STATE LEGISLATION BETWEEN 1865 AND 1883
The Civil Rights Bill of 1875 was the last effort of Congress to guarantee to Negroes their civil rights. It is well now to turn back in point of time, and trace the action of the State legislatures on the subject. It has been deemed advisable to let the year 1883 be the dividing point in the history of the latter legislation. Before that time the States were moving in conjunction with the Nation; after, the impotence of the Nation having been declared by its Supreme Court, the burden of defining and securing civil rights to Negroes devolved upon the States. Moreover, it is well to treat the Southern States and the States outside the South separately, because of the abnormal conditions in the former occasioned by Reconstruction.
In States Outside of South
Between 1865 and 1883 there was comparatively little legislation in the Northern, Eastern, and Western States as to civil rights. This was naturally so because these States were waiting to see what the Federal government meant to do. A brief examination of what little legislation there was will be made.
On May 16, 1865, Massachusetts[[228]] declared that there should be no distinction, discrimination, or restriction on account of color or race in any licensed inn, public place of amusement, public conveyance, or public meeting, and imposed a fine of fifty dollars for the violation of this law. The next year it included theatres[[229]] within the prohibition, but weakened the force of the statute by saying that there should be no exclusion or restriction “except for good cause.”
The attitude of Delaware[[230]] toward civil rights is probably the most interesting of any of the Northern States. On April 11, 1873, its legislature passed the following “joint resolution in opposition to making Negroes the equals of white men, politically or socially”:
“That the members of this General Assembly, for the people they represent, and for themselves, jointly and individually, do hereby declare uncompromising opposition to a proposed act of Congress, introduced by Hon. Charles Sumner at the last session, and now on file in the Senate of the United States, known as the ‘Supplemental Civil Rights Bill,’ and all other measures intended or calculated to equalize or amalgamate the Negro race with the white race, politically or socially, and especially do they proclaim unceasing opposition to making Negroes eligible to public offices, to sit on juries, and to their admission into public schools where white children attend, and to the admission on terms of equality with white people in the churches, public conveyances, places of amusement, or hotels, and to any measure designed or having the effect to promote the equality of the Negro with the white man in any of the relations of life, or which may possibly conduce to such result.
“That our Senators in Congress be instructed, and our Representatives requested to vote against and use all honorable means to defeat the passage by Congress of the bill referred to in the foregoing resolution, known as the ‘Supplemental Civil Rights Bill,’ and all other measures of a kindred nature, and any and every attempt to make the Negro the peer of the white man.”
Upon the heels of this resolution, in 1875, Delaware[[231]] enacted a statute on March 15, 1875, which provided that no keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travelers, guests, or customers, should be obliged by law to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers, or would injure his business. The term “customers” was taken to include all who sought entertainment or refreshment. The proprietor of a theatre or other public place of amusement was not obliged to receive into his show, or admit into the place where he was pursuing his occupation, any person whose presence there would be offensive to the major part of his spectators or patrons, and thereby injure his business. Any carrier of passengers might make such arrangements in his business as would, if necessary, assign a particular place in his cars, carriages, or boats, to such of his customers as he might choose to place there, and whose presence elsewhere would be offensive to the major part of the traveling public, where his business was conducted; but the accommodations must be equal if the same price for carriage was required of all. This is still the law in Delaware. Taken in connection with the joint resolution above, there is little doubt that the legislature intended to make possible the drawing of a color line, though it did not expressly say so. It is noteworthy that, during the stormy years of Reconstruction, some case testing its constitutionality did not arise. Only one other State has had a statute anything like the Delaware law, and that is Tennessee, which statute and, with it, apparently the only case involving the constitutionality of the law that has reached the courts will be discussed later.
A Kansas[[232]] statute of April 25, 1874, which is still law, provided that there should be no distinction on account of race, color, or previous condition of servitude in any State university, college, or other school of public instruction, or in any licensed inn, hotel, boarding house, or any place of public entertainment or amusement, or any steamboat, railroad, stage coach, omnibus, street car, or any other means of public carriage for persons or freight, under penalty of a fine of from ten to one thousand dollars.
New York,[[233]] on April 9, 1874, passed a Civil Rights Bill which prohibited race distinctions in inns, public conveyances on land and water, theatres, other public places of amusements, common schools, public institutions of learning, and cemeteries. It further declared that the discrimination against a citizen on account of color, by the use of the word “white,” or any other term, in any law, statute, ordinance, or regulation, should be repealed. In 1881, it specifically mentioned hotels, inns, taverns, restaurants, public conveyances, theatres, and other places of public resort or amusement.[[234]]
In South
One would naturally expect that most of the legislation in the South guaranteeing civil rights to Negroes would have come during the period that their governments were in the hands of the Reconstructionists, and such is the case.
In 1866 a Florida[[235]] statute made it a misdemeanor for a person of color to intrude himself into any religious or other public assembly of white persons, or into a railroad car or other public vehicle set apart for the exclusive accommodation of white people, or for a white person so to intrude upon the accommodations of colored persons. By 1873, however, the political revolution had come, and a statute[[236]] of that year forbade discrimination on account of race, color, or previous condition of servitude, in the full and equal enjoyment of the accommodations, etc., of inns, public conveyances on land and water, licensed theatres, other places of public amusement, common schools, public institutions of learning, cemeteries, and benevolent associations supported by general taxation. This prohibition did not apply to private schools or cemeteries established exclusively for white or colored persons. It added, as did the law of New York, that there should be no discrimination in any laws by using the word “white.”
A statute of Louisiana[[237]] in 1869 prohibited any discrimination on account of race or color by common carriers, innkeepers, hotel keepers, or keepers of public resorts. The license of such places had to contain the stipulation that they must be open to all without distinction or discrimination on account of color. The penalty was forfeiture of the license and a suit for damages by the party aggrieved. This statute[[238]] was strengthened in 1873 by the further provision that all persons, without regard to race or color, must have “equal and impartial accommodations” on public conveyances, in inns and other places of public resort. It was the duty of the attorney-general to bring suit in the name of the State to take away the license of anyone violating the law. The statute imposed a fine upon common carriers running from other States into Louisiana who made any discrimination against citizens of the latter on account of race or color.
Arkansas,[[239]] in 1873, required the same accommodations to be furnished to all by common carriers, keepers of public houses of entertainment, inns, hotels, restaurants, saloons, groceries, dramshops, or other places where liquor was sold, public schools, and benevolent institutions supported in whole or partly by general taxation.
The law of Tennessee[[240]] of 1875 is in a very different tone, it being very much like, as has been said before, that of Delaware. That statute reads: “The rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement, is hereby abrogated; and hereafter no keeper of any hotel, or public house, or carrier of passengers for hire, or conductors, drivers, or employees of such carrier or keeper, shall be bound, or under any obligation to entertain, carry, or admit any person, whom he shall for any reason whatever, choose not to entertain, carry, or admit, to his house, hotel, carriage, or means of transportation or place of amusement; nor shall any right exist in favor of any such person so refused admission, but the right of such keepers of hotels and public houses, carriers of passengers, and keepers of places of amusement and their employees to control the access and admission or exclusion of persons to or from their public houses, means of transportation, and places of amusement, shall be as perfect and complete as that of any person over his private house, carriage, or private theatre, or place of amusement for his family.” This Tennessee law is even more sweeping than that of Delaware. In the latter, common carriers may provide separate accommodations for persons that would be disagreeable to the major portion of the traveling public; in the former, the common carrier might exclude such persons altogether. According to the Tennessee statute, every railroad company in the State had a right to refuse absolutely to carry Negroes on its cars. Of course, this has been changed by its “Jim Crow” laws. The case of State v. Lasater,[[241]] dealing with the second section of the Tennessee statute, has the following to say about the whole enactment: “This is an extraordinary statute. It is generally understood to have been passed to avoid the supposed effects of an act of Congress on the same subject, known as the Civil Rights Bill.”
The constitutionality of the Tennessee and Delaware statutes has not been tested, as far as is known. Therefore, in the absence of authority, an opinion on the matter is of little value, but the following suggestion is ventured: Originally, hotels and inns were no more public places than a man’s dwelling, and one could choose his patrons just as he could choose the guests he would entertain, and might exclude anyone without giving his reasons for it, as a merchant might refuse to sell goods to anyone he chose. For historical reasons, which need not be discussed here, the courts held that an inn-keeper should not be allowed to refuse an applicant for entertainment unless he had some valid reason for it. The common law thereafter considered hotels, etc., public places. It has been seen that the Civil Rights Cases held that the Federal government cannot prohibit a hotel-keeper from refusing to receive an applicant, but that the regulation of such domestic relations is within the exclusive control of the State. If the State sees fit to pass a statute abrogating the common law, as Tennessee and Delaware did, and making hotels, etc., private places, as they were originally, there seems to be no valid constitutional objection. The reasoning that applies to hotels will apply to other places now considered public, possibly even to public conveyances.
The following resolution of the legislature of North Carolina[[242]] of 1877 is worth quoting in full. It is especially significant because it was passed after the Reconstruction régime was over, and the State government had passed back into hands of the Democratic party, with Zebulon B. Vance as Governor.
“Whereas, In the providence of God, the colored people have been set free, and this is their country and their home, as well as that of the white people, and there should be nothing to prevent the two races from dwelling together in the land in harmony and peace;
“Whereas, We recognize the duty of the stronger race to uphold the weaker, and that upon it rests the responsibility of an honest and faithful endeavor to raise the weaker race to the level of intelligent citizenship; and
“Whereas, The colored people have been erroneously taught that legislation under Democratic auspices would be inimical to their rights and interests, thereby causing a number of them to entertain honest fears in the premises,
“The General Assembly of North Carolina do resolve, That, while we regard with repugnance the absurd attempts, by means of ‘Civil Rights’ Bills, to eradicate certain race distinctions, implanted by nature and sustained by the habits of forty centuries; and while we are sure that good government demands for both races alike that the great representation and executive offices of the country should be administered by men of the highest intelligence and best experience in public affairs, we do, nevertheless, heartily accord alike to every citizen, without distinction of race or color, equality before the law.
“Resolved, That we recognize the full purport and intent of that amendment to the Constitution of the United States which confers the right of suffrage and citizenship upon the people of color, and that part of the Constitution of North Carolina conferring educational privileges upon both races: that we are disposed and determined to carry out in good faith these as all other constitutional provisions.”