The above are only a few of the many cases which arose between 1865 and 1881, involving the separation of white and colored passengers; they are cited to show that, in the absence of legislative authority, many of the public conveyance companies had regulations of their own separating the races. The “Jim Crow” laws, in other words, coming later, did scarcely more than to legalize an existing and widespread custom.
SEPARATION OF PASSENGERS ON STEAMBOATS
As already suggested, the “Jim Crow” laws apply to three classes of vehicles, namely: steamboats, railroad cars, and street cars. There is comparatively little legislation about white and colored passengers on steamboats. North Carolina[[538]] is the only State to include steamboats in the regular “Jim Crow” law. It requires all steamboat companies engaged as common carriers in the transportation of passengers for hire to provide separate but equal accommodations for the white and colored races of all steamboats carrying passengers. The violation of this law is punishable by a fine of one hundred dollars; each day is considered a separate offence.
On February 9, 1900, the Virginia[[539]] legislature enacted a statute requiring the separation of white and colored passengers on all steamboats carrying passengers and plying in the waters within the jurisdiction of the State in the sitting, sleeping, and eating apartments, so far as the “construction of the boat and due consideration for comfort of passengers” would permit. There must be no difference in the quality of accommodations. The law makes an exception of nurses and other attendants traveling with their employers, and officers in charge of prisoners. For disobeying the law, the boat officer is guilty of a misdemeanor punishable by a fine of not less than twenty-five dollars nor more than one hundred dollars. Any passenger wilfully disobeying the law is guilty of a misdemeanor punishable by a fine of not less than five dollars nor more than fifty dollars or by imprisonment for not less than thirty days, or both. The boat officer may eject an offending passenger at any landing place, and neither he nor the steamboat company will be liable. In 1901, the above law[[540]] was made more stringent by omitting the provision about the construction of the boat and consideration for the comfort of the passengers, quoted above. In 1904, South Carolina[[541]] required all ferries to have separate cabins for white and colored passengers.
The above legislation seems to be the only legislation as to steamboats up to the present; but it does not measure the separation of the races on steamboats, inasmuch as the companies in the various States have adopted regulations requiring separate accommodations for the races. This custom applies to interstate as well as to intrastate travel. The steamers plying between Boston and the ports of the South, for instance, provide separate dining tables, separate toilet rooms, and separate smoking rooms for the white and colored passengers. This regulation of interstate travel is upheld by two Federal cases, one in Georgia[[542]] in 1879 and the other in Maryland[[543]] in 1885, which held in substance, that, inasmuch as Congress has enacted no law which forbids interstate common carriers from separating white and colored passengers so long as the accommodations are equal, during congressional inaction, the companies may make their own regulations.
SEPARATION OF PASSENGERS IN RAILROAD CARS
With the exception of the transient “Jim Crow” laws of Mississippi, Florida, and Texas of 1865–67, the first State to adopt a comprehensive law separating the white and colored passengers on railroad cars was Tennessee[[544]] which did so in 1881. The statute of that State stood alone until 1887, when a series of “Jim Crow” laws were enacted by the States in the following order: Florida,[[545]] 1887; Mississippi,[[546]] 1888; Texas,[[547]] 1889; Louisiana,[[548]] 1890; Alabama,[[549]] Kentucky,[[550]] Arkansas,[[551]] and Georgia,[[552]] 1891. For some years thereafter the subject remained untouched by the legislatures, save an amending statute now and then; but in 1898–99, the other Southern States began to fall into line: South Carolina,[[553]] 1898; North Carolina,[[554]] 1899; Virginia,[[555]] 1900; Maryland,[[556]] 1904; Oklahoma,[[557]] 1907. It appears that Missouri is the only Southern State which has not separated the races in railroad cars.
The details of the “Jim Crow” laws as to railroads are very nearly the same in all the Southern States. They require white persons, on the one hand, and “Negroes,” “persons of color,” “persons of African descent,” etc., on the other, to occupy separate seats, compartments, or coaches. The legal meaning of the above-mentioned phrases has already been considered. It is safe to say, as the Arkansas statute does declare, that, if one has a visible and distinct admixture of African blood, he must accept the accommodations furnished colored passengers.
Interstate and Intrastate Travel
The first great question that arises is the extent of application of the laws. The statutes declare that they apply to all railroads doing business in the State. But just what does this mean? It has been generally understood and the principle has been confirmed by judicial decisions[[558]] that States may pass laws separating passengers going one from one point to another in the same State. But how about passengers coming from or going to points outside the State? Suppose, for instance, a colored passenger were to board a train at Philadelphia for Evansville, Indiana, and go through Maryland, West Virginia, and Kentucky. Pennsylvania and West Virginia have no “Jim Crow” laws; Maryland and Kentucky have. When the colored passenger reaches the Maryland line, must he enter a car set apart for colored people? When he reaches the West Virginia line, may he go back into the coach with white passengers? When, again, he reaches the Kentucky line, will he be forced to return to the car set apart for his race? And, finally, when he comes to Indiana, may he once more return to the car for white passengers? Or, suppose a railroad from Ohio to Indiana has only a few miles of its track in Kentucky and only two depôts in that State. Must the railroad furnish separate accommodations for the white and colored passengers going between those two points in Kentucky? If these questions had been asked thirty years ago or at the time of the Hall v. DeCuir case, there is no doubt that the Federal courts would have held that it was an unwarranted interference with interstate commerce or would lead to too much confusion.