CHAPTER I

INTRODUCTORY

WHAT IS A RACE DISTINCTION IN LAW?

A race distinction in the law is a requirement imposed by statute, constitutional enactment, or judicial decision, prescribing for a person of one race a rule of conduct different from that prescribed for a person of another race. If, for instance, a Negro is required to attend one public school, a Mongolian another, and a Caucasian a still different one, a race distinction is created, because the person must regulate his action accordingly as he belongs to one or another race. Or, if a person, upon entering a street car, is required by ordinance or statute to take a seat in the front part of the car if he is a Caucasian, but in the rear if he is a Negro, this rule is a race distinction recognized by law. Again, a race distinction is made by the law when intermarriage between Negroes and Caucasians is prohibited.

Distinctions in law have been made on grounds other than race. Thus, in those States in which men may vote by satisfying the prescribed requirements, but in which women may not vote under any circumstances, the law creates a distinction on the basis of sex. Laws forbidding persons under seven years of age from testifying in court and laws exempting from a poll tax persons under twenty-one years of age give rise to age distinctions. Other instances might be cited, but only race distinctions have a place here.

DISTINCTIONS AND DISCRIMINATIONS CONTRASTED

It is important, at the outset, to distinguish clearly between race _distinctions_ and race _discriminations_; more so, because these words are often used synonymously, especially when the Negro is discussed. A distinction between the Caucasian and the Negro, when recognized and enforced by the law, has been interpreted as a discrimination against the latter. Negroes have recognized that they are the weaker of the two races numerically, except in the Black Belt of the South, and intellectually the less developed. Knowing that the various race distinctions have emanated almost entirely from white constitution-makers, legislators, and judges, they regard these distinctions as expressions of the aversion on the part of the Caucasian to association with the Negro. Naturally, therefore, they have resented race distinctions upon the belief and, in many instances, upon the experience that they are equivalent to race discriminations.

In fact, there is an essential difference between race distinctions and race discriminations. North Carolina, for example, has a law that white and Negro children shall not attend the same schools, but that separate schools shall be maintained. If the terms for all the public schools in the State are equal in length, if the teaching force is equal in numbers and ability, if the school buildings are equal in convenience, accommodations, and appointments, a race distinction exists but not a discrimination. Identity of accommodation is not essential to avoid the charge of discrimination. If there are in a particular school district twice as many white children as there are Negro children, the school building for the former should be twice as large as that for the latter. The course of study need not be the same. If scientific investigation and experience show that in the education of the Negro child emphasis should be placed on one course of study, and in the education of the white child, on another; it is not a discrimination to emphasize industrial training in the Negro school, if that is better suited to the needs of the Negro pupil, and classics in the white school if the latter course is more profitable to the white child. There is no discrimination so long as there is equality of opportunity, and this equality may often be attained only by a difference in methods.

On the other hand, if the term of the Negro school is four months, and that of the white, eight; if the teachers in the Negro schools are underpaid and inadequately or wrongly trained, and the teachers of the white schools are well paid and well trained; if Negro children are housed in dilapidated, uncomfortable, and unsanitary buildings, and white children have new, comfortable, and sanitary buildings; if courses of study for Negro children are selected in a haphazard fashion without any regard to their peculiar needs, and a curriculum is carefully adapted to the needs of white children; if such conditions exist under the law, race distinctions exist which are at the same time discriminations against Negroes. Where the tables are turned and Negro children are accorded better educational advantages than white, the discriminations are against Caucasians.

A law of Virginia requires white and Negro passengers to occupy separate coaches on railroad trains. If the coaches for both races are equally clean, equally comfortable, and equally well appointed; if both races are accorded equally courteous service by the employees of the railroad; if, in short, all the facilities for travel are equal for both races, race distinctions exist but not race discriminations. The extent of accommodations need not be identical. The railroad company, for instance, need furnish only the space requisite for the accommodation of each race. If, however, the white passengers are admitted to clean, well-lighted, well-ventilated coaches and Negroes, to foul, unclean, uncomfortable coaches; if white coaches are well-policed, while Negro passengers are subjected to the insults of disorderly persons; if, in other words, the Negro passenger does not receive as good service for his fare as the white, a discrimination against the Negro is made under the guise of a legal distinction.

In like manner, one might consider each of the race distinctions recognized in the law and show how it may be applied so as not to work a discrimination against either race and, as easily, how it may be used to work an injustice to the weaker race. A race distinction connotes a difference and nothing more. A discrimination necessarily implies partiality and favoritism.

LEGAL AND ACTUAL DISTINCTIONS

There is a difference between actual race distinctions—those practiced every day without the sanction of law—and legal race distinctions—those either sanctioned or required by statutes or ordinances. Law is crystallized custom. Race distinctions now recognized by law were habitually practiced long before they crystallized into statutes. Thus, actual separation of races on railroad coaches—if not in separate coaches, certainly in separate seats or portions of the coach—obtained long before the “Jim Crow” laws came into existence. Moreover, miscegenation was punished before the legislature made it a crime. Some race distinctions practiced to-day will probably be sanctioned by statute in the future; others will persist as customs. In some Southern cities, for instance, there are steam laundries which will not accept Negro patronage. Everywhere in the South and in many places in other sections, there are separate churches for the races. It is practically a universal custom among the white people in the South never to address a Negro as “Mister” or “Mistress.” This custom obtains to some extent elsewhere. Thus, in a recent case before a justice of the peace in Delaware in which the parties were Negroes, one of them insisted upon speaking of another Negro as “Mister.” The justice forbade him so to do, and, upon his persisting, fined him for contempt. Yet, these distinctions and many others that might be cited are not required by law, and some of them, if expressed in statutes, would be unconstitutional.

Most race distinctions, however, are still uncrystallized. But these will be mentioned merely for illustration, since the purpose here is to discuss only those distinctions which have been expressed in constitutions, statutes, and judicial decisions. Mr. Ray Stannard Baker in his “Following the Colour Line,”[1] has admirably depicted actual race relations in the United States. He has gone in person out upon the cotton plantations of the Lower South; into the Negro districts of cities in the South, East, and North; into schools, churches, and court rooms; and has described how the Negro lives, what he does, what he thinks about himself and about the white man, and what the white man thinks about him. By studying the race distinctions he describes from the other standpoint suggested—that is, by tracing their gradual crystallization into statutes and judicial decisions, a better understanding may be had of race distinctions in general.

ALL RACE ELEMENTS INCLUDED

Attention will be directed not only to the Negro but to other races in the United States—the Mongolian in the Far West and the Indian in the Southwest. Of course, by far the largest race element after the Caucasian is the Negro with its 8,833,994 people of whom eighty-four and seven-tenths per cent. are in the thirteen States of the South. But it will be found that in those sections where the Indians have existed or still exist in appreciable numbers and come into association with the Caucasian—that is, where they do not still maintain their tribal relations—race distinctions have separated these two races. This is equally true of the Japanese and Chinese in the Pacific States. Most of the discussion will necessarily be of the distinctions between Caucasians and Negroes, but as distinctions applicable to Mongolians and Indians arise, they will be mentioned to show that race consciousness is not confined to any one section or race.

PERIOD COVERED FROM 1865 TO PRESENT

Race distinctions have existed and have been recognized in the law from the beginning of the settlement of the New World, long before the thirteen colonies became free and independent States, or before the Federal Constitution was adopted. The first cargo of Negroes was landed in Virginia in 1619, only twelve years after the founding of Jamestown. In 1630, eleven years later, the Virginia Assembly passed the following resolution:[2] “Hugh Davis to be soundly whipped before an assembly of Negroes and others, for abusing himself to the dishonor of God and the shame of Christians, by defiling his body in lying with a Negro.” Many of the Colonies—later States—prohibited intermarriage between Caucasians and Negroes whether the latter were slave or free. The Colonies and States prohibited or limited the movements of free Negroes from one colony or State to another, prescribed special punishment for adultery between white persons and Negroes, forbade persons of color to carry firearms, and in divers other ways restricted the actions of Negroes.

It is not so profitable, however, at this day to study these early distinctions, for the distinctions based on race were then inseparably interwoven with those based on the state of slavery. Thus, it is impossible to say whether a law was passed to regulate a person’s actions because he was a slave or because he was of the Negro race. Moreover, the laws relating to race and slave distinctions prior to 1858 were compiled by John Codman Hurd in his two-volume work entitled “The Law of Freedom and Bondage in the United States,” published in 1858. Any attempt at a further treatment of the period covered by that work would result only in a digest of a multitude of statutes, most of which have been obsolete for many years. But a greater reason for the futility of a discussion of race distinctions before 1865 is that prior to that date, as it has been so often expressed, the Negro was considered to have no rights which the white man was bound to respect. The Dred Scott decision[3] in 1857 virtually held that a slave was not a citizen or capable of becoming one, and this dictum, unnecessary to the decision of the case, did much, says James Bryce,[4] “to precipitate the Civil War.” If the Negro could enjoy only licenses, claiming nothing as of right, it is not very valuable to study the distinctions which the master imposed upon him.

The year 1865 marked the beginning of the present era in race relations. It was in that year that the Negro became a free man, and that the Federal Government undertook by successive legislative enactments to secure and guarantee to him all the rights and privileges which the Caucasian race had so long enjoyed as its inalienable heritage.

The Emancipation Proclamation of 1862, issued as a military expedient, declared that, unless the seceding States were back in the Union by January 1, 1863, all slaves in those States should be emancipated. This did not apply to the Union States, as Delaware, which still had slaves. But immediately upon the cessation of hostilities, Congress set to work to make emancipation general throughout the Union and to give the Negro all the rights of a citizen. The Thirteenth Amendment to the Constitution, ratified December 18, 1865, abolished slavery and involuntary servitude except as a punishment for crime. The following April, the first Civil Rights Bill[5] was passed, which declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, ... and to full and equal benefit of all laws and proceedings in the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishments and penalties, and to none other....”

These rights were enlarged by the Fourteenth Amendment, ratified in 1868, which provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Though the word “Negro” is not mentioned in this Amendment nor in any of the subsequent Federal enactments, it is not open to dispute that the legislators had in mind primarily the protection of the Negro.

Under the Fourteenth Amendment, the Civil Rights Bill of 1866 was reënacted[6] in 1870, with the addition that it extended to all persons within the jurisdiction of the United States, and that it provided that all persons should be subject to like taxes, licenses, and exactions of every kind.

The same year, 1870, the Fifteenth Amendment was ratified, which declared that the right of citizens of the United States to vote should not be denied or abridged by the United States or by any States on account of race, color, or previous condition of servitude.

The Civil Rights Bill[7] of 1875, the most sweeping of all such legislation by Congress, declared that all persons within the jurisdiction of the United States should be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. It also provided that jurors should not be excluded on account of race, color, or previous condition of servitude.

An enumeration of these Federal statutes and constitutional amendments has been made in order to show the efforts of Congress to secure to the Negro every civil and political right of a full-fledged citizen of the United States. Later they will be discussed in detail. By the Civil Rights Bill of 1875, Congress apparently intended to secure not only equal but identical accommodations in all public places for Negroes and Caucasians. If one looks only upon the surface of these several legislative enactments, it would seem impossible to have a race distinction recognized by law which did not violate some Federal statute or the Federal Constitution. But the succeeding pages will show that, under the shadow of the statutes and the Constitution, the legislatures and courts of the States have built up a mass of race distinctions which the Federal courts and Congress, even if so inclined, are impotent to attack.

NOTES

Footnote 1:

Doubleday, Page & Co., 1908.

Footnote 2:

1 Hen. 146, quoted in Hurd’s “Law of Freedom and Bondage,” I, p. 229.

Footnote 3:

19 How. 393 (1857).

Footnote 4:

“American Commonwealth,” I, p. 257.

Footnote 5:

14 Stat. L., 27, chap. 31.

Footnote 6:

16 Stat. L., 144, chap. 114.

Footnote 7:

18 Stat. L., 335, chap. 114.