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,