Gale Encyclopedia Of American Law 3Rd Edition Volume 13 P33 doc

It is as follows: “The inhabitants of the ceded Territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Fe

north of thirty-six degrees thirty minutes, and west and north of the present State of Missouri, was then a wilderness, uninhabited save by savages, whose possessory title had not then been extinguished

It is impossible for me to conceive on what ground France could have advanced a claim, or could have desired to advance a claim, to restrain the United States from making any rules and regulations respecting this Territory, which the United States might think fit to make;

and still less can I conceive of any reason which would have induced the United States to yield to such a claim It was to be expected that France would desire to make the change of sovereignty and jurisdiction as little burdensome as possible

to the then inhabitants of Louisiana, and might well exhibit even an anxious solicitude to protect their property and persons, and to secure to them and their posterity their religious and political rights; and the United States, as a just government, might readily accede to all proper stipulations respecting those who were about to have their allegiance transferred But what interest France could have in uninhabited Territory, which, in the language of the Treaty, was to be transferred “forever, and in full sovereignty,” to the United States, or how the United States could consent to allow a foreign nation to interfere in its purely internal affairs,

in which that foreign nation had no concern whatever, is difficult for me to conjecture In my judgment, this Treaty contains nothing of the kind

The 3d article is supposed to have a bearing

on the question It is as follows: “The inhabitants of the ceded Territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States; and

in the meantime they shall be maintained and protected in the enjoyment of their liberty, property, and the religion they profess.”

There are two views of this article, each of which, I think, decisively shows that it was not intended to restrain the Congress from exclud-ing slavery from that part of the ceded Territory then uninhabited The first is, that, manifestly, its sole object was to protect individual rights of the then inhabitants of the Territory They are

to be “maintained and protected in the free

enjoyment of their liberty, property, and the religion they profess.” But this Article does not secure to them the right to go upon the public domain ceded by this Treaty, either with or without their slaves The right or power of doing this did not exist before or at the time the Treaty was made The French and Spanish Governments, while they held the country, as well as the United States when they acquired it, always exercised the undoubted right of exclud-ing inhabitants from the Indians country, and

of determining when and on what conditions it should be opened to settlers And a stipulation, that the then inhabitants of Louisiana should be protected in their property, can have no reference to their use of that property, where they had no right, under the Treaty, to go with

it, save at the will of the United States If one who was an inhabitant of Louisiana at the time

of the Treaty had afterwards taken property then owned by him, consisting of fire-arms, ammunition, and spirits, and had gone into the Indian country north of thirty-six degrees thirty minutes, to sell them to the Indians, all must agree the 3d article of the Treaty would not have protected him from indictment under the Act of Congress of March 30, 1802, 2 Stat at L 139, adopted and extended to this Territory by the Act of March 26, 1804, 2 Stat at L 283 Besides, whatever rights were secured were individual rights If Congress should pass any law which violated such rights of any individual, and those rights were of such a character as not

to be within the lawful control of Congress under the Constitution, that individual could complain, and the Act of Congress, as to such rights of his, would be inoperative; but it would

be valid and operative as to all other persons, whose individual rights did not come under the protection of the Treaty And inasmuch as it does not appear that any inhabitant of Louisi-ana, whose rights were secured by Treaty, had been injured, it would be wholly inadmissible for this court to assume, first, that one or more such cases may have existed; and second, that if any did exist, the entire law was void—not only

as to those cases, if any, in which it could not rightfully operate, but as to all others, wholly unconnected with the Treaty, in which such law could rightfully operate

But it is quite unnecessary, in my opinion,

to pursue this inquiry further, because it clearly appears from the language of the Article, and it has been decided by this court that the

G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N

SLAVERY

DRED SCOTT V.

SANDFORD

the Union.

In the case of New Orleans v De armas et al

9 Pet 224, the question was, whether a title to

property, which existed at the date of the Treaty,

continued to be protected by the Treaty after

the State of Louisiana was admitted to the

Union The 3d article of the Treaty was relied

on Mr Chief Justice Marshall said:“This article

obviously contemplates two objects One, that

Louisiana shall be admitted into the Union as

soon as possible, on an equal footing with the

other States; and the other, that, till such

admission, the inhabitants of the ceded

Terri-tory shall be protected in the free enjoyment of

their liberty, property and religion Had any one

of these rights been violated while these

stipulations continued in force, the individual

supposing himself to be injured might have

brought his case into this court under the 25th

section of the Judicial Act But this stipulation

ceased to operate when Louisiana became a

member of the Union, and its inhabitants were

“admitted to the enjoyment of all the rights,

advantages and immunities of citizens of the

United States.”

The case of Chateau v Marguerita, 12 Pet

507, and Permoli v New Orleans, 3 How 589,

are in conformity with this view of the Treaty

To convert this temporary stipulation of the

Treaty, in behalf of French subjects who then

inhabited a small portion of Louisiana, into a

permanent restriction upon the power of

Congress to regulate territory then uninhabited,

of the ceded Territory with their slaves and hold them there, is a construction of this Treaty so opposed to its natural meaning, and so far beyond it subject matter and the evident design

of the parties, that I cannot assent to it In my opinion, this Treaty has no bearing on the present question

For these reasons, I am of opinion that so much of the several Acts of Congress as prohibited slavery and involuntary servitude within that part of the Territory of Wisconsin lying north of thirty-six degrees thirty minutes north latitude, and west of the River Mississippi, were constitutional and valid laws

I have expressed my opinion, and the reasons therefore, at far greater length than I could have wished, upon the different questions

on which I have found it necessary to pass, to arrive at a judgment on the case at bar These questions are numerous, and the grave impor-tance of some of them required me to exhibit fully the grounds of my opinion I have touched

no question which, in the view I have taken, it was not absolutely necessary for me to pass upon, to ascertain whether the judgement of the Circuit Court should stand or be reversed I have avoided no question on which the validity

of that judgment depends To have done either more or less, would have been inconsistent with

my views of my duty

In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial

“A House Divided” Speech

Abraham Lincoln, June 16, 1858

In 1856 ABRAHAM LINCOLN, an Illinois lawyer

and politician, left the WHIG PARTY over the issue of SLAVERY and joined the newly-formed, antislavery REPUBLICAN PARTY Lincoln was out-raged at theKANSAS-NEBRASKA ACT OF1854 and the Dred Scott decision He was particularly dis-pleased with SenatorSTEPHEN A.DOUGLAS(D-Ill.) for championing the popular sovereignty doc-trine, which allowed territories to decide whether to be free or slave states The Dred Scott case suggested that there was no legal way

to prevent slavery in the North as well

The Republicans chose Lincoln as their candidate in the 1858 Illinois senatorial race against Douglas The campaign was marked by a series of seven brilliant debates between the two contenders Lincoln advocated loyalty to the Union, regarded slavery as unjust, and was opposed to any further expansion of slavery He opened his campaign on June 16, 1858, with the declaration “‘A house divided against itself cannot stand.’ I believe this government cannot endure permanently half slave and half free.” His speech attacked the morality and legitimacy of popular sovereignty and warned that whether slavery could be permitted in the North was still

an open question

Lincoln lost the election due to an unfavor-ableAPPORTIONMENTof legislative seats in Illinois

At that time U.S senators were elected by a vote

of the state legislature Though Lincoln gar-nered more popular votes, the legislators chose

to reelect Douglas Despite the loss, Lincoln’s firm antislavery position had enhanced his

national reputation and helped him win elec-tion as president in 1860

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“A House Divided” Speech

“A house divided against itself cannot stand.”

I believe this government cannot endure, permanently half slave and half free

I do not expect the Union to be dissolved—I

do not expect the house to fall—but I do expect

it will cease to be divided

It will become all one thing, or all the other Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the states, old as well as new—North as well as South Have we no tendency to the latter condition? Let any one who doubts, carefully contemplate that now almost complete legal combination— piece of machinery so to speak—compounded of the Nebraska doctrine, and the Dred Scott decision

* * *

[The Kansas-Nebraska Act] opened all the national territory to slavery This had been provided for in the notable argument of

“squatter sovereignty,” otherwise called “sacred right of self government,” which latter phrase, though expressive of the only rightful basis of any government, was so perverted in this attempted

308

While the Nebraska Bill was passing through

Congress, a law case, involving the question of a

negro’s freedom was passing through the

U.S Circuit Court for the District of Missouri;

and both Nebraska Bill and law suit were brought

to a decision in the same month of May, 1854

The Negro’s name was “Dred Scott”

* * *

[The points decided by the Dred Scott

decision include] that whether the holding a

negro in actual slavery in a free state, makes him

free, as against the holder, the United States

courts will not decide, but will leave to be

decided by the courts of any slave state the

negro may be forced into by the master

This point is made, not to be pressed

immediately [that] the logical conclusion that

what Dred Scott’s master might lawfully do with

Dred Scott, in the free state Illinois, every other

master may lawfully do with any other one, or one

thousand slaves, in Illinois, or in any other free state

* * *

While the opinion of Chief Justice

Taney, in the Dred Scott case expressly

declare[s] that the Constitution of the United

States neither permits congress nor a territorial

legislature to exclude slavery from any United

States territory, [Taney] omit[s] to declare

whether or not the same constitution permits a

state, or the people of a state, to exclude it

ing the power of a state over slavery, is made by Judge Nelson He approaches it more than once, using the precise idea, and almost the language too, of the Nebraska Act On one occasion his exact language is, “except in cases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction.”

In what cases the power of the states is so restrained by the U.S Constitution, is left an open question, precisely as the same question, as

to the restraint on the power of the territories was left open in the Nebraska Act Put that and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery from its limits

* * *

Such a decision is all that slavery now lacks

of being alike lawful in all the states

Welcome or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown

We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave state

Emancipation Proclamation

By the President of the United States of America

President ABRAHAM LINCOLN supported the

U.S.CIVIL WARto preserve the Union, not

to end SLAVERY Though he was personally opposed to slavery, he had been elected on a platform that pledged the continuation of slavery in states where it already existed

Wartime pressures, however, drove Lincoln toward emancipation of the slaves Military leaders argued that an enslaved labor force in the South allowed the Confederate states to place more soldiers on the front lines By the summer of 1862, Lincoln had prepared an

EMANCIPATION PROCLAMATION, but he did not want

to issue it until Union armies had had greater success on the battlefield He feared that otherwise the proclamation might be seen as a sign of weakness

The Union army’s victory at the Battle of Antietam encouraged the president to issue a preliminary proclamation on September 22,

1862, that announced the abolition of slavery

in areas occupied by the Confederacy effective January 1, 1863 The wording of the Emancipa-tion ProclamaEmancipa-tion on that date made clear that slavery would still be tolerated in the border states and areas occupied by Union troops, so as not to jeopardize the war effort Lincoln was uncertain that the Supreme Court would uphold the constitutionality of his action, so

he lobbied Congress to adopt the THIRTEENTH AMENDMENT, which totally abolished slavery

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Emancipation Proclamation

A PROCLAMATION Whereas, on the twenty-second day of Septem-ber, in the year of our Lord one thousand 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 hundred 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 government 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, respectively, 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 states shall have participated, shall, in the absence of strong

310

Now, therefore, I, Abraham Lincoln,

presi-dent 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 the 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 mentioned, 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, Jefferson,

St John, St Charles, St James, Ascension,

Assumption, Terre Bonne, 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

desig-nated as West Virginia, and also the counties of

Berkeley, Accomac, Northampton, Elizabeth

City, York, Princess Ann, and Norfolk,

includ-ing the cities of Norfolk and 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

naval authorities thereof, will recognize and maintain 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-defense; and I recom-mend 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

Source: Statutes at Large, vol 12 (1864), pp 1268–1269.

From Segregation to Civil Rights

 “THE CIVIL RIGHTS CASES”

 PLESSY V FERGUSON

 LETTER FROM BIRMINGHAM CITY JAIL

 “I HAVE A DREAM” SPEECH

 CIVIL RIGHTS ACT OF 1964

 VOTING RIGHTS ACT OF 1965

 AMERICANS WITH DISABILITIES ACT OF 1990

After the U.S CIVIL WAR the THIRTEENTH,

FOURTEENTH, andFIFTEENTH AMENDMENTSto the U.S Constitution, along with many pieces of

CIVIL RIGHTS legislation, were enacted to protect the rights of the newly freed slaves Nevertheless, African Americans were soon ensnared in a southern political and legal system that limited their political, economic, and social freedoms

Initially after the war, during the RECON-STRUCTIONera (1865–1876), the former Confed-erate states were placed under federal military control During this time African Americans were able to register to vote and to be elected to state and local government posts This period was also marked by white vigilantism, however,

in the form of the KU KLUX KLAN (KKK) The KKK used terror to discourage African Amer-icans from voting or from asserting their other constitutional rights

The presidential election of 1876 resulted in

a deadlockedELECTORAL COLLEGE and allegations

of election fraud A congressional compromise was reached in which RepublicanRUTHERFORD B

HAYES became president In exchange, southern Democrats were rewarded with the withdrawal

of federal troops and the end of Reconstruction

During the 1870s the U.S Supreme Court was called on to decide the scope of the Fourteenth Amendment In the CIVIL RIGHTS CASES, 109 U.S 3, 3 S Ct 18, 27 L Ed 835 (1883), the Court struck down the CIVIL RIGHTS ACT of 1875, which had been based on the Fourteenth Amendment The Court held that the amendment prohibited only official, state-sponsored discrimination and did not reach

discrimination by private parties By the 1890s African Americans had lost virtually all their civil rights as southern states, emboldened by the Civil Rights cases, passed laws that segre-gated all public facilities and public transporta-tion on the basis of race InPLESSY V.FERGUSON,

163 U.S 537, 16 S Ct 1138, 41 L Ed 256 (1896), the Supreme Court endorsed “separate-but-equal” laws, holding that they did not violate the Constitution

Beginning in the 1930s, the National Association for the Advancement of Colored People (NAACP) fought a series of court battles against various aspects of state-sponsored seg-regation The NAACP’s main focus, however, was the desegregation of public schools A team

of talented attorneys, which included future Supreme Court justice THURGOOD MARSHALL, led the fight Ultimately, they succeeded in having Plessy struck down In BROWN V BOARD OF EDUCATION OF TOPEKA, KANSAS, 347 U.S 483, 74

S Ct 686, 98 L Ed 873 (1954), the Supreme Court ordered the end of state-sponsored segregated schools

Despite these legal victories, most African Americans in the South were not able to vote or

to exercise their civil rights In response,MARTIN LUTHER KING JR started the modernCIVIL RIGHTS MOVEMENTin the 1950s Instead of lawsuits, he used nonviolent public protests to attract the nation’s attention to the conditions under which African Americans were forced to live King and his followers were jailed for their demonstrations, but by the early 1960s it was clear that legal change must come

312

tion in employment, education, and public

accommodations The act outlawed both

state-sponsored and private segregation in hotels,

tices This act changed the South, as African Americans were allowed to register to vote for the first time since Reconstruction

From Segregation to Civil Rights

“The Civil Rights Cases”

The Civil Rights cases involved five

prosecu-tions and civil suits from California, Kansas, Missouri, New York, and Tennessee for denying African Americans access to public accommodations (hotels, theaters, and railroad cars) in violation of the Civil Rights Act of 1875

Justice Joseph P Bradley, writing for the majority

of the Supreme Court, held that the Fourteenth Amendment prohibited only official, state-spon-sored discrimination and could not reach discrimination practiced by privately owned places of public accommodation

Justice John M Harlan, in a dissenting opinion, argued that segregation in public accommodations was a “badge of slavery” for the recently freed African Americans and that the act could be constitutionally justified by looking to the Thirteenth Amendment This amendment gave Congress the authority to outlaw all“badges and incidents” of slavery Not until the passage of title II of the Civil Rights Act

of 1964 would the federal government achieve the desegregation of public accommodations

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“The Civil Rights Cases”

UNITED STATES V STANLEY.

[On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the District of Kansas.]

UNITED STATES V RYAN.

[In Error to the Circuit Court of the United States for the District of California.]

UNITED STATES V NICHOLS. [On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Western District

of Missouri.]

UNITED STATES V SINGLETON. [On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of

New York.]

ROBINSON AND WIFE V MEMPHIS &

CHARLESTON R CO.

[In Error to the Circuit Court of the United States for the Western District of Tennessee.]

Supreme Court of the United States

3 S.Ct 18

27 L.Ed 835 (Cite as: 109 U.S 3, 3 S.Ct 18) October 15, 1883

Harlan, J., dissents

Sol Gen Phillips, for plaintiff, the United States

No counsel for defendants, Stanley, Ryan, Nichols, and Singleton

Wm M Randolph, for plaintiffs in error, Robinson and wife

W Y C Humes, for defendant in error, the Memphis & Charleston R Co

Bradley, J

These cases are all founded on the first and second sections of the act of Congress known as

314

indictments for denying to persons of color the

accommodations and privileges of an inn or

hotel; two of them, those against Ryan and

Singleton, are, one an information, the other an

indictment, for denying to individuals the

privileges and accommodations of a theater,

the information against Ryan being for refusing

a colored person a seat in the dress circle of

Maguire’s theater in San Francisco; and the

indictment against Singleton being for denying

to another person, whose color is not stated, the

full enjoyment of the accommodations of the

theater known as the Grand Opera House in

New York,“said denial not being made for any

reasons by law applicable to citizens of every

race and color, and regardless of any previous

condition of servitude.” The case of Robinson

and wife against the Memphis & Charleston

Railroad Company was an action brought in

the Circuit Court of the United States for the

Western District of Tennessee, to recover the

penalty of $500 given by the second section of

the act; and the gravamen was the refusal by the

conductor of the railroad company to allow the

wife to ride in the ladies’ car, for the reason,

as stated in one of the counts, that she was

a person of African descent The jury rendered a

verdict for the defendants in this case upon the

merits under a charge of the court, to which a

bill of exceptions was taken by the plaintiffs

The case was tried on the assumption by both

parties of the validity of the act of Congress; and

the principal point made by the exceptions was

that the judge allowed evidence to go to the jury

tending to show that the plaintiff, the wife, was

an improper person, because she was in

company with a young man whom he supposed

to be a white man, and on that account inferred

that there was some improper connection

between them; and the judge charged the jury,

in substance, that if this was the conductor’s

bona fide reason for excluding the woman from

the car, they might take it into consideration on

the question of the liability of the company The

case is brought here by writ of error at the suit

of the plaintiffs The cases of Stanley, Nichols,

and Singleton come up on certificates of

division of opinion between the judges below

as to the constitutionality of the first and second

sections of the act referred to; and the case of

It is obvious that the primary and important question in all the cases is the constitutionality

of the law; for if the law is unconstitutional none of the prosecutions can stand

The sections of the law referred to provide

as follows:

“Section 1 That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”

“Sec 2 That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of $500

to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense,

be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1,000, or shall

be imprisoned not less than 30 days nor more than one year: Provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state: And provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.”

Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages,

“THE CIVIL RIGHTS CASES”