which was in 1857), remarks on the opinion of Black, C. J.: "In this conflict of opinion we can not safely pronounce the question settled on authority; but I think as a matter of reason, that we may safely hold that the legislature is to confine itself to its function of making laws." Pomeroy sustains the views of the author.* But since this edition of Sedgwick, edited by an able and distinguished jurist, the weight of the authority of the Supreme Court has been thrown on the side of Sedgwick's well defined position. We allude to the decision of the Supreme Court of the United States, cited supra, "The Citizens Saving and Loan Association &c., v. City of Topeka," delivered February 9th, 1875, from which we make the following quotation: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments—implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name." This is an able and comprehensive opinion, and we are pleased to cite it in support of that wise and just principle in our national jurisprudence which embraces as a constitutional doctrine the spirit, purpose, and intent of that instrument-the constitution of the United States-which, as a compact between the states, as it limits the powers of the national government, and as it protects the person and property of the citizen, whether as a citizen of the state, or of the United States, gives him also the right of the protection of the laws of his state, and as a citizen of such state.

The Civil Rights Bill of the last Congress finds no constitutional support from the Fourteenth Amendment. "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."

*See page 159, Pomeroy's ed. 1874.

There is no state law which makes any discrimination in favor of any person which can by possibility be construed to be embraced in the Civil Rights Bill; and to compel the hotel keeper, conductor of a railroad car, captain of a steamboat, or any of the class of persons embraced in the first section of the act, to receive or carry any person on any railroad or steamboat against the will or interest of the party having control of the hotel, etc., would be violative of the Fourteenth Amendment, by denying to such persons "the equal protection of the laws," as respects their persons and property.

Hon. H. H. Emmons, Judge of the U. S. Circuit Court, in his charge to the grand jury at Memphis, has very forcibly and clearly discussed and illustrated the principles advocated in this article, and we here insert a quotation from his celebrated opinion. The learned judge is commenting upon the Slaughter House cases, to which we have previously made reference, and expresses himself as follows:

The first proposition, that the power of Congress was not called into action under this clause, until the state, through its political power, had violated its provisions, by passing, or attempting to enforce some law, obtained the unanimous consent of every member of the court. We do not understand that this is anywhere questioned. This legislation, therefore, when no such exigency has occurred, is without authority, and it is our duty, for this reason, to advise you not to find an indictment for a violation of its provisions.

The second proposition, affirmed by a majority of the court, just as conclusively establishes the invalidity of this law. The character of the wrong done that of excluding a citizen from a hotel and a theatre-is not such as Congress has any right to punish. They, say the supreme court, are violations of such rights as attach to a citizen of a state, and do not belong to those which he enjoys as a citizen of the United States. It is this latter limited class of rights only which the Fourteenth Amendment protects. Within this judgment, therefore, there is no power of federal legislation to provide penalties for the violation of any privilege, save the few which are enjoyed peculiarly under the federal constitution. The right to go from state to state, to visit the capital, and other national privileges, Congress may protect. All others, among which are the rights claimed to have been infringed in the present instance, are beyond its control. For this additional reason the law which attempts to protect them is void for the want of power in the body which passed it. The Slaughter House cases were well calculated to have elicited a different judgment, if the court had not felt constrained upon principle to

decide as it did. A state law had substantially interfered with the trade and calling of large class of citizens. Every butcher and dealer in meats over a widespread territory was compelled to pay an onerous tribute to a single corporation. But their right to carry on a trade, to acquire and dispose of property, was held not to come within the protection of the Fourteenth Amendment. There was no middle ground for the court; they must hold, either that it completely revolutionized the whole theory of our government, and transferred to federal control all those rights hitherto alone protected by state laws; or hold, upon the other hand, that it referred only to the few privileges secured by the national constitution. That court, in the same volume, applied the same principle where a woman in Illinois was rejected as an applicant for admission to the bar. It again decided that such right was not one of the immunities protected by the amendment. In 18 Wallace, a state law having deprived a citizen of the right to sell what he owned and possessed, it held that the selling of property was a privilege and immunity protected by state laws and constitutions only, and was not protected by this clause.*

The provision of the Fourteenth Amendment that "no state shall deny to any person within its jurisdiction the equal protection of the laws," does not call for much discussion. It does not of itself confer any right or privilege. It is a formal declaration of the great principle that has been justly said to pervade and animate the whole spirit of our constitution of government, that all are equal before the law;†-a principle, nevertheless, which must needs be applied with some reserve and caution. "When it comes to be applied," says the same eminent authority, "to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions, and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security. What those rights are to which individuals, in the infinite variety of circumstances by which they are surrounded in society are, entitled, must depend upon laws adapted to their respective relations and conditions."

* 2 Central Law Journal, 216.

†Shaw, C. J., in Roberts v. Boston, 5 Cush. 206.

But there may be discriminations between classes of persons when reasons exist which make them necessary or advisable; there can be none based upon grounds purely arbitrary.*

It is a settled constitutional principle that color or race is no badge of inferiority, and no test of capacity to participate in the government, and the Fourteenth Amendment is our authority for maintaining the position; and this is the utmost limit to which eminent American law-writers have gone, among whom we are pleased to mention Judge Cooley.

Is not the Civil Rights Act unequal and partial? If so, for that reason we have high authority for opposing it on constitutional grounds. "But a statute would not be constitutional which should prescribe a class or a party for opinion's sake, or which should select particular individuals from a class or locality and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt." This principle of law is strictly applicable to the act under consideration, which, without the sanction of the constitution, seeks to engraft a system of legislation upon our jurisprudence which is opposed to all rules of justice, of expediency, as well as of natural rights, of those natural rights which the most eminent law-writers have contended should be protected. For example, Blackstone says: "The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be the most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists principally in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the

*Story on the Constitution, Book 3, Chap. XLVII., Cooley's ed., 28 1960, 1961.

† Cooley Con. Lim. pp. 390, 391. The learned author also cites the cases, Baltimore v. State, 15 Md. 468; Teft v. Teft, 3 Mich. 617; Lin Sing v. Washburn, 20 Cal. 534.

gifts of God to man at his creation, when he endowed him with the faculty of free will."*

Facultas ejus, quod cuique facere libet, nisi quid vi aut jure prohibetur.†

Burlamaqui defines natural liberty as the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights of other men.‡ "Liberty of social man consists in the protection of unrestrained action in as high a degree as the same claim of protection of each individual admits of or in the most efficient protection of his rights, claims, interests, as a man or citizen, or of his humanity manifested as a social being."S "That government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body without any restraint. The fundamental maxims of a free government seem to require that the right of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them-a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong direct expressions of such intention."||

We have endeavored to show that the constitution, before the adoption of the Fourteenth Amendment, would not authorize the passage of the Civil Rights Law; that it is in violation of the Fourteenth Amendment, and that it is repugnant to the spirit of the constitution, as well as the fundamental

? Lieber, Civil Liberty and Self-Government.

Mr. Justice Story, Wilkinson v. Leland, 2 Pet. 657, 658.