erty, without due process of law, extends to the exercise of executive, legislative or judicial power, no matter by what officers or agent, or agency it be exercised, so it be by state authority. In that way is included the action of any subordinate division of a state, such as a municipal corporation. After referring to the words of Section I, of the Fourteenth Amendment the Supreme Court in Ex parte Virginia, 100 U. S. 339, said: "They have reference to the actions of the political body denominated the state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public positions under a state government, deprives another of property, life or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name of and for the state, and is clothed with the state's power, his act is that of the state. This must be so or the constitutional inhibition has no meaning. Then the state has clothed one of its agents with power to annul or to evade it."

The wrongful acts or proceedings of individuals simply constitute private wrongs, or crimes of individuals. Such acts when unsupported by state authority, do not fall within the purview of the amendment. In the case of Yick Wo v. Hopkins, 118 U. S. 356, involving the validity of a municipal ordinance of the City and County of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits "without having first obtained the consent of the board of supervisors, except the same be located in a building construed either of brick or stone, it was held that "Though the law itself be fair on its face

and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor, etc., of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ex parte Va., 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crowley." [113 U. S. 703.]

§ 127. Supreme Court of the United States as a supervising and annulling tribunal. An effort has been made heretofore to emphasize the fact that prior to the adoption of the Fourteenth Amendment the citizens of a state could rely for due process of law on the institutions of the state alone; and when such protection was denied the Federal Government had no right whatever to interfere. The original constitution guaranteed nothing more than a republican form of government in each state, and the right of the citizens of each state to all the privileges and immunities of citizens of the several states, a state of things in which private property might have been confiscated and vested rights divested by the states without the possibility of intervention by the Federal courts. Such courts possessed no authority to interfere with state action, executive, legislative or judicial, except in the case of bills of attainder or laws impairing the obligation of contract. The prohibition against ex post facto laws was limited strictly to criminal cases. In the words of Mr. Justice Field, employed in Bartemeyer v. Iowa, 18 Wall. 129, "Before this amendment (14) and the Thirteenth Amendment were adopted, the states had supreme authority over all these matters, and the National Government, except in a few particulars, could afford no protection to the individual against arbitrary and oppressive legislation. After the Civil war had Due Process-17

closed, the same authority was asserted, and, in the states recently in insurrection, was exercised to the oppression of the freemen; and towards the citizens of the North seeking residence there, or citizens resident there who had maintained their loyalty during the war for nationality, a feeling of jealousy and dislike existed which could not fail soon to find expression in discriminating and hostile legislation. It was to prevent the possibility of such legislation in future, and its enforcement where already adopted, that the Fourteenth Amendment was directed. It grew out of the feeling that a Union which had been maintained by such costly sacrifices was, after all, worthless if a citizen could not be protected in all his fundamental rights everywhere-North and South, East and West-throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose; it was intended to justify legislation, extending the protection of the National Government over the common rights of all citizens of the United States, and thus obviate objections to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It, therefore, recognized, if it did not create, a national citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government; and declared that their privileges and immunities, which embraced the fundamental rights belonging to citizens of all free governments, should not be abridged by any state."

In order to fill the vacuum thus described, as existing under the original constitution, was adopted the amendment in question which in the language of the Supreme Court (Hibben v. Smith, 191 U. S. 310, 325), "legitimately operates to extend to the citizens and residents of the

states the same protection against arbitrary state legislation affecting life, liberty and property as if offered by the Fifth Amendment against similar legislation by Congress." The result is that if the state fails to guarantee due process of law and the equal protection of the laws to citizens of the United States, as such, the Federal judiciary can supervise the performance of that duty in such a way as to vest the ultimate decision of every question, involving due process of law and the equal protection of the laws, in the Federal courts. But in the particular case the Federal court can only determine whether the state has failed in that duty; and, in that event, it can only declare the proceedings void. The vital question therefore in every case is whether or no the person who complains has been deprived by official state action of some right or immunity guaranteed to him by virtue of his national citizenship, considered as a thing separate and apart from his state citizenship, because it was settled at the outset "that there is a citizenship of the United States and a citizenship of the state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual.” Only the privileges and immunities that belong to a citizen of the United States as such are placed by the amendment under its protection; those belonging to the citizen of the states as such "must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment." The majority of the court who determined in the Slaughter House Cases, 16 Wall. 36, to confine the amendment within the narrowest possible limits determined so to limit the revolution wrought by it as to prevent a radical change of the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. It was therefore held in United States v. Cruikshank, 92 U. S. 542, that "The Fourteenth Amendment 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 furnished an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." And so it was said in Re Kemmler, 136 U. S. 436, that "The Fourteenth Amendment did not radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of the state. Protection to life, liberty, and property rests, primarily with the states, and the amendment furnishes an additional guaranty against any encroachment upon those fundamental rights which belong to citizenship, and which the state governments were created to secure." The internal sovereignty of the state thus remained so unimpaired that it could still exercise the sovereign rights of taxation, eminent domain, the police power, the administration of justice, in civil and criminal cases, with no restraint whatever so long as the guarantees in favor of the new national citizenship were not violated. It was also considered necessary so to limit the scope of the amendment as to prevent the Federal courts from being submerged under a mass of new litigation involving a review of nearly every transaction between the state and its citizens. Its framers had no idea of converting the Supreme Court of the United States into a general court of appeal with jurisdiction so wide and plenary as to enable it to review all cases involving the taking away of life, liberty and property when only questions of equitable consideration or broad ideas of justice are involved. That court remains as before a court not of general but special appeal with power to supervise under the amendment in question only when the official action of the state has violated either its provisions or those of some act of Congress passed in pursuance of it.

When the question involves only the conformity of the act with the constitution of a state, the decision of its