Fifteenth Amendment.

§ 256 z. This amendment enacts: "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. 2. The Congress shall have power to enforce this article by appropriate legislation."

This amendment received an elaborate examination in the case of United States v. Reese,1 decided in 1875. Under this amendment Congress passed an act, May 31, 1870 (16 Stat. 140), the substance of which, with his comments, is thus stated by Mr. Chief Justice Waite in the above case:"Its first section provides that all citizens of the United States who are or shall be otherwise qualified by law to vote at any election, etc., shall be entitled and allowed to vote thereat, without distinction of race, color, or previous condition of servitude, any constitution, etc., of the state to the contrary notwithstanding. This simply declares a right without providing a punishment for its violation.

"The second section provides for the punishment of any officer charged with the duty of furnishing to citizens an opportunity to perform any act which by the constitution or laws of any state is made a prerequisite or qualification of voting, who shall omit to give all citizens of the United States the same and equal opportunity to perform such prerequisite and become qualified, on account of the race, color, or previous condition of servitude of the applicant. This does not apply to or include the inspectors of an election, whose only duty it is to receive and count the votes of citi zens designated by law as voters, who have already become qualified to vote at the election.

"The third section is to the effect that whenever, by or

192 U. S. 214. An indictment against two inspectors of a municipal election in Kentucky, for refusing to receive the vote of William Garner, a citizen of the United States of African descent. See also United States v. Amsden, 10 Biss. 283 (1881); United States v. Harris, 106 U. S. 641 (1883).

Ed.

under the constitution or laws of any state, etc., any act is or shall be required to be done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of such citizen to perform the act required to be done as aforesaid' shall, if it fail to be carried into execution by reason of the wrongful act or omission 'aforesaid' of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any judge, inspector, or other officer of election, whose duty it is to receive, count, etc., or give effect to the vote of any such citizen, who shall wrongfully refuse or omit to receive, count, etc. the vote of such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the person or officer whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall, for every such offence, forfeit and pay, etc.

"The fourth section provides for the punishment of any person who shall by force, bribery, threats, intimidation, or other unlawful means, hinder, delay, etc., or shall combine with others to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting, at any election."

The indictment was against two inspectors of a municipal election in Kentucky, for refusing to receive the vote of a colored citizen of the United States. The only questions argued were on the fifteenth amendment. In the opinion the Chief Justice remarks: "The fifteenth amendment does

not confer the right of suffrage upon any one. 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 a 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 guarantee against this discrimination; now there is. It follows that the 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... Congress may enforce by appropriate legislation." But because the act in question was too general, it was held by the majority not to be "appropriate legislation" for the punishment of the offence charged. Clifford, J., concurred in the judgment, "for reasons widely different," considering that the indictment was entirely insufficient. Hunt, J., dissented, however, in an able judgment, maintaining that the indictment was sufficient, and that the statute authorized the punishment and that the statute was constitutional.

§ 256 aa. Same Subject. Similar questions arose in 1881 in United States v. Harris. That was an indictment, under Rev. Sts. § 5519, originally a part of Sect. IV. of the act of April 20, 1871, c. 22, for conspiring to deprive certain persons of their equal privileges, etc. The defendants demurred to the indictment, on the ground that the act was unconstitutional, which demurrer was sustained; and Mr. Justice Woods, in an able judgment, thus stated the grounds of the decision: "The demurrer filed to the indictment in this case questions the power of Congress to pass the law under which the indictment is found. It is, therefore, necessary to search the Constitution, to ascertain whether or not the power is conferred." "There are," said he, "only four paragraphs in the Constitution which can in the remotest degree have any reference to the question in hand. These are Section II. of Article IV. of the original Constitution, and

1 106 U. S. 636. ED.

the thirteenth, fourteenth, and fifteenth 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 any one. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of elective franchise on account of race, color, or previous condition of servitude." See also United States v. Cruikshank, id. 542; S. C. 1 Woods, 308. Sect. 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 Sects. 4 and 5 of the act of May 31, 1870, c. 114, and now embodied in Sects. 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 legisla

tion the provisions of this amendment." 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 Slaughter-House Cases, 16 Wall. 36, it was held by the majority of the court, speaking by 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, 308, 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 offences; 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