right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment.

The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.

We must not forget that the province 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, and the powers of Congress under them 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, 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.

The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, 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? Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horsestealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to another. 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.

Now, conceding, for the sake of the argument, that the admission to an inn, a public conveyance, or a place of public amusement, on equal terms with all other citizens, is the right of every man and all classes of men, is it any more than one of those rights which the States by the Fourteenth Amendment are forbidden to deny to any person? And is the Constitution violated until the denial of the right has some State sanction or authority? Can the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears?

After giving to these questions all the consideration which their importance demands, 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. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and in accordance with it.

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by force of the Fourteenth and Fifteenth Amendments.

On the whole we are of opinion, that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned.

This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis & Charleston Railroad Company, the judgments must be affirmed. In the other cases, the answer to be given will be that the first and second sections of the Act of Congress of March 1st, 1875, entitled "An Act to protect all Citizens in their Civil and Legal Rights," are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered.1

[HARLAN, J., gave a dissenting opinion.]

1 Compare The Civil Rights Bill, Hughes, 541 (1875), Younger v. Judah, 111 Mo. 303 (1892). ED.

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 9, 1886, which affirmed a judgment of the Court of Sessions of Chenango County, entered upon a verdict convicting defendant of a misdemeanor. (Reported below, 42 Hun, 186.)

The substance of the indictment and the material facts are stated in the opinion.

E. H. Prindle, for appellant.

George P. Pudney, for respondent.

ANDREWS, J. Section 383 of the Penal Code declares that "no citizen of this State can, by reason of race, color, or previous condition of servitude, be excluded from the equal enjoyment of any accommodation, facility, or privilege furnished by innkeepers or common carriers, or by owners, managers, or lessees of theatres or other places of amusement, by teachers and officers of common schools and public institutions of learning, or by cemetery associations." The violation of this section is made a misdemeanor, punishable by fine of not less than fifty nor more than five hundred dollars.

The defendant and one Scott, in the year 1884, were the owners and proprietors of a skating-rink in the village of Norwich, in this State, erected in that year upon their own lands. Prior to June 13, 1884, they announced, through the public press and otherwise, that the rink would be opened on the evening of that day, and they arranged with the "Apollo" Club, of Binghamton, to attend the opening to give an exhibition of roller-skating, the profits of the entertainment to be divided between the club and the proprietors of the rink. Tickets of admission were sold on the evening in question by the agents of the proprietor, at the office on the premises, but persons who had not procured tickets were admitted on payment of the charge for admission at the door. Several hundred persons attended the exhibition. During the evening three colored men made application to purchase tickets at the office where tickets were sold, but the agents of the proprietors, having charge of the sale, acting in accordance with the instructions of the defendant, refused to sell them tickets, because they were persons of color, and they were so informed at the time. The defendant was indicted under the section of the Penal Code above quoted, the indictment alleging, in substance, that the defendant, being one of the owners of a skatingrink, a place of amusement, did, on the day named, exclude from said skating-rink, and from the equal enjoyment of any and all accommodation, facility, and privilege of said skating-rink, George F. Breed, William Wyckoff, Charles Robbins, and others, all being citizens of the

State, by reason of race and color, etc. The objection is now taken that the indictment is defective, in substance, in not averring the means by which the exclusion of the persons mentioned was effected. The objection is untenable. The indictment follows the statute, and it was not necessary to aver, with any greater particularity than was used, the circumstances constituting the offence. People v. West, 106 N. Y. 293. Nor is there any force in the suggestion that proof of a refusal to sell to the colored men tickets of admission at the office did not support the allegation that they were excluded from the rink. The defendant provided tickets as evidence of the right of persons having them to admission. He refused to furnish this evidence to the persons named in the indictment, which was furnished to all others who applied, placing the refusal on a ground which justified the applicants in supposing, and the jury in finding, that the defendant thereby intended to exclude them, and did thereby exclude them, from the rink.

The real question in the case arises upon the contention of the counsel for the appellant that the statute upon which the indictment is founded, so far as it undertakes to prescribe that the owner of a place of amusement shall not exclude therefrom any citizen by reason of race, color, or previous condition of servitude, is an unconstitutional interference with private rights, in that it restricts the owner of property in respect to its lawful use, and as to an incident which is not a legitimate matter of regulation by law.

The legislation in question is not without precedent. The Act of Congress of March 1, 1875, entitled "An Act to protect all Persons in their Civil Rights" (18 U. S, Stať. at Large, 335), contains a section identical in import with section 383 of the Penal Code, except that it is still broader in its scope, and secures, not to citizens only, but to all persons within the jurisdiction of the United States, the equal enjoyment of the accommodation, advantages, facilities, and privileges of "inns, public conveyances on land and water, theatres, and other places of public amusement, subject only to the limitations established by law, and applicable to citizens of every race and color, regardless of any previous condition of servitude." The Civil Rights Act of Mississippi, passed February 7, 1873, contains a similar provision. In Louisiana, the matter is made the subject of a constitutional enactment, ordaining that all persons shall enjoy equal rights and privileges, etc., in every place of public resort;" and this was supplemented by Acts of the Legislature of Louisiana, passed in 1870 and 1871.

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It is not necessary, at this day, to enter into any argument to prove that the clause in the Bill of Rights that no person shall be deprived of life, liberty, or property without due process of law" (Const. art. 1, § 6), is to have a large and liberal interpretation, and that the fundamental principle of free government, expressed in these words, protects not only life, liberty, and property, in a strict and technical sense, against unlawful invasion by the government, in the exertion of governmental power in any of its departments, but also protects every