RACE DISTINCTIONS
IN AMERICAN LAW
RACE DISTINCTIONS IN AMERICAN LAW
BY
GILBERT THOMAS STEPHENSON, A.M., LL.B.
[Illustration]
NEW YORK AND LONDON
D. APPLETON AND COMPANY
1910
COPYRIGHT, 1910, BY
D. APPLETON AND COMPANY
_Published September, 1910_
TO MY
FATHER AND MOTHER
------------------------------------------------------------------------
PREFACE
America has to-day no problem more perplexing and disquieting than that
of the proper and permanent relations between the white and the colored
races. Although it concerns most vitally the twenty millions of
Caucasians and the eight millions of Negroes in eleven States of the
South, still it is a national problem, because whatever affects one part
of our national organism concerns the whole of it. Although this
question has been considered from almost every conceivable standpoint,
few have turned to the laws of the States and of the Nation to see how
they bear upon it. It was with the hope of gaining new light on the
subject from this source that I undertook the present investigation.
I have examined the Constitutions, statutes, and judicial decisions of
the United States and of the States and Territories between 1865 and the
present to find the laws that have made any distinctions between persons
on the basis of race. Reference has been made to some extent to laws in
force before 1865, but only as the background of later legislation and
decision. In order to make this study comparative as well as special,
the writer has abandoned his original plan of confining it to the
Southern States and laws applicable only to Negroes, and has extended it
to include the whole United States and all the races.
Immediately after the Negro became a free man in 1865, the Federal
Government undertook, by a series of constitutional amendments and
statutory enactments, to secure to him all the rights and privileges of
an American citizen. My effort has been to ascertain how far this
attempt has been successful. The inquiry has been: After forty-five
years of freedom from physical bondage, how much does the Negro lack of
being, in truth, a full-fledged American citizen? What limitations upon
him are allowed or imposed by law because he is a Negro?
This is not meant, however, to be a legal treatise. Although the sources
are, in the main, constitutions, statutes, and court reports, an effort
has been made to state the principles in an untechnical manner. Knowing
that copious citations are usually irksome to those who read for general
information, I have relegated all notes to the ends of the chapters for
the benefit of the more curious reader who often finds them the most
profitable part of a book. There he will find citations of authorities
for practically every important statement made.
All the chapters, except the last two, were published serially in _The
American Law Review_/cite> during the year 1909. The substance of the
chapter on “Separation of Races in Public Conveyances” was published
also in _The American Political Science Review_ for May, 1909.
I wish that I could make public acknowledgment of my indebtedness to all
who have helped me in the preparation of this volume. Hundreds of public
officials in the South—mayors of cities, clerks of courts,
attorneys-general, superintendents of public instruction, etc.—have
responded generously to my requests for information. I am thankful to
Mr. John H. Arnold, Librarian of the Harvard Law School, for access to
the stacks of that library, without which privilege my work would have
been greatly delayed, and to his assistants for their uniform courtesy
while I was making such constant demands upon them. I am under especial
obligation to Professor Albert Bushnell Hart, of Harvard University, for
his direction and assistance in my examination of the sources and his
valuable advice while I have been preparing the material for publication
in this form; also to Mr. Charles E. Grinnell, former Editor of _The
American Law Review_, for his encouragement and suggestions during the
preparation of the articles for his magazine. Lastly, I would express my
gratitude to Mr. Charles Vernon Imlay, of the New York Bar, the value of
whose painstaking help in the revision of the manuscript of this book is
truly inestimable.
GILBERT THOMAS STEPHENSON.
WARREN PLACE, PENDLETON, N. C.
June 1, 1910.
CONTENTS
CHAPTER I
PAGE
INTRODUCTORY 1–11
What is a Race Distinction in Law 1
Distinctions and Discriminations Contrasted 2
Legal and Actual Distinctions 5
All Race Elements Included 6
Period Covered from 1865 to Present 7
CHAPTER II
WHAT IS A NEGRO? 12–25
Legal Definition of Negro 12
Proper Name for Black Men in America 20
CHAPTER III
DEFAMATION TO CALL A WHITE PERSON A NEGRO 26–34
CHAPTER IV
THE “BLACK LAWS” OF 1865–68 35–66
“Black Laws” of Free States 36
Restrictions upon Movement of Negroes 40
Limitations upon Negroes in Respect to Occupations 41
Sale of Firearms and Liquor to Negroes 43
Labor Contracts of Negroes 46
Apprentice Laws 53
Vagrancy Laws 58
Pauper Laws 60
CHAPTER V
RECONSTRUCTION OF MARITAL RELATIONS 67–77
Remarriages 68
Certificates of Marriage 70
Slave Marriages Declared Legal by Statute 73
Marriages Between Slaves and Free Negroes 74
Federal Legislation 75
CHAPTER VI
INTERMARRIAGE AND MISCEGENATION 78–101
Intermarriage During Reconstruction 78
Present State of the Law Against Intermarriage 81
To Whom the Laws Apply 81
Effect of Attempted Intermarriage 83
Punishment for Intermarriage 84
Punishment for Issuing Licenses 86
Punishment for Performing the Ceremony 87
Cohabitation Without Intermarriage 88
States Repealing Laws Against Intermarriage 89
Marriages Between the Negro and Non-Caucasian Races 90
Effect Given to Marriages in Other States 92
Intermarriage and the Federal Constitution 95
Intermarriages in Boston 98
CHAPTER VII
CIVIL RIGHTS OF NEGROES 102–153
Federal Civil Rights Legislation 103
State Legislation Between 1865 and 1883 111
In States Outside of South 112
In South 115
State Legislation After 1883 120
In South 120
In States Outside of South 120
Hotels 124
Restaurants 127
Barber-shops 129
Bootblack Stands 130
Billiard-rooms 131
Saloons 132
Soda Fountains 133
Theatres 134
Skating-Rinks 136
Cemeteries 136
Race Discrimination by Insurance Companies 138
Race Discriminations by Labor Unions 140
Churches 141
Negroes in the Militia 144
Separation of State Dependents 146
CHAPTER VIII
SEPARATION OF RACES IN SCHOOLS 154–206
Berea College Affair 154
Exclusion of Japanese from Public Schools of San Francisco 159
Dr. Charles W. Eliot on Separation of Races in Schools 163
Separation Before 1865 165
Present Extent of Separation in Public Schools 170
In South 170
In States Outside of South 177
Separation in Private Schools 190
Equality of Accommodations 192
Division of Public School Fund 194
CHAPTER IX
SEPARATION OF RACES IN PUBLIC CONVEYANCES 207–236
Origin of “Jim Crow” 208
Development of Legislation Prior to 1875 208
Legislation Between 1865 and 1881 211
Separation of Passengers on Steamboats 214
Separation of Passengers in Railroad Cars 216
Interstate and Intrastate Travel 217
Sleeping Cars 219
Waiting-Rooms 220
Trains to which Laws do not Apply 221
Passengers to whom Law does not Apply 222
Nature of Accommodations 223
Means of Separation 224
Designation of Separation 225
Punishment for Violating Law 225
Separation of Postal Clerks 227
Separation of Passengers in Street Cars 227
Present Extent of Separation 228
Method of Separation 229
Enforcement of Laws 231
Exemptions 232
CHAPTER X
NEGRO IN COURT ROOM 237–280
As Spectator 237
As Judge 238
As Lawyer 239
As Witness 241
As Juror 247
Actual Jury Service by Negroes in South 253
Separate Courts 272
Different Punishments 273
CHAPTER XI
SUFFRAGE 281–347
Negro Suffrage Before 1865 282
Suffrage Between 1865 and 1870 285
Suffrage Between 1870 and 1890 288
Southern Suffrage Amendments Since 1890 294
Citizenship 296
Age 297
Sex 298
Residence 298
Payment of Taxes 299
Ownership of Property 300
Educational Test 301
“Grandfather Clauses” 305
“Understanding and Character Clauses” 308
Persons Excluded from Suffrage 310
Suffrage in Insular Possessions of United States 312
Constitutionality of Suffrage Amendments 313
Maryland and Fifteenth Amendment 317
Extent of Actual Disfranchisement 320
Qualifications for Voting in the United States 322
CHAPTER XII
RACE DISTINCTIONS _versus_ RACE DISCRIMINATIONS 348–362
Race Distinctions not Confined to One Section 348
Race Distinctions not Confined to One Race 350
Race Distinctions not Decreasing 351
Distinctions not Based on Race Superiority 353
Solution of Race Problem Hindered by Multiplicity of
Proposed Remedies 354
Search for a Common Platform 355
Proper Place of Race Distinctions 356
Obliteration of Race Discriminations 358
TABLE OF CASES CITED 363
INDEX 369
RACE DISTINCTIONS IN
AMERICAN LAW
CHAPTER I
INTRODUCTORY
WHAT IS A RACE DISTINCTION IN LAW?
A race distinction in the law is a requirement imposed by statute,
constitutional enactment, or judicial decision, prescribing for a person
of one race a rule of conduct different from that prescribed for a
person of another race. If, for instance, a Negro is required to attend
one public school, a Mongolian another, and a Caucasian a still
different one, a race distinction is created, because the person must
regulate his action accordingly as he belongs to one or another race.
Or, if a person, upon entering a street car, is required by ordinance or
statute to take a seat in the front part of the car if he is a
Caucasian, but in the rear if he is a Negro, this rule is a race
distinction recognized by law. Again, a race distinction is made by the
law when intermarriage between Negroes and Caucasians is prohibited.
Distinctions in law have been made on grounds other than race. Thus, in
those States in which men may vote by satisfying the prescribed
requirements, but in which women may not vote under any circumstances,
the law creates a distinction on the basis of sex. Laws forbidding
persons under seven years of age from testifying in court and laws
exempting from a poll tax persons under twenty-one years of age give
rise to age distinctions. Other instances might be cited, but only race
distinctions have a place here.
DISTINCTIONS AND DISCRIMINATIONS CONTRASTED
It is important, at the outset, to distinguish clearly between race
_distinctions_ and race _discriminations_; more so, because these
words are often used synonymously, especially when the Negro is
discussed. A distinction between the Caucasian and the Negro, when
recognized and enforced by the law, has been interpreted as a
discrimination against the latter. Negroes have recognized that they
are the weaker of the two races numerically, except in the Black Belt
of the South, and intellectually the less developed. Knowing that the
various race distinctions have emanated almost entirely from white
constitution-makers, legislators, and judges, they regard these
distinctions as expressions of the aversion on the part of the
Caucasian to association with the Negro. Naturally, therefore, they
have resented race distinctions upon the belief and, in many
instances, upon the experience that they are equivalent to race
discriminations.
In fact, there is an essential difference between race distinctions and
race discriminations. North Carolina, for example, has a law that white
and Negro children shall not attend the same schools, but that separate
schools shall be maintained. If the terms for all the public schools in
the State are equal in length, if the teaching force is equal in numbers
and ability, if the school buildings are equal in convenience,
accommodations, and appointments, a race distinction exists but not a
discrimination. Identity of accommodation is not essential to avoid the
charge of discrimination. If there are in a particular school district
twice as many white children as there are Negro children, the school
building for the former should be twice as large as that for the latter.
The course of study need not be the same. If scientific investigation
and experience show that in the education of the Negro child emphasis
should be placed on one course of study, and in the education of the
white child, on another; it is not a discrimination to emphasize
industrial training in the Negro school, if that is better suited to the
needs of the Negro pupil, and classics in the white school if the latter
course is more profitable to the white child. There is no discrimination
so long as there is equality of opportunity, and this equality may often
be attained only by a difference in methods.
On the other hand, if the term of the Negro school is four months, and
that of the white, eight; if the teachers in the Negro schools are
underpaid and inadequately or wrongly trained, and the teachers of the
white schools are well paid and well trained; if Negro children are
housed in dilapidated, uncomfortable, and unsanitary buildings, and
white children have new, comfortable, and sanitary buildings; if courses
of study for Negro children are selected in a haphazard fashion without
any regard to their peculiar needs, and a curriculum is carefully
adapted to the needs of white children; if such conditions exist under
the law, race distinctions exist which are at the same time
discriminations against Negroes. Where the tables are turned and Negro
children are accorded better educational advantages than white, the
discriminations are against Caucasians.
A law of Virginia requires white and Negro passengers to occupy separate
coaches on railroad trains. If the coaches for both races are equally
clean, equally comfortable, and equally well appointed; if both races
are accorded equally courteous service by the employees of the railroad;
if, in short, all the facilities for travel are equal for both races,
race distinctions exist but not race discriminations. The extent of
accommodations need not be identical. The railroad company, for
instance, need furnish only the space requisite for the accommodation of
each race. If, however, the white passengers are admitted to clean,
well-lighted, well-ventilated coaches and Negroes, to foul, unclean,
uncomfortable coaches; if white coaches are well-policed, while Negro
passengers are subjected to the insults of disorderly persons; if, in
other words, the Negro passenger does not receive as good service for
his fare as the white, a discrimination against the Negro is made under
the guise of a legal distinction.
In like manner, one might consider each of the race distinctions
recognized in the law and show how it may be applied so as not to work a
discrimination against either race and, as easily, how it may be used to
work an injustice to the weaker race. A race distinction connotes a
difference and nothing more. A discrimination necessarily implies
partiality and favoritism.
LEGAL AND ACTUAL DISTINCTIONS
There is a difference between actual race distinctions—those practiced
every day without the sanction of law—and legal race distinctions—those
either sanctioned or required by statutes or ordinances. Law is
crystallized custom. Race distinctions now recognized by law were
habitually practiced long before they crystallized into statutes. Thus,
actual separation of races on railroad coaches—if not in separate
coaches, certainly in separate seats or portions of the coach—obtained
long before the “Jim Crow” laws came into existence. Moreover,
miscegenation was punished before the legislature made it a crime. Some
race distinctions practiced to-day will probably be sanctioned by
statute in the future; others will persist as customs. In some Southern
cities, for instance, there are steam laundries which will not accept
Negro patronage. Everywhere in the South and in many places in other
sections, there are separate churches for the races. It is practically a
universal custom among the white people in the South never to address a
Negro as “Mister” or “Mistress.” This custom obtains to some extent
elsewhere. Thus, in a recent case before a justice of the peace in
Delaware in which the parties were Negroes, one of them insisted upon
speaking of another Negro as “Mister.” The justice forbade him so to do,
and, upon his persisting, fined him for contempt. Yet, these
distinctions and many others that might be cited are not required by
law, and some of them, if expressed in statutes, would be
unconstitutional.
Most race distinctions, however, are still uncrystallized. But these
will be mentioned merely for illustration, since the purpose here is to
discuss only those distinctions which have been expressed in
constitutions, statutes, and judicial decisions. Mr. Ray Stannard Baker
in his “Following the Colour Line,”[1] has admirably depicted actual
race relations in the United States. He has gone in person out upon the
cotton plantations of the Lower South; into the Negro districts of
cities in the South, East, and North; into schools, churches, and court
rooms; and has described how the Negro lives, what he does, what he
thinks about himself and about the white man, and what the white man
thinks about him. By studying the race distinctions he describes from
the other standpoint suggested—that is, by tracing their gradual
crystallization into statutes and judicial decisions, a better
understanding may be had of race distinctions in general.
ALL RACE ELEMENTS INCLUDED
Attention will be directed not only to the Negro but to other races in
the United States—the Mongolian in the Far West and the Indian in the
Southwest. Of course, by far the largest race element after the
Caucasian is the Negro with its 8,833,994 people of whom eighty-four and
seven-tenths per cent. are in the thirteen States of the South. But it
will be found that in those sections where the Indians have existed or
still exist in appreciable numbers and come into association with the
Caucasian—that is, where they do not still maintain their tribal
relations—race distinctions have separated these two races. This is
equally true of the Japanese and Chinese in the Pacific States. Most of
the discussion will necessarily be of the distinctions between
Caucasians and Negroes, but as distinctions applicable to Mongolians and
Indians arise, they will be mentioned to show that race consciousness is
not confined to any one section or race.
PERIOD COVERED FROM 1865 TO PRESENT
Race distinctions have existed and have been recognized in the law from
the beginning of the settlement of the New World, long before the
thirteen colonies became free and independent States, or before the
Federal Constitution was adopted. The first cargo of Negroes was landed
in Virginia in 1619, only twelve years after the founding of Jamestown.
In 1630, eleven years later, the Virginia Assembly passed the following
resolution:[2] “Hugh Davis to be soundly whipped before an assembly of
Negroes and others, for abusing himself to the dishonor of God and the
shame of Christians, by defiling his body in lying with a Negro.” Many
of the Colonies—later States—prohibited intermarriage between Caucasians
and Negroes whether the latter were slave or free. The Colonies and
States prohibited or limited the movements of free Negroes from one
colony or State to another, prescribed special punishment for adultery
between white persons and Negroes, forbade persons of color to carry
firearms, and in divers other ways restricted the actions of Negroes.
It is not so profitable, however, at this day to study these early
distinctions, for the distinctions based on race were then inseparably
interwoven with those based on the state of slavery. Thus, it is
impossible to say whether a law was passed to regulate a person’s
actions because he was a slave or because he was of the Negro race.
Moreover, the laws relating to race and slave distinctions prior to 1858
were compiled by John Codman Hurd in his two-volume work entitled “The
Law of Freedom and Bondage in the United States,” published in 1858. Any
attempt at a further treatment of the period covered by that work would
result only in a digest of a multitude of statutes, most of which have
been obsolete for many years. But a greater reason for the futility of a
discussion of race distinctions before 1865 is that prior to that date,
as it has been so often expressed, the Negro was considered to have no
rights which the white man was bound to respect. The Dred Scott
decision[3] in 1857 virtually held that a slave was not a citizen or
capable of becoming one, and this dictum, unnecessary to the decision of
the case, did much, says James Bryce,[4] “to precipitate the Civil War.”
If the Negro could enjoy only licenses, claiming nothing as of right, it
is not very valuable to study the distinctions which the master imposed
upon him.
The year 1865 marked the beginning of the present era in race relations.
It was in that year that the Negro became a free man, and that the
Federal Government undertook by successive legislative enactments to
secure and guarantee to him all the rights and privileges which the
Caucasian race had so long enjoyed as its inalienable heritage.
The Emancipation Proclamation of 1862, issued as a military expedient,
declared that, unless the seceding States were back in the Union by
January 1, 1863, all slaves in those States should be emancipated. This
did not apply to the Union States, as Delaware, which still had slaves.
But immediately upon the cessation of hostilities, Congress set to work
to make emancipation general throughout the Union and to give the Negro
all the rights of a citizen. The Thirteenth Amendment to the
Constitution, ratified December 18, 1865, abolished slavery and
involuntary servitude except as a punishment for crime. The following
April, the first Civil Rights Bill[5] was passed, which declared that
“all persons born in the United States and not subject to any foreign
power, excluding Indians not taxed, are hereby declared to be citizens
of the United States; and such citizens, of every race and color,
without regard to any previous condition of slavery or involuntary
servitude, except as a punishment for crime ... shall have the same
right, in every State and Territory in the United States, to make and
enforce contracts, to sue, ... and to full and equal benefit of all laws
and proceedings in the security of persons and property, as is enjoyed
by white citizens, and shall be subject to like punishments and
penalties, and to none other....”
These rights were enlarged by the Fourteenth Amendment, ratified in
1868, which provides that: “All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property without due process of law; nor
deny to any person within its jurisdiction the equal protection of the
laws.” Though the word “Negro” is not mentioned in this Amendment nor in
any of the subsequent Federal enactments, it is not open to dispute that
the legislators had in mind primarily the protection of the Negro.
Under the Fourteenth Amendment, the Civil Rights Bill of 1866 was
reënacted[6] in 1870, with the addition that it extended to all persons
within the jurisdiction of the United States, and that it provided that
all persons should be subject to like taxes, licenses, and exactions of
every kind.
The same year, 1870, the Fifteenth Amendment was ratified, which
declared that the right of citizens of the United States to vote should
not be denied or abridged by the United States or by any States on
account of race, color, or previous condition of servitude.
The Civil Rights Bill[7] of 1875, the most sweeping of all such
legislation by Congress, declared that all persons within the
jurisdiction of the United States should be entitled to the full and
equal enjoyment of the accommodations, advantages, facilities, and
privileges of inns, public conveyances on land or water, theatres, and
other places of public amusement; subject only to the conditions and
limitations established by law, and applicable alike to citizens of
every race and color, regardless of any previous condition of servitude.
It also provided that jurors should not be excluded on account of race,
color, or previous condition of servitude.
An enumeration of these Federal statutes and constitutional amendments
has been made in order to show the efforts of Congress to secure to the
Negro every civil and political right of a full-fledged citizen of the
United States. Later they will be discussed in detail. By the Civil
Rights Bill of 1875, Congress apparently intended to secure not only
equal but identical accommodations in all public places for Negroes and
Caucasians. If one looks only upon the surface of these several
legislative enactments, it would seem impossible to have a race
distinction recognized by law which did not violate some Federal statute
or the Federal Constitution. But the succeeding pages will show that,
under the shadow of the statutes and the Constitution, the legislatures
and courts of the States have built up a mass of race distinctions which
the Federal courts and Congress, even if so inclined, are impotent to
attack.
NOTES
Footnote 1:
Doubleday, Page & Co., 1908.
Footnote 2:
1 Hen. 146, quoted in Hurd’s “Law of Freedom and Bondage,” I, p. 229.
Footnote 3:
19 How. 393 (1857).
Footnote 4:
“American Commonwealth,” I, p. 257.
Footnote 5:
14 Stat. L., 27, chap. 31.
Footnote 6:
16 Stat. L., 144, chap. 114.
Footnote 7:
18 Stat. L., 335, chap. 114.