portance of the doctrine declared in the Civil Rights Cases is seer when the results that would have followed from a different construction of the Amendment are considered. If the Civil Rights Act had been held appropriate for enforcing the prohibitions of that article it would have been, as the court observes, difficult to set limits to the powers of Congress. With equal authority, that body would have the right to enact a detailed code of laws for the enforcement and protection of all the rights of life, liberty, and property, and itself to prescribe what should constitute due process of law in every possible case.1

13

It will have been noticed that the doctrine of the Civil Rights Cases depended in large measure upon the assertion that the prohibitions of the Fourteenth Amendment were directed exclusively against state acts, that is, acts authoritatively sanctioned by the States as such, or officially performed by their agents, and that they had not reference to the acts of private individuals. The doctrine had already been established in a line of cases decided prior to the Civil Rights Cases.

In Strauder v. West Virgina1 it was held that a state law which excluded negroes from jury service was unconstitutional as a denial to members of that race of the equal protection of the laws. In Virginia v. Rives" the question was not as to the existence of a state law excluding negroes from jury service, but as

13 As construed in the Civil Rights Cases it is to be noted that the federal legislative power granted by the Fourteenth Amendment is narrower than that granted by the enforcement clause of the Thirteenth Amendment. This distinction the court in its majority opinion in the Civil Rights Cases point cut in the following language: "This [Thirteenth] Amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legisla tion, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect, it abolished slavery and established universal freedom. Still legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the Amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part

of the United States."

14 100 U. S. 303; 25 L. ed. 664. 15 100 U. S. 313; 25 L. ed. 667.

to the administration of a law, not in terms discriminative, in such a way as to exclude negroes from juries. This suit was sought to be removed into the federal courts under the provision of section 641 of the Revised Statutes.16 Without deciding whether or not Congress had, under the enforcement clause of the Fourteenth Amendment, the power to grant relief in cases such as that presented by the petitioner, the Supreme Court held that the suit was not within the terms of the statute.

In Ex parte Virginia" a somewhat different state of facts was presented. Here there was no state law the constitutionality of which was questioned, but a judge of a state court charged by the law of that State with the duty of selecting jurors indicted in a federal court for excluding from the grand and petit jury list a certain individual because of his race or color, in violation of a provision of the Act of Congress of 1875. Upon a petition of the accused to the Supreme Court of the United States for a writ of habeas corpus or a writ of certiorari to bring up the record of the lower court in order that he might be dismissed, the Supreme Court denied the writs, holding, in effect, that this act of the judge, involving no necessary exercise of judicial discretion, and committed by him in his official capacity as judge, was an act of the State which he represented, and as such came within the prohibition of the Fourteenth Amendment. The opinion declares: "The prohibitions of the Fourteenth Amendment are addressed to the States. The constitutional Amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was

16 Sec. 641. "When any civil suit or criminal prosecution is commenced in any state court for any cause whatsoever against any person who is denied, or cannot enforce, in the judicial tribunals of the State, or in any part of the State where such prosecution is pending, any right secured to him by any law providing for the equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States, . . . such suit or prosecution may, upon the petition of each defendant, filed in said court at any time before the trial, or final hearing of the case, stating the facts, and verified by oath, be removed before trial into the next circuit court of the United States to be held in the district where it is pending."

17 100 U. S. 339; 25 L. ed. 676.

given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured. Such is the Act of March 1, 1875, 18 Stat. at L. 336, and we think it was fully authorized by the Constitution. We do not perceive how holding an office under

a State and claiming to act for the State can relieve the holder from the obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience.18

18 In this case Justice Field rendered a dissenting opinion, in which he assumed, in the first place, that so much of the Act of 1875 as attempted to regulate the selection of jurors in state courts was unconstitutional and void; in the second place, that the selection of jurors by the judge was a judicial act involving an exercise of discretion and judgment, and, therefore, not subject to enforcement in a particular manner by statute or mandamus, in any event; and, in the third place, that the right to serve as a juror is a political and not a civil right, and therefore not one, the equal enjoyment of which is secured to all by the Fourteenth Amendment. With reference to the purpose for which the war amendments had been adopted Justice Field said: "They do not, in terms, contravene or repeal anything which previously existed in the Constitution and those Amendments. Aside from the extinction of slavery, and the declaration of citizenship, their provisions are merely prohibitory upon the States; and there is nothing in their language or purpose which indicates that they are to be construed or enforced in any way different from that adopted with reference to previous restraints upon the States. The provision authorizing Congress to enforce them by appropriate legislation does not enlarge their scope, nor confer any authority which would not have existed independently of it. No legislation would be appropriate which should contravene the express prohibitions upon Congress previously existing, as, for instance, that it should not pass a bill of attainder or an ex post facto law. Nor would legislation be appropriate which should conflict with the implied prohibitions upon Congress. They are as obligatory as the express prohibitions. The Constitution, as already stated, contemplates the existence and independence of the States in all their reserved powers. . . . I cannot think I am mistaken in saying that a change so radical in the relation between the federal and state authorities, as would justify legislation interfering with the independent action of the different departments of the state governments, in all matters over which the States retain jurisdiction, was never contemplated by the recent Amendments. The people, in adopting them, did not suppose that they were altering the fundamental theory of their dual system of governments."

These general principles - that the prohibitions of the Amendment are upon the State and not upon individuals; that Congress has no primary and direct legislative authority to define and enforce the rights guaranteed by the Amendment; that the general "police powers are still possessed by the States; - have not been departed from by the court in subsequent cases. In Logan v. United States,19 decided in 1892, the court, after a review of previous adjudications, say: "The whole scope and effect of this series of decisions is that, certain fundamental rights, recognized and declared, but not granted or created in some of the Amendments to the Constitution, are thereby guaranteed only against violation or abridgement by the United States or by the States, as the case may be, and cannot, therefore, be affirmatively enforced by Congress against unlawful acts of individuals." The court, however, add the cautionary remark that "every right created by, arising under or dependent upon the Constitution of the

Some commentators have found difficulty in harmonizing the decision in Ex parte Virginia with that rendered in Virginia v. Rives. Thus, for example, Wise in his Treatise on American Citizenship, p. 205, says: "It is impossible to reconcile the decision in Ex parte Virginia with the others. . . . As they stand the two cases of Virginia v. Rives and Ex parte Virginia present an amusing line of demarcation. In Virginia v. Rives the misconduct of a sheriff in the method of summoning a jury was declared not to be the action of the State and to be remediable on appeal. In the case of Ex parte Virginia, decided on the same day, the misconduct of a judge in not summoning a proper jury was held to be the action of the State, remediable by the indictment of the judge although the State had done no wrong. The only legal principle to be deduced from the two decisions is that the boundary line between one officer who is the State and an officer who is not the State, lies somewhere between a sheriff and a judge.”

There is, however, no real incongruity in the cases, and Wise's difficulty arises from an imperfect understanding of the actual point decided in Virginia v. Rives. In that case, it was held, as we have seen, simply that the case did not come within the section 641 of the Revised Statutes, under which removal had been had from the state to the federal courts. Thus, in effect, all the court decided was, not that Congress had no power under the Fourteenth Amendment to punish or correct such an act as that of the sheriff complained of, but that it had not, in fact, so legislated. In Ex parte Virginia the act complained of was construed to be within the scope of the prohibitions of the Act of Congress of 1875.

19 144 U. S. 263; 12 Sup. Ct. Rep. 617; 36 L. ed. 429.

United States, may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution may in its discretion seem most eligible and best adapted to attain the object.”

See also in James v. Bowman,20 decided as late as 1903, the cases are re-examined and the principles declared in them fully approved.

Although by the decision in the Slaughter House and subsequent cases in the Supreme Court, the command laid upon the States to respect federal privileges and immunities has thus been shorn of all but declaratory significance, and the general police powers confirmed in the Commonwealths, the other prohibitions of the first section of the Fourteenth Amendment have been so construed by the Supreme Court as to give to the Federal Government a very extensive supervisory jurisdiction over state legislation which it did not possess prior to 1868. Whenever a claim has been made that a state law has worked a deprivation of life, liberty, or property without due process of law, or has resulted in a denial to any person of the equal protection of the laws, the federal courts have assumed jurisdiction and declared such statutes void. Illustrations of this federal supervisory power will appear throughout this treatise.

It is true that, in the Slaughter House Cases, the court declared, relative to the clause providing for the equal protection of the laws: "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," but this obiter dictum has been repeatedly overruled.

20 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979, as to the power of Congress to provide for the punishment of individuals interfering with, or conspiring to interfere with the exercise by others of rights created by or dependent upon the federal constitution or laws, see Ex parte Yarbrough, 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274; U. S. v. Waddell, 112 U. S. 76; 5 Sup. Ct. Rep. 35; 28 L. ed. 673; Motes v. U. S., 178 U. S. 458; 20 Sup. Ct. Rep. 993; 44 L. ed. 1150.