IX. POST-ABOLITION RECONSIDERATION OF COMMON CARRIER LAW
The abolition of slavery transformed antebellum racial practices. As Professor Joseph Singer has written:
The year 1865 marked an enormous turning point in the history of public accommodations law .... The case law that emerged after 1865 is absolutely consistent in affirming a common-law right of access to places of public accommodation without regard to race until the time of the Jim Crow laws of the 1890s. This right of access is premised not only on the traditional duties of public accommodation, but also on newly emerging conceptions of racial equality.
Northern states outlawed discrimination in public accommodations after the war by legislation and by common law decision or both. The change in common carrier law after the Civil War had two aspects. Carriers could no longer exclude African-Americans on the basis of race--the amendment rendered fears of escape or immigration law violation baseless. But carriers were also prohibited from treating negroes worse than they treated whites: courts imposed a common law separate but equal standard that prohibited the previously-existing disparity in facilities.
For example, a Philadelphia lower court in 1865 found ejection from a streetcar was actionable because the war had changed the common law, even before the 13th Amendment was ratified:
The logic of events of the past four years has in many respects cleared our vision and corrected our judgment; and no proposition has been more clearly wrought out by them than that the men who have been deemed worthy, to become the defenders of the country, to wear the uniforms of the soldier of the United States, should not be denied the rights common to humanity ....
A few years later, the Pennsylvania Supreme Court approved segregation on streetcars when the accommodations for African-Americans were not inferior. The decision assumed that common carrier law required carriers to carry African-Americans and that the requirement had an equality component--imposing a separate but equal standard. The court noted that the case arose before the passage of the Act of 22d March 1867, declaring it an offence [sic] for railroad companies to make any distinction between passengers on account of race or color, recognizing the probability that the statute went beyond the new common law to forbid segregation as well.
The changes in the common law were not limited to the North. In Maryland, Judge Giles struck down streetcar discrimination in Baltimore as a violation of the common law. He acknowledged that carriers freely discriminated against colored people before the war, but:
[a]ll that, however, has passed away. Slavery has been abolished, and the reason for such rule and regulation no longer exists. Under the Fourteenth Amendment to the Constitution of the United States the colored man has become a citizen, and can sue in the United States Courts. After citing several authorities, Judge Giles said: It appears to me that no common carrier has a right to refuse to carry any peaceable man who is willing to pay his
Judge Giles' reference to 14th-Amendment citizenship referred to the ability of the plaintiff to get the suit into federal court, but the abolition of slavery provided the fulcrum for his substantive decision that common carriers must carry African-Americans. The application of the common carrier law to African-Americans gave them a common law right of access to passage, and, moreover, that right included equal treatment with other passengers. Judge Giles followed his own decision in several later cases in which plaintiffs won judgments for common carrier mistreatment on the grounds that their accommodations were inferior to those of whites.
In the Civil Rights Cases, Justice Bradley assumed that African-Americans were entitled to equal access to common carriers and public accommodations as part of state law--i.e. the common law. If the state enforced the right of others to public accommodations and common carriers but did not protect African-Americans, it would violate the 14th Amendment because the antebellum exception could no longer be justified. If the carrier's exclusion policy violated anyone's rights:
his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment.
States avoided the 14th Amendment's constitutional prohibition in two ways. First, the state could abolish the common law by statute and deny the right of access to carriers and inns to everyone. Although Tennessee did this in 1875, the impact of the denial on white travelers made it politically problematic.
Alternatively, states could enforce a right of access while permitting the carrier to choose the location of the passenger--i.e., equal in access and physical accommodations but separated by race. Both races would have the right to first-class facilities, but the state would not give either race a right to a particular location, leaving the carrier free to segregate the races. This was the path chosen.
African-Americans brought numerous suits in the latter half of the 19th century on the basis of either a common law or a statutory right to carriage arising after the Civil War. Separate but equal became the legal standard behind which they won victory after victory against discriminatory treatment. That same standard became a barrier when subsequently applied by the Court in the very different context of the equal protection clause of the 14th Amendment.
. Professor Emeritus of Law University of Maryland Francis King Carey School of Law.