The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-06-25
THE QUESTION OF NEGRO PRIVILEGE

Some time ago, our readers will remember,
Mayor HEATH, OF New Orleans, not copperhead,
but On unconditional Union man, in order that ne
might have sure guide, amid the maze OF contra
dictory legislation, which at present afiicts the
Southern States, asked the City Attorney, his
regularly constituted legal adviser, to give his
opinion in how far, under the laws, the different
classes Of races in any community are entitled to
admission to coffee houses, theatres, balls, etc. AS
the City Attorney, also, we believe, is thorough
Iy loyal man. and may therefore be fairly supposed
to take an unbiased view Of the case, we will give
the substance Of his conclusions.
Mr.. a. D. OGDEN, the City Attorney, holds that
the parties have the legal right to refuse the SELL
ing or admittance to any portion Of citizens or in
habitants. There is nothing, he says, in the term
of their license, obigating them to sell to any
one. They have the right to close their shops
in toto and they have the same right to choose
and determine who should be their customers,
who should be admitted, and on what terms and
conditions. These establishments are not public
property. The restaurant or the manager OF a
theatre has the same right to refuse adlnittance,
or if admittance be granted to specify tho place or
portion of the building to be occupied, as has the
physician conducting private hospital.
These cases, he continues, differ widely from
those arising out Of the obligations OF carriers, or
where certain privileges are granted BY special
legislation, and even in those the principles above
enuncated ore recognized.
In the case Of Day cs Owen, cited in fifth Mich,
igan Reports, Cooley, p: $40, the plaintiff was q
negro. The court held that the defendant would !s
unless che should show some excuse, releasing
him from the obligation. The right to be carried
cannot;be touched by rules and regulations, bnt
the privileges and accommodation Of passengers,
whilst being transported, are subject to such rules
and regulations the carrier may think proper to
make, provided they be reasonable.
A refusal to allow the plaintiff the privilege OF
the cabin, on his rendering cabin fare, was moth
ing more or less than denying him certain accom-
modations, from which he was excluded by the
rules and regulations Of the boat The law does
not require carrier to make any rules whatever,
but il cannot deny him the right to do so If he
deems it for his interest.
5th Gushing (Massachusetts) Report, page 204,
Judge Shaw read the decision: "The plaintiff, 9
colored child, commenced the action by her father
and next friend against the city OF Boston, under
the statute which provides that any child unlaw-
fully excluded from public school instruction in
this commonwealth shall recover damages there
for in an action against the city or town by which
such public instruction is supported" The qnes-
ton, therefore, is whether, upon the facts agreed
upon, tho plaintiff has been Eunlawfully excluded
from such instruction.
The great principle advanced by the learned and
ELOQUENT advocate OF the plaintiff, is chat by the
Constitution and laws OF Massachusetts, all per-
sons without distinction Of age SEX birth or color,
as general broad principle, such as ought to ap-
pear in declaration Of rights, is perfectly sound
It s not only expressed in terms but pervades and
animates the whole spirit Of our Constitution of
free government.
plied to the actual and various conditions Of per-
sons in society, it will not warrant the assertion
that men and women are legally clothed with the
same civil and political powers, and that children
and adults are legally to have the same functions
that the rights Of ALL as they are settled and regu
lated by law are equally entitled to the paternal
consideration and protection Of the laws for their
maintenance and security.
What those rights are TO- which individuals in
the infinite variety Of circumstances by which they
are surrounded, are entitled, must depend on
laws adapted to their respective relations and con-
ditions. ....,.
In the absence Of special legislation on this sub
ject, the law has vested the power In tho commit
classification, and when this power is reasonably
exercised without being abused or perverted by
colorado pretences, the decision OF the committee
must be deemed conclusive.
The committee, apparently upon great dehoera,
ton, have come to the conclusion that the good
Of both classes Of schools will be best promoted by
maintaining the separate primary schools for col
ored and for white children, and we can perceive
no ground to doubt that this is the honest result
Of their experience and Judgment.
On the whole, the Court are OF the opinion that
upon the facts stated the action cannot be main-
tanned. - :, y: ,t,s, -.
In the case Of the carrier, the common law made
it obligatory upon him to carry all passengers and
in the case Of the school, the special legislation
purported to be in favor OF oil classes: "Any
child" How much greater, therefore, the right
when there is neither law nor legislation compel
ling the sale or admitlance, but, on the contrary,
palpeble violation Of personal and private rights
in the compulsory appropriation OF property or
unwarranted trespass.
Very respectfully,
Your obedient servant,
b. D. OGDEN, City Attorney.