Page:Harvard Law Review Volume 2.djvu/387

 £.BGAL ASPECT OF THE SOUTHERN QUESTION. 369

acts of a State. This puts a wide, but perhaps a. not too wide, construction upon the amendments.

Although the constitutional prohibitions rest only upon a State, yet they may be enforced by the punishment of any individual who acts under color of State authority.

Senator Sherman, in the debate in 1870, on the passage of the Enforcement Act, probably stated the case correctly when he said, " If the offender, who may be a loafer, the meanest man in the streets, covers himself under the protection or color of a law or regulation or constitution of a State, he may be punished for doing it." 1

But suppose the State is unable or neglects to protect the civil rights of citizens ; shall that be deemed a denial of those rights ^ It was so declared in the Militia Act,^ before cited. Perhaps it is not too great a stretch to call this a denial, but it is very doubtful. Another view which extends still farther the scope of the amend- ment is that " State '* means all those who act as agents of the State, whether they keep within their powers or exceed them.^ This is not the accepted view.

It is not necessary for Congress to wait for legislative or other acts by a State obnoxious to the constitution ; but provision may be made for them in advance.*

Several other statutes must be mentioned. They relate mainly to certain conspiracies. Conspiring or going in disguise on the highway or on the premises of another, under color of State authority, for the purpose of depriving any one of the equal pro- tection of the laws or of interfering with the right to advocate or vote for President, Vice-President, or representative, renders the offender liable, to the party injured in a civil action.^ Under principles already stated, this statute seems constitutionally sound. Not as much can be said of the statute^ which makes it criminal to conspire or go in disguise as above for the purpose of depriving any one of the equal protection of the laws, or of equal privileges and immunities under the laws, or of preventing the State authori-

iCong. Globe, 1869-70, p. 3663.

« Act Apr. 20, 1871, c. 22, § 3; Rev. St., § 5299. •


 * United Stotes v. Reese, 2 Otto, 214, 251, 252, per Hunt, J.

Rives, icx> U. S. 313, 318; United SUtes v, Cruikshank, 92 U. S. 542.
 * Civil Rights Cases, 109 U. S. 3, 13; Ex parte Virginia, 100 U. S. 339; Virginia x'.

•Rev. St., §55 «9.
 * Rev. St., § 1980,