XVI
LEGISLATION CONCERNING PERSONAL AND RACIAL RIGHTS
This is, of course, a matter of which books might be, and indeed have been, written; our general essay on popular legislation can do no more than summarize past law-making and the present trend of legislatures, much as some history of the people of England might broadly state the economic facts and laws of the Corn-law period in England. Racial legislation may, of course, be considered from the point of view of the negro, the Indian, and the alien, and indeed it differs much in all three. Other personal legislation is largely concerned with the right to exercise trade, already discussed, and the questions of marriage and divorce we reserve for the next chapter. In the past we have been very unjust, not to say cruel, to the Indian, and though naturally in some respects a high-natured race, have constantly denied him any political share in the government, and only in the very last few years grudgingly extended it to such Indians as renounce their tribe and adopt the habits and mode of life of the white man, or, as in early England, to such freeholders as acquire a quarter section of land. In the negro's case, however, we atoned for the early crime of enslavement by the sentimental hurry with which we endeavored in the '60's and '70's of the last century to take him up by law and force him into exact equality, social as well as political, with the white man. To aliens, in the third hand, we have been consistently generous, having shown only in the very last few years any attempt whatever to exclude the most worthless or undesirable; except that the prejudice against the Mongolian in the far West is quite as bitter as it ever was against the negro in the South, and he is still sternly refused citizenship, even national citizenship, which we freely extend to the African. We are thus left in the ridiculous situation of providing that nobody may be a citizen of our great Republic except a white Caucasian and a black African, with considerable ambiguity still as to what the word "white" means. The American Indians are, indeed, admitted under the conditions before mentioned, so that as a catch-word the reader may remember that we are a red, white, and black country, but not a brown or yellow one. All this is, of course, the accident of history; but the accidents of history are its most important incidents.
Taking Asiatic races first, the far Western States vie with each other in passing legislation which shall deny them the right to life, or at least to live upon any equality of competition with the white. Most of such laws are, of course, unconstitutional, but they were at one time enacted with more rapidity than the Supreme Court of the United States could declare them so. Congress tries to be more reasonable and, indeed, has to be so, in view of the fact that it is a national Congress living, with the executive, in direct touch with the foreign nations themselves. Broadly speaking, our national legislation is to exclude immigration, but guarantee equality of property right, at least, to such Mongolian aliens as are actually in the country; and to extend or guarantee such right of treatment by treaties, which treaties are, of course, acts of Congress, like any other act of Congress, entirely valid in favor of the foreign power and enforceable by it even to the issue of war, but possibly, as a constitutional question, not enforceable by the Federal government against the States. An endless mass of legislation in California and other Western States has been devised, either openly against the Chinese or so couched as to really exclude them from the ordinary civic liberties, and most of our State laws or courts declare that the Japanese are Mongolian although that people deny it. Many statutes, moreover, are aimed at Asiatics in general; which would possibly include the Hindoos, who are of exactly the same race as ourselves. Indeed, some judges have excluded Hindoos from naturalization, or persons of Spanish descent, while admitting negroes, which is like excluding your immediate ancestors in favor of your more remote Darwinian ones. Even in New York and other Eastern States, the employment of aliens, particularly Asiatics, is forbidden in all public work—which laws may be invalid as against a Federal treaty. Yet statutes against the employment of any but citizens of the United States in public works are growing more frequent than ever, and seem to me quite within the rights of the State itself to determine. But Pennsylvania could not impose a tax of three cents per day upon all alien laborers, to be paid by the employer. Many States are beginning to provide against the ownership of land by aliens. This, of course, is perfectly constitutional and has full justification in the history and precedent of most other countries, and as applied to foreign corporations it is still more justifiable; and the Western States very generally provide against the ownership of land, other than such as may be taken on mortgage, by foreign corporations, or corporations even of which a large proportion of the stock is held by foreigners.
Racial legislation as to negroes may be divided into laws bearing on their legal, political, and social rights, including, in the latter, contracts of labor and of marriage. By the Thirteenth, Fourteenth, and Fifteenth Amendments, all adopted within ten years after the war, we endeavored to put the negro in a legal, a political, and a social equality with whites in every particular. A broad statement, sufficiently correct for the general reader, may be made that only the legal part has succeeded or has lasted. That legislation which is aimed at social equality, all of it Federal legislation, has generally proved unconstitutional, and that part which has been aimed at political equality has, for one reason or another, been inefficient. Moreover, the great attempt in the Fourteenth Amendment to place the ordinary social, civil, and political rights of the negro, and necessarily, therefore, of every one else, under the aegis of the Federal government, Federal courts, and Federal legislation, has been nullified; first, by court decision, and later, if we may trust the signs of the times, by contemporary public opinion. The only thing that remains is that the States cannot make laws which, on their face, are discriminations against the negro, or in social matters against any other race; and in political matters, the Fifteenth Amendment has proved effective to render null State laws which on their face are designed to restrict or deny their equal right of suffrage.
Legislation concerning labor, the industrial condition, and contract rights of the negro, such as the peonage laws, we have considered in an earlier chapter; both State and national laws exist, and the Thirteenth Amendment, being self-executing, has proved effective. Under the Fifteenth Amendment there is little political legislation, except the effort in Southern States by educational or property qualifications, and most questionably by the so-called "grandfather clause," to exclude most negroes from the right of suffrage. Laws imposing property and educational qualifications are, of course, valid, although designed to have the effect of excluding a large proportion of the negroes from voting; laws, on the other hand, which give a permanent right of suffrage to the descendants of a certain class, as of those voters, all white, who were entitled to vote in Southern States in the year 1861, are probably unconstitutional as establishing an hereditary privileged class, though there has as yet been no square decision on this point by the Supreme Court of the United States. But as there is no further legislation on these subjects, to pursue the matter further would carry us into constitutional law.
In the third field, that of social legislation, there has been a vast number of laws, first by Congress with the intention, under the Fourteenth Amendment, of enforcing social and industrial equality and providing Federal machinery for securing it (the great substance of this has been held unconstitutional and has passed away); later by the States, usually the Southern States, with the exactly opposite purpose of separating the races, at least in social matters, and of subjecting them to a stricter law of labor contract than has, in our country at least, been imposed upon other citizens.
Even this matter of social legislation, which alone remains to be discussed in this book, is quite too vast for more than a brief sketch. Among the many monographs on the subject may be mentioned the article of G.T. Stevenson on the "Separation of the Races in Public Conveyances."[1] Even this comparatively narrow matter is by no means exhausted in an article covering twenty pages. Much of the social separation of the races is, of course, brought about without statute law, but by custom, or even we may say customary law, which is always apt to be the better enforced; and under the civil rights decisions of the United States Supreme Court in 1883, such customary law has been rendered immune from Federal control. Legislation now exists in all Southern States as to separate, though equal, accommodations in public conveyances; at one time such statutes were restricted to interstate commerce, but the present tendency of court decision appears to be to recognize even their interference with interstate commerce as part of the reasonable State police jurisdiction. Such statutes apply generally to railroads, steamboats, and street cars, or other conveyances of transportation. They are not so usual as to hotels, eating-houses, theatres, or other public places, probably because in such it is more easy to secure the desired segregation without legislation. We may, therefore, conclude that legislation on this point will be universal in the South and in Oklahoma or other border States with Southern sympathies, and will not be declared unconstitutional by the courts.
[Footnote 1: American Political Science Review, vol. III, No. 2, 1909.]
The labor unions very generally exclude negroes, both in the South and North, and in many Southern States the whites refuse to work with negroes in mills. Until and unless labor unions are chartered or incorporated under legislation forbidding such action, it is probable that their by-laws excluding negroes, though possibly unreasonable at the common law, could not be reached by the Fourteenth Amendment; and public sentiment in the States where such by-laws are common would probably prevent any permanent vindication of the right of the negro to join labor unions by State courts. That is to say, countervailing legislation would promptly be adopted.
Coming to education, the same principle seems to be established, that if the facilities are equal the education may be separate for the different races, just as it may be for the different sexes; and it would even appear that when the appropriation is not adequate for giving higher or special education to both races, particularly when there are few negroes applying for it, high-schools or special schools may be established for whites alone.
Coming to the matter of sexual relation, a different principle applies. Under their unquestioned power of defining crimes, their police power in criminal and sanitary matters, the States may forbid or make criminal miscegenation. Cohabitation without marriage may, of course, be forbidden to all classes, and in the case of cohabitation between white and black the penalty may be made more severe, for it has been held that as both parties to the offence are punished equally, there is, under such statutes, no denial of the equal protection of the law. A fortiori, marriage may be forbidden or declared null between persons of different race, and the tendency so to do is increasing very decidedly in the South, and is certainly not decreasing in the North. Indeed, constitutional amendments are being adopted and proposed having this in view, "the purity of the race." Recent plays and magazine articles, with which most of our readers will be familiar, sufficiently bear out this point.
In property rights, however, I can find no legislation which discriminates against the negro, and there is some in his favor. With the exception of the labor or peonage laws, discussed separately, I have found no legislation which limits his property or contract rights. On the other hand, there is, in the several States, legislation requiring that he shall be given life or health insurance policies on the same terms and conditions as are applied to whites, despite the alleged fact that his expectation of life is less and not so easy to determine, owing to the lack of information as to the health and longevity of his forebears. Sketching first thus our general conclusions it remains for us only to give a few concrete examples drawn from the legislation of the last twenty years:
In 1890, soon after the civil-rights cases were decided, we find some State legislation to protect the negro in his civil rights; but the first "Jim Crow" laws, providing for separation in public conveyances, etc., began in 1865 and 1866 in Florida, Mississippi, and Texas, and are continued in other States in this year. In 1892 there are laws for separate refreshment rooms and bath-houses, and providing that negroes and whites shall not be chained together in jails. In 1893 there is legislation for separate barber shops, and the first law requiring equal treatment by life-insurance companies is passed in Massachusetts. In 1895 there is legislation against the mixture of races in schools. In 1898 the laws and constitutional provisions for practical negro disfranchisement begin in South Carolina, Mississippi, and Louisiana. On the other hand, in 1900, New York passes a statute that there shall be no separate negro schools, and in 1901 Illinois adopts civil-rights laws, followed in 1905 by five other States. In 1907 South Carolina makes it a misdemeanor to serve meals at station eating-houses to whites and blacks in the same room. In 1908 Maryland and Oklahoma provide for separate cars and separate rooms. In 1894 we find nine States prohibiting miscegenation. In 1902 Florida makes miscegenation a felony, and in 1908 Louisiana declares concubinage between a Caucasian and a negro to be also a felony, while Oklahoma adopts the miscegenation law.
These examples of legislation are not intended to be exhaustive, but will serve to give the reader a general Idea of the trend of popular law-making in this important matter.
Personal privilege, depending not upon race, but upon legislation, or inheritance, is, of course, strictly forbidden in each State by both constitutions, State and Federal. The growth of a contrary principle is only noteworthy on the two lines touching respectively the whites in the South and veterans of wars in the North. It must be said that legislation in the interest of the Grand Army of the Republic, and even of the veterans of the Spanish War, and even in some States of the sons or descendants of such veterans respectively, has come very near the point of hereditary or social privilege. The struggles of so-called "Organized Labor" to establish a privileged caste have so far been generally unsuccessful, always so in the courts, and usually so in the legislatures; but in many States those who have enlisted in either wars, Civil or Spanish, wholly irrespective of actual service or injury, are entitled not only to pensions, Federal and State, but to a diversity of forms of State aid, to general preference in public employment, and even to special privilege or exemption from license taxes, etc., in private trades, and their children or descendants are, in many States, entitled to special educational privilege, to support in State schools or industrial colleges, to free text-books, and other advantages. Presumably some of these matters might be successfully contested in the courts, but they never have been. As to pensions, nothing here need be said. The reader will remember the familiar fact that our pensions in time of peace now cost more than the maintenance of the entire German army on a war footing or than the maintenance of our own army. The last pensioner of the Revolutionary War, which ended in 1781—that is to say, the last widow of a Revolutionary soldier—only died a few years ago, early in the twentieth century. The Order of the Cincinnati, founded by Washington and Lafayette, was nevertheless a subject of jealous anxiety to our forefathers; but apparently the successful attempt of volunteers disbanded after the Civil and the Spanish Wars, although far more menacing because embodying social and political privilege, not a mere badge of honor, seems to call forth but little criticism.