which would be a good indictment under the law if the law itself were valid, there is no intimation that the state of Tennessee has passed any law or done any act forbidden by the fourteenth amendment.

On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the state of Tennessee of the equal protection accorded them by the laws of Tennessee. As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the state or their administration by her officers, we are clear in the opinion that it is not warranted by any clause in the fourteenth amendment to the Constitution.

We are next to consider whether the thirteenth amendment to the Constitution furnishes authority for the enactment of the section. This amendment declares that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." "Congress shall have power to enforce this article by appropriate legislation."

It is clear that this amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subjected to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. Mr. Justice Swayne, in United States v. Rhodes, 1 Abb. (U. S.) 28; Mr. Justice Bradley, in United States v. Cruikshank, 1 Woods, 308. Congress has, by virtue of this amendment, declared, in Sect. I. of the act of April 9, 1866, c. 31, that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citi

zens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to none other.

not.

But the question with which we have to deal is, does the thirteenth amendment warrant the enactment of Sect. 5519 of the Revised Statutes? We are of opinion that it does Our conclusion is based on the fact that the provisions of that section are broader than the thirteenth amendment would justify. Under that section it would be an offence for two or more white persons to conspire, etc., for the purpose of depriving another white person of the equal protection of the laws. It would be an offence for two or more colored persons, enfranchised slaves, to conspire with the same purpose against a white citizen, or against another colored citizen who had never been a slave. Even if the amendment is held to be directed against the action of private individuals, as well as against the action of the states and United States, the law under consideration covers cases both within and without the provision of the amendment. It covers any conspiracy between two free white men against another free white man to deprive him of any right accorded him by the laws of the state or of the United States. A law under which two or more free white private citizens could be punished for conspiring or going in disguise for the purpose of depriving another free white citizen of a right accorded by the law of the state to all classes of persons-as, for instance, the right to make a contract, bring a suit, or give evidence-clearly cannot be authorized by the amend ment, which simply prohibits slavery and involuntary servitude.

Those provisions of the law, which are broader than is warranted by the article of the Constitution by which they are supposed to be authorized, cannot be sustained. Upon this question, United States v. Reese, 92 U. S. 214, is in point. In that case this court had under consideration the constitutionality of the third and fourth sections of the act of May 31, 1870, c. 114, now constituting Sects. 2007, 2008, and 5506 of the Revised Statutes. The third section of the

act made it an offence for any judge, inspector, or other officer of election, whose duty it was, under the circumstances therein stated, to receive and count the vote of any citizen, to wrongfully refuse to receive and count the same; and the fourth section made it an offence for any person by force, bribery, or other unlawful means, to hinder or delay any citizen from voting at any election, or from doing any act required to be done to qualify him to vote. The indictment in the case charged two inspectors of a municipal election in the state of Kentucky with refusing to receive and count at such election the vote of William Garner, a citizen of the United States, of African descent. It was contended by the defendants that it was not within the constitutional power of Congress to pass the section upon which the indictment was based. The attempt was made by the counsel for the United States to sustain the law as warranted by the fifteenth amendment to the Constitution of the United States. But this court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough not only to punish those who hindered and delayed the enfranchised colored citizen from voting, on account of his race, color, or previous condition of servitude, but also those who hindered or delayed the free white citizen. The court, speaking by the Chief Justice, said: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the gov

ernment.

"The courts enforce the legislative will, when ascertained, if within the constitutional grant of power. But if Congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and when called upon must, annul its encroachment upon the reserved rights of the states and the people." And the court declared that it could not limit the statute so as to

bring it within the constitutional power of Congress, and concluded: "We must, therefore, decide that Congress has not as yet provided by appropriate legislation for the punishment of the offences charged in the indictment." This decision is in point, and, applying the principle established by it, it is clear that the legislation now under consideration cannot be sustained by reference to the thirteenth amendment to the Constitution. There is another view which strengthens this conclusion. If Congress has constitutional authority under the thirteenth amendment to punish a conspiracy between two persons to do an unlawful act, it can punish the act itself, whether done by one or more persons. A private person cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offence against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault or murder. If, therefore, we hold that Sect. 5519 is warranted by the thirteenth amendment, we should, by virtue of that amendment, accord to Congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded. Thus, under a provision of the Constitution which simply abolished slavery and involuntary servitude, we should, with few exceptions, invest Congress with power over the whole catalogue of crimes. A construction of the amendment which leads to such a result is clearly unsound.

There is only one other clause in the Constitution of the United States which can, in any degree, be supposed to sustain the section under consideration; namely, the second section of Article IV., which declares that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." But this section, like the fourteenth amendment, is directed against state action. Its object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states. Paul v. Vir

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 enactment 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,1 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.