The Journal of Negro History, Volume 6, 1921
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Title: The Journal of Negro History, Volume 6, 1921
Author: Various
Release date: July 26, 2007 [eBook #22149]
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Language: English
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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.
The argument to show the culpability of the State was that in becoming
a business man or a corporation established by sanction of and
protected by the State, such a person or persons discriminating
against a citizen of color no longer acted in a private but in a
public capacity and in so doing affected an interest in violation of
the State by controlling, as in the case of slavery, an individual's
power of locomotion. The Civil Rights Bill was appropriate legislation
as defined by the Constitution to forbid any action by private persons
which "in the light of our history may reasonably be apprehended to
tend, on account of its being incidental to quasi public occupations,
to create an institution." The act of 1875 in prohibiting persons from
violating the rights of other persons to the full and equal enjoyment
of the accommodations of inns and public conveyances, for any reason
turning merely upon the race or color of the latter, partook of the
specific character of certain contemporaneous, solemn and effective
action by the United States to which it was a sequel and is
constitutional.
Giving the opinion of the court in Civil Rights Cases,[19] Mr. Justice
Bradley said that the Fourteenth Amendment on which this act of 1875
rested for its authority, if it had any authority at all, does not
invest Congress to legislate within the domain of State legislation or
in State action of the kind referred to in the Civil Rights Act. He
believed that the Fourteenth Amendment does not authorize Congress to
create a code of municipal law for the regulation of private rights.
He conceded that positive rights and privileges are secured by the
Fourteenth Amendment but only by prohibition against State laws and
State proceedings affecting those rights.[20] "Until some State law
has passed," he said, "or some State action through its officers or
agents has been taken, adverse to the rights of citizens sought to be
protected by the Fourteenth Amendment, no legislation of the United
States under said amendment, nor any proceeding under such
legislation, can be called into activity; for the prohibitions of the
amendment are against State laws and acts under State authority."
Otherwise Congress would take the place of State legislatures and
supersede them and regulate all private rights between man and man.
Civil rights such as are guaranteed by the Constitution against State
aggression, thought Justice Bradley, cannot be impaired by the
wrongful acts of individuals unsupported by State authority in the
shape of laws, customs, or executive proceedings, for those are
private wrongs.
Justice Bradley believed, moreover, that the Civil Rights Act could
not be supported by the Thirteenth Amendment in that, unlike the
Fourteenth Amendment, the Thirteenth Amendment is primary and direct
in abolishing slavery. "When a man has emerged from slavery," said he,
"and by the aid of beneficent legislation has shaken off the
inseparable concomitants of that state there must be some stage in
the progress of his elevation when he takes the rank of a mere
citizen, ceases to be the special favorite of the laws, and when his
rights as a citizen or a man, are to be protected in the ordinary
modes by which other men's rights are protected." To eject a Negro
from an inn or a hotel, to compel him to ride in a separate car, to
deny him access and use of places maintained at public expense,
according to Justice Bradley, do not constitute imposing upon the
Negroes badges and incidents of slavery; for they are acts of
individuals with which Congress, because of the limited powers of the
Federal government, cannot have anything to do. The particular clause
in the Civil Rights Act, so far as it operated on individuals in the
several States was, therefore, held null and void, but the court held
that it might apply to the District of Columbia and territories of the
United States for which Congress might legislate directly. Since then
the court has in the recent _Wright Case_ declared null and void even
that part which it formerly said might apply to territory governed
directly by Congress, thus taking the position tantamount to reading
into the laws of the United States and the laws of nations the
segregation measures of a mediaeval ex-slaveholding commonwealth
assisted by the nation in enforcing obedience to its will beyond the
three mile limit on the high seas.
Although conceding that the Thirteenth Amendment was direct and
primary legislation, the court held that it had nothing to do with the
guarantee against that race discrimination commonly referred to in the
bills of complaint as the badges and incidents of slavery. The court
found the Fourteenth Amendment negative rather than direct and primary
because of one of its clauses providing that "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 and property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the laws."
The court was too evasive or too stupid to observe that the first
clause of this amendment was an affirmation to the effect that all
persons born and naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States and of the
State wherein they reside. In other words, the court held that if
there is one negative clause in a paragraph, the whole paragraph is a
negation. Such sophistry deserves the condemnation of all fairminded
people, when one must conclude that any person even without formal
education, if he has heard the English language spoken and is of sound
mind, would know better than to interpret a law so unreasonably.
In declaring this act unconstitutional the Supreme Court of the United
States violated one of its own important principles of interpretation
to the effect that this duty is such a delicate one, that the court in
declaring a statute of Congress invalid must do so with caution,
reluctance and hesitation and never until the duty becomes manifestly
imperative. In the decision of _Fletcher_ v. _Peck_,[21] the court
said that whether the legislative department of the government has
transcended the limits of its constitutional power is at all times a
question of much delicacy, which seldom, if ever, is to be decided in
the affirmative, in a doubtful case. The position between the
Constitution and the law should be such that the judge feels a clear
and strong conviction of their incompatibility with each other. In the
_Sinking Fund Cases_[22] the court said: "When required in the regular
course of judicial proceedings to declare an act of Congress void if
not within the legislative power of the United States, this
declaration should never be made except in a clear case. Every
possible presumption is in favor of the validity of a statute, and
this continues until the contrary is shown beyond a rational doubt.
One branch of the government cannot encroach on the domain of another
without danger. The safety of our institutions depends in no small
degree on a strict observance of this salutary rule." And this is
exactly what happened. The judiciary here assumed the function of the
legislative department. Not even a casual reader on examining these
laws and the Constitution can feel that the court in this case felt
such a clear and strong conviction as to the invalidity of this
constitutional legislation when that tribunal, as its records show,
had under different circumstances before the Civil War held a doctrine
decidedly to the contrary.
Mr. Justice Harlan, therefore, dissented. He considered the opinion of
the court narrow, as the substance and spirit were sacrificed by a
subtle and ingenious verbal criticism. Justice Harlan believed, "that
it is not the words of the law but the internal sense of it that makes
the law; the letter of the law is the body, the sense and reason of
the law the soul." "Constitutional provisions adopted in the interest
of liberty," said Justice Harlan, "and for the purpose of securing,
through national legislation, if need be, rights inhering in a state
of freedom, and belonging to American citizenship, have been so
construed as to defeat the end the people desire to accomplish, which
they attempted to accomplish, and which they supposed they had
accomplished, by changes in their fundamental law."
The court, according to Justice Harlan, although he did not mean to
say that the determination in this case should have been materially
controlled by considerations of mere expediency or policy, had
departed from the familiar rule requiring that the purpose of the law
or Constitution and the objects to be accomplished by any grant are
often the most important in reaching real intent just as the debates
in the convention of 1787 and the discussions in the _Federalist_ and
in the ratifying conventions of the States have often been referred to
as throwing important light on clauses in the Constitution seeming to
show ambiguity. The debates on the war amendment, when they were
proposed and ratified, were thoroughly expounded before the court in
bringing before that tribunal the intention of the members of
Congress, by which the court, according to a well established
principle of interpretation, should have been influenced in construing
the statute in question.
The court held that legislation for the enforcement of the Thirteenth
Amendment is direct and primary "but to what specific ends may it be
directed?" inquired Justice Harlan. The court "had uniformly held that
national government has the power, whether expressly given or not, to
secure and protect rights conferred or guaranteed by the
Constitution."[23] Justice Harlan believed then that the doctrines
should not be abandoned when the inquiry was not as to an implied
power to protect the master's rights, but what Congress might, under
powers expressly granted, do for the protection of freedom and the
rights necessarily inhering in a state of freedom.
The Thirteenth Amendment, the court conceded, did more than prohibit
slavery as an _institution_, resting upon distinctions of race, and
upheld by positive law. The court admitted that it "established and
decreed universal civil freedom throughout the United States." "But
did the freedom thus established," inquired Justice Harlan, "involve
more than exemption from actual slavery? Was nothing more intended
than to forbid one man from owning another as property? Was it the
purpose of the nation simply to destroy the institution and then remit
the race, theretofore held in bondage, to the several States for such
protection, in their civil rights, necessarily growing out of their
freedom, as those States in their discretion might choose to provide?
Were the States against whose protest the institution was destroyed to
be left free, so far as national interference was concerned, to make
or allow discriminations against that race, as such, in the enjoyment
of those fundamental rights which by universal concession, inhere in a
state of freedom?" Justice Harlan considered it indisputable that
Congress in having power to abolish slavery could destroy the burdens
and disabilities remaining as its badges and incidents which
constitute its substance in visible form.
The court in its defense had taken as an illustration that the
negative clause of the Fourteenth Amendment was not direct and
primary, that although the States are prohibited from passing laws to
impair the obligations of contracts this did not mean that Congress
could legislate for the general enforcement of contracts throughout
the States. Discomfitting his brethren on their own ground Harlan
said: "A prohibition upon a State is not a _power_ in _Congress or in
the national government_. It is simply a _denial_ of _power_ to the
State. The much talked of illustration of impairing the obligation of
contracts, therefore, is not an example of power expressly conferred
in contradistinction to that of this case and is not convincing for
this would be a court matter, not a matter of Congress. The Fourteenth
Amendment is the first case of conferring upon Congress affirmative
power by _legislation to enforce_ an express prohibition on the
States. Judicial power was not specified but the power of Congress.
The judicial power could have acted without such a clause. The
Fourteenth Amendment is not merely a prohibition on State action. It
made Negroes citizens of the United States and of the States. This is
decidedly affirmative. This citizenship may be protected not only by
the judicial branch of the government but by Congressional legislation
of a primary or direct character. It is in the power of Congress to
enforce the affirmative as well as the prohibitive provisions of this
article. The acceptance of any doctrine to the contrary," continued
Justice Harlan, "would lead to this anomalous result: that whereas
prior to the amendments, Congress with the sanction of this court
passed the most stringent laws--operating directly and primarily upon
States and their officers and agents, as well as upon individuals--in
vindication of slavery and the right of the master, it may not now, by
legislation of a like primary and direct character, guard, protect,
and secure the freedom established, and the most essential right of
the citizenship granted, by the constitutional amendments."
It did not seem to Justice Harlan that the fact that, by the second
clause of the first section of the Fourteenth Amendment, the States
are expressly prohibited from making or enforcing laws abridging the
rights and immunities of citizens of the United States, furnished any
sufficient reason for upholding or maintaining that the amendment was
intended to deny Congress the power, by general, primary, and direct
legislation, of protecting citizens of the several States, being also
citizens of the United States, against all discrimination, in respect
of their rights as citizens, which is founded on "race, color, or
previous condition of servitude." "Such an interpretation," thought
he, "is plainly repugnant to its fifth section, conferring upon
Congress power, by appropriate legislation, to enforce not merely the
provisions containing prohibitions upon the States, but all of the
provisions of the amendment, including the provisions, express and
implied, in the first clause of the first section of the article
granting citizenship." The prohibition of the State laws could have
been negatived by judicial interpretation without the Fourteenth
Amendment on the ground that they would have conflicted with the
Constitution.
The court said the Fourteenth Amendment was not intended to enact a
municipal code for the States. No one will gainsay this. This
Amendment, moreover, is not altogether for the benefit of the Negro.
It simply interferes with the local laws when they operate so as to
discriminate against persons or permit agents of the States to
discriminate against persons of any race on account of color or
previous condition of servitude. Of what benefit was it if it did not
do this? The constitutions of the several States had already secured
all persons against deprivation of life, liberty or property otherwise
than by due process of law, and in some form recognized the right of
all persons to the equal protection of the laws. If this be the
correct interpretation even, it does not follow that privileges which
have been granted by the nation, may not be protected by primary
legislation upon the part of Congress. Justice Harlan pointed out that
it is for Congress not the judiciary, to say that legislation is
appropriate, for that would be sheer usurpation of the functions of a
coordinate department. Why should these rules of interpretation be
abandoned in the case of maintaining the rights of the Negro
guaranteed by the Constitution?
The Civil Rights Act of 1875 could have been maintained on the ground
that it regulated interstate passenger traffic, as one of the cases,
_Robinson and Wife_ v. _Memphis and Charleston Railroad Company_,
showed that Robinson a citizen of Mississippi had purchased a ticket
entitling him to be carried from Grand Junction, Tennessee, to
Lynchburg, Virginia. This case substantially presented the question of
interstate commerce but the court reserved the question whether
Congress in the exercise of its power to regulate commerce among the
several States, might or might not pass a law regulating rights in
public conveyances passing from one State to another. The court
undertook to hide behind the fact that this specific act did not
recite therein that it was enacted in pursuance of the power of
Congress to regulate commerce. Justice Harlan, therefore, inquired:
"Has it ever been held that the judiciary should overturn a statute,
because the legislative department did not accurately recite therein
the particular provision of the constitution authorizing its
enactment?" On the whole, the contrary is the rule. It is sufficient
to know that there is authority in the Constitution.
In this decision, too, there was the influence of the much paraded
bugbear of social equality forced upon the whites. To use the inns,
hotels, and parks, established by authority of the government and the
places of amusement authorized as the necessary stimulus to progress,
to buy a railroad ticket at the same window, ride in the same
comfortable car on a limited train rather than incur the loss of time
and suffer the inconvenience of inferior accommodations on a slow
local train; to sleep and eat in a Pullman car so as to be refreshed
for business on arriving at the end of a long journey, all of this was
and is today dubbed by the reactionary courts social equality. Justice
Harlan exposed this fallacy in saying: "The right, for instance, of a
colored citizen to use the accommodations of a public highway, upon
the same terms as are permitted to white citizens, is no more a social
right than his right, under the law, to use the public streets of a
city or a town, or a turnpike road, or a public market, or a post
office, or his right to sit in a public building with others, of
whatever race, for the purpose of hearing the political questions of
the day discussed."
What did the Negro become when he was freed? What was he when,
according to section 2 of Article IV of the Constitution, he became by
virtue of the Fourteenth Amendment entitled to all privileges and
immunities of citizens in the several States?[24] From what did the
race become free? If Justice Bradley had been inconveniently
segregated by common carriers, driven out of inns and hotels with the
sanction of local law, and deprived by a mob of the opportunity to
make a living, would he have considered himself a free citizen of this
or any other country? "A colored citizen of Ohio or Indiana while in
the jurisdiction of Tennessee," contended Justice Harlan, "is entitled
to enjoy any privilege or immunity, fundamental in citizenship, which
is given to citizens of the white race in the latter State.
Citizenship in this country necessarily imports at least equality of
civil rights among citizens of every race in the same State." In
_United States_ v. _Cruikshank_[25] it was held that rights of life
and personal liberty are natural rights of man, and that "equality of
the rights of citizens is a principle of republicanism."
INCONSISTENCY OF THE COURT
In the case of _Hall_ v. _DeCuir_[26] the court reached an important
decision when an Act of Louisiana passed in 1869 to give passengers
without regard to race or color equality of right in the
accommodations of railroad or street cars, steamboats or other water
crafts, stage coaches, omnibusses or other vehicles, was declared
unconstitutional so far as it related to commerce between States.[27]
Here a person of color had been discriminated against by a Mississippi
River navigation company which was called to answer before a United
States court for violating this act.
Giving the opinion of the court, Chief Justice Waite said: "We think
it may be safely said that State legislation which seeks to impose a
direct burden upon inter-state commerce, or to interfere directly with
its freedom does encroach upon the exclusive power of Congress. The
statute now under consideration in our opinion occupies that
position." "Inaction by Congress," the court held, "is equivalent to a
declaration that interstate commerce shall remain free and
untrammelled." This meant that the carrier was "at liberty to adopt
such reasonable rules and regulations for the disposition of
passengers upon his boat, while pursuing her voyage within Louisiana
or without, as seemed to him best for the interest of all concerned.
The statute under which this suit is brought, as construed by the
State court, seeks to take away from him that power so long as he is
within Louisiana, and while recognizing to the fullest extent the
principle which sustains a statute unless its unconstitutionality is
clearly established, we think this statute to the extent that it
requires those engaged in the transportation of passengers among the
several States to carry colored persons in Louisiana in the same cabin
with whites is unconstitutional and void. If the public good requires
such legislation it must come from Congress and not from the States."
Justice Waite here expressed his fear as to the delicate ground on
which he was treading in saying: "The line which separates the powers
of the States from this exclusive power of Congress is not always
distinctly marked, and oftentimes it is not easy to determine on which
side a particular case belongs. Judges not infrequently differ in
their reasons for a decision in which they concur. Under such
circumstances it would be a useless task to undertake to fix an
arbitrary rule by which the line must in all cases be located. It is
far better to leave a matter of such delicacy to be settled in each
case upon a view of the particular rights involved." Thus the way was
left clear to vary the principle of interpretation according to the
color of the citizens whose rights might be involved.
In view of the subsequent decisions in separate car cases, moreover,
the following portion of Justice Waite's opinion as to a clause in the
law involved in the case of _Hall_ v. _DeCuir_ is unusually
interesting. "It does not act," said he, "upon the business through
the local instruments to be employed after coming within the State,
from without or goes out from within. While it purports only to
control the carrier when engaged within the State it must necessarily
influence his conduct to some extent in the management of his business
throughout his entire voyage. We confine our decision to the statute
in its effect upon foreign and interstate commerce, expressing no
opinion as to its validity in any other respect."[28]
With the rapid expansion of commerce in the United States and the
consequent necessity for regulation both by the State and the United
States, no power of Congress was more frequently questioned than that
to regulate commerce and no litigant concerned in such constitutional
questions easily escaped the consequences of the varying
interpretation given this clause by the United States Supreme Court.
The court, of course, accepted as a general principle that there are
three spheres for the regulation of commerce, namely: that which a
State cannot invade, that which the State may invade, when Congress
has not interfered, and that which is reserved to the State in
conformity with its police power. But as late as 1886 the
nationalistic school found some encouragement in the decision of the
_Wabash, St. Louis and Pacific Railway Company_ v. _Illinois_[29]
given by Justice Miller. He said: "Notwithstanding what is there said,
that is, in the decisions of _Munn_ v. _Illinois; C. B. and Q. R. R.
Company_ v. _Iowa_, and _Peik_ v. _Chicago and N. W. R. R. Co._,[30]
this court held and asserted that it had never consciously held
otherwise, that a statute of a State intended to regulate or to tax,
or to impose any other restriction upon the transmission of persons or
property or telegraphic messages, from one State to another, is not
within the class of legislation which the States may enact in the
absence of legislation by Congress; and that such statutes are void
even as to the part of such transmission which may be within the
State." Chief Justice Waite, and Justice Bradley and Justice Gray,
however, dissented for various reasons.
In the _Louisville Railway Company_ v. _Mississippi_,[31] however, in
1899, the court, evidently yielding to southern public opinion,
reversed itself by the decision that an interstate carrier could not
run a train through Mississippi without attaching thereto a separate
car for Negroes and had the audacity to argue that this is not an
interference with interstate commerce.[32] To show how inconsistent
this interpretation was one should bear in mind that in _Hall_ v.
_DeCuir_ the court had held that this was exactly what a State could
not do in that the statute acted not upon business through local
instruments to be employed after coming into the State, but directly
upon business as it comes into the State from without or goes out from
within, although it purported only to control the carrier when engaged
within the State. It necessarily influenced the conduct of the carrier
to some extent in the management of his business throughout his
entire voyage. "No carrier of passengers," said the court in _Hall_ v.
_DeCuir_, "can conduct his business with satisfaction to himself, or
comfort to those employing him, if on one side of a State line his
passengers, both white and colored, must be permitted to occupy the
same cabin, and on the other to be kept separate. Uniformity in the
regulation by which he is to be governed from one end to the other of
his route is a necessity in his business, and to secure it, Congress,
which is untrammelled by State lines, has been invested with exclusive
legislative power of determining what such regulation should be."
Giving the opinion in the Mississippi case, however, Justice Brewer
said: "It has been often held by this court that there is a commerce
wholly within the State which is not subject to the constitutional
provision and the distinctions between commerce among the States and
the other class of commerce between citizens of a single State and
conducted within its limits exclusively is one which has been fully
recognized in this court, although it may not be always easy, where
the lines of these classes approach each other, to distinguish between
the one and the other."[33] He might have added some other comment to
the effect that this court will not definitely draw the line of
distinction between such classes of commerce since it desires to leave
adequate room for evasion, because it had been unusually easy to find
such a line in cases in which the rights of Negroes were concerned and
such definite interpretation might interfere with the rights of white
men. Justices Harlan and Bradley dissented on the grounds that the law
imposed a burden upon an interstate carrier in that he would be fined
if he did not attach an additional car for race discrimination, and
that the opinion was repugnant to the principles set forth in that of
_Hall_ v. _DeCuir_.
The United States Supreme Court finally reached the position of
following the decision of _Ex Parte Plessy_ which justified the
discrimination in railway cars on the grounds that it is not a badge
of slavery contrary to the Thirteenth Amendment. This decision, in
short, is: So long, at least, as the facilities or accommodations
provided are substantially equal, statutes providing separate cars for
the races do not abridge any privilege or immunity of citizens or
otherwise contravene the Fourteenth Amendment of the United States
Constitution. In such matters equality and not identity or community
of accommodations is the extreme test of conformity to the
requirements of the amendment. The regulation of domestic commerce is
as exclusively a State function as the regulation of interstate
commerce is a Federal function. The separate car law is an exercise of
police power in the interest of public order, peace and comfort. It is
a matter of legislative power and discretion with which Federal courts
cannot interfere.
In _Hennington_ v. _Georgia_,[34] it was later emphasized that it had
been held that legislative enactments of the States, passed under the
admitted police powers, and having a real relation to the domestic
peace, order, health, and safety of their people, but which by their
necessary operation, affect, to some extent, or for a limited time,
the conduct of commerce among the States, are yet not invalid by force
alone of the grant of power of Congress to regulate such commerce;
and, if not obnoxious to some other constitutional provision or
destructive of some right secured by the fundamental law, are to be
respected in the courts of the Union until they are superseded and
displaced by some act of Congress passed in execution of power granted
to it by the Constitution. Of course, there was no other provision to
which such laws could be contrary after the Supreme Court had whittled
away the war amendments.
In the case of _Plessy_ v. _Ferguson_[35] the most inexcusable
inconsistency of the court was shown when the persons of color
aggrieved attacked the separate car law of Louisiana on the ground
that it conflicted with the Fourteenth Amendment. Giving the opinion
of the court, Justice Brown said: "So far, then, as a conflict with
the Fourteenth Amendment is concerned, the case reduces itself to the
question whether the statute of Louisiana is a reasonable regulation,
and with respect to this there must necessarily be a large discretion
on the part of the legislature. In determining the question of
reasonableness it is at liberty to act with reference to the
established usages, customs and traditions of the people, and with a
view to the promotion of the public peace and good order. Gauged by
this standard, we cannot say that a law which authorizes or even
requires the separation of the two races in public conveyances is
unreasonable, or more obnoxious to the Fourteenth Amendment than the
acts of Congress requiring separate schools for colored children in
the District of Columbia, the constitutionality of which does not seem
to have been questioned or the corresponding acts of State
legislatures."
Justice Harlan dissented, saying that he was of the opinion that the
Statute of Louisiana is inconsistent with personal liberty of white
and black in that State and hostile to both in the letter and spirit
of the Constitution of the United States. Justice Harlan rightly
contended that laws can have no regard to race according to the
Constitution. If they do, they conflict with the rights of State and
national citizenship and with personal liberty. The Thirteenth and
Fourteenth Amendments removed race from our governmental system. But
what has the court to do with the policy or expediency of legislation?
"A statute may be valid, and yet upon grounds of public policy, may
well be characterized as unreasonable." Accordingly Mr. Sedgwick, a
distinguished authority, says: "The Courts have no other duty to
perform than to execute the legislative will, without regard to their
views as to the wisdom or justice of the particular enactment."
"Statutes," said Justice Harlan, "must always have a reasonable
construction. Sometimes they are to be construed strictly; sometimes,
liberally, in order to carry out the legislative will. But, however
construed, the intent of the legislature is to be respected."
The decisions in the cases of _M. K. and T. Railway_ v. _Haber_[36]
and _Crutcher_ v. _Kentucky_,[37] are of some importance. In these
cases the court reiterated the doctrine that the regulation of the
enjoyment of the relative rights and the performance of the duties, of
all persons within the jurisdiction of a State belong primarily to
such a State under its reserved power to provide for the safety of all
persons and property within its limits; and that even if the subject
of such regulations be one that may be taken under the exclusive
control of Congress, and be reached by national legislation, any
action taken by the State upon that subject that does not directly
interfere with rights secured by the Constitution of the United States
or by some valid act of Congress, must be respected until Congress
intervenes.[38] The court by this time, however, had all but held that
the Constitution secured to the Negro no civil or political rights
except that of exemption from involuntary servitude, and that law for
the Negro is the will of the white man.
Further development of the doctrine as to the right of the State to
deprive a Negro of citizenship is brought out in the _Lauder
Case_.[39] The case was this: Lauder's wife purchased a first class
ticket from Hopkinsville to Mayfield, both places within the State of
Kentucky. She took her place in what was called the "ladies' coach"
and was ejected therefrom by the conductor and assigned a seat in a
smoking car, which was alleged to be small, badly ventilated, unclean
and fitted with greatly inferior accommodations. This road ran from
Evansville, Indiana, to Hopkinsville, Kentucky. It was held in the
Court of Appeals that the decision of the United States Supreme Court
in _Louisville, New Orleans and Railway_ v. _Mississippi_[40] and
_Plessy_ v. _Ferguson_[41] was conclusive of the constitutionality of
the act so far as the plaintiffs were concerned; and that the mere
fact that the railroad extended to Evansville, in the State of
Indiana, could in no wise render the statute in question invalid as to
the duty of the railroad to respect it.
In the case of _Chesapeake and Ohio Railway Company_ v.
_Kentucky_,[42] this doctrine was carried to its logical conclusion.
The question was whether a proper construction of the separate car law
confines its operation to passengers whose journeys commence and end
within the boundaries of the State or whether a reasonable
interpretation of the act requires Negro passengers to be assigned to
separate coaches when traveling from or to points in other States. In
other such cases the Supreme Court of the United States had
interpreted the local law as applying only to interstate commerce. The
language of the first section of the Kentucky statute made it very
clear that it applied to all carriers. The first section of the
Kentucky law follows:
"Any railroad company or corporation, person or persons, running
or otherwise operation of railroad cars or coaches by steam or
otherwise, in any railroad line or track within this State, and
all railroad companies, person or persons, doing business in this
State, whether upon lines or railroads owned in part or whole, or
leased by them; and all railroad companies, person or persons,
operating railroad lines that may hereafter be built under
existing charters, or charters that may hereafter be granted in
this State; and all foreign corporations, companies, person or
persons, organized under charters granted, or that may be
hereafter granted by any other State, who may be now, or may
hereafter be engaged in running or operating any of the railroads
of this State, whether in part or whole, are hereby required to
furnish separate coaches or cars for travel or transportation of
the white and colored passengers on their respective lines of
railroad."
Any sane man can see that this law undertook to regulate interstate
commerce. Justice Brown, however, tried to square the opinion with
that of the Kentucky Supreme Court, upholding the law on the grounds
that it was constitutional in as much as it applied only to intrastate
passenger traffic, although the law plainly applies also to interstate
traffic.
Speaking further for the court, Justice Brown said: "Indeed we are by
no means satisfied that the Court of Appeals did not give the correct
construction to this statute in limiting its operation to domestic
commerce. It is scarcely courteous to impute to a legislature the
enactment of a law which it knew to be unconstitutional and if it were
well settled that a separate coach law was unconstitutional, as
applied to interstate commerce, the law applying on its face to _all_
passengers should be limited to such as the legislature were competent
to deal with. The Court of Appeals has found such to be the intention
of the General Assembly in this case, or at least, that if such were
not its intention, the law may be supported as applying alone to
domestic commerce. In thus holding the act to be severable it is
laying down a principle of construction from which there is no
appeal."
"While we do not deny the force of the railroad's argument in this
connection, we cannot say that the General Assembly would not have
enacted this law if it had supposed it applied only to domestic
commerce; and if it were in doubt on that point, we should
unhesitatingly defer to the opinion of the Court of Appeals, which
held that it would give it that construction if the case called for
it. In view of the language above quoted it would be unbecoming for us
to say that the Court of Appeals would not construe the law as
applicable to domestic commerce alone, and if it did, the case would
fall directly within the _Mississippi Case_.[43] We, therefore, feel
compelled to give it that construction ourselves and so construe it
that there can be no doubt as to its constitutionality." Here we have
a plain case of the United States Supreme Court declaring an act
severable because thereby it could apparently justify as
constitutional a measure depriving the Negroes of civil and political
rights, whereas in some other cases it has held other acts not
severable to reach the same end.
The court continued its reactionary course. In _Chiles_ v. _Chesapeake
and Ohio R. R. Company_[44] the court reiterated that "Congressional
inaction is equivalent to a declaration that a carrier may, by its
regulations, separate white and Negro interstate passengers. In
_McCabe_ v. _Atchinson, Topeka and Santa Fe Railway Company_,[45]
Justice Hughes giving the opinion of the court, followed the _Plessy_
v. _Ferguson_ decision. He did not believe, moreover, "that the
contention that an act though fair on its face may be so unequally and
oppressively administered by the public authorities as to amount to an
unconstitutional discrimination by the State itself, is applicable
where it is the administration of the provisions of a separate coach
law by carriers, which is claimed to produce the discrimination. The
separate coach provisions of Oklahoma[46] apply to transportation
wholly intrastate in absence of a different construction by State
courts and do not contravene the commerce clause of the Federal court.
The court held, however, that so much of the Oklahoma separate coach
law as permits carriers to provide sleeping cars, dining cars, and
chair cars for white persons, and to provide no similar accommodations
for Negroes, denies the latter the equal protection of the laws
guaranteed by the Constitution.
The most recent case, that of the _South Covington and Cincinnati
Street Railway, Plaintiff in error_ v. _Commonwealth of Kentucky_
shows another step in the direction of complete surrender to caste.
This company was a Kentucky corporation, each of the termini of the
railroad of which was in Kentucky. The complainant hoped to prevent
the segregation of passengers carried from Ohio into Kentucky. The
decision was that a Kentucky street railway may be required by statute
of that State to furnish either separate cars or separate compartments
in the same car for white and Negro passengers although its principal
business is the carriage of passengers in interstate commerce between
Cincinnati, Ohio, and Kentucky across the Ohio River. Such a
requirement affects interstate commerce only incidentally, and does
not subject it to unreasonable demands. In other words, this
inconvenience to the carrier is not very much and the humiliation and
burden which it entails upon persons of color thus segregated should
not concern the court, although they are supposed to be citizens of
the United States.
Justice Day dissented and Justices Van DeVanter and Putney concurred
on the ground that the attachment of a different car upon the Kentucky
side on so short a journey would burden interstate commerce as to cost
and in the practical operation of the traffic. The provision for a
separate compartment for the use of only interstate Negro passengers
would lead to confusion and discrimination. The same interstate
transportation would be subject to conflicting regulation in the two
States in which it is conducted. They believed that it imposed an
unreasonable burden and according to the dissentients was, therefore,
void.
JUSTICE IN THE COURTS.
One of the most important constitutional rights denied the Negroes is
that of justice in the courts. In as much as their former masters felt
enraged against the freedmen because of their sudden release from
bondage, they too often perpetrated upon the freedmen crimes for which
the Negro had no redress in courts, for white persons constituted the
accusers, the prosecutors, the judges, and the juries. Immediately
following the Civil War, before the amendments of the Constitution
enacted in the special behalf of the race were effected, Negroes were
by the Black Codes deprived of all of the rights of citizens and
nothing bore more grievously upon them than the deprivation of the
right to serve on juries. Some States had special laws carrying out
this prohibition. The first case of consequence requiring an
interpretation of the State law to this effect was that of _Strauder_
v. _West Virginia_,[47] already mentioned above. In this case the
court took high constitutional ground. It was held that "a law of West
Virginia limiting to white persons, twenty-one years of age and
citizens of the State, the right to sit upon juries, was a
discrimination which implied a legal inferiority in civil society,
which lessened the security of the right of the colored race, and was
a step toward reducing them to a condition of servility." The right of
a man of color that, in the selection of jurors to pass upon his life,
liberty, and property, there shall be no exclusion of his race and no
discrimination against them because of color, was asserted in a number
of cases, to wit: _Virginia_ v. _Rives_,[48] _Neal_ v. _Delaware_,[49]
_Gibbons_ v. _Kentucky_.[50]
In the case of _Bush_ v. _The Commonwealth of Kentucky_[51] the Negro
faced an additional difficulty in that the court held that wherein
there was no specific law excluding persons from service upon juries
because of their race or color, that the petitioner would have to show
evidence to that effect. In the case of _Smith_ v. _The State of
Mississippi_[52] it was held that the omission or refusal of officers
to include Negro citizens in the list from which jurors might be drawn
is not, as to a Negro subsequently brought to trial, a denial of equal
protection of laws. In the case of _Murray_ v. _The State of
Louisiana_[53] the decision was that the fact that a law confers on
the jury commissioners judicial power in the selection of citizens for
jury service, does not involve a conflict with the Fourteenth
Amendment of the Constitution of the United States, although in the
exercise of such power they might not select Negroes for jury service.
The case of _Williams_ v. _Mississippi_ was more interesting. The law
of that State prescribed the qualifications of voters and of grand and
petit juries and invested the administrative officers with a large
discretion in determining what citizens have the necessary
qualifications. As it appeared that in the use of their discretion
they would exclude Negroes from such juries it was contended that the
act of Mississippi was a violation of the Fourteenth Amendment. The
court held, however, that the Mississippi law could not be held
repugnant to the Fourteenth Amendment merely on a showing that the law
might operate as a discrimination against the Negro race, in absence
of proof of an actual discrimination in the case under consideration.
This ground has often proved convenient for the Supreme Court of the
United States in dodging the question whether or not the Negroes must
be protected in the rights guaranteed them by the Constitution.
This case was decided in 1897 and two years later Mr. Justice Gray,
giving the opinion of the court in the case of _Carter_ v.
_Texas_,[54] said that the exclusion of all persons of African race
from a grand jury which finds an indictment against a Negro in a State
court, when they are excluded solely because of their race or color
denies him the equal protection of the laws in violation of the
Fourteenth Amendment of the Constitution of the United States, whether
such exclusion is done through the action of the legislature, through
the courts, or through the executive or administrative officers of the
State. This was substantially the position taken in the case of
_Strauder_ v. _West Virginia_ twenty years earlier.
The Negroes received some encouragement, too, from the decision of
_Rogers_ v. _Alabama_.[55] It was held that there had been a denial of
the equal protection of the laws by a ruling of a State court upon the
motion to quash an indictment on account of the exclusion of Negroes
from the grand jury list, which motion, though because of its being in
two printed octavos, was struck from the files under the color of
local practice for prolixity, contained an allegation that certain
provisions of the newly adopted State constitution, claimed to have
the effect of disfranchising Negroes because of their race, when such
action worked as a consideration in the minds of the jury
commissioners in reaching their decision. The court held in _Martin_
v. _The State of Texas_, however,[56] that a discrimination against
Negroes because of their race in the selection of grand or petit
jurors as forbidden by the Fourteenth Amendment is not shown by
written motion to quash, respectively, the indictment of the panel of
petit jurors, charging such discrimination where no evidence was
introduced to establish the facts stated in the omissions. It is not
sufficient merely to prove that no persons of color were on the jury.
As certain States wished to make the government further secure in the
elimination of Negroes from juries, after making the qualifications
for voters unusually rigid so as to exclude persons of African
descent, they easily established the same qualifications for jurors,
to relieve persons of color also from that service. In the case of
_Franklin_ v. _South Carolina_[57] the court held that there was no
discrimination against Negroes because of their race in the selection
of the grand jury made by the laws of South Carolina,[58] giving the
jury commissioner the right to select electors of good moral character
such as they may deem qualified to serve as jurors, being persons of
sound mind and free from all legal exceptions. A motion, therefore, to
quash an indictment against a Negro for disqualification of the grand
jurors who must be electors, because of a change in the State
constitution of South Carolina respecting the qualifications of
electors, did not violate the Act of Congress, June 25, 1868, and,
therefore, did not present to the Supreme Court of the United States a
question of a denial of Federal right where there is nothing in the
record to show that the grand jury as actually impaneled contained any
person who was not qualified as an elector under the earlier State
constitution, which was, according to the allegation, so made up as to
exclude Negroes on account of their color. The Supreme Court of the
United States then took no account of the intent or the spirit of the
law maker as this tribunal had been accustomed to do in cases of
constitutional import and left upon the Negro the burden of performing
the difficult task of showing that he had been discriminated against
on account of his color when the discrimination could be easily
effected without the possibility of his actually producing any
evidence that on the face of itself could convince the court.
SUFFRAGE
As already mentioned above the Negroes during this period were
struggling to retain the right of suffrage and, of course, were
attacking in the courts those restrictions primarily directed toward
the elimination of the Negroes from the electorate. The Supreme Court
of the United States generally shrank from these cases by disclaiming
jurisdiction. In _Ex Parte Siebold_,[59] _Ex Parte Yarborough_,[60]
and _In re Coy_,[61] however, the general jurisdiction of Federal
courts over matters involved in the election of national officers was
affirmed. The court held that it had jurisdiction in the election case
in _Wiley_ v. _Sinkler_,[62] when there was brought an action to
recover damages of an election board for wilfully rejecting a
citizen's vote for a member of the House of Representatives. In
_Swafford_ v. _Templeton_[63] a suit was brought for damages for the
alleged wrongful refusal by the defendants at an election of officers
to permit the plaintiff to vote at a national election for a member of
the House of Representatives. It was held that the court had
jurisdiction.
From the Supreme Court of the United States, however, the Negroes
received little encouragement, in as much as the right of suffrage,
with its requirements of property ownership and the literacy test,
could be withheld from the Negro without specifically discriminating
against any one on account of race or color. In _Southy_ v.
_Virginia_, 181 U. S., Revised Statutes, of the United States, Cont.
St. 1901, pages 37-42, providing that every person who prevents,
hinders, controls or intimidates another from exercising the right of
suffrage, to whom that right is guaranteed by the Fifteenth Amendment
of the Constitution of the United States, by means of bribery, etc.,
shall be punished, was held invalid as it was considered to be beyond
the constitutional power of Congress to act in such a case except in
that of race discrimination. If the discrimination is in a State or
municipal election, however, Congress may intervene, if the
discrimination is shown, but not until then.
In the case of _Giles_ v. _Harris_[64] there was brought to the
Supreme Court a bill in equity, complaining that Negroes qualified to
vote for members of Congress had been refused on account of their
color by virtue of the Alabama constitution, whereas white men were
registered to vote at such an election. Relief was asked for on the
basis of the Revised Statutes, Sec. 1979, praying that the Supreme
Court should order that the petitioner be registered and declare null
and void the special clause of the Alabama constitution. The court
answered this petition with certain observations disclaiming
jurisdiction largely for "want of merit in the averments which were
made in the complaint as to the violation of Federal rights."
The court held that if the registrars acting at this election in
Alabama had no authority under the new constitution, which the
petitioner prayed that the court might declare null and void, they
could not legally register the plaintiff. If they had authority, they
were within their right to use their discretion. If this clause in the
constitution should be struck down according to the prayer of the
plaintiff, there would be no board to which the mandamus could be
issued. The Supreme Court, therefore, held that no damage had been
suffered because no refusal to register by a board constituted in
defiance of the Federal Constitution could disqualify a legal voter
otherwise entitled to exercising the electorate franchise, since this
amounts to a decision upon an independent non-Federal ground
sufficient to sustain the judgment without reference to the Federal
question presented. It observed, moreover, that the bill imported that
the great mass of the white population intended to keep the blacks
from voting. To meet such an intent something more than ordering the
plaintiff named to be inscribed upon the lists of 1902 would be
needed.
Giving his dissenting opinion in this case, Justice Brewer showed that
"although the statute and these decisions thus expressly limit the
range of inquiry to the question of jurisdiction, it was held that
there is a constitutional question shown in the pleadings. The
certificate, therefore, might be ignored and the entire case presented
to the court for consideration.... Hence every case coming up on a
certificate of jurisdiction may be held to present a constitutional
question and be open for full inquiry in respect to all matters
involved." Brewer would not assent to the proposition that the case
presented was not a strictly legal one and entitling a party to a
judicial hearing and decision. "He is a citizen of Alabama entitled to
vote. He wanted to vote at an election for a Representative in
Congress. Without registration he could not, and registration was
wrongfully denied him. That many others were thus treated does not
deprive him of his right or deprive him of relief." Justice Harlan
dissented also giving practically the same argument as that of Justice
Brewer. He observed: "The court in effect says that although it may
know that the record fails to show a case within the original
cognizance of the Circuit Court, it may close its eyes to that fact,
and review the case on its merit." In view of the adjudged cases, he
could not agree that the failure of parties to raise a question of
jurisdiction relieved this court of its duty to raise it upon its own
motion.
There was thereafter presented a petition for modification of judgment
and for a rehearing June 1, 1903. The court ordered the decree of
affirmance changed adding these words: "So far as such decree orders
that the petition be dismissed, but without prejudice to such further
proceedings as the petitioner may be advised to make."
The case of _Giles_ v. _Teasley_[65] was, to some extent, of the same
sort. A Negro of Alabama who had previously been a voter and who had
complied with the reasonable requirements of the board of
registration, was refused the right to vote, for, as he alleged, no
reason other than his race and color, the members of the board having
been appointed and having acted under the provision of the State
constitution of 1901. He sued the members of the board for damages and
for such refusal in an action, and applied for a writ of mandamus to
compel them to register him, alleging in both proceedings the denial
of his rights under the Federal Constitution and that the provisions
of the State Constitution were repugnant to the Fifteenth Amendment.
The complaint had been dismissed on demurrer and the writ refused, the
highest court of the State holding that if the provisions of the
constitution were repugnant to the Fifteenth Amendment, they were void
and that the board of registers appointed thereunder had no existence
and no power to act and would not be liable for a refusal to register
him, and could not be compelled by writ of mandamus to do so; that if
the provisions were constitutional, the registrars had acted properly
thereunder and their action was not reviewable by the courts.
"The right of the Supreme Court to review the decisions of the highest
court of a State," said the national tribunal, "is even in cases
involving the violations by the provisions of a State constitution of
the Fifteenth Amendment, circumscribed by rules established by law,
and in every case coming to the court on writ of error or appeal the
question of jurisdiction must be answered whether propounded by the
counsel or not. Where the State court decided the case for reasons
independent of the Federal right claimed its action is not reviewable
on writ of error by the United States Supreme Court." It was held that
the writs of error to this court should be dismissed, as such
decisions do not involve the adjudication against the plaintiff in
error of a right claimed under the Federal Constitution but deny the
relief demanded on grounds wholly independent thereof." In _Wiley_ v.
_Sinkler_, and _Swafford_ v. _Templeton_, the registrars were legally
averred to be qualified.[66]
In the Maryland case of _Pope_ v. _Williams_[67] the court further
explained its position. While the State cannot restrict suffrage on
account of color, the privilege is not given by the Federal
Constitution, nor does it spring from citizenship of the United
States. While the right to vote for members of Congress is derived
exclusively from the law of the State in which they are chosen but has
its foundation in the laws and Constitution of the United States, the
elector must be one entitled to vote under its statute. A law,
therefore, requiring a declaration of intention to become citizens
before registering as voters of all persons coming from without
Maryland is not a violation of the Constitution.
In the case of _Guinn_ v. _United States_[68] the court held that the
literacy test was legal and not subject to revision but in this clause
of the constitution that part of a section providing for literacy was
closely connected with the so-called grandfather clause that the
United States Supreme Court declared both unconstitutional as it did
in the case also of _Myers_ v. _Anderson_,[69] coming from Annapolis,
Maryland, and in the case of _The United States_ v. _Mosely_, from
Oklahoma.[70] The clause referred to follows:
"No person shall be registered as an elector of this State or be
allowed to vote in any election herein, unless he be able to read
and write any section of the Constitution of the State of
Oklahoma; but no person who was on January 1, 1866, or at any
time prior thereto, entitled to vote under any form of
government, or who at that time resided in some foreign nation,
and no lineal descendant of such person, shall be denied the
right to register and vote because of his inability to read and
write sections of such constitution. Precinct election inspectors
having in charge the registration of electors shall enforce the
provisions of this section at the time of registration, provided
registration be required. Should registration be dispensed with,
the provisions of this section shall be enforced by the precinct
officer when electors apply for ballots to vote."
The court held that this was a standard of voting which on its face
was in substance but a revitalization of conditions which when they
prevailed in the past had been destroyed by the self-operative force
of the Thirteenth Amendment.
EDUCATIONAL PRIVILEGES
These suffrage laws left the Negroes in an untoward situation for the
reason that there was little hope that, with the educational
facilities afforded them, that they would soon be able to meet the
same requirement of literacy as that which might not embarrass the
whites offering themselves as jurors and electors. The States upheld
in their action by the United States Supreme Court, had shifted from
their shoulders the burden of the uplift of the Negro by the ingenious
doctrine that equal accommodations did not mean identical
accommodations and that the spirit and the letter of the law would be
complied with by providing separate accommodations for Negroes. In the
end, however, separate accommodations turned out to be in some cases
no accommodations at all.
This was the situation as it was brought out in the case of _Cumming_
v. _The Board of Education of Richmond County_.[71] It appeared that a
tax for schools had been levied in this district. The Negroes objected
to paying that portion of the tax which provided for the maintenance
of a high school, the benefits of which they were denied, when there
was no high school provided for them. The board of education of
Richmond County had maintained a high school for Negroes but abolished
it. The petitioner prayed, therefore, that an injunction be granted
against the collection of such portion of the school tax as was used
for the maintenance of said high school. The defendant set up the plea
that it had not established a white high school, but had merely
appropriated some money to assist a denominational high school for
white children, saying "that it had to choose between maintaining the
lower schools for a large number of Negroes and providing a high
school for about sixty." The board of education, declared, moreover,
that the establishment of a Negro high school was merely postponed.
The opinion of the court was that a decision by a State court, denying
an injunction against the maintenance by a board of education of a
high school for white children, while failing to maintain one for
Negro children also, for the reason that the funds were not sufficient
to maintain it in addition to needed primary schools for Negro
children, does not constitute a denial to persons of color of the
equal protection of the law or equal privileges of citizens of the
United States. The court held that under the circumstances disclosed
it could not say that this action of the State court was, within the
meaning of the Fourteenth Amendment, a denial by the State to the
plaintiffs and to those associated with them of the equal protection
of the laws, or of any privileges belonging to them as citizens of the
United States. While the court admitted that the benefits and burdens
of public taxation must be shared by citizens without discrimination
against any class on account of their race, it held that the education
of people in schools maintained by State taxation is a matter
belonging to the respective States, and any interference on the part
of Federal authority with the management of such schools cannot be
justified except in case of a clear unmistakable disregard of rights
secured by the supreme law of the land.
This is downright sophistry. To any sane man it could not but be
evident that this was an "unmistakable disregard of rights secured by
the Supreme law of the land." The school authorities had separated
white and Negro children for purposes of education on account of race
and had, moreover, refused to grant the Negro children the facilities
equal to those of the white. The State, in the first place, in
establishing separate schools on the basis of race, violated a right
guaranteed the Negro race by the Constitution of the United States,
and the board of education of Richmond County violated still another
in failing to provide for the Negroes the same facilities for high
school education as those furnished the whites while taxing all
citizens without regard to race. It is true that the Federal
Government cannot generally interfere in matters of police regulation
of persons and property in the States but when the matter of race is
introduced the national authority is thoroughly competent within the
Constitution to restrain such local government or any group of persons
so authorized by such government. It would have been unwise for the
court to enjoin the collection of such a tax but it could have on the
constitutional points raised in this case declared invalid laws
separating the races for purposes of education.
The sophistry of the Supreme Court in seeking to justify its refusal
to maintain the rights of the Negro to education is still more evident
from its opinion in the case of _Berea College_ v. _The Commonwealth
of Kentucky_, decided in 1908. Berea College was established in 1856
by a group of antislavery Kentucky mountaineers, led by John G. Fee,
desiring to bring up their children in the love of free institutions.
There were no Negro students prior to the Civil War but a few Negro
soldiers were admitted on returning home from the front in their
uniforms and members of the race were thereafter welcomed at Berea. In
the course of time, however, this coeducation of the races became very
distasteful to the State of Kentucky with its decided increase in race
prejudice necessitating in their economy a thorough proscription of
the Negro race. In 1904, therefore, the State of Kentucky enacted a
law against persons and corporations maintaining schools for both
white persons and Negroes.
Feeling that its charter was violated by this law and also that it
infringed upon the rights guaranteed the Negro in the Constitution of
the United States, Berea College attacked the validity of this measure
in the inferior courts and finally in the Supreme Court of the United
States. The plaintiff unanswerably contended that this Kentucky law
abridged one's privileges and immunities, in violation of the
Fourteenth Amendment of the Constitution of the United States, which
was a limitation on the police power of the State when it brings in
the matter of race. It further contended that the Constitution makes
no distinction between races and that the Fourteenth Amendment is not
only to protect Negroes but to protect white persons in the enjoyment
of their rights. The plaintiff admitted that social equality could not
be enforced by legislation but contended that voluntary social
equality of persons cannot be constitutionally prohibited, unless it
is shown that such is immoral, disorderly, or for some other reason so
palpably injurious to the public welfare as to justify direct
interference with the personal liberty of the citizens.
Evidently wishing to find some ground upon which it could base its
opinion upholding the Supreme Court of Kentucky which had sustained
this statute, the Supreme Court of the United States fell back upon
various principles of interpretation. The court said it would not
disturb the judgment of the State court resting on Federal or
non-Federal grounds, if the latter was sufficient to sustain the
decision in as much as the State court determines the extent of the
limitations of powers conferred by the State on its corporations. It
directed attention to the fact that a corporation is not entitled to
all the immunities to which individuals are entitled and a State may
withhold from its corporations privileges and powers of which it
cannot constitutionally deprive individuals. A State statute limiting
the powers of corporations and individuals may be constitutional as to
the former, although unconstitutional as to the latter; and if
separable it will not be held unconstitutional in the instance of a
corporation unless it clearly appears that the legislature would not
have enacted it as to corporations separately. "The same rule,"
continues the court, "which permits separable sections of a statute to
be declared unconstitutional without rendering the entire statute void
applies to separable provisions of a section of a statute. In coming
to the assistance of the Supreme Court of Kentucky the national
tribunal said the prohibition of Kentucky against persons and
corporations maintaining schools for both white persons and Negroes is
separable and, even if an unconstitutional restraint as to
individuals, is not unconstitutional as to corporations, it being
within the power of the State to determine the powers conferred upon
its corporations.
The court conceded that the reserve power to alter, or amend charters
is subject to reasonable limitations but insisted that the Kentucky
law includes no alteration or amendment which defeats or substantially
impairs the object of the grant of vested rights. The court then went
almost out of its way to say that "a general statute which in effect
alters or amends a charter is to be construed as an amendment for all
even if not in terms so designated. The court conceded that a statute
which permits the education of both whites and Negroes at the same
time in different localities, although prohibiting their attendance in
the same place, does not defeat the object of a grant to maintain the
college for all persons and is not violative of the contract clause of
the Federal Constitution, the State law having reserved the right to
repeal, alter and amend charters.
Justice Harlan dissented. He referred to the fact that the court held
also, in _Huntington_ v. _Werthen_,[72] that if one provision of a
statute be invalid the whole act will fall, where "it is evident the
legislature would not have enacted one of them without the other."
Harlan meant to say here that to construe this law as applying only to
corporations and not to individuals would give it an interpretation
that the legislature never had in mind. The intention of the State
legislature was to prevent all coeducation of Negroes and whites
whether it should be done by persons or corporations. The whole law,
therefore, should fall. Justice Harlan conceded that a State reserved
the right to repeal the charter but it was not repealed by this act.
The statute did not purport even to amend the charter of any
particular corporation but assumed to establish a certain rule
applicable alike to all individuals, associations, or corporations
that teach the white and black races together in the same institution.
This decision of the United States Supreme Court was then nothing more
than "fine sophistry" to sanction an arbitrary invasion of the rights
of liberty and property guaranteed by the Fourteenth Amendment.
Justice Harlan contended that if the giving of instruction is not a
property right, it is one's liberty. Exposing the sophistry of the
court he remarked that if the schools must be subjected to such
segregation, why not also the Sabbath Schools and Churches? "If States
can prohibit the coeducation of the whites and blacks it may prohibit
the association of the Anglo-Saxons and Latins; of the Christians and
the Jews. Have we become so inoculated with prejudice of race,"
continued Justice Harlan, "that an American government, professedly
based on the principles of freedom, and charged with the protection of
all citizens alike, can make distinctions between such citizens in the
matter of their voluntary meeting for innocent purposes simply because
of their respective races? Further if the lower court be right, then a
State may make it a crime for white and colored persons to frequent
the same market places, at the same time, or appear in an assembly of
citizens convened to consider questions of a public or political
nature in which all citizens without regard to race, are equally
interested."
THE RIGHT TO LABOR
Although the Negro by these various decisions of the Supreme Court of
the United States had been deprived of rights essential to freedom and
citizenship in matters of voting, service upon juries, education, and
the use of common carriers, there remained even another right which
was to be infringed upon without the hope of any redress from the
United States Supreme Court. This was the right to contract, to labor.
Every honest man should live by his own labor and it is a well
established principle of democratic government, that in the exercise
of this right the individual should be free not only from interference
on the part of the government but should enjoy protection from
individuals subject to the government. Because of the development of
race prejudice into a flame of bitter antagonism among the laboring
men during the period of commercial expansion in the United States
since the Reconstruction period, the country has been all but
thoroughly organized through trades unions, so as to restrict the
Negro to menial service by written constitutions in keeping with the
caste which has so long figured conspicuously in American
institutions.
Negroes sought redress in the courts and finally in the United States
Supreme Court, the best case in evidence being that of _Hodges_ v.
_United States_.[73] In this case came a complaint from certain
Negroes in Arkansas laboring in the service of an employer according
to a contract. Because of their color certain criminals in that
community conspired to injure, oppress, threaten and intimidate them,
resulting in the severance of their connection with this employer and
the consequent economic loss resulting therefrom. The Negroes thus
complaining brought this case to the United States Supreme Court
contending that a remedy for this evil was to be found in the revised
statutes of the United States Senate, Sections 1977, 1979, 5508, and
5510. These sections follow in the order of their importance:
_Section 5508._ If two or more persons conspire to injure,
oppress, threaten or intimidate any citizen in the free exercise
or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his
having so exercised the same; or if two or more persons go in
disguise on the highway, or on the premises of another, with
intent to hinder his free exercise or enjoyment of any right or
privilege so secured, they shall be fined not more than five
thousand dollars and imprisoned not more than ten years, and
shall, moreover, be thereafter ineligible to any office, or place
of honor, profit or trust created by the Constitution or laws of
the United States.
Other statutes referred to but not so vital were:
_Section 1977._ All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to
make and enforce contracts, to sue the parties, give evidence,
and to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to
no other.
_Section 1978._ All citizens of the United States shall have the
same right in every State and territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.
_Section 1979._ Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citizen of
the United States or other persons within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities, secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
_Section 5510._ Every person who, under color of any law,
statute, ordinance, regulation, or custom, subjects or causes to
be subjected, any inhabitant of any State or Territory to the
deprivation of any right, privilege, or immunities, secured or
protected by the Constitution and laws of the United States or to
different punishments, pains or penalties, on account of such
inhabitants being an alien, or by reason of his color, or race,
than are prescribed for the punishment of citizens, shall be
punished by a fine of not more than one thousand dollars or by
imprisonment not more than one year, or by both.
The decision in this case was in substance that Congress cannot make
it an offense against the United States for individuals to combine or
conspire to prevent even by force, citizens of African descent, solely
because of their race, from earning a living, although the right to
earn one's living in all legal ways and to make lawful contracts in
reference thereto is a vital point of freedom established by the
Constitution. Section 5508 had been upheld in _Ex Parte
Yarborough_,[74] and in the case of _Logan_ v. the _United States_[75]
the court referred to this section as having been upheld in _Ex Parte
Yarborough_. In _United States_ v. _Reese_, moreover,[76] Justice
Waite said in 1875, speaking for the court, "The rights and immunities
created by or dependent upon the Constitution of the United States can
be protected by Congress. The form and the manner of the protection
may be such as Congress in the legitimate exercise of its legislative
discretion shall provide. This may be varied to meet the necessities
of the particular right to be protected."
"The whole scope and effect of this series of decisions," continued
the court, "was that, while certain fundamental rights recognized and
declared but not granted or created, in some of the amendments to the
Constitution are thereby guaranteed only against violation or
abridgement by the United States, or by the States, as the case may
be, and cannot, therefore, be affirmatively enforced by Congress
against unlawful causes of individuals; yet that every right created
by, arising under, or dependent upon the Constitution of the United
States may be protected and enforced by Congress by such means and in
such manner as Congress in the exercise of the correlative duty of
protection, or of the legislative powers conferred upon it by the
Constitution, may in its discretion deem most eligible and best
adopted to attain the object." This doctrine was sustained also by the
decision in the case of _United States_ v. _Waddell_,[77] and _Motes_
v. _United States_.[78] Here it was emphatically stated that Congress
might pass any law necessary or proper for carrying out any power
conferred upon it by the Constitution.
The court here, however, evaded the real question as before, dodging
behind the doctrine that while a State or the United States could not
abridge the privileges and immunities of citizens, individuals or
groups of individuals may do so and Congress has no power to interfere
in such matters since these come within the police power of the State.
In other words, the government cannot discriminate against the Negro
itself, but it can establish agencies with power to do it. It is not
surprising that Justice Harlan dissented, feeling as he had on former
occasions that this decision permitted the States and groups of
individuals supposedly subject to the government of those States to
fasten upon the Negro badges or incidents of slavery in violation of
the civil rights guaranteed him by the Thirteenth and Fourteenth
Amendments. He believed that Congress had the right to pass any law to
protect citizens in the enjoyment of any right granted him by
Congress. The duty of the Federal government as Justice Harlan saw it
was very clear in that the State had caused the race question to be
injected therein and in such a case Congress always has power to act.
On the whole, however, the United States Supreme Court has not yet had
the moral courage to face the issue in cases involving the
constitutional rights of the Negro. Not a decision of that tribunal
has yet set forth a straightforward opinion as to whether the States
can enact one code of laws for the Negroes and another for the other
elements of our population in spite of the fact that the Constitution
of the United States prohibits such iniquitous legislation. In cases
in which this question has been frankly put the court has wiggled out
of it by some such declaration as that the case was improperly
brought, that there were defects in the averments, or that the court
lacked jurisdiction.
In the matter of jurisdiction the United States Supreme Court has been
decidedly inconsistent. This tribunal at first followed the opinion
of Chief Justice John Marshall in the case of _Osborn_ v. _United
States Bank_,[79] that "when a question to which the judicial power of
the United States is extended by the Constitution forms an ingredient
of the original cause it is in the power of Congress to give the
Circuit Courts the jurisdiction of that cause, although other
questions of fact or of law may be involved." Prior to the rise of the
Negro to the status of so-called citizenship the court built upon this
decision the prerogative of examining all judicial matters pertaining
to the Federal Government until it made itself the sole arbiter in all
important constitutional questions and became the bulwark of
nationalism. After some reaction the court resumed that position in
all of its decisions except those pertaining to the Negro; for in the
recent commercial expansion of the country involving the litigation of
unusually large property values, the United States Supreme Court has
easily found grounds for jurisdiction where economic rights are
concerned; but just as easily disclaims jurisdiction where human
rights are involved in cases in which Negroes happen to be the
complainants.
The fairminded man, the patriot of foresight, observes, therefore,
with a feeling of disappointment this prostitution of an important
department of the Federal Government to the use of the reactionary
forces in the United States endeavoring to whittle away the essentials
of the Constitution which guarantees to all persons in this country
all the rights enjoyed under the most progressive democracy on earth.
Since the Civil War the United States Supreme Court instead of
performing the intended function of preserving the Constitution by
democratic interpretation, has by its legislative decisions
practically stricken therefrom so many of its liberal provisions and
read into the Constitution so much caste and autocracy that discontent
and radicalism have developed almost to the point of eruption.
C. G. WOODSON
FOOTNOTES:
[1] _McCulloch_ v. _Maryland_, 4 Wheaton, 416.
[2] _Ibid._, 416.
[3] _Ibid._, 416.
[4] _Dred Scott_ v. _Sanford_, 19 Howard, 399.
[5] 16 Peters, 539, 612.
[6] _Dred Scott_ v. _Sanford_, 19 Howard, 399.
[6a] 21 Howard, 506.
[7] 6 Howard, 344.
[8] 94 U.S., 113.
[9] 16 Wall., 678.
[10] This was held in _Township of Queensburg_ v. _Culver_ (19 Wall.,
83), in _Township of Pine Grove_ v. _Talcott_ (19 Wall., 666), and in
Massachusetts in _Worcester_ v. _Western R. R. Corporation_ (4 Met.,
564).
[11] _Storey on Bailments_, Sec. 475-6, and _Rex_ v. _Ivens_, 7
Carrington & Payne, 213; 32, E. C. L., 495.
[12] 16 Wall., 36.
[13] 100 U. S., 303.
[14] 100 U. S., 306.
[15] 103 U. S., 386.
[16] _Ex Parte Virginia_, 100 U. S., 346-7.
[17] 14 statutes, 27, Chapter 31.
[18] 16 statutes, 140, Chapter 114.
[19] 109 U. S., 1.
[20] _United States_ v. _Cruikshank_, 92 U. S., 542; _Virginia_ v.
_Rives_, 100 U. S., 318; _Ex Parte Virginia_, 100 U. S., 339.
[21] 6 Cranch, 128.
[22] 99 U. S., 418.
[23] _United States_ v. _Reese_, 92 U. S., 214; _Strauder_ v. _West
Virginia_, 100 U. S., 303.
[24] _Ward_ v. _Maryland_, 12 Wall., 418; _Corfield_ v. _Coryell_, 4
Washington, D. C., 371; _Paul_ v. _Virginia_, 8 Wall., 168;
_Slaughter-house cases_, _Ibid._, 36.
[25] 92 U. S., 542.
[26] 95 U. S., 487.
[27] The Louisiana Act was:
_Section--._ All persons engaged within this State in the
business of common carriers of passengers, shall have the right
to refuse to admit any person to their railroad cars, street
cars, steamboats or other water-crafts, stage coaches,
omnibusses, or other vehicles, or to expel any person therefrom
after admission, when such persons shall, on demand, refuse or
neglect to pay the customary fare, or when such person shall be
of infamous character or shall be guilty, after admission to the
conveyance of the carrier, of gross, vulgar, or disorderly
conduct, or who shall commit any act tending to injure the
business of the carrier, prescribed for the management of his
business, after such rules and regulations shall have been made
known: _Provided_, said rules and regulations make no
discrimination on account of race or color, and shall have the
right to refuse any person admission to such conveyance where
there is not room or suitable accommodation; and, except in cases
above enumerated, all persons engaged in the business of common
carriers of passengers are forbidden to refuse admission to their
conveyance, or to expel therefrom any person whomsoever.
_Section 4._ For a violation of any provision of the first and
second sections of this act, the party injured shall have right
of action to recover any damage, exemplary as well as actual,
which he may sustain, before any court of competent jurisdiction.
Acts of 1869, page 77; Rev. Stat. 1870, page 93.
[28] Mr. Justice Clifford concurred in the judgment but went into
details to justify the segregation whereas the opinion of the court
merely tried to see whether the details conflicted with the power of
Congress to regulate commerce.
[29] 118 W. S., 557.
[30] All of these are in 94 U. S.
[31] 133 U. S., 587.
[32] This was the law of Mississippi:
_Sec. 1._ "Be it enacted, That all railroads carrying passengers
in this State (other than street railroads) shall provide equal,
but separate accommodation for the white and colored races by
providing two or more passenger cars for each passenger train, or
by dividing the passenger cars by a partition, so as to secure
separate accommodations."
_Sec. 2._ That the conductors of such passenger trains shall have
power and are hereby required to assign each passenger to the car
or the compartment of a car (when it is divided by a partition)
used for the race to which said passenger belongs; and that,
should any passenger refuse to occupy the car to which he or she
is assigned by such conductor, said conductor shall have the
power to refuse to carry such passenger on his train and neither
he nor the railroad company shall be liable for any damages in
any event in this State.
_Sec. 3._ That all railroad companies that shall refuse or
neglect within sixty days after the approval of this act to
comply with the requirements of section one of this act, shall be
deemed guilty of a misdemeanor and shall upon conviction in a
court of competent jurisdiction, be fined not more than five
hundred dollars; and any conductor that shall neglect to, or
refuse to carry out the provisions of this act, shall, upon
conviction, be fined not less than twenty-five nor more than
fifty dollars for each offense.
_Sec. 4._ That all acts and parts of acts in conflict with this
act be, and the same are hereby repealed, and this act to take
effect and be in force from and after passage. Acts of 1888, p.
48.
[33] 133 U. S., 592.
[34] 163 U. S., 317.
[35] _Ibid._, 537.
[36] 169 U. S., 613, 645.
[37] 141 U. S., 61.
[38] In _Pa. R. R. Co._ v. _Hughes_ (191 U. S., 489), Justice White
says:
"In the absence of Congressional legislation upon the subject an
act of the Alabama legislature to require locomotive engineers to
be examined and licensed by a board to be appointed by the
governor for that purpose was sustained in _Smith_ v. _Alabama_"
(124 U. S., 465).
[39] 179 U. S., 393.
[40] 133 U. S., 587.
[41] 163 U. S., 537.
[42] 179 U. S., 388, 391.
[43] 133 U. S., 588.
[44] 218 U. S., 71.
[45] 235 U. S., 151.
[46] U. S., 18, 1907 Revised Statutes, 1910, Section 860, _et seq._
[47] 100 U. S., 303.
[48] _Ibid._, 313.
[49] 103 U. S., 370.
[50] 162 U. S., 565.
[51] 107 U. S., 110.
[52] 162 U. S., 592.
[53] 163 U. S., 101.
[54] 167 U. S., 442.
[55] 192 U. S., 226.
[56] 200 U. S., 316.
[57] 218 U. S., 161.
[58] Laws of South Carolina, 1902, page 1066, section 2.
[59] 100 U. S., 371.
[60] 110 U. S., 651.
[61] 127 U. S., 731.
[62] 179 U. S., 58.
[63] 185 U. S.
[64] 189 U. S., 475.
[65] 193 U. S., 146.
[66] The Constitution of Mississippi prescribing the qualifications
for electors conferred upon the legislature the power to enact laws to
carry those provisions into effect. Ability to read any section of the
Constitution or to understand it when read was made a qualification
necessary to a legal voter. Another provision made the qualifications
for grand or petit jurors that they should be able to read and write.
Upon the complaint of Negroes thus disabled the court held that these
provisions do not on their face discriminate between white and Negro
races and do not amount to a denial of the equal protection of the law
secured by the Fourteenth Amendment of the Constitution. It had not
been shown that their actual administration was evil, but that only
evil was possible under them.
In Washington County, Mississippi, Williams had been indicted for
murder by a grand jury composed of white men altogether. He moved that
the indictment be quashed because the law by which the grand jury was
established was unconstitutional. (_Williams_ v. _Mississippi._)
[67] 193 U. S., 621.
[68] 238 U. S., 347.
[69] _Ibid._, 368.
[70] _Ibid._, 763.
[71] 175 U. S., 528.
[72] 120 U. S., 102.
[73] 202 U. S., 1.
[74] 110 U. S., 651.
[75] 144 U. S., 236, 286, 293.
[76] 92 U. S., 214, 217.
[77] 110 U. S., 651.
[78] 178 U. S., 458, 462.
[79] 9 Wheaton, 738.
REMY OLLIER, MAURITIAN JOURNALIST AND PATRIOT[1]
It is of interest to the Negro to know the patriots of the race who
have blazed the path of social progress in the various lands in which
their lots have been cast. Not to all men is it given to be great as
the world counts greatness. Each of us, however, may have a task
which, if well done, may leave its impress upon the life of the
community in which we live. These, although obscure, efforts of the
talented and persevering are the monuments which silently mark the
progress of the race. Remy Ollier was one of these obscure
personalities; but yet, a man whose career made such contributions to
the life of Mauritius that he is regarded by its people as one of the
great figures in its political history. He was an educator, a
journalist, a patriot, and in some respects a liberator of his people.
Mauritius is an island under British control situated in the Indian
Ocean. It is 550 miles east of Madagascar, which lies off the east
coast of Africa. Under the control of the French, it was known as Ile
de France. It is mountainous in character and its scenery is most
beautiful and picturesque. Its inhabitants may be divided into two
main divisions: Europeans, chiefly French and British; and African and
Asiatic peoples. French appears to be more commonly spoken than
English, which accounts for the fact that the writings of Remy Ollier
were in French.
The island was discovered by the Portuguese navigator, Mascarenhas in
1505. Until the sixteenth century the island remained under the
control of Portugal. In 1598, the Dutch seized it and named it
"Mauritius" in honor of its stadholder, Count Maurice of Nassau. The
Dutch built a fort there, introduced slaves and convicts, but they
made no permanent settlements and, in 1710, it was abandoned. For a
short time the island passed into the hands of the French East India
Company, and later it became a crown colony. During the colonial wars
between France and Great Britain, Mauritius was a source of much
conflict. It was finally captured by the British in 1810; and by the
Treaty of Paris in 1814, the British were definitely granted control
of the island. Great Britain agreed, however, that the inhabitants
should retain their own laws, customs, religion and language, all of
which were of French origin.
In 1833 slavery was abolished in the British possessions. The Reformed
Parliament forced by the denunciation of antislavery orators led by
William Wilberforce, Thomas Clarkson, and Granville Sharp, enacted a
bill providing that Negro slavery should gradually cease in the
colonies, and that a compensation of £20,000,000 should be paid to the
slaveholders. There were then enacted laws removing proscription and
the Negroes were supposed to enjoy the same political rights as the
whites; but the latter sought to make themselves the dominant element
in Mauritius. In 1834 there were about 66,000 Negroes on the island,
which ten years later had a population of 158,462.[2] Indian coolies
were brought in to take the place of Negro slaves and many evils
attended their introduction. The situation was then as it was later in
the United States when the adjustment of freedmen to their new life
was accompanied by painful experiences on the part of both freedmen
and their former masters. The planters resented the presence of the
freedmen and as far as possible their privileges were curtailed.[3]
Militant agitators arose then among the Negroes demanding justice for
the oppressed. Among these leaders thus promoting the march of the
Negro population of Mauritius toward freedom were Adrien d'Epinay,
whose prominence is attested by a monument to be erected in his
memory, and Remy Ollier, who still lives in the hearts of his
countrymen.
Remy Ollier was born at Grand Port on the island of Mauritius, October
16, 1816, six years after the conquest of the island by the English.
He was the fourth child of Benoit Ollier, an artillery officer. His
mother, J. Guillemeau, was a daughter of Dr. Guillemeau, a physician,
and formerly a member of the Legislative Council of the island. When
eight years of age, Ollier was sent to a private school taught by
Captain Rault, a seaman who had served under Louis XVI. This work was
supplemented by lessons every Saturday under the Reverend Father Rock,
who was impressed with the boy's ability, and with the consent of his
parents taught him the elements of English and Latin. Allowed to use
the library of Mr. Rault, Ollier early became acquainted with the best
literature. It is said that he had a very retentive memory and that he
could repeat and write at will long passages from his favorite
authors.
About 1832, an unexpected reverse in fortune reduced Ollier's father
to abject poverty, and he died of a broken heart. Ollier, now scarcely
sixteen, went to work as a clerk in a merchant's office; but his
mother, thinking that his future in a clerkship was limited, secured
him a place as an apprentice to a harness-maker. With a book in one
hand and an awl in the other, Ollier prepared himself for his future
career. Opportunities in the larger fields of life were closed to the
Negro population as stated in the words of Ollier "that young men of
the present generation could but become handicraftsmen. This is the
only field open to us. But we must try to educate ourselves by all
means; perseverance is the only key that opens the door to success. At
whatever social rank man may be placed, education alone may confer
upon him a superiority."
In 1833 there occurred an incident which proved to be a turning point
in his life. Several members of the white population were charged with
forming a conspiracy against British rule in the island. Rumor had it
further that they had gathered arms and ammunition, that they expected
to attack the British officials and restore the island to France. They
were imprisoned and were denied the writ of habeas corpus. Young
Ollier had developed a keen interest in politics and asked the
permission of his employer to pay the men a visit. Later, he spent
many of his working hours at the court trials to which he seemed
irresistibly drawn. His employer wrote his mother stating that her son
would never make a harness-maker; for he spent most of his time either
in study when in the shop or at the courts when he should have been at
work. His mother, whom he always loved, burned his books and
reprimanded him for his conduct. For some time, he remained at the
harness shop, but finally gave up the work in order to pursue the
study he desired. Through his former friend, Mr. Rault, he obtained
many books to replace the ones which he had lost by the hasty action
of his mother.
By tutoring the children in the village of Petite Riviere and in the
town of Port Louis, he managed to obtain a living. In 1837, he opened
a private school in St. George street. It appears that this venture
was not successful, for he soon accepted a position in a "boarding
school conducted by Mr. Louis Barthelemy Raynaud, a white Mauritian
Professor who did not scruple to teach the young generations of the
white as well as of the colored population." When not engaged in
tutoring at this school and the neighboring schools for young ladies,
Ollier might be found devouring books on metaphysics, morals,
criticism and politics. He was asked by several private institutions
to give lessons in English, French and Geography; but while teaching
others, he himself was studying with Mr. H. N. D. Beyts, who twice
filled the post of officer administering the government. Ollier
continued his work as a teacher until 1839. At the end of the school
year, prizes were distributed, and he had the pleasure of presenting a
prize to Miss Louis Sidonie Ferret whom he married in December, 1840.
About a year before his marriage, he bought the school from Mr.
Raynaud, with the idea of enlarging it according to his own plans; but
this project failed for some unknown reason. He then undertook a trip
to India, which seems to have been successful. On his return, he
entered business, opening two large stores. His associate did not
agree with him in his business plans and the business was dissolved by
legal process. He then resumed his position as a teacher in the
boarding schools. In 1841, he and his wife opened a school in the
western suburb of Port Louis where the Negro population could bring
their children for a liberal education upon the payment of a moderate
fee. This helped him for a time to solve some of his financial
problems but finally failed.
Ollier remained an insatiable reader. He took an active part in a
literary club in Port Louis, _Le Société d'Emulation Intellectuelle_,
and this association helped greatly to increase his knowledge of the
literary world. He read literature, history, travels, philosophy,
politics and such authors as Lamennais, Montesquieu, Diderot,
Rousseau, Voltaire, Adam Smith, Horace Say, Ricardo and the like. He
read not only because of his love of reading but because he was
ambitious to prepare himself for larger duties. The largest duty as he
seemed to see it was the freedom of his people from insult and
injustice, and the recognition of his people upon the same level as
other Mauritians. Before the edict of emancipation, the Legislative
Council on June 22, 1829, had granted the free population of color the
same civil rights and privileges as other Mauritians possessed, but
the local government had failed to carry out the enactment. Remy
Ollier felt that this was a blot on the fair name of his country, as
well as an affront to his people and longed to do his part in bringing
about a change, which he believed could be effected by a newspaper.
An unusual incident translated into action his idea of founding a
newspaper. Alexander Dumas had written a play entitled "Anthony,"
which is composed especially "to castigate morals by exposing vice in
opposition to virtue." A contributor to one of the two papers, _Le
Mauricien_, attacked the production of the play, and held up to
ridicule the police authorities, who were supposed to be vested with
censorial powers. He also criticized the author as a Negro glorifying
adultery. The Negroes of the island became indignant and several
answers were evoked. Remy Ollier presented a strong defense for Dumas.
Another vigorous defense was prepared by Evénor Hitie, a writer of
history. These articles were sent to the two papers of the island: _Le
Cerneen_ and _Le Mauricien_, both of which refused to publish them. An
Englishman, Mr. Edward Baker, the owner of a printing plant, printed
the two answers and circulated them in tract form.
The need of a newspaper became evident to the Negro population. In the
time of Ollier, the press was used chiefly for political purposes
rather than for the dissemination of information. Policies and parties
were aided or hindered by the press, and this was its principal
function. _Le Balance_ had been the champion for the government and
the rights of the weaker groups; but the editor, Mr. Berquin, was
deported in 1833 because of utterances which were considered inimical
to the policies of the colonial government. Since 1833, there had been
no paper to champion the rights of the Negroes.
After the publication of the answers to the contributor of _Le
Mauricien_, certain influential members of the Negro population, among
whom was Remy Ollier, called to see Sir Lionel Smith, G.C.B., Baronet
and Governor of the island of Mauritius. It is said that they were
warmly received, and that he was astonished to learn that the Negroes,
a majority of whom were "the equals of the whites by their stature, by
their hearts and their intelligence," had no paper "to make known
their wishes and their complaints." He advised his hearers to start a
paper, and he promised to support their reasonable demands. But, dying
in 1842, Sir Lionel Smith was unable to give any assistance to the new
publication.
Through the assistance of Mr. Edward Baker, the printer, the paper _Le
Sentinelle de Maurice_ was started. The prospectus, written in French
and in English appeared March 21, 1843, and on Saturday, April 8, the
first number of the paper came from the press. It was a weekly
publication with Ollier and Baker as the editors. The former wrote
articles in French and the latter in English, the articles of each
being admirably written. Each one in his own sphere spoke with great
vehemence and elevation of mind for the cause of "liberty and
justice." The paper was read with avidity by the middle and lower
classes, and the Negroes soon regarded Ollier as their champion.
The first and most important fight which Ollier felt called upon to
enter was the nomination by the Governor of members to the Legislative
Council in June, 1843. Ollier noticed that no Negro member was
nominated. The vacant seat was given to a white representative, Mr.
Forster. Ollier observed "that although a white man whose heart is
right and whose intentions are pure can represent the population of
color," yet he considered the appointment "as an act that was unjust,
impolitic, undemocratic and unconstitutional." He added in explanation
that the act was unjust "because all the children of the
mother-country, the white colonists especially, were already
represented in the Council, except the men of color, whose number is
twice that of other populations of the country; their destiny more
illustrious, and the high state of their experience, their education,
their intelligence and their morals are the same as with others;
impolitic, because it discontents and disheartens the loyal and
faithful British subjects and might alienate from the government the
hearts of those who have invariably remained attached to it;
undemocratic, and unconstitutional because the British constitution
makes no exception of any person, and because it desires that all its
subjects should have an equal part in its benefits."
In 1843, Ollier determined to have his paper appear three times a
week, and for this purpose he bought the printing plant of _La
Balance_, the paper which had been forced to suspend its publication
ten years before. On the top of the first page of the paper, the royal
arms of Great Britain were placed with the motto "Honi soit qui mal y
pense! Dieut et mon droit!" He dedicated the paper to a strict
vigilance over the abuse of power, "to redress the grievances of the
weak and to encourage merit in all classes, creed or color." Those who
now assisted him in the editorial work besides Mr. Baker, who edited
the English page, were his wife, Emile Sandapa, and Emile Bouchet, a
lawyer, who later defended Ollier when he was sued for libel. His
editorials framed in animating language aroused his countrymen from
their inaction and awakened in them new hopes and aspirations.
Ollier again attacked the government and the party in power, because
no place was made for the Negro element in its civil service. In the
first issue of _La Sentinelle_, he wrote, "From day to day the
Maurician Press develops a system entirely dangerous and which seems
to have this for a foundation--to discredit and debase English
institutions and the English Government in the eyes of all. Here are
the consequences of this system--the government believing that the
opinions of the press are those of all the inhabitants of Maurice, has
seen in us enemies rather than loyal and faithful subjects, whence
this continual defiance which has driven up to now the people of color
from all the public employment.... The organs of this country are all
in accord in saying that the government of the United Kingdom is
pernicious to us, that it long since desires and plans our ruin; and
when our riches and our prosperity proclaim openly the falseness of
these allegations, they wish that England, who makes possible this
well-being for us, may not have a deep indignation against those who
do not have even enough generosity to recognize the benefits of their
mother-country.... As for us, our mission is to call all parties of
our population to a united intelligence...." On October 22, 1844, he
exclaimed, regarding racial distinctions: "Education levels
everything. An erudite man in any class is equal to any other man
having the same degree of education; he is a demi-god and is superior
to kings, when the latter are immersed in the darkness of ignorance."
Ollier continued the attacks upon the government because of its
discrimination against its citizens of color and yet he remained a
lover of his country. Not only did he agitate through the columns of
paper, but also through other available channels. In 1843, he drafted
a petition to which many signatures were attached and sent it to Queen
Victoria. This action has been called the death-blow to the monopoly
of the local parliament by the white population. The petition was:
"May it please your Majesty,--On various occasions the British
Throne has been approached by individual members or collective
bodies of the Mauritius community in the exercise of that
inestimable privilege of your Majesty's faithful subjects, the
right of petition; but hitherto, never has any prayer of the
great majority of your Majesty's loyal and attached subjects in
this island been thus presented to your Majesty's attention.
"The colored classes of Mauritius, comprising a population of
about 70,000, and including at least one third of the island's
wealth and intelligence, although not deprived of any political
right by the fundamental laws of the British realm, or by any act
of Your Majesty's Parliament, actually enjoy but few privileges
of British subjects; and can scarcely be said to have a political
existence in the affairs of their native island.
"Your Majesty's petitioners will refer to the fact of no
individual of the coloured classes having a seat in the Council
of Government; notwithstanding that there are many in the island
in every respect qualified by riches, talents, education, and
moral character, to occupy a place in that assembly.
"Whilst therefore gratefully recognizing the equity and
impartiality of the British laws and institutions, in which alone
repose their best hopes for themselves and their children, your
Majesty's petitioners humbly and reverently approach Your
Imperial Throne with the prayer that, His Excellency the Governor
of Mauritius may be authorized to call to his council one or more
representatives of the people of colour in this island; or
otherwise to grant to the country the privilege of electing its
own representatives. Your Majesty's petitioners will only add the
sincere declaration of their loyal and patriotic attachment to
Your Majesty's person and Throne and Government; and your
petitioners will ever pray."
In 1843, the editor of _Le Cerneen_, the oldest newspaper in the
colony, was prosecuted, fined and imprisoned for publishing a
defamatory article against the magistrate of Port Louis. Ollier had
always advocated the freedom of the press, and he protested against
the law which suppressed free speech, and against the persecution of a
fellow-journalist, although the latter was his political enemy.
Ollier's biographer adds: "Ollier indeed was an ardent lover and a
good hater. This noble heart and comprehensive mind made him
understand his duty toward men. He forgot enmity when fundamental
principles were not adequately observed."
In 1844, there was established a rival newspaper, _l'Esprit Public_,
to combat the policies of Remy Ollier. It was edited by Mr. Bruils,
who had been educated in Europe as a lawyer. He began by finding fault
with the style and grammatical form of Ollier's writing, but it is
said that the subject-matter of his editorials could be rarely
attacked. Ollier's writings were always hasty and he rarely took the
time to polish them, while Bruil's style was more smooth and uniform.
Ollier's style, however, was easy and original. He replied
effectively to the invective of his enemies in prose and in verse. He
seems to have had no difficulty in the composition of his sentences
nor did he take the pains which would seem to be necessary for the
average man to acquire the finished journalistic style. His motto was
as he wrote a page "une feuille lue aujourd'hui, oubliée demain."
Therefore, he gave his copies to the compositors without rereading
them. Concerning the correctness of his writings, his biographer
writes: "Like Carlyle, Shelly, Bossuet, Mirabeau and Moliere, the
editor of _La Sentinelle_ perpetrated many a small sin against the
rules of grammar and certainly paid but a halting attention to the
nice distinctions of punctuation. He very often did not know where to
end a paragraph and begin another. On the whole, he is happily not
obscure." His main effort was to state his idea and when he had made
his statement, he was not as careful as he should have been regarding
the construction of the statement. He consoled himself with the words,
"Grammar is of man; the idea is of God."
His enemies, however, could not say that he was trying to overthrow
the empire, for he was merely struggling for the liberty guaranteed by
the empire. "In all the British Empire," said he, "there are no
subjects more loyal than we. We are English today, we are not a
conquered people, we are English people." He was convinced that if
England would give the rights of Englishmen to the Mauritians, she
would find them "as devoted as any children she could count in her
bosom." He added, however, "We belong to England. Why do we not
possess the institutions of England? If she wishes to make us love our
nationality, to endow our island with that which makes for the glory
of our mother-country; this, we shall not be able to know or
appreciate if we are strangers to all that which makes it cherish its
children and respect its people! At the sight of our institutions, in
the presence of the happenings in Mauritius, advancements ruined,
individual liberty violated, human life despised, one cannot believe
that we belong to an English administration, and that we are a part
of the most democratic people in the world."
It was agitation of this type which brought about what may be
considered the definite contributions of Remy Ollier to Mauritian
life: the creation of the Municipality, the Chambers of Commerce and
Agriculture, the opening of credits to the Negroes by the Mauritian
Commercial Bank, the reforms at the Royal College respecting the
English Scholarships, and the employment of men of color in the
departments of the government. His attacks upon capital punishment and
barbarous prison treatment resulted in laws which mitigated the former
harsh conditions, and his criticism of the banking institutions in the
crisis of 1843 led to considerable reform in that quarter. His bitter
attacks on political and social conditions made many enemies. One
evening, he was waylaid by several assailants and given a whipping. He
was imprisoned, but he wrote in prison as well as elsewhere.
His political activity was short, for in the early part of 1845, about
two years after his appearance in journalism, he died at the early age
of 28 years, after a short illness due to an inflammation of the
intestines. Stoically he bore the bitter effects of his courageous
utterances; and when death came to him after only a short period of
endeavor, both in the interests of his own people, and also of the
weaker classes of all groups, the success of his efforts had just
begun to appear. The name of Remy Ollier in Mauritian history,
therefore, symbolizes perseverance in the face of great obstacles,
agitation as an instrument of social progress, patriotism as it
relates to the island of Mauritius, and justice respecting all classes
and races. In 1916, the centenary of his birth was celebrated in Port
Louis. Then it was that the city and island demonstrated its love and
gratitude for Ollier, because of the services which he rendered the
colony in general and the population of color in particular. Remy
Ollier was one of the unknown leaders in the cause of freedom.
CHARLES H. WESLEY
FOOTNOTES:
[1] This sketch is drawn largely from a pamphlet, presented to the
Association for the study of Negro Life and History by the author A.
F. Fokeer. The author states that he has not had access to all the
material which he desired to use, for when he applied to the
municipality for one of the books concerning Ollier, he received an
answer stating "that books written by Mauritians, and published in the
colony are by no means to be lent to anybody." Therefore, the source
from which most of our information is secured is _A Biographical
Sketch of the Life, Work and Character of Remy Ollier_ by A. F.
Fokeer, published by the General Printing and Stationery Cy. Ld., 23
Church Street, Mauritius. 1917.
[2] Earlier figures are not available.
[3] General information concerning the island may be obtained from the
following: Martin, _The British Possessions in Africa_, Vol. IV.;
Unienville, _Statistique de l'île Maurice et ses dépendances_; Epinay,
_Renseignements pour servir à l'histoire de l'île de France_;
Decotter, _Géographie de Maurice et de ses dépendances_; Chalmers, _A
History of Currency in the British Colonies_; Anderson, _The Sugar
Industry of Mauritius_; Keller, _Madagascar, Mauritius, and other East
African Islands_; _The Mauritius Almanac_; _The Mauritius Civil
Lists_; and _Annual Colonial Reports_.
A NEGRO COLONIZATION PROJECT IN MEXICO, 1895
The Negro question touched the relations of the United States and
Mexico at several points. For instance, the escape of runaway slaves
into Mexico where slavery was legally forbidden, was a factor in
causing disturbances along the Rio Grande between 1850 and 1860.[1]
Again, during the following decade when the colonization of the
freedmen became a vital issue, there was at least one proposal to
settle them on the border between the United States and Mexico. It was
urged that a strip of land extending from the Rio Grande to the
Colorado and westward to the mountains of New Mexico be set apart by
the national government for this purpose. On January 11, 1864,
Honorable James H. Lane of Kansas actually introduced a bill looking
to this end, which received favorable consideration from the Committee
on Territories, but so far as has been ascertained never came to a
vote in Congress.[2]
In support of his proposal Lane urged, among other things, that the
colonization of the Negroes on this frontier would prove beneficial to
Mexico and tend to promote friendship between that country and the
United States. "We can thus plant at the door of Mexico," he said,
"four million good citizens, who can step in at any time, when
invited, to strengthen the hands of that Republic."[3] In similar vein
the territorial committee, of which Lane was chairman, declared: "It
is desirable to cultivate friendly relations with the people of
Mexico. It is known to us that among that people there are no
prejudices against the black man, and that intermarriage is not
prohibited either by law or custom.... It is confidently believed that
the colony provided for in this bill, by intermarriage with the people
of those Mexican States, and friendly intercourse with them, would so
Americanize them as that they would be prepared and seek an annexation
to our then glorious free republic."[4]
The project which is the subject of this paper had no official element
motivating it, however. It was merely a private enterprise conducted
for the profit of a Mexican land company and a member of the Negro
race;[5] and not until the scheme had failed did the United States
government take a hand. On December 11, 1894, H. Ellis,[6] a Negro,
entered into a contract with the "Agricultural, Industrial, and
Colonization Company of Tlahualilo, Limited," for the transportation
from the United States by February 15, 1895, of one hundred colored
families between the ages of twelve and fifty. The company obligated
itself to pay the passage of the colonists provided it did not exceed
$20, and after they were established upon the land, to furnish them
agricultural implements, stock, seed, and housing quarters, as well as
$6 monthly during the first three months, and thereafter a sum later
to be agreed upon. Each family was to be given sixty acres for
cultivation, forty for cotton, fifteen for corn, and five for a
garden.[7] The company was to receive 40% of the yield of cotton and
corn, the colonists 50%, and Ellis 10%. The colonists were to have two
years in which to pay for their passage; but, of course, the money
advanced for sustenance was to be paid from the first crop, except in
the event of an extremely lean year. The entire produce of the garden
was to go to the Negroes. Stores were to be established in the colony,
the colonists were to have their cotton ginned at the gins of the
company at the rate of $1.50 per bale, and the company was to be given
preference on all the produce sold. The contract was to endure for a
period of five years.[8]
Ellis set about immediately to fulfil his agreement. Going among the
Negroes of Alabama and Georgia, he issued a rather extravagant
circular representing his proposition as presenting the "greatest
opportunity ever offered to the colored people of the United States to
go to Mexico, ... the country of 'God and Liberty.'" He declared that
the land of his company would easily produce a bale of cotton and from
fifty to seventy-five bushels of corn per acre; spoke of irrigation
facilities which made them independent of the rain, of "fine game,
such as deer, bear, duck, and wild geese, and all manner of small
game, as well as opossum," and of schools and churches to be
constructed; and sought especially to impress upon their minds the
fact that "the great Republic of Mexico extends to all of its citizens
the same treatment--equal rights to all, special privileges to
none."[9]
A number of Negroes were soon attracted by the project and early in
February they were ready to set out. In fact, by the 6th a party had
already arrived at the hacienda of the company, situated some thirty
miles east of Mapimi, Durango, in a rather "wild and inaccessible
place" several miles from a railway. On the 25th of the same month
another group of colonists put in their appearance, making a total of
about 816.
It is interesting to note the section from which the Negroes came, and
the size and composition of the families which they brought. Twelve of
the number came from Griffin, Georgia; all the rest were from one of
seven towns in Alabama; namely, Tuscaloosa, Gadsen, Williams, Eutaw,
Carter, Johns, and Birmingham. Of these towns Tuscaloosa furnished by
far the greater number, while Eutaw, Gadsen, and Birmingham came
next. Only a comparatively small number came from Williams, Carter,
and Johns. Instead of having some three or four members as apparently
designed in the original contract, some of the families numbered six,
eight, and even twelve; and the number of women and children was
disproportionately large.
When the colonists arrived at the hacienda they found the ground
covered with snow. They were crowded into small, leaky, adobe houses,
without floors and with doors which could not be closed tightly. The
remainder of the winter and the following spring proved unusually
rainy and unpleasant; the food which they were given was probably of a
somewhat inferior quality; and their tools were clumsy and dull. These
factors possibly account for their homesickness and alleged
indisposition to work. Moreover, the small number of able-bodied
workingmen among them was disappointing to the colonization company.
Naturally enough, mutual dissatisfaction led to quarrels and
difficulties. As was to be expected, too, sickness soon visited the
settlement, killing off large numbers and terrifying the rest. A sort
of liver disease broke out among them in April causing several deaths,
and this was followed early in July by the ravages of the
smallpox.[10]
The first epidemic was sufficiently terrifying to cause some of the
colonists to bolt their contract and attempt to return to the United
States. When the smallpox broke out it proved to be too much for their
sense of honor or any other restraining force. Those who were able
began precipitously to desert the settlement for the United States,
apparently giving no attention at all to the matter of sustenance for
the journey. By the latter part of July all had left except about
fifty of the most persistent and faithful who chose to stay by their
crops.[11]
The sufferings of these colonists while at Tlahualilo and on their
way to the Rio Grande furnished the press of the United States a
sensational topic which it immediately seized upon. Indeed, the first
report which reached the United States through official circles was
itself sufficiently exaggerated to create excitement. On May 21, 1895,
two fugitives from the colony arrived at Chihuahua City where they
related stories of oppression and brutal cruelty. One of them reported
that upon arriving at the colony the Negroes "found themselves in the
worst form of bondage, with no hope of ever securing liberty," and
that no letter informing friends of their condition and their
suffering was ever permitted to reach the United States. He said he
was one of a party of some fifty who had stolen away in the hope of
making their escape. The other Negro declared that he was the sole
survivor of a party of about forty which had likewise run away from
the settlement, but had been overtaken and slain by a band of Mexican
guards in the employment of the colonizing company. The consul of the
United States at Chihuahua sent immediate notice of the affair to the
State Department.[12]
E. C. Butler, chargé of the United States in Mexico, was immediately
notified and directed to call upon the Mexican government to
investigate the affair.[13] Meantime the consular officers of the
United States began an investigation of their own which tended to
convince them that the extravagant rumors regarding the cruelties
perpetrated against the Negroes were totally unfounded. On June 24,
the consul at Piedras Negras, Jesse W. Sparks, forwarded a report
which he respectfully suggested should be given to the public "in
order to contradict the terrible stories of murder and bad treatment
of these Negroes ... and deter other Negroes who contemplate
colonizing in Mexico." It was based upon a sworn statement made by the
purported leader of the runaways, a deposition of another of the
colonists, and information received through a traveller from New York
City, who claimed to have visited the colony, as well as through a
civil engineer who was in the employment of the Mexican International
Railroad. From the information furnished by these witnesses Sparks
drew the conclusion that the Mexican colonization company had lived up
to its contract, that the Negroes had not been cruelly treated while
at the colony, and that the report concerning the murder of a portion
of the band[14] attempting to escape was absolutely false. The Mexican
soldiers alleged to have slain the Negroes were in fact a relief party
sent out by the company which, being acquainted with the barren and
desolate nature of the country which would have to be crossed in
reaching the United States, surmised that the lives of the colonists
were in danger.[15]
Those who left the settlement after the smallpox epidemic broke out
really suffered severely from lack of food. Without money and without
provisions, there would have been no alternative but starvation or
highway robbery, if the consular agents of the United States had not
come to the rescue. That they came and came effectively is evinced by
the fact that very few of the colonists actually died of starvation.
One hundred and twenty-five of the Negroes arrived at Mapimi about
July 19 and sent a delegation from there to Torreón to appeal to the
consul for aid.[16] The agent at this place wrote to the consul at
Durango for advice and help, while at the same time he set about to
raise funds by voluntary subscription. The consul at Durango responded
immediately with financial aid and suggested that the Negroes seek
employment; but the small number of the group which was able to work
seemed disinclined to do so; and, to make matters worse, the smallpox
continued its ravages and in a measure precluded the possibility of
obtaining employment even if it had been desired.[17]
The consuls appealed at the same time to the authorities at
Washington who replied at first that there was no fund available for
the relief of the destitute citizens. As early as July 26, however,
General Bliss, who commanded the department of Texas, was ordered to
send a physician to help look after the sick and to place 1500 rations
into the hands of Consul Sparks at Piedras Negras; and the consul at
Piedras Negras was directed, in case return to the colony was not
"practicable or consistent with humane considerations," to endeavor to
persuade the railroad companies to transport the Negroes to their
homes under the promise of receiving remuneration as soon as Congress
could be prevailed upon to make an appropriation for that purpose.[18]
Meantime, the demoralized colonists were leaving their crops and
making their way first to Mapimi, and later to Torreón, where most of
them caught the Mexican International to Eagle Pass. Here they were
received in a quarantine encampment especially prepared for them and
given clothes, provisions, and medical attention until the smallpox
epidemic had been subdued. This required considerable time and the
expense was by no means small. Finally, by September 26, those who had
been taken into quarantine first were ready to leave, and on that date
the Southern Pacific took aboard 167 of them destined for New Orleans,
from which point they were to be transported by the Louisville and
Nashville to Birmingham, Alabama. On October 4, another group boarded
the train; on October 10, another; on October 22, still another; and
on November 3, the last of the encampment left Eagle Pass. The last
party reached New Orleans on the following day and perhaps arrived at
Birmingham on the 5th.[19]
Thus ended the colonization scheme of Ellis and the Mexican land
company. It had cost the United States Government more than twenty
thousand dollars. It had cost the Tlahualilo Company about seven
thousand. But the Negroes themselves had borne the greatest losses.
Seventy or more of their number had found graves on the hacienda near
Mapimi, 10 had died at Torreón, 8 while _en route_ from that station
to Eagle Pass, and 60 in the encampment there, making a total of about
148. Besides these, there were 250 not accounted for and half as many
more scattered and possibly separated for years from their friends and
relatives. Only 334 left Eagle Pass by train for their homes in
Alabama, while the Louisville and Nashville records show that only 326
were taken aboard at New Orleans. What fate overtook the small number
who chose to remain with their crops has not been ascertained.[20]
J. FRED RIPPY
UNIVERSITY OF CHICAGO
FOOTNOTES:
[1] For a brief discussion of these disorders see the present writer's
"Border Troubles Along the Rio Grande, 1848-1860," in _The
Southwestern Historical Quarterly_, XXIII, October, 1919, pp. 91-111.
[2] _Sen. Jour._, 38 Cong., 1 Sess., p. 66, _passim_.
[3] _Cong. Globe_, 38 Cong., 1 Sess., p. 673.
[4] _Sen. Report_ No. 8, 38 Cong., 1 Sess., p. 2.
[5] This seems to have been only one of some three or four such
undertakings attempted at the time. See _House Doc._ No. 169, 54
Cong., 1 Sess., pp. 44-45.
[6] Elsewhere written W. H. Ellis.
[7] Ellis's contract promised more than this in case of larger
families.
[8] For the contract between Ellis and the company see _House Doc._
No. 169, 54 Cong., 1 Sess., pp. 46-48; for that between Ellis and the
colonists see _ibid._, pp. 4-5. There are only a few minor differences
in the two.
[9] _Ibid._, p. 59.
[10] Dwyer's Report, and enclosures, _ibid._, pp. 42 ff.
[11] _Ibid._, pp. 23, 36, 42.
[12] Burke to Uhl, May 28, 1895, and enclosure, _ibid._, pp. 2-3.
[13] Olney to Butler, June 17, 1895, _ibid._, p. 5.
[14] It appears that only one band had tried to escape prior to July
18 or 19.
[15] Sparks to Uhl, June 24, 1895, and enclosure, _ibid._, pp. 6-11.
[16] _Ibid._, pp. 12, 16.
[17] _Ibid._, pp. 17-20.
[18] Sparks to Uhl, June 4, 1895, and enclosure, pp. 13-14.
[19] _Ibid._, p. 65.
[20] Sparks to Uhl, June 24, 1895, and enclosure, pp. 42, 65-66.
President Cleveland, in his message of December 2, 1895, urged an
appropriation for the reimbursements of the railroads, and on January
27, 1896, he sent a special message to Congress with reference to the
matter. Richardson, _Messages and Papers_, IX, 634, 664.
An appropriation for urgent deficiencies which was passed on February
26, 1896, contained the following interesting item: "For the payment
of the cost of transportation furnished by certain railway companies
in connection with the failure of the scheme for the colonization of
negroes in Mexico, necessitating their return to their homes in
Alabama, ... five thousand and eighty-seven dollars and nine cents."
29 _U. S. Statutes at Large_, p. 18.
DOCUMENTS
JAMES MADISON'S ATTITUDE TOWARD THE NEGRO
Like most of the Revolutionary leaders, James Madison, moved by the
social and political upheaval of that time thought seriously of the
liberation of the slaves, largely for economic reasons. He believed
that the country should depend as little as possible on the labor of
slaves, knowing that their labor was not sufficiently skillful to
furnish the basis for diversified industry. He considered slavery "the
great evil under which the nation labors."[1] On another occasion he
referred to it as a "portentous evil,"[2] and on still another "an
evil, moral, political, and economic, a sad blot on our free
country."[3] When, therefore, petitions for the abolition of slavery
were presented to the legislature of Virginia, he did not frown upon
the proposal as a mischievous agitation as did so many others. Madison
looked forward to the eventual extermination of slavery through
gradual methods of preparation for emancipation. Feeling that the
thorough incorporation of the blacks into the community of whites
would be prejudicial to the interests of the country, he had no other
thought than that of deportation as a correlative of emancipation.
Along with a number of others he discussed the proposal to set apart
certain western public lands for the transplantation of the blacks
from the slave holding States to free soil, but as the white man by
his pioneering efforts so rapidly pushed the frontier to the west as
to convince the country of the need of that territory for expansion,
Madison soon receded from this position and advocated along with most
of the leading men of his time the colonization of the Negroes in
Africa.
Madison did not feel that there was any sure ground upon which
Congress might participate in the emancipation and the colonization of
the Negroes. He suggested that the constitution be amended. He even
doubted that the Ordinance of 1787, enacted without authority, had the
effect of the emancipation of the slaves and was finally of the
opinion that the right of Congress to prohibit slavery in any
territory during its territorial period, "depends on the clause in the
constitution specially providing for the management of these
subordinate establishments."[4] He was rather of the opinion that the
restriction was not within the true scope of the constitution. Like
Jefferson, therefore, during the later years of his life, Madison saw
many difficulties in the way of abolishing slavery. He gave a
sympathetic ear to the experiences of the Moravians, Hermonites, and
the Shakers, but although he had to concede that slavery impaired the
influence of the political example of the United States and was a blot
on our republican character, he never became what we could call an
abolitionist for the reason that he found it difficult to remove the
Negroes from the country when freed. That being the case, he noted
with some interest the increase of the slave population, the increase
in voluntary emancipation, and the progress of the Colonization
Society, to the presidency of which he was elected.[4]
TO ROBERT PLEASANTS
PHILADELPHIA, October 30, 1791
_Sir_,--The delay in acknowledging your letter of the 6th June
last proceeded from the cause you conjectured. I did not receive
it till a few days ago, when it was put into my hands by Mr.
James Pemberton, along with your subsequent letter of the 8th
August.
The petition relating to the Militia bill contains nothing that
makes it improper for me to present it. I shall, therefore,
readily comply with your desire on that subject. I am not
satisfied that I am equally at liberty with respect to the other
petition. Animadversions such as it contains, and which the
authorized object of the petitioners did not require, on the
slavery existing in our country, are supposed by the holders of
that species of property to lessen the value by weakening the
tenure of it. Those from whom I derive my public station are
known by me to be greatly interested in that species of property,
and to view the matter in that light. It would seem that I might
be chargeable at least with want of candour, if not of fidelity,
were I to make use of a situation in which their confidence has
placed me to become a volunteer in giving a public wound, as they
would deem it, to an interest on which they set so great a value.
I am the less inclined to disregard this scruple as I am not
sensible that the event of the petition would in the least depend
on the circumstance of its being laid before the House by this or
that person.
Such an application as that to our own Assembly, on which you ask
my opinion, is a subject, in various respects, of great delicacy
and importance. The consequences of every sort ought to be well
weighed by those who would hazard it. From the view under which
they present themselves to me, I cannot but consider the
application as likely to do harm rather than good. It may be
worth your own consideration whether it might not produce
successful attempts to withdraw the privilege now allowed to
individuals, of giving freedom to slaves. It would at least be
likely to clog it with a condition that the person freed should
be removed from the country; there being arguments of great force
for such a regulation, and some would concur in it, who, in
general, disapprove of the institution of slavery.
I thank you, sir, for the friendly sentiments you have expressed
towards me, and am, with respect, your obt, humble servt.[5]
TO ROBERT WALSH[6]
MONTPELLIER, Mar. 2d, 1819.
_Dr Sir_,--I received some days ago your letter of Feby 15, in
which you intimate your intention to vindicate our Country
against misrepresentations propagated abroad, and your desire of
information on the subject of negro slavery, of moral character,
of religion, and of education in Virginia, as affected by the
Revolution, and our public Institutions.
The general condition of slaves must be influenced by various
causes. Among these are: 1. The ordinary price of food, on which
the quality and quantity allowed them will more or less depend.
This cause has operated much more unfavorably against them in
some quarters than in Virginia. 2. The kinds of labour to be
performed, of which the sugar and rice plantations afford
elsewhere, and not here, unfavorable examples. 3. The national
spirit of their masters, which has been graduated by philosophic
writers among the slaveholding Colonies of Europe. 4. The
circumstance of conformity or difference in the physical
characters of the two classes; such a difference cannot but have
a material influence, and is common to all the slaveholding
countries within the American hemisphere. Even in those where
there are other than black slaves, as Indians and mixed breeds,
there is a difference of colour not without its influence. 5. The
proportion which the slaves bear to the free part of the
community, and especially the greater or smaller numbers in which
they belong to individuals.
This last is, perhaps, the most powerful of all the causes
deteriorating the condition of the slave, and furnishes the best
scale for determining the degree of its hardship.
In reference to the actual condition of slaves in Virginia, it
may be confidently stated as better, beyond comparison, than it
was before the Revolution. The improvement strikes every one who
witnessed their former condition, and attends to their present.
They are better fed, better clad, better lodged, and better
treated in every respect; insomuch, that what was formerly deemed
a moderate treatment, would now be a rigid one, and what formerly
a rigid one, would now be denounced by the public feelings. With
respect to the great article of food particularly, it is a common
remark among those who have visited Europe, that it includes a
much greater proportion of the animal ingredient than is
attainable by the free labourers even in that quarter of the
Globe. As the two great causes of the melioration in the lot of
the slaves since the establishment of our Independence, I should
set down: 1. The sensibility to human rights, and sympathy with
human sufferings, excited and cherished by the discussions
preceding, and the spirit of the Institutions growing out of that
event. 2. The decreasing proportion which the slaves bear to the
individual holders of them; a consequence of the abolition of
entails and the rule of primogeniture; and of the equalizing
tendency of parental affection unfettered from all prejudices,
as well as from the restrictions of law.
With respect to the moral features of Virginia, it must be
observed, that pictures which have been given of them are, to say
the least, outrageous caricatures, even when taken from the state
of society previous to the Revolution; and that so far as there
was any ground or colour for them then, the same cannot be found
for them now.
Omitting more minute or less obvious causes, tainting the habits
and manners of the people under the Colonial Government, the
following offer themselves: 1. The negro slavery chargeable in so
great a degree on the very quarter which has furnished most of
the libellers. It is well known that during the Colonial
dependence of Virginia, repeated attempts were made to stop the
importation of slaves, each of which attempts was successively
defeated by the foreign negative on the laws, and that one of the
first offsprings of independent republican legislation was an act
of perpetual prohibition.
* * * * *
With the exception of slavery, these demoralizing causes have
ceased or are wearing out; and even that, as already noticed, has
lost no small share of its former character. On the whole, the
moral aspect of the State may, at present, be fairly said to bear
no unfavorable comparison with the average standard of the other
States. It certainly gives the lie to the foreign calumniators
whom you propose to arraign.[7]
TO ROBERT J. EVANS (AUTHOR OF THE PIECES PUBLISHED UNDER THE
NAME OF BENJAMIN RUSH).
MONTPELLIER, June 15, 1819.
_Sir_,--I have received your letter of the 3d instant, requesting
such hints as may have occurred to me on the subject of an
eventual extinguishment of slavery in the United States.
Not doubting the purity of your views, and relying on the
discretion by which they will be regulated, I cannot refuse such
a compliance as will, at least, manifest my respect for the
object of your undertaking.
A general emancipation of slaves ought to be--1. Gradual. 2.
Equitable, and satisfactory to the individual immediately
concerned. 3. Consistent with the existing and durable prejudices
of the nation.
That it ought, like remedies for other deep-rooted and widespread
evils, to be gradual, is so obvious, that there seems to be no
difference of opinion on that point.
To be equitable and satisfactory, the consent of both the master
and the slave should be obtained. That of the master will require
a provision in the plan for compensating a loss of what he held
as property, guaranteed by the laws, and recognised by the
Constitution. That of the slave, requires that his condition in a
state of freedom be preferable, in his own estimation, to his
actual one in a state of bondage.
To be consistent with existing and probably unalterable
prejudices in the United States, the freed blacks ought to be
permanently removed beyond the region occupied by, or allotted
to, a white population. The objections to a thorough
incorporation of the two people, are, with most of the whites,
insuperable; and are admitted by all of them to be very powerful.
If the blacks, strongly marked as they are by physical and
lasting peculiarities, be retained amid the whites, under the
degrading privation of equal rights, political or social, they
must be always dissatisfied with their condition, as a change
only from one to another species of oppression; always secretly
confederating against the ruling and privileged class; and always
uncontrolled by some of the most cogent motives to moral and
respectable conduct. The character of the free blacks even where
their legal condition is least affected by their color, seems to
put these truths beyond question. It is material, also, that the
removal of the blacks to be a distance precluding the jealousies
and hostilities to be apprehended from a neighboring people,
stimulated by the contempt known to be entertained for their
peculiar features; to say nothing of their vindictive
recollections, or the predatory propensities which their state of
society might foster. Nor is it fair, in estimating the danger of
collisions with the whites, to charge it wholly on the side of
the black. There would be reciprocal antipathies doubling the
danger.
The colonizing plan on foot has, as far as it extends, a due
regard to these requisites; with the additional object of
bestowing new blessings, civil and religious, on the quarter of
the Globe most in need of them. The Society proposes to
transport to the African coast all free and freed blacks who may
be willing to remove thither; to provide by fair means, and, it
is understood, with a prospect of success, a suitable territory
for their reception; and to initiate them into such an
establishment as may gradually and indefinitely expand itself.
The experiment, under this view of it, merits encouragement from
all who regard slavery as an evil, who wish to see it diminished
and abolished by peaceable and just means, and who have
themselves no better mode to propose. Those who have most doubted
the success of the experiment must, at least, have wished to find
themselves in an error.
But the views of the Society are limited to the case of blacks,
already free, or who may be _gratuitously_ emancipated. To
provide a commensurate remedy for the evil, the plan must be
extended to the great mass of blacks, and must embrace a fund
sufficient to induce the master, as well as the slave, to concur
in it. Without the concurrence of the master, the benefit will be
very limited as it relates to the negroes, and essentially
defective as it relates to the United States; and the concurrence
of masters must, for the most part, be obtained by purchase.
Can it be hoped that voluntary contributions, however adequate to
an auspicious commencement, will supply the sums necessary to
such an enlargement of the remedy? May not another question be
asked? Would it be reasonable to throw so great a burden on the
individuals distinguished by their philanthropy and patriotism?
The object to be obtained, as an object of humanity, appeals
alike to all; as a national object, it claims the interposition
of the nation. It is the nation which is to reap the benefit. The
nation, therefore, ought to bear the burden.
Must, then, the enormous sums required to pay for, to transport,
and to establish in a foreign land, all the slaves in the United
States, as their masters may be willing to part with them, be
taxed on the good people of the United States, or be obtained by
loans, swelling the public debt to a size pregnant with evils
next in degree to those of slavery itself?
Happily, it is not necessary to answer this question by
remarking, that if slavery, as a national evil, is to be
abolished, and it be just that it be done at the national
expense, the amount of the expense is not a paramount
consideration. It is the peculiar fortune, or, rather, a
providential blessing of the United States, to possess a resource
commensurate to this great object, without taxes on the people,
or even an increase of the public debt.
I allude to the vacant territory, the extent of which is so vast,
and the vendible value of which is so well ascertained.
Supposing the number of slaves to be 1,500,000, and their price
to average 400 dollars, the cost of the whole would be 600
millions of dollars. These estimates are probably beyond the
fact; and from the number of slaves should be deducted; 1. Those
whom their masters would not part with. 2. Those who may be
gratuitously set free by their masters. 3. Those acquiring
freedom under emancipating regulations of the States. 4. Those
preferring slavery where they are to freedom in an African
settlement. On the other hand, it is to be noted that the expense
of removal and settlement is not included in the estimated sum;
and that an increase of the slaves will be going on during the
period required for the execution of the plan.
On the whole, the aggregate sum needed may be stated at about six
hundred millions of dollars.
This will require 200 millions of acres, at three dollars per
acre; or 300 millions at two dollars per acre; a quantity which,
though great in itself, is perhaps not a third part of the
disposable territory belonging to the United States. And to what
object so good, so great, and so glorious, could that peculiar
fund of wealth be appropriated? Whilst the sale of territory
would, on one hand, be planting one desert with a free and
civilized people, it would, on the other, be giving freedom to
another people, and filling with them another desert. And if in
any instance wrong has been done by our forefathers to people of
one colour, by dispossessing them of their soil, what better
atonement is now in our power than that of making what is
rightfully acquired a source of justice and of blessings to a
people of another colour?
As the revolution to be produced in the condition of the negroes
must be gradual, it will suffice if the sale of territory keep
pace with its progress. For a time, at least, the proceeds would
be in advance. In this case, it might be best, after deducting
the expense incident to the surveys and sales, to place the
surplus in a situation where its increase might correspond with
the natural increase of the unpurchased slaves. Should the
proceeds at any time fall short of the calls for their
application, anticipations might be made by temporary loans, to
be discharged as the land should find a market.
But it is probable that for a considerable period the sales would
exceed the calls. Masters would not be willing to strip their
plantations and farms of their labourers so rapidly. The slaves
themselves connected, as they generally are, by tender ties with
others under other masters, would be kept from the list of
emigrants by the want of the multiplied consents to be obtained.
It is probable, indeed, that for a long time a certain portion of
the proceeds might safely continue applicable to the discharge of
the debts or to other purposes of the nation, or it might be most
convenient, in the outset, to appropriate a certain proportion
only of the income from sales to the object in view, leaving the
residue otherwise applicable.
Should any plan similar to that I have sketched be deemed
eligible in itself, no particular difficulty is foreseen from
that portion of the nation, which, with a common interest in the
vacant territory, has no interest in slave property. They are too
just to wish that a partial sacrifice should be made for the
general good, and too well aware that whatever may be the
intrinsic character of that description of property, it is one
known to the Constitution, and, as such could not be
constitutionally taken away without just compensation. That part
of the nation has, indeed, shewn a meritorious alacrity in
promoting, by pecuniary contributions, the limited scheme for
colonizing the blacks, and freeing the nation from the
unfortunate stain on it, which justifies the belief that any
enlargement of the scheme, if founded on just principles, would
find among them its earliest and warmest patrons. It ought to
have great weight that the vacant lands in question have, for the
most part, been derived from grants of the States holding the
slaves to be redeemed and removed by the sale of them.
It is evident, however, that in effectuating a general
emancipation of slaves in the mode which has been hinted,
difficulties of other sorts would be encountered. The provision
for ascertaining the joint consent of the masters and slaves; for
guarding against unreasonable valuations of the latter; and for
the discrimination of those not proper to be conveyed to a
foreign residence, or who ought to remain a charge on masters in
whose service they had been disabled or worn out, and for the
annual transportation of such numbers, would require the mature
deliberations of the national councils. The measure implies
also, the practicability of procuring in Africa an enlargement of
the district or districts for receiving the exiles sufficient for
so great an augmentation of their numbers.
Perhaps the Legislative provision best adapted to the case would
be an incorporation of the Colonizing Society, or the
establishment of a similar one, with proper powers, under the
appointment and superintendence of the National Executive.
In estimating the difficulties, however, incident to any plan of
general emancipation, they ought to be brought into comparison
with those inseparable from other plans, and be yielded to or not
accordingly to the result of the comparison.
One difficulty presents itself which will probably attend every
plan which is to go into effect under the Legislative provisions
of the National Government. But whatever may be the effect of
existing powers of Congress, the Constitution has pointed out the
way in which it can be supplied. And it can hardly be doubted
that the requisite powers might readily be procured for attaining
the great object in question, in any mode whatever approved by
the nation.
If these thoughts can be of any aid in your search of a remedy
for the great evil under which the nation labors, you are very
welcome to them.[8]
TO TENCH COXE.
MONTPELIER, March 20, 1820.
I am glad to find you still sparing moments for subjects
interesting to the public welfare. The remarks on the thorny one
to which you refer in the "National Recorder," seem to present
the best arrangement for the unfortunate part of our population
whose case has enlisted the anxiety of so many benevolent minds,
next to that which provides a foreign outlet and location for
them. I have long thought that our vacant territory was the
resource which, in some mode or other, was most applicable and
adequate as a gradual cure for the portentous evil; without,
however, being unaware that even that would encounter serious
difficulties of different sorts.[9]
TO GENERAL LAFAYETTE.
MONTPELIER, NOV. 25, 1820.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The subject which ruffles the surface of public affairs most, at
present, is furnished by the transmission of the "Territory" of
Missouri from a state of nonage to a maturity for
self-Government, and for a membership in the Union. Among the
questions involved in it, the one most immediately interesting to
humanity is the question whether a toleration or prohibition of
slavery Westward of the Mississippi would most extend its evils.
The human part of the argument against the prohibition turns on
the position, that whilst the importation of slaves from abroad
is precluded, a diffusion of those in the Country tends at once
to meliorate their actual condition, and to facilitate their
eventual emancipation. Unfortunately, the subject, which was
settled at the last session of Congress by a mutual concession of
the parties, is reproduced on the arena by a clause in the
Constitution of Missouri, distinguishing between free persons of
colour and white persons, and providing that the Legislature of
the new State shall exclude from it the former. What will be the
issue of the revived discussion is yet to be seen. The case opens
the wider field, as the Constitution and laws of the different
States are much at variance in the civic character giving to free
persons of colour; those of most of the States, not excepting
such as have abolished slavery, imposing various
disqualifications, which degrade them from the rank and rights of
white persons. All these perplexities develope more and more the
dreadful fruitfulness of the original sin of the African
trade.[10]
TO F. CORBIN
November 26, 1820.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I do not mean to discuss the question how far _slavery_ and
_farming_ are incompatible. Our opinions agree as to the evil,
moral, political, and economical, of the former. I still think,
notwithstanding, that under all the disadvantages of slave
cultivation, much improvement in it is practicable. Proofs are
annually taking place within my own sphere of observation;
particularly where slaves are held in small numbers, by good
masters and managers. As to the very wealthy proprietors, much
less is to be said. But after all, (protesting against any
inference of a disposition to undertake the evil of slavery,) is
it certain that in giving to your wealth a new investment, you
would be altogether freed from the cares and vexations incident
to the shape it now has? If converted into paper, you already
feel some of the contingencies belonging to it; if into
commercial stock, look at the wrecks every where giving warning
of the danger. If into large landed property, where there are no
slaves, will you cultivate it yourself? Then beware of the
difficulty of procuring faithful or complying labourers. Will you
dispose of it in leases? Ask those who have made the experiment
what sort of tenants are to be found where an ownership of the
soil is so attainable. It has been said that America is a country
for the poor, not for the rich. There would be more correctness
in saying it is the country for both, where the latter have a
relish for free government; but, proportionally, more for the
former than for the latter.[11]
TO GENERAL LA FAYETTE.
1821.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The negro slavery is, as you justly complain, a sad blot on our
free country, though a very ungracious subject of reproaches from
the quarter which has been most lavish of them. No satisfactory
plan has yet been devised for taking out the stain. If an asylum
could be found in Africa, that would be the appropriate
destination for the unhappy race among us. Some are sanguine that
the efforts of an existing Colonization Society will accomplish
such a provision; but a very partial success seems the most that
can be expected. Some other region must, therefore, be found for
them as they become free and willing to emigrate. The repugnance
of the whites to their continuance among them is founded on
prejudices, themselves founded on physical distinctions, which
are not likely soon, if ever, to be eradicated. Even in States,
Massachusetts for example, which displayed most sympathy with the
people of colour on the Missouri question, prohibitions are
taking place against their becoming residents. They are every
where regarded as a nuisance, and must really be such as long as
they are under the degradation which public sentiment inflicts on
them. They are at the same time rapidly increasing from
manumissions and from offspring, and of course lessening the
general disproportion between the slaves and the whites. This
tendency is favorable to the cause of a universal
emancipation."[12]
TO DR. MORSE
March 28, 1823
_Queries._
1. Do the planters generally live on their own estates?
2. Does a planter with ten or fifteen slaves employ an
overlooker, or does he overlook his slaves himself?
3. Obtain estimates of the culture of Sugar and Cotton, to show
what difference it makes where the planter resides on his estate,
or where he employs attorneys, overlookers, &c.
4. Is it a common or general practice to mortgage slave estates?
5. Are sales of slave estates very frequent under execution for
debt and what proportion of the whole may be thus sold annually?
6. Does the Planter possess the power of selling the different
branches of a family separate?
7. When the prices of produce, Cotton Sugar, &c., are high, do
the Planters purchase, instead of raising, their corn and other
provisions?
8. When the prices of produce are low, do they then raise their
own corn and other provisions?
9. Do the negroes fare better when the Corn, &c., is raised upon
their master's estate or when he buys it?
10. Do the tobacco planters in America ever buy their own Corn or
other food, or do they always raise it?
11. If they always, or mostly, raise it, can any other reason be
given for the differences of the system pursued by them and that
pursued by the Sugar and Cotton planters than that cultivation of
tobacco is less profitable than that of Cotton or Sugar?
12. Do any of the Planters manufacture the packages for their
product, or the clothing for their negroes and if they do, are
their negroes better clothed than when clothing is purchased?
13. Where, and by whom, is the Cotton bagging of the Brazils
made? is it principally made by free men or slaves?
14. Is it the general system to employ the negroes in task work,
or by the day?
15. How many hours are they generally at work in the former case?
how many in the latter? Which system is generally preferred by
the master? which by the slaves?
16. Is it common to allow them a certain portion of time instead
of their allowance of provisions? In this case, how much is
allowed? Where the slaves have the option, which do they
generally choose? On which system do the slaves look the best,
and acquire the most comforts?
17. Are there many small plantations where the owners possess
only a few slaves? What proportion of the whole may be supposed
to be held in this way?
18. In such cases, are the slaves treated or almost considered a
part of the family?
19. Do the slaves fare best when their situations and that of the
master are brought nearest together?
20. In what state are the slaves as to religion or religious
instruction?
21. Is it common for the slaves to be regularly married?
22. If a man forms an attachment to a woman on a different or
distant plantation, is it the general practice for some
accommodation to take place between the owners of the man and
woman, so that they may live together?
23. In the United States of America, the slaves are found to
increase at about the rate of 3 P cent. P annum. Does the same
take place in other places? Give a census, if such is taken. Show
what cause contributes to this increase, or what prevents it
where it does not take place.
24. Obtain a variety of estimates from the Planters of the cost
of bringing up a child, and at what age it becomes a clear gain
to its owner.
25. Obtain information respecting the comparative cheapness of
cultivation by slaves or by free men.
26. Is it common for the free blacks to labour in the field?
27. Where the labourers consist of free blacks and of white men,
what are the relative prices of their labour when employed about
the same work?
28. What is the proportion of free blacks and slaves?
29. Is it considered that the increase in the proportion of free
blacks to slaves increases or diminishes the danger of
insurrection?
30. Are the free blacks employed in the defence of the Country,
and do they and the Creoles preclude the necessity of European
troops?
31. Do the free blacks appear to consider themselves as more
closely connected with the slaves or with the white population?
and in cases of insurrection, with which have they generally
taken part?
32. What is their general character with respect to industry and
order, as compared with that of the slaves?
33. Are there any instances of emancipation in particular
estates, and what is the result?
34. Is there any general plan of emancipation in progress, and
what?
35. What was the mode and progress of emancipation in those
States in America where slavery has ceased to exist?
Hon. James Madison, Esq.
New Haven, Mar. 14, 1823.
Sir.--The foregoing was transmitted to me from a respectable
correspondent in Liverpool, deeply engaged in the abolition of
the slave trade, and the amelioration of the condition of slaves.
If, sir, your leisure will allow you, and it is agreeable to you
to furnish brief answers to these questions, you will, I
conceive, essentially serve the cause of humanity, and gratify
and oblige the Society above named, and, Sir, with high
consideration and esteem, your most obt servt,
JED'H MORSE.
_Answers_
1. Yes.
2. Employs an overseer for that number of slaves, with few
exceptions.
3. ----
4. Not uncommonly the land; sometimes the slaves; very rarely
both together.
5. The common law, as in England, governs the relation between
land and debts; slaves are often sold under execution for debt;
the proportion to the whole cannot be great within a year, and
varies, of course, with the amount of debt and the urgency of
creditors.
6. Yes.
7-10. Instances are rare where the tobacco planters do not raise
their own provisions.
11. The proper comparison, not between the culture of tobacco and
that of sugar and cotton, but between each of these cultures and
that of provisions. The tobacco planter finds it cheaper to make
them a part of his crop than to buy them. The cotton and sugar
planters to buy them, where this is the case, than to raise them.
The term, cheaper, embraces the comparative facility and
certainty of procuring the supplies.
12. Generally best clothed when from the household manufactures,
which are increasing.
14, 15. Slaves seldom employed in regular task work. They prefer
it only when rewarded with the surplus time gained by their
industry.
16. Not the practice to substitute an allowance of time for the
allowance of provisions.
17. Very many, and increasing with the progressive subdivisions
of property; the proportion cannot be stated.
18, 19. The fewer the slaves, and the fewer the holders of
slaves, the greater the indulgence and familiarity. In districts
composing (comprising?) large masses of slaves there is no
difference in their condition, whether held in small or large
numbers, beyond the difference in the dispositions of the owners,
and the greater strictness of attention where the number is
greater.
20. There is no general system of religious instruction. There
are few spots where religious worship is not within reach, and to
which they do not resort. Many are regular members of
Congregations, chiefly Baptist; and some Preachers also, though
rarely able to read.
21. Not common; but the instances are increasing.
22. The accommodation not unfrequent where the plantations are
very distant. The slaves prefer wives on a different plantation,
as affording occasions and pretexts for going abroad, and
exempting them on holidays from a share of the little calls to
which those at home are liable.
23. The remarkable increase of slaves, as shown by the census,
results from the comparative defect of moral and prudential
restraint on the sexual connexion; and from the absence, at the
same time, of that counteracting licentiousness of intercourse,
of which the worst examples are to be traced where the African
trade, as in the West Indies, kept the number of females less
than of the males.
24. The annual expense of food and raiment in rearing a child may
be stated at about 8, 9, or 10 dollars; and the age at which it
begins to be gainful to its owner about 9 or 10 years.
25. The practice here does not furnish data for a comparison of
cheapness between these two modes of cultivation.
26. They are sometimes hired for field labour in time of harvest,
and on other particular occasions.
27. The examples are too few to have established any such
relative prices.
28. See the census.
29. Rather increases.
30. ----------
31. More closely with the slaves, and more likely to side with
them in a case of insurrection.
32. Generally idle and depraved; appearing to retain the bad
qualities of the slaves, with whom they continue to associate,
without acquiring any of the good ones of the whites, from whom
(they) continued separated by prejudices against their colour,
and other peculiarities.
33. There are occasional instances in the present legal condition
of leaving the State.
34. None.
35. ----------[13]
TO MISS FRANCES WRIGHT
MONTPELLIER, Sept. 1, 1825.
_Dear Madam_,--Your letter to Mrs. Madison, containing
observations addressed to my attention also, came duly to hand,
as you will learn from her, with a printed copy of your plan for
the gradual abolition of slavery in the United States.
The magnitude of this evil among us is so deeply felt, and so
universally acknowledged, that no merit could be greater than
that of devising a satisfactory remedy for it. Unfortunately the
task, not easy under other circumstances, is vastly augmented by
the physical peculiarities[14] of those held in bondage, which
preclude their incorporation with the white population; and by
the blank in the general field of labour to be occasioned by
their exile; a blank into which there would not be an influx of
white labourers, successively taking the place of the exiles, and
which, without such an influx, would have an effect distressing
in prospect to the proprietors of the soil.
The remedy for the evil which you have planned is certainly
recommended to favorable attention by the two characteristics: 1.
That it requires the voluntary concurrence of the holders of the
slaves, with or without pecuniary compensation. 2. That it
contemplates the removal of those emancipated, either to a
foreign or distant region. And it will still further obviate
objections, if the experimental establishments should avoid the
neighborhood of settlements where there are slaves.
Supposing these conditions to be duly provided for, particularly
the removal of the emancipated blacks, the remaining questions
relate to the attitude and adequacy of the process by which the
slaves are at the same time to earn the funds, entire or
supplemental, required for their emancipation and removal; and to
be sufficiently educated for a life of freedom and of social
order.
With respect to a proper course of education, no serious
difficulties present themselves. And as they are to continue in a
state of bondage during the preparatory period, and to be within
the jurisdiction of States recognizing ample authority over them,
a competent discipline cannot be impracticable. The degree in
which this discipline will enforce the needed labour, and in
which a voluntary industry will supply the defect of compulsory
labour, are vital points, on which it may not be safe to be very
positive without some light from actual experiment.
Considering the probable composition of the labourers, and the
known fact that, where the labour is compulsory the greater the
number of labourers brought together (unless, indeed, where
cooperation of many hands is rendered essential by a particular
kind of work, or of machinery) the less are the proportional
profits, it may be doubted whether the surplus from that source
merely, beyond the support of the establishment would
sufficiently accumulate in five, or even more years, for the
objects in view. And candor obliges me to say that I am not
satisfied either that the prospect of emancipation at a future
day will sufficiently overcome the natural and habitual
repugnance to labour, or that there is such an advantage of
united over individual labour as is taken for granted.
In cases where portions of time have been allowed to slaves, as
among the Spaniards, with a view to their working out their
freedom, it is believed that but few have availed themselves of
the opportunity by a voluntary industry; and such a result could
be less relied on in a case where each individual would feel that
the fruit of his exertions would be shared by others, whether
equally or unequally making them, and that the exertions of
others would equally avail him, notwithstanding a deficiency in
his own. Skilful arrangements might palliate this tendency, but
it would be difficult to counteract it effectually.[15]
The examples
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