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368

HAR YARD LA W RE VIE W.

number of cases, chief among which are United States v, Reese * and United States v, Cruikshank.^ In the first case an indictment was found under the 3d and 4th sections against inspectors of a municipal election in Kentucky, for refusing to receive and count the vote of a United States citizen of African descent. It was held that these sections were unconstitutional, because they were not expressly limited to operate upon discriminations on account of race, color, or previous condition of servitude; for the only right given by the United States, with reference to voting, is the right to exemption from such discrimination by a State. Practically the same reason operated to make an indictment defective in United States v, Cruikshank. There, an indictment was found under the 6th section for intent (among other things) to prevent citizens from voting at a State election, and to put certain per- sons in fear of great bodily harm because they had previously voted at a State election. No interference with a right under federal protection was described ; and even if an interference on account of color might be shown, it was not charged that the offence was committed under the authority of the State.*

It has been said that infringements of the right to vote must be by a State, in order to come within the XlVth and XVth Amend- ments. In federal elections, as has been seen, wrongful acts of individuals may be prevented by Congress, because of the general power over such elections given by art. I., sect. 4, of the Constitu- tion. But what is meant by State" in the XlVth and XVth Amendments ? Are the doings of a State officer or the decisions of the courts the acts of the States } Or, is the prohibition directed solely against legislation } It would seem that the view stated in the ** Civil Rights Cases *' is the correct one. Speaking of civil rights in general, the court say that " civil rights, such as are guar- anteed by the Constitution against State aggression, cannot be impaired by the wrongful act of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive pro- ceedings.** * Acts done under color of State authority are, therefore>

��1 2 Otto, 214 (1875).

  • 2 Otto, 542 (1875).
  • For this reason, the 5th section also of the Enforcement Act, protecting the exercise

of the rights of suffrage guaranteed by the XVth Amendment, seems unconstitutional,, because it is aimed at individuals, not States.

  • 109 U.S. 3, 17.