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diff --git a/old/65083-0.txt b/old/65083-0.txt deleted file mode 100644 index db179eb..0000000 --- a/old/65083-0.txt +++ /dev/null @@ -1,16649 +0,0 @@ -The Project Gutenberg eBook of Race Distinctions in American Law, by -Gilbert Thomas Stephenson - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: Race Distinctions in American Law - -Author: Gilbert Thomas Stephenson - -Release Date: April 14, 2021 [eBook #65083] - -Language: English - -Character set encoding: UTF-8 - -Produced by: Richard Tonsing and The Online Distributed Proofreading Team - at https://www.pgdp.net (This file was produced from images - generously made available by The Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK RACE DISTINCTIONS IN AMERICAN -LAW *** - - - - - RACE DISTINCTIONS - IN AMERICAN LAW - - - - - RACE DISTINCTIONS IN AMERICAN LAW - - - BY - GILBERT THOMAS STEPHENSON, A.M., LL.B. - -[Illustration] - - NEW YORK AND LONDON - D. APPLETON AND COMPANY - 1910 - - - - - COPYRIGHT, 1910, BY - D. APPLETON AND COMPANY - - - _Published September, 1910_ - - - - - TO MY - FATHER AND MOTHER - ------------------------------------------------------------------------- - - - - - PREFACE - - -America has to-day no problem more perplexing and disquieting than that -of the proper and permanent relations between the white and the colored -races. Although it concerns most vitally the twenty millions of -Caucasians and the eight millions of Negroes in eleven States of the -South, still it is a national problem, because whatever affects one part -of our national organism concerns the whole of it. Although this -question has been considered from almost every conceivable standpoint, -few have turned to the laws of the States and of the Nation to see how -they bear upon it. It was with the hope of gaining new light on the -subject from this source that I undertook the present investigation. - -I have examined the Constitutions, statutes, and judicial decisions of -the United States and of the States and Territories between 1865 and the -present to find the laws that have made any distinctions between persons -on the basis of race. Reference has been made to some extent to laws in -force before 1865, but only as the background of later legislation and -decision. In order to make this study comparative as well as special, -the writer has abandoned his original plan of confining it to the -Southern States and laws applicable only to Negroes, and has extended it -to include the whole United States and all the races. - -Immediately after the Negro became a free man in 1865, the Federal -Government undertook, by a series of constitutional amendments and -statutory enactments, to secure to him all the rights and privileges of -an American citizen. My effort has been to ascertain how far this -attempt has been successful. The inquiry has been: After forty-five -years of freedom from physical bondage, how much does the Negro lack of -being, in truth, a full-fledged American citizen? What limitations upon -him are allowed or imposed by law because he is a Negro? - -This is not meant, however, to be a legal treatise. Although the sources -are, in the main, constitutions, statutes, and court reports, an effort -has been made to state the principles in an untechnical manner. Knowing -that copious citations are usually irksome to those who read for general -information, I have relegated all notes to the ends of the chapters for -the benefit of the more curious reader who often finds them the most -profitable part of a book. There he will find citations of authorities -for practically every important statement made. - -All the chapters, except the last two, were published serially in _The -American Law Review_/cite> during the year 1909. The substance of the -chapter on “Separation of Races in Public Conveyances” was published -also in _The American Political Science Review_ for May, 1909. - -I wish that I could make public acknowledgment of my indebtedness to all -who have helped me in the preparation of this volume. Hundreds of public -officials in the South—mayors of cities, clerks of courts, -attorneys-general, superintendents of public instruction, etc.—have -responded generously to my requests for information. I am thankful to -Mr. John H. Arnold, Librarian of the Harvard Law School, for access to -the stacks of that library, without which privilege my work would have -been greatly delayed, and to his assistants for their uniform courtesy -while I was making such constant demands upon them. I am under especial -obligation to Professor Albert Bushnell Hart, of Harvard University, for -his direction and assistance in my examination of the sources and his -valuable advice while I have been preparing the material for publication -in this form; also to Mr. Charles E. Grinnell, former Editor of _The -American Law Review_, for his encouragement and suggestions during the -preparation of the articles for his magazine. Lastly, I would express my -gratitude to Mr. Charles Vernon Imlay, of the New York Bar, the value of -whose painstaking help in the revision of the manuscript of this book is -truly inestimable. - - GILBERT THOMAS STEPHENSON. - - WARREN PLACE, PENDLETON, N. C. - June 1, 1910. - - - - - CONTENTS - - - - CHAPTER I - - PAGE - - INTRODUCTORY 1–11 - - What is a Race Distinction in Law 1 - - Distinctions and Discriminations Contrasted 2 - - Legal and Actual Distinctions 5 - - All Race Elements Included 6 - - Period Covered from 1865 to Present 7 - - - CHAPTER II - - WHAT IS A NEGRO? 12–25 - - Legal Definition of Negro 12 - - Proper Name for Black Men in America 20 - - - CHAPTER III - - DEFAMATION TO CALL A WHITE PERSON A NEGRO 26–34 - - - CHAPTER IV - - THE “BLACK LAWS” OF 1865–68 35–66 - - “Black Laws” of Free States 36 - - Restrictions upon Movement of Negroes 40 - - Limitations upon Negroes in Respect to Occupations 41 - - Sale of Firearms and Liquor to Negroes 43 - - Labor Contracts of Negroes 46 - - Apprentice Laws 53 - - Vagrancy Laws 58 - - Pauper Laws 60 - - - CHAPTER V - - RECONSTRUCTION OF MARITAL RELATIONS 67–77 - - Remarriages 68 - - Certificates of Marriage 70 - - Slave Marriages Declared Legal by Statute 73 - - Marriages Between Slaves and Free Negroes 74 - - Federal Legislation 75 - - - CHAPTER VI - - INTERMARRIAGE AND MISCEGENATION 78–101 - - Intermarriage During Reconstruction 78 - - Present State of the Law Against Intermarriage 81 - - To Whom the Laws Apply 81 - - Effect of Attempted Intermarriage 83 - - Punishment for Intermarriage 84 - - Punishment for Issuing Licenses 86 - - Punishment for Performing the Ceremony 87 - - Cohabitation Without Intermarriage 88 - - States Repealing Laws Against Intermarriage 89 - - Marriages Between the Negro and Non-Caucasian Races 90 - - Effect Given to Marriages in Other States 92 - - Intermarriage and the Federal Constitution 95 - - Intermarriages in Boston 98 - - - CHAPTER VII - - CIVIL RIGHTS OF NEGROES 102–153 - - Federal Civil Rights Legislation 103 - - State Legislation Between 1865 and 1883 111 - - In States Outside of South 112 - - In South 115 - - State Legislation After 1883 120 - - In South 120 - - In States Outside of South 120 - - Hotels 124 - - Restaurants 127 - - Barber-shops 129 - - Bootblack Stands 130 - - Billiard-rooms 131 - - Saloons 132 - - Soda Fountains 133 - - Theatres 134 - - Skating-Rinks 136 - - Cemeteries 136 - - Race Discrimination by Insurance Companies 138 - - Race Discriminations by Labor Unions 140 - - Churches 141 - - Negroes in the Militia 144 - - Separation of State Dependents 146 - - - CHAPTER VIII - - SEPARATION OF RACES IN SCHOOLS 154–206 - - Berea College Affair 154 - - Exclusion of Japanese from Public Schools of San Francisco 159 - - Dr. Charles W. Eliot on Separation of Races in Schools 163 - - Separation Before 1865 165 - - Present Extent of Separation in Public Schools 170 - - In South 170 - - In States Outside of South 177 - - Separation in Private Schools 190 - - Equality of Accommodations 192 - - Division of Public School Fund 194 - - - CHAPTER IX - - SEPARATION OF RACES IN PUBLIC CONVEYANCES 207–236 - - Origin of “Jim Crow” 208 - - Development of Legislation Prior to 1875 208 - - Legislation Between 1865 and 1881 211 - - Separation of Passengers on Steamboats 214 - - Separation of Passengers in Railroad Cars 216 - - Interstate and Intrastate Travel 217 - - Sleeping Cars 219 - - Waiting-Rooms 220 - - Trains to which Laws do not Apply 221 - - Passengers to whom Law does not Apply 222 - - Nature of Accommodations 223 - - Means of Separation 224 - - Designation of Separation 225 - - Punishment for Violating Law 225 - - Separation of Postal Clerks 227 - - Separation of Passengers in Street Cars 227 - - Present Extent of Separation 228 - - Method of Separation 229 - - Enforcement of Laws 231 - - Exemptions 232 - - - CHAPTER X - - NEGRO IN COURT ROOM 237–280 - - As Spectator 237 - - As Judge 238 - - As Lawyer 239 - - As Witness 241 - - As Juror 247 - - Actual Jury Service by Negroes in South 253 - - Separate Courts 272 - - Different Punishments 273 - - - CHAPTER XI - - SUFFRAGE 281–347 - - Negro Suffrage Before 1865 282 - - Suffrage Between 1865 and 1870 285 - - Suffrage Between 1870 and 1890 288 - - Southern Suffrage Amendments Since 1890 294 - - Citizenship 296 - - Age 297 - - Sex 298 - - Residence 298 - - Payment of Taxes 299 - - Ownership of Property 300 - - Educational Test 301 - - “Grandfather Clauses” 305 - - “Understanding and Character Clauses” 308 - - Persons Excluded from Suffrage 310 - - Suffrage in Insular Possessions of United States 312 - - Constitutionality of Suffrage Amendments 313 - - Maryland and Fifteenth Amendment 317 - - Extent of Actual Disfranchisement 320 - - Qualifications for Voting in the United States 322 - - - CHAPTER XII - - RACE DISTINCTIONS _versus_ RACE DISCRIMINATIONS 348–362 - - Race Distinctions not Confined to One Section 348 - - Race Distinctions not Confined to One Race 350 - - Race Distinctions not Decreasing 351 - - Distinctions not Based on Race Superiority 353 - - Solution of Race Problem Hindered by Multiplicity of - Proposed Remedies 354 - - Search for a Common Platform 355 - - Proper Place of Race Distinctions 356 - - Obliteration of Race Discriminations 358 - - TABLE OF CASES CITED 363 - - INDEX 369 - - - - - RACE DISTINCTIONS IN - AMERICAN LAW - - - - - CHAPTER I - INTRODUCTORY - - - WHAT IS A RACE DISTINCTION IN LAW? - -A race distinction in the law is a requirement imposed by statute, -constitutional enactment, or judicial decision, prescribing for a person -of one race a rule of conduct different from that prescribed for a -person of another race. If, for instance, a Negro is required to attend -one public school, a Mongolian another, and a Caucasian a still -different one, a race distinction is created, because the person must -regulate his action accordingly as he belongs to one or another race. -Or, if a person, upon entering a street car, is required by ordinance or -statute to take a seat in the front part of the car if he is a -Caucasian, but in the rear if he is a Negro, this rule is a race -distinction recognized by law. Again, a race distinction is made by the -law when intermarriage between Negroes and Caucasians is prohibited. - -Distinctions in law have been made on grounds other than race. Thus, in -those States in which men may vote by satisfying the prescribed -requirements, but in which women may not vote under any circumstances, -the law creates a distinction on the basis of sex. Laws forbidding -persons under seven years of age from testifying in court and laws -exempting from a poll tax persons under twenty-one years of age give -rise to age distinctions. Other instances might be cited, but only race -distinctions have a place here. - - - DISTINCTIONS AND DISCRIMINATIONS CONTRASTED - -It is important, at the outset, to distinguish clearly between race -_distinctions_ and race _discriminations_; more so, because these -words are often used synonymously, especially when the Negro is -discussed. A distinction between the Caucasian and the Negro, when -recognized and enforced by the law, has been interpreted as a -discrimination against the latter. Negroes have recognized that they -are the weaker of the two races numerically, except in the Black Belt -of the South, and intellectually the less developed. Knowing that the -various race distinctions have emanated almost entirely from white -constitution-makers, legislators, and judges, they regard these -distinctions as expressions of the aversion on the part of the -Caucasian to association with the Negro. Naturally, therefore, they -have resented race distinctions upon the belief and, in many -instances, upon the experience that they are equivalent to race -discriminations. - -In fact, there is an essential difference between race distinctions and -race discriminations. North Carolina, for example, has a law that white -and Negro children shall not attend the same schools, but that separate -schools shall be maintained. If the terms for all the public schools in -the State are equal in length, if the teaching force is equal in numbers -and ability, if the school buildings are equal in convenience, -accommodations, and appointments, a race distinction exists but not a -discrimination. Identity of accommodation is not essential to avoid the -charge of discrimination. If there are in a particular school district -twice as many white children as there are Negro children, the school -building for the former should be twice as large as that for the latter. -The course of study need not be the same. If scientific investigation -and experience show that in the education of the Negro child emphasis -should be placed on one course of study, and in the education of the -white child, on another; it is not a discrimination to emphasize -industrial training in the Negro school, if that is better suited to the -needs of the Negro pupil, and classics in the white school if the latter -course is more profitable to the white child. There is no discrimination -so long as there is equality of opportunity, and this equality may often -be attained only by a difference in methods. - -On the other hand, if the term of the Negro school is four months, and -that of the white, eight; if the teachers in the Negro schools are -underpaid and inadequately or wrongly trained, and the teachers of the -white schools are well paid and well trained; if Negro children are -housed in dilapidated, uncomfortable, and unsanitary buildings, and -white children have new, comfortable, and sanitary buildings; if courses -of study for Negro children are selected in a haphazard fashion without -any regard to their peculiar needs, and a curriculum is carefully -adapted to the needs of white children; if such conditions exist under -the law, race distinctions exist which are at the same time -discriminations against Negroes. Where the tables are turned and Negro -children are accorded better educational advantages than white, the -discriminations are against Caucasians. - -A law of Virginia requires white and Negro passengers to occupy separate -coaches on railroad trains. If the coaches for both races are equally -clean, equally comfortable, and equally well appointed; if both races -are accorded equally courteous service by the employees of the railroad; -if, in short, all the facilities for travel are equal for both races, -race distinctions exist but not race discriminations. The extent of -accommodations need not be identical. The railroad company, for -instance, need furnish only the space requisite for the accommodation of -each race. If, however, the white passengers are admitted to clean, -well-lighted, well-ventilated coaches and Negroes, to foul, unclean, -uncomfortable coaches; if white coaches are well-policed, while Negro -passengers are subjected to the insults of disorderly persons; if, in -other words, the Negro passenger does not receive as good service for -his fare as the white, a discrimination against the Negro is made under -the guise of a legal distinction. - -In like manner, one might consider each of the race distinctions -recognized in the law and show how it may be applied so as not to work a -discrimination against either race and, as easily, how it may be used to -work an injustice to the weaker race. A race distinction connotes a -difference and nothing more. A discrimination necessarily implies -partiality and favoritism. - - - LEGAL AND ACTUAL DISTINCTIONS - -There is a difference between actual race distinctions—those practiced -every day without the sanction of law—and legal race distinctions—those -either sanctioned or required by statutes or ordinances. Law is -crystallized custom. Race distinctions now recognized by law were -habitually practiced long before they crystallized into statutes. Thus, -actual separation of races on railroad coaches—if not in separate -coaches, certainly in separate seats or portions of the coach—obtained -long before the “Jim Crow” laws came into existence. Moreover, -miscegenation was punished before the legislature made it a crime. Some -race distinctions practiced to-day will probably be sanctioned by -statute in the future; others will persist as customs. In some Southern -cities, for instance, there are steam laundries which will not accept -Negro patronage. Everywhere in the South and in many places in other -sections, there are separate churches for the races. It is practically a -universal custom among the white people in the South never to address a -Negro as “Mister” or “Mistress.” This custom obtains to some extent -elsewhere. Thus, in a recent case before a justice of the peace in -Delaware in which the parties were Negroes, one of them insisted upon -speaking of another Negro as “Mister.” The justice forbade him so to do, -and, upon his persisting, fined him for contempt. Yet, these -distinctions and many others that might be cited are not required by -law, and some of them, if expressed in statutes, would be -unconstitutional. - -Most race distinctions, however, are still uncrystallized. But these -will be mentioned merely for illustration, since the purpose here is to -discuss only those distinctions which have been expressed in -constitutions, statutes, and judicial decisions. Mr. Ray Stannard Baker -in his “Following the Colour Line,”[1] has admirably depicted actual -race relations in the United States. He has gone in person out upon the -cotton plantations of the Lower South; into the Negro districts of -cities in the South, East, and North; into schools, churches, and court -rooms; and has described how the Negro lives, what he does, what he -thinks about himself and about the white man, and what the white man -thinks about him. By studying the race distinctions he describes from -the other standpoint suggested—that is, by tracing their gradual -crystallization into statutes and judicial decisions, a better -understanding may be had of race distinctions in general. - - - ALL RACE ELEMENTS INCLUDED - -Attention will be directed not only to the Negro but to other races in -the United States—the Mongolian in the Far West and the Indian in the -Southwest. Of course, by far the largest race element after the -Caucasian is the Negro with its 8,833,994 people of whom eighty-four and -seven-tenths per cent. are in the thirteen States of the South. But it -will be found that in those sections where the Indians have existed or -still exist in appreciable numbers and come into association with the -Caucasian—that is, where they do not still maintain their tribal -relations—race distinctions have separated these two races. This is -equally true of the Japanese and Chinese in the Pacific States. Most of -the discussion will necessarily be of the distinctions between -Caucasians and Negroes, but as distinctions applicable to Mongolians and -Indians arise, they will be mentioned to show that race consciousness is -not confined to any one section or race. - - - PERIOD COVERED FROM 1865 TO PRESENT - -Race distinctions have existed and have been recognized in the law from -the beginning of the settlement of the New World, long before the -thirteen colonies became free and independent States, or before the -Federal Constitution was adopted. The first cargo of Negroes was landed -in Virginia in 1619, only twelve years after the founding of Jamestown. -In 1630, eleven years later, the Virginia Assembly passed the following -resolution:[2] “Hugh Davis to be soundly whipped before an assembly of -Negroes and others, for abusing himself to the dishonor of God and the -shame of Christians, by defiling his body in lying with a Negro.” Many -of the Colonies—later States—prohibited intermarriage between Caucasians -and Negroes whether the latter were slave or free. The Colonies and -States prohibited or limited the movements of free Negroes from one -colony or State to another, prescribed special punishment for adultery -between white persons and Negroes, forbade persons of color to carry -firearms, and in divers other ways restricted the actions of Negroes. - -It is not so profitable, however, at this day to study these early -distinctions, for the distinctions based on race were then inseparably -interwoven with those based on the state of slavery. Thus, it is -impossible to say whether a law was passed to regulate a person’s -actions because he was a slave or because he was of the Negro race. -Moreover, the laws relating to race and slave distinctions prior to 1858 -were compiled by John Codman Hurd in his two-volume work entitled “The -Law of Freedom and Bondage in the United States,” published in 1858. Any -attempt at a further treatment of the period covered by that work would -result only in a digest of a multitude of statutes, most of which have -been obsolete for many years. But a greater reason for the futility of a -discussion of race distinctions before 1865 is that prior to that date, -as it has been so often expressed, the Negro was considered to have no -rights which the white man was bound to respect. The Dred Scott -decision[3] in 1857 virtually held that a slave was not a citizen or -capable of becoming one, and this dictum, unnecessary to the decision of -the case, did much, says James Bryce,[4] “to precipitate the Civil War.” -If the Negro could enjoy only licenses, claiming nothing as of right, it -is not very valuable to study the distinctions which the master imposed -upon him. - -The year 1865 marked the beginning of the present era in race relations. -It was in that year that the Negro became a free man, and that the -Federal Government undertook by successive legislative enactments to -secure and guarantee to him all the rights and privileges which the -Caucasian race had so long enjoyed as its inalienable heritage. - -The Emancipation Proclamation of 1862, issued as a military expedient, -declared that, unless the seceding States were back in the Union by -January 1, 1863, all slaves in those States should be emancipated. This -did not apply to the Union States, as Delaware, which still had slaves. -But immediately upon the cessation of hostilities, Congress set to work -to make emancipation general throughout the Union and to give the Negro -all the rights of a citizen. The Thirteenth Amendment to the -Constitution, ratified December 18, 1865, abolished slavery and -involuntary servitude except as a punishment for crime. The following -April, the first Civil Rights Bill[5] was passed, which declared that -“all persons born in the United States and not subject to any foreign -power, excluding Indians not taxed, are hereby declared to be citizens -of the United States; and such citizens, of every race and color, -without regard to any previous condition of slavery or involuntary -servitude, except as a punishment for crime ... shall have the same -right, in every State and Territory in the United States, to make and -enforce contracts, to sue, ... and to full and equal benefit of all laws -and proceedings in the security of persons and property, as is enjoyed -by white citizens, and shall be subject to like punishments and -penalties, and to none other....” - -These rights were enlarged by the Fourteenth Amendment, ratified in -1868, which provides that: “All persons born or naturalized in the -United States, and subject to the jurisdiction thereof, are citizens of -the United States and of the State wherein they reside. No State shall -make or enforce any law which shall abridge the privileges and -immunities of citizens of the United States; nor shall any State deprive -any person of life, liberty, or property without due process of law; nor -deny to any person within its jurisdiction the equal protection of the -laws.” Though the word “Negro” is not mentioned in this Amendment nor in -any of the subsequent Federal enactments, it is not open to dispute that -the legislators had in mind primarily the protection of the Negro. - -Under the Fourteenth Amendment, the Civil Rights Bill of 1866 was -reënacted[6] in 1870, with the addition that it extended to all persons -within the jurisdiction of the United States, and that it provided that -all persons should be subject to like taxes, licenses, and exactions of -every kind. - -The same year, 1870, the Fifteenth Amendment was ratified, which -declared that the right of citizens of the United States to vote should -not be denied or abridged by the United States or by any States on -account of race, color, or previous condition of servitude. - -The Civil Rights Bill[7] of 1875, the most sweeping of all such -legislation by Congress, declared that all persons within the -jurisdiction of the United States should 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 -limitations established by law, and applicable alike to citizens of -every race and color, regardless of any previous condition of servitude. -It also provided that jurors should not be excluded on account of race, -color, or previous condition of servitude. - -An enumeration of these Federal statutes and constitutional amendments -has been made in order to show the efforts of Congress to secure to the -Negro every civil and political right of a full-fledged citizen of the -United States. Later they will be discussed in detail. By the Civil -Rights Bill of 1875, Congress apparently intended to secure not only -equal but identical accommodations in all public places for Negroes and -Caucasians. If one looks only upon the surface of these several -legislative enactments, it would seem impossible to have a race -distinction recognized by law which did not violate some Federal statute -or the Federal Constitution. But the succeeding pages will show that, -under the shadow of the statutes and the Constitution, the legislatures -and courts of the States have built up a mass of race distinctions which -the Federal courts and Congress, even if so inclined, are impotent to -attack. - - - NOTES - -Footnote 1: - - Doubleday, Page & Co., 1908. - -Footnote 2: - - 1 Hen. 146, quoted in Hurd’s “Law of Freedom and Bondage,” I, p. 229. - -Footnote 3: - - 19 How. 393 (1857). - -Footnote 4: - - “American Commonwealth,” I, p. 257. - -Footnote 5: - - 14 Stat. L., 27, chap. 31. - -Footnote 6: - - 16 Stat. L., 144, chap. 114. - -Footnote 7: - - 18 Stat. L., 335, chap. 114. - - - - - CHAPTER II - WHAT IS A NEGRO? - - - LEGAL DEFINITION OF NEGRO - -“I had not been long engaged in the study of the race problem when I -found myself face to face with a curious and seemingly absurd question: -‘What is a Negro?’” said Mr. Baker.[8] - -Absurd as the question apparently is, it is one of the most perplexing -and, at times, most embarrassing that has faced the legislators and -judges. - -If race distinctions are to be recognized in the law, it is essential -that the races be clearly distinguished from one another. If a statute -provides that Negroes shall ride in separate coaches and attend separate -schools, it is necessary to decide first who are included under the term -“Negroes.” It would seem that physical indicia would be sufficient, and, -in most instances, this is true. It is never difficult to distinguish -the full-blooded Negro, Indian, or Mongolian one from the other or from -the Caucasian. But the difficulty arises in the blurring of the color -line by amalgamation. The amount of miscegenation between the Mongolian -and other races represented in the United States is negligible; but the -extent of intermixture between the Caucasian and the Negro, the Negro -and the Indian, and the Caucasian and the Indian is appreciable, and -problems arising from it are serious. - -It is absolutely impossible to ascertain the number of mulattoes—that -is, persons having both Caucasian and Negro blood in their veins—in the -United States. Mr. Baker[9] says: “I saw plenty of men and women who -were unquestionably Negroes, Negroes in every physical characteristic, -black of countenance with thick lips and kinky hair, but I also met men -and women as white as I am, whose assertions that they were really -Negroes I accepted in defiance of the evidence of my own senses. I have -seen blue-eyed Negroes and golden-haired Negroes; one Negro girl I met -had an abundance of soft, straight, red hair. I have seen Negroes I -could not easily distinguish from the Jewish or French types; I once -talked with a man I took at first to be a Chinaman but who told me he -was a Negro. And I have met several people, passing everywhere for -white, who, I knew, had Negro blood.” - -A separate enumeration of mulattoes has been made four times—in 1850, -1860, 1870, and 1890 respectively. The census authorities themselves -said that the figures were of little value, and any attempt to -distinguish Negroes from mulattoes was abandoned in the census of 1900. -If a person is apparently white, the census enumerator will feel a -delicacy in asking him if he has Negro blood in his veins. If the -enumerator does ask the question and if the other is honest in his -answer, it is often that the latter does not know his own ancestry. Dr. -Booker T. Washington, for instance, has said that he does not know who -his father was.[10] Marital relations among Negroes during slavery were -so irregular, and illicit intercourse between white men and slave women -was so common that the line of ancestry of many mulattoes is hopelessly -lost. But Mr. Baker makes the rough estimate, which doubtless is -substantially correct, that 3,000,000 of the 10,000,000 (_circa_) -Negroes are visibly mulattoes. This one third of the total Negro -population represents every degree of blood, of color, and of physical -demarcation from the fair complexion, light hair, blue eyes, thin lips, -and sharp nose of the octoroon, who betrays scarcely a trace of his -Negro blood, to the coal-black skin, kinky hair, brown eyes, thick lips, -and flat nose of the man who has scarcely a trace of Caucasian blood. It -is this gradual sloping off from one race into another which has made it -necessary for the law to set artificial lines. - -The difficulty arising from the intermixture of the races was realized -while the Negro was still a slave. Throughout the statutes prior to -1860, one finds references to “persons of color,” a generic phrase -including all who were not wholly Caucasian or Indian. This antebellum -nomenclature has been brought over into modern statutes. It is -surprising to find how seldom the word “Negro” is used in the statutes -and judicial decisions. - -Some States have fixed arbitrary definitions of “persons of color,” -“Negroes,” and “mulattoes”; others, having enacted race distinctions, -have then defined whom they intended to include in each race. This has -been done particularly in the laws prohibiting intermarriage. The -Constitution of Oklahoma[11] provides that “wherever in this -Constitution and laws of this State, the word or words, ‘colored,’ or -‘colored race,’ or ‘Negro,’ or ‘Negro race,’ are used, the same shall be -construed to mean, or apply to all persons of African descent. The term -‘white’ shall include all other persons.” - -Taking up these definitions in the various States—many of them included -within broader statutes—one finds that Alabama,[12] Kentucky,[13] -Maryland,[14] Mississippi,[15] North Carolina,[16] Tennessee,[17] and -Texas[18] define as a person of color one who is descended from a Negro -to the third generation inclusive, though one ancestor in each -generation may have been white. The Code Committee of Alabama of 1903 -substituted “fifth” for “third,” so that at present in that State one is -a person of color who has had any Negro blood in his ancestry in five -generations.[19] The laws of Florida,[20] Georgia,[21] Indiana,[22] -Missouri,[23] and South Carolina[24] declare that one is a person of -color who has as much as one-eighth Negro blood: the laws of -Nebraska[25] and Oregon[26] say that one must have as much as one-fourth -Negro blood in order to be classed with that race. Virginia[27] and -Michigan apparently draw the line in a similar way. In Virginia, a -marriage between a white man and a woman who is of less than one-fourth -Negro blood, “if it be but one drop less,” is legal. A woman whose -father was white, and whose mother’s father was white, and whose -great-grandmother was of a brown complexion, is not a Negro in the sense -of the statute.[28] In 1866, the court of Michigan, under a law limiting -the suffrage to “white male citizens,” held that all persons should be -considered white who had less than one-fourth of African blood.[29] That -State gave the right to vote also to male inhabitants of Indian descent, -but its court held that a person having one-eighth Indian blood, -one-fourth or three-eighths African, and the rest white was not included -in that class.[30] Ohio limited the suffrage to white male citizens and -made it the duty of judges of election to challenge any one with a -“distinct and visible admixture of African blood,” but the latter -requirement was held unconstitutional in 1867,[31] the court saying -that, where the white blood in a person predominated, he was to be -considered white. This definition is interesting because it is the only -instance found of a court’s saying that a person with more than half -white blood and the rest Negro should be considered white. In contrast -with this is the following sweeping definition laid down in the -Tennessee statute: “All Negroes, Mulattoes, Mestizoes,[32] and their -descendants, having any African blood in their veins, shall be known in -this State as ‘Persons of Color.’”[33] Arkansas also, in its statute -separating the races in trains, includes among persons of color all who -have “a visible and distinct admixture of African blood.”[34] - -In everyday language, a mulatto is any person having both Caucasian and -Negro blood. But several States have defined “mulatto” specifically. The -Supreme Court of Alabama[35] held, in 1850, that a mulatto is the -offspring of a Negro and a white person, that the offspring of a white -person and a mulatto is not a mulatto; but this definition was enlarged -in 1867[36] to include anyone descended from Negro ancestors to the -third generation inclusive, though one ancestor in each generation be -white. It has been seen already that this was recently extended to the -fifth generation. The law of Missouri[37] defines a mulatto thus: “Every -person other than a Negro, any one of whose grandfathers or grandmothers -is or shall have been a Negro, although his or her other progenitors, -except those descending from the Negro, may have been white persons, -shall be deemed a mulatto, and every such person who shall have -one-fourth or more Negro blood shall in like manner be deemed a -mulatto.” - -Some States have allowed facts other than physical characteristics to be -presumptive of race. Thus, it has been held in North Carolina[38] that, -if one was a slave in 1865, it is to be presumed that he was a Negro. -The fact that one usually associates with Negroes has been held in the -same State proper evidence to go to the jury tending to show that he is -a Negro.[39] If a woman’s first husband was a white man, that fact, in -Texas,[40] is admissible evidence tending to show that she is a white -woman. - -One may ascertain how some of the States define the other races from -their laws against miscegenation. Thus, Mississippi, in prohibiting -intermarriage between Caucasians and Mongolians, includes one having as -much as one-eighth Mongolian blood. Oregon makes its similar law -applicable to those having one-fourth or more Chinese or Kanakan[41] -blood, or more than one-half Indian blood. Thus, three-eighths of Indian -blood would not be sufficient to bar a man from intermarriage with a -Caucasian, but one-fourth Negro, Chinese, or Kanakan blood would. - -The above are the laws which define the races. The interpretation of -them is a different question. Some statutes say that one is a person of -color—in effect, a Negro—if he is descended from a Negro to the third -generation inclusive, though one ancestor in each generation may have -been white; others define as a person of color a man who has as much as -one-eighth Negro blood; and still others, one who has as much as -one-fourth Negro blood. - -The following diagram will probably clarify these definitions: - -[Illustration] - - G.G.F. G.G.M. G.G.F. G.G.M. G.G.F. G.G.M. G.G.F. G.G.M. - III A B C D E F G H - \ / \ / \ / \ / - \ / \ / \ / \ / - \/ \/ \/ \/ - G.F. G.M. G.F. G.M. - II I J K L - \ / \ / - \ / \ / - \ / \ / - \ / \ / - \ / \ / - \ / \ / - I F M - M\ /N - \ / - \ / - \ / - \ / - \ / - \ / - \ / - \ / - \ / - \ / - \ / - \ / - X - - -Suppose it is desired to ascertain whether the son X is a white person -or a Negro. The first generation above him is that of his parents, M and -N. If either of them is white and the other a Negro, X has one-half -Negro blood and would be considered a Negro everywhere. The second -generation is that of his grandparents, I, J, K, and L. If any one of -them is a Negro and the other three white, X has one-fourth Negro blood, -and would be considered a Negro in every State except possibly Ohio. The -third generation is that of his great-grandparents, A, B, C, D, E, F, G, -and H. If any one of these eight great-grandparents is a Negro, X has -one-eighth Negro blood and would be considered a Negro in every State -which defines a person of color as one who has one-eighth Negro blood or -is descended from a Negro to the third generation inclusive. Suppose, -for instance, the great-grandfather A was a Negro and all the rest of -the great-grandparents were white. The grandfather I would be half -Negro; the father M would be one-fourth Negro; and X would be one-eighth -Negro. Thus, though of the fourteen progenitors of X only three had -Negro blood, X would nevertheless be considered a Negro. - -In the above illustrations only one of the progenitors has been a Negro -and his blood has been the only Negro blood introduced into the line. -Suppose, however, that there is Negro blood in both branches of the -family, as where a mulatto marries a mulatto or a mulatto marries a -Negro. One with a mathematical turn of mind may take these three -generations and work out the various other combinations which would give -X one-half, one-fourth, one-eighth, or any other fraction of Negro -blood. - -It is safe to say that in practice one is a Negro or is classed with -that race if he has the least visible trace of Negro blood in his veins, -or even if it is known that there was Negro blood in any one of his -progenitors. Miscegenation has never been a bridge upon which one might -cross from the Negro race to the Caucasian, though it has been a -thoroughfare from the Caucasian to the Negro. Judges and legislators -have gone the length of saying that one drop of Negro blood makes a man -a Negro, but to be a Caucasian one must be all Caucasian. This shows -very clearly that they have not considered Negro blood on a par with -Caucasian; else, race affiliation would be determined by predominance of -blood. By the latter test, if one had more Negro blood than white, he -would be considered a Negro; if more white than Negro, a Caucasian. -Therefore, at the very threshold of this subject, even in the -definitions of terms, one discovers a race distinction. Whether it is a -discrimination depends upon what one considers the relative desirability -of Caucasian and Negro ancestry. - - - PROPER NAME FOR BLACK MEN IN AMERICA - -Having considered how the law defines that heterogeneous group of people -called Negroes, one is brought face to face with the question: What, in -actual practice, is the proper name for the black man in America? Is it -“Negro?” Is it “colored person?” Is it “Afro-American?” If not one of -these, what is it? Among the members of that group, the matter of -nomenclature is of more than academic interest. Thus, Rev. J. W. E. -Bowen, Professor of Historical Theology at Gamman Seminary, Atlanta, and -editor of _The Voice of the Negro_, in 1906, published an article in -that paper with the pertinent title, “Who are We?” - -The ways of speaking of members of the Negro race are various. In the -laws, as has been shown, they are called “Negroes,” “Persons of Color,” -“Colored Persons,” “Africans,” and “Persons of African Descent”—more -often “Persons of Color.” By those who would speak dispassionately and -scientifically they are called Negroes and Afro-Americans. Those who are -anxious not to wound the feelings of that race speak of them as “Colored -People” or “Darkies”; while those who would speak contemptuously of them -say “Nigger” or “Coon.” “Nigger” is confined largely to the South; -“Coon,” to the rest of the country. Again, one occasionally finds -“Blacks” and “Black Men” in contradistinction to “Whites” and “White -Men.” - -The question of the proper name for persons of African descent was -brought into prominence in 1906. In that year a bill was laid before -Congress relative to the schools of the City of Washington, which -provided that the Board of Education should consist of nine persons, -three of whom should be “of the colored race.” Representative Thetus W. -Sims, of Tennessee, objected to the phrase on the ground that it would -include “Indians, Chinese, Japanese, Malays, Sandwich Islanders, or any -persons of the colored race,” and insisted that “Negroes” or “persons of -the Negro race” should be substituted in its place. He wrote to Dr. -Booker T. Washington, as one of the leaders of the Negro race, asking -his views as to the proper word. The following is part of his reply: -“... It has been my custom to write and speak of the members of my race -as Negroes, and when using the term ‘Negro’ as a race designation to -employ the capital ‘N.’ To the majority of the people among whom we live -I believe this is customary and what is termed in the rhetorics ‘good -usage.’... Rightly or wrongly, all classes have called us Negroes. We -cannot escape that if we would. To cast it off would be to separate us, -to a certain extent, from our history, and deprive us of much of the -inspiration we now have to struggle on and upward. It is to our credit, -not to our shame, that we have risen so rapidly, more rapidly than most -other peoples, from savage ancestors through slavery to civilization. -For my part, I believe the memory of these facts should be preserved in -our name and traditions as it is preserved in the color of our faces. I -do not think my people should be ashamed of their history, nor of any -name that people choose in good faith to give them.”[42] - -Representative Sims’s objection to the phrase “of the colored race” -precipitated a discussion throughout the country. The New York -_Tribune_[43] made a canvass of a great many prominent Negroes and white -persons to ascertain what they thought the Negro should be called. The -result of its inquiry is this: An average of eleven Negroes out of -twenty desired to be spoken of as Negroes. The other nine spurned the -word as “insulting,” “contemptuous,” “degrading,” “vulgar.” Two argued -for “Afro-American,” two for “Negro-American,” one for “black man,” and -one was indifferent so long as he was not called “Nigger.” Of the white -men interviewed, ten out of thirteen, on an average, preferred the word -“Negro.” The Negroes made a specially strong plea for capitalizing the -word “Negro,” saying that it was not fair to accord that distinction to -their dwarfish cousins, the Negritos in the Philippines, and to the many -savage tribes in Africa and deny it to the black man in America. They -were also strongly opposed to the word “Negress” as applied to the women -of their race. This, they asserted, is objectionable because of its -historical significance. For in times of slavery, “Negress” was the term -applied to a woman slave at an auction, in contradistinction to “buck,” -which referred to a male slave. - -E. A. Johnson, Professor of Law in Shaw University, North Carolina, -said: “The term ‘Afro-American’ is suggestive of an attempt to disclaim -as far as possible our Negro descent, and casts a slur upon it. It -fosters the idea of the inferiority of the race, which is an incorrect -notion to instill into the Negro youth, whom we are trying to imbue with -self-esteem and self-respect.” - -Rev. J. W. E. Bowen, to whom reference has already been made, said: “Let -the Negroes, instead of bemourning their lot and fretting because they -are Negroes and trying to escape themselves, rise up and wipe away the -stain from this word by glorious and resplendent achievements. Good -names are not given; they are made.” - -Rev. H. H. Proctor, pastor of the First Congregational Church, Atlanta, -said: “What is needed is not to change the name of the people, but the -people of the name. Make the term so honorable that men will consider it -an honor to be called a Negro.” - -Rev. Walter H. Brooks, pastor of the Nineteenth Street Baptist Church, -Washington, wrote: “The black people of America have but to augment -their efforts in lives of self-elevation and culture, and men will cease -to reproach us by any name whatever.” - -Finally, Charles W. Anderson, Collector of Internal Revenue, New York, -said: “I am, therefore, inclined to favor the use of ‘Negro,’ partly -because to drop it would expose me to the charge of being ashamed of my -race (and I hate any man who is ashamed of the race from which he -sprung), and partly because I know that no name or term can confer or -withhold relative rank in this life. All races and men must win equality -of rating and status for themselves.” - -One is safe in concluding that the word “Negro” (with the capital “N”) -will eventually be applied to the black man in America. White people are -distinctly in favor of it: what Negroes now object to it do so because -of its corrupt form, “Nigger.” As the Negro shows his ability to develop -into a respectable and useful citizen, contemptuous epithets will be -dropped by all save the thoughtless and vicious, and “Negro” will be -recognized as the race name. - - - NOTES - -Footnote 8: - - “Following the Colour Line,” p. 151. - -Footnote 9: - - _Ibid._, p. 151. - -Footnote 10: - - “Up From Slavery,” p. 2. - -Footnote 11: - - Art. XIII, sec. 11. - -Footnote 12: - - Code, 1867, p. 94; Code, 1876, p. 187, sec. 2; Code, 1886, I, p. 56, - sec. 2; Code, 1896, I, p. 112, sec. 2. - -Footnote 13: - - Laws of Ky., 1865–66, p. 37. - -Footnote 14: - - Pub. Gen. Laws of Md., I, art. 27, sec. 305, p. 878. - -Footnote 15: - - Laws of Miss., 1865, p. 82. - -Footnote 16: - - Pell’s Revisal of 1908, II, sec. 3369. - -Footnote 17: - - Code, 1884, sec. 3291. - -Footnote 18: - - Laws of Tex., special session, 1884, p. 40. - -Footnote 19: - - Code, 1907, I, p. 218, sec. 2. - -Footnote 20: - - Laws of Fla., 1865, p. 30; Code, 1892, pp. 111 and 681; Gen. Stat., - 1906, p. 165, sec. 1. - -Footnote 21: - - Laws of Ga., 1865–66, p. 239. - -Footnote 22: - - Annotated Stat., 1908, III, sec. 8360. - -Footnote 23: - - Annotated Stat, 1906, II, sec. 2174. - -Footnote 24: - - Laws of S. C, 1864–65, p. 271. - -Footnote 25: - - Compiled Stat., 1895, sec. 3644. - -Footnote 26: - - Bellinger and Cotton’s Code and Stat., II, sec. 5217. - -Footnote 27: - - Laws of Va., 1865–66, p. 84. - -Footnote 28: - - McPherson’s Case, 1877, 28 Grat. 939. - -Footnote 29: - - People v. Dean, 1866, 14 Mich. 406. - -Footnote 30: - - Walker v. Brockway, 1869, I Mich. N. P. (Brown) 57. - -Footnote 31: - - Monroe v. Collins, 1867, 17 O. S. 665. - -Footnote 32: - - A mestizo is a person of mixed blood, specially a person of mixed - Spanish and American Indian parentage.—Century Dictionary, V, p. 3728. - -Footnote 33: - - Laws of Tenn., 1865–66, p. 63. - -Footnote 34: - - Kirby’s Digest, 1904, sec. 6632, p. 1378. - -Footnote 35: - - Thurman v. State, 1850, 18 Ala. 276. - -Footnote 36: - - Code, 1867, p. 94. - -Footnote 37: - - Laws of Mo., 1864, p. 67. - -Footnote 38: - - McMillan v. School Com., 1890, 12 S. E. 330; 107 N. C. 609. - -Footnote 39: - - Hopkins v. Bowers, 1892, 16 S. E. 1; 111 N. C. 175. - -Footnote 40: - - Bell v. State, 1894, 33 Tex. Cr. R. 163. - -Footnote 41: - - A Kanakan is a Hawaiian or Sandwich Islander.—Century Dictionary, IV, - p. 3264. - -Footnote 42: - - The Norfolk, Va., _Landmark_, June 13, 1906. - -Footnote 43: - - The New York _Daily Tribune_, June 10, 1906, part IV, p. 2. - - - - - CHAPTER III - DEFAMATION TO CALL A WHITE PERSON A NEGRO - - -There are certain words which are so universally considered injurious to -a person in his social or business relations if spoken of him that the -courts have held that the speaker of such words is liable to an action -for slander, and damages are recoverable even though the one of whom the -words were spoken does not prove that he suffered any special damage -from the words having been spoken of him. The speaking of such words is -said to be actionable _per se_. In short, all the world knows that it is -injurious to a man to speak such words of him, and the court does not -require proof of facts which all the world knows. Such words are (1) -those imputing an infamous crime; (2) those disparaging to a person in -his trade, business, office, or profession; and (3) those imputing a -loathsome disease. Thus, to say that a man is a murderer is to impute to -him an infamous crime, and if he brings a suit for slander, it is not -necessary for him to prove that he has been damaged by the statement. -The result is the same if one says that a person will not pay his debts, -because that injures him in his profession or business; or that a man -has the leprosy, because that is imputing to him a loathsome disease. - -From early times, it has been held to be slander, actionable _per se_, -to say of a white man that he is a Negro or akin to a Negro. The courts -have placed this under the second class—that is, words disparaging to a -person in his trade, business, or profession. The first case in point -arose in South Carolina[44] in 1791, when the courts held that, if the -words were true, the party (the white person) would be deprived of all -civil rights, and moreover, would be liable to be tried in all cases, -under the “Negro Act,” without the privilege of a trial by jury, and -that “any words, therefore, which tended to subject a citizen to such -disabilities, were actionable.” In 1818, it was held actionable by a -court of the same State to call a white man’s wife a mulatto.[45] But an -Ohio[46] court, the same year, held that it was not slander, actionable -_per se_, to charge a white man with being akin to a Negro inasmuch as -it did not charge any crime or exclude one from society. The only -explanation, apparently, of this conflict between the decisions of South -Carolina and Ohio is that in the latter State it was not considered as -much an insult to impute Negro blood to a white man as in the former. In -North Carolina,[47] in 1860, there was the surprising decision that it -was not actionable _per se_ to call a white man a free Negro, even -though the white man was a minister of the gospel. - -The Supreme Court of Louisiana,[48] in 1888, said: “Under the social -habits, customs, and prejudices prevailing in Louisiana, it cannot be -disputed that charging a white man with being a Negro is calculated to -inflict injury and damage.... No one could make such a charge, knowing -it to be false, without understanding that its effect would be injurious -and without intending to injure.” - -In 1900, a Reverend Mr. Upton delivered a temperance address near New -Orleans. The reporters, desiring to be complimentary, referred to him as -a “cultured gentleman.” In the transmission of the dispatch by wire to -the New Orleans paper, the phrase was, by mistake, changed to “colored -gentleman.” The _Times-Democrat_ of that city, unwilling to refer to a -member of the Negro race as a “colored gentleman,” changed it to -“Negro,” and that was the word finally printed in the report. As soon as -he learned of the mistake, the editor of the paper duly retracted and -apologized. But Mr. Upton, not appeased, brought a suit for libel and -recovered fifty dollars damages.[49] - -The _News and Courier_, of Charleston, South Carolina, in 1905, in -reporting a suit by A. M. Flood against a street car company, referred -to Mr. Flood as “colored.” The latter brought suit against the newspaper -and recovered damages. In the course of its opinion, the court said: -“When we think of the radical distinction subsisting between the white -man and the black man, it must be apparent that to impute the condition -of the Negro to a white man would affect his [the white man’s] social -status, and, in case anyone publish a white man to be a Negro, it would -not only be galling to his pride, but would tend to interfere seriously -with the social relation of the white man with his fellow white men; -and, to protect the white man from such a publication, it is necessary -to bring such charge to an issue quickly.”[50] The court adds that its -decision does not violate the Amendments to the Federal Constitution, -for these do not refer to the social condition of the two races, but -serve rather to give the two races equal civil and political rights. -Finally, the court says, quoting People v. Gallagher: “... if one race -be inferior to the other socially, the Constitution of the United States -cannot put them on the same plane.”[51] - -Where laws separating the races in railroad trains and street cars are -in force, and the duty devolves upon the conductors to assign passengers -of the two races to their respective coaches or compartments, it is -surprising that they do not more often make the mistakes of assigning -bright mulattoes to the white coach and dark-skinned white persons to -the colored. There are several instances where the latter mistake has -been made. One would not expect a mulatto to resent being assigned to -the white coach and nothing would come of it, unless some white -passenger recognized him as being a Negro and objected; but one would -expect a white person to resent being assigned to the “Jim Crow” -compartment. - -In Atlanta, in 1904, a certain Mr. Wolfe and his sister boarded a street -car and took seats in the part of the car reserved for white passengers. -The conductor asked them to move back, and when they asked the reason, -he answered that the rear of the car was for colored passengers. The -lady asked if he thought they were colored, to which he replied: -“Haven’t I seen you in colored company?” Mr. Wolfe demanded an apology, -and later brought suit against the company. The court held that the -street car company was liable, and that the good faith of the conductor -in honestly thinking that they were Negroes would serve only in -mitigation of damages. Two judges were of opinion that the company would -not be liable if the conductor used “extreme care and caution” to -ascertain the race of the passengers. The court held that it would take -judicial notice of the social status of the two races and of their -respective superiority and inferiority, saying: “The question has never -heretofore been directly raised in this State as to whether it is an -insult to seriously call a white man a Negro or to intimate that a -person apparently white is of African descent. We have no hesitation, -however, after the most mature consideration of every phase of the -question, in declaring our deliberate judgment to be that the wilful -assertion or intimation embodied in the declaration now before us -constitutes an actionable wrong. We cannot shut our eyes to the facts of -which courts are bound to take judicial notice. Certainly every court is -presumed to know the habits of the people among which it is held, and -their characteristics, as well as to know leading historical events and -the law of the land. To recognize inequality as to the civil or -political rights belonging to any citizen or class of citizens, or to -attempt to fix the social status of any citizen either by legislation or -judicial decision, is repugnant to every principle underlying our -republican form of government. Nothing is further from our purpose. -Under our institutions ‘every man is the architect of his own fortune.’ -Every citizen, white and black, may gain, in every field of endeavor, -the recognition his associates may award. That is his right, and his own -concern. But the courts can take notice of the architecture without -intermeddling with the building of the structure. It is a matter of -common knowledge that, viewed from a social standpoint, the Negro race -is in mind and morals inferior to the Caucasian. The record of each from -the dawn of historic times denies equality. The fact was recognized by -two of the leaders on opposite sides of the question of slavery, Abraham -Lincoln and A. H. Stephens.”[52] - -The following is a recent case arising in Kentucky, in which it was held -that it is not slander _per se_ to call a white person a Negro: A white -woman entered a coach set apart for white people. The passengers therein -complained that she was a Negro, and the brakeman, on hearing their -remarks, asked her to go into the next coach. When, upon reaching the -other coach, she found that it was set apart for Negroes, she left the -train, which had not yet started from the station. She met the -conductor, who, upon hearing her explanation, permitted her to go her -journey in the white coach. Later, she brought suit against the railroad -company and recovered a judgment for four thousand dollars. Upon appeal, -the judgment of the lower court was reversed, the higher court saying: -“What race a person belongs to cannot always be determined infallibly -from appearances, and mistake must inevitably be made. When a mistake is -made, the carrier is not liable in damages simply because a white person -was taken for a Negro, or _vice versa_. It is not a legal injury for a -white person to be taken for a Negro. It was not contemplated by the -statute that the carrier should be an insurer as to the race of its -passengers. The carrier is bound to exercise ordinary care in the -matter, but if it exercises ordinary care, and is not insulting to the -passenger, it is not liable for damages.”[53] - -Probably the most recent case on the subject is one which arose about -two years ago in Virginia. A certain Mrs. Stone boarded a train at -Myrtle, Virginia. In spite of her protests, the conductor compelled her -to go into the “Jim Crow” coach, thinking that she was a Negro. After -she had entered the car, a Negro passenger recognized her and said, -“Lor’, Miss Rosa, this ain’t no place for you; you b’long in the cars -back yonder.” Mrs. Stone rode on to Suffolk, the next station, and left -the train. She sued the railroad company for one thousand dollars -damages. It appeared that Mrs. Stone was much tanned: this probably -caused the conductor to mistake her for a Negro. - -It will have been noticed that all the courts which have held it -actionable _per se_ to call a white person a Negro have been in the -Southern States. It is doubtful whether the courts in other sections -would take the same view, and even Kentucky, a Southern State, has -refused so to do. The attitude of the court depends upon whether it is -the consensus of opinion among the people of the community that it is -injurious to a white man in his business and social relations to be -called a Negro. - -The above is clearly another race distinction. Although there are many -decisions to the effect that it is actionable _per se_ to call a white -person a Negro, not one can be found deciding whether it would be so to -call a Negro a white person. One event looks, in a measure, in this -direction. The city of Asheville, North Carolina, in 1906, contracted -with a printer to have a new city directory issued. The time-honored -custom of the place was to distinguish white and Negro citizens by means -of an asterisk placed before the names of all Negroes. After the -directory had been distributed, it was found that asterisks had been -placed before the names of two highly respected white citizens, thus -indicating that they were of Negro lineage. From what has been seen, -there is no doubt that this would found an action for libel. The -newspaper report says: “On the heels of this suit brought by Mr. -Lancaster [one of the white persons], it is said that Henry Pearson is -seriously considering bringing suit against the same people because an -_asterisk was not_[54] placed before his name. Henry is a Negro. In fact -he is one of the best-known Negroes in Asheville. He is at present -proprietor of the Royal Victoria, a Negro hotel, and complains that he -has been the object of many unpleasant jests since the publication of -the directory, and likewise inquiries as to just ‘when he turned white.’ -Pearson fears that if the report goes abroad that he is a white man it -will damage his hotel, and that the Negroes who make his place -headquarters and who pay into Henry’s hands many shekels will cease to -patronize his hotel, and that his losses will be grievous.”[55] This -case is unique; whether it has been brought to court is as yet unknown. -It is probable that to sustain his action it would be necessary for the -Negro to prove special damage to his business; whereas Mr. Lancaster -would not have to allege or prove any damage at all. But, save in such a -case as the above, it would be hard to imagine a circumstance in which a -court would hold that it is injurious to a Negro in his trade, business, -office, profession, or in his social relations to be called a white man. - - - NOTES - -Footnote 44: - - Eden v. Legare, 1791, 1 Bays (S. C.) 171. - -Footnote 45: - - Wood v. King, 1818, 1 Nott & McC. (S. C.) 184. - -Footnote 46: - - Barrett v. Jarvis, 1823, 1 O. (1 Hammond) 84, note. - -Footnote 47: - - McDowell v. Bowles, 1860, 8 Jones (N. C.) 184. - -Footnote 48: - - Spotarno v. Fourichon, 1888, 40 La. Ann. 423. - -Footnote 49: - - Upton v. Times-Democrat Pub. Co., 1900, 28 So. 970. - -Footnote 50: - - Flood v. _News and Courier_ Co., 1905, 50 S. E. 63. - -Footnote 51: - - 93 N. Y. 438 (1883). - -Footnote 52: - - Wolfe v. Ry. Co., 1907, 58 S. E. 899. - -Footnote 53: - - So. Ry. Co. v. Thurman, 1906, 90 S. W. 240; 28 Ky. L. Rep. 699; 2 L. - R. A. (N. S.) 1108. - -Footnote 54: - - Italics the writer’s. - -Footnote 55: - - Raleigh, N. C, _News and Observer_, July 25, 1906. - - - - - CHAPTER IV - THE “BLACK LAWS” OF 1865–68 - - -One set of race distinctions deserves to be treated by itself. They have -long since become obsolete and were, during their existence, in a sense, -anomalous; yet they are, perhaps, the most illuminating from a -historical point of view of all the race distinctions in the law. They -were the result of the statutes that were enacted by the legislatures of -the Southern States between 1865 and 1868 for the definition and -establishment of the status of the Negro. The War closed in 1865; the -Fourteenth Amendment to the Federal Constitution was ratified July 28, -1868; and the Reconstruction régime in the South was not under way till -1868 or later. Therefore, during the interval between the close of the -War and the ratification of the Fourteenth Amendment or the beginning of -active Reconstruction, the Southern States were free to adopt such -measures as they saw fit to establish the relation between the races. - -The legislatures faced a new problem, or rather an old problem increased -many fold in perplexity. They had to establish the industrial, legal, -and political status of 4,000,000 people who had recently been slaves -and were now freemen. It must be remembered that when the Southern -legislatures convened in 1865 their actions with regard to the Negro -were not beset by the limitations subsequently fixed by the Federal -Government. The first Civil Rights Bill, that of 1866, had not been -passed. The Southern States were at liberty to enact such statutes as -they thought proper and to draw upon their own experience and that of -the free States with regard to free Negroes. - - - “BLACK LAWS” OF FREE STATES - -These statutes of 1865–68 are here called the “Black Laws.” This term -was first applied to the laws of the border and Northern States passed -before and up to the Civil War to fix the position of free persons of -color. It is well to make a cursory examination of these laws of the -free States, because they are prototypes of many of the statutes enacted -by the Southern States while unhampered by Federal legislation. All the -States, North as well as South, had previously faced the problem of the -free Negro and made laws concerning him. Naturally, therefore, the -South, now that all its Negroes were declared free, turned for -precedents to the other States which had already had experience with the -free Negro. - -The following are some of the statutes that had been enacted with regard -to free Negroes by States lying outside of what was later the -Confederacy: - -Maryland,[56] in 1846, denied Negroes, slave or free, the right to -testify in cases in which any white person was concerned, though it -permitted the testimony of slaves against free Negroes. The -Constitution[57] of 1851 forbade the legislature to pass any law -abolishing the relation of master and servant. - -Delaware,[58] in 1851, prohibited the immigration of free Negroes from -any State except Maryland: moreover, it forbade them to attend camp -meetings, except for religious worship under the control of white -people, or political gatherings. A law of 1852 provided that no free -Negroes should have the right to vote or “to enjoy any other rights of a -freeman other than to hold property, or to obtain redress in law and in -equity for any injury to his or her person or property.” - -Missouri,[59] in 1847, forbade the immigration into the State of any -free Negro; enacted that no person should keep a school for the -instruction of Negroes in reading and writing; forbade any religious -meetings of Negroes unless a justice of the peace, constable, or other -officer was present; and declared that schools and religious meetings -for free Negroes were “unlawful assemblages.” - -Ohio, which probably had the most notorious “Black Laws” of any free -State, “required colored people to give bonds for good behavior as a -condition of residence, excluded them from the schools, denied them the -rights of testifying in courts of justice when a white man was party on -either side, and subjected them to other unjust and degrading -disabilities.”[60] - -Indiana,[61] in 1851, prohibited free Negroes and mulattoes from coming -into the State, and fined all persons who employed or encouraged them to -remain in the State between ten and five hundred dollars for each -offense.[62] The fines were to be devoted to a fund for the colonization -of Negroes.[63] A law, which was submitted to a special vote and passed -by a majority of ninety thousand, prohibited intermarriage between the -races, provided for colonization of Negroes, and made incompetent the -testimony of persons having one-eighth or more Negro blood.[64] - -Illinois,[65] in 1853, made it a misdemeanor for a Negro to come into -the State with the intention of residing there, and provided that -persons violating this law should be prosecuted and fined or sold for a -time to pay the fine.[66] - -Iowa,[67] in 1851, forbade the immigration of free Negroes,[68] and -provided that free colored persons should not give testimony in cases in -which a white man was a party. - -Oregon,[69] in 1849, forbade the entrance of Negroes as settlers or -inhabitants, the reason being that it would be dangerous to have them -associate with the Indians and incite the latter to hostility against -white people. - -This sketch of the “Black Laws” of some of the free States, incomplete -as it is, is sufficient to show how those States regarded free Negroes. -First, they tried to keep Negroes out; and, secondly, they subjected -those that remained to various disabilities. When the first Civil Rights -Bill was before Congress, the strongest opposition to its passage was on -the ground that it would compel the free States to repeal these “Black -Laws” and allow Negroes to intermarry with whites, attend the same -schools, sit on juries, vote, bear firearms,[70] etc. The free Negro -constituted a distinct class between the slave and the master, his -condition being more nearly that of a slave. - -The Southern States had been afraid of the free Negro. He was a sort of -irresponsible being, neither bond nor free, who was likely to spread and -foster discontent among the slaves. When a slave was emancipated, it was -desired that he leave the State forthwith. Thus, the Virginia -Constitution[71] of 1850 provided that emancipated slaves who remained -in the Commonwealth more than twelve months after they became actually -free, should forfeit their freedom and be reduced to slavery under such -regulations as the law might prescribe. The free Negro was truly between -the devil and the deep sea. If he stayed in the State, he would be -reënslaved; if he went to a free State, he would be liable to -prosecution there for violating the laws against the immigration of free -persons of color. - -As one turns to the first laws passed by the Southern States after -Emancipation, he should keep in mind that these States were only -grappling with the old problem of the free Negro, now on a much larger -scale, which problem the free States had disposed of already in the -manner just seen. As yet, the Southern States had no conception of the -Negro as a citizen with inalienable rights to be recognized and -protected. For instance, the Constitution of Mississippi[72] of 1832, as -amended August 1, 1865, abolished slavery and empowered the legislature -to make laws for the protection and security of the persons and property -of freedmen, and to guard “them and the State against any evils that may -arise from their sudden emancipation.” And the laws of South -Carolina,[73] of the same year, provided that, “although such persons -[Negroes] are not entitled to social or political equality with white -persons,” they might hold property, make contracts, etc. except as -hereinafter modified. - - - RESTRICTIONS UPON MOVEMENT OF NEGROES - -After 1865 there was comparatively little legislation as to the movement -of Negroes from one State to another. It would have been utterly -impossible to control the migration of the 4,000,000 Negroes then in the -United States. In States where the free Negroes were numbered by only -hundreds or even thousands, the entrance or exit of one was a noticeable -event. Where, however, Negroes were in the majority, a hundred might -have come or gone at once without being noticed. The Constitution of -Georgia[74] of 1865 empowered the general assembly to make laws for the -regulation or prohibition of the immigration of free persons of color -into that State from other places; but the legislature seems not to have -used this power. - -Two years earlier, in 1863, the legislature of Kentucky[75] had declared -that it was unlawful for any Negro or mulatto claiming to be free under -the Emancipation Proclamation of January 1, 1863, or under any other -proclamation by the Government of the United States, to migrate to or -remain in the State. Any Negro violating this law was treated as a -runaway slave. - -A law of South Carolina,[76] of 1865, provided that no person of color -should migrate to or reside in the State unless, within twenty days -after his arrival, he entered into a bond with two freeholders as -sureties in a penalty of one thousand dollars, conditioned on his good -behavior and for his support if he should become unable to support -himself. If he should fail to execute the required bond, he had to leave -the State within ten days, or be liable to corporal punishment. If, -after being so punished, he should still remain in the State fifteen -days longer, he was to be transported beyond the limits of the State for -life “or kept at hard labor, with occasional solitary confinement, for a -period not exceeding five years.” The same punishment of banishment for -life, or confinement and hard labor for a term was prescribed for any -person of color coming or being brought into South Carolina after having -been convicted of an infamous crime in another State. - -That the Southern States believed that the day of the Negro as a laborer -was over was evidenced, not only by their efforts to keep Negroes out of -the State, but also by the fact that so many of them, during the first -years after the War, passed statutes encouraging and offering -inducements to foreign immigrants. The movement to bring foreigners into -the South is still going on, but it has never met with much success. - -Although to-day many places, both in the North and in the South, do not -permit Negroes to reside within their borders or even to stay over -night, the above are apparently the last instances where attempts to -limit the movement of Negroes[77] have been made by State legislatures. -Most of the States have concluded to allow Negroes to come and go at -will, but to fix their status while in the State. - - - LIMITATIONS UPON NEGROES IN RESPECT TO OCCUPATIONS - -From some occupations Negroes were wholly excluded; others, they were -permitted to engage in, only after obtaining licenses. The Alabama -Code[78] of 1867 provided that no free Negro should be licensed to keep -a tavern or to sell vinous or spirituous liquors. There had been a -statute of the same State which declared that a free Negro should not be -employed to sell or to assist in the sale of drugs or medicine, under a -penalty of one hundred dollars, but this had been repealed in 1866.[79] - -In South Carolina,[80] it was unlawful for a Negro either to own a -distillery of spirituous liquors or any establishment where they were -sold. The violation of this law was a misdemeanor punishable by fine, -corporal punishment or hard labor. The law of this State[81] went still -further by enacting that no person of color should pursue or practice -the art, trade, or business of an artisan, mechanic, or shopkeeper, “or -any other trade, employment, or business (besides that of husbandry, or -that of a servant under contract for service or labor) on his own -account and for his own benefit, or in partnership with a white person, -or as agent or servant of any person” until he should have obtained a -license. This license was good for one year only. Before granting the -license the judge had to be satisfied of the skill, fitness, and good -moral character of the applicant. If the latter wished to be a -shopkeeper or peddler, the annual license fee was one hundred dollars; -if a mechanic, artisan, or a member of any other trade, ten dollars. The -judge might revoke the license upon a complaint made to him. Negroes -could not practice any mechanical art or trade without showing either -that they had served their term of apprenticeship or were then -practicing the art or trade. For violation of this rule, the Negro had -to pay a fine of double the amount of the license, one-half to go to the -informer. - -In some States, there was a limitation upon the right of Negroes to hold -land as tenants. A statute of Mississippi[82] in 1865 gave them the -right to sue and be sued, to hold property, etc., but declared that the -provisions of the statute should not be construed to allow any freeman, -free Negro, or mulatto to rent or lease any lands, except in -incorporated towns or cities in which places the corporate authorities -should control the same. The same statute required every freeman, free -Negro, or mulatto to have on January 1, 1866, and annually thereafter, a -lawful home and employment with written evidence thereof. If living in -an incorporated town, he must have a license from the mayor, authorizing -him to do irregular job work—that is, if he was not under some written -contract for service; if living outside such a town, he must have a -similar license from a member of the board of police of his precinct. - -Tennessee,[83] on the other hand, went to the length of expressly -throwing open all trades to Negroes who complied with the license laws -which were applicable to whites and blacks alike. - - - SALE OF FIREARMS AND LIQUOR TO NEGROES - -A fruitful subject of legislation was that relative to the sale of -firearms to Negroes. On January 15, 1866, the legislature of Florida[84] -enacted a law declaring that it was unlawful for a Negro to own, use, or -keep in his possession or control “any bowie-knife, dirk, sword, -firearms or ammunition of any kind” unless he had obtained a license -from the probate judge of the county. To get the license, he had to -present the certificate of two respectable citizens of the county as to -the peaceful and orderly character of the applicant. The violation of -this statute was a misdemeanor punishable by the forfeiture to the use -of the informer of such firearms and ammunition and by standing in a -pillory one hour or by being whipped not over thirty-nine stripes. - -In Mississippi[85] the law was that any freedman, free Negro, or -mulatto, not in the military service of the United States nor having a -specified license, who should keep or carry firearms of any kind or any -ammunition, dirk, or bowie-knife should be punished by a fine of not -over ten dollars, and all such arms, etc., should be forfeited to the -informer. The law further provided that, if any white person lent or -gave a freedman, free Negro, or mulatto any firearms, ammunition, dirk, -or bowie-knife, such white person should be fined not over fifty -dollars, or imprisoned not over thirty days. South Carolina[86] did -allow a Negro who was the owner of a farm, to keep a “shot-gun or rifle, -such as is ordinarily used in hunting, but not a pistol, musket, or -other firearm or weapon appropriate for purposes of war.” - -It has been seen that some States forbade Negroes to make or sell -intoxicating liquor. Others went a step further and made it unlawful to -sell liquor to Negroes. It is worth noting that one of the early acts of -the legislature of Alabama[87] was to repeal such a law. But -Kentucky[88] forbade a coffee-house keeper to sell liquor to free -Negroes under penalty of a bond of five hundred dollars. Mississippi[89] -made it an offence, punishable by a fine of not over fifty dollars or -imprisonment for not more than thirty days, for a white man to sell, -give, or lend a Negro any intoxicating liquors, except that a master, -mistress, or employer might give him spirituous liquors, but not in -quantities sufficient to produce intoxication. - -These laws against the sale of firearms and liquor to Negroes probably -grew out of a fear by the white people of a Negro uprising, such as had -occurred during slavery. The South was in such a turmoil immediately -after the War that stringent precautionary measures were considered -necessary. These statutes have analogies in the present laws of the -Western States against the sale of firearms and liquor to Indians. The -law of Arizona[90] declares that anyone who sells or gives intoxicating -liquor to an Indian is guilty of a misdemeanor, and shall be punished by -a fine of between one hundred and three hundred dollars or imprisoned -between one and six months, or both. The sale or gift or repair of -firearms was added in 1883.[91] Idaho[92] has a law very much the same, -making the fine, however, not over five hundred dollars or the term of -imprisonment not over six months, or both. Dakota Territory,[93] in -1865, made it a misdemeanor to sell or give liquor to Indians. -Nebraska,[94] in 1881, made it an offence punishable by a fine of fifty -dollars to sell liquor to them, and in 1891 made it a felony to sell or -give liquor to any Indian not a citizen, attaching a fine of not over -one thousand dollars or imprisonment in the penitentiary between two and -five years. New Mexico[95] makes the punishment a fine between twenty -and one hundred dollars or imprisonment not over three months. Utah[96] -makes the punishment a fine between ten and one hundred dollars. The law -of Oregon[97] made it lawful for every _white_ male citizen of the age -of sixteen to keep and carry certain arms, impliedly denying that right -to other races. Washington[98] made the punishment for selling or giving -liquor to Indians a fine of between twenty-five and one hundred dollars. -As late as 1903 one finds in the revised statutes of Maine[99] a -provision that one who sells or gives to an Indian intoxicating liquors -forfeits not less than five nor more than twenty dollars, one-half to -complainant. It must be clear that the foregoing laws were not passed -solely for the moral uplift of the Indian, but quite as much as a -protection to white people from drunken Indians. A similar motive must -have actuated the Southern States in enacting the laws of 1865–1868, and -it has been, at least, one incentive for the present prohibition -legislation in the South. - - - LABOR CONTRACTS OF NEGROES - -Another common form of legislation with regard to free Negroes was that -relative to their contracts for personal service. A Florida[100] statute -of 1865 required that all contracts with persons of color should be in -writing and fully explained to them before two credible witnesses, and -that one copy of the contract should be kept by the employer and the -other by some judicial officer of the State and county wherein the -service was to be performed. Contracts for less than thirty days might -be oral. The Negro who failed to perform his contract by wilful -disobedience of orders, wanton impudence, or disrespect, failure or -refusal to do the work assigned to him, idleness, or abandonment of the -premises, was treated as a vagrant. In 1866[101] the law ceased to be a -race distinction when, by a new enactment, it was greatly limited and -made applicable to whites and blacks alike. - -The law of Kentucky[102] required contracts between white persons and -Negroes to be in writing and attested by some white person. The -contracts were to be treated as entire, so that, if either party should, -without good cause, abandon the contract, the other should be held to -have performed his obligation. - -Mississippi[103] enacted that all contracts for labor with freedmen, -free Negroes, or mulattoes for a longer period than one month should be -in writing, attested by two disinterested white persons in the county -where the labor was to be performed, and read to the Negro by some -officer. If the laborer quit without good cause before the expiration of -the term, he forfeited his wages for the year up to the time of -quitting. That State made it the duty of every civil officer and the -option of every other person to arrest and carry back to his employer -every Negro laborer who had left, and the person making the arrest was -entitled to receive five dollars as a fee and ten cents per mile from -the place of arrest to the place of delivery, the same to be paid by the -employer and taken out of the wages of the Negro. The Negro might appeal -to a justice of the peace who might summarily try the merits of the -case. Then, either the master or the servant might appeal to the county -court which had power to remand the deserter to the employer or to -dispose of him otherwise as it thought right and just, and its decision -was final. - -In Virginia[104] all contracts for service between a white person and a -Negro for more than two months had to be in writing, signed by both -parties, acknowledged before a justice of the peace, notary public, -clerk of the county or corporation court, overseer of the poor, or two -or more credible witnesses in the county or corporation where the work -was to be done. And the justice, notary, etc., had to read and explain -the contract to the Negro. - -Of all the Southern States, South Carolina[105] went much the furthest -into detail as to contracts for service. Persons of color who made -contracts for service or labor were to be known as servants, and those -with whom they contracted, as masters. Contracts for one month or more -must be in writing, attested by one white witness, and approved by the -judge of the district court or a magistrate. If the period of service -was not mentioned, it was until the twenty-fifth of December next after -making the contract. If the wages were not stipulated, they were to be -fixed by the district judge or magistrate on application by one of the -parties and notice to the other. A Negro, ten years or more of age, -having no parent living in the district and not an apprentice, might -make a valid contract for a year or less. Contracts must be presented -for approval within twenty days. Contracts for one month or more were -not binding on the servant unless written and approved. Failure to make -such a written contract was a misdemeanor punishable by a fine of from -five dollars to fifty dollars. If the servant received only board and -clothing, a written contract was unnecessary. The fee for approval -ranged between twenty-five cents for a contract of one month or less to -one dollar for a contract for one year and one dollar for each year or -part of a year in addition, half the fee to be paid by each party. - -Labor on farms was minutely regulated. Hours of labor, except on -Sundays, were from sunrise to sunset, with a reasonable interval for -breakfast and dinner. Servants must “rise at the dawn in the morning, -feed, water, and care for the animals on the farm, do the usual and -needful work about the premises, prepare their meals for the day, if -required by the master, and begin the farm work or other work by -sunrise.” They must be careful of all the animals and property of their -masters, and especially of the animals and implements used by them; must -prevent them from injury by others. They were answerable for all -property lost, destroyed, or injured by their negligence, dishonesty, or -bad faith. - -All lost time, not occasioned by the master, and all losses caused by -neglect of duty might be deducted from the wages of the servant. Food, -nursing, and other necessaries for the servant, while absent from work -on account of sickness or other cause, might also be deducted. Servants -must be quiet and orderly in their quarters, at their work, and on the -premises. They must extinguish their lights and fires, and retire to -rest at seasonable hours. Work at night and out-door work in bad weather -was not to be exacted except in cases of necessity. - -Servants were not to be kept at home on Sundays unless to take care of -the premises or animals, for work of daily necessity, or on unusual -occasions; and then only so many as were necessary to do the work. -Sunday work must be done by them in turn, except in cases of sickness or -disability, when the work might be assigned out of order. Those away on -Sunday must be back by sunset. - -Masters might give servants tasks, and might require them to rate -themselves as full hands, three-quarters, half, or one-quarter in order -to determine the task. If the servant complained of the task, the -district judge or magistrate might reduce or increase it. - -Visitors of servants could not be invited or allowed by the servants to -come on the premises of the master without his express consent, nor -could servants be absent from the premises without such permission. - -If the servant left his employment without good cause, he forfeited all -the wages due him. He must obey all lawful orders of the master or his -agent, and “be honest, truthful, sober, civil, and diligent in his -business.” The master might moderately correct servants under eighteen -years of age. He was not liable to pay for any additional services of a -servant, if they were necessary, except by express agreement. - -The master might discharge the servant for: (1) wilful disobedience of -the lawful order of himself or his agent; (2) habitual negligence or -indolence in business; (3) drunkenness, grossly immoral or illegal -conduct; (4) want of respect and courtesy to himself, his family, -guests, or agents; (5) or for prolonged absence from the premises, or -absence on two or more occasions without permission. Or, if the master -preferred, he might report the servant to the district judge or -magistrate, who had power to inflict suitable corporal punishment or -impose a fine, and remand him to work; the fine to be deducted from the -wages, if not paid. These were the means by which the judge or -magistrate might compel the servant to perform his contract. - -The master was not liable to third persons for the voluntary trespasses, -torts, and misdemeanors of his servants. Nor was he liable for any -contract of his servant unless made with the master’s authority, nor for -any acts of the servant unless done within the scope of his authority or -in the course of his employment. It was the master’s duty to protect his -servant from violence at the hands of others and to aid him in getting -redress for injuries. - -For a person to deprive the master of the services of his servant, -knowing him to be such, by enticing him away, harboring him, detaining -him, beating, confining, disabling, or in any way injuring him was -punishable by a fine of from twenty dollars to two hundred dollars, and -imprisonment or hard labor for not over sixty days. In addition, the -master might recover damages for loss of such services. - -The master had the right to command the servant to aid him in the -defence of his own person, family, premises, or property. He did not -have to furnish medicine or medical assistance to the servant unless he -especially agreed to do so. - -The master might inform a prospective employer of the character of a -Negro who had been in his service, and this was a privileged -communication unless falsely and maliciously made. The servant could not -make a new contract without producing the discharge of his former master -or of the district judge or magistrate. - -If the master was convicted of a felony or if he managed or controlled -his servants so as to make them a nuisance to the neighborhood, any -white freeholder might complain to the district judge and have the -contract annulled, and the master could not employ any colored servant -within two years. - -A servant had the right to leave his master’s service for: (1) an -insufficient supply of food; (2) an unauthorized battery upon his person -or upon a member of his family, not committed in the defence of the -person, family, guest, or agent of the master; (3) invasion by the -master of the conjugal rights of the servant; (4) or failure by the -master to pay wages when due. In any one of the above cases, the servant -might collect his wages due him at the time of his departure. - -If the master died, the contract—contrary to the usual rule of law—was -not terminated without the assent of the servant. His wages up to one -year took preference over other debts of the master. If the servant was -wrongfully discharged, he could collect wages for the whole period of -the contract. Upon the servant’s discharge or the expiration of his term -of service, the master must furnish him a certificate of discharge, and -upon his request, a certificate of character. If the servant forged or -altered this certificate—as by falsely claiming that he had been in a -certain previous service—he was guilty of a misdemeanor, punishable by a -fine of not over one hundred dollars. All disputes as to alleged -wrongful discharges or departures were to be heard by the district -judge, who could compel the master to take back the servant or forfeit a -penalty of a fine of twenty dollars; or compel the servant to return to -his master under pain of corporal punishment or fine. - -A servant was not liable for contracts made by the express authority of -his master. Nor was he liable civilly or criminally for any act done by -the command of his master in defence of his master’s person, family, -guest, servant, premises, or property. - -Negroes employed as house servants had, at “all hours of the day and -night, and on all days of the week,” to answer promptly all calls and -execute all lawful orders and commands of the master’s family. They had -to be especially civil and polite to their master, his family, and -guests, for which they in turn should “receive gentle and kind -treatment.” - -The statute provided for a regular form of contract between master and -servant, which was understood to include all of the above stipulations -unless otherwise provided. - - - APPRENTICE LAWS - -The early legislatures also made detailed apprentice laws. Although it -is scarcely open to argument that, in making such laws, they did not -have in mind primarily Negroes, still many of the statutes made no -mention of race, and, therefore, cannot be properly discussed here. -Thus, Alabama[106] had a long statute on apprentices, but the only -reference to the Negro was the rule that, if the minor be a child of a -freedman, the former owner of the child should have the preference of -apprenticing him, if a suitable person. - -In Kentucky,[107] if the apprentice was white, the master must teach him -reading, writing, and common arithmetic up to and including the “Rule of -Three”; if a Negro, the master must pay at the end of the apprenticeship -fifty dollars to a girl and one hundred dollars to a boy, but if the -master should teach the apprentice to read and write, he was not bound -to pay any money. In Kentucky, also, in apprenticing Negroes, preference -was given to their former owners, if the latter were suitable persons. - -Mississippi[108] had an elaborate apprentice law which related only to -freedmen, free Negroes, and mulattoes. The sheriffs, justices of the -peace, and other civil officers of the county had to report to the -probate court semiannually, in January and July, the names of all -freedmen, free Negroes, and mulattoes, under the age of eighteen, who -where orphans or whose parents were unable or unwilling to support them. -It was the duty of the court, thereupon, to order the apprenticing of -such minors, preference being given to their former masters if suitable -persons. The master had to furnish a bond payable to the State -conditioned upon his furnishing the minor with sufficient food and -clothing, treating him humanely, giving him medical attention when sick, -and, if the minor was under fifteen, teaching him or having him taught -to read and write. Males were bound till they were twenty-one; females, -till they were eighteen. The master could inflict moderate corporal -chastisement as a father or guardian might do; but in no case could he -inflict cruel or inhuman punishment. - -If the apprentice ran away, the master might pursue him and bring him -before a justice of the peace who could remand him to the service of his -master. If the apprentice refused to return, he might be put into jail -until the next term of the court, when his case would be investigated. -If it was found that he left without cause, he could be punished like a -hired freedman; but if he had a good cause, the court might discharge -him and enter judgment against his master for not over one hundred -dollars to be paid to the apprentice. Anyone enticing an apprentice away -from his master, knowingly employing him, furnishing him food or -clothing, or giving or selling him liquor without the master’s consent -was guilty of a high misdemeanor. - -If the master wished to get rid of the apprentice, he might go before -the probate court, which could cancel his bond, and re-apprentice the -minor. If the master died, the court in re-apprenticing would give -preference to the widow or other member of the family of the deceased. -If the master wished to move to another State and take his apprentice -with him, he had to execute a bond conditioned upon his compliance with -the apprentice laws of the State to which he was going. Any parent of a -free Negro or mulatto might apprentice his minor child, and if the age -could not be fixed by record testimony, the court fixed it. - -The only race distinction made by North Carolina[109] was the law that -no white child should be bound to a colored master or mistress, and this -came in 1874—long after the period here considered. - -The apprentice laws of South Carolina[110] which applied only to Negroes -were almost as elaborate as those of Mississippi. A child over two years -of age, born of a colored parent, might be bound as an apprentice to any -respectable white or colored person; if a male, till he was twenty-one; -if a female, till she was eighteen. Illegitimate children might be bound -out by their mother. If the child had no parent in the district; or if -his parents were paupers, or unable to support him, or were not teaching -him the habits of industry and honesty, or were of a notoriously bad -character or vagrants, or if either of them had been convicted of an -infamous crime, he might be apprenticed by the district judge or by a -magistrate. Males of twelve and females of ten had to sign the contract -of apprenticeship and were bound thereby; but their refusal to sign -would not affect the validity of the instrument. If the apprenticeship -was voluntary, the contract had to be under seal, signed by the master, -parent, and apprentice, attested by two credible witnesses, and approved -by the district judge or magistrate. One copy of the contract was kept -by the master, another, filed in the office of the clerk of court. The -master had to pay three dollars for the approval of the contract by the -district judge or magistrate. - -Other duties devolving upon the master were to teach the apprentice the -business of husbandry or some other useful trade or business specified -in the contract; to furnish him wholesome food and suitable clothing; to -teach him habits of industry, honesty, and morality; to govern and treat -him with humanity; and if there was a colored school within convenient -distance, to send him to school as much as six weeks of each year after -he was ten years of age. The teacher of such school must have the -license of the district judge to establish it. - -The master could inflict moderate chastisement, impose reasonable -restraint on the apprentice, and bring him back if he ran away. If the -master neglected his duty or subjected the apprentice to the danger of -moral contamination, the district judge might dissolve the relation of -master and apprentice. All cases of dispute between master and -apprentice were to be tried before a magistrate, who had the power to -punish the party found to be at fault. If the judge ordered the -apprentice discharged for immoderate correction or unlawful restraint, -the master might be indicted and punished by a fine of not over fifty -dollars or imprisonment of thirty days. In addition, the apprentice had -an action for damages. - -After the expiration of the term of service, the apprentice was entitled -to not over sixty dollars from his master. To the apprentice also -applied the provisions for the servant under contract, which have been -considered, except that the master was bound to furnish him medical aid, -as he did not have to do in the case of the servant. And for apprentices -also, as in the case of servants, there was a regular form of contract -which was understood to contain all the above stipulations. - -In Delaware,[111] not a Southern State, but much like the Southern -States in its dealings with the Negro, in its code of 1852 as amended in -1893, is this belated statute: “Any two justices of the peace, on -receiving information of any Negro or mulatto child in their county, -having no parents in this State, or who, being under the age of fifteen -years, have no parent able to maintain them, or who do not bring them up -to industry and stable employment, shall issue process to a constable -commanding him to bring such child before them at a specified time and -place, and to give notice thereof to the parents, if any, and shall -thereupon inquire into their circumstances; and if it appear to be a -proper case for binding such child, they shall proceed to bind said -child as a servant, unless they shall deem the binding, under the -circumstances, to be inexpedient.” - -The constitutionality of these apprentice laws was tested as early as -1867.[112] A Negro girl, who had been a slave in Maryland and had been -freed by the Constitution of that State, November 1, 1864, was, two days -later, apprenticed by her mother to her former master. The laws -governing Negro apprentices differed from those governing white -apprentices in that the master did not obligate himself to teach the -Negro apprentice reading, writing, and arithmetic, and retained the -right to transmit the apprentice anywhere in the county. Upon a petition -for a writ of _habeas corpus_, the Federal court held that the Maryland -law resulted in practical slavery and, hence, violated the Thirteenth -Amendment and the Civil Rights Bill of 1866. - -The other Southern States had apprentice laws, possibly as detailed as -the ones here considered, but they cannot be treated of here because -they applied to white and colored children alike. - - - VAGRANCY LAWS - -The present vagrancy laws of the South have been much criticised for the -reason, as it is alleged, that they are used to get recruits for chain -gangs and convict camps, and that Negro vagrants are taken up while -white vagrants go scotfree. Be that as it may, the fault lies with the -officers, not with the law, for the law, on its face, applies to both -races equally. But the first years after the War did witness the -enactment of vagrancy laws which had special application to Negroes. -Some States passed vagrancy laws which made no race distinction, but, as -in the case of apprentices, it is beyond dispute that they were aimed -especially at the Negro. - -The following persons South Carolina[113] classed as vagrants: (1) all -persons who have not some fixed and known place of abode, and some -lawful and reputable employment; (2) those who have not some visible and -known means of a fair, honest, and reputable livelihood; (3) all common -prostitutes; (4) those who are found wandering from place to place, -vending, bartering, or peddling any articles or commodities without a -license; (5) all common gamblers; (6) persons who lead idle or -disorderly lives, or keep or frequent disorderly or disreputable houses -or places; (7) those who, not having sufficient means of support, are -able to work and do not work; (8) those who (whether or not they own -lands, or are lessees or mechanics) do not provide a reasonable and -proper maintenance for themselves and families; (9) those who are -engaged in representing publicly or privately, for fee or reward, -without license, any tragedy, interlude, comedy, farce, play, or other -similar entertainment, exhibition of the circus, sleight-of-hand, -waxworks, or the like; (10) those who, for private gain, without -license, give any concert or musical entertainment, of any description; -(11) fortune tellers; (12) sturdy beggars; (13) common drunkards; (14) -those who hunt game of any description, or fish on the land of others or -frequent the premises, contrary to the will of the occupants. That the -South Carolina legislature had the Negro primarily in mind is shown by -the fact that this section is included in the act “to establish and -regulate the domestic relations of persons of color and to amend the law -in relation to paupers and vagrancy.” - -Mississippi[114] had a vagrancy list almost as extensive as that above -with the addition that any freedmen, free Negroes, or mulattoes over -eighteen years of age, found on the second Monday in January, 1866, or -thereafter, with no lawful employment or business, or found unlawfully -assembling themselves together in the day or night time, and white -persons “so assembling with freedmen, free Negroes, or mulattoes ... on -terms of equality, or living in adultery or fornication with a -freedwoman, free Negro, or mulatto,” should be considered vagrants. The -white man so convicted was punishable by a fine of two hundred dollars -and imprisonment for not more than six months; the Negro, by a fine of -fifty dollars and imprisonment for not over ten days. A Negro unable to -pay his fine might be hired out for the purpose, but no such provision -applied to whites. - - - PAUPER LAWS - -Another perplexing problem that faced the Southern legislatures was how -to meet the needs of the paupers, white and Negro. Much of the property -of the white people had been swept away entirely or had greatly -deteriorated in value as a result of the War. Few of the Negroes, to be -sure, had property to lose, but what was worse, they had lost their -right to look to the white people for sustenance. Many of them were -unable to support themselves, and the white people could not help them. -The legislatures, therefore, adopted the plan of levying a tax upon each -race for the support of its own indigents. South Carolina and -Mississippi again took the lead. - -In South Carolina,[115] when a person of color was unable to earn his -support and was likely to become a public charge, the father and -grandfathers, mother and grandmothers, child and grandchildren, brother -and sister of such a person should each according to ability contribute -for the support of his or her relative. In each judicial district there -was a “Board of Relief of Indigent Persons of Color,” consisting of from -four to eight magistrates, each magistrate looking after the indigent -Negroes in his precinct. There was a fund, composed of fees paid for the -approval of contracts for service, instruments of apprenticeship, -licenses, fines, penalties, forfeitures, and wages of convicts, for the -relief of indigent Negroes. If this fund was insufficient, the board -might impose a tax of one dollar upon all male persons of color between -eighteen and fifty, and fifty cents upon each female between eighteen -and forty-five. This tax had to be paid on the day fixed or the person -rendered himself liable to pay a double tax. It was the duty of every -occupant of premises to make a report to the magistrate of any indigent -colored person thereon, and the magistrate had to make inquiry into the -condition and wants of such Negroes so reported. Moreover, the -magistrate had to make a semiannual report of the condition of such -Negroes to the chairman of the Board of Relief. The machinery for taking -care of Negro paupers was worked out in more detail than it would be -profitable to go into here. - -South Carolina made also these very humane provisions: Where, upon any -farm or lands, there were, on December 21, 1865, persons of color who -were formerly the slaves of the owner, lessee, or occupant of the farm -or lands present there on November 10, 1865, and had been there six -months previous, helpless, either from old age, infancy, disease, or -other cause, and unable to maintain themselves and had no parent or -other relative able to maintain them or to provide other houses or -quarters, it was not lawful for the present or any subsequent owner, -lessee, or occupant before January 1, 1867, to evict such helpless -person of color, under penalty of a fine of fifty dollars, or -imprisonment of one month. - -The law of Mississippi[116] provided that the same liabilities should -rest on Negroes to support their indigents as upon white persons to -support theirs. It levied a tax of one dollar upon every freedman, free -Negro, or mulatto between eighteen and sixty to go into the Freedmen’s -Pauper Fund. If a Negro refused to pay the tax, he might be arrested and -hired out till he had worked out the amount. - - -The Southern States between 1865 and 1868 passed many statutes relative -to the marital relations of Negroes and to their right to testify in -court. But these statutes are to be discussed in later chapters. It may -be said, however, in passing, that the district judge, so often referred -to in connection with the South Carolina laws, was a special officer -whose main duty was to preside over cases and disputes to which Negroes -were parties. - -This chapter has been confined to the early industrial distinctions -between the races—that is, to those laws which related to the rights of -the Negro as a bread-winner. These are the distinctions brought forward -by those who believed in radical reconstruction measures in the South, -as an argument for their position. It was urged by such that, unless -Congress stepped in and took a hand, the Southern States would reënslave -the Negro: they pointed particularly to the laws of Mississippi and -South Carolina in confirmation of their contention. And there was -apparently good ground for such a view. The laws providing that colored -laborers should be called servants and their employers masters, that -they should arise at a certain time and work so many hours per day, that -they could not leave the premises or receive visitors without the -master’s consent, and the like, sounded very much like prescribing the -duties and privileges of a slave. But, on the other hand, many of the -requirements were for the protection of the Negro. Such, for instance, -were the statutes requiring contracts for service to be in writing and -the terms of them explained to the Negro; that helpless ex-slaves should -not be evicted from their old homes within two years from January 1, -1865; that Negro paupers should be cared for; and that the master must -teach his apprentice to read and write, must give him good food and -clothing, and treat him humanely. - -A discussion, however, of the merits of these early laws is out of place -here. But it is only fair to remember, in reading them, that the -Southern legislatures were, in many instances, only following precedents -that had been set by the free States in dealing with free Negroes, and -that the States, either Northern or Southern, had not yet looked upon -the Negro as a citizen with the rights guaranteed him by the amended -Federal Constitution. Industrial conditions in the South were so -demoralized by the War and Emancipation that the legislatures considered -it imperative upon them to take immediate and positive steps to -establish an industrial relation between the races. - -Practically all of these laws were repealed or became dead letters as -soon as the Fourteenth Amendment was passed or, at least, as soon as the -government of the Southern States went into the hands of the -Reconstructionists. But they are still interesting historically as -having furnished an argument for the radical régime of Reconstruction -which Thaddeus Stevens and his supporters inaugurated and advanced. - - - NOTES - -Footnote 56: - - Laws of Md., 1846–47, chap. 27. - -Footnote 57: - - Art. III, sec. 43. - -Footnote 58: - - Revised Stat., 1852, pp. 143–46. - -Footnote 59: - - Laws of Mo., 1847, pp. 103–04. - -Footnote 60: - - Wilson: “The Rise and Fall of the Slave Power in America,” II, p. 170. - -Footnote 61: - - Const., 1852, Art. XIII. - -Footnote 62: - - This was held to be in violation of the Federal Constitution in Smith - v. Moody, 1866, 26 Ind. 299, on the ground that the Negro had become a - citizen and, as such, entitled to migrate from one State into another. - -Footnote 63: - - The section of the statute which related to colonization was repealed - in 1865 because the legislature thought that those authorized to act - under the statute were not rendering any adequate service to the - State. Laws of Ind., 1865, p. 63. - -Footnote 64: - - Wilson: “The Rise and Fall of the Slave Power in America,” II, pp. - 183–85. - -Footnote 65: - - Pub. Laws of Ill., 1853, p. 57. - -Footnote 66: - - Repealed Feb. 7, 1865. Pub. Laws of Ill., 1865, p. 105. - -Footnote 67: - - Laws of Ia., 1850–51, pp. 172–73. - -Footnote 68: - - Repealed in 1864. Laws of Ia., 1864, p. 6. - -Footnote 69: - - Gen. Laws of Ore., 1850–51, pp. 181–82. - -Footnote 70: - - Flack: “The Adoption of the Fourteenth Amendment,” 1908, John Hopkins - Press, pp. 20, _et seq._ - -Footnote 71: - - Art. IV, sec. 19. - -Footnote 72: - - Art. VIII. - -Footnote 73: - - Laws of S. C., 1865, p. 271. - -Footnote 74: - - Art. II, sec. 5, par. 1. - -Footnote 75: - - Laws of Ky., 1863, p. 366. - -Footnote 76: - - Laws of S. C., 1865, p. 276. - -Footnote 77: - - In three places, at least, in North Carolina a Negro is not allowed to - stay over night. They are Canton (Haywood County), Mitchell, and - Madison Counties, all in the western part of the State. Negroes may - work unmolested all day, but, if they linger after nightfall, they are - reminded that it would not be healthy for them to remain during the - night. The Raleigh, N. C., _News and Observer_, Aug. 19, 1906. Also - see _The Independent_, vol. 59, p. 139, for a similar situation in - Syracuse, Ohio, and Baker: “Following the Colour Line,” pp. 71–73 and - 126. - -Footnote 78: - - Code, 1867, sec. 1237. - -Footnote 79: - - Code, 1867, sec. 1233; Laws of Ala., 1865–66, p. 105. - -Footnote 80: - - Laws of S. C., 1865, p. 275. - -Footnote 81: - - _Ibid._, p. 299. - -Footnote 82: - - Laws of Miss., 1865, pp. 82–83. - -Footnote 83: - - Laws of Tenn., 1865, p. 23. - -Footnote 84: - - Laws of Fla., 1865, pp. 25 and 37. - -Footnote 85: - - Laws of Miss., 1865, pp. 165–66. - -Footnote 86: - - Laws of S. C., 1865, p. 275. - -Footnote 87: - - Laws of Ala., 1865–66, p. 55. - -Footnote 88: - - Laws of Ky., 1865–66, pp. 68–69. - -Footnote 89: - - Laws of Miss., 1865, pp. 165–66. - -Footnote 90: - - Laws of Ariz., 1867, p. 19; 1873, p. 78. - -Footnote 91: - - _Ibid._, 1883, p. 114. - -Footnote 92: - - Laws of Idaho, 1879, p. 31. - -Footnote 93: - - Laws of Dak. Ty., 1864–65, p. 192. - -Footnote 94: - - Laws of Neb., 1881, p. 274; 1891, p. 267. - -Footnote 95: - - Gen. Laws of N. M., 1880, p. 427; act 1876, chap. 28. - -Footnote 96: - - Laws of Utah, 1882, p. 32. - -Footnote 97: - - Laws of Ore., 1868, pp. 18–19. - -Footnote 98: - - Laws of Wash., 1867, pp. 95–96. - -Footnote 99: - - Revised Stat., 1903, p. 202. - -Footnote 100: - - Laws of Fla., 1865, pp. 32–33. - -Footnote 101: - - _Ibid._, 1866, p. 22. - -Footnote 102: - - Laws of Ky., 1865–66, p. 52. - -Footnote 103: - - Laws of Miss., 1865, pp. 83–84. - -Footnote 104: - - Laws of Va., 1865–66, p. 83; repealed in 1871—Laws of Va., 1870–71, p. - 147. - -Footnote 105: - - Laws of S. C., 1865, pp. 295–299 and 275–76. - -Footnote 106: - - Laws of Ala., 1865–66, pp. 128–31. - -Footnote 107: - - Laws of Ky., 1865–66, pp. 49–50. - -Footnote 108: - - Laws of Miss., 1865, pp. 86–90. This was repealed Feb. 1, 1867—Laws of - Miss., 1866–67, pp. 443–44. - -Footnote 109: - - Laws of N. C., 1874–75, p. 92. - -Footnote 110: - - Laws of S. C., 1865, pp. 292–95. - -Footnote 111: - - Revised Code, 1852, as amended in 1893, p. 609. - -Footnote 112: - - _In re_ Turner, 1867, Fed. Case No. 14,247. - -Footnote 113: - - Laws of S. C., 1865, pp. 303–04. - -Footnote 114: - - Laws of Miss., 1865, pp. 90–93. - -Footnote 115: - - Laws of S. C., 1865, pp. 299–303. - -Footnote 116: - - Laws of Miss., 1865, pp. 92–93. - - - - - CHAPTER V - RECONSTRUCTION OF MARITAL RELATIONS OF NEGROES - - -One of the perplexing problems that arose out of Emancipation was the -fixing of the marital relations among Negroes. It is generally known -that the marriage ties between slaves were loose and their domestic -relations irregular. In some instances, slave marriages were solemnized -according to legal requirements, by either a white clergyman or other -proper officer of the law; in others, there was the common law -marriage—that is, the parties lived together as husband and wife under a -simple, unrecorded agreement between themselves; in still other -instances, there was deplorable promiscuity. - -When the Negro was made a citizen, it became necessary at once to settle -his marital relations. If the usual slave marriages were not recognized -as legal, then the offspring of such unions were bastards with the usual -disqualifications of that class, among which is their partial incapacity -to inherit property. In order to secure to Negroes the rights of heirs, -it was necessary to legalize slave marriages, at least to the extent of -giving to the children of such marriages the right of inheritance. This -was accomplished in one of three ways. Some States required the -emancipated slaves to be remarried in order to legitimate their -offspring; others required them to appear before an officer, declare -their desire to continue to live together, and get a certificate; others -still, and these were in the majority, passed statutes legalizing all -slave marriages. A few States did not adopt any one of these three -methods but left it to the courts to recognize the legality of such -marriages as cases arose. - - - REMARRIAGES - -Among the States which adopted the method of remarrying was -Florida,[117] which, by a law of 1866, required all colored persons -living together as husband and wife, who had not been legally married, -and who wished to continue so to live together, to be married within -nine months from the passage of the statute on January 11th. If they -failed to be married but continued to live together, they were punished -as guilty of fornication and adultery. By the second marriage, their -children were legitimated. The law made it incumbent upon the clerk of -the court, upon application by the parties and a tender of the required -fee, to enter a certificate of marriage upon his register. Anyone -practicing fraud upon Negroes by pretending to perform the marriage -ceremony without authority to do so was guilty of a misdemeanor and -punishable by a fine not exceeding one thousand dollars, imprisonment -not over six months, or might be sentenced to stand in a pillory not -over one hour. After the expiration of the nine months named in the -statute, the marriage requirements for white and colored persons were -the same. This statute of 1866[118] was amended, on December 14, of the -same year, to the effect that, if persons of color had lived together as -husband and wife and had recognized each other as such, they were to be -considered married and their children to be legitimate. Thus, the -necessity of a remarriage was obviated. The amendment was added -apparently because of the great number of indictments for adultery -against those who had not complied with the law of January 11th. - -The Georgia[119] Constitution of 1865 directed the General Assembly at -its next session to pass a law to legalize the existing slave marriages -and to provide for the contracting and solemnizing of future marriages -and, in connection with this, to define and regulate the Negro’s right -to devise and inherit property. The General Assembly[120] responded in -1866 by enacting a statute by which persons of color then living -together as husband and wife were declared to be so. If the man had two -reputed wives or the wife two reputed husbands, he or she must select -one of the two as wife or husband, with her or his consent, and have the -ceremony of marriage performed. If they continued to cohabit without -making this choice, they were guilty of fornication and adultery. It was -not enough to make the selection and live faithful to the one chosen; -the marriage ceremony was a requisite.[121] Unless there were two -reputed husbands or wives, the ceremony was not necessary.[122] By the -same act[123] the children of slave marriages were legitimated, and -Negro ministers were given a similar right to perform marriage -ceremonies for Negroes as white ministers had for both races. - -Missouri,[124] in 1865, required all persons of color claiming to be -married and wishing to continue in that relation to appear before some -one authorized to perform the ceremony and be joined in marriage. - -The same year, South Carolina[125] passed a statute of ninety-nine -sections relative to persons of color, eleven of which concerned their -marital relations. This statute established the relation of husband and -wife between persons of color, and declared that those then living as -such were husband and wife. If a man had two or more reputed wives or a -woman two or more reputed husbands, he or she must choose one of them by -April 1, 1866, and be remarried. Children born before the enactment of -this law were declared to be the legitimate offspring of their mother, -and of their putative father also if they were acknowledged by him. -Thereafter, Negroes must be married as white people were—by a clergyman, -judge, magistrate, or other judicial officer. The husband who abandoned -his wife or the wife who abandoned her husband, might be bound out from -year to year until he or she was willing to resume conjugal relations. -An abandoned wife was free to make a contract for service. South -Carolina has been apparently the only State to provide for the children -of white fathers and Negro mothers. A law[126] of 1872 declared that -such children might inherit from their father if he did not marry -another woman but continued to live with their mother. - - - CERTIFICATES OF MARRIAGE - -Kentucky, Louisiana, and Maryland provided for the marriage of former -slaves by the second method enumerated above, the granting of -certificates. The Kentucky law[127] declared that all colored persons -who had been living together as husband and wife and who continued to do -so should be regarded as legally married and their children legitimate. -But the man and woman must appear before the clerk of the county court -and declare that they had been living and wished to continue to live as -husband and wife. Upon payment of fifty cents, the clerk recorded the -declaration, and for twenty-five cents more issued a certificate thereof -to the parties. It was not a sufficient compliance with the statute for -the parties to continue to live together without appearing before the -clerk of the court.[128] - -An interesting case[129] which arose under this Kentucky statute was as -follows: A Negro woman, an ex-slave and living as the wife of another -ex-slave, made her promissory note between the time of her emancipation -and the date of this law. Under the provision of the statute, the man -and woman appeared before the clerk of the court and obtained a marriage -certificate. Later, she was sued on the note and pleaded coverture. At -that time a married woman could not make a valid contract in her own -name. The court held the plea bad, being of opinion that, as between the -parties to the marriage, the statute validated their union from the -beginning, but as to third parties, the woman was still single and so -capable of making a valid contract. - -In 1895, the same court[130] held that, if a Negro man and woman lived -together while slaves as husband and wife, a customary marriage was -established, the court saying in its opinion: “Since the passage of the -Act of February, 1866, ... the general tendency of the decisions of this -court has been to give that Act of 1866 a liberal construction with a -view to effectuate its clearly defined purpose.” And a late statute[131] -of 1898 further modified the law of 1866 by declaring that the children -of above marriages might inherit property. If there was a subsequent -marriage and children born of it, the slave children shared with them -_pro rata_. - -A statute of Louisiana,[132] in 1868, legalized all private or religious -marriages, provided that the parties, within two years, made a -declaration of their marriage before a notary public or other competent -officer, giving the date of the marriage and the number and ages of the -children. Though the statute did not mention Negroes, it must have been -passed for their benefit. - -In 1873, the following case[133] came before the Louisiana court: A -Negro’s parents, who had lived together as husband and wife, died before -Emancipation. The majority of the court held that, if they had lived -till after Emancipation, their children would have been capable of -inheriting their property, but, since they died before Emancipation, -their marriage was never legalized, and their offspring could not so -inherit. The dissenting opinion was that, since the slaves had done all -they could to be legally married, they should be recognized as married -and their children should be legitimated. - -Maryland,[134] in 1867, confirmed and made valid all previous marriages -between colored persons, but required them to prove before a justice of -the peace that they had been so married; and a certificate to that -effect had to be filed with the clerk of the court. Thereafter, colored -persons must secure licenses and be married in the same manner as white -people. - - - SLAVE MARRIAGES DECLARED LEGAL BY STATUTE - -The last of the three methods of reconstructing the domestic relations -of former slaves was by declaring slave marriages legal by statute. On -September 29, 1866, the Constitutional Convention of Alabama, which -adopted an ordinance prohibiting slavery, also enacted[135] that all -marriages between freedmen and freedwomen, whether during slavery or -after, solemnized by one having or claiming to have the authority, -should be valid, if the parties were still living together. It was -subsequently held that, under this act, the woman had a right of dower, -although the man had abandoned her and married another woman within a -month after such act was passed.[136] In 1870, the Supreme Court of the -State held that the children of slave marriages were not bastards, that -by the elevation of their parents to citizenship, their heritable blood -was restored.[137] - -Arkansas,[138] in 1866, legalized marriages of all persons of color who -then lived together as husband and wife and made their children -legitimate, but provided that thereafter all marriages of persons of -color must be recorded. The same year Tennessee[139] passed a similar -statute. - -The Constitution[140] of Texas of 1869 declared that all persons should -be considered legally married who in slavery lived as husband and wife -and after Emancipation either continued to live together till one died -or were living together at the time of the adoption of the Constitution. -Such a marriage completed by cohabitation after Emancipation was valid, -though the parties separated within five months and were not living -together at the time of the adoption of the Constitution.[141] - -The law of Virginia[142] provided that persons of color living as -husband and wife on February 27, 1866, whether or not any ceremony had -been performed, should be considered as lawfully married and their -children legitimate. If they had separated prior to that date the -children of the woman, if recognized by the man to be his, were -nevertheless legitimate. West Virginia[143] had practically the same -law, except the latter clause about recognition by the father. - -Illinois,[144] as late as 1891, passed a statute to legalize slave -marriages and legitimate the children thereof. But this law did not -apply to a voidable slave marriage in another State, disaffirmed by a -subsequent legal marriage before the enactment of the statute.[145] A -similar decision under a similar statute was rendered in Ohio[146] in -1883. These decisions would indicate that a slave marriage was valid -only if there was no subsequent marriage of either party to a third -person. In 1876, New York[147] recognized as valid slave marriages -contracted in slave States with the consent of the master. - - - MARRIAGES BETWEEN SLAVES AND FREE NEGROES - -Statutes relative to marriages between free Negroes and slaves are not -numerous. Presumably, the term “persons of color” included both Negroes -born free and those who had been slaves. A Tennessee court,[148] in -1882, held that the formal marriage of a free Negro and a slave, with -the consent of the master, followed by a cohabitation for years, was a -valid marriage and entitled the woman to dower. - - - FEDERAL LEGISLATION - -The Congress of the United States has had occasion to pass upon the -validity of slave marriages only in connection with pensions to the -descendants of colored soldiers. An act[149] of 1873 provided that, in -determining whether the widow of a Negro or Indian soldier and sailor is -entitled to a pension, it is necessary only for the claimants to show -that she was married according to some ceremony, which she and the -deceased deemed obligatory, that they habitually recognized each other -as husband and wife, and were so recognized by their neighbors, and that -they lived together up to the date of his enlistment. It was also -provided that the children of such marriages might claim their father’s -pension. - - -Though they proceeded in different ways, practically all of the States -arrived at the same result. If slaves were married according to the -custom, if they lived as husband and wife both before and after -Emancipation, their union was considered a valid marriage to all intents -and purposes and the children thereof might inherit. Where the -procurement of a certificate or remarriage was required, if one of the -parties took advantage of the opportunity to be freed from the early -alliance, as happened in several amusing instances, and took another -spouse, the second marriage was the valid one, and the children of the -slave union could not inherit their parents’ property. - -It scarcely needs to add that, at present, the marriage requirements as -to license, age, etc., are in all States precisely the same both for -white and colored people. - - - NOTES - -Footnote 117: - - Laws of Fla., 1865, p. 31. - -Footnote 118: - - _Ibid._, 1866, p. 22. - -Footnote 119: - - Art. II, sec. 5, par. 5. - -Footnote 120: - - Laws of Ga., 1865–66, p. 240. - -Footnote 121: - - Comer v. Comer, 1892, 91 Ga. 314. - -Footnote 122: - - Williams v. State, 1881, 67 Ga. 260. - -Footnote 123: - - Laws of Ga., 1866, p. 156. - -Footnote 124: - - Laws of Mo., 1864, p. 68. - -Footnote 125: - - Laws of S. C., 1865, pp. 291–92. - -Footnote 126: - - _Ibid._, 1871–72, pp. 162–63. - -Footnote 127: - - Laws of Ky., 1865–66, p. 37. - -Footnote 128: - - Estill v. Rogers, 1866, 1 Bush (Ky.) 62. - -Footnote 129: - - Stewart, of color, v. Munchandler, 1867, 2 Bush (Ky.) 278. - -Footnote 130: - - Scott v. Lairamore, 1895, 32 S. W. 172. - -Footnote 131: - - Laws of Ky., 1898, pp. 102–03. - -Footnote 132: - - Revised Stat. of La., 1870, p. 436, sec. 2212. - -Footnote 133: - - Pierre v. Fontennette, 1873, 25 La. Ann. 617. - -Footnote 134: - - Laws of Md., 1867, p. 858. - -Footnote 135: - - Code, 1867, p. 64. - -Footnote 136: - - Washington v. Washington, 1881, 69 Ala. 281. - -Footnote 137: - - Stikes v. Swanson, 1870, 44 Ala. 633. See Haden v. Ivey, 1874, 51 Ala. - 381. - -Footnote 138: - - Acts of Ark., 1866–67, p. 52. - -Footnote 139: - - Laws of Tenn., 1865–66, pp. 65 and 81; Laws, 1869–70, p. 92. - -Footnote 140: - - Art. XII, sec. 27. - -Footnote 141: - - Cumby v. Garland, 1894, 25 S. W. 673; Coleman v. Vollmer, 1895, 31 S. - W. 413. - -Footnote 142: - - Laws of Va., 1865–66, pp. 85–86. - -Footnote 143: - - Laws of W. Va., 1866, p. 102; Laws, 1872–73, p. 502. - -Footnote 144: - - Laws of Ill., 1891, pp. 163–64. - -Footnote 145: - - Butler v. Butler, 1896, 44 N. E. 203. - -Footnote 146: - - McDowell v. Sapp, 1883, 39 O. S. 558. - -Footnote 147: - - Minor v. Jones, 1876, 2 Redf. Sur. (N. Y.) 289. - -Footnote 148: - - Down v. Allen, 1882, 78 Tenn. (10 Lea) 652. - -Footnote 149: - - 17 Stat. L., 570, chap. 234, par. 11. - - - - - CHAPTER VI - INTERMARRIAGE AND MISCEGENATION - - -One race distinction, which has not been confined to the South, and -which has, in a large measure, escaped the adverse criticism heaped upon -other race distinctions is the prohibition of miscegenation between the -Caucasian and the colored races. The term “miscegenation” includes both -intermarriage and all forms of illicit intercourse between the races. -Twenty-six States and Territories, including all the Southern States, -have laws forbidding the admixture of the races; applying not only to -Negroes, but also to Indians and Mongolians in States where the latter -races are present in considerable numbers. - - - INTERMARRIAGE DURING RECONSTRUCTION - -It is significant that during the years of Reconstruction in the South, -when the Federal and State governments were endeavoring to eradicate -race distinctions, none of the statutes against miscegenation appear to -have been repealed. There is some meager authority—a case which arose in -Tennessee[150] in 1872, and two cases in North Carolina[151] in -1877—which might tend to show that the statutes of two Southern States -were repealed. The Tennessee court was of opinion that intermarriage was -not prohibited in Mississippi, and the North Carolina courts arrived at -the same conclusion about South Carolina; but neither court specified -the years to which its statement applied, and a careful examination of -the annual laws of Mississippi and South Carolina between 1865 and 1880 -reveals no statutes repealing the laws against intermarriage in those -States. One is led to conclude, therefore, that the statutes against -miscegenation were disregarded in a few instances during Reconstruction, -rather than repealed. This conclusion is helped out by the fact that the -legislatures manifested no inclination to permit miscegenation. The -legislature of South Carolina,[152] for instance, in 1865, before the -State government went into the hands of the Reconstructionists, enacted -laws, covering twenty-five or more finely printed pages, defining the -rights of Negroes in the most minute details, as was seen in considering -the “Black Laws” of 1865–68. These laws were repealed nine months later, -but the legislature was careful to add that the repealing act did not -apply to that part of the Act of 1865 which said that marriage between a -white person and a person of color should be illegal and void. The -legislature of Texas,[153] in like manner, on November 10, 1866, -repealed most of its statutes relating to free Negroes, but added that -nothing in the act should be construed to repeal any laws prohibiting -intermarriage of the white and black races. The repealing statute of -Arkansas[154] of February 6, 1867, made practically the same exception -as to intermarriage. - -Determined as many of the Reconstruction promoters were to wipe out -every vestige of legally recognized race distinctions, they did not -allow their zeal to carry them to the extent of legislating as to the -social relations of the races. Georgia, probably fearing that some -legislature might attempt to enact such measures, in its Constitutions -of 1868[155] and 1877[156] had this general statement: “The social -status of the citizen shall never be the subject of legislation.” It -would seem, on first thought, that this requirement would defeat its own -purpose. If marriage is a social status and if legislation as to the -social status of the citizen is forever prohibited, how can a law -prohibiting intermarriage be constitutional? In a test case[157] that -arose in 1869 the Supreme Court of the State very neatly explained away -this apparently embarrassing situation by saying, in effect, that the -clause in the Constitution applied only to future legislation, and it -did not affect the law prohibiting intermarriage then in force. After -quoting that clause in the Constitution, the court went on to say: “In -so far as the marriage relation is connected with the social _status_, -the very reverse is true. That section of the Constitution forever -prohibits legislation of any character regulating or interfering with -the social status. It leaves social rights and _status_ where it finds -them. It prohibits the legislature from repealing any laws in existence, -which protect persons in the free regulation among themselves of matters -properly termed social, and it also prohibits the enactment of any new -laws on that subject in the future.” The Constitution of Alabama[9] of -1901 provides against possible meddling by the legislature with domestic -relations in more outspoken terms: “The legislature shall never pass any -law to authorize or legalize any marriage between any white person and a -Negro or descendant of a Negro.” - - - PRESENT STATE OF THE LAW AGAINST INTERMARRIAGE - -The present situation as regards intermarriage is as follows: -Intermarriage between the Caucasian and other races is prohibited by the -Constitutions of six States, all Southern, namely: Alabama,[158] -Florida,[159] Mississippi,[160] North Carolina,[161] South -Carolina,[162] and Tennessee.[163] Intermarriage is prohibited by -statute also in the above States and in twenty other States and -Territories, namely: Alabama,[164] Arizona,[165] Arkansas,[166] -California,[167] Colorado,[168] Delaware,[169] Florida,[170] -Georgia,[171] Idaho,[172] Indiana,[173] Kentucky,[174] Louisiana,[175] -Maryland,[176] Mississippi,[177] Missouri,[178] Nebraska,[179] -Nevada,[180] North Carolina,[181] Oklahoma,[182] Oregon,[183] South -Carolina,[184] Tennessee,[185] Texas,[186] Utah,[187] Virginia,[188] and -West Virginia.[189] - - - TO WHOM THE LAWS APPLY - -In the interpretation of these statutes against intermarriage, it is -necessary, at the outset, to determine just who are included. If the -statutes had simply enacted that there should be no intermarriage -between Caucasians, on the one side, and Negroes, Indians, or -Mongolians, on the other, they would have left the great body of -mixed-blooded people to miscegenate as they pleased. Most of the States -avoided this difficulty by stating clearly to whom the laws apply. -Virginia and Louisiana are the only States simply to enact in general -terms that there shall be no intermarriage between white persons and -persons of color; and even in Virginia judicial decisions clearly define -the term “person of color,” so there is no difficulty in knowing who is -meant by the statute. Arkansas, Colorado, Delaware, Idaho, and Kentucky -prohibit intermarriage between white persons and Negroes or mulattoes. -Georgia, Texas, and Oklahoma place within the prohibition of their -statutes persons of African descent; West Virginia, Negroes; and -Florida, Negroes, expressly including every person with one-eighth or -more of Negro blood. Alabama makes its law apply to Negroes and their -descendants to the fifth generation, though one ancestor of each -generation was white. The Indiana and Missouri statutes extend to all -persons having one-eighth or more Negro blood; Maryland to Negroes or -persons of Negro descent to the third generation inclusive. Tennessee -includes within the prohibition Negroes, mulattoes, or persons of mixed -blood descended from a Negro to the third generation inclusive. The -Nebraska law applies to persons of one-fourth or more Negro blood. - -The States which have a large Indian or Mongolian population include -these races within the prohibition. Thus, Arizona prohibits whites to -intermarry with Negroes, Mongolians, or Indians and their descendants; -California, with Negroes, Mongolians, or Indians and their descendants; -California, with Negroes, Mongolians, or mulattoes. It is interesting to -note that the word “Mongolian” was not added to the California -statute[190] till 1905. This addition, coming, as it does, so nearly -contemporaneous with the school trouble in San Francisco, is evidence -that California is facing a race problem which it considers serious. The -Mississippi law applies to Negroes, mulattoes, persons who have -one-eighth or more Negro blood, Mongolians or persons who have -one-eighth or more Mongolian blood. Nevada includes black persons, -mulattoes, Indians, Chinese; Oregon, in addition to Negroes, prohibits -intermarriage with Chinese and with persons having one-fourth or more -Negro, Chinese, or Kanaka blood or having more than one-half Indian -blood. Utah includes simply Negroes and Mongolians; North Carolina, -Negroes and Indians. South Carolina prohibits intermarriage between -whites and Indians, Negroes, mulattoes, mestizoes, or half-breeds. - - - EFFECT OF ATTEMPTED INTERMARRIAGE - -Suppose a white person and a person within any of the prohibited classes -do attempt to intermarry. What is the legal result? Indiana, Kentucky, -Maryland, Nebraska, North Carolina, and Utah declare that such a -marriage is void; Colorado, Missouri, and Virginia, that it is -absolutely void; Arizona, Georgia, Oregon, and Tennessee, that it is -null and void; Delaware and Mississippi, that it is unlawful and void; -and Arkansas, California, and Idaho, that it is illegal and void. The -law of Florida declares that such a marriage is unlawful, utterly null -and void and the issue bastards and so incapable of inheriting. -Louisiana provides that such a marriage is prohibited, the celebration -of it forbidden, that the celebration carries with it no effect, and -that the marriage is null and void. South Carolina enacts that it is -“utterly null and void and of none effect.” The only legal effect of a -marriage thus declared void is to impose criminal liability upon the -parties to it. The result is precisely the same as if no license had -been obtained or ceremony performed and the parties had been indulging -in illicit relations. A Virginia decision says: “No matter by what -ceremonies or solemnities, such marriage would have been the merest -nullity, and the parties must have been regarded under our laws, as -lewdly associating and cohabiting together....”[191] - -The other States which prohibit intermarriage simply declare that -marriage between white persons and Negroes is illegal and prescribe a -punishment for the violation of the statute against miscegenation, but -do not further define the legal effect of such a marriage contract. But -whether the marriage is declared “void” or “null and void” or -“absolutely void” or only “illegal,” the result is the same. - - - PUNISHMENT FOR INTERMARRIAGE - -Persons of different races who attempt to intermarry in violation of the -laws subject themselves everywhere to severe penalties. In Alabama, the -law says they shall be imprisoned in the penitentiary for not less than -two, nor more than seven years. In Colorado, they are guilty of a -misdemeanor and punishable by a fine of from fifty dollars to five -hundred dollars, or imprisonment for not less than three months nor more -than two years, or both. In Delaware, they are guilty of a misdemeanor -and may be fined one hundred dollars. Florida says they shall be -imprisoned in the State penitentiary not exceeding ten years or fined -not exceeding one thousand dollars. In Indiana, if they knowingly -violate the law—that is, if the white person knows the other is a Negro -or of mixed blood—they are fined not less than one hundred dollars nor -more than one thousand dollars, or imprisoned in the State prison not -less than one nor more than ten years. Maryland declares that they are -guilty of an infamous crime, punishable by imprisonment in the -penitentiary not less than eighteen months nor more than ten years. -Mississippi makes the punishment a fine of five hundred dollars, -imprisonment not exceeding ten years, or both. The law of Missouri -declares that one who knowingly intermarries in violation of the statute -shall be punished by imprisonment in the penitentiary two years or by a -fine not less than one hundred dollars, or by imprisonment in the county -jail not less than three months, or by both such fine and imprisonment, -and adds that the jury shall determine the amount of Negro blood by -appearance. Nevada enacts that the parties are guilty of a misdemeanor -and shall be imprisoned in the State prison not less than one nor more -than two years. North Carolina brands an attempted intermarriage as an -infamous crime to be punished by imprisonment in the county jail or -State prison not less than four months nor more than ten years, and the -parties may also be fined at the discretion of the court. Oklahoma makes -it a felony and provides that the parties shall be punished by a fine of -not less than one hundred dollars nor more than five hundred dollars or -imprisonment not less than thirty days nor more than one year, or both. -Oregon simply makes it an offence punishable by imprisonment in the -penitentiary or county jail between three months and one year. South -Carolina[192] declares attempted intermarriage is a misdemeanor -punishable by a fine of not less than five hundred dollars or -imprisonment in the penitentiary from one to five years. Texas, by a law -of 1858, still in force in 1879, prescribed a punishment for the white -person who attempted to marry a Negro but no punishment for the Negro. A -Federal court[193] held that the difference of punishment was in -violation of the Fourteenth Amendment, but that the law against -intermarriage was constitutional. Virginia provides that the parties -shall be confined in the penitentiary not less than two nor more than -five years. West Virginia would confine them in jail not over one year -and fine them not exceeding one hundred dollars. Thus, it appears that -in most of the States intermarriage is considered a very serious -offence, ranking in Colorado, Delaware, Nevada, and South Carolina, as a -misdemeanor; in Louisiana and North Carolina as an infamous crime; and -in Tennessee and Oklahoma as a felony. - - - PUNISHMENT FOR ISSUING LICENSES - -With no less severity do the States punish those who issue licenses to -persons of one race to marry those of another. Alabama declares that -anyone knowingly issuing a license for the marriage of a white and -colored person shall be fined not less than one hundred dollars nor more -than one thousand dollars and may also be imprisoned in the county jail -or sentenced to hard labor for the county for not more than six months. -Colorado makes it a misdemeanor punishable by a fine of one hundred -dollars. Florida punishes it by imprisonment not exceeding two years or -a fine not exceeding one thousand dollars. North Carolina simply -declares it to be a misdemeanor without prescribing any punishment -different from that for other misdemeanors. Oklahoma makes it a -misdemeanor punishable by a fine of not less than one hundred nor more -than five hundred dollars, or imprisonment in the county jail not less -than thirty days nor more than one year, or both. - - - PUNISHMENT FOR PERFORMING THE CEREMONY - -A heavy penalty is laid also upon one who performs the ceremony for -those who marry in violation of the laws against miscegenation. Alabama -provides that any justice of the peace, minister, or other person, who -knowingly performs the marriage ceremony between a white and colored -person, shall be fined not less than one hundred dollars nor more than -one thousand and, at the discretion of the court, imprisoned in the -country jail or sentenced to hard labor for the county for not more than -six months. Arkansas makes anyone performing such a ceremony guilty of a -high misdemeanor punishable by a fine of not less than one hundred -dollars. Colorado declares that to perform the ceremony is a misdemeanor -punishable by a fine of between fifty dollars and five hundred dollars -or imprisonment between three months and two years, or both. In -Delaware, it is a misdemeanor, and the punishment is a one hundred -dollar fine. Florida either imprisons the person performing the ceremony -not over one year or imposes a fine on him not exceeding one thousand -dollars. North Carolina simply defines it as a misdemeanor. Indiana -declares that one who knowingly counsels or assists in such a marriage -shall be fined not less than one hundred dollars nor more than one -thousand dollars. Nevada makes one who performs the ceremony guilty of a -misdemeanor and subjects him to imprisonment in the State prison not -less than one year nor more than three years. Oklahoma makes it a -misdemeanor and imposes a fine of between one hundred dollars and five -hundred dollars, or imprisonment between three months and a year, or -both. The law of Oregon declares that one who wilfully and knowingly -performs such marriage ceremony shall be imprisoned in the penitentiary -or county jail from three months to one year and fined from one hundred -dollars to one thousand dollars. South Carolina provides that one who -knowingly and willingly unites persons of different races in the bonds -of matrimony shall be guilty of a misdemeanor and punished by a fine of -not less than five hundred dollars nor more than twelve months’ -imprisonment, or both. Virginia declares that he shall forfeit two -hundred dollars, of which the informant shall get one-half; and West -Virginia provides that the one who knowingly performs the ceremony shall -be guilty of a misdemeanor and fined not over two hundred dollars. - - - COHABITATION WITHOUT INTERMARRIAGE - -A few States have statutes relative to illicit relations between white -and colored persons, where no marriage is pretended to exist. Alabama -imposes for this offence upon both man and woman the same punishment as -for intermarriage; a living together in adultery one day with intent to -continue that relation has been held to constitute a violation of the -statute.[194] Florida declares that, if any white person and Negro or -mulatto shall live together in adultery or fornication with each other, -each shall be punished by imprisonment not exceeding a year, or by a -fine not exceeding a thousand dollars. The law adds that any Negro man -and white woman or any white man and Negro woman, not married to each -other, who habitually live in and occupy in the night-time the same -room, no other person over fifteen years of age being present, shall be -punished by imprisonment not exceeding twelve months, or by a fine not -exceeding five hundred dollars. Nevada provides that, if any white -person shall live and cohabit with any black person, mulatto, Indian, or -Chinese, in a state of fornication, such person so offending shall be -fined not over five hundred and not less than one hundred dollars, or -imprisonment in the county jail between one and six months, or both. -Louisiana[195] has the most recent and the most thorough-going statute -against miscegenation; it was adopted July 1, 1908. It provides that -concubinage between a white person and a Negro is a felony, punishable -by imprisonment for not less than one month nor more than one year. -Concubinage is defined as unlawful cohabitation of white persons and -Negroes whether open or secret. It was made the duty of the judges to -specially charge the grand juries upon this statute. - -The most interesting feature about these statutes is that they impose a -heavier penalty for cohabitation between a white and a colored person -than between two members of the same race. Yet they have been held to -comply with the Constitution of the United States. The reasons why such -statutes are held to be constitutional will be considered later. - - - STATES REPEALING LAWS AGAINST INTERMARRIAGE - -Only five States that once had laws against miscegenation have repealed -them since 1865. New Mexico,[196] in 1866, Rhode Island,[197] in 1881, -and Maine,[198] in 1883, repealed their laws against intermarriage -outright. A statute of Michigan[199] in 1883 provided that all marriages -theretofore contracted between white persons and those wholly or in part -of African descent should be valid and effectual and the offspring -legitimate, but it said nothing about marriages contracted in the -future. Professor Frederick J. Stimson[200] has apparently interpreted -the statute to apply to marriages in the future as well as to those -already contracted. Finally, Ohio[201] in 1887 repealed its law of 1877, -providing for the punishment of persons of “pure white blood” who -intermarry or have carnal intercourse with any Negro or person having a -distinct and visible admixture of African blood. - - - MARRIAGES BETWEEN THE NEGRO AND NON-CAUCASIAN RACES - -It is significant that the States have not prohibited intermarriage -between two different races except where one is the Caucasian. In no -State is it unlawful for Mongolians and Indians, Negroes and Mongolians, -or Negroes and Indians to intermarry. The only exception to the last is -that in North Carolina[202] it is unlawful for Negroes to intermarry -with Croatan Indians or to go to the same school with them. To this -statute hangs a beautiful historical tradition. In 1585, the date of the -first attempt by Englishmen to colonize the New World, there was an -island off the coast of North Carolina called Croatoan. By the shifting -of the sands, it is now probably a part of Hatteras or Ocracoke Island. -In 1587, a colony of one hundred and seventy-seven persons under John -White was landed by Sir Walter Raleigh on this island. Here, the same -year, was born Virginia Dare, granddaughter of John White and the first -child of English parents born in America. Later, part of the colonists -under White had to go back to England to seek further aid. By agreement, -those left behind were to go over to the friendly Croatoan Indians if -they needed succor. When Governor White returned many months later, he -found the settlement deserted and carved upon a tree nearby the single -word “Croatoan.” This supposedly meant that the colonists had gone over -to the Croatoans. For some unexplained reason, the party under White -never went in search of their lost brethren. Not a word more has ever -been heard of Virginia Dare and the others. A tradition says that they -went over to the Croatoans and eventually became absorbed into that -tribe.[203] Credence is given to this by the fact that there are many -Croatoan Indians—now called Croatans—with light complexion and blue -eyes. Recently a considerable body of mixed-blooded Indians in Robeson -County, North Carolina, have laid claim to descent from this lost -colony, and the State has officially recognized them under a separate -name as the “Croatan Indians.” Thus, all that is left of Virginia Dare -and the Lost Colony is this tradition supported by the presence of -Indians with fair skin and blue eyes, and the statute of North Carolina -that the blood of these early settlers shall not be further adulterated, -by miscegenation, with the blood of the Negro. - - - EFFECT GIVEN TO MARRIAGES IN OTHER STATES - -The next question is the interpretation of the laws against -intermarriage. What effect will a State that prohibits miscegenation -give to a marriage between a white person and Negro in a State that -permits intermarriage? What effect, for instance, will Virginia give to -a marriage of a white woman to a Negro man contracted in Massachusetts -if the parties go to Virginia to live? If the Negro and white woman were -residents in good faith of Massachusetts or of some State that permits -intermarriage at the time of their marriage, their marriage will, as a -general rule, be recognized as valid everywhere—even in the Southern -States. Several States, including Arkansas, Colorado, Idaho, Indiana, -Kentucky, and probably others, in their statutes prohibiting -intermarriage make the provision that, if the marriage is valid where -consummated, it will be considered valid by those States. A -Tennessee[204] court in 1872 did refuse to recognize as valid a marriage -celebrated in Mississippi when intermarriage was permitted in -Mississippi, but this appears to be the only case taking that view. - -If, on the other hand, the parties leave a State which prohibits -intermarriage and go to another State which allows it, solely for the -purpose of evading the laws of the former State, the authority is -practically unanimous that the marriage is not valid in the State the -laws of which they attempted to evade. This point is covered both by -statute and by judicial decision. A Delaware statute, for instance, -declares that the Negro and white person are equally guilty if they are -married in another State and move into Delaware as if they had been -married in Delaware. Mississippi, also, punishes parties attempting to -evade its laws by marrying out of the State and returning to -Mississippi, to the same extent as if they had attempted to intermarry -in Mississippi. The Georgia statute, which is typical, is as follows: -“All marriages solemnized in another State by parties intending at the -time to reside in this State shall have the same legal consequences and -effect as if solemnized in this State. Parties residing in this State -cannot evade any of the provisions of its laws as to marriage by going -into another State for the solemnization of the ceremony.” Statutes to -the same effect are in force in Arizona, Virginia, West Virginia, and -possibly other States. In the absence of statute, the point is covered -with the same result by judicial decision. In the Tennessee case, to -which reference has already been made, the court said: “Each State is -sovereign, a government within, of, and for itself, with the inherent -and reserved right to declare and maintain its own political economy for -the good of its citizens, and cannot be subjected to the recognition of -a fact or act contravening its public policy and against good morals, as -lawful, because it was made or existed in a State having no prohibition -against it or even promoting it.” - -In 1878, a Negro man and a white woman went over from Virginia[205] into -the District of Columbia, were married, and returned to Virginia, where -they were prosecuted. The Virginia court held that, although the forms -and ceremonies of marriage are governed by the laws of the place where -marriage is celebrated, the essentials of the contract depend upon and -are governed by the laws of the country where the parties are domiciled -at the time of the marriage, and in which the matrimonial residence is -contemplated. This case was affirmed by the Federal court[206] the next -year. A Georgia[207] couple who also went to the District of Columbia to -be married, returned to their native State, where they were indicted and -convicted for violating the Georgia statute against intermarriage. - -It appears that Washington has been and is the City of Refuge for such -miscegenating couples. It has been held, however, in every case, that, -when these people return to Southern States, no matter where married, -they are amenable to the laws of those States. In fact, there appears to -be only one American case with regard to Negroes which holds a contrary -doctrine, the case of Medway v. Needham.[208] There a white person and -Negro, living in Massachusetts, which at the time, 1819, prohibited -intermarriage, went to Rhode Island, where they were married and whence -they immediately returned. The Supreme Court of Massachusetts held that -a marriage, if valid where celebrated, is valid everywhere; the court -taking no account of the purpose of the parties to evade the law. In -rendering this decision, the Court admitted that it was going counter to -the opinion of eminent jurists. The decision has not been followed, it -appears, by any other court. It may be taken as settled that, if the -parties leave the State for the purpose of evading its law, intending at -the time to return to that State, the marriage will not be recognized as -valid when they do return. But, if they leave the State to evade the -law, not intending at the time to return and do gain a _bona fide_ -residence in another State and, after that, do return, the marriage will -be recognized. In other words, to furnish a State grounds to declare -void a marriage celebrated in another State where it is valid, the -parties must intend not only to evade the law but also not to gain a -_bona fide_ residence in the State to which they go. - -Efforts have been made to prohibit intermarriage in the District of -Columbia. At the last session of the Sixtieth Congress, Senator Milton, -of Florida, introduced a bill to make intermarriage between white -persons and Negroes a crime punishable by imprisonment for ten years and -a fine of one thousand dollars, providing that one with one-eighth or -more Negro blood should come within the prohibition, declaring such -marriages to be null and void and the issue resulting from them -illegitimate and so incapable of inheritance. This bill apparently died -in the committee room. A resolution in the Senate to recall it from the -Committee on the Judiciary was tabled on March 1, 1909, by a vote of 43 -to 21. - - - INTERMARRIAGE AND THE FEDERAL CONSTITUTION - -The constitutionality of State statutes and judicial decisions which -have refused to recognize marriages between Negroes and white persons -celebrated in other States or in the District of Columbia have been -attacked on two grounds: First, that they are in violation of article -one, section ten, of the Constitution of the United States, which says, -in part, that no State shall pass any law impairing the obligation of -contracts; and, secondly, that they contravene that part of the -Fourteenth Amendment which says that no State shall make or enforce any -law which shall abridge the privileges and immunities of citizens of the -United States. - -Marriage is declared by the statutes of the States which prohibit -intermarriage, just as by other States, to be a civil contract. If it is -a contract and if marriage between a white person and a Negro in -Massachusetts, for instance, is valid, when the parties go to South -Carolina to live, how can the South Carolina courts declare the marriage -a nullity and prosecute the parties for fornication and adultery without -contravening the Federal Constitution? The only answer is: Marriage is a -civil contract, but it is something more. Almost without exception, the -courts have held that a State has the absolute control of the marriage -status within its borders. The early case of State v. Gibson,[209] -coming in 1871 during Reconstruction, sounded a warning to the Federal -Government’s interfering with the laws of marriage. The court said: “In -this State [Indiana] marriage is treated as a civil contract, but it is -more than a mere civil contract. It is a public institution established -by God himself, is recognized in all Christian and civilized nations, -and is essential to the peace, happiness, and well-being of society. In -fact, society could not exist without the institution of marriage, for -upon it all the social and domestic relations are based. The right of -all the States to regulate and control, to guard, protect, and preserve -this God-given, civilizing, and Christianizing institution is of -inestimable importance, and cannot be surrendered, nor can the States -suffer or permit any interference therewith. If the Federal Government -can determine who may marry in a State, there is no limit to its -power....” - -The Supreme Court of Alabama[210] in 1872 declared that the laws against -intermarriage did contravene the Civil Rights Bill and the Fourteenth -Amendment. But this case was expressly overruled by Green v. State,[211] -in which the court, answering both of the objections, said, “Marriage is -not a mere contract, but a social and domestic institution upon which -are founded all society and order, to be regulated and controlled by the -sovereign power for the good of the State; and the several States of the -Union in the adoption of the recent Amendments to the Constitution of -the United States designed to secure to citizens rights of a civil or -political nature only, and did not part with their hitherto unquestioned -power of regulating, within their own borders, matters of purely social -and domestic concern.” - -There are Federal cases to support the position of the State Courts. But -it is of no use to pile up citations of decisions further to establish -the well-accepted doctrine that marriage is more than a civil contract, -that it is a domestic institution, and that a State, by virtue of its -police power, has absolute control as to who may contract marriages or -live in that relation within its borders.[212] - - -Twenty-six States and Territories prohibit intermarriage between the -white and other races. They recognize as valid such marriages when -contracted in a State which allows them, unless the parties are trying -to evade the laws of the State of their domicile or of their intended -matrimonial residence. The States prescribe a heavier penalty for -illicit intercourse between white persons and persons of another race -than for the same offence between two persons of the same race; they -inflict heavy punishments upon ministers and other officials who perform -a marriage ceremony between a white person and one of another race, and -upon those who issue licenses for such a marriage; and they declare the -offspring of such marriages illegitimate and incapable of inheritance. -In each of these positions, the courts, Federal as well as State, have -upheld the twenty-six States and Territories. - -Twenty-four States and Territories do not prohibit intermarriage between -the white and other races. It is not within the province of this study -to consider the actual amount of admixture that is going on in these -States. But inasmuch as Boston has often been cited as the city in which -the number of marriages between white persons and Negroes is very large -(estimated by Senator Money, of Mississippi, at 2,000 in 1902), the -report of the registry department of Boston for the years 1900–1907 is -here added: - - - INTERMARRIAGES IN BOSTON - - Colored man White man Total Number of - White woman Colored woman Mixed Marriages - 1900 32 3 35 - 1901 30 1 31 - 1902 25 4 29 - 1903 27 2 29 - 1904 27 1 28 - 1905 17 2 19 - 1906 17 2 19 - 1907 28 4 32 - -From this it appears that the number, never appreciably large, has been -steadily decreasing. - -The following is what Mr. Ray Stannard Baker[213] has to say about the -precise fact of intermarriages in the Northern States in general: “In -the great majority of intermarriages the white women belong to the lower -walks of life. They are German, Irish, or other foreign women, -respectable but ignorant. As far as I can see from investigating a -number of such cases, the home life is as happy as that of other people -in the same stratum of life. But the white woman who marries a Negro is -speedily declassed: she is ostracised by the white people, and while she -finds a certain place among the Negroes, she is not even readily -accepted as a Negro. In short, she is cut off from both races. When I -was at Xenia, O., I was told of a case of a white man who was arrested -for living with a Negro woman. The magistrate compelled him to marry the -Negro woman as the worst punishment he could invent. - -“For this reason, although there are no laws in most Northern States -against mixed marriages, and although the Negro population has been -increasing, the number of intermarriages is not only not increasing, but -in many cities, as in Boston, it is decreasing. It is an unpopular -institution.” - - - NOTES - -Footnote 150: - - State v. Bell, 1872, 7 Baxter (Tenn.) 9. - -Footnote 151: - - State v. Ross, 1877, 76 N. C. 242; State v. Kennedy, 1877, 76 N. C. - 251. - -Footnote 152: - - Laws of S. C., 1866, extra sess., pp. 393–94. - -Footnote 153: - - Laws of Tex., 1866, p. 131. - -Footnote 154: - - Laws of Ark., 1866–67, p. 99. - -Footnote 155: - - Art. I, sec. 11. - -Footnote 156: - - Art. I, par. 18. - -Footnote 157: - - Scott v. State, 1869, 39 Ga. 321. - -Footnote 158: - - Sec. 102. - -Footnote 159: - - Const., 1885, art. XVI, sec. 24. - -Footnote 160: - - Const., 1890, art. XIV, sec. 7. - -Footnote 161: - - Const., 1875, art. XIV, sec. 8. - -Footnote 162: - - Const., 1895, art. III, sec. 33. - -Footnote 163: - - Const., 1870, art. XI, sec. 14. - -Footnote 164: - - Code, 1907, III, sec. 7421. - -Footnote 165: - - Revised Stat., 1901, secs. 3092 and 3094. - -Footnote 166: - - Kirby’s Digest, 1904, secs. 5174, 5177, and 5183. - -Footnote 167: - - Civil Code, 1906, sec. 60. - -Footnote 168: - - Revised Stat., 1908, secs. 4163 and 4165. - -Footnote 169: - - Revised Code, 1852, as amended in 1893, p. 593. - -Footnote 170: - - General Stat., 1906, secs. 2579, 3529, and 3531–32. - -Footnote 171: - - Code, 1895, II, secs. 2422–25. - -Footnote 172: - - Revised Code, 1908, I, secs. 2616 and 2619. - -Footnote 173: - - Annotated Stat., 1908, secs. 2641, 2642, 8360, and 8367. - -Footnote 174: - - Statutes, 1909, secs. 4615 and 4619. - -Footnote 175: - - Merrick’s Revised Civil Code, 1900, art. 94. - -Footnote 176: - - Public Gen. Laws, I, sec. 305, p. 878. - -Footnote 177: - - Code, 1906, secs. 1031 and 3244. - -Footnote 178: - - Annotated Stat., 1906, II, sec. 2174. - -Footnote 179: - - Compiled Stat., 1907, sec. 4275. - -Footnote 180: - - Compiled Laws, 1861–1900, secs. 4851–52. - -Footnote 181: - - Pell’s Revisal of 1908, I, secs. 2083 and 3369–70. - -Footnote 182: - - General Stat., 1908, secs. 3260 and 3262. - -Footnote 183: - - Bellinger and Cotton’s Codes and Stat., I, secs. 1999–2001 and II, - sec. 5217. - -Footnote 184: - - Code, 1902, I, sec. 2664. - -Footnote 185: - - Code, 1896, secs. 4186–87. - -Footnote 186: - - Sayles’s Civil Stat., I, art. 2959. - -Footnote 187: - - Compiled Laws, 1907, sec. 1184. - -Footnote 188: - - Pollard’s Code, 1904, sec. 2252. - -Footnote 189: - - Code, 1899, p. 972. - -Footnote 190: - - Laws of Calif., 1905, p. 554. - -Footnote 191: - - Kinney’s Case, 1878, 30 Grat. (Va.) 858, 861. - -Footnote 192: - - Code of Criminal Procedure, 1902, sec. 293. - -Footnote 193: - - _Ex parte_ Francois, 1879, Fed. Case No. 5,047. - -Footnote 194: - - McAlpine v. State, 1897, 117 Ala. 93; 23 So. 130. - -Footnote 195: - - Acts of La., 1908, pp. 105–06. - -Footnote 196: - - Laws of N. M., 1866, p. 90. - -Footnote 197: - - Acts of R. I., Jan. sess., 1881, p. 108. - -Footnote 198: - - Laws of Me., 1883, p. 167. - -Footnote 199: - - Pub. Acts of Mich., 1883, p. 16. - -Footnote 200: - - Frederick J. Stimson, “American Statute Law,” I, p. 668. - -Footnote 201: - - Laws of O., 1877, p. 277; 1887, p. 34. - -Footnote 202: - - Laws of N. C., 1887, p. 494. - -Footnote 203: - - Edward Channing, “History of the United States,” The Macmillan Co., - 1905, I, pp. 128–30. - -Footnote 204: - - State v. Bell, 1872, 7 Baxter (Tenn.) 9. - -Footnote 205: - - Kinney v. Com., 1878, 30 Grat. (Va.) 858. - -Footnote 206: - - _Ex parte_ Kinney, 1879, Fed. Case No. 7,825. - -Footnote 207: - - State v. Tutty, 1890, 41 Fed. 753. - -Footnote 208: - - 16 Mass. 157 (1819). - -Footnote 209: - - 36 Ind. 389 (1871). - -Footnote 210: - - Burns v. State, 1872, 48 Ala. 195. - -Footnote 211: - - 58 Ala. 190 (1877). - -Footnote 212: - - State v. Hairston, 1869, 63 N. C. 451; Lonas v. State, 1871, 50 Tenn. - (3 Heisk) 287; Frasher v. State, 1877, 3 Tex. Ap. 263. - -Footnote 213: - - “Following the Colour Line,” pp. 172–73. - - - - - CHAPTER VII - CIVIL RIGHTS OF NEGROES - - -The Thirteenth Amendment to the Federal Constitution, prohibiting -slavery or involuntary servitude, except as a punishment for crime, was -proposed to the legislatures of the thirty-six States on February 1, -1865, a little over two months before the surrender of Lee at -Appomattox, and was declared to have been ratified by twenty-seven -States, the requisite three-fourths, by December 18, 1865. The latter -date marked the Negro’s final freedom from physical bondage. His body -could no longer be owned as chattel property. But there is a vast -difference between being able to say “No man owns my body,” and “I have -the same rights, privileges, and immunities as other free men.” This -difference the Thirty-ninth Congress—that of 1865–1866—fully realized, -and grappled with. - -The first ten Amendments were passed soon after the adoption of the -Constitution to satisfy the demands of those who were jealous of the -power of the Federal government. These, in brief, guaranteed to the -citizens of the United States (1) freedom of religion, speech, press, -assembly, and of petition for redress of grievances; (2) the right to -keep and bear arms; (3) the right not to have soldiers quartered in -one’s house in time of peace without one’s consent; (4) freedom from -unreasonable searches and seizures; (5) the right not to be denied life, -liberty, or property without due process of law; (6) the right to trial -by jury; (7) the right of the accused to be confronted by his accuser; -(8) the right not to have one’s property taken for public use without -compensation; and (9) the right not to be subjected to cruel or unusual -punishment, and not to have excessive bail required. These were -limitations upon the power of Congress, the States themselves having -guaranteed such rights to their own citizens by their bill of rights. -After the War, the Federal government was fearful that the States, -particularly those lately in rebellion, would not grant these rights or -privileges to the freedmen, who, according to the Dred Scott decision, -were not citizens. All the power that Congress had over the States, it -seems, was to enforce the Thirteenth Amendment by appropriation -legislation. But it proceeded to make the most of the power it had, -biding its time when another amendment to the Constitution would give it -more power over the States. - - - FEDERAL CIVIL RIGHTS LEGISLATION - -The first step taken by Congress, under the power supposedly arising out -of the Thirteenth Amendment, was an attempt to secure to the Negro his -so-called “civil rights.” Unfortunately, there seems to be no succinct -definition of this term. Bouvier[214] defines the phrase thus: “A term -applied to certain rights secured to citizens of the United States by -the Thirteenth and Fourteenth Amendments to the Constitution and by -various acts of Congress made in pursuance thereof.” This definition, -however, helps little, and one is thrown back upon the Amendments and -subsidiary enactments themselves to work out from them what are the -civil rights of a citizen and of the Negro in particular. - -During the summer and fall of 1865, between the close of the War and the -convening of Congress, there had developed on the part of the radical -element of the Republican party under Thaddeus Stevens an opposition to -President Johnson’s Reconstruction plans. The first Civil Rights Bill -passed the Senate on February 2, 1866, passed the House a few days -later, but on March 27, was returned with the veto of the President. It -was passed, however, over his veto on April 9, 1866, and was thereafter -known as the Civil Rights Bill[215] of 1866. The first section reads: -“All persons born in the United States and not subject to any foreign -power, excluding Indians not taxed, are hereby declared to be citizens -of the United States; and such citizens, of every race and color, -without regard to any previous condition of slavery or involuntary -servitude, except as a punishment for crime whereof the party shall have -been duly convicted, shall have the same right, in every State and -Territory in the United States, to make and enforce contracts, to sue, -be parties, and give evidence, to inherit, purchase, lease, sell, hold, -and convey real and personal property, and to full and equal benefits of -all laws and proceedings for the security of person and property, as is -enjoyed by white citizens, and shall be subject to like punishments, -pains, and penalties, and to none other, any law, statute, ordinance, -regulation, or custom to the contrary notwithstanding.” - -It is evident that the first phrase was intended to contravene the Dred -Scott decision and to establish the Negro’s citizenship. While the Bill -was before Congress, the great subject of debate was as to just what -rights would be given thereby to the Negro. Some opposed it because they -thought it would give him the right of suffrage, the right to intermarry -with whites, to attend the same schools and churches, to sit on juries, -and to testify in courts. It must be remembered that the “Black Laws” of -the free States were still in force, and the Congressmen from those -States were as jealous of Federal interference on the subject as those -from the Southern States. - -It is not the purpose here to discuss the Civil Rights Bill as it was -regarded by the people, but rather as it was interpreted by the courts. -Although it stood scarcely more than two years before it was eclipsed -and practically superseded by the Fourteenth Amendment, nevertheless it -stood long enough to be tested by the courts. - -The Negroes, prompted in some instances probably by white persons, -undertook immediately to see what rights were really secured to them by -the Bill. In Tennessee and Mississippi, in 1866, convictions were had -under the existing State laws against intermarriage, as there had -previously been. Appeal to the Federal Supreme Court was talked of, but -nothing came of it. With a view to testing their rights, Negroes in New -York demanded sleeper accommodations on railroads, and went to -fashionable restaurants and demanded the right to sit with the white -patrons, but in both instances were refused. In Baltimore they sought -accommodations on street cars, in theatres, saloons, etc. with whites, -but were met with the same refusal.[216] - -The constitutionality of the Bill was denied in 1867 by the Court of -Appeals of Kentucky,[217] on the ground that it invaded the right of the -State to regulate its own domestic concerns. But its constitutionality -was upheld in two cases: United States v. Rhodes,[218] 1866, in the -Circuit Court, a case involving the right of a Negro to testify, and _In -re_ Turner,[219] in the Circuit Court also, a Maryland case involving -the laws of apprenticeship. - -It appears that none of the cases involving the rights of Negroes in -public places, which are being considered particularly in this chapter, -reached the higher courts. But Mr. Flack[220] says: “The instances we -have cited, however, are apparently sufficient to justify the conclusion -that the belief prevailed generally—north, east, west and -south—especially among the Negroes, that the Civil Rights Bill gave the -colored people the same rights and privileges as white men as regards -travel, schools, theatres, churches, and the ordinary rights which may -be legally demanded. There also seems to have been a less general belief -that it also permitted the intermarriage of the races.” - -As interesting as it would be to trace this Bill and the subsequent -Federal enactments through Congress, it would take one too far afield. -He must accept the products as they came from the crucible of debate, -and interpret their effect upon the rights of Negroes. - -The Civil Rights Bill of 1866 was practically superseded by the first -section of the Fourteenth Amendment, ratified by thirty-six States and -declared operative July 28, 1868. This section reads as follows: “All -persons born or naturalized in the United States, and subject to the -jurisdiction thereof, are citizens of the United States and of the State -wherein they reside. No State shall make or enforce any law which shall -abridge the privileges or immunities of citizens of the United States; -nor shall any State deprive any person of life, liberty, or property, -without due process of law, or deny to any person within its -jurisdiction the equal protection of the laws.” - -Mr. Flack[221] says that the purpose in the adoption of this Amendment -was (1) to make the Bill of Rights (the first eight Amendments) binding -upon the States as well as upon the Nation; (2) to give validity to the -Civil Rights Bill of 1866; and (3) to declare who were citizens of the -United States. As he shows by an analysis of the debates in Congress, -the constitutionality of the Civil Rights Bill of 1866 was doubted by -many of its able advocates, and it was natural that they should desire -to make their tenets secure by incorporating them into the Constitution -itself. It is worth remarking that on May 1, 1870, the Civil Rights Bill -of 1866 was practically re-enacted.[222] - -The words “Negro,” “race,” or “color” do not appear in the first section -of the Fourteenth Amendment; but a study of the speeches before the -House and Senate would show that the legislators had the Negro primarily -in mind, and so the court understood. In the Slaughter-House Cases[223] -of 1872, cases not having to do with the Negro in the slightest degree, -Mr. Justice Miller gave an interpretation of the Fourteenth Amendment -which has stood as a landmark. He said: “... on the most casual -examination of the language of these Amendments [Thirteenth, Fourteenth, -and Fifteenth], no one can fail to be impressed with the one pervading -purpose found in them all, laying at the foundation of each, and without -which none of them would have been even suggested; we mean the freedom -of the slave race, the security and firm establishment of that freedom, -and the protection of the newly-made freeman and citizen from the -oppressions of those who had formerly exercised unlimited dominion over -him. It is true that only the Fifteenth Amendment, in terms, mentions -the Negro by speaking of his color and his slavery. But it is just as -true that each of the other articles were addressed to the grievances of -that race, and designed to remedy them as the Fifteenth. We do not say -that no one else but the Negro can share in their protection.... But we -do say ... that in any fair and just construction of any section or -phrase of these Amendments, it is necessary to look to the purpose which -we have said was the pervading spirit of them all, the evil which they -were designed to remedy, and the process of continued addition to the -Constitution, until that purpose was supposed to be accomplished, as far -as constitutional law can accomplish it.” Without further citation of -authorities, it may be assumed that the primary purpose of Congress in -drafting the Fourteenth Amendment was to secure and protect the rights -and privileges of Negroes. - -The next Federal legislation on the subject was the Civil Rights -Bill[224] of 1875, which declared that all persons within the -jurisdiction of the United States should 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 -established by law and applicable alike to citizens of every race and -color, regardless of any previous condition of servitude. The penalty -for the violation of this law was the forfeiture of five hundred dollars -to the person aggrieved and a fine of not less than five hundred dollars -nor more than one thousand dollars or imprisonment not less than three -months nor more than one year. The District and Circuit Courts of the -United States were given exclusive jurisdiction of offences against this -statute. District attorneys, marshals, and deputy marshals of the United -States, and commissioners appointed by the Federal courts were -authorized to proceed against those violating the provisions of the act. - -The years between 1865 and 1875 had witnessed changes in the attitude of -Congress toward the civil rights of Negroes. The Bill of 1866 was -general in its terms, yet Congress did not feel secure till the -Fourteenth Amendment had been passed to give validity, in a sense, to -what had already been done. Now in 1875 Congress passed a bill which far -surpassed in scope anything that had theretofore been undertaken. It is -surprising that the test case of its constitutionality did not reach the -court of last resort before 1883. During the year of its passage, 1875, -doubt was thrown upon its validity by Judge Dick in charging the grand -jury of the Federal Circuit Court of North Carolina,[225] who said, in -part: “Every man has a natural and inherent right of selecting his own -associates, and this natural right cannot be properly regulated by -legislative action, but must always be under the control of the -individual taste or inclination.” The same year, Judge Emmons, of the -Circuit Court in Tennessee,[226] ruled that the Fourteenth Amendment -applied to State and not individual action, and that the Federal -government could not require individual innkeepers, theatre managers, -etc., to entertain Negroes. - -The constitutionality of the Civil Rights Bill of 1875, however, was -finally settled in 1883. That year five cases[227] reached the Supreme -Court, all of which had to do with the civil rights of Negroes. Two of -them concerned the rights of colored persons in inns and hotels; two, -their rights in theatres; and one, in railroad cars. Mr. Justice -Bradley, delivering the opinion of the court, took the ground that the -first and second sections of the Civil Rights Bill were unconstitutional -for these reasons: (1) They are not authorized by the Thirteenth -Amendment, abolishing and prohibiting slavery, because the separation of -the races in public places is not a badge of servitude. “It would be -running the slavery argument into the ground,” he said, “to make it -apply to every act of discrimination which a person may see fit to make -as to the guests he will entertain, or as to the people he will take -into his coach, or cab, or car, or admit to his concert or theatre, or -deal with in other matters of intercourse or business.” (2) The Civil -Rights Bill is not authorized by the Fourteenth Amendment, because that -refers to action by the State, while the Bill refers to individual -discrimination. It is State action of a particular kind that is -prohibited. “Individual invasion of individual rights,” he argued, “is -not the subject matter of the amendment.... It nullifies and makes void -all State legislation, and State action of every kind, which impairs the -privileges and immunities of citizens of the United States.... It does -not invest Congress with power to legislate upon subjects which are -within the domain of State legislation; but to provide modes of relief -against State legislation or State action.... It does not authorize -Congress to create a code of municipal laws for the regulation of -private rights, but to provide modes of redress against the operation of -State laws, and the action of State officers, executive or judicial, -when these are subversive of the fundamental rights specified in the -Amendment ... until some State law has been passed, 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 done under -State authority.” - -The effect of this decision is that the Federal government cannot -prevent the curtailment of the civil rights of Negroes by individuals -unless such individuals are acting under sanction of State statutes, and -in that case, the Federal court can only declare that the State statute -is unconstitutional. - - - STATE LEGISLATION BETWEEN 1865 AND 1883 - -The Civil Rights Bill of 1875 was the last effort of Congress to -guarantee to Negroes their civil rights. It is well now to turn back in -point of time, and trace the action of the State legislatures on the -subject. It has been deemed advisable to let the year 1883 be the -dividing point in the history of the latter legislation. Before that -time the States were moving in conjunction with the Nation; after, the -impotence of the Nation having been declared by its Supreme Court, the -burden of defining and securing civil rights to Negroes devolved upon -the States. Moreover, it is well to treat the Southern States and the -States outside the South separately, because of the abnormal conditions -in the former occasioned by Reconstruction. - - - _In States Outside of South_ - -Between 1865 and 1883 there was comparatively little legislation in the -Northern, Eastern, and Western States as to civil rights. This was -naturally so because these States were waiting to see what the Federal -government meant to do. A brief examination of what little legislation -there was will be made. - -On May 16, 1865, Massachusetts[228] declared that there should be no -distinction, discrimination, or restriction on account of color or race -in any licensed inn, public place of amusement, public conveyance, or -public meeting, and imposed a fine of fifty dollars for the violation of -this law. The next year it included theatres[229] within the -prohibition, but weakened the force of the statute by saying that there -should be no exclusion or restriction “except for good cause.” - -The attitude of Delaware[230] toward civil rights is probably the most -interesting of any of the Northern States. On April 11, 1873, its -legislature passed the following “joint resolution in opposition to -making Negroes the equals of white men, politically or socially”: - -“That the members of this General Assembly, for the people they -represent, and for themselves, jointly and individually, do hereby -declare uncompromising opposition to a proposed act of Congress, -introduced by Hon. Charles Sumner at the last session, and now on file -in the Senate of the United States, known as the ‘Supplemental Civil -Rights Bill,’ and all other measures intended or calculated to equalize -or amalgamate the Negro race with the white race, politically or -socially, and especially do they proclaim unceasing opposition to making -Negroes eligible to public offices, to sit on juries, and to their -admission into public schools where white children attend, and to the -admission on terms of equality with white people in the churches, public -conveyances, places of amusement, or hotels, and to any measure designed -or having the effect to promote the equality of the Negro with the white -man in any of the relations of life, or which may possibly conduce to -such result. - -“That our Senators in Congress be instructed, and our Representatives -requested to vote against and use all honorable means to defeat the -passage by Congress of the bill referred to in the foregoing resolution, -known as the ‘Supplemental Civil Rights Bill,’ and all other measures of -a kindred nature, and any and every attempt to make the Negro the peer -of the white man.” - -Upon the heels of this resolution, in 1875, Delaware[231] enacted a -statute on March 15, 1875, which provided that no keeper of an inn, -tavern, hotel, or restaurant, or other place of public entertainment or -refreshment of travelers, guests, or customers, should be obliged by law -to furnish entertainment or refreshment to persons whose reception or -entertainment by him would be offensive to the major part of his -customers, or would injure his business. The term “customers” was taken -to include all who sought entertainment or refreshment. The proprietor -of a theatre or other public place of amusement was not obliged to -receive into his show, or admit into the place where he was pursuing his -occupation, any person whose presence there would be offensive to the -major part of his spectators or patrons, and thereby injure his -business. Any carrier of passengers might make such arrangements in his -business as would, if necessary, assign a particular place in his cars, -carriages, or boats, to such of his customers as he might choose to -place there, and whose presence elsewhere would be offensive to the -major part of the traveling public, where his business was conducted; -but the accommodations must be equal if the same price for carriage was -required of all. This is still the law in Delaware. Taken in connection -with the joint resolution above, there is little doubt that the -legislature intended to make possible the drawing of a color line, -though it did not expressly say so. It is noteworthy that, during the -stormy years of Reconstruction, some case testing its constitutionality -did not arise. Only one other State has had a statute anything like the -Delaware law, and that is Tennessee, which statute and, with it, -apparently the only case involving the constitutionality of the law that -has reached the courts will be discussed later. - -A Kansas[232] statute of April 25, 1874, which is still law, provided -that there should be no distinction on account of race, color, or -previous condition of servitude in any State university, college, or -other school of public instruction, or in any licensed inn, hotel, -boarding house, or any place of public entertainment or amusement, or -any steamboat, railroad, stage coach, omnibus, street car, or any other -means of public carriage for persons or freight, under penalty of a fine -of from ten to one thousand dollars. - -New York,[233] on April 9, 1874, passed a Civil Rights Bill which -prohibited race distinctions in inns, public conveyances on land and -water, theatres, other public places of amusements, common schools, -public institutions of learning, and cemeteries. It further declared -that the discrimination against a citizen on account of color, by the -use of the word “white,” or any other term, in any law, statute, -ordinance, or regulation, should be repealed. In 1881, it specifically -mentioned hotels, inns, taverns, restaurants, public conveyances, -theatres, and other places of public resort or amusement.[234] - - - _In South_ - -One would naturally expect that most of the legislation in the South -guaranteeing civil rights to Negroes would have come during the period -that their governments were in the hands of the Reconstructionists, and -such is the case. - -In 1866 a Florida[235] statute made it a misdemeanor for a person of -color to intrude himself into any religious or other public assembly of -white persons, or into a railroad car or other public vehicle set apart -for the exclusive accommodation of white people, or for a white person -so to intrude upon the accommodations of colored persons. By 1873, -however, the political revolution had come, and a statute[236] of that -year forbade discrimination on account of race, color, or previous -condition of servitude, in the full and equal enjoyment of the -accommodations, etc., of inns, public conveyances on land and water, -licensed theatres, other places of public amusement, common schools, -public institutions of learning, cemeteries, and benevolent associations -supported by general taxation. This prohibition did not apply to private -schools or cemeteries established exclusively for white or colored -persons. It added, as did the law of New York, that there should be no -discrimination in any laws by using the word “white.” - -A statute of Louisiana[237] in 1869 prohibited any discrimination on -account of race or color by common carriers, innkeepers, hotel keepers, -or keepers of public resorts. The license of such places had to contain -the stipulation that they must be open to all without distinction or -discrimination on account of color. The penalty was forfeiture of the -license and a suit for damages by the party aggrieved. This statute[238] -was strengthened in 1873 by the further provision that all persons, -without regard to race or color, must have “equal and impartial -accommodations” on public conveyances, in inns and other places of -public resort. It was the duty of the attorney-general to bring suit in -the name of the State to take away the license of anyone violating the -law. The statute imposed a fine upon common carriers running from other -States into Louisiana who made any discrimination against citizens of -the latter on account of race or color. - -Arkansas,[239] in 1873, required the same accommodations to be furnished -to all by common carriers, keepers of public houses of entertainment, -inns, hotels, restaurants, saloons, groceries, dramshops, or other -places where liquor was sold, public schools, and benevolent -institutions supported in whole or partly by general taxation. - -The law of Tennessee[240] of 1875 is in a very different tone, it being -very much like, as has been said before, that of Delaware. That statute -reads: “The rule of the common law giving a right of action to any -person excluded from any hotel, or public means of transportation, or -place of amusement, is hereby abrogated; and hereafter no keeper of any -hotel, or public house, or carrier of passengers for hire, or -conductors, drivers, or employees of such carrier or keeper, shall be -bound, or under any obligation to entertain, carry, or admit any person, -whom he shall for any reason whatever, choose not to entertain, carry, -or admit, to his house, hotel, carriage, or means of transportation or -place of amusement; nor shall any right exist in favor of any such -person so refused admission, but the right of such keepers of hotels and -public houses, carriers of passengers, and keepers of places of -amusement and their employees to control the access and admission or -exclusion of persons to or from their public houses, means of -transportation, and places of amusement, shall be as perfect and -complete as that of any person over his private house, carriage, or -private theatre, or place of amusement for his family.” This Tennessee -law is even more sweeping than that of Delaware. In the latter, common -carriers may provide separate accommodations for persons that would be -disagreeable to the major portion of the traveling public; in the -former, the common carrier might exclude such persons altogether. -According to the Tennessee statute, every railroad company in the State -had a right to refuse absolutely to carry Negroes on its cars. Of -course, this has been changed by its “Jim Crow” laws. The case of State -v. Lasater,[241] dealing with the second section of the Tennessee -statute, has the following to say about the whole enactment: “This is an -extraordinary statute. It is generally understood to have been passed to -avoid the supposed effects of an act of Congress on the same subject, -known as the Civil Rights Bill.” - -The constitutionality of the Tennessee and Delaware statutes has not -been tested, as far as is known. Therefore, in the absence of authority, -an opinion on the matter is of little value, but the following -suggestion is ventured: Originally, hotels and inns were no more public -places than a man’s dwelling, and one could choose his patrons just as -he could choose the guests he would entertain, and might exclude anyone -without giving his reasons for it, as a merchant might refuse to sell -goods to anyone he chose. For historical reasons, which need not be -discussed here, the courts held that an inn-keeper should not be allowed -to refuse an applicant for entertainment unless he had some valid reason -for it. The common law thereafter considered hotels, etc., public -places. It has been seen that the Civil Rights Cases held that the -Federal government cannot prohibit a hotel-keeper from refusing to -receive an applicant, but that the regulation of such domestic relations -is within the exclusive control of the State. If the State sees fit to -pass a statute abrogating the common law, as Tennessee and Delaware did, -and making hotels, etc., private places, as they were originally, there -seems to be no valid constitutional objection. The reasoning that -applies to hotels will apply to other places now considered public, -possibly even to public conveyances. - -The following resolution of the legislature of North Carolina[242] of -1877 is worth quoting in full. It is especially significant because it -was passed after the Reconstruction régime was over, and the State -government had passed back into hands of the Democratic party, with -Zebulon B. Vance as Governor. - -“_Whereas_, In the providence of God, the colored people have been set -free, and this is their country and their home, as well as that of the -white people, and there should be nothing to prevent the two races from -dwelling together in the land in harmony and peace; - -“_Whereas_, We recognize the duty of the stronger race to uphold the -weaker, and that upon it rests the responsibility of an honest and -faithful endeavor to raise the weaker race to the level of intelligent -citizenship; and - -“_Whereas_, The colored people have been erroneously taught that -legislation under Democratic auspices would be inimical to their rights -and interests, thereby causing a number of them to entertain honest -fears in the premises, - -“The General Assembly of North Carolina do resolve, That, while we -regard with repugnance the absurd attempts, by means of ‘Civil Rights’ -Bills, to eradicate certain race distinctions, implanted by nature and -sustained by the habits of forty centuries; and while we are sure that -good government demands for both races alike that the great -representation and executive offices of the country should be -administered by men of the highest intelligence and best experience in -public affairs, we do, nevertheless, heartily accord alike to every -citizen, without distinction of race or color, equality before the law. - -“_Resolved_, That we recognize the full purport and intent of that -amendment to the Constitution of the United States which confers the -right of suffrage and citizenship upon the people of color, and that -part of the Constitution of North Carolina conferring educational -privileges upon both races: that we are disposed and determined to carry -out in good faith these as all other constitutional provisions.” - - - STATE LEGISLATION AFTER 1883 - - - _In South_ - -The civil rights legislation in the South after 1883 may be shortly -disposed of, for an examination of the session laws of the Southern -States since that time reveals only one statute that can at all properly -be called a Civil Rights Bill. That was a statute of Tennessee[243] of -March 25, 1885, providing against discrimination in theatres, shows, -parks, places of public resort for observation of scenery or amusement -of any kind whatever, where fee or toll is charged. But it adds this -significant section: “That nothing herein contained shall be construed -as interfering with the existing rights to provide separate -accommodations and seats for colored and white persons at such places.” -It may be taken for granted that the Civil Rights Bills passed in the -South by the Reconstruction administrations became inoperative, if they -were not actually repealed, as soon as the government reverted to the -hands of the resident white people. Of course, all the Southern -legislation as to separate schools and separate accommodations in public -conveyances relates to the civil rights of Negroes, and most of this has -come since 1883, but the discussion of these two important subjects is -postponed to later chapters. - - - _In States Outside of South_ - -The Federal Civil Rights Bill, as has been seen, was declared -unconstitutional in 1883, and the national government was thereby -declared impotent to secure for Negroes equality of accommodations in -public places. Thus the burden, as has been said before, was thrown upon -the States. Many of the States outside the South responded by adopting -bills which practically copied the Civil Rights Bill of 1875. The -following is a list of the States that have such Civil Rights Bills with -the dates of their adoption and amendments: Connecticut,[244] 1884 and -1905; Iowa,[245] 1884 and 1892; New Jersey,[246] 1884; Ohio,[247] 1884 -and 1894; Colorado,[248] 1885 and 1895; Illinois,[249] 1885; -Indiana,[250] 1885; Massachusetts,[251] 1885, 1893, and 1895; -Michigan,[252] 1885; Minnesota,[253] 1885, 1897, and 1899; -Nebraska,[254] 1885 and 1893; Rhode Island,[255] 1885; New York,[256] -1893 and 1895; Pennsylvania,[257] 1887; Washington,[258] 1890; -Wisconsin,[259] 1895; and California,[260] 1897. The Kansas[261] bill -has already been considered. - -A clearer idea of what the various State statutes mean and how they -differ from the Civil Rights Bill of 1875 may be got from the -accompanying table. The list contains the names of places where all -citizens, without regard to race, color, or previous condition of -servitude are guaranteed equality of accommodation. It will be noticed -that none of the Southern States have Civil Rights Bills and, therefore, -depend upon the courts to determine the rights of citizens in public -places, and in addition the following States have no such statute: -Delaware, Idaho, Maine, Maryland, Missouri, Montana, Nevada, New -Hampshire, North Dakota, Oregon, South Dakota, Utah, Vermont, West -Virginia, and Wyoming. - - ANALYSIS OF THE STATE CIVIL RIGHTS BILLS - - ───────────────┬──────────┬────────┬───────────┬────────┬───────┬──── - │ │ │ │ │ │ - │California│Colorado│Connecticut│Illinois│Indiana│Iowa - ───────────────┼──────────┼────────┼───────────┼────────┼───────┼──── - Inns │ x │ x │ │ x │ x │ x - Taverns │ │ │ │ │ │ - Restaurants │ x │ │ │ x │ x │ - Eating houses │ x │ x │ │ x │ x │ x - Boarding houses│ │ │ │ │ │ - Cafés │ │ │ │ x │ │ - Chop houses │ │ │ │ │ │ x - Lunch counters │ │ │ │ │ │ x - Hotels │ x │ │ │ x │ │ - Saloons │ │ │ │ │ │ - Soda fountains │ │ │ │ x │ │ - Ice cream │ │ │ │ │ │ - parlors │ │ │ │ x │ │ - Bath houses │ x │ │ │ x │ │ x - Barber shops │ x │ x │ │ x │ x │ x - Theatres │ x │ x │ │ x │ x │ x - Concerts │ │ │ │ x │ │ - Music halls │ │ │ │ │ │ - Skating rinks │ x │ │ │ x │ │ - Bicycle rinks │ │ │ │ x │ │ - Churches │ │ x │ │ │ │ - Public meetings│ │ │ │ │ │ - Elevators │ │ │ │ x │ │ - Public │ │ │ │ │ │ - conveyances │ │ x │ x │ x │ x │ x - State │ │ │ │ │ │ - universities │ │ │ │ │ │ - State colleges │ │ │ │ │ │ - Schools of │ │ │ │ │ │ - public │ │ │ │ │ │ - instruction │ │ │ │ │ │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - instruction │ │ │ │ │ │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - accommodation│ x │ x │ x │ x │ x │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - amusement │ x │ x │ x │ x │ x │ x - Places of │ │ │ │ │ │ - public resort│ │ x │ │ │ │ - Public places │ │ │ │ │ │ - kept for │ │ │ │ │ │ - hire, gain, │ │ │ │ │ │ - or reward │ │ │ │ │ │ - Places where │ │ │ │ │ │ - refreshments │ │ │ │ │ │ - are served │ │ │ │ │ │ x - Places of │ │ │ │ │ │ - entertainment│ │ │ │ │ │ - ───────────────┴──────────┴────────┴───────────┴────────┴───────┴──── - - ───────────────┬──────┬─────────────┬────────┬─────────┬────────┬────── - │ │ │ │ │ │ New - │Kansas│Massachusetts│Michigan│Minnesota│Nebraska│Jersey - ───────────────┼──────┼─────────────┼────────┼─────────┼────────┼────── - Inns │ x │ x │ x │ x │ x │ x - Taverns │ │ │ │ x │ │ - Restaurants │ x │ x │ x │ x │ x │ - Eating houses │ │ │ x │ x │ │ - Boarding houses│ x │ │ │ │ │ - Cafés │ │ │ │ │ │ - Chop houses │ │ │ │ │ │ - Lunch counters │ │ │ │ │ │ - Hotels │ x │ │ │ x │ │ - Saloons │ │ │ │ x │ │ - Soda fountains │ │ │ │ │ │ - Ice cream │ │ │ │ │ │ - parlors │ │ │ │ x │ │ - Bath houses │ │ │ │ │ │ - Barber shops │ │ x │ x │ x │ x │ - Theatres │ │ x │ x │ x │ x │ x - Concerts │ │ │ │ │ │ - Music halls │ │ │ │ │ │ - Skating rinks │ │ x │ │ │ │ - Bicycle rinks │ │ │ │ │ │ - Churches │ │ │ │ │ │ - Public meetings│ │ x │ │ │ │ - Elevators │ │ │ │ │ │ - Public │ │ │ │ │ │ - conveyances │ x │ x │ x │ x │ x │ x - State │ │ │ │ │ │ - universities │ x │ │ │ │ │ - State colleges │ x │ │ │ │ │ - Schools of │ │ │ │ │ │ - public │ │ │ │ │ │ - instruction │ x │ │ │ │ │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - instruction │ │ │ │ x │ │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - accommodation│ │ │ x │ x │ │ - Places of │ │ │ │ │ │ - public │ │ │ │ │ │ - amusement │ x │ x │ x │ x │ x │ x - Places of │ │ │ │ │ │ - public resort│ │ │ │ x │ │ - Public places │ │ │ │ │ │ - kept for │ │ │ │ │ │ - hire, gain, │ │ │ │ │ │ - or reward │ │ x │ │ │ │ - Places where │ │ │ │ │ │ - refreshments │ │ │ │ │ │ - are served │ │ │ │ x │ │ - Places of │ │ │ │ │ │ - entertainment│ x │ │ │ x │ │ - ───────────────┴──────┴─────────────┴────────┴─────────┴────────┴────── - - ───────────────┬────┬────┬────────────┬──────┬──────────┬─────────┬───── - │New │ │ │Rhode │ │ │ - │York│Ohio│Pennsylvania│Island│Washington│Wisconsin│Total - ───────────────┼────┼────┼────────────┼──────┼──────────┼─────────┼───── - Inns │ x │ x │ │ x │ x │ x │ 16 - Taverns │ │ │ │ │ │ │ 1 - Restaurants │ x │ x │ x │ │ x │ x │ 13 - Eating houses │ x │ x │ │ │ x │ x │ 11 - Boarding houses│ │ │ │ │ │ │ 1 - Cafés │ │ │ │ │ │ │ 1 - Chop houses │ │ │ │ │ │ │ 1 - Lunch counters │ │ │ │ │ │ │ 1 - Hotels │ x │ │ x │ │ │ │ 6 - Saloons │ │ │ │ │ │ x │ 2 - Soda fountains │ │ │ │ │ │ │ 1 - Ice cream │ │ │ │ │ │ │ - parlors │ │ │ │ │ │ │ 2 - Bath houses │ x │ │ │ │ │ │ 4 - Barber shops │ x │ x │ │ │ x │ x │ 13 - Theatres │ x │ x │ x │ │ x │ │ 14 - Concerts │ │ │ x │ │ │ │ 2 - Music halls │ x │ │ │ │ │ │ 1 - Skating rinks │ │ │ │ │ │ │ 3 - Bicycle rinks │ │ │ │ │ │ │ 1 - Churches │ │ │ │ │ │ │ 1 - Public meetings│ │ │ │ │ │ │ 1 - Elevators │ │ │ │ │ │ │ 1 - Public │ │ │ │ │ │ │ - conveyances │ x │ x │ x │ x │ x │ x │ 17 - State │ │ │ │ │ │ │ - universities │ │ │ │ │ │ │ 1 - State colleges │ │ │ │ │ │ │ 1 - Schools of │ │ │ │ │ │ │ - public │ │ │ │ │ │ │ - instruction │ │ │ │ │ │ │ 1 - Places of │ │ │ │ │ │ │ - public │ │ │ │ │ │ │ - instruction │ │ │ │ │ │ │ 1 - Places of │ │ │ │ │ │ │ - public │ │ │ │ │ │ │ - accommodation│ x │ x │ │ │ x │ x │ 11 - Places of │ │ │ │ │ │ │ - public │ │ │ │ │ │ │ - amusement │ x │ x │ x │ x │ x │ x │ 18 - Places of │ │ │ │ │ │ │ - public resort│ │ │ │ │ │ │ 2 - Public places │ │ │ │ │ │ │ - kept for │ │ │ │ │ │ │ - hire, gain, │ │ │ │ │ │ │ - or reward │ │ │ │ │ │ │ 1 - Places where │ │ │ │ │ │ │ - refreshments │ │ │ │ │ │ │ - are served │ │ │ │ │ │ │ 2 - Places of │ │ │ │ │ │ │ - entertainment│ │ │ x │ │ │ │ 3 - ───────────────┴────┴────┴────────────┴──────┴──────────┴─────────┴───── - - x Indicates States in which equal accommodations are guaranteed to all - without regard to race. - - - PENALTY FOR VIOLATING THE LAW - -1. CALIFORNIA: Fine not less than $50. - -2. COLORADO: Forfeiture between $50 and $500; misdemeanor, fine between -$10 and $300, or imprisonment not over one year. - -3. CONNECTICUT: Double damages to person injured. - -4. ILLINOIS: Forfeiture between $25 and $500; misdemeanor, fine not over -$500, or imprisonment not over one year. - -5. INDIANA: Forfeiture not over $100; misdemeanor, fine not over $100, -or imprisonment not over thirty days, or both. - -6. IOWA: Misdemeanor. - -7. KANSAS: Misdemeanor, fine between $10 and $1,000, and suit for -damages. - -8. MASSACHUSETTS: Forfeiture between $25 and $300; misdemeanor, fine not -over $300, or imprisonment not over one year, or both. - -9. MICHIGAN: Misdemeanor, fine not over $100, or imprisonment thirty -days, or both. - -10. MINNESOTA: Forfeiture of $500 to aggrieved party; gross misdemeanor. - -11. NEBRASKA: Misdemeanor, fine between $25 and $100 and costs. - -12. NEW JERSEY: Forfeiture of $500 to aggrieved party and costs; -misdemeanor, fine between $500 and $1,000, imprisonment between thirty -days and one year. - -13. NEW YORK: Forfeiture between $100 and $500 to aggrieved party; -misdemeanor, fine between $100 and $500, imprisonment between thirty -days and ninety days, or both. - -14. OHIO: Forfeiture between $50 and $500 to aggrieved party; -misdemeanor, fine between $50 and $500, imprisonment between thirty days -and ninety days. - -15. PENNSYLVANIA: Misdemeanor, fine between $50 and $100. - -16. RHODE ISLAND: Fine not over $100. - -17. WASHINGTON: Misdemeanor, fine between $50 and $300, imprisonment -between thirty days and six months. - -18. WISCONSIN: Not less than $5 to aggrieved party; fine not over $100, -or imprisonment not over six months. - -The wording of all the statutes is essentially the same. Each provides -that all citizens within the jurisdiction of the State, without regard -to race, color, or previous condition of servitude, are entitled to the -full and equal accommodations, advantages, facilities, and privileges of -the various places mentioned. The offending party may be either indicted -and fined or imprisoned, or he may be sued by the aggrieved party. In -some States, an action by the State is a bar to an action by the party -and vice versa. One who aids or abets in a discrimination against a -person on account of race, color, or previous condition of servitude is -punished to the same extent as the one actually committing the act. - -Heretofore only legislative enactments, State and Federal, as to the -civil rights of Negroes have been considered. It is well now to turn to -the courts to see how the laws have been interpreted as regards various -public places. - - - HOTELS - -Only six States expressly forbid race distinctions in hotels. But it may -be assumed that the sixteen States which mention inns mean to include -hotels. - -In 1876 a Negro minister applied for a room at a Philadelphia hotel and -was refused accommodation, though one of the guests offered to share his -room with him. At that time there was no law in Pennsylvania requiring -hotel-keepers to receive colored persons; but the Federal court[262] -held that the clerk might be liable under the Federal Civil Rights Bill -of 1875. - -In 1898 one Russ applied for a license to open a hotel in Pennsylvania. -In granting it, the court[263] took the occasion to express its view on -race distinctions in the following words: “A sober, respectable, and -well-behaved colored man or woman is entitled under the law of -Pennsylvania to be received in any house of entertainment and be treated -in the same manner as any other guest. It is time that race -discrimination ceased in this State.... No one objects any longer to his -[the Negro’s] presence in a public conveyance or place of entertainment; -thus far the prejudice of race has been overcome; it is quite certain -that the objection to his presence in a hotel or restaurant will also -pass away as soon as his right under the law to be there is recognized -in fact as it now is by the letter of the statute.... It would be vain -to deny that some race prejudice still exists among us, but the law does -not countenance it, and good citizens should strive to rise above it. We -trust the effort will be made and that toleration and moderation will -mark the conduct of both races.” - -In 1896 the members of the Indiana University football team went to the -Nutt House in Crawfordsville, Indiana, for accommodation. One of the -members of the team was a Negro. The clerk refused to take the Negro in -with the rest of the guests, but offered to let him eat at the -“ordinary.” The Negro, being a minor, brought suit through his next -friend, and the Indiana[264] court held that the Civil Rights Bill of -the State could not be satisfied by separate accommodations. - -There is no case of race discrimination in the hotels of Massachusetts -that has reached the higher courts, but in April, 1896, the following -resolution[265] was passed by the General Court of the State: - -“_Whereas_, On the twenty-ninth day of January, eighteen ninety-six, the -Reverend Benjamin W. Arnett, D.D., of Wilberforce, Ohio, senior bishop -of the African Methodist Episcopal Church, president of the board of -trustees of Wilberforce University, and member of many learned -societies, was refused entertainment at certain reputable hotels in the -city of Boston, because he was a colored man, in spite of the statute -laws against discrimination on account of color; therefore, - -“_Resolved_, That the senate and house of representatives of the -Commonwealth of Massachusetts, in general court assembled, successors of -those bodies which repeatedly elected Charles Sumner to the Senate of -the United States, and for four years received messages from John A. -Andrew, hereby express their severest reprobation of such discrimination -and their firm conviction of the truth of the clause of the Declaration -of Independence wherein all men are declared to be created equal; and it -is further - -“_Resolved_, That still more to be reprobated is the sentiment of any -part of the public against any class of our fellow citizens whereby such -discrimination is rendered possible, and that a vigorous campaign for -statute rights by the persons most aggrieved will meet the hearty -approval and coöperation of the two branches of the General Court.” This -is very significant as showing the actual attitude of the hotels of -Boston toward receiving Negroes. Whether the “vigorous campaign” was -conducted one cannot tell; certainly no case appears to have reached the -courts. And there is in Boston at present a Negro hotel. - -The manager of the Lucerne Hotel in New York City in 1905, refused to -lease a suite to a woman because she was a Jewess. It was a family -hotel, containing small suites like those found in an ordinary apartment -house, rented upon annual leases, transients not being solicited. The -New York court[266] held that it was not a hotel in the sense that the -manager must receive all applicants without regard to race or color. Of -course, this case did not concern the Negro, but the same principle is -involved. - - - RESTAURANTS - -Race discrimination in restaurants is prohibited by thirteen States; in -taverns, by one; in eating-houses, by eleven; in boarding-houses, by -one; in cafés, by one; in chop-houses, by one; and at lunch-counters, by -one. These will be considered under the general head of restaurants. - -In 1881 a Negro was refused accommodation in a restaurant in New York. -At that time the laws of the State prohibited discrimination in inns. -The restaurant-keeper argued as a defence in the suit that followed that -the restaurant was not included in the term “inns.” The court[267] held -that the legislature meant by “inn” a place that furnished both lodging -and food to guests, that “restaurant” had no fixed legal meaning, and -that the declaration was sufficient if it said “inn” and then explained -it by calling it a restaurant. - -A Negro went to a restaurant in Detroit in 1887 and asked for -accommodation. The clerk told him that he could not be served on the -restaurant side, but that he would be served if he went over on the -saloon side. The colored man complained to the proprietor and was told -that it was the rule of the house not to serve Negroes in the restaurant -room. The statute of Michigan required full and equal accommodation in -restaurants. The court[268] held that the statute would not be satisfied -if the Negro were given as good accommodations but in a different room, -saying: “In Michigan there must be and is an absolute, unconditional -equality of white and colored men before the law.... Whatever right a -white man has in a public place, the black man has also.” - -In 1897 a colored man went into a restaurant in Milwaukee, Wisconsin. -After sitting at the table forty minutes without having his order taken, -he complained, and was told that he was not served because he was -colored. He left, and later brought suit. At the trial, it appeared that -the discrimination was not with the sanction of the proprietor, that he -had told the waiter to serve Negroes, that the waiter had refused to do -so and was discharged therefor. Nevertheless, the court[269] held that -the proprietor was liable for the act of his servant, and gave -compensatory damages to the Negro. - -The next year, a restaurant keeper refused to accommodate a Negro in -Lucas County, Ohio, and the court[270] allowed the Negro to recover the -penalty prescribed by the law. The case was decided on a question of -evidence. - -In 1905 a Negro was serving on the jury in a civil case in Iowa. The -bailiff had arranged with a boarding-house to serve meals. When the -Negro, along with the other jurors, went for his meals, the -boarding-house keeper refused to allow him to sit at the same table with -the others. It was not questioned that this was in violation of the -Civil Rights Bill of the State if the boarding-house was an -“eating-house” within the terms of the statute. The court[271] charged -the jury that such an eating-house as would come within the statute must -be a place where meals are served to anyone applying at the same prices -charged to all, but that, if meals are served only in pursuance of a -previous arrangement for particular individuals, rather than anyone who -may apply, it is a private boarding-house and not within the statute. - - - BARBER-SHOPS - -Thirteen States provide that barbers must serve all persons without -regard to race or color. - -In 1889 a barber in Lincoln, Nebraska, refused to shave a Negro because -he was “colored.” The Civil Rights Bill of that State mentions barbers. -The court[272] held: “A barber, by opening a shop and putting out his -sign, thereby invites every orderly and well-behaved person who may -desire his services to enter his shop during business hours. The statute -will not permit him to say to one, you were a slave or the son of a -slave, therefore I will not shave you. Such prejudices are unworthy of -our better manhood, and are clearly prohibited by the statute.” -Barber-shops were included within the provisions of the Massachusetts -Civil Rights Bill in 1893, but, as a matter of fact, Negroes are not -even now given the same accommodations as whites in barber-shops in -Massachusetts. - -The statute of Connecticut requires equality of service in “places of -public accommodation.” A barber refused to serve one Faulkner because he -was a Negro, and the latter brought suit on the ground that a -barber-shop is a place of public accommodation and, hence, within the -Civil Rights Bill of the State. The court[273] held that the barber-shop -is not, in its nature, different from the places of business run for -private gain, and that the common law has never recognized it as -possessing the quality of a place of public accommodation, as a hotel, -public conveyance, etc. - -It may be added here that most of the cases have involved the point as -to what are places of public accommodation or amusement or resort. If -the place is mentioned in the Civil Rights Bill, it is, of course, -within the prohibition, and it is a violation of the statute even to -require separate accommodations, although equal in every other respect. -But a vast deal of litigation has arisen out of instances of Negroes -being denied accommodation in places considered public in their nature -but which are not mentioned in the Civil Rights Bill of the State -wherein the case arises. - - - BOOTBLACK STANDS - -In the year 1901, Basso, a bootblack in the basement of one of the -business houses of Rochester, New York, refused to serve Burks because -the latter was a Negro. The law of New York, as has been seen, requires -full and equal accommodations in hotels and “other places of public -accommodation.” The question, therefore, was: Is a bootblack stand a -place of “public accommodation”? The municipal court of Rochester, in -which Burks brought suit, gave judgment for him, thereby answering the -question in the affirmative. The county court reversed the decision. The -appellate division reversed the county court and sustained the -municipal. The court of appeals[274] reversed the appellate division -thereby sustaining the county court, saying: “A bootblacking stand may -be said to be a place of public accommodation, like the store of a dry -goods merchant, a grocer, or the proverbial ‘butcher, baker, and -candlestick maker’; but that is very far from placing it in the same -category with the places specifically named in the statute. Inns, -hotels, and public conveyances are places of public accommodation in the -broadest sense, because they have always been denominated as such under -the common law. Bath-houses and barber-shops are not to be regarded as -included within the statute under the general phrase, ‘and all other -places of public accommodation.’ There is no more relation between a -bootblacking stand and a public conveyance than there is between a -theatre or music-hall and a bath-house or barber-shop. There is, it is -true, a superficial resemblance between the occupation of the barber and -that of the bootblack, in the sense that both minister to the personal -comfort and convenience of others; but the same argument could be -extended far beyond the limits necessary to demonstrate that not ‘all -other places of public accommodation’ are included by relation within -the category of the things specifically enumerated in the statute.” - - - BILLIARD-ROOMS - -In Massachusetts in 1866, a certain Negro was refused, because of his -race or color, the use of a billiard-room. At that time a statute of the -Commonwealth required equal accommodation in public places of amusement. -The Supreme Court[275] of Massachusetts, in which the Negro’s case was -finally heard, held that there was no proof that the room was licensed, -and added: “It cannot be supposed that it was the intent of the -legislature to prescribe the manner in which persons should use their -own premises or permit others to use them, if they did not carry on -therein an occupation or business, or suffer other persons to -appropriate them to a purpose, which required a license in order to -render such an appropriation lawful.” - - - SALOONS - -Only two States, Minnesota and Wisconsin, mention saloons in their Civil -Rights Bills. And in Minnesota, they were not added till 1899, as a -result of the following case: A Negro was denied accommodation in a -saloon. At that time, the statute required equal accommodations in inns -and “places of public resort, refreshment, accommodation, or -entertainment.” The court[276] of that State, in passing on the case, -held that a saloon is not among the other “places of public -refreshment.” The court suggests that “or other” means “other such like” -and includes only places of the same nature as those already mentioned -specifically in the statute. About the Negro, the court said: “It is a -well-known fact that, owing to an unreasonable race prejudice which -still exists to some extent, the promiscuous entertainment of persons of -different races in places where intoxicating drinks are sold not -infrequently result in personal conflicts, especially when the passions -of men are inflamed by liquor. Hence the legislature might have omitted -saloons for that reason.” The next year the legislature answered -otherwise by adding saloons to the Civil Rights Bill. - -In 1899 a bar-keeper in Ohio charged a Negro thirty cents for a -cocktail, the regular price to white customers being only fifteen cents. -The Civil Rights Bill of Ohio did not mention saloons, but said “other -places of public accommodation and amusement.” The court[277] held that -saloons were not included, adding, in the same spirit as the Minnesota -court “... nor should we interpret this statute as encouraging a tariff -which the clearly defined policy of the State discourages.” - -A statute of Louisiana[278] of 1908 requires separate saloons for white -and colored persons. The Louisiana court,[279] in July, 1909, held that -the sale of liquor to white and colored persons must not be conducted in -the same building, and that the statute is not obeyed by providing -separate bars in the same building. The saloon keeper had attempted to -avoid paying taxes on two saloons by operating two bars in the same -building. - -In Atlanta,[280] before State prohibition began, there were separate -saloons for the white and colored people. An ordinance of -Nashville,[281] Tennessee, which went into effect July 7, 1907, required -the segregation of the races in saloons. - - - SODA FOUNTAINS - -The keeper of a soda fountain in Illinois in 1896 refused to sell cold -drinks to a Negro. At that time the law required equal accommodation in -inns and “all other places of accommodation and amusement.” The -court[282] of that State held that a soda fountain is not such a place -of accommodation or amusement. “Such a place,” the court argued, “can be -considered a place of accommodation or amusement to no greater extent -than a places where dry goods or clothing, boots and shoes, hats and -caps, or groceries, are dispensed. The personal liberty of an individual -in his business transactions, and his freedom from restrictions, is a -question of utmost moment, and no construction can be adopted by which -an individual right of action will be included as controlled within a -legislative enactment, unless clearly expressed in such enactment and -certainly included within the constitutional limitation on the power of -the legislature.” - - - THEATRES - -The question of the rights of Negroes in theatres has given rise to a -number of judicial decisions. Fifteen States provide by statute that -there shall be no race distinction in theatres. In 1873, the laws of -Mississippi, under the Reconstruction government, declared that all -persons, without distinction as to race, color, or previous condition of -servitude, should have equal and impartial enjoyment of theatres. One -Donnell, held in custody for refusing to pay a fine for violating this -law by refusing to sell theatre tickets to two Negroes, petitioned for a -writ of _habeas corpus_. The court[283] held that the law was not -unconstitutional, because it in no way appropriated private property to -public use. - -Two years later, in reply to a question whether it was a crime to refuse -a Negro equal accommodations in a hotel, Judge Emmons in Tennessee -charged the grand jury[284] that the Federal government had no right to -require individual innkeepers, theatre managers, etc., to entertain -Negroes. - -In 1876 a Negro in Louisiana bought a ticket to a theatre, which he was -not allowed to use on account of his color. He sued for five thousand -dollars damages. The Constitution of that State, at the time, guaranteed -equal accommodations in public places. The Louisiana court[285] held -that this law “does not enumerate a mere abstraction, but it guarantees -substantial rights.” The Negro’s claim was sustained, but the damages -were reduced to three hundred dollars and costs. Both this and the -Mississippi case arose in the South and were decided favorably to the -rights of the Negro, but both came during the Reconstruction régime. -Since then, no such case appears to have risen in the South. - -In 1889 a Negro woman in Illinois, having been refused tickets to a -theatre, had a white man buy them for herself and her husband. On -presenting the tickets they were refused admission to seats in the -theatre which the tickets called for. At the resulting trial, the -proprietor offered to prove that he had, “in order to avoid collision -between the races, adopted a rule (and that such rule was necessary) to -the effect that the colored people should have one row to themselves in -each part of the house, or as many rows as the tickets which they bought -would call for.” This evidence was rejected, the court[286] holding that -the Civil Rights Bill of Illinois could not be satisfied by separate -accommodations. - -Missouri has no Civil Rights Bill. A Negro, mistaken for a white man by -the clerk in the box-office, bought tickets for seats in the orchestra -of a Kansas City theatre. When he presented his tickets to the usher he -was refused the seats called for, but was offered in exchange balcony -seats reserved for Negroes. The court[287] before which the case was -tried held that the rule of the theatre requiring separate -accommodations for the races was not a violation of the Fourteenth -Amendment. - -The most recent case[288] appears to be a 1905 case in New York in which -a Negro was ejected from a theatre by an employee. The proprietor was -permitted to show that the ejectment was done while he was away and -contrary to his orders, and that he permitted Negroes to enjoy the -privileges of the place. A verdict was thereupon found for him, but the -case was remanded by the appellate court for a new trial, on the ground -that the evidence was improperly admitted. - - - SKATING RINKS - -California, Illinois, and Massachusetts have considered skating rinks of -enough importance to include them in their Civil Rights Bills. In 1885 -the keeper of a skating rink in Iowa refused to let a Negro use it, and -the Negro brought suit. The court[289] held that the exclusion of a -colored man from a skating rink not licensed is not illegal. The New -York court[290] has held that a skating rink is a “place of public -amusement” within the meaning of the statute, so that a keeper of one -cannot refuse admission to a Negro. - - - CEMETERIES - -The early Civil Rights Bills of New York, Florida, and Kansas prohibited -race distinctions in public cemeteries. This stipulation, however, does -not appear in the present statutes of any of the States, except Kansas. -Race distinctions in cemeteries are common. The legislature of -Mississippi[291] of 1900, for instance, gave the Ladies’ Auxiliary -Cemetery Association, an organization of white women, permission to -remove the monument and remains of the Negro State Secretary of State, -James Lynch, from the white to the Negro cemetery in Jackson, -Mississippi, provided it was done without expense to the State. - -The Raleigh, N. C., _News and Observer_ of February 20, 1906, quotes the -Germantown, Pa., _Guide_ as calling on the people to provide a cemetery -where Negroes may be buried, saying that “unless something is done, the -bodies of the colored poor will be denied the right of decent burial, -for their disposal, of necessity, will be by means of the dissecting -rooms of anatomical boards.” - - -The Civil Rights Bills of the eighteen States have now been analyzed, -and the judicial decisions arising therefrom have been considered. It is -noticeable that, if one excepts the theatre cases of the Reconstruction -period, not a case has come from a Southern State. The explanation must -be that those States have never undertaken to require hotel-keepers, -etc., to offer accommodations without regard to color: the Negroes have -taken for granted that they would not be admitted to such places, except -upon condition that they would accept the accommodations set apart for -their race, and consequently have not applied for admission upon any -other terms. In the other States the courts have, as a rule, interpreted -the Civil Rights Bills very strictly. If a place is not specifically -mentioned in the statute, courts have been very slow to include it under -the general head of “other places of amusement or accommodation.” In -other words, this phrase, which is, in substance, tacked on to every -statute, is a dead letter. The courts are chary, as they should be, of -invading individual liberty and freedom of business. But if a place is -specifically mentioned in the statute, the law is not satisfied by -offering separate accommodations to Negroes, even though such -accommodations are equal for both races in every respect; they must be -identical. - - - RACE DISCRIMINATION BY INSURANCE COMPANIES - -Some allied topics may be properly discussed under the general head of -civil rights. - -Five States—Connecticut,[292] Massachusetts,[293] Ohio,[294] New -York,[295] and Michigan,[296]—have deemed it necessary to pass laws -prohibiting any discrimination on account of race or color by life -insurance companies. All of the statutes are essentially the same. They -declare that no life insurance company shall make any distinction or -discrimination between white and colored persons wholly or partly of -African descent, as to premiums or rates charged for policies; nor shall -such company demand higher premiums from colored persons than from -whites of the same age, sex, general condition of health, and hope of -longevity; nor shall it make or require any rebate, diminution, or -discount upon the sum to be paid on the policy in case of the death of -the colored person. Such a company is forbidden to add any stipulation -by which the insured binds himself, his heirs, executors, assigns, etc., -to accept any sum less than the face value of the policy. Massachusetts -provides that if a company refuses to insure a colored person making -application, it must, upon his request, give him a certificate of the -regular examining physician, saying that the refusal was not because the -applicant is a person of color, but solely upon the grounds of general -health and prospect of longevity as would be applicable to white persons -of the same age and sex. - -The Connecticut statute enacts that any condition or stipulation in the -policy, inserted because of the color or race of the insured, shall be -void. Ohio provides that any corporation, or officer or agent of such -corporation, violating the provisions of its statute, shall be fined for -each offence not less than one hundred dollars nor more than two hundred -dollars, but that nothing in the act shall be construed as to require -any agent or company to take or receive the application for insurance of -any person. New York makes the violation of the law a misdemeanor -punishable by a fine of from fifty dollars to five hundred dollars. -Michigan goes a step further and declares that anyone violating the law -shall forfeit to the State five hundred dollars, to be recovered by the -attorney general, and that any officer or agent who violates it shall be -guilty of a misdemeanor and punished by imprisonment in the county jail -not over one year or by a fine of from fifty dollars to five hundred -dollars, or both. - -There must have been instances of discrimination by life insurance -companies against Negroes, else these States would not have thought it -necessary to enact such statutes. The explanation of this discrimination -is probably not so much race prejudice as the general belief, based upon -statistics, that the Negro, particularly in the colder climate of the -North and West, has not the same hope of longevity as the white man, -being more subject to pulmonary and other mortal diseases. If the risk -of mortality of the Negro is greater, the insurance company argued that -it was justified in seeking compensation for assuming this increased -risk by charging a higher premium. No case has been found arising under -these statutes. - - - RACE DISCRIMINATIONS BY LABOR UNIONS - -The attitude of labor organizations toward Negroes has of late been the -subject of much comment, especially by the Negroes themselves, who -complain that they are handicapped in the struggle for existence because -of the hostility of such organizations. Mr. Baker,[297] speaking of the -North, said: “And yet, although I expected to find the Negro wholly -ostracised by union labor, I discovered that where the Negro becomes -numerous or skilful enough, he, like the Italian or Russian Jew, begins -to force his way into the unions.... They have got in, ... not because -they are wanted, or because they are liked, but because, by being -prepared, skilled, and energetic, the unions have had to take them in as -a matter of self-protection.... In several great industries North and -South, indeed, the Negro is as much a part of labor unionism as the -white man.” There seems to be more opposition to Negroes joining the -unions of Philadelphia than most Northern cities.[298] - -One would expect to find, where the conflict between white and colored -laborers exists, some evidence of it in statutes or court reports. But -this resolution of the General Court of Massachusetts,[299] passed in -1904, is the only trace that has been found: “_Whereas_, the national -league of American wheelmen, at their convention held in Louisville, -Kentucky, on the twentieth day of February, in the present year, voted -to exclude colored persons from membership in said organization, which -exclusion affects the members of the organization resident in -Massachusetts; _Resolved_, That the General Court deprecates the action -of the organization above referred to, and regards the enforcement of -discriminations of this character as a revival of baseless and obsolete -prejudices.” - - - CHURCHES - -Colorado is the only State that has undertaken by legislation to -guarantee to Negroes full and equal accommodations in churches. The rest -have left it to the churches themselves to decide the matter. - -It is generally known that during slavery the Negroes, for the most -part, attended the white churches, where galleries were set apart for -them, were members thereof, and were served by white ministers. After -Emancipation, the Negroes withdrew from the white churches and built -places of worship of their own. To-day, in all parts of the country, -where Negroes live in considerable numbers, they have their own -churches. In such cities as Boston, where the doors of all churches are -in theory open to every race, Negro churches are found in the Negro -districts. - -Although there is practically race separation in the churches of the -whole country, all the difficulties have not been solved. In 1903, the -Freedman’s Aid and Southern Educational Society, an organization of the -bishops of the Methodist Episcopal Church, general secretaries of the -church department, and leading laymen, met in session in Lincoln, -Nebraska. Inasmuch as the purpose of this body was to devise and discuss -means of improving the educational opportunities of the Southern -Negroes, the churchmen of that race were present in good numbers. Some -of the hotels in the city gave notice that they could not allow the -colored delegates to eat in the main dining rooms, but that they could -furnish them sleeping accommodations and serve them meals in their -apartments.[300] It is along this line that the difficulty usually -comes. - -The Baptist denomination recently organized the General Baptist -Convention of America, which held its first meeting in St. Louis in -1905. The next meeting was to have been in Louisville, Kentucky, May 5 -and 16, 1906. The executive committee of the convention postponed the -meeting for a year, assigning as their reason, or one of their reasons, -the fact that they experienced difficulty in securing a church in which -to hold the convention, the white Baptists being averse to having the -colored members of the denomination assemble with them. It was arranged -later that the whites and Negroes should meet in the same edifice, but -that the Negroes should be restricted to the use of the balconies. This, -however, was resented by the Negroes.[301] - -The Presbyterian Church also has had to face the race problem. In its -general assembly at Des Moines, Iowa, in 1906, the committee on church -policies recommended the erection of a synod in Alabama to include the -presbyteries of Birmingham, Levere, and Rogersville, which are composed -of colored churches. They had hitherto been included in the synod of -Tennessee. The report provoked such a discussion that it was carried -over to the next meeting, and no subsequent account has appeared.[302] -At the general assembly of 1908, held in Pittsburg, Pennsylvania, the -question arose again out of a report of the Board of Freedmen’s -Missions, some of the members from the North resenting such a separation -in the missionary efforts.[303] - -The Episcopal Church has probably had the most difficulty with the race -problem. This Church has had no separate organization for Negroes. Both -races meet together in the annual diocese conventions, without -distinction, and participate in the business of the Church. At one of -these conventions, held at Tarboro, North Carolina, in 1907, the -following resolution was passed: “That the time has come when the -welfare of both races in the Southern States requires that each race -should have its own ecclesiastical legislative assemblies, and that we -urge the General Convention to take immediate action.” The colored -clergy and congregations had already expressed their willingness to -submit the whole matter to the general convention. In speaking for -separation, Bishop Cheshire, of North Carolina, said: “I have come to -this conclusion in spite of the sentiments and convictions of a -lifetime, and though my mind and conscience compel my assent to this -necessity, my heart still clings to the old ideal of a church and a -diocese which in its annual gatherings should represent visibly the -oneness of all races and colors in Christ.... We must confront the -actual facts of the day. I believe that, in one way or another, both the -white race and the colored race, consciously or unconsciously, demand a -different arrangement of our ecclesiastical institutions. I believe that -some separate organization for our colored work is coming in the near -future.”[304] At the general convention, which met in Richmond, -Virginia, in October, 1907, the question of the separation of the races -was much discussed, but the actual outcome has not been learned. It -developed in the debate that the Southern bishops desired separation, -wishing to be relieved of the burden of the Negroes in their dioceses, -while the bishops from other sections preferred the present arrangement, -not desiring to be burdened with a class of people not in their -dioceses.[305] - -The Young Men’s Christian Associations of the Northern cities have to -meet the problem of the Negro. The New Haven, Connecticut, people -refused to permit Negroes to attend the Y. M. C. A., and a separate -building had to be provided for them.[306] - -Within the colored church itself there is manifest a conflict between -the Negroes proper and mulattoes. There is a town in North Carolina in -which they have practical separation in the churches, the black Negroes -going to one church and the bright mulattoes to another. A similar -separation of the Negroes and mulattoes in churches exists, to some -extent, in Charleston, South Carolina. At a Negro Christian Congress at -Washington City, in 1906, the chairman of the meeting was charged with -removing from the program dark-skinned men and substituting -light-skinned men. It provoked such a discussion as to divide the -meeting into two factions.[307] - - - NEGROES IN THE MILITIA - -The Brownsville affair—that is, the dismissal without honor, through the -order of President Roosevelt, of a whole regiment of Negro soldiers -because of the misconduct of some of them and the refusal of the others -to testify against the guilty ones, and the championship of the cause of -the Negroes by Senator Foraker—has brought into much prominence the -question of the Negro as a soldier. - -The Southern States have been and are unfavorable to allowing Negroes to -serve in the militia. South Carolina,[308] in 1865, declared that -persons of color constituted no part of the militia of the State. -Arkansas,[309] in 1867, accorded to Negroes all the rights of white -citizens, with a few exceptions, one of which was that nothing in the -statute should be construed as modifying any statute or common law usage -in the State respecting the service of Negroes in the militia. North -Carolina[310] provided that white and colored members of the detailed -militia should not be compelled to serve in the same companies. -Georgia,[311] in 1905, by statute, abolished the colored troops of the -State, active and retired, and discharged the officers and men from the -military service of the State. - -There is very little legislation on the subject in the other States. In -1879, the legislature of Connecticut[312] authorized the -commander-in-chief of the State militia to organize four independent -Negro companies of infantry to be part of the National Guard. West -Virginia,[313] in 1889, provided that, if any colored troops should be -organized, they should be enlisted and kept separate and apart from the -other troops, and should be formed into separate companies and -regiments. New Jersey,[314] in 1895, made provision for four companies -of colored infantry, presumably meaning that they should be all colored -and kept separate from the other troops. - - - SEPARATION OF STATE DEPENDENTS - -The Southern States, as a rule, require a separation by race of inmates -of State charitable and penal institutions, and where it is not provided -for by statute, it is done as a matter of custom. Alabama,[315] for -instance, makes it unlawful for any jailer or sheriff, having charge of -white and colored prisoners before conviction, to imprison them -permanently together in the same apartments of the jail or other places -of safe-keeping, if there are enough separate apartments. It is also -unlawful[316] for white and colored convicts to be chained together, -allowed to sleep together, or confined in the same room or apartment -when not at work. - -The legislature of Arkansas[317] passed a statute in 1903, directing -that in the State penitentiary and in all county jails, stockades, -convict camps, and all other places where prisoners are confined, -separate apartments should be provided and maintained for white and -Negro prisoners. Separate bunks, beds, bedding, dining tables, and other -furnishings were required, and after they had once been assigned to a -prisoner of one race they must not be changed to the use of one of the -other race. White prisoners must not be handcuffed or otherwise chained -or tied to a Negro prisoner. - -Georgia[318] does not allow prison-keepers, or firms leasing or -controlling convicts, to confine white and colored convicts together, or -to work them chained together, or to chain them together in going to and -from their work or at any other time. Mississippi[319] provides that no -discrimination shall be made on account of race, color, or previous -condition, in working convicts. This does not mean that they shall not -be separated, as they are in Georgia, but is simply a prohibition -against discrimination in the quality of work assigned to the two races. -At the last session of the legislature of North Carolina,[320] a bill -was passed providing for the separation of white and colored prisoners -in the State penitentiary and in the State and county convict camps -during sleeping and eating hours. - -That a separation of the two races exists in the jails of Washington -City is evidenced by a protest issued a year or so ago by the National -Equal Rights Council of that city, a Negro organization, against the -separation of the white and colored prisoners in the jails of the city. -There was no allegation, however, that the cells were not equal in -accommodation, the objection being raised solely at the principle of -separation.[321] - -As to reformatories, Georgia[322] provides that they shall be so -constructed as to keep white and colored inmates separate. West -Virginia[323] requires that the white and colored inmates of its reform -school for boys shall be kept separate, and the inmates of its -industrial home for girls (also a reformatory) shall be separate as far -as practicable. - -As to paupers, Alabama[324] authorizes the county commissioners of -Washington County to keep separate accommodations for the maintenance of -white and colored paupers. - -Not many States have statutes which say in so many words that lunatics, -and that the deaf, mute, and blind shall be kept separated according to -race; but one finds appropriations for colored asylums and schools, -etc., and one is justified in concluding that, where a colored asylum or -school is built, the colored persons are not allowed in the other -asylums and schools of the State. Alabama,[325] for instance, has a -school for the Negro deaf and blind at Talladega, under the control and -management of the board of trustees of the white school for the deaf, -and makes an annual appropriation for the support of the school. -Arkansas[326] also provides that applicants to the deaf-mute asylums -shall be received without restriction on account of race or color, but -does not forbid their separation by race within the asylum. -Tennessee,[327] as early as 1866, provided that there should be separate -asylums for the colored blind, deaf and dumb, and lunatics, and the -trustees of these institutions were given power to prepare buildings for -colored insane, “so as to keep them secure and safe, and yet separate -and apart from the white patients.” In 1881, that State[328] -appropriated $25,000 to provide accommodations for the colored blind at -Nashville, and the same amount for the colored deaf and dumb at -Knoxville. Kentucky[329] likewise provided in 1876 that white and -colored lunatics should not be kept in the same building. New York[330] -has on many occasions made appropriations for asylums for colored -children, thus leaving the impression that such children are not -admitted to the white asylums. North Carolina[331] maintains separate -asylums for its white and colored insane. And Georgia[332] requires the -asylums of the State to provide apartments for the insane Negro -residents of the State. Indiana,[333] in 1879, made an appropriation to -associations formed for the purpose of maintaining an asylum for colored -orphan children. The West Virginia[334] asylum for insane must have -separate wards for white and colored patients. - - - NOTES - -Footnote 214: - - Bouvier’s “Law Dictionary,” I, p. 331. - -Footnote 215: - - 14 Stat. L. 27, chap. 31. - -Footnote 216: - - Flack, “The Adoption of the Fourteenth Amendment,” pp. 46–50. - -Footnote 217: - - Bowlin v. Com., 1867, 65 Ky. (2 Bush) 5. - -Footnote 218: - - Fed. Case No. 16,151 (1866). - -Footnote 219: - - Fed. Case No. 14,247 (1867). - -Footnote 220: - - “The Adoption of the Fourteenth Amendment,” pp. 53–54. - -Footnote 221: - - _Ibid._, p. 94. - -Footnote 222: - - 16 Stat. L. 144, chap. 114. - -Footnote 223: - - 16 Wall, 36, at pp. 71–72 (1872). - -Footnote 224: - - 18 Stat. L. 335, chap. 114. - -Footnote 225: - - Fed. Case No. 18,258 (1875). - -Footnote 226: - - Fed. Case No. 18,260 (1875). - -Footnote 227: - - Civil Rights Cases, 1875, 109 U. S. 3, at pp. 24, 11, and 13. - -Footnote 228: - - Acts and Resolves of Mass., 1864–65, p. 650. - -Footnote 229: - - _Ibid._, Jan. sess., 1866, p. 242. - -Footnote 230: - - Del. Laws, 1871–73, pp. 686–87. - -Footnote 231: - - _Ibid._, 1875–77, chap. 194. - -Footnote 232: - - Laws of Kan., 1874, chap. 49, sec. 1. - -Footnote 233: - - N. Y. Stat. L., IX, pp. 583–84. - -Footnote 234: - - Laws of N. Y., 1881, I, p. 541. - -Footnote 235: - - Laws of Fla., 1865, p. 25. - -Footnote 236: - - _Ibid._, 1873, chap. 1947. - -Footnote 237: - - Acts of La., 1869, p. 57. See also Acts of La., 1870, p. 57. - -Footnote 238: - - _Ibid._, 1873, pp. 156–57. - -Footnote 239: - - Acts of Ark., 1873, pp. 15–19. - -Footnote 240: - - Laws of Tenn., 1875, pp. 216–17. - -Footnote 241: - - 9 Baxter, 584. - -Footnote 242: - - Laws of N. C., 1876–77, pp. 589–90. - -Footnote 243: - - Laws of Tenn., 1885, pp. 124–25. - -Footnote 244: - - Revision, 1902, sec. 1164; Pub. Acts of Conn., 1905, p. 323. - -Footnote 245: - - Annotated Code, 1897, sec. 5008. - -Footnote 246: - - General Stat., 1709–1895, I, p. 804. - -Footnote 247: - - Laws of O., 1884, pp. 15–16; 1894, pp. 17–18; Bates’s Annotated Stat. - (Everett’s 6th Ed.) II, p. 2469. - -Footnote 248: - - Revised Stat., 1908, secs. 609–10; Laws of Colo., 1895, pp. 139–40. - -Footnote 249: - - Laws of Ill., 1885, pp. 64–65; Jones and Addington’s Supplement, 1902, - IV, p. 395. - -Footnote 250: - - Burns’s Annotated Stat., 1908, II, secs. 3863–65. - -Footnote 251: - - Acts and Resolves of Mass., 1885, p. 774; 1893, p. 1320; 1895, p. 519. - -Footnote 252: - - Compiled Laws, 1897, III, sec. 11,759, p. 3495. - -Footnote 253: - - Laws of Minn., 1897, p. 616; 1899, chap. 41; Revised Laws, 1905, sec. - 2812. - -Footnote 254: - - Compiled Stat., 1907, secs. 1932–33, p. 501. - -Footnote 255: - - Laws of R. I., 1884–85, p. 171; General Laws of R. I., 1896, p. 978. - -Footnote 256: - - Laws of N. Y., 1893, II, p. 1720; 1899, II, p. 1556; Consolidated Laws - of N. Y., 1909, I, pp. 626–27. - -Footnote 257: - - Laws of Pa., 1887, pp. 130–31. - -Footnote 258: - - Cotton and Ballinger’s Annotated Codes and Stat., II, secs. 7069–70, - p. 1953. - -Footnote 259: - - Stat., 1898, II, pp. 2676–77, sec. 4398 c. - -Footnote 260: - - Civil Code, 1906, pp. 29–30. - -Footnote 261: - - General Stat., 1905, secs. 2507–08. - -Footnote 262: - - U. S. v. Newcomer, 1876, Fed. Case No. 15,868. - -Footnote 263: - - Russ’s Application, 1898, 20 Pa. Co. Ct. Rep. 510. - -Footnote 264: - - Furchey v. Eagleson, 1896, 43 N. E. 146. - -Footnote 265: - - Acts and Resolves of Mass., 1896, pp. 659–60. - -Footnote 266: - - Alsberg v. Lucerne Hotel Co., 1905, 46 Misc. Rep. (N. Y.) 617. - -Footnote 267: - - Lewis v. Hitchcock, 1882, 10 Fed. 4. - -Footnote 268: - - Ferguson v. Gies, 1890, 82 Mich. 358; 46 N. W. 718. - -Footnote 269: - - Bryan v. Adler, 1897, 72 N. W. 368. - -Footnote 270: - - De Veaux v. Clemmons, 1898, 17 O. Cir. Ct. Rep. 33. - -Footnote 271: - - Humburd v. Crawford, 1905, 105 N. W. 330. - -Footnote 272: - - Messenger v. State, 1889, 25 Neb. 674. - -Footnote 273: - - Faulkner v. Salozzi, 1907, 79 Conn. 541. - -Footnote 274: - - Burks v. Basso, 1905, 73 N. E. 58. - -Footnote 275: - - Com. v. Sylvester, 1866, 95 Mass. (13 Allen) 247. - -Footnote 276: - - Rhone v. Loomis, 1898, 74 Minn. 200; 77 N. W. 31. - -Footnote 277: - - Kellar v. Koerber, 1899, 55 N. E. 1002. - -Footnote 278: - - Acts of La., 1908, p. 236. - -Footnote 279: - - State _ex rel._ Tax Collector v. Falkenheimer, 1909, 49 So. 214. - -Footnote 280: - - Baker, “Following the Colour Line,” p. 36. - -Footnote 281: - - Nashville, Tenn., _Weekly Journal and Tribune_, Feb. 2, 1907. - -Footnote 282: - - Cecil v. Green, 1896, 161 Ill. 265; 43 N. E. 1105. - -Footnote 283: - - Donnell v. State, 1873, 12 Am. Rep. 375; 46 Miss. 661. - -Footnote 284: - - Fed. Case No. 18,260 (1875). - -Footnote 285: - - Joseph v. Bidwell, 1876, 28 La. Ann. 382. - -Footnote 286: - - Baylies v. Curry, 1889, 128 Ill. 287. - -Footnote 287: - - Younger v. Judah, 1892, 19 S. W. 1109. - -Footnote 288: - - Thomas v. Williams, 1905, 95 N. Y. Sup. 592. - -Footnote 289: - - Bowlin v. Lyon, 1885, 67 Ia. 536. - -Footnote 290: - - People v. King, 1886, 42 Hun. 186; affirmed in 110 N. Y. 418. - -Footnote 291: - - Laws of Miss., 1900, p. 171. - -Footnote 292: - - Revision, 1902, sec. 3535. - -Footnote 293: - - Revised Laws, 1902, II, p. 1153. - -Footnote 294: - - Laws of O., 1889, pp. 163–64. - -Footnote 295: - - Laws of N. Y., 1891, p. 288. - -Footnote 296: - - Pub. Acts of Mich., 1893, pp. 60–61. - -Footnote 297: - - “Following the Colour Line,” p. 135. - -Footnote 298: - - _Ibid._, pp. 142 and 160. - -Footnote 299: - - Acts and Resolves of Mass., 1894, p. 825. - -Footnote 300: - - Lincoln, Neb., _Star_, Nov. 7, 1903. - -Footnote 301: - - Raleigh, N. C., _News and Observer_, April 6, 1906. - -Footnote 302: - - Norfolk, Va., _Landmark_, May 27, 1906; Raleigh, N. C., _News and - Observer_, May 29, 1906. - -Footnote 303: - - Raleigh, N. C., _News and Observer_, June 3, 1908. - -Footnote 304: - - _Ibid._, May 19 and 26, 1907. - -Footnote 305: - - _Ibid._, Oct. 9 and 20, 1907. - -Footnote 306: - - _Ibid._, March 18, 1906. - -Footnote 307: - - Richmond, Va., _News-Leader_, Aug. 3, 1906. - -Footnote 308: - - Laws of S. C., 1865, p. 275. - -Footnote 309: - - Laws of Ark., 1866–67, p. 99. - -Footnote 310: - - Pub. Laws of N. C., 1868, p. 35. - -Footnote 311: - - Laws of Ga., 1905, p. 166. - -Footnote 312: - - Pub. Acts of Conn., 1879, pp. 377–78; 1883, p. 289. - -Footnote 313: - - Laws of W. Va., 1889–90, p. 87. - -Footnote 314: - - Laws of N. J., 1895, p. 274. - -Footnote 315: - - Laws of Ala., 1875–76, p. 285; repeated in the Code of 1876, sec. - 4321, p. 915. - -Footnote 316: - - _Ibid._, 1884–85, p. 192; Code, 1896, II, p. 210. - -Footnote 317: - - Acts of Ark., 1903, p. 161. - -Footnote 318: - - Laws of Ga., 1890–91, I, p. 213. - -Footnote 319: - - Laws of Miss., 1872, p. 85. - -Footnote 320: - - Laws of N. C., 1909, p. 1215. - -Footnote 321: - - Raleigh, N. C., _News and Observer_, July 21, 1907. - -Footnote 322: - - Laws of Ga., 1893, p. 121. - -Footnote 323: - - Laws of W. Va., 1889, p. 15; Code, 1906, pp. 770 and 776. - -Footnote 324: - - Local Acts of Ala., 1898–99, p. 86. - -Footnote 325: - - Code, 1907, II, secs. 1949–52. - -Footnote 326: - - Code, 1874, sec. 384; 1884, sec. 2505, p. 572. - -Footnote 327: - - Laws of Tenn., 1865–66, pp. 5 and 65. - -Footnote 328: - - _Ibid._, 1881, p. 139. - -Footnote 329: - - Laws of Ky., 1876, I, p. 112. - -Footnote 330: - - Laws of N. Y., 1866, II, p. 1675; 1867, II, p. 1850; 1868, II, pp. - 1845–49; 1869, II, pp. 2064–66; 1870, II, pp. 1689–90, etc. - -Footnote 331: - - Laws of N. C., 1874–75, pp. 338–39. - -Footnote 332: - - Laws of Ga., 1885, p. 399. - -Footnote 333: - - Code, 1901, II, sec. 4598. - -Footnote 334: - - Code, 1906, sec. 2699, p. 1104; Laws of W. Va., 1897, p. 42; 1904, p. - 160. - - - - - CHAPTER VIII - SEPARATION OF RACES IN SCHOOLS - - - BEREA COLLEGE AFFAIR - -Three incidents, occurring during the past six years under widely -varying circumstances and in far separated localities, have brought the -question of the separation of the white and colored races in schools -into much prominence. - -On the 22d of March, 1904, the legislature of Kentucky[335] enacted the -following statute: - -“Sec. 1. That it shall be unlawful for any person, corporation or -association of persons to maintain or operate any college, school or -institution where persons of the white and Negro races are both received -as pupils for instruction; and any person or corporation who shall -operate or maintain any such college, school or institution shall be -fined one thousand dollars, and any person or corporation who may be -convicted of violating the provisions of this act shall be fined one -hundred dollars for each day they may operate said school, college or -institution after such conviction. - -“Sec. 2. That any instructor who shall teach in any school, college or -institution where members of said two races are received as pupils for -instruction shall be guilty of operating and maintaining same and fined -as provided in the first section hereof. - -“Sec. 3. It shall be unlawful for any white person to attend any school -or institution where Negroes are received as pupils or receive -instruction, and it shall be unlawful for any Negro or colored person to -attend any school or institution where white persons are received as -pupils, or receive instruction. Any persons so offending shall be fined -fifty dollars for each day he attends such institution or school: -Provided, That the provisions of this law shall not apply to any penal -institution or house of reform. - -“Sec. 4. Nothing in this act shall be construed to prevent any private -school, college or institution of learning from maintaining a separate -and distinct branch thereof, in a different locality, not less than -twenty-five miles distant, for the education exclusively of one race or -color. - -“Sec. 5. This act shall not take effect, or be in operation before the -fifteenth day of July, Nineteen Hundred and Four.” - -This law was general in its terms, requiring, under heavy penalty, the -separation of the white and colored races in all schools of the State, -private as well as public. But at the time of the consideration of the -bill, the legislators probably knew that there was only one school in -the State which admitted both white and colored students. That was Berea -College, which had been established about fifty years before for the -purpose of “promoting the cause of Christ” and of giving general and -nonsectarian instruction to “all youth of good moral character.” It was -primarily for the benefit of the mountain whites of Kentucky, Tennessee, -Virginia, and the Carolinas. After the Civil War, the doors of the -school had been opened to Negroes, and in 1904, Berea had a student-body -of nine hundred and twenty-seven, of whom one hundred and seventy-four -were Negroes.[336] The President and Trustees of the college protested -against the enactment of the above law, but to no avail. When the -session of 1904–5 began, the colored students were refused admission. -The college at once took steps to aid these Negro youths. It bore the -transportation expenses of about a hundred of them to Fisk University, -Knoxville College, Hampton Institute, and other distinctly colored -schools. The white students left behind gave to the colored students -leaving Berea the following expression of their regard for them: - -“Friends and Fellow-Students: As we meet for the first time under new -conditions to enjoy the great privileges of Berea College, we think at -once of you who are now deprived of these privileges. Our sense of -justice shows us that others have the same rights as ourselves, and the -teaching of Christ leads us to ‘remember them that are in bonds as bound -with them.’ - -“We realize that you are excluded from the class rooms of Berea College, -which we so highly prize, by no fault of your own, and that this -hardship is a part of a long line of deprivations under which you live. -Because you were born in a race long oppressed and largely untaught and -undeveloped, heartless people feel more free to do you wrong, and -thoughtless people meet your attempts at self-improvement with -indifference or scorn. Even good people sometimes fear to recognize your -worth, or take your part in a neighborly way because of the violences -and prejudices around us. - -“We are glad that we have known you, or known about you, and that we -know you are rising above all discouragements, and showing a capacity -and a character that give promise for your people.... And you will -always have our friendship, and the friendship of the best people -throughout the world. We hope never to be afraid or ashamed to show our -approval of any colored person who has the character and worth of most -of the colored students of Berea. We are glad that the college is -providing funds to assist you in continuing your education, and we are -sure the institution will find ways in which to do its full duty by the -colored race.”[337] - -As might have been expected, the statute separating the races in schools -aroused much comment throughout the country, the northern and eastern -press being, as a rule, hostile to it, the southern press coming to its -defence. Haste was made to have a test case involving the -constitutionality of the law heard. On June 12, 1906, the Kentucky Court -of Appeals in the case of Berea College v. The Commonwealth[338] upheld -its constitutionality, being of opinion that the law in question did not -violate the Bill of Rights of the State Constitution, because the -requirement of separation was a reasonable exercise of the police power -of the State, and did not violate the Fourteenth Amendment by depriving -Berea College of its property without due process of law, because the -right to teach white and colored children in a private school at the -same time and place was not a property right, but the court added that -that part of the statute requiring a separate school for the other race, -if established, to be at a distance of not less than twenty-five miles, -was unreasonable. The court took the position that the white and black -races are naturally antagonistic, and that the enforced separation of -the children in schools is in line with the preservation of the peace. - -The Supreme Court of the United States,[339] on November 9, 1908, -affirmed the opinion of the State court. Mr. Justice Brewer, however, -placed his decision upon the ground that the legislature has a right, by -express reservation, to amend the charter so long as the amendment does -not defeat or substantially impair the object of the grant under the -charter. Mr. Justice Harlan, in a dissenting opinion, said the court -should meet the entire question squarely and decide whether it is a -crime under any conditions to educate white children and Negro children -at the same institution. He said that the Kentucky statute was void as -an arbitrary invasion of the rights of liberty and property granted by -the Fourteenth Amendment against unauthorized State action. “Have we,” -he asked, “become so inoculated with prejudice of race that an American -government, professedly based on the principles of freedom, and charged -with the protection of all citizens alike, can make distinction 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 assemblage of citizens convened to consider questions of a public -or political nature in which all citizens, without regard to race, are -equally interested. Many other illustrations might be given to show the -mischievous, not to say cruel, character of the statute in question, and -how inconsistent such legislation is with the great principle of the -equality of citizens before the law.” Mr. Justice Harlan added that he -did not wish to be understood as criticising the system of separate -public schools for the races, but that his censure was directed at the -penal provision of the Kentucky law involved in this case, which he -considered unconstitutional, and so vitiating the whole statute. - - - EXCLUSION OF JAPANESE FROM PUBLIC SCHOOLS OF SAN FRANCISCO - -The second incident, which opened the question of the separation of the -races in schools and which led to international comment, was the -exclusion of the Japanese children from the public schools of the city -of San Francisco. A law was enacted by the California Legislature[340] -on March 12, 1872, which provided that school trustees should have the -power to establish separate schools for Indian children and for the -children of Mongolian and Chinese descent, and, when separate schools -were furnished, to keep Indian, Mongolian, and Chinese children from -attending any other school. The law was amended[341] in 1880, 1885, -1891, 1893, 1895, and 1903, but the provision for separation of the -races remained essentially unchanged. This law was not enforced until -1901, when the labor vote became predominant. Then, according to -Secretary Metcalf,[342] who investigated the conditions, the labor -unionists began a crusade to exclude the Japanese laborers from -California, as the Chinese had already been excluded. On May 6, 1905, -the Board of Education of San Francisco passed the following resolution: - -“That the Board of Education is determined in its efforts to effect the -establishment of separate schools for Chinese and Japanese pupils, not -only for the purpose of relieving the congestion at present prevailing -in our schools, but also for the higher end that our children should not -be placed in any position where their youthful impressions may be -affected by association with pupils of the Mongolian race.” On October -1, 1906, the Board took the next step and adopted this resolution: “That -in accordance with Article X, Section 1662, of the school law of -California, principals are hereby directed to send all Chinese, Japanese -or Korean children to the Oriental Public School, situated on the south -side of Cary street between Powell and Mason streets, on and after -Monday, October 15, 1906.” - -On the day the latter rule went into effect there were 28,736 school -children in San Francisco, of whom ninety-three were Japanese -distributed in twenty-three primary and grammar schools of the city[343] -and nearly half the Japanese children were in two of the twenty-three -schools. When the primary schools, except the Oriental, were closed to -the Japanese children the Japanese residents became indignant. They -appealed to their consul, and he, to their ambassador at Washington. The -latter, in turn, called on the President, reporting the matter at the -same time to the home government. Alarmists began to talk of war with -Japan. President Roosevelt dispatched Secretary Metcalf to California to -make investigations. To use the President’s words, “I authorized and -directed Secretary Metcalf to state that if there was failure to protect -persons and property, then the entire power of the Federal government -within the limits of the Constitution would be used promptly and -vigorously to enforce the observance of our treaty, the supreme law of -the land, which treaty guaranteed to the Japanese residents everywhere -in the Union full and perfect protection for their persons and property, -and to this end everything in my power would be done, and all the forces -of the United States, both civil and military, which I could lawfully -employ, would be employed.” Mayor Schmitz and a number of prominent men -of the city hurried across the continent to confer with the President. A -troublesome point of constitutional law was involved. It was admitted -that public education is distinctly a State function. A treaty is -declared by the Federal Constitution[344] to be the “supreme law of the -land.” Is a treaty the “supreme law of the land” in the sense that the -President or Supreme Court can treat as invalid a State statute which -contravenes it, or must the Federal government bow in submission to that -State statute even though it is counter to a treaty obligation? The -treaty of 1894 with Japan accorded to the Japanese residents in the -United States the rights and privileges of the “most favored nation.” -The State of California had declared that Mongolian children, among -which were Japanese, might, at the discretion of the Board of Education, -be required to go to separate schools for their race. The children of -the other “most favored” nations were permitted to attend the regular -public schools. Is admission to the regular public schools one of the -rights and privileges guaranteed to Japanese children by the treaty, -which cannot be limited by a State, or does the State of California, by -its police power, have a right to separate the school children by race, -regardless of national treaties? These questions, however, did not have -to be answered; before the crisis came, all parties seemed to have -arrived at a satisfactory compromise. It was an agreement that all -Japanese children not over fourteen years of age should be readmitted to -the primary schools, and those over that age should be admitted to the -schools of higher grade, and the Japanese coolie labor should be -excluded. Thus was obviated what at one time looked like the approach of -an international controversy over the separation of the races in -schools. - -During the last session of the California legislature, that of 1909, -several bills concerning the Japanese were introduced, one of which was -as follows: “Every school, unless otherwise provided by law, must be -open for the admission of all children between six and twenty-one years -of age residing in the district, and the Board of School Trustees or -city Board of Education have power to admit adults and children not -residing in the district whenever good reasons exist therefor. - -“Trustees shall have the power to remove children of filthy or vicious -habits or children suffering from contagious or infectious diseases, and -also to establish separate schools for Indian children and for children -of Mongolian or Japanese or Chinese descent. - -“When such separate schools are established, Indian, Chinese, Japanese -or Mongolian children must not be admitted into any other school; -provided, that in cities and towns in which the kindergarten has been -adopted, or may hereafter be adopted as part of the public primary -schools, children may be admitted to such kindergarten classes at the -age of four years; and provided further, that in cities or school -districts in which separate classes have been or may hereafter be -established for the instruction of the deaf, children may be admitted to -such classes at the age of three years.” Practically the only difference -between this bill and the present law is the insertion of -“Japanese.”[345] - -President Roosevelt considered this and the other bills of such serious -import that he telegraphed to the Governor of the State to use his -influence to prevent enactments of this nature. After a long fight the -bill was killed. The legislature made an appropriation for a census of -the Japanese in California in order to see just how serious the problem -was.[346] - -The people along the Canadian Pacific coast are facing a question -similar to that in California. A member of the provincial Parliament -from Manaimo, British Columbia, has recently given notice that he will -introduce a measure providing for the exclusion of Oriental children -from public schools, declaring that his purpose is to compel the -government to maintain separate schools.[347] - - - DR. CHARLES W. ELIOT ON SEPARATION OF RACES IN SCHOOLS - -The third incident referred to, though not a matter of legislation, did -much to focus the attention of the country at large upon the question of -the separation of the races in schools. The Twentieth Century Club of -Boston met at luncheon on the 14th of February, 1907, to consider the -situation of Berea College. Dr. Charles W. Eliot, then President of -Harvard University, was one of the speakers. In the course of his -remarks, he said: “If the numbers of whites and blacks were more nearly -equal [in Boston] we might feel like segregating the one from the other -in our own schools. It may be that as large and generous a work can be -done for the Negro in this way as in mixed schools. So the separation of -the races in the Berea schools is not really an abandonment of the -principle, although it may be a departure from the original purpose. - -“Perhaps if there were as many Negroes here as there we might think it -better for them to be in separate schools. At present Harvard has about -five thousand white students and about thirty of the colored race. The -latter are hidden in the great mass and are not noticeable. If they were -equal in numbers or in a majority, we might deem a separation -necessary.”[348] - -These conservative and guarded words of the head of the University which -has, above all other American institutions of learning, preserved and -encouraged the “open-door policy” toward students of all races, struck -consternation to the radicals of both the white and colored races in the -North and East, and gladdened the hearts of many of the South and West -who are facing their own race problems. One side felt that it had lost -an illustrious standard-bearer; the other, that it had won a strong -ally. - -These three incidents show that the separation of the races in schools -is a live question, worthy of an investigation. It is probable that -there are many private and public schools outside of the South which do -not, in fact, admit colored students. Probably there are schools which -would close their doors to white applicants. It may be that there are -actual discriminations against one or the other race in those schools -which claim to make no distinction on account of race or color. But many -such matters as these have not come under the eye of the law, and so -have no place here. - - - SEPARATION BEFORE 1865 - -Although one need not consider in detail the laws separating the races -in schools before the Civil War, because the public school system then -was poorly developed, as a rule, and the Negro had not attained the -rights of a citizen in many States, still it is well to look into some -of the antebellum statutes and decisions to find precedents for later -statutes and rulings of the courts upon this subject. - -In Ohio, prior to 1848, no provision was made for the public education -of colored children, and the property of colored persons was not taxed -for school purposes. In fact, a law[349] of February 10, 1829, expressly -excluded black and mulattoes from the public schools. In 1834, the child -of a man three-quarters white and of a white woman was denied admission -to a public school. In a case[350] arising out of it, the court held -that a child with more than one-half white blood is entitled to the -privilege of the whites, saying: “We think the term white as used in the -law describes _blood_ and not _complexion_.... The plaintiff’s children, -therefore, are white within the meaning of the law, though the -defendants have had the shabby meanness to ask from him his contribution -of tax, and exclude his children from the benefit of the school he -helped to support.” - -In 1848, a law[351] of the same State provided for the levy of a tax -upon the property of colored persons for the support of colored schools, -if the objection was made to the admission of colored children into -white schools. It prohibited the application of any part of the tax paid -by white persons to the support of colored schools unless the whites -assented thereto. A law having so many options was objectionable and was -repealed within a year. The next year, 1849, a statute[352] was enacted -with regard to the education of colored children, but this appropriated -to the colored schools only the funds arising from taxes paid by colored -persons. The year before the white patron of a school had brought an -action against the directors because they erroneously admitted colored -children to the school, thus contriving, he said, “to deprive him of the -benefit” of sending his children to the school. The court[353] ruled -that the directors were not liable because they did not act with corrupt -motives, but had simply misjudged the law. - -The law of 1849 gave rise to a difficulty. The Constitution of Ohio, by -restricting the electorate to white persons, had provided that those -entrusted with any power connected with the government of the State -should be white persons. Are school directors entrusted with any -governmental power? The court[354] held that they are not, in the sense -of the Constitution, and that colored persons might be directors of -colored schools. A statute[355] of 1853 repealed that of 1849 and -provided for a division of the public school funds in proportion to the -number of children of school age, regardless of color. But separate -schools were still maintained. Under this law, it was held[356] that the -children of three-eighths African and five-eighths white blood, who were -distinctly colored and generally treated and regarded as colored -children by the community wherein they resided, should not be, as of -right, entitled to admission into white schools.[357] In 1841, it had -been held that a youth of Negro, Indian, and white blood, but of more -than half white blood, was entitled to the benefit of the school fund. - -In Indiana,[358] in 1850, the public school law provided for a tax levy -for the support of the schools, but omitted “all Negroes and mulattoes” -from the tax list. Some colored children applied for admission, not as -beneficiaries of the public school fund, but offering to pay their own -tuition. The court[359] of that State held that they could not be -received if the resident parents of white children attending or desiring -to attend the school objected, saying: “This [the exclusion of the -colored children] has not been done because they do not need education, -nor because their wealth was such as to render aid undesirable, but -because black children were deemed unfit associates of white, as school -companions. Now, surely, this reason operates with equal force against -such children attending the schools at their own, as at the public -expense.” - -In the case of Roberts v. The City of Boston,[360] which was argued -before the Supreme Court of Massachusetts in 1849, in which Charles -Sumner was counsel for the plaintiff, the court gives the following -interesting information: “The colored population of Boston constitute -less than one sixty-second part of the entire population of the city. -For half a century, separate schools have been kept in Boston for -colored children, and the primary school for colored children in Belknap -street was established in 1820, and has been kept there ever since. The -teachers of this school have the same compensation and qualifications as -in other like schools in the city. Schools for colored children were -originally established at the request of colored citizens, whose -children could not attend the public schools, on account of the -prejudice then existing against them.... - -“In 1846, George Putnam and other colored citizens of Boston petitioned -the primary school committee that exclusive schools for colored children -might be abolished, and the committee, on the 22d of June, 1846, adopted -the report of a sub-committee, and a resolution appended thereto, which -was in the following words: - -“‘Resolved, that in the opinion of this board, the continuance of the -separate schools for colored children, and the regular attendance of all -such children upon the school, is not only legal and just, but is best -adapted to promote the education of that class of our population.’” - -At the time of this case, there were one hundred and sixty primary -schools in Boston, of which two were set apart for colored children. The -facts of the case were these: A colored child applied for admission to a -white school on the ground that the colored primary school was one-fifth -of a mile farther from her home. The general school committee refused -her admission, and the colored girl, through her father, sued the city -of Boston. The Supreme Court upheld the power of the committee to -provide separate schools for colored children and prohibit their -attendance at other schools. The court also said: “It is urged, that -this maintenance of separate schools tends to deepen and perpetuate the -odious distinction of caste, founded in a deep-rooted prejudice in -public opinion. This prejudice, if it exists, is not created by law, and -probably cannot be changed by law. Whether this distinction and -prejudice, existing in the opinion and feelings of the community, would -not be as effectually fostered by compelling colored and white children -to associate together in the same schools, may well be doubted; at all -events, it is a fair and proper question for the committee to consider -and decide upon, having in view the best interests of both classes of -children placed under their superintendence, and we cannot say, that -their decision upon it is not founded on just grounds of reason and -experience, and in the results of a discriminating and honest judgment.” -This line of argument is familiar to those who have studied the -decisions of Southern courts upon the separation of the races in -schools, in public conveyances, hotels, theatres, and other public -places. - -The attitude of the courts and legislatures of Indiana, Ohio, and -Massachusetts, not one of which is a Southern State, toward the -association of white and colored school children shows that there was -ample precedent for the laws of the postbellum period. It is probable -that a careful examination of the annual statutes of the other States -before 1865 would reveal that separation was required in them also; that -is, where any provision at all was made for the public instruction of -Negroes. For instance, the law in Delaware[361] in 1852 was that the -public school should be free to all white children of the district over -five years old. The inference to be drawn is that colored children were -excluded. - - - PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS - - - (_a_) _In South_ - -It is a matter of general knowledge that white and colored children are -not permitted to attend the same public schools in the South. The -separation is required both by State Constitutions and statutes. - -The Constitutions of Alabama of 1875[362] and 1901[363] provide for a -system of public schools, but add that separate schools must be -maintained for white and colored children. The laws[364] of 1868 have -this provision: “In no case shall it be lawful to unite in one school -both colored and white children, unless it be by the unanimous consent -of the parents and guardians of such children; but said trustees shall -in all other cases provide separate schools for both white and colored -children.” The separation is also required in the laws of 1878[365] and -1884.[366] - -Arkansas has no constitutional provision as to separation, but an -act[367] of 1867 reads: “No Negro or mulatto shall be permitted to -attend any public school in this State, except such schools as may be -established exclusively for colored persons.” And a statute of 1873[368] -declares that the board of education must provide separate schools. - -The Constitution[369] of Florida of 1887 provides that white and colored -children shall not be taught in the same school, but that impartial -provision shall be made for both. A statute[370] of 1895, which will be -considered later, makes it a penal offence to educate white and Negro -children in the same schools, whether public or private or parochial. - -Under a Georgia statute[371] of 1866, any free white citizen between the -ages of six and twenty-one years and any disabled and indigent soldier -of the State under the age of thirty might have instruction in the -schools free of charge. This would seem to leave out the colored -children. But the Constitution[372] of 1877 requires separate schools; -so do the laws of 1872.[373] - -The laws of Kentucky[374] of 1870 provided that it should be the duty of -the trustees of the common schools of that State to invite and encourage -indigent white children in the district to attend the school, and to -inform them and their parents that such was their right for which the -State paid, though they themselves might contribute toward paying the -expenses of the school. The annual report of the trustees must always -show that this duty had been performed; and no arrangement should be -made for the benefit of some individuals of this description to the -exclusion of others. Again, apparently no provision was made for the -colored children, but the Constitution[375] of 1891 declares that in the -distribution of the school fund no distinction shall be made on account -of race or color, but that separate schools must be maintained. The -statute[376] of 1904, under which the Berea College case arose, applies -to both public and private schools and requires a separation of the -races in both. - -The government of Louisiana was early in the hands of the -Reconstructionists, as its statutes show. The Constitution[377] of 1868 -said: “There shall be no separate schools or institutions of learning -established exclusively for any race by the State of Louisiana.” A -separation of the races in schools had been required by the -Constitutions of 1845[378] and 1852,[379] which makes this provision of -the Constitution of 1868 all the more significant. In 1871 provision was -made for an institution for the instruction of the blind, and an -industrial home for the blind at Baton Rouge. The statute[380] relative -to these concluded thus: “... no part of this act shall be construed so -as to deprive any person on account of race or color of the privilege of -admittance to the institution.” A law[381] of 1875 which established an -agricultural and mechanical college provided that there should be no -discrimination of race or color in the admission, management, or -discipline of the institution. The Constitution of 1879 did not -expressly prohibit the separation of the races in schools, as that of -1868 had done, but on the other hand it did not require separation. It -seems, rather, to have left the matter in the hands of the legislature. -The first reference made to separate schools was in 1880, when a -university was established for the education of persons of color, called -the Southern University, four of the twelve trustees of which were to be -Negroes.[382] Finally, the Constitution[383] of 1898 requires the -general assembly to establish free public schools for the white and -colored races. - -A Maryland statute[384] of 1870 declared that all the taxes paid for -school purposes by the colored people in any county or in the city of -Baltimore, together with donations for that purpose, should be set aside -for maintaining schools for colored children. The school commissioners -were given power to make further appropriations as they should deem -proper to assist the colored schools. A law[385] of 1872 provided that -the school commissioners should establish one or more public schools in -each election district for colored children, which must be kept open as -long as the other public schools of the county were kept open. They are -subject to the same laws and must furnish instruction in the same -branches as the white schools. The taxes paid for school purposes by -colored persons must be devoted to the maintenance of colored schools. -This is the Maryland law,[386] in substance, as it exists at present, -except that a separate school does not have to be provided in each -election district unless the colored population in that district -warrants the board in establishing a colored school. Where there are not -enough Negroes in a district to have a school of their own, presumably, -they go to the colored schools in neighboring districts. - -As early as 1878 a statute of Mississippi[387] provided that schools -should be arranged in each county so as to afford ample free school -facilities for all educable youths in the county, prohibiting the -teaching of white and colored pupils in the same school-house, and the -Constitution[388] of 1890 reiterated this requirement of separation. The -county school boards are given power to locate one or more schools for -Indians in counties where there are enough Indians to form a -school.[389] - -Missouri seems not to have lost an opportunity to express its belief in -separate schools for the races. The Constitution[390] of 1865 made that -requirement, adding that the school fund must be appropriated in -proportion to the number of children without regard to color. Such -separation is required by the laws of 1865,[391] of 1868,[392] of -1869,[393] by the Constitution of 1875,[394] and by a law of 1889,[395] -which last made it unlawful for colored children to attend a white -school, or white children, a colored school. - -The Constitution of North Carolina[396] of 1875 declares that “the -children of the white and the children of the colored shall be taught in -separate public schools, but there shall be no discrimination made in -favor of, or to the prejudice of either race.” According to the -statute[397] of 1901, a child descended from a Negro to the third -generation inclusive should not attend a white school. This was -amended[398] in 1903 to the effect that no child with Negro blood in his -veins, “however remote the strain,” shall attend a school for the white -race. The present statute[399] also provides that the descendants of -Croatan Indians now living in Robeson and Richmond counties shall have -separate schools for their children. It will be remembered that it is -the Croatan Indians who are prohibited from intermarrying with Negroes. - -The Territory of Oklahoma[400] had the following peculiar arrangement -for separate schools till 1901: In each county an election was held -every three years at which all the qualified school electors could vote -for or against the maintenance of separate schools in that county. If a -majority voted against separation, then the white and colored children -might attend the same school; but if a majority voted for separation -separate schools had to be provided. In counties which separate schools -were voted in the schools for whites and blacks had to be equal in -length of terms and in facilities. Any failure to comply with the law -rendered the act for establishing separate schools void, and immediately -the schools were opened to both races. In 1901[401] separate schools -were required all over the Territory. In case the children of one race -in a district did not exceed ten, they were to be transferred to a -school for their race in another district instead of a separate school -being maintained for them, provided the distance was not over two miles -and a half. The white and colored schools were to be furnished with the -same kind of furniture and equipment. No white teacher should teach in a -colored school and _vice versa_. The Constitution[402] of the State of -Oklahoma, adopted September 17, 1907, provides: “Separate schools for -white and colored children, with like accommodation, shall be provided -by the legislature and impartially maintained. The term ‘colored -children,’ as used in this section, shall be construed to mean children -of African descent. The term ‘white children’ shall include all other -children.” An Oklahoma statute[403] of 1907 requires complete separation -of the races in schools, with impartial facilities for both races. By -“colored children,” it means those that have any “quantum of Negro -blood.” The teacher who knowingly and willingly permits a child of one -race to be taught in a school for another race is guilty of a -misdemeanor, and may be punished by a fine of between ten and a hundred -dollars and, in addition, may have his certificate cancelled and be -unable to secure another for a year. The separation applies to private -schools and colleges as well as public schools. - -The South Carolina government was, like that of Louisiana, early under -Reconstruction. The Constitution[404] of 1868 provided that “all the -public schools, colleges and universities of this State, supported in -whole or in part by the public school fund, should be free and open to -all the children and youths of that State, without regard to race or -color.” In fact, the University of South Carolina was open to Negroes -directly after the War.[405] But the Constitution[406] of 1895 requires -separate schools, and adds that “no child of either race shall ever be -permitted to attend a school provided for children of the other race.” -The Negro public schools of the city of Charleston are taught by white -people, mostly Southern-born white people. - -Tennessee, by its laws[407] of 1866, by its Constitution[408] of 1870, -and by its laws[409] of 1873 requires separate public schools for the -white and colored children. A statute[410] of 1901 prohibits the -co-education of the white and colored races in private schools. - -The Texas Constitution[411] of 1876 provided for separate schools and -impartial accommodations for both races. A school-house constructed in -part by voluntary subscription by colored parents and guardians and for -a colored school community shall not be used without their consent for -the education of white children, and _vice versa_.[412] The separate -school requirement was repeated in the laws of 1884,[413] 1893,[414] and -1895.[415] The Texas provision is that a school which receives both -white and colored pupils shall not receive any of the public school -fund, which amounts to saying that it is not unlawful to educate white -and colored children together in private schools. - -The Constitution of Virginia of 1870 did not declare that the races must -be separated in schools. But statutes of 1882[416] and 1896[417] provide -that white and colored persons shall not be taught in the same school -but in separate schools, under the same general regulations as to -management, usefulness, and efficiency. The Virginia Constitution[418] -of 1902 has the terse statement that white and colored children shall -not be taught in the same school. - - - (_b_) _In States Outside of South_ - -Besides the Southern States, which have just been considered, there are -other States which require or permit a separation of the races in -schools. The separation of the white and Japanese children in the public -schools of San Francisco has already been discussed. That was only a -part of the legislation of California. A statute[419] enacted during the -session of 1869–70 read: “The education of children of African descent -and Indian children shall be provided for in separate schools. Upon the -written application of the parents or guardians of at least ten such -children to the board of trustees or board of education, a separate -school shall be established for the education of such children; and the -education of a less number may be provided for by the trustees in -separate schools in any other manner.” In 1874 a Negro child was refused -admission to a white school in that State. In a test case which arose -the constitutionality of the statute was supported, the court[420] being -of opinion that the statute did not violate the Fourteenth Amendment if -appropriate schools for colored children were maintained. But, it added, -unless such separate schools are actually maintained, colored children -must be admitted to the regular public schools along with the white -children. This latter ruling became part of a statute of 1880. Prior to -1880 the law had been that “every school, unless otherwise provided by -law, must be open for the admission of all white children....” This was -amended in 1880[421] by the omission of the word “white” and by -repealing the sections providing for Negro and Indian schools. On the -strength of this amendment, a Negro, upon being refused admission to the -white schools, brought suit,[422] and it was held that, as the law -stood, colored children had equal rights with white children to -admission to any public school, even though separate schools were -maintained. The court said: “The whole policy of the legislative -department of the government upon this matter is easily gathered from -the course of legislation shown therein; and there can be no doubt but -that it was never intended that, as a matter of classification of -pupils, the right to establish separate schools for children of African -descent, and thereby to exclude them from white schools ... should be -given to such boards [of education].” It was earlier, in 1872, that the -provision for separate schools for Mongolians was made. The law of -California seems now to be that Negro children may attend the same -schools as whites, but Japanese, Chinese, and Korean children must go to -separate schools if the board of education sees fit to provide them. - -The legislature of Delaware,[423] in 1881, appropriated two thousand -four hundred dollars annually for the education of colored children. In -1889 three colored schools[424] were incorporated and placed in control -of boards of trustees elected by the voters of the district. These -incorporated schools[425] as such were abolished in 1893, and after that -they were placed under the supervision of the regular county -superintendent just as the other public schools. The same State,[426] in -1898, provided for the establishment of separate kindergartens. Thus, -Delaware is as strict as the Southern States in requiring separate -schools for the races. - -Although the Illinois statutes[427] clearly state that any school -officer who excludes from a public school any child on account of color -shall be fined from five dollars to one hundred dollars for each -offence, and prohibits school directors and officers from excluding, -directly or indirectly, children on account of color, still the numerous -cases which have arisen involving the point show that the school -officers have not always been in thorough agreement with the law. - -In 1874 the school directors of McLean County, Illinois, erected a -separate school building, twelve by fourteen feet, for the exclusive -purpose of educating the three or four colored children in the district -therein. It was admitted that there was plenty of room for them in the -regular school building. One of the taxpayers of the district petitioned -for an injunction against the building of the house, but it was -completed before any decision was rendered. In a case which arose later, -the court[428] held that the school directors had no right to make such -a discrimination against Negroes, and that any taxpayer might object. In -1882 the board of education of Quincy, Illinois, divided the city into -eight districts and set apart one school for Negroes. A case arising -over this division and segregation, the court[429] ruled that, in the -absence of State legislation, the board had no power to establish -separate schools for Negroes. In 1886 the school board of Upper Alton -passed a resolution excluding colored children from the white school -unless they had reached the high school grade. A Negro, whose children -below high school grade were refused admission to the white school, -brought suit, and the court[430] held that the school board had no power -to separate the children on account of color. In 1899 the common council -of Alton established a school for Negroes, but the court[431] held that -this involved an illegal discrimination against them. The Associated -Press report[432] of November 28, 1906, had the following statement: -“East St. Louis, Ill., Nov. 28, 1906—A large brick building at 1,400 -Missouri avenue, which was leased last week by the Board of Education -for a Negro school, was destroyed by fire to-day, and there is evidence -that prejudice against the establishment of a school for Negroes caused -the building to be set on fire. Late last night the building was -discovered to be on fire, but prompt action saved it. The firemen found -rags soaked in oil on the second floor hallway. The destruction of the -building to-day makes the second building leased for a Negro school that -has been burned within the last two weeks.” The latest Illinois case on -the subject is that of April 23, 1908, The People v. The Mayor, etc., of -Alton.[433] A Negro’s children were excluded from the public school most -convenient to them and directed to a colored school less convenient. He -petitioned for a writ of _mandamus_ against the mayor and common council -to compel them to admit his children to the most convenient school, and -after the case had been tried seven times by juries in the circuit -court, the writ was finally granted by the Supreme Court. Although all -of these cases were decided against race separation they show that there -is still an appreciable feeling in Illinois against the white and -colored children being taught in the same schools. The trouble at Alton -is not yet over. After a fourteen years’ fight the Negroes won, as has -been seen, before the Supreme Court of the State. But when the Negro -children applied for admission to the public schools, they were again -refused. Before the schools were opened for the session of 1908–09, many -of the Negroes were visited and induced to send their children to the -four Negro schools built in Alton. But forty other Negroes filed a -petition for a writ of _mandamus_ against the mayor and council of Alton -seeking to have them answer why they refused to obey the mandate of the -Supreme Court of the State.[434] - -A statute[435] of Indiana of 1869 required the trustees of schools to -organize separate but equal schools for Negroes. If there were not -enough Negroes in the district for a school, two or more districts might -be consolidated for that purpose. If there were not enough within a -reasonable distance, then the trustees might provide such other means of -education of colored children as would employ their proportion of the -school fund to the best advantage. A case[436] testing the -constitutionality of this law, which arose in 1874, is one of the most -exhaustive cases on the subject. The father of Negro children applied -for a mandate to compel the admission of them to white schools. The -court held that the separation of the races in schools is not in -violation of the Federal or the State Constitution. The common schools, -it was said, are based upon State legislation, are domestic -institutions, and, as such, subject to the exclusive control of the -constituted authorities of the State. The Federal Constitution does not -provide for any general system of education to be conducted and -controlled by the national government, nor does it vest in Congress any -power to exercise a general or special supervision over the State on the -subject of education. Under the Constitution of Indiana the common -school system must be general, uniform, and equally open to all, but -uniformity will be secured where all schools of the same grade have the -same system of government and discipline, the same branches of learning -taught, and the same qualifications for admission. The court said: “In -our opinion the classification of scholars on the basis of race or -color, and their education in separate schools, involve questions of -domestic policy which are within the legislative discretion and control, -and do not amount to an exclusion of either class ... there would be as -much lawful reason for complaint by one scholar in the same school that -he could not occupy the seat of another scholar therein at the same time -the latter occupied it, or by scholars in different classes in the same -school, that they were not placed in the same class, or by scholars in -different schools, that they were not all placed in the same school, as -there is that black and white children are placed in distinct classes -and taught in separate schools.” - -In 1877, the Indiana law of 1869 was amended[437] so that the school -directors _might_ (not _must_) organize separate schools for the races. -In case a colored school was not provided, the colored children should -be allowed to attend the regular white school. When the colored child -had reached a grade higher than that taught in the colored school, he -must be admitted to the regular high school, and no distinction therein -should be made on account of race or color. In 1882, there were only -about six Negro children in a certain district, and the trustees were -indicted for not establishing a separate school for them. The court[438] -ruled that it was impracticable to maintain a separate school for so -small a number. In 1883, a Negro pupil brought suit on the ground that -he was not admitted to the white high school, under the law of 1877, but -he did not show that he had passed the required examination. The -court[439] held that the discretion as to the competency of the child is -a matter for the board of education, not the court. - -The laws of Iowa have not since 1865 required or permitted a separation -of the races in schools. In 1868, a Negro girl, denied admission to the -graded schools of Muscatine, brought suit, and the court[440] gave -relief, saying that the school directors could not require Negroes to -attend separate schools; that if separate schools for Negroes are -prescribed, the same might as well be done for German, Irish, and French -children. The same principle has been affirmed in subsequent decisions -which show that there have been instances in that State of school boards -trying to separate the races.[441] - -By the statutes[442] of Kansas of 1868 the boards of education of cities -of the first class—that is, cities of over 150,000 inhabitants—had the -“power to organize and maintain separate schools for the education of -white and colored children.” This power was omitted in a revision of the -school law[443] in 1876, and consequently repealed by implication. But -in 1879 a statute[444] was passed amending the school law, which revived -the power to separate the races in cities of the first class “except in -the high school, where no discrimination shall be made on account of -color.” The constitutionality of this statute was upheld by the Supreme -Court[445] of Kansas in 1903, and again in 1909. The State has not given -this power of separation to cities of the second class, so the -courts[446] have held that, except in cities of the first class, the -colored children must be admitted to the schools along with the white -children. The Superintendent of Public Schools of Kansas,[447] in -August, 1906, said: “There is a movement in Kansas looking toward the -segregation of the races in the public schools, where the per cent. of -colored population will warrant the separation.” - -A law[448] of Nevada of 1865 excluded Negroes, Mongolians, and Indians -from the public schools, and prescribed as a punishment to the school -opening its doors to all races a withdrawal of its share of the public -school fund. The school officials might, however, if they deemed it -advisable, establish a separate school for the children of Negroes, -Mongolians, and Indians, to be supported out of the public school fund. -In 1872 it was held[449] that a _mandamus_ would lie compelling trustees -to admit colored persons to the public schools where separate schools -were not provided for such persons. No subsequent reference to the -subject appears in the statutes or reports, so it may be assumed that -separate schools no longer exist in Nevada. - -A statute[450] of New Jersey of 1881 made it unlawful to exclude anyone -from the public school on account of “religion, nationality, or color.” -The town of Burlington had four public schools, one of which had been -set apart for Negroes. A Negro petitioned for a writ of _mandamus_ to -compel the trustees to admit his children to the white schools, and the -court[451] issued the writ. About four years ago the public schools of -East Orange, New Jersey, adopted the policy of teaching the Negro pupils -in separate classes; but it was soon abandoned because, the school -authorities said, “it seemed like going back to old ideas.”[452] - -The city of Buffalo, New York, under a provision of its charter, -established separate schools for Negroes, and this action was upheld by -the court[453] on the ground that the right to attend common schools is -a legislative grant and not a constitutional guarantee. The city of -Albany also set apart one school for Negroes, and this was held[454] -constitutional in 1872. And in 1883, the Supreme Court[455] of that -State held that, if separate schools are provided for colored children, -they may be excluded from the white schools. In 1899, the same was -held[456] for the Borough of Queens. These decisions were under the law -of 1864,[457] reënacted in 1894,[458] which gave power to the school -authorities of cities and incorporated villages, when they deemed it -expedient, to establish separate schools. But this law was repealed in -1900,[459] and the present law reads: “No person shall be refused -admission to or be excluded from any public school in the State of New -York on account of race or color.” - -An Ohio statute[460] of 1878 gave the boards of education discretionary -power to establish separate schools for Negroes. This law was repealed -in 1887,[461] and thereafter all public schools were open to colored -children.[462] - -In 1869, persons of color were not admitted to the subdistrict schools -of Pittsburg, Pennsylvania,[463] but this law was repealed in 1872.[464] -An earlier statute of 1854 had provided for separate schools for Negroes -where there were more than twenty in the district. The school directors -of Wilkesbarre had united two districts, each having less than twenty -colored children, and put up a school building for Negroes; but the -court[465] held that this was in violation of the law of 1854. This law -was repealed in 1881,[466] and it was thereafter unlawful to make any -distinction whatever on account of race or color. The next year, it was -held[467] that the school directors could not keep open schools for -Negroes exclusively. - -A West Virginia law[468] of 1865 required the boards of education to -establish separate schools for Negroes where there were more than thirty -children of that race in the district. But if the average daily -attendance was less than fifteen for a month, the school should be -discontinued for any period not exceeding six months. If there were less -than thirty children in the district or the attendance was less than -fifteen, the money should be reserved and used for colored education as -the board thought best. A statute[469] of 1871 and the Constitution[470] -of 1872 provided that white and colored persons should not be taught -together. A separate school for Negroes must be established when the -number in the district exceeds twenty-five. If less, the trustees of two -or more districts may establish a joint school. The Supreme Court[471] -of that State has held that the constitutional provision requiring -separate schools does not violate the Fourteenth Amendment, but that the -terms of the schools of both races must be of the same length. Thus, -West Virginia is as strict as Virginia or any Southern State in -separating the races in schools. - -Wyoming has the following statute[472]: “When there are fifteen or more -colored children within any school district, the board of directors -thereof, with the approval of the county superintendent of schools, may -provide a separate school for the instruction of such colored children.” - -The statutes[473] of Arizona, until 1909, declared that no child should -be refused admission to any public school on account of race or color. -Last year, however, the school law of that Territory was amended[474] so -as to give the board of trustees of school districts power, when they -deem it advisable, to segregate pupils of the African from pupils of the -white race and to provide all accommodations made necessary by such -segregation, but the power to segregate shall be exercised only where -the number of pupils of the African race shall exceed eight in any -school district. This amendment was passed over the Governor’s veto by a -two-thirds’ vote of the legislature. - -The Constitutions of Colorado[475] of 1876 and of Idaho[476] of 1889 -provide that no distinction or classification of pupils shall be made on -account of race or color, and the judicial decisions of those States do -not show any attempts by the school boards to draw color lines. - -Separate schools were abolished by law in Massachusetts in 1857.[477] -The present statute[478] declares that no child shall be excluded from a -public school of any city or town on account of race or color. In -practice, the matter is not entirely at rest in Massachusetts. - -The law[479] of Michigan prohibits the segregation of the races in -schools. Because of objections made by white students, two Negroes,[480] -in 1908, were refused admission to the Grand Rapids, Michigan, Medical -College, a private institution. The Negroes appealed to the State -circuit court, which issued a writ of _mandamus_ compelling the school -to admit them. When this was granted and they were accordingly admitted, -thirty-four members of the junior class of the school “struck,” and the -authorities suspended the class for a time. The Supreme Court[481] of -Michigan later reversed the order granting the writ of _mandamus_, -saying that a private institution of learning, though incorporated, has -a right to say whom it will receive. - -A statute[482] of Minnesota declares that a district shall not classify -its pupils with reference to race or color, nor separate them into -different schools or departments upon such grounds. The punishment for -violation of this law by a district is a forfeiture of its share of the -public school fund so long as the classification or separation -continues. The Territory of New Mexico[483] makes it a misdemeanor for a -teacher or school director to exclude any child on account of race or -nationality, under penalty of a fine from fifty dollars to one hundred -dollars and three months imprisonment, and being forever barred from -teaching school or holding any office of profit or honor in the -Territory. - - -The separation of the races in public schools is required by the -Constitutions of Alabama, Florida, Georgia, Kentucky, Louisiana, -Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, -Virginia, and West Virginia. Complete separation is required by statute -in all of the above-named States and, besides those, also in Arkansas, -Maryland, and Delaware. A discretionary power is given to the school -boards to establish separate schools in Arizona; in Indiana; in -California, as to schools for Indians, Chinese, and Mongolians; in -Kansas, in cities of over 150,000 inhabitants; and in Wyoming, in -districts having fifteen or more colored pupils. The following States -that once had separate schools now prohibit them: Illinois, -Massachusetts, Nevada, New Jersey, New York, Ohio, and Pennsylvania. In -addition to these, separate schools are not allowed in Colorado, Idaho, -Iowa, Michigan, Minnesota, New Mexico, and Rhode Island. There are other -States which have never seen fit to make any mention one way or the -other of race distinctions in schools, either in statutes or court -reports; so one is warranted in inferring that the schools are open to -all. They are Connecticut, Maine, Montana, New Hampshire, North Dakota, -Oregon, South Dakota, Utah, Vermont, Wisconsin, and Washington. - -As has already been said, public education is distinctly a State -function. The Federal government, in the main, has not undertaken to -have anything to do with it, but Congress, by its exclusive -jurisdiction, has supreme control over the public schools of the -District of Columbia, and the provisions that it has made there for the -separation of the races show in an interesting way the attitude of the -national government upon the subject. A statute[484] of 1864 reads: -“That any white resident of said county shall be privileged to place his -or her child or ward at any one of the schools provided for the -education of white children in said county he or she may think proper to -select, with the consent of the trustees of both districts; and any -colored resident shall have the same rights with respect to colored -schools. - -“That it shall be the duty of said commissioners to provide suitable and -convenient houses or rooms for holding schools for colored children....” -The commissioner might impose a tax of fifty cents _per capita_ upon the -patrons of the school to aid in its support, but no child should be -excluded because its parents or guardians could not pay the tax. The -school fund was to be divided in proportion to the number of school -children, regardless of race. - -In 1890 an increase of the Federal appropriation[485] to schools was -accompanied with the following proviso: “That no money shall be paid out -under this act to any State or Territory for the support or maintenance -of a college where a distinction of race or color is made on the -admission of students, but the establishment and maintenance of such -colleges separately for white and colored students shall be held to be a -compliance with the provisions of the act, if the funds received in such -State or territory be equitably divided as hereinafter set forth.” - - - SEPARATION IN PRIVATE SCHOOLS - -Thus far, except in the matter of Berea College, the separation of the -races in private schools only has been considered. Legislation as to -private schools is comparatively meagre. A statute[486] of Florida of -1895 makes it a penal offence to conduct a school of any grade—public, -private, or parochial—wherein white persons and Negroes are instructed -or boarded within the same building, or taught in the same class, or at -the same time by the same teacher. The punishment for violating the law -by patronizing or teaching in such a school is a fine of from one -hundred and fifty to five hundred dollars, or imprisonment from three to -six months. A statute[487] of Tennessee of 1901 makes it lawful for any -school, academy, or other place of learning to receive both white and -colored pupils at the same time. It is unlawful for any teacher to allow -them to attend the same school or to teach them together or to allow -them to be taught together, under a penalty of fifty dollars for each -offence and imprisonment from thirty days to six months. The most recent -statute on the subject of private schools is that of Oklahoma in 1908. -It is plainly modeled after the Kentucky law of 1904. Under the Oklahoma -statute,[488] it is unlawful for a person, corporation, or association -of persons to maintain or operate any college, school, or institution -where persons of the white and colored races are both received as pupils -for instruction. The person, corporation, or association that operates a -school in violation of the statute is guilty of a misdemeanor, and may -be fined not less than one hundred nor more than five hundred dollars. -Each day such a school is kept open is a separate offence. One who -teaches in such a school is guilty of a misdemeanor and may be fined -from ten to fifty dollars for each day. One who goes to such a school as -a pupil may be fined from five to twenty dollars for each day. It is not -unlawful, however, for a private school to maintain a separate and -distinct branch thereof “in a different locality.” The Kentucky statute, -it will be remembered, required the separate branch to be, at least, -twenty-five miles from the main school. The Oklahoma legislature -declared that it was necessary “for the immediate preservation of the -public peace, health, and safety” that this act take effect at once. - -Florida, Kentucky, Oklahoma, and Tennessee are the only States that -expressly prohibit the teaching of white and colored persons in the same -private school. Other States—as Georgia and Texas—declare that, if a -school admits both races, it shall have none of the public school fund, -saying, by implication, that one may operate a school for both races if -he will give up his claim to State aid. On the other hand, Minnesota has -enacted a statute to the effect that, if a school refuses to admit -pupils of both races, it shall have none of the public school fund, thus -saying, by implication, that it is not unlawful to conduct a private -school exclusively for one race. The recent decision of the Supreme -Court of Michigan to the effect that a private school may exclude -Negroes even though the law of the State requires public schools to be -open to all, regardless of race or color, has been considered. - - - EQUALITY OF ACCOMMODATIONS - -In general, the “accommodations, advantages, and facilities” of schools -for Negroes are to be equal to those for white children, but the -requirement has, in many cases, been loosely construed. It has been held -in Missouri[489] and Ohio,[490] for instance, that it is not an unjust -discrimination for the colored children to have to walk farther to -school than the white children. The Supreme Court[491] of Kansas in 1903 -decided that uniformity of schools for white and colored children did -not require equality of buildings. The court said: “True, for the -accommodation of a numerous white population a much larger and more -imposing school building is provided than that set apart for the few -colored children in the district. This, however, is but an incidental -matter, and necessarily unavoidable in the administration of any -extended school system. School-houses cannot be identical in every -respect; but parents cannot, on this account, dictate the one their -children shall attend.” - -The County Board of Education of Richmond County, Georgia, in 1880, -established a high school for Negroes, but in 1897 it was discontinued -for economic reasons, because the money to educate fifty or sixty -Negroes in the high school would give the rudiments of education to two -hundred of the four hundred young Negroes in the county who were crowded -out. It was understood that the school would be re-opened as soon as -economic considerations permitted. A Negro brought suit against the -board for discrimination against his race in that the white high school -to which the Board made contributions had not been closed also. The -Supreme Court of that State held[492] that the Board had the right to -establish or discontinue high schools when the interests and convenience -of the people require it. There were more white children of the -high-school grade than colored; therefore, the court argued, the Board -was justified in continuing the white high school. The case was appealed -to the Supreme Court[493] of the United States, which affirmed the -decision of the State court. Mr. Justice Harlan, delivering the opinion -of the court, said: “... while all admit that the benefits and burdens -of public taxation must be shared by the citizens without discrimination -against any class on account of their race, the education of the people -in the schools maintained by State taxation is a matter belonging to the -respective States, and any interference on the part of the Federal -authority with the management of such schools cannot be justified except -in the case of clear and unmistakable disregard of rights secured by the -supreme law of the land.” - -In general, where separate schools are required, it is said that they -must be equal for both races; but it has been held that it is not an -unjust discrimination to build more imposing school-houses for the many -white children than for the few colored children; to require the -children of one race to walk farther to school than the other, or to -maintain high schools for one race without doing so for the other. Only -a very few States have escaped altogether the question of the separation -of the races in schools. Even where the State statutes have declared -point-blank by statute that there shall be no distinction on account of -race or color, the suits that have arisen in those States show that the -school boards have tried to evade the law. - - - DIVISION OF PUBLIC SCHOOL FUND - -It is commonly believed that the Negro has had and is now getting much -more than his share of the public school fund. It is said that the Negro -is getting nearly half the money, while he is paying only a very small -percentage of the taxes. Thus, the following is the estimate of Mr. J. -Y. Joyner, Superintendent of Public Instruction of North Carolina: “Upon -the most liberal estimate, it seems that in 1908 the Negroes received -for the maintenance of their public schools in North Carolina about -twice as much as they paid directly or indirectly for this purpose. I -think that this is about in accordance with the experience and -observation of those familiar with the administration of the public -schools in North Carolina. My own opinion is that the white people pay, -directly or indirectly, for the education of the Negro more rather than -less than one dollar for every dollar that the Negro pays, directly or -indirectly for that purpose.” Mr. J. D. Eggleston, Jr., Superintendent -of Public Instruction of Virginia, estimates that the public school fund -for Negroes in that State is $500,000, of which the Negro pays $87,000, -or less than one-fifth.[494] - -There have been fitful efforts from time to time to divide the public -school fund in proportion to the amount of taxes paid by each race. The -most recent and thorough-going effort[495] to have the school fund so -apportioned was made by Ex-Governor James K. Vardaman, of Mississippi. -But his effort, like that of those before him, came to naught. The white -taxpayers of the South have not shown any very evident desire to -withdraw their financial aid from the colored public schools. But there -has been enough legislation on different phases of the question of the -apportionment of the school money to deserve attention. - -In Alabama,[496] in 1896, all poll tax money paid by colored persons -went to the support of colored schools, and all that paid by white -persons, to the support of white schools. The present Code apparently -does not require this separation of taxes; but in the provisions for -special tax districts[497] for school purposes, the law provides that -the amount paid by whites and blacks shall be kept separate, presumably -meaning that the funds arising from special taxation shall be -apportioned according to the amount paid by each race. Though Delaware -usually makes an annual appropriation for colored schools, nevertheless -in 1875,[498] and again in 1887,[499] it provided for a tax of thirty -cents on the hundred dollars upon the property of colored persons for -the maintenance of colored schools. - -The legislation of Kentucky with regard to the raising and apportionment -of its public school fund has been unique. In 1866,[500] all capitation -taxes paid by Negroes and, in addition, a tax of two dollars _per -capita_ upon Negroes went toward the support of their paupers and the -education of their children. In 1869,[501] a vote was taken upon the -propriety of levying a tax of fifteen cents on the hundred dollars upon -the property of white persons for the support of white schools -exclusively. In 1873,[502] a property tax of twenty cents on the hundred -dollars and a poll tax of one dollar were levied upon Negroes of -McCracken County for the maintenance of their schools. The same method -of taxation was adopted for Bowling Green[503] and Catlettsburg[504] and -Garrard County.[505] As to the last-mentioned place, there was a -provision that in the county white and colored school-houses must be not -less than a half mile apart, and in towns not less than eight hundred -feet. In Bracken County[506] a special tax of twenty-five cents on the -hundred dollars was levied upon the property of whites for their -schools, not applying to Negroes at all. The constitutionality[507] of -this law was upheld by the Supreme Court of Kentucky on the ground that -whatever benefits the Negro is entitled to under the school system he -receives as a citizen of Kentucky, not as a citizen of the United -States. - -In 1874, the same State[508] provided for a uniform system of schools -for Negroes. The sources of the revenue for the schools were (1) a tax -of twenty cents on the hundred dollars upon the property of Negroes, (2) -their poll taxes, (3) their dog taxes, (4) taxes on deeds, suits and -licenses collected from colored persons, (5) fines, penalties, and -forfeitures collected from them, (6) sums received from Congress, -provided the apportionment to each colored child did not exceed that to -each white child, and (7) gifts, donations, and grants. Colored -school-houses must not be erected within one mile of a white -school-house in the country and six hundred feet in towns. In 1880, -Owensboro[509] was authorized to levy a tax of thirty cents on the -hundred dollars and two dollars on the poll upon Negroes for colored -schools, provided the Negroes voted to tax themselves for this purpose. -This law was held[510] unconstitutional by the Federal district court in -1883, the court saying: “If taxes can be distributed according to color -or race classification, no good reason why a division might not be made -according to the amount paid by each taxpayer, and thus limit the -benefits and distribute the protection of the laws by a classification -based upon the wealth of the taxpayer. Such distribution would entirely -ignore the spirit of our republican institutions and would not be the -equal protection of the laws as understood by the people of the State at -the time of the adoption of this (the Fourteenth) amendment.” The laws -of Kentucky of 1874 were held[511] unconstitutional in 1885. In 1886, -Elkton[512] was authorized to levy a tax of two dollars on the poll and -ninety-five cents on the hundred dollars upon Negroes if they voted thus -to tax themselves. Apparently the last act of legislation[513] with -regard to the school fund in Kentucky was in 1904, when provision was -made for a system of graded schools in cities of the fourth class, but -the property or polls of one race were not to be taxed for the support -of the schools of the other. A recent Kentucky case has held[514] that, -after the regular public school fund of the State has been apportioned -among the districts in proportion to the number of children regardless -of race, then it is not improper for a district to supplement that fund -by a tax on the property of white persons for the further support of -white schools and upon the property of Negroes for their schools. Thus, -it appears that Kentucky is honeycombed with the special tax districts -wherein each race supports its own schools. Whether this arrangement is -constitutional or not is still in doubt, as no square decision on the -point has yet been rendered by the Supreme Court of the United States. - -For some years North Carolina has been exercising the principle of -local, special taxation to supplement the general public school fund. In -several instances, about 1886, the communities levied the tax only upon -the whites for the benefit of white schools, but this was held[515] -unconstitutional by the State Supreme Court, and the attempt to thus -distinguish between the races does not appear to have been made since. -The courts of Kentucky and North Carolina are in conflict, due to the -differences in the constitutions of those States, on the question of -special taxation by each race for its own schools. The local tax -districts in North Carolina have recently been increasing at the rate of -about two a day, but the tax is levied upon colored persons as well as -white, and all the schools share the benefits. - -The Constitution of Texas[516] of 1866 provided that all taxes collected -from Negroes should go to maintain their public schools, and that it -should be the duty of the legislature to encourage schools among these -people. This provision, however, does not appear in the later -Constitution of Texas. - -Thus, one sees that, here and there, particularly in Kentucky, there are -precedents for a division of the school fund in proportion to the taxes -paid by each race, but there has not been any general movement in this -direction. One is justified in concluding that, although the Southern -States stand steadfastly for race separation in both public and private -schools, they do not desire a division of the public school funds except -in proportion to the number of children of school age. It is true that -there have been some local legislative acts looking in that direction, -and a few sporadic political movements to the same effect; nevertheless, -the fact that the local legislation has not become general since the -Negro has been practically eliminated from politics and that the -political movements have met with such scanty popular support show that -the people are satisfied with the present arrangement as to the division -of the school fund. - - - NOTES - -Footnote 335: - - Laws of Ky., 1904, pp. 181–82. - -Footnote 336: - - _The Outlook_, vol. 85, pp. 921–23. - -Footnote 337: - - _The Nation_, vol. 79, pp. 389–90. - -Footnote 338: - - 94 S. W. 623 (1906). - -Footnote 339: - - Berea College v. Com. of Ky., 1908, 211 U. S. 45. - -Footnote 340: - - Pol. Code, 1906, sec. 1662. - -Footnote 341: - - Laws of Calif., 1880, p. 38; 1885, p. 100; 1891, p. 160; 1893, p. 253; - 1903, p. 86. See also Laws of Calif., 1869–70, p. 838; 1909, extra - sess., p. 904. - -Footnote 342: - - President Roosevelt’s Message to Congress, December 18, 1906, with - Secretary Metcalf’s Report. - -Footnote 343: - - _The Outlook_, vol. 86, pp. 246–52. - -Footnote 344: - - Art. VI, par. 2. - -Footnote 345: - - _Harper’s Weekly_, vol. 51, p. 295; _Current Literature_, vol. 42, p. - 237. - -Footnote 346: - - Raleigh, N. C., _News and Observer_, Feb. 13, 1909. - -Footnote 347: - - Boston _Evening Transcript_, Feb. 18, 1910. - -Footnote 348: - - _Ibid._, Feb. 15, 1907, p. 8, col. 7. - -Footnote 349: - - Laws of O., 1828–29, p. 73. - -Footnote 350: - - Williams v. Directors of Sch. Dist. No. 6, 1834, Wright’s Rep. (O.) - 578. - -Footnote 351: - - Laws of O., 1847–48, pp. 81–83. - -Footnote 352: - - _Ibid._, 1848–49, pp. 17–18. See Curwen’s Revised Stat., II, pp. - 1465–66. - -Footnote 353: - - Stewart v. Southard, 1848, 17 O. 402. - -Footnote 354: - - State v. City of Cincinnati, 1860, 19 O. 178, at p. 196. - -Footnote 355: - - Laws of O., 1852, p. 441. - -Footnote 356: - - Van Camp v. Board of Education of Logan, 1859, 9 O. S. 406. - -Footnote 357: - - Lane v. Baker, 1843, 12 O. 238. - -Footnote 358: - - Revised Stat., 1843, p. 314. - -Footnote 359: - - Lewis v. Henley, 1850, 2 Ind. 332. - -Footnote 360: - - 59 Mass. (5 Cushing) 198 (1849). - -Footnote 361: - - Revised Stat., 1852, p. 115. - -Footnote 362: - - Art. XIII, sec. 1. - -Footnote 363: - - Art. XIV, sec. 256. - -Footnote 364: - - Laws of Ala., 1868, p. 148. - -Footnote 365: - - _Ibid._, 1878, p. 136. - -Footnote 366: - - _Ibid._, 1884–85, p. 349. See Code, 1907, I, sec. 1757. - -Footnote 367: - - Acts of Ark., 1866–67, p. 100. - -Footnote 368: - - _Ibid._, 1873, p. 423. See Kirby’s Digest, 1904, secs. 7536 and 7613. - -Footnote 369: - - Art. XII, sec. 12. - -Footnote 370: - - Laws of Fla., 1895, pp. 96–97. See General Stat., 1906, sec. 3810. - -Footnote 371: - - Laws of Ga., 1866, p. 59. - -Footnote 372: - - Art. VIII, sec. 1. - -Footnote 373: - - Laws of Ga., 1872, p. 69. See Code, 1895, I, sec. 1378. - -Footnote 374: - - Laws of Ky., 1869–70, I, p. 127. - -Footnote 375: - - Art. VI, sec. 187. - -Footnote 376: - - Laws of Ky., 1904, pp. 181–82. See Statutes, 1909, secs. 5606–10. - -Footnote 377: - - Title VII, art. 135. - -Footnote 378: - - Title VII. - -Footnote 379: - - Title VIII. - -Footnote 380: - - Laws of La., 1871, pp. 208–10. - -Footnote 381: - - _Ibid._, 1875, pp. 50–52. - -Footnote 382: - - _Ibid._, 1880, pp. 110–11. - -Footnote 383: - - Art. 248. - -Footnote 384: - - Laws of Md., 1870, pp. 555–56. - -Footnote 385: - - _Ibid._, 1872, p. 650. See Laws of Md., 1874, p. 690. - -Footnote 386: - - Pub. Gen. Laws, II, art. 77, secs. 124–27. - -Footnote 387: - - Laws of Miss., 1878, p. 103. - -Footnote 388: - - Sec. 207. - -Footnote 389: - - Code, 1906, sec. 4562. - -Footnote 390: - - Art. IX, sec. 2. - -Footnote 391: - - Laws of Mo., 1864, p. 126. - -Footnote 392: - - _Ibid._, 1868, p. 170. - -Footnote 393: - - _Ibid._, 1869, p. 86. - -Footnote 394: - - Art. IX, sec. 2. - -Footnote 395: - - Laws of Mo., 1889, p. 226. See Statutes, 1906, secs. 9774–76. - -Footnote 396: - - Art. IX, sec. 2. - -Footnote 397: - - Pub. Laws of N. C., 1901, p. 64. - -Footnote 398: - - _Ibid._, 1903, p. 756. - -Footnote 399: - - Revisal of 1905, II, sec. 4086. See Pell’s Revisal of 1908, sec. 4086. - -Footnote 400: - - Statutes, 1890, secs. 6464–72. - -Footnote 401: - - Laws of Okla., 1901, pp. 205–10. - -Footnote 402: - - Art. XIII, sec. 3. - -Footnote 403: - - Laws of Okla., 1907–08, pp. 694–95. See Statutes, 1908, secs. 6551–56. - -Footnote 404: - - Art. X, sec. 10. - -Footnote 405: - - Booker T. Washington, “The Story of the Negro,” 1909, Doubleday, Page - & Co., II, p. 38. - -Footnote 406: - - Art. XI, sec. 7. See Laws of S. C., 1896, p. 171, and Code, 1902, I, - sec. 1231. - -Footnote 407: - - Laws of Tenn., 1865–66, p. 65. - -Footnote 408: - - Art. XI, sec. 12. - -Footnote 409: - - Laws of Tenn., 1873, p. 46. - -Footnote 410: - - _Ibid._, p. 9. See Shannon’s Code, 1896, sec. 1451, and Supplement, - 1897–1903, p. 843. - -Footnote 411: - - Art. VII, sec. 7. - -Footnote 412: - - Laws of Texas, 1876, p. 209. - -Footnote 413: - - _Ibid._, 1884, p. 40. - -Footnote 414: - - _Ibid._, 1893, p. 198. - -Footnote 415: - - _Ibid._, 1895, p. 29. See Sayles’s Civil Statutes, II, art. 3907, and - Supplement, 1897–1906, pp. 421–22. - -Footnote 416: - - Laws of Va., 1881–82, p. 37. - -Footnote 417: - - _Ibid._, 1895–96, p. 352. - -Footnote 418: - - Sec. 140. See Pollard’s Code, 1904, sec. 1492. - -Footnote 419: - - Laws of Calif., 1869–70, pp. 838–39. - -Footnote 420: - - Ward v. Flood, 1874, 48 Calif., 36. - -Footnote 421: - - Deering’s Code and Statutes, I, secs. 1669–71. - -Footnote 422: - - Wysinger v. Crookshank, 1890, 23 P. 54. - -Footnote 423: - - Laws of Del., 1879–81, p. 385. - -Footnote 424: - - _Ibid._, 1887–89, pp. 650–51, 655, and 658. - -Footnote 425: - - _Ibid._, 1891–93, p. 693. - -Footnote 426: - - _Ibid._, 1898–99, p. 193. See Del. Laws of 1852, as amended 1893, pp. - 341 and 348. - -Footnote 427: - - Statutes, 1896, III, p. 3730, sec. 292. - -Footnote 428: - - Chase v. Stephenson, 1874, 71 Ill. 383. - -Footnote 429: - - People v. Board of Education of Quincy, 1882, 101 Ill. 308. - -Footnote 430: - - People v. Board of Education of Upper Alton, 1889, 21 N. E. 187. - -Footnote 431: - - People v. Mayor, etc. of City of Alton, 1899, 54 N. E. 421. - -Footnote 432: - - Raleigh, N. C., _News and Observer_, Nov. 29, 1906. - -Footnote 433: - - 233 Ill. 542 (1908). - -Footnote 434: - - Boston _Evening Transcript_, Nov. 28, 1908, pt. 2, p. 9, col. 5. - -Footnote 435: - - Laws of Ind., 1869, p. 41. - -Footnote 436: - - Cory v. Carter, 1874, 48 Ind. 327, at pp. 362–63. - -Footnote 437: - - Laws of Ind., 1877, p. 124. - -Footnote 438: - - State v. Grubbs, 1882, 85 Ind. 213. - -Footnote 439: - - State v. Mitchell, 1883, 93 Ind. 303. - -Footnote 440: - - Clark v. Board of Sch. Dirs., 1868, 24 Ia. 266. - -Footnote 441: - - Smith v. Dirs. of the Ind. Sch. of the Dist. of Keokuk, 1875, 40 Ia. - 518; Dove v. Ind. Sch. Dist. of Keokuk, 1875, 41 Ia. 689. - -Footnote 442: - - General Stat., 1868, chap. 18, art. 5, sec. 75. - -Footnote 443: - - Laws of Kan., 1876, p. 238. - -Footnote 444: - - _Ibid._, 1879, p. 163. - -Footnote 445: - - Reynolds v. Board of Education of Topeka, 1903, 72 P. 274; Williams v. - Board of Education of Parsons, 1909, 99 P. 216. - -Footnote 446: - - Board of Education v. Tinnon, 1881, 26 Kan. 1; Knox v. Board of - Education of Independence, 1891, 25 P. 616; Rowles v. Board of - Education of Wichita, 1907, 91 P. 88. - -Footnote 447: - - Letter from the Superintendent of Schools of Kansas to the - Superintendent of Schools of North Carolina. Raleigh, N. C., _News and - Observer_, Aug. 24, 1906. - -Footnote 448: - - Laws of Nev., 1864–65, p. 426. - -Footnote 449: - - State v. Duffy, 1872, 7 Nev. 342. - -Footnote 450: - - Laws of N. J., 1881, p. 186. - -Footnote 451: - - Pierce v. Union Dist. Sch. Trustees, 1884, 46 N. J. L. (17 Vroom) 76. - -Footnote 452: - - Raleigh, N. C., _News and Observer_, Feb. 18, 1906. - -Footnote 453: - - Dallas v. Fosdick, 1869, 40 How. Prac. (N. Y.) 249. - -Footnote 454: - - People v. Easton, 1872, 13 Abb. Prac. (N. S.) 159. - -Footnote 455: - - People v. Gallagher, 1883, 93 N. Y. 438. - -Footnote 456: - - People v. School Board of Borough of Queens, 1899, 61 N. Y. Sup. 330. - -Footnote 457: - - Laws of N. Y., 1864, p. 1281. - -Footnote 458: - - _Ibid._, 1894, II, p. 1288. - -Footnote 459: - - _Ibid._, 1900, II, p. 1173. - -Footnote 460: - - Laws of O., 1878, p. 513. - -Footnote 461: - - _Ibid._, 1887, p. 34. - -Footnote 462: - - State v. Board of Education of Oxford, 1887, 2 O. Cir. Ct. Rep. 557. - -Footnote 463: - - Laws of Pa., 1869, p. 160. - -Footnote 464: - - _Ibid._, 1872, pp. 1048–49. - -Footnote 465: - - Com. v. Williamson, 1873, 30 Legal Intelligencer, 406. - -Footnote 466: - - Laws of Pa., 1881, p. 76. - -Footnote 467: - - Kaine v. Sch. Dirs., 1882, 101 Pa. S. 490. - -Footnote 468: - - Laws of W. Va., 1865, p. 54. - -Footnote 469: - - _Ibid._, 1871, p. 206; 1872–73, p. 391; 1881, pp. 176–77; 1901, pp. - 159–60. - -Footnote 470: - - Art. XII, sec. 8. - -Footnote 471: - - Martin v. Board of Education of Morgan Co., 1896, 42 W. Va. 514; - Williams v. Board of Education of Fairfax Dist., 1898, 45 W. Va. 199. - -Footnote 472: - - Revised Stat., 1887, sec. 3947. - -Footnote 473: - - Revised Stat., 1901, secs. 2179 and 2231. - -Footnote 474: - - Laws of Ariz., 1909, pp. 171–72. - -Footnote 475: - - Art. IX, sec. 8. - -Footnote 476: - - Art. IX, sec. 6. - -Footnote 477: - - Acts and Resolves of Mass., 1854–55, pp. 674–75. - -Footnote 478: - - Revised Laws, 1902, I, p. 478. See Acts and Resolves of Mass., 1894, - p. 609; 1898, p. 453. - -Footnote 479: - - Compiled Laws, 1897, II, sec. 4683, p. 1478. - -Footnote 480: - - Raleigh, N. C., _News and Observer_, Nov. 22, 1908. - -Footnote 481: - - Booker v. Grand Rapids Medical College, 1909, 120 N. W. 589. - -Footnote 482: - - Revised Laws, 1905, sec. 1403. - -Footnote 483: - - Laws of N. M., 1901, p. 147. - -Footnote 484: - - U. S. Stat. L., 191, chap. 156, secs. 16–17. - -Footnote 485: - - 26 U. S. Stat. L., 417–18, chap. 841, sec. 1. - -Footnote 486: - - Laws of Fla., 1895, pp. 96–97. - -Footnote 487: - - Laws of Tenn., 1901, p. 9. - -Footnote 488: - - Laws of Okla., 1907–08, pp. 694–95. - -Footnote 489: - - Lehew v. Brummell, 1891, 15 S. W. 765. - -Footnote 490: - - State v. Board of Education of Cincinnati, 1876, 1 Weekly Law. Bul. - 190. - -Footnote 491: - - Reynolds v. Board of Education of Topeka, 1903, 72 P. 274, at p. 280. - -Footnote 492: - - Board of Education of Richmond Co. v. Cummings, 1898, 29 S. E. 488. - -Footnote 493: - - 175 U. S. 528 (1899). - -Footnote 494: - - Raleigh, N. C., _News and Observer_, Sept. 25 and Oct. 10, 1909. See - also _The World’s Work_, July, 1909. - -Footnote 495: - - _The International Year-book_, 1907, p. 545. - -Footnote 496: - - Code, 1896, secs. 3607–08. - -Footnote 497: - - Code, 1907, I, sec. 1858. - -Footnote 498: - - Laws of Del., 1875, pp. 82–83. - -Footnote 499: - - _Ibid._, 1887–89, pp. 147–48. - -Footnote 500: - - Laws of Ky., 1867, pp. 94–95. - -Footnote 501: - - _Ibid._, 1869, p. 7. - -Footnote 502: - - _Ibid._, 1873, p. 509. - -Footnote 503: - - _Ibid._, p. 238. - -Footnote 504: - - _Ibid._, pp. 193–94. - -Footnote 505: - - _Ibid._, pp. 554–55. - -Footnote 506: - - _Ibid._, adj. sess., pp. 471–72. - -Footnote 507: - - Marshall v. Donovan, 1874, 10 Bush (Ky.) 681. - -Footnote 508: - - Laws of Ky., 1873–74, pp. 63–66. - -Footnote 509: - - _Ibid._, local, 1879–80, I, pp. 257–59. - -Footnote 510: - - Claybrook v. Owensboro, 1883, 16 Fed. 297, at p. 302. - -Footnote 511: - - Dawson v. Lee, 1885, 83 Ky. 49. - -Footnote 512: - - Laws of Ky., 1885–86, I, pp. 877–91. - -Footnote 513: - - _Ibid._, 1904, pp. 129–31. - -Footnote 514: - - Crosby v. City of Mayfield, 1909, 117 S. W. 316. - -Footnote 515: - - Pruitt v. Gaston Co. Commissioners, 1886, 94 N. C. 709; Riggles v. - City of Durham, 1886, 94 N. C. 800. - -Footnote 516: - - Art. X, sec. 7. - - - - - CHAPTER IX - SEPARATION OF RACES IN PUBLIC CONVEYANCES - - -There is perhaps no phase of the American race problem which has been -discussed so much within the last decade as the so-called “Jim Crow” -laws, the statutes requiring separate accommodations for white and -colored passengers in public conveyances. This arises largely from the -fact that these legislative enactments are of general concern, while the -other legal distinctions have directly affected only certain classes of -each race. Laws prohibiting intermarriage, for instance, concern only -those of marriageable age; suffrage restrictions apply only to males of -voting age; and statutes requiring separate schools affect immediately -only children and youths; but the laws requiring white and colored -passengers to occupy separate seats, compartments, or coaches concern -every man, woman, and child, who travels, the country over. They affect -not only those living in the States where the laws are in force, but the -entire traveling public. The white man or the Negro in Massachusetts may -not care anything about the suffrage restrictions of South Carolina, -but, if he travels through the South, he must experience the -requirements of the “Jim Crow” laws. - - - ORIGIN OF “JIM CROW” - -The phrase “Jim Crow” has become so inseparably affixed to the laws -separating the races in public conveyances that two States, North -Carolina and Maryland, have indexed the laws on that subject under “J” -in some of their annual statutes. The earliest public use of the phrase -appears to have been in 1835, when Thomas D. Rice, the first Negro -minstrel, brought out in Washington a dramatic song and Negro dance -called “Jim Crow.” The late actor, Joseph Jefferson, when only four -years old, appeared in this dance.[517] In 1841 “Jim Crow” was first -used in Massachusetts to apply to a railroad car set apart for the use -of Negroes.[518] The phrase, then, has a somewhat more dignified origin -than is ordinarily attributed to it by those who have considered it as -only an opprobrious comparison of the color of the Negro with that of -the crow. - - - DEVELOPMENT OF LEGISLATION PRIOR TO 1875 - -The first “Jim Crow” laws are those of Florida and Mississippi in 1865, -and Texas in 1866. The laws[519] of Florida provided: “That if any -Negro, mulatto, or other person of color shall intrude himself into ... -any railroad car or other public vehicle set apart for the exclusive -accommodation of white people, he shall be deemed guilty of a -misdemeanor and, upon conviction, shall be sentenced to stand in pillory -for one hour, or be whipped, not exceeding thirty-nine stripes, or both, -at the discretion of the jury, nor shall it be lawful for any white -person to intrude himself into any railroad car or other public vehicle -set apart for the exclusive accommodation of persons of color, under the -same penalties.” The law[520] of Mississippi was as follows: “That it -shall be unlawful for any officer, station agent, conductor, or employee -on any railroad in this State, to allow any freedman, Negro, or mulatto, -to ride in any first-class passenger cars, set apart, or used by, and -for white persons; and any person offending against the provisions of -this section shall be deemed guilty of a misdemeanor, and on conviction -thereof, before the circuit court of the county in which said offence -was committed, shall be fined not less than fifty dollars, nor more than -five hundred dollars; and shall be imprisoned in the county jail until -such fine and costs of prosecution are paid: Provided, that this section -of this act shall not apply in the case of Negroes or mulattoes, -traveling with their mistresses, in the capacity of nurses.” Texas[521] -simply provided that every railroad company should be required to attach -to each passenger train run by it one car for the special accommodation -of freedmen. - -Other Southern States, perhaps, would have undertaken similar -legislation, had the legislatures been left unfettered; but under the -Reconstruction régime, a number of the States even passed laws -prohibiting discrimination against Negroes in public conveyances. In -1870, the Georgia legislature[522] enacted a statute requiring the -railroads in the State to furnish equal accommodations to all, without -regard to race, color, or previous condition, when a greater amount of -fare was exacted than had been exacted before January 1, 1861, which had -been at that time half-fare for persons of color. Texas,[523] in 1871, -repealed the law of 1866 and prohibited public carriers “from making any -distinctions in the carrying of passengers” on account of race, color, -or previous condition, making the violation of the law a misdemeanor -punishable by a fine of not less than one hundred nor more than five -hundred dollars, or imprisonment for not less than thirty or more than -ninety days, or both. In 1873, Louisiana[524] prohibited common carriers -from making any discrimination against any citizen of the State or of -the United States on account of race or color, and went further still by -prohibiting common carriers from other States from making such -discriminations while in the State. Out of this latter provision arose -the great case of Hall v. DeCuir, which will be discussed later. In -1874, Arkansas[525] prohibited any public carrier from making any rules -for the government or control of his business which should not affect -all persons alike, without regard to race or color. - -In the meantime, some of the States outside the South were taking -steps to adjust the privileges of persons of color. In 1866, -Massachusetts[526] made it unlawful’“to exclude persons from or -restrict them in ... any public conveyance ... except for good cause.” -The following year, Pennsylvania[527] enacted a statute prohibiting -railroads from excluding persons from their cars or requiring them to -ride in different parts of the cars on account of color or race, also -prohibiting the conductor or other agent of the railroad from throwing -the car off the track to prevent such persons from riding. This law -was passed just a few days before the famous case of West Chester and -Philadelphia Railway Company v. Mills was decided, which case will -also be discussed later. - -A statute of Delaware[528] of 1875, as has been seen, declared that the -carriers of passengers might make such arrangements in their business as -would, if necessary, assign a particular place in their cars, carriages, -or boats to such of their customers as they might choose to place there, -and whose presence elsewhere would be offensive to the major part of the -traveling public, where their business was conducted; but the -accommodations must be equal for all if the same price for carriage was -required from all. - - - LEGISLATION BETWEEN 1865 AND 1881 - -Before considering the “Jim Crow” laws of the Southern States, it will -be instructive to look into some of the court decisions between 1865 and -1881, the latter being the date of adoption of the first “Jim Crow” law -of the second period, to see what steps the railroad, street car, and -steamboat companies had taken to separate the races, in the absence of -State legislation upon the subject. - -In 1865, a colored woman ejected from a street car in Philadelphia[529] -brought action against the conductor, who pleaded that there was a rule -established by the road superintendent that Negroes should be excluded -from the cars. The court held that the conductor had no right to eject a -passenger on account of race or color, and that a regulation of the -company would not be a defence to the action. - -Just a few days after the Pennsylvania legislature passed the act -prohibiting discriminations against persons of color in public -conveyances, to which reference has been made, the Supreme Court of the -State ruled[530] that it was not an unreasonable regulation of the -railroad company to separate the passengers so as to promote personal -comfort and convenience. This is interesting because it is the earliest -case found supporting the legality of the separation of races in public -conveyances. Since the case arose before the Civil Rights Bill of the -Commonwealth was adopted, it does not purport to rule upon the -constitutionality of that act. - -In San Francisco,[531] in 1868, a street car conductor refused to stop -for a colored woman, saying, “We don’t take colored people in the cars,” -whereupon she brought an action against the company and was awarded -damages by the lower court. Here there is an implication that the -railroad company had a regulation excluding persons of color from street -cars. - -In 1870, the Chicago and Northwestern Railway Company[532] refused to -admit a colored woman to the car set apart for ladies and gentlemen -accompanying them. Whereupon she brought an action and recovered two -hundred dollars damages. It does not appear from the case that the -railroad had set apart any car or part of a car for the exclusive -accommodation of colored persons. - -A steamboat company in Iowa, in 1873, had a regulation that colored -passengers should not eat at the regular tables, but at a table on the -“guards” of the boat. The Supreme Court of that State held[533] that -this rule was unreasonable and, therefore, illegal. - -The first case to reach the Supreme Court of the United States involving -the separation of white and colored passengers on cars was one brought -against the Washington, Alexandria, and Georgetown Railroad Company, in -1873. This road was chartered by Congress in 1863 with the provision -that no person should be excluded from the cars on account of color. A -Negro woman, with an ordinary first-class ticket, was made to ride in a -separate coach precisely like that used by the white passengers. The -court ruled[534] that the Act of 1863 meant that persons of color should -travel in the same cars as white persons without any distinction being -made; that, therefore, the law was not satisfied by the company’s -providing cars assigned exclusively to persons of color, though they -were as good as those assigned to white passengers. - -In 1869, the Louisiana[535] legislature passed a law prohibiting -railroad, street car, and steamboat companies from making any -discrimination on account of race or color. In the often-cited case of -Hall v. DeCuir,[536] a test case arising under this act in 1875, the -Supreme Court ruled that the Louisiana act was unconstitutional because -it was an interference with interstate commerce. Chief Justice Waite, in -delivering the opinion of the court, said: “If each State was at liberty -to regulate the conduct of carriers while within its jurisdiction, the -confusion likely to follow could not but be productive of great -inconvenience and unnecessary hardship.” This case has stood as a -warning to the Southern States that they must be careful to mention in -their “Jim Crow” laws that they apply only to intrastate passengers. -But, as will be seen later, though this case has not been overruled, it -has been refined upon. - -In a case[537] arising in the Federal District Court of Texas in 1877, -it was held that for a railroad employee to deny to a passenger the -right to ride in the only car appropriated for the use of ladies, -because she was a colored woman, was a violation of the Civil Rights -Bill. But the judge, in charging the jury at the trial, said that, if -there were two cars equally fit and appropriate, then the white and -colored passengers might be separated. - -The above are only a few of the many cases which arose between 1865 and -1881, involving the separation of white and colored passengers; they are -cited to show that, in the absence of legislative authority, many of the -public conveyance companies had regulations of their own separating the -races. The “Jim Crow” laws, in other words, coming later, did scarcely -more than to legalize an existing and widespread custom. - - - SEPARATION OF PASSENGERS ON STEAMBOATS - -As already suggested, the “Jim Crow” laws apply to three classes of -vehicles, namely: steamboats, railroad cars, and street cars. There is -comparatively little legislation about white and colored passengers on -steamboats. North Carolina[538] is the only State to include steamboats -in the regular “Jim Crow” law. It requires all steamboat companies -engaged as common carriers in the transportation of passengers for hire -to provide separate but equal accommodations for the white and colored -races of all steamboats carrying passengers. The violation of this law -is punishable by a fine of one hundred dollars; each day is considered a -separate offence. - -On February 9, 1900, the Virginia[539] legislature enacted a statute -requiring the separation of white and colored passengers on all -steamboats carrying passengers and plying in the waters within the -jurisdiction of the State in the sitting, sleeping, and eating -apartments, so far as the “construction of the boat and due -consideration for comfort of passengers” would permit. There must be no -difference in the quality of accommodations. The law makes an exception -of nurses and other attendants traveling with their employers, and -officers in charge of prisoners. For disobeying the law, the boat -officer is guilty of a misdemeanor punishable by a fine of not less than -twenty-five dollars nor more than one hundred dollars. Any passenger -wilfully disobeying the law is guilty of a misdemeanor punishable by a -fine of not less than five dollars nor more than fifty dollars or by -imprisonment for not less than thirty days, or both. The boat officer -may eject an offending passenger at any landing place, and neither he -nor the steamboat company will be liable. In 1901, the above law[540] -was made more stringent by omitting the provision about the construction -of the boat and consideration for the comfort of the passengers, quoted -above. In 1904, South Carolina[541] required all ferries to have -separate cabins for white and colored passengers. - -The above legislation seems to be the only legislation as to steamboats -up to the present; but it does not measure the separation of the races -on steamboats, inasmuch as the companies in the various States have -adopted regulations requiring separate accommodations for the races. -This custom applies to interstate as well as to intrastate travel. The -steamers plying between Boston and the ports of the South, for instance, -provide separate dining tables, separate toilet rooms, and separate -smoking rooms for the white and colored passengers. This regulation of -interstate travel is upheld by two Federal cases, one in Georgia[542] in -1879 and the other in Maryland[543] in 1885, which held in substance, -that, inasmuch as Congress has enacted no law which forbids interstate -common carriers from separating white and colored passengers so long as -the accommodations are equal, during congressional inaction, the -companies may make their own regulations. - - - SEPARATION OF PASSENGERS IN RAILROAD CARS - -With the exception of the transient “Jim Crow” laws of Mississippi, -Florida, and Texas of 1865–67, the first State to adopt a comprehensive -law separating the white and colored passengers on railroad cars was -Tennessee[544] which did so in 1881. The statute of that State stood -alone until 1887, when a series of “Jim Crow” laws were enacted by the -States in the following order: Florida,[545] 1887; Mississippi,[546] -1888; Texas,[547] 1889; Louisiana,[548] 1890; Alabama,[549] -Kentucky,[550] Arkansas,[551] and Georgia,[552] 1891. For some years -thereafter the subject remained untouched by the legislatures, save an -amending statute now and then; but in 1898–99, the other Southern States -began to fall into line: South Carolina,[553] 1898; North Carolina,[554] -1899; Virginia,[555] 1900; Maryland,[556] 1904; Oklahoma,[557] 1907. It -appears that Missouri is the only Southern State which has not separated -the races in railroad cars. - -The details of the “Jim Crow” laws as to railroads are very nearly the -same in all the Southern States. They require white persons, on the one -hand, and “Negroes,” “persons of color,” “persons of African descent,” -etc., on the other, to occupy separate seats, compartments, or coaches. -The legal meaning of the above-mentioned phrases has already been -considered. It is safe to say, as the Arkansas statute does declare, -that, if one has a visible and distinct admixture of African blood, he -must accept the accommodations furnished colored passengers. - - - _Interstate and Intrastate Travel_ - -The first great question that arises is the extent of application of the -laws. The statutes declare that they apply to all railroads doing -business in the State. But just what does this mean? It has been -generally understood and the principle has been confirmed by judicial -decisions[558] that States may pass laws separating passengers going one -from one point to another in the same State. But how about passengers -coming from or going to points outside the State? Suppose, for instance, -a colored passenger were to board a train at Philadelphia for -Evansville, Indiana, and go through Maryland, West Virginia, and -Kentucky. Pennsylvania and West Virginia have no “Jim Crow” laws; -Maryland and Kentucky have. When the colored passenger reaches the -Maryland line, must he enter a car set apart for colored people? When he -reaches the West Virginia line, may he go back into the coach with white -passengers? When, again, he reaches the Kentucky line, will he be forced -to return to the car set apart for his race? And, finally, when he comes -to Indiana, may he once more return to the car for white passengers? Or, -suppose a railroad from Ohio to Indiana has only a few miles of its -track in Kentucky and only two depôts in that State. Must the railroad -furnish separate accommodations for the white and colored passengers -going between those two points in Kentucky? If these questions had been -asked thirty years ago or at the time of the Hall v. DeCuir case, there -is no doubt that the Federal courts would have held that it was an -unwarranted interference with interstate commerce or would lead to too -much confusion. - -The law of Alabama of 1891 contained the provision that “this act shall -not apply to cases where white or colored passengers enter this State -upon such railroads under contract for their transportation made in -other States where like laws to this do not prevail.” Since these laws, -however, have become so prevalent throughout the South, the courts seem -to have swung over to the side of public opinion. In 1889, the Supreme -Court of Mississippi held[559] that though the “Jim Crow” law of that -State applied only to intrastate travel, it was not an unwarranted -burden upon interstate railroads to require them to furnish separate -accommodations for the races as soon as they came across the State line. - -In 1894, the “Jim Crow” law of Kentucky was declared unconstitutional by -the Federal Circuit Court[560] because the language of the acts was so -comprehensive as to embrace all passengers, whether their passage -commenced or ended within the State or otherwise and thus interfered -with interstate commerce. Four years later, however, the Court of -Appeals[561] of Kentucky, considering the same statute, ruled that the -law of that State was not in violation of the Fourteenth Amendment or -the “interstate commerce clause” of the Federal Constitution, arguing -that, if it did apply to interstate passengers, which was not conceded, -it would be construed to apply only to transportation within the State. -Under this latter ruling apparently the colored passenger going from -West Virginia to Indiana through Kentucky would have to ride in the car -provided for his race in that State. - -The same year, 1898, the Supreme Court[562] of Tennessee held that it -was a proper exercise of the police power to require even interstate -passengers to occupy separate accommodations while in that State. The -last case[563] upon this point, decided April 16, 1907, held that a -railroad company may, independently of statute, adopt and enforce rules -requiring colored passengers, although they are interstate passengers, -to occupy separate coaches or compartments. - -Thus the matter stands. In the absence of a recent United States Supreme -Court decision upon the point, it would be unsafe to make a -generalization. But it is clear that there has been, in the point of -view of the Federal judiciary, a reaction from the extreme doctrine of -Hall v. DeCuir. All the lower courts, both State and Federal, are -inclined to make the laws apply to all passengers, both intrastate and -interstate, so long as they are within the borders of the particular -State. - - - _Sleeping Cars_ - -In a number of the “Jim Crow” laws there are special provisions about -Pullman cars. Oklahoma and Texas provide that carriers may haul sleeping -or chair cars for the exclusive use of either race separately, but not -jointly. Georgia goes farthest in legislation on this point. In 1899, -the legislature provided that, in assigning seats and berths on sleeping -cars, white and colored passengers must be separated; but declared that -nothing in the act should be construed to compel sleeping-car companies -to carry persons of color in sleeping or parlor cars. The act does not -apply to nurses and servants with their employers, who may enter and -ride in the car with their employers. The conductors are made special -policemen to enforce the law, and the failure or refusal to do so is -punishable as a misdemeanor. The “Jim Crow” laws in Maryland, North -Carolina, and Virginia do not apply to Pullman cars or to through -express trains; nor, in South Carolina, to through vestibule trains. - -The Court of Appeals of Texas,[564] in 1897, held that a colored -passenger in a Pullman car, going from a point outside of Texas into -that State, might be compelled, upon reaching the Texas line, to enter a -Pullman car set apart for passengers of his own race, provided the -accommodations were equal. This decision is in harmony with those -already considered with reference to day coaches. - - - _Waiting-Rooms_ - -Three States, Arkansas, Louisiana, and Oklahoma, require separate -waiting-rooms at railroad depôts. In Mississippi, the railroad -commission was given power in 1888 to designate separate waiting-rooms, -if it deemed such proper. In most, if not all, of the other Southern -States, separate waiting-rooms are provided by the railroad companies on -their own initiative, and this action on their part was held -constitutional[565] in South Carolina in 1893. - -The most recent legislation along this line was an act of South Carolina -of February 23, 1906, requiring a separation of the races in all station -restaurants and eating-houses, imposing a heavy fine for its violation. -It is probable that the necessity or propriety of this law was suggested -by the disturbance which arose at Hamlet, North Carolina, near the South -Carolina line, when the proprietor of the Seaboard Air Line Railway -eating-house at that place allowed a party of Negroes, one of whom was -Dr. Booker T. Washington, to eat in the main dining room, while the -white guests were fed in a side room. - - - _Trains to which Laws do not Apply_ - -There are certain classes of trains to which the “Jim Crow” laws do not -apply. In Maryland, Oklahoma, Texas, and Virginia, they do not apply to -freight trains carrying passengers in the caboose cars. South Carolina -exempts narrow-gauged roads from the requirements of the law. North -Carolina gives its railroad commissioners power to exempt branch lines -and narrow-gauged roads if, in their judgment, separation is unnecessary -to secure the comfort of passengers. South Carolina provides that, where -a railroad is under forty miles in length and operates both a freight -and a passenger train daily, the law applies only to the passenger -train. These two States also except relief trains in case of accident. -Whether there is statutory exemption or not, the railway company cannot -be held responsible for not separating the passengers in case of an -accident.[566] Oklahoma allows the running of extra or special trains or -cars for the exclusive accommodation of either race, if the regular -trains or cars are operated upon regular schedule. Texas provides that -the provisions of its act shall not apply to any excursion train run -strictly as such for the benefit of either race. - - - _Passengers to whom Law does not Apply_ - -Certain classes of passengers are exempt from the laws. There is, for -instance, an exemption in favor of nurses attending the children or sick -of the other race in Florida, Georgia, Kentucky, Louisiana, Maryland, -North Carolina, South Carolina, Texas, and Virginia. The Florida -provision is that nothing in the act shall be construed to prevent -female colored nurses having the care of children or sick persons from -riding in cars for white passengers. North Carolina excepts “Negro -servants in attendance on their employers.” These two qualifications -sound innocent enough, but probably upon a test they would be declared -unconstitutional. It would be considered class legislation in that -_colored_ nurses and _Negro_ servants are specifically mentioned instead -of exempting nurses and servants in general. In fact, the point has been -decided in the case of street-car provisions with similar wording. - -Arkansas, Kentucky, Maryland, Oklahoma, Texas, and Virginia expressly -exempt the employees of a railroad in the discharge of their duty from -the requirements of the “Jim Crow” laws. Where such exemption is not so -made in the statute, it must be taken for granted, for it would be -manifestly unreasonable to prohibit a white conductor from going into -the colored coach to collect tickets, or a colored porter from going -into the coach for white passengers to regulate the ventilation or for -any other purpose of his employment. It may be noted, however, that in -States where these laws apply, the white conductor usually assists the -white passengers in entering and leaving the cars, while colored porters -attend to the colored passengers. - -Most of the States provide that the laws do not apply to officers in -charge of prisoners. Arkansas declares that “officers accompanying -prisoners may be assigned to the coach or room to which said prisoners -belong by reason of race.” Louisiana, on the contrary, exempts prisoners -in the charge of officers from the “Jim Crow” laws. The South Carolina -law exempts lunatics as well. The law of Kentucky exempts “officers in -charge of prisoners.” When, in a case which arose in Kentucky, a sheriff -went to take a Negro lunatic over the road, the conductor required the -lunatic to stay in the colored coach, and gave the sheriff the choice of -staying with the lunatic or leaving him and riding in the car for white -passengers. The court[567] upheld the action of the conductor, ruling -that the exemption applied only to the officers, not to the prisoners. -The law has the same effect as if it said that the officer should ride -in the car set apart for the race of the prisoner or lunatic, because it -is his duty to guard his charge, and, if the prisoner or lunatic must -stay in the car for his race, the officer must stay there with him. -North Carolina, South Carolina, and Maryland exempt prisoners from the -requirements of the “Jim Crow” laws. - - - _Nature of Accommodations_ - -As to the nature of railroad accommodations, all “Jim Crow” laws -provide, in substance, that the accommodations for white and colored -passengers must be equal for both races. Florida provides that the -coaches for colored passengers (with first-class tickets) must be -equally good and provided with the same facilities for comfort as those -for white passengers with first-class tickets. Kentucky, Maryland, and -Virginia prohibit any difference in quality, convenience, or -accommodation. Tennessee provides that the first-class coaches for -colored passengers must “be kept in good repair, and with the same -convenience and subject to the same rules governing other first-class -cars, preventing smoking and obscene language.” - -There is no one point upon which the courts are more in accord than that -there is no ground of action so long as the accommodations are -substantially equal.[568] The great working principle was enunciated in -1885 in the Circuit Court[569] of Tennessee in the doctrine that -equality of accommodation does not mean identity of accommodation. And, -indeed, the railroad company is not liable for damages even for -inequality of accommodation, unless it is proved that the plaintiff -actually sustained damages by such inequality.[570] - - - _Means of Separation_ - -The actual separation of the races is accomplished by requiring -railroads to furnish on each passenger train either separate cars or one -car divided into separate compartments by a partition. Each State gives -the choice. In case of the division of the car into compartments, the -partition must, in Arkansas, Oklahoma, and Kentucky, be made of wood; in -Kentucky, Maryland, Oklahoma, and Texas, it must be “substantial”; and -in Maryland and Texas, it must have a door in it. Arkansas requires only -a partitioned car on roads less than thirty miles long, but separate -cars on longer roads, though a train on any road may carry one -partitioned car. - -Maryland and North Carolina provide that, in case the car or compartment -for either race becomes filled and no extra cars can be obtained and the -increased number of passengers could not have been foreseen, the -conductor may assign a portion of the car or compartment for one race to -the passengers of the other race. - - - _Designation of Separation_ - -Several States specify a means by which the public shall be notified of -the existence of the “Jim Crow” requirements. Arkansas requires the law -to be posted in each coach and waiting-room; Louisiana, in each coach -and ticket-office; Texas, in each coach and depôt. In Kentucky, -Maryland, Oklahoma, and Texas, each coach or compartment must bear in -some conspicuous place appropriate words, in plain letters, to indicate -the race for which it was set apart. - - - _Punishment for Violating Law_ - -Certain liabilities are incurred for the violation of the “Jim Crow” -laws. The three parties concerned are the passenger, the conductor or -manager of the train, and the railroad company itself. If a passenger -refuses to occupy the coach or compartment to which he, by his race, -belongs, the conductor may refuse to carry him and may eject him if he -is already on the train; and for this neither the conductor nor the -railroad company is liable. In Georgia and Texas, conductors are given -express power to enforce the law, and in other States the power is -implied. Some States punish passengers for wilfully riding in the wrong -car by a fine ranging from a minimum of five dollars in Maryland and -Texas to a maximum of one thousand dollars in Georgia, or imprisonment -from twenty days in Louisiana to six months in Georgia. - -The conductor is liable for two kinds of offences: (1) for assigning a -passenger to a car or compartment to which he does not by race belong, -and (2) for failing to separate passengers. Most of the States consider -the two violations as one. Only Arkansas and Louisiana prescribe -separate punishments for assigning the passenger to the wrong car—a fine -of twenty-five dollars in Arkansas and a fine of twenty-five dollars or -twenty days’ imprisonment in Louisiana. The punishment for refusing to -enforce the law is a fine varying from a minimum of five dollars in -Texas to a maximum of one thousand dollars in Georgia, or, in a few -States, imprisonment of varying length. In Texas, the fines collected -are applied to the common school fund of the State. - -The fine imposed upon railroad companies for failing or refusing to -furnish separate accommodations, varies between twenty-five dollars and -one thousand dollars for each offence, and for this purpose each trip -that the train makes is considered a separate offence. If, however, the -railroad company provides the required separate cars or compartments and -the conductor fails to enforce the law or violates its provisions, it is -the conductor, not the company, who is liable.[571] - - - _Separation of Postal Clerks_ - -A special question has arisen out of the Federal postal cars on which -both white and colored clerks are employed. At present, they are obliged -to sleep in the same cars, and at the terminals of long runs dormitories -are provided for them, but without any race separation. The post-office -department has said that such regulation is beyond its control.[572] -Thus the matter stands, with a growing discontent on the part of the -white postal clerks to be so intimately associated with the colored -clerks. - - -The “Jim Crow” laws in the South, so far as the railroads are concerned, -are very nearly complete. Missouri, as has been said, is the only one of -the Southern States which has not, by express enactment, separated the -races. - - - SEPARATION OF PASSENGERS IN STREET CARS - -The third division of the subject is the separation of races in street -cars. This is a field of much more active legislation than any of the -preceding, in which much has been done recently and in which much more -is likely to be done. - -Of the thirteen separate coach laws just considered, six of them—those -of Alabama, Arkansas, Louisiana, Mississippi, South Carolina, and -Texas—except street railroads from their application. Georgia and -Oklahoma alone make their laws all inclusive, embracing electric and -street cars as well as railroad coaches. It is safe to assume that the -laws of the other States refer only to railroad coaches. - - - _Present Extent of Separation_ - -With the exception of the early law of Georgia[573] of 1891, the “Jim -Crow” street car laws came in with the new century. So far, eight of the -Southern States have passed general statutes to separate the races on -street cars, in the following order: Georgia,[573] 1891; Louisiana,[574] -1902; Mississippi,[575] 1904; Tennessee,[576] and Florida,[577] 1905; -Virginia,[578] 1906, and North Carolina,[579] and Oklahoma,[580] 1907. -The statute of Arkansas,[581] of 1903, might be included in the above -list, but it applies only to cities of the first class. Some States -passed laws of special application before they made them general. Thus, -in 1902, the legislature of Virginia[582] separated the white and -colored passengers on street cars going between Alexandria and points in -Fairfax and Alexandria Counties; and in 1901, between Richmond and Seven -Pines. And so Tennessee,[583] in 1903, made the regular separate coach -law apply to street cars in counties having 150,000 inhabitants or over, -as shown by the census of 1900 or any subsequent Federal census. Memphis -only came within this law. In 1905, South Carolina[584] required the -separation of the races on “electric railways outside of the corporate -limits of cities and towns.” This State has not yet made the law -general. - -The extent of legislation at present is as follows: Georgia and -Oklahoma, by their regular “Jim Crow” laws, require the white and -colored passengers on street cars to be separated. Louisiana, -Mississippi, Florida, Tennessee, Virginia, and North Carolina have -separated the races by statutes specially applicable to street cars. -Arkansas, by statute, requires a separation in cities of the first -class; and South Carolina, on suburban lines. Maryland, South Carolina, -Alabama, Texas, Kentucky and Missouri do not, by statute, require the -races to be separated on street cars in cities. But the absence of -legislative enactments does not mean at all that races are not actually -separated on street cars. In order to find out the extent of actual -separation, the author made inquiry of the mayors of every city of -10,000 or more inhabitants in the Southern States and in West Virginia -and Kansas. Some generalizations may be made from the almost complete -number of replies received. It may be assumed that the races are -separated in the above-mentioned States which have statutes on the -subject. It appears that the white and colored passengers are _not_ -separated on the street cars of any of the cities of Kansas, Kentucky, -Maryland, Missouri, and West Virginia. In the absence of State laws, -either the municipal authorities or the street railway companies -themselves provide for and require separation in the cities of Alabama -and South Carolina. Thus, though there is no ordinance on the subject in -Charleston, South Carolina, separation is required by the company -itself. - - - _Method of Separation_ - -The city ordinances and regulations requiring separation on street cars -are practically the same as the State statutes on the subject. The -ordinances, regulations, and statutes all require that the -accommodations for passengers of both races shall be equal. The three -methods of separation are (1) separate cars, (2) partitioned cars, and -(3) seats assigned to each race. The only city that unqualifiedly -requires separate cars is Montgomery, Alabama. The ordinance was passed -October 15, 1906, over the mayor’s veto, he vetoing it because he -believed it would be impracticable. When the law went into effect, -November 23, the service was materially reduced because of the scarcity -of cars.[585] The State laws of Florida, Louisiana, and Mississippi give -the choice of using two or more cars or partitioned cars. A number of -the ordinances require that the cars be divided either by movable -screens or partitions. They are movable so as to apportion the seating -capacity to the requirements of each race. But in by far the greatest -number of cases, the separation is accomplished by the conductor -assigning white and colored passengers to different seats. Practically -without exception, the colored passengers are required to be seated from -the rear to the front of the car; the white, from the front to the rear. -On railroad cars, the colored passengers are almost invariably assigned -to the front compartments. The colored passengers on street cars are -seated in the rear in order—to give the reason as stated by the mayor of -Birmingham, Alabama—to do “away with the disagreeable odors that would -necessarily follow the breezes.” In the closed cars of that city, -however, the colored passengers are seated in front so as to give the -white passengers the rear for smoking. In other cities, the two rear -seats are reserved for smoking, so the colored passengers begin to sit -on the third seat from the rear. As the car fills, the races get nearer -and nearer to one another. North Carolina provides that white and -colored passengers shall not occupy contiguous seats on the same bench. -Virginia, likewise, prohibits white and colored passengers from sitting -side by side on the same bench unless all the other seats are filled. -The conductor has the power to require passengers to change their seats -as often as is needful to secure actual separation of the races. The -laws do not prohibit the running of special cars exclusively for either -race, provided the regular cars are run. - -The cars or compartments are to be clearly designated to show to which -race they belong. Several statutes and ordinances require that the -placard “WHITE” or “COLORED,” in plain letters, not less than two inches -high, shall be upon each end of the car or compartment, or upon the -sides of the open cars. A recent case[586] in Mississippi would seem to -hold that the sign must be large enough to be seen in all parts of the -car. The laws of Mississippi and Louisiana require that the law be -posted in the car; in Virginia, the substance of the law is posted in -the car. In Houston, Texas, the race to which the seat belongs is posted -on the back of the seat. In several cities, any one tampering with such -a sign will be punished by a heavy fine. - -The law of North Carolina probably contains a fatal defect in that it -requires separation “as far as practicable.” Of course, this would allow -the conductors or companies to make numberless exceptions. As a matter -of fact, most of the North Carolina cities had been contemplating such a -separation, and, when the law went into effect the first of April, 1907, -were ready to regard and enforce it. - - - _Enforcement of Laws_ - -In practically all of the cities, the street-car conductors and motormen -are special policemen to enforce the law. For the ejectment of a -wilfully disobedient passenger, they incur no penalty either upon -themselves or the company. North Carolina provides that the conductor -shall not be liable if he makes the mistake of assigning a passenger to -the wrong seat. In several of the cities, it is the duty of the regular -police officers to arrest passengers whom they see riding in the wrong -cars. The penalty upon the conductor for knowingly failing or refusing -to enforce the law varies all the way from a minimum fine of one dollar -in Montgomery, Alabama, to five hundred dollars in Jacksonville, -Florida, or imprisonment from one to ninety days. The liability of the -company is correspondingly heavy in proportion. Each trip made without -providing for the requirements of the law is expressly declared a -separate offence. In Pensacola, Florida, the fine upon the company for -not furnishing separate accommodations is fifty dollars a day. - -When a passenger consciously disobeys the law, he may be fined; and if -he insists upon occupying the wrong seat, the conductor may eject him -from the car. According to the Virginia law, “in case such passenger -ejected shall have paid his fare upon said car, he shall not be entitled -to any part of said fare.” - - - _Exemptions_ - -The only phase of these “Jim Crow” street-car laws which has given rise -to any serious discussion is the question of the exemptions from -application. Most of the States and cities simply except nurses of one -race in attendance upon the children or sick of the other race, the -nurse going into the car to which the child or sick person belongs. Of -course, the street-car employees are excepted, and Virginia excepts -officers in charge of prisoners and lunatics. But Florida and North -Carolina declared that the law should not apply to _colored_ nurses in -attendance upon _white_ children or _white_ sick people; and Augusta, -Georgia, has the same in its ordinance. The constitutionality of the -Florida law was tested five years ago in the Supreme Court[587] of that -State, and was declared to violate the Fourteenth Amendment, the court, -in its opinion, saying: “It gives to the Caucasian mistress the right to -have her child attended in the Caucasian department of the car by its -African nurse, and withholds from the African mistress the equal right -to have her child attended in the African department by its Caucasian -nurse.” This is the same discrimination as to the invalid adult -Caucasian attended by a colored nurse. As soon as the Florida State law -was declared unconstitutional, the cities passed ordinances making the -provision apply to nurses of either race. The North Carolina law was -never tested, for it was amended before a test case reached the courts. -The North Carolina legislature[588] of 1909 obviated all possible -difficulty by amending its law to the effect that the nurses of the -children or sick or infirm of one race might ride in the car set apart -for the race of the infant or sick or infirm person so attended. - - - NOTES - -Footnote 517: - - _Century Dictionary_, I, p. 546. - -Footnote 518: - - _Ibid._, IV, p. 3233. - -Footnote 519: - - Laws of Fla., 1865, p. 24. - -Footnote 520: - - Laws of Miss., 1865, pp. 231–32. - -Footnote 521: - - Laws of Texas, 1866, p. 97. - -Footnote 522: - - Laws of Ga., 1870, pp. 427–28. - -Footnote 523: - - Laws of Texas, 1871, 2d sess., p. 16. - -Footnote 524: - - Acts of La., 1873, pp. 156–57. - -Footnote 525: - - Acts of Ark., 1873, pp. 15–19. - -Footnote 526: - - Acts and Resolves of Mass., 1866–67, p. 242. - -Footnote 527: - - Laws of Pa., 1867, pp. 38–39. - -Footnote 528: - - Laws of Del., 1875–77, p. 322. - -Footnote 529: - - Derry v. Lowry, 1865, 6 Phila. Rep. 30. - -Footnote 530: - - West Chester and Phila. Ry. Co. v. Mills, 1867, 55 Pa. S. 209. - -Footnote 531: - - Pleasant v. N. B. & M. Ry. Co., 1868, 34 Calif. 586. - -Footnote 532: - - C. & N. W. Ry. Co. v. Williams, 1870, 55 Ill. 185. - -Footnote 533: - - Coger v. N. W. Union Packet Co., 1873, 37 Ia. 145. - -Footnote 534: - - Ry. Co. v. Brown, 1873, 17 Wall, 445. - -Footnote 535: - - Acts of La., 1869, p. 37. - -Footnote 536: - - 95 U. S. 485, at p. 489 (1875). - -Footnote 537: - - U. S. v. Dodge, 1877, Fed. Case No. 14,976. - -Footnote 538: - - Pub. Laws of N. C., 1899, pp. 539–40. - -Footnote 539: - - Acts of Va., 1899–1900, p. 340. - -Footnote 540: - - _Ibid._, extra sess., 1901, pp. 329–30. - -Footnote 541: - - Acts of S. C., 1904, pp. 438–39. - -Footnote 542: - - Green v. “City of Bridgeton,” 1879, Fed. Case No. 5,754. - -Footnote 543: - - “The Sue,” 1885, 22 Fed. 843. - -Footnote 544: - - Laws of Tenn., 1881, pp. 211–12. - -Footnote 545: - - Laws of Fla., 1887, p. 116. - -Footnote 546: - - Laws of Miss., 1888, pp. 45 and 48. - -Footnote 547: - - Laws of Texas, 1889, pp. 132–33; 1891, pp. 44–45 and 165. - -Footnote 548: - - Acts of La., 1890, pp. 152–54; 1894, pp. 133–34. - -Footnote 549: - - Acts of Ala., 1890–91, pp. 412–13. - -Footnote 550: - - Acts of Ky., 1891–92–93, pp. 63–64. - -Footnote 551: - - Acts of Ark., 1891, pp. 15–17; 1893, pp. 200–01. - -Footnote 552: - - Laws of Ga., 1891, I, pp. 157–58; 1899, pp. 66–67. - -Footnote 553: - - Acts of S. C., 1898, pp. 777–78; 1903, p. 84; 1906, p. 76. - -Footnote 554: - - Pub. Laws of N. C., 1899, pp. 539–40; 1907, pp. 1238–39; 1909, p. - 1256. - -Footnote 555: - - Acts of Va., 1899–1900, pp. 236–37. - -Footnote 556: - - Laws of Md., 1904, pp. 186–87. - -Footnote 557: - - Laws of Okla., 1907–08, pp. 201–04. - -Footnote 558: - - L. N. O. & T. Ry. Co. v. State, 1889, 6 S. 203; Plessy v. Ferguson, - 1896, 163 U. S. 537; O. Val. Ry. Rec. v. Lander, 1898, 47 S. W. 344; - C. & O. Ry. Co. v. Com. of Ky., 1899, 51 S. W. 160. - -Footnote 559: - - L. N. O. & T. Ry. Co. v. State, 1889, 6 S. 203. - -Footnote 560: - - Anderson v. L. & N. Ry. Co., 1894, 62 Fed. 46. - -Footnote 561: - - O. Val. Ry. Rec. v. Lander, 1898, 47 S. W. 344. - -Footnote 562: - - Smith v. State, 1898, 46 S. W. 566. - -Footnote 563: - - Chiles v. C. & O. Ry., 1907, 101 S. W. 386. - -Footnote 564: - - Pullman-Palace Car Co. v. Cain, 1897, 40 S. W. 220. - -Footnote 565: - - Smith v. Chamberlain, 1893, 17 S. E. 391. - -Footnote 566: - - C. & O. Ry. Co. v. Com. of Ky., 1905, 84 S. W. 566. - -Footnote 567: - - L. & N. Ry. Co. v. Catron, 1897, 43 S. W. 443. - -Footnote 568: - - West Chester and Phila. Ry. Co. v. Mills, 1867, 52 Pa. S. 209; U. S. - v. Dodge, 1877, Fed. Case No. 14,976; Murphy v. W. & A. Ry. Co., 1885, - 23 Fed. 637; Logwood v. M. & C. Ry. Co., 1885, 23 Fed. 318; Houck v. - S. Pac. Ry. Co., 1888, 38 Fed. 226; Plessy v. Ferguson, 1896, 163 U. - S. 537. - -Footnote 569: - - Logwood v. M. & C. Ry. Co., 1885, 23 Fed. 318. - -Footnote 570: - - Norwood v. G. H. & S. A. Ry. Co., 1896, 34 S. W. 180. - -Footnote 571: - - L. & N. Ry. Co. v. Com. of Ky., 1896, 37 S. W. 79. - -Footnote 572: - - Raleigh, N. C., _News and Observer_, March 12, 1907. - -Footnote 573: - - Laws of Ga., 1891, I, pp. 157–58. - -Footnote 574: - - Acts of La., 1902, pp. 89–90. - -Footnote 575: - - Laws of Miss., 1904, pp. 140–41. - -Footnote 576: - - Acts of Tenn., 1905, pp. 321–22. - -Footnote 577: - - Laws of Fla., 1905, pp. 99–100. - -Footnote 578: - - Acts of Va., 1906, pp. 92–94. - -Footnote 579: - - Pub. Laws of N. C., 1907, pp. 1238–39. - -Footnote 580: - - Laws of Okla., 1907–08, pp. 201–04. - -Footnote 581: - - Acts of Ark., 1903, pp. 178–79. - -Footnote 582: - - Acts of Va., 1901, extra sess., pp. 212–13; 1901–02, pp. 639–40. - -Footnote 583: - - Acts of Tenn., 1903, p. 75. - -Footnote 584: - - Laws of S. C., 1905, p. 954. - -Footnote 585: - - Raleigh, N. C., _News and Observer_, Nov. 23, 1906. - -Footnote 586: - - Walden v. Vicksburg Ry. and Light Co., 1906, 40 S. 751. - -Footnote 587: - - State v. Patterson, 1905, 39 S. 398, at p. 400. - -Footnote 588: - - Pub. Laws of N. C., 1909, p. 1256. - - - - - CHAPTER X - NEGRO IN COURT ROOM - - -The Negro goes into a court room in one or more of six capacities, -namely: as spectator, witness, juror, party to a suit, attorney, or -judge. It is in each of these capacities that the Negro in the court -room is to be considered, but some of them permit of only brief mention. -How the Negro actually fares in the court room—whether he gets justice -as often as the white person does, whether his testimony has as much -weight with the jury and court as that of the white witness, whether the -Negro attorney or judge is accorded as much courtesy as the white man in -a similar position—would make an interesting and profitable study, but -such a study is largely outside the field of this investigation. It -should be kept in mind now, as in the previous chapters, that only those -distinctions are considered which have come within the pale of the law -since 1865, either in the form of statutory enactment or judicial -decision. Where mention is made of some of the actual extralegal race -distinctions in the court room, it is only for illustration. - - - AS SPECTATOR - -The court room, while the court is in session, is open to all citizens, -regardless of race or color. No instance has been found either in the -statutes or judicial reports of one’s admission to or exclusion from the -court room being dependent upon his race or color. It is to be noticed, -however, in Southern court rooms that the spectators are separated by -race, Negroes usually occupying seats on one side of the room and white -people on the other. This must be entirely a matter of custom, as no -case has been found of such separation being required by law or -ordinance. While this point has not been deemed important enough for a -special investigation, it is presumed that one will find the races -separated in the court room in those States or communities where they -are separated in other places—as in public conveyances, schools, and -churches. - -A Negro in the South, as elsewhere, has, legally and actually, as good -an opportunity to observe court proceedings as a white person, though -custom may require him to sit in a different part of the court room from -that occupied by the latter. - - - AS JUDGE - -Little within the scope of this chapter can be said of the Negro as a -judge. There are cases still in the North of Negroes sitting on the -bench, mostly in lower courts, and there may be instances, here and -there, in the South, of Negroes holding judicial offices. Certainly, the -Negro elector is eligible, both under Federal and State Constitutions, -to hold a judgeship. Whether or not there are Negroes on the bench in a -given State is not determined by the legislatures or the courts, but by -the appointing power or by the choice of the people at the polls. - - - AS LAWYER - -A Negro is eligible to practice law in every State; that is, nothing to -the contrary appears in any of the State or Federal statutes now in -force. Negroes may be admitted to the bar everywhere upon proving the -same qualifications and passing the same examinations as required of -other applicants for license. But this has not always been so. The -privilege of practicing law in Iowa,[589] for instance, was, until 1870, -restricted to white males. In that year it was extended to women and to -members of other races than the white. Only one State appears to have -considered it needful to guarantee by statutory enactment the right to -practice law to the Negro. An act of the Colorado[590] legislature in -1897 reads: “No persons shall be denied the right to practice as -aforesaid on account of race or sex.” - -In 1877, a Negro, with a license to practice law in Massachusetts and -the Circuit and District courts of the United States in the city of -Baltimore, applied for a license to practice in the State courts of -Maryland. The laws of Maryland[591] of 1872 limited the privilege of -admission to the bar to white male citizens. The Negro brought suit -because he was refused admission to the Maryland bar, and the Court of -Appeals of Maryland[592] held that the State had a right to limit the -privilege of practicing law to white males, holding that such a -limitation did not violate the Fourteenth Amendment. The court said, in -part: “The privilege of admission to the office of an attorney cannot be -said to be a right or immunity belonging to the citizen, but is governed -and regulated by the Legislature, which may prescribe the qualifications -required and designate the class of persons who may be admitted. The -power of regulating the admission of attorneys in the courts of a State -is one belonging to the State, and not to the Federal Government. As -said by Mr. Justice Bradley in Bradwell’s case:[593] ‘In the nature of -things it is not every citizen of every age, sex and condition that is -qualified for every calling and position. It is the prerogative of the -legislator to prescribe regulations founded on nature, reason and -experience, for the due admission of qualified persons to professions -and callings demanding special skill and confidence. This fairly belongs -to the police power of the State.’” According to the opinion in this -case, which has not been overruled so far as has been found, a State -legislature may, in the exercise of its police power, limit the -privilege of practicing law to white males or to white people, and thus -debar the Negro altogether. In the latest collection of Maryland laws, -however, that of 1904, no mention is made of race in the prescribed -qualifications for admission to the bar, but no express repeal has been -found in the annual statutes of the law of 1872 which limited the -privilege of practicing law to white males. The presumption is, however, -that Maryland, in common with the other States, now admits Negro -applicants on the same terms as white. - -It is generally known that Negro lawyers in the Southern States are few, -and it is considered that the field there for the Negro lawyer is not -promising. There were seven hundred and twenty-eight Negro lawyers in -the United States in 1900. The following notice in _The Emmanuel -Magazine_ of July 3, 1909, a monthly publication by a Negro in -Washington, North Carolina, is interesting in this connection: “Mr. E. -W. Canady, a respectable colored lawyer of Durham, N. C., not long since -received three thousand four hundred dollars for his service at the bar -in representing one case. This speaks more for him than anything else -possibly could. It shows the public’s confidence in his ability both as -a lawyer and a gentleman of integrity. It also shows that, at least in -some cases, a Negro can get justice in a Southern court, not only for -himself, but for others. The profession of law is the most difficult one -a colored man can follow in the South, because he must deal with white -judges, white jurors, white lawyers, and, sometimes, white witnesses, -and a public sentiment which is created by the whites. If he keep his -soul well equipoised and act gently and manfully—not bootlicking, but -seeking the peace of the city wherein he dwelleth, as Jeremiah advised -the Jews of Babylon to do, he can fare equally as well, if not better, -in the South as he can in the North. I was not a little surprised when I -asked Mr. Canady how the judges treated him and he said, ‘Oh, they’ll -treat you all right, if you act rightly; they are bound to follow the -law, you know.’ This should encourage more young men to take up this -profession.” - - - AS WITNESS - -When one comes to the Negro as a witness, he finds much legislation and -many judicial decisions, but they are confined largely to the first -years after Emancipation; that is, to the years during which the rights -and privileges of the Negro as a freeman were being defined and fixed. -The Negro slave had been either deemed incompetent as a witness, or, if -deemed competent, his testimony was admitted only in certain actions. - -In 1866, a white man in Kentucky was indicted for entering the house of -a Negro and committing larceny. At the time a Negro in that State could -not testify against a white man. A Circuit Court[594] of the United -States decided that it could take jurisdiction of this case under the -Civil Rights Bill of 1866, holding that the Negro, as a citizen, had the -right to be a witness in court. This appears to be the only case in -which the Federal court has adjudicated upon the right of a Negro to -testify. - -A law of Alabama[595] of 1865 made Negroes competent to testify only in -open court and only in cases, civil or criminal, to which a freedman, -free Negro, or mulatto, was a party. This was reënacted in 1867.[596] In -1886, a white man in Mobile was tried for the murder of a Negro. All the -witnesses for the prosecution were Negroes, and all for the defendant, -white people. The question of the color of witnesses was raised, and the -city court of Mobile charged: “... it is immaterial whether the -witnesses were white or black, if you believe beyond a reasonable doubt -that black witnesses are telling the truth, it is as much your duty to -convict on their evidence as though they were white.” There was an -exception to this charge, but the Supreme Court of Alabama[597] -overruled the exception. The present law of Alabama seems to be that the -color of the witness is immaterial in determining his competency. - -The Supreme Court of Arkansas,[598] in 1869, held that by the Civil -Rights Bill of 1866 the laws prohibiting Negroes from testifying became -inoperative. No other case on the point seems to have arisen in the -State. - -The Constitution[599] of Florida of 1865 permitted Negroes to testify -only in proceedings founded upon injury to a Negro or in cases affecting -the rights and remedies of Negroes. A statute[600] of the same year, -relative to testimony in general, provided that the testimony of Negroes -should not be taken by deposition in writing or upon written -interrogation, or “otherwise than in such manner as will enable the -court or jury to judge the credibility of the witness.” - -The Constitution[601] of Georgia of 1865 made it the duty of the general -assembly to provide laws prescribing in what cases the testimony of -Negroes should be admitted in the courts. This is the only reference to -the Negro as a witness found in the Georgia statutes or court reports. - -Kentucky,[602] in 1865, provided that Negroes and mulattoes should be -competent witnesses in all civil proceedings in which Negroes or -mulattoes were the only parties interested in the issue, and in all -criminal proceedings in which Negroes or mulattoes were the defendants. -In 1867, the Court of Appeals of Kentucky[603] held that the law of -Kentucky prohibiting a Negro from testifying against a white person was -still in force and was not rendered inoperative by the Civil Rights Bill -of 1866. - -The Constitution[604] of Maryland of 1867 provided that no person should -be incompetent as a witness on account of race or color unless -thereafter so declared by an act of the general assembly. The general -assembly appears not to have acted. - -Mississippi,[605] in 1865, provided that freedmen, free Negroes, and -mulattoes, should be competent in all civil cases to which a freedman, -free Negro, or mulatto was a party, and in criminal cases in which the -crime charged was alleged to have been committed by a white person upon -a freedman, free Negro, or mulatto. But in 1867, Negroes were given the -right to testify on the same terms as white people.[606] In 1865, South -Carolina[607] declared that Negroes might testify in cases to which a -person of color was a party. Tennessee,[608] the same year, provided -that Negroes and Indians should be competent as witnesses “in as full -measure as such persons are by an act of Congress competent witnesses in -all the courts of the United States.” - -The Constitution[609] of Texas of 1866 contains the following section: -“Africans and their descendants shall not be prohibited, on account of -their color or race, from testifying orally, as witnesses, in any case, -civil or criminal, involving the right of injury to, or crime against, -any of them in person or property, under the same rules of evidence that -may be applicable to the white race; the credibility of their testimony -to be determined by the court or jury hearing the same; and the -legislature shall have power to authorize them to testify as witnesses -in all other cases, under such regulations that may be prescribed, as to -facts hereafter occurring.” In pursuance of this authority, the -legislature[610] enacted that persons of color should not testify except -where a prosecution was against a person of color or where the alleged -offence was against the person or property of a person of color. But in -1868, the Supreme Court[611] of Texas held that the first section of the -Civil Rights Bill gave Negroes the right to testify, and in 1871 the -legislature[612] said that in the courts of that State there shall be no -exclusion of any witness on account of color. - -Virginia,[613] in 1866, provided that Negroes and Indians should be -competent to testify in cases in which a Negro or Indian was a party. -The testimony of Negroes had to be “_ore tenus_, and not by deposition.” -The next year, this law was repealed and a statute[614] enacted that -colored persons should be competent to testify “as if they were white.” - -Thus far the legislation on Negro testimony in the Southern States only -has been given. Similar questions have arisen in some of the other -States. Thus, by an early statute of California[615] “no Indian, or -person having one-half or more Indian blood, or Mongolian, or Chinese,” -was permitted to give evidence in favor of or against a white person. -The Supreme Court[616] of the State held in 1869 that this statute -violated the Civil Rights Bill and was therefore null and void. A -minority of the court, however, dissented on the ground that the Civil -Rights Bill itself was unconstitutional as interfering with the domestic -relations of citizens. - -A law of Indiana[617] of 1865 provided that all persons of competent -age, without distinction as to color or blood, should be competent as -witnesses, but provided that no Negro or mulatto who had come, or who -should thereafter come into this State in violation of the thirteenth -article of the Constitution of the State (prohibiting the immigration of -free Negroes) should, while said article continued in force, be -competent as a witness in any case in which a white person was a party -in interest. It also provided[618] that where a Negro, Indian, or person -excluded on account of mixed blood was a party in the case, his opponent -should be excluded. Nevada,[619] the same year, gave Negroes the right -to testify, but not in favor of or against a white person, and also -provided that the credibility of such Negro, black, or mulatto person -should be left entirely with the jury. Washington,[620] in 1866, -provided that no one should be incompetent as a witness “by reason of -having Negro blood.” But in 1869, the legislature[621] said that Indians -or persons having over one-half Indian blood should not be competent to -testify in an action or proceeding to which a white person was a party. -West Virginia[622] passed a law in 1866 that no person should be -incompetent as a witness on account of race or color. - -During the first years after Emancipation, the States were very doubtful -of the Negro’s fitness as a witness. In saying, as many of them did, -that he could be a witness only in cases in which a Negro was a party, -they were following the “Black Laws” before the War, to which reference -was made in the chapter on “The Black Laws of 1865–68.” That they were -doubtful of the testimony of the Negro is shown by the provision of the -act that the Negro’s credibility should be the subject of a special -charge by the court and that his testimony should be given orally. It -has been seen that some of the States soon repealed their laws -discriminating against the Negro as a witness, and that others enacted -statutes allowing him to testify upon the same terms and conditions as a -white person. In some of the States, the records do not show that the -right to testify in court has yet been given to the Negro. But it must -be taken as settled that, even in those States which are silent on the -subject, the Negro does have the same right to testify as the white -person. How much weight is actually given to his testimony is a matter -not of law, but of fact, to be determined by the trier of fact, or jury, -as the case may be. It may be said, in short, that, at present, the -right of the Negro to testify in court is precisely co-extensive with -the right of the white person. - - - AS JUROR - -Most of the legislation and suits concerning the Negro as a witness came -during the years between 1865 and 1870. Since then, the right of the -Negro to testify in court has been generally undisputed. With the Negro -as a juror, it has been different. There has not been a great deal of -legislation about the Negro as a juror, not even during the years -1865–70 which were so prolific of race legislation. But the court -reports from 1865 have been abundantly supplied with cases that have to -do with the Negro as a juror, not referring so much to his right to -serve as to his actual service on the jury. First, reference will be -made to the legislation on the topic, then a number of cases will be -discussed, most of which have turned upon a few fundamental principles -of constitutional law, and, finally, a word will be said of Negro jury -service as it actually exists. - -The fourth section of the Civil Rights Bill[623] of 1875 reads: “That no -citizen possessing all other qualifications which are or may be -prescribed by law shall be disqualified for service as grand or petit -juror in any court of the United States, or of any State, on account of -race, color, or previous condition of servitude, and any officer or -other person charged with any duty in the selection or summoning of -jurors who shall exclude or fail to summon any citizen for the cause -aforesaid shall, upon conviction thereof, be deemed guilty of a -misdemeanor, and be fined not more than five thousand dollars.” As was -seen in the previous chapter on the civil rights of Negroes, the first -sections of the Civil Rights Bill were declared unconstitutional in -1883. But, as will be seen in the discussion of the cases that have -arisen about the Negro as a juror, the section quoted above has stood -the test of constitutionality and is still a part of our Federal statute -law. - -When the States outside the South saw, in 1883, that the Federal -Government was impotent to secure civil rights to Negroes, they began to -enact Civil Rights Bills of their own, which virtually copied the -Federal statutes of 1875. The following States enacted statutes -practically the same as the Federal law referring to jury service: -Indiana,[624] in 1885; Michigan,[625] in 1885; New York,[626] in 1895; -Ohio,[627] in 1884, and Rhode Island,[628] in 1885. The only difference -between these State statutes and the Federal statute is in the -punishment for keeping a person off the jury because of his race or -color. Indiana and Michigan impose a fine of not less than one hundred -dollars or imprisonment of not more than thirty days, or both; New York -imposes a fine of from one hundred dollars to five hundred dollars or -imprisonment from thirty to ninety days, or both; Ohio imposes a fine -from fifty dollars to five hundred dollars or imprisonment between -thirty and ninety days, or both; Rhode Island imposes a fine not to -exceed one hundred dollars. This is practically all of the jury -legislation outside the South, which has been found. - -In Arkansas,[629] in 1867, a law granting certain rights to Negroes had -the following provision: “That nothing herein contained shall be -construed to repeal or modify any statute or common law usage of this -State respecting ... service on juries.” Though nothing is said of it, -one may infer that this meant that Negroes were not to sit on juries. A -Louisiana[630] law of 1880 states that, in the selection of jurors, -“there shall be no distinction made on account of race, color, or -previous condition.” This State at the time was in the hands of the -Reconstructionists. Mississippi,[631] in 1867, provided that freedmen -should not be competent to serve as petit or grand jurors. A law of -Tennessee[632] of 1866, giving Negroes the right to testify, had the -provision that it should not be construed to give colored persons the -right to sit on juries in that State. The same year, a law[633] -repealing certain other acts had the provision that nothing in the act -should be construed to admit persons of color to serve on the jury. But -in 1868, the Negroes of Tennessee[634] were given full rights in this -respect. This appears to be all of the legislation as to Negro jurors in -the South between 1865 and the present. - -That the statute of 1875 prohibiting the exclusion of persons from jury -service on account of race, color, or previous condition of servitude is -constitutional, has been decided in a series of cases before the Supreme -Court of the United States.[635] The mere fact that no Negroes are on a -certain jury does not indicate that the Fourteenth Amendment, under -which all these jury cases arise, has been violated; it must be shown -that the Negroes were kept off the jury consciously by State officials -because of their race, color, or previous condition.[636] The Fourteenth -Amendment is violated, however, when the officers of the State keep -Negroes off the juries for these causes. The Supreme Court[637] of the -United States said in 1899: “Whenever by an action of a State, whether -through its legislature, through its courts, or through its executive or -administrative officers, all persons of the African race are excluded, -solely because of their race or color, from serving as grand jurors in -the criminal prosecution of a person of the African race, the equal -protection of the laws is denied to him contrary to the Fourteenth -Amendment to the Constitution of the United States.” - -A custom seems to have grown up among some lawyers, particularly in the -South, to move to quash the indictment whenever a Negro is on trial for -a crime and there are no Negroes on the grand jury. With almost absolute -uniformity, the State courts have held that there is no ground for -quashing the indictment unless it is shown that Negroes were kept off -the juries purposely and because of their race or color.[638] The cases -show also that, if a Negro is kept off the grand jury because of his -race, there is ground for quashing the indictment. Texas has furnished -far more of these jury cases than any other Southern State. Wherever the -jury commissioners have betrayed in any way the fact that they kept -Negroes off the juries because of their race, the indictment has been -quashed. A few instances will suffice. In one case the commissioners -said that they did not put Negroes on the jury because they considered -them unfit; this was held[639] to be in violation of the Fourteenth -Amendment. When, again, they said that they kept Negroes off the juries -because their presence “would be offensive to the white jurors,” the -indictment was quashed.[640] In a county of 11,000 voters in Texas, -about 1,000 of them were Negroes, of whom 600 or 700 were competent to -be jurors. No Negro had ever been on a jury there. The commissioners -admitted that they would not put a Negro on if they knew it. The -indictment was quashed.[641] In another case,[642] they said they would -not put Negroes on juries because it would create a conflict between the -races which would injure the Negroes. This was held a sufficient -admission to quash the indictment. In a case arising as late as 1903, -the commissioners undertook to satisfy the Fourteenth Amendment by -putting on a Negro. They put on a Negro who had either moved out of the -county or was dead. This was held to be enough of a race discrimination -to quash the indictment.[643] - -No matter how large a percentage of the population is colored, if it is -not proved that Negroes were kept off the jury because of race or color, -there is no ground for objection. Thus, it was found that a Negro had -never been known to sit on a grand jury in Bexar County, Texas, where -there were 7,000 or 8,000 possible jurors, of whom 600 or 700 were -colored. It was not proved, however, that they were kept off on account -of race or color, and it was held that there was no ground for quashing -an indictment.[644] - -The following interesting case arose in Utah in 1900: A white person -refused to serve on a jury with a Negro, and wrote a note making a -complaint. The Negro was thereupon excluded from the jury. Later, the -Negro brought an action against the white man to recover damages to the -extent of the jury fees. The court held[645] that, while color was not a -test of one’s fitness to be a juror, a written objection to serve on a -jury with a Negro is no ground for an action for damages by a colored -man. - -The latest case of race distinction in juries comes from Oklahoma. There -were four Negroes on a jury, and for that reason the judge discharged -the jury. He said that the State had separate cars, separate schools, -and separate tables for Negroes and whites, and “he would not insult -white men by making them serve on a jury with Negroes.” The case is so -recent as to be reported, as yet, only in the newspapers.[646] - -The constitutional right of the Negro to serve on a jury or to be tried -before a jury composed, in whole or in part, of Negroes, is well -expressed in a recent Texas case[647] as follows: “It is not a question -as to the right of a Negro, or any number of Negroes, to sit on a grand -jury, that the Fourteenth Amendment to the Constitution of the United -State was intended to provide for; but it was intended, where a Negro -was on trial, to prevent discrimination against the Negro race in the -formation of the grand jury, which presented the indictment, and only in -case Negroes are intentionally excluded from the grand jury is he denied -the equal protection of the laws. It was never intended by the -Fourteenth Amendment to guaranty a Negro defendant a full Negro grand -jury, or to guaranty to him any particular number of grand jurors, but -it was intended to prevent intentional exclusion from the grand jury.” - - - _Actual Jury Service by Negroes in South_ - -In treating the Negro as a juror, the writer departed from the habit of -confining his discussion to the race distinctions manifested in statutes -and judicial reports. As he went through the statutes and reports, these -questions arose in his mind: Do Negroes actually serve on the juries in -those communities where they are numerous? If so, what satisfaction have -they given? In order to obtain answers to these questions, he sent out -letters to the clerks of court in every county in the Southern States in -which Negroes constituted one-half or more of the population in 1900. -Over three hundred letters were sent out containing the following -inquiry: “I wish to know to what extent Negroes actually serve on -juries, how Negro jurors are regarded by the court and the people at -large, whether the number of colored jurors has increased or decreased -in late years, what has been the experience of your county as to the -satisfaction of colored jurors?” Of course, as many replies were not -received; but the replies that were received indicate the extent of -Negro jury service in the Southern States. These replies will be quoted -from freely in each case, the State and the number of Negroes and white -people in the particular county will be given, but not the name of the -county. - -_Alabama._—County No. 1, 10,000 white people, 13,000 Negroes: “Negroes -are not allowed to sit upon juries in this county. It sometimes happens -that names of Negroes are placed in our jury-box by mistake on the part -of the jury commissioners, and are regularly drawn to serve as jurors; -this, however, is a very rare occurrence. Once in the past four years, a -Negro was drawn as a grand juror (by mistake) who appeared and insisted -upon the court’s impaneling him with other jurors, which was done in -accordance with law, the court having no legal right to discharge or -excuse him. My recollection is he served two days, when he was taken out -at night and severely beaten, and was then discharged on his own -petition by the court. This will convey to your mind that Negro jurors -are not very wholesomely regarded and tolerated in this county. The fact -is, Negroes have never been or never will be allowed to sit on juries in -this county.” - -County No. 2, 5,000 white people, 21,000 Negroes: “I have lived in this -county for more than sixty-six years, and we have never had a Negro -juror in that time, nor do I ever expect to see one in the jury-box in -this county. Our adjoining counties have all had them, a number of years -ago.” - -County No. 3, 5,000 white people, 27,000 Negroes: “Negroes do not serve -on juries in our courts. Such a state of affairs would be considered by -the people of this county as farcical. The Lord defend us from having -jurors of a race of people who are absolutely without regard for an -oath.” - -_Arkansas._—County No. 1, 1,800 white people, 12,600 Negroes: “No -Negroes serve in this county on regular juries. Sometimes when hard to -obtain white jurors, a few Negroes may be taken in cases in J. P. -Courts, but not often. Even this habit is smaller than formerly, falling -off every year. Colored jurors [are] not looked upon as intelligent, and -very few as honest and possessing integrity, and they, as a rule, are -also uneducated.” - -County No. 2, 14,000 white people, 29,800 Negroes: “No Negroes have -served on juries in the court of this county since 1894. Prior to that -time it was a common thing for them to be in the majority. I believe the -Negroes are fairly well pleased with the verdicts of all white jurors, -as the question is nearly always propounded to the juror, when it is a -Negro defendant: ‘Would you give the defendant the same consideration as -if he was a white man?’” - -_Florida._—County No. 1, 17,000 white people, 22,000 Negroes: “It has -been many years since a Negro sat upon a jury in this court, and the -probability is, it will be many more. Negroes are not regarded as good -jurors, and I believe it to be a fact that a Negro would prefer being -tried by a white jury than a mixed jury, or a jury composed wholly of -Negroes; this applies to both civil and criminal matters.” - -County No. 2, 11,000 white people, 12,000 Negroes: “Negroes do not sit -on the jury in this county, and have not since the days of ‘Carpet-Bag -Rule.’ I do not think a county in this State permits a Negro juryman.” - -County No. 3, 6,000 white people, 8,000 Negroes: “Negro jurymen or other -officers are a thing of the past in our county and State. The oldest -person can hardly recall the time when we had such in our county, with -the exception of a very few years just after the war.” - -County No. 4, 9,000 white people, 15,000 Negroes: “... in the circuit -court of the State it is very seldom that a Negro serves on the jury. -Negroes, as a rule, are not good jurors, for the reason that they are -usually very ignorant and can be easily influenced by others in the -rendering of their verdict. The Negro jurors, so far as the State courts -are concerned, are almost eliminated. In the Federal courts of the -State, a large number of Negroes serve on the juries....” - -County No. 5, 2,300 white people, 2,700 Negroes: “The laws of this State -require that the county commissioners select not less than 290 nor more -than 310 ‘persons of approved integrity, fair character, sound judgment -and intelligence’ to serve as jurors. Therefore, because most of the -elder Negroes are illiterate and because most of the younger ones that -remain here are of other than fair character, there are but few Negroes, -about one per cent., whose names are drawn or selected to go into the -jury-box. If one is drawn as juror ... he serves as such juror, and no -one has ever objected to one so far as I know of. My experience covers a -period of ten years, during which time ... we have had only two Negroes -drawn as jurors. No person has ever appealed a case on account of not -having a Negro on the jury, nor has there been anything said outside on -account of the practical elimination of the Negro from jury duty.” - -_Georgia._—County No. 1, 5,000 white people, 24,000 Negroes: “No Negroes -serve on our jury. There are no Negro names in the jury-box.” - -County No. 2, 5,900 white people, 6,800 Negroes: “No Negroes have ever -been placed in the jury-box in this county. They are not regarded as -competent or reliable as jurors, hence they have not [been] tried as -such in this county.” - -County No. 3, 5,000 white people, 12,000 Negroes: “Negroes do not serve -as jurors in this county, for several reasons to wit: Incompetency, -strong prejudices, superstitiousness, and general unfitness in regard to -equity.... It happens frequently they are drawn and serve on juries in -what we term here United States courts....” - -County No. 4, 1,500 white people, 8,800 Negroes: “Negroes do not serve -on the juries in this county.... None of the Negroes in this county have -ever been placed in such [jury] boxes.” - -County No. 5, 4,000 white people, 9,000 Negroes: “We do not have Negroes -as jurors; we tried them and found them incompetent and otherwise -disqualified.” - -County No. 6, 7,000 white people, 11,000 Negroes: “No Negroes serve on -the jury in this county.” - -County No. 7, 4,800 white people, 5,000 Negroes: “Not a blooming one -[Negro juror], and not likely to be.” - -County No. 8, 2,000 white people, 5,800 Negroes: “There are no Negro -jurors in this county.” - -County No. 9, 6,000 white people, 7,000 Negroes: “I have lived here all -my life and do not know that there has been any Negro who has served on -the jury in this county. I am quite sure there has been none for the -past 20 or 30 years.” - -County No. 10, 2,500 white people, 4,000 Negroes: “... There has never -been a Negro juror to serve in this county nor any other county -surrounding this to my knowledge. We revise our jury-boxes biennially, -and never have yet put a Negro’s name on the list of jurors. And I think -this is the practice all over the State. I am satisfied if one should be -put on any jury that the white men on would flatly refuse to serve at -all....” - -County No. 11, 5,000 white people, 6,000 Negroes: “... There is no -record of Negroes ever serving as jurors in this county.” - -_Kentucky._—No replies have come from the seven counties of Kentucky in -which Negroes constitute a large percentage of the population. But the -following is quoted from a letter from the Assistant Attorney General of -the State: “Negro jurors are sometimes selected in various parts of the -State, and I presume all over the State. Twenty years ago the custom was -more prevalent than at present of putting Negroes on the juries. They -were the best class of Negroes, and I am reliably informed that in -various parts of the State the Negroes themselves requested to be left -off the juries, which may account for the fact that the practice seems -to have fallen into disuse.” - -_Louisiana._—Parish No. 1, 3,900 white people, 12,700 Negroes: “... we -now have no Negroes to serve on the jury here at all. Some years ago we -had Negro jurors, but they proved so unsatisfactory that they were -gradually dropped out and for several years [we] have had no Negroes at -all.” - -Parish No. 2, 8,800 white people, 11,300 Negroes: “... Negroes serve as -jurors in this parish to a limited extent. The jury commissioners, when -they know of an exceptionally good, honest, sober and industrious Negro, -have no objections to placing his name in the jury-box. It is true, -however, that the number is very limited, owing to the fact that very -few Negroes will come to the standard as far as the above qualifications -are concerned. Out of the 300 names in the jury-box from which we draw -our juries, there are about a dozen Negroes. The Negroes as jurors do -not give any trouble; they always follow the suggestions and advice of -the white jurors.” - -Parish No. 3, 11,000 white people, 17,800 Negroes: “... in this parish -Negroes have served on both our grand and petit juries ever since the -Civil War. Only the very best of our Negroes are drawn on the jury; they -usually constitute about one-half of the panel on the petit jury and on -the grand jury they are always represented, but in a much smaller -proportion. The number of Negroes with us fit for jury service is not -increasing as one would think would be the case considering their -advantage for an education. They render very good service, rather prone -to convict in serious personal injury cases, inflict capital punishment -more readily than white juries and generally want all law enforced, -especially against bad men of their own race, as they know this is their -best protection.” - -Parish No. 4, 2,000 white people, 13,700 Negroes: “... we have had one -Negro on the petit jury the last criminal term of court in a murder case -of another Negro. He is the only Negro that has sat on the jury for two -or three years in our parish. We do not allow any Negroes to sit on the -grand jury in our parish. There are three names of Negroes in the -jury-box that we draw our general venire from, as well as I remember, -possibly one or two more, but not more than that number, as well as I -remember. We used to have as many Negroes as white jurors here ten or -twelve years ago.” - -_Mississippi._—County No. 1, 4,000 white people, 31,000 Negroes: “... -Negroes do serve on juries in our circuit courts, also in our -magistrate’s court. As to the extent Negro jurors serve Negro jurors are -decreasing in late years. It requires certain qualifications to make -them competent under the Constitution of the State of Mississippi, -to-wit: Every male inhabitant of the State, except idiots, insane -persons, and Indians not taxed, who is a citizen of the United States, -twenty-one years old and upwards, who resided in the State two years, -and one year in the election district, or in the incorporated city or -town in which he offers to vote, and who is duly registered, and has -never been convicted of bribery, burglary, theft, arson, obtaining money -or goods under false pretenses, perjury, forgery, embezzlement or -bigamy, and who has paid, on or before the first day of February of the -year in which he shall offer to vote, all taxes which have been legally -required of him, and is able to read any section of the Constitution of -the State, or is able to understand the same, when read to him, is a -qualified voter, and can be a member of either our grand jury or a petit -jury if drawn as such. Our Negro jurors are either ministers or school -teachers, with some farmers. The majority of them fail to pay their -taxes, which disqualifies them from jury service. Negro jurors are not -regarded by our courts as good jurymen, but we are compelled to use them -when drawn and they are qualified to serve.” - -County No. 2, 8,000 white people, 11,700 Negroes: “... Negroes sitting -on jury and paying poll-tax is a thing of the past in my county. Only -about 25 or 30 [are] registered. Disfranchised on educational -qualification.” - -County No. 3, 3,000 white people, 23,000 Negroes: “In my judicial -district there are five counties, in three of which Negroes serve upon -the juries in about the proportion that they are qualified under the -law. The qualifications for jurors are very strict in this State and -comparatively few Negroes can qualify legally. In limited numbers they -make very satisfactory jurors when the rights of their people are -involved. As a rule, a Negro does not like to try a white man’s case; -they are much more inclined to convict Negroes charged with crime than -are the white jurors, and Negro defendants always challenge Negro -jurors. In the ‘Black Belt’ of Mississippi, a Negro can always receive a -fair trial in the courts, but this is not so certain in the white -counties. In the two counties where Negroes do not serve upon the -juries, there are practically no Negroes qualified under the law, -because none are registered voters.” - -County No. 4, 6,000 white people, 18,000 Negroes: “We don’t have any -Negro jurors at all in this county. We have very few registered Negroes -in the county.” - -County No. 5, 7,000 white people, 7,000 Negroes: “... Negroes do sit on -juries in this county at times. They have a right to serve as jurors -when they have duly registered and paid their tax and some other -qualifications.... But the Board of Supervisors draws the names of 200 -or more persons on the first Monday of January in each year and puts -them in a box, so many for each supervisor’s district. But of late years -the supervisors have not put many names of Negroes in the jury-box; -therefore, we have not had very [many] Negro jurors. But we have one or -two Negro jurors nearly every term of our court [circuit court]....” - -County No. 6, 8,000 white people, 28,700 Negroes: “The jury law in this -State makes no discrimination on account of race, color, or previous -condition of servitude, and no man is excluded from the jury on account -of his color.... In some of the counties of the State, the boards of -supervisors select some Negroes for jury service, but the great trouble -is, there are comparatively few Negroes in any county, and none in some -of the counties, who can measure up to the qualifications prescribed by -law.... The criminal element in Mississippi is composed largely of the -Negro race, and as a matter of fact, the persons of that race charged -with crime and the lawyers who defend them, the large majority of whom -are of the white race, do not want Negroes on the jury, and Negroes are -almost invariably challenged. If Negroes chance to be summoned on a -special venire in a capital case with white men, they [the Negroes] -disqualify to avoid service, sometimes by claiming that they are not -registered voters, but generally by claiming that they are opposed to -the death penalty. - -“The following incident happened in one of our courts and may help to -shed some light on the subject-matter wanted: A Negro was indicted for -manslaughter. He was too poor to employ counsel to conduct his case, and -it not being a capital case, the court could not appoint counsel for -him, and told him so. He said he would do the best he could without a -lawyer, and the court told him of his rights under the law, that he -could look over the jury, and of his right to challenge four of them if -he was dissatisfied with the panel as it stood. There were four Negroes -on the jury, and he very promptly advised the court that he was not -satisfied; the court told him he had a right to object to four of them, -and he very quickly told the court, ‘Ef dat is so, dem niggers can stand -aside.’ They were excused by the court, and the sheriff was ordered to -complete the panel from the very best citizens to be had, which was -done, the jury being, when complete, all white men. The defendant -addressed the jury in his own defence and was acquitted. - -“In my county ... we have had no Negroes on the jury for the past 15 -years or more. We have some 30,000 colored population in this -county, ... and we have only about 175 registered in the county. The -board of supervisors, as a rule, does not place their names in the box, -for the reason that, as above stated, they will not serve if any way out -of it can be found.” - -County No. 7, 1,000 white people, 4,000 Negroes: “... we have no Negro -jurors in this county at all.” - -County No. 8, 8,000 white people, 12,000 Negroes: “There are only 400 -white qualified electors in this county, only about 30 qualified Negro -electors. We never have a term of court without having several Negroes -on it, besides we always have Negroes on the trial juries. It is not -often that they sit on a case unless a Negro lawyer has one side of it. -They do not believe in convicting one of their color. They are -objectionable in every sense of the word. They are not regarded by the -other members of the jury. Negro jurors are on the increase in recent -years....” - -County No. 9, 4,000 white people, 12,000 Negroes: “No Negroes have -served on jury in this county since Republican party.” - -_Missouri._—County No. 1, 24,000 white people, 4,500 Negroes: “... As -far as I am informed, and certainly since I have been connected with the -court here, no Negroes have served as jurors either in our court or in -any justice of the peace court in this county. While probably under our -laws Negroes would be legal jurors, the county court of this county will -not draw them as jurors, and the Sheriff, when he has to get jurors, -will not summon them. And I do not believe our lawyers here would permit -a Negro to remain on a jury before which they would have to try a case. -Further, I am sure that no white man here would serve on a jury with a -Negro, even though his refusal to so serve would subject him to a jail -sentence....” - -County No. 2, 21,000 white people, 4,000 Negroes: “... we have never -known of a Negro juror in ... county.” - -County No. 3, 28,000 white people, 4,700 Negroes: “Negroes never have -this burden heaped upon them in this State.” - -County No. 4, 540,000 white people, 35,500 Negroes: “We do not have many -Negro jurors. I have occupied this post but six months, and in that time -we have had but two Negroes called for service. Our jury canvass is made -biennially. All names placed in the wheel are taken just as drawn from -the same on orders from the various divisions of court. A few of the -more intelligent Negroes are placed on the jury list. I made inquiry -when two Negroes served on a jury last week. The other jurors did not -seem to feel any antipathy. Of course, a little surprise was manifested -at seeing them in court when their names were called. Neither the -attorneys for the plaintiff nor [for] the defence challenged them but -accepted them on the jury. My predecessors never placed many of the -Negroes’ names in the wheel as I understand from them.” This letter was -from the jury commissioner, not the clerk of the court. - -_North Carolina._—County No. 1, 6,800 white people, 8,000 Negroes: “... -of late years very few Negroes serve on the juries in this county for -the reasons that they are an illiterate race and moral character not -what it should be. Further, he is easily influenced, deciding with a -juror whom he may like instead of weighing the evidence and deciding -accordingly. The number of Negro jurors has decreased for the past few -years on account of the Negro of to-day [being] morally not as good as -the Negro of several years ago.” - -County No. 2, 11,000 white people, 19,000 Negroes: “I will say that -Negroes do not serve on the jury in this county and have not since we, -the white people, got the government in our hands. When the Republican -party was in power Negroes were drawn, both regular and talis jurors, -and not one out of one hundred was a competent juror, but, strange to -say, when a Negro was on trial, he would always prefer the white men to -try his case.” - -County No. 3, 5,800 white people, 8,300 Negroes: “Negroes occasionally -serve on juries in ... county, but not to as great extent as they did -before the passage of the Amendment [the suffrage amendment in 1900]. -The County Commissioners have been more particular about the names that -are left in the box from which jurors are drawn. Only the best, most -reliable and most intelligent Negroes are left in the box. Sometimes it -happens that a few are called as talismen, but not then until the -sheriff has exhausted his best efforts to get white men. Those called -are very apt to be good, reliable men, and with a majority of white men -in the jury-box are not disposed or able to do wrong. My experience as -clerk for 20 years is that they make good jurors, and are apt to be -disposed, in criminal actions, to execute the law even against their own -race. Judge ... says that white men on the jury are everywhere disposed -to lean toward a Negro litigant, especially if the Negro is of the -old-class, before-the-war Negro gentleman and the white man is of these -later days ‘common trash.’ I am told by the judges that in some counties -the sheriffs would not dare to call a Negro as a talisman even, but, as -I have said, we have them not very frequently and without complaint. I -notice that the opposing lawyers are slow in challenging them when so -called....” - -County No. 4, 12,600 white people, 13,100 Negroes: “... Negroes do not -serve on juries in our County, nor are they allowed to vote or take any -part in county or municipal affairs....” - -County No. 5, 5,700 white people, 6,700 Negroes: “A colored man has -never served on the jury in this county, neither has a colored man ever -voted in this county.” - -County No. 6, 6,000 white people, 13,000 Negroes: “... We still have -some Negro jurors at every term of our courts, but not near so many as -in former years. Our County Commissioners ... are very careful in -putting the names of only good, respectable Negroes in the jury box. The -consequence is we have very few Negroes on our juries, but those we have -are well disposed and the most intelligent Negroes of the county, and -make very acceptable jurors. I have been struck with the fact that our -lawyers in selecting the jury for both criminal and civil cases, seldom -ever object to the Negroes who are on the regular panel. If this is -always kept up, with only the best and most intelligent Negroes in the -county in the jury-box, all will be well and our people will not object. -But in former years, when sometimes the majority of the jury would be -Negroes, there was great dissatisfaction.” - -_Oklahoma._—County No. 1, 15,000 white people, 2,400 Negroes: “Negroes -have served on both grand and petit juries nearly every term of court -with the exception of the last two terms of the district court. There -are some Negro names in the box, but they did not happen to be drawn by -the Sheriff or myself. The men who have sat have given satisfaction to -the litigants, but have been objectionable to the other jurors. Where it -has come to a locked-up jury, and where they have to eat and be closely -confined with the white man, I have heard some complaint. The court and -officials who are all white Republicans—except the sheriff—treat Negroes -with utmost fairness.” - -_South Carolina._—County No. 1, 9,000 white people, 19,000 Negroes: “... -I have only been in office for [the] last four years, but since I have -been in office I have had a good many Negroes on juries. Year before -last I had Negroes on juries three consecutive courts, and every year I -have several of them. We always put the names of those qualified to act -in our jury-box, but it is a bad condition of affairs when you go over -the Negroes of the county, and find how few are qualified to act. The -Negro jurors have increased in our section.” - -County No. 2, 5,000 white people, 17,000 Negroes: “... The number of -Negro jurors has decreased in late years. I do not think that a great -number of Negro jurors would impress very favorably the court and the -people at large.” - -County No. 3, 10,000 white people, 19,000 Negroes: “... I do not -remember ever to have seen a Negro on the jury in this county. I am -told, however, that one served occasionally for only awhile after 1876.” - -County No. 4, 18,000 white people, 41,000 Negroes: “In my experience -covering ten years or more, I find it difficult to get a large array of -competent jurors. We are careful and painstaking in making our lists; -therefore, we never allow a Negro to serve for the reason of the general -moral unfitness, and general depravity.” - -County No. 6, 20,000 white people, 22,000 Negroes: “No Negroes serve on -the jury in the county courts in this county.” - -_Tennessee._—No information about Negro jury service in Tennessee has -been obtainable. - -_Texas._—County No. 1, 6,300 white people, 7,800 Negroes: “... As to -Negro jurors ... as a rule, in the County Court about one-tenth are -Negroes, and they are rarely ever discriminated against. I do not recall -a case where they have been rejected on account of race or color by -white men. As a rule, they are not so acceptable to Negro litigants as -they are to those of the other races. There are a larger per cent. of -Negroes in the district court, and there is rarely any criticism. In -fact, no prejudice exists here against them as jurors, largely from the -fact that only our best Negro citizens are drawn on the juries.... I -think the per cent. of Negro jurors has increased. They are simply -accepted or struck off as any other citizen. I believe more are accepted -by white than colored litigants. They have served on some of our very -important cases....” - -County No. 2, 14,000 white people, 9,000 Negroes: “We haven’t had any -Negroes on the jury in ... county for several years. They used to have a -few on the jury several years ago, so I have been informed, but none in -the last few years.” - -County No. 3, 21,000 white people, 16,000 Negroes: “We do not use Negro -jurors in our State or county courts at all.” - -County No. 4, 7,000 white people, 8,000 Negroes: “... It has been the -rule of ... county to have Negroes on the grand and petit juries. They -have given satisfaction. The colored jurors are represented by about 25 -per cent. of the jurors.” - -The cases quoted from in the earlier part of this chapter show even -better than these letters the attitude of Texas toward Negro jurors. - -_Virginia._—County No. 1, 6,700 white people, 8,500 Negroes: “No Negro -juror in this court for ten years, and I don’t think that there will -ever be....” - -County No. 2, 3,900 white people, 5,500 Negroes: “... from -reconstruction days up to ten or twelve years ago a few Negroes served -on the jury of this county. My impression is ... that they made very -little impression in the jury, and they were completely dominated by -white men in said bodies, who were, of course, greatly in the majority. -At this time no Negro jurors are drawn at all.” - -County No. 3, 3,000 white people, 6,000 Negroes: “... there are no -Negroes on our jury list. On several occasions when we had to make up a -jury we have put a few on. The impression is here that it does not do to -mix the races even in the jury-box.” - -County No. 4, 17,900 white people, 19,200 Negroes: “Negroes under our -Constitution are not debarred from serving as jurors in Virginia, but -owing to the nature and disposition of the Negro to follow and not lead, -we seldom place them on trial juries. The number of colored jurors has -decreased in the last ten years.” - -County No. 5, 3,200 white people, 4,900 Negroes: “Negroes have for a -number of years been serving on the juries in this county, and, as far -as I have been able to learn, have generally given satisfactory -service.... There is hardly ever a jury drawn without some Negroes being -on it. Of course, the judge selects those Negroes who are best qualified -for the service.... Naturally, the number of Negro jurors is not near so -large as that of the whites, for the reason ... that all jurors are -selected with reference to their qualifications.” - -County No. 6, 4,000 white people, 4,800 Negroes: “... we never have any -Negroes on juries in my county. Haven’t had any for about fifteen -years....” - -County No. 7, 10,000 white people, 13,000 Negroes: “... Negroes do not -serve on juries in this county, and it has been about twenty years since -they did jury service here.” - -County No. 8, 2,300 white people, 4,400 Negroes: “Since the adoption of -the new Constitution for this State ... Negroes no longer serve as -jurors in this county. Prior to that time they appeared regularly in our -courts, and made good jurors in the civil as well as criminal business. -Of course, in selecting them, only the best of their race were chosen. -And I can’t recall an instance, with an experience of sixteen years as -clerk of the courts, that any objection was ever raised against them as -jurors.” - -County No. 9, 5,500 white people, 5,600 Negroes: “We don’t have colored -men on jury in this county.” - -County No. 10, 9,000 white people, 13,600 Negroes: “Negroes are not -allowed to serve on juries in this county.” - -County No. 11, 1,100 white people, 3,700 Negroes: “We have not had any -Negroes to serve on the jury in this county for twelve or fifteen years, -and when they did, they gave very poor satisfaction.” - -_Summary_: With such incomplete statistics, conclusions as to the actual -service of the Negro as a juror can hardly be more than guesses. Some of -the clerks of court say that the number of Negro jurors in their -counties is increasing; others, that it is decreasing. Some say that -race does not come into the consideration of fitness for jury service; -others, that Negroes are not allowed on juries at all. Some say that -Negro jurors have given satisfaction; others, that they have been -scarcely more than figureheads following the lead of white jurors. -Several of the clerks think that Negro litigants are reluctant to have -Negro jurors sit on their cases. Some feel that Negro jurors are more -prone to convict than white jurors are. It is undoubtedly true that -there are not as many Negroes qualified for jury service under the laws -of the Southern States as there were twenty-five years ago, say. Usually -one must be an elector to be qualified for jury service. The great -majority of the Negroes have been unable to satisfy the suffrage tests -and have been disfranchised. They are, consequently, not electors and -not eligible to serve as jurors. Hence, if the selection of jurors is -conducted with absolute impartiality, there will be comparatively few -Negroes retained. - - - SEPARATE COURTS - -South Carolina appears to be the only State which has ever provided a -separate court for the trial of cases in which Negroes have interests at -issue. That was called the District Court, provided for by a -statute[648] approved December 19, 1865, which statute was repealed -September 21, 1866; so the law was in force less than a year. The -seventh section of the act of forty-nine sections is: “The District -Court shall have exclusive jurisdiction, subject to appeal, of all civil -cases where one or both of the parties are persons of color, and of all -criminal cases wherein the accused is a person of color, and also of all -cases of misdemeanor affecting the person or property of a person of -color, and of all cases of bastardy, and of all cases of vagrancy, not -tried before a Magistrate....” The Magistrate was given jurisdiction -over small disputes, controversies and complaints that arose in his -neighborhood between persons of color, or between persons of color and -white persons, and of petty misdemeanors committed by or toward persons -of color, between master and servant, between master and apprentice, and -between employer and laborer, and civil suits involving not over twenty -dollars in which a person of color was a party. An indictment of a white -person for the homicide of a person of color had to be tried in the -regular superior court; and so had all other indictments in which a -white person was accused of a capital felony affecting the person or -property of a person of color. In these forty-nine sections the -jurisdiction of this special court for persons of color is worked out in -detail; but inasmuch as the law was in force less than a year and was -one of the ephemeral “Black Laws” already considered, there is no need -to go into it further. Suffice it to say that in the South at present, -as in other sections, the people of all races and colors have their -rights adjudicated by the same court. - - - DIFFERENT PUNISHMENTS - -Alabama, Florida, and Georgia prescribe a heavier punishment for -fornication and adultery between white people and Negroes than between -members of the same race. On first consideration this appears to be a -case of different punishment. As was said by the Supreme Court of -Alabama[649]: “The fact that a different punishment is affixed to the -offence of adultery when committed between a Negro and a white person, -and when committed between two white persons or two Negroes, does not -constitute a discrimination against or in favor of either race. The -discrimination is not directed against the person of any particular -color or race, but against the offence, the nature of which is -determined by the opposite colors of the cohabiting parties. The -punishment of each offending party, white and black, is precisely the -same.” The constitutionality of these statutes as to cohabitation -between persons of different races has been upheld by the Supreme Court -of the United States.[650] - -The following are instances of race distinction in the matter of -offences and punishment. South Carolina,[651] in 1865, said that a -person of color who committed assault upon a white woman with intent to -ravish her, or who had sexual intercourse with a white woman by -impersonating her husband, should be guilty of a felony “without benefit -of clergy.” Florida[652] made it a capital crime to assault a white -female with intent to commit rape or to be accessory thereto. -Kentucky[653] provided that all persons, without distinction of color, -would be subject to the same pains and penalties for felonies and -misdemeanors, adding: “The laws now in force for the punishment of -Negroes and mulattoes for rape on white women are hereby continued in -force.” This was amended[654] in 1869, but the offence was still against -white women. The race distinction in these statutes lies in the fact -that heavy punishment was prescribed for an assault upon a white woman, -but no such protection was accorded a Negro woman. - -South Carolina made it a felony “with benefit of clergy” for a servant -to steal a chattel, money, or valuable security to the value of ten -dollars belonging to, or in the possession or power of his master or -employer. It was an “aggravated misdemeanor” for a servant to steal such -property below the value of five dollars. The servant had no right to -sell any farm produce without the written evidence from his master or -the District Judge or Magistrate that he had a right to do so. But all -such race distinctions in the matter of punishment passed away, as did -the other “Black Laws,” in 1866. - -There are certain statutes as to crimes which, though they do not -mention the Negro in so many words, are thought by many to have peculiar -application to him. The vagrancy laws of the Southern States, for -instance, have been considered as directed primarily against Negroes. -Some of the States made it a crime for one to sell cotton in bags -between certain hours of the night. This was probably a result of the -habit attributed to the Negro of hiding cotton in the jambs of the -fences and woods in the daytime to take to the cross-roads store at -night. Missouri,[655] in 1903, made chicken-stealing a felony punishable -by imprisonment for five years, or a fine of two hundred dollars. The -next year, Kentucky[656] passed the following statute: “That if any -person shall steal chickens, turkeys, ducks, or other fowls of the value -of two dollars, or more, he shall be confined in the penitentiary not -less than one nor more than five years.” Whether this is an indirect -race distinction or not, the writer will not take it upon himself to -decide. - -Some of the States have enacted statutes to the effect that the -punishment for the members of all races shall be the same for the same -offence. Delaware[657] did so in 1867. In Mississippi,[658] in 1865, -Negroes were given the right to procure the arrest of a white person; -but, if the arrest were false and malicious, the Negro must pay all the -costs, be fined not over fifty dollars, and imprisoned not over twenty -days. In 1867, however, a statute said that Negroes must have the same -punishment as white people. South Carolina,[659] as has been seen, -repealed all laws prescribing different punishment for Negroes. - -The following interesting bit of news is taken from an Associated Press -report of July 21, 1909: “Mobile, Ala.—The commissioners to-day -established a curfew law for Negroes. Commencing to-night, all the -blacks must be at home or in bed at 10 P.M. Any of them caught wandering -at large will be locked up. This action is due to an epidemic of -hold-ups perpetrated by Negroes.” - -A recent instance of race distinction in the court room seems to come -from New York. A Pullman porter, named Griffin, was arrested in -Montreal, charged with stealing a pocket-book, but the charge was not -substantiated and he was released. He thereupon brought suit against -Daniel F. Brady, who caused his arrest, and obtained a verdict for two -thousand five hundred dollars in damages. The Supreme Court of New York -reduced the damages from two thousand five hundred dollars to three -hundred dollars. Upon an appeal by Griffin, the appellate division of -the Supreme Court sustained the order reducing the damages. The -following is a part of the opinion of Judge Drugo of the Supreme -Court[660] whose order was sustained: “You cannot say that he [Griffin] -is just the same as a white man, when you come to say how much his name -will suffer. He might suffer more. But, after all, what are the -probabilities about it? Is it likely that when a colored man is arrested -and imprisoned he feels just as much shame as a white man of any -circumstance might? - -“I think if you were to take the Mayor of the city and arrest him he -would feel very much more humiliated than this porter, from the fact -that he was the Mayor and not a colored man, for if a colored man he -might not feel quite as much humiliation and shame. - -“In one sense a colored man is just as good as a white man, for the law -says he is, but he has not the same amount of injury under all -circumstances that a white man would have. Maybe in a colored community -down South, where white men were held in great disfavor, he might be -more injured, but after all that is not this sort of a community. In -this sort of a community, I dare say the amount of evil that would flow -to the colored man would not be as great as it probably would be to a -white man.” - - - NOTES - -Footnote 589: - - Laws of Ia., 1870, p. 21. - -Footnote 590: - - Laws of Colo., 1897, p. 115. - -Footnote 591: - - Laws of Md., 1872, p. 134; 1876, p. 469. - -Footnote 592: - - _In re_ Taylor, 1877, 48 Md. 28, at p. 33. - -Footnote 593: - - Bradwell v. State, 1872, 16 Wall. 130 at p. 142. - -Footnote 594: - - U. S. v. Rhodes, 1866, Fed. Case No. 16,151. - -Footnote 595: - - Laws of Ala., 1865–66, p. 98. - -Footnote 596: - - _Ibid._, 1866–67, p. 435. - -Footnote 597: - - Dolan v. State, 1886, 81 Ala. 11, at p. 17. - -Footnote 598: - - Kelly v. State, 1869, 25 Ark. 392. - -Footnote 599: - - Art. XIV, sec. 2. - -Footnote 600: - - Laws of Fla., 1865, pp. 35–36. - -Footnote 601: - - Art. II, sec. 5, par. 4. - -Footnote 602: - - Laws of Ky., 1865–66, pp. 38–39. - -Footnote 603: - - Bowlin v. Com., 1867, 2 Bush (Ky.) 5. - -Footnote 604: - - Art. III, sec. 53. - -Footnote 605: - - Laws of Miss., 1865, p. 83. - -Footnote 606: - - _Ibid._, 1866–67, pp. 232–33. - -Footnote 607: - - Laws of S. C., 1865, p. 286. - -Footnote 608: - - Laws of Tenn., 1865–66, p. 24. - -Footnote 609: - - Art. VIII, sec. 2. - -Footnote 610: - - Laws of Texas, 1866, p. 59; see Laws of Texas, 1866, pp. 131–32. - -Footnote 611: - - _Ex parte_ Warren, 1868, 31 Texas 143. - -Footnote 612: - - Laws of Texas, 1871, p. 108. - -Footnote 613: - - Laws of Va., 1865–66, pp. 89–90. - -Footnote 614: - - _Ibid._, 1866–67, p. 860. - -Footnote 615: - - Statutes of Calif., 1863, p. 69. - -Footnote 616: - - People v. Washington, 1869, 36 Calif. 658. - -Footnote 617: - - Laws of Ind., 1865, p. 162. - -Footnote 618: - - _Ibid._, 1865, p. 161. - -Footnote 619: - - Laws of Nev., 1864–65, p. 403. - -Footnote 620: - - Laws of Wash., 1866, p. 91. - -Footnote 621: - - _Ibid._, 1869, p. 103. - -Footnote 622: - - Laws of W. Va., 1866, p. 85. - -Footnote 623: - - Stat. L., 336, chap. 114, par. 4. - -Footnote 624: - - Burns’s Annotated Revisal of 1901, II, sec. 3293. - -Footnote 625: - - Pub. Acts of Mich., 1885, p. 132. - -Footnote 626: - - Laws of N. Y., 1895, I, p. 974. - -Footnote 627: - - Laws of O., 1884, pp. 15–16; 1894, pp. 17–18. - -Footnote 628: - - Acts and Resolves of R. I., 1884–85, p. 171. - -Footnote 629: - - Laws of Ark., 1866–67, p. 99. - -Footnote 630: - - Laws of La., 1880, p. 52. - -Footnote 631: - - Laws of Miss., 1866–67, p. 233. - -Footnote 632: - - Laws of Tenn., 1865–66, p. 24. - -Footnote 633: - - _Ibid._, p. 65. - -Footnote 634: - - _Ibid._, 1867–68, pp. 32–33. - -Footnote 635: - - Va. v. Rives, 1879, 100 U. S. 313; _Ex parte_ Va., 1879, 100 U. S. - 339; Strauder v. W. Va., 100 U. S. 303; Carter v. Texas, 1899, 177 U. - S. 443; Rogers v. Ala., 1903, 192 U. S. 226. - -Footnote 636: - - Neal v. Del., 1880, 103 U. S. 370; Bush v. Com. of Ky., 1882, 107 U. - S. 110; _Ex parte_ Murray, 1895, 66 Fed. 297; Smith v. State, 1895, - 162 U. S. 592; Binyon v. U. S., 1903, 76 S. W. 265. - -Footnote 637: - - Carter v. Texas, 1899, 177 U. S. 443, at p. 447. - -Footnote 638: - - Eastling v. Ark., 1901, 62 S. W. 584; Wilson v. Ga., 1882, 69 Ga. 224; - Green v. Ala., 1882, 73 Ala. 26; Ky. v. Jackson, 1880, 78 Ky. 509; - Hicks v. Ky., 1881, 3 Ky. Law Rep. 87; Haggard v. Ky., 1881, 79 Ky. - 366; Smith v. Ky., 1896, 33 S. W. 825; La. v. Casey, 1892, 44 La. Ann. - 969; La. v. Joseph, 1893, 45 La. Ann. 903; La. v. Murray, 1895, 47 La. - Ann. 1424; Cooper v. Md., 1885, 64 Md. 40; Mo. v. Brown, 1894, 119 Mo. - 527; Bullock v. N. J., 1900, 47 At. Rep. 62; N. C. v. Sloan, 1887, 97 - N. C. 499; N. C. v. Peoples, 1902, 131 N. C. 784; N. C. v. Daniels, - 1904, 46 S. E. 743; S. C. v. Brownfield, 1901, 60 S. C. 509; Williams - v. Texas, 1875, 44 Texas 34; Cavitt v. Texas, 1883, 15 Texas Ct. of - Ap. Rep. 190; Carter v. Texas, 1898, 46 S. W. 236; Collins v. Texas, - 1900, 60 S. W. 42; Smith v. Texas, 1900, 58 S. W. 97; Parker v. Texas, - 1901, 65 S. W. 1066; Hubbard v. Texas, 1902, 67 S. W. 413; Carter v. - Texas, 1903, 76 S. W. 437; Fugett v. Texas, 1903, 77 S. W. 461; Martin - v. Texas, 1903, 72 S. W. 386. - -Footnote 639: - - Whitney v. Texas, 1900, 59 S. W. 895. - -Footnote 640: - - Kipper v. Texas, 1901, 62 S. W. 420. - -Footnote 641: - - Leach v. Texas, 1901, 62 S. W. 422. - -Footnote 642: - - Smith v. Texas, 1902, 69 S. W. 151. - -Footnote 643: - - Smith v. Texas, 1903, 77 S. W. 453. - -Footnote 644: - - Thompson v. Texas, 1903, 74 S. W. 914. - -Footnote 645: - - McPherson v. McCarrick, 1900, 61 P. 1004. - -Footnote 646: - - Raleigh, N. C., _News and Observer_, Feb. 17, 1910. - -Footnote 647: - - Whitney v. Texas, 1901, 63 S. W. 879. - -Footnote 648: - - Laws of S. C., 1865, pp. 278–91; 1866, pp. 387–90. - -Footnote 649: - - Pace and Cox v. State, 1881, 69 Ala. 231. - -Footnote 650: - - Pace v. Ala., 1882, 106 U. S. 583. See also Ellis v. Ala., 1868, 42 - Ala. 525; Lord v. Ala., 1875, 53 Ala. 150. - -Footnote 651: - - Laws of S. C., 1865, p. 271. - -Footnote 652: - - Laws of Fla., 1865, p. 24. - -Footnote 653: - - Laws of Ky., 1865–66, p. 42. - -Footnote 654: - - _Ibid._, 1869, p. 52. - -Footnote 655: - - Laws of Mo., 1903, p. 161. - -Footnote 656: - - Laws of Ky., 1904, p. 83. - -Footnote 657: - - Laws of Del., 1866–69, p. 161. - -Footnote 658: - - Laws of Miss., 1866–67, pp. 232–33. - -Footnote 659: - - Laws of S. C., 1866, p. 405. - -Footnote 660: - - Boston _Post_, May 22, 1909. The volume of New York reports containing - this case is not yet accessible. It is referred to, however, in 117 N. - Y. Sup., p. 116. - - - - - CHAPTER XI - SUFFRAGE - - -The Fifteenth Amendment to the Constitution of the United States, -ratified on March 30, 1870, reads: “The right of citizens of the United -States to vote shall not be denied or abridged by the United States or -by any State on account of race, color, or previous condition of -servitude.” In the face of this unequivocal constitutional provision, it -would seem impossible to have a legal race distinction in the matter of -suffrage. It is plain that, if a State or the United States makes a law -that in any way denies or abridges the right of a citizen to vote on -account of his race, such an enactment is in violation of the Amendment. -The only State or Federal statute or State constitutional provision -involving a race distinction that would be valid under the Fifteenth -Amendment would be one that did not amount to a denial or abridgment of -the right to vote. For instance, a State might require white and Negro -electors to cast their ballots in different boxes, or in different parts -of the booth, or even in different booths; or it might require them to -register on different days, or before different registrars. If the Negro -was given the same opportunity to register and vote as the white man, -the requirements of separate registering and balloting would be race -distinctions in the matter of suffrage, but they would not be denials or -abridgments of the right to vote and, hence, might be supported under -the Fifteenth Amendment. Any such requirements have not been found in -the State Constitutions or statutes; they are only suggested as possible -race distinctions which might be permissible. - -It follows, therefore, that the race distinctions to be considered in -this chapter exist, not in conformity to law, as in the case of separate -schools and public conveyances, but in defiance of law or by legal -subterfuges, and are properly called discriminations. - - - NEGRO SUFFRAGE BEFORE 1865 - -The suffrage requirements as to race up to 1865 serve as a background -for the events after that date. A review[661] of the acts of territorial -government and State Constitutions of the Territories and States of the -United States reveals the following facts: Maine, Massachusetts, New -Hampshire, Rhode Island, and Vermont appear not to have had any race -distinctions in suffrage. Alabama, Arkansas, California, Colorado, -Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, -Minnesota, Mississippi, Missouri, Nevada, Ohio, Oregon, South Carolina, -and West Virginia never permitted any but white males to vote at any -time between the Revolution and 1865. The Constitutions of Kansas[662] -of 1855 and of Minnesota[663] of 1857 permitted civilized Indians to -vote, though the same privilege was not extended to Negroes. -Kentucky,[664] in 1799, gave the suffrage to “free” persons, but -expressly excepted Negroes, mulattoes, and Indians. Texas,[665] in 1845, -gave the right to vote to free male persons but excepted Indians not -taxed, Africans, and descendants of Africans. - -Besides the above-named States which either made no race distinctions at -all or else always made distinctions as to Negroes, several States, at -one time or another, extended a limited suffrage to Negroes. The -Constitution of New York[666] of 1821, giving the right to vote to male -citizens, had the provision that “no man of color, unless he shall have -been for three years a citizen of this State, and for one year next -preceding any election shall be seized and possessed of a freehold -estate of the value of two hundred and fifty dollars, over and above all -debts and incumbrances charged thereon, and shall have been actually -rated and paid a tax thereon, shall be entitled to vote at any such -election.” There was no property test for white voters. The -Constitution[667] of 1846 had the same provision about Negro voters. The -question of equal suffrage to Negroes was submitted[668] separately in -1846, and rejected by a vote of 85,306 to 223,834. It was again -submitted in 1860, with like result, the vote being 197,503 to 337,984. - -The Constitution of North Carolina[669] of 1835, as amended, provided -that no free Negro, free mulatto, or free person of mixed blood, -descended from Negro ancestors to the fourth generation inclusive, -though one ancestor in each generation might have been a white person, -should vote for members of the “senate or house of commons” of the -State. Negroes who paid a certain poll tax were allowed to vote until -this Amendment went into effect. Governor W. W. Kitchin,[670] of that -State, says: “There were 21,000 free Negroes in North Carolina in 1835, -4,000 of whom were entitled then to vote.” After 1835 Negroes were not -allowed to vote there again until after the War. - -The Constitution of Tennessee[671] of 1834 provided that no person -should be disqualified from voting in any election who was then by the -laws of the State a competent witness in a court of justice against a -white person. One cannot tell how many Negroes were qualified to vote -under this provision. The Constitution of Wisconsin[672] of 1848 limited -the privilege of voting to white persons, but the Supreme Court[673] of -that State held in 1866 that suffrage had been extended to Negroes by a -vote of the people at the general election on November 6, 1849. - -Several States which at first allowed Negro freemen to vote later -withdrew the privilege. Until the Revolution, they were allowed to vote -in every State except Georgia and South Carolina. Between 1792 and 1834, -Delaware, Maryland, Virginia, and Kentucky denied the suffrage to -Negroes. As has been seen, North Carolina permitted a restricted Negro -suffrage until 1835. New Jersey took the suffrage from the Negro in -1807, Connecticut in 1814, and Pennsylvania in 1838; and Tennessee, in -1834, limited the right to those Negroes who were competent as witnesses -against white persons. New York, in 1821, required a very high property -qualification not required of white persons.[674] Wisconsin alone -changed its law so as to allow Negroes to vote on equality with white -persons. New York tried twice to do so, but failed each time. - -In each of the acts of territorial government drawn up by Congress, -suffrage was restricted to free white persons. This fact, together with -the fact that the West Virginia Constitution of 1861–63 also restricted -the suffrage to white persons, tends to show the attitude of the -National Government in the early days toward Negro suffrage. - - - SUFFRAGE BETWEEN 1865 AND 1870 - -In 1865, the only States that permitted Negroes to vote on the same -footing as white persons were Maine, Massachusetts, New Hampshire, Rhode -Island, Vermont, and Wisconsin. New York and Tennessee permitted a -restricted Negro suffrage. - -The changes in the suffrage laws between 1865 and 1870 indicate what -might have taken place had not the United States interfered with the -Fifteenth Amendment. The Reconstruction Constitutions[675] of the -Southern States in 1868 and 1869 extended the suffrage to Negroes. These -Constitutions, however, did not express the will of the Southern white -people at the time in regard to suffrage. The Constitution of -Maryland,[676] of 1867, permitted only white persons to vote; and that -of Nebraska,[677] of 1866–67, under which it sought admission to the -Union, did not give the suffrage to Negroes. - -Negro suffrage was voted down in New York[678] in 1868, as it had been -in 1846 and 1860, by a vote of 282,403 to 249,802. By the act of -territorial government of Colorado, of 1861, suffrage was restricted to -white persons. But an act of the legislature[679] of that Territory, -enacted in November, 1861, seemed to extend the right to vote to -Negroes. This was amended,[680] however, in 1864, by expressly excluding -Negroes and mulattoes from the suffrage. The legislature of -Connecticut[681] of 1865 proposed an amendment to the Constitution -whereby Negroes would be given the right to vote, the same to be -submitted to the people for their ratification. Minnesota[682] and -Wisconsin,[683] in 1865, submitted constitutional amendments providing -for Negro suffrage. According to Representative Hardwick,[684] of -Georgia, “Negro suffrage was rejected by decisive majorities.” It was -after the 1865 Amendment had been defeated at the polls in Wisconsin -that the Supreme Court of that State, as has been seen, held that -Negroes had been given the right to vote by a law of 1849. - -The word “white” was stricken from the Constitution of Iowa[685] by the -legislature of 1867–68, and this action was ratified by a vote of -105,384 to 81,384. Minnesota[686] amended its Constitution in 1868 so as -to extend suffrage to Negroes. On December 30, 1867, the word “white” -was stricken from the election laws of Dakota Territory.[687] - -On June 8, 1867, Congress passed, over the President’s veto, a bill -first introduced in 1865 establishing Negro suffrage in the District of -Columbia. Before its passage, provision had been made by Congress to -submit the question to a vote of the people. The extension of suffrage -to Negroes was rejected by a vote of 6,521 to 35 in Washington City and -812 to 1 in Georgetown. In spite of this vote the Thirty-ninth Congress -ordained Negro suffrage for the District. After four years, the -government of the District was so changed that suffrage was taken from -all the residents. In 1866, Congress established Negro suffrage in all -the Territories of the United States.[688] - -The second section of the Fourteenth Amendment, proposed June 16, 1866, -and declared in force June 28, 1868, reads: “Representatives shall be -apportioned among the several States according to their respective -numbers, counting the whole number of persons in each State, excluding -Indians not taxed. But when the right to vote at any election for the -choice of electors for President and Vice-President of the United -States, Representatives in Congress, the Executive and Judicial officers -of a State, or the members of the Legislature thereof, is denied to any -of the male inhabitants of such State, being twenty-one years of age, -and citizens of the United States, or in any way abridged, except for -participation in rebellion, or other crime, the basis of representation -therein shall be reduced in the proportion which the number of such male -citizens shall bear to the whole number of male citizens twenty-one -years of age in such State.” The Amendment did not prohibit the denial -or abridgment of the right to vote on account of race or color, but -provided that, if such right was denied or abridged, the State must -suffer the consequence of having its representation in Congress reduced. -One feels safe in saying that the purpose of the National Government in -adopting this section of the Fourteenth Amendment was to induce the -States, particularly the Southern States, to extend suffrage to the -Negro. With the possible exception of Minnesota, no State appears to -have heeded the warning between 1868 and 1870. - -One cannot say what would have been the result had the National -Government rested there—whether or not of their own accord the various -States would have extended the suffrage to Negroes—because, within less -than two years, the Fifteenth Amendment had deprived the States of any -choice in the matter by providing that they _must_ not deny or abridge -the right to vote on account of race or color. - - - SUFFRAGE BETWEEN 1870 AND 1890 - -At the time of the ratification of the Fifteenth Amendment, in 1870, the -following States still restricted the suffrage to white persons: -California, Colorado, Connecticut, Delaware, Indiana, Kansas, Kentucky, -Maryland, Michigan, Nevada, New Jersey, Ohio, Oregon, and Pennsylvania. -Illinois[689] adopted a new Constitution in 1870 which omitted the word -“white.” Missouri[690] amended its Constitution on November 8, 1870, -after the Fifteenth Amendment went into effect, by erasing the word -“white,” and Virginia,[691] in its Constitution of 1870, extended the -suffrage to “male citizens.” It is needless to say that all the -Constitutions adopted since 1870 have omitted the word “white” from the -suffrage qualifications, so it is not worth while to note the various -Constitutions and Amendments that have been adopted since that date. But -in some State Constitutions which have not been changed within the last -forty years, one still finds the provision that only “white male -citizens” are electors. This is true of Maryland.[692] Attempts have -been made to amend the Constitution by erasing the word “white,” but the -objection has been made that it is null and void[693] anyway by the -Fifteenth Amendment, and that it would be too expensive to call a -constitutional convention or hold an election solely for the purpose of -erasing a “dead” word. - -The history of the ratification of the Fifteenth Amendment—the -opposition it provoked and the means that had to be adopted to procure -its ratification by the Southern States—is found in the records of -Congress, newspapers, and political discussions of that day. Very little -of it has been preserved in the laws of the States. In the following -resolution by the legislature of Oregon[694] is found one of the few -traces of the opposition to the Amendment occurring in the laws of a -State outside the South: - -“Whereas, the State of Oregon was, on the fourteenth day of February, -A.D., 1859, admitted into the Federal Union, vested with the right to -declare what persons should be entitled to vote within her boundaries; -and until she, by her voluntary act, surrenders that right, the Congress -of the United States has no authority to interfere with the conditions -of suffrage within the boundaries of the State of Oregon: and - -“Whereas, the Congress of the United States, by means of an arbitrary -majority of votes acquired by the power of the bayonet, has sought to -force upon the several States the so-called Fifteenth Amendment to the -Federal Constitution, in direct violation of the terms under which the -State of Oregon was admitted into the Sisterhood of States; therefore - -“Be it resolved by the Senate, the House concurring: - -“That the so-called Fifteenth Amendment is an infringement upon the -popular rights, and a direct falsification of the pledges made to the -State of Oregon by the Federal Government. - -“Resolved, that the said Fifteenth Amendment be and the same is hereby -rejected. - -“Resolved, that the Governor be requested to transmit copies of this -resolution to the Secretary of State of the United States and to the -Senators and Representatives from the State of Oregon in the Congress of -the United States.” - -The probable explanation of this opposition of Oregon to the Fifteenth -Amendment lies in its unwillingness to give the ballot to the Japanese, -Chinese, and Indians in the State. - -The feeling of New York[695] toward Negro suffrage in 1870 appears to be -different from that of Oregon. A statute was passed prohibiting any -registrar or inspector of elections to demand any oath or ask any -questions of a Negro different from what was demanded of white persons, -or to reject the name of any colored person from registry except for the -same causes as would make it his duty to reject the name of a white -person. The violation of this statute was a misdemeanor, punishable by a -fine of five hundred dollars and imprisonment for six months. - -In order to make the prohibitions of the Fifteenth Amendment effective, -on May 31, 1870, two months after the ratification of the Amendment, -Congress passed an Act,[696] the first section of which reads: “All -citizens of the United States, who are or shall be otherwise qualified -by law to vote at any election by the people in any State, Territory, -district, county, city, parish, township, school district, municipality, -or other territorial division, shall be entitled and allowed to vote at -all such elections without distinction of race, color, or previous -condition of servitude, any constitution, law, custom, usage, or -regulation in any State, Territory, or by or under its authority, to the -contrary notwithstanding.” - -The fourth section of the “Enforcement Act,” as the Act of 1870 was -called, provided for the punishment of any person who should, by force, -bribery, threats, intimidation, or other unlawful means, hinder, delay, -or combine with others to hinder, delay, prevent, or obstruct any -citizen from doing any act required to be done to qualify him to vote, -or from voting at any election. - -In 1875, two inspectors of a municipal election in Kentucky were -indicted for refusing to receive and count the vote of a Negro. The -Supreme Court[697] of the United States, to which the case came by -reason of a division of opinion of the Circuit Court, held that the -Fifteenth Amendment did not confer the right of suffrage, but rather -invested citizens with the right of exemption from discrimination in the -exercise of the elective franchise on account of their race, color, or -previous condition of servitude. The fourth section of the Act of 1870, -by its language, did not confine its operation to unlawful -discrimination on account of race or color and was, therefore, -unconstitutional. The “Enforcement Act” of 1870, like the Civil Rights -Bill of 1875, failed in its desired effect because it was too -far-reaching in its scope. Had the Act of 1870 been upheld, the Federal -authorities would have taken complete control of all elections, State as -well as Federal. - -The years between 1870 and 1890 are known for the actual race -distinctions in suffrage. Between 1870 and 1877, the white people of the -South were largely disfranchised, not because of their race, but because -of their participation in the War. After 1877, the Negroes were largely -disfranchised by unlawful methods adopted by the white people of the -South. If this were a history of the actual race distinctions in -suffrage, it would be necessary to consider at length the “tissue -ballots,” the stuffing of ballot boxes, the intimidation of Negroes by -the Ku Klux Klan and other bodies of white men, and other election -devices and practices in the South at that time. But this study, as has -been said before, is confined to the race distinctions _in_ the law, not -those _in defiance of_ the law. Out of all the suffrage irregularities -of the period very little suffrage law was evolved. Few judicial -decisions and no statutes bearing directly on the relation of race to -suffrage have been found. - -Some cases of intimidation of Negroes at the polls reached the courts of -record. In Lawrence County, Ohio, in 1870, for instance, two white men -by threats of violence kept three Negroes from voting. One of the white -men was convicted in the Federal court[698] under the Act of 1870, and -imprisoned six months; the other was acquitted because he had not been -heard to use threatening language. In 1871 a white man in South Carolina -was convicted in the Federal court[699] for conspiring to keep a Negro -from voting at a congressional election. The same year, in a contested -election for mayor of Leavenworth, Kansas, the defeated candidate -claimed that he would have been elected had not a number of Negroes been -improperly kept from voting. He did not show that they had been in the -ward thirty days as required by the election law of the State, and the -court[700] held that Negroes must satisfy the same requirements as to -residence as other voters. In a State election in Louisiana, in 1872, it -was claimed, upon the affidavits of four thousand voters, that the votes -of ten thousand Negroes had been suppressed because of their race and -color.[701] A tax collector in Delaware, in 1873, refused or failed to -collect taxes from Negroes when the payment of taxes was a prerequisite -to voting. The Federal court[702] held that it had jurisdiction because -the tax collector was a State officer and, thus, it was the State -denying and abridging the right to vote on account of race. Over one -hundred men were indicted in the Federal court of Louisiana in 1874 for -intimidating Negroes at the polls.[703] The same year the judges of the -municipal election of Petersburg, Virginia, were indicted for refusing -to allow a number of Negroes to vote.[704] In 1878, a Negro in Illinois -who was denied the right to vote at a school election sued and recovered -a hundred dollars damages.[705] In Georgia, in 1844, several white men -were convicted in the circuit court of the United States for -intimidating, beating, and maltreating Negroes to keep them from voting. -The Supreme Court[706] held that Congress had power to regulate Federal -elections and could prevent such intimidation. - -It will be noticed that nearly all of the cases cited above are along -the same line—intimidation of Negroes to keep them from voting. Several -constitutional principles, however, relating to suffrage were evolved -out of the cases decided during this period. In some of these cases a -Negro was not a party at all. It was thought at first, for instance, -that suffrage was a right of citizenship and that the Fourteenth -Amendment entitled every citizen to vote. Consequently, a proceeding was -started in the courts of Kentucky in 1874 to establish the right of a -woman to vote. The case went up to the Supreme Court[707] of the United -States which held that the Constitution of the United States does not -confer the right of suffrage upon anyone. Next, it was thought that the -Fifteenth Amendment conferred the right to vote upon Negroes, but the -case of United States v. Reese settled this point by deciding that the -Amendment did not confer upon Negroes the right to vote, but the right -not to be discriminated in voting on account of race, color, or previous -condition of servitude.[708] Despite the Fourteenth and Fifteenth -Amendments, the principle remains that the individual States retain the -right to prescribe the qualifications for voting so long as they do not -discriminate against persons on account of race, color, or previous -condition of servitude. - - - SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 - -In 1890, a distinct departure was made in the development of the law of -suffrage. For thirteen years, roughly speaking, the Negroes had been in -a great measure disfranchised by the illegal means already referred to. -According to the Constitutions and laws of the Southern States, the -Negro had precisely the same right to vote as the white person. Yet he -did not vote, or, if he voted, his ballot came to naught. The Southern -white people, wearied of using underhand methods of eliminating the -effect of Negro suffrage, turned to seek a method under the law to -accomplish the same result. The Fifteenth Amendment seemed to offer an -insuperable obstacle. The problem was how to evade this constitutional -provision. Speaking of this difficulty, the Supreme Court of -Mississippi[709] said: “Within the field of permissible action under the -limitations proposed by the Federal Constitution, the Convention [the -Constitutional Convention of Mississippi, 1890] swept the field of -expedients to obstruct the exercise of suffrage by the Negro race. By -reason of its previous condition of servitude and dependency, this race -had acquired or accentuated certain peculiarities of habit, or -temperament, and of character, which clearly distinguished it as a race -from the whites. A patient, docile people; but careless, landless, -migratory within certain limits, without forethought; and its criminal -members given to furtive offences rather than the robust crimes of the -whites. Restrained by the Federal Constitution from discriminating -against the Negro race, the Convention discriminated against its -characteristics and the offences to which its criminal members are -prone.” - -Beginning in 1890 the Southern States have, one by one, adopted new -Constitutions or amended their old ones so as to change considerably the -qualifications of voters. Suffrage amendments have been adopted by the -Southern States in the following order: Mississippi,[710] 1890; South -Carolina,[711] 1895; Louisiana,[712] 1898; North Carolina,[713] 1900; -Alabama,[714] 1901; Virginia,[715] 1901; and Georgia,[716] 1908. -Maryland[717] has made two separate attempts, one in 1905 and the other -in 1909, to amend its Constitution, but has failed in both instances. -Florida, Arkansas, Tennessee, and Texas have not made any constitutional -changes in the matter of suffrage which might be called “Suffrage -Amendments.” - -The phrase, “the Suffrage Amendments in the South,” has been used so -often that the idea prevails among those unfamiliar with the laws on the -subject that suffrage qualifications in the Southern States are -fundamentally different from those in other States. With the hope of -making plain wherein suffrage laws in the South are similar to and -wherein they differ from the corresponding laws of other States, a table -of the qualifications of electors in all the States and Territories of -the United States, including Alaska, Porto Rico, Hawaii, and the -Philippines, is given (see pp. 322–339). The requirements for voters -will be taken in the order given in the tables and considered with -reference to the ways in which they lend themselves to race distinctions -and discriminations. - - - _Citizenship_ - -In order to vote, one must be a citizen of the United States or an alien -who has taken the formal step toward naturalization of declaring his -intention to become a citizen, with the exception that, in a few States, -an Indian who has severed his tribal relationship may vote. This -suffrage qualification does not easily lend itself to race distinction -or discrimination. It lies within the power of the United States, not of -the States, to say what alien residents may become citizens.[718] If -Congress says, as it does in the Chinese Exclusion Act,[719] that -Chinese not natives of this country cannot become citizens, it follows -that they cannot demand of a State the privilege of voting. At present, -a statute[720] specially provides for the naturalization of aliens of -African nativity and persons of African descent, requiring that the same -rules shall apply to them as to free white persons. - -The only case that has been found involving the citizenship of a Negro -arose in Michigan in 1872.[721] A Negro, born in Canada of parents who -had been slaves in Virginia but who had gone to Canada in 1834, went to -Michigan at the age of twenty. The question was whether he was a citizen -of the United States and, so, entitled to registration as a voter. The -Supreme Court of the State held that, when his parents went to Canada, -they were no longer under the jurisdiction of this country. The son was -not born of citizens of the United States, nor was he born under the -jurisdiction of the United States, and, therefore, was not a citizen of -the United States. - -The citizenship requirement in the Southern States is essentially the -same as that in other States and cannot be said, in any way, to involve -a race distinction. - - - _Age_ - -In all of the States and organized Territories an elector must be -twenty-one years of age or over. In the Philippines the age limit is -twenty-three. There seems to be no possible race distinction in the age -requirement. It may be that, because of the less careful record of dates -of birth among Negroes, more of that race are unable to prove that they -are twenty-one years old; but this is only a question of evidence. - - - _Sex_ - -All except four of the States limit the suffrage to males. This -requirement cannot possibly involve a race distinction. - - - _Residence_ - -All States and Territories require that the voter shall have resided for -a certain length of time previous to the election in the particular -State or Territory, in the County, and in the precinct, ward, town, or -other political division in which he offers to vote. The residence in -the State varies from three months to two years, in the County or its -corresponding division from thirty days to one year, and in the -precinct, ward, or town from ten days to one year. It is noticeable that -in the Southern States the required residence is, as a rule, somewhat -longer than in the other States. Alabama, Louisiana, Mississippi, North -Carolina, South Carolina, and Virginia all require a residence of two -years in the State, while Rhode Island is the only State outside the -South that requires a State residence of that length. Mississippi is the -only State that requires a voter to be a resident of the precinct one -year. Louisiana requires six months in the precinct, while thirty days -is the favorite residence with the other States. - -The greater term of residence required in the South may lend itself to -race distinction in case one race is more migratory than the other. If, -for instance, the Negro is more apt to move about from place to place -than the white person, more Negroes than whites will be unable to -satisfy the residence qualification. - - - _Payment of Taxes_ - -The following States require the payment of poll taxes as a prerequisite -to voting: Alabama, Arkansas, Florida, Louisiana, North Carolina, South -Carolina, and Tennessee. Of these Alabama, Arkansas, and North Carolina -require the payment of the poll tax for only one year preceding the -election; Florida, Louisiana, and Mississippi, for two years preceding; -and Virginia, for three years preceding the election. Some States -require payment of both property and poll taxes; and some, only the -latter. The law of Delaware is that the voter must have paid a county -tax within two years, assessed six months before the election, not -specifying whether it is a poll or property tax. Georgia provides that -all taxes legally required since 1877 must have been paid six months -before the election. Pennsylvania requires the payment of a State or -county tax within two years to be assessed two months and paid one month -before the election. South Carolina demands, not only the payment of the -poll tax, but of all taxes for the preceding year. In the Philippines, -the elector must satisfy other tests or show payment of an annual tax of -fifteen dollars. - -The payment of taxes as a prerequisite to voting is not peculiar to the -Southern States, such a requirement being found in Delaware, -Pennsylvania, and the Philippines as well. The poll tax and the -requirement of payment for more than the year next preceding the -election are found mostly in the Southern States. In the Philippines -alone, it appears, the payment of taxes is an alternative requirement; -that is, if one cannot satisfy this qualification, he may, nevertheless, -qualify under other tests; but in the States, he must not only show his -payment of taxes but be qualified as well in other respects. - -In two ways this qualification lends itself to race distinctions. In the -first place, if Negroes are more shiftless and less inclined to pay -their taxes than white people, more of them will be unable to satisfy -this test. Secondly, if they are careless about preserving their tax -receipts for one, two, or three successive years, they will be unable to -prove the payment of taxes and, thereby, be disqualified to vote. - - - _Ownership of Property_ - -The next qualification may be said to be in a sense peculiar to the -Southern States, yet not entirely so. In Rhode Island, one must own -property worth one hundred and thirty-four dollars on which taxes of the -preceding year have been paid or must pay an annual rental of seven -dollars to be entitled to vote for city councillors and to vote on -questions of finances. In Alaska, to be entitled to vote in municipal -elections, one must be the owner of substantial property interests in -the municipality. In the Philippines, the voter must be able to satisfy -other tests or else be the owner of property assessed at two hundred and -fifty dollars. - -The property test in the Southern States is an alternative of the -educational tests. That is, if the applicant cannot satisfy the -educational test but can satisfy the property test, he may register and -vote; or he may do so if he can satisfy the education but not the -property test. Unless special mention is made at the time, this will be -understood in the following discussion of these two qualifications. When -it is said that such and such property or educational qualification is -required, it is meant only that it is required in case its alternative -cannot be satisfied. - -In Alabama, the property requirement is that the applicant for -registration be the owner or the husband of the owner of forty acres of -land in the State in which they reside or of real or personal property -worth three hundred dollars upon which taxes for the preceding year have -been paid. In Georgia the requirement is forty acres of land in the -State or five hundred dollars worth of property in the State. In -Louisiana, the requirement is three hundred dollars worth of property -and payment of the personal taxes. South Carolina prescribes three -hundred dollars worth of property on which the taxes for the preceding -year have been paid. Of the Southern States which have altered their -suffrage laws since 1890, Mississippi, North Carolina, and Virginia have -not provided any permanent property test. - -The property qualifications cause the disfranchisement of more of one -race than of the other only in so far as the first is more shiftless and -more delinquent in the payment of taxes than the other. If the Negro is -given the same opportunity as the white to acquire property, he has an -equal opportunity to register under the property clause of the suffrage -laws. - - - _Educational Test_ - -In no sense is the educational qualification peculiar to the Southern -States. As early as 1855, Connecticut required of voters ability to read -the State Constitution. The present requirement, as amended in 1897, is -ability to read the Constitution and statutes of the State in English. -In 1857, Massachusetts added as a prerequisite to voting ability to read -the Constitution of the State in English and write one’s name. The -Constitution of Wyoming of 1889 provides that the applicant for -registration must be able to read the Constitution of the State. -California, in 1894, required ability to read the Constitution in -English and write one’s name. Similar requirements were made in Maine in -1893 and in Delaware in 1900. In the territorial possessions of the -United States, a Hawaiian elector must read, speak, and write English or -Hawaiian, and a Filipino must speak, read, and write English or Spanish. -In the Philippines this qualification is an alternative of the ownership -of property; in Hawaii and the States mentioned above the educational -qualification is absolute. - -In the Southern States now to be considered, it is to be remembered that -the applicant must satisfy either the education or the property test, -not both. In Alabama he must be able to read and write the Constitution -of the United States in English unless physically disabled. In Georgia -he must be able to read and write in English the Constitution of the -United States or of Georgia, or if physically disabled from reading and -writing, to “understand and give a reasonable interpretation” of the -Constitution of the United States or of Georgia, when read to him. In -Louisiana he must be able to read and write and must make his -application for registration in his own handwriting. Mississippi -requires that the applicant must be able to read or understand or -reasonably interpret any part of the Constitution of the State. North -Carolina requires ability to read and write the State Constitution in -English; South Carolina requires also an ability to read and write the -Constitution, but does not specify that the test must be in English. -Virginia does not declare that the applicant must be able to read and -write, but requires him to make his application for registration in his -own handwriting, and prepare and deposit his ballot without aid. This -does not apply to those registering under the “Grandfather Clause” to be -considered later. - -All States[722] and Territories, except Georgia, Missouri, New Jersey, -North Carolina, South Carolina, and New Mexico have adopted a blanket -official ballot which is, in effect, the requirement of an educational -qualification for voting. By this system the State provides a uniform -ballot containing the names of all persons of all parties to be voted -for, and requires the voter to mark and deposit his own ballot. Where no -party emblem—as the elephant, cock, or anvil—heads the list of -candidates of a particular party, it is wellnigh impossible for one to -mark his ballot properly unless he is able both to read and write. - -The Southern States are more lenient in their educational tests than -other States in allowing a person otherwise qualified to vote if he has -either education or property; while in the latter he must have a certain -amount of education no matter how much property he owns. - -Educational qualifications easily permit race distinctions in several -ways. In the first place, registration officers may give a difficult -passage of the Constitution to a Negro, and a very easy passage to a -white person, or _vice versa_. He may permit halting reading by one and -require fluent reading by the other. He may let illegible scratching on -paper suffice for the signature of one and require of the other a -legible handwriting. But race discriminations in such cases rest with -the officers; they do not have their basis in the law itself. - -The educational clause of the proposed Maryland suffrage amendment, -recently defeated at the polls by the voters of that State, restricted -the right to vote to a “person who, in the presence of the officers of -registration, shall, in his own handwriting, with pen and ink, without -any aid, suggestion, or memorandum whatever addressed to him by any of -the officers of registration, make application to register correctly, -stating in such application his name, age, date, and place of birth; -residence and occupation at the time and for the two years next -preceding; the name or names of his employer or employers, if any, at -the time and for the two years next preceding; and whether he has -previously voted, and, if so, the State, county, city, and district, or -precinct in which he voted last. Also the name in full of the President -of the United States, of one of the Justices of the Supreme Court of the -United States, of the Governor of Maryland, of one of the Judges of the -Court of Appeals of Maryland, and of the Mayor of Baltimore City, if the -applicant resides in Baltimore City, or of one of the County -Commissioners of the County in which the applicant resides.” It is easy -to see how race discriminations could have been made under this proposed -amendment, but it need not be discussed inasmuch as it failed to become -law. - - - “_Grandfather Clauses_” - -The “Grandfather Clauses” are, in a real sense, peculiar to the Southern -States, though there are a few somewhat similar provisions in other -States. For instance, Illinois, by its Constitution of 1870, allowed -those to vote who had the right to vote on April 1, 1848, provided, of -course, they satisfied the age, sex, and residence qualifications. When -Maine added its educational requirement in 1893, it provided that this -qualification should not apply to anyone who had the right to vote in -January, 1893, or to anyone sixty years of age at that time. -Massachusetts had made a similar provision in 1857. The Constitution of -Wyoming of 1889 had said that nothing in it, except the provisions about -idiots, lunatics, and convicts, should be construed to deprive any one -of the right to vote who had that right at the time of the adoption of -the Constitution. New Hampshire does not allow paupers to vote, but it -provides that one who served in the Rebellion and was honorably -discharged shall not be disfranchised because he has received aid from -the public. In the Philippines, one unable to satisfy the educational or -property test, may, nevertheless, vote if he held a substantial office -under the Spanish régime. - -The principle of the “Grandfather Clause,” in short, is that one who is -not able to satisfy either the educational or property tests may, -nevertheless, continue to be a voter for life if he was a voter in 1867 -or is an old soldier or the lineal descendant of such voter or soldier, -provided he registers prior to a fixed date. Alabama permits all who -served honorably in the forces of the United States in the War of 1812, -the War with Mexico, any war with Indians, the War between the States, -the War with Spain, or in the forces of the Confederate States or of the -State during the War between the States and the lawful descendants of -those and all who are of good character and who understand the duties -and obligations of citizens under a republican form of government, to -register before December 20, 1902. The clause in the Georgia -Constitution is like that of Alabama, except that the privilege is -extended to veterans of the Revolutionary War and their descendants, and -the character and understanding clause is permanent. To take advantage -of the “Grandfather Clause” in Georgia one must register before January -1, 1915. Louisiana provided that one entitled to vote in any State -January 1, 1867, son or grandson of such a one twenty-one years old or -over in 1898, or a foreigner naturalized before January 1, 1898, who had -resided in the State five years preceding his application for -registration, might register before September 1, 1898. North Carolina -allowed one who had the right to vote on January 1, 1867, and the lineal -descendant of such a one to be registered prior to December 1, 1908. -Before January 1, 1898, one could register in South Carolina who could -read the Constitution of the State or understand and explain it. In -Virginia one might register up to 1904 who, before 1902, served in the -army or navy of the United States or of the Confederate States or of -Virginia or who was the son of such a one, or who owned property on -which the State tax was one dollar, or who was able to read and explain -or to understand and explain the Constitution of the State. Mississippi -has no “Grandfather Clause.” - -In Alabama, Georgia, and Virginia, the fact that one was a soldier -enabled him to register under the “Grandfather Clause”; in Louisiana and -North Carolina, that he was a voter in 1867. In each State the lineal -descendants of such soldiers or voters in 1867 might register under the -“Grandfather Clause.” In Alabama one might register, though he was not -an old soldier or descendant of one, if he understood the duties and -obligations of citizenship and was of good character. In Virginia and -South Carolina, one could register under the “Grandfather Clause” if he -could understand and explain the Constitution when read to him; and, in -Virginia, if he owned property taxed as much as one dollar a year. - -The “Grandfather Clauses” are all temporary. Those classes of men -covered by the clauses are given a certain time within which to have -their names entered on a permanent registry. If they are once entered on -the permanent register, they are voters for life unless excluded because -of some crime or because they become public charges. If they fail, -however, to register within the limited time, and still wish to become -electors, they must satisfy the same tests as other applicants for -registration. For instance, one who could vote in North Carolina in 1867 -might have his name entered on the permanent register prior to December -1, 1908, and thereby become a voter for life, though he had neither -property nor literacy; if he failed to register by that date, he had to -satisfy the educational test as any other applicant would have to do. -The length of duration of the “Grandfather Clauses” varies from a few -months to several years. Thus, the “Grandfather Clause” of South -Carolina was of avail from 1895 to 1898; of Louisiana, from May 16, -1898, to September 1, 1898; of North Carolina, from July 1, 1900, to -December 1, 1908; of Alabama, from 1901 to 1903; Virginia, from 1902 to -1904; and in Georgia, it extends from 1908 to 1915. It will be seen that -Georgia is the only State in which the “Grandfather Clause” is still in -force. All who registered within the dates given above are still -electors and will continue to be as long as they live unless excluded -from the suffrage because of crime or the like; those who have not -registered under the “Grandfather Clauses” cannot do so now, except in -Georgia. - -The “Grandfather Clauses” are more nearly race distinctions than any -other sections of the suffrage laws for the reason that so many white -men in the Southern States and so few Negroes are either old soldiers or -descendants of old soldiers or had the right to vote in 1867. Yet they -are not, technically speaking, race distinctions because, if one was a -veteran or son of one, he might register regardless of his race or -color. As a matter of fact, a considerable number of Negroes in the -Southern States, who were Federal soldiers in the Civil War, have -registered under the “Grandfather Clauses.” - - - “_Understanding and Character Clauses_” - -The “Understanding Clauses” do not have as large a place in the suffrage -laws of the Southern States as is commonly believed. In only two -States—Georgia and Mississippi—is the “Understanding Clause” permanent. -In Georgia, one may register if he is of good character and understands -the duties and obligations of citizens under a republican form of -government, although he has neither education nor property. In -Mississippi, one who cannot read may register if he can understand and -reasonably interpret the Constitution when read to him. A distinction -must be made between these two “Understanding Clauses.” In Georgia the -requirement is the understanding of the duties of citizens of a -republican form of government; in Mississippi it is understanding the -State Constitution when read. In three other States—Alabama, South -Carolina, and Virginia—the “Understanding Clause” of the Mississippi -type is part of the “Grandfather” section, and became inoperative with -the “Grandfather Clauses.” The Georgia provision which allows one to -register, regardless of education or property, if he is of good moral -character has a prototype in the Constitution of Connecticut which -requires all electors to be of good moral character, and the -Constitution of Vermont which requires the electors to be of quiet and -peaceable behavior. - -It cannot be doubted that the permanent “Understanding Clauses” of -Mississippi and Georgia lend themselves to race discrimination. The -Constitution of Mississippi provides that the applicant for registration -must be able either to read or understand and reasonably interpret the -Constitution. The registrar who so desires may easily disqualify members -of one race by asking them to explain more difficult passages of the -Constitution or by requiring of them a more scholarly interpretation of -such passages than he demands of members of the other race whom he -desires to have qualify as electors. In Georgia the registrar who passes -upon an applicant’s understanding of the duties and obligations of -citizens under a republican form of government may set a higher standard -for one race than for the other. - - - _Persons Excluded from Suffrage_ - -Certain classes of persons are excluded from the franchise because they -are considered incapable or unfit to take a hand in governmental -matters. The classes excluded are practically the same in all the -States, and there is slight evidence of any race distinction in such -cases. The following States do not allow paupers to vote: Delaware, -Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South -Carolina, Texas, Virginia, and West Virginia. Other States, including -Louisiana, Missouri, Montana, Oklahoma, and South Carolina, exclude the -inmates of public institutions of charity, Louisiana and Oklahoma making -an exception of Soldiers’ Homes. Practically all the States exclude -idiots and insane persons from the suffrage. Other classes, though not -excluded from the suffrage, are not allowed to get the required -residence to become electors. Thus, in a number of States, students in -schools, unless self-supporting, do not get the required residence by -living at the school. In a great majority of the States, soldiers and -sailors in service do not gain an electoral residence in a State, -county, or precinct by being stationed therein. California, Idaho, -Nevada, and Oregon exclude all but American-born Chinese. Where the -Chinese, because of the Federal naturalization laws, are incapable of -becoming citizens, they cannot be electors, because all the States -require the electors to be either citizens or persons who have formally -declared their intention to become citizens. Idaho, Maine, Michigan, -Minnesota, Mississippi, North Dakota, Oklahoma, Washington, and -Wisconsin exclude tribal Indians, or, what is perhaps the same, Indians -not taxed. - -All States exclude from the suffrage those who have been convicted of -certain crimes; that is, those who may have served out their terms of -imprisonment, but who have not been restored to their civil rights by -the executive department of the State. Treason and felonies like -embezzlement and bribery are the crimes most frequently mentioned. One -finds here a possible race distinction. The Southern States have greatly -added to the list of crimes which operate as an exclusion from the -suffrage. By the Constitution of Alabama of 1875, for instance, the -following were excluded from suffrage: Those convicted of treason, -embezzlement of public funds, malfeasance in office, larceny, bribery, -or any other crime punishable by imprisonment in the penitentiary. The -last Constitution of Alabama is more specific; it mentions the following -crimes as having the effect of excluding from the suffrage those -convicted of them: Treason, murder, arson, embezzlement, malfeasance in -office, larceny, receiving stolen property, obtaining property or money -under false pretenses, perjury, subornation of perjury, robbery, assault -with intent to rob, burglary, forgery, bribery, assault and battery on -wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, -crime against nature, or any crime punishable by imprisonment in the -penitentiary, or of any infamous crime or crimes involving moral -turpitude; also any person who shall be convicted as a vagrant or tramp, -or of selling or offering to sell his vote or the vote of another, or of -making or offering to make false return in any election by the people or -in any primary election to procure the nomination or election of any -person to any office, or of suborning any witness or registrar to secure -the registration of any person as an elector. Delaware and several other -States, on the other hand, exclude only those who have been convicted of -a felony. If, as the Supreme Court of Mississippi said, the Negro is -more given to furtive offences than to the robust crimes of the whites, -the exclusions of the Alabama law would seem to be directed toward these -offences. If more Negroes than whites are guilty of such crimes as -larceny and wife-beating, and of sexual irregularities, then the law -operates to disqualify for the suffrage more Negroes than whites. - - - SUFFRAGE IN INSULAR POSSESSIONS OF UNITED STATES - -The suffrage qualifications in the insular possessions of the United -States are particularly significant in that they tend to show the -present attitude of Congress toward the elective franchise. The Act of -April 30, 1900, providing a government for the Territory of Hawaii, -restricts suffrage to those who can speak, read, and write the English -or Hawaiian language—a strict educational test. In the Philippines to be -an elector one must be a native of the Philippines, twenty-three years -of age or over, and must have paid an annual tax of fifteen dollars, or -be the owner of property assessed at two hundred and fifty dollars, or -be able to speak, read, and write English or Spanish, or have held -substantial office under the Spanish régime. It will be noticed that the -tax payment, educational, property, and office-holding tests are -alternatives, so the satisfaction of any one of the four is sufficient. -Manhood suffrage, as provided by the “Foraker Act”[723] of 1900, is -still in force in Porto Rico. But this seems destined soon to give way -to a restricted suffrage. Secretary of War Dickinson has recently issued -a report on the conditions in Porto Rico in which he suggests an -amendment of the suffrage laws to the effect that, after the general -election of 1910, the qualified voters for any election shall consist -only of citizens of the United States, who, with such other -qualifications as are required by the laws of Porto Rico, “are able to -read and write; or on the day of registration shall own taxable real -estate in their own right and name; or who are on said day _bona fide_ -members of a firm or corporation which shall own taxable real estate in -the name of such firm or corporation; or on the day of registration -shall possess and produce to the Board of Registration tax receipts -showing the payment of any kind of taxes for the last six months of the -year in which the election is held.” President Taft, in transmitting the -report to Congress, indorsed Secretary Dickinson’s suggestions, -saying[723]: “It is much better in the interests of the people of the -island that the suffrage should be limited by an educational and -property qualification.” The above suffrage qualifications for the -insular possessions of the United States is evidence that the attitude -of Congress toward universal suffrage has been considerably modified -within recent years. - - - CONSTITUTIONALITY OF SUFFRAGE AMENDMENTS - -The first “Suffrage Amendment” of the Southern States, that of -Mississippi, was adopted twenty years ago, and yet no case involving the -constitutionality of these laws has been squarely presented to the -Supreme Court of the United States. The one most nearly in point was -Williams v. Mississippi[724] in 1898. Williams, a Negro, had been -indicted by a jury composed wholly of white men. The law required that a -juror should be an elector. Williams contended that the provisions of -the Constitution about suffrage were a scheme to discriminate against -Negroes, that the discrimination was effected, not by the wording of the -law, but by the powers vested in the administrative officers. The United -States Supreme Court refused to interfere, saying that the laws did not, -on their face, discriminate against the races, and that it “had not been -shown that their actual administration was evil, only that evil was -possible under them.” - -Several suits[725] have been brought, the purpose of which has been to -test the constitutionality of these laws, but they have all been decided -on points of procedure or on technical grounds. - -At present, the suffrage laws of the Southern States stand judicially -unimpugned in the light of the Fifteenth Amendment. Mr. John Mabry -Mathews[726] says that the Supreme Court has shown an “apparent desire -to shift the duty of redressing such wrongs [those arising under the -suffrage laws] upon the political department of the Government. So far -as Congress has given any indication of its attitude upon the subject, -it has intimated that the matter is one for judicial settlement. But the -absence of congressional legislation would in any case hamper the -efficiency of the courts in securing the practical enforcement of the -Amendment. The real reason behind the attitude of both Congress and the -courts is the apathetic tone of public opinion, which is the final -arbiter of the question. In the technical sense, the Amendment is still -a part of the supreme law of the land. But as a phenomenon of the social -consciousness, a rule of conduct, no matter how authoritatively -promulgated by the nation, if not supported by the force of public -opinion, is already in process of repeal.” - -It cannot be safely conjectured what the Supreme Court will say when it -squarely faces the suffrage laws of the South in their relation to the -Fifteenth Amendment. Until then, each is entitled to his opinion. That -the citizenship, age, sex, and residence qualifications are in perfect -conformity to the Amendment there is no doubt. The qualifications of tax -payment, property, and education existed long before the Fifteenth -Amendment in the States of the men most active in securing the adoption -of that Amendment. It is hardly to be supposed that the Senators and -Representatives from Massachusetts and Pennsylvania understood the -Amendment they were advocating to be nullifying the suffrage laws of -their respective States. Moreover, a property or educational test is not -an abridgment or denial of the right to vote, because it lies within the -power of everyone, regardless of race, to accumulate property and -acquire literacy. - -The “Grandfather Clauses” are the most doubtful parts of the suffrage -laws. In one sense, they are not at all a denial or an abridgment of the -right to vote. Granting that the property and educational tests are -constitutional, the “Grandfather Clause,” instead of abridging or -denying, enlarges the right to vote by giving the suffrage to those who -would be disqualified under the property or educational tests. Be that -as it may, the Southern States are more uneasy about the -constitutionality of these provisions than of any others. For instance, -at the last two sessions of the legislature of North Carolina bills were -introduced to extend the “Grandfather Clause” of that State to 1812 and -1816 respectively. In each case the bill was defeated, the argument -against it being that it was unwise to open up the suffrage question -again, lest the amendment be brought into court.[727] - -A leading thinker on constitutional law has given the unpublished -opinion that the “Grandfather Clauses” are in violation of the tenth -section of the first article of the Constitution of the United States, -which says that no State shall grant any title of nobility. His idea is -that an order of nobility is created whenever a class of persons is -granted exceptional political privileges, that the old soldiers and -lineal descendants constitute such a class, and that the title of -nobility is “Elector,” whether expressed or not. - -If the “Grandfather Clause” should be declared unconstitutional on the -ground just suggested or on any other ground, the next question would be -whether that would nullify the other sections of the suffrage laws, such -as the educational and property tests. This depends upon whether the -different sections of the laws are separable, whether the legislature or -the people would have adopted the educational and property tests, etc., -if they had thought the “Grandfather Clause” unenforceable.[728] North -Carolina prepared for just such a contingency by inserting the following -section in its Suffrage Amendment: “That this amendment to the -Constitution is presented and adopted as one indivisible plan for the -regulation of the suffrage, with the intent and purpose to so connect -the different parts, and to make them so dependent upon each other that -the whole shall stand or fall together.” - - - MARYLAND AND FIFTEENTH AMENDMENT - -In the preceding section it has been assumed that the Fifteenth -Amendment is an integral part of the Constitution of the United States. -Whether or not this assumption is warranted is brought into question by -a recent action of the legislature of Maryland. - -As has been said earlier in this chapter, Maryland has made two -unsuccessful attempts to amend its suffrage laws in such a way as would -disfranchise a large number of the present Negro voters in that State. -The letter of the Constitution of Maryland at present restricts suffrage -to _white_ male citizens; but it has been taken for granted that the -word “white” became inoperative under the Fifteenth Amendment. - -Out of the discussion of Negro suffrage in Maryland has arisen the -question whether or not the Fifteenth Amendment itself is valid. At the -last session of the legislature of that State, that of 1910, the -so-called Digges Bills were introduced and passed by both houses. The -purpose of these bills was to disfranchise all Negroes who have not -owned five hundred dollars’ worth of property for two years before their -application for registration, upon which all taxes have been paid during -those two years. This disfranchisement applied only to State and -municipal elections. The bills failed to become laws only because they -were vetoed by the Governor of the State. - -Upon the failure of the Digges Bills to be passed, a constitutional -amendment[729] was drafted and approved by the required three-fifths of -all the members of both houses of the legislature, which embodied the -same features as the Digges Bills. This amendment is to be voted upon by -the people at the general election in November, 1911. This amendment -provides for the Australian ballot and for uniform election laws -throughout the State. In the event of the amendment being declared -unconstitutional, the laws now in force in Maryland are to be revived -automatically. - -The validity of the proposed Maryland amendment is directly dependent -upon the invalidity of the Fifteenth Amendment. Under the proposed -amendment, no property qualification whatever is required of _white_ -male citizens applying for registration, while a heavy property -qualification is required of _every other_ male citizen—and this must -include Negroes—applying for registration. Thus, in violation of the -Fifteenth Amendment, the right of citizens of the United States to vote -would be denied or abridged by the State of Maryland on account of race -or color. - -The validity of the Fifteenth Amendment is questioned on the following -grounds, among others: (1) The fifth article of the Federal Constitution -provides that Congress, “whenever two-thirds of both houses shall deem -it necessary,” shall propose amendments to the Constitution. It is -claimed that only thirty-nine of the sixty-six members of the Senate, -less than two-thirds, voted to submit the Fifteenth Amendment to the -States for their ratification. (2) Maryland was one of the two -States—the other being Delaware—that refused to ratify either the -Thirteenth, Fourteenth or Fifteenth Amendment. It is claimed, therefore, -that Maryland is not bound by the Fifteenth Amendment, which it did not -ratify. (3) The fifth article of the Constitution, after providing the -two ways in which the Constitution may be amended, adds that “no State, -without its consent, shall be deprived of its equal suffrage in the -Senate.” Upon this last clause, Mr. Arthur W. Machen, Jr., in a recent -article in _The Harvard Law Review_,[730] has founded an ingenious -argument that the Fifteenth Amendment is void. His reasoning on this -point is, in brief, that the State meant here is the citizens or voters -or the government of the State, and not the territory. By the -enfranchisement of the Negroes after the War, the composition of the -State was changed, a body of persons became part of the State who were -not a part of it before, and thus the State was deprived of its equal -suffrage in the Senate. Mr. Machen says: “The Fifteenth Amendment -amounts to a compulsory annexation to each State that refused to ratify -it of a black San Domingo within its borders. It is no less -objectionable than the annexation of the San Domingo in the Spanish -main.” - -Whether or not any or all of the above objections and the others that -are urged against the Fifteenth Amendment are valid cannot now be -answered, because the validity of the Amendment has been assumed by the -courts rather than decided upon after argument. Until after the election -of November, 1911, attention will be centered upon Maryland. If the -proposed amendment to the State Constitution is ratified by the people, -then haste will no doubt be made to have its constitutionality tested, -in which case the validity of the Fifteenth Amendment will be directly -raised. The Southern States, as a rule, deplore this action on the part -of Maryland because they fear that it will open up the whole suffrage -question. It is deplored by people over the country as a whole because -they fear that it will revive the ill feeling among the sections -occasioned by Reconstruction. - - - EXTENT OF ACTUAL DISFRANCHISEMENT - -It is impossible to say how many persons have been disfranchised under -the suffrage laws. No doubt many who are capable of satisfying the -qualifications do not register, or, if they register, do not vote. This -is probably due to the one-party system in the South. The following -figures show either the extent of actual disfranchisement or the -political apathy in the Southern States: In one county in Mississippi, -with a population of about 8,000 whites and 11,700 Negroes in 1900, -there were only twenty-five or thirty qualified Negro voters in 1908, -the rest being disqualified, it is said, on the educational test. In -another county, with 30,000 Negroes, only about 175 were registered -voters. In still another county of Mississippi, with 8,000 whites and -12,000 Negroes, only 400 white men and about 30 Negroes are qualified -electors. The clerk of court of a county in North Carolina, with a -population of 5,700 whites and 6,700 Negroes, writes that a Negro has -never voted in the County. As a general rule, taking the country at -large, about one person in five is a male of voting age. In Iowa four -out of five possible voters have actually voted in the last four -elections; in Georgia, a State of nearly the same population, the -proportion is one to six. In Mississippi, in 1906, only one out of -eighteen males of voting age actually voted; in Georgia, one out of -fifteen. In a district in Mississippi with a population of 190,885, -2,091 votes were cast for the Representative, John Sharp Williams, in -1906; in a district in Connecticut with a population of 247,875, 46,425 -votes were cast for Representative Litchfield. These figures show that -the ratio of actual voters to total population in the Southern States is -astoundingly smaller than in other States.[731] - - - QUALIFICATIONS FOR VOTING IN THE UNITED STATES. - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Alabama[714] │Citizen of │21 │Male. │2 yrs.│1 yr. │3 mo. - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │had declared│ │ │ │ │ - │intention by│ │ │ │ │ - │Nov. 28, │ │ │ │ │ - │1901. │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Arkansas[732] │Citizen of │21 │Male. │1 yr. │6 mo. │1 mo. - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - California[733] │Citizen of │21 │Male. │1 yr. │90 da. │30 da. - │U. S. for 90│yrs.│ │ │ │ - │days before │ │ │ │ │ - │election. │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Colorado[734] │Citizen of │21 │Male or│1 yr. │90 da., 30 da.│10 da. - │U. S. or │yrs.│female.│ │in city or │ - │alien who │ │ │ │town. │ - │has declared│ │ │ │ │ - │intention 4 │ │ │ │ │ - │mo. before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Connecticut[735] │Citizen of │21 │Male. │1 yr. │6 mo. │6 mo. in - │U. S. │yrs.│ │ │ │town. - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Alabama[714] │Poll │Owner or │Able to read - │taxes for│husband of │and write - │preceding│owner of 40 │Constitution - │year paid│acres of land│of U. S. in - │by Feb. │in State upon│English, - │1, before│which he │unless - │election.│resides or of│physically - │ │personal │disabled. - │ │property │ - │ │worth $300 │ - │ │upon which │ - │ │taxes for │ - │ │preceding │ - │ │year have │ - │ │been paid. │ - ──────────────────┼─────────┼─────────────┼───────────── - Arkansas[732] │Poll tax │ │ - │for │ │ - │preceding│ │ - │year │ │ - │paid. │ │ - ──────────────────┼─────────┼─────────────┼───────────── - California[733] │ │ │Able to read - │ │ │Constitution - │ │ │in English - │ │ │and write - │ │ │name. - ──────────────────┼─────────┼─────────────┼───────────── - Colorado[734] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Connecticut[735] │ │ │Able to read - │ │ │Constitution - │ │ │or Statutes - │ │ │of State in - │ │ │English. - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Alabama[714] │One might │One might │ - │permanently │permanently│ - │register │register │ - │before Dec. │before Dec.│ - │20, 1902 (1) │20, 1902, │ - │if he had │if he was │ - │honorably │of good │ - │served in the│character │ - │forces of the│and │ - │U. S. in the │understood │ - │War of 1812, │the duties │ - │War with │and │ - │Mexico, any │obligations│ - │war with │of citizens│ - │Indians, war │under a │ - │between the │republican │ - │States, war │form of │ - │with Spain, │government.│ - │or in the │ │ - │forces of the│ │ - │Confederate │ │ - │States or of │ │ - │Ala. during │ │ - │the war │ │ - │between the │ │ - │States, or │ │ - │(2) if he was│ │ - │the lawful │ │ - │descendant of│ │ - │one of the │ │ - │above. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Arkansas[732] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - California[733] │Educational │ │ - │test did not │ │ - │apply to men │ │ - │60 years old │ │ - │when │ │ - │amendment │ │ - │took effect. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Colorado[734] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Connecticut[735] │ │Voter must │ - │ │have good │ - │ │moral │ - │ │character. │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Alabama[714] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Arkansas[732] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts of │ │ - │ │ │felonies. │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - California[733] │ │Idiots and │Embezzlers of│ │Natives - │ │insane. │public │ │of - │ │ │moneys. │ │China. - │ │ │Convicts of │ │ - │ │ │infamous │ │ - │ │ │crimes. │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Colorado[734] │ │Insane and │Convicts in │ │ - │ │_non compos │prison. │ │ - │ │mentis_. │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Connecticut[735] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts of │ │ - │ │ │heinous │ │ - │ │ │crimes. │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Delaware[736] │Citizen of │22 │Male. │1 yr. │3 mo. │30 da. - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Florida[737] │Citizen of │21 │Male. │1 yr. │6 mo. │ - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Georgia[718] │Citizen of │21 │Male. │1 yr. │6 mo. │ - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Idaho[738] │Citizen of │21 │Male or│6 mo. │30 da. │ - │U. S. │yrs.│female.│ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Illinois[739] │Citizen of │21 │Male. │1 yr. │90 da. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Delaware[736] │Paid │ │Able to read - │county │ │Constitution - │tax │ │in English or - │within 2 │ │write name. - │years, │ │ - │assessed │ │ - │6 mo. │ │ - │before │ │ - │election.│ │ - ──────────────────┼─────────┼─────────────┼───────────── - Florida[737] │Poll tax │ │ - │for 2 │ │ - │years │ │ - │preceding│ │ - │paid. │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Georgia[718] │All taxes│Owner of 40 │Able to read - │legally │acres of land│and write in - │required │in State on │English - │since │which he │Constitution - │1877 paid│resides or of│of U.S. or of - │6 mo. │personal │Ga., unless - │before │property in │physically - │election.│State worth │disabled. - │ │$500. │ - ──────────────────┼─────────┼─────────────┼───────────── - Idaho[738] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Illinois[739] │ │ │ - │ │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Delaware[736] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Florida[737] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Georgia[716] │One may │One without│One physically - │permanently │property or│disabled from - │register │education │reading and - │before Jan. │may vote, │writing may - │1, 1915 (1) │if he is of│vote if he can - │if he has │good moral │understand and - │honorably │character │reasonably - │served in │and │interpret the - │forces of │understands│Constitution - │U.S. in │the duties │of U.S. or of - │Revolutionary│and │Ga. when read - │War, War of │obligations│to him. - │1812, War │of citizens│ - │with Mexico, │under a │ - │any war with │republican │ - │Indians, war │form of │ - │between the │government.│ - │States, war │ │ - │with Spain, │ │ - │or in forces │ │ - │of │ │ - │Confederate │ │ - │States or of │ │ - │Ga. in war │ │ - │between the │ │ - │States, or │ │ - │(2) if he is │ │ - │lawful │ │ - │descendant of│ │ - │one of above.│ │ - ──────────────────┼─────────────┼───────────┼────────────── - Idaho[738] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Illinois[739] │One who was │ │ - │an elector │ │ - │April 1, │ │ - │1848, │ │ - │continued to │ │ - │be elector │ │ - │under new │ │ - │Constitution.│ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Delaware[736] │Paupers. │Idiots and │Unpardoned │ │ - │ │insane. │convicts of │ │ - │ │ │felonies. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Florida[737] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Georgia[716] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Idaho[738] │ │Idiots, │Convicts of │Tribal │Natives - │ │insane, and │felony, │Indians not │of - │ │persons under│bigamy, │taxed. │China. - │ │guardianship.│polygamy, and│ │ - │ │ │inmates of │ │ - │ │ │houses of │ │ - │ │ │ill-fame. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Illinois[739] │ │ │Unrestored │ │ - │ │ │convicts of │ │ - │ │ │felony or │ │ - │ │ │election │ │ - │ │ │bribery. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Indiana[740] │Citizen of │21 │Male. │6 mo. │60 da. in │30 da. - │U. S. or │yrs.│ │ │town. │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention if│ │ │ │ │ - │resident in │ │ │ │ │ - │U. S. 1 yr. │ │ │ │ │ - │before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Iowa[741] │Citizen of │21 │Male. │6 mo. │60 da. │ - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Kansas[742] │Citizen of │21 │Male. │6 mo. │ │30 da. - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Kentucky[743] │Citizen of │21 │Male. │1 yr. │6 mo. │60 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Louisiana[712] │Citizen of │21 │Male. │2 yrs.│1 yr. │6 mo. - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Indiana[740] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Iowa[741] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Kansas[742] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Kentucky[743] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Louisiana[712] │Poll tax │Owner of │Able to read - │for 2 │property │and write and - │years │worth $300, │make - │preceding│on which, if │application - │election │personal, │for - │paid, │taxes paid. │registration - │unless │ │in his own - │voter is │ │handwriting. - │60 yrs. │ │ - │old. │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Indiana[740] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Iowa[741] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Kansas[742] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Kentucky[743] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Louisiana[712] │One might │ │ - │permanently │ │ - │register │ │ - │before Sept. │ │ - │1, 1898, (1) │ │ - │if he was │ │ - │entitled to │ │ - │vote in any │ │ - │State, Jan. │ │ - │1, 1867,(2) │ │ - │son or │ │ - │grandson of │ │ - │such a one │ │ - │and 21 years │ │ - │old or over │ │ - │in 1898, or │ │ - │(3) a │ │ - │foreigner │ │ - │naturalized │ │ - │before Jan. │ │ - │1, 1898, │ │ - │resident in │ │ - │State 5 years│ │ - │before │ │ - │application │ │ - │for │ │ - │registration.│ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Indiana[740] │ │ │Convicts of │ │ - │ │ │infamous │ │ - │ │ │crime during │ │ - │ │ │term fixed by│ │ - │ │ │court. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Iowa[741] │ │Idiots and │Convicts of │ │ - │ │insane. │infamous │ │ - │ │ │crime. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Kansas[742] │ │Insane and │Unrestored │ │ - │ │persons under│convicts of │ │ - │ │guardianship.│treason, │ │ - │ │ │felony, │ │ - │ │ │bribery, │ │ - │ │ │embezzlement.│ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Kentucky[743] │ │Idiots and │Convicts of │ │ - │ │insane. │treason, │ │ - │ │ │felony, and │ │ - │ │ │bribery. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Louisiana[712] │Inmates of │Idiots and │Felons under │ │ - │charitable │insane. │indictment. │ │ - │institutions,│ │ │ │ - │except │ │ │ │ - │soldiers’ │ │ │ │ - │homes. │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Maine[744] │Citizen of │21 │Male. │3 mo. │ │ - │U.S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Maryland[745] │Citizen of │21 │Male. │1 yr. │6 mo. │ - │U.S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Massachusetts[746]│Citizen of │21 │Male. │1 yr. │6 mo. │6 mo. - │U.S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Michigan[747] │Citizen of │21 │Male. │6 mo. │20 da. │20 da. - │U.S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention │ │ │ │ │ - │before May │ │ │ │ │ - │8, 1892. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Minnesota[748] │Citizen of │21 │Male. │6 mo. │30 da. │30 da. - │U.S. 3 mo. │yrs.│ │ │ │ - │before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Mississippi[710] │Citizen of │21 │Male. │2 yrs.│1 yr. │1 yr. - │U.S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Maine[744] │ │ │Able to read - │ │ │Constitution - │ │ │in English - │ │ │and write - │ │ │name. - ──────────────────┼─────────┼─────────────┼───────────── - Maryland[745] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Massachusetts[746]│ │ │Able to read - │ │ │Constitution - │ │ │in English - │ │ │and write - │ │ │name. - ──────────────────┼─────────┼─────────────┼───────────── - Michigan[747] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Minnesota[748] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Mississippi[710] │All taxes│ │Able to read - │for 2 │ │Constitution - │preceding│ │of State. - │years │ │ - │paid. │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Maine[744] │Educational │ │ - │test did not │ │ - │apply to men │ │ - │who were │ │ - │entitled to │ │ - │vote when │ │ - │amendment │ │ - │took effect │ │ - │in 1893 or to│ │ - │men 60 years │ │ - │old at that │ │ - │time. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Maryland[745] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Massachusetts[746]│Educational │ │ - │test did not │ │ - │apply to men │ │ - │who were │ │ - │entitled to │ │ - │vote when │ │ - │amendment │ │ - │went into │ │ - │effect in │ │ - │1857 or to │ │ - │men 60 years │ │ - │old at that │ │ - │time. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Michigan[747] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Minnesota[748] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Mississippi[710] │ │ │One without - │ │ │ability to - │ │ │read may vote - │ │ │if he can - │ │ │understand or - │ │ │reasonably - │ │ │interpret the - │ │ │Constitution. - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Maine[744] │Paupers. │Persons under│ │Indians not │ - │ │guardianship.│ │taxed. │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Maryland[745] │ │Lunatics, │Unpardoned │ │ - │ │_non compos │convicts of │ │ - │ │mentis_. │felony and │ │ - │ │ │bribery. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Massachusetts[746]│Paupers. │Persons under│ │ │ - │ │guardianship.│ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Michigan[747] │ │ │Duelists and │Tribal │ - │ │ │accessories. │Indians. │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Minnesota[748] │ │Insane and │Unpardoned │Tribal │ - │ │persons under│convicts of │Indians. │ - │ │guardianship.│treason and │ │ - │ │ │felony. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Mississippi[710] │ │Idiots and │Convicts of │Indians not │ - │ │insane. │felony and │taxed. │ - │ │ │bigamy. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Missouri[749] │Citizen of │21 │Male. │1 yr. │60 da. │20 da. - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention │ │ │ │ │ - │not less │ │ │ │ │ - │than 1 nor │ │ │ │ │ - │more than 5 │ │ │ │ │ - │years before│ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Montana[750] │Citizen of │21 │Male. │1 yr. │30 da. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Nebraska[751] │Citizen of │21 │Male. │6 mo. │40 da. │10 da. - │U.S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention 30│ │ │ │ │ - │days before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Nevada[752] │Citizen of │21 │Male. │6 mo. │30 da. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - New Hampshire[753]│Citizen of │21 │Male. │6 mo. │6 mo. │6 mo. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - New Jersey[754] │Citizen of │21 │Male. │1 yr. │5 mo. │ - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - New York[755] │Citizen of │21 │Male. │1 yr. │4 mo. │30 da. - │U. S. 90 │yrs.│ │ │ │ - │days before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Missouri[749] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Montana[750] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Nebraska[751] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Nevada[752] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - New Hampshire[753]│ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - New Jersey[754] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - New York[755] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Missouri[749] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Montana[750] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Nebraska[751] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Nevada[752] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - New Hampshire[753]│One who │ │ - │served in the│ │ - │Rebellion and│ │ - │has been │ │ - │honorably │ │ - │discharged is│ │ - │not │ │ - │disfranchised│ │ - │because he │ │ - │has received │ │ - │help from the│ │ - │public. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - New Jersey[754] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - New York[755] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Missouri[749] │Inmates of │ │Unpardoned │ │ - │poorhouses or│ │convicts of │ │ - │asylums at │ │infamous │ │ - │public │ │crimes. │ │ - │expense. │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Montana[750] │Inmates of │Idiots and │Unpardoned │Indians. │ - │public │insane. │felons. │ │ - │institutions.│ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Nebraska[751] │ │_Non compos │Unrestored │ │ - │ │mentis._ │convicts of │ │ - │ │ │treason and │ │ - │ │ │felony. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Nevada[752] │ │Idiots and │Unpardoned │Indians. │Natives - │ │insane. │convicts. │ │of - │ │ │ │ │China. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - New Hampshire[753]│Paupers. │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - New Jersey[754] │Paupers. │Idiots and │Unpardoned or│ │ - │ │insane. │unrestored │ │ - │ │ │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - New York[755] │ │ │Unrestored │ │ - │ │ │convicts of │ │ - │ │ │crimes │ │ - │ │ │against │ │ - │ │ │suffrage. │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - North │Citizen of │21 │Male. │2 yrs.│6 mo. │4 mo. - Carolina[713] │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - North Dakota[756] │Citizen of │21 │Male. │1 yr. │6 mo. │90 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Ohio[757] │Citizen of │21 │Male. │1 yr. │30 da. │20 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Oklahoma[758] │Citizen of │21 │Male. │1 yr. │6 mo. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Oregon[759] │Citizen of │21 │Male. │6 mo. │ │ - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention 1 │ │ │ │ │ - │year before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Pennsylvania[760] │Citizen of │21 │Male. │1 yr. │2 mo. │2 mo. - │U. S. 1 │yrs.│ │ │ │ - │month before│ │ │ │ │ - │election. │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Rhode Island[761] │Citizen of │21 │Male. │2 yrs.│6 mo. in town.│ - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - North │Poll tax │ │Able to read - Carolina[713] │for │ │and write - │preceding│ │Constitution - │year │ │in English. - │paid. │ │ - ──────────────────┼─────────┼─────────────┼───────────── - North Dakota[756] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Ohio[757] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Oklahoma[758] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Oregon[759] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Pennsylvania[760] │State or │ │ - │county │ │ - │tax paid │ │ - │within 2 │ │ - │years, │ │ - │and 1 mo.│ │ - │before │ │ - │election.│ │ - ──────────────────┼─────────┼─────────────┼───────────── - Rhode Island[761] │ │Owner of │ - │ │property │ - │ │worth $134 on│ - │ │which taxes │ - │ │of preceding │ - │ │year paid, or│ - │ │payer of a │ - │ │rental of $7 │ - │ │a year to │ - │ │vote for city│ - │ │councillors │ - │ │or on │ - │ │finances. │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - North │One might be │ │ - Carolina[713] │permanently │ │ - │registered │ │ - │before Dec. │ │ - │1, 1908 (1) │ │ - │if he was │ │ - │entitled to │ │ - │vote Jan. 1, │ │ - │1867, or (2) │ │ - │the lineal │ │ - │descendant of│ │ - │such a one. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - North Dakota[756] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Ohio[757] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Oklahoma[758] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Oregon[759] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Pennsylvania[760] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Rhode Island[761] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - North │ │Idiots and │Unrestored │ │ - Carolina[713] │ │lunatics. │convicts of │ │ - │ │ │felony and │ │ - │ │ │infamous │ │ - │ │ │crimes. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - North Dakota[756] │ │Insane, _non │Unrestored │Tribal │ - │ │compos │convicts of │Indians. │ - │ │mentis_, │treason and │ │ - │ │under │felony. │ │ - │ │guardianship.│ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Ohio[757] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Oklahoma[758] │Inmates of │Idiots and │Convicts of │Tribal │ - │poorhouses │insane. │felony. │Indians. │ - │and asylums, │ │ │ │ - │except │ │ │ │ - │soldiers’ │ │ │ │ - │homes. │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Oregon[759] │ │Idiots and │Convicts of │ │Natives - │ │insane. │felony. │ │of - │ │ │ │ │China. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Pennsylvania[760] │ │ │Convicts of │ │ - │ │ │crimes │ │ - │ │ │against │ │ - │ │ │suffrage. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Rhode Island[761] │Paupers. │Insane, _non │Unrestored │ │ - │ │compos │convicts. │ │ - │ │mentis_, │ │ │ - │ │under │ │ │ - │ │guardianship.│ │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - South │Citizen of │21 │Male. │2 yrs.│1 yr. │4 mo. - Carolina[711] │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - South Dakota[762] │Citizen of │21 │Male. │1 yr. │6 mo. │30 da. - │U. S. │yrs.│ │ │ │ - │resident in │ │ │ │ │ - │U. S. 1 │ │ │ │ │ - │year, or │ │ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Tennessee[763] │Citizen of │21 │Male. │1 yr. │6 mo. │ - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Texas[764] │Citizen of │21 │Male. │1 yr. │6 mo. │ - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention 6 │ │ │ │ │ - │mo. before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Utah[765] │Citizen of │21 │Male or│1 yr. │4 mo. │60 da. - │U. S. 90 da.│yrs.│female.│ │ │ - │before │ │ │ │ │ - │election. │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Vermont[766] │Citizen of │21 │Male. │1 yr. │3 mo. │3 mo. - │U. S. │yrs.│ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - South │All taxes│Owner of │Able to read - Carolina[711] │for │property │and write - │preceding│worth $300 │Constitution. - │year │upon which │ - │paid. │taxes for │ - │Poll tax │preceding │ - │paid 6 │year paid. │ - │mo. │ │ - │before │ │ - │election.│ │ - ──────────────────┼─────────┼─────────────┼───────────── - South Dakota[762] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Tennessee[763] │Poll tax │ │ - │for │ │ - │preceding│ │ - │year │ │ - │paid. │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Texas[764] │Poll tax │ │ - │paid by │ │ - │Feb. 1, │ │ - │before │ │ - │election.│ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Utah[765] │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Vermont[766] │ │ │ - │ │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - South │One might │ │One without - Carolina[721] │permanently │ │ability to - │register │ │read might - │before Jan. │ │register - │1, 1898, if │ │before Jan. 1, - │he could read│ │1898, if he - │the │ │could - │Constitution │ │understand and - │or understand│ │explain the - │and explain │ │Constitution. - │it. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - South Dakota[762] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Tennessee[763] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Texas[764] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Utah[765] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Vermont[766] │ │Voter must │ - │ │be of │ - │ │“quiet and │ - │ │peaceable │ - │ │behavior.” │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - South │Paupers │Idiots and │Unpardoned │ │ - Carolina[721] │persons in │insane. │convicts. │ │ - │public │ │ │ │ - │institutions.│ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - South Dakota[762] │ │Idiots, _non │Unpardoned │ │ - │ │compos │convicts. │ │ - │ │mentis_, │ │ │ - │ │under │ │ │ - │ │guardianship.│ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Tennessee[763] │ │ │Unpardoned │ │ - │ │ │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Texas[764] │Paupers. │Idiots and │Unpardoned or│ │ - │ │lunatics. │unrestored │ │ - │ │ │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Utah[765] │ │Idiots and │Unpardoned │ │ - │ │insane. │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Vermont[766] │ │ │Unpardoned │ │ - │ │ │convicts. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Virginia[725] │Citizen of │21 │Male. │2 yrs.│1 yr. │30 da. - │U. S. │yrs.│ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Washington[767] │Citizen of │21 │Male. │1 yr. │90 da. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - West Virginia[768]│Citizen of │21 │Male. │1 yr. │60 da. │Actual - │U. S. │yrs.│ │ │ │and _bona - │ │ │ │ │ │fide_ - │ │ │ │ │ │resident. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Wisconsin[769] │Citizen of │21 │Male. │1 yr. │10 da. │10 da. - │U. S. or │yrs.│ │ │ │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention. │ │ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Virginia[725] │State │One might be │Able to make - │poll tax │permanently │application - │for 3 │registered │for - │years │before 1904 │registration - │preceding│if he was the│in his own - │election │owner of │handwriting, - │paid, │property on │and to - │unless an│which the │prepare and - │old │State tax was│deposit - │soldier. │$1. │ballot - │ │ │without aid. - ──────────────────┼─────────┼─────────────┼───────────── - Washington[767] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - West Virginia[768]│ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Wisconsin[769] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Virginia[715] │One might be │ │One without - │permanently │ │ability to - │registered │ │read might be - │before 1904 │ │permanently - │(1) if, │ │registered - │before 1902, │ │before 1904, - │he served in │ │if he could - │the army or │ │understand and - │navy of the │ │explain the - │U. S. or of │ │Constitution - │the │ │of Va. - │Confederate │ │ - │States or (2)│ │ - │if he was the│ │ - │son of such a│ │ - │one, or if he│ │ - │was the owner│ │ - │of property │ │ - │on which the │ │ - │State tax was│ │ - │$1, or (3) if│ │ - │he was able │ │ - │to read and │ │ - │explain or │ │ - │understand │ │ - │and explain │ │ - │the │ │ - │Constitution │ │ - │of Va. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Washington[767] │One who was │ │ - │entitled to │ │ - │vote in 1889 │ │ - │continued to │ │ - │be a voter │ │ - │under the │ │ - │State │ │ - │Constitution.│ │ - ──────────────────┼─────────────┼───────────┼────────────── - West Virginia[768]│ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Wisconsin[769] │ │ │ - │ │ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Virginia[715] │Paupers. │Idiots and │Unrestored │ │ - │ │insane. │convicts and │ │ - │ │ │duellists. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Washington[767] │ │Idiots and │Unrestored │Indians not │ - │ │insane. │convicts. │taxed. │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - West Virginia[768]│Paupers. │Idiots and │Convicts of │ │ - │ │lunatics. │treason, │ │ - │ │ │felony, and │ │ - │ │ │bribery in │ │ - │ │ │elections. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Wisconsin[769] │ │Insane, under│Convicts. │Tribal │ - │ │guardianship.│ │Indians. │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - ──────────────────┬────────────┬────┬───────┬─────────────────────────────── - STATE OR │Citizenship.│Age.│ Sex. │ PREVIOUS RESIDENCE IN— - TERRITORY. │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┬──────────────┬───────── - │ │ │ │State.│ County. │Precinct. - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Wyoming[770] │Citizen of │21 │Male or│1 yr. │60 da. │10 da. - │U. S. │yrs.│female.│ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Alaska[771] │Citizen of │21 │Male. │1 yr. │6 mo. in │ - │U. S. or │yrs.│ │ │corporation. │ - │alien who │ │ │ │ │ - │has declared│ │ │ │ │ - │intention. │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Arizona[772] │Citizen of │21 │Male. │1 yr. │30 da. │30 da. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Hawaii[773] │Citizen of │21 │Male. │1 yr. │3 mo. in │ - │U. S. │yrs.│ │ │representative│ - │ │ │ │ │district. │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - New Mexico[774] │Citizen of │21 │Male. │6 mo. │3 mo. │3 mo. - │U. S. │yrs.│ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Philippines[775] │Native of │23 │Male. │ │6 mo. in │ - │Philippines.│yrs.│ │ │district. │ - │ │ │ │ │ │ - │ │ │ │ │ │ - │ │ │ │ │ │ - ──────────────────┼────────────┼────┼───────┼──────┼──────────────┼───────── - Porto Rico[723] │Citizen of │21 │Male. │1 yr. │ │ - │Porto Rico. │yrs.│ │ │ │ - ──────────────────┴────────────┴────┴───────┴──────┴──────────────┴───────── - - ──────────────────┬─────────┬─────────────┬───────────── - STATE OR │ Payment │Ownership of │ Educational - TERRITORY. │of Taxes.│ Property. │ Test. - ──────────────────┼─────────┼─────────────┼───────────── - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Wyoming[770] │ │ │Able to read - │ │ │Constitution - │ │ │of State in - │ │ │English. - ──────────────────┼─────────┼─────────────┼───────────── - Alaska[771] │ │To be voter │ - │ │in municipal │ - │ │election, one│ - │ │must own │ - │ │substantial │ - │ │property │ - │ │interests in │ - │ │the │ - │ │municipality.│ - ──────────────────┼─────────┼─────────────┼───────────── - Arizona[772] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Hawaii[773] │ │ │Able to - │ │ │speak, read - │ │ │and write - │ │ │English or - │ │ │Hawaiian. - ──────────────────┼─────────┼─────────────┼───────────── - New Mexico[774] │ │ │ - │ │ │ - ──────────────────┼─────────┼─────────────┼───────────── - Philippines[775] │Annual │Owner of │Able to - │tax of │property │speak, read - │$15 paid.│assets at │and write - │ │$250. │English or - │ │ │Spanish. - ──────────────────┼─────────┼─────────────┼───────────── - Porto Rico[723] │ │ │ - │ │ │ - ──────────────────┴─────────┴─────────────┴───────────── - - ──────────────────┬─────────────┬───────────┬────────────── - STATE OR │“Grandfather │“Character │“Understanding - TERRITORY. │ Clause.” │ Clause.” │ Clause.” - ──────────────────┼─────────────┼───────────┼────────────── - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Wyoming[770] │One entitled │ │ - │to vote under│ │ - │old │ │ - │Constitution │ │ - │might │ │ - │continue to │ │ - │vote under │ │ - │new │ │ - │Constitution │ │ - │of 1889. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Alaska[771] │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Arizona[772] │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Hawaii[773] │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - New Mexico[774] │ │ │ - │ │ │ - │ │ │ - │ │ │ - │ │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Philippines[775] │One may vote │ │ - │if he held │ │ - │substantial │ │ - │office under │ │ - │the Spanish │ │ - │régime. │ │ - ──────────────────┼─────────────┼───────────┼────────────── - Porto Rico[723] │ │ │ - │ │ │ - ──────────────────┴─────────────┴───────────┴────────────── - - ──────────────────┬─────────────────────────────────────────────────────────────── - STATE OR │ PERSONS EXCLUDED FROM SUFFRAGE. - TERRITORY. │ - ──────────────────┼─────────────┬─────────────┬─────────────┬────────────┬──────── - │ Paupers. │ Insane. │ Criminals. │ Indians. │Chinese. - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Wyoming[770] │ │Idiots and │Convicts of │ │ - │ │insane. │felony. │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Alaska[771] │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Arizona[772] │ │Idiots, │Convicts of │ │ - │ │insane under │felony. │ │ - │ │guardianship.│ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Hawaii[773] │ │Idiots and │Unrestored │ │ - │ │insane. │convicts. │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - New Mexico[774] │ │ │Unpardoned │Indians, │ - │ │ │convicts. │until │ - │ │ │ │disabilities│ - │ │ │ │removed by │ - │ │ │ │Congress. │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Philippines[775] │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - │ │ │ │ │ - ──────────────────┼─────────────┼─────────────┼─────────────┼────────────┼──────── - Porto Rico[723] │ │Insane. │Unpardoned │ │ - │ │ │felons. │ │ - ──────────────────┴─────────────┴─────────────┴─────────────┴────────────┴──────── - - - NOTES - -Footnote 661: - - The following table, giving the dates of the Constitutions of the - various States and the Organic Laws of the Territories with the - sections referring to suffrage, up to and including 1865, indicates - the extent to which suffrage was restricted to white people before and - at that date. “White,” “white freeman,” “free white,” etc., mean that - only white persons or white freemen or free white persons had the - elective franchise. Where the suffrage is given to male “citizens” or - “inhabitants” whether Negroes were included depends upon whether they - were treated in those States as “citizens” or “inhabitants.” - - Alabama, Const., 1819, art. III, sec. 5 White. - - Const., 1865, art. VIII, sec. 1 White. - - Arkansas, Const., 1836, art. IV, sec. 2 Free white. - - Const., 1864, art. IV, sec. 2 Free white. - - California, Const., 1849, art. II, sec. 2 White. - - Colorado, Ter. 1861, sec. 5 Free white. - Govt., - - Connecticut, Const., 1818, art. VI, sec. 2 White. - - Amend., 1845, art. VIII, sec. - - Delaware, Const., 1792, art. IV, sec. 1 Free white. - - Const., 1831, art. IV, sec. 1 Free white. - - Florida, Ter. 1822, sec. 11 Free white. - Govt., - - Const., 1838, art. VI, sec. 1 Free white. - - Const., 1865, art. VI, sec. 1 Free white. - - Georgia, Const., 1777, art. IX, White. - - Const., 1789, art. IV, sec. 1 Citizens and - inhabitants. - - Const., 1798, art. IV, sec. 1 Citizens and - inhabitants. - - Const., 1865, art. V, sec. 1 Free white. - - Illinois, Const., 1818, art. II, sec. 27 White. - - Const., 1848, art. VI, sec. 1 White. - - Indiana, Const., 1816, art. VI, sec. 1 White. - - Const., 1851, art. II, sec. 2 White. - - Iowa, Ter. 1838, sec. 5 Free white. - Govt., - - Const., 1846, art. II, sec. 1 White. - - Const., 1857, art. II, sec. 1 White. - - Kansas, Ter. 1854, sec. 5 Free white. - Govt., - - Const., 1855, art. II, sec. 2 White. - - Const., 1857, art. VIII, sec. 1 Citizens. - - Const., 1858, art. II, sec. 1 Citizens. - - Const., 1859, art. V, sec. 1 White. - - Kentucky, Const., 1792, art. III, Free citizens. - - Const., 1799, art. II, sec. 8 Free citizens. - - Const., 1850, art. II, sec. 8 Free white. - - Louisiana, Const., 1812, art. II, sec. 8 Free white. - - Const., 1845, tit. II, art. 10 Free white. - - Const., 1852, tit. II, art. 10 Free white. - - Const., 1864, tit. III, art. 14 White. - - Maine, Const., 1820, art. II, sec. 1 Citizens. - - Maryland, Const., 1776, art. II, Free men. - - Amend., 1810, art. XIV, Free white. - - Const., 1851, art. I, sec. 1 Free white. - - Const., 1864, art. I, sec. 1 White. - - Massachusetts, Const., 1780, chap. I, art. 4 Freeholders. - - Amend., 1822, art. III, Citizens. - - Michigan, Const., 1835, art. II, sec. 1 White. - - Const., 1850, art. VII, sec. 1 White. - - Minnesota, Ter. 1849, sec. 5 Free white. - Govt., - - Const., 1857, art. VII, sec. 1 White. - - Mississippi, Ter. 1808, sec. 1 Free white. - Govt., - - Const., 1817, art. III, sec. 1 Free white. - - Const., 1832, art. III, sec. 1 Free white. - - Missouri, Ter. 1812, sec. 11 Free white. - Govt., - - Const., 1820, art. III, sec. 10 Free white. - - Const., 1865, art. II, sec. 18 White. - - Nevada, Ter. 1850, sec. 5 Free white. - Govt., - - Ter. 1861, sec. 5 Free white. - Govt., - - Const., 1864, art. II, sec. 1 White. - - New Hampshire, Const., 1784, part II, Inhabitants. - - Const., 1792, part II, sec. 28 Inhabitants. - - New Jersey, Const., 1776, art. IV, Inhabitants. - - Const., 1844, art. II, sec. 1 White. - - New York, Const., 1777, art. VII, Inhabitants. - - Const., 1821, art. II, sec. 1 Citizens. - - Const., 1846, art. II, sec. 1 Citizens. - - North Const., 1776, art. VII, sec. Freemen. - Carolina, - - Amend., 1835, art. I, sec. 3 Freemen. (Negroes - excepted). - - Amend., 1854, Free white. - - Ohio, Const., 1802, art. IV, sec. 1 White. - - Const., 1851, art. V, sec. 1 White. - - Oregon, Ter. 1848, sec. 5 White. - Govt., - - Const., 1857, art. II, sec. 2 White. (Negroes - excepted). - - Pennsylvania, Const., 1776, art. II, sec. 6 Freemen. - - Const., 1790, art. III, sec. 1 Freemen. - - Const., 1838, art. III, sec. 1 White freemen. - - Rhode Island, Const., 1842, art. II, sec. 1 Citizens. - - South Const., 1776, res. XI, “As required by - Carolina, law.” - - Const., 1778, res. XIII, sec. Free white. - - Const., 1790, art. I, sec. 4 Free white. - - Amend., 1810, Free white. - - Tennessee, Const., 1796, art. III, sec. 1 Freemen. - - Const., 1834, art. IV, sec. 1 Free white. - - Texas, Const., 1836, art. VI, sec. 11 Citizens. - - Const., 1845, art. III, Free (Negroes - excepted). - - Vermont, Const., 1777, chap. II, sec. 6 Men of quiet and - peaceable - behavior. - - Const., 1786, chap. I, sec. 9 Men of quiet and - peaceable - behavior. - - Const., 1793, chap. II, sec. 21 Men of quiet and - peaceable - behavior. - - Virginia, Const., 1830, art. III, sec. 14 White. - - Const., 1850, art. III, sec. 1 White. - - Const., 1864, art. III, sec. 1 White. - - West Virginia, Const., 1861–63, art. III, sec. 1 White. - - Wisconsin, Ter. 1836, sec. 5 Free white. - Govt., - - Const., 1848, art. III, sec. 1 White. - -Footnote 662: - - Art. II, sec. 2. - -Footnote 663: - - Art. VII, sec. 1. - -Footnote 664: - - Const., 1799, art. III. - -Footnote 665: - - Const., 1845, art. III. - -Footnote 666: - - Art. II, sec. 1. - -Footnote 667: - - Art. III, sec. 1. - -Footnote 668: - - B. P. Poore: “Charters and Constitutions,” II, p. 1353. - -Footnote 669: - - Amends. to Const. of 1776, art. I, sec. 3, par. 3. - -Footnote 670: - - Congressional Record, vol. 33, part 8, app. pp. 297, _et seq._ - -Footnote 671: - - Art. IV, sec. 1. - -Footnote 672: - - Art. III, sec. 1. - -Footnote 673: - - Gillespie v. Palmer, 1866, 20 Wis. 544; Laws of Wis. 1849, p. 85. - -Footnote 674: - - Albert Bushnell Hart: “Slavery and Abolition,” p. 83; “The Realities - of Negro Suffrage” in the Proceedings of the American Political - Science Association for 1906. - -Footnote 675: - - Ala., 1867, art. VII, sec. 1; Ark, 1868, art. VIII, sec. 2; Fla., - 1868, art. XV, sec. 1; Ga., 1868, art. II, sec. 2; La., 1868, tit. VI, - art. 98; Miss., 1868, art. VII, sec. 2; N. C., 1868, art. VI, sec. 1; - S. C. 1868, art. VIII, sec. 1; and Texas, 1868, art. III, sec. 1. - -Footnote 676: - - Art. III, sec. 1. - -Footnote 677: - - Art. II, sec. 2. - -Footnote 678: - - B. P. Poore: “Charters and Constitutions,” II, p. 1353. - -Footnote 679: - - Laws of Colo., 1861, pp. 71–72. - -Footnote 680: - - _Ibid._, 1864, pp. 79–80. - -Footnote 681: - - Pub. Acts of Conn., 1865, pp. 94–95. - -Footnote 682: - - Laws of Minn., 1865, pp. 118–19. - -Footnote 683: - - Laws of Wis., 1865, pp. 517–18. - -Footnote 684: - - Congressional Record, vol. 35, part 2, pp. 1270 _et seq._ - -Footnote 685: - - Laws of Ia., 1868, pp. 290–91. - -Footnote 686: - - Art. VII. - -Footnote 687: - - Laws of Dak. Ty., 1867–68, p. 255. - -Footnote 688: - - Congressional Record, vol. 35, part 2, pp. 1270 _et seq._ - -Footnote 689: - - Art. VII, sec. 1. - -Footnote 690: - - Amend., 1870, art II, sec. 1. - -Footnote 691: - - Art. III, sec. 1. - -Footnote 692: - - Const., 1867, art. I, sec. 1. - -Footnote 693: - - Neal v. Del., 1880, 103 U. S. 370. - -Footnote 694: - - Laws of Ore., 1870, pp. 190–91. - -Footnote 695: - - Laws of N. Y., 1870, I, p. 922. - -Footnote 696: - - 16 Stat. L., 140–46, chap. 94. - -Footnote 697: - - U. S. v. Reese, 1875, 92 U. S. 214. - -Footnote 698: - - U. S. v. Canter, 1870, Fed. Case No. 14,719. - -Footnote 699: - - U. S. v. Crosby, 1871, Fed. Case No. 14,893. - -Footnote 700: - - Anthony v. Halderman, 1871, 7 Kan. 50. - -Footnote 701: - - Kellogg v. Warmouth, 1872, Fed. Case No. 7,667. - -Footnote 702: - - U. S. v. Given, 1873, Fed. Case Nos. 15,210 and 15,211. - -Footnote 703: - - U. S. v. Cruikshank, 1874, Fed. Case No. 14,897; 92 U. S. 542 (1875). - -Footnote 704: - - U. S. v. Petersburg (Va.) Judges of Election, 1874, Fed. Case No. - 16,036. - -Footnote 705: - - Bernier v. Russell, 1878, 89 Ill. 60. - -Footnote 706: - - _Ex parte_ Yarborough, 1884, 110 U. S. 651. - -Footnote 707: - - Minor v. Happersett, 1874, 21 Wall. 162. - -Footnote 708: - - 92 U. S. 214 (1875). - -Footnote 709: - - Ratliff v. Beale, 1896, 20 S. 865. - -Footnote 710: - - Const., 1890, art. XII, secs. 241 _et seq._ - -Footnote 711: - - Const., 1895, art. II. - -Footnote 712: - - Const., 1898, arts. 197, 198, and 202. - -Footnote 713: - - Revised Stat., 1905, secs. 4315–17; Const., 1875, as amended 1900, - art. VI. - -Footnote 714: - - Const., 1902, secs. 177–82. - -Footnote 715: - - Const., 1902, art. II, secs. 18 _et seq._ - -Footnote 716: - - Laws of Ga., 1908, pp. 27–31. - -Footnote 717: - - W. P. Pickett: “The Negro Problem,” 1909, G. P. Putnam’s Sons, p. 250; - Laws of Md., 1908, pp. 301–04. - -Footnote 718: - - Const. of U. S., art. I, sec. 8, par. 4. - -Footnote 719: - - 22 Stat. L., 61. - -Footnote 720: - - Federal Stat., annotated, vol. 5, pp. 207–08. - -Footnote 721: - - Hedgman v. Bd. of Registration, 1872, 26 Mich. 51. - -Footnote 722: - - _The American Political Science Review_, vol. 4, p. 63 (Feb., 1910). - -Footnote 723: - - 31 Stat. L., 82–83, chap. 191; Sixty-first Cong., 2d sess., H. Doc. - No. 615; Congressional Record, vol. 45, p. 1199. - -Footnote 724: - - Williams v. Miss., 1898, 170 U. S. 213, at p. 225. - -Footnote 725: - - Mills v. Green, 1895, 159 U. S. 651; Jones v. Montague, 1904, 194 U. - S. 147; Selden v. Montague, 1904, 194 U. S. 153; Giles v. Teasley, - 1904, 136 Ala. 164, and 193 U. S. 146; Giles v. Harris, 1903, 189 U. - S. 475. For discussions of the constitutionality of the suffrage laws - of the South see _The American Political Science Review_, vol. I, pp. - 17, _et seq._, and John Mabry Mathews: “History of the Fifteenth - Amendment,” 1909, The Johns Hopkins Press, pp. 97–127. - -Footnote 726: - - Mathews: History of the Fifteenth Amendment, pp. 125–26. - -Footnote 727: - - Raleigh, N. C., _News and Observer_, Nov. 9, 1907; Feb. 24, 25, and - 28, 1909. - -Footnote 728: - - See Poindexter v. Greenhow, 1884, 114 U. S. 270, at p. 304; and - Spraigue v. Thompson, 1886, 118 U. S. 90, at p. 95. - -Footnote 729: - - Laws of Md., 1910, chap. 253. - -Footnote 730: - - _The Harvard Law Review_, vol. XXIII, p. 169. - -Footnote 731: - - W. P. Pickett: The Negro Problem, pp. 259–84. - -Footnote 732: - - Kirby’s Digest, 1904, sec. 2767. - -Footnote 733: - - Const., 1880, art. II, sec. 1, as amended 1894. - -Footnote 734: - - Const., 1876, art. VII, sec. 1, as amended 1893; Revised Stat., 1908, - secs. 2027 and 2146–50. - -Footnote 735: - - Const., 1818, art. VI, secs. 2 and 3, as amended 1897; General Stat., - 1902, secs. 1593–94. - -Footnote 736: - - Const., 1831, art. IV, sec. 1. - -Footnote 737: - - Const., 1887, art. VI, sec. 1; General Stat., 1906, sec. 170. - -Footnote 738: - - Const., 1889, art. VI, sec. 2. - -Footnote 739: - - Const., 1870, art. VII, sec. 1. - -Footnote 740: - - Const., 1851, art. II, secs. 84–85; Burns’s Stat., 1908, II, sec. - 6877. - -Footnote 741: - - Const., 1881, art. II. - -Footnote 742: - - Const., 1859, art. V. - -Footnote 743: - - Const., 1891, sec. 145. - -Footnote 744: - - Const., 1819, art. II, as amended 1893. - -Footnote 745: - - Const., 1867, art. I, secs. 1–3. - -Footnote 746: - - Const., 1780, as amended 1821 and 1857. - -Footnote 747: - - Const., 1850, art. VII, secs. 1 and 8. - -Footnote 748: - - Const., 1858, art. VII. - -Footnote 749: - - Const., 1875, art. VIII, secs. 2, 8, 10, and 11. - -Footnote 750: - - Const., 1889, art. IX. - -Footnote 751: - - Const., 1866, art. VII. - -Footnote 752: - - Const., 1864, art. II. - -Footnote 753: - - Public Stat., 1901, pp. 136–37. - -Footnote 754: - - Const., 1864, art. II. - -Footnote 755: - - Const., 1894, art. II. - -Footnote 756: - - Const., 1889, as amended, sec. 121. - -Footnote 757: - - Const., 1851, art. V. - -Footnote 758: - - Const., 1907, art. III. - -Footnote 759: - - Const., 1859, art. II. - -Footnote 760: - - Const., 1874, art. VIII. - -Footnote 761: - - Const., 1842, as amended 1888, art. II. - -Footnote 762: - - Const., 1889, art. VII. - -Footnote 763: - - Const., 1870, art. IV. - -Footnote 764: - - Herron’s Sup. to Sayles’s Civil Stat., 1906, p. 165. - -Footnote 765: - - Const., 1895, art. IV. - -Footnote 766: - - Statutes, 1906, p. 104. - -Footnote 767: - - Const., 1889, art. VI. - -Footnote 768: - - Const., 1872, art. IV, sec. 1. - -Footnote 769: - - Const., 1848, art. III. - -Footnote 770: - - Const., 1889, art. VI. - -Footnote 771: - - Code, 1907, part V, sec. 199. - -Footnote 772: - - Revised Stat., 1901, sec. 2282. - -Footnote 773: - - Revised Laws, 1901, secs. 18, 60, and 63. - -Footnote 774: - - Organic Act, 1850, sec. 6; Compiled Laws, 1897, secs. 1647, 1672, and - 1677–78. - -Footnote 775: - - _The Outlook_, vol. 91, p. 78. - - - - - CHAPTER XII - RACE DISTINCTIONS _VERSUS_ RACE DISCRIMINATIONS - - -Heretofore, the writer has let the legislatures and courts speak for -themselves, withholding personal opinions and refraining from making -deductions from the facts revealed. Now, however, that the various race -distinctions have been reviewed at some length, it may be worth while to -consider what conclusions the facts warrant and what practical lessons -they suggest. - - - RACE DISTINCTIONS NOT CONFINED TO ONE SECTION - -Race distinctions are not confined to any one section of the country. -This conclusion is the most patent of all. There is scarcely a State or -Territory in the Union where legislative or judicial records do not -reveal the actual existence of at least some race distinctions. Of the -twenty-six States and Territories that prohibit intermarriage, more than -half, extending from Delaware to Oregon, are outside the South. Negroes -have, on account of their race, been excluded, usually contrary to the -local laws, from hotels in Massachusetts, Pennsylvania, Indiana, New -York, Wisconsin, Michigan, Ohio, and Iowa; from barber-shops, in -Nebraska and Connecticut; from bootblack stands, in New York; from -billiard-rooms, in Massachusetts; from saloons, in Minnesota and Ohio; -from soda fountains, in Illinois; from theatres, in Illinois and New -York; from skating rinks in New York and Iowa; and the bodies of Negroes -have been refused burial with those of white persons in Pennsylvania. It -is not meant here that Negroes are always excluded from such places in -these States, but that instances of such exclusions are found in the -laws. Most of the States have at one time or another made distinctions -between the races in schools. California and other States of the Far -West are demanding separate schools for Japanese. Ohio, Indiana, -Illinois, and Iowa, besides other States of the Middle West, clash from -time to time with their school boards for attempting to separate the -races in schools. Delaware is diligent in providing separate schools for -white persons and Negroes. In Massachusetts, until 1857, the school -board of Boston provided a separate school for Negroes in that city. As -to public conveyances, the term “Jim Crow,” applied to a car set apart -for Negroes, was first used in Massachusetts, and it was in Pennsylvania -that the first leading case involving the right of street car companies -to separate their passengers by race arose. Instances of actual -discrimination against Negroes by common carriers were found in -Illinois, Iowa, and California. How common race distinctions are in the -States mentioned the above resumé does not clearly show, because the -great majority of grievances caused by race distinctions do not reach -the court. But when one finds that the legislature has deemed it -advisable to enact a law against race distinctions, it is reasonable to -assume that they did in fact exist. For instance, five States, all -outside the South, prohibit discriminations by insurance companies on -account of race. Had these companies not evinced signs of discrimination -against Negroes, such statutes would not have been enacted. It is well -known that race distinctions are common in the South. - -Were this general prevalence of race distinctions fully realized, the -result would be a kindlier feeling one to another among the white people -of the various sections. They would then see that the presence or -absence of race distinctions is due, not to any inherent difference in -the character of the people, but to diverse conditions and environment. -When, therefore, the Negro children of Upper Alton, Illinois, are seen -to constitute an appreciable percentage of the school population, the -people of that town, as the people of a Southern town would do under -similar circumstances, demand for them a separate school. - - - RACE DISTINCTIONS NOT CONFINED TO ONE RACE - -Race distinctions are not confined to any one race. It is true that most -of the statutes and judicial decisions above referred to relate to the -Negro because he belongs to a race which is the largest non-Caucasian -element in the United States. Where, however, other race elements exist -in considerable numbers, similar distinctions are sanctioned. One finds, -for instance, in California and other States of the Far West, where -Japanese are numerous, laws prohibiting intermarriage between Mongolians -and Caucasians, and requiring separate schools for the two races. -Similar laws have been enacted wherever there is an appreciable number -of Indians. Wherever, in other words, any two races have lived together -in this country in anything like equal numbers, race distinctions have -been recognized in the law sooner or later; and, before becoming legally -recognized, have existed in practice. - - - RACE DISTINCTIONS NOT DECREASING - -Race distinctions do not appear to be decreasing. On the contrary, -distinctions heretofore existing only in custom tend to crystallize into -law. As a matter of fact, most of the distinctions which are described -above as the “Black Laws of 1865–68” are no longer in force. No State -now carries statutes prescribing the hour when a Negro laborer must -arise, requiring his contracts to be in writing, prohibiting him from -leaving the plantation or receiving visitors without his employer’s -consent, or exacting a license fee of him before he can engage in -certain trades. These laws were vestiges of the slave system and -survived but a short time after that system had been abolished. -Likewise, those statutes which prohibited Negroes from testifying in -court against white persons were repealed during the first few years -after Emancipation. But distinctions which are not the direct results of -slavery have found an increasing recognition in the law. Thus, though -Florida, Mississippi, and Texas had separate railroad coaches for -freedmen in 1866, the regular “Jim Crow” laws did not begin to creep -into the statutes of the Southern States till 1881. Now every Southern -State, except Missouri, has a law separating the races in railroad cars. -Mississippi, in 1888, was the first State to require separate -waiting-rooms. Louisiana, in 1902, took the lead in compelling separate -street car accommodations, being followed by most of the Southern States -within the last seven years. - -A similar tendency toward crystallization of race distinctions into law -is found in schools. Though Massachusetts permitted separate schools as -early as 1800, and though the Southern States required them from the -beginning of their public school system, it is only recently that any -States have seen fit to create distinctions in private schools by -legislation. At present, Florida, Kentucky, Oklahoma, and Tennessee -prohibit the teaching of white and Negro students in the same private -schools, and their action in so doing the Supreme Court of the United -States in the Berea College case has decided to be constitutional. -Moreover, the Japanese school question of the West has become of -national concern only within the last two years. - -In the matter of suffrage also one observes the same general trend of -practices slowly passing into statutes. Between 1877 and 1890 Negroes in -the South were disfranchised to a great extent in defiance of law. -Beginning with Mississippi in 1890 and ending with Georgia in 1908, -seven Southern States have made constitutional provisions which, though -not in letter creating race distinctions, lend themselves to race -discriminations. - -That actual race distinctions still persist outside the South is shown -by recent decisions. For instance, within a year, the Appellate Division -of the Supreme Court of New York, in reducing damages awarded in the -court below to a Negro porter for false imprisonment, held that by -reason of his race, he did not suffer as much damage as would a white -man under like circumstances. The New York _Times_ of November 19, 1909, -refers to a recent decision of the Supreme Court of Iowa as holding that -a coffee company licensed under the State laws, being a private concern, -has the right to refuse to serve a Negro. - -Perhaps, as a whole, actual race distinctions in the United States are -not increasing; but distinctions, formerly sanctioned only by custom, -are now either permitted or required by law, and the number of recent -suits in States outside the South indicates that actual discriminations -are as prevalent as they have been at any time since 1865. - - - DISTINCTIONS NOT BASED ON RACE SUPERIORITY - -What is the fundamental cause of race distinctions? No comparison of -laws can formulate an answer to that question; but the personal -observation of the writer leads to the belief that race distinctions are -not based fundamentally upon the feeling by one race of superiority to -the other, but are rather the outgrowth of race consciousness. If -Negroes were in every way equally advanced with white people, race -distinctions would probably be even more pronounced than now; because, -in addition to physical differentiation, there would be the rivalry of -equally matched races. Thus, the widespread prejudice entertained by -Gentiles toward Jews, resulting in actual, if not legal, distinctions, -is due, not to any notion that Jews are intellectually or morally -inferior to any people, but to a race consciousness which each -possesses. The exclusion of the Japanese was due, not so much to an -intellectual or moral inferiority of that race to the white race, as to -a difference in their racial ideals. So long as two races living side by -side have each an _amour propre_, the more numerous may be expected to -prescribe distinctions to which the less numerous must submit; that is, -until the spirit of universal brotherhood is a more compelling force -than it is at present. - - - SOLUTION OF RACE PROBLEM HINDERED BY MULTIPLICITY OF PROPOSED REMEDIES - -If the above generalizations are correct, they should enable one to draw -some practical conclusions for dealing with race problems. The proper -adjustment of race relations is being retarded by the multiplicity of -suggested solutions, many of them conflicting and thus hindering one -another, some of them parallel and necessarily duplicating expenditure -of energy. For instance, some men, including both Negroes and white -persons, believe that the proper solution of the race problem is the -deportation of the Negro race; others, that it is the segregation of -that race in some portion of the United States or colonization in some -territorial possession; while others believe that the South should -remain the permanent home of the majority of Negroes. Advocates of -territorial separation of one sort or another think that efforts should -be directed toward getting the Negro to his new home as soon as -possible. Those who believe that the home of the Negro will remain in -this country are divided upon the steps to be taken. Some of this class -approve of further education of the Negro, being divided, however, into -two overlapping groups, the one emphasizing literary training, and the -other industrial. Others of this class maintain that any sort of -systematic education of the Negro is only hastening an inevitable race -conflict. In the midst of these conflicting opinions, the Negro problem, -instead of reaching a complete or even partial solution, is only being -aggravated. - -There is no need of prophesying what the final solution will be, but one -is justified in believing that the inevitable changes will be gradual. -Whether or not the final adjustment is a segregation of the Negro race, -one can hardly expect it to come in one, two, or even six decades. A -century hence the white people will probably be living side by side with -Negroes as they do now. The duty of the American people is to act -properly toward all races in their own lifetime: the far future will -take care of itself. The difficult thing to ascertain is the proper mode -of acting to-day. The solution of the race problem, when it does come, -will doubtless be a composite result. The race relations are not the -same in different sections of the country or in different States of the -South or even in different counties of the same State. Though the proper -steps now to be taken in the various sections or States or counties may -be different, there can, in the nature of things, be but one best mode -of action for each community. That must be one for which all people, -regardless of race or section, may profitably strive. - - - SEARCH FOR A COMMON PLATFORM - -A noticeable effort has been made during the past few years by students -of race relations to construct a platform upon which all men of every -race may stand and work together for the permanent settlement of all -racial antagonisms. This is evidenced by the organization of late years -of national movements which have enlisted the support of men of -different sections and races. One of these, the Southern Education -Association, has been promoted by men from the North and East as well as -by men from the South, by both Negroes and white people. Soon after the -Atlanta riots of two years ago, a conference of Southern white men and -Negroes was held at Atlanta, for the purpose of promoting harmony -between the races in the South. Within a few months a conference of -Northern and Southern white men has met in Washington City to consider -the Negro problem. Still more recently a group of Southern students in -Harvard University, realizing that the race relations were different in -different localities of the South, have organized an informal club to -study the practical problems arising out of the presence of the Negro in -the South and to exchange ideas formed from observation and experience -in their respective localities. There are other indications of a desire -to work out a common set of principles by which everyone may be -governed. - - - PROPER PLACE OF RACE DISTINCTIONS - -Assuming that it is possible to formulate a platform deserving the -approval of all races, it is appropriate for a student of any phase of -race relations to suggest a plank for it. A student in the special field -of race distinctions in American law may endeavor to show the place that -such legal distinctions properly hold, bearing in mind all the while -that the whole issue springs out of race consciousness as it actually -exists to-day, not as it should be or as it may be in the distant -future. - -Let one imagine the existence of a Federal statute—waiving the question -of its constitutionality—prohibiting States from legalizing race -distinctions, so that all public places of amusement, accommodation, and -instruction would be, so far as the law could make them, open to all -persons, regardless of race. Such a measure, far from effecting its -purpose, would doubtless be the beginning of extensive race -discriminations. Once abolish separate hotel accommodations and the -white race, wherever it is in the majority, would monopolize every -hotel, leaving other races either to walk the streets or to find -accommodations in private houses. Were separate street car -accommodations forbidden in cities where there is a fairly large -percentage of Negroes, if any passenger were forced to stand or be -crowded off the car altogether, it would be the Negro. Were separate -schools not permitted, Negro children might possibly be excluded from -schools altogether in defiance of the law; but even if admitted, their -interests, if different from those of the more numerous race, would have -to be sacrificed. A further review of race distinctions now legally -recognized would only more fully substantiate the conclusion that, with -race feeling as it is, if such distinctions were not recognized and -enforced, the stronger race would naturally appropriate the best for -itself and leave the weaker race to fare as it could. - -On the other hand, let one imagine that the same laws recognizing race -distinctions as now exist in the South obtained in all communities where -two races are nearly equal in numbers. Suppose, for instance, that -separate hotels were permitted in all cities which receive an -appreciable number of Negro travelers. Respectable Negroes might then -secure comfortable entertainment in hotels provided for their race and -thus escape the inconvenience and humiliation of being denied admission -to hotels maintained exclusively for white persons. If separate schools -were provided, Negro children would be free to pursue, unhampered by -requirements prescribed for the more developed race and unembittered by -continuous manifestations of race prejudice, a curriculum especially -adapted to their own needs. Wherever separate railroad and street car -accommodations were provided, a Negro might enter the car or compartment -reserved for his race and go his way in peace, unmolested by the -thoughtless or vicious of the other race. The result, therefore, of the -honest enforcement of race distinctions would be to the advantage of the -weaker race. - - - OBLITERATION OF RACE DISCRIMINATIONS - -The people of the different sections and races, instead of inquiring -into the truth or falsity of such a conclusion, have been agitating the -theoretical right and wrong of race distinctions. Meanwhile, indications -are that legalized race distinctions have been unfairly enforced. For -instance, statutes require that equal accommodations be given Negro -passengers in public conveyances; yet, while people have been debating -the constitutionality and justification of the “Jim Crow” laws, railroad -companies have been compelling Negroes to occupy uncomfortable and -unsanitary coaches and waiting-rooms, and this though Negroes paid the -same fare as white passengers. Furthermore, while they have been arguing -the constitutionality of the suffrage laws of the South, white -registrars have been putting unfair tests to Negro applicants for -registration, and by so doing have made the laws a tool by which to work -injustice to the Negro. While, finally, they have been strenuously -discussing the school laws, Negro children have been suffering from, not -only inadequate but, in many cases, improper training by ignorant Negro -teachers. - -In suggesting the benefits that would accrue to the weaker race from -legalized race distinctions, it is assumed that such distinctions would -apply only in communities in which two races live side by side in -something like equal numbers. The white people of the South should -recognize the inexpediency of requiring separate schools, separate -railroad and street cars, separate hotels, and separate accommodations -in general for the colored races in most places outside the South where -they constitute, in many instances, not more than one-tenth of the total -population. The white people in the places last mentioned should -recognize that it would be equally unwise to crowd together white and -colored races in schools, public conveyances, hotels, theatres, and -other public places in the South. Colored people everywhere should -realize that a race distinction is not necessarily a badge of racial -inferiority, but may be simply a natural result of racial -differentiation. Race distinctions may, therefore, have a very -appropriate place in communities where, as has been said before, two -races are about equal in numbers, at least where there are enough of the -subordinate race to arouse in the dominant a feeling of race -consciousness. - -Where, under the above view, race distinctions are justifiable, and are -enacted into law, the people of all races should unite in demanding that -the laws be fairly applied. If, for instance, the presence of sufficient -Negroes make it advisable to separate the races in public conveyances, -the white people should unite with them in demanding that they be given -equal accommodations. The Negro who has paid a first-class fare is -entitled to coaches and waiting-rooms as sanitary, comfortable, and -convenient as those provided for white persons paying the same fare. -With separate schools provided, they should insist that each race be -given an equal opportunity to get the sort of training it most needs to -do its work. This training may be different. The Southern Education -Association[776] in session at Lexington, Kentucky, said: “On account of -economic and psychological differences in the two races we believe there -should be a difference in the courses of study and methods of teaching, -and that there should be such an adjustment of school curricula as shall -meet the evident needs of Negro youth.” If it is true that the Negro -child needs a different sort of training from the white, then it is a -discrimination to give him the training peculiarly suited to the child -of the other race. People may demand for the two races equal educational -opportunities, and at the same time advocate different courses of study -and methods of teaching. - -In States which have added new qualifications for suffrage, both races -may demand their impartial application. A Negro public spirited enough -to pay his taxes, with education enough to read and write, or thrifty -enough to accumulate the required amount of property should be allowed -to register and vote as freely as a white man with similar -qualifications. A white registrar who discriminates against a Negro -applicant, by setting for him more difficult tests than are set for -white applicants, is doing an injustice to the white people equally as -great as that done to the Negroes. John B. Knox,[777] President of the -Alabama Constitutional Convention of 1901, said at that time: “If we -would have white supremacy, we must establish it by law—not by force or -fraud. If you teach your boy that it is right to buy a vote, it is an -easy step for him to learn to use money to bribe or corrupt officials or -trustees of any class. If you teach your boy that it is right to steal a -vote, it is an easy step for him to believe that it is right to steal -whatever he may need or greatly desire.” Speaking from the standpoint of -the Negro, Dr. Booker T. Washington[778] said: “As a rule, I believe in -universal, free suffrage, but I believe that in the South we are -confronted with peculiar conditions that justify the protection of the -ballot in many of the States, for a while at least, either by an -educational test, a property test, or by both combined; but whatever -tests are required, they should be made to apply with equal and exact -justice to both races.” All people, white and black, should unite, not -to secure the repeal of the suffrage laws, but to secure their -enforcement with absolute impartiality. - -The welfare of both races—and this conclusion applies equally to the -other non-Caucasian races—requires the recognition of race distinctions -and the obliteration of race discriminations. The races should be -separated wherever race friction might result from their enforced -association. The white race cannot attain its highest development when -continually venting its spite upon the less fortunate race. Nor, indeed, -can the Negro race reach its highest development when continually -subjected to the oppressions of the more fortunate race. - -Such a recognition of race distinctions and such an obliteration of race -discriminations as are here advocated constitute principles by which all -people, of every section and of every race, may stand and labor for the -promotion of good feeling between all sections and harmony between all -races. - - - NOTES - -Footnote 776: - - Raleigh, N. C., _News and Observer_, Dec. 31, 1907. - -Footnote 777: - - Proceedings of the Ala. Const. Conv., 1901, p. 12. - -Footnote 778: - - Booker T. Washington: “Up from Slavery,” p. 237. - - - - - TABLE OF CASES CITED[779] - - -Footnote 779: - - The number in parentheses refers to the note; the other number, to the - page. - - A - - Alsberg v. Lucerne Hotel Co. ([266]), 127. - - Anderson v. L. & N. Ry. Co. ([560]), 218. - - Anthony v. Halderman ([700]), 293. - - - B - - Barrett v. Jarvis ([46]), 27. - - Baylies v. Curry ([286]), 135. - - Bell v. State ([40]), 17. - - Berea College v. Com. ([339]), 157; ([339]), 158. - - Bernier v. Russell ([705]), 293. - - Binyon v. U. S. ([636]), 250. - - Board of Education of Richmond Co. v. Cummings ([492]), 193; ([159]), - 193. - - Board of Education v. Tinnon ([446]), 183. - - Booker v. Grand Rapids Medical College ([481]), 188. - - Bowlin v. Com. ([217]), 106; ([603]), 243. - - Bowlin v. Lyon ([289]), 136. - - Bradwell v. State ([593]), 240. - - Bryan v. Adler ([269]), 128. - - Bullock v. N. J. ([638]), 250. - - Burks v. Basso ([274]), 130. - - Burns v. State ([210]), 97. - - Bush v. Com. of Ky. ([636]), 250. - - Butler v. Butler ([145]), 74. - - - C - - C. & N. W. Ry. Co. v. Williams ([532]), 212. - - C. & O. Ry. Co. v. Com. of Ky. ([558]), 217; ([566]), 221. - - Carter v. Texas ([637]), 249; ([638]), 250; ([638]), 250. - - Cavitt v. Texas ([638]), 250. - - Cecil v. Green ([282]), 133. - - Chase v. Stephenson ([428]), 179. - - Chiles v. C. & O. Ry. ([563]), 219. - - Civil Rights Cases ([227]), 110. - - Clark v. Board of Sch. Dirs. ([440]), 183. - - Claybrook v. Owensboro ([510]), 197. - - Coger v. N. W. Union Packet Co. ([533]), 212. - - Coleman v. Vollmer ([141]), 73. - - Collins v. Texas ([638]), 250. - - Com. v. Sylvester ([275]), 131. - - Com. v. Williamson ([465]), 186. - - Comer v. Comer ([121]), 69. - - Cooper v. Md. ([638]), 250. - - Cory v. Carter ([436]), 181. - - Crosby v. City of Mayfield ([514]), 198. - - Cumby v. Garland ([141]), 73. - - - D - - Dallas v. Fosdick ([453]), 185. - - Dawson v. Lee ([511]), 197. - - Derry v. Lowry ([529]), 211. - - De Veaux v. Clemmons ([270]), 128. - - Dick’s Charge to Grand Jury ([225]), 109. - - Dolan v. State ([597]), 242. - - Donnell v. State ([283]), 134. - - Dove v. Ind. Sch. Dist. of Keokuk ([441]), 183. - - Down v. Allen ([148]), 74. - - - E - - Eastling v. Ark. ([638]), 250. - - Eden v. Legare ([44]), 27. - - Ellis v. Ala. ([650]), 274. - - Emmons’s Charge to Grand Jury ([226]), 109; ([284]), 134. - - Estill v. Rogers ([128]), 71. - - - F - - Faulkner v. Salozzi ([273]), 129. - - Ferguson v. Gies ([268]), 128. - - Flood v. _News and Courier_ Co. ([50]), 28. - - Francois, _ex parte_ ([193]), 86. - - Frasher v. State ([212]), 97. - - Fugett v. Texas ([638]), 250. - - Furchey v. Eagleson ([264]), 125. - - - G - - Giles v. Harris ([725]), 314. - - Giles v. Teasley ([725]), 314. - - Gillespie v. Palmer ([673]), 284. - - Green v. Ala. ([638]), 250. - - Green v. “City of Bridgeton” ([542]), 216. - - Green v. State ([211]), 97. - - Griffin v. Brady ([660]), 276. - - - H - - Haden v. Ivey ([137]), 73. - - Haggard v. Ky. ([638]), 250. - - Hall v. DeCuir ([536]), 213. - - Hedgman v. Bd. of Registration ([721]), 297. - - Hicks v. Ky. ([638]), 250. - - Hopkins v. Bowers ([39]), 17. - - Houck v. S. Pac. Ry. Co. ([568]), 224. - - Hubbard v. Texas ([638]), 250. - - Humburd v. Crawford ([271]), 129. - - - J - - Jones v. Montague ([725]), 314. - - Joseph v. Bidwell ([285]), 135. - - - K - - Kaine v. Sch. Dirs. ([467]), 186. - - Kellar v. Koerber ([277]), 133. - - Kellogg v. Warmouth ([701]), 293. - - Kelly v. State ([598]), 242. - - Kinney, _ex parte_ ([206]), 94. - - Kinney v. Com. ([191]), 84; ([205]), 93. - - Knox v. Board of Education of Independence ([446]), 183. - - Ky. v. Jackson ([638]), 250. - - - L - - L. & N. Ry. Co. v. Catron ([567]), 223. - - L. & N. Ry. Co. v. Com. of Ky. ([571]), 226. - - L. N. O. & T. Ry. Co. v. State ([558]), 217; ([559]), 218. - - La. v. Casey ([638]), 250. - - La. v. Joseph ([638]), 250. - - La. v. Murray ([638]), 250. - - Lane v. Baker ([357]), 167. - - Leach v. Texas ([641]), 251. - - Lehew v. Brummell ([489]), 192. - - Lewis v. Henley ([359]), 167. - - Lewis v. Hitchcock ([267]), 127. - - Logwood v. M. & C. Ry. Co. ([568]), 224; ([569]), 224. - - Lonas v. State ([212]), 97. - - Lord v. Ala. ([650]), 274. - - - M - - McAlpine v. State ([194]), 88. - - McDowell v. Bowles ([47]), 27. - - McDowell v. Sapp ([146]), 74. - - McMillan v. School Com. ([38]), 17. - - McPherson’s Case ([28]), 15. - - McPherson v. McCarrick ([645]), 252. - - Marshall v. Donovan ([507]), 196. - - Martin v. Board of Education of Morgan Co. ([471]), 186. - - Martin v. Texas ([638]), 250. - - Medway v. Needham ([208]), 94. - - Messenger v. State ([272]), 129. - - Mills v. Green ([725]), 314. - - Minor v. Happersett ([707]), 294. - - Minor v. Jones ([147]), 74. - - Mo. v. Brown ([638]), 250. - - Monroe v. Collins ([31]), 16. - - Murphy v. W. & A. Ry. Co. ([568]), 224. - - Murray, _ex parte_ ([636]), 250. - - - N - - N. C. v. Daniels ([638]), 250. - - N. C. v. Peoples ([638]), 250. - - N. C. v. Sloan ([638]), 250. - - Neal v. Del. ([636]), 250. - - Norwood v. G. H. & S. A. Ry. Co. ([570]), 224. - - - O - - O. Val. Ry. Rec. v. Lander ([558]), 217; ([561]), 218. - - - P - - Pace v. Ala. ([650]), 274. - - Pace and Cox v. State ([649]), 273. - - Parker v. Texas ([638]), 250. - - People v. Board of Education of Quincy ([429]), 179. - - People v. Board of Education of Upper Alton ([430]), 179. - - People v. Dean ([29]), 15. - - People v. Easton ([454]), 185. - - People v. Gallagher ([51]), 29; ([455]), 185. - - People v. Mayor, etc., of City of Alton ([431]), 180; ([433]), 180. - - People v. School Board of Borough of Queens ([456]), 185. - - People v. Washington ([616]), 245. - - Pierce v. Union Dist. Sch. Trustees ([451]), 184. - - Pierre v. Fontennette ([133]), 72. - - Pleasant v. N. B. & M. Ry. Co. ([531]), 212. - - Plessy v. Ferguson ([558]), 217; ([568]), 224. - - Poindexter v. Greenhow ([728]), 316. - - Pruitt v. Gaston Co. Commissioners ([515]), 198. - - Pullman-Palace Car Co. v. Cain ([564]), 220. - - - R - - Ratliff v. Beale ([49]), 295. - - Reynolds v. Board of Education of Topeka ([445]), 183; ([491]), 192. - - Rhone v. Loomis ([276]), 132. - - Riggles v. City of Durham ([515]), 198. - - Roberts v. The City of Boston ([360]), 167. - - Rogers v. Ala. ([635]), 249. - - Rowles v. Board of Education of Wichita ([446]), 183. - - Russ’s Application ([263]), 125. - - Ry. Co. v. Brown ([534]), 213. - - - S - - S. C. v. Brownfield ([638]), 250. - - Scott v. Lairamore ([130]), 71. - - Scott v. Sandford ([3]), 8. - - Scott v. State ([157]), 80. - - Selden v. Montague ([725]), 314. - - Slaughter-House Cases ([223]), 107. - - Smith v. Chamberlain ([565]), 220. - - Smith v. Dirs. of the Ind. Sch. of the Dist. of Keokuk ([441]), 183. - - Smith v. Ky. ([638]), 250. - - Smith v. Moody ([62]), 64. - - Smith v. State ([562]), 219; ([636]), 250. - - Smith v. Texas ([638]), 250; ([642]), 251; ([643]), 251. - - So. Ry. Co. v. Thurman ([53]), 31. - - Spotarno v. Fourichon ([48]), 27. - - Spraigue v. Thompson ([728]), 316. - - State _ex rel._ Tax Collector v. Falkenheimer ([279]), 133. - - State v. Bell ([150]), 78; ([204]), 92. - - State v. Board of Education of Cincinnati ([490]), 192. - - State v. Board of Education of Oxford ([462]), 185. - - State v. City of Cincinnati ([354]), 166. - - State v. Duffy ([449]), 184. - - State v. Gibson ([209]), 96. - - State v. Grubbs ([438]), 182. - - State v. Hairston ([212]), 97. - - State v. Kennedy ([151]), 78. - - State v. Lasater ([241]), 117. - - State v. Mitchell ([439]), 183. - - State v. Patterson ([587]), 233. - - State v. Tutty ([207]), 94. - - Stewart, of color, v. Munchandler ([129]), 71. - - Stewart v. Southard ([353]), 166. - - Stikes v. Swanson ([137]), 73. - - Strauder v. W. Va. ([635]), 249. - - - T - - Taylor, _in re_ ([592]), 239. - - “The Sue” ([543]), 216. - - Thomas v. Williams ([288]), 136. - - Thompson v. Texas ([644]), 251. - - Thurman v. State ([35]), 16. - - Turner, _in re_ ([112]), 57; ([219]), 106. - - - U - - Upton v. _Times-Democrat_ Pub. Co. ([49]), 28. - - United States v. Canter ([698]), 292. - - United States v. Crosby ([699]), 292. - - United States v. Cruikshank ([703]), 293. - - United States v. Dodge ([537]), 214; ([568]), 224. - - United States v. Given ([702]), 293. - - United States v. Newcomer ([262]), 124. - - United States v. Petersburg (Va.) Judges of Election ([704]), 293. - - United States v. Reese ([697]), 291; ([708]), 294. - - United States v. Rhodes ([218]), 106; ([594]), 242. - - - V - - Va., _ex parte_ ([635]), 249. - - Va. v. Rives ([635]), 249. - - Van Camp v. Board of Education of Logan ([356]), 166. - - - W - - Walden v. Vicksburg Ry. and Light Co. ([586]), 231. - - Walker v. Brockway ([30]), 16. - - Ward v. Flood ([420]), 177. - - Warren, _ex parte_ ([611]), 244. - - Washington v. Washington ([136]), 73. - - West Chester and Phila. Ry. Co. v. Mills ([530]), 212; ([568]), 224. - - Whitney v. Texas ([639]), 250. - - Whitney v. Texas ([647]), 252. - - Williams v. Board of Education of Fairfax Dist. ([471]), 186. - - Williams v. Board of Education of Parsons ([445]), 183. - - Williams v. Directors of Sch. Dist. No. 6 ([350]), 165. - - Williams v. Miss. ([724]), 314. - - Williams v. State ([122]), 69. - - Williams v. Texas ([638]), 250. - - Wilson v. Ga. ([638]), 250. - - Wolfe v. Ry. Co. ([52]), 31. - - Wood v. King ([45]), 27. - - Wysinger v. Crookshank ([422]), 178. - - - Y - - Yarborough, _ex parte_ ([706]), 293. - - Younger v. Judah ([287]), 136. - - - - - INDEX - - - A - - Accommodations, equality of,in schools, 192–194; - nature of, under “Jim Crow” laws, 223–224. - - Adultery and fornication between Negro and White, punishment for, 273. - - “African” as race name, 20. - - Africans, naturalization of, 297. - - “Afro-American” as race name, 20. - - Age as a qualification for voting, 297. - - Alabama, limitations in, upon Negroes in respect to occupations, 41–42; - sale of drugs by free Negroes prohibited in, 42; - separation of paupers by race in, 47; - apprentice laws in, 53; - slave marriages legal in, by statute, 73; - effect of attempted intermarriage in, 84; - punishment in, for issuing license for intermarriage, 86; - for performing ceremony, 87; - for cohabitation without intermarriage, 88; - separation of races in, in prisons, 146; - in asylums for deaf and blind, 148; - in public schools, 170; - division of public school fund between races in, 195; - Negroes as witnesses in, 242; - actual service by Negroes on juries in, 253–264; - qualifications for voting in, 322–323. - - Alaska, qualifications for voting in, 338–339. - - Albany, N. Y., separation of races in schools of, 185. - - Aliens as voters, 296–297. - - Alton, Ill., separation of races in schools of, 180. - - Amalgamation, between race elements in United States, 12; - race line blurred by, 12. - See Intermarriage, Miscegenation. - - Amendments to Federal Constitution, purpose of first ten, 102. - See Constitutionality, Suffrage. - - Anderson, Charles W., on proper name for Negro, 23. - - Apprentice laws applying to Negroes, 53–58; - in Alabama, 53; - in Kentucky, 53; - in North Carolina, 53; - in Mississippi, - 53–55; - in South Carolina, 55–57; - in Delaware, 57; - constitutionality of, 57. - - Arizona, selling liquor and firearms to Indians prohibited in, 45; - effect given to marriages in other States by, 93; - separation of races in schools of, 187; - qualifications for voting in, 338–339. - - Arkansas, slave marriages legal in, by statute, 73; - punishment in, for performing ceremony of intermarriage, 87; - civil rights legislation in, 116; - Negroes in militia in, 145; - separation of races in prisons of, 146; - in schools of, 170; - Negroes as witnesses in, 242; - early statute in, on Negro jury service, 249; - actual service by Negroes on juries in, 254–255; - qualifications for voting in, 322–323. - - Arnett, Benjamin W., excluded from hotels in Boston, 126. - - Asheville, N. C., suits in, over mistakes in race designation in - directory, 32. - - Asylums, separation of races in, 148. - - Atlanta, Ga., separation of races in saloons of, 133. - - - B - - Baker, Ray Stannard, “Following the Colour Line,” 6; - on - intermarriage in North, 99; - on race discrimination by labor unions, 140. - - Baptist denomination, race distinctions in, 141. - - Barber shops, race distinctions in, 129–130. - - Berea College, separation of races in, 154–159. - - Billiard rooms, race distinctions in, 131–132. - - “Black Laws,” of 1865–68, 35–63; - of free States, 36–39; - excuse for Reconstruction régime, 62–63. - - Black man, proper name for, in America, 20–24. - - “Blacks” as race name, 21. - - Blind, in asylums, separated by race, 147. - - Boarding houses. See Restaurants. - - Bootblack stands, race distinctions at, 130–131. - - Borough of Queens, N. Y., separation of races in schools of, 185. - - Boston, intermarriage in, 98; - race distinctions in hotels of, 126; - separation of races in public schools of, before 1857, 167–170; - separation of races on steamers plying between South and, 215–216. - - Bowen, J. W. E., on proper name for Negro, 20, 23. - - British Columbia, separation of races in schools of, 163. - - Brooks, Walter H., on proper name for Negro, 23. - - Brownsville, Texas, and Negro militia, 144. - - Bryce, James, on effect of Dred Scott decision, 8. - - Buffalo, N. Y., separation of races in schools of, 185. - - - C - - Caboose cars not under “Jim Crow” laws, 221. - - Cafés. See Restaurants. - - California, race distinctions at skating rinks in, 136; - separation of races in schools of, 159–163; - of Whites and Negroes in public schools of, 177–178; - Mongolians and Indians as witnesses in, 245; - qualifications for voting in, 322–323. - See Japanese. - - Canady, E. W., on Negro as lawyer, 241. - - Capitalization of “Negro” as race name, 21–22, 24. - - Cemeteries, race distinctions in, 136–137. - - Ceremony of intermarriage, punishment for performing, 87–88. - - Certificates of slave marriages, 70–73; - in Kentucky, 70–72; - in Louisiana, 72; - in Maryland, 72. - - Character as qualification for voting, 308–310. - - Cheshire, Joseph Blount, on separation of races in Episcopal Church, - 143–144. - - Chicken-stealing a felony, 275. - - Chinese, intermarriage of, with Whites, 82–83; - separate schools for, in California, 159; - as witnesses in California, 245. - - Chinese Exclusion Act, 296. - - Chop-houses. See Restaurants. - - Churches, race distinctions in, 141–144. - - Citizenship as a qualification for voting, 296–297. - - Civil rights of Negroes, 102–149; - Civil Rights Bill of 1866, 9, 10, 104, 106; - Civil Rights Bill of 1875, 10, 108–111, 247–248; - Civil Rights Cases, 110–111; - civil rights legislation, Federal, 103–111; - in States, between 1865 and 1883, 111–120; - in Northern States, between 1865 and 1883, 112–115; - in South, after 1883, 120; - in States outside South, after 1883, 120–124; - in Massachusetts, 112; - in Delaware, 112–114, 118; - in Kansas, 114; - in Florida, 115; - in New York, 115; - in Arkansas, 116; - in Louisiana, 116; - in Tennessee, 116–118; - in North Carolina, 118–120; - State Civil Rights Bills, table of, 122; - penalty for violating, 123; - construed, 137–138. - See Barber Shops, Billiard Rooms, Bootblack Stands, Cemeteries, - Conveyances, Hotels, Restaurants, Saloons, Schools, Skating - Rinks, Soda Fountains, and Theatres. - - Cohabitation of Negroes and Whites without intermarriage, 88; - constitutionality of laws against, 89. - - Colonies, race distinctions in, 7. - - Colorado, effect of intermarriage in, 84; - punishment in, for issuing license, 86; - for performing ceremony, 87; - race distinctions in churches prohibited in, 141; - separation of races in schools forbidden in, 187; - statute as to Negroes practicing law in, 239; - qualifications for voting in, 322–323. - - “Colored” required on street cars, 231. - - “Colored Persons” as race name, 20. - - Conductors, of trains, punishment of, for violating “Jim Crow” laws, - 225–226; - on street cars, special policemen to enforce “Jim Crow” laws, 231. - - Connecticut, race distinctions in, in barber shops, 129; - by insurance companies, 138–139; - Negroes in militia in, 145; - qualifications for voting in, 322–323. - - Constitutionality of apprentice laws, 57; - of laws against cohabitation without intermarriage, 89; - of laws against intermarriage, 95–97; - of law separating races in Berea College, - 157–159; - of California separate school law, 161; - of laws separating races in public schools, 181; - of exemptions in street car laws, 233; - of Federal statute as to jurors, 249–250; - of Southern Suffrage Amendments, 313–317. - - Contracts for labor by Negroes, 46–53; - in Florida, 46; - in Virginia, 47; - in Mississippi, 47; - in Kentucky, 47; - in South Carolina, 48–53. - - Conveyances, public, separation of races in, 207–233. - See “Jim Crow” laws. - - “Coon,” a term of contempt, 20. - - Cotton, bagging off, at night, a crime, 275. - - Court room, Negro in, 237–277. - See Judges, Jurors, Lawyers, Spectators, Witnesses. - - Courts, separate, for Negroes, 272–273. - - Croatan Indians, intermarriage of, with Negroes prohibited, 90; - separate schools for, 174. - - Curfew law for Negroes in Mobile, Ala., 276. - - - D - - Dakota Territory, selling liquor to Indians prohibited in, 45; - “white” stricken from election laws of, 286. - - Dare, Virginia, and Lost Colony, 90–91. - - “Darkies” as race name, 20. - - Defamation to call a white person a Negro, 26–33; - actionable _per se_, 32. - - Delaware, “Black Laws” of, 37; - apprentice laws of, 57; - effect of intermarriage in, 87; - effect given to marriages in other States in, 92; - civil rights legislation in, 112–114; - provisions for public schools for Negroes in, 169; - separation of races in public schools of, 178; - “Jim Crow” legislation in, 211; - intimidation of Negroes at polls in, 293; - qualifications for voting in, 324–325. - - Dependents, State, separated by race, 146–149. - See Asylums, Blind, Lunatic, Prisoners, Reformatories. - - Designation of race separation under “Jim Crow” laws, 225. - - Detroit, Mich., race distinctions in restaurants of, 127. - - Dickinson, Secretary of War, on suffrage in Porto Rico, 313. - - Discriminations, race, and distinctions contrasted, 2–4, 348–362. - See Distinctions. - - Disfranchisement, extent of actual, in South, 320–321. - See Suffrage. - - Distinctions, race, defined, 1; - contrasted with race discriminations, 2–4, 348–362; - actual and legal, contrasted, 5; - in Colonies, 7; - in hotels, 124–127; - in restaurants, 127–129; - in barber shops, 129–130; - at bootblack stands, 130–131; - in billiard rooms, 131–132; - at soda fountains, 133–134; - in saloons, 132–133; - in theatres, 134–136; - at skating rinks, 136; - in cemeteries, 136–137; - by insurance companies, 138–140; - in churches, 141; - in punishments, 273–277; - in vagrancy laws, 275; - not confined to one section, 348–350; - not confined to one race, 350–351; - not decreasing, 351–353; - not based on race superiority, 353–354; - proper place of, 356–358. - - District of Columbia, intermarriages in, 93; - separate schools in, 189–190; - suffrage in, 286. - - Division of public school fund between races, 194–199. - - - E - - East Orange, N. J., separate classes for white and Negro children in - public schools of, 184–185. - - East St. Louis, Ill., burning school building in, to prevent Negro - school, 180. - - Eating houses. See Restaurants. - - Education Association, Southern, on race problem, 356; - on - curricula for Negro schools, 360. - - Educational test as qualification for voting, 301–315. - See Suffrage. - - Effect given by one State to marriages between Whites and Negroes in - other States, 92–95. - - Eggleston, J. D., Jr., on proportion of public school fund in Virginia - contributed by Negroes, 195. - - Elements, race, in United States, 6. - - Eliot, Charles W., on separation of races in schools, 163–164. - - Emancipation Proclamation as military expedient, 8. - - _Emmanuel Magazine_ on Negroes as lawyers, 240. - - Employees of railroad, “Jim Crow” laws do not apply to, 222–223. - - “Enforcement Act” of 1870, 290–291. - - Episcopal Church, separation of races in, 143–144. - - Equality of accommodations in public schools, 192–194; - in public conveyances, 223–224. - See Schools, Conveyances, “Jim Crow” laws. - - Evidence admitted as presumption of race, 17. - - Exemptions from application of “Jim Crow” laws, 222, 232. - - Extent of separation of races on railroad cars, 216; - on - street cars, 228–229; - of actual disfranchisement of Negroes, 320–321. - See “Jim Crow” laws, Suffrage. - - Extra cars, “Jim Crow” laws do not apply to, 221. - - - F - - Federal legislation on slave marriages, 75; - on civil rights of Negroes, 103–111; - on separate schools, 189–190. - - Fifteenth Amendment, ratified, 10; - and Negro suffrage, 281–282; - and Oregon, 289; - and Maryland, 317–320. - See Suffrage. - - Firearms, sale of, to Negroes prohibited, 43–44; - in Florida, 43; - keeping of, by Negroes in Mississippi prohibited, 44; - keeping of, by Negroes in South Carolina limited, 44; - selling of, to Indians in Oregon prohibited, 45; - carrying of, limited to Whites in Oregon, 45; - selling of, to Indians prohibited in Arizona, 45. - - Flack, Horace E., on contemporary understanding of Civil Rights Bill of - 1866, 106; - on purpose of adoption of Fourteenth Amendment, 107. - - Florida, sale of firearms to Negroes prohibited in, 43; - contracts for labor by Negroes in, 46; - remarriage of - Negroes in, 68; - effect of intermarriage in, 84; - punishment in, for issuing license for intermarriage, 86; - for performing ceremony, 87; - for cohabitation without intermarriage, 88; - civil rights legislation in, 115; - race distinctions in cemeteries in, 136; - separation of races in schools of, 170; - in private schools of, 190; - early “Jim Crow” laws in, 208; - Negroes as witnesses in, 243; - actual jury service by Negroes in, 255–256; - different punishments for Negroes in, 274; - qualifications for voting in, 324–325. - - Foraker, Senator, on Brownsville affair, 145. - - Fornication and adultery between Negro and White, punishment for, 273. - See Punishments. - - Fourteenth Amendment, ratified, 9; - and intermarriage, 97; - superseding Civil Rights Bill of 1866, 106; - interpreted by Slaughter-House cases, 107–108; - and Berea College affair, 157–158; - and Negro jury service, 252; - and Negro suffrage, 287. - See Civil Rights, “Jim Crow” laws. - - Free Negroes, marriage between, and slaves, 74. - See Negroes, Marriage, Movements, “Black Laws,” Civil Rights. - - - G - - Genealogical table in determining race, 18. - - Georgia, remarriage of Negroes in, 69; - social status not a subject of legislation in, 80; - effect given by, to marriages in other States, 93; - Negroes in militia in, 145; - separation of prisoners by race in, 146; - separation of races in reformatories of, 147; - in public schools of, 170; - Negroes as witnesses in, 243; - actual service by Negroes on juries in, 256–258; - qualifications for voting in, 324–325. - - Germantown, Pa., _Guide_ on cemeteries for Negroes, 137. - - “Grandfather Clauses” as qualifications for voting, 305–308. - See Suffrage. - - - H - - Harvard University, Dr. Chas. W. Eliot on separation of races at, 164; - study of race problem at, 356. - - Hawaii, qualifications for voting in, 338–339. - - High Schools, for Whites and not for Negroes, 193; - no separation of race in, of Indiana, 182; - of Kansas, 183. - See Schools. - - Hotels, race distinctions in, 124–127. - - Hurd, John Codman, “The Law - of Freedom and Bondage in the United States,” 8. - - - I - - Idaho, selling firearms to Indians prohibited in, 45; - separation of races in public schools of, forbidden, 187; - qualifications for voting in, 324–325. - - Identity, race, mistaken on cars, 29–32. - - Illinois, “Black Laws” of, 38; - slave marriages in, legal by statute, 74; - race distinctions in, at soda fountains, 133; - in theatres, 135; - at skating rinks, 136; - separation of races in public schools of, 178–179; - qualifications for voting in, 324–325. - - Indiana, “Black Laws” in, 37; - effect of intermarriage in, 84; - punishment in, for performing ceremony of intermarriage, 87; - race distinctions in hotels in, 125; - separation of races in orphan asylums in, 148–149; - in schools of, before 1865, 167; - in public schools of, 181; - Negroes as witnesses in, 245; - qualifications for voting in, 326–327. - - Indians, selling firearms to, prohibited, 45; - in Arizona, 45; - in Idaho, 45; - selling liquor to, prohibited, 45–46; - in Arizona, 45; - in New Mexico, - 45; - in Nebraska, 45; - in Dakota Territory, 45; - in Idaho, 45; - in Maine, 46; - in Utah, 45; - in Washington, 45; - intermarriage between Whites and, 82; - between Croatan Indians and Negroes, 90; - separate schools for, allowed in California, 159; - as witnesses in California, 245; - in Virginia, 245; - in Washington, 246. - - Indictments quashed because no Negroes on jury, 250–252. - - Insular possession of United States, suffrage in, 312–313. - - Insurance companies, race distinctions by, 138–140. - - Intermarriage, and miscegenation, 78–99; - during Reconstruction, 78–80; - between Whites and “Persons of Color,” 81; - present state of the laws on, 81; - to whom laws apply, 81–83; - between Chinese and Whites, 82–83; - between Indians and Whites, 82–83; - between Kanakans and Whites, 83; - between Mongolians and Whites, 82–83; - effect of attempted, 83–84; - punishment for, 84–86; - punishment for issuing license for, 86–87; - punishment for performing ceremony of, 87–88; - repeal of laws against, 89–90; - and Federal Constitution, 95–97; - and Fourteenth Amendment, 97; - in - Boston, 98; - at Xenia, O., 99; - in North, 99. - - Interstate travel and “Jim Crow” laws, 217–219. - - Intimidation of Negroes at polls, 291–294. - - Iowa, “Black Laws” in, 38; - race distinctions in boarding houses in, 128; - at skating rinks in, 136; - separation of races in public schools of, not allowed, 183; - in steamboats in, 212; - statute as to Negroes practicing law in, 239; - “white” stricken from Constitution of, 286; - qualifications for voting in, 326–327. - - - J - - Japanese, excluded from public schools of San Francisco, 159–163; - census of, to be taken in California, 163. - - “Jim Crow” laws, origin of term, 208; - legislation between 1865 and 1881, 211–214; - as applied to interstate travel, 217–219; - means of separation of races, 224; - designation of separation of races, 225; - punishment for violating laws, 225–226. - See Conveyances. - - Johnson, E. A., on proper name for Negro, 22. - - Joyner, J. Y., on proportion of public school fund in North Carolina - contributed by Negroes, 194. - - Judges, Negroes as, 238. - - Jurors, Negroes as, 247–272; - jury service and Civil Rights Bill of 1875, 247–248; - State statutes on jury service, 248; - actual jury service by Negroes in South, 253–271. - - - K - - Kanakans, term defined, 25; - intermarriage between, and Whites, 83. - - Kansas, civil rights legislation, 114; - race distinctions in cemeteries, 136; - separation of race in public schools of cities of first class, 183; - intimidation of Negroes at polls, 292; - qualifications for voting, 326–327. - - Kentucky, movements of Negroes restricted in, 40; - selling liquor to Negroes prohibited in, 44; - contracts for labor by Negroes in, 47; - apprentice laws in, 53; - certificates of slave marriages in, 70–72; - separation of lunatics by race in, 148; - separation of races in private schools of, 154–155; - in public schools of, 171; - local taxation for schools of, 196–197; - Negroes as witnesses in, 242–243; - actual service by Negroes on juries in, 258; - different punishments for Negroes in, 274; - punishment for chicken-stealing in, 275; - qualifications for voting in, 326–327. - - Kitchin, W. W., on Negro suffrage in North Carolina in 1835, 283. - - Knox, John B., on suffrage, 361. - - - L - - Labor, contracts for, by Negroes, 46–53; - in Florida, 46; - in Kentucky, 47; - in Mississippi, 47; - in Virginia, 47; - in South Carolina, 48–53. - - Labor unions, race discrimination by, 140–141. - - Lawyers, Negroes as, 239–241. - - Legitimacy of children of slave marriages, 67–75. - See Marriages. - - License, punishment for issuing, for intermarriage, 86–87. - - Limitations upon Negroes in respect to occupations, 41–43. - - Lincoln, Neb., race distinctions in barber shops in, 129. - - Liquor, sale of, to free Negroes prohibited, 43–44; - in Kentucky, 44; - in Mississippi, 44; - sale of, to Indians prohibited, 45–46; - in Arizona, 45; - in Dakota Territory, 45; - in Idaho, 45; - in Nebraska, 45; - in Utah, 45; - in Washington, 45; - in Maine, 46. - - Lost Colony and Virginia Dare, 90–91. - - Louisiana, certificates of slave marriages in, 72; - punishment in, for cohabitation - without intermarriage, 89; - civil rights legislation in, 116; - separation of races in saloons in, 133; - race distinctions in theatres in, 135; - separation of races in schools of, during Reconstruction, 171; - at present, 172; - race distinctions on public conveyances in, 213; - early statute on Negro jury service in, 249; - actual service by Negroes on juries in, 258–259; - intimidation of Negroes at polls in, 293; - qualifications for voting in, 326–327. - - Lucas County, O., race distinctions in restaurants in, 128. - - Lunatics, separated by race, 147. - - Lunch counters. See Restaurants. - - Lynch, James, body of, removed from white to Negro cemetery, 137. - - - M - - Machen, A. W., Jr., on Fifteenth Amendment, 319. - - Maine, sale of liquor to Indians prohibited in, 46; - repeal of law against intermarriage of Negroes and Whites in, 90; - qualifications for voting in, 328–329. - - Marital relations of slaves fixed, 67–75. - - Marriages, slave, certificates of, 70–73; - in Kentucky, 70–72; - in Louisiana, 72; - in Maryland, - 72; - legal by statute, 73–74; - in Alabama, 73; - in Arkansas, 73; - in Texas, 73; - in Illinois, 74; - in Ohio, 74; - in Virginia, 74; - in West Virginia, 74; - between slaves and free Negroes, 74; - slave, and Federal legislation, 75; - between Negroes and other non-Caucasian races, 90–91; - between Negroes and Croatan Indians in North Carolina, 90; - effect given by one State to, in other States, 92–95; - marriage a status, 96. - - Maryland, “Black Laws” in, 36; - certificates of slave marriages in, 72; - effect of intermarriage in, 84; - separation of races in public schools of, 172–173; - and Negro lawyers, 239; - Negroes as witnesses in, 243; - qualifications for voting in, 328–329; - and Fifteenth Amendment, 317–320. - - Massachusetts, civil rights legislation in, 112; - race distinctions in hotels in, 125; - in barber shops in, 129; - in billiard rooms in, 131; - at skating rinks in, 136; - by insurance companies in, 138; - resolution against discrimination by labor unions of, 140; - separation of races in public schools of, before 1857, 167–170, 187; - gave name to “Jim Crow” car, 208; - qualifications for voting in, 328–329. - - Mathews, John Mabry, on Fifteenth Amendment, 314–315. - - Means of separation of races under “Jim Crow” laws, 224; - on street cars, 229–230. - - Metcalf, Secretary, on separation of races in schools of San Francisco, - 160. - - Methodist Church, race distinctions in, 141. - - Michigan, repeal of law against intermarriage in, 90; - race distinctions by insurance companies in, 138, 139; - separation of races in schools of, 187–188; - qualifications for voting in, 328–329. - - Militia and Negroes, 144–145. - - Milton, Senator, and intermarriage in District of Columbia, 95. - - Milwaukee, Wis., race distinctions in restaurants in, 128. - - Minnesota, race distinctions in saloons in, 132; - separation of races in schools of, forbidden, 188; - qualifications for voting in, 328–329. - - Miscegenation, not a bridge from one race to the other, 19; - and intermarriage, 78–99. - See Intermarriage, Marriages. - - Mississippi, limitations upon Negroes in respect to occupations in, 43; - keeping firearms by Negroes without license prohibited in, 44; - selling liquor to Negroes prohibited - in, 44; - contracts for labor by Negroes in, 47; - apprentice law in, 53–55; - vagrancy law in, 59–60; - pauper law in, 61–62; - effect of intermarriage in, 85; - effect given to marriage in other States in, 93; - race distinctions in theatres in, 134; - in cemeteries in, 137; - no discrimination against prisoners on account of race in, 146; - separation of races in public schools of, 173; - early “Jim Crow” law in, 208; - Negroes as witnesses in, 243; - early statute on Negro jury service in, 249; - actual service by Negroes on juries in, 259; - qualifications for voting in, 328–329. - - Missouri, “Black Laws” in, 37; - remarriage of slaves in, 69; - effect of intermarriage in, 85; - race distinctions in theatres in, 135; - separation of races in schools of, 173; - actual service by Negroes on juries in, 263–265; - chicken-stealing a felony in, 275; - qualifications for voting in, 330–331. - - Mobile, Ala., curfew law for Negroes in, 276. - - Mongolians, intermarriage between Whites and, 82–83; - separate schools for, permitted in California, 159; - as witnesses in California, 245. - See Chinese, Japanese. - - Montana, qualifications for voting in, 330–331. - - Movement of Negroes restricted, 40–41; - in Kentucky, 40; - in South Carolina, 40–41. - - Mulattoes, difficulty in getting census enumeration of, 13; - definition of, 16; - separation of Negroes and, in churches, 144. - See Negroes. - - - N - - Name, proper, for Negro, 20–24. - - Narrow-gauged roads, “Jim Crow” laws do not apply to, 221. - - Nashville, Tenn., separation of races in saloons in, 133. - - Nature of railroad accommodations under “Jim Crow” laws, 223–224. - See “Jim Crow” laws. - - Naturalization of Africans, 297. - - Nebraska, selling liquor to Indians prohibited in, 45; - qualifications for voting in, 330–331. - - “Negress,” an offensive term, 22. - - “Negro-Americans” as race name, 22. - - “Negroes” as race name, 20. - - Negroes, legal definition of, 12–20; - defamation to call Whites Negroes, 26–33; - movements of, restricted, 40–41; - in Kentucky, 40; - in South Carolina, 40–41; - limitations upon, - in respect to occupations, 41–43; - prohibited from having firearms, 43–44; - in Mississippi, 44; - in South Carolina, limited, 44; - selling liquor to, prohibited, 44; - in Kentucky, 44; - in Mississippi, 44; - contracts for labor by, 46–53; - apprentice laws applying to, 53–58; - marital relations of, fixed, 67–75; - remarriages of, after Emancipation, 68–70; - in Florida, 68; - in Georgia, 69; - in Missouri, 69; - marital relations of, established in South Carolina, 70; - marriages between other non-Caucasian races and, 90–91; - civil rights of, 102–149; - influence of Civil Rights Bill of 1866 upon conduct of, 105; - in militia, 144–145; - in court room, 237–277; - as judges, 238; - as lawyers, 239–241; - as witnesses, 246; - as jurors, 247–272; - jury service of, and Fourteenth Amendment, 252; - actual jury service of, in South, 253–271; - separate courts for, 272–273; - suffrage for, 281–289; - and Fifteenth Amendment, 281–282; - in New York, 283; - in North Carolina before 1835, 283; - in Tennessee in 1834, 284; - before 1865, 282–285; - between 1865 and 1870, 285–288; - and Fourteenth Amendment, 287; - between 1870 and 1890, 288–294. - - Nevada, effect of intermarriage in, 85; - punishment in, for performing ceremony, 87; - for cohabitation without intermarriage, 89; - separation of races in public schools of, 184; - Negroes as witnesses in, 246; - qualifications for voting in, 330–331. - - New Hampshire, qualifications for voting in, 330–331. - - New Jersey, Negroes in militia of, 145; - separation of races in public schools of, 184; - qualifications for voting in, 330–331. - - New Mexico, selling liquor to Indians prohibited in, 45; - repeal of law against intermarriage in, 90; - separation of races in public schools of, prohibited, 188; - qualifications for voting in, 338–339. - - New York, slave marriages valid in, 74; - civil rights legislation in, 115; - race distinctions in restaurants in, 127; - at bootblack stands in, 130; - in cemeteries in, 136; - at skating rinks in, 136; - in theatres in, 136; - by insurance companies in, 138–139; - separation of races in asylums of, 148; - in public schools of, forbidden, 185; - Negro suffrage in, 283; - qualifications for voting in, 330–331. - - _News and Courier_, Charleston, S. C., sued for calling white man - “colored,” 28. - - “Nigger,” a term of contempt, 20. - - Non-Caucasian races, marriage between, and Negroes, 90–91. - - North Carolina, apprentice law of, 55; - effect of intermarriage in, 85; - punishment in, for issuing license for intermarriage, 86; - for performing ceremony, 87; - civil rights legislation in, 118–120; - separation of races in, in militia, 145; - in prisons, 147; - in insane asylums, 148; - in public schools, 173–174; - local taxation for schools of, 198; - on steamboats, 214; - actual service by Negroes on juries in, 265–267; - Negro suffrage in, before 1835, 283; - qualifications for voting in, 332–333. - - North Dakota, qualifications for voting in, 332–333. - - Northern States, intermarriage between Whites and Negroes in, 99; - civil rights legislation in, between 1865 and 1883, 112–115; - after 1883, 120–124. - - Nurses, exempt from “Jim Crow” laws, 222, 232. - - - O - - Occupations, limitations upon Negroes in respect to, 41–43; - in Alabama, 41–42; - in South Carolina, 42; - in Mississippi, 43; - in Tennessee, 43. - See Contracts, Labor. - - Officers in charge of prisoners exempt from “Jim Crow” laws, 222. - - Ohio, “Black Laws” in, 37; - slave marriages legal in, by statute, 74; - repeal of laws against intermarriage in, 90; - race distinctions in, in saloons, 133; - by insurance companies, 138, 139; - separation of races in public schools of, before 1865, 165–167; - forbidden at present, 185; - intimidation of Negroes at polls of, 292; - qualifications for voting in, 332–333. - - Oklahoma, effect of intermarriage in, 85; - punishment in, for issuing license for intermarriage, 86; - for performing ceremony, 87; - separation of races in public schools of, 174–175; - in private schools of, 191; - actual service by Negroes on juries in, 267; - qualifications for voting in, 332–333. - - Oregon, “Black Laws” in, 38; - carrying of firearms restricted to Whites in, 45; - effect of intermarriage in, 85; - punishment for performing ceremony in, 88; - and Fifteenth Amendment, 289; - qualifications for voting in, 332–333. - - Origin of “Jim Crow,” 208. - - Ownership of property as qualification for voting, 300–301. - See Suffrage. - - - P - - Partitioned cars under “Jim Crow” laws, 229. - - Passengers, punishment of, for violating “Jim Crow” laws, 225; - separated by race on street cars, 227–233. - See “Jim Crow” laws. - - Paupers, laws concerning, 60–62; - in South Carolina, 60–61; - in Mississippi, 61–62; - separation of, by race, 147. - - Payment of taxes as qualification for voting, 299–300. - See Suffrage. - - Pennsylvania, race distinctions in cemeteries in, 137; - separation of races in schools of, prohibited, 186; - qualifications for voting in, 332–333. - - “Persons of African Descent” as race name, 20. - - “Persons of Color” as race name, 20; - intermarriage of, with Whites, 81. - - Persons to whom “Jim Crow” laws do not apply, 222–223; - excluded from suffrage, 310–312. - - Philadelphia, race distinctions in hotels in, 124–125; - race discriminations by labor unions in, 140; - separation of races in street cars in, 211. - - Philippine Islands, qualifications for voting in, 338–339. - - Platform, common, on race problem, 355–356. - - Polls, intimidation of Negroes at, 291–294. - See Suffrage. - - Porto Rico, qualifications for voting in, 338–339. - - Postal clerks on railroads, not separated by race, 227. - - Presbyterian Church, race distinctions in, 141. - - Prisoners separated by race, 146–147. - - Private schools, separation of races in, 190–192. - - Problem, race, remedies for, 354; - common platform on, 355–356. - - Proctor, H. H., on proper name for Negro, 23. - - Property, ownership of, as qualification for voting, 300–301. - See Suffrage. - - Public school fund, division of, between races, 194–199. - See Schools. - - Punishments, for intermarriage, 84–86; - for issuing license for, 86–87; - for performing ceremony of, 87–88; - for cohabitation without intermarriage, 88–89; - for violating Civil Rights Bills, 123; - upon insurance companies for making race distinctions, 139; - for violating “Jim Crow” laws, 225–226, 231; - different, for Negroes and Whites, 273–277; - made equal by statute, 275. - - - Q - - Qualifications for voting, in United States, table of, 322–339; - age, 297; - sex, 298; - payment of taxes, 299–300; - ownership of property, 300–301; - educational test, 301–304; - “Grandfather Clauses,” 305–308; - “Understanding Clauses,” 308–310; - “Character Clauses,” 308–310; - persons excluded from suffrage, 310–312. - - Quashing indictments because no Negroes on jury, 250–252. - - Quincy, Ill., separation of races in public schools, 179. - - - R - - Race elements in United States, 6. - - Railroads, separation of races on cars of, 216–227; - punishment upon companies for violating “Jim Crow” laws, 225–226. - See Conveyances, “Jim Crow” laws. - - Raleigh, Sir Walter, and Lost Colony, 90–91. - - Reconstruction, and “Black Laws,” 62–63; - and intermarriage, 78–80; - and separation of races in public conveyances, 209–210. - - Reduction of representation of Southern States in Congress, 287. - - Reformatories, separation of races in, 147. - - Relief trains, “Jim Crow” do not apply to, 221. - - Remarriage of Negroes after Emancipation, 68–70; - in Florida, 68; - in Georgia, 69; - in Missouri, 69. - - Remedies for race problem, 354–355. - - Repeal of laws against intermarriage, 89–90. - - Representation in Congress, reduction of, 287. - - Residence as qualification for voting, 316. - See Suffrage. - - Restaurants, race distinctions in, 127–129. - - Restrictions upon movements of Negroes, 40–41; - in Kentucky, 40; - in South Carolina, 40–41. - See “Black Laws.” - - Rhode Island, repeal of law against intermarriage in, 90; - qualifications for voting in, 332–333. - - Robeson County, N. C., and Croatan Indians, 91. - - Roosevelt, President, on separation of races in schools of San - Francisco, 160. - - - S - - Saloons, race distinctions in, 132–133; - in Atlanta, Ga., 133; - in Nashville, Tenn., 133; - in Louisiana, 133. - - San Francisco, exclusion of Japanese from public schools - of, 159–163; - separation of races on street cars of, 212. - - Schools, separation of races in, 154–199; - before 1865, 155–170; - present extent of separation in, 170–190; - in private schools, 190–192; - division of public school fund between races, 194–199. - - Scott, Dred, decision, 8; - contravened by Civil Rights Bill of 1866, 105. - - Separation of Whites and Negroes, in saloons, in Atlanta, Ga., 133; - in Nashville, Tenn., 133; - in Louisiana, 133; - in churches, 141–144; - in militia, 144–145; - State dependents, 146–149; - blind, 147; - lunatics, 147; - mutes, 147; - paupers, 147; - persons in reformatories, 147; - prisoners, 147; - in schools, 154–199; - before 1865, 165–170; - present extent of, 170–190; - in public schools in South, 170–176; - during Reconstruction, 175; - in States outside South, 177–199; - in private schools, 190–192; - in public conveyances, 207–233; - during Reconstruction, 209–210; - on steamboats, 214; - in railroad cars, 216–227; - on sleeping cars, 219–220; - in waiting rooms, 220–221; - of postal clerks on mail cars, 227; - on street cars, 227–233; - in court rooms, 238. - - Service on juries in South by Negroes, 253–271. - - Sex as qualification for voting, 298. - See Suffrage. - - Sims, Thetus W., on proper name for Negro, 21. - - Skating rinks, race distinctions at, 136. - - Slander, actionable _per se_, to call White a Negro, 26–33. - - Slaughter-House Cases interpreting Fourteenth Amendment, 107–108. - - Slave marriages, reconstruction of, 67–75; - certificates of, 70–73; - in Kentucky, 70–72; - in Maryland, 72; - declared legal by statute, 73–74; - in Alabama, 73; - in Arkansas, 73; - in Texas, 73; - in Illinois, 74; - in Ohio, 74; - in Virginia, 74; - in West Virginia, 74; - marriages between slaves and free Negroes, 74; - in Tennessee, 74; - and Federal legislation, 75. - - Sleeping cars, separation of races on, 219–220. - - Social status not a subject of legislation in Georgia, 80. - - Soda fountains, race distinctions at, 133–134. - - South Carolina, restrictions on movements of Negroes in, 40–41; - limitations upon Negroes in respect to occupations in, 42; - keeping firearms by Negroes limited in, 44; - contracts for labor by Negroes in, 48–53; - apprentice laws in, 55–57; - vagrancy laws in, 58–59; - pauper laws in, 60–61; - marital relations of Negroes in, established, 70; - effect of intermarriage in, 85; - punishment in, for performing ceremony, 88; - Negroes in militia of, 145; - separation of races in public schools of, at present, 175–176; - on ferries, 215; - Negroes as witnesses in, 244; - actual service by Negroes on juries in, 267–268; - separate courts for Negroes in, 272–273; - different punishments for Whites and Negroes in, 274; - qualifications for voting in, 334–335. - - South Carolina, University of, open to Negroes during Reconstruction, - 175. - - South Dakota, qualifications for voting in, 334–335. - - Southern Education Association on race problem, 356. - - Southern States, civil rights legislation in, between 1865 and 1883, - 115–120; - after 1883, 120; - present extent of separation of races in public schools of, 170–176; - early statutes in, on Negro jury service, 249; - actual service by Negroes on juries in, 253–271; - reduction of representation of, in Congress, 287. - - Spectator, Negro in court room as, 237. - - Status, social, not a subject of legislation in Georgia, 80; - of marriage, 96. - - Steamboats, separation of races on, 214. - - Stevens, Thaddeus, and “Black Laws,” 63; - opposition of, to President Johnson’s plan of Reconstruction, 104. - - Stimson, Frederick J., on laws of Michigan against intermarriage, 90. - - Street cars, separation of races in, 227–233. - - Suffrage, Negro, 281–339; - before 1865, 282–285; - in New York, 283; - in North Carolina in 1835, 283; - in Tennessee in 1834, 284; - between 1865 and 1870, 285–288; - in District of Columbia, 286; - and Fourteenth Amendment, 287; - between 1870 and 1890, 288–294; - Southern Suffrage Amendments, 294–339; - in insular possessions of United States, 312–313; - constitutionality of Suffrage Amendments, 313–317. - - - T - - Taft, President, on suffrage in Porto Rico, 313. - - Taverns. See Restaurants. - - Taxation for school purposes, 195–199. - - Taxes, payment of, as qualification for voting, 299–300. - See Suffrage, Schools. - - Tennessee, limitations upon Negroes in respect to occupations in, 43; - marriages between slaves and free Negroes in, 74; - effect given to marriages in other States in, 93; - civil rights legislation in, 116–118; - race distinctions in theatres in, 134; - separation of races in, in asylums for deaf and blind, 148; - in public schools, 176; - in private schools, 190; - Negroes as witnesses in, 244; - early statute on Negro jury service in, 249; - Negro suffrage in, in 1834, 284; - qualifications for voting in, 334–335. - - Texas, slave marriages legal in, by statute, 73; - effect of intermarriage in, 85; - separation of races in public schools of, 176; - division of public school fund in, 199; - early “Jim Crow” law in, 209; - separation of races in railroad cars in, 214; - Negroes as witnesses in, 244; - actual service by Negroes on juries in, 268–269; - qualifications for voting in, 334–335. - - Theatres, race distinctions in, 134–136. - - Thirteenth Amendment, 9. - See Civil Rights. - - _Times-Democrat_, New Orleans, La., sued for calling white person - “colored,” 28. - - Trains to which “Jim Crow” laws do not apply, 221–222. - - _Tribune_, New York, on proper name for Negro, 22. - - - U - - “Understanding Clauses” as qualifications for voting, 308–310. - See Suffrage. - - Unions, labor, race discriminations by, 140–141. - - Upper Alton, Ill., separation of races in public schools of, 179. - - Utah, selling liquor to Indians prohibited in, 45; - qualifications for voting in, 334–335. - - - V - - Vagrancy laws, 58–60; - in South Carolina, 58–59; - in Mississippi, 59–60; - as race distinctions, 275. - - Vardaman, J. K., on division of public school fund between races, 195. - - Vermont, qualifications for voting in, 334–335. - - Virginia, contracts for labor by Negroes in, 47; - slave marriages legal in, by statute, 74; - effect of intermarriage in, 86; - punishment in, for performing ceremony, 88; - effect given to marriages in other States in, 93; - separation of races in public schools of, 176; - on steamboats in, 215; - Negroes as witnesses in, 245; - Indians as witnesses in, 245; - actual jury service by Negroes in, 269–271; - intimidation of Negroes at polls of, 293; - qualifications for voting in, 336–337. - - _Voice of the Negro_, on proper name for Negro, 20. - - Voting, qualifications for, in United States, table of, 322–339. - See Suffrage. - - - W - - Waiting rooms, separation of races in, 220–221. - - Washington, selling liquor to Indians prohibited in, 45; - Negroes as witnesses in, 246; - Indians as witnesses in, 246; - qualifications for voting in, 336–337. - - Washington, Booker T., on his ancestry, 13; - on proper name for Negro, 21; - and Hamlet, N. C., incident, 221; - on suffrage, 361. - - Washington, D. C., City of Refuge for miscegenating couples, 94; - separation of prisoners by race in, 147; - separate public schools in, 189. - - West Virginia, slave marriages legal in, by statute, 74; - effect of intermarriage in, 86; - punishment in, for performing ceremony, 88; - effect given to marriages in other States in, 93; - Negroes in militia of, 145; - separation of races in asylums for insane in, 149; - in public schools of, 186; - qualifications for voting in, 336–337. - - “White,” omitted from statutes of Florida, 116; - of New York, 115; - required on street cars, 231; - stricken from election laws of Dakota Territory, 286; - from Constitution of Iowa, 286; - from suffrage laws, 288; - still in Maryland Constitution, 288, 317. - - White, John, and Lost Colony, 90–91. - - White persons, defamation to call, Negroes, 26–33; - intermarriage between, and Chinese, 82–83; - and Kanakans, 83; - and Indians, 82–83. - - Wisconsin, qualifications for voting in, 336–337. - - Witnesses, Negroes as, 241–247. - - Wyoming, separation of races in public schools of, 186; - qualifications for voting in, 338–339. - - - X - - Xenia, Ohio, intermarriage at, 99. - - - Y - - Y. M. C. A., separation of races in, 144. - ------------------------------------------------------------------------- - - - - - TRANSCRIBER’S NOTES - - - 1. Silently corrected typographical errors and variations in spelling. - 2. Archaic, non-standard, and uncertain spellings retained as printed. - 3. Footnotes were re-indexed using numbers. - 4. Enclosed italics font in _underscores_. - -*** END OF THE PROJECT GUTENBERG EBOOK RACE DISTINCTIONS IN AMERICAN -LAW *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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