132 



CIVIL RIGHTS. 



legislation on the same subject, or only allows it per- 

 missive force. It ignores such legislation, and assumes 

 that the matter is one that belongs to the domain of 

 national regulation. 



We have discussed the question presented by the 

 law on the assumption that a right to enjoy equal ac- 

 commodations and privileges in all inns, public con- 

 veyances, and places of public amusement, is one of 

 the essential rights of the citizen which no State can 

 abridge or interfere with. Whether it is such a right 

 or not, is a different question, which, in the view we 

 have taken of the validity ot the law on the ground 

 already stated, it is not necessary to examine. 



The Court then took up the thirteenth 

 amendment, which abolishes slavery. Even 

 admitting that this clothed Congress with 

 power to pass laws necessary and proper for 

 abolishing all badges and incidents of slavery, 

 it could not be held, the Court said, that deny- 

 ing to colored persons equal accommodations 

 and privileges of hotels, public conveyances, 

 and places of amusement, imposed upon them 

 any badge of slavery or servitude. "Such an 

 act of refusal," says the opinion, "has nothing 

 to do with slavery or involuntary servitude, 

 and if it is violative of any right of the party, 

 his redress is to be sought under the laws of 

 the State ; or if those laws are adverse to his 

 rights and do not protect him, his remedy will 

 be found in the corrective legislation which 

 Congress has adopted, or may adopt, for 

 counteracting the effect of State laws, or 

 State action, prohibited by the fourteenth 

 amendment. It would be running the slavery 

 argument into the ground to make it apply to 

 every act of discrimination which a person 

 may see fit to make as to the guests he will 

 entertain, or as to the people he will take into 

 his coach or cab or car, or admit to his con- 

 cert or theatre, or deal with in other matters 

 of intercourse or business. Innkeepers and 

 public carriers, by the laws of all the States, 

 so far as we are aware, are bound, to the 

 extent of their facilities, to furnish proper 

 accommodation to all unobjectionable persons 

 who in good faith apply for them. If the laws 

 themselves make any unjust discrimination, 

 amenable to the prohibitions of the fourteenth 

 amendment, Congress has full power to afford 

 a remedy under that amendment and in ac- 

 cordance with it." 



The grounds for setting aside the first two 

 sections of the act of 1875, under the four- 

 teenth amendment, do not apply to the fourth 

 section,' and this was conceded to be constitu- 

 tional, as had been expressly held in the Vir- 

 ginia jury cases. The section prohibits any 

 discrimination on account of color in the sum- 

 moning or selection of jurors. Such discrimi- 

 nation, the Court points out, can be made only 

 by law, for which the State is responsible. It 

 can not be made by individuals without the 

 authority of State laws. It may be made by 

 statute, or, in the absence of any statutory dis- 

 qualification on account of color, colored jurors 

 may be excluded by a judge or some other officer 

 of the law. In either case the discrimination is 

 effected by the agency of the State. 



Eight of the nine justices concurred in 

 judgment of the Court. An elaborate dissei 

 ing opinion was rendered by Justice Harla 

 of Kentucky, who maintained that the th : 

 teenth as well as the fourteenth amendme 

 conferred upon Congress the power whi 

 was exercised in passing the civil - rights a 

 of 1875. "The opinion in these cases," 

 remarked, " proceeds, as it seems to me, upi 

 grounds entirely too narrow and artifici 

 The substance and spirit of the recent amen 

 ments of the Constitution have been sacrific 

 by a subtile and ingenious verbal criticism 

 He then pointed out that in the Dred Scott ca 

 the Supreme Court had held that negroes we 

 not a part of the people of the United State 

 that they were not entitled to the privileg 

 and immunities of citizens ; that, in the la 

 guage of Chief-Justice Taney, "they had ] 

 rights which the white man was bound to i 

 spect." He cited' an earlier case Prigg i 

 Pennsylvania to show that the Court, in u 

 holding the constitutionality of the iugiti 

 slave law, had conceded to Congress a pow 

 which was not expressly granted by the Co 

 stitution, but was derived from it by.implic 

 tion. The purpose of the thirteenth amen 

 ment, he said, was to abolish slavery with i 

 its badges and incidents, and to establish ui 

 versal freedom. There was a fixed pnrpo 

 to place beyond doubt the power of Congre 

 to legislate in furtherance of these ends. TJ 

 power to enforce the provisions of the amen 

 ment was therefore expressly granted, and n 

 left to implication. He said : 



The thirteenth amendment, my brethren concet 

 did something more than to prohibit slavery 

 an institution, resting upon distinctions of race, a] 

 upheld by positive law. They admit that it esta 

 lished and decreed universal civil freedom throug 

 out the United States. But did that freedom, th 

 established, involve nothing more than exempt! 

 from actual slavery? Was nothing more intend 

 than to forbid one man from owning another 

 property ? Was it the purpose of the nation simp 

 to destroy the institution, and then remit the rac 

 theretofore held in bondage, to the several States i 

 such protection, in their civil rights, necessarily grp 1 

 ing out of freedom, as those States, in their discretio 

 choose to provide \ Were the States, against whc 

 solemn protest the institution was destroyed, to 

 left perfectly free, so far as national interference w 

 concerned, to make or allow discriminations agair 

 that race, as such, in the enjoyment of those fund 

 mental rights that inhere in a state of freedom ? Hi 

 the thirteenth amendment stopped with the swee 

 ing declaration, in its first section, against the exie 

 ence of slavery and involuntary servitude, except f 

 crimCj Congress would have had the power, by ii 

 plication, according to the doctrines of Prigg vs. Cor 

 monwealth of Pennsylvania, repeated in Straader ? 

 West Virginia, to protect the freedom thus establishe 

 and consequently to secure the enjoyment of such en 

 rights as were fundamental in freedom. But that 

 can exert its authority to that extent is now ma< 

 clear, and was intended to be made clear, by the e 

 press grant of power contained in the second secti< 

 of that amendment. 



That there are burdens and disabilities which co: 

 stitute badges of slavery and servitude, and that t 

 express power delegated to Congress to enforce, 1 

 appropriate legislation, the thirteenth amendmei 



