Chapter VII: CIVIL Rights of Negroes (1)

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