LAW, CONSTITUTIONAL 



477 



hand, are conditioned and dependent upon the discre- 

 tion of the elective or appointing power, whether that 

 be the people acting through the ballot, or one of the 

 departments of their government. The civil rights of 

 the individual are never to be withheld, and may be 

 always judicially enforced. The political rights which 

 he may enjoy, such as holding office and discharging 

 a public trust, are qualified because their possession 

 depends on his fitness, to be adjudged by those whom 

 society has clothed with the elective authority. The 

 thirteenth and fourteenth amendments were designed 

 to secure the civil rights of all persons, of every race, 

 color, and condition ; but they left to the States to 

 determine to whom the possession of political powers 

 should be intrusted. 



The great change made since the war in the 

 relations between the States and the General 

 Government, and the extent of the power taken 

 from State and given to Federal sovereignty, are 

 nowhere more strikingly shown than by the 

 interpretation given to the fourteenth amend- 

 ment by the Supreme Court, in the case of ex 

 parte Virginia, decided in 1879, and reported 

 in 100 United States Reports. The case grew 

 out of the indictment, in the United States 

 District Court, of Judge Coles, a Virginia 

 judgd, on a charge of excluding blacks from 

 the jury-lists made out by him. There was no 

 State statute disqualifying colored jurors. The 

 question raised was, whether Congress has any 

 authority to punish a judicial officer of a State 

 for his official acts. The court held that Con- 

 gress has this power, and the opinion goes to 

 the extent that the power extends to the pun- 

 ishment of any State officer for acts done in 

 violation of Federal laws, though such acts may 

 be in obedience to and required by State laws. 

 The change thus wrought in our constitutional 

 law may be illustrated by a comparison of this 

 doctrine with that affirmed by the same court, 

 in the case of the Commonwealth of Kentucky 

 against Dennison, the Governor of Ohio, de- 

 cided in 1860, and reported in 24 Howard's 

 Reports. In that case the court held that 

 neither Congress nor the Supreme Court of the 

 United States had the power to compel the chief 

 Executive of one State to deliver to the author- 

 ities of another a fugitive from justice. "In- 

 deed, such a power," said Chief-Justice Taney, 

 in delivering the opinion of the court, " would 

 place every State under the control and domi- 

 nation of the General Government, even in the 

 administration of its internal concerns." The 

 enlarged powers which the court now holds to 

 be in Congress are derived, in the opinion of 

 the court, from that clause of the fourteenth 

 amendment which declares that " no State 

 shall make or enforce any law which shall 

 abridge the privileges or immunities of citizens 

 of the United States, . . . nor deny to any 

 person within its jurisdiction the equal protec- 

 tion of the law." As to the purpose and effect 

 of this clause the court was divided in opinion. 

 Two of its nine members maintained that the 

 prohibition extended only to the Legislature, 

 and applied only to legislation ; and hence that 

 it gave Congress no authority over the execu- 

 tive and judicial departments of a State. Jus- 



tice Hunt did not sit in the case. The other 

 six justices, constituting the majority of the 

 court, held, in the language of Justice Strong, 

 who wrote the opinion, that the prohibitions 

 '* have reference to the actions of the political 

 body denominated a State, by whatever instru- 

 ments or in whatever modes that action may 

 be taken. A State acts by its Legislature, its 

 Executive, or its judicial authorities. It can act 

 in no other way. The constitutional provision, 

 therefore, must mean that no agency of the 

 State, or of the officers or agents by whom its 

 powers are exerted, shall deny to any person 

 within its jurisdiction the equal protection of 

 the laws. W hoever, by virtue of public position 

 under a State government, deprives another of 

 property, life, or liberty, without due process 

 of law, or denies or takes away the equal pro- 

 tection of the laws, violates the constitutional 

 inhibition; and as he acts in the name and for 

 the State, and is clothed with the State's power, 

 his act is that of the State. This must be so, 

 or the constitutional prohibition has no mean- 

 ing. Then the State has clothed one of its 

 agents with power to annul or to evade it " 

 (Ex parte Virginia, 100 U. S. Reports, 346, 347.) 



This view was combated by Justice Field, in 

 a dissenting opinion, in which Justice Clitford 

 concurred. " As the State," said Justice Field, 

 "in the administration of its government, acts 

 through its executive, legislative, and judicial 

 departments, the inhibition applies to them. 

 But the executive and judicial departments 

 only construe and enforce the laws of the 

 State ; the inhibition, therefore, is in effect 

 against passing and enforcing any laws which 

 are designed to accomplish the ends forbidden. 

 If an executive or judicial officer exercises 

 powers with which he is not invested by law, 

 and does unauthorized acts, the State is not 

 responsible for them. The action of the judi- 

 cial officer in such a case, where the rights of a 

 citizen under the laws of the United States are 

 disregarded, may be reviewed or corrected or 

 reversed by this court. It can not be imputed 

 to the State, so as to make it evident that she, 

 in her sovereign or legislative capacity, denies 

 the rights invaded, or refuses to allow their 

 enforcement. It is merely the ordinary case 

 of an erroneous ruling of an inferior tribunal. 

 Nor can the unauthorized action of an execu- 

 tive officer, infringing upon the rights of the 

 citizen, be taken as evidence of her intention 

 or policy, so as to charge upon her a denial of 

 such rights." (Virginia against Rives, 100 U. 

 S. Reports, 333, 334.) 



"Nothing, in my judgment, could have a 

 greater tendency to destroy the independence 

 and autonomy of the States, reduce them to 

 a humiliating and degrading dependence upon 

 the central Government, engender constant ir- 

 ritation, and destroy that domestic tranquillity 

 which it was one of the objects of the Constitu- 

 tion to insure, than the doctrine asserted in this 

 case that Congress can exercise coercive author- 

 ity over judicial officers of the States in the dis- 



