376 HAR YARD LA W RE VIB W,
bidding ex post facto laws; but if it was designed as a real qualifi- cation, then it was constitutional. In most of the cases the court decided that the oath was not a real qualification.
Gathering what we can from these analogies, we infer that the word "denied" means an absolute refusal to confer the right of suffrage upon certain persons, and that "abridged" means a par- tial denial. Suppose a State refuses to let any one-legged men vote ; that would be a denial. And suppose the State refuses to let one-legged men vote in all elections ; that would be an abridg- ment. Now, a requirement which an average person could meet, if he chose to, would amount to neither a denial nor an abridgment. Indeed, we may say, in general, that any qualification on the right to vote which can be acquired by an exercise of average ability, is permissible without entailing a loss of representation. A qual- ification which goes farther than this must necessarily, to some extent, amount to a denial or an abridgment of the right to vote. The question should be as it was in the " Test Oath Cases," — Is this requirement really a prohibition or a qualification }
Whatever argument can be drawn from the intention of the country in adopting the XlVth Amendment favors this view. The desire was to prevent discriminations against the negro race. Now, it is a fact patent to every one that an educational qualification would not operate solely upon the negjo. The number of white illiterates in some of the Southern States is very great.
In conclusion, I may say that my attempt has been merely to state, in a collected form, the law bearing upon the " Southern Question." It should be remarked, however, that although it may enter much into public discussion, the law will probably become a less and less distinctive factor in the adjustment of Southern troubles, which will be left to work themselves out on social and economic lines. Nevertheless, so long as legislative interference is mooted, it is necessary to have some knowledge of what may be done under the laws of the Union and the States.
E. Irving Smith.
Hartard Law School.
