href="@public@vhost@g@gutenberg@html@files@22149@[email protected]#Footnote_6A_7" class="fnanchor pginternal" tag="{http://www.w3.org/1999/xhtml}a">[6a] the court in construing the provision for the return of slaves according to the Fugitive Slave Law of 1850 further recognized the master's right of property in his bondman, the right of assisting and recovering him regardless of any State law or regulation or local custom to the contrary whatsoever. This tribunal then believed that the right of the master to have his fugitive slave delivered up on the claim, being guaranteed by the Constitution, the implication was that the national government was clothed with proper authority and functions to enforce it. These were reversed during the Civil War by the nation rising in arms against the institution of slavery which it had economically outgrown and the court in the support of the Federal Government exercising its unusual powers in effecting the political and social upheaval resulting in the emancipation of the slaves, again became decidedly national in its decisions.

Out of Rebellion the Negro emerged a free man endowed by the State and Federal Government with all the privileges and immunities of a citizen in accordance with the will of the majority of the American people, as expressed in the Civil Rights Bill and in the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments. A decidedly militant minority, however, willing to grant the Negro freedom of body but unwilling to grant him political or civil rights, bore it grievously that the race had been so suddenly elevated and soon thereafter organized a party of reaction to reduce the freedmen to the position of the free people of color, who before the Civil War had no rights but that of exemption from involuntary servitude. During the Reconstruction period when the Negroes figured conspicuously in the rebuilding of the Southern States they temporarily enjoyed the rights guaranteed them by the Constitution. As there set in a reaction against the support of the reconstructed governments as administered by corrupt southerners and interlopers, the support which the United States Government had given this first effort in America toward actual democracy was withdrawn and the undoing of the Negro as a citizen was easily effected throughout the South by general intimidation and organized mobs known as the Ku-Klux Klan.

One of the first rights denied the Negro by these successful reactionaries was the unrestricted use of common carriers. Standing upon its former record, however, the court had sufficient precedents to continue as the impartial interpreter of the laws guaranteeing all persons civil and political equality. In New Jersey Steam Navigation Company v. Merchants Bank[7] the court speaking through Justice Nelson took high ground in the defence of the free and unrestricted use of common carriers, a right frequently denied the Negroes after the Civil War. The court said that a common carrier is "in the exercise of a sort of public office and has public duties to perform from which he should not be permitted to exonerate himself without assent of the parties concerned." This doctrine was upheld in Munn v. Illinois[8] and in Olcott v. Supervisors[9] when it was decided that railroads are public highways established under the authority of the State for the public use; and that they are none the less public highways, because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the convenience of the public; that no matter who is agent or what is the agency, the function performed is that of the State; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; "Upon these grounds alone," continues the opinion, "have courts sustained the investiture of railroad corporations with the States right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads."[10] Jurists in this country and in England had also held that inasmuch as the innkeeper is engaged in a quasi public employment, the law gives him special privileges and he is charged with certain duties and responsibilities to the public. The public nature of his employment would then forbid him from discriminating against any person asking admission, on account of the race or color of that person.[11]

In the Slaughter House Cases[12] and Strauder v. West Virginia[13] the United States Supreme Court held that since slavery was the moving or principal cause of the adoption of the Thirteenth Amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against all discrimination against them, because of their race in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its present express power to enforce that amendment by appropriate legislation, might enact laws to protect that people against deprivation, because of their race, of any civil rights granted to other freemen in the same States; and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the State.

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

In several decisions the court had held that the purpose of