true that whenever, in a controversy between parties to a suit, of which these courts have jurisdiction, the question arises upon the validity of a law by a State impairing the obligation of its contract, the jurisdiction is not thereby ousted, but must be exercised with whatever legal consequences to the rights of the litigants may be the result of the determination."

There is but one exception to the general principle that the federal courts will not assume the right affirmatively to order state officials to perform official acts, and this is when the acts in question are commanded by valid laws and are of a purely ministerial character; that is, acts involving the exercise of no judgment or discretion. Thus in The Board of Liquidation v. McComb (92 U. S., 531) the Supreme Court said: "It has been well settled that when a plain, public duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. . . . In either case, if the officers plead the authority of an unconstitutional law for the nonperformance or the violation of his duty, it will not prevent the issuing of the writ." This principle, thus stated, the federal courts have a number of times applied to state officials. Thus in the case of Hartman v. Greenhow (102 U. S., 672) the Supreme Court enforced a contract of the State of Virginia by com

pelling one of its officers to receive coupons of certain of its bonds in payment of taxes, although there then existed upon the statute books of the State, a law, which the Supreme Court held unconstitutional, forbidding their receipt.

CHAPTER X

FEDERAL SUPERVISION OF STATE DUTIES

IN the foregoing pages there has been set forth in some detail the principles which govern the question of the extent to which the Federal Government may compel the performance by the governments of the individual States of duties constitutionally laid upon them. We turn now to a topic which, while closely related to the one of which we have been speaking, is yet distinct from it. This topic is the extent of the legal power of the National Government to examine state laws and supervise their execution with a view to seeing that they do not infringe in any way upon the rights secured to individuals by the federal Constitution and laws. The subject now to be considered is thus the negative power of the United States Government to prevent the violation of federal rights by the States, and not the positive power, the extent of which we have just examined, of compelling the performance by the States of their constitutional duties.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in federal courts with a view to ascertaining

1

whether they deprived any one of life, liberty, or property without due process of law, or denied to any one equal legal protection. The first nine amendments to the federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but the Federal Government only. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the federal Constitution and laws were concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws, or deprived them of life, liberty, and property without due process of law. The only limitation laid upon the States by the Constitution was that they should enact no bills of attainder, no ex post facto laws, or laws impairing the obligation of contracts. As a matter of fact, indeed, all of the States had by their own constitutions taken from their legislatures the power to enact laws upon certain specified topics, and forbidden them to violate certain declared principles of justice and right. But the adoption of these constitutional limitations was purely voluntary upon their part.

In 1868, however, as one of the results of the Civil War, the Fourteenth Amendment was adopted, which, after declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," goes on to provide that "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

For a number of years after the adoption of this Amendment it was by no means certain but that the effect of the above-cited provisions would be to endow the United States Government with additional powers so great as fundamentally to alter the very nature of the Union itself. There can be no question but that the clauses of the Amendment that we have quoted were easily susceptible of an interpretation that would have given them this result, and that, at the time they were framed and adopted by Congress and ratified by the necessary number of state legislatures, there were very many who believed that they would, and desired that they should, work this revolutionary change in the American Constitutional system.1 Fortunately, however, as all must now believe, the Supreme Court was able and was led to give to these words a construction that robbed them of such an effect. This it did in the following manner.

In 1875 Congress passed a so-called Civil Rights Act, fixing generally the penalties to which state officials should be subject for depriving any citizen of the United States of any of the rights secured him by the Thirteenth and Fourteenth Amendments, and declaring specifically that negroes should receive the same

1 See especially the debates attendant upon the passage of the Civil Rights Bill of 1866, the doubts as to the constitutionality of which led to the adoption of the Fourteenth Amendment. See also the dissenting opinion of Justice Field in the Civil Rights Cases, 109 U. S., 3, in which Justices Swayne, Bradley, and Chief Justice Chase concurred.