language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any state action that denies this immunity to a colored man is in conflict with the Constitution."

The power of Congress to enforce the fourteenth amendment authorized the enactment of § 641 Rev. Sts.1

§ 256 u. Exclusion from Jury. In Ex parte Virginia,2 a judge of a state court of Virginia, one Coles, was indicted in the United States District Court for excluding from the jury certain persons on account of their [black] color. In the United States Supreme Court he filed a petition for a habeas corpus, and the state of Virginia filed a similar one. It was held that the indictment must be justified, if at all, by authority of the act of Congress, March 1, 1875, § 4, viz., "No citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall be deemed guilty," etc.

The thirteenth and fourteenth amendments relate to this subject.

"One great purpose of these amendments was to raise the colored race from that condition of inferiority and servi tude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states. They were intended to take away all possibility of oppression by law, because of race or color. They were intended to be, what they really are, limitations of the power of the states and enlargements of the power of

1 See Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370, for illustrations of cases where the rights of colored men were not infringed. ED.

2 100 U. S. 339. ED.

Congress. They are to some extent declaratory of rights, and though in form prohibitions, they imply immunities, such as may be protected by congressional legislation." "In this latter case we held that the fourteenth amendment secures, among other civil rights, to colored men, when charged with criminal offences against a state, an impartial jury trial by jurors indifferently selected or chosen without discrimination against such jurors because of their color. We held that immunity from any such discrimination is one of the equal rights of all persons, and that any withholding it by a state is a denial of the equal protection of the laws, within the meaning of the amendment. We held that such an equal right to an impartial jury trial, and such an immunity from unfriendly discrimination, are placed by the amendment under the protection of the general government and guaranteed by it. We held, further, that this protection and this guarantee, as the fifth section of the amendment expressly ordains, may be enforced by Congress by means of appropriate legislation." And then followed further arguments against the position that the enforcement of the fourteenth amendment is in derogation of state rights.

Congress has power to enforce the fourteenth amendment by appropriate legislation. "Such legislation must act upon persons, not upon the abstract thing denominated a state, but upon the persons who are the agents of the state in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and we think it was fully authorized by the Constitution." Judge Field and Judge Clifford, however, dissented, and were of opinion, that, 1, assuming the act of March 1, 1875, to be constitutional, the indictment against Coles was void on its face; 2, that the act, so far as it relates to jurors in state courts, is unconstitutional and void. The true provinces of the Federal and state governments and the thirteenth and fourteenth amendments were discussed at length.

§ 256 v. Equal Rights of Appeal. The true aim and purpose of the fourteenth amendment was again considered in Missouri v. Lewis.1 By the statutes of Missouri, a court

1 101 U. S. 22. ED.

of appeal had been established in certain counties, and no appeal was allowed from this court to the Supreme Court of the state, unless the matter in controversy exceeded $2,500, while in all other counties an appeal was allowed for a much less amount: and the complaint was that such legislation was in violation of the fourteenth amendment, as denying to some of its citizens "the equal protection of its laws." But this proposition was overruled, and it was held that every state had a right to arrange the jurisdiction of its state courts, at its own discretion. The opinion by Mr. Justice Bradley is well worthy of perusal.

§ 256 w. Different Punishments. In Pace, v. Alabama 1 a statute of Alabama had prescribed severer penalties for a white person and a negro living in adultery or fornication, than for the same offence, when committed by persons of the same race, whether white or black. This was held not in conflict with this article, since the same punishment was imposed on both the white and the black person so living together.

But special legislation which imposes a degrading and cruel punishment upon a class of persons entitled to the equal protection of the laws is unconstitutional and void. An ordinance of San Francisco declared that every male person imprisoned in the county jail, etc., should have the hair of his head cut or clipped to a uniform length of one inch from the scalp. The ordinance was enforced against a Chinaman, the loss of the queue being regarded as a disgrace and as attended with suffering after death by the Chinese, and it was held to be unconstitutional by Field, J.2

§ 256 x. Congressional Legislation. But by far the most important decisions under this amendment are those called The Civil Rights Cases. In 1875, Congress passed an act, called the "Civil Rights Act," which was intended to en

1 106 U. S. 583. ED.

2 Ho Ah Kow v. Nunan (June, 1879), U. S. C. C. Cal. 8 Reporter, 195; 5 Sawyer, 552.

ED.

8 109 U. S. 3. And see United States v. Harris, 106 U. S. 629; United States v. Washington, 4 Woods, 349; 20 Fed. Rep. 630. ED.

force by Congressional legislation in the first instance the rights secured by the thirteenth, fourteenth, and fifteenth amendments. Some of the provisions of this act are stated elsewhere. The first and second sections, under which these cases arose, are in these words:

"Sec. 1. 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, theatres, 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, regardless of any previous condition of servitude.

"Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privi leges in said section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also for every such offence, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year."

Under this act several persons were prosecuted for refusing to colored persons the privileges of an inn, or a seat in a theatre, or a seat in the ladies' car on a railway. And after a very elaborate and interesting discussion the first and second sections of this act of Congress were held unconstitutional, so far as the states were concerned, on the ground that Congress was not authorized by the amendment to pass any law in the first instance, to enforce the provision, but only to correct any erroneous and unwarranted legislation by the states on the subject; and that until the states have acted upon the subject, Congress could not interfere. Mr. Justice Harlan,

however, dissented in a very able judgment. It was sought, also, to sustain the foregoing act of Congress under the thirteenth amendment, which prohibits slavery or involuntary servitude. And the court say, "The question is whether the refusal to any persons of the accommodations of an inn, public conveyance, etc., by an individual, and without any sanction or support from any state law or regulation, does inflict upon such persons any manner of servitude or form of slavery, as those terms are understood in this country."

"The thirteenth amendment has respect, not to distinctions of race, or class, or color, but to slavery. The fourteenth amendment extends its protection to races and classes, and prohibits any state legislation which has the effect of denying to any race, or class, or to any individual, the equal protection of the laws." We are forced to the conclusion that such "an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the state; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the fourteenth amendment."

§ 256 y. Equal Rights in Court. A state statute forbidding citizens of another state a right of action for damages received on a defective highway, when its own citizens have such right, is contrary to the fourteenth amendment, since it denies the equal protection of the laws.1 The equality of protection provided for by the fourteenth amendment implies not only equal accessibility to the courts for the prevention or redress of wrongs, and the enforcement of rights, but equal exemption with others of the same class from all charges and burdens of every kind. Within these limits the power of the state exists, as it did previously to the adoption of the amendment, over all matters of internal police.2

1 Pearson v. Portland, 69 Me. 278. ED.