Race Distinctions in American Law

Heretofore, the writer has let the legislatures and courts speak for themselves, withholding personal opinions and refraining from making deductions from the facts revealed. Now, however, that the various race distinctions have been reviewed at some length, it may be worth while to consider what conclusions the facts warrant and what practical lessons they suggest.

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.

Perhaps, as a whole, actual race distinctions in the United States are not increasing; but distinctions, formerly sanctioned only by custom, are now either permitted or required by law, and the number of recent suits in States outside the South indicates that actual discriminations are as prevalent as they have been at any time since 1865.

DISTINCTIONS NOT BASED ON RACE SUPERIORITY

What is the fundamental cause of race distinctions? No comparison of laws can formulate an answer to that question; but the personal observation of the writer leads to the belief that race distinctions are not based fundamentally upon the feeling by one race of superiority to the other, but are rather the outgrowth of race consciousness. If Negroes were in every way equally advanced with white people, race distinctions would probably be even more pronounced than now; because, in addition to physical differentiation, there would be the rivalry of equally matched races. Thus, the widespread prejudice entertained by Gentiles toward Jews, resulting in actual, if not legal, distinctions, is due, not to any notion that Jews are intellectually or morally inferior to any people, but to a race consciousness which each possesses. The exclusion of the Japanese was due, not so much to an intellectual or moral inferiority of that race to the white race, as to a difference in their racial ideals. So long as two races living side by side have each an amour propre, the more numerous may be expected to prescribe distinctions to which the less numerous must submit; that is, until the spirit of universal brotherhood is a more compelling force than it is at present.

SOLUTION OF RACE PROBLEM HINDERED BY MULTIPLICITY OF PROPOSED REMEDIES

If the above generalizations are correct, they should enable one to draw some practical conclusions for dealing with race problems. The proper adjustment of race relations is being retarded by the multiplicity of suggested solutions, many of them conflicting and thus hindering one another, some of them parallel and necessarily duplicating expenditure of energy. For instance, some men, including both Negroes and white persons, believe that the proper solution of the race problem is the deportation of the Negro race; others, that it is the segregation of that race in some portion of the United States or colonization in some territorial possession; while others believe that the South should remain the permanent home of the majority of Negroes. Advocates of territorial separation of one sort or another think that efforts should be directed toward getting the Negro to his new home as soon as possible. Those who believe that the home of the Negro will remain in this country are divided upon the steps to be taken. Some of this class approve of further education of the Negro, being divided, however, into two overlapping groups, the one emphasizing literary training, and the other industrial. Others of this class maintain that any sort of systematic education of the Negro is only hastening an inevitable race conflict. In the midst of these conflicting opinions, the Negro problem, instead of reaching a complete or even partial solution, is only being aggravated.

There is no need of prophesying what the final solution will be, but one is justified in believing that the inevitable changes will be gradual. Whether or not the final adjustment is a segregation of the Negro race, one can hardly expect it to come in one, two, or even six decades. A century hence the white people will probably be living side by side with Negroes as they do now. The duty of the American people is to act properly toward all races in their own lifetime: the far future will take care of itself. The difficult thing to ascertain is the proper mode of acting to-day. The solution of the race problem, when it does come, will doubtless be a composite result. The race relations are not the same in different sections of the country or in different States of the South or even in different counties of the same State. Though the proper steps now to be taken in the various sections or States or counties may be different, there can, in the nature of things, be but one best mode of action for each community. That must be one for which all people, regardless of race or section, may profitably strive.

SEARCH FOR A COMMON PLATFORM

A noticeable effort has been made during the past few years by students of race relations to construct a platform upon which all men of every race may stand and work together for the permanent settlement of all racial antagonisms. This is evidenced by the organization of late years of national movements which have enlisted the support of men of different sections and races. One of these, the Southern Education Association, has been promoted by men from the North and East as well as by men from the South, by both Negroes and white people. Soon after the Atlanta riots of two years ago, a conference of Southern white men and Negroes was held at Atlanta, for the purpose of promoting harmony between the races in the South. Within a few months a conference of Northern and Southern white men has met in Washington City to consider the Negro problem. Still more recently a group of Southern students in Harvard University, realizing that the race relations were different in different localities of the South, have organized an informal club to study the practical problems arising out of the presence of the Negro in the South and to exchange ideas formed from observation and experience in their respective localities. There are other indications of a desire to work out a common set of principles by which everyone may be governed.

PROPER PLACE OF RACE DISTINCTIONS

Assuming that it is possible to formulate a platform deserving the approval of all races, it is appropriate for a student of any phase of race relations to suggest a plank for it. A student in the special field of race distinctions in American law may endeavor to show the place that such legal distinctions properly hold, bearing in mind all the while that the whole issue springs out of race consciousness as it actually exists to-day, not as it should be or as it may be in the distant future.

Let one imagine the existence of a Federal statute—waiving the question of its constitutionality—prohibiting States from legalizing race distinctions, so that all public places of amusement, accommodation, and instruction would be, so far as the law could make them, open to all persons, regardless of race. Such a measure, far from effecting its purpose, would doubtless be the beginning of extensive race discriminations. Once abolish separate hotel accommodations and the white race, wherever it is in the majority, would monopolize every hotel, leaving other races either to walk the streets or to find accommodations in private houses. Were separate street car accommodations forbidden in cities where there is a fairly large percentage of Negroes, if any passenger were forced to stand or be crowded off the car altogether, it would be the Negro. Were separate schools not permitted, Negro children might possibly be excluded from schools altogether in defiance of the law; but even if admitted, their interests, if different from those of the more numerous race, would have to be sacrificed. A further review of race distinctions now legally recognized would only more fully substantiate the conclusion that, with race feeling as it is, if such distinctions were not recognized and enforced, the stronger race would naturally appropriate the best for itself and leave the weaker race to fare as it could.

On the other hand, let one imagine that the same laws recognizing race distinctions as now exist in the South obtained in all communities where two races are nearly equal in numbers. Suppose, for instance, that separate hotels were permitted in all cities which receive an appreciable number of Negro travelers. Respectable Negroes might then secure comfortable entertainment in hotels provided for their race and thus escape the inconvenience and humiliation of being denied admission to hotels maintained exclusively for white persons. If separate schools were provided, Negro children would be free to pursue, unhampered by requirements prescribed for the more developed race and unembittered by continuous manifestations of race prejudice, a curriculum especially adapted to their own needs. Wherever separate railroad and street car accommodations were provided, a Negro might enter the car or compartment reserved for his race and go his way in peace, unmolested by the thoughtless or vicious of the other race. The result, therefore, of the honest enforcement of race distinctions would be to the advantage of the weaker race.

OBLITERATION OF RACE DISCRIMINATIONS

The people of the different sections and races, instead of inquiring into the truth or falsity of such a conclusion, have been agitating the theoretical right and wrong of race distinctions. Meanwhile, indications are that legalized race distinctions have been unfairly enforced. For instance, statutes require that equal accommodations be given Negro passengers in public conveyances; yet, while people have been debating the constitutionality and justification of the “Jim Crow” laws, railroad companies have been compelling Negroes to occupy uncomfortable and unsanitary coaches and waiting-rooms, and this though Negroes paid the same fare as white passengers. Furthermore, while they have been arguing the constitutionality of the suffrage laws of the South, white registrars have been putting unfair tests to Negro applicants for registration, and by so doing have made the laws a tool by which to work injustice to the Negro. While, finally, they have been strenuously discussing the school laws, Negro children have been suffering from, not only inadequate but, in many cases, improper training by ignorant Negro teachers.

In suggesting the benefits that would accrue to the weaker race from legalized race distinctions, it is assumed that such distinctions would apply only in communities in which two races live side by side in something like equal numbers. The white people of the South should recognize the inexpediency of requiring separate schools, separate railroad and street cars, separate hotels, and separate accommodations in general for the colored races in most places outside the South where they constitute, in many instances, not more than one-tenth of the total population. The white people in the places last mentioned should recognize that it would be equally unwise to crowd together white and colored races in schools, public conveyances, hotels, theatres, and other public places in the South. Colored people everywhere should realize that a race distinction is not necessarily a badge of racial inferiority, but may be simply a natural result of racial differentiation. Race distinctions may, therefore, have a very appropriate place in communities where, as has been said before, two races are about equal in numbers, at least where there are enough of the subordinate race to arouse in the dominant a feeling of race consciousness.

Where, under the above view, race distinctions are justifiable, and are enacted into law, the people of all races should unite in demanding that the laws be fairly applied. If, for instance, the presence of sufficient Negroes make it advisable to separate the races in public conveyances, the white people should unite with them in demanding that they be given equal accommodations. The Negro who has paid a first-class fare is entitled to coaches and waiting-rooms as sanitary, comfortable, and convenient as those provided for white persons paying the same fare. With separate schools provided, they should insist that each race be given an equal opportunity to get the sort of training it most needs to do its work. This training may be different. The Southern Education Association^[776] in session at Lexington, Kentucky, said: “On account of economic and psychological differences in the two races we believe there should be a difference in the courses of study and methods of teaching, and that there should be such an adjustment of school curricula as shall meet the evident needs of Negro youth.” If it is true that the Negro child needs a different sort of training from the white, then it is a discrimination to give him the training peculiarly suited to the child of the other race. People may demand for the two races equal educational opportunities, and at the same time advocate different courses of study and methods of teaching.

In States which have added new qualifications for suffrage, both races may demand their impartial application. A Negro public spirited enough to pay his taxes, with education enough to read and write, or thrifty enough to accumulate the required amount of property should be allowed to register and vote as freely as a white man with similar qualifications. A white registrar who discriminates against a Negro applicant, by setting for him more difficult tests than are set for white applicants, is doing an injustice to the white people equally as great as that done to the Negroes. John B. Knox,^[777] President of the Alabama Constitutional Convention of 1901, said at that time: “If we would have white supremacy, we must establish it by law—not by force or fraud. If you teach your boy that it is right to buy a vote, it is an easy step for him to learn to use money to bribe or corrupt officials or trustees of any class. If you teach your boy that it is right to steal a vote, it is an easy step for him to believe that it is right to steal whatever he may need or greatly desire.” Speaking from the standpoint of the Negro, Dr. Booker T. Washington^[778] said: “As a rule, I believe in universal, free suffrage, but I believe that in the South we are confronted with peculiar conditions that justify the protection of the ballot in many of the States, for a while at least, either by an educational test, a property test, or by both combined; but whatever tests are required, they should be made to apply with equal and exact justice to both races.” All people, white and black, should unite, not to secure the repeal of the suffrage laws, but to secure their enforcement with absolute impartiality.

The welfare of both races—and this conclusion applies equally to the other non-Caucasian races—requires the recognition of race distinctions and the obliteration of race discriminations. The races should be separated wherever race friction might result from their enforced association. The white race cannot attain its highest development when continually venting its spite upon the less fortunate race. Nor, indeed, can the Negro race reach its highest development when continually subjected to the oppressions of the more fortunate race.

Such a recognition of race distinctions and such an obliteration of race discriminations as are here advocated constitute principles by which all people, of every section and of every race, may stand and labor for the promotion of good feeling between all sections and harmony between all races.

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