The Journal of Negro History, Volume 6, 1921 | Page 4

adoption of the Thirteenth
Amendment, and since that institution rested wholly upon the
inferiority, as a race, of those held in bondage, their freedom
necessarily involved immunity from, and protection against all
discrimination against them, because of their race in respect of such
civil rights as belong to freemen of other races. Congress, therefore,
under its present express power to enforce that amendment by
appropriate legislation, might enact laws to protect that people against
deprivation, because of their race, of any civil rights granted to other
freemen in the same States; and such legislation may be of a direct and
primary character, operating upon States, their officers and agents, and

also upon, at least, such individuals and corporations as exercise public
functions and wield power and authority under the State.
The State was conceded the power to regulate rates, fares of passengers
and freight, and upon these grounds it might regulate the entire
management of railroads in matters affecting the convenience and
safety of the public, such as regulating speed, compelling stops of
prescribed length at stations and prohibiting discriminations and
favoritisms. The position taken here is that these corporations are actual
agents of the State and what the State permits them to do is an act of
the State. The Thirteenth and Fourteenth Amendments made the Negro
race a part of the public and entitled to share in the control and use of
public utilities. Any restriction in the use of these utilities would
deprive the race of its liberty; for "personal liberty consists," says
Blackstone, "in the power of locomotion of changing situation, of
removing one's person to whatever places one's own inclination may
direct, without restraint, unless by due course of law."
In several decisions the court had held that the purpose of 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