Race Distinctions in American Law

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

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.

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