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THE JOURNAL

OF

NEGRO HISTORY

Volume VI

1921

Table of Contents

Vol VI - January, 1921 - No. 1

Fifty Years of Negro Citizenship C. G. WOODSON
Remy Ollier, Mauritian Journalist and Patriot CHARLES H. WESLEY
A Negro Colonization Project in Mexico J. FRED RIPPY
Documents
James Madison's Attitude toward the Negro
Advice Given Negroes a Century Ago
Some Undistinguished Negroes
Book Reviews
Notes
Proceedings of Annual Meeting


Vol VI - April, 1921 - No. 2

Making West Virginia a Free State ALRUTHEUS A. TAYLOR
Canadian Negroes and the John Brown Raid FRED LANDON
Negro and Spanish Pioneer in New World J. FRED RIPPY
Economic Condition of Negroes of New York ARNETT G. LINDSAY
Documents
The Appeal of the American Convention of Abolition Societies
Correspondence
Book Reviews
Notes


Vol VI - July, 1921 - No. 3

The Material Culture of Ancient Nigeria WILLIAM LEO HANSBERRY
The Negro in British South Africa D. A. LANE, JR.
Baptism of Slaves in Prince Edward Island WILLIAM RENWICK RIDDELL
Documents
Book Reviews
Notes


Vol VI - October, 1921 - No. 4

The Negro Migration of 1916-1918 HENDERSON H. DONALD
Book Reviews
Notes




THE JOURNAL

OF

NEGRO HISTORY

VOL. VI - JANUARY, 1921 - NO. 1




FIFTY YEARS OF NEGRO CITIZENSHIP AS QUALIFIED BY THE UNITED STATES
SUPREME COURT


THE HISTORIC BACKGROUND

The citizenship of the Negro in this country is a fiction. The
Constitution of the United States guarantees to him every right
vouchsafed to any individual by the most liberal democracy on the face
of the earth, but despite the unusual powers of the Federal Government
this agent of the body politic has studiously evaded the duty of
safeguarding the rights of the Negro. The Constitution confers upon
Congress the power to declare war and make peace, to lay and collect
taxes, duties, imposts, and excises; to coin money, to regulate
commerce, and the like; and further empowers Congress "to make all
laws which shall be necessary and proper for carrying into execution
the foregoing powers and all other powers vested by this Constitution
in the Government of the United States, or in any department or
officer thereof." After the unsuccessful effort of Virginia and
Kentucky, through their famous resolutions of 1798 drawn up by
Jefferson and Madison to interpose State authority in preventing
Congress from exercising its powers, the United States Government with
Chief Justice John Marshall as the expounder of that document, soon
brought the country around to the position of thinking that, although
the Federal Government is one of enumerated powers, that government
and not that of States is the judge of the extent of its powers and,
"though limited in its powers, is supreme within its sphere of
action."[1] Marshall showed, too, that "there is no phrase in the
instrument which, like the Articles of Confederation, excludes
incidental or implied powers; and which requires that everything
granted shall be expressly and minutely described."[2] Marshall
insisted, moreover, "that the powers given to the government imply the
ordinary means of execution," and "to imply the means necessary to an
end is generally understood as implying any means, calculated to
produce the end and not as being confined to those single means
without which the end would be entirely unattainable."[3] He said:
"Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and the spirit of the Constitution, are constitutional."

Fortified thus, the Constitution became the rock upon which
nationalism was built and by 1833 there were few persons who
questioned the supremacy of the Federal Government, as did South
Carolina with its threats of nullification. Because of the beginning
of the intense slavery agitation not long thereafter, however, and the
division of the Democratic party into a national and a proslavery
group, the latter advocating State's rights to secure the perpetuation
of slavery, there followed a reaction after the death of John Marshall
in 1835, when the court abandoned to some extent the advanced position
of nationalism of this great jurist and drifted toward the localism
long since advocated by Judge Roane of Virginia.

In making the national government the patron of slavery, a new sort of
nationalism as a defence of that institution developed thereafter,
however, and culminated in the Dred Scott decision.[4] To justify the
high-handed methods to protect the master's property right in the
bondman, these jurists not only referred to the doctrines of Marshall
already set forth above but relied also upon the decisions of Justice
Storey, the nationalist surviving Chief Justice Marshall. They
believed with Storey that a constitution of government founded by the
people for themselves and their posterity and for objects of the most
momentous nature - for perpetual union, for the establishment of
justice, for the general welfare and for a perpetuation of the
blessings of liberty - necessarily requires that every interpretation
of its powers have a constant reference to those objects. No
interpretation of the words in which those powers are granted can be a
sound one which narrows down every ordinary import so as to defeat
those objects.

In the decision of _Prigg_ v. _Pennsylvania_, when the effort was to
carry out the fugitive slave law,[5] the court, speaking through
Justice Storey in 1842, believed that the clause of the Constitution
conferring a right should not be so construed as to make it shadowy or
unsubstantial or leave the citizen without the power adequate for its
protection when another construction equally accordant with the words
and the sense in which they were used would enforce and protect the
right granted. The court believed that Congress is not restricted to
legislation for the execution of its expressly granted powers; but for
the protection of rights guaranteed by the Constitution, may employ
such means not prohibited, as are necessary and proper, or such as are
appropriate to attain the ends proposed. The court held, moreover, in
_Prigg_ v. _Pennsylvania_, that "the fundamental principle applicable
to all cases of this sort, would seem to be, that when the end is
required the means are given; and when the duty is enjoined, the
ability to perform it is contemplated to exist on the part of the
functionaries to whom it is entrusted." It required very little
argument to expose the fallacy in supposing that the national
government had ever meant to rely for the due fulfillment of its
duties and the rights which it established, upon State legislation
rather than upon that of the United States, and with greater reason,
when one bears in mind that the execution of power which was to be the
same throughout the nation could not be confided to any State which
could not rightfully act beyond its own territorial limits. All of
this power exercised in executing the Fugitive Slave Law of 1793 was
implied, rather than such direct power as that later conferred upon
Congress by the Thirteenth Amendment, which provided that Congress
should have power to pass appropriate legislation to enforce it.

As the Supreme Court decided in the case of _Prigg_ v. _Pennsylvania_
that the officers of the State were not legally obligated to assist in
the enforcement of the Fugitive Slave Law of 1793, Congress passed
another and a more drastic measure in 1850 which, although unusually
rigid in its terms, was enthusiastically supported by the Supreme
Court in upholding the slavery regime. The Fugitive Slave Law of 1850
deprived the Negro suspect of the right of a trial by jury to
determine the question of his freedom in a competent court of the
State. The affidavit of the person claiming the Negro was sufficient
evidence of ownership. This law made it the duty of marshals and of
the United States courts to obey and execute all warrants and precepts
issued under the provisions of this act. It imposed a penalty of a
fine and imprisonment upon any person knowingly hindering the arrest
of a fugitive or attempting to rescue one from custody or harboring
one or aiding one to escape. The writ of habeas corpus was denied to
the reclaimed Negro and the act was _ex post facto_. In short, the
Fugitive Slave Law of 1850 committed the whole country to the task of
the protection of slave property and made slavery a national matter
with which every citizen in the country had to be concerned. In the
interest of the property right of the master, moreover, the Supreme
Court by the Dred Scott Decision[6] upheld this measure, feeling that
there was in Congress adequate power expressly given and implied to
enforce this regulation in spite of any local opposition that there
might develop against the government acting upon individuals to carry
out this police regulation. The Negro was not a citizen and in his
non-political status could not sue in a Federal court, which for the
same reason must disclaim jurisdiction in a case in which the Negro
was a party.

In the decision of _Ableman_ v. _Booth_[6a] the court in construing
the provision for the return of slaves according to the Fugitive Slave
Law of 1850 further recognized the master's right of property in his
bondman, the right of assisting and recovering him regardless of any
State law or regulation or local custom to the contrary whatsoever.
This tribunal then believed that the right of the master to have his
fugitive slave delivered up on the claim, being guaranteed by the
Constitution, the implication was that the national government was
clothed with proper authority and functions to enforce it. These were
reversed during the Civil War by the nation rising in arms against the
institution of slavery which it had economically outgrown and the
court in the support of the Federal Government exercising its unusual
powers in effecting the political and social upheaval resulting in the
emancipation of the slaves, again became decidedly national in its
decisions.

Out of Rebellion the Negro emerged a free man endowed by the State and
Federal Government with all the privileges and immunities of a citizen
in accordance with the will of the majority of the American people, as
expressed in the Civil Rights Bill and in the ratification of the
Thirteenth, Fourteenth and Fifteenth Amendments. A decidedly militant
minority, however, willing to grant the Negro freedom of body but
unwilling to grant him political or civil rights, bore it grievously
that the race had been so suddenly elevated and soon thereafter
organized a party of reaction to reduce the freedmen to the position
of the free people of color, who before the Civil War had no rights
but that of exemption from involuntary servitude. During the
Reconstruction period when the Negroes figured conspicuously in the
rebuilding of the Southern States they temporarily enjoyed the rights
guaranteed them by the Constitution. As there set in a reaction
against the support of the reconstructed governments as administered
by corrupt southerners and interlopers, the support which the United
States Government had given this first effort in America toward actual
democracy was withdrawn and the undoing of the Negro as a citizen was
easily effected throughout the South by general intimidation and
organized mobs known as the Ku-Klux Klan.

One of the first rights denied the Negro by these successful
reactionaries was the unrestricted use of common carriers. Standing
upon its former record, however, the court had sufficient precedents
to continue as the impartial interpreter of the laws guaranteeing all
persons civil and political equality. In _New Jersey Steam Navigation
Company_ v. _Merchants Bank_[7] the court speaking through Justice
Nelson took high ground in the defence of the free and unrestricted
use of common carriers, a right frequently denied the Negroes after
the Civil War. The court said that a common carrier is "in the
exercise of a sort of public office and has public duties to perform
from which he should not be permitted to exonerate himself without
assent of the parties concerned." This doctrine was upheld in _Munn_
v. _Illinois_[8] and in _Olcott_ v. _Supervisors_[9] when it was
decided that railroads are public highways established under the
authority of the State for the public use; and that they are none the
less public highways, because controlled and owned by private
corporations; that it is a part of the function of government to make
and maintain highways for the convenience of the public; that no
matter who is agent or what is the agency, the function performed is
_that of the State_; that although the owners may be private
companies, they may be compelled to permit the public to use these
works in the manner in which they can be used; "Upon these grounds
alone," continues the opinion, "have courts sustained the investiture
of railroad corporations with the States right of eminent domain, or
the right of municipal corporations, under legislative authority, to
assess, levy, and collect taxes to aid in the construction of
railroads."[10] Jurists in this country and in England had also held
that inasmuch as the innkeeper is engaged in a quasi public
employment, the law gives him special privileges and he is charged
with certain duties and responsibilities to the public. The public
nature of his employment would then forbid him from discriminating
against any person asking admission, on account of the race or color
of that person.[11]

In the _Slaughter House Cases_[12] and _Strauder_ v. _West
Virginia_[13] the United States Supreme Court held that since slavery
was the moving or principal cause of the adoption of the Thirteenth
Amendment, and since that institution rested wholly upon the
inferiority, as a race, of those held in bondage, their freedom
necessarily involved immunity from, and protection against all
discrimination against them, because of their race in respect of such
civil rights as belong to freemen of other races. Congress, therefore,
under its present express power to enforce that amendment by
appropriate legislation, might enact laws to protect that people
against deprivation, _because of their race_, of any civil rights
granted to other freemen in the same States; and such legislation may
be of a direct and primary character, operating upon States, their
officers and agents, and also upon, at least, such individuals and
corporations as exercise public functions and wield power and
authority under the State.

The State was conceded the power to regulate rates, fares of
passengers and freight, and upon these grounds it might regulate the
entire management of railroads in matters affecting the convenience
and safety of the public, such as regulating speed, compelling stops
of prescribed length at stations and prohibiting discriminations and
favoritisms. The position taken here is that these corporations are
actual agents of the State and what the State permits them to do is an
act of the State. The Thirteenth and Fourteenth Amendments made the
Negro race a part of the public and entitled to share in the control
and use of public utilities. Any restriction in the use of these
utilities would deprive the race of its liberty; for "personal liberty
consists," says Blackstone, "in the power of locomotion of changing
situation, of removing one's person to whatever places one's own
inclination may direct, without restraint, unless by due course of
law."

In several decisions the court had held that the purpose of the
Thirteenth and Fourteenth Amendments was to raise the Negro race from
that condition of inferiority and servitude in which most of them had
previously stood, into perfect equality of civil rights with all other
persons within the jurisdiction of the United States. In _Strauder_ v.
_West Virginia_,[14] and _Neal_ v. _Delaware_,[15] the court had taken
the position that exemption from race discrimination is a right of a
citizen of the United States. Negroes charged that members of their
race had been excluded from a jury because of their color. The court
was then of the opinion that such action contravened the Constitution
and, as was held in the case of _Prigg_ v. _Pennsylvania_, declared
it essential to the national supremacy that the agent of the body
politic should have the power to enforce and protect any right granted
by the Constitution.


In _Ex Parte Virginia_ the position was the same. In this case one
Cole, a county judge, was charged by the laws of Virginia with the
duty of selecting grand and petit jurors. The laws of that State did
not permit him in the performance of that duty to make any distinction
as to race. He was indicted in a Federal court under the act of 1875,
for making such discriminations. The attorney-general of Virginia
contended that the State had done its duty, and had not authorized or
directed that county judge to do what he was charged with having done;
that the State had not denied to the Negro race the equal protection
of the laws; and that consequently the act of Cole must be deemed his
individual act, in contravention of the will of the State. Plausible
as this argument was, it failed to convince the court; and after
emphasizing the fact that the Fourteenth Amendment had reference to
the acts of the political body denominated a State, "by whatever
instruments or in whatever modes that action may be taken" and that a
State acts by its legislative, executive and judicial authorities, and
can act in no other way, it said:

"The constitutional provision, therefore, must mean that no agency of
the State, or of the officers or agents by whom its powers are
exerted, shall deny to any person within its jurisdiction the equal
protection of the laws. Whoever, by virtue of public position under a
State government, deprives another of property, life, or liberty
without due process of law, or denies or takes away the equal
protection of the laws, violates the constitutional inhibitions; and,
as he acts under the name and for the State, and is clothed with the
State power, his act is that of the State. This must be so, or the
constitutional prohibition has no meaning. Then the State has clothed
one of its agents with power to annul or evade it. But the
constitutional amendment was ordained for a purpose. It was to secure
equal rights to all persons, and, to insure to all persons the
enjoyment of such rights, power was given to Congress to enforce its
provisions by appropriate legislation. Such legislation must act upon
persons, not upon the abstract thing denominated as State but upon the
persons who are the agents of the State, in the denial of the rights
which were intended to be secured."[16]

The Supreme Court of the United States soon fell under reactionary
influence and gave its judicial sanction to all repression necessary
to establish permanently the reactionaries in the South and to deprive
the Negroes of their political and civil rights. It will be
interesting, therefore, to show exactly how far the United States
Supreme Court, supposed to be an impartial tribunal and generally held
in such high esteem and treated with such reverential fear, has been
guilty of inconsistency and sophistry in its effort to support this
autocracy in defiance of the well established principles of
interpretation for construing the constitutions and laws of States and
in utter disregard of the supremacy of Congress in the exercise of the
powers granted the government by the Constitution of the United
States.


THE RIGHT OF LOCOMOTION

In 1875 Congress passed a measure commonly known as the Civil Rights
Bill, which was supplementary of other measures of the same sort, the
first being enacted April 9, 1866.[17] and reenacted with some
modifications in sections 16, 17, and 18 of the Enforcement Act passed
August 31, 1870.[18] The intention of the statesmen advocating these
measures was to secure to the freedmen the enjoyment of every right
guaranteed all other citizens. The important sections of the Civil
Rights Bill of 1875 follow:

_Section 1._ That all persons within the jurisdiction of the
United States shall 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.

_Section 2._ That any person who shall violate the foregoing
section by denying to any citizen, except for reasons by law
applicable to citizens of every race and color, and regardless of
any previous condition of servitude, the full enjoyment of any of
the accommodations, advantages, facilities or privileges in said
section enumerated, or by aiding or inciting such denial, shall
for every such offense forfeit and pay the sum of five hundred
dollars to the person aggrieved thereby, to be recovered in an
action of debt, with full costs; and shall also, for every such
offense be deemed guilty of a misdemeanor, and, upon conviction
therefor, shall be fined not less than five hundred nor more than
one thousand dollars, or shall be imprisoned not less than thirty
days nor more than one year. _Provided_, That all persons may
elect to sue for the penalties aforesaid, or to proceed under
their rights at common law and by State statutes; and having so
elected to proceed in the one mode or the other, their right to
proceed in the other jurisdiction shall be barred: But this
provision shall not apply to criminal proceedings, either under
this act or the criminal law of any State: and provided further,
That a judgment for the penalty in favor of the party aggrieved,
or a judgment upon an indictment, shall be a bar to either
prosecution respectively.

Although the Negroes by this measure were guaranteed the rights which
were granted by the Constitution to every citizen of the United
States, the members of the Supreme Court of the United States instead
of upholding the laws of the nation in accordance with their oaths
undertook to hedge around and to explain away the articles of the
Constitution in such a way as to legislate rather than interpret the
laws according to the intent of the framers of the Constitution.
Subjected to all sorts of discriminations at the polls, in the courts,
in inns, in hotels, on street cars, and on railroads, Negroes had sued
for redress of their grievances and the persons thus called upon to
respond in the courts attacked the constitutionality of the Civil
Rights Bill, and the War Amendments, contending that they encroached
upon the police power of the States.

The first of these _Civil Rights Cases_ were: _United States_ v.
_Stanley_, _United States_ v. _Ryan_, _United States_ v. _Nichols_,
_United States_ v. _Singleton_, and _Robinson and wife_ v. _Memphis
and Charleston R. R. Co._ Two of these cases, those against Stanley
and Nichols, were indictments for denying to persons of color the
accommodations of an inn or hotel; two of them, those against Ryan and
Singleton, were, one on information, the other on indictments, for
denying to individuals the privileges and accommodations of a theatre.
The information against Ryan was for refusing a colored person a seat
in the dress circle of McGuire's Theatre in San Francisco; and the
indictment against Singleton was for denying to another person, whose
color was not stated, the full enjoyment of the accommodation of the
theatre known as the Grand Opera House in New York.



Online LibraryVariousThe Journal of Negro History, Volume 6, 1921 → online text (page 1 of 45)