A century of constitutional government in the United States has served to emphasize the wisdom of Hamilton's warning of “the tendency of the legislative authority to absorb every other.” He clearly foresaw and attempted to guard against, dangers that today are only too apparent. “In governments purely republican,” he wrote, “this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or the judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and, as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.”

Never did human ingenuity devise a more nicely balanced system of government than when the framers of the Constitution allocated to the executive and to the legislature the exercise of powers not to be infringed by the other; but like many things human the intent has been perverted. Every person familiar with the Constitution, the debates in the convention, and the writings of Madison, Hamilton, and Jay in The Federalist, must know that the purpose of the framers of the Constitution was to create a system of government by which the President should become neither the creature nor the controller of the legislature; and by vesting certain exclusive powers in the popular branch and certain other powers in the Senate to provide that the line of demarcation between the two houses should not be overstepped.

The Constitution of the United States as amended provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” These words are plain. Everybody understands them. They mean, and every one knows that they mean, that, from the constitutional point of view, one question relative to the suffrage is no longer open. That question is the very one about which I am asked to write. From the political point of view, from the historical point of view, from the social point of view, from the economic point of view, and from the ethical point of view, there is much to be said about negro suffrage. For centuries yet to come there may be much to be said. From the constitutional point of view, accurately defined, there has been nothing to say since March 30, 1870. On that day the Secretary of State of the United States proclaimed that the Fifteenth Amendment had been ratified by the legislatures of twenty-nine out of the then thirty-seven States. The apparent assent of a number of these legislatures, perhaps, had not been a real assent. It might have been given under duress. Still, it had been given. The men who assumed to be the legislatures of other of these States may have had little moral and a very doubtful legal right to speak for them.

The suffrage clauses recently adopted by six of the Southern States, beginning with Mississippi in 1890 and ending with Virginia in 1902, have disqualified for the elective franchise a majority of the negroes of voting age without appreciably diminishing the possible number of white voters. In other words, there have been racial distinctions in the matter of suffrage without their being so defined in the letter of the law. Now, the question is: Are these suffrage distinctions the only racial distinctions found in the Southern law, either expressed or implied, or are they only members of a group of such distinctions which have been evolving since the negro has been a free man? In this paper it shall be my aim to show briefly that the latter is the case, that there are other racial distinctions recognized in the Southern law, that some of the distinctions once present in Southern codes and constitutions have since been dropped, and that others have been introduced from time to time. And by making the suffrage distinctions only links of a chain, I hope that we shall arrive at some conclusion as to the trend of Southern legislation with regard to the negro.

The general subject of racial distinctions is practically limitless in extent. Many of these distinctions are as intangible as race prejudice itself and take various methods of expression. Instead, therefore, of undertaking a general discussion of this inexhaustible subject, I shall narrow it to more manageable proportions by treating only one of its many phases.

For several years the plan of publishing an annual index or summary of foreign legislation has been under discussion among American students of political science. The Librarian of Congress has recommended that such a publication be undertaken by the United States Government, and it seems possible that his efforts in this direction may finally be successful. Information concerning foreign legislation is now difficult to obtain, and the usefulness of a publication that would make more easily available the substance of current foreign laws is well recognized.

The demand for information of foreign legislation may be said to come from three sources: (1) From practicing lawyers who handle cases involving the laws of other countries. The increasing American investments abroad and the closer social relations which have developed between the United States and foreign countries make it necessary that our lawyers should know something of the legal institutions of other nations. In our great seaboard cities lawyers have already begun to devote themselves to foreign law as a specialty, and important legal firms find it necessary to have foreign connections. (2) Our legislators are beginning to look more closely into the experiences of other countries. Statesmen are coming to see that one country may well prove a laboratory for others in the field of social legislation, and to wish to profit by foreign successes and to avoid foreign failures. Germany has gone very far in the matter of governmental insurance and in legislation for the protection of labor, and it is within these fields that we may expect future legislation in the United States.