ginia, 8 Wall. 168. Referring to the same provision of the Constitution, this court said, in Slaughter-House 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 the rights of 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 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 enact ment of Sect. 5519 of the Revised Statutes. The decisions of this court above referred to leave no constitutional ground for the act to stand on."

§ 256 bb. This subject again came up for consideration in 1883, in Ex parte Yarbrough, in which Yarbrough and others had been convicted (under U. S. Rev. Sts. §§ 5508 and 5520) of a conspiracy to intimidate colored voters; and the conviction was held legal and valid. In the course of his opinion, Mr. Justice Miller made some valuable observations on this amendment, qualifying somewhat the language before quoted from United States v. Reese. He says:

"While it is quite true, as was said by this court in United States v. Reese, 92 U. S. 214, that this article gives no affirmative right to the colored man to vote, and is designed primarily to prevent discrimination against him whenever the right to vote may be granted to others, it is easy to see that, under some circumstances, it may operate as the immediate 1 110 U. S. 652. And see United States v. Waddell, 112 U. S. 76. Ed.

source of a right to vote. In all cases where the former slaveholding states had not removed from their constitutions the words white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, being paramount to the state law and a part of the state law, it annulled the discriminating word white, and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a state which should give the right of voting exclusively to white people, whether they be men or women. Neal v. Delaware, 103 U. S. 370. In such cases this fifteenth article of amendment does, proprio vigore, substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right. In the case of United States v. Reese, this court said in regard to the fifteenth amendment, that it has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.' This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of Congress, is as necessary to the right of other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination. The exercise of the right in both instances is guaranteed by the Constitution and should be kept free and pure by Congressional enactments whenever that is necessary."

The authority of Congress to legislate upon the right of voting at state elections under the fifteenth amendment is limited to prohibitions against discriminations on account of race, color, or previous condition of servitude, by the United States, the states, and their officers or others claiming to act under color of laws which come within the prohibition of the amendment. It does not extend to punishment of individuals acting upon their own responsibility, and not under

color of law. The several states, notwithstanding the fifteenth amendment, have the power to deny the right of suffrage to any citizens of the United States on account of age, sex, place of birth, vocation, want of property or intelligence, neglect of civic duties, crime, or other cause not specified in the amendment.2

§ 257. The restrictive clauses of the Constitution, which have thus been passed under a rapid review, were intended to oppose an effectual barrier against any encroachments by the government upon the private rights of the citizen. Even the administration of justice in the ordinary procedure of the courts is made to lean strongly in favor of the accused. It has been thought better that the state should be unable to punish crimes in certain instances, than that the rulers should have the power through a perversion of judicial proceedings, to oppress and wrong the people. While we retain our love of civil liberty, while the blood of our Saxon ancestors yet runs in our veins, these safeguards will not be relaxed. They were wrested from the Crown by the people of England through generations of conflict. We inherited the benefits which our fathers had obtained; we shall not readily suffer them to be taken from us.

$258. But here a most important question presents itself. Do these restrictions apply with equal force, and under all circumstances, while the nation is operating by its military, rather than by its civil arm? Does a condition of internal war, and do the exigencies of military movements, ever discharge the government from the restraining effect of this Bill of Rights? Must arrests of citizens not in the military service be made in all instances upon special warrants? charges in all instances be preferred by grand juries? trials had in all instances by petit juries? Must due process of law be observed under all circumstances? These are questions which, as all know, have attracted much attention during the past six years. I do not purpose to consider them here, and shall postpone any examination of the subject until those chapters are reached 1 McKay v. Campbell, 1 Sawyer, 374. ED.

2 United States v. Amsden, 10 Bissell, 283. See United States v. Harris, 106 U. S. 629. ED.

which treat of the war powers of the government. It is sufficient now to refer to the late case of Ex parte Milligan,1 in which the Supreme Court of the United States expressed an opinion that partially covers these questions.

SECTION II.

IMPLIED LIMITATIONS.

§ 259. I come now to consider the second class of limitations upon the government, namely, those which are implied from the general nature of the government itself, and the design of the instrument by which it was created.

It is conceded by all that the government of the United States is one of limited powers; limited by the very nature and essence of its construction. It can wield only such attributes as are conferred upon it by the Constitution. Now the grants contained in the organic law are all expressed in the most general language; they do not descend to details; they do not assume to point out the means and methods by which the various powers are to be made operative. To illustrate: Congress is authorized "to regulate commerce with foreign nations." Nothing is said as to the meaning of the words "regulate" and "commerce," or as to the extent to which the regulation may be carried. All this is left to construction, and, as we have seen, it must be a judicial construction which is to settle the import of this and all other grants of power.

$260. Two schools of interpretation have existed among the statesmen and polititians of the country. The one has taught that a strict and close construction is to be placed upon all the grants of power contained in the organic law, so as to limit the government to those acts and means which are absolutely necessary to give force and operation to the grant. The other has maintained that the instrument is to be construed liberally, so as to enable the government to adopt any means which would fairly and reasonably conduce to make the grant of power operative; and that among such means the government 1 4 Wall. 2.

has an unrestricted choice, which cannot be limited by the judiciary. Those who have thus read the Constitution, assert that the powers of the government are full, complete, and absolute within the range of the subjects committed to its care; that it may adopt whatever means it prefers which may tend to give effect to the general provisions of the fundamental law; that among such means the selection is entirely a matter of policy and expediency, and not of constitutional power. No other question has been so vigorously debated, so fiercely contested as this. It has been at the bottom of most of the differences which have separated political parties from the adoption of the Constitution unto the present day.

§ 261. Still it cannot be denied that the practice of the government has been in accordance with the latter more liberal theory of construction. The Supreme Court of the United States has uniformly affirmed this view with the greatest emphasis, and applied it to cases of the highest importance. The tribunals of most of the states have followed the lead of the national judiciary, although some of them have adopted the opposing theory, and enforced it with great earnestness. The history of their legislation, and the character of their legislative acts, show beyond a cavil or doubt that the same method of interpretation has guided Congress in the discharge of their duties.

$262. A brief reference to a few examples of legislation will serve to illustrate and confirm the latter statement. The Constitution gives to the government the power to regulate commerce. A strict construction would restrain this function to the passage of such statutes as were absolutely necessary to the regulation; such as those relating to the registry and enrolment of vessels, the mutual rights and duties of owners, masters, and seamen, the government of ports and harbors, and the like. Yet, under this grant Congress has assumed to enact laws for the improvement of harbors, the construction of piers, the erection of an astronomical observatory, the conduct of a coast survey. It has invaded the common law by limiting the liability of carriers on the ocean and the great lakes; it has sent out expeditions to observe an eclipse, and to