1999, 5508 and 5510, which embodied portions of the Civil Rights Act of 1866, the Enforcement Act of 1870, the Ku Klux Act of 1871, and the Civil Rights Act of 1875. The interpretation of all three of the War Amendments was involved, the Thirteenth being predominant. The defendants demurred to the indictment as presenting no Federal question. This was overruled and the defendants forthwith tried and convicted. Upon writ of error the Supreme Court reversed the District Court and remanded the cause with instructions to sustain the demurrer. The alleged offence having been committed by private persons was not within the jurisdiction of a Federal court. Harlan and Day, JJ., dissented. Decision against Federal intervention.

OCTOBER TERM, 1908

(25) Berea College v. Kentucky.1

Berea College, a Kentucky corporation, was indicted under section one of the Acts of Kentucky of 1904, Chap. 85, which provided that no person or corporation should operate any school or college in which persons of the white and the negro races were both received as pupils. The facts were undisputed, Berea College being such a mixed school. The only point in the case was the constitutionality of the above-mentioned law under the Fourteenth Amendment. The trial in the State court resulted in a conviction and fine. Upon being brought to the United States Supreme Court by writ of error, the case turned upon the point that the defendant was a corporation and not a person, and hence being a creature of the State was subject to its control in this particular. The question as to the power of the State to enforce the separation of the races in schools per se was not decided. Only that

1211 U. S. 45.

portion of the Act which referred to the restrictions on corporations was declared constitutional. The Supreme Court like other forces follows the line of least resistance. If a case be disposed of on a lesser point, the greater will not be decided. One cannot but admire the logic and ultimate justice of such a rule. Harlan, J., dissented. Decision against Federal intervention.

(26) Thomas v. Texas.1

The defendant, a negro, was indicted and arraigned on the charge of murder. He moved to quash the indictment on the ground that all negroes had been excluded from the grand and petit juries. No proof of discrimination was offered. The motion was overruled and the defendant tried, convicted, and sentenced to death. Upon writ of error the United States Supreme Court affirmed the decision of the State court on the ground aforementioned that discrimination will not be presumed. Decision against Federal intervention.

OCTOBER TERM, 1909

(27) Marbles v. Creecy.2

A requisition was issued by the Governor of Mississippi to the Governor of Missouri for the return of Marbles, a negro, who was charged with the crime of assault with intent to murder. He had fled to the State of Missouri. Upon being arrested in the latter State, by virtue of said requisition, he petitioned for a writ of habeas corpus in the United States Circuit Court, setting up the alleged fact that it was not possible that he could receive a fair trial should he be returned to the State of Mississippi, on account of his race or color. No proof was offered that such a state of affairs would 2 215 U. S. 63.

1 212 U. S. 278.

come to pass. The petition was denied by the Circuit Court. Upon appeal to the United States Supreme Court the decision was affirmed and the prisoner ordered to be surrendered. Decision against Federal intervention.

(28) Franklin v. South Carolina.1

Pink Franklin, a negro, shot and killed one Valentine, a constable, who was attempting to arrest him for the violation of a certain South Carolina statute. He was indicted for murder, tried, convicted, and sentenced to death. No negroes were on the juries. At the trial a motion was made to quash the indictment on this ground. No statement of race discrimination was made and no proof of such discrimination offered. Upon writ of error the Supreme Court of the United States affirmed the judgment of the State Court. Decision against Federal intervention.

These cases deal chiefly with the matter of the enforcement of the criminal laws of the Southern States. They stand out in striking contrast to the other phases of litigation under the Amendment both as to their infrequency and the character of questions involved.

1 218 U. S. 161.

CHAPTER VI

RESULTS TO THE NEGRO RACE

We may now consider what phases of the negro race question have become related to the operation of the Fourteenth Amendment since its adoption in 1868. In so doing it is well to bear in mind two facts: First, that the negro race has increased in numbers during the last forty years from nearly five1 to about ten millions, and that the social complexity of the AfroTeutonic situation has become intensified rather than diminished. Second, that litigation under the Fourteenth Amendment has steadily increased until within recent years it has engaged the attention of the Supreme Court of the United States more than has any other part of the Constitution, with the possible exception of the Interstate Commerce clause.

An analysis of the foregoing data reveals the fact that the negro race question has been presented to the Supreme Court under this Amendment in only eight different aspects, of varying degrees of importance. They may be stated as follows:

(1) The power of Congress to initiate under the Amendment direct and positive legislation in behalf of

1 The negro population by the census of 1870 was 4,880,009; by the census of 1910 it was 9,828,294.

'the negro as such. This had been attempted under the Enforcement Act of May 30, 1870, the Ku Klux Act of April 20, 1871, and the Civil Rights Act of February 27, 1875. This point was three times presented to the Supreme Court: once in 1875,1 once in 1883,2 and once as late as 1906.3

(2) The validity of a deed executed by a negro in Georgia in 1854, when by virtue of a Georgia statute of 1818-1819 negroes could not hold real property in that State. No Federal question was presented.*

(3) Habeas corpus proceedings to prevent the return by extradition of a negro from the State of Missouri to the State of Mississippi on the ground of probable race discrimination at the forthcoming trial in the latter State.5

(4) Two unsuccessful attacks by the same party on the suffrage clauses of the Constitution of Alabama of 1901. The Fifteenth Amendment was the predominant issue. 6

(5) The power of a State to impose a severer penalty in the case of adultery between negroes and whites than for the same crime between members of the same race." Code of Alabama, 1880, Section 4189.

146.

1 U. S. v. Cruikshank, 92 U. S. 542.

2 The Civil Rights Cases, 109 U. S. 3.

Hodges v. U. S., 203 U. S. 1.

Beatty v. Benton, 135 U. S. 244.

Marbles v. Creecy, 215 U. S. 63.

Giles v. Harris, 189 U. S. 475; Giles v. Teasley, 193 U. S.

7 Pace v. Alabama, 106 U. S. 583.