The Journal of Negro History, Volume 6, 1921 | Page 3

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this first effort in America toward actual democracy was withdrawn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