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

to be an impartial tribunal and generally held in such high esteem and treated with such reverential fear, has been guilty of inconsistency and sophistry in its effort to support this autocracy in defiance of the well established principles of interpretation for construing the constitutions and laws of States and in utter disregard of the supremacy of Congress in the exercise of the powers granted the government by the Constitution of the United States.

      The Right of Locomotion

      In 1875 Congress passed a measure commonly known as the Civil Rights Bill, which was supplementary of other measures of the same sort, the first being enacted April 9, 1866.18 and reenacted with some modifications in sections 16, 17, and 18 of the Enforcement Act passed August 31, 1870.19 The intention of the statesmen advocating these measures was to secure to the freedmen the enjoyment of every right guaranteed all other citizens. The important sections of the Civil Rights Bill of 1875 follow:

      Section 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.

      Section 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 offense 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 offense be deemed guilty of a misdemeanor, and, upon conviction therefor, 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 penalties 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.

      Although the Negroes by this measure were guaranteed the rights which were granted by the Constitution to every citizen of the United States, the members of the Supreme Court of the United States instead of upholding the laws of the nation in accordance with their oaths undertook to hedge around and to explain away the articles of the Constitution in such a way as to legislate rather than interpret the laws according to the intent of the framers of the Constitution. Subjected to all sorts of discriminations at the polls, in the courts, in inns, in hotels, on street cars, and on railroads, Negroes had sued for redress of their grievances and the persons thus called upon to respond in the courts attacked the constitutionality of the Civil Rights Bill, and the War Amendments, contending that they encroached upon the police power of the States.

      The first of these Civil Rights Cases were: United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson and wife v. Memphis and Charleston R. R. Co. Two of these cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other on indictments, for denying to individuals the privileges and accommodations of a theatre. The information against Ryan was for refusing a colored person a seat in the dress circle of McGuire'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 accommodation of the theatre known as the Grand Opera House in New York.

      The argument to show the culpability of the State was that in becoming a business man or a corporation established by sanction of and protected by the State, such a person or persons discriminating against a citizen of color no longer acted in a private but in a public capacity and in so doing affected an interest in violation of the State by controlling, as in the case of slavery, an individual's power of locomotion. The Civil Rights Bill was appropriate legislation as defined by the Constitution 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." The 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, partook of the specific character of certain contemporaneous, solemn and effective action by the United States to which it was a sequel and is constitutional.

      Giving the opinion of the court in Civil Rights Cases,20 Mr. Justice Bradley said that the Fourteenth Amendment on which this act of 1875 rested for its authority, if it had any authority at all, does not invest Congress to legislate within the domain of State legislation or in State action of the kind referred to in the Civil Rights Act. He believed that the Fourteenth Amendment does not authorize Congress to create a code of municipal law for the regulation of private rights. He conceded that positive rights and privileges are secured by the Fourteenth Amendment but only by prohibition against State laws and State proceedings affecting those rights.21 "Until some State law has passed," he said, "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 under State authority." Otherwise Congress would take the place of State legislatures and supersede them and regulate all private rights between man and man. Civil rights such as are guaranteed by the Constitution against State aggression, thought Justice Bradley, cannot be impaired by the wrongful acts of individuals unsupported by State authority in the shape of laws, customs, or executive proceedings, for those are private wrongs.

      Justice Bradley believed, moreover, that the Civil Rights Act could not be supported by the Thirteenth Amendment in that, unlike the Fourteenth Amendment, the Thirteenth Amendment is primary and direct in abolishing slavery. "When a man has emerged from slavery," said he, "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, 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." To eject a Negro from an inn or a hotel, to compel him to ride in a separate car, to deny him access and use of places maintained at public expense, according to Justice Bradley, do not constitute imposing upon the Negroes badges and incidents of slavery; for they are acts of individuals with which Congress, because of the limited powers of the Federal government, cannot have anything to do. The particular clause in the Civil Rights Act, so far as it operated on individuals in the several States was, therefore, held null and void, but the court held that it might apply to the District of Columbia and territories of the United States for which Congress might legislate directly. Since then the court has in the recent Wright Case declared null and void even that part which it formerly said might apply to territory governed directly by Congress, thus taking the position tantamount to reading into the laws of the United States and the laws of nations the segregation measures of a mediaeval ex-slaveholding commonwealth assisted by the nation in enforcing obedience to its will beyond the three mile limit on the high seas.

      Although conceding that the Thirteenth Amendment was direct and primary legislation, the court held that it had nothing to do with the guarantee against that race discrimination commonly referred to in the bills of complaint as the badges and incidents of slavery. The court found the Fourteenth

18

14 statutes, 27, Chapter 31.

19

16 statutes, 140, Chapter 114.

20

109 U. S., 1.

21

United States v. Cruikshank, 92 U. S., 542; Virginia v. Rives, 100 U. S., 318; Ex Parte Virginia, 100 U. S., 339.