The Journal of Negro History, Volume 6, 1921. Various

73 that if one provision of a statute be invalid the whole act will fall, where "it is evident the legislature would not have enacted one of them without the other." Harlan meant to say here that to construe this law as applying only to corporations and not to individuals would give it an interpretation that the legislature never had in mind. The intention of the State legislature was to prevent all coeducation of Negroes and whites whether it should be done by persons or corporations. The whole law, therefore, should fall. Justice Harlan conceded that a State reserved the right to repeal the charter but it was not repealed by this act. The statute did not purport even to amend the charter of any particular corporation but assumed to establish a certain rule applicable alike to all individuals, associations, or corporations that teach the white and black races together in the same institution. This decision of the United States Supreme Court was then nothing more than "fine sophistry" to sanction an arbitrary invasion of the rights of liberty and property guaranteed by the Fourteenth Amendment.

      Justice Harlan contended that if the giving of instruction is not a property right, it is one's liberty. Exposing the sophistry of the court he remarked that if the schools must be subjected to such segregation, why not also the Sabbath Schools and Churches? "If States can prohibit the coeducation of the whites and blacks it may prohibit the association of the Anglo-Saxons and Latins; of the Christians and the Jews. Have we become so inoculated with prejudice of race," continued Justice Harlan, "that an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races? Further if the lower court be right, then a State may make it a crime for white and colored persons to frequent the same market places, at the same time, or appear in an assembly of citizens convened to consider questions of a public or political nature in which all citizens without regard to race, are equally interested."

      The Right to Labor

      Although the Negro by these various decisions of the Supreme Court of the United States had been deprived of rights essential to freedom and citizenship in matters of voting, service upon juries, education, and the use of common carriers, there remained even another right which was to be infringed upon without the hope of any redress from the United States Supreme Court. This was the right to contract, to labor. Every honest man should live by his own labor and it is a well established principle of democratic government, that in the exercise of this right the individual should be free not only from interference on the part of the government but should enjoy protection from individuals subject to the government. Because of the development of race prejudice into a flame of bitter antagonism among the laboring men during the period of commercial expansion in the United States since the Reconstruction period, the country has been all but thoroughly organized through trades unions, so as to restrict the Negro to menial service by written constitutions in keeping with the caste which has so long figured conspicuously in American institutions.

      Negroes sought redress in the courts and finally in the United States Supreme Court, the best case in evidence being that of Hodges v. United States.74 In this case came a complaint from certain Negroes in Arkansas laboring in the service of an employer according to a contract. Because of their color certain criminals in that community conspired to injure, oppress, threaten and intimidate them, resulting in the severance of their connection with this employer and the consequent economic loss resulting therefrom. The Negroes thus complaining brought this case to the United States Supreme Court contending that a remedy for this evil was to be found in the revised statutes of the United States Senate, Sections 1977, 1979, 5508, and 5510. These sections follow in the order of their importance:

      Section 5508. If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit or trust created by the Constitution or laws of the United States.

      Other statutes referred to but not so vital were:

      Section 1977. 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 the 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 to no other.

      Section 1978. All citizens of the United States shall have the same right in every State and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

      Section 1979. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      Section 5510. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects or causes to be subjected, any inhabitant of any State or Territory to the deprivation of any right, privilege, or immunities, secured or protected by the Constitution and laws of the United States or to different punishments, pains or penalties, on account of such inhabitants being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than one thousand dollars or by imprisonment not more than one year, or by both.

      The decision in this case was in substance that Congress cannot make it an offense against the United States for individuals to combine or conspire to prevent even by force, citizens of African descent, solely because of their race, from earning a living, although the right to earn one's living in all legal ways and to make lawful contracts in reference thereto is a vital point of freedom established by the Constitution. Section 5508 had been upheld in Ex Parte Yarborough,75 and in the case of Logan v. the United States76 the court referred to this section as having been upheld in Ex Parte Yarborough. In United States v. Reese, moreover,77 Justice Waite said in 1875, speaking for the court, "The rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. This may be varied to meet the necessities of the particular right to be protected."

      "The whole scope and effect of this series of decisions," continued the court, "was that, while certain fundamental rights recognized and declared but not granted or created, in some of the amendments to the Constitution are thereby guaranteed only against violation or abridgement by the United States, or by the States, as the case may be, and cannot, therefore, be affirmatively enforced by Congress against unlawful causes of individuals; yet that every right created by, arising under, or dependent upon the Constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adopted to attain the object." This doctrine was sustained also by the decision in the case of United States v. Waddell,78 and Motes v. United States.79 Here it was emphatically stated that Congress might pass any law necessary or proper for carrying out any power conferred upon it by the Constitution.

      The

74

202 U. S., 1.

75

110 U. S., 651.

76

144 U. S., 236, 286, 293.

77

92 U. S., 214, 217.

78

110 U. S., 651.

79

178 U. S., 458, 462.