Race Distinctions in American Law

by Gilbert Thomas Stephenson

RACE DISTINCTIONS NOT CONFINED TO ONE SECTION

Race distinctions are not confined to any one section of the country. This conclusion is the most patent of all. There is scarcely a State or Territory in the Union where legislative or judicial records do not reveal the actual existence of at least some race distinctions. Of the twenty-six States and Territories that prohibit intermarriage, more than half, extending from Delaware to Oregon, are outside the South. Negroes have, on account of their race, been excluded, usually contrary to the local laws, from hotels in Massachusetts, Pennsylvania, Indiana, New York, Wisconsin, Michigan, Ohio, and Iowa; from barber-shops, in Nebraska and Connecticut; from bootblack stands, in New York; from billiard-rooms, in Massachusetts; from saloons, in Minnesota and Ohio; from soda fountains, in Illinois; from theatres, in Illinois and New York; from skating rinks in New York and Iowa; and the bodies of Negroes have been refused burial with those of white persons in Pennsylvania. It is not meant here that Negroes are always excluded from such places in these States, but that instances of such exclusions are found in the laws. Most of the States have at one time or another made distinctions between the races in schools. California and other States of the Far West are demanding separate schools for Japanese. Ohio, Indiana, Illinois, and Iowa, besides other States of the Middle West, clash from time to time with their school boards for attempting to separate the races in schools. Delaware is diligent in providing separate schools for white persons and Negroes. In Massachusetts, until 1857, the school board of Boston provided a separate school for Negroes in that city. As to public conveyances, the term “Jim Crow,” applied to a car set apart for Negroes, was first used in Massachusetts, and it was in Pennsylvania that the first leading case involving the right of street car companies to separate their passengers by race arose. Instances of actual discrimination against Negroes by common carriers were found in Illinois, Iowa, and California. How common race distinctions are in the States mentioned the above resumé does not clearly show, because the great majority of grievances caused by race distinctions do not reach the court. But when one finds that the legislature has deemed it advisable to enact a law against race distinctions, it is reasonable to assume that they did in fact exist. For instance, five States, all outside the South, prohibit discriminations by insurance companies on account of race. Had these companies not evinced signs of discrimination against Negroes, such statutes would not have been enacted. It is well known that race distinctions are common in the South.

Were this general prevalence of race distinctions fully realized, the result would be a kindlier feeling one to another among the white people of the various sections. They would then see that the presence or absence of race distinctions is due, not to any inherent difference in the character of the people, but to diverse conditions and environment. When, therefore, the Negro children of Upper Alton, Illinois, are seen to constitute an appreciable percentage of the school population, the people of that town, as the people of a Southern town would do under similar circumstances, demand for them a separate school.

RACE DISTINCTIONS NOT CONFINED TO ONE RACE

Race distinctions are not confined to any one race. It is true that most of the statutes and judicial decisions above referred to relate to the Negro because he belongs to a race which is the largest non-Caucasian element in the United States. Where, however, other race elements exist in considerable numbers, similar distinctions are sanctioned. One finds, for instance, in California and other States of the Far West, where Japanese are numerous, laws prohibiting intermarriage between Mongolians and Caucasians, and requiring separate schools for the two races. Similar laws have been enacted wherever there is an appreciable number of Indians. Wherever, in other words, any two races have lived together in this country in anything like equal numbers, race distinctions have been recognized in the law sooner or later; and, before becoming legally recognized, have existed in practice.

RACE DISTINCTIONS NOT DECREASING

Race distinctions do not appear to be decreasing. On the contrary, distinctions heretofore existing only in custom tend to crystallize into law. As a matter of fact, most of the distinctions which are described above as the “Black Laws of 1865–68” are no longer in force. No State now carries statutes prescribing the hour when a Negro laborer must arise, requiring his contracts to be in writing, prohibiting him from leaving the plantation or receiving visitors without his employer’s consent, or exacting a license fee of him before he can engage in certain trades. These laws were vestiges of the slave system and survived but a short time after that system had been abolished. Likewise, those statutes which prohibited Negroes from testifying in court against white persons were repealed during the first few years after Emancipation. But distinctions which are not the direct results of slavery have found an increasing recognition in the law. Thus, though Florida, Mississippi, and Texas had separate railroad coaches for freedmen in 1866, the regular “Jim Crow” laws did not begin to creep into the statutes of the Southern States till 1881. Now every Southern State, except Missouri, has a law separating the races in railroad cars. Mississippi, in 1888, was the first State to require separate waiting-rooms. Louisiana, in 1902, took the lead in compelling separate street car accommodations, being followed by most of the Southern States within the last seven years.

A similar tendency toward crystallization of race distinctions into law is found in schools. Though Massachusetts permitted separate schools as early as 1800, and though the Southern States required them from the beginning of their public school system, it is only recently that any States have seen fit to create distinctions in private schools by legislation. At present, Florida, Kentucky, Oklahoma, and Tennessee prohibit the teaching of white and Negro students in the same private schools, and their action in so doing the Supreme Court of the United States in the Berea College case has decided to be constitutional. Moreover, the Japanese school question of the West has become of national concern only within the last two years.

In the matter of suffrage also one observes the same general trend of practices slowly passing into statutes. Between 1877 and 1890 Negroes in the South were disfranchised to a great extent in defiance of law. Beginning with Mississippi in 1890 and ending with Georgia in 1908, seven Southern States have made constitutional provisions which, though not in letter creating race distinctions, lend themselves to race discriminations.

That actual race distinctions still persist outside the South is shown by recent decisions. For instance, within a year, the Appellate Division of the Supreme Court of New York, in reducing damages awarded in the court below to a Negro porter for false imprisonment, held that by reason of his race, he did not suffer as much damage as would a white man under like circumstances. The New York Times of November 19, 1909, refers to a recent decision of the Supreme Court of Iowa as holding that a coffee company licensed under the State laws, being a private concern, has the right to refuse to serve a Negro.