[516]. Art. X, sec. 7.
CHAPTER IX
SEPARATION OF RACES IN PUBLIC CONVEYANCES
There is perhaps no phase of the American race problem which has been discussed so much within the last decade as the so-called “Jim Crow” laws, the statutes requiring separate accommodations for white and colored passengers in public conveyances. This arises largely from the fact that these legislative enactments are of general concern, while the other legal distinctions have directly affected only certain classes of each race. Laws prohibiting intermarriage, for instance, concern only those of marriageable age; suffrage restrictions apply only to males of voting age; and statutes requiring separate schools affect immediately only children and youths; but the laws requiring white and colored passengers to occupy separate seats, compartments, or coaches concern every man, woman, and child, who travels, the country over. They affect not only those living in the States where the laws are in force, but the entire traveling public. The white man or the Negro in Massachusetts may not care anything about the suffrage restrictions of South Carolina, but, if he travels through the South, he must experience the requirements of the “Jim Crow” laws.
ORIGIN OF “JIM CROW”
The phrase “Jim Crow” has become so inseparably affixed to the laws separating the races in public conveyances that two States, North Carolina and Maryland, have indexed the laws on that subject under “J” in some of their annual statutes. The earliest public use of the phrase appears to have been in 1835, when Thomas D. Rice, the first Negro minstrel, brought out in Washington a dramatic song and Negro dance called “Jim Crow.” The late actor, Joseph Jefferson, when only four years old, appeared in this dance.[[517]] In 1841 “Jim Crow” was first used in Massachusetts to apply to a railroad car set apart for the use of Negroes.[[518]] The phrase, then, has a somewhat more dignified origin than is ordinarily attributed to it by those who have considered it as only an opprobrious comparison of the color of the Negro with that of the crow.
DEVELOPMENT OF LEGISLATION PRIOR TO 1875
The first “Jim Crow” laws are those of Florida and Mississippi in 1865, and Texas in 1866. The laws[[519]] of Florida provided: “That if any Negro, mulatto, or other person of color shall intrude himself into ... any railroad car or other public vehicle set apart for the exclusive accommodation of white people, he shall be deemed guilty of a misdemeanor and, upon conviction, shall be sentenced to stand in pillory for one hour, or be whipped, not exceeding thirty-nine stripes, or both, at the discretion of the jury, nor shall it be lawful for any white person to intrude himself into any railroad car or other public vehicle set apart for the exclusive accommodation of persons of color, under the same penalties.” The law[[520]] of Mississippi was as follows: “That it shall be unlawful for any officer, station agent, conductor, or employee on any railroad in this State, to allow any freedman, Negro, or mulatto, to ride in any first-class passenger cars, set apart, or used by, and for white persons; and any person offending against the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof, before the circuit court of the county in which said offence was committed, shall be fined not less than fifty dollars, nor more than five hundred dollars; and shall be imprisoned in the county jail until such fine and costs of prosecution are paid: Provided, that this section of this act shall not apply in the case of Negroes or mulattoes, traveling with their mistresses, in the capacity of nurses.” Texas[[521]] simply provided that every railroad company should be required to attach to each passenger train run by it one car for the special accommodation of freedmen.
Other Southern States, perhaps, would have undertaken similar legislation, had the legislatures been left unfettered; but under the Reconstruction régime, a number of the States even passed laws prohibiting discrimination against Negroes in public conveyances. In 1870, the Georgia legislature[[522]] enacted a statute requiring the railroads in the State to furnish equal accommodations to all, without regard to race, color, or previous condition, when a greater amount of fare was exacted than had been exacted before January 1, 1861, which had been at that time half-fare for persons of color. Texas,[[523]] in 1871, repealed the law of 1866 and prohibited public carriers “from making any distinctions in the carrying of passengers” on account of race, color, or previous condition, making the violation of the law a misdemeanor punishable by a fine of not less than one hundred nor more than five hundred dollars, or imprisonment for not less than thirty or more than ninety days, or both. In 1873, Louisiana[[524]] prohibited common carriers from making any discrimination against any citizen of the State or of the United States on account of race or color, and went further still by prohibiting common carriers from other States from making such discriminations while in the State. Out of this latter provision arose the great case of Hall v. DeCuir, which will be discussed later. In 1874, Arkansas[[525]] prohibited any public carrier from making any rules for the government or control of his business which should not affect all persons alike, without regard to race or color.
In the meantime, some of the States outside the South were taking steps to adjust the privileges of persons of color. In 1866, Massachusetts[[526]] made it unlawful’“to exclude persons from or restrict them in ... any public conveyance ... except for good cause.” The following year, Pennsylvania[[527]] enacted a statute prohibiting railroads from excluding persons from their cars or requiring them to ride in different parts of the cars on account of color or race, also prohibiting the conductor or other agent of the railroad from throwing the car off the track to prevent such persons from riding. This law was passed just a few days before the famous case of West Chester and Philadelphia Railway Company v. Mills was decided, which case will also be discussed later.
A statute of Delaware[[528]] of 1875, as has been seen, declared that the carriers of passengers might make such arrangements in their business as would, if necessary, assign a particular place in their cars, carriages, or boats to such of their customers as they might choose to place there, and whose presence elsewhere would be offensive to the major part of the traveling public, where their business was conducted; but the accommodations must be equal for all if the same price for carriage was required from all.