others not officers of the United States, as in the Siebold case, but this difference, the court held, had no bearing upon the constitutional power of the Federal Government to punish those interfering.

"The power in either case arises out of the circumstances that the function in which the party is engaged or the right which he is about to exercise is dependent on the laws of the United States. In both cases it is the duty of that government to see that he may exercise this right freely and to protect him from violence while so doing or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practised on its agents, and that the votes by which its members of Congress and its President are elected shall be the free votes of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice."

§ 241. Enforcement Clause of the Fifteenth Amendment.

By the second section of the Fifteenth Amendment Congress is given power to enact laws necessary for the enforcement of the prohibition expressed in the first section.

The federal authority thus granted, it is to be observed, has reference to all elections whether state or federal. In this respect it is thus much broader than that given in Section IV of Article I. In other respects, however, the power granted is much narrower, for it authorizes federal intervention only in cases where the right to vote has been denied or abridged on account of race, color, or previous condition of servitude. Thus in United States v. Reese an act of Congress which made it a crime to hinder, delay or restrict any citizen from doing any act to qualify him to vote or from voting at any election, was held void because its operation was not confined to cases in which the interference was on account of race, color, or previous condition of servitude.

$500 nor more than $5,000, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment."

29 92 U. S. 214; 23 L. ed. 563.

In James v. Bowman30 it was finally determined by the Supreme Court that the prohibition of the Fifteenth Amendment applied not to private but only to state action. Therefore the court held void an act of Congress which provided for the punishment of individuals who by threats, bribery or otherwise should prevent or intimidate others from exercising the right of suffrage as guaranteed by the Fifteenth Amendment.

After reviewing the manner in which the prohibitions of the Fifteenth Amendment had, by judicial construction, been held to relate to state action only, and the legislative power of Congress under the enforcement clause of that Amendment limited to the enactment of laws providing remedies against unconstitutional state action, the court in its opinion, say: "These authorities. show that a statute [of Congress] which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the Fifteenth Amendment upon Congress to prevent action by the State through some one or more of its official representatives." 31

§ 242. Disfranchisement Clauses of the Southern States.

As has been before adverted to, most, if not all, of the Southern States in which the negro population is very considerable, have, by means of constitutional amendments or in constitutions newly adopted, secured in effect the almost total disfranchisement of their colored citizens. This, however, has been done, not by disfranchisement provisions expressly directed against the negroes, but by requiring all voters to be registered, and placing conditions upon registration which very few negroes are able to meet, or, at any rate, to satisfy the registration officers that they do meet them.

If the courts may freely go behind the terms of a constitutional clause to discover its intent, and to construe it by that intent, or if it may test its validity by its actual operation in practice, it would seem that a possible opportunity is afforded for

30 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979.

31 In this case it is also held that “an indictment which charges no discrimination on account of race, color or previous condition of servitude, is likewise destitute of support by such Amendment."

holding void some at least of the disfranchising clauses of the constitutions of the Southern States. As yet, however, no case has been brought before the Supreme Court in which the court has consented to make this examination. As to the circumstances under which the court will consent to go back of the terms of a law, to determine its real intent and effect, two interesting cases are Yick Wo v. Hopkins and Williams v. Mississippi.33 In the former case the law or ordinance in question was held void in that it attempted to give to an administrative officer an arbitrary discretionary power, and also in that an actual arbitrary discriminating use of that authority was shown. In Williams v. Mississippi the court declined to hold void the state law in question, the law being upon its face not in violation of the equal protection clause of the Fourteenth Amendment, and no discrimination in fact being proved. In Yick Wo v. Hopkins the court say: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the Constitution." This doctrine, however, the court say in the Williams case is not applicable to the Constitution of Mississippi and its statutes. They do not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them."

In Giles v. Harris,34 decided in 1903, a colored citizen of Alabama brought an action in a federal court against the registrars of his county to compel them to register him as a voter, claiming that the provisions of the Alabama Constitution upon which the registrars based their refusal to register him were in violation of the equal protection clause of the Fourteenth Amendment and of the prohibition of the Fifteenth Amendment. The Supreme Court, to which the case finally came for adjudication, refused the relief 32 118 U. S. 356; Sup. Ct. Rep. 1064; 30 L. ed. 220.

33 170 U. S. 213; 18 Sup. Ct. Rep. 583; 42 L. ed. 1012. 34 189 U. S. 475; 23 Sup. Ct. Rep. 639; 47 L. ed. 909.

prayed, saying: "The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama Constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But, of course, he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If, then, we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists? If the sections of the Constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in section 1979 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged to be the conspiracy of a State, although the State is not and could not be made a party to the bill. (Hans v. Louisiana, 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.) The circuit court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged,

by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States." 35

In Giles v. Teasley,36 which was an action brought to recover damages against the board of registrars for refusing to register the plaintiff as a qualified elector of the State. The Supreme Court of Alabama held that if the provisions of the state constitution were repugnant to the Fifteenth Amendment they were void and the board of registrars appointed thereunder had no legal existence and had no power to act and would not be liable for a refusal to register the plaintiff; while on the other hand, if the provisions were constitutional the registrars acted properly thereunder and their action was not reviewable by the courts. The Supreme Court of the United States held that the Alabama court had not decided any federal question adversely to the plaintiff, and, therefore, that the Supreme Court had no jurisdiction to review the decision of the state court.

In Jones v. Montague,37 decided in 1904, the court declined to review the dismissal of a petition for a writ of prohibition to prevent the canvass of the votes cast at a congressional election (upon claim that the petitioners had, in violation of the federal Constitution, been denied registration) for the reason that the canvass had in fact been already made, and certificates of election issued to persons who had been recognized by the House of Representatives as members thereof. The court thus, in any event, not being able to provide any relief, the case became merely a moot one, and as such was dismissed.

In the light of the foregoing unsuccessful attempts to obtain from the Supreme Court relief from the operation of the disfranchising clauses of the state constitutions we have been considering, the question may properly be asked whether it is constitutionally possible for the Congress to provide by legislation means by which the constitutionality of these clauses may be fairly passed upon by the courts and the appropriate relief given. It would seem 35 Justices Harlan, Brewer, and Brown dissented. 36 193 U. S. 146; 24 Sup. Ct. Rep. 359; 48 L. ed. 655. 37 194 U. S. 147; 24 Sup. Ct. Rep. 611; 48 L. ed. 913.