Читать книгу Race Distinctions in American Law - Gilbert Thomas Stephenson - Страница 10

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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.