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viz.: The Slaughter-House Cases, 16 Wall: 36; Bradwell v. The State, 16 Wall. 130; Bartemeyer v. Iowa, 18 Wall. 129; Minor v. Happersett, 21 Wall. 162; Walker v. Sauvinet, 92 U. S. 90; United States v. Reese, 92 U. S. 214; Kennard v. Louisiana, 92 U. S. 480; United States v. Cruikshank, 92 U. S. 542; Munn v. Illinois, 94 U. S. 113; Chicago B. & C. R. R. Co. v. Iowa, 94 U..S. 155; Blyew v. United States, 13 Wall. 581; Railroad Co. v. Brown, 17 Wall. 445; Hall v. DeCuir, 95 U. S. 485; Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia, 100 U. S. 339; Missouri v. Lewis, 101 U. S. 22; Neal v. Delaware, 103 U. S. 370.
Upon the whole these cases decide that,
1. The Thirteenth Amendment forbids all sorts of involuntary personal servitude except penal, as to all sorts of men, the word servitude taking some color from the historical fact that the United States were then engaged in dealing with African slavery, as well as from the signification of the Fourteenth and Fifteenth Amendments, which must be construed as advanc ing constitutional rights previously existing.
2. The Fourteenth Amendment expresses prohibitions (and consequently implies corresponding positive immunities), limiting State action only, including in such action, however, action by all State agencies, executive, legislative, and judicial, of whatever degree.
3. The Fourteenth Amendment warrants legislation by Congress punishing violations of the immunities thereby secured when committed by agents of States in discharge of ministerial functions.
The right violated by Nichols, which is of the same class as that violated by Stanley and by Hamilton, is the right of locomotion, which Blackstone makes an element of personal liberty. Blackstone's Commentaries, Book I., ch. 1.
In violating this right, Nichols did not act in an exclusively private capacity, but in one devoted to a public use, and so affected with a public, i.c., a State, interest. This phrase will be recognized as taken from the Elevator Cases in 94 U. S., already cited.
Restraint upon the right of locomotion was a well-known
feature of the slavery abolished by the Thirteenth Amendment. A first requisite of the right to appropriate the use of another man was to become the master of his natural power of motion, and, by a mayhem therein of the common law to require the whole community to be on the alert to restrain that power. That this is not exaggeration is shown by the language of the court in Eaton v. Vaughan, 9 Missouri, 734.
Granting that by involuntary servitude, as prohibited in the Thirteenth Amendment, is intended some institution, viz., custom, etc., of that sort, and not primarily mere scattered trespasses against liberty committed by private persons, yet, considering what must be the social tendency in at least large parts of the country, it is "appropriate legislation" against such an institution 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.
Therefore, the above 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, partakes of the specific character of certain contemporaneous solemn and effective action by the United States to which it was a sequel-and is constitutional.
Mr. William M. Randolph for Robinson and wife, plaintiffs in error.
Where the Constitution guarantees a right, Congress is empowered to pass the legislation appropriate to give effect to that right. Prigg v. Pennsylvania, 16 Peters, 539; Ableman v. Booth, 21 How. 506; United States v. Reese, 92 U. S. 214.
Whether Mr. Robinson's rights were created by the Constitution, or only guaranteed by it, in either event the act of Congress, so far as it protects them, is within the Constitution. Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 1; The Passenger Cases, 7 Howard, 283; Crandall v. Nevada, 6 Wall. 35.
In Munn v. Illinois, 94 U. S. 113, the following propositions were affirmed:
"Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for the public good, the manner in which each shall use his own property."
"It has, in the exercise of these powers, been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc."
"When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use."
Undoubtedly, if Congress could legislate on the subject at all, its legislation by the act of 1st March, 1875, was within the principles thus announced.
The penalty denounced by the statute is incurred by denying to any citizen "the full enjoyment of any of the accommodations, advantages, facilities, or privileges" enumerated in the first section, and it is wholly immaterial whether the citizen whose rights are denied him belongs to one race or class or another, or is of one complexion or another. And again, the penalty follows every denial of the full enjoyment of any of the accommodations, advantages, facilities or privileges, except and unless the denial was "for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude."
Mr. William Y. C. Humes and Mr. David Posten for the Memphis and Charleston Railroad Co., defendants in error.
MR. JUSTICE BRADLEY delivered the opinion of the court. After stating the facts in the above language he continued:
It is obvious that the primary and important question in all
the cases is the constitutionality of the law: for if the law is unconstitutional none of the prosecutions can stand.
The sections of the law referred to provide as follows:
"SEC. 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. "SEC. 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 sectior enumerated, or by aiding or inciting such denial, shall for every such offence 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 offence, be deemed guilty of a misdemeanor, and, upon conviction thereof, 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 penalty 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."
Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part.
The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns,
public conveyances, and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.
Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.
The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that: