Race Distinctions in American Law

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Title: Race Distinctions in American Law
Author: Stephenson, Gilbert Thomas
Language: English
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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

_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 │ 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.

Alsberg v. Lucerne Hotel Co. ([266]), 127.

Anderson v. L. & N. Ry. Co. ([560]), 218.

Anthony v. Halderman ([700]), 293.

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. & 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.

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.

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.

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.

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.

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.

Jones v. Montague ([725]), 314.

Joseph v. Bidwell ([285]), 135.

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. & 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.

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. 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. Val. Ry. Rec. v. Lander ([558]), 217; ([561]), 218.

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.

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. 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.

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.

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.

Va., _ex parte_ ([635]), 249.

Va. v. Rives ([635]), 249.

Van Camp v. Board of Education of Logan ([356]), 166.

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.

Yarborough, _ex parte_ ([706]), 293.

Younger v. Judah ([287]), 136.

INDEX

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

“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.

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.

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.

Xenia, Ohio, intermarriage at, 99.

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 this LibraryBlog Digital Book "Race Distinctions in American Law" ***

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