CHAPTER II

THE JIM CROW CAR;

OR,

DENOUNCEMENT OF INJUSTICE METED OUT TO THE

BLACK RACE.

Supreme Court Decision, by His Lordship Bishop H. M.

Turner, Largely Quoted and Elucidated—Clippings from

Miss Ida B. Wells Barnett’s “The Reason Why”—Grave

State of Affairs in the Southern States—Incidents

on Railroads—Public Conveyances—Employment,

Etc.

BY

REV. J. C. COLEMAN,

Formerly Illustrating Lecturer on the “Progress of the

Negro of the South,” “Bishop Taylor’s Mission

to South Africa,” “Biblical Characters,”

“A Drunkard’s Doom,” Etc.

TORONTO, ONT.:

HILL PRINTING CO., 48 RICHMOND STREET WEST.

1898.

PREFACE.

My opposition to injustice, imposition, discrimination and prejudice,

which have for many years existed against the colored people of the

South, has led to this little book. In many parts of America the press

has been furnished with “matter” for defending the colored people,

through the medium of “Coleman’s Illustrated Lectures.” By request of my

many auditors, some of whom being leading elements of the Northern States

and Canada, this volume is published. Many persons interested in the

welfare of the negro, have sought a more elaborate book on the Southern

horrors. Therefore, the manner in which the colored people are treated,

and the laws devised against them from time to time, are the chief

subjects.

My endeavour to furnish those concerned in human welfare, with Southern

railroad affairs, lynchings, etc., so far as the so-called law governing

the white and black races is concerned, is evinced in the experience of

eight years touring on various lines throughout the South. My statements

being authentic and impartial, I have noted some incidents occurring

on roads which I have travelled, amid peculiar circumstances, which I

hope will prove serviceable to the reader. I have quoted Bishop Turner’s

“Supreme Court Decision,” and Mrs. Ida B. Wells Barnett’s “The Reason

Why,” largely because they contain facts _agreeing_ very much with my

experience and judgment. Opinions of leading Afro-American journals have

been expressed as a unanimous sentiment of the race, regarding their

loyalty to the flag under which they live and serve. The main object

of this book is to create within the hearts of those who may read it,

sympathy for the colored people of the South. So many unreasonable things

have been alleged against the negro, that he now demands a reasonable

_consideration_.

The Southern press has made scores of enemies for the entire race, and

continues doing so. The “Rape” Bell has been sounded all over the world

to degrade the negro and impede his rapid progress. Why did the negro

not commit “rape” during his dark days of slavery? In slavery he was

not allowed to know A from B, or 1 from 2. This means that a slave was

esteemed a little higher than the cattle. Slavery is illiteracy. “God is

a jealous God, visiting the iniquity of the fathers upon the children

unto the third and fourth generation of them that hate Him.” “The people

of the Southern States have enslaved the colored people; for 250 years

held them a small degree above the dumb brute. To-day they lynch the

negro, burn him, and refuse him justice on railway cars. God will visit

the Americans. If not the 3rd generation, the 4th will be made repent,

and humiliate to the black man.”—_Rev. J. C. Tolmie, B.A._

The fact that there are in the South about 20,000 teachers, 238,000

scholars, 150 schools for advanced education, and seven colleges with

negro faculty, is sufficient proof itself that the current reports

of “rape” are not true. There are about 8,000,000 colored people in

the United States, and about half that number are Church goers, which

proportionately far exceeds their white brethren. The people who have

been prejudiced against the colored race by Southern newspapers, have

never considered that there are no daily papers managed by the colored

people to defend their side of the case. The weekly papers of colored

editorship are not read by the white race. Then how can the considerate

people who would know of the perpetual reports, arrive at a definite

conclusion as to whether they are right or wrong? There are two sides to

a case, and each side deserves scrutineering. No just judge will hear

the plaintiff, and drive the defendant from the Court room door. _Negro_

rights have been advocated, and are now being advocated by the British

press, and by true, sympathetic ministers of the gospel of both the

North and South. I pray that such a thirsting after righteousness will

emanate from the Churches in America that will cause the world to see

that Christianity predominates from the chilly plains of the North to the

smoky regions of the South.

“Lord, while for all mankind we pray,

Of every clime and coast,

Oh, hear us for our precious race,

The race we love the most.”

JOHN CLAY COLEMAN.

Toronto, Ont., Jan. 15th, 1898.

INTRODUCTION.

Rev. J. Clay Coleman was born 4 miles south of Durant, Holmes Co.,

Mississippi, Feb. 1st, 1876. Lived in Goodman, Holmes Co., Miss., until

1888. His parents were slaves on Tome Bigbee River, Alabama, a number of

years, and afterwards sold to Botus, at Lexington, Holmes Co., Miss.;

from Botus to Fletcher Harrington, at Goodman.

Peter Coleman, the father of J. C. Coleman, was very much devoted to his

family, and took care to see that each of his seven children was to some

extent educated. John Clay Coleman proceeded to the study of law; but

by divine providence he was led to the study of the Bible, and became a

minister and travelling Biblical illustrating lecturer. Mr. Coleman and

the bulk of his relatives are Methodists, the majority of whom being

members of the same Church at Georgeville, Miss. Mrs. Rowena Coleman,

the faithful mother of Mr. Coleman, prayed that his calling would be

to preach the gospel. Her fervent prayers are heard and answered. In

1887, J. C. Coleman had the management of the country mail route from

Goodman to Cocksburg, Miss. Began travelling as lecturer in 1888. In

1892 he travelled the south through; visited the Columbian Exposition

at Chicago in 1893, and appeared at the Turkish Panorama of the Holy

Land, in the interest of “Coleman’s Great Biblical Exhibition.” This

unique exhibition was methodized by Mr. Coleman in his youth, and had

developed at this crisis into the most instructive mode of illustrating

the Scriptures to Bible students. His liberality toward different

institutions the past eight years has marked him a philanthropist. He

has sacrificed time, talent, and “earthly store” to the advancement of

his people. When leaving the World’s Columbian Exposition in 1893, he

was fully determined to impart his remaining years to missionary work in

Africa. He entered Canada in the “power of the Holy Spirit,” was ordained

minister of the gospel at the Annual Conference of the A. M. E. Church,

by Bishop H. M. Turner, at Windsor, Ont., Sept. 1st, 1895. Married Miss

Hattie E. Johnson, of Halifax, N. S. Matrimony performed by Rev. James M.

Henderson, M.A., D.D., President of Morris Brown College, Atlanta, Ga.,

Jan. 17th, 1894.

His wife being a consistent Church woman, has added well to his success

in the ministry. He was educated for the ministry at Victoria University,

Toronto, Ont., being the first colored student in this great University

since its establishment in the City of Toronto. He was received with a

cordial cheering.

His fame as an illustrating lecturer is extensive. Having collected from

the Southern Horrors scenic views, and resplendently presented them by

use of stereopticons before immense audiences, chiefly white people, who

desired direct and accurate information of the condition of the “negro in

the South,” Mr. Coleman has caused a sensation everywhere seen and heard.

Persons have arose after his lectures and said, “Mr. Chairman, I move

that a vote of thanks be tendered Professor Coleman for his excellent

lecture and impressive views on the progress of the colored people in the

Southern States. He has indeed given us facts concerning the outrages

on the people of his nationality, illustrated by pictures taken from

natural life.” Voices could be heard exclaiming, “Hear! hear!!” in all

parts of the audience. Amid these demonstrations a unanimous vote would

be rendered, and an immediate protest against the unfair burdens lavished

upon the negro in the South would warmly ensue.

Mr. Coleman learned in his early public career, that the negro journals

were not read by white people, and it was his highest ambition to carry

the news to them. He is not, therefore, as prominent in his own race as

he would be had he confined himself solely to them. That the Rev. Mr.

Coleman is an original race man, is evidently seen in some notes on his

boyhood traits, and his continuous advancement to a renowned defender

of peace, prosperity, and race protection, both home and abroad. The

leading elements of Goodman attest these facts in a meeting held in

1888, in honor of his departure: “We the undersigned citizens of Goodman

know Prof. John C. Coleman to be a polite and inoffensive gentleman.

We further know him to be of religious and high moral character, and

trustworthy in all of his dealings. We hope his aim set forth, to achieve

greater victories for his people, will be successfully accomplished.

Signed, J. D. Powers, W. D. Waugh, L. W. Houghes, Robert Ford, A. S.

Brumby, M.D., Rev. J. L. Crawford, P. Ward, J. M. Moody, W. W. Crawford,

W. C. Graham, C. Davis.”

The reader of “THE JIM CROW CAR” will note that the author has not

tried to show the “dark side” of his race. Illustrations of the poor

unfortunate ex-slaves are not used, as in some books, touching the

subjects herein.

TORONTO, January 15, 1898.

THE JIM CROW CAR.

CHAPTER I.

EIGHT YEARS’ TRAVEL—GENERAL OBSERVATION—INFERIOR

ACCOMMODATION—DISCRIMINATION—IMPOSITION—IGNORANCE OF

DECENCY—PREJUDICE OCCUPIES THE HIGHEST SEAT—CHRISTIANITY SILENT.

During eight years’ travel on different railroads in the Southern States,

I strictly observed:

1. That it is the duty of employees to see that inferior accommodations

in every “colored” car, and in every “colored” waiting room be arranged.

This unjust measure is heretically endorsed by the white passengers of

all classes.

2. That Discrimination between the white and black races is designed by

“law,” and rigidly enforced on the colored passenger, and a mere sham to

the white passenger.

3. That Imposition upon the colored passenger, in the filthiest, smoky

and inferior cars is participated in by the “highest white gentleman”

and the lowest “ignoramus Hill Billy.”

4. That _Ignorance_ of Decency, politeness, modesty and morality of the

colored passenger is maintained.

5. That Prejudice against the negro race, regardless of characteristics,

prevails in general officers—brakemen and depot agents—and in case of a

law suit for that which is actually and properly due, it occupies the

highest seat in the Court room.

6. That a Christian minister is forced to smoke and associate with the

worst of humanity, by his white brother. Christianity in this respect is

inconsistent with that preached and practiced in India, China, Japan and

Africa.

EARLY EXPERIENCE.

About one mile from the Coleman plantation lived Mrs. Covington, commonly

known as “the Widow Covington.” She owned about 300 acres of cultivated

and uncultivated land, left to her by her deceased husband. The land

being valued at from one dollar and twenty-five cents per acre to ten

dollars per acre, as most southern “sage” ground, placed her in poor

circumstances. Her surroundings put her in the estimation of her colored

neighbors nothing more than “poor white trash.” On account of her

declining condition, my father, who was extremely liberal, sent me to the

Widow Covington to assist her in gardening. It was a source of happiness

to be away from home, and more especially to visit a white person’s house

for the first time. Just as I left my father’s arms with a kiss and “good

bye,” he exclaimed, “Be a good boy!” As I walked along the rocky pathway,

ascending and descending the lofty hills, a constant voice, so tender and

penetrating, seemed to re-echo the words of my beloved father, “Be a good

boy.” Appearing at the widow’s gate, the customary salutation, “Hello,”

was yelled out. Being told to come in, I briskly attempted to step in at

the front door, when I was abruptly told, “Go around the back way.” This

I readily did, thinking that preparations were being made to entertain

the guest in the front room. I was given a seat in the kitchen, which was

both kitchen and dining room, being tosted over toward the north, leaving

several spaces large enough for the cook to have chicken visitors during

meal hours. When dinner was prepared, the little colored guest was left

to partake of the fragments on a separate table. This action being so

inhuman, I asked the widow why did she not ask me to the front room, and

before going to dinner send me to the toilet room, and let all sit at one

table, as there was so much vacancy at her table. The widow displayed no

small degree of madness in her response. “I want you to know that you are

a nigger, and you must stay in a nigger’s place.”

It is to be seen from this that a black man is thought to be inferior to

a white man, and should for this reason be treated as such. The widow’s

conception of a “nigger’s place” is a mouthpiece for the entire South.

You might ask, Why is it that Mr. A. is on board of train No. 3, en route

for New Orleans, occupying a car with all the modern accommodations;

and Mr. B. on the same train, en route for the same place, having paid

the same fare, and occupying a car with split bottomed seats? Tobacco

juice and smoke have given it a new coat of painting and deathly odor.

Mr. A. puts his valise in Mr. B.’s car; smoke, whistle, dance, drink

intoxicants, and then return to his pleasant, modernly furnished car. The

answer would be, Mr. A. is white and Mr. B. is black, for this reason the

employees have assigned Mr. B. to an inferior car, in order that Mr. B.

may remain in a “nigger’s place.”

Thirty-three years have passed since the gloomy clouds of slavery

banished, and made way for the negro to see his place—In the school room;

in the Legislature, Senate, Congress, Ministers to Republics, Registry

of Deeds, Registry of the Treasury, Law, Doctors, Ministers of the

Gospel, Bishopric, U. S. Chaplaincy, Editors, Authors, Merchants, and

Industry. Now let us see why is it that a dungeon is dug for a “nigger’s

place.” Certainly the negro has harmed no one. Not any more so than the

horse stolen from his master. The reason why the white man is at enmity

against the black man is, that the white man once owned the black man.

Millions of dollars were expended on the purchase of slaves when the war

of 1860-’65 began. The purchasers, it is claimed, had not then received

one-half expended on slavery. For this very cause the negro is regarded

as worthless property. The white boy has the example of thievishness and

slothfulness established by his parents. He is taught that swindling

his colored brother is the way his parents came in possession of their

wealth, and to work is taking the “nigger’s place.”

CHAPTER II.

DISCRIMINATION.

The Jim Crow Car, as the negro’s first grievance relative to the Southern

railroad system, is obviously seen in the foregoing observation. There we

see that the matter of being separated from the white passenger “cuts no

figure,” but the very fact that colored passenger is robbed out of the

worth of his well earned money, is the direct reason why the victimized

colored passenger appeals to the conscience of those who have power and

influence to abolish his present outraged condition.

To get the proper understanding of the cause of discrimination on

Southern railroad cars, let us read the following clippings from that

great Southern hero, statesman, and renowned Bishop H. M. Turner, D.D.,

LL.D., D.C.L. From this, we hope to reach a definite conclusion as to

whether the fundamental course of discrimination can be suppressed by the

enactment of “law.” First of all the Civil Rights Bill is before us for

consideration. It has blinded the most studious and philanthropic men

and women within the British Empire, and the civilized world. Those who

meditate on the negro’s condition, and sympathize with his environment,

and who would attempt to assist him, are led to doubt some of the

current reports against the race, believing that the Civil Rights Bill

has imparted privileges to all men alike, and therefore the black man has

a right to make use of equal enjoyment of citizenship.

THE CIVIL RIGHTS BILL, WHICH WAS DESTROYED BY THE UNITED STATES

SUPREME COURT.

AN ACT to protect all citizens in their civil and legal rights.

_Whereas_, It is essential to just government, we recognize the

equality of all men before the law, and hold that it is the

duty of government in its dealings with the people to mete out

equal and exact justice to all, of whatever nativity, race,

color or persuasion, religious or political; and it being the

appropriate object of legislation to enact great fundamental

principles into law; therefore,

_Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled_, That

all persons within the jurisdiction of the United States

shall be entitled to the full and equal enjoyment of the

accommodations, advantages, facilities, and privileges of

inns, public conveyances on land or water, theatres, and other

places of public amusement; subject only to the conditions

and limitations established by law, and applicable alike to

citizens of every race and color, regardless of any previous

condition of servitude.

SEC. 2. That any person who shall violate the foregoing section

by denying to any citizen, except for reasons by law applicable

to citizens of every race and color, and regardless of any

previous condition of servitude, the full enjoyment of any

of the accommodations, advantages, facilities, or privileges

in said section enumerated, or by aiding or inciting such

denial, shall, for every such offence, forfeit and pay the

sum of five hundred dollars to the person aggrieved thereby,

to be recovered in an action of debt, with full costs; and

shall also, for every such offence, be deemed guilty of a

misdemeanor, and, upon conviction thereof, shall be fined not

less than five hundred nor more than one thousand dollars, or

shall be imprisoned not less than thirty days nor more than one

year; _provided_, that all persons may elect to sue for the

penalty aforesaid or to proceed under their rights at common

law and by State statutes; and having so elected to proceed in

the one mode or the other, their right to proceed in the other

jurisdiction shall be barred. But this proviso shall not apply

to criminal proceedings, either under this act or the criminal

law of any State; _and provided further_, that a judgment for

the penalty in favor of the party aggrieved, or a judgment

upon an indictment, shall be a bar to either prosecution

respectively.

SEC. 3. That the district and circuit courts of the United

States shall have, exclusively of the courts of the several

States, cognizance of all crimes and offences against, and

violations of, the provisions of this act; and actions for

the penalty given by the preceding section may be prosecuted

in the territorial, district, or circuit courts of the United

States wherever the defendant may be found, without regard

to the other party; and the district attorneys, marshals,

and deputy marshals of the United States, and commissioners

appointed by the circuit and territorial courts of the United

States, with powers of arresting and imprisoning or bailing

offenders against laws of the United States, are hereby

specially authorized and required to institute proceedings

against every person who shall violate the provisions of this

act, and cause him to be arrested and imprisoned or bailed,

as the case may be, for trial before such court of the United

States, or territorial court, as by law has cognizance of the

offence except in respect of the right of action accruing to

the person aggrieved; and such district attorneys shall cause

such proceedings to be prosecuted to their termination as in

other cases; _provided_, that nothing contained in this section

shall be construed to deny or defeat any right of civil action

accruing to any person, whether by reason of this act or

otherwise; and any district attorney who shall wilfully fail to

institute and prosecute the proceedings herein required, shall,

for every such offence, forfeit and pay the sum of five hundred

dollars to the person aggrieved thereby, to be recovered by

an action of debt, with full costs, and shall, on conviction

thereof, be deemed guilty of a misdemeanor, and be fined not

less than one thousand nor more than five thousand dollars;

_and provided further_, that a judgment for the penalty

in favor of the party aggrieved against any such district

attorney, or a judgment upon an indictment against any such

district attorney, shall be a bar to either prosecution

respectively.

SEC. 4. 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, on conviction thereof, be deemed guilty of a

misdemeanor, and be fined not more than five thousand dollars.

SEC. 5. That all cases arising under the provisions of this act

in the courts of the United States shall be reviewable by the

Supreme Court of the United States, without regard to the sum

in controversy, under the same provisions and regulations as

are now provided by law for the review of other causes in said

court.

Approved March 1, 1875.

The “Civil Rights Bill” comes secondary to the emancipation. The bands of

an unappalled monster, and disgrace upon a civilized nation, gave way for

a better hope for the colored race in 1865. The life and conduct of the

once bonded slave proved within a few years to be equal with his white

brethren, and far better than some of his worst oppressors. The general

characteristics of the negro, his rapid progress, devotion to his Church,

and loyalty to the United States Government, and able achievements in

war, demanded a Civil Rights Bill. When slavery, which was death to the

colored race, was abolished, the Civil Rights Bill gave them a remedy to

LIVE. The following will prove conclusively that the present state of

discrimination has not only hereditary origin, but also sanctioned by the

Supreme Court:—

UNITED STATES SUPREME COURT REPORTS.

VOL. 109.

J. C. BANCROFT DAVIS, REPORTER.

CIVIL RIGHTS CASES.

Syllabus. Civil Rights Cases.—UNITED STATES _v._ STANLEY

(on Certificate of Division from the Circuit Court of the

United States for the District of Kansas)—UNITED STATES _v._

RYAN (in Error to the Circuit Court of the United States for

the District of California)—UNITED STATES _v._ NICHOLS (on

Certificate of Division from the Circuit Court of the United

States for the Western District of Missouri)—UNITED STATES

_v._ SINGLETON (on Certificate of Division from the Circuit

Court of the United States for the Southern District of New

York)—ROBINSON AND WIFE _v._ MEMPHIS AND CHARLESTON RAILROAD

COMPANY (in Error to the Circuit Court of the United States for

the Western District of Tennessee).

Submitted October Term, 1882.—Decided October 15, 1883.

_Civil Rights—Constitution—District of Columbia—Inns—Places of

Amusement—Public Conveyances—Slavery—Territories._

1. The 1st and 2nd sections of the Civil Rights Act passed

March 1st, 1875, are unconstitutional enactments as applied to

the several States, not being authorized either by the XIIIth

or XIVth Amendments of the Constitution.

2. The XIVth Amendment is prohibitory upon the States only,

and the legislation authorized to be adopted by Congress

for enforcing it is not _direct_ legislation on the matters

respecting which the States are prohibited from making or

enforcing certain laws, or doing certain acts, but it is

_corrective_ legislation, such as may be necessary or proper

for counteracting and redressing the effects of such laws or

acts.

3. The XIIIth Amendment relates to slavery and involuntary

servitude (which it abolishes); and although, by its reflex

action, it establishes universal freedom in the United States,

and Congress may probably pass laws directly enforcing its

provisions; yet such legislative power extends only to the

subject of slavery and its incidents; and the denial of equal

accommodations in inns, public conveyances and places of public

amusement (which is forbidden by the sections in question),

imposes no badge of slavery or involuntary servitude upon the

party, but at most, infringes rights which are protected from

State aggression by the XIVth Amendment.

4. Whether the accommodations and privileges sought to be

protected by the 1st and 2nd sections of the Civil Rights Act

are, or are not rights constitutionally demandable; and if they

are, in what form they are to be protected is not now decided.

5. Nor is it decided whether the law as it stands is operative

in the Territories and District of Columbia: the decision only

relating to its validity as applied to States.

6. Nor is it decided whether Congress, under the commercial

power, may or may not pass a law securing to all persons equal

accommodations on lines of public conveyance between two or

more States.

These cases were all founded on the first and second sections of the

Act of Congress, known as the Civil Rights Act, passed March 1st,

1875, entitled, “An Act to protect all citizens in their civil and

legal rights.” 18 Stat. 335. Two of the cases, those against Stanley

and Nichols, were indictments for denying to persons of color the

accommodations and privileges of an inn or hotel; two of them, those

against Ryan and Singleton, were, one on information, the other an

indictment, for denying to individuals the privileges and accommodations

of a theatre, the information against Ryan being for refusing a colored

person a seat in the dress circle of Maguire’s theatre in San Francisco;

and the indictment against Singleton was for denying to another person,

whose color was not stated, the full enjoyment of the accommodations of

the theatre known as the Grand Opera House in New York, “said denial

not being made for any reasons by law applicable to citizens of every

race and color, and regardless of any previous condition of servitude.”

The case of Robinson and wife against the Memphis and Charleston R. R.

Company, was an action brought in the Circuit Court of the United States

for the Western District of Tennessee, to recover the penalty of five

hundred dollars given by the second section of the act; and the gravamen

was the refusal by the conductor of the railroad company to allow the

wife to ride in the ladies’ car, for the reason, as stated in one of the

counts, that she was a person of African descent. The jury rendered a

verdict for the defendants in this case upon the merits, under a charge

of the court, to which a bill of exceptions was taken by the plaintiffs.

The case was tried on the assumption by both parties of the validity of

the act of Congress; and the principal point made by the exceptions was,

that the judge allowed evidence to go to the jury tending to show that

the conductor had reason to suspect that the plaintiff, the wife, was

an improper person, because she was in company with a young man whom he

supposed to be a white man, and on that account inferred that there was

some improper connection between them; and the judge charged the jury,

in substance, that if this was the conductor’s _bona fide_ reason for

excluding the woman from the car, they might take it into consideration

on the question of the liability of the company. The case was brought

here by writ of error at the suit of the plaintiffs. The cases of

Stanley, Nichols, and Singleton came up on certificates of division of

opinion between the judges below as to the constitutionality of the first

and second sections of the act referred to; and the case of Ryan, on a

writ of error to the judgment of the Circuit Court for the District of

California sustaining a demurrer to the information.

The Stanley, Ryan, Nichols, and Singleton cases were submitted together

by the solicitor general at the last term of court, on the 7th day of

November, 1882. There were no appearances and no briefs filed for the

defendants.

The Robinson case was submitted on the briefs at the last term, on the

29th day of March, 1883.

_Mr. Solicitor General Phillips_ for the United States.

After considering some objections in the forms of proceedings in the

different cases, the counsel reviewed the following decisions of the

court upon the Thirteenth and Fourteenth Amendments to the Constitution

and on points cognate thereto, viz.: _The Slaughter-House Cases_, 16

Wall. 36; _Bradwell ~v.~ The State_, 16 Wall. 130; _Bartmeyer ~v.~

Iowa_, 18 Wall. 129; _Minor ~v.~ Happersett_, 21 Wall. 162; _Walker_

v. _Sauvinet_, 92 U. S. 90; _United States ~v.~ Reese_, 92 U. S. 214;

_Kennard ~v.~ Louisiana_, 92 U. S. 480; _United States ~v.~ Cruikshank_,

92 U. S. 542; _Munn ~v.~ Illinois_, 94 U. S. 113; _Chicago B. & C. R. R.

Co. ~v.~ Iowa_, 94 U. S. 155; _Blyew ~v.~ United States_, 13 Wall. 581;

_Railroad Co. ~v.~ Brown_, 17 Wall. 445; _Hall ~v.~ DeCuir_, 95 U. S.

485; _Strauder ~v.~ West Virginia_, 100 U. S. 303; _Ex parte Virginia_,

100 U. S. 339; _Missouri ~v.~ Lewis_, 101 U. S. 22; _Neal ~v.~ Delaware_,

103 U. S. 370.

Upon the whole, these cases decide that,

1. The Thirteenth Amendment forbids all sorts of involuntary personal

servitude except penal, as to all sorts of men, the word servitude

taking some color from the historical fact that the United States were

then engaged in dealing with African slavery, as well as from the

signification of the Fourteenth and Fifteenth Amendments, which must be

construed as _advancing_ constitutional rights previously existing.

2. The Fourteenth Amendment expresses prohibitions (and consequently

implies corresponding positive immunities), _limiting State action

only_, including in such action, however, action by all State agencies

executive, legislative and judicial, of whatever degree.

3. The Fourteenth Amendment warrants legislation by Congress punishing

violations of the immunities thereby secured when committed by agents of

States in discharge of ministerial functions.

The right violated by Nichols, which is of the same class as that

violated by Stanley and by Hamilton, is the right of locomotion,

which Blackstone makes an element of personal liberty. Blackstone’s

Commentaries, Book I, ch. 1.

In violation of this right, Nichols did not act in an exclusively private

capacity, but in one devoted to public use, and so affected with a

public, _i. e._, a State interest. This phrase will be recognized as

taken from the _Elevator Cases_ in 94 U. S., already cited.

Restraint upon the right of locomotion was a well-known feature of the

slavery abolished by the Thirteenth Amendment. A first requisite of the

right to appropriate the use of another man was to become the master of

his natural power of motion, and by a mayhem therein of the common law to

require the whole community to be on the alert to restrain that power.

That this is not exaggeration is shown by the language of the court in

_Eaton ~v.~ Vaughan_, 9 Missouri, 734.

Granting that by _involuntary servitude_, as prohibited in the Thirteenth

Amendment, is intended some _institution_, viz., custom, etc., of that

sort, and not primarily mere scattered trespasses against liberty

committed by private persons, yet, considering what must be the social

tendency in at least large parts of the country, it is “appropriate

legislation” against such an institution to forbid any action by private

persons which in the light of our history may reasonably be apprehended

to tend, on account of its being incidental to quasi public occupations,

to create an _institution_.

Therefore the above act of 1875, in prohibiting persons from violating

the rights of other persons to the full and equal enjoyment of the

accommodations of inns and public conveyances, for any reason turning

merely upon the race or color of the latter, partakers of the specific

character of certain contemporaneous solemn and effective action by the

United States to which it was a sequel—and is constitutional.

_Mr. William M. Randolph_ for Robinson and wife, plaintiffs in error.

Where the constitution guarantees a right, Congress is empowered to

pass the legislation appropriate to give effect to that right. _Prigg_

v. _Pennsylvania_, 16 Peters, 539; _Ableman ~v.~ Booth_, 21 How. 506;

_United States ~v.~ Reese_, 92 U. S. 214.

Whether Mr. Robinson’s rights were created by the Constitution, or only

guaranteed by it, in either event the act of Congress, so far as it

protects them is within the Constitution. _Pensacola Telegraph Co. ~v.~

Western Union Tel. Co._, 96 U. S. 1; _The Passenger Cases_, 7 Howard,

283; _Crandall ~v.~ Nevada_, 6 Wall. 35.

In _Munn ~v.~ Illinois_, 94 U. S. 113 the following propositions were

affirmed:

“Under the powers inherent in every sovereignty, a government may

regulate the conduct of its citizens toward each other, and, when

necessary for the public good, the manner in which each shall use his own

property.”

“It has, in the exercise of these powers, been customary in England, from

time immemorial, and in this country from its first colonization, to

regulate ferries, common carriers, hackmen, bakers, millers, wharfingers,

innkeepers, etc.”

“When the owner of a property devotes it to a use in which the public has

an interest, he in effect grants to the public an interest in such use,

and must, to the extent of that interest, submit to be controlled by the

public, for the common good, as long as he maintains the use.”

Undoubtedly, if Congress could legislate on the subject at all, its

legislation, by the act of 1st March, 1875, was within the principles

thus announced.

The penalty denounced by the statute is incurred by denying to any

citizen “the full enjoyment of any of the accommodations, advantages,

facilities or privileges” enumerated in the first section, and it is

wholly immaterial whether the citizen whose rights are denied him belongs

to one race or class or another, or is of one complexion or another. And

again, the penalty follows every denial of the full enjoyment of any

of the accommodations, advantages, facilities, or privileges, except

and unless the denial was “_for reasons by law_ applicable to citizens

of every race and color, and regardless of any previous condition of

servitude.”

_Mr. William Y. C. Humes_ and _Mr. David Posten_ for the Memphis and

Charleston Railroad Co., defendants in error.

THE DECISION OF THE COURT.

MR. JUSTICE BRADLEY delivered the opinion of the court. After stating the

facts in the above language, he continued:

It is obvious that the primary and important question in all the cases

is the constitutionality of the law; for if the law is unconstitutional,

none of the prosecutions can stand.

The sections of the law referred to provide as follows:

“SEC. 1. That all persons within the jurisdiction of the United States

shall be entitled to the full and equal enjoyment of the accommodations,

advantages, facilities and privileges of inns, public conveyances on land

or water, theatres and other places of public amusement; subject only to

the conditions and limitations established by law, and applicable alike

to citizens of every race and color, regardless of any previous condition

of servitude.

“SEC. 2. That any person who shall violate the foregoing section by

denying to any citizen, except for reasons by law applicable to citizens

of every race and color, and regardless of any previous condition of

servitude, the full enjoyment of any of the accommodations, advantages,

facilities or privileges in said section enumerated, or by aiding or

inciting such denial, shall for every such offence forfeit and pay

the sum of five hundred dollars to the person aggrieved thereby, to

be recovered in an action of debt, with full costs; and shall also,

for every such offence, be deemed guilty of a misdemeanor, and, upon

conviction thereof, shall be fined not less than five hundred nor more

than one thousand dollars, or shall be imprisoned not less than thirty

days nor more than one year: _Provided_, That all persons may elect to

sue for the penalty aforesaid, or to proceed under their rights at common

law and by State statutes; and having so elected to proceed in the one

mode or the other, their right to proceed in the other jurisdiction shall

be barred. But this provision shall not apply to criminal proceedings,

either under this act or the criminal law of any State; _And provided

further_, That a judgment for the penalty in favor of the party

aggrieved, or a judgment upon an indictment, shall be a bar to either

prosecution respectively.”

Are these sections constitutional? The first section, which is the

principal one, cannot be fairly understood without attending to the last

clause, which qualifies the preceding part.

The essence of the law is, not to declare broadly that all persons shall

be entitled to the full and equal enjoyment of the accommodations,

advantages, facilities and privileges of inns, public conveyances

and theatres; but that such enjoyment shall not be subject to any

conditions applicable only to citizens of a particular race or color,

or who had been in a previous condition of servitude. In other words,

it is the purpose of the law to declare that, in the enjoyment of the

accommodations and privileges of inns, public conveyances, theatres and

other places of public amusement, no distinction shall be made between

citizens of different race or color, or between those who have, and those

who have not, been slaves. Its effect is to declare, that in all inns,

public conveyances and places of amusement, colored citizens, whether

formerly slaves or not, and citizens of other races, shall have the same

accommodations and privileges in all inns, public conveyances and places

of amusement as are enjoyed by white citizens; and _vice versa_. The

second section makes it a penal offence in any person to deny to any

citizen of any race or color, regardless of previous servitude, any of

the accommodations or privileges mentioned in the first section.

Has Congress constitutional power to make such a law? Of course, no one

will contend that the power to pass it was contained in the Constitution

before the adoption of the last three amendments. The power is sought,

first, in the Fourteenth Amendment, and the views and arguments of

distinguished Senators, advanced whilst the law was under consideration,

claiming authority to pass it by virtue of that amendment, are the

principal arguments adduced in favor of the power. We have carefully

considered those arguments, as was due to the eminent ability of those

who put them forward, and have felt, in all its force, the weight of

authority which always invests a law that Congress deems itself competent

to pass. But the responsibility of an independent judgment is now thrown

upon this court; and we are bound to exercise it according to the best

lights we have.

The first section of the Fourteenth Amendment (which is the one relied

on), after declaring who shall be citizens of the United States, and of

the several States, is prohibitory in its character, and prohibitory upon

the States. It declares that:

“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; nor deny to any person within its jurisdiction the equal

protection of the laws.”

It is State action of a particular character that is prohibited.

Individual invasion of individual rights is not the subject-matter of

the amendment. It has a deeper and broader scope. 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, or which

injures them in life, liberty or property without due process of law, or

which denies to any of them the equal protection of the laws. It not only

does this, but in order that the national will thus declared may not be a

mere _brutum fulmen_, the last section of the amendment invests Congress

with power to enforce it by appropriate legislation. To enforce what? To

enforce the prohibition. To adopt appropriate legislation for correcting

the effects of such prohibited State laws and State acts, and thus to

render them effectually null, void and innocuous. This is the legislative

power conferred upon Congress, and this is the whole of it. 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 of the kind referred to. It does not

authorize Congress to create a code of municipal law 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. Positive rights and privileges are undoubtedly secured by the

Fourteenth Amendment; but they are secured by way of prohibition against

State laws and State proceedings affecting those rights and privileges,

and by power given to Congress to legislate for the purpose of carrying

such prohibition into effect; and such legislation must necessarily

be predicated upon such supposed State laws or State proceedings, and

be directed to the correction of their operation and effect. A quite

full discussion of this aspect of the amendment may be found in _United

States ~v.~ Cruikshank_, 92 U. S. 542; _Virginia ~v.~ Rives_, 100 U. S.

313; and _Ex parte Virginia_, 100 U. S. 339.

An apt illustration of this distinction may be found in some of the

provisions of the original Constitution. Take the subject of contracts,

for example. The Constitution prohibited the States from passing any law

impairing any obligation of contracts. This did not give to Congress

power to provide laws for the general enforcement of contracts, nor

power to invest the courts of the United States with jurisdiction over

contracts so as to enable parties to sue upon them in those courts. It

did, however, give the power to provide remedies by which the impairment

of contracts by State legislation might be counteracted and corrected;

and this power was exercised. The remedy which Congress actually provided

was that contained in the 25th section of the Judiciary Act of 1789, 1

Stat. 85, giving to the Supreme Court of the United States jurisdiction

by writ of error to review the final decisions of State courts whenever

they should sustain the validity of a State statute or authority alleged

to be repugnant to the Constitution or laws of the United States. By this

means, if a State law was passed impairing the obligation of a contract,

and the State tribunals sustained the validity of the law, the mischief

could be corrected in this court. The legislation of Congress, and the

proceedings provided under it, were corrective in their character. No

attempt was made to draw into the United States courts the litigation of

contracts generally, and no such attempt would have been sustained. We do

not say that the remedy provided was the only one that might have been

provided in that case. Probably Congress had power to pass a law giving

to the courts of the United States direct jurisdiction over contracts

alleged to be impaired by a State law; and under the broad provisions of

the act of March 3rd, 1875, ch. 237, 18 Stat. 470, giving to the circuit

courts jurisdiction of all cases arising under the Constitution and laws

of the United States, it is possible that such jurisdiction now exists.

But under that, or any other law, it must appear as well by allegation,

as proof at the trial, that the Constitution had been violated by the

action of the State legislature. Some obnoxious State law passed, or

that might be passed, is necessary to be assumed in order to lay the

foundation of any federal remedy in the case, and for the very sufficient

reason, that the constitutional provision is against _State laws_

impairing the obligation of contracts.

And so in the present case, 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. Of course, legislation may, and should be,

provided in advance to meet the exigency when it arises; but it should

be adapted to the mischief and wrong which the amendment was intended

to provide against, and that is State laws or State action of some

kind adverse to the rights of the citizen secured by the amendment.

Such legislation cannot properly cover the whole domain of rights

appertaining to life, liberty and property, defining them and providing

for their vindication. That would be to establish a code of municipal

law regulative of all private rights between man and man in society. It

would be to make Congress take the place of the State legislatures and to

supersede them. It is absurd to affirm that, because the rights of life,

liberty and property (which include all civil rights that men have) are

by the amendment sought to be protected against invasion on the part of

the State without due process of law, Congress may therefore provide due

process of law for their vindication in every case, and that, because

the denial by a State to any person of the equal protection of the laws

is prohibited by the amendment, therefore Congress may establish laws

for their equal protection. In fine, the legislation which Congress

is authorized to adopt in this behalf is not general legislation upon

the rights of the citizen, but corrective legislation, that is, such as

may be necessary and proper for counteracting such laws as the States

may adopt or enforce, and which, by the amendment, they are prohibited

from making or enforcing, or such acts and proceedings as the States may

commit or take, and which, by the amendment, they are prohibited from

committing or taking. It is not necessary for us to state, if we could,

what legislation would be proper for Congress to adopt. It is sufficient

for us to examine whether the law in question is of that character.

An inspection of the law shows that it makes no reference whatever to

any supposed or apprehended violation of the Fourteenth Amendment on the

part of the States. It is not predicated on an such view. It proceeds _ex

directo_ to declare that certain acts committed by individuals shall be

deemed offences, and shall be prosecuted and punished by proceedings in

the courts of the United States. It does not profess to be corrective of

any constitutional wrong committed by the States; it does not make its

operation to depend upon any such wrong committed. It applies equally

to cases arising in States which have the justest laws respecting the

personal rights of citizens, and whose authorities are ever ready to

enforce such laws, as to those which arise in States that may have

violated the prohibition of the amendment. In other words, it steps into

the domain of local jurisprudence, and lays down rules for the conduct

of individuals in society towards each other, and imposes sanctions for

the enforcement of those rules without referring in any manner to any

supposed action of the State or its authorities.

If this legislation is appropriate for enforcing the prohibitions of

the amendment, it is difficult to see where it is to stop. Why may

not Congress with equal show of authority enact a code of laws for

the enforcement and vindication of all rights of life, liberty and

property? If it is supposable that the States may deprive persons of

life, liberty and property without due process of law (and the amendment

itself does suppose this), why should not Congress proceed at once to

prescribe due process of law for the protection of every one of these

fundamental rights in every possible case, as well as to prescribe equal

privileges in inns, public conveyances and theatres? The truth is, that

the implication of a power to legislate in this manner is based upon

the assumption that if the States are forbidden to legislate or act

in a particular way on a particular subject, and power is conferred

upon Congress to enforce the prohibition, this gives Congress power to

legislate generally upon that subject, and not merely power to provide

modes of redress against such State legislation or action. The assumption

is certainly unsound. It is repugnant to the Tenth Amendment of the

Constitution, which declares that powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively or to the people.

We have not overlooked the fact that the fourth section of the

act now under consideration has been held by this court to be

constitutional. That section declares “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, on conviction

thereof, be deemed guilty of a misdemeanor, and be fined not more than

five thousand dollars.” In _Ex parte Virginia_, 100 U. S. 339, it was

held that an indictment against a State officer under this section for

excluding persons of color from the jury list is sustainable. But a

moment’s attention to its terms will show that the section is entirely

corrective in its character. Disqualifications for service on juries are

only created by the law, and the first part of the section is aimed at

certain disqualifying laws, namely, those which make mere race or color

a disqualification, and the second clause is directed against those

who, assuming to use the authority of the State government, carry into

effect such a rule of disqualification. In the Virginia case, the State

through its officer enforced a rule of disqualification which the law

was intended to abrogate and counteract. Whether the statute book of

the State actually laid down any such rule of disqualification or not,

the State through its officer enforced such a rule; and it is against

such State action through its officers and agents that the last clause of

the section is directed. This aspect of the law was deemed sufficient to

divest it of any unconstitutional character, and makes it differ widely

from the first and second sections of the same act which we are now

considering.

These sections, in the objectionable features before referred to, are

different also from the law ordinarily called the “Civil Rights Bill,”

originally passed April 9, 1866, 14 Stat. 27, ch. 31, and re-enacted

with some modifications in sections 16, 17, 18, of the Enforcement Act

passed May 31st, 1870, 16 Stat. 140, ch. 114. That law, as re-enacted,

after declaring that all persons within the jurisdiction of the United

States shall have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the security of persons

and property as is enjoyed by white citizens, and shall be subject to

like punishment, pains, penalties, taxes, licenses and exactions of

every kind, and none other, any law, statute, ordinance, regulation

or custom to the contrary notwithstanding, proceeds to enact that any

person who, under color of any law, statute, ordinance, regulation or

custom, shall subject, or cause to be subjected, any inhabitant of any

State or Territory to the deprivation of any rights secured or protected

by the preceding section above quoted, or to different punishment,

pains or penalties on account of such person being an alien, or by

reason of his color or race, than is prescribed for the punishment of

citizens, shall be deemed guilty of a misdemeanor, and subject to fine

and imprisonment as specified in the act. This law is clearly corrective

in its character, intended to counteract and furnish redress against

State laws and proceedings and customs having the force of law which

sanction the wrongful acts specified. In the Revised Statutes, it is

true, a very important clause, to wit, the words “any law, statute,

ordinance, regulation or custom to the contrary notwithstanding,” which

gave the declaratory section its point and effect, are omitted; but the

penal part, by which the declaration is enforced, and which is really

the effective part of the law, retains the reference to state laws by

making the penalty apply only to those who should subject parties to

a deprivation of their rights under color of any statute, ordinance,

custom, etc., of any State or Territory, thus preserving the corrective

character of the legislation. Rev. St., §§ 1977, 1978, 1979, 5510. The

Civil Rights Bill here referred to is analogous in its character to

what a law would have been under the original Constitution, declaring

that the validity of contracts should not be impaired, and that if any

person bound by a contract should refuse to comply with it under color

or pretence that it had been rendered void or invalid by a State law,

he should be liable to an action upon it in the courts of the United

States, with the addition of a penalty for setting up such an unjust and

unconstitutional defence.

In this connection it is proper to state that civil rights, such as

are guaranteed by the Constitution against State aggression, cannot

be impaired by the wrongful acts of individuals unsupported by State

authority in the shape of laws, customs, or judicial or executive

proceedings. The wrongful act of an individual, unsupported by any such

authority, is simply a private wrong, or a crime of that individual—an

invasion of the rights of the injured party, it is true, whether they

affect his person, his property or his reputation; but if not sanctioned

in some way by the State, or not done under State authority, his rights

remain in full force, and may presumably be vindicated by resort to the

laws of the State for redress. An individual cannot deprive a man of his

right to vote, to hold property, to buy and sell, to sue in the courts,

or to be a witness or juror; he may, by force or fraud, interfere with

the enjoyment of the right in a particular case; he may commit an assault

against the person, or commit murder, or use ruffian violence at the

polls, or slander the good name of a fellow-citizen; but unless protected

in these wrongful acts by some shield of State law or State authority, he

cannot destroy or injure the right; he will only render himself amenable

to satisfaction or punishment, and amenable therefor to the laws of the

State where the wrongful acts are committed. Hence in all of those cases

where the Constitution seeks to protect the rights of the citizen against

discriminative and unjust laws of the State by prohibiting such laws, it

is not individual offences, but abrogation and denial of rights which it

denounces, and for which it clothes the Congress with power to provide a

remedy. This abrogation and denial of rights, for which the States alone

were or could be responsible, was the great seminal and fundamental wrong

which was intended to be remedied. And the remedy to be provided must

necessarily be predicated upon that wrong. It must assume that in the

cases provided for the evil or wrong actually committed rests upon some

State law or State authority for its excuse and perpetration.

Of course these remarks do not apply to those cases in which Congress

is clothed with direct and plenary powers of legislation over the whole

subject, accompanied with an express or implied denial of such power to

the States, as in the regulation of commerce with foreign nations, among

the several States, and with the Indian tribes, the coining of money,

the establishment of post offices and post roads, the declaring of war,

etc. In these cases Congress has power to pass laws for regulating the

subjects specified in every detail, and the conduct and transactions of

individuals in respect thereof. But where a subject is not submitted

to the general legislative power of Congress, but is only submitted

thereto for the purpose of rendering effective some prohibition against

particular State legislation or State action in reference to that

subject, the power given is limited by its object, and any legislation by

Congress in the matter must necessarily be corrective in its character,

adapted to counteract and redress the operation of such prohibited State

laws or proceedings of State officers.

If the principles of interpretation which we have laid down are correct,

as we deem them to be (and they are in accord with the principles laid

down in the cases before referred to, as well as in the recent case of

_United States ~v.~ Harris_, 106 U. S. 629), it is clear that the law in

question cannot be sustained by any grant of legislative power made to

Congress by the Fourteenth Amendment. That amendment prohibits the States

from denying to any person the equal protection of the laws, and declares

that Congress shall have power to enforce, by appropriate legislation,

the provisions of the amendment. The law in question, without any

reference to adverse State legislation on the subject, declares that

all persons shall be entitled to equal accommodations and privileges of

inns, public conveyances and places of public amusement, and imposes a

penalty upon any individual who shall deny to any citizen such equal

accommodations and privileges. This is not corrective legislation; it is

primary and direct; it takes immediate and absolute possession of the

subject of the right of admission to inns, public conveyances and places

of amusement; it supersedes and displaces State legislation on the same

subject, or only allows it permissive force; it ignores such legislation,

and assumes that the matter is one that belongs to the domain of national

regulation. Whether it would not have been a more effective protection

of the rights of citizens to have clothed Congress with plenary power

over the whole subject is not now the question. What we have to decide

is, whether such plenary power has been conferred upon Congress by the

Fourteenth Amendment; and in our judgment it has not.

We have discussed the question presented by the law on the assumption

that a right to enjoy equal accommodations and privileges in all inns,

public conveyances and places of public amusements, is one of the

essential rights of the citizen which no State can abridge or interfere

with. Whether it is such a right or not, is a different question which,

in the view we have taken of the validity of the law on the ground

already stated, it is not necessary to examine.

We have also discussed the validity of the law in reference to cases

arising in the States only; and not in reference to cases arising in

the Territories or the District of Columbia, which are subject to the

plenary legislation of Congress in every branch of municipal regulation.

Whether the law would be a valid one as applied to the Territories and

the District is not a question for consideration in the cases before us;

they all being cases arising within the limits of States. And whether

Congress, in the exercise of its power to regulate commerce amongst the

several States, might or might not pass a law regulating rights in public

conveyances passing from one State to another, is also a question which

is not now before us, as the sections in question are not conceived in

any such view.

But the power of Congress to adopt direct and primary, as distinguished

from corrective legislation, on the subject in hand, is sought, in the

second place, from the Thirteenth Amendment, which abolishes slavery.

This amendment declares “that neither slavery nor involuntary servitude,

except as a punishment for crime, whereof the party shall have been duly

convicted, shall exist within the United States, or any place subject to

their jurisdiction;” and it gives Congress power to enforce the amendment

by appropriate legislation.

This amendment, as well as the Fourteenth, is undoubtedly self-executing

without any ancillary legislation, so far as its terms are applicable

to any existing state of circumstances. By its own unaided force and

effect it abolished slavery, and established universal freedom. Still,

legislation may be necessary and proper to meet all the various cases

and circumstances to be affected by it, and to prescribe proper modes

of redress for its violation in letter or spirit. And such legislation

may be primary and direct in its character; for the amendment is not a

mere prohibition of State laws establishing or upholding slavery, but

an absolute declaration that slavery or involuntary servitude shall not

exist in any part of the United States.

It is true that slavery cannot exist without law, any more than property

in land and goods can exist without law: and, therefore, the Thirteenth

Amendment may be regarded as nullifying all State laws which establish

or uphold slavery. But it has a reflex character also, establishing

and decreeing universal civil and political freedom throughout the

United States; and it is assumed that the power vested in Congress to

enforce the article by appropriate legislation, clothes Congress with

power to pass all laws necessary and proper for abolishing all badges

and incidents of slavery in the United States; and upon this assumption

it is claimed that this is sufficient authority for declaring by law

that all persons shall have equal accommodations and privileges in all

inns, public conveyances and places of amusement; the argument being

that the denial of such equal accommodations and privileges is, in

itself, a subjection to a species of servitude within the meaning of the

amendment. Conceding the major proposition to be true, that Congress has

a right to enact all necessary and proper laws for the obliteration and

prevention of slavery with all its badges and incidents, is the minor

proposition also true, that the denial to any person of admission to the

accommodations and privileges of an inn, a public conveyance or a theatre

does subject that person to any form of servitude, or tend to fasten upon

him any badge of slavery? If it does not, then power to pass the law is

not found in the Thirteenth Amendment.

In a very able and learned presentation of the cognate question, as

to the extent of the rights, privileges and immunities of citizens

which cannot rightfully be abridged by State laws under the Fourteenth

Amendment, made in a former case, a long list of burdens and disabilities

of a servile character incident to feudal vassalage in France, and which

were abolished by the decrees of the National Assembly, was presented

for the purpose of showing that all inequalities and observances exacted

by one man from another were servitudes, or badges of slavery, which a

great nation, in its effort to establish universal liberty, made haste

to wipe out and destroy. But these were servitudes imposed by the old

law, or by long custom, which had the force of law, and exacted by one

man from another without the latter’s consent. Should any such servitudes

be imposed by a State law, there can be no doubt that the law would be

repugnant to the Fourteenth, no less than to the Thirteenth Amendment;

nor any greater doubt that Congress has adequate power to forbid any such

servitude from being exacted.

But is there any similarity between such servitudes and a denial by the

owner of an inn, a public conveyance or a theatre, of its accommodations

and privileges to an individual, even though the denial be founded on the

race or color of that individual? Where does any slavery or servitude,

or badge of either, arise from such an act of denial? Whether it might

not be a denial of a right which, if sanctioned by the State law, would

be obnoxious to the prohibitions of the Fourteenth Amendment is another

question. But what has it to do with the question of slavery?

It may be that by the Black Code (as it was called), in the times when

slavery prevailed, the proprietors of inns and public conveyances were

forbidden to receive persons of the African race, because it might assist

slaves to escape from the control of their masters. This was merely

a means of preventing such escapes, and was no part of the servitude

itself. A law of that kind could not have any such object now, however

justly it might be deemed an invasion of the party’s legal right as a

citizen and amenable to the prohibitions of the Fourteenth Amendment.

The long existence of African slavery in this country gave us very

distinct notions of what it was, and what were its necessary incidents.

Compulsory service of the slave for the benefit of the master, restraint

of his movements except by his master’s will, disability to hold

property, to make contracts, to have a standing in court, to be a

witness against a white person, and such like burdens and incapacities

were the inseparable incidents of the institution. Severer punishments

for crimes were imposed on the slave than on free persons guilty of the

same offences Congress, as we have seen, by the Civil Rights Bill of

1866, passed in view of the Thirteenth Amendment, before the Fourteenth

was adopted, undertook to wipe out these burdens and disabilities, the

necessary incidents of slavery, constituting its substance and visible

form; and to secure to all citizens of every race and color, without

regard to previous servitude, those fundamental rights which are the

essence of civil freedom, namely, the same right to make and enforce

contracts, to sue, be parties, give evidence, and to inherit, purchase,

lease, sell and convey property, as is enjoyed by white citizens. Whether

this legislation was fully authorized by the Thirteenth Amendment alone

without the support which it afterward received from the Fourteenth

Amendment, after the adoption of which it was re-enacted with some

additions, it is not necessary to enquire. It is referred to for the

purpose of showing that at that time (in 1866) Congress did not assume,

under the authority given by the Thirteenth Amendment, to adjust what

may be called the social rights of men and races in the community, but

only to declare and vindicate those fundamental rights which appertain

to the essence of citizenship, and the enjoyment or deprivation of which

constitutes the essential distinction between freedom and slavery.

We must not forget that the province and scope of the Thirteenth and

Fourteenth Amendments are different; the former simply abolished slavery;

the latter prohibited the States from abridging the privileges or

immunities of citizens of the United States; from depriving them of life,

liberty or property without due process of law, and from denying to any

the equal protection of the laws. The amendments are different and the

powers of Congress under them are different. What Congress has power to

do under one, it may not have power to do under the other. Under the

Thirteenth Amendment, it has only to do with slavery and its incidents.

Under the Fourteenth Amendment, it has power to counteract and render

nugatory all State laws and proceedings which have the effect to abridge

any of the privileges or immunities of citizens of the United States, or

to deprive them of life, liberty or property without due process of law,

or to deny to any of them the equal protection of the laws. Under the

Thirteenth Amendment, the legislation, so far as necessary or proper to

eradicate all forms and incidents of slavery and involuntary servitude,

may be direct and primary, operating upon the acts of individuals,

whether sanctioned by State legislation or not; under the Fourteenth,

as we have already shown, it must necessarily be, and can only be,

corrective in its character, addressed to counteract and afford relief

against State regulations or proceedings.

The only question under the present head, therefore, is whether the

refusal to any persons of the accommodations of an inn, or a public

conveyance, or a place of public amusement, by an individual, and without

any sanction or support from the State law regulation, does inflict

upon such persons any manner of servitude, or form of slavery, as those

terms are understood in this country? Many wrongs may be obnoxious to

the prohibitions of the Fourteenth Amendment which are not, in any just

sense, incidents or elements of slavery. Such, for example, would be

the taking of private property without due process of law; or allowing

persons who have committed certain crimes (horse stealing for example)

to be seized and hung by the _posse comitatus_ without regular trial;

or denying to any person, or class of persons, the right to pursue any

peaceful avocations allowed to others. What is called class legislation

would belong to this category, and would be obnoxious to the prohibitions

of the Fourteenth Amendment, but would not necessarily be so to the

Thirteenth, when not involving the idea of any subjection of one man

to another. The Thirteenth Amendment has respect not to distinctions

of race, or class, or color, but to slavery. The Fourteenth Amendment

extends its protection to races and classes, and prohibits any State

legislation which has the effect of denying to any race or class, or to

any individual, the equal protection of the laws.

Now, conceding, for the sake of the argument, that the admission to an

inn, a public conveyance or a place of public amusement, on equal terms

with all other citizens, is the right of every man and all classes of

men, is it any more than one of those rights which the States by the

Fourteenth Amendment are forbidden to deny to any person? And is the

Constitution violated until the denial of the right has some State

sanction or authority? Can the act of a mere individual, the owner of

the inn, the public conveyance or place of amusement, refusing the

accommodation, be justly regarded as imposing any badge of slavery or

servitude upon the applicant, or only as inflicting an ordinary civil

injury, properly, cognizable by the laws of the State, and presumably

subject to redress by those laws until the contrary appears?

After giving to these questions all the consideration which their

importance demands, we are forced to the conclusion that such an act of

refusal has nothing to do with slavery or involuntary servitude, and

that if it is violative of any right of the party, his redress is to be

sought under the laws of the State; or if those laws are adverse to his

rights and do not protect him, his remedy will be found in the corrective

legislation which Congress has adopted, or may adopt for counteracting

the effect of State laws, or State action prohibited by the Fourteenth

Amendment. It would be running the slavery argument into the ground 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. Innkeepers

and public carriers, by the laws of all the States so far as we are

aware, are bound, to the extent of their facilities, to furnish proper

accommodation to all unobjectionable persons who in good faith apply for

them. If the laws themselves make any unjust discrimination, amenable to

the prohibitions of the Fourteenth Amendment, Congress has full power to

afford a remedy under that amendment and in accordance with it.

When a man has emerged from slavery, and by the aid of beneficent

legislation has shaken off the inseparable concomitants of that state,

there must be some stage in the progress of his elevation when he takes

the rank of a mere citizen, and ceases to be the special favorite of the

laws, and when his rights as a citizen, or a man, are to be protected in

the ordinary modes by which other men’s rights are protected. There were

thousands of free colored people in this country before the abolition of

slavery, enjoying all the essential rights of life, liberty and property

the same as white citizens; yet no one, at that time, thought that it

was any invasion of his personal status as a freeman because he was not

admitted to all the privileges enjoyed by white citizens, or because he

was subjected to discriminations in the enjoyment of accommodations in

inns, public conveyances and places of amusement. Mere discriminations

on account of race or color were not regarded as badges of slavery. If,

since that time, the enjoyment of equal rights in all these respects has

become established by constitutional enactment, it is not by force of the

Thirteenth Amendment (which merely abolishes slavery), but by force of

the Thirteenth and Fifteenth Amendments.

On the whole we are of opinion, that no countenance of authority for the

passage of the law in question can be found in either the Thirteenth

or Fourteenth Amendments of the Constitution; and no other ground of

authority for its passage being suggested, it must necessarily be

declared void, at least so far as its operation in the several States is

concerned.

This conclusion disposes of the cases now under consideration. In the

cases of the _United States ~v.~ Michael Ryan_, and of _Richard A.

Robinson and wife ~v.~ The Memphis and Charleston Railroad Company_,

the judgment must be affirmed. In the other cases, the answer to be

given will be that the first and second sections of the act of Congress

of March 1st, 1875, entitled “An Act to protect all citizens in their

civil and legal rights,” are unconstitutional and void, and that

judgment should be rendered upon the several indictments in those cases

accordingly,

_And it is so ordered_.

DISSENTING OPINION.

MR. JUSTICE HARLAN dissenting.

The opinion in these cases proceeds, it seems to me, upon grounds

entirely too narrow and artificial. I cannot resist the conclusion that

the substance and spirit of the recent amendments of the Constitution

have been sacrificed by a subtle and ingenius verbal criticism. “It is

not the words of the law, but the internal sense of it, that makes the

law: the letter of the law is the body; the sense and reason of the law

is the soul.” Constitutional provisions, adopted in the interest of

liberty, and for the purpose of securing, through national legislation,

if need be, rights inhering in a state of freedom, and belonging to

American citizenship, have been so construed as to defeat the ends the

people desired to accomplish, which they attempted to accomplish, and

which they supposed they had accomplished by changes in their fundamental

law. By this I do not mean that the determination of these cases should

have been materially controlled by considerations of mere expediency

or policy. I mean only in this form, to express an earnest conviction

that the court has departed from the familiar rule requiring, in the

interpretation of constitutional provisions, that full effect be given to

the intent with which they were adopted.

The purpose of the first section of the Act of Congress of March 1, 1875,

was to prevent _race_ discrimination in respect of the accommodations and

facilities of inns, public conveyances and places of public amusement.

It does not assume to define the general conditions and limitations

under which inns, public conveyances and places of public amusement may

be conducted but only declares that such conditions and limitations,

whatever they may be, shall not be applied so as to work a discrimination

solely because of race, color or previous condition of servitude. The

second section provides a penalty against any one denying, or aiding or

inciting the denial, to any citizen, of that equality of right given by

the first section, except for reasons by law applicable to citizens of

every race or color and regardless of any previous condition of servitude.

There seems to be no substantial difference between my brethren and

myself as to the purpose of Congress; for, they say that the essence of

the law is, not to declare broadly that all persons shall be entitled

to the full and equal enjoyment of the accommodations, advantages,

facilities and privileges of inns, public conveyances and theatres; but

that such enjoyment shall not be subject to conditions applicable only

to citizens of a particular race or color, or who had been in a previous

condition of servitude. The effect of the statute, the court says, is,

that colored citizens, whether formerly slaves or not, and citizens of

other races, shall have the same accommodations and privileges in all

inns, public conveyances and places of amusement as are enjoyed by white

persons; and _vice versa_.

The court adjudges, I think erroneously, that Congress is without power,

under either the Thirteenth or Fourteenth Amendments, to establish such

regulations, and that the first and second sections of the statute are,

in all their parts, unconstitutional and void.

Whether the legislative department of the government has transcended the

limits of its constitutional powers, “is at all times,” said the court

in _Fletcher ~v.~ Peck_, 6 Cr. 128, “a question of much delicacy, which

ought seldom, if ever, to be decided in the affirmative, in a doubtful

case.... The opposition between the Constitution and the law should

be such that the judge feels a clear and strong conviction of their

incompatibility with each other.” More recently in _Sinking Fund Cases_,

99 U. S., 718, we said: “It is our duty when required in the regular

course of judicial proceedings, to declare an Act of Congress void if not

within the legislative power of the United States; but this declaration

should never be made except in a clear case. Every possible presumption

is in favor of the validity of a statute, and this continues until the

contrary is shown beyond a rational doubt. One branch of the government

cannot encroach on the domain of another without danger. The safety of

our institutions depends in no small degree on a strict observance of

this salutary rule.”

Before considering the language and scope of these amendments, it will

be proper to recall the relations subsisting, prior to their adoption,

between the national government and the institution of slavery, as

indicated by the provisions of the Constitution, the legislation of

Congress, and the decisions of this court. In this mode we may obtain

keys with which to open the mind of the people, and discover the thought

intended to be expressed.

In section 2 of article IV. of the Constitution it was provided that “no

person held to service or labor in one State, under the laws thereof,

escaping into another, shall, in consequence of any law or regulation

therein, be discharged from such service or labor, but shall be delivered

up on claim of the party to whom such service or labor may be due.” Under

authority of this clause Congress passed the Fugitive Slave Law of 1793,

establishing a mode for the recovery of fugitive slaves, and prescribing

a penalty against any person who should knowingly and willingly obstruct

or hinder the master, his agent, or attorney, in seizing, and recovering

the fugitive, or who should rescue the fugitive from him, or who should

harbor or conceal the slave after notice that he was a fugitive.

In _Prigg ~v.~ Commonwealth of Pennsylvania_, 16 Pet. 539, this court

had occasion to define the powers and duties of Congress in reference to

fugitives from labor. Speaking by MR. JUSTICE STORY, it laid down these

propositions:

That a clause of the Constitution conferring a right should not be so

construed as to make it shadowy, or unsubstantial, or leave the citizen

without a remedial power adequate for its protection, when another

construction equally accordant with the words and the sense in which they

were used, would enforce and protect the right granted:

That Congress is not restricted to legislation for the execution of its

expressly granted powers; but for the protection of rights guaranteed by

the Constitution, may employ such means, not prohibited, as are necessary

and proper, or such as are appropriate, to attain the ends proposed:

That the Constitution recognized the master’s right of property in his

fugitive slave, and, as incidental thereto, the right of seizing and

recovering him, regardless of any State law, or regulation, or local

custom whatsoever; and,

That the right of the master to have his slave, thus escaping, delivered

up on claim, being guaranteed by the Constitution, the fair implication

was that the national government was clothed with appropriate authority

and functions to enforce it.

The court said: “The fundamental principle, applicable to all cases of

this sort, would seem to be that when the end is required the means

are given, and when the duty is enjoined the ability to perform it is

contemplated to exist on the part of the functionary to whom it is

entrusted.” Again: “It would be a strange anomaly and forced construction

to suppose that the national government meant to rely for the due

fulfillment of its own proper duties, and the rights which it intended

to secure, upon state legislation, and not upon that of the Union. _A

fortiori_, it would be more objectionable to suppose that a power which

was to be the same throughout the Union, should be confided to State

sovereignty which could not rightfully act beyond its own territorial

limits.”

The act of 1793 was, upon these grounds, adjudged to be a constitutional

exercise of the powers of Congress.

It is to be observed from the report of Prigg’s case that Pennsylvania,

by her attorney-general, pressed the argument that the obligation

to surrender fugitive slaves was on the States and for the States,

subject to the restriction that they should not pass laws or establish

regulations liberating such fugitives; that the Constitution did not

take from the States the right to determine the status of all persons

within their respective jurisdictions; that it was for the State in

which the alleged fugitive was found to determine, through her courts

or in such modes as she prescribed, whether the person arrested was, in

fact, a freeman or a fugitive slave; that the sole power of the general

government in the premises was, by judicial instrumentality, to restrain

and correct, not to forbid and prevent in the absence of hostile State

action; and that for the general government to assume primary authority

to legislate on the subject of fugitive slaves, to the exclusion of the

States, would be a dangerous encroachment on State sovereignty. But to

such suggestions this court turned a deaf ear, and adjudged that primary

legislation by Congress to enforce the master’s right was authorized by

the Constitution.

We next come to the Fugitive Slave Act of 1850, the constitutionality

of which rested, as did that of 1793, solely upon the implied power of

Congress to enforce the master’s rights. The provisions of that act were

far in advance of previous legislation. They placed at the disposal of

the master seeking to recover his fugitive slave, substantially the whole

power of the nation. It invested commissioners, appointed under the act,

with power to summon the _posse comitatus_ for the enforcement of its

provisions, and commanded all good citizens to assist in its prompt and

efficient execution whenever their services were required as part of the

_posse comitatus_. Without going into the details of that act, it is

sufficient to say that Congress omitted from it nothing which the utmost

ingenuity could suggest as essential to the successful enforcement of

the master’s claim to recover his fugitive slave. And this court, in

_Ableman ~v.~ Booth_, 21 How. 506, adjudged it to be “in all of its

provisions fully authorized by the Constitution of the United States.”

The only other case, prior to the adoption of the recent amendments,

to which reference will be made, is that of _Dred Scott ~v.~ Sanford_,

19 How, 399. That case was instituted in a circuit court of the United

States by Dred Scott, claiming to be a citizen of Missouri, the defendant

being a citizen of another State. Its object was to assert the title of

himself and family to freedom. The defendant pleaded in abatement that

Scott—being of African descent, whose ancestors, of pure African blood,

were brought into this country and sold as slaves—was not a _citizen_.

The only matter in issue, said the court, was whether the descendants of

slaves thus imported and sold, when they should be emancipated, or who

were born of parents who had become free before their birth, are citizens

of a State in the sense in which the word “citizen” is used in the

Constitution of the United States.

In determining that question the court instituted an inquiry as to who

were citizens of the several States at the adoption of the Constitution,

and who, at that time, were recognized as the people whose rights and

liberties had been violated by the British Government. The result was a

declaration, by this court, speaking by Chief Justice Taney, that the

legislation and histories of the times, and the language used in the

Declaration of Independence, showed “that neither the class of persons

who had been imported as slaves, nor their descendants, whether they had

become free or not, were then acknowledged as a part of the people, nor

intended to be included in the general words used in that instrument;”

that “they had for more than a century before been regarded as beings of

an inferior race, and altogether unfit to associate with the white race,

either in social or political relations, and so far inferior that they

had no rights which the white man was bound to respect, and that the

negro might justly and lawfully be reduced to slavery for his benefit

that he was “bought and sold, and treated as an ordinary article of

merchandise and traffic, whenever a profit could be made by it;” and,

that “this opinion was at that time fixed and universal in the civilized

portion of the white race. It was regarded as an axiom in morals as well

as in politics, which no one thought of disputing, or supposed to be open

to dispute; and men in every grade and position in society daily and

habitually acted upon it in their private pursuits, as well as in matters

of public concern, without for a moment doubting the correctness of this

opinion.”

The judgment of the court was that the words “people of the United

States” and “citizens” meant the same thing, both describing “the

political body who, according to our republican institutions, form the

sovereignty and hold the power and conduct the government through their

representatives;” that “they are what we familiarly call the ‘sovereign

people,’ and ‘every citizen is one of this people and a constituent

member of this sovereignty;’” but, that the class of persons described in

the plea in abatement did not compose a portion of this people, were not

“included and were not intended to be included under the word ‘citizens’

in the Constitution;’” that, therefore, they could “claim none of the

rights and privileges which that instrument provides for and secures to

citizens of the United States;” that, “on the contrary, they were at that

time considered as a subordinate and inferior class of beings, who had

been subjugated by the dominant race, and, whether emancipated or not,

yet remained subject to their authority, and had no rights or privileges

but such as those who held the power and the government might choose to

grant them.”

Such were the relations which formerly existed between the government,

whether national or State, and the descendants, whether free or in

bondage, of those of African blood, who had been imported into this

country and sold as slaves.

The first section of the Thirteenth Amendment provides that “neither

slavery nor involuntary servitude, except as a punishment for crime,

whereof the party shall have been duly convicted, shall exist within the

United States, or any place subject to their jurisdiction.” Its second

section declares that “Congress shall have power to enforce this article

by appropriate legislation.” This amendment was followed by the Civil

Rights Act of April 9, 1866, which, among other things, provided that

“all persons born in the United States, and not subject to any foreign

power, excluding Indians not taxed, and hereby declared to be citizens

of the United States.” 14 Stat. 27. The power of Congress, in this mode,

to elevate the enfranchised race to national citizenship, was maintained

by the supporters of the act of 1886 to be as full and complete as its

power, by general statute, to make the children, being of full age,

of persons naturalized in this country, citizens of the United States

without going through the process of naturalization. The act of 1866, in

this respect was also likened to that of 1843, in which Congress declared

“that the Stockbridge tribe of Indians, and each and every one of them,

shall be deemed to be and are hereby declared to be, citizens of the

United States to all intents and purposes, and shall be entitled to all

the rights, privileges, and immunities of such citizens, and shall in all

respects be subject to the laws of the United States.” If the act of 1866

was valid in conferring national citizenship upon all embraced by its

terms, then the colored race, enfranchised by the Thirteenth Amendment,

became citizens of the United States prior to the adoption of the

Fourteenth Amendment. But, in the view which I take of the present case,

it is not necessary to examine this question.

The terms of the Thirteenth Amendment are absolute and universal. They

embrace every race which then was, or might thereafter be, within the

United States. No race, as such, can be excluded from the benefits

or rights thereby conferred. Yet, it is historically true that that

amendment was suggested by the condition, in this country, of that race

which had been declared, by this court, to have had—according to the

opinion entertained by the most civilized portion of the white race, at

the time of the adoption of the Constitution—“no rights which the white

man was bound to respect,” none of the privileges or immunities secured

by that instrument to citizens of the United States. It had reference,

in a peculiar sense, to a people which (although the larger part of them

were in slavery) had been invited by an act of Congress to aid in saving

from overthrow a government which theretofore, by all of its departments,

had treated them as an inferior race, with no legal rights or privileges,

except such as the white race might choose to grant them.

These are the circumstances under which the Thirteenth Amendment was

proposed for adoption. They are now recalled only that we may better

understand what was in the minds of the people when that amendment was

considered, and what were the mischiefs to be remedied and the grievances

to be redressed by its adoption.

We have seen that the power of Congress, by legislation, to enforce the

master’s right to have his slave delivered up on claim was _implied_

from the recognition of that right in the national Constitution. But

the power conferred by the Thirteenth Amendment does not rest upon

implication or inference. Those who framed it were ignorant of the

discussion, covering many years of our country’s history, as to the

constitutional power of Congress to enact the Fugitive Slave Laws of

1793 and 1850. When, therefore, it was determined, by a change in the

fundamental law, to uproot the institution of slavery wherever it

existed in the land, and to establish universal freedom, there was a

fixed purpose to place the authority of Congress in the premise; beyond

the possibility of a doubt. Therefore, _ex industria_, power to enforce

the Thirteenth Amendment, by appropriate legislation, was expressly

granted. Legislation for that purpose, my brethren concede, may be direct

and primary. But to what specific ends may it be directed? This court

has uniformly held that the national government has the power, whether

expressly given or not, to secure and protect rights conferred or granted

by the Constitution. _United States ~v.~ Reese_, 92 U. S. 214; _Strauder_

v. _West Virginia_, 100 U. S. 303. That doctrine ought not now to be

abandoned when the inquiry is not as to an implied power to protect the

master’s rights, but what may Congress, under powers expressly granted,

do for the protection of freedom and the rights necessarily inhering in a

state of freedom.

The Thirteenth Amendment, it is conceded, did something more than to

prohibit slavery as an _institution_, resting upon distinction of race,

and upheld by positive law. My brethren admit that it established and

decreed universal _civil freedom_ throughout the United States. But did

the freedom thus established involve nothing more than exemption from

actual slavery? Was nothing more intended than to forbid one man from

owning another as property? Was it the purpose of the nation simply

to destroy the institution, and then remit the race, theretofore held

in bondage, to the several States for such protection, in their civil

rights, necessarily growing out of freedom, as those states in their

discretion, might choose to provide? Were the States against whose

protest the institution was destroyed, to be left free, as far as

national interference was concerned, to make or allow discriminations

against that race, as such, in the enjoyment of those fundamental rights

which by universal concession, inhere in a state of freedom? Had the

Thirteenth Amendment stopped with the sweeping declaration, in its first

section, against the existence of slavery and involuntary servitude,

except for crime, Congress would have had the power, by implication,

according to the doctrine of _Prigg ~v.~ Commonwealth of Pennsylvania_,

repeated in _Strauder ~v.~ West Virginia_, to protect the freedom

established, and consequently, to secure the enjoyment of such civil

rights as were fundamental in freedom. That it can exert its authority

to that extent is made clear, and was intended to be made clear, by the

express grant of power contained in the second section of the Amendment.

That there are burdens and disabilities which constitute badges of

slavery and servitude, and that the power to enforce by appropriate

legislation the Thirteenth Amendment may be exerted by legislation of

a direct and primary character, for the eradication, not simply of

the institution, but of its badges and incidents, are propositions

which ought to be deemed indisputable. They lie at the foundation of

the Civil Rights Act of 1866. Whether that act was authorized by the

Thirteenth Amendment alone, without the support which it subsequently

received from the Fourteenth Amendment, after the adoption of which

it was re-enacted with some additions, my brethren do not consider it

necessary, to inquire. But I submit, with all respect to them, that its

constitutionality is conclusively shown by their opinion. They admit,

as I have said, that the Thirteenth Amendment established freedom; that

there are burdens and disabilities, the necessary incidents of slavery,

which constitute its substance and visible form; that Congress, by

the act of 1866, passed in view of the Thirteenth Amendment, before

the Fourteenth was adopted, undertook to remove certain burdens and

disabilities, the necessary incidents of slavery, and to secure to

all citizens of every race and color, and without regard to previous

servitude, those fundamental rights which are the essence of civil

freedom, namely, the same right to make and enforce contracts, to

sue, be parties, give evidence, and to inherit, purchase, lease, sell

and convey property as is enjoyed by white citizens; that under the

Thirteenth Amendment, Congress has to do with slavery and its incidents;

and that legislation, so far as necessary or proper to eradicate all

forms and incidents of slavery and involuntary servitude, may be direct

and primary, operating upon the acts of individuals whether sanctioned

by State legislation or not. These propositions being conceded, it is

impossible, as it seems to me, to question the constitutional validity

of the Civil Rights Act of 1866. I do not contend that the Thirteenth

Amendment vests Congress with authority, by legislation, to define and

regulate the entire body of the civil rights which citizens enjoy, or

may enjoy, in the several States. But I hold that since slavery, as the

court has repeatedly declared, _Slaughter-house Cases_. 16 Wall. 36;

_Strauder ~v.~ West Virginia_, 100 U. S. 303, was the moving or principal

cause of the adoption of that amendment, and since that institution

rested wholly upon the inferiority as a race, of those held in bondage,

their freedom necessarily involved immunity from, and protection against

all discrimination against them _because of their race_, in respect

of such civil rights as belong to freemen of other races. Congress,

therefore, under its express power to enforce that amendment by

appropriate legislation, may enact laws to protect that people against

the deprivation, _because of their race_, of any civil rights granted to

other freemen in the same State; and such legislation may be of a direct

and primary character, operating upon States, their officers and agents,

and, also, upon, at least, such individuals and corporations as exercise

public functions and wield power and authority under the State.

To test the correctness of this position, let us suppose that, prior

to the adoption of the Fourteenth Amendment, a State had passed a

statute denying to freemen of African descent, resident within its

limits, the same right which was accorded to white persons, of making

and enforcing contracts, and of inheriting, purchasing, leasing, selling

and conveying property; or a statute subjecting colored people to

severer punishment for particular offences than was prescribed for white

persons, or excluding that race from the benefit of the laws exempting

homesteads from execution. Recall the legislation of 1865-6 in some of

the States, of which this court, in the _Slaughter-house Cases_, said,

that it imposed upon the colored race onerous disabilities and burdens;

curtailed their rights in the pursuits of life, liberty and property

to such an extent that their freedom was of little value; forbade them

to appear in the towns in any other character than menial servants;

required them to reside on and cultivate the soil, without the right to

purchase or own it; excluded them from many occupations of gain, and

denied them the privilege of giving testimony in the courts where a

white man was a party. 16 Wall. 57. Can there be any doubt that all such

enactments might have been reached by direct legislation upon the part

of Congress under its express power to enforce the Thirteenth Amendment?

Would any court have hesitated to declare that such legislation imposed

badges of servitude in conflict with the civil freedom ordained by that

amendment? That it would have been in conflict with the Fourteenth

Amendment, because inconsistent with the fundamental rights of American

citizenship, does not prove that it would have been consistent with the

Thirteenth Amendment.

What has been said is sufficient to show that the power of Congress under

the Thirteenth Amendment is not necessarily restricted to legislation

against slavery as an institution upheld by positive law, but may be

exerted to the extent, at least, of protecting the liberated race against

discrimination in respect of legal rights belonging to freemen, where

such discrimination is based upon race.

It remains now to inquire what are the legal rights of colored persons

in respect of the accommodations, privileges and facilities of public

conveyances, inns and places of public amusement?

_First_, as to public conveyances on land and water. In _New Jersey Steam

Navigation Co. ~v.~ Merchants’ Bank_, 6 How. 344, this court, speaking

by Mr. Justice Nelson, said that a common carrier is “in the exercise of

a sort of public office, and has public duties to perform, from which he

should not be permitted to exonerate himself without the assent of the

parties concerned.” To the same effect is _Munn ~v.~ Illinois_, 94 U.

S. 113. In _Olcott ~v.~ Supervisors_, 16 Wall. 678, it was ruled that

railroads are public highways, established by authority of the State

for public use; that they are none the less public highways, because

controlled and owned by private corporations; that it is a part of the

function of government to make and maintain highways for the convenience

of the public; that no matter who is the agent, or what is the agency,

the function performed is _that of the State_; that although the owners

may be private companies, they may be compelled to permit the public to

use these works in the manner in which they can be used; that, upon these

grounds alone, have the courts sustained the investiture of railroad

corporations with the State’s right of eminent domain, or the right of

municipal corporations, under legislative authority, to assess, levy and

collect taxes to aid in the construction of railroads. So in _Township

of Queensbury ~v.~ Culver_, 19 Wall. 83, it was said that a municipal

subscription of railroad stock was in aid of the construction and

maintenance of a public highway, and for the promotion of a public use.

Again, in _Township of Pine Grove ~v.~ Talcott_, 19 Wall. 666: “Though

the corporation [railroad] was private, its work was public, as much

so as if it were to be constructed by the State.” To the like effect

are numerous adjudications in this and the State courts with which the

profession is familiar, The Supreme Judicial Court of Massachusetts, in

_Inhabitants of Worcester ~v.~ The Western R. R. Corporation_, 4 Met.

564, said in reference to a railroad:

“The establishment of that great thoroughfare is regarded as a public

work, established by public authority, intended for the public use

and benefit, the use of which is secured to the whole community, and

constitutes, therefore, like a canal, turn-pike, or highway, a public

easement.... It is true that the real and personal property, necessary

to the establishment and management of the railroad, is vested in the

corporation; but it is in trust for the public.” In _Erie, etc., R.

R. Co. ~v.~ Casey_, 26 Penn St. 287, the court, referring to an act

repealing the charter of a railroad, and under which the State took

possession of the road, said: “It is a public highway, solemnly devoted

to public use. When the lands were taken it was for such use, or they

could not have been taken at all.... Railroads established upon land

taken by the right of eminent domain by authority of the commonwealth,

created by her laws as thorough-fares for commerce, are her highways. No

corporation has property in them, though it may have franchises annexed

to and exercisable within them.”

In many courts it has been held that because of the public interest in

such a corporation the land of a railroad company cannot be levied on

and sold under execution by a creditor. The sum of the adjudged cases is

that a railroad corporation is a government agency, created primarily for

public purposes, and subject to be controlled for the public benefit.

Upon this ground the State, when unfettered by contract, may regulate,

in its discretion, the rates of fares of passengers and freight. And

upon this ground, too, the State may regulate the entire management

of railroads in all matters affecting the convenience and safety of

the public; as, for example, by regulating speed, compelling stops of

prescribed length at stations, and prohibiting discriminations and

favoritism. If the corporation neglect or refuse to discharge its duties

to the public, it may be coerced to do so by appropriate proceedings in

the name or in behalf of the State.

Such being the relations these corporations hold to the public, it

would seem that the right of a colored person to use an improved public

highway, upon the terms accorded to freemen of other races, is as

fundamental, in the state of freedom established in this country, as are

any of the rights which my brethren conceive to be so far fundamental as

to be deemed the essence of civil freedom. “Personal liberty consists,”

says Blackstone, “in the power of locomotion, of changing situation,

or removing one’s person to whatever places one’s own inclination may

direct, without restraint, unless by due course of law.” But of what

value is this right of locomotion, if it may be clogged by such burdens

as Congress intended by the act of 1875 to remove? They are burdens which

lay at the very foundation of the institution of slavery as it once

existed. They are not to be sustained, except upon the assumption that

there is, in this land of universal liberty, a class which may still

be discriminated against, even in respect of rights of a character so

necessary and supreme, that deprived of their employment in common with

others, a freeman is not only branded as one inferior and infected, but,

in the competitions of life, is robbed of some of the most essential

means of existence; and all this solely because they belong to a

particular race which the nation has liberated. The Thirteenth Amendment

alone obliterated the race line, so far as all rights fundamental in a

state of freedom are concerned.

_Second_, as to inns. The same general observations which have been made

as to railroads are applicable to inns. The word ‘inn’ has a technical

legal signification. It means, in the act of 1875, just what it meant

at common law. A mere private boarding-house is not an inn, nor is its

keeper subject to the responsibilities, or entitled to the privileges of

a common innkeeper. “To constitute one an innkeeper, within the legal

force of that term, he must keep a house of entertainment or lodging for

all travelers or wayfarers who might choose to accept the same, being of

good character or conduct.” Redfield on Carriers, etc., § 775.

The United States Government is divided into three co-ordinate

departments:—(1) Legislative, (2) Executive, (3) Judiciary. These

departments are an obscure deception to the negro. These departments

are upheld and supported by 8,000,000 black people, and scarcely one

escapes the dreadful discrimination which in all cases means respectable

accommodation for the white man and disrespectable accommodation for the

black man.

SALUS-POPULI-SUPRE MA-EST-LEX.

When the welfare of a race is evinced in the supreme law of the nation,

and that law disfranchises that race, then where shall the race appeal.

Certainly the colored race has appealed to Almighty God, to whom may

glory and praise be given for ever. As Abraham Lincoln was instrumental

in bringing about freedom of the black race, so will the Almighty plant

within the hearts of such heroes as John Brown and Fred. Douglas a seed

of right, and it will grow and ultimately overshadow the wrong. It is

noticeable that the evil forces rush on the negro with one accord: that

is, all the leaders of the American Government apparently have secret

consultation as to the treatment of a black man. Even merchants, hotel

men, livery stable men, news men, and train men, all drift conjointly

against the negro to uphold their own affairs, and especially do the

colored man out of his rights and earnings. The following clipping from

a Decatur daily newspaper will serve readily in support of the foregoing

statement:—

UNDER THE CIVIL RIGHTS BILL.

“Nay Boggess was in Blue Mound yesterday to prosecute a case where J. C.

Coleman sues to recover $200 damages from Landlord Blair. Coleman is a

negro and declares that he was denied entertainment at Blair’s hostelry.

The case was to have been heard yesterday before Justice Tidd, but

Coleman telegraphed from McLean county that he was detained there by the

illness of his wife, and on this plea the case was continued until Monday

next. It is likely that the case will be dismissed at Blue Mound and be

re-instituted in the circuit court.”

The above article appeared in one of the Decatur, Ill., daily leading

newspapers in the summer of 1894. The editorial staff no doubt were

aware of the procedure and termination of all such cases, otherwise

the prediction that the “case would be dismissed in Blue Mound and

re-instituted in the circuit court,” could not have been so frankly

and authentically announced. The numerous disappointments attending my

struggle to obtain justice in this case are so multitudinous space cannot

just here be allotted for further explanation. Some incidents connected

with the travel during the summer of 1894 in the “great” State of

Illinois are of praiseworthy importance to the reader on other pages.

CHAPTER II

IMPOSITION.

It may be conceded that the observations are synonymous, in that they

express the sum and substance of the first observation under the caption

INJUSTICE. In the preceding chapter we have brought out clearly the

Discriminating elements. The imposing forces expand as fast as the white

population increases in the Southern States, and has developed into many

Northern “quarters.” The great, the small, the rich and the poor, the

high and the low, white persons, all have their way of bantering their

colored brother. As a rule young white men and young colored men are at

variance with each other. The same may be said of young white and colored

women. The “whites” of both sexes avoid politeness with the colored to

show their superiority. Children are innocent. The poor boy, whose father

is the servant of a millionaire, can usually find room in the play yard

of the millionaire’s children; but this is not so in the case of the

white and colored boy. The white boy early learns that the colored boy

must eat last, drink last, pass through the gate last, and have the last

choice of the toys.

One of the most singular and inhuman habits the American white people

possess, is that of shirking the colored people during luncheon. Their

colored cook may have handled and even partaken of every piece in the

dish; but the most refined, decent—lady or gentleman alike—colored person

is extremely abhorred and debarred on this occasion. We note these facts

as local condition of affairs.

The general Imposition on the colored race are—(1) Lynching, (2) Discount

in wages, and (3) Immoral conduct with colored women. Before beginning

to elucidate these points, it is well to determine whether the black

man is worthy of any defence in this direction—is he qualified for a

neighbor? or does he intrude on the rights of the Government, or on the

municipal rights, or on individual rights? is he a subject of charity,

as many other foreign nationalities? These vital considerations and most

important questions are answered to some extent in the following clipping

from the Chicago _Inter-Ocean_, June 26, 1894:—

“ONLY 46 OUT OF 4,200.

“Some interesting statistics have been furnished by the

secretary of the School Children’s Aid Society relative to the

work done during the winter of 1893-94. As is generally known,

the society is an outgrowth and under the direct patronage of

the Chicago Women’s Club. It was organized after the enactment

of the compulsory education law of Illinois for the purpose

of clothing the children of the poor who otherwise would be

able to attend school. The past season will long be remembered

as one of unusual suffering, and the society expended a sum

amounting to $8,521.29.

“The money was chiefly spent in purchasing shoes, boys’

clothing, and material for girls’ dresses, skirts, and aprons.

The matter of nationality is a most interesting item in the

report. Of those aided, 1,115 were Irish, 995 German, 572

Americans, 328 Bohemians, 233 English, 184 Jews, 198 Italians,

156 Norwegians, 180 Swedes, 68 Scotch, 57 Danish, 48 French, 46

negroes, 6 Spanish, 6 Welsh, 5 Swiss. The Swiss, French, and

Spanish form a comparatively small per cent. of the population

of Chicago, while the thrifty and industrious Scotch and Danes

are very numerous.

“The most striking feature, however,” continued the _Daily

Inter-Ocean_, June 26, 1894, “is that but forty-six negroes

received assistance, and this in the face of the truth

that our colored population numbers many thousands. Of the

forty-six, six were discovered accidentally and sought out by

the secretary, but who themselves made no appeal for relief.

The mother had come to the rooms of the society for work, and

when questioned said that her husband had been a janitor in a

building which had been closed, but had hope of getting work in

the spring. In the meantime, she said, the children could be

kept at home until then, when they could buy shoes for them and

send them to school. It is gratifying to know that they were

not forced to wait, but that their wants were supplied at once.

“Another virtue credited the negroes by the society is

gratitude. Of all who were aided, with but few exceptions, they

alone expressed any appreciation of what was done for them.

“This testimony must be of interest to those who have always

insisted that the negro is a chronic beggar and hopelessly

dependent. Out of 4,200 cases assisted by the society during

the entire winter, but forty six were negroes.”

Thousands of similar words to the above could be said of the black race.

There are no noted thieves in the race, such as bank robbers, train

robbers, and Government robbers—not traits of the race. We thank our God

that no Rŭb Burrows and Jesse James have arose in the race of African

descent. We may therefore say with propriety, The black man is worthy of

defence. He is worthy of being exonerated from his present imposed state.

LYNCHING.

With prefatory statements of our indebtedness to Mrs. Ida B. Wells

Barnett for her extensive _travels_ in Great Britain and America,

delivering expressive and impressive lectures against this horrible,

disgraceful, and king of all impositions upon a downtrodden people, we

write what we know of the subject, and supplement some cases denounced

in “The Reason Why,” by Mrs. Barnett. Lynching has grown to be an event

which elicits multitudes, composed of men, women and children, to

cheer the participants as though some renowned act of heroism is being

performed. The newspapers have given space to eulogize the lynchers

instead of condemning them. The journals of to-day have grown so high in

public favor that seven out of every ten readers will firmly believe the

current reports. Even some of the Northern black people themselves are to

some extent in sympathy with the lynchers, believing that their own men

are so vile and brutish that they deserve such heinous punishment.

The question is everywhere heard, “Why do they lynch the colored people

down South?” The general presumption is that colored men are “struck”

after the white women. Why were they not hankering after them during

slavery? Why did the master leave his slave to wait on his family during

the war of 1861-5, while he engaged in battle? Colored men were honest

in the dark days of slavery, and they are honest now. The ascension of

the colored people of the South to high seats of honor, and the fear that

they will ultimately predominate, have some “say so” in these lynches.

I have known blood-thirsty mobs to appoint one of their own men to

assault some young woman who would not yield to a member of the mob, to

black his face and fix like a “Nigger,” and remain in secrecy until a

chance presented itself, then suddenly light upon his prey armed with a

revolver. After reaching his highest point of ambition—the mob is called

to lynch some innocent black man for the outrageous deed of a man of

another color. The visit of Madame Barnett to England in behalf of the

black people of America, drew more favor for the race than Hon. Fred.

Douglass or some other distinguished colored man could have drawn. It was

not a man defending his own sex, but a young lady, having been educated

at Holly Springs, Miss., and labored with her own people and for her

own people in the South, who went to England in defence of the innocent

men falling victims to the mobs, and being deprived of legal hearing

or trial. “Rape” is the prevalent charge—the mob is the criterion.

This condition of things are grievous—and more so when we see other

accusations brought against men, women and children of the black race,

and lynchings being the result before proper course has been taken to

decide whether they are innocent or guilty, which will be further seen in

the following contribution, by Ida B. Wells Barnett:

LYNCH LAW.

BY IDA B. WELLS BARNETT.

“Lynch Law,” says the _Virginia Lancet_, “as known by that appellation,

had its origin in 1780 in a combination of citizens of Pittsylvania

County, Virginia, entered into for the purpose of suppressing a trained

band of horse-thieves and counterfeiters whose well concocted schemes

had bidden defiance to the ordinary laws of the land, and whose success

encouraged and emboldened them in their outrages upon the community. Col.

Wm. Lynch drafted the constitution for this combination of citizens,

and hence ‘Lynch Law’ has ever since been the name given to the summary

infliction of punishment by private and unauthorized citizens.”

This law continues in force to-day in some of the oldest states of the

Union, whose courts of justice have long been established, whose laws are

executed by white Americans. It flourishes most largely in the states

which foster the convict lease system, and is brought to bear mainly,

against the Negro. The first fifteen years of his freedom he was murdered

by masked mobs for trying to vote. Public opinion having made lynching

for that cause unpopular, a new reason is given to justify the murders of

the past 15 years. The Negro was first charged with attempting to rule

white people, and hundreds were murdered on that pretended supposition.

He is now charged with assaulting or attempting to assault white women.

This charge, as false as it is foul, robs us of the sympathy of the world

and is blasting the race’s good name.

The men who make these charges encourage or lead the mobs which do the

lynching. They belong to the race which holds Negro life cheap, which

owns the telegraph wires, newspapers, and all other communication

with the outside world. They write the reports which justify lynching

by painting the Negro as black as possible, and those reports are

accepted by the press associations and the world without question or

investigation. The mob spirit has increased with alarming frequency and

violence. Over a thousand black men, women and children have been thus

sacrificed the past ten years. Masks have long since been thrown aside

and the lynchings of the present day take place in broad daylight. The

sheriffs, police and state officials stand by and see the work well

done. The coroner’s jury is often formed among those who took part in

the lynching and a verdict, “Death at the hands of parties unknown to

the jury” is rendered. As the number of lynchings have increased, so has

the cruelty and barbarism of the lynchers. Three human beings was burned

alive in civilized America during the first six months of this year

(1893). Over one hundred have been lynched in this half year. They were

hanged, then cut, shot and burned.

The following table published by the Chicago _Tribune_, January, 1892, is

submitted for thoughtful consideration.

1882, 52 Negroes murdered by mobs.

1883, 39 ” ” ”

1884, 53 ” ” ”

1885, 77 ” ” ”

1886, 73 ” ” ”

1887, 70 ” ” ”

1888, 72 ” ” ”

1889, 95 ” ” ”

1890, 100 ” ” ”

1891, 169 ” ” ”

Of this number,

269 were charged with rape.

253 ” ” ” murder.

44 ” ” ” robbery.

37 ” ” ” incendiarism.

4 ” ” ” burglary.

27 ” ” ” race prejudice.

13 ” ” ” quarrelling with white men.

10 ” ” ” making threats.

7 ” ” ” rioting.

5 ” ” ” miscegenation.

32 ” ” ” no reason given.

This table shows (1) that only one-third of nearly a thousand murdered

black persons have been even charged with the crime of outrage. This

crime is only so punished when white women accuse black men, which

accusation is never proven. The same crime committed by Negroes against

Negroes, or by white men against black women is ignored even in the law

courts.

(2) That nearly as many were lynched for murder as for the above crime,

which the world believes is the cause of all the lynchings. The world

affects to believe that _white_ womanhood and childhood, surrounded by

their lawful protectors, are not safe in the neighborhood of the black

man, who protected and cared for them during the four years of civil war.

The husbands, fathers and brothers of those white women were away for

four years, fighting to keep the Negro in slavery, yet not one case of

assault has ever been reported!

(3) That “robbery, incendiarism, race prejudice, quarrelling with white

men, making threats, rioting, miscegenation (marrying a white person),

and burglary,” are capital offences punishable by death when committed by

a black against a white person. Nearly as many blacks were lynched for

these charges (and unproven) as for the crime of rape.

(4) That for nearly fifty of these lynchings no reason is given. There

is no demand for reasons, or need of concealment for what no one is held

responsible. The simple word of any white person against a Negro is

sufficient to get a crowd of white men to lynch a negro. Investigation

as to the guilt or innocence of the accused is never made. Under these

conditions, white men have only to blacken their faces, commit crimes

against the peace of the community, accuse some Negro, nor rest till he

is killed by a mob. Will Lewis, an 18 year old Negro youth was lynched at

Tullahoma, Tennessee, August, 1891, for being “drunk and saucy to white

folks.”

The women of the race have not escaped the fury of the mob. In Jackson,

Tennessee, in the summer of 1886, a white woman died of poisoning. Her

black cook was suspected, and as a box of rat poison was found in her

room, she was hurried away to jail. When the mob had worked itself to the

lynching pitch, she was dragged out of jail, every stitch of clothing

torn from her body, and she was hung in the public court-house square in

sight of everybody. Jackson is one of the oldest towns in the State, and

the State Supreme Court holds its sittings there; but no one was arrested

for the deed—not even a protest was uttered. The husband of the poisoned

woman has since died a raving maniac, and his ravings showed that he, and

not the poor black cook, was the poisoner of his wife. A fifteen year old

negro girl was hanged in Rayville, Louisiana, in the Spring of 1892, on

the same charge of poisoning white persons. There was no more proof or

investigation of this case than the one in Jackson. A negro woman, Lou

Stevens, was hanged from a railway bridge in Hollendale, Mississippi, in

1892. She was charged with being accessory to the murder of her white

paramour, who had shamefully abused her.

In 1892 there were 240 persons lynched. The entire number is divided

among the following States:

Alabama 22

Arkansas 25

California 3

Florida 11

Georgia 17

Idaho 8

Montana 4

New York 1

North Carolina 5

North Dakota 1

Ohio 3

South Carolina 5

Illinois 1

Kansas 3

Kentucky 9

Louisiana 29

Maryland 1

Mississippi 16

Missouri 6

Tennessee 28

Texas 15

Virginia 7

West Virginia 5

Wyoming 9

Arizona Ter. 3

Oklahoma 2

Of this number 160 were of Negro descent. Four of them were lynched in

New York, Ohio and Kansas; the remainder were murdered in the south. Five

of this number were females. The charges for which they were lynched

cover a wide range. They are as follows:

Rape 46

Murder 58

Rioting 3

Race prejudice 6

No cause given 4

Incendiarism 6

Robbery 6

Assault and Battery 1

Attempted Rape 11

Suspected Robbery 4

Larceny 1

Self defense 1

Insulting women 2

Desperadoes 6

Fraud 1

Attempted murder 2

No offense stated, boy and girl 2

In the case of the boy and girl above referred to, their father, named

Hastings, was accused of the murder of a white man; his fourteen year old

daughter and sixteen year old son were hanged and their bodies filled

with bullets, then the father was also lynched. This was in November,

1892, at Jonesville, Louisiana.

A lynching equally as cold-blooded took place in Memphis, Tennessee,

March, 1892. Three young colored men in an altercation at their place

of business, fired on white men in self-defense. They were imprisoned

for three days, then taken out by the mob and horribly shot to death.

Thomas Moss, Will Stewart and Calvin McDowell, were energetic business

men who had built up a flourishing grocery business. This business had

prospered and that of a rival white grocer named Barrett had declined.

Barrett led the attack on their grocery which resulted in the wounding

of three white men. For this cause were three innocent men barbarously

lynched, and their families left without protectors. Memphis is one

of the leading cities of Tennessee, a town of seventy-five thousand

inhabitants! No effort whatever was made to punish the murderers of these

three men. It counted for nothing that the victims of this outrage were

three of the best known young men of a population of thirty thousand

colored people of Memphis. They were the officers of the company which

conducted the grocery. Moss being the President, Stewart the Secretary of

the Company and McDowell the Manager. Moss was in the Civil Service of

the United States as letter carrier, and all three were men of splendid

reputation for honesty, integrity and sobriety. But their murderers,

though well-known, have never been indicted, were not even troubled with

a preliminary examination.

With law held in such contempt, it is not a matter of surprise that the

same city—one of the so-called queen cities of the South, should again

give itself over to a display of almost indescribable barbarism. This

time the mob made no attempt to conceal its identity, but reveled in the

contemplation of its feast of crime. Lee Walker, a colored man was the

victim. Two white women complained that while driving to town, a colored

man jumped from a place of concealment and dragged one of the two women

from the wagon, but their screams frightened him away. Alarm was given

that a Negro had made an attempted assault upon the women and bands of

men set out to run him down. They shot a colored man who refused to stop

when called. It was fully ten days before Walker was caught. He admitted

that he did attack the women, but that he made no attempt to assault

them; that he offered them no indecency whatever, of which as a matter of

fact, they never accused him. He said he was hungry and he was determined

to have something to eat, but after throwing one of the women out of the

wagon, became frightened and ran away. He was duly arrested and taken to

the Memphis jail. The fact that he was in prison and could be promptly

tried and punished did not prevent the good citizens of Memphis from

taking the law in their own hands, and Walker was lynched.

The _Memphis Commercial_ of Saturday, July 23, contains a full account of

the tragedy from which the following extracts are made:

At 12 o’clock last night, Lee Walker, who attempted to outrage Miss

Mollie McCadden, last Tuesday morning, was taken from the county jail

and hanged to a telegraph pole just north of the prison. All day rumors

were afloat that with nightfall an attack would be made upon the jail,

and as everyone anticipated that a vigorous resistance would be made, a

conflict between the mob and the authorities was feared.

At 10 o’clock Capt. O’Haver, Sergt. Horan and several patrol men were on

hand, but they could do nothing with the crowd. An attack by the mob was

made on the door in the south wall and it yielded. Sheriff McLendon and

several of his men threw themselves into the breach, but two or three of

the storming party shoved by. They were seized by the police but were not

subdued, the officers refraining from using their clubs. The entire mob

might at first have been dispensed by ten policemen who would use their

clubs, but the sheriff insisted that no violence be done.

The mob got an iron rail and used it as a battering ram against the lobby

doors. Sheriff McLendon tried to stop them, and some one of the mob

knocked him down with a chair. Still he counseled moderation and would

not order his deputies and the police to disperse the crowd by force.

The pacific policy of the sheriff impressed the mob with the idea that

the officers were afraid, or at least would do them no harm, and they

redoubled their efforts, urged on by a big switchman. At 12 o’clock the

door of the prison was broken in with a rail.

As soon as the rapist was brought to the door, calls were heard for a

rope; then some one shouted “Burn him!” But there was no time to make a

fire. When Walker got into the lobby a dozen of the men began beating and

stabbing him. He was half dragged, half carried to the corner of Front

street and the alley between Sycamore and Mill, and hung to a telephone

pole.

Walker made a desperate resistance. Two men entered his cell first and

ordered him to come forth. He refused and they failing to drag him out

others entered. He scratched and bit his assailants, wounding several of

them severely with his teeth. The mob retaliated by striking and cutting

him with fists and knives. When he reached the steps leading down to the

door he made another stand and was stabbed again and again. By the time

he reached the lobby his power to resist was gone, and he was shoved

along through the mob of yelling, cursing men and boys, who beat, spat

upon and slashed the wretched-like demon. One of the leaders of the mob

fell, and the crowd walked ruthlessly over him. He was badly hurt—a

jawbone fractured and internal injuries inflicted. After the lynching

friends took charge of him.

The mob proceeded north on Front street with the victim, stopping at

Sycamore street to get a rope from a grocery. “Take him to the iron

bridge on Main street,” yelled several men. The men who had hold of the

Negro were in a hurry to finish the job, however, and when they reached

the telephone pole at the corner of Front street and the first alley

north of Sycamore they stopped. A hastily improvised noose was slipped

over the Negro’s head and several young men mounted a pile of lumber near

the pole and threw the rope over one of the iron stepping pins. The Negro

was lifted up until his feet were three feet above the ground, the rope

was made taut, and a corpse dangled in mid-air. A big fellow who helped

lead the mob pulled the Negro’s legs until his neck cracked. The wretch’s

clothes had been torn off, and as he swung, the man who pulled his legs

mutilated the corpse.

One or two knife cuts, more or less, made little difference in the

appearance of the dead rapist, however, for before the rope was around

his neck his skin was cut almost to ribbons. One pistol shot was fired

while the corpse was hanging. A dozen voices protested against the use of

firearms, and there was no more shooting. The body was permitted to hang

for half an hour, then it was cut down and the rope divided among those

who lingered around the scene of the tragedy. Then it was suggested that

the corpse be burned, and it was done. The entire performance, from the

assault on the jail to the burning of the dead Negro was witnessed by a

score or so of policemen and as many deputy sheriffs, but not a hand was

lifted to stop the proceedings after the jail door yielded.

As the body hung to the telegraph pole, blood streaming down from the

knife wounds in his neck, his hips and lower part of his legs also

slashed with knives, the crowd hurled expletives at him, swung his

body so that it was dashed against the pole, and, so far from the

ghastly sight proving trying to the nerves, the crowd looked on with

complaisance, if not with real pleasure. The Negro died hard. The neck

was not broken, as the body was drawn up without being given a fall, and

death came by strangulation. For fully ten minutes after he was strung up

the chest heaved occasionally and there were convulsive movements of the

limbs. Finally he was pronounced dead, and a few minutes later Detective

Richardson climbed on a pile of staves and cut the rope. The body fell in

a ghastly heap, and the crowd laughed at the sound and crowded around the

prostrate body, a few kicking the inanimate carcass.

Detective Richardson, who is also a deputy coroner, then proceeded to

impanel the following jury of inquest: J. S. Moody, A. C. Waldran, B. J.

Childs, J. N. House, Nelson Bills, T. L. Smith, and A. Newhouse. After

viewing the body the inquest was adjourned without any testimony being

taken until 9 o’clock this morning. The jury will meet at the coroner’s

office, 51 Beale street, upstairs, and decide on a verdict. If no

witnesses are forthcoming, the jury will be able to arrive at a verdict

just the same, as all members of it saw the lynching. Then some one

raised the cry of, “Burn him!” It was quickly taken up and soon resounded

from a hundred throats. Detective Richardson for a long time, single

handed, stood the crowd off. He talked and begged the men not to bring

disgrace on the city by burning the body, arguing that all the vengeance

possible had been wrought.

While this was going on a small crowd was busy starting a fire in the

middle of the street. The material was handy. Some bundles of staves

were taken from the adjoining lumber yard for kindling. Heavier wood was

obtained from the same source, and coal oil from a neighboring grocery.

Then the cries of “Burn him! Burn him!” were redoubled.

Half a dozen men seized the naked body. The crowd cheered. They marched

to the fire, and giving the body a swing, it was landed in the middle of

the fire. There was a cry for more wood, as the fire had begun to die,

owing to the long delay. Willing hands procured the wood, and it was

piled up on the Negro, almost, for a time, obscuring him from view. The

head was in plain view, as also were the limbs, and one arm which stood

out high above the body, the elbow crooked, held in that position by a

stick of wood. In a few moments the hands began to swell, then came great

blisters over all the exposed parts of the body; then in places the flesh

was burned away and the bones began to show through. It was a horrible

sight, one which perhaps none there had ever witnessed before. It proved

too much for a large part of the crowd, and the majority of the mob left

very shortly after the burning began.

But a large number stayed, and were not a bit set back by the sight of a

human body being burned to ashes. Two or three white women, accompanied

by their escorts, pushed to the front to obtain an unobstructed view,

and looked on with astonishing coolness and nonchalance. One man and

woman brought a little girl, not over 12 years old, apparently their

daughter, to view a scene which was calculated to drive sleep from the

child’s eyes for many nights, if not to produce a permanent injury to

her nervous system. The comments of the crowd were varied. Some remarked

on the efficacy of this style of cure for rapists, others rejoiced that

men’s wives and daughters were now safe from this wretch. Some laughed as

the flesh cracked and blistered, and while a large number pronounced the

burning of a dead body as a useless episode, not in all that throng was a

word of sympathy heard for the wretch himself.

The rope that was used to hang the Negro, and also that which was used to

lead him from the jail, were eagerly sought by relic hunters. They almost

fought for a chance to cut off a piece of rope, and in an incredibly

short time both ropes had disappeared and were scattered in the pockets

of the crowd in sections of from an inch to six inches long. Others of

the relic hunters remained until the ashes cooled to obtain such ghastly

relics as the teeth, nails and bits of charred skin of the immolated

victim of his own lust. After burning the body the mob tied a rope

around the charred trunk and dragged it down Main Street to the court

house, where it was hanged to a centre pole. The rope broke and the

corpse dropped with a thud, but it was again hoisted, the charred legs

barely touching the ground. The teeth were knocked out and the finger

nails cut off as souvenirs. The crowd made so much noise that the police

interfered. Undertaker Walsh was telephoned for, who took charge of the

body and carried it to his establishment, where it will be prepared for

burial in the potter’s field to-day.

A prelude to this exhibition of 19th century barbarism was the following

telegram received by the Chicago _Inter-Ocean_, at 2 o’clock, Saturday

afternoon—ten hours before the lynching:

“MEMPHIS, TENN., July 22. To _Inter-Ocean_, Chicago.

“Lee Walker, colored man, accused of raping white women, in

jail here, will be taken out and burned by whites to-night. Can

you send Miss Ida Wells to write it up? Answer. R. M. Martin,

with _Public Ledger_.”

The _Public Ledger_ is one of the oldest evening daily papers in Memphis,

and this telegram shows that the intentions of the mob were well known

long before they were executed. The personnel of the mob is given by the

Memphis _Appeal-Avalanche_. It says, “At first it seemed as if a crowd of

roughs were the principals, but as it increased in size, men in all walks

of life figured as leaders, although the majority were young men.”

This was the punishment meted out to a Negro, charged, not with rape,

but attempted assault, and without any proof as to his guilt, for the

women were not given a chance to identify him. It was only a little less

horrible than the burning alive of Henry Smith, at Paris, Texas, February

1st, 1893, or that of Edward Coy, in Texarkana, Texas, February 20, 1892.

Both were charged with assault on white women, and both were tied to

the stake and burned while yet alive, in the presence of ten thousand

persons. In the case of Coy, the white woman in the case, applied the

match, even while the victim protested his innocence.

In some of these cases the mob affects to believe in the Negro’s guilt.

The world is told that the white woman in the case identifies him, or the

prisoner “confesses.” But in the lynching which took place in Barnwell

County, South Carolina, April 24, 1893, the mob’s victim, John Peterson,

escaped and placed himself under Governor Tillman’s protection; not only

did he declare his innocence, but offered to prove an alibi with white

witnesses. Before his witnesses could be brought, the mob arrived at

the Governor’s mansion and demanded the prisoner. He was given up, and

although the white woman in the case said he was _not_ the man, he was

hanged 24 hours after, and over a thousand bullets fired into his body,

on the declaration that “a crime had been committed, and some one had to

hang for it.”

The lynching of C. J. Miller, at Bardwell, Kentucky, July 7, 1893, was

on the same principle. Two white girls were found murdered near their

home on the morning of July 5th; their bodies were horribly mutilated.

Although their father had been instrumental in the prosecution and

conviction of one of his white neighbors for murder, that was not

considered as a motive. A hue and cry was raised that some Negro had

committed rape and murder, and a search was immediately begun for a

Negro. A blood hound was put on the trail which he followed to the river

and into the boat of a fisherman named Gordon. This fisherman said he had

rowed a white man, or a very fair mulatto across the river at six o’clock

the evening before. The bloodhound was carried across the river, took up

the trail on the Missouri side, and ran about two hundred yards to the

cottage of a white farmer, and there lay down refusing to go further.

Meanwhile a strange Negro had been arrested in Sikestown, Missouri,

and the authorities telegraphed that fact to Bardwell, Kentucky. The

sheriff, without requisition, escorted the prisoner to the Kentucky side

and turned him over to the authorities who accompanied the mob. The

prisoner was a man with dark brown skin; he said his name was Miller

and that he had never been in Kentucky. The fisherman who had said the

man he rowed over was white, when told by the sheriff that he would be

held responsible as knowing the guilty man, if he failed to identify the

prisoner, said Miller was the man. The mob wished to burn him then, about

ten o’clock in the morning, but Mr. Ray, the father of the girls, with

great difficulty urged them to wait till three o’clock that afternoon.

Confident of his innocence, Miller remained cool, while hundreds of

drunken, heavily armed men raged about him. He said: “My name is C. J.

Miller, I am from Springfield, Ill., my wife lives at 716 North Second

Street. I am here among you to-day looked upon as one of the most brutal

men before the people. I stand here surrounded by men who are excited;

men who are not willing to let the law take its course, and as far as the

law is concerned, I have committed no crime, and certainly no crime gross

enough to deprive me of my life or liberty to walk upon the green earth.

I had some rings which I bought in Bismarck of a Jew peddler. I paid him

$4.50 for them. I left Springfield on the first day of July and came

to Alton. From Alton I went to East St. Louis, from there to Jefferson

Barracks, thence to Desoto, thence to Bismarck; and to Piedmont, thence

to Poplar Bluff, thence to Hoxie, to Jonesboro, and then on a local

freight to Malden, from there to Sikeston. On the 5th day of July, the

day I was supposed to have committed the offense, I was at Bismarck.”

Failing in any way to connect Miller with the crime, the mob decided to

give him the benefit of the doubt and _hang, instead of burn him_, as

was first intended. At 3 o’clock, the hour set for the execution, the

mob rushed into the jail, tore off Miller’s clothing and tied his shirt

around his loins. Some one said the rope was “a white man’s death,” and

a log-chain nearly a hundred feet in length, weighing nearly a hundred

pounds was placed about his neck. He was led through the street in that

condition and hanged to a telegraph pole. After a photograph of him was

taken as he hung, his fingers and toes cut off, and his body otherwise

horribly mutilated, it was burned to ashes. This was done within twelve

hours after Miller was taken prisoner. Since his death, his assertions

regarding his movements have been proven true. But the mob refused the

necessary time for investigation.

No more appropriate close for this chapter can be given than an

editorial quotation from that most consistent and outspoken journal the

_Inter-Ocean_. Commenting on the many barbarous lynchings of these two

months (June and July) in its issue of August 5th, 1893, it says:

“So long as it is known that there is one charge against a man

which calls for no investigation before taking his life there

will be mean men seeking revenge ready to make that charge.

Such a condition would soon destroy all law. It would not be

tolerated for a day by white men. But the Negroes have been so

patient under all their trials that men who no longer feel that

they can safely shoot a Negro for attempting to exercise his

right as a citizen at the polls are ready to trump up any other

charge that will give them the excuse for their crime. It is a

singular coincidence that as public sentiment has been hurled

against political murders there has been a corresponding

increase in lynchings on the charge of attacking white women.

The lynchings are conducted in much the same way that they were

by the Ku-Klux Klans when Negroes were mobbed for attempting to

vote. The one great difference is in the cause which the mob

assigns for its action.

“The real need is for a public sentiment in favor of enforcing

the law and giving every man, white and black, a fair hearing

before the lawful tribunals. If the plan suggested by the

Charleston _News and Courier_ will do this let it be done at

once. No one wants to shield a fiend guilty of these brutal

attacks upon unprotected women. But the Negro has as good a

right to a fair trial as the white man, and the South will not

be free from these horrible crimes of mob law so long as the

better class of citizens try to find excuse for recognizing

Judge Lynch.”

The lynching of C. J. Miller at Bardwell, Ky., July 7, 1893, referred

to in Madam Barnett’s writings, has not only been declared barbarism,

outrageous, and outlawry, but a mistake by the lynchers themselves, as

stated in Madam Barnett’s comment.

While in Fulton, Ky., a few days after the horrible deed of lynching Mr.

Miller by the people of Bardwell and volunteers, the writer saw thousands

of bills posted, nullifying the action of the mob in the case of Mr.

Miller, and urging that some other “Nigger” be implicated in the crime,

and lynched to “make up” for the death of the two Ray sisters.

Fulton is situated on the Illinois Central R. R., about 28 miles south

of Bardwell. Every train from the South bound for the Chicago World’s

Columbian Exposition, bore a host of interested passengers to see the

ashes of the innocent man burned at Bardwell. Applications were made

to the conductors to stop long enough at Bardwell to see the “sight.”

The writer was the only one of his nationality on board the train which

stopped at the scene. On the morning of July 28th, 1893, in the business

part of the town of Bardwell, about 50 yards from the Illinois Central

station, the remains of one of the most uncivil deeds perpetrated upon

an innocent man in a Christian country and civil government, could be

pitifully viewed from the platform or window of the car.

COLEMAN AT DECATUR, ILL.

IMPOSITION IN NORTHERN “QUARTERS.”

Decatur has been mentioned elsewhere in this book. It is the third

railway centre in the 3rd productive State in the U. S. Its population

is 20,000. It is about 40 miles from Lincoln, where a log cabin, as a

relic of the martyred President, Abraham Lincoln, remains. There are

three Churches of color represented in Decatur. The first innocent blood

was drawn from the neck of a colored man in 1893, and shed upon the

city of Decatur by some of its “respectable” citizens, men and women. My

introduction to Decatur was in June, 1894, during my visit to a “colored

camp meeting.” I heard it noised around that a Mr. Jackson, waiter of

St Nickels Hotel, had been arrested and placed in jail on a charge of

attempted “rape.” The Lynch alarm had been sounded, which aroused the

sympathy of the colored population to protect Jackson. Those who showed

cowardice were invited to a speech delivered by the writer, urging the

colored men to consolidate their forces and preclude the mob from the

prisoner. Much enthusiasm was manifested while the speech was being made,

and at the conclusion preparation was immediately begun to resist the

murderers. Guns, revolvers, swords, knives and clubs of any dangerous

description were collected and laid by for battle. The municipal

authority showed no protection, _pro et con_, the movements. By 8 p.m.

on the evening appointed by the mob gang, the colored men and boys were

arranged in military form, being under command of general and captain,

etc. The army received cheers for management, courage and promptness from

the better classes of the white population.

The jail in which this prisoner was, was about four blocks from the main

part of the city. The white boys who usually follow shows and excitement,

had occupied the nearest seats to the jail at an early hour, anxiously

waiting to see the end of Jackson’s life. As I advanced accompanied by

my guard, one of the young spectators asked with a tone of delight,

“Are they going to lynch the nigger to-night?” I could but give the

answer, “No.” Having instructed all concerned to show no uncivility to

any person, but at the rise of war, put forth every exertion to save

the life of the prisoner. Orders were given to the band to surround

the prison. Just now I began to experience some of the actual “turns”

of the battle-field. 300 black faces at one signal dotted in separate

groups on all sides of the jail and court-house. At 9 o’clock a man of

low stature passed along the main street, smoking sumptuously, with a

rope which had been presented specially for the lynching of Jackson. The

rope-man was so completely absorbed in the occupation, he failed to see

those who had come to see justice meted out to the prisoner, who so well

deserved it. Some of his constituency within the court-rooms informed him

of the danger in store; he then accepted of a hard bed in the building

for the night. At this crisis absolute calmness seemed to prevail which

continued until between 1 and 2 a.m., when the watchmen were disturbed

by the yells of intoxicated men. Noises of teams, wagons, riders on

horse-back, and some “foolers,” all winding their way from country

villages and bush-towns into the “big town” to kill the old “nigger.”

The night policemen who finally showed some degree of courtesy to the

colored band, conveyed the information to the mob that “300 black men lie

in wait for you; if the mob attempts to take Jackson to-night, no small

number of lives will be lost”. With this intelligence the blood-thirsty

gang received orders from their captain on a sub-way bridge to “retreat

until the next night.” A reporter from the leading newspaper of the city,

who had taken in the general outlook of the affair, asked permission to

address the colored “boys.” Receiving permission from the proper source,

he then rode amid the cool headed body of men. Lighting from his horse

said, “Gentlemen, I understand that you have gathered to protect Mr.

Jackson. Now I wish to inform you that you need not fear any thing like a

mob from any person in Decatur.” “But they are coming from the country,”

came a voice from some person in the rear of the crowd. “Mr. Jackson is

known here as a gentleman,” continued the speaker. “The circumstances

in connection with this case I am fully acquainted with. Mr. Jackson

and this woman were intimate, and some business men in town can verify

the fact that Mr. Jackson gave her money two days ago. The story that

Mr. Jackson was found in her room on her bed with a revolver a few

evenings ago, is true. He was not there to force, but because she asked

him there, being afraid of a policeman just outside the door. She cried

out to secure herself from the law.” These words were received by the

company with profound respect. The Decatur papers verified the reporter’s

statements.

This is not, however, the end of the struggle for life. The spirit of

protection was intense, and grew parallel with the “lynch fever.” The

following evening a greater representation of the colored population

appeared on the scene. Those who failed to secure themselves with arms

the previous evening, came better fortified; but no further attempt

to enter the jail was made by the “outlawers.” The third night, the

municipal power intervened, and chastised the tumultousness. This was

begun by the arrest of one of the colored company, Mr. Artist, who had

occupied a seat in the park, which faces the front street, and who had

two shot guns, and was repeatedly told to leave. This he refused to do.

On this ground he was imprisoned. A committee composed of Mr. J. Artist,

Mr. Oliphant, and the writer called on the Mayor. His Honor cordially

received the committee, and assured the committee that “nothing to hinder

the colored citizens from standing for themselves will be done. Mr.

Artist will be released to-morrow morning.”

From these proceedings the reader is not to conclude that such an act

would stop the Southern lynchings. In a Northern city of so small a

population of colored people as Decatur, it is reasonable to suppose that

race war would not be tolerated, while such would be the case in the

South. That the city officials were friendly to the action of the colored

people is seen in the fact that there was no interference with them until

the third night of the warfare, and the releasement of Mr. Artist. It

should be remembered that the colored citizens were in every respect

submissive to the law, only that the condition of their surroundings had

grown to the doctrine, “Eye for eye, and tooth for tooth.”

With an outstretched hand to fallen humanity, and uplifted voice to God,

accompanied by a painful heart, I must here appeal to Scripture facts.

“All things work together for good to them that love God, to them who

are the called according to His purpose.” Rev. Mr. Mudd, a distinguished

divine, connected himself with the colored citizens of Decatur, striving

to uphold the right in the case of Mr. Jackson, who through the

instrumentality of his race was given a fair trial.