prayed, saying: "The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama Constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But, of course, he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If, then, we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists? If the sections of the Constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in section 1979 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged to be the conspiracy of a State, although the State is not and could not be made a party to the bill. (Hans v. Louisiana, 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.) The circuit court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States." 35 In Giles v. Teasley,36 which was an action brought to recover damages against the board of registrars for refusing to register the plaintiff as a qualified elector of the State. The Supreme Court of Alabama held that if the provisions of the state constitution were repugnant to the Fifteenth Amendment they were void and the board of registrars appointed thereunder had no legal existence and had no power to act and would not be liable for a refusal to register the plaintiff; while on the other hand, if the provisions were constitutional the registrars acted properly thereunder and their action was not reviewable by the courts. The Supreme Court of the United States held that the Alabama court had not decided any federal question adversely to the plaintiff, and, therefore, that the Supreme Court had no jurisdiction to review the decision of the state court. 37 In Jones v. Montague, decided in 1904, the court declined to review the dismissal of a petition for a writ of prohibition to prevent the canvass of the votes cast at a congressional election. (upon claim that the petitioners had, in violation of the federal Constitution, been denied registration) for the reason that the canvass had in fact been already made, and certificates of election issued to persons who had been recognized by the House of Representatives as members thereof. The court thus, in any event, not being able to provide any relief, the case became merely a moot one, and as such was dismissed. In the light of the foregoing unsuccessful attempts to obtain from the Supreme Court relief from the operation of the disfranchising clauses of the state constitutions we have been considering, the question may properly be asked whether it is constitutionally possible for the Congress to provide by legislation means by which the constitutionality of these clauses may be fairly passed upon by the courts and the appropriate relief given. It would seem 35 Justices Harlan, Brewer, and Brown dissented. that much might be done. As regards congressional elections, Congress has, as we have seen, plenary powers of control, and could take complete charge of both the elections and the registration of the voters. In such case the federal registrars might refuse to register white voters under clauses of the state laws which they might hold to be in violation of the federal Constitution, and the voters so refused registration would have to seek redress in the federal courts and set up the validity of these state laws. As regards state elections Congress might enact laws giving to federal courts jurisdiction of actions brought against state registrations or election officials who, in violation of federal constitutional rights, have refused registration or opportunity to vote to legallyqualified persons. Whether or not such legislation, the possibility of which is above suggested, would be wise is a question by itself. Whether, if wise, it could be efficiently enforced in communities where it would meet strong and united popular opposition is another question. "In the last analysis obedience not voluntarily given must, for the most part, be compelled by force applied through the instrumentality of criminal prosecutions. In the face of the united and passionate opposition of the white people of the South, such prosecutions in the past have failed to accomplish any permanently useful results. It is probable that convictions would be difficult to obtain even where the offense was flagrant and the guilt of the defendants clear." 38 § 243. The Power of the United States to Compel the Election by the States of Representatives to Congress, Senators and Presidential Electors. It has at times been suggested that the States might, if they should so choose, destroy the Federal Government by a refusal to select Presidential Electors, Representatives to Congress and Senators. In the case of Representatives, should the States refuse to take action, their election could, as we have seen, be directly 38 U. S. Dist. Atty. Rose, in American Political Science Review, I, 41, in an article entitled Negro Suffrage: The Constitutional Point of View." " 30 undertaken by the Federal Government. As regards Senators and Presidential Electors, however, the Federal Government could not itself undertake their election, and it is difficult to suggest legal means by which state action could be compelled. In Cohens v. Virginia, Barbour, arguing in behalf of the position which had been taken by Virginia, declared: "Whenever the States shall be determined to destroy the Federal Government, they will not find it necessary to act, and to act in violation of the Constitution. They can quietly accomplish the purpose by not acting. Upon the state legislatures it depends to appoint the Senators and Presidential Electors, or to provide for their election. Let them merely not act in these particulars, the executive department and part of the legislature ceases to exist, and the Federal Government thus perishes by a sin of omission not of commission." To this position Webster alluded in his speech in reply to Calhoun, and endeavored to minimize its importance from the States' Rights standpoint. "I hear it often suggested," he said, "that the States, by refusing to appoint Senators and Electors, might bring this government to an end. Perhaps this is true; but the same may be said of the state governments themselves. Suppose the legislature of a State, having the power to appoint the governor and the judges, should omit that duty, would not the state government remain unorganized? No doubt, all elective governments may be broken up by a general abandonment on the part of those entrusted with political powers, of their appropriate duties." Moreover, as a matter of fact, as Webster went on to show, in a certain very important sense the federal Constitution relies, for the maintenance of the government which it establishes, upon the plighted faith not of the States, as States, but upon the several oaths of its individual citizens, in that all members of a state legislature are obliged, as a condition precedent to their taking their seats, to swear to support the federal Constitution, and from the obligation of this oath no state power can discharge them. Thus, says Webster, "no member of a state legislature can refuse to proceed at the proper time to elect Sena 39 6 Wh. 264; 5 L. ed. 257. tors to Congress, or to provide for the choice of Electors of President and Vice-President, any more than the members of this body [Senate] can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers, and to ascertain who are chosen. In both cases, the duty binds, and with equal strength, the conscience of the individual member, and it is imposed on all by an oath in the very same words. Let it then never be said, Sir, that it is a matter of discretion with the States whether they will continue the government, or break it up by refusing to appoint Senators and Electors. They have no discretion in the matter. The members of the legislatures cannot avoid doing either, so often as the time arrives, without a direct violation of their duty and their oaths; such a violation as would break up any other government." The correctness of the reasoning of Webster may be granted, and yet the fact remains that however great a moral obligation there may be upon the individual members of the several state governments to take such action as is necessary to equip the Federal Government with the officials necessary for its operation, there exists no legal means, by an issue of mandamus or otherwise, to compel such action when refused. § 244. Election of Senators. The Constitution provides that Senators in the federal Congress shall be chosen by the legislatures of the several States, and that "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legis lature thereof; but that Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." Not until 1866 did Congress exercise the control over the election of Senators thus given it. Prior to that date the Senate had recognized the validity of elections based on majority votes in joint conventions of the two houses of the state legislatures, where a concurrent choice of the two houses sitting separately was not obtained. It was held, however, in the case of James Harlan, |