LAW, CONSTITUTIONAL. 



459 



only one other clause in the Federal Constitu- 

 tion which can in any degree be supposed to 

 sustain the law under consideration, name- 

 ly, section 2 of Article IV, which declares 

 that " the citizens of each State shall be enti- 

 tled to all the privileges and immunities of 

 citizens of the several States." But this sec- 

 tion, as the Court held, like the fourteenth 

 amendment, is directed against State action. 

 Its object is to place the citizens of each State 

 upon the same footing with citizens of other 

 States and inhibit discriminative legislation 

 against them by other States. "It was never 

 supposed," said Justice Woods, " that this 

 clause conferred on Congress the power to 

 enact a law which would punish a private citi- 

 zen for an invasion of the rights of his fellow- 

 citizen, conferred by the State of which they 

 were both residents on all its citizens alike." 



CONSTITUTIONALITY OF THE CIVIL RIGHTS 

 ACT. The above decision raises the question 

 whether the Civil Eights Act, passed by Con- 

 gress in 1875, to secure to colored people equal 

 rights with white persons in theatres, hotels, 

 and public conveyances, is not also unconsti- 

 tutional. The first section of this act declares 

 that " all persons within the jurisdiction of the 

 "United States shall be entitled to the full and 

 equal enjoyment of the accommodations, ad- 

 vantages, facilities, and privileges of inns, pub- 

 lic conveyances on land and water, theatres, 

 and other places of public amusement; sub- 

 ject only to the conditions and limitations es- 

 tablished by law, and applicable alike to citi- 

 zens of every race and color, regardless of 

 any previous condition of servitude." The act 

 then gives to any aggrieved person an action 

 for damages, and also subjects the offender to 

 fine and imprisonment. According to the 

 above decision of the Supreme Court, in the 

 Harris case, the fourteenth amendment pro- 

 hibits States, but not individuals, from deny- 

 ing equal rights to colored citizens, and that 

 Congress has no power to protect those rights 

 against individual invasion or violation. From 

 this it would seem to follow that Congress has 

 no constitutional authority to prohibit the 

 keepers of hotels and the managers of thea- 

 tres and other places of public amusement 

 from making any unjust discrimination against 

 colored persons. On the same principle, it 

 would have no power under the fourteenth 

 amendment to legislate in furtherance of the 

 equal rights of colored persons in public con- 

 veyances. And it was so held by the United 

 States Court for the District of Kentucky, in 

 August, 1882. In that case (reported in 13 

 Federal Reporter, 337) Mrs. Smoot, a colored 

 woman, was denied admission to a first-class 

 passenger-car on the railroad from Lexington 

 to Covington. She brought an action for dam- 

 ages against the company under the act of 

 Congress of March, 1875. But Judge Barr 

 held that the fourteenth amendment prohib- 

 its only States and not individuals from deny- 

 ing equal rights to colored citizens, and that 



that amendment gives to Congress no power to 

 declare that railroad corporations shall not 

 make any discrimination against colored pas- 

 sengers. 



There is, however, another aspect of this 

 question. The commercial clause of the Con- 

 stitution gives to Congress power to regulate 

 foreign and interstate commerce. This pro- 

 vision was not considered in the Smoot case, 

 for the reason that the defendant road was 

 entirely within the State of Kentucky. But 

 there is little room for doubt that the power 

 of Congress to regulate foreign and interstate 

 commerce extends in such case to the protec- 

 tion of colored passengers. 



The decision of the United States Supreme 

 Court, in the case of Hall against De Cuir, 

 rendered in 1877, and reported in 95 United 

 States Reports, 485, bears on this point. In 

 that case it appeared that the Legislature of 

 Louisiana had passed a law prohibiting any 

 discrimination against colored passengers in 

 public conveyances. Mrs. De Cuir, a colored 

 woman, took passage from New Orleans to 

 Hermitage, La., on a boat plying between the 

 former city and Yicksburg, Miss. She was 

 refused admission to the cabin set apart for 

 white persons, and sued for damages under the 

 State law. The Supreme Court of the United 

 States held that the Louisiana statute, so far 

 as it applied to foreign or interstate trans- 

 portation, was an invasion of the powers vested 

 by the Constitution in Congress. " We think," 

 said Chief- Justice Waite, " that this statute, to 

 the extent that it requires those engaged in the 

 transportation of passengers among the States 

 to carry colored passengers in Louisiana in the 

 same cabin with the whites, is unconstitutional 

 and void. If the public good requires such 

 legislation, it must come from Congress, and 

 not the States." 



A STATE LAW AGAINST MISCEGENATION. 

 In Pace against the State of Alabama, decided 

 January 29, 1883, the Supreme Court held that 

 a State law against miscegenation is not a vio- 

 lation of the fourteenth amendment. Section 

 4,184 of the Code of Alabama imposes a speci- 

 fied penalty upon any man and woman who 

 live together in adultery. Section 4,189 pre- 

 scribes a more severe penalty when the offense 

 is committed by a white person and a negro, 

 and the penalty is extended to the intermar- 

 riage of whites and blacks. The plaintiff in 

 error, a colored man who had been indicted 

 for living with a white woman, contended, 

 through his counsel, that by the above legisla- 

 tion a discrimination was made against colored 

 persons, in violation of the fourteenth amend- 

 ment. The Court unanimously held the law 

 to be constitutional. Justice Field, who de- 

 livered the opinion, said : " The defect in the 

 argument of counsel consists in his assumption 

 that any discrimination is made by the laws 

 of Alabama in the punishment provided for 

 the offense for which the plaintiff in error was 

 indicted, when committed by a person of the 



