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