to the number of those who believe in the necessity of a strong national government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states with powers for domestic and local government, including the regulation of civil rights-the rights of person and of property—was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the states, and to confer additional power on that of the Nation.”*

It is impossible to sustain the constitutionality of the Civil Rights Bill under the clause of the fourteenth amendment, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court of the United States, in the Slaughter House cases, has interpreted with clearness, force and accuracy, the principles of national jurisdiction established by this constitutional limitation. The United States can not interfere unless there is a denial by the state of equal protection of the laws to all citizens. The Supreme Court, in the case cited above, quoting from the XIVth amendment the words, "nor shall any state deny to any person within its jurisdiction the equal protection of the laws," says: "In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is difficult to give a meaning to this clause. The existence of laws in the state where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden." † But, "if, however, the states did not conform their

* 16 Wallace, 82. † 16 Wallace, 81.

laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a state that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of state oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands."*

In this connection we may remark that in no state has any law ever been passed in opposition to the XIVth and XVth amendments, by which, in the language of the opinion of the Supreme Court of the United States, "state oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands." The necessity for such a law as the Civil Rights Bill has not only never arisen, but on the contrary there are some of the states which have passed civil rights bills; but, as is always the case with laws founded neither in reason, policy nor necessity, we have yet to learn of the first case that has occurred in any court of any state where such a law existed.

It can not be made to appear that the legislature of any state has passed any law repugnant to the amendments adopted since the war. The constitutions of the Southern states are in accordance with these amendments, and their supremacy fully recognized, and laws in opposition to them would be deemed unconstitutional by a state court having due regard for the sanctity of a constitutional obligation. Then how clear it is, that in accordance with the opinion of the Supreme Court of the United States, if there is no discrimination against the negro as a class, there can be no constitutional authority nor power in Congress to pass the Civil Rights Bill.

*16 Wallace, 81.

Let it be conceded, in the language of the Supreme Court of the United States in the Slaughter House cases, that it is an enactment for the protection of the negro, yet the court has established the principle of legal as well as equitable jurisprudence on this point, and is committed to a legal view of the necessity of the act before it can pronounce in favor of the interference on the part of Congress by any legislation on the subject.

It has been said by those who advocated the passage of the Civil Rights Bill, that it involved and was designed to protect political rights. We can not see any force in the position. If parties are to be punished for the violation of political rights, they have the right of defense in the courts of law, for the violation of any law of the land. The act shows on its face that it was not considered as a political question,-indeed, we scarcely know what in a legal sense is a political question. The law prescribes penalties for its violation; and the national courts have special jurisdiction by its terms. It is not denied that the courts have no jurisdiction over political questions; but a statute inflicting a punishment for its violation, creates an offense against the law, and it ceases to be a political question and becomes altogether legal. In the case of Georgia v. Stanton, the court disclaimed the right to pass upon a political question. We will not discuss the distinctions between the judicial and political powers as adjusted under our system of jurisprudence.

*

There may be a partizan feeling moving the spirit of the law; in a legal sense we have nothing to fear from it, if the same feeling does not invade the bench. We maintain, how

ever, the power of the courts to hear and determine the constitutionalty of law, which is involved in the trial of any cause before them, whether criminal or civil.

In the case of the state of Georgia v. Stanton, Mr. Justice Nelson, delivering the opinion of the court, said: "By the second section of the third article of the constitution, the‘judicial power extends to all cases, in law and equity, arising under

*6 Wallace, 50.

the constitution, the laws of the United States,' etc., and as applicable to the case in hand, to controversies between a state and citizens of another state'-which controversies, under the judiciary act, may be brought in the first instance before this court in the exercise of its orginal jurisdiction, and we agree that the bill filed presents a case, which if it be the subject of judicial cognizance, would in form, come under a familiar head of equity jurisdiction, that is, jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another, where the danger, actual or threatened, is irreparable, or the remedy at law inadequate. But according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be the rights of person or property, not mere political rights, which do not belong to the jurisdiction of a court, either in law or equity.' We have before us

a law, involving rights of person and of property, and under the above decision no perversion of the law can make it a political offense. The case of Luther v. Borden† has been cited. In this case the Supreme Court decided "that the circuit court had no power to try and determine this question, which, so far as the United States was concerned, belonged to the political and not to the judicial powers." But when the constitutional rights of the state are invaded, and also the liberty of the citizen of the state, they cease to be political, and become legal questions of the very highest and most vital importance. There does not exist in the theory of our government, state and political, any such latent principle, as would lead to the exercise of unlimited power in any department of either government. The legislative, executive and judicial departments are of limited and defined jurisdiction; limited because defined. These are limitations which arise from the essential nature of free governments, which are necesarily established upon limited authority; upon implied reservations of individual rights, without which the social compact could not exist, which are not only respected by law, *16 Wallace, 75. †7 Howard, 1.

but by the principles of every government founded on an acknowledgement of human rights.

A very interesting case has been recently decided by the Supreme Court of the United States, at the October term, 1874. We have alluded to the Civil Rights Bill being against the spirit of the constitution, and as opposed to its object and purpose. In this case the court in examining into the extent of legislative power, not defined by the constitution, and the existence of rights in the people, which the legislative power can not take away, says: "It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nevertheless a despotism."*

It is true that there is a class of cases the decisions in which the last cited case is somewhat against, and may be considered to a certain extent overruling, like that for instance of Sharpless v. the Mayor, &c., 21 Pa. St. 147, 162, in which Black, C. J., said: "We are urged to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we can not do this; it would be assuming a right to change the constitution, to supply what we might conceive to be its defects, to fill up any casus omissus, and to interpolate into it whatever, in our opinions, ought to have been put there by its framers." This is the argument of Chief Justice Black in the above cited case, and it was decided in in accordance with these views. This case was decided in 1853, but there is, on the legal points therein, much conflict of authority. Sedgwick, in his valuable work on "The Construction of Statutory and Constitutional Law" (the first edition of *The Citizen's Saving and Loan Association of Cleveland v. The City of Topeka, 2 Cent. Law Jour. 156.