life impossible, the weaker and less favored race must inevitably and in the nature of things take the place assigned to it by the stronger and dominant race. The Republican Party, which controlled all branches of the government after the War, might have made the negroes wards of the nation, putting them into a position similar to that occupied by the American Indians. They, especially at that time, needed the protecting arm of the Federal Government thrown around them. this system of sympathetic tutelage the African might have been led to develop whatever latent powers that may be inherent in his race. To-day he can truly raise the cry that many of the doors of opportunity are closed to him.

Under

As it now stands, the negro must look to his State for protection. He must take his chances along with the other citizens. If in the unequal struggle he fails to gain for himself the full fruits of citizenship, there is no recourse left to him. The strongest point in his favor is that he is human and his long sojourn in the midst of a naturally kind-hearted people has brought about certain tacit understandings and adjustments, the written Constitution to the contrary notwithstanding.

CHAPTER VII

FEDERAL INTERVENTION

It is not the purpose of this chapter to enter into a discussion of the philosophy of the relation of the States to the Federal Government, nor to give an exhaustive treatment of the cases here cited. It is proposed to show in outline the development and trend of the operation of the Fourteenth Amendment in its direct and positive restraint upon the several States within the past forty-three years. The attempt is made to set forth the different spheres of State activity affected and the various classes of laws which have been annulled in whole or in part.

From the time of the adoption of the Fourteenth Amendment in 1868 to the close of its last term, the Supreme Court of the United States has handed down six hundred and four opinions under that article of the Constitution. Of these applications for Federal intervention by way of restraining or annulling State action, only fifty-five were decided adversely to the States that is to say, about nine per cent.

The accompanying chart reveals something of the history and the trend of these instances of intervention.

21231122123

21

212

1897

1898

1899

1900

1901

Total.. 55 4 32 9 11 36 16 8 13 8 31 39 6 42 25 35 16 4

Prior to 1885 there were four such cases, each of which involved the negro race question. These grew out of the problems of the Reconstruction. Since 1886 there have been only two cases of intervention on matters relating to the negro race, while every other instance except twelve has been in behalf of a private corporation seeking relief from State activity, to wit: thirty-nine cases.

For this entire period of forty-three years Federal intervention under the Amendment has affected four State constitutions, thirty-two statutes, and nine city ordinances, and State procedure - administrative, executive, or judicial—has been restrained eleven times. Thirty-six of these cases reached the Supreme Court of the United States by writ of error to the State court, sixteen by appeal from injunctions in the inferior Federal courts, and three by other appeals from the Federal courts. Within the past five years nearly one-half of the cases of Federal intervention have been by the way of Federal injunctions. Out of the total number of cases of intervention, twenty-one involved the interpretation of some other clause of the Constitution, eight of these being the commerce clause. In eight cases the merits were left undecided, and in thirtyone a little over one-half- there were dissenting opinions.

It is apparent that all of these cases are not of equal importance. Some of them involve the technicalities of legal procedure. Others deal with questions no

longer alive in the body politic. Others annul statutes and declare principles of prime importance. While the total number of interventions is not significant as compared with the total number of opinions handed down, yet their effect has been far-reaching on the relations of the States to the Federal Government. The restraining of the activity of one State lays down in some measure the metes and bounds for the other States. Social and economic movements involving several States have been thus checked in their incipiency.

Let us now pass to a more definite consideration of these instances of intervention with a view of seeing more clearly this phase of the practical operation of the Amendment. We shall consider first certain miscellaneous cases of more or less importance, but which represent isolated instances of Federal intervention. We shall then proceed to study the more important groups.

1. Presumption of death. Under probate procedure in the State of Washington, a certain man having been absent from the State for seven years, and whose whereabouts were unknown, was declared to be dead, and letters of administration were issued. He subsequently reappeared and brought suit in ejectment to recover the land. An adverse decision having been rendered by the State courts, upon writ of error, the Supreme Court of the United States declared such action of the State violative of the due process clause of the Fourteenth Amendment.1

1 Scott v. McNeal, 154 U. S. 34. October Term, 1893.