Fifty years of negro citizenship as qualified by the United States Supreme Court

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[Reprinted from Tur JouRNAL oF Nucro History, Vol. VI, No. ; January, 1921.]

FIFTY YEARS OF NEGRO CITIZENSHIP AS QUAL-~
IFIED BY THE UNITED STATES
SUPREME COURT

Tue Historic BackGRouUND

_ The citizenship of the Negro in this country is a fic-
tion. The Constitution of the United States guarantees
to him every right vouchsafed to any individual by the
most liberal democracy on the face of the earth, but despite
the unusual powers of the Federal Government this agent
of the body politic has studiously evaded the duty of safe-
euarding the rights of the Negro. The Constitution con-
fers upon Congress the power to declare war and make
peace, to lay and collect taxes, duties, imposts, and excises;
to coin money, to regulate commerce, and the like; and fur-
ther empowers Congress ‘‘to make all laws which shall be
necessary and proper for carrying into execution the fore-
going powers and all other powers vested by this Constitu-
tion in the Government of the United States, or in any de-
partment or officer theYreof.’’ After the unsuccessful
effort of Virginia and Kentucky, through their famous reso-
lutions of 1798 drawn up by Jefferson and Madison to inter-
pose State authority in preventing Congress from exer-
cising its powers, the United States Government with Chief
Justice John Marshall as the expounder of that document,

1

2. JournaL of Neako History

soon brought the country around to the position of thinking
that, although the Federal Government is one of enumer-
ated powers, that government and not that of States is the
judge of the extent of its powers and, ‘‘though limited in
its powers, is supreme within its sphere of action.’ Mar-
shall showed, too, that ‘‘there is no phrase in the instru-
ment which, like the Articles of Confederation, excludes
incidental or implied powers; and which requires that
everything granted shall be expressly and minutely de-
scribed.’’? Marshall insisted, moreover, ‘‘that the powers
given to the government imply the ordinary means of exe-
cution,’’ and ‘‘to imply the means necessary to an end is
generally understood as implying any means, calculated to
produce the end and not as being confined to those single
means without which the end would be entirely unattain-
able.’’? He said: ‘‘Let the end be legitimate, let it be within
the scope of the Constitution, and all means which are ap-
propriate, which are plainly adapted to that end, which are
_ not prohibited, but consist with the letter and the spirit of
the Constitution, are constitutional.’’

Fortified thus, the Constitution became the rock upon
which nationalism was built and by 1833 there were few
persons who questioned the supremacy of the Federal
Government, as did South Carolina with its threats of nulli-
fication. Because of the beginning of the intense slavery
agitation not long thereafter, however, and the division of
the Democratic party into a national and a proslavery
group, the latter advocating State’s rights to secure the
perpetuation of slavery, there followed a reaction after the
death of John Marshall in 1835, when the court abaudoned
to some extent the advanced position of nationalism of this —
great jurist and drifted toward the localism long since
advocated by Judge Roane of Virginia.

In making the national government the patron of
slavery, a new sort of nationalism as a defence of that

1 McCulloch v. Maryland, 4 Wheaton, 416.
2 Ibid., 416. .
3 Ibid., 416.

Firry Yxsars oF Nzucro CrrizENsHIe 3

institution developed thereafter, however, and culminated
in the Dred Scott decision. To justify the high-handed
methods to protect the master’s property right in the bond-
man, these jurists not only referred to the doctrines of
Marshall already set forth above but relied also upon the
decisions of Justice Storey, the nationalist surviving Chief
Justice Marshall. They believed with Storey that a consti-
tution of government founded by the people for themselves
and their posterity and for objects of the most momentous
nature—for perpetual union, for the establishment of jus-
‘tice, for the general welfare and for a perpetuation of the
blessings of liberty—necessarily requires that every inter-
pretation of its powers have a constant reference to those
objects. No interpretation of the words in which those
powers are granted can be a sound one which narrows down
every ordinary import so as to defeat those objects.

In the decision of Prigg v. Pennsylvania, when the effort
was to carry out the fugitive slave law,° the court, speaking
through Justice Storey in 1842, believed that the clause of
the Constitution conferring a right should not be so con-
strued as to make it shadowy or unsubstantial or leave the
citizen without the power adequate for its protection when
another construction equally accordant with the words and
the sense in which they were used would enforce and protect
the right granted. The court believed that Congress is not —
restricted to legislation for the execution of its expressly
granted powers; but for the protection of rights guaranteed
by the Constitution, may employ such means not prohibited,
as are necessary and proper, or such as are appropriate to
attain the ends proposed. ‘The court held, moreover, in
Prigg v. Pennsylvania, that ‘‘the fundamental principle
applicable to all cases of this sort, would seem to be, that
when the end is required the means are given; and when the
duty is enjoined, the ability to perform it is contemplated
to exist on the part of the functionaries to whom it is en-

4 Dred Scott v. Sanford, 19 Howard, 399.
516 Peters, 539, 612.

4 JougNAL oF Necro History

trusted.’’? It required very little argument to expose the
fallacy in supposing that the national government had ever
meant to rely for the due fulfillment of its duties and the ~
rights which it established, upon State legislation rather
than upon that of the United States, and with greater rea-
son, when one bears in mind that the execution of power
which was to be the same throughout the nation could not be
confided to any State which could not rightfully act beyond
its own territorial limits. All of this power exercised in
executing the Fugitive Slave Law of 1793 was implied,
rather than such direct power as that later conferred upon
Congress by the Thirteenth Amendment, which provided
that Congress should have power to pass Basie legis-
lation to enforce it.

As the Supreme Court decided in the case of Prigg v.
Pennsylvania that the officers of the State were not legally
obligated to assist in the enforcement of the Fugitive Slave
Law of 1793, Congress passed another and a more drastic
measure in 1850 which, although unusually rigid in its
terms, was enthusiastically supported by the Supreme
Court in upholding the slavery regime. The Fugitive
Slave Law of 1850 deprived the Negro suspect of the right
of a trial by jury to determine the question of his freedom
in a competent court of the State. The affidavit of the per-
son claiming the Negro was sufficient evidence of owner-
ship. This law made it the duty of marshals and of the
United States courts to obey and execute all warrants and
precepts issued under the provisions of this act. It imposed”
a penalty of a fine and imprisonment upon any person
knowingly hindering the arrest of a fugitive or attempting
to rescue one from custody or harboring one or aiding one
to escape. The writ of habeas corpus was denied to the re-
claimed Negro and the act was ex post facto. In short, the
Fugitive Slave Law of 1850 committed the whole country ©
to the task of the protection of slave property and made
slavery a national matter with which every citizen in the

Firry Yrars or Necro CirizENSHIP 5

country had to be concerned. In the interest of the prop-
erty right of the master, moreover, the Supreme Court by
the Dred Scott Decision® upheld this measure, feeling that
there was in Congress adequate power expressly given and
implied to enforce this regulation in spite of any local oppo-
sition that there might develop against the government act-
ing upon individuals to carry out this police regulation.
The Negro was not a citizen and in his non-political status
could not sue in a Federal court, which for the same reason
must disclaim jurisdiction in a case in which the Negro
was a party.

In the decision of Ableman v. Booth®* the court in con-
struing the provision for the return of slaves according to
the Fugitive Slave Law of 1850 further recognized the
master’s right of property in his bondman, the right of
assisting and recovering him regardless of any State law
or regulation or local custom to the contrary whatsoever.
This tribunal then believed that the right of the master to
have his fugitive slave delivered up on the claim, being
guaranteed by the Constitution, the implication was that
the national government was clothed with proper author-
ity and functions to enforce it. ‘'hese were reversed dur-
ing the Civil War by the nation rising in arms against the
institution of slavery which it had economically outgrown
and the court in the support of the Federal Government
exercising its unusual powers in effecting the political and
social upheaval resulting in the emancipation of the slaves,
again became decidedly national in its decisions.

Out of Rebellion the Negro emerged a free man Uaoured
by the State and Federal Government with all the privileges
and immunities of a citizen in accordance with the will of
the majority of the American people, as expressed in the
Civil Rights Bill and in the ratification of the Thirteenth,
Fourteenth and Fifteenth Amendments. A decidedly mili-
tant minority, however, willing to grant the Negro freedom

6 Dred Scott v. Sanford, 19 Howard, 399.
6a 21 Howard, 506.

6 JouRNAL oF Necro History

of body but unwilling to grant him political or civil rights,
bore it grievously that the race had been so suddenly ele-
vated and soon thereafter organized a party of reaction to
reduce the freedmen to the position of the free people of
color, who before the Civil War had no rights but that of
exemption from involuntary servitude. During the Recon-
struction period when the Negroes figured conspicuously in
the rebuilding of the Southern States they temporarily en-.
joyed the rights guaranteed them by the Constitution. As
there set in a reaction against the support of the recon-
structed governments as administered by corrupt southern-
ers and interlopers, the support which the United States
Government had given this first effort in America toward
actual democracy was withdrawn and the undoing of the
Negro as a citizen was easily effected throughout the South
by general intimidation and organized mobs known as the
Ku-Klux Klan. |

One of the first rights denied the Negro by these success-
ful reactionaries was the unrestricted use of common car-
riers. Standing upon its former record, however, the court
had sufficient precedents to continue as the impartial inter- —
preter of the laws guaranteeing all persons civil and polit-
ical equality. In New Jersey Steam Navigation Company
v. Merchants Bank" the court speaking through Justice
Nelson took high ground in the defence of the free and un-
restricted use of common carriers, a right frequently denied
the Negroes after the Civil War. The court said that a
common carrier is ‘‘in the exercise of a sort of public office
and has public duties to perform from which he should not
be permitted to exonerate himself without assent of the
parties concerned.’’ ‘This doctrine was upheld in Munn v.
Illinois,’ and in Olcott v. Supervisors, when it was decided
that railroads are public highways established under the
authority of the State for the public use; and that they are
none the less public highways, because controlled and owned

76 Howard, 344.
894 U. S., 113.
916 Wall., 678.

Firry Years or Necro CirizENsHIP 7

by private corporations; that it is a part of the function of
government to make and maintain highways for the con-
venience of the public; that no matter who is agent or what
is the agency, the function performed is that of the State;
that although the owners may be private companies, they
may be compelled to permit the public to use these works
in the manner in which they can be used; ‘‘Upon these
grounds alone,’’ continues the opinion, ‘‘have courts sus-
tained the investiture of railroad corporations with the
States right of eminent. domain, or the right of municipal
corporations, under legislative authority, to assess, levy,
and collect taxes to aid in the construction of railroads.’ ”°
Jurists in this country and in England had also held that
Inasmuch as the innkeeper is engaged in a quasi public em-
ployment, the law gives him special privileges and he is
charged with certain duties and responsibilities to the pub-
lic. The public nature of his employment would then forbid
him from discriminating against any person asking admis-_
sion, on account of the race or color of that person." :

In the Slaughter House Cases'? and Strauder v. West
Virginia‘? the United States Supreme Court held that since
slavery was the moving or principal cause of the adoption
of the Thirteenth Amendment, and since that institution
rested wholly upon the inferiority, as a race, of those held
in bondage, their freedom necessarily involved immunity
from, and protection against all discrimination against
them, because of their race in respect of such civil rights as
belong to freemen of other races. Congress, therefore,
under its present express power to enforce that amendment
by appropriate legislation, might enact laws to protect that
people against deprivation, because of their race, of any

10 This was held in Township of Queensburg v. Culver (19 Wall., 83), in
Township of Pine Grove v. Talcott (19 Wall., 666), and in Massachusetts in
Worcester v. Western R. R. Corporation (4 Met., 564).

11 Storey on Bailments, Sec. 475-6, and Rex v. Ivens, 7 Carrington &
Payne, 213; 32, EH. C. L., 495.

1216 Wall., 36.

138100 U. S., 303.

8 JOURNAL OF NxcRo History

civil rights granted to other freemen in the same States;
and such legislation may be of a direct and primary char-
acter, operating upon States, their officers and agents, and
also upon, at least, such individuals and corporations as
exercise public functions and wield power and authority
under the State.

The State was conceded the power to regulate rates,
fares of passengers and freight, and upon these grounds it
might regulate the entire management of railroads in mat-
ters affecting the convenience and safety of the public, such
as regulating speed, compelling stops of prescribed length
at stations and prohibiting discriminations and favoritisms.
The position taken here is that these corporations are
actual agents of the State and what the State permits them
to do is an act of the State. The Thirteenth and Fourteenth
Amendments made the Negro race a part of the public and
entitled to share in the control and use of public utilities.
Any restriction in the use of these utilities would deprive
the race of its liberty; for ‘‘ personal liberty consists,’’ says
Blackstone, ‘‘in the power of locomotion of changing situa-
tion, of removing one’s person to whatever places one’s
own inclination may direct, without restraint, unless by due
course of law.’’

In several decisions the court had held that the purpose
of the Thirteenth and Fourteenth Amendments was to raise
the Negro race from that condition of inferiority and servi-
tude in which most of them had previously stood, into per-
fect equality of civil rights with all other persons within the
jurisdiction of the United States. In Strauderv. West Vir:
gima,'* and Neal v. Delaware,'® the court had taken the posi-
tion that exemption from race discrimination is a right of a
citizen of the United States. Negroes charged that mem-
bers of their race had been excluded from a jury because of
their color. The court was then of the opinion that such
action contravened the Constitution and, as was held in

14100 U. S., 306.
15103 U. S., 386.

Firry Yrars or Necro CitizENSHIP 9

the case of Prigg v. Pennsylvama, declared it essential to
the national supremacy that the agent of the body politic
should have the power to enforce and protect any right
granted by the Constitution.

In Ha Parte Virginia the position was the same. In
this case one Cole, a county judge, was charged by the laws
of Virginia with the duty of selecting grand and petit
jurors. The laws of that State did not permit him in the
performance of that duty to make any distinction as to race.
He was indicted in a Federal court under the act of 1875,
for making such discriminations. The attorney-general of
Virginia contended that the State had done its duty, and
had not authorized or directed that county judge to do what
he was charged with- having done; that the State had not
denied to the Negro race the equal protection of the laws;
and that consequently the act of Cole must be deemed his
individual act, in contravention of the will of the State.
Plausible as this argument was, it failed to convince the
court; and after emphasizing the fact that the Fourteenth
Amendment had reference to the acts of the political body
denominated a State, ‘‘by whatever instruments or in what-
ever modes that action may be taken’’ and that a State acts
by its legislative, executive and judicial authorities, and
can act in no other way, it said:

‘“‘The constitutional provision, therefore, must mean
that no agency of the State, or of the officers or agents by
whom its powers are exerted, shall deny to any person
within its jurisdiction the equal protection of the laws.
Whoever, by virtue of public position under a State govern-
ment, deprives another of property, life, or liberty without
due process of law, or denies or takes away the equal pro-
tection of the laws, violates the constitutional inhibitions;
and, as he acts under the name and for the State, and is
clothed with the State power, his act is that of the State.
This must be so, or the constitutional prohibition has no
meaning. ‘Then the State has clothed one of its agents with
power to annul or evade it. But the constitutional amend-

10 JOURNAL OF Necro History

ment was ordained for a purpose. It was to secure equal
rights to all persons, and, to insure to all persons the enjoy-
ment of such rights, power was given to Congress to enforce
its provisions by appropriate legislation. Such legislation
must act upon persons, not upon the abstract thing denomi-
nated as State but upon the persons who are the agents of
the State, in the denial of the rights which were intended
to be secured.’”1®

The Supreme Court of the United States soon fell under
reactionary influence and gave its judicial sanction to all
repression necessary to establish permanently the reaction-
aries in the South and to deprive the Negroes of their polit-
ical and civil rights. It will be interesting, therefore, to
show exactly how far the United States Supreme Court,
supposed to be an impartial tribunal and generally held in
such high esteem and treated with such reverential fear,
has been guilty of inconsistency and sophistry in its effort
to support this autocracy in defiance of the well established
principles of interpretation for construing the constitutions
and laws of States and in utter disregard of the supremacy
of Congress in the exercise of the powers granted the gov-
ernment by the Constitution of the United States.

De ee eavee Tue Riecut or Locomorion

| In 1875 Congress passed a measure commonly known as
the Civil Rights Bill, which was supplementary of other
measures of the same sort, the first being enacted April 9,
1866,"7 and reenacted with some modifications in sections
16, 17, and 18 of the Enforcement Act passed August 31,
1870.'* The intention of the statesmen advocating these
measures was to secure to the freedmen the enjoyment of
every right guaranteed all other citizens. The important /
sections of the Civil Rights Bill of 1875 follow:

. eles EP CRE RT
_ Section. 1. That all persons within the jurisdiction of the

16 Ha Parte Virginia, 100 U. S., 346-7.
1714 statutes, 27, Chapter 31.
18.16 statutes, 140, Chapter 114.

Sa

Furry Yrars or Necro CrrizENSHIP daft

United States shall be entitled to the full and equal enjoyment of.
the accommodations, advantages, facilities, and privileges of inns,
public conveyances on land or water, theatres, and other places
of public amusement; subject only to the conditions and limita-
tions established by Jaw, and applicable alike to citizens of every
race and color, regardless of any previous condition of servitude.

Section 2. That any person who shall violate the foregoing
section by denying to any citizen, except for reasons by law appli-
cable to citizens of every race and color, and regardless of any
previous condition of servitude, the full enjoyment of any of the
accommodations, advantages, facilities or privileges in said section
enumerated, or by aiding or inciting such denial, shall for every
such offense forfeit and pay the sum of five hundred dollars to the
person aggrieved thereby, to be recovered in an action of debt,
with full costs; and shall also, for every such offense be deemed
guilty of a misdemeanor, and, upon conviction therefor, shall be
fined not less than five hundred nor more than one thousand
dollars, or shall be imprisoned not less than thirty days nor more
than one year. Provided, That all persons may elect to sue for
the penalties aforesaid, or to proceed under their rights at common
law and by State statutes; and having so elected to proceed in the
ene mode or the other, their right to proceed in the other juris-
diction shall be barred: But this provision shall not apply to crim-
inal proceedings, either under this act or the criminal law of any
State: and provided further, That a judgment for the penalty in j
favor of the party aggrieved, or a judgment upon an indictment, ,
shall be a bar to either prosecution respectively.

ui GS

Although the Negroes by this measure were guaranteed
the rights which were granted by the Constitution to every
citizen of the United States, the members of the Supreme
Court of the United States instead of upholding the laws of
the nation in accordance with their oaths undertook to hedge
around and to explain away the articles of the Constitution
in such a way as to legislate rather than interpret the laws
according to the intent of the framers of the Constitution.
Subjected to all sorts of discriminations at the polls, in the
courts, in inns, in hotels, on street cars, and on railroads,
Negroes had sued for redress of their grievances and the
persons thus called upon to respond in the courts attacked

he JOURNAL oF Necro History

the constitutionality of the Civil Rights Bill, and the War
Amendments, contending that they encroached upon the
police power of the States.

The first of these Civil Rights Cases were: United States
v. Stanley, Umted States v. Ryan, United States v. Nichols,
United States v. Singleton, and Robison and wife v. Mem-
phis and Charleston R. R. Co. Two of these cases, those
against Stanley and Nichols, were indictments for denying
to persons of color the accommodations of an inn or hotel; two
of them, those against Ryan and Singleton, were, one on in-
formation, the other on indictments, for denying to indi-
viduals the privileges and accommodations of a theatre.
The information against Ryan was for refusing a colored
person a seat in the dress circle of McGuire’s Theatre in San
Francisco; and the indictment against Singleton was for
denying to another person, whose color was not stated, the
full enjoyment of the accommodation of the theatre known
as the Grand Opera House in New York.

The argument to show the culpability of the State was
that in becoming a business man or a corporation estab-
lished by sanction of and protected by the State, such a
- person or persons discriminating against a citizen of color
no longer acted in a private but in a public capacity and in
so doing affected an interest in violation of the State by
controlling, as in the case of slavery, an individual’s power
of locomotion. The Civil Rights Bill was appropriate legis-
lation as defined by the Constitution to forbid any action
by private persons which ‘‘in the light of our history may
reasonably be apprehended to tend, on account of its being
incidental to quasi public occupations, to create an institu-
tion.’’? The actof 1875 in prohibiting persons from violating
the rights of other persons to the full and equal enjoyment
of the accommodations of inns and public conveyances, for
any reason turning merely upon the race or color of the
latter, partook of the specific character of certain contem-
poraneous, solemn and effective action by the United States
to which it was a sequel and is constitutional.

Furry Yrars or Necro CrrizeNsHip 13

Giving the opinion of the court in Civil Rights Cases,
Mr. Justice Bradley said that the Fourteenth Amendment
on which this act of 1875 rested for its authority, if it had
any authority at all, does not invest Congress to legislate
within the domain of State legislation or in State action of
the kind referred to in the Civil Rights Act. He believed
that the Fourteenth Amendment does not authorize Con-
gress to create a code of municipal law for the regulation
of private rights. He conceded that positive rights and |
privileges are secured by the Fourteenth Amendment but
only by prohibition against State laws and State proceed-
ings affecting those rights.2? ‘‘Until some State law has
passed,’’ he said, ‘‘or some State action through its officers
or agents has been taken, adverse to the rights of citizens
sought to be protected by the Fourteenth Amendment, no
legislation of the United States under said amendment, nor
any proceeding under such legislation, can be called into
activity ; for the prohibitions of the amendment are against
State laws and acts under State authority.’’ Otherwise
Congress would take the place of State legislatures and
supersede them and regulate all private rights between man
and man. Civil rights such as are guaranteed by the Con-
stitution against State aggression, thought Justice Brad-
ley, cannot be impaired by the wrongful acts of individuals
unsupported by State authority in the shape of laws, cus-
toms, or executive proceedings, for those are private
wrongs.

Justice Bradley believed, moreover, that the Civil Rights
Act could not be supported by the Thirteenth Amendment
in that, unlike the Fourteenth Amendment, the Thirteenth
Amendment is primary and direct in abolishing slavery.
‘“When a man has emerged from slavery,’’ said he, ‘‘and
by the aid of beneficent legislation has shaken off the in-
separable concomitants of that state there must be some

9°109. U.S. 1.
20 United States v. Cruikshank, 92 U.S., 542; Virginia v. Rives, 100 U.S.,
318; Ex Parte Virginia, 100 U.S., 339.

14 JOURNAL OF Necro History |

stage in the progress of his elevation when he takes the
rank of a mere citizen, ceases to be the special favorite of
the laws, and when his rights as a citizen or a man, are to be ~
protected in the ordinary modes by which other men’s
rights are protected.’’ To eject a Negro from an inn or a
hotel, to compel him to ride in a separate car, to deny him
access and use of places maintained at public expense, ac-
cording to Justice Bradley, do not constitute imposing upon
the Negroes badges and incidents of slavery; for they are
acts of individuals with which Congress, because of the
limited powers of the Federal government, cannot have
anything to do. The particular clause in the Civil Rights
Act, so far as it operated on individuals in the several
States was, therefore, held null and void, but the court held
that it might apply to the District of Columbia and terri-
tories of the United States for which Congress might legis-
late directly. Since then the court has in the recent Wright
Case declared null and void even that part which it formerly
said might apply to territory governed directly by Congress,
. thus taking the position tantamount to reading into the
laws of the United States and the laws of nations the segre-
gation measures of a mediaeval ex-slaveholding common-
wealth assisted by the nation in enforcing obedience to its
will beyond the three mile limit on the high seas.

Although conceding that the Thirteenth Amendment was
direct and primary legislation, the court held that it had
nothing to do with the guarantee against that race discrimi-
nation commonly referred to in the bills of complaint as the
badges and incidents of slavery. The court found the
Fourteenth Amendment negative rather than direct and
primary because of one of its clauses providing 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 and
property without due process of law, nor deny to any per-
son within its jurisdiction the equal protection of the laws.’?
The court was too evasive or too stupid to observe that the

Firry Years or Necro CrrizeENsHip 15

first clause of this amendment was an affirmation to the
effect that all persons born and naturalized in the United
States and subject to the jurisdiction thereof are citizens
of the United States and of the State wherein they reside.
In other words, the court held that if there is one negative
clause in a paragraph, the whole paragraph is a negation.
Such sophistry deserves the condemnation of all fairminded
people, when one must conclude that any person even with-
out formal education, if he has heard the English language
spoken and is of sound mind, would know better than to
interpret a law so unreasonably.

In declaring this act unconstitutional the Supreme Court
of the United States violated one of its own important prin-
ciples of interpretation to the effect that this duty is such a
delicate one, that the court in declaring a statute of Con-
eress invalid must do so with caution, reluctance and hesi-
tation and never until the duty becomes manifestly impera-
tive. In the decision of Fletcher v. Peck,?* the court said
that whether the legislative department of the government
has transcended the limits of its constitutional power is at
all times a question of much delicacy, which seldom, if ever,
-is to be decided in the affirmative, in a doubtful case. The
position between the Constitution and the law should be such
that the judge feels a clear and strong conviction of their
incompatibility with each other. In the Sinking Fund
Cases®2 the court said: ‘‘When required in the regular
course of judicial proceedings to declare an act of Congress
void if not witkin the legislative power of the United States,
this declaration should never be made except in a clear
case. Every possiblgpresumption is in favor of the valid-
ity of a statute, and this continues until the contrary is
shown beyond a rational doubt. One branch of the govern-
ment cannot encroach on the domain of another without
danger. The safety of our institutions depends in no small
degree on a strict observance of this salutary rule.’? And

216 Cranch, 128.
2299 U. S., 418.

16 JOURNAL OF Necro History

this is exactly what happened. The judiciary here as-
sumed the function of the legislative department. Not
even a casual reader on examining these laws and the Con-
stitution can feel that the court in this case felt such a clear
and strong conviction as to the invalidity of this constitu-
tional legislation when that tribunal, as its records show,
had under different circumstances before the Civil War
held a doctrine decidedly to the contrary.

Mr. Justice Harlan, therefore, dissented. He consid-
ered the opinion of the court narrow, as the substance and
spirit were sacrificed by a subtle and ingenious verbal criti-
cism. Justice Harlan believed, ‘‘that it is not the words of
the law but the internal sense of it that makes the law; the
letter of the law is the body, the sense and reason of the law
the soul.’’ ‘Constitutional provisions adopted in the in-
terest of liberty,’’ said Justice Harlan, ‘‘and for the pur-
pose of securing, through national legislation, if need be,
rights inhering in a state of freedom, and belonging to
American citizenship, have been so construed as to defeat
the end the people desire to accomplish, which they at-
tempted to accomplish, and which they supposed they had
accomplished, by changes in their fundamental law.’’

The court, according to Justice Harlan, although he did
not mean to say that the determination in this case should
have been materially controlled by considerations of mere
expediency or policy, had departed from the familiar rule
requiring that the purpose of the law or Constitution and
the objects to be accomplished by any grant are often the
most important in reaching real intent just as the debates
in the convention of 1787 and the disgussions in the Feder-
alist and in the ratifying conventions of the States have
often been referred to as throwing important light on
clauses in the Constitution seeming to show ambiguity.
The debates on the war amendment, when they were pro-
posed and ratified, were thoroughly expounded before the
court in bringing before that tribunal the intention of the
members of Congress, by which the court, according to a

Furry Yrars or Necro CrrizENSHIP i

well established principle of interpretation, should have
been influenced in construing the statute in question.

The court held that legislation for the enforcement of
the Thirteenth Amendment is direct and primary ‘‘but to
what specific ends may it be directed?’’ inquired Justice
Harlan. The court ‘‘had uniformly held that national gov-
ernment has the power, whether expressly given or not, to
secure and protect rights conferred or guaranteed by the
Constitution.’’?? Justice Harlan believed then that the
doctrines should not be abandoned when the inquiry was not
as to an implied power to protect the master’s rights, but
what Congress might, under powers expressly granted, do
for the protection of freedom and the rights necessarily in-
hering in a state of freedom.

The Thirteenth Amendment, the court conceded, did
more than prohibit slavery as an institution, resting upon
distinctions of race, and upheld by positive law. The court
admitted that it ‘‘established and decreed universal civil
freedom throughout the United States.’’ ‘‘But did the
freedom thus established,’’ inquired Justice Harlan, ‘‘in-
volve more than exemption from actual slavery? Was
nothing more intended than to forbid one man from owning
another as property? Was it the purpose of the nation
simply to destroy the institution and then remit the race,
theretofore held in bondage, to the several States for such
protection, in their civil rights, necessarily growing out of
their freedom, as those States in their discretion might
choose to provide? Were the States against whose protest
the institution was destroyed to be left free, so far as na-
tional interference was concerned, to make or allow dis-
criminations against that race, as such, in the enjoyment of
those fundamental rights which by universal concession,
inhere in a state of freedom?’’ Justice Harlan considered
it indisputable that Congress in having power to abolish
slavery could destroy the burdens and disabilities remain-

_ 23 United States v. Reese, 92 U. S., 214; Strauder v. West Virginia, 100
U. S., 303.

18 JOURNAL OF Necro History

ing as its badges and incidents which constitute its sub-
stance in visible form.

The court in its defense had taken as an illustration that
the negative clause of the Fourteenth Amendment was not
direct and primary, that although the States are prohibited
from passing laws to impair the obligations of contracts
this did not mean that Congress could legislate for the gen-
eral enforcement of contracts throughout the States. Dis-
comfitting his brethren on their own ground Harlan said:
‘‘A prohibition upon a State is not a power in Congress or
in the national government. Itis simply a demal of power
to the State. The much talked of illustration of impairing
the obligation of contracts, therefore, is not an example of
power expressly conferred in contradistinction to that of
this case and is not convincing for this would be a court
matter, not a matter of Congress. The Fourteenth Amend-
ment is the first case of conferring upon Congress affirm-
ative power by legislation to enforce an express prohibition
on the States. Judicial power was not specified but the
power of Congress. The judicial power could have acted
without such a clause. The Fourteenth Amendment is not
merely a prohibition on State action. It made Negroes
citizens of the United States and of the States. This is de-
cidedly affirmative. This citizenship may be protected not
only by the judicial branch of the government but by Con-
gressional legislation of a primary or direct character. It
is in the power of Congress to enforce the affirmative as
well as the prohibitive provisions of this article. The ac-
ceptance of any doctrine to the contrary,’ continued Justice
Harlan, ‘‘would lead to this anomalous result: that whereas
prior to the amendments, Congress with the sanction of this
court passed the most stringent laws—operating directly
and primarily upon States and their officers and agents, as
well as upon individuals—in vindication of slavery and the
right of the master, it may not now, by legislation of a like
primary and direct character, guard, protect, and secure the

Furry Years or Necro CrrizensHip 19

freedom established, and the most essential right of the
citizenship granted, by the constitutional amendments.”’

It did not seem to Justice Harlan that the fact that, by
_the second clause of the first section of the Fourteenth
Amendment, the States are expressly prohibited from mak-
ing or enforcing laws abridging the rights and immunities
of citizens of the United States, furnished any sufficient
reason for upholding or maintaining that the amendment
was intended to deny Congress the power, by general, pri-
mary, and direct legislation, of protecting citizens of the
several States, being also citizens of the United States,
against all discrimination, in respect of their rights as citi-
zens, which is founded on ‘‘race, color, or previous condi-
tion of servitude.’’ ‘‘Such an interpretation,’’ thought he,
‘as plainly repugnant to its fifth section, conferring upon
Congress power, by appropriate legislation, to enforce not
merely the provisions containing prohibitions upon the
States, but all of the provisions of the amendment, includ-
ing the provisions, express and implied, in the first clause
of the first section of the article granting citizenship.’’
_ The prohibition of the State laws could have been nega-
tived by judicial interpretation without the Fourteenth
Amendment on the ground that they would have conflicted
with the Constitution.

The court said the Fourteenth Amendment was not in-
tended to enact a municipal code for the States. No one
will gainsay this. This Amendment, moreover, is not alto-
gether for the benefit of the Negro. It simply interferes
with the local laws when they operate so as to discriminate
against persons or permit agents of the States to discrimi-
nate against persons of any race on account of color or pre-
vious condition of servitude. Of what benefit was it if it
did not do this? The constitutions of the several States
had already secured all persons against deprivation of life,
liberty or property otherwise than by due process of law,
and in some form recognized the right of all persons to the
equal protection of the laws. If this be the correct inter-

20 JOURNAL oF Necro History

pretation even, it does not follow that privileges which have
been granted by the nation, may not be protected by pri-
mary legislation upon the part of Congress. Justice Harlan
pointed out that it is for Congress not the judiciary, to say
that legislation is appropriate, for that would be sheer
usurpation of the functions of a coordinate department.
Why should these rules of interpretation be abandoned in
the case of maintaining the rights of the Negro guaranteed
by the Constitution?

The Civil Rights Act of 1875 could have been maintained
on the ground that it regulated interstate passenger traffic,
as one of the cases, Robinson and Wife v. Memphis and
Charleston Railroad Company, showed that Robinson a
citizen of Mississippi had purchased a ticket entitling him
to be carried from Grand Junction, Tennessee, to Lynch-
burg, Virginia. This case substantially presented the ques-
tion of interstate commerce but the court reserved the ques-
tion whether Congress in the exercise of its power to
regulate commerce among the several States, might or
might not pass a law regulating rights in public convey-
ances passing from one State to another. The court under-
took to hide behind the fact that this specific act did not
recite therein that 1t was enacted in pursuance of the power
of Congress to regulate commerce. Justice Harlan, there-
fore, inquired: ‘‘Has it ever been held that the judiciary
should overturn a statute, because the legislative depart-
ment did not accurately recite therein the particular pro-
vision of the constitution authorizing its enactment?’’? On
the whole, the contrary is the rule. It is sufficient to know
that there is authority in the Constitution.

In this decision, too, there was the influence of the much
paraded bugbear of social equality forced upon the whites.
To use the inns, hotels, and parks, established by authority
of the government and the places of amusement authorized
as the necessary stimulus to progress, to buy a railroad
ticket at the same window, ride in the same comfortable
car on a limited train rather than incur the loss of time and

Furry Years or Necro CrrizensHip 21

suffer the inconvenience of inferior accommodations on a
slow local train; to sleep and eat in a Pullman car so as to
be refreshed for business on arriving at the end of a long
Journey, all of this was and is today dubbed by the reac-
tionary courts social equality. Justice Harlan exposed this
fallacy in saying: ‘‘The right, for instance, of a colored
citizen to use the accommodations of a public highway, upon
the same terms as are permitted to white citizens, is no
more a social right than his right, under the law, to use the
public streets of a city or a town, or a turnpike road, or a
public market, or a post office, or his right to sit in a public
building with others, of whatever race, for the purpose of
hearing the political Reecaine of the day discussed.’?’

What did the” ‘Négro become when he was freed? Whee! SEE

was he when, according to section 2 of Article IV of the
Constitution, he became by virtue of the Fourteenth Amend-
ment entitled to all privileges and immunities of citizens
in the several States??4 From what did the race become
free? If Justice Bradley had been inconveniently segre-
gated by common carriers, driven out of inns and hotels
with the sanction of local law, and deprived by a mob of the
opportunity to make a living, would he have considered
himself a free citizen of this or any other country? ‘‘A
colored citizen of Ohio or Indiana while in the jurisdiction
of Tennessee,’’ contended Justice Harlan, ‘‘is entitled to
enjoy any privilege or immunity, fundamental in citizen-
ship, which is given to citizens of the white race in the latter
State. Citizenship in this country necessarily imports at

least equality of oye rights among. citizens.of-every-race""

in the same State.’’’) In United States v. Cruikshank?® it
was held that rights of life and personal liberty are natural
rights of man, and that ‘‘equality of the rights of citizens
is a principle of republicanism.’’

24 Ward v. Maryland, 12 Wall., 418; Corfield v. Coryell, 4 Washington,
D. C., 371; Paul v. Virginia, 8 Wall., 168; Slaughter-house cases, Ibid., 36.
2592 U. S., 542.

22 JOURNAL oF Necro History

INCONSISTENCY OF THE CouRT

In the case of Hall v. DeCuir*® the court reached an im-
portant decision when an Act of Louisiana passed in 1869
to give passengers without regard to race or color equality
of right in the accommodations of railroad or street cars,
steamboats or other water crafts, stage coaches, omni-
‘busses or other vehicles, was declared unconstitutional so
far as it related to commerce between States.27 Here a
person of color had been discriminated against by a Missis-
sippi River navigation company which was called to answer
before a United States court for violating this act.

Giving the opinion of the court, Chief Justice Waite
said: ‘‘ We think it may be safely said that State legislation
which seeks to impose a direct burden upon inter-state com-
merce, or to interfere directly with its freedom does en-
croach upon the exclusive power of Congress. The statute
now under consideration in our opinion occupies that posi-
tion.’’ ‘‘Inaction by Congress,’’ the court held, ‘‘is equiva-
lent to a declaration that interstate commerce shall remain

2695 U. S., 487.
27 The Louisiana Act was:

Section —. All persons engaged within this State in the business of com-
mon earriers of passengers, shall have the right to refuse to admit any person
to their railroad cars, street cars, steamboats or other water-crafts, stage
coaches, omnibusses, or other vehicles, or to expel any person therefrom after
- admission, when such persons shall, on demand, refuse or neglect to pay the
customary fare, or when such person shall be of infamous character or shall be
guilty, after admission to the conveyance of the carrier, of gross, vulgar, or
disorderly conduct, or who shall commit any act tending to injure the business
of the carrier, prescribed for the management of his business, after such rules
and regulations shall have been made known: Provided, said rules and regula-
tions make no discrimination on account of race or color, and shall have the
right to refuse any person admission to such conveyance where there is not
room or suitable accommodation; and, except in cases above enumerated, all
persons engaged in the business of common carriers of passengers are for-
bidden to refuse admission to their conveyance, or to expel therefrom any
person whomsoever.

Section 4, For a violation of any provision of the first and second sec-
tions of this act, the party injured shall have right of action to recover any
damage, exemplary as well as actual, which he may sustain, before any court
of competent jurisdiction. Acts of 1869, page 77; Rev. Stat. 1870, page 93.

Firry Years or Negro CrrizENsHIp 23

free and untrammelled.’’ This meant that the carrier was
“at liberty to adopt such reasonable rules and regulations
for the disposition of passengers upon his boat, while pur-
suing her voyage within Louisiana or without, as seemed to
him best for the interest of all concerned. The statute under
which this suit is brought, as construed by the State court,
seeks to take away from him that power so long as he is
within Louisiana, and while recognizing to the fullest ex-
tent the principle which sustains a statute unless its uncon-
stitutionality is clearly established, we think this statute to
the extent that it requires those engaged in the transporta-
tion of passengers among the several States to carry col-
ored persons in Louisiana in the same cabin with whites is
unconstitutional and void. If the public good requires such
legislation it must come from Congress and not from the
States.’ _ |

Justice Waite here expressed his fear as to the delicate
ground on which he was treading in saying: ‘‘The line
which separates the powers of the States from this ex-
elusive power of Congress is not always distinctly marked,
and oftentimes it is not easy to determine on which side a
particular case belongs. Judges not infrequently differ in
their reasons for a decision in which they concur. Under
such circumstances it would be a useless task to undertake
to fix an arbitrary rule by which the line must in all cases
be located. It is far better to leave a matter of such deli-
cacy to be settled in each case upon a view of the particular
rights involved.’’ Thus the way was left clear to vary the
principle of interpretation according to the color of the
citizens whose rights might be involved.

In view of the subsequent decisions in separate car
cases, moreover, the following portion of Justice Waite’s
opinion as to a clause in the law involved in the case of Hall
v. DeCuir is unusually interesting. ‘‘It does not act,’’ said
he, ‘‘upon the business through the local instruments to be
employed after coming within the State, from without or
goes out from within. While it purports only to control the

94 JOURNAL OF Necro History

carrier when engaged within the State it must necessarily
influence his:conduct to some extent in the management of
his business throughout his entire voyage. We confine our
decision to the statute in its effect upon foreign and inter-
state commerce, expressing no opinion as to its validity in
any other respect.’’?5

With the rapid expansion of commerce in the United
States and the consequent necessity for regulation both by
the State and the United States, no power of Congress was
more frequently questioned than that to regulate commerce
and no litigant concerned in such constitutional questions
easily escaped the consequences of the varying interpreta-
tion given this clause by the United States Supreme Court.
The court, of course, accepted as a general principle that
there are three spheres for the regulation of commerce,
namely: that which a State cannot invade, that which the
State may invade, when Congress has not interfered, and
that which is reserved to the State in conformity with its
police power. But as late as 1886 the nationalistic school
found some encouragement in the decision of the Wabash,
St. Lous and Pacific Railway Company v. Illinois?® given
by Justice Miller. He said: ‘‘Notwithstanding what is
there said, that is, in the decisions of Munn v. Illinois; C. B.
and Q. R. R. Company v. Iowa, and Petk v. Chicago and N.
W.R. R. Co.,®® this court held and asserted that it had never
consciously held otherwise, that a statute of a State in-
tended to regulate or to tax, or to impose any other restric-
tion upon the transmission of persons or property or tele-
eraphic messages, from one State to another, is not within
the class of legislation which the States may enact in the
absence of legislation by Congress; and that such statutes
are void even as to the part of such transmission which may
be within the State.’’ Chief Justice Waite, and Justice

28 Mr. Justice Clifford concurred in the judgment but went into details to
justify the segregation whereas the opinion of the court merely tried to see
whether the details conflicted with the power of Congress to regulate commerce.

29118 W. S., 557.

30 All of these are in 94 U.S.

ee

Furry Yrars or Necro CrrrzeNsHip 25

Bradley and Justice Gray, however, dissented for various
reasons. ;
er In the Louisville Railway Company v. Mississippi,*!
j however, in 1899, the court, evidently yielding to southern
; public opinion, reversed itself'by the decision that an inter-
State carrier could not run a train through Mississippi
without attaching thereto a separate car for Negroes and |
had the audacity to argue that this is not an interference
with interstate commerce.*? ‘To show how inconsistent this
interpretation was one should bear in mind that in Hall v.
DeCuir the court had held that this was exactly what a
State could not do in that the statute acted not upon busi-
ness through local instruments to be employed after coming
into the State, but directly upon business as it comes into
the State from without or goes out from within, although it
purported only to control the carrier when engaged within
the State. It necessarily influenced the conduct of the car-
rier to some extent in the management of his business

a
ae
=
s

RDN en MA ET —_ Sas,

ieee
ce tee e ew

31133 U. S., 587.

82 This was the law of Mississippi:

Sec. 1. ‘‘Be it enacted, That all railroads carrying passengers in this
State (other than street railroads) shall provide equal, but separate accommo-
dation for the white and colored races by providing two or more passenger
cars for each passenger train, or by dividing the passenger cars by a partition,
so as to secure separate accommodations. ’’

Sec. 2. That the conductors of such passenger trains shall have power and
are hereby required to assign each passenger to the car or the compartment of
a car (when it is divided by a partition) used for the race to which said
passenger belongs; and that, should any passenger refuse to occupy the car to

which he or she is assigned by such conductor, said conductor shall have the
power to refuse to carry such passenger on his train and neither he nor the

railroad company shall be liable for any damages in any event in this State.
Sec. 3. That all railroad companies that shall refuse or neglect within

sixty days after the approval of this act to comply with the requirements of
section one of this act, shall be deemed guilty of a misdemeanor and shall upon
conviction in a court of competent jurisdiction, be fined not more than five
hundred dollars; and any conductor that shall neglect to, or refuse to carry
out the provisions of this act, shall, upon conviction, be fined not less than

twenty-five nor more than fifty dollars for each offense.
Sec. 4. That all acts and parts of acts in conflict with this act be, and

the same are hereby repealed, and this act to take effect and be in force from

and after passage. Acts of 1888, p. 48.

26 JOURNAL oF Nzgacro History

throughout his entire voyage. ‘‘No carrier of passen-
gers,’’ said the court in Hall v. DeCwr, ‘‘can conduct his
business with satisfaction to himself, or comfort to those
employing him, if on one side of a State line his passen-
gers, both white and colored, must be permitted to occupy
the same cabin, and on the other to be kept separate. Uni-
formity in the regulation by which he is to be governed
from one end to the other of his route is a necessity in his
business, and to secure it, Congress, which is untrammelled
by State lines, has been invested with exclusive legislative
power of determining what such regulation should be.’’
Giving the opinion in the Mississippi case, however,
Justice Brewer said: ‘‘It has been often held by this court
that there is a commerce wholly within the State which is
not subject to the constitutional provision and the distinc-
tions ‘between commerce among the States and the other
class of commerce between citizens of a single State and
conducted within its limits exclusively is one which has been
fully recognized in this court, although it may not be always

easy, where the lines of these classes approach each other, -

to distinguish between the one and the other.’’*? He might
have added some other comment to the effect that this court
will not definitely draw the line of distinction between such
classes of commerce since it desires to leave adequate room
for evasion, because it had been unusually easy to find such
a line in cases in which the rights of Negroes were concerned
and such definite interpretation might interfere with the
rights of white men. Justices Harlan and Bradley dis-
sented on the grounds that the law imposed a burden upon
an interstate carrier in that he would be fined if he did not
attach an additional car for race discrimination, and that
the opinion was repugnant to the principles set forth in that
of Hall v. DeCuir.

The United States Supreme Court finally reached the
position of following the decision of Ex Parte Plessy which
justified the discrimination in railway cars on the grounds

88133 U. §., 592.

Tie

f
]
it

fF,

Firry Years or Necro CrrizENsHIpe 27

that it is not a badge of slavery contrary to the Thirteenth
Amendment. This decision, in short, is: So long, at least,
as the facilities or accommodations provided are substan-
tially equal, statutes providing separate cars for the races
do not abridge any privilege or immunity of citizens or
otherwise contravene the Fourteenth Amendment of the
United States Constitution. In such matters equality and
not identity or community of accommodations is the ex-
treme test of conformity to the requirements of the amend-
ment. ‘The regulation of domestic commerce is as exclu-
sively a State function as the regulation of interstate
commerce is a Federal function. The separate car law is
an exercise of police power in the interest of public order,
peace and comfort. It is a matter of legislative power and
discretion with which Federal courts cannot interfere. | |
' In Hennington-v: Georgias*it was later emphasized ae |
it had been held that legislative enactments of the States,
passed under the admitted police powers, and having a real
‘relation to the domestic peace, order, health, and safety of
their people, but which by their necessary operation, affect,
- to some extent, or for a limited time, the conduct of com-
merce among the States, are yet not invalid by force alone
of the grant of power of Congress to regulate such com-
merce; and, if not obnoxious to some other constitutional
| provision or destructive of some right secured by the fun-

fs Pe peaenth) law, are to be respected in the courts of the Union
: \ until they are superseded and displaced by some act of
Congress passed in execution of power granted to it by the

)

Constitution. Of course, there was no other provision to

u Paaich such laws could be contrary after the Supreme Court

had whittled away. the war amendments.

‘In the case of Plessy v. Ferguson® the most inexcusable
inconsistency of the court was shown when the persons of
color aggrieved attacked the separate car law of Louisiana
on the ground that it conflicted with the Fourteenth Amend-

84163 U. S., 317.
88 [bid., 537.

28 JOURNAL OF Necro History

ment. Giving the opinion of the court, Justice Brown said:
‘So far, then, as a conflict with the Fourteenth Amendment
is concerned, the case reduces itself to the question whether
the statute of Louisiana is a reasonable regulation, and
with respect to this there must necessarily be a large dis-
cretion on the part of the legislature. In determining the
question of reasonableness it is at liberty to act with refer-
ence to the established usages, customs and traditions of
the people, and with a view to the promotion of the public
peace and good order. Gauged by this standard, we can-
not say that a law which authorizes or even requires the
separation of the two races in public conveyances is unrea-
sonable, or more obnoxious to the Fourteenth Amendment
than the acts of Congress requiring separate schools for
colored children in the District of Columbia, the constitu-
tionality of which does not seem to have been questioned or
the corresponding acts of State legislatures.’’

Justice Harlan dissented, saying that he was of the opin-
ion that the Statute of Louisiana is inconsistent with per-
sonal liberty of white and black in that State and hostile to
both in the letter and spirit of the Constitution of the
United States. Justice Harlan rightly contended that laws
can have no regard to race according to the Constitution.
If they do, they conflict with the rights of State and national
citizenship and with personal liberty. ‘The Thirteenth
and Fourteenth Amendments removed race from our gov-
ernmental system. But what has the court to do with the
policy or expediency of legislation? ‘‘A statute may be
valid, and yet upon grounds of public policy, may well be
characterized as unreasonable.’’ Accordingly Mr. Sedg-
wick, a distinguished authority, says: ‘‘The Courts have no
other duty to perform than to execute the legislative will,
without regard to their views as to the wisdom or justice of
the particular enactment.’’ ‘‘Statutes,’’ said Justice Har-
lan, ‘‘must always have a reasonable construction. Some-
times they are to be construed strictly ; sometimes, liberally,

vie
a aan,

nents AONE UNH ety

Furry Years or Necro CrrizensHip 29

in order to carry out the legislative will. But, however con-
strued, the intent of the legislature is to be respected.’
The decisions in the cases of M. K. and T. Railway v.

j Haber®* and Crutcher v. Kentucky," are of some impor-

tance. In these cases the court reiterated the doctrine that
the regulation of the enjoyment of the relative rights and
the performance of the duties, of all persons within the
Jurisdiction of a State belong primarily to such a State
under its reserved power to provide for the safety of all

persons and property within its limits; and that even if the. f

subject of such regulations be one that may be taken under
the exclusive control of Congress, and be reached by na-
tional legislation, any action taken by the State upon that
subject that does not directly interfere with rights secured
by the Constitution of the United States or by some valid

- act of Congress, must be respected until Congress in-

tervenes.*®> ‘The court by this time, however, had all but

7 held that the Constitution secured to the Negro no civil or

political rights except that of exemption from involuntary
servitude, and that law for the Negro is the will of the
white man.

Further development of the doctrine as to the right of
the State to deprive a Negro of citizenship is brought out
in the Lauder Case.2® The case was this: Lauder’s wife
purchased a first class ticket from Hopkinsville to Mayfield,
both places within the State of Kentucky. She took her
place in what was called the ‘‘ladies’ coach’’ and was
ejected therefrom by the conductor and assigned a seat in
a smoking car, which was alleged to be small, badly venti-
lated, unclean and fitted with greatly inferior accommoda-
tions. ‘This road ran from Evansville, Indiana, to Hopkins-

36169 U. S., 613, 645.

87141 U. S., 61.

38 In Pa. R. R. Co. v. Hughes (191 U. S., 489), Justice White says:

‘In the absence of Congressional legislation upon the subject an act of
the Alabama legislature to require locomotive engineers to be examined and
licensed by a board to be appointed by the governor for that purpose was sus-

tained in Smith v. Alabama’’ (124 U. S., 465).
89179 U. S., 393.

30 JOURNAL OF Necro Hisrory

ville, Kentucky. It was held in the Court of Appeals that
the decision of the United States Supreme Court in Lowis-
ville, New Orleans and Railway v. Mississippi* and Plessy
v. Ferguson*! was conclusive of the constitutionality of the
act so far as the plaintiffs were concerned; and that the
mere fact that the railroad extended to Evansville, in the
State of Indiana, could in no wise render the statute in
question invalid as to the duty of the railroad to respect it.

In the case of Chesapeake and Ohio Railway Company
v. Kentucky,” this doctrine was carried to its logical con-
clusion. ‘The question was whether a proper construction
of the separate car law confines its operation to passengers
whose journeys commence and end within the boundaries of
the State or whether a reasonable interpretation of the act
requires Negro passengers to be assigned to separate
coaches when traveling from or to points in other States.
In other such cases the Supreme Court of the United States
had interpreted the local law as applyimg only to interstate
commerce. The language of the first section of the Ken-
tucky statute made it very clear that it applied to all ear-
riers. The first section of the Kentucky law follows:

‘‘Any railroad company or corporation, person or persons,
running or otherwise operation of railroad cars or coaches by
steam or otherwise, in any railroad line or track within this State,
and all railroad companies, persons or persons, doing business in
this State, whether upon lines or railroads owned in part or whole,
or leased by them; and all railroad companies, person or persons,
operating railroad lines that may herefter be built under existing
charters, or charters that may hereafter be granted in this State;
and all foreign corporations, companies, person or persons, organ-
ized under charters granted, or that may be hereafter granted by
any other State, who may be now, or may hereafter be engaged
in running or operating any of the railroads of this State, whether
in part or whole, are hereby required to. furnish separate coaches
or cars for travel or transportation of the white and colored
passengers on their respective lines of railroad.’’

40133 U. S., 587.

41163 U. S., 537.
42179 U. S., 388, 391.

Firty Years or Necro Crrizensuip 31

Any sane man can see that this law undertook to regulate
interstate commerce. Justice Brown, however, tried to
Square the opinion with that of the Kentucky Supreme
Court, upholding the law on the grounds that it was consti-
tutional in as much as it applied only to intrastate passen-
ger traffic, although the law plainly applies also to inter-~
state traffic.

Speaking further for the court, Justice Brown said:
“‘Indeed we are by no means satisfied that the Court:of Ap-
peals did not give the correct construction to this statute in
limiting its operation to domestic commerce. It is scarcely
courteous to impute to a legislature the enactment of a law
which it knew to be unconstitutional and if it were well
settled that a separate coach law was unconstitutional, as
applied to interstate commerce, the law applying on its face
to all passengers should be limited to such as the legisla-
ture were competent to deal with. The Court of Appeals
has found such to be the intention of the General Assembly
in this case, or at least, that if such were not its intention,
the law may be supported as applying alone to domestic
commerce. In thus holding the act to be severable it is lay-
ing down a principle of construction from which there is
no appeal.’’ |

‘‘ While we do not deny the force of the railroad’s argu-
ment in this connection, we cannot say that the General As-
sembly would not have enacted this law if it had supposed
it applied only to domestic commerce; and if it were in
doubt on that point, we should unhesitatingly defer to the
opinion of the Court of Appeals, which held that it would
give it that construction if the case called for it. In view
of the language above quoted it would be unbecoming for
us to say that the Court of Appeals would not construe the
law as applicable to domestic commerce alone, and if it did,
the case would fall directly within the Mississippi Case.*?
We, therefore, feel compelled to give it that construction
ourselves and so construe it that there can be no doubt as to

43133 U. S., 588.

32 JOURNAL oF NeEcro History

its constitutionality.’’ Here we have a plain case of the
United States Supreme Court declaring an act severable
because thereby it could apparently justify as constitu-
tional a measure depriving the Negroes of civil and polit-
ical rights, whereas in some other cases it has held other
acts not severable to reaeh the same end.

The-court-continued-its-reactionary-eourse. In Chiles v.
Chesapeake and Ohio R. R. Company** the court reiterated
that ‘‘Congressional inaction is equivalent to a declaration
that a carrier may, by its regulations, separate white and
Negro interstate passengers. In McCabe v. Atchinson,
Topeka and Santa Fe Railway Company,* Justice Hughes
giving the opinion of the court, followed the Plessy v. Fer-
guson decision. He did not believe, moreover, ‘‘that the
contention that an act though fair on its face may be so
unequally and oppressively administered by the public
authorities as to amount to an unconstitutional discrimina-
tion by the State itself, is applicable where it is the admin-
istration of the provisions of a separate coach law by ecar-
riers, which is claimed to produce the discrimination. The
separate coach provisions of Oklahoma**® apply to transpor-
tation wholly intrastate in absence of a different construc-
tion by State courts and do not contravene the commerce
clause of the Federal court. ‘The court held, however, that
so much of the Oklahoma separate coach law as permits
carriers to provide sleeping cars, dining cars, and chair
cars for white persons, and to provide no similar accommo-
dations for Negroes, denies the latter the equal protection
of the laws guaranteed by the Constitution.

The most recent case, that of the South Covington and
Cincinnati Street Railway, Plawmtiff in error v. Common-
wealth of Kentucky shows another step in the direction of
complete surrender to caste. This company was a Kentucky
corporation, each of the termini of the railroad of which
was in Kentucky. The complainant hoped to prevent the

44218 U. S., 71.
45 235 U. 8., 151.
46 U. S., 18, 1907 Revised Statutes, 1910, Section 860, et seq.

Firty Years or Necro CrrizensHtp 33

segregation of passengers carried from Ohio into Kentucky.
The decision was that a Kentucky street railway may be
required by statute of that State to furnish either separate
cars or separate compartments in the same car for white
and Negro passengers although its principal business is
the carriage of passengers in interstate commerce between
Cincinnati, Ohio, and Kentucky across the Ohio River.
Such a requirement affects interstate commerce only inci-
dentally, and does not subject it to unreasonable demands.
In other words, this inconvenience to the carrier is not very
much and the humiliation and burden which it entails upon
persons of color thus segregated should not concern the
court, although they are supposed to be citizens of the
United States.

Justice Day dissented and Justices Van DeVanter and

_ Putney concurred on the ground that the attachment of a

fe

Sy

different car upon the Kentucky side on so short a journey
would burden interstate commerce as to cost and in the
practical operation of the traffic. The provision for a sepa-
rate compartment for the use of only interstate Negro pas-
sengers would lead to confusion and discrimination. The
same interstate transportation would be subject to conflict-
ing regulation in the two States in which it is conducted.
They believed that it imposed an unreasonable burden and
according to the dissentients was, therefore, void.

JUSTICE IN THE COURTS.

A
“ay
Mi One of the most important constitutional rights denied

the Negroes is that of justice in the courts. In as much
as their former masters felt enraged against the freed-
men because of their sudden release from bondage, they
too often perpetrated upon the freedmen crimes for which
the Negro had no redress in courts, for white persons
constituted the accusers, the prosecutors, the judges, and
the juries. Immediately following the Civil War, before
the amendments of the Constitution enacted in the special

WX 34 JOURNAL OF Necro History

WY behalf of the race were effected, Negroes were by the

Black Codes deprived of all of the rights of citizens and
nothing bore more grievously upon them than the depriva-
tion of the right to serve on juries. Some States had spe-
cial laws carrying out this prohibition. The first case of
consequence requiring an interpretation of the State law to
this effect was that of Strauder v. West Virgima,*" already
mentioned above. In this case the court took high consti-
tutional ground. It was held that ‘‘a law of West Vir-
ginia limiting to white persons, twenty-one years of age
and citizens of the State, the right to sit upon juries, was a
discrimination which implied a legal inferiority in civil
society, which lessened the security of the right of the col-
ored race, and was a step toward reducing them to a condi-
tion of servility.’’? The right of a man of color that, in
the selection of jurors to pass upon his life, liberty, and
property, there shall be no exclusion of his race and no dis-
crimination against them because of color, was asserted in
a number of cases, to wit: Virginia v. Rives,*® Neal v. Dela-
ware,*® Gibbons v. Kentucky.®°

In the case of Bush v. The Commonwealth of Kentucky™
the Negro faced an additional difficulty in that the court
held that wherein there was no specific law excluding per-
sons from service upon juries because of their race or color,
that the petitioner would have to show evidence to that
effect. In the case of Smith v. The State of Mississippi”?
it was held that the omission or refusal of officers to in-
clude Negro citizens in the list from which jurors might be
drawn is not, as to a Negro subsequently brought to trial,
a denial of equal protection of laws. In the case of Murray
v. The State of Louwisiana® the decision was that the fact

47100 U. S., 303.
48 Ibid., 313.

49103 U. S., 370.
50162 U. S., 565.
61107 U. 8., 110.
52162 U. S., 592.
53163 U. S., 101.

\ \/ Furry Years or Necro CrrizensHie 35

(\ that a law confers on the jury commissioners judicial power
in the selection of citizens for jury service, does not in-
volve a conflict with the Fourteenth Amendment of the
Constitution of the United States, although in the exercise
of such power they might not select Negroes for jury
service.

The case of Williams v. Mississippi was more interest-
ing. ‘The law of that State prescribed the qualifications of
voters and of grand and petit juries and invested the ad-
ministrative officers with a large discretion in determining
what citizens have the necessary qualifications. As it ap-
peared that in the use of their discretion they would exclude
Negroes from such juries it was contended that the act of
Mississippi was a violation of the Fourteenth Amendment.
The court held, however, that the Mississippi law could not
be held repugnant to the Fourteenth Amendment merely
on a showing that the law might operate as a discrimination
against the Negro race, in absence of proof of an actual dis-
crimination in the case under consideration. This ground
has often proved convenient for the Supreme Court of the
United States in dodging the question whether or not the
Negroes must be protected in the rights guaranteed them
by the Constitution.

This case was decided in 1897 and two years later Mr.
Justice Gray, giving the opinion of the court in the case of
Carter v. Texas,®* said that the exclusion of all persons of
African race from a grand jury which finds an indictment
against a Negro in a State court, when they are excluded
solely because of their race or color denies him the equal
protection of the laws in violation, of the Fourteenth
Amendment of the Constitution of the United States,
whether such exclusion is done through the action of the
legislature, through the courts, or through the executive or
administrative officers of the State. This was substantially
the position taken in the case of St v. West Virgima —
twenty years earlier. .

54167 U. S., 442. ;

36 JOURNAL OF Necro History

The Negroes received some encouragement, too, from
the decision of Rogers v. Alabama.®®> It was held that there
had been a denial of the equal protection of the laws by a
ruling of a State court upon the motion to quash an indict-
ment on account of the exclusion of Negroes from the grand
jury list, which motion, though because of its being in two
printed octavos, was struck from the files under the color
of local practice for prolixity, contained an allegation that
certain provisions of the newly adopted State constitution,
claimed to have the effect of disfranchising Negroes be-
cause of their race, when such action worked as a consid-
eration in the minds of the jury commissioners in reaching
their decision. The court held in Martin v. The State of
Texas, however,*® that a discrimination against Negroes
because of their race in the selection of grand or petit
jurors as forbidden by the Fourteenth Amendment is not
shown by written motion to quash, respectively, the indict-
ment of the panel of petit jurors, charging such discrimina-
tion where no evidence was introduced to establish the facts
stated in the omissions. It is not sufficient merely to prove
that no persons of color were on the jury.

As certain States wished to make the government fur-
ther secure in the elimination of Negroes from juries, after
making the qualifications for voters unusually rigid so as
to exclude persons of African descent, they easily estab-
lished the same qualifications for jurors, to relieve persons
of color also from that service. In the case of Franklin v.
South Carolina®’ the court held that there was no discrimi-
nation against Negroes because of their race in the selec-
tion of the grand jury made by the laws of South Carolina,®®
giving the jury commissioner the right to select electors of
good moral character such as they may deem qualified to
serve as jurors, being persons of sound mind and free from
all legal exceptions. A motion, therefore, to quash an in-

55192 U. S., 226.
56 200 U. S., 316.
57 218 U. S., 161.
58 Laws of South Carolina, 1902, page 1066, section 2.

Firry Years or Necro Crrizensyip 37

dictment against a Negro for disqualification of the rand
_ jurors who must be electors, because of a change in the
_ State constitution of South Carolina respecting the quali-
fications of electors, did not violate the Act of Congress,

June 25, 1868, and, therefore, did not present to the Su-
preme Court of the United States a question of a denial of
Federal right where there is nothing in the record to show
that the grand jury as actually impaneled contained any
person who was not qualified as an elector under the earlier

State constitution, which was, according to the allegation,

So made up as to exclude Negroes on account of their color.
The Supreme Court of the United States then took no ac-
count of the intent or the spirit of the law maker as this
tribunal had been accustomed to do in cases of constitu-
tional import and left upon the Negro the burden of per-
forming the difficult task of showing that he had been dis-
criminated against on account of his color when the dis-
crimination could be easily effected without the possibility
of his actually producing any evidence that on the face of
itself could convince the court.

os ea SUFFRAGE

Ya “As already mentioned above the Negroes during this
; \ dl period were struggling to retain the right of suffrage and,
‘| of course, were attacking in the courts those restrictions

“
;

primarily directed toward the elimination of the Negroes
from the electorate. The Supreme Court of the United
States generally shrank from these cases by disclaiming
jurisdiction. In Hx Parte Siebold5® Ex Parte Yarbor-
ough,® and In re Coy,®*1 however, the general jurisdiction of
Federal courts over matters involved in the election of na-
tional officers was affirmed. The court held that it had
jurisdiction in the election case in Wiley v. Sinkler,’* when

59100 U. S., 371.

60110 U. 8., 651.

61127 U. S., 731.
62179 U. S., 58.

38 JOURNAL oF Necro History

there was brought an action to recover damages of an elec-
tion board for wilfully rejecting a citizen’s vote for a mem-
ber of the House of Representatives. In Swafford v. Tem-
pleton®? a suit was brought for damages for the alleged
wrongful refusal by the defendants at an election of officers
to permit the plaintiff to vote at a national election for a
member of the House of Representatives. It was held that
the court had jurisdiction.

From the Supreme Court of the United States, however,
the Negroes received little encouragement, in as much as
the right of suffrage, with its requirements of property
ownership and the literacy test, could be withheld from the
Negro without specifically discriminating against any one
on account of race or color. In Southy v. Virgima, 181 U.
S., Revised Statutes, of the United States, Cont. St. 1901,
pages 37-42, providing that every person who prevents,
hinders, controls or intimidates another from exercising the
right of suffrage, to whom that right is guaranteed by the
Fifteenth Amendment of the Constitution of the United
States, by means of bribery, etc., shall be punished, was
held invalid as it was considered to be beyond the consti-
tutional power of Congress to act in such a case except in
that of race discrimination. If the discrimination is in a
State or municipal election, however, Congress may inter-
vene, if the discrimination is shown, but not until then.

In the case of Giles v. Harris®* there was brought to the
Supreme Court a bill in equity, complaining that Negroes
qualified to vote for members of Congress had been refused
on account of their color by virtue of the Alabama consti-
tution, whereas white men were registered to vote at such
an election. Relief was asked for on the basis of the Re-
vised Statutes, Sec. 1979, praying that the Supreme Court
should order that the petitioner be registered and declare
null and void the special clause of the Alabama constitu-
tion. The court answered this petition with certain obser-

63185 U. 8.
64189 U. S., 475.

Firty Years or Necro CrrizensnHip 39

vations disclaiming jurisdiction largely for ‘‘want of merit
in the averments which were made in the complaint as to
the violation of Federal rights.’’

The court held that if the registrars acting at this elec-
tion in Alabama had no authority under the new constitu-
tion, which the petitioner prayed that the court might de-
clare null and void, they could not legally register the
plaintiff. If they had authority, they were within their
right to use their discretion. If this clause in the constitu-
tion should be struck down according to the prayer of the
plaintiff, there would be no board to which the mandamus
could be issued. The Supreme Court, therefore, held that
no damage had been suffered because no refusal to register
by a board constituted in defiance of the Federal Constitu-
tion could disqualify a legal voter otherwise entitled to ex-
ercising the electorate franchise, since this amounts to a
decision upon an independent non-Federal ground sufficient
to sustain the judgment without reference to the Federal
question presented. It observed, moreover, that the bill
imported that the great mass of the white population in-
tended to keep the blacks from voting. To meet such an
intent something more than ordering the plaintiff named to
be inscribed upon the lists of 1902 would be needed.

Giving his dissenting opinion in this case, Justice
Brewer showed that ‘‘although the statute and these de-
cisions thus expressly limit the range of inquiry to the ques-
tion of jurisdiction, it was held that there is a constitutional
question shown in the pleadings. The certificate, therefore,
might be ignored and the entire case presented to the court
for consideration. . . . Hence every case coming up on a
certificate of jurisdiction may be held to present a constitu-
tional question and be open for full inquiry in respect to all
matters involved.’’ Brewer would not assent to the propo-
sition that the case presented was not a strictly legal one
and entitling a party to a judicial hearing and decision.
‘‘He ig a citizen of Alabama entitled to vote. He wanted

40 JOURNAL OF NrGrRo History

to vote at an election for a Representative in Congress.
Without registration he could not, and registration was
wrongfully denied him. That many others were thus
treated does not deprive him of his right or deprive him of
relief.’’ Justice Harlan dissented also giving practically
the same argument as that of Justice Brewer. He ob-
served: ‘‘The court in effect says that although it may
know that the record fails to show a case within the orig-
inal cognizance of the Circuit Court, it may close its eyes to
that fact, and review the case on its merit.’’ In view of the
adjudged cases, he could not agree that the failure of
parties to raise a question of jurisdiction relieved this court
of its duty to raise it upon its own motion.

There was thereafter presented a petition for modifica-
tion of judgment and for a rehearing June 1, 1903. The
court ordered the decree of affirmance changed adding these
words: ‘‘So far as such decree orders that the petition be
dismissed, but without prejudice to such further proceed-
ings as the petitioner may be advised to make.’’

The case of Giles v. Teasley®® was, to some extent, of
the same sort. A Negro of Alabama who had previously
been a voter and who had complied with the reasonable re-
quirements of the board of registration, was refused the
right to vote, for, as he alleged, no reason other than his
race and color, the members of the board having been ap-
pointed and having acted under the provision of the State
constitution of 1901. He sued the members of the board
for damages and for such refusal in an action, and applied
for a writ of mandamus to compel them to register him,
alleging in both proceedings the denial of his rights under
the Federal Constitution and that the provisions of the
State Constitution were repugnant to the Fifteenth Amend-
ment. The complaint had been dismissed on demurrer and
the writ refused, the highest court of the State holding that
if the provisions of the constitution were repugnant to the
Fifteenth Amendment, they were void and that the board

65193 U. S., 146.

Firry Years or Necro Crrizensyip 41

of registers appointed thereunder had no existence and no
power to act and would not be liable for a refusal to register
him, and could not be compelled by writ of mandamus to do
so; that if the provisions were constitutional, the registrars
had acted properly thereunder and their action was not re-
viewable by the courts.

‘“The right of the Supreme Court to review the decisions
of the highest court of a State,’’ said the national tribunal,
‘*is even in cases involving the violations by the provisions
of a State constitution of the Fifteenth Amendment, cir-
cumscribed by rules established by law, and in every case
coming to the court on writ of error or appeal the question
of jurisdiction must be answered whether propounded by
the counsel or not. Where the State court decided the case
for reasons independent of the Federal right claimed its
action is not reviewable on writ of error by the United
States Supreme Court.’’ It was held that the writs of
error to this court should be dismissed, as such decisions do
not involve the adjudication against the plaintiff in error
of a right claimed under the Federal Constitution but
deny the relief demanded on grounds wholly independent
thereof.’’ In Wiley v. Sinkler, and Swafford v. Templeton,
the registrars were legally averred to be qualified.*

In the Maryland case of Pope v. Williams®’ the court

66 The Constitution of Mississippi prescribing the qualifications for elec-
tors conferred upon the legislature the power to enact laws to carry those pro-
visions into effect. Ability to read any section of the Constitution or to un-
derstand it when read was made a qualification necessary to a legal voter.
Another provision made the qualifications for grand or petit jurors that they
should be able to read and write. Upon the complaint of Negroes thus dis-
abled the court held that these provisions do not on their face discriminate
between white and Negro races and do not amount to a denial of the equal
protection of the law secured by the Fourteenth Amendment of the Constitu-

tion. It had not been shown that their actual administration was evil, but
that only evil was possible under them.

In Washington County, Mississippi, Williams had been indicted for mur-
der by a grand jury composed of white men altogether. He moved that the
indictment be quashed because the law by which the grand jury was established
was unconstitutional. (Williams v. Mississippi.)

67193 U. S., 621.

42, JOURNAL oF Necro History

further explained its position. While the State cannot re-
strict suffrage on account of color, the privilege is not given
by the Federal Constitution, nor does it spring from citizen-
ship of the United States. While the right to vote for
members of Congress is derived exclusively from the law
of the State in which they are chosen but has its founda-
tion in the laws and Constitution of the United States, the
elector must be one entitled to vote under its statute. A
law, therefore, requiring a declaration of intention to be-
come citizens before registering as voters of all persons
coming from without Maryland is not a violation of the
Constitution.

In the ease of Guinn v. United States®® the court held
that the literacy test was legal and not subject to revision
but in this clause of the constitution that part of a section
providing for literacy was closely connected with the so-
called grandfather clause that the United States Supreme
Court declared both unconstitutional as it did in the case
also of Myers v. Anderson,®® coming from Annapolis, Mary-
land, and in the case of The United States v. Mosely, from
Oklahoma.” ‘The clause referred to follows:

‘‘No person shall be registered as an elector of this State or
be allowed to vote in any election herein, unless he be able to read
and write any section of the Constitution of the State of Okla-
homa; but no person who was on January 1, 1866, or at any time
prior thereto, entitled to vote under any form of government, or
who at that time resided in some foreign nation, and no lineal
descendant of such person, shall be denied the right to register
and vote because of his inability to read’ and write sections of such
constitution. Precinct election inspectors having in charge the
registration of electors shall enforce the provisions of this section
at the time of registration, provided registration be required.
Should registration be dispensed with, the provisions of this sec-
tion shall be enforced by the precinct officer when electors apply
for ballots to vote.’’

68 238 U. S., 347.

69 Ibid., 368.
70 Ibid., 763.

Firty Yrars or Necro CrrizEnsHip 43

The court held that this was a standard of voting which on
its face was in substance but a revitalization of conditions
which when they prevailed in the past had been destroyed
by the self-operative force of the Thirteenth Amendment.

EDUCATIONAL PRIVILEGES

These suffrage laws left the Negroes in an untoward
situation for the reason that there was little hope that,
with the educational facilities afforded them, that they
would soon be able to meet the same requirement of lit-
eracy as that which might not embarrass the whites offer-
ing themselves as jurors and electors. The States up-
held in their action by the United States Supreme Court,
had shifted from their shoulders the burden of the uplift
of the Negro by the ingenious doctrine that equal accommo-
dations did not mean identical accommodations and that
the spirit and the letter of the law would be complied with
by providing separate accommodations for Negroes. In
the end, however, separate accommodations turned out to
be in some cases no accommodations at all.

This was the situation as it was brought out in the case
of Cumming v. The Board of Education of Richmond
County. It appeared that a tax for schools had been
levied in this district. The Negroes objected to paying
that portion of the tax which provided for the maintenance
of a high school, the benefits of which they were denied,
when there was no high school provided for them. The
board of education of Richmond County had maintained a
high school for Negroes but abolished it. The petitioner
prayed, therefore, that an injunction be granted against the
collection of such portion of the school tax as was used for
the maintenance of said high school. The defendant set
up the plea that it had not established a white high school,
but had merely appropriated some money to assist a de-
nominational high school for white children, saying ‘‘that
it had to choose between maintaining the lower schools for

71175 U. S., 528.

44 JOURNAL oF Necro History

a large number of Negroes and providing a high school for
about sixty.’’ The board of education, declared, moreover,
that the establishment of a Negro high school was merely
postponed.

The opinion of the court was that a decision by a State
court, denying an injunction against the maintenance by a
board of education of a high school for white children, while
failing to maintain one for Negro children also, for the
reason that the funds were not sufficient to maintain it in
addition to needed primary schools for Negro children, does
not constitute a denial to persons of color of the equal pro-
tection of the law or equal privileges of citizens of the
United States. The court held that under the circum-
stances disclosed it could not say that this action of the
State court was, within the meaning of the Fourteenth
Amendment, a denial by the State to the plaintiffs and to
those associated with them of the equal protection of the
laws, or of any privileges belonging to them as citizens of
the United States. While the court admitted that the bene-
fits and burdens of public taxation must be shared by citi-
zens without discrimination against any class on account
of their race, it held that the education of people in schools
maintained by State taxation is a matter belonging to the
respective States, and any interference on the part of Fed-
eral authority with the management of such schools cannot
be justified except in case of a clear unmistakable disregard
of rights secured by the supreme law of the land. |

This is downright sophistry. To any sane man it could
not but be evident that this was an ‘‘unmistakable disregard
of rights secured by the Supreme law of the land.’’ The
school authorities had separated white and Negro children
for purposes of education on account of race and had, more-
over, refused to grant the Negro children the facilities equal
to those of the white. The State, in the first place, in estab-
lishing separate schools on the basis of race, violated a
right guaranteed the Negro race by the Constitution of the
United States, and the board of education of Richmond

Furry Years or Necro CrrrzENsHIP 45

County violated still another in failing to provide for the
Negroes the same facilities for high school education as
those furnished the whites while taxing all citizens without
regard to race. It is true that the Federal Government
cannot generally interfere in matters of police regulation
of persons and property in the States but when the matter
of race is introduced the national authority is thoroughly
competent within the Constitution to restrain such local
government or any group of persons so authorized by such
government. It would have been unwise for the court to
enjoin the collection of such a tax but it could have on the
constitutional points raised in this case declared invalid
laws separating the races for purposes of education.

The sophistry of the Supreme Court in seeking to justify
its refusal to maintain the rights of the Negro to educa-
tion is still more evident from its opinion in the case of
Berea College v. The Commonwealth of Kentucky, decided
in 1908. Berea College was established in 1856 by a group
of antislavery Kentucky mountaineers, led by John G. Fee,
desiring to bring up their children in the love of free insti-
tutions. There were no Negro students prior to the Civil
- War but a few Negro soldiers were admitted on returning
home from the front in their uniforms and members of the
race were thereafter welcomed at Berea. In the course of
time, however, this coeducation of the races became very
distasteful to the State of Kentucky with its decided in-
crease in race prejudice necessitating in their economy a
thorough proscription of the Negro race. In 1904, there-
fore, the State of Kentucky enacted a law against persons
and corporations maintaining schools for both white per-
sons and Negroes.

Feeling that its charter was violated by this law and also
that it infringed upon the rights guaranteed the Negro in
the Constitution of the United States, Berea College at-
tacked the validity of this measure in the inferior courts
and finally in the Supreme Court of the United States.
The plaintiff unanswerably contended that this Kentucky

46 JOURNAL oF Nrcro History -

law abridged one’s privileges and immunities, in violation
of the Fourteenth Amendment of the Constitution of the
United States, which was a limitation on the police power
of the State when it brings in the matter of race. It further
contended that the Constitution makes no distinction be-
tween races and that the Fourteenth Amendment is not only
to protect Negroes but to protect white persons in the en-
joyment of their rights. The plaintiff admitted that social
equality could not be enforced by legislation but contended
that voluntary social equality of persons cannot be consti-
tutionally prohibited, unless it is shown that such is im-
moral, disorderly, or for some other reason so palpably
injurious to the public welfare as to justify direct inter-
ference with the personal liberty of the citizens.

Evidently wishing to find some ground upon which it
could base its opinion upholding the Supreme Court of
Kentucky which had sustained this statute, the Supreme
Court of the United States fell back upon various princi-
ples of interpretation. The court said it would not disturb
the judgment of the State court resting on Federal or non-
Federal grounds, if the latter was sufficient to sustain the
decision in as much as the State court determines the extent
of the limitations of powers conferred by the State on its
corporations. It directed attention to the fact that a cor-
poration is not entitled to all the immunities to which indi-
viduals are entitled and a State may withhold from its
corporations privileges and powers of which it cannot con-
stitutionally deprive individuals. A State statute limiting
the powers of corporations and individuals may be consti-
tutional as to the former, although unconstitutional as to
the latter; and if separable it will not be held unconstitu-
tional in the instance of a corporation unless it clearly ap-
pears that the legislature would not have enacted it as to
corporations separately. ‘‘The same rule,’’ continuesthe
court, ‘‘which permits separable sections of a statute to be
declared unconstitutional without rendering the entire
statute void applies to separable provisions of a section of

4 Firry Years oF Necro CrrizeEnsuip 47
Z

astatute.. In coming to the assistance of the Supreme Court
of Kentucky the national tribunal said“ the prohibition of
Kentucky against persons and corporations maintaining
schools for both white persons and Negroes is separable
and, even if an unconstitutional restraint as to individuals,
is not unconstitutional as to corporations, it being within
the power of the State to determine the powers conferred
upon its corporations.%

The court conceded that the reserve power to alter, or
amend charters is subject to reasonable limitations but in-
sisted that the Kentucky law includes no alteration or
amendment which defeats or substantially impairs the ob-
‘ject of the grant of vested rights. The court then went
almost out of its way to say that ‘‘a general statute which
in effect alters or amends a charter is to be construed as
an amendment for all even if not in terms so designated.
The court conceded that a statute which permits the educa-
tion of both whites and Negroes at the same time in different
localities, although prohibiting their attendance in the
same place, does not defeat the object of a grant to main-
tain the college for all persons and is not violative of the
contract clause of the Federal Constitution, the State law
having reserved the right to repeal, alter and amend
- charters.

Justice Harlan dissented. He referred to the fact that
the court held also, in Huntington v. Werthen,” that if one
provision of a statute be invalid the whole act will fall,
where ‘‘it is evident the legislature would not have enacted
one of them without the other.’’ Harlan meant to say here
that to construe this law as applying only to corporations
and not to individuals would give it an interpretation that
the legislature never had in mind. The intention of the
State legislature was to prevent all coeducation of Negroes
and whites whether it should be done by persons or cor-
porations. The whole law, therefore, should fall. Justice ©
Harlan conceded that a State reserved the right to repeal

72120 U. S., 102.

48 JOURNAL oF Necro History

the charter but it was not repealed by this act. The statute
did not purport even to amend the charter of any particular
corporation but assumed to establish a certain rule appli-
cable alike to all individuals, associations, or corporations
that teach the white and black races together in the same
institution. This decision of the United States Supreme
Court was then nothing more than ‘‘fine sophistry’’ to sanc-
tion an arbitrary invasion of the rights of liberty and prop-
erty guaranteed by the Fourteenth Amendment.

Justice Harlan contended that if the giving of instruc-
tion is not a property right, it is one’s liberty. Exposing
the sophistry of the court he remarked that if the schools
must be subjected to such segregation, why not also the
Sabbath Schools and Churches? ‘‘If States can prohibit
the coeducation of the whites and blacks it may prohibit
the association of the Anglo-Saxons and Latins; of the
Christians and the Jews. Have we become so inoculated
with prejudice of race,’’ continued Justice Harlan, ‘‘that
an American government, professedly based on the princi-
ples of freedom, and charged with the protection of all citi-
zens alike, can make distinctions between such citizens in
the matter of their voluntary meeting for innocent purposes
simply because of their respective races? Further if the
lower court be right, then a State may make it a crime for
white and colored persons to frequent the same market
places, at the same time, or appear in an assembly of citi-
zens convened to consider questions of a public or political
nature in which all citizens without regard to race, are
equally interested.’’

THe Ricgut to Lapor

Although the Negro by these various decisions of the
Supreme Court of the United States had been deprived of
rights essential to freedom and citizenship in matters of
voting, service upon juries, education, and the use of com-
mon carriers, there remained even another right which was
to be infringed upon without the hope of any redress from

Firry Years or Necro Crrizensnip 49

the United States Supreme Court. This was the right to
contract, to labor. Every honest man should live by his
own labor and it is a well established principle of demo-
cratic government, that in the exercise of this right the
individual should be free not only from interference on the
part of the government but should enjoy protection from
individuals subject to the government. Because of the
development of race prejudice into a flame of bitter antag-
onism among the laboring men during the period of com-
mercial expansion in the United States since the Recon-
struction period, the country has been all but thoroughly
organized through trades unions, so as to restrict the Negro
to menial service by written constitutions in keeping with
the caste which has so long figured conspicuously in Amer-
ican institutions.

Negroes sought redress in the courts and finally in the
- United States Supreme Court, the best case in evidence
being that of Hodges v. United States."* In this case came
a complaint from certain Negroes in Arkansas laboring in
the service of an employer according to a contract. Because
of their color certain criminals in that community conspired
to injure, oppress, threaten and intimidate them, resulting
in the severance of their connection with this employer and
the consequent economic loss resulting therefrom. The
Negroes thus complaining brought this case to the United
States Supreme Court contending that a remedy for this
evil was to be found in the revised statutes of the United
States Senate, Sections 1977, 1979, 5508, and 5510. These
sections follow in the order of their importance:

Section 5508. If two or more persons conspire to injure, op-
press, threaten or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the Consti-
tution or laws of the United States, or because of his having so
exercised the same; or if two or more persons go in disguise on the
highway, or on the premises of another, with intent to hinder his
free exercise or enjoyment of any right or privilege so secured,

73202 U. S., 1.

50 JoURNAL oF Necro History

they shall be fined not more than five thousand dollars and im-
prisoned not more than ten years, and shall, moreover, be there-
after ineligible to any office, or place of honor, profit or trust
created by the Constitution or laws of the United States.

Other statutes referred to but not so vital were:

Section 1977. All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to
make and enforce contracts, to sue the parties, give evidence, and
to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.

Section 1978. All citizens of the United States shall have the
same right in every State and territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and convey
real and personal property.

Section 1979. Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United States
or other persons within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities, secured by the Constitu-
tion and laws, shall. be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

Section 5510. Every person who, under color of any law,
statute, ordinance, regulation, or custom, subjects or causes to be
subjected, any inhabitant of any State or Territory to the depriva-
tion of any right, privilege, or immunities, secured or protected
by the Constitution and laws of the United States or to different
punishments, pains or penalties, on account of such inhabitants
being an alien, or by reason of his color, or race, than are pre-
scribed for the punishment of citizens, shall be punished by a fine
of not more than one thousand dollars or by imprisonment not
more than one year, or by both.

‘The decision in this case was in substance that Congress
cannot make it an offense against the United States for
individuals to combine or conspire to prevent even by foree,
citizens of African descent, solely because of their race,
from earning a living, although the right to earn one’s liv-

Firty Yzars or Necro CITIZENSHIP 51

ing in all legal ways and to make lawful contracts in refer-
ence thereto is a vital point of freedom established by the
Constitution. Section 5508 had been upheld in Ha Parte
Yarborough,’* and in the ease of Logan v. the United
States® the court referred to this section as having been
upheld in Ex Parte Yarborough. In United States v.
Reese, moreover,” Justice Waite said in 187 0, Speaking for
the court, ‘‘The rights and immunities created by or de-
pendent upon the Constitution of the United States ean be
protected by Congress. The form and the manner of the
protection may be such as Congress in the legitimate exer-
cise of its legislative discretion shall provide. This may
be varied to meet the necessities of the particular right to
be protected.’’

‘“The whole scope and effect of this series of decisions,’’
continued the court, ‘‘was that, while certain fundamental
rights recognized and declared but not granted or created,
in some of the amendments to the Constitution are thereby
guaranteed only against violation or abridgement by the
United States, or by the States, as the case may be, and
cannot, therefore, be affirmatively enforced by Congress
against unlawful causes of individuals; yet that every right
created by, arising under, or dependent upon the Constitu-
tion of the United States may be protected and enforced by
Congress by such means and in such manner as Congress
in the exercise of the correlative duty of protection, or of
the legislative powers conferred upon it by the Constitu-
tion, may in its discretion deem most eligible and best
adopted to attain the object.’’ This doctrine was sustained
also by the decision in the case of United States v. Wad-
dell," and Motes v. United States."* Here it was emphat-
ically stated that Congress might pass any law necessary

74110 U. S., 651.

75144 U. S., 236, 286, 293.
78692 U.'S,, 214, 217. -
77110 U. 8., 651.

78178 U. S., 458, 462.

52 JOURNAL OF Necro History

or proper for carrying out any power conferred upon it by
the Constitution. :

The court here, however, evaded the real question as
before, dodging behind the doctrine that while a State or the
United States could not abridge the privileges and immuni-
ties of citizens, individuals or groups of individuals may
do so and Congress has no power to interfere in such mat-
ters since these come within the police power of the State.
In other words, the government cannot discriminate against
the Negro itself, but it can establish agencies with power
to doit. Itis not surprising that Justice Harlan dissented,
feeling as he had on former occasions that this decision
permitted the States and groups of individuals supposedly
subject to the government of those States to fasten upon the
Negro badges or incidents of slavery in violation of the
civil rights guaranteed him by the Thirteenth and Four-
teenth Amendments. He believed that Congress had the
right to pass any law to protect citizens in the enjoyment
of any right granted him by Congress. The duty of the
Federal government as Justice Harlan saw it was very
clear in that the State had caused the race question to be
injected therein and in such a case Congress always has
power to act.

On the whole, however, the United States Supreme
Court has not yet had the moral courage to face the issue
in cases involving the constitutional rights of the Negro.
Not a decision of that tribunal has yet set forth a straight- |
forward opinion as to whether the States can enact one code
of laws for the Negroes and another for the other elements
of our population in spite of the fact that the Constitution
of the United States prohibits such iniquitous legislation.
In cases in which this question has been frankly put the
court has wiggled out of it by some such declaration as that
the case was improperly brought, that there were defects
in the averments, or that the court lacked jurisdiction.

In the matter of jurisdiction the United States Supreme
Court has been decidedly inconsistent. This tribunal at

Firry Years or Necro CrrizensuHie 5

first followed the opinion of Chief Justice John Marshall in
the case of Osborn v. United States Bank,” that ‘‘when a
question to which the judicial power of the United States is
extended by the Constitution forms an ingredient of the
original cause it is in the power of Congress to give the
Circuit Courts the jurisdiction of that cause, although other
questions of fact or of law may be involved.’’ Prior to the
rise of the Negro to the status of so-called citizenship the
court built upon this decision the prerogative of examining
all judicial matters pertaining to the Federal Government
until it made itself the sole arbiter in all important consti-
tutional questions and became the bulwark of nationalism.
After some reaction the court resumed that position in all
of its decisions except those pertaining to the Negro; for
in the recent commercial expansion of the country involving
the litigation of unusually large property values, the United
States Supreme Court has easily found grounds for juris-
diction where economic rights are concerned; but just as
easily disclaims jurisdiction where human rights are in-
volved in cases in which Negroes happen to be the com-
plainants.

The fairminded man, the patriot of foresight, observes,
therefore, with a feeling of disappointment this prostitu-
tion of an important department of the Federal Govern-
ment to the use of the reactionary forces in the United
States endeavoring to whittle away the essentials of the
Constitution which guarantees to all persons in this coun-
try all the rights enjoyed under the most progressive de-
mocracy on earth. Since the Civil War the United States
Supreme Court instead of performing the intended func-
tion of preserving the Constitution by democratic interpre-
tation, has by its legislative decisions practically stricken
therefrom so many of its liberal provisions and read into
the Constitution so much caste and autocracy that discon-
tent and radicalism have developed almost to the point of
eruption. C. G. Woonson

799 Wheaton, 738.

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