Page:Popular Science Monthly Volume 23.djvu/684

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any law "which shall abridge the privileges and immunities of citizens of the United States," or denying "to any person within its jurisdiction equal protection of the law." This amendment required congressional legislation to carry it into effect. It did not provide for its own execution. To give effect to the amendment, the famous Civil Rights Bill was passed in 1870, which is referred to in the opinion of the court.

In November, 1881, Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4,189 of the code of Alabama, and were convicted, and each sentenced to two years' imprisonment in the penitentiary. The State Supreme Court having affirmed the sentence, Pace sued out a writ of error to the Supreme Court of the United States. After full argument, through Mr. Justice Field, its organ, that court said: "The counsel of the plaintiff in error compares sections 4,184 and 4,189 of the code of Alabama, and assuming that the latter relates to the same offense as the former, and, prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a State from denying to any person within its jurisdiction the equal protection of the laws.

"The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating State legislation against any person or class of persons.

"Equality of protection under the law implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of Congress in the enactment of the Civil Rights Act of May 31, 1870, chap. 114, after the adoption of the amendment. That act, after providing 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 person and property as is enjoyed by white citizens, declares in section 16 that they "shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

"The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense, for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person.