violence of the citizen. Second, that the privileges and immunities which a State could not abridge were only that limited class which depended immediately upon the constitution of the United States. They are few in number and of little importance to the great mass of the colored race in their present condition. The right to pass from State to State and to the national capital, to protection upon the high seas and in foreign countries, and a few others, were stated as illustrations. The great body of our civil and political rights, that of acquiring and enjoying property, real and personal, to exercise trades, attend schools and churches, to be protected against personal violence, and enjoy the freedom of opinion, were declared to rest entirely under State protection, and were not included in this amendment.

In reference to the first proposition, that the power of Congress was not called into action under this clause until the -State, through its political power, had violated its provisions by passing, or attempting to enforce, some law, obtained the unanimous consent of every member of the court. We do not understand that this is anywhere questioned. This legislation, therefore, when no such exigency has occurred, is without authority, and it is our duty for this reason to advise you not to find an indictment for violation of its provisions.

The second proposition, affirmed by a majority of the court, just as conclusively establishes the invalidity of this law. The character of the wrong done—that of excluding a citizen from a hotel and a theater—is not such as Congress has any right to punish. They, say the Supreme Court, are violations of such rights as attach to citizens of a State, and do not belong to those which he enjoys as a citizen of the United States. It is this latter limited class of rights only which the fourteenth amendment protects. "Within this judgment, therefore, there is no power of federal legislation to provide penalties for the violation of any privilege save the few which are enjoyed peculiarly under the federal constitution. The right to go from State to State, to visit the capitol, and other national privileges, Congress may protect. All others, among which are the rights claimed to have been infringed in the present instance, are beyond its control. For this additional reason the law which attempts to protect them is void for the want of power in the body which passed it.

The Slaughter-house cases were well calculated to have elicited a different judgment, if the court had not felt constrained upon principle to decide as it did, A State law had substantially interfered with the trade and calling of a large class of citizens. Every butcher and dealer in meats over a wide-spread territory was compelled to pay an onerous tribute to a single corporation. But their right to carry on a trade, to acquire and dispose of property, was held not to come within the protection of the fourteenth amendment. There was no middle ground for the court; they must hold either that it completely revolutionized the whole theory of our government, and transferred to federal control all those rights hitherto alone protected by State laws; or hold, upon the other hand, that it referred

only to a few privileges secured by the national constitution. That court, in the same volume, applied the same principle where a woman in Illinois was rejected as an applicant for admission to the bar. It again decided that such right was not one of the immunities protected by the amendment. In 18th Wallace a State law having deprived a citizen of the right to sell what he owned and possessed, it held that the selling of property was a privilege and immunity protected by State laws and constitutions only, and was not protected by this clause.

With the fact that this interpretation was equivalent to expunging it from the amendments altogether, we have nothing to do. It is true, unquestionably, that any violation of any privilege or immunity protected by the federal constitution, by the State, could be punished and redressed by congressional law before the adoption of this amendment. As now judicially read by the court of last resort, it leaves the organic law in this regard precisely where it was before. It is one of those constructions often resorted to, to prevent consequences serious and revolutionary, which courts believe were not contemplated by legislatures who pass laws, and by the people who adopt constitutions.

We do not deem it indelicate to express our sympathy with the large and respectable class of our fellow-citizens, including beyond question a majority of the more conservative Christian gentlemen of the south, who regret that there exists nowhere in either government, State or national, the power of punishing those mean and cowardly murders which are so frequently disgracing our civilization before the world. Although we have carried the doctrine of local governments in township and county organizations to a great ex • treme, we find in all its ordinary administrations most beneficial effects. To its universal application, however, most statesmen now agree that there should be some exceptions. In no country but our owrn is the discreditable fact true that where murder, cruel and shocking outrages, are perpetrated by a dominant party in a narrow region of country, there is no power of punishment, save through the impracticable instrumentality of those who have either committed or sympathized with the crime. When conspiracies and combinations against the property, well-being and life of classes or persons in the small civil divisions of our country include large portions of the constabulary, the magistracy, and the jurors, grand and traverse, the inevitable consequence must be that the offenses they commit, or with which they sympathize, will be perpetrated with impunity. Unless our statesmen, State or national, create some jurisdiction of wider scope, and which will authorize indictments and trial beyond the narrow limits a majority of whose citizens abet the crime to be punished, the nation must still submit to the disgrace of yearly additions of mean and courage-wanting murders of the most innocent and helpless, without the slightest infliction of any legal penalty upon the offenders. It has been our painful duty in repeated instances to charge juries that the federal court had no cognizance of offenses where crimes so cruel and shocking had been proved that court, jury and audience could scarce refrain from tears of sympathy, and where the elegantly-dressed, socially well-connected, and shameless murderers had, in the communities where they had shed innocent blood, not only confessed, but boasted of such crimes; or who had either not been indicted at all, or when tried, had been acquitted by juries, tbeir coadjutors in crime, amid the acclamations of their co-conspirators. In a very recent case it was proved that a young man of wealth, education, and most estimable moral character was shot to death at midday in his own house by a band of ruffians, for no other reason than that he had acted as chairman bf a committee to wait upon the governor of his State to solicit his action for the protection of the negroes of his county, who were being driven from their homes, their houses burned and themselves murdered by the lawless conspirators by whom he was killed. The mock trial by which these infamous offenders were triumphantly acquitted was a still greater stain upon our civilization than the monstrous crime it affected to try. It is believed by many of our best citizens that there should be here, as in every other government on earth, some power to bring such wicked men to justice outside of, and uncontrolled by, the wills and hands which have united in their atrocities. As it does not now exist, and as no attempt at alteration is made by the State powers, it is natural that all those whose hearts are not of flint, and hope to be blessed and prosper as they do unto others as they would that others should do unto them, should strive to the uttermost to find the source of protection in the federal constitution. In the present condition of public opinion the remedy should, perhaps, be sought through the political action of the State only. I have but small sympathy with the right of the negro to see the immodest and vulgar displays in the ballet dance, which in modern times so universally disgrace the best theatrical presentations. I would have selected some more precious and beneficent privilege for protection, if the power had existed. We turn from this almost grotesque exercise of national authority, and express our regret only that it cannot be exerted to protect from pillage and murder the humble homes of those peaceful toilers, who quietly and inoffensively labor to support their wives and little ones, and who do not officiously and distastefully thrust themselves in the face of those, lighter and less reflective portions of society so frequently found among theatrical audiences. We believe the actual history of this unhappy question demonstrates that where no legal force or constraint is used, the lady and gentleman of solid position and real cultivation are least annoyed by his presence when he is really worthy and cultivated; and when left unstimulated by foreign and wicked influences, his own good sense, guided by public opinion, keeps him indiis proper position as uniformly as all other classes of society.

A recent judgment of one of the learned justices of the supreme court, after he enjoyed the benefits of the elaborate arguments, and participating in the dissenting opinions in the Slaughter-house cases, still affirms that violence upon the negro, simply because he is such, finding its sole animus in his race and color, may be made penal by Congressional enactment. This utterance suggests what otherwise we should have deemed

impossible, that the supreme court may still find in the thirteenth amendment, which abolishes slavery, or the first clause m the fifteenth, which creates citizenship, so much incidental power to protect what they create, as will sustain a national law punishing the crime, where life, liberty, and property are violently taken, solely on account of the race and color of the party injured. Our sympathies are in that direction. Could we see a plausible path leading to such ground, after what that court has said, we would gladly stand upon it. But so demonstrative appear to us the arguments, in view of the judgments of the Supreme Court already rendered, that a crime perpetrated by one citizen of Tennessee upon another, when it consists in the violation of some right which is enjoyed solely as the citizen of the State, and depends in no degree upon the national constitution, that we feel at liberty to give no different advice.

1875, June 8—Judge Rensselaer R. Nelson, U. S. District Judge in the district of Minnesota, gave the following instructions to the Grand Jury at the session of the court held at Winona:

To answer your question properly it is necessary to examine the fourteenth amendment to the Constitution of the United States. Previous to the adoption of the recent amendments there was certainly no authority given to Congress by any clause in the Constitution to enact such a law as the one under consideration.

The thirteenth amendment abolished slavery and involuntary servitude, except as a punishment for crime, and the fourteenth amendment defines, if it does not absolutely create, citizenship of the United States, and provides under what circumstances a citizen of the United States may become a citizen of a State. It also proclaimed protection to all citizens of the United States in the enjoyment of their privileges and immunities, and equal protection of the laws to all persons within the jurisdiction of the State. The first section of the fourteenth amendment declares that "all persons born or naturalized in the United States 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 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 jurisdic tion the equal protection of the laws."

Section 5 provides that "the Congress shall have power to enforce by appropriate legislation the provisions of this amendment."

You will see that the legislation of Congress has been extended, and that of the States curtailed.

The Supreme Court of the United States in the "Slaughter-house cases," reported in 16th Wallace, decided that there is a citizenship of the United States and a citizenship of a State, each possessing certain privileges and immunities distinct from the other; and that the first clause of section I of the fourteenth amendment prohibited State legislation from abridging the privileges and immunities of the citizens of the United States only, and did not deprive the State governments from regulating and controlling the great fundamental rights of man, which belong to every citizen of a State, embracing nearly all the civil and political rights for the protection and enforcement of which State governments are established. It decided, therefore, that the right to slaughter animals within the city of New Orleans was not a privilege or immunity owing its existence to. the Federal Government, its Constitution or its laws, and that a charter giving exclusive privileges to a corporation in regard to slaughtering animals was not in violation of the fourteenth amendment. There was no question raised or decided in regard to the power of legislation by Congress under this amendment. It was the constitutionality of an internal police regulation of a State that was before the court, and the law creating the corporation was sustained.

I call your attention to this case for the reason that several distinguished Federal and District judges and one eminent Circuit Court judge, in instructing grand juries upon the presentation of a similar question, have considered that the interpretation by the United States Supreme Court of this first section of the fourteenth amendment is a judgment against the constitutionality of the law under consideration. With great respect for the opinion of these judges, I cannot assent to their conclusions; and while I have no sympathy with this kind of Congressional legislation, and believe that the State government should punish all wrong or outrage of this character committed within its limits, still I think that where race, color, nativity, and religious or political belief, furnishes the only reason for the commission of such wrong or outrage, a proper occasion arises for the exercise of the power of Congress under this amendment. The objection urged against such a law is that it seeks to punish in the Federal Courts a violation of certain privileges which pertain to State citizenship. It is not doubted that the punishment of ordinary offenses against persons of any race belongs to the State Governments. They were created for the purpose of protecting life, liberty and the pursuit of individual happiness, and should legislate for this object. Yet as the fourteenth amendment creates citizenship and guarantees the equality of all persons before the law, I think Congress can provide for the punishment of individuals who deprive any person of the enjoyment of the rights of citizenship and of legal equality solely on account of race or color. These rights and privileges are derived from the Federal Government and are under its protection. It will be conceded, I think, that State legislation making it an offense to refuse the enjoyment of hotel accommodations to white persons and permitting the exclusion of all other persons, would be repugnant to this amendment. If so, cannot Congress interpose until some unfriendly and discriminating State law is passed? Must it confine its action to correct obnoxious legislation and not restrain individuals?

In the case of McCulloch vs. The State of Maryland (4th Wheaton, pp. 400-437), the construction of the grant of legislative power under the Constitution as it stood before the recent amendments was fully discussed, and it was decided that within the grant of power to Congress for purposes of legislation it may select any pro

per means of effecting the object in view, and may adopt any which might be appropriate and which were conducive to the end. Applying the reasoning of the Court to this case, where the express power to enforce the provisions of the amendment is given in the fifth section, it seems to me that Congress can legislate, even though a State had passed no obnoxious law; and may also in advance, by such enactments as it may deem suitable and necessary, remedy the evil against which this amendment proposes to guard.

If the opinion in that case correctly represents the extent of Congressional legislation, the power of Congress can be exerted directly to put down all outrage or discrimination on the part of individuals when the motive originates only in race or color.

I do not deem it necessary at this time to more fully discuss this question. The law, in my opinion, is constitutional.

A Conviction Under the Act.

In Philadelphia, in February, 1876, Rev. Fields Cook, pastor of the Third Baptist colored church of Alexandria, Virginia, was refused sleeping and eating accommodations at the-Bingham House, by Upton S. Newcomer, one of its clerks; and upon the trial of the cause, in the U. S. District Court, John Cadwalader, Judge, instructed the jury as follows:

The fourteenth amendment of the Constitution of the United States makes all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States, and provides 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 * * * deny to any person within its jurisdiction the equal protection of the laws. This amendment expressly gives to Congress the power to enforce it by appropriate legislation. An act of Congress of March 1, 1875, enacts that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, and makes it a criminal offense to violate these enactments by denying to any citizen, except for reasons by law applicable to citizens of every race and color, * * * the full enjoyment of any of the accommodations, advantages, facilities or privileges enumerated. As the law of Pennsylvania had stood until the 22d of March, 1867, it was not wrongful for innkeepers or carriers by land or water to discriminate against travelers of the colored race to such an extent as to exclude them from any part of the inns or public conveyances which was set apart for the exclusive accommodation of white travelers. The Legislature of Pennsylania, by an act of 22d of March, 186^, altered the law in this respect as to passengers on railroads. But the law of the State was not changed as to inns by any act of the State Legislature. Therefore, independently of the amendment of the Constitution of the United States and of the act of Congress now in question, the conduct of the defendant on the occasion in question might, perhaps, have been lawful. It is not necessary to express an opinion upon this point, because the decision of the case depends upon the effect of this act of Congress. I am of opinion that under the Fourteenth Amendment of the Constitution the enactment of this law was within the legislative power of Congress, and that we are bound to give effect to the act of Congress according to its fair meaning. According to this meaning of the act I am of opinion that if this defendant, being in charge of the business of receiving travelers in this inn, and of providing necessary and proper accommodations for them in it, refused such accommodations to the witness Cook, then a traveler, by reason of his color, the defendant is guilty in manner and form as he

stands indicted. If the case depended upon the unsupported testimony of this witness alone, there might be some reason to doubt whether this defendant was the person in charge of this part of the business. But under this head the additional testimony of Mr. Annan seems to be sufficient to remove all reasonable doubt. If the jury are convinced of the defendant's identity, they will consider whether any reasonable doubt of his conduct or motives in refusing the accommodations to Fields Cook can exist. The case appears to the court to be proved; but this question is for the jury, not for the court. If the jury have any reasonable doubt, they should find the defendant not guilty; otherwise they will find him guilty. ^

The jury brought in a verdict of guilty, March I, 1876, and the Court imposed a fine of $500.

Forty-third Congress—Second Session.

In House.

1875, February 18—Mr. Coburn, from the Select Committee on Affairs in Alabama, reported the following bill (H. R. 4745), which was read twice and recommitted:

That if two or more persons, within the jurisdiction of the United States, shall invade any of the States of this Union for the purpose of forcibly overthrowing the existing government of said State, or any constituted authority of the same, or for the purpose of interfering in any forcible or unlawful manner with the due execution of the laws of said State or of the United States; or if two or more persons, within the jurisdiction of the United States, shall conspire with any other person or persons for any of the unlawful purposes hereinbefore recited, with intent to commit the same, each person so offending shall be deemed guilty of felony, and, on conviction thereof, shall be punished by fine not exceeding ten thousand dollars and by imprisonment and confinement at hard labor for a term not exceeding ten years, at the discretion of the court trying the same.

Sec. 2. That if two or more persons shall conspire together to overthrow by force or to usurp by violence the State government of any of the States of this Union, or any department thereof; or if any two or more persons shall, in fact, by force and violence attempt to subvert or usurp such State government, or any department thereof; or if any two or more persons shall, by like force and violence, actually overthrow the existing government of any State, or any department thereof; each person so offending shall be deemed guilty of a crime, and, on conviction thereof, shall be fined not less than five hundred dollars nor more than five thousand dollars, and shall be imprisoned not less than one year and not more

than twenty years, at the discretion of the court trying the same.

Sec. 3. That.any person or persons using 01 proposing to use fire-arms or other deadly weapons against any peaceable individual or indi« viduals, or assemblages of the same, at or near the place and on the day or days of registration or holding an election for Representatives or Delegates to Congress, for the purpose of intimidating or injuring such individual or individuals while such an election is in progress, and before the same shall have been completed, or before such election has commenced to be held, for the purpose of intimidating such individuals from coming to the same, shall be guilty of a crime, and, . on conviction thereof, shall be fined not less than five hundred dollars nor more than two thousand dollars, and imprisoned not less than one year and not more than three years, at the discretion of the court trying the same: Provided, That in all prosecutions under this act, the open or concealed carrying of fire-arms or other deadly weapons at such elections or place of registration shall be taken as presumptive evidence of the intent to intimidate under this act.

Sec. 4. That in case the registration-officers appointed under the laws of any State or Territory, where, by the laws of said State or Territory, registration is required as a condition of voting at any election for Representatives in Congress, shall willfully or corruptly refuse or neglect to give any persons entitled to vote, at any precinct or voting-place established under the provisions of the laws of Congress, or of any State or- Territory, full and sufficient opportunities to register in the manner prescribed by law, and within the time fixed by law, or shall, by any device or subterfuge, impose conditions or enforce discriminations upon voters or classes of voters not declared in such registration-laws, or shall refuse or neglect, on request made by the voter or his agent, to furnish such voter with a certificate of registration, or such other form of evidence of the same as niay by law be required in such State or Territory, such officer shall be deemed guilty of a crime, and, on conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars, or imprisoned not less than six months nor more than two years, or both, at the discretion of the court trying the same.

Sec. 5. That any person or persons who, at any election for a Representative to Congress, shall, by cunning or device, fraud or force, take, or cause to be taken, from the legal custodian or custodians of the same, or from any place where kept in deposit by any such custodian or custodians, the box or boxes of .ballots, or the poll-lists, or either of them, or shall carry away, conceal, scatter, deface, mutilate, or destroy said ballots or poll-lists, or any or either of them, before the final count and comparison of the same has been completed, and the result of the election ascertained and publicly announced, or before the time has expired for which such ballots and polllists, or either of them, have to be preserved under the laws of the United States, or of such State and Territory, every: such person shallbe deemed guilty of a crime, and, on conviction thereof, shall be fined not less than five hundred dollars nor more than three thousand dollars, and. imprisoned not less than two years nor more than five years, at the discretion of the court trying the same.

Sec. 6. That if in the prosecution of any of the undertakings hereinbefore declared unlawful, or in the commission of any of the offenses hereinbefore set forth, any person not participant in said offenses or unlawful undertakings shall be killed by any* persons engaged in the same, or any of them, such killing shall constitute the crime of murder: and any person committing the same, or accessory before the fact to such commission, shall, on conviction thereof, suffer the penalty of death.

Sec. 7. That the district courts of the United States, within their several districts, shall have, exclusively of the courts of the several States, jurisdiction of all crimes and offenses against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil or criminal, arising under this act, except as herein otherwise provided; and the jurisdiction hereby conferred shall be exercised in conformity with the laws and practice governing United States courts; and all crimes and offenses committed against the provisions of this act may be prosecuted by the indictment of a grand jury, or, in cases of crimes and offenses not infamous, may be, either by indictment or information, filed by the district attorney in a court having jurisdiction.

Sec. 8. That the supervisors of elections hereafter appointed for any county, parish, or votingprecinct in any Congressional district, at the instance of ten citizens, as provided in existing laws, shall exercise the same powers and perform the same duties as are now given to and required from supervisors in towns and cities of twenty thousand inhabitants or upward. All supervisors of elections within any congressional district may

hereafter be appointed from the congressional district; and the judge of the circuit court of the United States within whose circuit such district may be situate shall appoint such supervisors on petition as now provided by law at least thirty days prior to the registration or election in which they are to act; and one of said supervisors, so appointed by said judge, shall be by him denominated as chief supervisor of said congressional district, and shall possess the powers and perform the duties now required by law of a chief supervisor.

Sec. 9. That the provisions of existing laws as to the appointment, powers, and duties of special deputy marshals for cities and towns of twenty thousand inhabitants or upward, in elections for Representatives to Congress, are hereby extended to the several counties, parishes, and voting-precincts in each congressional district, and such special deputies may be selected from any portion of such congressional district.

Sec. 10. That at all elections for representatives in Congress hereafter held, the managers of such elections or board of officers charged with the conduct of the said election, by whatever title denominated, at the several polling-places, shall immediately after the closing of the polls, and before separating or adjourning to any other time or place, count and declare, in the presence of the supervisor and deputy marshal, if any shall have been appointed and shall be present at s*aid polling-place, the result of the vote polled at said place of election, and shall thereupon immediately certify the same so far as relates to Representatives in Congress or presidential electors, if voted for in said election, under the laws of the State, and shall deliver such certificate to said supervisor or deputy marshal, whichever may be present; and such supervisor or deputy marshal, as the case may be, shall at once transmit such certificate to the chief supervisor of the Congressional district, who shall, as soon as practicable, forward the same to the Clerk of the House of Representatives. And the officer or officers charged with the canvassing or consolidation of the vote of any county, city, or parish shall, in like manner, perform such duty in the presence of such supervisor, if present, who shall, if appointed, attend in each county, city, or parish, at the time and place provided by law for such canvass and consolidation.

Sec. 11. That no officer whose office is created by this act shall receive any compensation whatever from the United States for his services, nor shall the compensation heretofore allowed by law to any officer already existing be in any manner increased by reason of anything in this act contained.

Sec. 12. That the ballots, poll-lists, tally-sheets, or other papers which by the law of any State are evidence of an election, and which have been used in elections for Representatives to Congress, shall hereafter be preserved and safely kept by the custodian provided by the laws of the several States until the close of the first session of the Congress to be affected by such election; that either party to an election-contest in the House of Representatives of the United States, in which contest an allegation of fraudulent count or change of ballots is made, may have a subpoena directed