Race Distinctions in American Law

by Gilbert Thomas Stephenson

Immediately after the Negro became a free man in 1865, the Federal Government undertook, by a series of constitutional amendments and statutory enactments, to secure to him all the rights and privileges of an American citizen. My effort has been to ascertain how far this attempt has been successful. The inquiry has been: After forty-five years of freedom from physical bondage, how much does the Negro lack of being, in truth, a full-fledged American citizen? What limitations upon him are allowed or imposed by law because he is a Negro?

This is not meant, however, to be a legal treatise. Although the sources are, in the main, constitutions, statutes, and court reports, an effort has been made to state the principles in an untechnical manner. Knowing that copious citations are usually irksome to those who read for general information, I have relegated all notes to the ends of the chapters for the benefit of the more curious reader who often finds them the most profitable part of a book. There he will find citations of authorities for practically every important statement made.

All the chapters, except the last two, were published serially in The American Law Review/cite> during the year 1909. The substance of the chapter on “Separation of Races in Public Conveyances” was published also in The American Political Science Review for May, 1909.

I wish that I could make public acknowledgment of my indebtedness to all who have helped me in the preparation of this volume. Hundreds of public officials in the South—mayors of cities, clerks of courts, attorneys-general, superintendents of public instruction, etc.—have responded generously to my requests for information. I am thankful to Mr. John H. Arnold, Librarian of the Harvard Law School, for access to the stacks of that library, without which privilege my work would have been greatly delayed, and to his assistants for their uniform courtesy while I was making such constant demands upon them. I am under especial obligation to Professor Albert Bushnell Hart, of Harvard University, for his direction and assistance in my examination of the sources and his valuable advice while I have been preparing the material for publication in this form; also to Mr. Charles E. Grinnell, former Editor of The American Law Review, for his encouragement and suggestions during the preparation of the articles for his magazine. Lastly, I would express my gratitude to Mr. Charles Vernon Imlay, of the New York Bar, the value of whose painstaking help in the revision of the manuscript of this book is truly inestimable.

Gilbert Thomas Stephenson.

Warren Place, Pendleton, N. C.

June 1, 1910.

CONTENTS

CHAPTER I
			PAGE
Introductory			[1]–[11]
	What is a Race Distinction in Law		[1]
	Distinctions and Discriminations Contrasted		[2]
	Legal and Actual Distinctions		[5]
	All Race Elements Included		[6]
	Period Covered from 1865 to Present		[7]
CHAPTER II
What is a Negro?			[12]–[25]
	Legal Definition of Negro		[12]
	Proper Name for Black Men in America		[20]
CHAPTER III
Defamation to Call a White Person a Negro			[26]–[34]
CHAPTER IV
The “Black Laws” of 1865–68			[35]–[66]
	“Black Laws” of Free States		[36]
	Restrictions upon Movement of Negroes		[40]
	Limitations upon Negroes in Respect to Occupations		[41]
	Sale of Firearms and Liquor to Negroes		[43]
	Labor Contracts of Negroes		[46]
	Apprentice Laws		[53]
	Vagrancy Laws		[58]
	Pauper Laws		[60]
CHAPTER V
Reconstruction of Marital Relations			[67]–[77]
	Remarriages		[68]
	Certificates of Marriage		[70]
	Slave Marriages Declared Legal by Statute		[73]
	Marriages Between Slaves and Free Negroes		[74]
	Federal Legislation		[75]
CHAPTER VI
Intermarriage and Miscegenation			[78]–[101]
	Intermarriage During Reconstruction		[78]
	Present State of the Law Against Intermarriage		[81]
	To Whom the Laws Apply		[81]
	Effect of Attempted Intermarriage		[83]
	Punishment for Intermarriage		[84]
	Punishment for Issuing Licenses		[86]
	Punishment for Performing the Ceremony		[87]
	Cohabitation Without Intermarriage		[88]
	States Repealing Laws Against Intermarriage		[89]
	Marriages Between the Negro and Non-Caucasian Races		[90]
	Effect Given to Marriages in Other States		[92]
	Intermarriage and the Federal Constitution		[95]
	Intermarriages in Boston		[98]
CHAPTER VII
Civil Rights of Negroes			[102]–[153]
	Federal Civil Rights Legislation		[103]
	State Legislation Between 1865 and 1883		[111]
		In States Outside of South	[112]
		In South	[115]
	State Legislation After 1883		[120]
		In South	[120]
		In States Outside of South	[120]
	Hotels		[124]
	Restaurants		[127]
	Barber-shops		[129]
	Bootblack Stands		[130]
	Billiard-rooms		[131]
	Saloons		[132]
	Soda Fountains		[133]
	Theatres		[134]
	Skating-Rinks		[136]
	Cemeteries		[136]
	Race Discrimination by Insurance Companies		[138]
	Race Discriminations by Labor Unions		[140]
	Churches		[141]
	Negroes in the Militia		[144]
	Separation of State Dependents		[146]
CHAPTER VIII
Separation of Races in Schools			[154]–[206]
	Berea College Affair		[154]
	Exclusion of Japanese from Public Schools of San Francisco		[159]
	Dr. Charles W. Eliot on Separation of Races in Schools		[163]
	Separation Before 1865		[165]
	Present Extent of Separation in Public Schools		[170]
		In South	[170]
		In States Outside of South	[177]
	Separation in Private Schools		[190]
	Equality of Accommodations		[192]
	Division of Public School Fund		[194]
CHAPTER IX
Separation of Races in Public Conveyances			[207]–[236]
	Origin of “Jim Crow”		[208]
	Development of Legislation Prior to 1875		[208]
	Legislation Between 1865 and 1881		[211]
	Separation of Passengers on Steamboats		[214]
	Separation of Passengers in Railroad Cars		[216]
		Interstate and Intrastate Travel	[217]
		Sleeping Cars	[219]
		Waiting-Rooms	[220]
		Trains to which Laws do not Apply	[221]
		Passengers to whom Law does not Apply	[222]
		Nature of Accommodations	[223]
		Means of Separation	[224]
		Designation of Separation	[225]
		Punishment for Violating Law	[225]
		Separation of Postal Clerks	[227]
	Separation of Passengers in Street Cars		[227]
		Present Extent of Separation	[228]
		Method of Separation	[229]
		Enforcement of Laws	[231]
		Exemptions	[232]
CHAPTER X
Negro in Court Room			[237]–[280]
	As Spectator		[237]
	As Judge		[238]
	As Lawyer		[239]
	As Witness		[241]
	As Juror		[247]
		Actual Jury Service by Negroes in South	[253]
	Separate Courts		[272]
	Different Punishments		[273]
CHAPTER XI
Suffrage			[281]–[347]
	Negro Suffrage Before 1865		[282]
	Suffrage Between 1865 and 1870		[285]
	Suffrage Between 1870 and 1890		[288]
	Southern Suffrage Amendments Since 1890		[294]
		Citizenship	[296]
		Age	[297]
		Sex	[298]
		Residence	[298]
		Payment of Taxes	[299]
		Ownership of Property	[300]
		Educational Test	[301]
		“Grandfather Clauses”	[305]
		“Understanding and Character Clauses”	[308]
		Persons Excluded from Suffrage	[310]
	Suffrage in Insular Possessions of United States		[312]
	Constitutionality of Suffrage Amendments		[313]
	Maryland and Fifteenth Amendment		[317]
	Extent of Actual Disfranchisement		[320]
	Qualifications for Voting in the United States		[322]
CHAPTER XII
Race Distinctions versus Race Discriminations			[348]–[362]
	Race Distinctions not Confined to One Section		[348]
	Race Distinctions not Confined to One Race		[350]
	Race Distinctions not Decreasing		[351]
	Distinctions not Based on Race Superiority		[353]
	Solution of Race Problem Hindered by Multiplicity of Proposed Remedies		[354]
	Search for a Common Platform		[355]
	Proper Place of Race Distinctions		[356]
	Obliteration of Race Discriminations		[358]
Table of Cases Cited			[363]
Index			[369]

RACE DISTINCTIONS IN