Race, Class, and Gender in the United States An Integrated Study

480    PART VII How It Happened: Race and Gender Issues in U.S. Law

law of a social state of which they have an imperfect conception, and which is opposed
to the traditions of their history, to the habits of their lives, to the strongest prejudices
of their savage nature; one which measures the red man’s revenge by the maxims of the
white man’s morality.4 (emphasis added)

In recognizing the power of the United States Government to determine the right
of Indians to occupy their lands, the Supreme Court expressed the good faith of the
country in such matters with these words: “the United States will be governed by
such considerations of justice as will control a Christian people in their treatment of
an ignorant and dependent race.”5

Another example of racist stereotyping to be found in the courts is this example
from the Supreme Court of Washington State:

The Indian was a child, and a dangerous child, of nature, to be both protected and
restrained. . . . True, arrangements took the form of treaty and of terms like “cede,” “re-
linquish,” “reserve.” But never were these agreements between equals . . . [but rather]
that “between a superior and an inferior.”6

This reasoning, based on racism, has supported the view that Indians are wards
of the Government who need the protection and assistance of Federal agencies and
it is the Government’s obligation to recreate their governments, conforming them to
a non-Indian model, to establish their priorities, and to make or approve their deci-
sions for them.

Indian education policies have often been examples of the Federal Govern­ment
having determined what is “best” for Indians. Having judged that assimilation could
be promoted through the indoctrination process of white schools, the Federal Gov-
ernment began investing in Indian education. Following the model established by
army officer Richard Pratt in 1879, boarding schools were established where Indian
children were separated from the influences of tribal and home life. The boarding
schools tried to teach Indians skills and trades that would be useful in white society,
utilizing stern disciplinary measures to force assimilation. The tactics used are within
memory of today’s generation of tribal leaders who recall the policy of deterring
communication in native languages. “I remember being punished many times for . . .
singing one Navajo song, or a Navajo word slipping out of my tongue just in an un-
planned way, but I was punished for it.”

Federal education was made compulsory, and the policy was applied to tribes that
had sophisticated school systems of their own as well as to tribes that really needed
assistance to establish educational systems. The ability of the tribal school to educate
was not relevant, given that the overriding goal was assimilation rather than education.

Racism in Indian affairs has not been sanctioned recently by political or religious
leaders or other leaders in American society. In fact, public pronouncements over
the last several decades have lamented past evils and poor treatment of Indians.7
The virulent public expressions of other eras characterizing Indians as “children” or
“savages” are not now acceptable modes of public expression. Public policy today is
a commitment to Indian self-determination. Numerous actions of Congress and the
executive branch give evidence of a more positive era for Indian policy.8 Beneath

1 U.S. Commission on Human Rights / Indian Tribes  481

the surface, however, the effects of centuries of racism still persist. The attitudes of
the public, of State and local officials, and of Federal policymakers do not always
live up to the positive pronouncements of official policy. Some decisions today are
perceived as being made on the basis of precedents mired in the racism and greed of
another era. Perhaps more important, the legacy of racism permeates behavior and
that behavior creates classic civil rights violations. . . .

NOTES

1.  U.S. Const. Art. 1, §8.
2.  D’Arcy McNickel, Native American Tribalism (New York: Oxford University Press,
1973), p. 56.
3.  Act of May 28, 1830, ch. 148, 4 Stat. 411.
4.  Ex Parte Crow Dog, 109 U.S. 556, 571 (1883).
5.  Missouri, Kansas, and Texas Railway Co. v. Roberts, 152 U.S. 114, 117 (1894).
6.  State v. Towessnute, 154 P. 805, 807 (Wash. Sup. Ct. 1916), quoting Choctaw ­Nation v.
United States, 119 U.S. 1, 27 (1886).
7.  See, e.g., President Nixon’s July 8, 1970, Message to the Congress, Recommendations
for Indian Policy, H. Doc. No. 91–363, 91st Cong., 2d sess.
8.  Ibid; Indian Self-Determination and Education Assistance Act, Pub. L. No. 93–638, 88
Stat. 2203 (1975); Indian Child Welfare Act of 1978, Pub. L. No. 95–608, 92 Stat. 3096; U.S.
Department of the Interior, Report on the Implementation of the Helsinki Final Act (1979).

2  ­A n Act for the Better Ordering

and Governing of Negroes and
Slaves, South Carolina, 1712

Colonial America had a role for the Negro. But the presence of a servile population,
presumably of inferior stock, made it necessary to adopt measures of control. As
might be expected, the southern colonies had the most highly developed codes
governing Negroes. In 1712 South Carolina passed “An Act for the better ordering
and governing of Negroes and Slaves.” This comprehensive measure served as a
model for slave codes in the South during the colonial and national periods. Eight
of its thirty-five sections are reproduced below.

Whereas, the plantations and estates of this province cannot be well and sufficiently
managed and brought into use, without the labor and service of negroes and other
slaves; and forasmuch as the said negroes and other slaves brought unto the people
of this Province for that purpose, are of barbarous, wild, savage natures, and such as
renders them wholly unqualified to be governed by the laws, customs, and practices
of this Province; but that it is absolutely necessary, that such other constitutions,
laws and orders, should in this Province be made and enacted, for the good regulat-
ing and ordering of them, as may restrain the disorders, rapines and inhumanity, to
which they are naturally prone and inclined, and may also tend to the safety and
security of the people of this Province and their estates; to which purpose,

I. Be it therefore enacted, by his Excellency William, Lord Craven, Palatine, and the
rest of the true and absolute Lords and Proprietors of this Province, by and with the
advice and consent of the rest of the members of the General Assembly, now met at
Charlestown, for the South-west part of this Province, and by the authority of the
same, That all negroes, mulatoes, mustizoes or Indians, which at any time heretofore
have been sold, or now are held or taken to be, or hereafter shall be bought and sold
for slaves, are hereby declared slaves; and they, and their children, are hereby made
and declared slaves, to all intents and purposes; excepting all such negroes, mula-
toes, mustizoes or Indians, which heretofore have been, or hereafter shall be, for
some particular merit, made and declared free, either by the Governor and council
of this Province, pursuant to any Act or law of this Province, or by their respective
owners or masters; and also, excepting all such negroes, mulatoes, mustizoes or
Indians, as can prove they ought not to be sold for slaves. And in case any negro,
mulatoe, mustizoe or Indian, doth lay claim to his or her freedom, upon all or any
of the said accounts, the same shall be finally heard and determined by the Governor
and council of this Province.

From Thomas Cooper and David J. McCord, eds., Statutes at Large of South Carolina (10 vols.,
Columbia, 1836–1841),VII, 352–357.

482

2 An Act for the Better Ordering and Governing of Negroes and Slaves  483

II. And for the better ordering and governing of negroes and all other slaves in this
Province, Be it enacted by the authority aforesaid, That no master, mistress, overseer,
or other person whatsoever, that hath the care and charge of any negro or slave, shall
give their negroes and other slaves leave, on Sundays, hollidays, or any other time,
to go out of their plantations, except such negro or other slave as usually wait upon
them at home or abroad, or wearing a livery; and every other negro or slave that shall
be taken hereafter out of his master’s plantation, without a ticket, or leave in writ-
ing, from his master or mistress, or some other person by his or her appointment, or
some white person in the company of such slave, to give an account of his business,
shall be whipped; and every person who shall not (when in his power) apprehend
every negro or other slave which he shall see out of his master’s plantation, without
leave as aforesaid, and after apprehended, shall neglect to punish him by moderate
whipping, shall forfeit twenty shillings, the one half to the poor, to be paid to the
church wardens of the Parish where such forfeiture shall become due, and the other
half to him that will inform for the same, within one week after such neglect; and that
no slave may make further or other use of any one ticket than was intended by him
that granted the same, every ticket shall particularly mention the name of every slave
employed in the particular business, and to what place they are sent, and what time
they return; and if any person shall presume to give any negro or slave a ticket in the
name of his master or mistress, without his or her consent, such person so doing shall
forfeit the sum of twenty shillings; one half to the poor, to be disposed of as aforesaid,
the other half to the person injured, that will complain against the person offending,
within one week after the offence committed. And for the better security of all such
persons that shall endeavor to take any runaway, or shall examine any slave for his
ticket, passing to and from his master’s plantation, it is hereby declared lawful for any
white person to beat, maim or assult, and if such negro or slave cannot otherwise be
taken, to kill him, who shall refuse to shew his ticket, or, by running away or resis-
tance, shall endeavor to avoid being apprehended or taken.

III. And be it further enacted by the authority aforesaid, That every master, mistress
or overseer of a family in this Province, shall cause all his negro houses to be searched
diligently and effectually, once every fourteen days, for fugitive and runaway slaves,
guns, swords, clubs, and any other mischievous weapons, and finding any, to take
them away, and cause them to be secured; as also, for clothes, goods, and any other
things and commodities that are not given them by their master, mistress, com-
mander or overseer, and honestly come by; and in whose custody they find any thing
of that kind, and suspect or know to be stolen goods, the same they shall seize and
take into their custody, and a full and ample description of the particulars thereof, in
writing, within ten days after the discovery thereof, either to the provost marshall,
or to the clerk of the parish for the time being, who is hereby required to receive the
same, and to enter upon it the day of its receipt, and the particulars to file and keep
to himself; and the clerk shall set upon the posts of the church door, and the provost
marshall upon the usual public places, or places of notice, a short brief, that such lost
goods are found; whereby, any person that hath lost his goods may the better come
to the knowledge where they are; and the owner going to the marshall or clerk, and

484    PART VII How It Happened: Race and Gender Issues in U.S. Law

proving, by marks or otherwise, that the goods lost belong to him, and paying twelve
pence for the entry and declaration of the same, if the marshall or clerk be convinced
that any part of the goods certified by him to be found, appertains to the party inquir-
ing, he is to direct the said party inquiring to the place and party where the goods be,
who is hereby required to make restitution of what is in being to the true owner; and
every master, mistress or overseer, as also the provost marshall or clerk, neglecting his
duty in any the particulars aforesaid, for every neglect shall forfeit twenty shillings.

IV. And for the more effectual detecting and punishing such persons that trade
with any slave for stolen goods, Be it further enacted by the authority aforesaid, That
where any person shall be suspected to trade as aforesaid, any justice of the peace
shall have power to take from him suspected, sufficient recognizance, not to trade
with any slave contrary to the laws of this Province; and if it shall afterwards appear
to any of the justices of the peace, that such person hath, or hath had, or shipped off,
any goods, suspected to be unlawfully come by, it shall be lawful for such justice of
the peace to oblige the person to appear at the next general sessions, who shall there
be obliged to make reasonable proof, of whom he brought, or how he came by, the
said goods, and unless he do it, his recognizance shall be forfeited. . . .

VII. And whereas, great numbers of slaves which do not dwell in Charlestown,
on Sundays and holidays resort thither, to drink, quarrel, fight, curse and swear,
and profane the Sabbath, and using and carrying of clubs and other mischievous
weapons, resorting in great companies together, which may give them an opportunity
of executing any wicked designs and purposes, to the damage and prejudice of the
inhabitants of this Province; for the prevention whereof, Be it enacted by the author-
ity aforesaid, That all and every the constables of Charlestown, separately on every
Sunday, and the holidays at Christmas, Easter and Whitsonside [sic], together with so
many men as each constable shall think necessary to accompany him, which he is
hereby empowered for that end to press, under the penalty of twenty shillings to the
person that shall disobey him, shall, together with such persons, go through all or
any the streets, and also, round about Charlestown, and as much further on the neck
as they shall be informed or have reason to suspect any meeting or concourse of any
such negroes or slaves to be at that time, and to enter into any house, at Charlestown,
or elsewhere, to search for such slaves, and as many of them as they can apprehend,
shall cause to be publicly whipped in Charlestown, and then to be delivered to the
marshall, who for every slave so whipped and delivered to him by the constable, shall
pay the constable five shillings, which five shillings shall be repaid the said marshall
by the owner or head of that family to which the said negro or slave, doth belong,
together with such other charges as shall become due to him for keeping runaway
slaves; and the marshall shall in all respects keep and dispose of such slave as if the
same was delivered to him as a runaway, under the same penalties and forfeiture as
hereafter in that case is provided; and every constable of Charlestown which shall
neglect or refuse to make search as aforesaid, for every such neglect shall forfeit the
sum of twenty shillings. . . .

IX. And be it further enacted by the authority aforesaid, That upon complaint made
to any justice of the peace, of any heinous or grievous crime, committed by any slave

2 An Act for the Better Ordering and Governing of Negroes and Slaves  485

or slaves, as murder, burglary, robbery, burning of houses, or any lesser crimes, as
killing or stealing any meat or other cattle, maiming one the other, stealing of fowls,
provisions, or such like trespasses or injuries, the said justice shall issue out his war-
rant for apprehending the offender or offenders, and for all persons to come before
him that can give evidence; and if upon examination, it probably appeareth, that the
apprehended person is guilty, he shall commit him or them to prison, or immediately
proceed to tryal of the said slave or slaves, according to the form hereafter specified,
or take security for his or their forthcoming, as the case shall require, and also to
certify to the justice next to him, the said cause, and to require him, by virtue of this
Act, to associate himself to him, which said justice is hereby required to do, and they
so associated, are to issue their summons to three sufficient freeholders, acquainting
them with the matter, and appointing them a day, hour and place, when and where
the same shall be heard and determined, at which day, hour and place, the said jus-
tices and freeholders shall cause the offenders and evidences to come before them,
and if they, on hearing the matter, the said freeholders being by the said justices first
sworn to judge uprightly and according to evidence, and diligently weighing and
examining all evidences, proofs and testimonies (and in case of murder only, if on
violent presumption and circumstances), they shall find such negro or other slave or
slaves guilty thereof, they shall give sentence of death, if the crime by law deserve the
same, and forthwith by their warrant cause immediate execution to be done, by the
common or any other executioner, in such manner as they shall think fit, the kind
of death to be inflicted to be left to their judgment and discretion; and if the
crime committed shall not deserve death, they shall then condemn and adjudge the
criminal or criminals to any other punishment, but not extending to limb or disabling
him, without a particular law directing such punishment, and shall forthwith order
execution to be done accordingly.

X. And in regard great mischiefs daily happen by petty larcenies committed by
negroes and slaves of this Province, Be it further enacted by the authority aforesaid,
That if any negro or other slave shall hereafter steal or destroy any goods, chattels, or
provisions whatsoever, of any other person than his master or mistress, being under
the value of twelve pence, every negro or other slave so offending, and being brought
before some justice of the peace of this Province, upon complaint of the party injured,
and shall be adjudged guilty by confession, proof, or probable circumstances, such
negro or slave so offending, excepting children, whose punishment is left wholly to
the discretion of the said justice, shall be adjudged by such justice to be publicly and
severely whipped, not exceeding forty lashes; and if such negro or other slave pun-
ished as aforesaid, be afterwards, by two justices of the peace, found guilty of the like
crimes, he or they, for such his or their second offence, shall either have one of his
ears cut off, or be branded in the forehead with a hot iron, that the mark thereof may
remain; and if after such punishment, such negro or slave for his third offence, shall
have his nose slit; and if such negro or other slave, after the third time as aforesaid,
be accused of petty larceny, or of any of the offences before mentioned, such negro
or other slave shall be tried in such manner as those accused of murder, burglary, etc.
are before by this Act provided for to be tried, and in case they shall be found guilty a

486    PART VII How It Happened: Race and Gender Issues in U.S. Law

fourth time, of any of the offences before mentioned, then such negro or other slave
shall be adjudged to suffer death, or other punishment, as the said justices shall think
fitting; and any judgment given for the first offence, shall be a sufficient conviction for
the first offence; and any after judgment after the first judgment, shall be a sufficient
conviction to bring the offender within the penalty of the second offence, and so
for inflicting the rest of the punishments; and in case the said justices and freehold-
ers, and any or either of them, shall neglect or refuse to perform the duties by this
Act required of them, they shall severally, for such their defaults, forfeit the sum of
twenty-five pounds. . . .

XII. And it is further enacted by the authority aforesaid, That if any negroes or other
slaves shall make mutiny or insurrection, or rise in rebellion against the authority and
government of this Province, or shall make preparation of arms, powder, bullets or
offensive weapons, in order to carry on such mutiny or insurrection, or shall hold any
counsel or conspiracy for raising such mutiny, insurrection or rebellion, the offenders
shall be tried by two justices of the peace and three freeholders, associated together as
before expressed in case of murder, burglary, etc., who are hereby empowered and re-
quired to try the said slaves so offending, and inflict death, or any other punishment,
upon the offenders, and forthwith by their warrant cause execution to be done, by the
common or any other executioner, in such manner as they shall think fitting; and if
any person shall make away or conceal any negro or negroes, or other slave or slaves,
suspected to be guilty of the beforementioned crimes, and not upon demand bring
forth the suspected offender or offenders, such person shall forfeit for every negro
or slave so concealed or made away, the sum of fifty pounds; Provided, nevertheless,
that when and as often as any of the beforementioned crimes shall be committed by
more than one negro, that shall deserve death, that then and in all such cases, if the
Governor and council of this Province shall think fitting, and accordingly shall order,
that only one or more of the said criminals should suffer death as exemplary, and the
rest to be returned to the owners, that then, the owners of the negroes so offending,
shall bear proportionably the loss of the said negro or negroes so put to death, as
shall be allotted them by the said justices and freeholders; and if any person shall
refuse his part so allotted him, that then, and in all such cases, the said justices and
freeholders are hereby required to issue out their warrant of distress upon the goods
and chattels of the person so refusing, and shall cause the same to be sold by public
outcry, to satisfy the said money so allotted him to pay, and to return the overplus,
if any be, to the owner; Provided, nevertheless, that the part allotted for any person to
pay for his part or proportion of the negro or negroes so put to death, shall not exceed
one sixth part of his negro or negroes so excused and pardoned; and in case that shall
not be sufficient to satisfy for the negro or negroes that shall be put to death, that the
remaining sum shall be paid out of the public treasury of this Province.

3  The “Three-Fifths Compromise”

The U.S. Constitution, Article I, Section 2

One of the major debates in the Constitutional Convention hinged on the use of
slaves in computing taxes and fixing representation. Southern delegates held that
slaves should be computed in determining representation in the House, but that
they should not be counted in determining a state’s share of the direct tax burden.
The northern delegates’ point of view was exactly the opposite. A compromise
was reached whereby three-fifths of the slaves were to be counted in apportion-
ment of representation and in direct taxes among the states. Thus the South was
victorious in obtaining representation for its slaves, even though delegate Luther
Martin might rail that the Constitution was an insult to the Deity “who views with
equal eye the poor African slave and his American master.” The “three-fifths com-
promise” appears in Article I, Section 2.

Representatives and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective Numbers, which
shall be determined by adding to the whole Number of free Persons, including those
bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of
all other Persons.

487

4  A n Act Prohibiting the Teaching

of Slaves to Read

To keep the slaves in hand, it was deemed necessary to keep them innocent of
the printed page. Otherwise, they might read abolitionist newspapers that were
smuggled in, become dissatisfied, forge passes, or simply know too much. Hence
most states passed laws prohibiting anyone from teaching slaves to read or write.
The North Carolina statute was typical.

An Act to Prevent All Persons from Teaching Slaves
to Read or Write, the Use of Figures Excepted

Whereas the teaching of slaves to read and write, has a tendency to excite dissatisfac-
tion in their minds, and to produce insurrection and rebellion, to the manifest injury
of the citizens of this State:
Therefore,
Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted
by the authority of the same, That any free person, who shall hereafter teach, or attempt
to teach, any slave within the State to read or write, the use of figures excepted, or shall
give or sell to such slave or slaves any books or ­pamphlets, shall be liable to indictment
in any court of record in this State having jurisdiction thereof, and upon conviction,
shall, at the discretion of the court, if a white man or woman, be fined not less than
one hundred dollars, nor more than two hundred dollars, or imprisoned; and if a free
person of color, shall be fined, imprisoned, or whipped, at the discretion of the court,
not exceeding thirty-nine lashes, nor less than twenty lashes.

II. Be it further enacted, That if any slave shall hereafter teach, or attempt to teach,
any other slave to read or write, the use of figures excepted, he or she may be car-
ried before any justice of the peace, and on conviction thereof, shall be sentenced to
receive thirty-nine lashes on his or her bare back.

III. Be it further enacted, That the judges of the Superior Courts and the justices of
the County Courts shall give this act in charge to the grand juries of their respective
counties.

From Acts Passed by the General Assembly of the State of North Carolina at the Session of 1830–1831
(Raleigh, 1831), 11.

488

5    Declaration of Sentiments and

Resolutions, Seneca Falls  
Convention, 1848

The Declaration of Sentiments, adopted in July 1848 at Seneca Falls, New York, at
the first woman’s rights convention, is the most famous document in the history
of feminism. Like its model, the Declaration of Independence, it contains a bill of
particulars. Some people at the meeting thought the inclusion of disfranchisement
in the list of grievances would discredit the entire movement, and when the reso-
lutions accompanying the Declaration were put to a vote, the one calling for the
suffrage was the only one that did not pass unanimously. But it did pass and thus
inaugurated the woman’s suffrage movement in the United States.

Declaration of Sentiments

When, in the course of human events, it becomes necessary for one portion of the
family of man to assume among the people of the earth a position different from
that which they have hitherto occupied, but one to which the laws of nature and of
nature’s God entitle them, a decent respect to the opinions of mankind requires that
they should declare the causes that impel them to such a course.

We hold these truths to be self-evident: that all men and women are created equal;
that they are endowed by their Creator with certain inalienable rights; that among
these are life, liberty, and the pursuit of happiness; that to secure these rights govern-
ments are instituted, deriving their just powers from the consent of the governed.
Whenever any form of government becomes destructive of these ends, it is the right
of those who suffer from it to refuse allegiance to it, and to insist upon the institu-
tion of a new government, laying its foundation on such principles, and organizing
its powers in such form, as to them shall seem most likely to effect their safety and
happiness. Prudence, indeed, will dictate that governments long established should
not be changed for light and transient causes; and accordingly all experience hath
shown that mankind are more disposed to suffer, while evils are sufferable, than to
right themselves by abolishing the forms to which they were accustomed. But when
a long train of abuses and usurpations, pursuing invariably the same object, evinces
a design to reduce them under absolute despotism, it is their duty to throw off such
government, and to provide new guards for their future security. Such has been
the patient sufferance of the women under this government, and such is now the ne-
cessity which constrains them to demand the equal station to which they are entitled.

The history of mankind is a history of repeated injuries and usurpations on the
part of man toward woman, having in direct object the establishment of an absolute
tyranny over her. To prove this, let facts be submitted to a candid world.

489

490    PART VII How It Happened: Race and Gender Issues in U.S. Law

He has never permitted her to exercise her inalienable right to the elective franchise.
He has compelled her to submit to laws, in the formation of which she had no voice.
He has withheld from her rights which are given to the most ignorant and de-
graded men—both natives and foreigners.
Having deprived her of this first right of a citizen, the elective franchise, thereby
leaving her without representation in the halls of legislation, he has oppressed her
on all sides.
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right in property, even to the wages she earns.
He has made her, morally, an irresponsible being, as she can commit many crimes
with impunity, provided they be done in the presence of her husband. In the cov-
enant of marriage, she is compelled to promise obedience to her husband, he becom-
ing, to all intents and purposes, her master—the law giving him power to deprive her
of her liberty, and to administer chastisement.
He has so framed the laws of divorce, as to what shall be the proper causes, and
in case of separation, to whom the guardianship of the children shall be given, as to
be wholly regardless of the happiness of women—the law, in all cases, going upon
the false supposition of the supremacy of man, and giving all power into his hands.
After depriving her of all rights as a married woman, if single, and the owner of
property, he has taxed her to support a government which recognizes her only when
her property can be made profitable to it.
He has monopolized nearly all the profitable employments, and from those she is
permitted to follow, she receives but a scanty remuneration. He closes against her all
the avenues to wealth and distinction which he considers most honorable to himself.
As a teacher of theology, medicine, or law, she is not known.
He has denied her the facilities for obtaining a thorough education, all colleges
being closed against her.
He allows her in Church, as well as State, but a subordinate position, claiming
Apostolic authority for her exclusion from the ministry, and, with some exceptions,
from any public participation in the affairs of the Church.
He has created a false public sentiment by giving to the world a different code of
morals for men and women, by which moral delinquencies which exclude women
from society, are not only tolerated, but deemed of little account in man.
He has usurped the prerogative of Jehovah himself, claiming it as his right to as-
sign for her a sphere of action, when that belongs to her conscience and to her God.
He has endeavored, in every way that he could, to destroy her confidence in her
own powers, to lessen her self-respect, and to make her willing to lead a dependent
and abject life.
Now, in view of this entire disfranchisement of one-half the people of this
country, their social and religious degradation—in view of the unjust laws above
mentioned, and because women do feel themselves aggrieved, oppressed, and
fraudulently deprived of their most sacred rights, we insist that they have immedi-
ate admission to all the rights and privileges which belong to them as citizens of
the United States.

5 Declaration of Sentiments and Resolutions, Seneca Falls Convention, 1848   491

In entering upon the great work before us, we anticipate no small amount of mis-
conception, misrepresentation, and ridicule; but we shall use every instrumentality
within our power to effect our object. We shall employ agents, circulate tracts, petition
the State and National legislatures, and endeavor to enlist the pulpit and the press
in our behalf. We hope this Convention will be followed by a series of Conventions
embracing every part of the country.

Resolutions

Whereas, The great precept of nature is conceded to be, that “man shall pursue his
own true and substantial happiness.” Blackstone in his Commentaries remarks, that
this law of Nature being coeval with mankind, and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe, in all coun-
tries and at all times; no human laws are of any validity if contrary to this, and such
of them as are valid, derive all their force, and all their validity, and all their authority,
mediately and immediately, from this original; therefore,

Resolved, That such laws as conflict, in any way, with the true and substantial hap-
piness of woman, are contrary to the great precept of nature and of no validity, for
this is “superior in obligation to any other.”

Resolved, That all laws which prevent woman from occupying such a station in
society as her conscience shall dictate, or which place her in a position inferior to
that of man, are contrary to the great precept of nature, and therefore of no force
or authority.

Resolved, That woman is man’s equal—was intended to be so by the Creator, and
the highest good of the race demands that she should be recognized as such.

Resolved, That the women of this country ought to be enlightened in regard to
the laws under which they live, that they may no longer publish their degradation
by declaring themselves satisfied with their present position, nor their ignorance, by
asserting that they have all the rights they want.

Resolved, That inasmuch as man, while claiming for himself intellectual superiority,
does accord to woman moral superiority, it is pre-eminently his duty to encourage her
to speak and teach, as she has an opportunity, in all religious assemblies.

Resolved, That the same amount of virtue, delicacy, and refinement of behavior
that is required of woman in the social state, should also be required of man, and the
same transgressions should be visited with equal severity on both man and woman.

Resolved, That the objection of indelicacy and impropriety, which is so often
brought against woman when she addresses a public audience, comes with a very
ill-grace from those who encourage, by their attendance, her appearance on the stage,
in the concert, or in feats of the circus.

Resolved, That woman has too long rested satisfied in the circumscribed limits
which corrupt customs and a perverted application of the Scriptures have marked
out for her, and that it is time she should move in the enlarged sphere which her great
Creator has assigned her.

492    PART VII How It Happened: Race and Gender Issues in U.S. Law

Resolved, That it is the duty of the women of this country to secure to themselves
their sacred right to the elective franchise.

Resolved, That the equality of human rights results necessarily from the fact of the
identity of the race in capabilities and responsibilities.

Resolved, therefore, That, being invested by the Creator with the same capabilities,
and the same consciousness of responsibility for their exercise, it is demonstrably the
right and duty of woman, equally with man, to promote every righteous cause by
every righteous means; and especially in regard to the great subjects of morals and
religion, it is self-evidently her right to participate with her brother in teaching them,
both in private and in public, by writing and by speaking, by any instrumentalities
proper to be used, and in any assemblies proper to be held; and this being a self-
evident truth growing out of the divinely implanted principles of human nature, any
custom or authority adverse to it, whether modern or wearing the hoary sanction
of antiquity, is to be regarded as a self-evident falsehood, and at war with mankind.
[All the preceding resolutions had been drafted by Elizabeth Cady Stanton. At the last
session of the convention Lucretia Mott offered the following, which, along with all
the other resolutions except the ninth, was adopted unanimously.—Ed.]

Resolved, That the speedy success of our cause depends upon the zealous and
untiring efforts of both men and women, for the overthrow of the monopoly of the
pulpit, and for the securing to woman an equal participation with men in the various
trades, professions, and commerce.

6  People v. Hall, 1854

Bias against Chinese and other colored “races” was endemic in nineteenth-century
California, but perhaps no single document so well demonstrates that bias as this
majority opinion handed down by the Chief Justice of the California Supreme
Court. Since Chinese miners lived in small, segregated groups, the practical effect
of this decision was to declare “open season” on Chinese, since crimes against
them were likely to be witnessed only by other Chinese.

The People, Respondent, v.
George W. Hall, Appellant

The appellant, a free white citizen of this State, was convicted of murder upon the
testimony of Chinese witnesses.

The point involved in this case, is the admissibility of such evidence.
The 394th section of the Act Concerning Civil Cases, provides that no Indian or
Negro shall be allowed to testify as a witness in any action or proceeding in which a
White person is a party.
The 14th section of the Act of April 16th, 1850, regulating Criminal Proceedings,
provides that “No Black, or Mulatto person, or Indian, shall be allowed to give evi-
dence in favor of, or against a white man.”
The true point at which we are anxious to arrive, is the legal signification of the
words, “Black, Mulatto, Indian and White person,” and whether the Legislature ad-
opted them as generic terms, or intended to limit their application to specific types
of the human species.
Before considering this question, it is proper to remark the difference between the
two sections of our Statute, already quoted, the latter being more broad and compre-
hensive in its exclusion, by use of the word “Black,” instead of Negro.
Conceding, however, for the present, that the word “Black,” as used in the 14th
section, and “Negro,” in 394th, are convertible terms, and that the former was in-
tended to include the latter, let us proceed to inquire who are excluded from testifying
as witnesses under the term “Indian.”
When Columbus first landed upon the shores of this continent, in his attempt to
discover a western passage to the Indies, he imagined that he had accomplished the
object of his expedition, and that the Island of San Salvador was one of those Islands
of the Chinese sea, lying near the extremity of India, which had been described by
navigators.
Acting upon this hypothesis, and also perhaps from the similarity of features and
physical conformation, he gave to the Islanders the name of Indians, which appella-
tion was universally adopted, and extended to the aboriginals of the New World, as
well as of Asia.

493

494    PART VII How It Happened: Race and Gender Issues in U.S. Law

From that time, down to a very recent period, the American Indians and the Mon-
golian, or Asiatic, were regarded as the same type of human species. . . .

. . . That this was the common opinion in the early history of American legislation,
cannot be disputed, and, therefore, all legislation upon the subject must have borne
relation to that opinion. . . .

. . . In using the words, “No Black, or Mulatto person, or Indian shall be allowed
to give evidence for or against a White person,” the Legislature, if any intention can
be ascribed to it, adopted the most comprehensive terms to embrace every known
class or shade of color, as the apparent design was to protect the White person from
the influence of all testimony other than that of persons of the same caste. The use
of these terms must, by every sound rule of construction, exclude every one who is
not of white blood. . . .

. . . We have carefully considered all the consequences resulting from a different
rule of construction, and are satisfied that even in a doubtful case we would be im-
pelled to this decision on grounds of public policy.

The same rule which would admit them to testify, would admit them to all the
equal rights of citizenship, and we might soon see them at the polls, in the jury box,
upon the bench, and in our legislative halls.

This is not a speculation which exists in the excited and overheated imagination
of the patriot and statesman, but it is an actual and present danger.

The anomalous spectacle of a distinct people, living in our community, recogniz-
ing no laws of this State except through necessity, bringing with them their prejudices
and national feuds, in which they indulge in open violation of law; whose mendac-
ity is proverbial; a race of people whom nature has marked as inferior, and who are
incapable of progress or intellectual development beyond a certain point, as their
history has shown; differing in language, opinions, color, and physical conforma-
tion; between whom and ourselves nature has placed an impassible difference, is
now presented, and for them is claimed, not only the right to swear away the life of
a citizen, but the further privilege of participating with us in administering the affairs
of our Government. . . .

. . . For these reasons, we are of opinion that the testimony was inadmissible. . . .

7  Dred Scott v. Sandford, 1857

The question is simply this: Can a negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community formed and
brought into existence by the Constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities, guarantied by that instru-
ment to the citizen? One of which rights is the privilege of suing in a court of the
United States in the cases specified in the Constitution.

It will be observed, that the plea applies to that class of persons only whose ances-
tors were negroes of the African race, and imported into this country, and sold and
held as slaves. The only matter in issue before this court, therefore, is whether the de-
scendants of such slaves, when they shall be emancipated, or who are born of parents
who had become free before their birth, are citizens of a State, in the sense in which
the word citizen is used in the Constitution of the United States. And this being the
only matter in dispute on the pleadings, the court must be understood as speaking
in his opinion of that class only, that is, of those persons who are the descendants of
Africans who were imported into this country, and sold as slaves.

It becomes necessary, therefore, to determine who were citizens of the several
States when the Constitution was adopted. And in order to do this, we must recur
to the Governments and institutions of the thirteen colonies, when they separated
from Great Britain and formed new sovereignties, and took their places in the fam-
ily of independent nations. We must inquire who, at that time, were recognised as
the people or citizens of a State, whose rights and liberties had been outraged by the
English Government; and who declared their independence, and assumed the powers
of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the
language used in the Declaration of Independence, show, that neither the class of
persons who had been imported as slaves, nor their descendants, whether they had
become free or not, were then acknowledged as a part of the people, nor intended to
be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that
unfortunate race, which prevailed in the civilized and enlightened portions of the
world at the time of the Declaration of Independence, and when the Constitu-
tion of the United States was formed and adopted. But the public history of every
European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior
order, and altogether unfit to associate with the white race, either in social or political
relations; and so far inferior, that they had no rights which the white man was bound
to respect; and that the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of merchandise

From Benjamin C. Howard, Report of the Decision of the Supreme Court of the United States in the Case
Dred Scott . . . (Washington, 1857), 9, 13–14, 15–17, 60.

495

496    PART VII How It Happened: Race and Gender Issues in U.S. Law

and traffic, whenever a profit could be made by it. This opinion was at that time fixed
and universal in the civilized portion of the white race. It was regarded as an axiom
in morals as well as in politics, which no one thought of disputing, or supposed to be
open to dispute; and men in every grade and position in society daily and habitually
acted upon it in their private pursuits, as well as in matters of public concern, without
doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted
upon than by the English Government and English people. They not only seized
them on the coast of Africa, and sold them or held them in slavery for their own use,
but they took them as ordinary articles of merchandise to every country where they
could make a profit on them, and were far more extensively engaged in this com-
merce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed
upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro
of the African race was regarded by them as an article of property, and held, and
bought and sold as such, in every one of the thirteen colonies which united in the
Declaration of Independence, and afterwards formed the Constitution of the United
States. The slaves were more or less numerous in the different colonies, as slave labor
was found more or less profitable. But no one seems to have doubted the correctness
of the prevailing opinion of the time.

The legislation of the different colonies furnishes positive and indisputable proof
of this fact.

The language of the Declaration of Independence is equally conclusive:
It begins by declaring that, “when in the course of human events it becomes neces-
sary for one people to dissolve the political bands which have connected them with
another, and to assume among the powers of the earth the separate and equal station
to which the laws of nature and nature’s God entitle them, a decent respect for the
opinions of mankind requires that they should declare the causes which impel them
to the separation.”
It then proceeds to say: “We hold these truths to be self-evident: that all men are
created equal; that they are endowed by their Creator with certain unalienable rights;
that among them is life, liberty, and the pursuit of happiness; that to secure these
rights, Governments are instituted, deriving their just powers from the consent of
the governed.”
The general words above quoted would seem to embrace the whole human family,
and if they were used in a similar instrument at this day would be so understood.
But it is too clear for dispute, that the enslaved African race were not intended to be
included, and formed no part of the people who framed and adopted this declaration;
for if the language, as understood in that day, would embrace them, the conduct of
the distinguished men who framed the Declaration of Independence would have been
utterly and flagrantly inconsistent with the principles they asserted; and instead of
the sympathy of mankind, to which they so confidently appealed, they would have
deserved and received universal rebuke and reprobation.

7 Dred Scott v. Sandford, 1857  497

Yet the men who framed this declaration were great men—high in literary
acquirements—high in their sense of honor, and incapable of asserting principles
inconsistent with those on which they were acting. They perfectly understood the
meaning of the language they used, and how it would be understood by others; and
they knew that it would not in any part of the civilized world be supposed to em-
brace the negro race, which, by common consent, had been excluded from civilized
Governments and the family of nations, and doomed to slavery. They spoke and
acted according to the then established doctrines and principles, and in the ordinary
language of the day, and no one misunderstood them. The unhappy black race were
separated from the white by indelible marks, and laws long before established, and
were never thought of or spoken of except as property, and when the claims of the
owner or the profit of the trader were supposed to need protection.

The state of public opinion had undergone no change when the Constitution was
adopted, as is equally evident from its provisions and language.

This brief preamble sets forth by whom it was formed, for what purposes, and
for whose benefit and protection. It declares that it is formed by the people of the
United States; that is to say, by those who were members of the different political
communities in the several States; and its great object is declared to be to secure
the blessings of liberty to themselves and their posterity. It speaks in general terms
of the people of the United States, and of citizens of the several States, when it is
providing for the exercise of the powers granted or the privileges secured to the
c­ itizen. It does not define what description of persons are intended to be included
under these terms, or who shall be regarded as a citizen and one of the people. It
uses them as terms so well understood, that no further description or definition
was necessary.

But there are two clauses in the Constitution which point directly and specifically
to the negro race as a separate class of persons, and show clearly that they were not
regarded as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import
slaves until the year 1808, if it thinks proper. And the importation which it thus sanc-
tions was unquestionably of persons of the race of which we are speaking, as the traf-
fic in slaves in the United States had always been confined to them. And by the other
provision the States pledge themselves to each other to maintain the right of property
of the master, by delivering up to him any slave who may have escaped from his ser-
vice, and be found within their respective territories. By the first above-mentioned
clause, therefore, the right to purchase and hold this property is directly sanctioned
and authorized for twenty years by the people who framed the Constitution. And by
the second, they pledge themselves to maintain and uphold the right of the master in
the manner specified, as long as the Government they then formed should endure.
And these two provisions show, conclusively, that neither the description of persons
therein referred to, nor their descendants, were embraced in any of the other provi-
sions of the Constitution, for certainly these two clauses were not intended to confer
on them or their posterity the blessings of liberty, or any of the personal rights so
carefully provided for the citizen.

498    PART VII How It Happened: Race and Gender Issues in U.S. Law

Upon the whole, therefore, it is the judgment of this court, that it appears by the
record before us that the plaintiff in error is not a citizen of Missouri, in the sense in
which that word is used in the Constitution; and that the Circuit Court of the United
States, for that reason, had no jurisdiction in the case, and could give no judgment
in it. Its judgment for the defendant must, consequently, be reversed, and a mandate
issued, directing the suit to be dismissed for want of jurisdiction.

8  The Emancipation Proclamation

Abraham Lincoln

January 1, 1863
Whereas, on the twenty-second day of September, in the year of our Lord one thou-
sand eight hundred and sixty two, a proclamation was issued by the President of the
United States, containing, among other things, the following, to wit:

“That on the first day of January, in the year of our Lord one thousand eight hun-
dred and sixty-three, all persons held as slaves within any State or designated part of a
State, the people whereof shall then be in rebellion against the United States, shall be
then, thenceforward, and forever free; and the Executive Gove­ rnm­ ent of the United
States, including the military and naval authority thereof, will recognize and maintain
the freedom of such persons, and will do no act or acts to repress such persons, or
any of them, in any efforts they may make for their actual freedom.

“That the Executive will, on the first day of January aforesaid, by proclamation,
designate the States and parts of States, if any, in which the people thereof, respec-
tively, shall then be in rebellion against the United States; and the fact that any State,
or the people thereof, shall on that day be, in good faith, represented in the Congress
of the United States by members chosen thereto at elections wherein a majority of the
qualified voters of such State shall have participated, shall, in the absence of strong
countervailing testimony, be deemed conclusive evidence that such State, and the
people thereof, are not then in rebellion against the United States.”

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the
power in me vested as Commander-in-Chief, of the Army and Navy of the United
States in time of actual armed rebellion against authority and government of the
United States, and as a fit and necessary war measure for suppressing said rebellion,
do, on this first day of January, in the year of our Lord one thousand eight hundred
and sixty-three, and in accordance with my purpose so to do publicly proclaimed for
the full period of one hundred days, from the day first above m­ entioned, order and
designate as the States and parts of States wherein the people thereof respectively, are
this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana (except the Parishes of St. Bernard, Plaquemines, Jeffer-
son, St. Johns, St. Charles, St. James[,] Ascension, Assumption, Terrebonne, Lafourche,
St. Mary, St. Martin, and Orleans, including the City of New-Orleans), Mississippi,
Alabama, Florida, Georgia, South-Carolina, North-Carolina, and Virginia (except the
forty-eight counties designated as West Virginia, and also the counties of Berkley,
­Accomac, Northampton, Elizabeth-City, York, Princess Ann, and Norfolk, including
the cities of Norfolk & Portsmouth [)]; and which excepted parts are, for the present,
left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare
that all persons held as slaves within said designated States, and parts of States, are,

499

500    PART VII How It Happened: Race and Gender Issues in U.S. Law

and henceforward shall be free; and that the Executive Government of the United
States, including the military and naval authorities thereof, will recognize and main-
tain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all
violence, unless in necessary self-defence; and I recommend to them that, in all cases
when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition,
will be received into the armed service of the United States to garrison forts, positions,
stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the
Constitution, upon military necessity, I invoke the considerate judgment of mankind,
and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United
States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord
one thousand eight hundred and sixty-three, and of the Independence of the United
States of America the eighty-seventh.

By the President:
Abraham Lincoln
William H. Seward,
Secretary of State

9  United States Constitution

Thirteenth (1865), Fourteenth (1868), and

Fifteenth (1870) Amendments

Amendment XIII (Ratified December 6, 1865). Section 1. Neither slavery nor involun-
tary servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.
Amendment XIV (Ratified July 9, 1868). Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according
to their respective numbers, counting the whole number of persons in each state,
excluding Indians not taxed. But when the right to vote at any election for the choice
of Electors for President and Vice-President of the United States, Representatives in
Congress, the executive and judicial officers of a State, or the members of the Legisla-
ture thereof, is denied to any of the male inhabitants of such State, being twenty-one
years of age, and, citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elec-
tor of President and Vice-President, or hold any office, civil or military, under
the United States, or under any State, who, having previously taken an oath, as
a ­member of Congress, or as an officer of the United States, or as an executive or
judicial officer of any State, to support the Constitution of the United States, shall
have engaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, in-
cluding debts incurred for payment of pensions and bounties for services in suppress-
ing insurrection or rebellion, shall not be questioned. But neither the United States
nor any State shall assume or pay any debt or obligation incurred in aid of insurrec-
tion or rebellion against the United States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations, and claims, shall be held illegal and void.

501

502    PART VII How It Happened: Race and Gender Issues in U.S. Law

Section 5. The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.
Amendment XV (Ratified February 3, 1870). Section 1. The right of citizens of the
United States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate
legislation.

10  The Black Codes

W. E. B. Du Bois

The whole proof of what the South proposed to do to the emancipated Negro, unless
restrained by the nation, was shown in the Black Codes passed after [President
Andrew] Johnson’s accession, but representing the logical result of attitudes of mind
existing when Lincoln still lived. Some of these were passed and enforced. Some were
passed and afterward repealed or modified when the reaction of the North was real-
ized. In other cases, as for instance, in Louisiana, it is not clear just which laws were
retained and which were repealed. In Alabama, the Governor induced the legislature
not to enact some parts of the proposed code which they overwhelmingly favored.

The original codes favored by the Southern legislatures were an astonishing
affront to emancipation and dealt with vagrancy, apprenticeship, labor contracts,
migration, civil and legal rights. In all cases, there was plain and indisputable
attempt on the part of the Southern states to make Negroes slaves in everything but
name. They were given certain civil rights: the right to hold property, to sue and be
sued. The family relations for the first time were legally recognized. Negroes were
no longer real estate.

Yet, in the face of this, the Black Codes were deliberately designed to take advan-
tage of every misfortune of the Negro. Negroes were liable to a slave trade under the
guise of vagrancy and apprenticeship laws; to make the best labor contracts, Negroes
must leave the old plantations and seek better terms; but if caught wandering in
search of work, and thus unemployed and without a home, this was vagrancy, and the
victim could be whipped and sold into slavery. In the turmoil of war, children were
separated from parents, or parents unable to support them properly. These children
could be sold into slavery, and “the former owner of said minors shall have the pref-
erence.” Negroes could come into court as witnesses only in cases in which Negroes
were involved. And even then, they must make their appeal to a jury and judge who
would believe the word of any white man in preference to that of any Negro on pain
of losing office and caste.

The Negro’s access to the land was hindered and limited; his right to work was
curtailed; his right of self-defense was taken away, when his right to bear arms was
stopped; and his employment was virtually reduced to contract labor with penal ser-
vitude as a punishment for leaving his job. And in all cases, the judges of the Negro’s
guilt or innocence, rights and obligations were men who believed firmly, for the most
part, that he had “no rights which a white man was bound to respect.”

Making every allowance for the excitement and turmoil of war, and the mentality
of a defeated people, the Black Codes were infamous pieces of legislation.

Reprinted with the permission of Scribner, a division of Simon & Schuster, Inc., from Black
­Reconstruction in America, 1860–1880 by W.E.B. DuBois. Copyright © 1935 by W.E.B. DuBois
­Copyright renewed 1962 by W.E.B. DuBois. All rights reserved.

503

504    PART VII How It Happened: Race and Gender Issues in U.S. Law

Let us examine these codes in detail.1 They covered, naturally, a wide range of
subjects. First, there was the question of allowing Negroes to come into the state. In
South Carolina the constitution of 1865 permitted the Legislature to regulate immi-
gration, and the consequent law declared “that no person of color shall migrate into
and reside in this State, unless, within twenty days after his arrival within the same,
he shall enter into a bond, with two freeholders as sureties . . . in a penalty of one
thousand dollars, conditioned for his good behavior, and for his support.”

Especially in the matter of work was the Negro narrowly restricted. In South
Carolina, he must be especially licensed if he was to follow on his own account any
employment, except that of farmer or servant. Those licensed must not only prove
their fitness, but pay an annual tax ranging from $10–$100. Under no circumstances
could they manufacture or sell liquor. Licenses for work were to be granted by a judge
and were revokable on complaint. The penalty was a fine double the amount of the
license, one-half of which went to the informer.

Mississippi provided that “every freedman, free Negro, and mulatto shall on the
second Monday of January, one thousand eight hundred and sixty-six, and a­ nnually
thereafter, have a lawful home or employment, and shall have written ­evidence
thereof . . . from the Mayor . . . or from a member of the board of police . . . which
licenses may be revoked for cause at any time by the authority granting the same.”

Detailed regulation of labor was provided for in nearly all these states.
Louisiana passed an elaborate law in 1865, to “regulate labor contracts for agricul-
tural pursuits.” Later, it was denied that this legislation was actually enacted but the
law was published at the time and the constitutional convention of 1868 certainly
regarded this statute as law, for they formally repealed it. The law required all agri-
cultural laborers to make labor contracts for the next year within the first ten days of
January, the contracts to be in writing, to be with heads of families, to embrace the
labor of all the members, and to be “binding on all minors thereof.” Each laborer,
after choosing his employer, “shall not be allowed to leave his place of employment,
until the fulfillment of his contract, unless by consent of his employer, or on account
of harsh treatment, or breach of contract on the part of the employer; and if they do
so leave, without cause or permission, they shall forfeit all wages earned to the time
of abandonment. . . .
“In case of sickness of the laborer, wages for the time lost shall be deducted, and
where the sickness is feigned for purposes of idleness, . . . and also should refusal
to work be continued beyond three days, the offender shall be reported to a justice
of the peace, and shall be forced to labor on roads, levees, and other public works,
without pay, until the offender consents to return to his labor. . . .
“When in health, the laborer shall work ten hours during the day in summer,
and nine hours during the day in winter, unless otherwise stipulated in the labor
contract; he shall obey all proper orders of his employer or his agent; take proper
care of his work mules, horses, oxen, stock; also of all agricultural implements; and
employers shall have the right to make a reasonable deduction from the laborer’s
wages for injuries done to animals or agricultural implements committed to his
care, or for bad or negligent work. Bad work shall not be allowed. Failing to obey

10 Du Bois / The Black Codes  505

­reasonable orders, n­ eglect of duty and leaving home without permission, will be
deemed ­disobedience. . . . For any disobedience a fine of one dollar shall be imposed
on the offender. For all lost time from work hours, unless in case of sickness, the
laborer shall be fined twenty-five cents per hour. For all absence from home without
leave, the laborer will be fined at the rate of two dollars per day. Laborers will not be
required to labor on the Sabbath except to take the necessary care of stock and other
property on plantations and do the necessary cooking and household duties, unless
by special contract. For all thefts of the laborers from the employer of agricultural
products, hogs, sheep, poultry or any other property of the employer, or willful de-
struction of property or injury, the laborer shall pay the employer double the amount
of the value of the property stolen, destroyed or injured, one half to be paid to the
employer, and the other half to be placed in the general fund provided for in this
section. No live stock shall be allowed to laborers without the permission of the em-
ployer. Laborers shall not receive visitors during work hours. All difficulties arising
between the employers and laborers, under this section, shall be settled, and all fines
be imposed, by the former; if not satisfactory to the laborers, an appeal may be had
to the nearest justice of the peace and two freeholders, citizens, one of said citizens
to be selected by the employer and the other by the laborer; and all fines imposed
and collected under this section shall be deducted from the wages due, and shall be
placed in a common fund, to be divided among the other laborers employed on the
plantation at the time when their full wages fall due, except as provided for above.”

Similar detailed regulations of work were in the South Carolina law. Elaborate pro-
vision was made for contracting colored “servants” to white “masters.” Their masters
were given the right to whip “moderately” servants under eighteen. Others were to
be whipped on authority of judicial officers. These officers were given authority to
return runaway servants to their masters. The servants, on the other hand, were given
certain rights. Their wages and period of service must be specified in writing, and
they were protected against “unreasonable” tasks, Sunday and night work, unauthor-
ized attacks on their persons, and inadequate food.

Contracting Negroes were to be known as “servants” and contractors as “masters.”
Wages were to be fixed by the judge, unless stipulated. Negroes of ten years of age or
more without a parent living in the district might make a valid contract for a year or
less. Failure to make written contracts was a misdemeanor, punishable by a fine of $5
to $50; farm labor to be from sunrise to sunset, with intervals for meals; servants to rise
at dawn, to be careful of master’s property and answerable for property lost or injured.
Lost time was to be deducted from wages. Food and clothes might be deducted. Ser-
vants were to be quiet and orderly and to go to bed at reasonable hours. No night work
or outdoor work in bad weather was to be asked, except in cases of necessity, visitors
not allowed without the master’s consent. Servants leaving employment without good
reason must forfeit wages. Masters might discharge servants for disobedience, drunken-
ness, disease, absence, etc. Enticing away the services of a servant was punishable by
a fine of $20 to $100. A master could command a servant to aid him in defense of his
own person, family or property. House servants at all hours of the day and night, and at
all days of the weeks, “must answer promptly all calls and execute all lawful orders. . . .”

506    PART VII How It Happened: Race and Gender Issues in U.S. Law

Mississippi provided “that every civil officer shall, and every person may, arrest
and carry back to his or her legal employer any freedman, free Negro, or mulatto who
shall have quit the service of his or her employer before the expiration of his or her
term of service without good cause; and said officer and person shall be entitled to
receive for arresting and carrying back every deserting employee aforesaid the sum
of five dollars, and ten cents per mile from the place of arrest to the place of delivery,
and the same shall be paid by the employer and held as a set-off for so much against
the wages of said deserting employee.”

It was provided in some states, like South Carolina, that any white man, whether
an officer or not, could arrest a Negro. “Upon view of a misdemeanor committed by
a person of color, any person present may arrest the offender and take him before a
magistrate, to be dealt with as the case may require. In case of a misdemeanor com-
mitted by a white person toward a person of color, any person may complain to a
magistrate, who shall cause the offender to be arrested, and according to the nature
of the case, to be brought before himself, or be taken for trial in the district court.”

On the other hand, in Mississippi, it was dangerous for a Negro to try to bring a
white person to court on any charge. “In every case where any white person has been
arrested and brought to trial, by virtue of the provisions of the tenth section of the
above recited act, in any court in this State, upon sufficient proof being made to the
court or jury, upon the trial before said court, that any freedman, free Negro or mulatto
has falsely and maliciously caused the arrest and trial of said white person or persons,
the court shall render up a judgment against said freedman, free Negro or mulatto for
all costs of the case, and impose a fine not to exceed fifty dollars, and imprisonment
in the county jail not to exceed twenty days; and for a failure of said freedman, free
Negro or mulatto to pay, or cause to be paid, all costs, fines and jail fees, the sheriff of
the county is hereby authorized and required, after giving ten days’ public notice, to
proceed to hire out at public outcry, at the courthouse of the county, said freedman,
free Negro or mulatto, for the shortest time to raise the amount necessary to discharge
said freedman, free Negro or mulatto from all costs, fines, and jail fees aforesaid.”

Mississippi declared that: “Any freedman, free Negro, or mulatto, committing
riots, routs, affrays, trespasses, malicious mischief and cruel treatment to animals,
seditious speeches, insulting gestures, language or acts, or assaults on any person,
disturbance of the peace, exercising the functions of a minister of the gospel without
a license from some regularly organized church, vending spirituous or intoxicating
liquors, or committing any other misdemeanor, the punishment of which is not spe-
cifically provided for by law, shall, upon conviction thereof, in the county court, be
fined not less than ten dollars, and not more than one hundred dollars, and may be
imprisoned, at the discretion of the court, not exceeding thirty days. . . .”

The most important and oppressive laws were those with regard to vagrancy and
apprenticeship. Sometimes they especially applied to Negroes; in other cases, they
were drawn in general terms but evidently designed to fit the Negro’s condition and
to be enforced particularly with regard to Negroes.

The Virginia Vagrant Act enacted that “any justice of the peace, upon the com-
plaint of any one of certain officers therein named, may issue his warrant for the

10 Du Bois / The Black Codes  507

apprehension of any person alleged to be a vagrant and cause such person to be
apprehended and brought before him; and that if upon due examination said jus-
tice of the peace shall find that such person is a vagrant within the definition of
vagrancy contained in said statute, he shall issue his warrant, directing such person
to be employed for a term not exceeding three months, and by any constable of the
county wherein the proceedings are had, be hired out for the best wages which can
be procured, his wages to be applied to the support of himself and his family. The
said statute further provides, that in case any vagrant so hired shall, during his term
of service, run away from his employer without sufficient cause, he shall be appre-
hended on the warrant of a justice of the peace and returned to the custody of his
employer, who shall then have, free from any other hire, the ser­vices of such vagrant
for one month in addition to the original term of hiring, and that the employer shall
then have power, if authorized by a justice of the peace, to work such vagrant with
ball and chain. The said statute specified the persons who shall be considered va-
grants and liable to the penalties imposed by it. Among those declared to be vagrants
are all persons who, not having the wherewith to support their families, live idly and
without employment, and refuse to work for the usual and common wages given to
other laborers in the like work in the place where they are.”

In Florida, January 12, 1866: “It is provided that when any person of color shall
enter into a contract as aforesaid, to serve as a laborer for a year, or any other specified
term, on any farm or plantation in this State, if he shall refuse or neglect to perform
the stipulations of his contract by willful disobedience of orders, wanton impudence
or disrespect to his employer, or his authorized agent, failure or refusal to perform
the work assigned to him, idleness, or abandonment of the premises or the employ-
ment of the party with whom the contract was made, he or she shall be liable, upon
the complaint of his employer or his agent, made under oath before any justice of the
peace of the county, to be arrested and tried before the criminal court of the county,
and upon conviction shall be subject to all the pains and penalties prescribed for the
punishment of vagrancy.”

In Georgia, it was ruled that “All persons wandering or strolling about in idleness,
who are able to work, and who have no property to support them; all persons leading
an idle, immoral, or profligate life, who have no property to support them and are
able to work and do not work; all persons able to work having no visible and known
means of a fair, honest, and respectable livelihood; all persons having a fixed abode,
who have no visible property to support them, and who live by stealing or by trading
in, bartering for, or buying stolen property; and all professional gamblers living in
idleness, shall be deemed and considered vagrants, and shall be indicated as such,
and it shall be lawful for any person to arrest said vagrants and have them bound over
for trial to the next term of the county court, and upon conviction, they shall be fined
and imprisoned or sentenced to work on the public works, for not longer than a year,
or shall, in the discretion of the court, be bound out to some person for a time not
longer than one year, upon such valuable consideration as the court may prescribe.”

Mississippi provided “That all freedmen, free Negroes, and mulattoes in this state
over the age of eighteen years, found on the second Monday in January, 1866, or

508    PART VII How It Happened: Race and Gender Issues in U.S. Law

thereafter, with no lawful employment or business, or found unlawfully assembling
themselves together, either in the day or night time, and all white ­persons so assem-
bling with freedmen, free Negroes or mulattoes, or usually associating with freedmen,
free Negroes or mulattoes on terms of equality, or living in adultery or fornication
with a freedwoman, free Negro or mulatto, shall be deemed vagrants, and on convic-
tion thereof shall be fined in the sum of not exceeding, in the case of a freedman, free
Negro or mulatto, fifty dollars, and a white man two hundred dollars and imprisoned,
at the discretion of the court, the free Negro not exceeding ten days, and the white
men not exceeding six months.”

Sec. 5 provides that “all fines and forfeitures collected under the provisions of this
act shall be paid into the county treasury for general county purposes, and in case any
freedman, free Negro or mulatto, shall fail for five days after the imposition of any
fine or forfeiture upon him or her, for violation of any of the provisions of this act
to pay the same, that it shall be, and is hereby made, the duty of the Sheriff of the
proper county to hire out said freedman, free Negro or mulatto, to any person who
will, for the shortest period of service, pay said fine or forfeiture and all costs; Pro-
vided, a preference shall be given to the employer, if there be one, in which case the
employer shall be entitled to deduct and retain the amount so paid from the wages of
such freedman, free Negro or mulatto, then due or to become due; and in case such
freedman, free Negro or mulatto cannot be hired out, he or she may be dealt with as
a pauper. . . .”

In Alabama, the “former owner” was to have preference in the apprenticing of a
child. This was true in Kentucky and Mississippi.

Mississippi “provides that it shall be the duty of all sheriffs, justices of the peace,
and other civil officers of the several counties in this state to report to the probate
courts of their respective counties semi-annually, at the January and July terms of said
courts, all freedmen, free Negroes and mulattoes, under the age of eighteen, within
their respective counties, beats, or districts, who are orphans, or whose parent or
parents have not the means, or who refuse to provide for and support said minors,
and thereupon it shall be the duty of said probate court to order the clerk of said court
to apprentice said minors to some competent and suitable person, on such terms as
the court may direct, having a particular care to the interest of said minors; Provided,
that the former owner of said minors shall have the preference when, in the opinion
of the court, he or she shall be a suitable person for that purpose. . . .”

“Capital punishment was provided for colored persons guilty of willful homicide,
assault upon a white woman, impersonating her husband for carnal purposes, rais-
ing an insurrection, stealing a horse, a mule, or baled cotton, and house­breaking.
For crimes not demanding death Negroes might be confined at hard labor, whipped,
or transported; ‘but punishments more degrading than imprisonment shall not be
imposed upon a white person for a crime not infamous.’”2

In most states Negroes were allowed to testify in courts but the testimony was
usually confined to cases where colored persons were involved, although in some
states, by consent of the parties, they could testify in cases where only white people
were involved. . . .

10 Du Bois / The Black Codes  509

Mississippi simply reenacted her slave code and made it operative so far as pun-
ishments were concerned. “That all the penal and criminal laws now in force in this
State, defining offenses, and prescribing the mode of punishment for crimes and
misdemeanors committed by slaves, free Negroes or mulattoes, be and the same are
hereby reenacted, and declared to be in full force and effect, against freedmen, free
Negroes, and mulattoes, except so far as the mode and manner of trial and punish-
ment have been changed or altered by law.”

North Carolina, on the other hand, abolished her slave code, making difference of
punishment only in the case of Negroes convicted of rape. Georgia placed the fines
and costs of a servant upon the master. “Where such cases shall go against the servant,
the judgment for costs upon written notice to the master shall operate as a garnish-
ment against him, and he shall retain a sufficient amount for the payment thereof, out
of any wages due to said servant, or to become due during the period of service, and
may be cited at any time by the collecting officer to make answer thereto.”

The celebrated ordinance of Opelousas, Louisiana, shows the local ordinances
regulating Negroes. “No Negro or freedman shall be allowed to come within the limits
of the town of Opelousas without special permission from his employer, specifying
the object of his visit and the time necessary for the accomplishment of the same.

“Every Negro freedman who shall be found on the streets of Opelousas after ten
o’clock at night without a written pass or permit from his employer, shall be im-
prisoned and compelled to work five days on the public streets, or pay a fine of five
dollars.

“No Negro or freedman shall be permitted to rent or keep a house within the limits
of the town under any circumstances, and anyone thus offending shall be ejected, and
compelled to find an employer or leave the town within twenty-four hours.

“No Negro or freedman shall reside within the limits of the town of Opelousas who
is not in the regular service of some white person or former owner, who shall be held
responsible for the conduct of said freedman.

“No Negro or freedman shall be permitted to preach, exhort, or otherwise declaim
to congregations of colored people without a special permission from the Mayor or
President of the Board of Police, under the penalty of a fine of ten dollars or twenty
days’ work on the public streets.

“No freedman who is not in the military service shall be allowed to carry firearms,
or any kind of weapons within the limits of the town of Opelousas without the special
permission of his employer, in writing, and approved by the Mayor or President of
the Board.

“Any freedman not residing in Opelousas, who shall be found within its corporate
limits after the hour of 3 o’clock, on Sunday, without a special permission from his
employer or the Mayor, shall be arrested and imprisoned and made to work two days
on the public streets, or pay two dollars in lieu of said work.”3

Of Louisiana, Thomas Conway testified February 22, 1866: “Some of the leading
officers of the state down there—men who do much to form and control the opinions
of the masses—instead of doing as they promised, and quietly submitting to the au-
thority of the government, engaged in issuing slave codes and in promulgating them

510    PART VII How It Happened: Race and Gender Issues in U.S. Law

to their subordinates, ordering them to carry them into execution, and this to the
knowledge of state officials of a higher character, the governor and others. And the
men who issued them were not punished except as the military authorities punished
them. The governor inflicted no punishment on them while I was there, and I don’t
know that, up to this day, he has ever punished one of them. These codes were simply
the old black code of the state, with the word ‘slave’ expunged, and ‘Negro’ substi-
tuted. The most odious features of slavery were preserved in them. . . .”4

NOTES

1.  Quotations from McPherson, History of United States during Reconstruction,
pp. 29–44.
2.  Simkins and Woody, South Carolina during Reconstruction, pp. 49, 50.
3. Warmoth, War, Politics and Reconstruction, p. 274.
4.  Report on the Joint Committee on Reconstruction, 1866, Part IV, pp. 78–79.

11     The Chinese Exclusion Act

An Act to Execute Certain Treaty Stipulations
Relating to Chinese

Whereas, in the opinion of the Government of the United States the coming of Chi-
nese laborers to this country endangers the good order of certain localities within the
territory thereof: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That from and after the expiration of ninety days
next after the passage of this act, and until the expiration of ten years next after the
passage of this act, the coming of Chinese laborers to the United States be, and the
same is hereby, suspended; and during such suspension it shall not be lawful for any
Chinese laborer to come, or having so come after the expiration of said ninety days,
to remain within the United States.

SEC. 2. That the master of any vessel who shall knowingly bring within the United
States on such vessel, and land or permit to be landed, any Chinese laborer, from any
foreign port or place, shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be punished by a fine of not more than $500 for each and every such
Chinese laborer so brought, and may be also imprisoned for a term not exceeding
one year.

SEC. 3. That the two foregoing sections shall not apply to Chinese laborers who were
in the United States on the 17th day of November, 1880, or who shall have come into
the same before the expiration of ninety days next after the passage of this act . . .

SEC. 4. That for the purpose of properly identifying Chinese laborers who were in
the United States on the 17th day of November, 1880, or who shall have come into
the same before the expiration of ninety days next after the passage of this act, and
in order to furnish them with the proper evidence of their right to go from and come
to the United States of their free will and accord, as provided by the treaty between
the United States and China dated November 17, 1880, the collector of customs
of the district from which any such Chinese laborer shall depart from the United
States shall, in person or by deputy, go on board each vessel having on board any
such Chinese laborer and cleared or about to sail from his district for a foreign port,
and on such vessel make a list of all such Chinese laborers, which shall be entered
in registry-books to be kept for that purpose, in which shall be stated the name, age,
occupation, last place of residence, physical marks or peculiarities, and all facts nec-
essary for the identification of each of such Chinese laborers, which books shall be
safely kept in the custom-house; and every such Chinese laborer so departing from
the United States shall be entitled to, and shall receive, free of any charge or cost upon
application therefor, from the collector or his deputy, at the time such list is taken

511

512    PART VII How It Happened: Race and Gender Issues in U.S. Law

a certificate, signed by the collector or his deputy and attested by his seal of office,
in such form as the Secretary of the Treasury shall prescribe, which certificate shall
contain a statement of the name, age, occupation, last place of residence, personal
description, and facts of identification of the Chinese laborer to whom the certificate
is issued, corresponding with the said list and registry in all particulars . . .

SEC. 5. That any Chinese laborer mentioned in section four of this act being in the
United States, and desiring to depart from the United States by land, shall have the
right to demand and receive, free of charge or cost, a certificate of identification simi-
lar to that provided for in section four of this act to be issued to such Chinese laborers
as may desire to leave the United States by water; and it is hereby made the duty of
the collector of customs of the district next adjoining the foreign country to which
said Chinese laborer desires to go to issue such certificate, free of charge or cost, upon
application by such Chinese laborer, and to enter the same upon registry-books to be
kept by him for the purpose, as provided for in section four of this act.

SEC. 6. That in order to the faithful execution of articles one and two of the treaty
in this act before mentioned, every Chinese person other than a laborer who may be
entitled by said treaty and this act to come within the United States, and who shall be
about to come to the United States, shall be identified as so entitled by the Chinese
Government in each case, such identity to be evidenced by a certificate issued under
the authority of said government, which certificate shall be in the English language
or (if not in the English language) accompanied by a translation into English, stating
such right to come, and which certificate shall state the name, title, or official rank, if
any, the age, height, and all physical peculiarities, former and present occupation or
profession, and place of residence in China of the person to whom the certificate is
issued and that such person is entitled conformably to the treaty in this act mentioned
to come within the United States . . .

SEC. 7. That any person who shall knowingly and falsely alter or substitute any name
for the name written in such certificate or forge any such certificate, or knowingly
utter any forged or fraudulent certificate, or falsely personate any person named in
any such certificate, shall be deemed guilty of a misdemeanor; and upon conviction
thereof shall be fined in a sum not exceeding $1,000, and imprisoned in a peniten-
tiary for a term of not more than five years.

SEC. 8. That the master of any vessel arriving in the United States from any foreign
port or place shall, at the same time he delivers a manifest of the cargo, and if there
be no cargo, then at the time of making a report, of the entry of the vessel pursuant
to law, in addition to the other matter required to be reported, and before landing,
or permitting to land, any Chinese passengers, deliver and report to the collector of
customs of the district in which such vessels shall have arrived a separate list of all
Chinese passengers taken on board his vessel at any foreign port or place, and all such
passengers on board the vessel at that time . . .

SEC. 9. That before any Chinese passengers are landed from any such vessel, the
collector, or his deputy, shall proceed to examine such passengers, comparing the

11 The Chinese Exclusion Act   513

certificates with the list and with the passengers; and no passenger shall be allowed
to land in the United States from such vessel in violation of law . . .

SEC. 11. That any person who shall knowingly bring into or cause to be brought into
the United States by land, or who shall knowingly aid or abet the same, or aid or abet
the landing in the United States from any vessel of any Chinese person not lawfully
entitled to enter the United States, shall be deemed guilty of a misdemeanor, and
shall, on conviction thereof, be fined in a sum not exceeding $1,000, and imprisoned
for a term not exceeding one year.

SEC. 12. That no Chinese person shall be permitted to enter the United States by land
without producing to the proper officer of customs the certificate in this act required
of Chinese persons seeking to land from a vessel . . .

SEC. 13. That this act shall not apply to diplomatic and other officers of the Chinese
Government traveling upon the business of that government, whose credentials shall
be taken as equivalent to the certificate in this act mentioned, and shall exempt them
and their body and household servants from the provisions of this act as to other
Chinese persons.

SEC. 14. That hereafter no State court or court of the United States shall admit Chi-
nese to citizenship; and all laws in conflict with this act are hereby repealed.

SEC. 15. That the words “Chinese laborers,” wherever used in this act, shall be con-
strued to mean both skilled and unskilled laborers and Chinese employed in mining.

Approved, May 6, 1882.

12  Elk v. Wilkins, 1884

John Elk, an Indian who had voluntarily separated himself from his tribe and taken
up residence among the whites, was denied the right to vote in Omaha, Nebraska,
on the grounds that he was not a citizen. The Supreme Court considered the ques-
tion of whether Elk had been made a citizen by the Fourteenth Amendment and
decided against him.

. . . The plaintiff, in support of his action, relies on the first clause of the first section
of the Fourteenth Article of Amendment of the Constitution of the United States, by
which “all persons born or naturalized in the United States, and subject to the juris-
diction thereof, are citizens of the United States and of the State wherein they reside”;
and on the Fifteenth Article of Amendment, which provides that “the right of citizens
of the United States to vote shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of servitude.” . . .

The petition, while it does not show of what Indian tribe the plaintiff was a member,
yet, by the allegations that he “is an Indian, and was born within the United States,”
and that “he had severed his tribal relation to the Indian tribes,” clearly implies that he
was born a member of one of the Indian tribes within the limits of the United States,
which still exists and is recognized as a tribe by the government of the United States.
Though the plaintiff alleges that he “had fully and completely surrendered himself to
the jurisdiction of the United States,” he does not allege that the United States accepted
his surrender, or that he has ever been naturalized, or taxed, or in any way recognized
or treated as a citizen, by the State or by the United States. Nor is it contended by his
counsel that there is any statute or treaty that makes him a citizen.

The question then is, whether an Indian, born a member of one of the Indian
tribes within the United States, is, merely by reason of his birth within the United
States, and of his afterwards voluntarily separating himself from his tribe and tak-
ing up his residence among white citizens, a citizen of the United States, within the
meaning of the first section of the Fourteenth Amendment of the Constitution. . . .

Indians born within the territorial limits of the United States, members of, and
owing immediate allegiance to, one of the Indian tribes (an alien, though depend­ ent,
power), although in a geographical sense born in the United States, are no more
“born in the United States and subject to the jurisdiction thereof,” within the meaning
of the first section of the Fourteenth Amendment, than the children of subjects of any
foreign government born within the domain of that government, or the children born
within the United States, of ambassadors or other public ministers of foreign nations.

This view is confirmed by the second section of the Fourteenth Amendment,
which provides that “representatives shall be apportioned among the several States

From Elk v. Wilkins, 112 United States Reports: Cases Adjudged in the Supreme Court (New York: Banks
& Brothers).

514

12 Elk v. Wilkins, 1884  515

according to their respective numbers, counting the whole number of persons in
each State, excluding Indians not taxed.” Slavery having been abolished, and the
persons formerly held as slaves made citizens, this clause fixing the apportionment
of representatives has abrogated so much of the corresponding clause of the original
Constitution as counted only three-fifths of such persons. But Indians not taxed are
still excluded from the count, for the reason that they are not citizens. Their absolute
exclusion from the basis of representation, in which all other persons are now in-
cluded, is wholly inconsistent with their being considered citizens. . . .

The plaintiff, not being a citizen of the United States under the Fourteenth Amend-
ment of the Constitution, has been deprived of no right secured by the Fifteenth
Amendment, and cannot maintain this action.

13    Plessy v. Ferguson, 1896

After the collapse of Reconstruction governments, Southern whites began gradu-
ally to legalize the informal practices of segregation which obtained in the South.
One such law was passed by the Louisiana legislature in 1890 and provided that
“all railway companies carrying passengers . . . in this State shall provide separate
but equal accommodations for the white and colored races.”

Plessy v. Ferguson tested the constitutionality of this recent trend in Southern
legislation. Plessy was a mulatto who, on June 7, 1892, bought a first-class ticket
on the East Louisiana Railway for a trip from New Orleans to Covington, Louisiana,
and sought to be seated in the “white” coach. Upon conviction of a violation of
the 1890 statute, he appealed to the Supreme Court of Louisiana, which upheld his
conviction, and finally to the U.S. Supreme Court, which pronounced the Louisiana
law constitutional, on May 18, 1896. The defense of Plessy and attack on the Loui-
siana statute was in the hands of four men, the most famous of whom was Albion
W. Tourgée. M. J. Cunningham, attorney general of Louisiana, was assisted by two
other lawyers in defending the statute. The majority opinion of the Court was
delivered by Justice Henry B. Brown. John Marshall Harlan dissented and Justice
David J. Brewer did not participate, making it a 7–1 decision.

In his dissent to this decision Harlan asserted that “Our Constitution is color-
blind, and neither knows nor tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law.” He offered the prophecy that “the
judgment rendered this day will, in time, prove to be quite as pernicious as the
decision made by this tribunal in the Dred Scott case.”

The constitutionality of this act is attacked upon the ground that it conflicts both with
the Thirteenth Amendment of the Constitution, abolishing slavery, and the Four-
teenth Amendment, which prohibits certain restrictive legislation on the part of the
States.

1. That it does not conflict with the Thirteenth Amendment, which abolished
slavery and involuntary servitude, except as a punishment for crime, is too
clear for argument. Slavery implies involuntary servitude—a state of bond-
age: the ownership of mankind as a chattel, or at least the control of the
labor and services of one man for the benefit of another, and the absence of
a legal right to the disposal of his own person, property and services. . . .

A statute which implies merely a legal distinction between the white and colored
races—a distinction which is founded in the color of the two races, and which must
always exist so long as white men are distinguished from the other race by color—has

From Plessy v. Ferguson, 163 U.S. 537 United States Reports: Cases Adjudged in the Supreme Court
(NewYork, Banks & Brothers, 1896).

516

13 Plessy v. Ferguson, 1896  517

no tendency to destroy the legal equality of the two races, or reestablish a state of
involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment
is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are made citizens of
the United States and of the State wherein they reside; and the States are for-
bidden from making or enforcing any law which shall abridge the privileges
or immunities of citizens of the United States, or shall deprive any person
of life, liberty or property without due process of law, or deny to any person
within their jurisdiction the equal protection of the laws. . . .

The object of the amendment was undoubtedly to enforce the absolute equality
of the two races before the law, but in the nature of things it could not have been in-
tended to abolish distinctions based upon color, or to enforce social, as distinguished
from political equality, or a commingling of the two races upon terms unsatisfactory
to either. Laws permitting, and even requiring, their separation in places where they
are liable to be brought into contact do not necessarily imply the inferiority of either
race to the other, and have been generally, if not universally, recognized as within the
competency of the state legislatures in the exercise of their police power. The most
common instance of this is connected with the establishment of separate schools for
white and colored children, which has been held to be a valid exercise of the legisla-
tive power even by courts of States where the political rights of the colored race have
been longest and most earnestly enforced. . . .

While we think the enforced separation of the races, as applied to the internal
commerce of the State, neither abridges the privileges or immunities of the colored
man, deprives him of his property without due process of law, nor denies him the
equal protection of the laws, within the meaning of the Fourteenth Amendment, we
are not prepared to say that the conductor, in assigning passengers to the coaches
according to their race, does not act at his peril, or that the provision of the second
section of the act, that denies to the passenger compensation in damages for a refusal
to receive him into the coach in which he properly belongs, is a valid exercise of the
legislative power. Indeed, we understand it to be conceded by the State’s attorney,
that such part of the act as exempts from liability the railway company and its offi-
cers is unconstitutional. The power to assign to a particular coach obviously implies
the power to determine to which race the passenger belongs, as well as the power to
determine who, under the laws of the particular State, is to be deemed a white, and
who a colored person. . . .

It is claimed by the plaintiff in error that, in any mixed community, the reputation
of belonging to the dominant race, in this instance the white race, is property, in the
same sense that a right of action, or of inheritance, is property. Conceding this to be
so, for the purposes of this case, we are unable to see how this statute deprives him
of, or in any way affects his right to, such property. If he be a white man and assigned
to a colored coach, he may have his action for damages against the company for being
deprived of his so called property. Upon the other hand, if he be a colored man and

518    PART VII How It Happened: Race and Gender Issues in U.S. Law

be so assigned, he has been deprived of no property, since he is not lawfully entitled
to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in
error that the same argument that will justify the state legislature in requiring railways
to provide separate accommodations for the two races will also authorize them to
require separate cars to be provided for the people whose hair is of a certain color,
or who are aliens, or who belong to certain nationalities, or to enact laws requiring
colored people to walk upon one side of the street, and white people upon the other,
or requiring white men’s houses to be painted white, and colored men’s black, or
their vehicles or business signs to be of different colors, upon the theory that one
side of the street is as good as the other, or that a house or vehicle of one color is as
good as one of another color. The reply to all this is that every exercise of the police
power must be reasonable, and extend only to such laws as are enacted in good faith
for the promotion of the public good, and not for the annoyance or oppression of a
particular class. . . .

We consider the underlying fallacy of the plaintiff’s argument to consist in the as-
sumption that the enforced separation of the two races stamps the colored race with
a badge of inferiority. If this be so, it is not by reason of anything found in the act,
but solely because the colored race chooses to put that construction upon it. The
argument necessarily assumes that if, as has been more than once the case, and is not
unlikely to be so again, the colored race should become the dominant power in the
state legislature, and should enact a law in precisely similar terms, it would thereby
relegate the white race to an inferior position. We imagine that the white race, at
least, would not acquiesce in this assumption. The argument also assumes that social
prejudices may be overcome by legislation, and that equal rights cannot be secured
to the negro except by an enforced commingling of the two races. We cannot accept
this proposition. If the two races are to meet upon terms of social equality, it must
be the result of natural affinities, a mutual appreciation of each other’s merits and a
voluntary consent of individuals.

14  United States Constitution

Nineteenth Amendment (1920)

Amendment XIX (ratified August 18, 1920). Section 1. The right of citizens of the
United States to vote shall not be denied or abridged by the United States or by any
State on account of sex.

Section 2. Congress shall have power to enforce this Article by appropriate
legislation.

519

15    U.S. v. Bhagat Singh Thind, 1923

Argued Jan. 11, 12, 1923. 
Decided Feb. 19, 1923.
Mr. Solicitor General Beck, of Washington, D. C., for the United states.
Mr. Will R. King, of Washington, D. C., for Thind.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
This cause is here upon a certificate from the Circuit Court of appeals requesting the
instruction of this Court in respect of the following questions:

1. Is a high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India,
a white person within the meaning of section 2169, Revised Statutes? 

2. Does the Act of February 5, 1917 (39 Stat. 875, 3), disqualify from natural-
ization as citizens those Hindus now barred by that act, who had lawfully
entered the United States prior to the passage of said act?’

Section 2169, Revised Statutes (Comp. St. 4358), provides that the provisions of
the Naturalization Act ‘shall apply to aliens being free white persons and to aliens of
African nativity and to persons of African descent.’

If the applicant is a white person, within the meaning of this section, he is entitled
to naturalization; otherwise not. In Ozawa v. United States, 260 U.S. 178, 43 Sup.
Ct. 65, 67 L. Ed.—, decided November 13, 1922, we had occasion to consider the
application of these words to the case of a cultivated Japanese and were constrained
to hold that he was not within their meaning. As there pointed out, the provision
is not that any particular class of persons shall be excluded, but it is, in effect, that
only white persons shall be included within the privilege of the statute. ‘The inten-
tion was to confer the privilege of citizenship upon that class of persons whom the
fathers knew as white, and to deny it to all who could not be so classified. It is not
enough to say that the framers did not have in mind the brown or yellow races of
Asia. It is necessary to go farther and be able to say that had these particular [261 U.S.
204, 208] races been suggested the language of the act would have been so varied
as to include them within its privileges’—citing Dartmouth College v. Woodward, 4
Wheat. 518, 644. Following a long line of decisions of the lower Federal courts, we
held that the words imported a racial and not an individual test and were meant to
indicate only persons of what is popularly known as the Caucasian race. But, as there
pointed out, the conclusion that the phrase ‘white persons’ and the word ‘Caucasian’
are synonymous does not end the matter. It enabled us to dispose of the problem as
it was there presented, since the applicant for citizenship clearly fell outside the zone
of debatable ground on the negative side; but the decision still left the question to be
dealt with, in doubtful and different cases, by the ‘process of judicial inclusion and
exclusion.’ Mere ability on the part of an applicant for naturalization to establish a
line of descent from a Caucasian ancestor will not ipso facto to and necessarily con-
clude the inquiry. ‘Caucasian’ is a conventional word of much flexibility, as a study of

520

15 U.S. v. Bhagat Singh Thind, 1923  521

the literature dealing with racial questions will disclose, and while it and the words
‘white persons’ are treated as synonymous for the purposes of that case, they are not
of identical meaning-idem per idem.

In the endeavor to ascertain the meaning of the statute we must not fail to keep
in mind that it does not employ the word ‘Caucasian,’ but the words ‘white persons,’
and these are words of common speech and not of scientific origin. The word ‘Cau-
casian’ not only was not employed in the law, but was probably wholly unfamiliar to
the original framers of the statute in 1790. When we employ it, we do so as an aid to
the ascertainment of the legislative intent and not as an invariable substitute for the
statutory words. Indeed, as used in the science of ethnology, the connotation of the
word is by no means clear, and the use of it in its scientific sense as an equivalent [261
U.S. 204, 209] for the words of the statute, other considerations aside, would simply
mean the substitution of one perplexity for another. But in this country, during the last
half century especially, the word by common usage has acquired a popular meaning,
not clearly defined to be sure, but sufficiently so to enable us to say that its popular as
distinguished from its scientific application is of appreciably narrower scope. It is in
the popular sense of the word, therefore, that we employ is as an aid to the construc-
tion of the statute, for it would be obviously illogical to convert words of common
speech used in a statute into words of scientific terminology when neither the latter
nor the science for whose purposes they were coined was within the contemplation of
the framers of the statute or of the people for whom it was framed. The words of the
statute are to be interpreted in accordance with the understanding of the common man
from whose vocabulary they were taken. See Maillard v. Lawrence, 16 How. 251, 261.

They imply, as we have said, a racial test; but the term ‘race’ is one which, for the
practical purposes of the statute, must be applied to a group of living persons now
possessing in common the requisite characteristics, not to groups of persons who are
supposed to be or really are descended from some remote, common ancestor, but
who, whether they both resemble him to a greater or less extent, have, at any rate,
ceased altogether to resemble one another. It may be true that the blond Scandina-
vian and the brown Hindu have a common ancestor in the dim reaches of antiquity,
but the average man knows perfectly well that there are unmistakable and profound
differences between them to-day; and it is not impossible, if that common ancestor
could be materialized in the flesh, we should discover that he was himself sufficiently
differentiated from both of his descendants to preclude his racial classification with
either. The question for determination [261 U.S. 204, 210] is not, therefore, whether
by the speculative processes of ethnological reasoning we may present a probability
to the scientific mind that they have the same origin, but whether we can satisfy the
common understanding that they are now the same or sufficiently the same to justify
the interpreters of a statute—written in the words of common speech, for common
understanding, by unscientific men—in classifying them together in the statutory
category as white persons.

. . . We are unable to agree with the District Court, or with other lower federal
courts, in the conclusion that a native Hindu is eligible for naturalization under sec-
tion 2169. The words of familiar speech, which were used by the original framers of

522    PART VII How It Happened: Race and Gender Issues in U.S. Law

the law, were intended to include only the type of man whom they knew as white.
The immigration of that day was almost exclusively from the British Isles and North-
western Europe, whence they and their forebears had come. When they extended
the privilege of American citizenship to ‘any alien being a free white person’ it was these
immigrants—bone of their bone and flesh of their flesh—and their kind whom they
must have had affirmatively in mind. The succeeding years brought immigrants from
Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed,
swarthy people of Alpine and Mediterranean stock, and these were received as un-
questionably akin to those already here and readily amalgamated with them. It was
the descendants of these, and [261 U.S. 204, 214] other immigrants of like origin,
who constituted the white population of the country when section 2169, re-enacting
the naturalization test of 1790, was adopted, and, there is no reason to doubt, with
like intent and meaning.

What we now hold is that the words ‘free white persons’ are words of common
speech, to be interpreted in accordance with the understanding of the common man,
synonymous with the word ‘Caucasian’ only as that [261 U.S. 204, 215] word is pop-
ularly understood. As so understood and used, whatever may be the speculations of
the ethnologist, it does not include the body of people to whom the appellee belongs.
It is a matter of familiar observation and knowledge that the physical group charac-
teristics of the Hindus render them readily distinguishable from the various groups
of persons in this country commonly recognized as white. The children of English,
French, German, Italian, Scandinavian, and other European parentage quickly merge
into the mass of our population and lose the distinctive hallmarks of their European
origin. On the other hand, it cannot be doubted that the children born in this coun-
try of Hindu parents would retain indefinitely the clear evidence of their ancestry.
It is very far from our thought to suggest the slightest question of racial superiority
or inferiority. What we suggest is merely racial difference, and it is of such character
and extent that the great body of our people instinctively recognize it and reject the
thought of assimilation.

It is not without significance in this connection that Congress, by the Act of Feb-
ruary 5, 1917, 39 Stat. 874, c. 29, 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919,
4289 1/4b), has now excluded from admission into this country all natives of Asia
within designated limits of latitude and longitude, including the whole of India. This
not only constitutes conclusive evidence of the congressional attitude of opposition
to Asiatic immigration generally, but is persuasive of a similar attitude toward Asiatic
naturalization as well, since it is not likely that Congress would be willing to accept
as citizens a class of persons whom it rejects as immigrants.

It follows that a negative answer must be given to the first question, which dis-
poses of the case and renders an answer to the second question unnecessary, and it
will be so certified.

Answer to question No. 1, No.

16  Brown v. Board of Education of

Topeka, 1954

Mr. Chief Justice Warren delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and

Delaware. They are premised on different facts and different local conditions, but
a common legal question justifies their consideration together in this consolidated
opinion.1

In each of the cases, minors of the Negro race, through their legal representatives,
seek the aid of the courts in obtaining admission to the public schools of their com-
munity on a nonsegregated basis. In each instance, they had been denied admission
to schools attended by white children under laws requiring or permitting segregation
according to race. This segregation was alleged to deprive the plaintiffs of the equal
protection of the laws under the Fourteenth Amendment. In each of the cases other
than the Delaware case, a three-judge federal district court denied relief to the plain-
tiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy
v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded
when the races are provided substantially equal facilities, even though these facilities
be separate. In the Delaware case, the Supreme Court of Delaware adhered to that
doctrine, but ordered that the plaintiffs be admitted to the white schools because of
their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot
be made “equal,” and that hence they are deprived of the equal protection of the
laws. Because of the obvious importance of the question presented, the Court took
jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this
Term on certain questions propounded by the Court.3 . . .

In approaching this problem, we cannot turn the clock back to 1868 when the
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We
must consider public education in the light of its full development and its pres­ent
place in American life throughout the Nation. Only in this way can it be determined
if segregation in public schools deprives these plaintiffs of the equal protection of
the laws.

Today, education is perhaps the most important function of state and local govern-
ments. Compulsory school attendance laws and the great expenditures for education
both demonstrate our recognition of the importance of education to our democratic
society. It is required in the performance of our most basic public responsibilities,
even service in the armed forces. It is the very foundation of good citizenship. Today
it is a principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to his en-
vironment. In these days, it is doubtful that any child may reasonably be expected to
succeed in life if he is denied the opportunity of an education. Such an opportunity,

523

524    PART VII How It Happened: Race and Gender Issues in U.S. Law

where the state has undertaken to provide it, is a right which must be made available
to all on equal terms.

We come then to the question presented: Does segregation of children in public
schools solely on the basis of race, even though the physical facilities and other
“tangible” factors may be equal, deprive the children of the minority group of equal
educational opportunities? We believe that it does.

In Sweatt v. Painter, in finding that a segregated law school for Negroes could
not provide them equal educational opportunities, this Court relied in large part
on “those qualities which are incapable of objective measurement but which make
for greatness in a law school.” In McLaurin v. Oklahoma State Regents, the Court, in
requiring that a Negro admitted to a white graduate school be treated like all other
students, again resorted to intangible considerations: “. . . his ability to study, to en-
gage in discussions and exchange views with other students, and in general, to learn
his profession.” Such considerations apply with added force to children in grade and
high schools. To separate them from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the com-
munity that may affect their hearts and minds in a way unlikely ever to be undone.
The effect of this separation on their educational opportunities was well stated by a
finding in the Kansas case by a court which nevertheless felt compelled to rule against
the Negro plaintiffs:

Segregation of white and colored children in public schools has a detrimental
effect upon the colored children. The impact is greater when it has the sanction of
the law; for the policy of separating the races is usually interpreted as denoting the
inferiority of the negro group. A sense of inferiority affects the motivation of a child
to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the
educational and mental development of negro children and to deprive them of some
of the benefits they receive in a racial[ly] integrated school system.4

Whatever may have been the extent of psychological knowledge at the time of Plessy
v. Ferguson, this finding is amply supported by modern authority.5 Any language in
Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but
equal” has no place. Separate educational facilities are inherently unequal. Therefore,
we hold that the plaintiffs and others similarly situated for whom the actions have
been brought are, by reason of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth Amendment. This disposition
makes unnecessary any discussion whether such segregation also violates the Due
Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this deci-
sion, and because of the great variety of local conditions, the formulation of de-
crees in these cases presents problems of considerable complexity. On reargument,
the consideration of appropriate relief was necessarily subordinated to the primary
question—the constitutionality of segregation in public education. We have now an-
nounced that such segregation is a denial of the equal protection of the laws. In order

16 Brown v. Board of Education of Topeka, 1954  525

that we may have the full assistance of the parties in formulating decrees, the cases
will be restored to the docket, and the parties are requested to present further argu-
ment on Questions 4 and 5 previously propounded by the Court for the re­argument
this Term.6 The Attorney General of the United States is again invited to participate.
The Attorneys General of the states requiring or permitting segregation in public
education will also be permitted to appear as amici curiae upon request to do so by
September 15, 1954, and submission of the briefs by October 1, 1954.

It is so ordered.

NOTES

1.  In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of
elementary school age residing in Topeka. They brought this action in the United States
District Court for the District of Kansas to enjoin enforcement of a Kansas statute which per-
mits, but does not require, cities of more than 15,000 population to maintain separate school
facilities for Negro and white students. Kan. Gen. Stat. §72-1724 (1949). Pursuant to that
authority, the Topeka Board of Education elected to establish segregated elementary schools.
Other public schools in the community, however, are operated on a nonsegregated basis. The
three-judge District Court, convened under 28 U.S.C. §§2281 and 2284, found that segrega-
tion in public education has a detrimental effect upon Negro children, but denied relief on
the ground that the Negro and white schools were substantially equal with respect to build-
ings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797.
The case is here on direct appeal under 28 U.S.C. §1253. [The Topeka, Kansas, case would
be analogous to a northern school case inasmuch as the school segregation that existed in
Topeka was not mandated by state law, and some of the system was integrated. It would be
eighteen years before the Court would accept another such case for review. Keyes v. School
District No. 1, Denver, 445 F.2d 990 (10th Cir. 1971), cert. granted, 404 U.S. 1036 (1972)].
In the South Carolina case, Briggs v. Elliot, the plaintiffs are Negro children of both el-
ementary and high school age residing in Clarendon County. They brought this action in the
United States District Court for the Eastern District of South Carolina to enjoin enforcement
of provisions in the state constitution and statutory code which require the segregation of
Negroes and whites in public schools. S.C. Const., Art. XI, §7; S.C. Code §5377 (1942).
The three-judge District Court, convened under 28 U.S.C. §§2281 and 2284, denied the
requested relief. The court found that the Negro schools were inferior to the white schools
and ordered the defendants to begin immediately to equalize the facilities. But the court
sustained the validity of the contested provisions and denied the plaintiffs admission to the
white schools during the equalization program. 98 F. Supp. 529. This Court vacated the
District Court’s judgment and remanded the case for the purpose of obtaining the court’s
views on a report filed by the defendants concerning the progress made in the equalization
program. 342 U.S. 350. On remand, the District Court found that substantial equality had
been achieved except for buildings and that the defendants were proceeding to rectify this
inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U.S.C.
§1253.
In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of
high school age residing in Prince Edward County. They brought this action in the United
States District Court for the Eastern District of Virginia to enjoin enforcement of provisions

526    PART VII How It Happened: Race and Gender Issues in U.S. Law

in the state constitution and statutory code which require the segregation of
Negroes and whites in public schools. Va. Const., §140; Va. Code §22-221 (1950). The
three-judge District Court, convened under 28 U.S.C. §§2281 and 2284, denied the re-
quested relief. The court found the Negro school inferior in physical plant, curricula,
and transportation, and ordered the defendants forthwith to provide substantially equal
curricula and transportation and to “proceed with all reasonable diligence and dispatch
to remove” the inequality in physical plant. But, as in the South Carolina case, the court
sustained the validity of the contested provisions and denied the plaintiffs admission to the
white schools during the equalization program. 103 F. Supp. 337. The case is here on direct
appeal under 28 U.S.C. §1253.
In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elemen-
tary and high school age residing in New Castle County. They brought this action in the
Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution
and statutory code which require the segregation of Negroes and whites in public schools.
Del. Const., Art. X, §2; Del. Rev. Code §2631 (1935). The Chancellor gave judgment for
the plaintiffs and ordered their immediate admission to schools previously attended only by
white children, on the ground that the Negro schools were inferior with respect to teacher
training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance
involved in travel. 87 A.2d 862. The Chancellor also found that segregation itself results
in an inferior education for Negro children (see note 4, infra), but did not rest his decision
on that ground. Id., at 865. The Chancellor’s decree was affirmed by the Supreme Court of
Delaware, which intimated, however, that the defendants might be able to obtain a modifica-
tion of the decree after equalization of the Negro and white schools had been accomplished.
91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in
ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this
Court for certiorari. The writ was granted, 344 U.S. 891. The plaintiffs, who were successful
below, did not submit a cross-petition.
2.  344 U.S. 1, 141, 891.
3.  345 U.S. 972. The Attorney General of the United States participated both Terms as
amicus curiae.
4.  A similar finding was made in the Delaware case: “I conclude from the testimony that
in our Delaware Society, State-imposed segregation in education itself results in the Negro
children, as a class, receiving educational opportunities which are substantially inferior to
those available to white children otherwise similarly situated.” 87 A.2d 862, 865.
5.  K. B. Clark, Effect of Prejudice and Discrimination on Personality Development
(Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky,
Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of
Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein,
What Are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3
Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination
and National Welfare (MacIver, ed., 1949), 44–48; Frazier, The Negro in the United States
(1949), 674–681. And see generally Myrdal, An American Dilemma (1944).
6.  “4. Assuming it is decided that segregation in public schools violates the Fourteenth
Amendment
“(a) would a decree necessarily follow providing that, within the limits set by normal
geographic school districting, Negro children should forthwith be admitted to schools of
their choice, or

16 Brown v. Board of Education of Topeka, 1954  527

“(b) may this Court, in the exercise of its equity powers, permit an effective gradual
adjustment to be brought about from existing segregated systems to a system not based on
color distinctions?
“5. On the assumption on which questions 4(a) and (b) are based, and assuming further
that this Court will exercise its equity powers to the end described in question 4(b),
“(a) should this Court formulate detailed decrees in these cases;
“(b) if so, what specific issues should the decrees reach;
“(c) should this Court appoint a special master to hear evidence with a view to recom-
mending specific terms for such decrees;
“(d) should this Court remand to the courts of first instance with directions to frame
decrees in these cases, and if so what general directions should the decrees of this Court
include and what procedures should the courts of first instance follow in arriving at the spe-
cific terms of more detailed decrees?”

17  Roe v. Wade, 1973

This historic decision legalized a woman’s right to terminate her pregnancy by abor-
tion. The ruling was based upon the right of privacy founded on both the Fourteenth
and Ninth Amendments to the Constitution. The Court ruled that this right of privacy
protected the individual from interference by the state in the decision to terminate a
pregnancy by abortion during the early portion of the pregnancy. At the same time, it
recognized the interest of the state in regulating decisions concerning the pregnancy
during the latter period as the fetus developed the capacity to survive outside the
woman’s body.

528

18    T he Equal Rights Amendment

(Defeated)

Section 1. Equality of Rights under the law shall not be denied or abridged by the
United States or any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.
First introduced in Congress in 1923, the ERA was finally passed in 1972. How-
ever, because it failed to be ratified by the requisite number of states by its July 1982
deadline, the ERA never became part of the Constitution.

529