(6) The power of a State to require negroes and whites to travel in separate coaches or compartments on passenger trains.1 Louisiana Statute, 1890, No. 111, popularly known as the Jim Crow Law.

(7) The color line in education. This has been presented to the Court in two aspects, namely: The power of a State, through the discretionary authority of its county officials, to suspend a negro high school while continuing to operate the high school for whites.2 Secondly, the power of a State to penalize an incorporated college for operating an institution in which both white and black pupils were received.3

(8) The exclusion of negroes from the grand and petit juries in the State courts. This phase of the question has been presented to the Supreme Court sixteen times.* In fourteen of these the defendant had been convicted of murder and in one of rape.

These eight groups of cases under the Fourteenth

1 Plessy v. Ferguson, 163 U. S. 537.

2 Cummings v. Board of Education, 175 U. S. 528.

3 Berea College v. Kentucky, 211 U. S. 45.

4 Strauder v. West Virginia, 100 U. S. 303 (1879); Virginia v. Rives, 100 U. S. 313 (1879); ex parte Virginia, 100 U. S. 339 (1879); Neal v. Delaware, 103 U. S. 370 (1880); Bush v. Kentucky, 107 U. S. 110 (1882); Andrews v. Swartz, 156 U. S. 212 (1894); Murray v. Louisiana, 163 U. S. 101 (1895); Gibson v. Mississippi, 162 U. S. 565 (1895); Charley Smith v. Mississippi, 162 U. S. 592 (1895); Williams v. Mississippi, 170 U. S. 213 (1897); Carter v. Texas, 177 U. S. 442 (1899); Tarrance v. Florida, 188 U. S. 519 (1902); Brownfield v. South Carolina, 189 U. S. 426 (1902); Rogers v. Alabama, 192 U. S. 226 (1903); Martin v. Texas, 200 U. S. 316 (1905); Thomas v. Texas, 212 U. S. 278 (1908).

Amendment are clearly of unequal importance and bear different relations to the actual problem incident to the presence of the negro race in our midst. The cases of the first group are now only of historical interest and bear no relation to the present situation. That avenue of activity under the Amendment has long been closed. The second and third groups containing one case each may be regarded as frivolous attempts at Federal intervention and may also be dismissed from consideration so far as the modern problem is concerned. Group four gains significance chiefly in relation to an alleged violation of the Fifteenth Amendment.

The remaining four groups come nearer to the real life of the races and express something of the conditions confronting them, involving as they do the following problems: Penalizing crime between the two races more heavily than between members of the same race; the color line in education; the Jim Crow Law; and the excluding of negroes from jury service. The chief phase of the Amendment which these questions involve is the clause which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

What may we say, then, has been the effect of the operation of the Amendment upon that race chiefly for whose benefit it was adopted? What has been its relationship to the Federal Government, what restraint has been placed upon the States, and lastly, what has it accomplished in positive results for the negro race?

As we have seen, the idea was quite prevalent at the time of the adoption of the Amendment, that its chief field of operation would be effective by virtue of direct, positive, and primary legislation by Congress in behalf of the negro race. In pursuance of this constitutional ideal, Congress began to legislate in this direction. The United States Supreme Court at an early stage of the operation of the Amendment declared all such legislation unconstitutional and beyond the power of the Federal Government. As a consequence the relationship of Congress to the Amendment has been for a long time clearly understood. It may be summed up as follows: The first section of the Amendment is a prohibitory measure, and the prohibitions therein expressed operate against the States only. They bear no relationship to the acts of private persons within the States. Section five goes only so far as to give Congress the power by general legislation to enforce these prohibitions. Congress may, within bounds, provide the modes of redress when a State has violated the prohibitions. Congress cannot enforce them against the States. The State must take the initiative in violating the Amendment; then, and then only, can the aggrieved party seek redress. And this not by an appeal to national laws, but by the complex, uncertain, and tortuous path through the courts of his State to the Supreme Court of the United States. Congress is limited to the matter of regulating the time, manner, and occasion of this appeal to Federal authority for

intervention. We see, therefore, that so far as the negro question is related to the Amendment, Congress may be eliminated as a vital factor. The Supreme Court is the only branch of the Federal Government which is competent to deal with the question, and that under conditions which render the Federal Government a minimum force in the practical solution of the negro race problem. So far as the Fourteenth Amendment is concerned, the Federal Government would be powerless to prevent armed mobs of whites from driving negroes out from a State, or otherwise threatening or intimidating them in their attempt to exercise the privileges of citizenship.

We next turn to consider in what manner and to what extent has the Supreme Court sustained or rejected petitions for Federal intervention in behalf of the negro race under the operation of the Amendment. As has been shown, there were twenty-eight such appeals to Federal authority. Twenty-two of these were decided adversely to the party aggrieved. The remaining six were decided in favor of Federal intervention to a limited extent.

The police power of a State to deal with the race question has been squarely before the Supreme Court only four times within the past forty years. One of these deals with the relation of the negro to the jury system. This we shall consider later. The definite results of the other three decisions involve only two principles, to wit: (1) A State has the power to inflict a severer punishment for the crime of adultery and

fornication between negroes and whites than it inflicts for the same crime between members of the same race.1 This involves the important principle of making distinctions in law on the ground of race or color. It violates no clause of the Fourteenth Amendment. To what extent this principle may be applied to the present situation has yet to appear. (2) A State has the power to separate the races one from the other in its school systems and on the passenger trains passing through its territory. As to the first, that of maintaining separate schools for black and white, the question as such has never been clearly before the Supreme Court and has, therefore, never been decided absolutely. In Cummings v. Board of Education 2 the question was discussed, but the record necessitated only that the Court decide that a State may, under certain circumstances, suspend temporarily a negro high school while continuing to operate the white high school in the same locality. In rendering the opinion of the Court, however, Mr. Justice Harlan pronounced the following dictum: "The education of the people in schools maintained by State taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land. We have here no such case to be determined."

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

2 175 U. S. 528.