Chapter XIV: Of Political Rights (2)

Racial legislation as to negroes may be divided into laws bearing on their legal, political, and social rights, including, in the latter, contracts of labor and of marriage. By the Thirteenth, Fourteenth, and Fifteenth Amendments, all adopted within ten years after the war, we endeavored to put the negro in a legal, a political, and a social equality with whites in every particular. A broad statement, sufficiently correct for the general reader, may be made that only the legal part has succeeded or has lasted. That legislation which is aimed at social equality, all of it Federal legislation, has generally proved unconstitutional, and that part which has been aimed at political equality has, for one reason or another, been inefficient. Moreover, the great attempt in the Fourteenth Amendment to place the ordinary social, civil, and political rights of the negro, and necessarily, therefore, of every one else, under the _aegis_ of the Federal government, Federal courts, and Federal legislation, has been nullified; first, by court decision, and later, if we may trust the signs of the times, by contemporary public opinion. The only thing that remains is that the States cannot make laws which, on their face, are discriminations against the negro, or in social matters against any other race; and in political matters, the Fifteenth Amendment has proved effective to render null State laws which on their face are designed to restrict or deny their equal right of suffrage.

Legislation concerning labor, the industrial condition, and contract rights of the negro, such as the peonage laws, we have considered in an earlier chapter; both State and national laws exist, and the Thirteenth Amendment, being self-executing, has proved effective. Under the Fifteenth Amendment there is little political legislation, except the effort in Southern States by educational or property qualifications, and most questionably by the so-called "grandfather clause," to exclude most negroes from the right of suffrage. Laws imposing property and educational qualifications are, of course, valid, although designed to have the effect of excluding a large proportion of the negroes from voting; laws, on the other hand, which give a permanent right of suffrage to the descendants of a certain class, as of those voters, all white, who were entitled to vote in Southern States in the year 1861, are probably unconstitutional as establishing an hereditary privileged class, though there has as yet been no square decision on this point by the Supreme Court of the United States. But as there is no further legislation on these subjects, to pursue the matter further would carry us into constitutional law.

In the third field, that of social legislation, there has been a vast number of laws, first by Congress with the intention, under the Fourteenth Amendment, of enforcing social and industrial equality and providing Federal machinery for securing it (the great substance of this has been held unconstitutional and has passed away); later by the States, usually the Southern States, with the exactly opposite purpose of separating the races, at least in social matters, and of subjecting them to a stricter law of labor contract than has, in our country at least, been imposed upon other citizens.

Even this matter of social legislation, which alone remains to be discussed in this book, is quite too vast for more than a brief sketch. Among the many monographs on the subject may be mentioned the article of G.T. Stevenson on the "Separation of the Races in Public Conveyances."[1] Even this comparatively narrow matter is by no means exhausted in an article covering twenty pages. Much of the social separation of the races is, of course, brought about without statute law, but by custom, or even we may say customary law, which is always apt to be the better enforced; and under the civil rights decisions of the United States Supreme Court in 1883, such customary law has been rendered immune from Federal control. Legislation now exists in all Southern States as to separate, though equal, accommodations in public conveyances; at one time such statutes were restricted to interstate commerce, but the present tendency of court decision appears to be to recognize even their interference with interstate commerce as part of the reasonable State police jurisdiction. Such statutes apply generally to railroads, steamboats, and street cars, or other conveyances of transportation. They are not so usual as to hotels, eating-houses, theatres, or other public places, probably because in such it is more easy to secure the desired segregation without legislation. We may, therefore, conclude that legislation on this point will be universal in the South and in Oklahoma or other border States with Southern sympathies, and will not be declared unconstitutional by the courts.

[Footnote 1: _American Political Science Review_, vol. III, No. 2, 1909.]

The labor unions very generally exclude negroes, both in the South and North, and in many Southern States the whites refuse to work with negroes in mills. Until and unless labor unions are chartered or incorporated under legislation forbidding such action, it is probable that their by-laws excluding negroes, though possibly unreasonable at the common law, could not be reached by the Fourteenth Amendment; and public sentiment in the States where such by-laws are common would probably prevent any permanent vindication of the right of the negro to join labor unions by State courts. That is to say, countervailing legislation would promptly be adopted.

Coming to education, the same principle seems to be established, that if the facilities are equal the education may be separate for the different races, just as it may be for the different sexes; and it would even appear that when the appropriation is not adequate for giving higher or special education to both races, particularly when there are few negroes applying for it, high-schools or special schools may be established for whites alone.

Coming to the matter of sexual relation, a different principle applies. Under their unquestioned power of defining crimes, their police power in criminal and sanitary matters, the States may forbid or make criminal miscegenation. Cohabitation without marriage may, of course, be forbidden to all classes, and in the case of cohabitation between white and black the penalty may be made more severe, for it has been held that as both parties to the offence are punished equally, there is, under such statutes, no denial of the equal protection of the law. _A fortiori_, marriage may be forbidden or declared null between persons of different race, and the tendency so to do is increasing very decidedly in the South, and is certainly not decreasing in the North. Indeed, constitutional amendments are being adopted and proposed having this in view, "the purity of the race." Recent plays and magazine articles, with which most of our readers will be familiar, sufficiently bear out this point.

In property rights, however, I can find no legislation which discriminates against the negro, and there is some in his favor. With the exception of the labor or peonage laws, discussed separately, I have found no legislation which limits his property or contract rights. On the other hand, there is, in the several States, legislation requiring that he shall be given life or health insurance policies on the same terms and conditions as are applied to whites, despite the alleged fact that his expectation of life is less and not so easy to determine, owing to the lack of information as to the health and longevity of his forebears. Sketching first thus our general conclusions it remains for us only to give a few concrete examples drawn from the legislation of the last twenty years:

In 1890, soon after the civil-rights cases were decided, we find some State legislation to protect the negro in his civil rights; but the first "Jim Crow" laws, providing for separation in public conveyances, etc., began in 1865 and 1866 in Florida, Mississippi, and Texas, and are continued in other States in this year. In 1892 there are laws for separate refreshment rooms and bath-houses, and providing that negroes and whites shall not be chained together in jails. In 1893 there is legislation for separate barber shops, and the first law requiring equal treatment by life-insurance companies is passed in Massachusetts. In 1895 there is legislation against the mixture of races in schools. In 1898 the laws and constitutional provisions for practical negro disfranchisement begin in South Carolina, Mississippi, and Louisiana. On the other hand, in 1900, New York passes a statute that there shall be no separate negro schools, and in 1901 Illinois adopts civil-rights laws, followed in 1905 by five other States. In 1907 South Carolina makes it a misdemeanor to serve meals at station eating-houses to whites and blacks in the same room. In 1908 Maryland and Oklahoma provide for separate cars and separate rooms. In 1894 we find nine States prohibiting miscegenation. In 1902 Florida makes miscegenation a felony, and in 1908 Louisiana declares concubinage between a Caucasian and a negro to be also a felony, while Oklahoma adopts the miscegenation law.

These examples of legislation are not intended to be exhaustive, but will serve to give the reader a general Idea of the trend of popular law-making in this important matter.

Personal privilege, depending not upon race, but upon legislation, or inheritance, is, of course, strictly forbidden in each State by both constitutions, State and Federal. The growth of a contrary principle is only noteworthy on the two lines touching respectively the whites in the South and veterans of wars in the North. It must be said that legislation in the interest of the Grand Army of the Republic, and even of the veterans of the Spanish War, and even in some States of the sons or descendants of such veterans respectively, has come very near the point of hereditary or social privilege. The struggles of so-called "Organized Labor" to establish a privileged caste have so far been generally unsuccessful, always so in the courts, and usually so in the legislatures; but in many States those who have enlisted in either wars, Civil or Spanish, wholly irrespective of actual service or injury, are entitled not only to pensions, Federal and State, but to a diversity of forms of State aid, to general preference in public employment, and even to special privilege or exemption from license taxes, etc., in private trades, and their children or descendants are, in many States, entitled to special educational privilege, to support in State schools or industrial colleges, to free text-books, and other advantages. Presumably some of these matters might be successfully contested in the courts, but they never have been. As to pensions, nothing here need be said. The reader will remember the familiar fact that our pensions in time of peace now cost more than the maintenance of the entire German army on a war footing or than the maintenance of our own army. The last pensioner of the Revolutionary War, which ended in 1781--that is to say, the last widow of a Revolutionary soldier--only died a few years ago, early in the twentieth century. The Order of the Cincinnati, founded by Washington and Lafayette, was nevertheless a subject of jealous anxiety to our forefathers; but apparently the successful attempt of volunteers disbanded after the Civil and the Spanish Wars, although far more menacing because embodying social and political privilege, not a mere badge of honor, seems to call forth but little criticism.

XVII

SEX LEGISLATION, MARRIAGE AND DIVORCE

The notion that a woman is in all respects a citizen, entitled to all rights, political as well as property and social, was definitely tested before our Supreme Court soon after the adoption of the Fourteenth Amendment, on the plea that the wording of that amendment gave a renewed recognition to the doctrine that a woman was a person born or naturalized in the United States and therefore a citizen and entitled to the equal protection of the laws. The court substantially decided [1] that she was a citizen, was entitled to the equal protection of the laws, but not to political privileges or burdens any more than she was liable to military service. The State constitutions of many States, among them Illinois, have provided that a woman is entitled to all ordinary rights of property and contract "the same as" a man. Under this provision, when laws were passed for the protection of women, forbidding them to work more than a certain number of hours per day, they were originally held unconstitutional. The so-called women's-rights people (one could wish that there were a better or more respectful word) seem themselves to be divided on this point. The more radical resent any enforced inequality, industrial or social, between the sexes. For instance, many States have statutes forbidding women or girls to serve liquor in saloons or to wait upon table in restaurants where liquor is served. Such statutes, obviously moral, are nevertheless resented. On the other hand, the Supreme Court of the United States has taken the conservative view, that there is a difference both in physique and character between the sexes, as well as different responsibilities and a different social interest, so that it is still possible, as It has been possible in the past, to impose by law special restrictions on the contracts of women. The law of Oregon, therefore, not permitting them to make personal contract for more than eight hours per day was sustained both in the State and the Federal Supreme Courts; and a similar law by the highest court of Illinois, reversing its own prior decision.[2] This matter is of such interest and of such importance that it is frequently placed in State constitutions, and it seems worth while to summarize their provisions. The advanced position is now squarely put only in the constitution of California, which provides that no person shall on account of sex be disqualified from entering upon or pursuing any lawful business, vocation, or profession. Such a constitution as this would, of course, make it impossible even to pass such laws as the ones just mentioned forbidding them to serve in restaurants, such employment being lawful as to men. But no other State follows that extreme provision, and, indeed, the clause in the constitution of Illinois seems now to have been repealed.

[Footnote 1: Minor _v_. Happersett, 21 Wallace 166.]

[Footnote 2: See above, p. 227.]

As to property matters it may be broadly stated that they have in general precisely the same rights that men have, and in several States more; that is to say, a woman frequently has a larger interest in the property of a man at his death, than the man has in hers, should she predecease him; and universally she is given a share of the husband's property in case of divorce, either outright or by way of alimony, which, so far as I know, is never awarded to the man even if he be the innocent party. In New Jersey and some other States, a married woman is not permitted to guarantee or endorse the notes or debts of her husband. Many of the Southwestern States, from Louisiana to California, recognize or adopt the French idea of community property. By the Mississippi constitution "the legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or other power of contract in reference thereto." But this does not prevent laws regulating contracts between husband and wife.

In matters of divorce and personal relation, such as the guardianship of children, the tendency has also been to put women on an equality with men and more so. That is to say, divorces are awarded women which for similar reasons would not be awarded men, both by statute and by usual court decision, and although a very few States, such as recently developed in the conservative State of South Carolina, retain the common-law idea that the father must be the head of the family, many States provide that the rights of the parents to the custody and education of their children shall be equal. In other words they are to be brought up by a committee of two. Nevertheless, in California and other code States of the West it is still declared that the husband is the head of the family and may fix the place of abode, and the wife must follow him under penalty of desertion. Such matters are more often determined by custom or by court decision on the common law than by written statute; and it is apprehended that the judges will usually follow the more conservative rule of giving the custody of infant children to the mother, and of more mature children, particularly the boys, to the father.

Divorce statistics on the subject are extremely misleading for two great reasons: First, because in the nature of the case, and perhaps of the American character, in two cases out of three a divorce is granted for fault of the husband.[1] And in the second place, because a false cause is given in a great majority of cases. In England until recently the rule was absolute that a woman could not get a divorce for adultery alone, but there had to be cruelty besides; while the man could be divorced for the first-named cause. No such rule has ever prevailed in any State of this country. Desertion and failure to support, on the other hand, are much more easily proved by the wife. In short, it is not too much to say that in all matters of divorce she stands in a position of advantage.

[Footnote 1: _U.S. Labor Bulletin_, Special Reports on Divorce, 1860, 1908.]

The same thing is in practice true as to marriage. Under liberal notions, prevailing until recently in all our States, certainly in all where the so-called common-law marriage prevails, it is extremely easy for a woman to prove herself the lawful wife of any man she could prove herself to have known, and sometimes even without proving the acquaintance. The "common-law" marriage, by the way, is not, so far as I can determine, the English common law, nor ever was. If any common law at all, it is the Scotch common law, the English law always having required a ceremony by some priest or at least some magistrate, as does still the law of New England. Under the influence of the State Commissioners for Uniformity of Law this matter has been amended in the State of New York, so that if there be no ceremony there must at least be some written evidence of contract, as in the case of a sale of goods and chattels under the statute of frauds; the contract of marriage being thus, for the first time in New York, made of equal importance with that of the sale of goods to the value of one hundred dollars. Much difference of opinion exists between the South and the North upon this point, the Southern view being more remarkable for chivalry, and the Northern for good sense. Southern members of the National Conference of Commissioners claimed that any such law would result in disaster to many young girls; that if they had to travel ten, twenty, or thirty miles to find a minister or justice of the peace they would in many cases dispense with the formality or be impatient of the delay; and that anyhow on general principles any unmarried man who had seen an unmarried young woman two or three times ought to be engaged to her if he was not. The Northern Commissioners, on the other hand, were desirous of protecting the man, and especially his legitimate widow and children, from the female adventuress, which view the South again characterized as cynical. There is probably something to be said for both sides.

Coming finally to political rights, the subject of women's suffrage alone might well be reserved for a separate chapter, if, indeed, it is to be disposed of by any one mind; but at least the actual occurrences may be stated. As mentioned above in our chapter on political rights, it now exists, by the constitutions of four States; and has been submitted by constitutional amendment in several others and refused. No actual progress, therefore, has been made in fifteen years. As to office-holding, the constitutions of Missouri and Oklahoma--one most conservative, the other most radical--both specify that the governor and members of the legislature must be male. In South Dakota women may hold any office except as otherwise provided by the constitution. In Virginia, by the constitution, they may be notaries public. In all other States, save the four women's-suffrage States, the common law prevails, and they may not hold political office. The first entirely female jury was empanelled in Colorado this year (1910). In some States, however, statutes have been passed opening certain offices, such as notaries public, and, of course, the school commission. Such statutes are, in the writer's opinion, illogical; if women, under a silent constitution, can hold office by statute, they can do it without. It is or is not a constitutional right which the legislature, at least, has no power to give or withhold.

Generally in matters of education they have the same rights both to teach and be taught as males. Indeed, Idaho, Washington, and Wyoming declare that the people have a right to education "without distinction of race, color, caste, or sex," and that is practically the case by the common law of all States, though there is nothing to prevent either coeducation or segregation in schools. The recent tendency of custom is certainly in the latter direction, Tufts, Wesleyan, and other Eastern colleges having given up coeducation after trial, and the principle having been attacked in Chicago, Michigan, and other universities, and by many writers both of fact and fiction.

These are the abstract statements, but one or two matters deserve more particular treatment. First of all, divorce legislation. Many years ago the State Commissioners for Uniformity of Law voted to adhere to the policy of reforming divorce procedure while not attacking the causes. This, again, is too vast a subject to more than summarize here. The causes of divorce vary and have varied all the way from no divorce for any cause in South Carolina, for only one cause in New York and other States, up to twenty or thirty causes, with that indefinite or "omnibus" clause of "mutual incompatibility," or allowing the courts to grant divorces in the interest of the general peace. Since the efforts of reformers have wiped out the express-omnibus clause from the legislation of all States, the same abuse has crept in under the guise of "cruelty"; the national divorce report before referred to showing that the courts of this broad land have held sufficient cruelty to justify divorce (to the wife at least) to exist in tens of thousands of different incidents or causes, ranging all the way from attempts to murder ("breaking plaintiff's nose, fingers, two of her ribs, cut her face and lip, chewed and bitten her ears and face, and wounded her generally from head to foot") to not cutting his toenails [1] or refusing to take the wife to drive in a buggy; indeed, one young North Carolina woman got a divorce from a man she had recently married, on the ground that he was possessed of great wealth, but she had been assured that he was an invalid, and had married him in the hope and belief of his speedy decease, instead of which he proceeded to get cured, which caused her great mental anguish; while one husband at least got a divorce for a missing vest button.[2] But, independent of the vagaries of courts and judges, and perhaps, most of all, of juries in such matters, it has been found that the numbers of divorces bear no particular relation to the number of causes. In fact, many clergymen argue that to have only one cause, adultery, is the worst law of all, as it drives the parties to commit this sin when otherwise they might attain the desired divorce by simple desertion. Moreover, the difference in condition, education, religion, race, and climate is so great throughout the Union that it is unwise, as well as impossible, to get all of our forty-eight States to take the same view on this subject, the Spanish Catholic as the Maine free-thinker, the settler in wild and lonely regions as the inhabitant of the old New England town over-populated by spinsters. It was, therefore, the opinion of the State Commissioners that the matter of causes was best determined by States, according to their local conditions, and that it would be unwise to attempt, even by amendment to the Constitution, to enforce a national uniformity. All the abuses, substantially, in divorce matters come from procedure, from the carelessness of judges and juries, or, most of all, by laws permitting divorce without proper term of residence, without proper notice to the other side, or by collusion, without proper defence, or for no reason but the obvious intention of contracting other marriages. The recommendations of the Commissioners on Uniformity will, therefore, be found summarized below,[3] and there is beginning to be legislation in the direction of adopting these, or similar statutes. The Supreme Court has vindicated, however, the right of the State not to be compelled under the full faith and credit clause to give effect to divorces improperly obtained in other States by its own citizens or against a defendant who is a citizen. In other words, a marriage, lawful where made, is good everywhere; not so of a divorce. The fact that this ruling, wise and proper, necessarily results in the possibility that a person may be married in one State, divorced in another, and a bachelor in a third, and bigamous in a fourth, lends but an added variety to American life. If the people wish to give the Federal government power to make nationwide marriage and divorce laws, they must do so by constitutional amendment.

[Footnote 1: _Sic_: "U.S. Labor Commissioners' Report on Marriage and Divorce," Revised Edition, 1889, pp. 174, 175, 176.]

[Footnote 2: _Ibid_., p. 177.]

[Footnote 3: AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAW OF OTHER STATES RELATIVE TO MIGRATORY DIVORCE

Section 1. No divorce shall be granted for any cause arising prior to the residence of the complainant or defendant in this State, which was not ground for divorce in the State where the cause arose.

Sec. 2. The word "divorce" in this act shall be deemed to mean divorce from the bond of marriage.

Sec. 3. All acts and parts of acts inconsistent herewith are hereby repealed.

AN ACT TO ESTABLISH A LAW UNIFORM WITH THE LAWS OF OTHER STATES RELATIVE TO DIVORCE PROCEDURE AND DIVORCE FROM THE BONDS OF MARRIAGE