have just considered, add anything to the rights
which one citizen has under the Constitution against another. The
equality of the rights of citizens is a principle of republicanism.
Every republican government
Page 190 U. S. 137
is in duty bound to protect all its citizens in the enjoyment of
this principle, if within its power. That duty was originally
assumed by the states, and it still 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, but no more.
The power of the national government is limited to the enforcement
of this guaranty."
In
Civil Rights Cases, 109 U. S.
3,
109 U. S. 13:
"And so in the present case, 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 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 rights 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
Page 190 U. S. 138
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 states may
commit or take, and which, by the amendment, they are prohibited
from committing or taking."
United States v. Harris, 106 U.
S. 629,
106 U. S.
639:
"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."
See also Slaughter-House
Cases, 16 Wall. 36;
Scott v. McNeal,
154 U. S. 34,
154 U. S. 45;
Chicago, Burlington &c. Railroad Co. v. Chicago,
166 U. S. 226,
166 U. S.
233.
But we are not left alone to this reasoning from analogy. The
Fifteenth Amendment itself has been considered by this Court, and
the same limitations placed upon its provisions. In
United
States v. Reese, 92 U. S. 214,
92 U. S. 217,
we said:
"The Fifteenth Amendment does not confer the right of suffrage
upon anyone. It prevents the states, or the United States, however,
from giving preference, in this particular, to one citizen of the
United States over another on account of race, color, or previous
condition of servitude. Before its adoption, this could be done. It
was as much within the power of state to exclude citizens of the
United States from voting on account of race, etc., as it was on
account of age, property, or education. Now it is not. If citizens
of one race having certain qualifications are permitted by law to
vote, those of another having the same qualifications must be.
Previous to this amendment, there was no constitutional guaranty
against this discrimination; now there is. It follows that the
Page 190 U. S. 139
amendment has invested the citizens of the United States with a
new constitutional right which is within the protecting power of
Congress. That right is exemption from discrimination in the
exercise of the elective franchise on account of race, color, or
previous condition of servitude. This, under the express provisions
of the second section of the Amendment, Congress may enforce by
'appropriate legislation.'"
In passing, it may be noticed that this indictment charges no
wrong done by the State of Kentucky or by anyone acting under its
authority. The matter complained of was purely as individual act of
the defendant. Nor is it charged that the bribery was on account of
race, color, or previous condition of servitude. True, the parties
who were bribed were alleged to be "men of African descent, colored
men, negroes, and not white men," and again, that they were
"persons to whom the right of suffrage and the right to vote was
then and there guaranteed by the Fifteenth Amendment to the
Constitution of the United States."
But this merely describes the parties wronged as within the
classes named in the amendment. They were not bribed because they
were colored men, but because they were voters. No discrimination
on account of race, color, or previous condition of servitude is
charged.
These authorities show that a statute which purports to punish
purely individual action cannot be sustained as an appropriate
exercise of the power conferred by the Fifteenth Amendment upon
Congress to prevent action by the state through some one or more of
its official representatives, and that an indictment which charges
no discrimination on account of race, color, or previous condition
of servitude is likewise destitute of support by such
amendment.
But the contention most earnestly pressed is that Congress has
ample power in respect to elections of representative in Congress;
that the election which was held, and at which this bribery took
place, was such an election, and that therefore under such general
power this statute and this indictment can be sustained. The
difficulty with this contention is that Congress has not by this
section acted in the exercise of such power. It is not legislation
in respect to elections of federal
Page 190 U. S. 140
officers, but is leveled at all elections, state or federal, and
it does not purport to punish bribery of any voter, but simply of
those named in the Fifteenth Amendment. On its face, it is clearly
an attempt to exercise power supposed to be conferred by the
Fifteenth Amendment in respect to all elections, and not in
pursuance of the general control by Congress over particular
elections. To change this statute, enacted to punish bribery of
persons named in the Fifteenth Amendment at all elections, to a
statute punishing bribery of any voter at certain elections would
be in effect judicial legislation. It would be wresting the statute
from the purpose with which it was enacted and making it serve
another purpose. Doubtless even a criminal statute may be good in
part and bad in part, providing the two can be clearly separated,
and it is apparent that the legislative body would have enacted the
one without the other, but there are no two parts to this statute.
If the contention be sustained, it is simply a transformation of
the statute in its single purpose and scope. This question has been
by this Court in two cases carefully considered and fully
determined. In
United States v. Reese, 92 U. S.
214, there was an indictment, one count of which was
based upon the third and another upon the fourth section of the Act
of May 31, 1870, 16 Stat. 140, the fifth section of which act is
substantially repeated in section 5507, Rev.Stat.. It is true that,
as stated, section four contains
"no words of limitation or reference, even, that can be
construed as manifesting any intention to confine its provisions to
the terms of the Fifteenth Amendment. That section has for its
object the punishment of all persons who by force, bribery, etc.,
hinder, delay, etc., any person from qualifying or voting."
And it is also true that the government expressly waived the
consideration of all claims not arising out of the enforcement of
the Fifteenth Amendment to the Constitution. Nevertheless, the
decision is directly in point. We said (p.
92 U. S.
221):
"We are therefore directly called upon to decide whether a penal
statute enacted by Congress, with its limited powers, which is in
general language broad enough to cover wrongful acts without as
well as within the constitutional jurisdiction, can be limited by
judicial construction so as to make it operate
Page 190 U. S. 141
only on that which Congress may rightfully prohibit and punish.
For this purpose, we must take these sections of the statute as
they are. We are not able to reject a part which is
unconstitutional, and retain the remainder, because it is not
possible to separate that which is unconstitutional, if there be
any such, from that which is not. The proposed effect is not to be
attained by striking out or disregarding words that are in the
section, but by inserting those that are not now there. Each of the
sections must stand as a whole or fall altogether. The language is
plain. There is no room for construction, unless it be as to the
effect of the Constitution. The question, then, to be determined
is, whether we can introduce words of limitation into a penal
statute so as to make it specific, when, as expressed, it is
general only."
"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. . . . To limit this statute in the manner now asked for
would be to make a new law, not to enforce an old one. This is no
part of our duty."
Again, in the
Trade-Mark Cases, 100 U. S.
82, the validity of an indictment under the fourth and
fifth sections of the act of Congress to punish the counterfeiting
of trademarks, 19 Stat. 141, was considered. The congressional
enactments at that time attempted to authorize trademarks
generally, and the statute referred to was equally general. It was
held that, under the Constitution, Congress did not have control
over the subject of trademarks generally, and, referring to the
contention that to a limited extent it had, we said (p.
100 U. S.
98):
"It has been suggested that, if Congress has power to regulate
trademarks used in commerce with foreign nations and among the
several states, these statutes shall be held valid in that class of
cases, if no further. . . . While it may be true that, when one
part of a statute is valid and constitutional, and another part is
unconstitutional and void, the court may enforce the valid part
where they are distinctly separable, so that each can stand alone,
it is not within the judicial province to give to the
Page 190 U. S. 142
words used by Congress a narrower meaning than they are
manifestly intended to bear in order that crimes may be punished
which are not described in language that brings them within the
constitutional power of that body. This precise point was decided
in
United States v. Reese, 92 U. S.
214. In that case, Congress had passed a statute
punishing election officers who should refuse to any person
lawfully entitled to do so the right to cast his vote at an
election. This Court was of the opinion that, as regarded the
section of the statute then under consideration, Congress could
only punish such denial when it was on account of race, color, or
previous condition of servitude. It was urged, however, that the
general description of the offense included the more limited one,
and that the section was valid where such was in fact the cause of
denial. But the Court said"
(and then follows the quotation we have already made from that
case).
We deem it unnecessary to add anything to the views expressed in
these opinions. We are fully sensible of the great wrong which
results from bribery at elections, and do not question the power of
Congress to punish such offenses when committed in respect to the
election of federal officials. At the same time, it is
all-important that a criminal statute should define clearly the
offense which it purports to punish, and that, when so defined, it
should be within the limits of the power of the legislative body
enacting it. Congress has no power to punish bribery at all
elections. The limits of its power are in respect to elections in
which the nation is directly interested, or in which some mandate
of the national Constitution is disobeyed, and courts are not at
liberty to take a criminal statute, broad and comprehensive in its
terms and in these terms beyond the power of Congress, and change
it to fit some particular transaction which Congress might have
legislated for if it had seen fit.
The judgment of the district court is
Affirmed.
MR. JUSTICE McKENNA took no part in the decision of this
case.
MR. JUSTICE HARLAN and MR. JUSTICE BROWN dissented.