protection of the laws, or the privileges or immunities of citizens of the United States, to persons of a particular race or skin, is not a breach of the guaranties of the Fourteenth Amendment which can be chastised or guarded against by the United States; and an indictment under a law passed by Congress for the prevention and punishment of such offences is unconstitutional, whether the conspirators are white men or negroes, and regardless of the race or color of the persons whom they design to injure.1

1 United States v. Cruikshank, 92 U. S. 551; see United States v. Harris, 106 U. S. 638. "The Fourteenth Amendment," said Waite, C.-J., in the case first cited, "prohibits a State from depriving any person of life, liberty, or property without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson in The Bank of Columbia v. Okely, 4 Wheaton, 244, it secures the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice.'

"The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States, and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens.' There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.

"The Fourteenth Amendment also 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

PUNISHABLE BY CONGRESS.

541

In these instances the restraint was laid, not on the community, but on the States or the General Government; and where an act or thing is absolutely forbidden, the prohibition is universal, and Congress may legislate for the purpose of carrying it into effect. The Thirteenth Amendment falls in the latter category, and may be enforced by declaring slavery a crime, and punishing every man who holds his fellows in bondage. The laws passed for this purpose must nevertheless be confined to such acts as are within the scope of the amendment; and if they go further, by attempting to do away with restrictions which, though unjustifiable, do not amount to servitude, will be merely void.1 Excluding a man capriciously, or on insufficient grounds, from a theatre, or denying him admission to certain compartments of a railway train, does not make him a slave, nor is it servitude in any sense that can be properly attached to the term.2

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." The United States v. Cruikshank, 92 U. S. 542.

1 United States v. Cruikshank, 92 U. S. 542; United States v. Harris, 106 U. S. 629, 638.

2 The provisions and scope of the Thirteenth and Fourteenth Amendments are different: the former simply abolished slavery; the latter prohibited the States from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment it has only to do with slavery and its incidents; under the Fourteenth Amendment it has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals,

What constitutes serfdom, as distinguished from slavery, is not easy to define; but a class may doubtless be reduced to servitude, though no person belonging to it is compelled to work without wages or against his will. Such a result might follow from the restrictions which conquering races have in all ages been apt to impose on the conquered; as, for instance, by subjecting them to summary trial and punishment for acts that would be innocent or venial if done by other men, forbidding them to be abroad after nightfall, to change their place of abode, or to proceed freely along the high-roads without a pass. Such were among the provisions of the so-called Black Code before emancipation, and that would, if enforced to-day, either by the customary or statutory law, contravene the spirit and letter of the Constitutional provision.1 So the restraints imposed by the associations which, in the name of the rights of labor, preclude the workman from choosing his employer or using his hands as a means of gaining his daily bread, except as they dictate, come so near the involuntary servitude forbidden by the Thirteenth Amendment that they might be abolished were Congress disposed to risk popularity for the love of freedom.

I may add that if the Act of April 20, 1871, is constitutional, the failure of a State to suppress associations formed to deprive classes or individuals by violent means of the rights guaranteed by the Constitution, may render the wrong so far her own that Congress may afford redress by appropriate legislation, or treat such a persistent interruption of the course of law as insurrection, and suspend the habeas corpus in the disturbed districts. Should the immigration induced by the artificial rate of wages consequent on the tariff continue unchecked, the dangers which threaten civilization in Europe may, before many years have passed, appear in an

whether sanctioned by State legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings." Civil Rights Cases, 109 U. S. 3, 23.

1 See Civil Rights Cases, 109 U. S. 3, 22, 36; The Slaughter-house Cases, 16 Wallace, 42, 57.

WITHIN THE THIRTEENTH AMENDMENT.

543

aggravated form in the United States, and Congress find themselves compelled to take the act of 1863 as a precedent, and pass stringent laws for the suppression of the secret and anarchical societies which the individual States are unable to control.1

1 The greed of capital tends to hasten the period when constitutional restraints will be unavailing, and the right of property may have to be maintained with the sword. So long as the emigrants to the United States were Norse, Germans, or Celts, or came from Great Britain, they were substantially of the stuff which went to make up the Englishman, and might in the second or third generation be absorbed into the bulk of the American people without prejudice. They were, moreover, above the average in energy and intelligence, and paid their way to America with the fruits of a thrift and industry which found an ample field in the country of their adoption. Now men of every race and the coarsest fibre are imported from every quarter of the globe, who work at half price, lower the tone of American life and manners, and in a country of universal suffrage soon become the dupes and tools of demagogues.

LECTURE XXV.

Ex post facto Laws and Bills of Attainder. Their Enactment within the Power of Parliament, but inconsistent with the Principle of Magna Charta as applied to all the Branches of Government in the United States.-Er post facto Legislation before the Constitution. - Extent and Meaning of the Constitutional Prohibition.-Difference between Ex post facto Laws and Bills of Attainder. - Laws inflicting on a Class Disfranchisement or Professional Disqualification. - The Legislature may regulate the Evidence or the Procedure, provided they do not impair the Rights of the Accused.- The Penalty may be diminished, but must not be aggravated. — What constitutes an Aggravation.— May extend the Period of Limitation while it is still running, but cannot deny the Accused its Protection after it has expired. — Effect of giving the Defendant a Choice between the Original and the Substituted Penalties.

THE subordination of the General and State Governments to organic laws enacted by the people in their sovereign capacity, permits the application of restraints which can have no place in countries where the government is absolute and wields the entire power of the State. Had the doctrine of Magna Charta that every man shall be tried by his peers

been adhered to, it would have precluded the dangerous practice of inflicting punishment legislatively by bills of attainder, which, used alternately as instruments of kingly power and weapons for the defence of liberty, were always arbitrary, and not infrequently unjust. Though fallen into disuse, they still form an integral part of the English Constitution, and may be applied at any time by Parliament, which may not only find the accused guilty of acts that have previously been defined as crimes, but proceed, ex post facto, to create the offence, convict the offender, and prescribe a new and unheard-of punishment which he had no reason to anticipate when the act was done. And it may also, without