Why not? It is objected that Congress has no power to enforce state laws or punish state officers, especially has no power to punish them for violating the laws of their own State. As a general proposition this is, undoubtedly, true; but when, in the performance of their functions, state officers are called upon to fulfil duties which they owe to the United States as well as to the State, has the former no means of compelling such fulfilment ? Yet that is the case here. It is the duty of the States to elect Rep resentatives to Congress. The due and fair election of these Representatives is of vital importance to the United States. The Government of the United States is no less concerned in the transaction than the state government is. It certainly is not obliged to stand by as a passive spectator, when duties are violated and outrageous frauds are committed. It is directly interested in the faithful performance, by the officers of elections, of their respective duties. Those duties are owed as well to the United States as to the State. This necessarily follows from the mixed nature of the transaction, state and national. A violation of duty is an offense against the United States, for which the offender is justly amenable to that government. No official position can shelter him from this responsibility.. In view of the fact that Congress has plenary and paramount jurisdiction over the whole subject, it seems almost absurd to say that an officer who receives or has custody of the ballots given for Representatives owes no duty to the National Government which Congress can enforce; or that an officer who stuffs the ballot box cannot be made amenable to the United States. If Congress has not, prior to the passage of the present laws, imposed any penalties to prevent and punish frauds and violations of duty committed by officers of election, it has been because the exigency has not been deemed sufficient to require it, and not. because Congress had not the requisite power. The objection that the laws and regulations, the violation of which is made punishable by the Acts of Congress, are state laws and have not been adopted by Congress, is no sufficient answer to the power of Congress to impose punishment. It is true that Congress has not deemed it necessary to interfere with the duties of the ordi

nary officers of election, but has been content to leave them as prescribed by state laws. It has only created additional sanctions for their performance, and provided means for supervision in order more effectually to secure such performance. The imposition of punishment implies a prohibition of the act punished. The state laws which Congress sees no occasion to alter, but which it allows to stand, are in effect adopted by Congress. It simply demands their fulfilment. Content to leave the laws as they are, it is not content with the means provided for their enforcement. It provides additional means for that purpose; and we think it is entirely within its constitutional power to do so. It is simply the exercise of the power to make additional regulations."

In Ex parte Clarke and Ex parte Yarbrough the doctrine declared in Siebold's case is reaffirmed, the court saying in the latter case, "If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the General Government, it must have the power to protect the elections from violence and corruption."

In the Yarbrough case the law of 1870 was held to support an indictment charging a conspiracy to intimidate a citizen of African descent from voting.28 The parties interfered with some

26 100 U. S. 399; 25 L. ed. 715.

27 110 U. S. 651; 4 Sup. Ct. Rep. 152; 28 L. ed. 274.

28" Rev. Stat., § 2208. If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States or because of his having so exercised the same, or if two or more persons go in disguise on the highway or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years; and shall, moreover, thereafter be ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States."

§ 5520. If two or more persons in any State or Territory conspire to prevent by force, intimidation or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy, in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of the Congress of the United States; or to injure any citizen in person or property on account of such advocacy; each of such persons shall be punished by a fine of not less than

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. Reese9 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.”

32

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; 6 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.