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nately against “the South” is unjust; but to use the same

breath in praising Governor Aycock, exposing Senator

Morgan, arguing with Mr. Thomas Nelson Page, and

denouncing Senator Ben Tillman, is not only sane, but the

imperative duty of thinking black men.

It would be unjust to Mr. Washington not to acknowl-

edge that in several instances he has opposed movements

in the South which were unjust to the Negro; he sent

memorials to the Louisiana and Alabama constitutional

conventions, he has spoken against lynching, and in other

ways has openly or silently set his influence against sinister

schemes and unfortunate happenings. Notwithstanding

this, it is equally true to assert that on the whole the dis-

tinct impression left by Mr. Washington’s propaganda is,

first, that the South is justified in its present attitude

toward the Negro because of the Negro’s degradation; sec-

ondly, that the prime cause of the Negro’s failure to rise

more quickly is his wrong education in the past; and,

thirdly, that his future rise depends primarily on his own

efforts. Each of these propositions is a dangerous half-

truth. The supplementary truths must never be lost sight

of: first, slavery and race- prejudice are potent if not suffi-

cient causes of the Negro’s position; second, industrial and

common-school training were necessarily slow in planting

because they had to await the black teachers trained by

higher institutions—it being extremely doubtful if any

essentially different development was possible, and cer-

tainly a Tuskegee was unthinkable before 1880; and, third,

while it is a great truth to say that the Negro must strive

and strive mightily to help himself, it is equally true that

unless his striving be not simply seconded, but rather

aroused and encouraged, by the initiative of the richer and

wiser environing group, he cannot hope for great success.

In his failure to realize and impress this last point, Mr.

Washington is especially to be criticised. His doctrine has

tended to make the whites, North and South, shift the bur-

den of the Negro problem to the Negro’s shoulders and

stand aside as critical and rather pessimistic spectators;

when in fact the burden belongs to the nation, and the

hands of none of us are clean if we bend not our energies

to righting these great wrongs.

The South ought to be led, by candid and honest crit-

icism, to assert her better self and do her full duty to the

race she has cruelly wronged and is still wronging. The

North—her co-partner in guilt—cannot salve her con-

science by plastering it with gold. We cannot settle this

problem by diplomacy and suaveness, by “policy” alone. If

worse come to worst, can the moral fibre of this country

survive the slow throttling and murder of nine millions of

men?

The black men of America have a duty to perform, a

duty stern and delicate—a forward movement to oppose a

part of the work of their greatest leader. So far as Mr.

Washington preaches Thrift, Patience, and Industrial

Training for the masses, we must hold up his hands and

strive with him, rejoicing in his honors and glorying in the

strength of this Joshua called of God and of man to lead

the headless host. But so far as Mr. Washington apologizes

for injustice, North or South, does not rightly value the

privilege and duty of voting, belittles the emasculating

effects of caste distinctions, and opposes the higher train-

ing and ambition of our brighter minds—so far as he, the

South, or the Nation, does this—we must unceasingly and

firmly oppose them. By every civilized and peaceful

method we must strive for the rights which the world

accords to men, clinging unwaveringly to those great

words which the sons of the Fathers would fain forget:

“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 these are life, lib-

erty, and the pursuit of happiness.”

XIV

The Sorrow Songs

I walk through the churchyard

To lay this body down;

I know moon-rise, I know star-rise;

I walk in the moonlight, I walk in the starlight;

I’ll lie in the grave and stretch out my arms,

I’ll go to judgment in the evening of the day,

And my soul and thy soul shall meet that day,

When I lay this body down.

Negro Song.

They that walked in darkness sang songs in the olden

days—Sorrow Songs—for they were weary at heart. And

so before each thought that I have written in this book I

have set a phrase, a haunting echo of these weird old songs

in which the soul of the black slave spoke to men. Ever

since I was a child these songs have stirred me strangely.

They came out of the South unknown to me, one by one,

and yet at once I knew them as of me and of mine. Then

in after years when I came to Nashville I saw the great

temple builded of these songs towering over the pale city.

To me Jubilee Hall seemed ever made of the songs them-

selves, and its bricks were red with the blood and dust of

toil. Out of them rose for me morning, noon, and night,

bursts of wonderful melody, full of the voices of my broth-

ers and sisters, full of the voices of the past.

Little of beauty has America given the world save the

rude grandeur God himself stamped on her bosom; the

human spirit in this new world has expressed itself in vigor

and ingenuity rather than in beauty. And so by fateful

chance the Negro folk-song—the rhythmic cry of the

1182 ERA 7: The Emergence of Modern America

slave—stands today not simply as the sole American music,

but as the most beautiful expression of human experience

born this side the seas. It has been neglected, it has been,

and is, half despised, and above all it has been persistently

mistaken and misunderstood; but notwithstanding, it still

remains as the singular spiritual heritage of the nation and

the greatest gift of the Negro people.

Away back in the thirties the melody of these slave

songs stirred the nation, but the songs were soon half for-

gotten. Some, like “Near the lake where drooped the wil-

low,” passed into current airs and their source was

forgotten; others were caricatured on the “minstrel” stage

and their memory died away. Then in war-time came the

singular Port Royal experiment after the capture of Hilton

Head, and perhaps for the first time the North met the

Southern slave face to face and heart to heart with no

third witness. The Sea Islands of the Carolinas, where

they met, were filled with a black folk of primitive type,

touched and moulded less by the world about them than

any others outside the Black Belt. Their appearance was

uncouth, their language funny, but their hearts were

human and their singing stirred men with a mighty power.

Thomas Wentworth Higginson hastened to tell of these

songs, and Miss McKim and others urged upon the world

their rare beauty. But the world listened only half credu-

lously until the Fisk Jubilee Singers sang the slave songs

so deeply into the world’s heart that it can never wholly

forget them again.

There was once a blacksmith’s son born at Cadiz, New

York, who in the changes of time taught school in Ohio and

helped defend Cincinnati from Kirby Smith. Then he

fought at Chancellorsville and Gettysburg and finally

served in the Freedman’s Bureau at Nashville. Here he

formed a Sunday-school class of black children in 1866,

and sang with them and taught them to sing. And then

they taught him to sing, and when once the glory of the

Jubilee songs passed into the soul of George L. White, he

knew his life-work was to let those Negroes sing to the

world as they had sung to him. So in 1871 the pilgrimage

of the Fisk Jubilee Singers began. North to Cincinnati they

rode—four half-clothed black boys and five girl-women—

led by a man with a cause and a purpose. They stopped at

Wilberforce, the oldest of Negro schools, where a black

bishop blessed them. Then they went, fighting cold and

starvation, shut out of hotels, and cheerfully sneered at,

ever northward; and ever the magic of their song kept

thrilling hearts, until a burst of applause in the Congrega-

tional Council at Oberlin revealed them to the world. They

came to New York and Henry Ward Beecher dared to wel-

come them, even though the metropolitan dailies sneered

at his “Nigger Minstrels.” So their songs conquered till

they sang across the land and across the sea, before Queen

and Kaiser, in Scotland and Ireland, Holland and Switzer-

land. Seven years they sang, and brought back a hundred

and fifty thousand dollars to found Fisk University.

Since their day they have been imitated—sometimes

well, by the singers of Hampton and Atlanta, sometimes ill,

by straggling quartettes. Caricature has sought again to

spoil the quaint beauty of the music, and has filled the air

with many debased melodies which vulgar ears scarce

know from the real. But the true Negro folk-song still lives

in the hearts of those who have heard them truly sung and

in the hearts of the Negro people.

What are these songs, and what do they mean? I know

little of music and can say nothing in technical phrase, but

I know something of men, and knowing them, I know that

these songs are the articulate message of the slave to the

world. They tell us in these eager days that life was joyous

to the black slave, careless and happy. I can easily believe

this of some, of many. But not all the past South, though it

rose from the dead, can gainsay the heart-touching witness

of these songs. They are the music of an unhappy people,

of the children of disappointment; they tell of death and

suffering and unvoiced longing toward a truer world, of

misty wanderings and hidden ways.

The songs are indeed the siftings of centuries; the

music is far more ancient than the words, and in it we can

trace here and there signs of development. My grandfa-

ther’s grandmother was seized by an evil Dutch trader two

centuries ago; and coming to the valleys of the Hudson and

Housatonic, black, little, and lithe, she shivered and shrank

in the harsh north winds, looked longingly at the hills, and

often crooned a heathen melody to the child between her

knees, thus:

Do ba-na co-ba, ge-ne me, ge-ne me!

Ben d’ nu-li, nu-li, nu-li, nu-li, ben d’ le.

The child sang it to his children and they to their chil-

dren’s children, and so two hundred years it has travelled

down to us and we sing it to our children, knowing as little

as our fathers what its words may mean, but knowing well

the meaning of its music.

This was primitive African music; it may be seen in

larger form in the strange chant which heralds “The Com-

ing of John”:

“You may bury me in the East, You may bury

me in the West, But I’ll hear the trumpet

sound in that morning”

—the voice of exile.

Ten master songs, more or less, one may pluck from

this forest of melody—songs of undoubted Negro origin

Progressivism 1183

and wide popular currency, and songs peculiarly cha-

racteristic of the slave. One of these I have just

mentioned. Another whose strains begin this book is

“Nobody knows the trouble I’ve seen.” When, struck with

a sudden poverty, the United States refused to fulfil its

promises of land to the freedmen, a brigadier-general

went down to the Sea Islands to carry the news. An old

woman on the outskirts of the throng began singing this

song; all the mass joined with her, swaying. And the sol-

dier wept.

The third song is the cradle-song of death which all

men know—“Swing low, sweet chariot”—whose bars begin

the life story of “Alexander Crummell.” Then there is the

song of many waters, “Roll, Jordan, roll,” a mighty chorus

with minor cadences. There were many songs of the fugi-

tive like that which opens “The Wings of Atalanta,” and the

more familiar “Been a-listening.” The seventh is the song

of the End and the Beginning—“My Lord, what a mourn-

ing! when the stars begin to fall”; a strain of this is placed

before “The Dawn of Freedom.” The song of groping—

“My way’s cloudy”—begins “The Meaning of Progress”;

the ninth is the song of this chapter—“Wrestlin’ Jacob, the

day is a breaking”—a paean of hopeful strife. The last mas-

ter song is the song of songs—“Steal away,”—sprung from

“The Faith of the Fathers.”

There are many others of the Negro folk-songs as

striking and characteristic as these, as, for instance, the

three strains in the third, eighth, and ninth chapters; and

others I am sure could easily make a selection on more sci-

entific principles. There are, too, songs that seem to me a

step removed from the more primitive types: there is the

maze-like medley, “Bright sparkles,” one phrase of which

heads “The Black Belt”; the Easter carol, “Dust, dust and

ashes”; the dirge, “My mother’s took her flight and gone

home”; and that burst of melody hovering over “The Pass-

ing of the First-Born”—“I hope my mother will be there in

that beautiful world on high.”

These represent a third step in the development of the

slave song, of which “You may bury me in the East” is the

first, and songs like “March on” (chapter six) and “Steal

away” are the second. The first is African music, the sec-

ond Afro-American, while the third is a blending of Negro

music with the music heard in the foster land. The result

is still distinctively Negro and the method of blending orig-

inal, but the elements are both Negro and Caucasian. One

might go further and find a fourth step in this develop-

ment, where the songs of white America have been dis-

tinctively influenced by the slave songs or have

incorporated whole phrases of Negro melody, as “Swanee

River” and “Old Black Joe.” Side by side, too, with the

growth has gone the debasements and imitations—the

Negro “minstrel” songs, many of the “gospel” hymns, and

some of the contemporary “coon” songs—a mass of music

in which the novice may easily lose himself and never find

the real Negro melodies.

In these songs, I have said, the slave spoke to the

world. Such a message is naturally veiled and half articu-

late. Words and music have lost each other and new and

cant phrases of a dimly understood theology have displaced

the older sentiment. Once in a while we catch a strange

word of an unknown tongue, as the “Mighty Myo,” which

figures as a river of death; more often slight words or mere

doggerel are joined to music of singular sweetness. Purely

secular songs are few in number, partly because many of

them were turned into hymns by a change of words, partly

because the frolics were seldom heard by the stranger, and

the music less often caught. Of nearly all the songs, how-

ever, the music is distinctly sorrowful. The ten master

songs I have mentioned tell in word and music of trouble

and exile, of strife and hiding; they grope toward some

unseen power and sigh for rest in the End.

The words that are left to us are not without interest,

and, cleared of evident dross, they conceal much of real

poetry and meaning beneath conventional theology and

unmeaning rhapsody. Like all primitive folk, the slave

stood near to Nature’s heart. Life was a “rough and rolling

sea” like the brown Atlantic of the Sea Islands; the

“Wilderness” was the home of God, and the “lonesome val-

ley” led to the way of life. “Winter’ll soon be over,” was the

picture of life and death to a tropical imagination. The sud-

den wild thunderstorms of the South awed and impressed

the Negroes—at times the rumbling seemed to them

“mournful,” at times imperious:

“My Lord calls me, He calls me by the thunder, The

trumpet sounds it in my soul.”

The monotonous toil and exposure is painted in many

words. One sees the ploughmen in the hot, moist furrow,

singing:

“Dere’s no rain to wet you, Dere’s no sun to burn you,

Oh, push along, believer, I want to go home.”

The bowed and bent old man cries, with thrice-

repeated wail:

“O Lord, keep me from sinking down,” and he

rebukes the devil of doubt who can whisper: “Jesus is dead

and God’s gone away.”

Yet the soul-hunger is there, the restlessness of the

savage, the wail of the wanderer, and the plaint is put in

one little phrase:

My soul wants something that’s new, that’s new

Over the inner thoughts of the slaves and their rela-

tions one with another the shadow of fear ever hung, so

that we get but glimpses here and there, and also with

them, eloquent omissions and silences. Mother and child

are sung, but seldom father; fugitive and weary wanderer

1184 ERA 7: The Emergence of Modern America

call for pity and affection, but there is little of wooing and

wedding; the rocks and the mountains are well known, but

home is unknown. Strange blending of love and helpless-

ness sings through the refrain:

“Yonder’s my ole mudder, Been waggin’ at de hill so

long; ‘Bout time she cross over, Git home bime-by.”

Elsewhere comes the cry of the “motherless” and the

“Farewell, farewell, my only child.”

Love-songs are scarce and fall into two categories—

the frivolous and light, and the sad. Of deep successful love

there is ominous silence, and in one of the oldest of these

songs there is a depth of history and meaning:

Poor Ro-sy, poor gal; Poor Ro-sy,

poor gal; Ro-sy break my poor heart.

Heav’n shall-a-be my home.

A black woman said of the song, “It can’t be sung with-

out a full heart and a troubled sperrit.” The same voice

sings here that sings in the German folk-song:

“Jetz Geh i’ an’s brunele, trink’ aber net.”

Of death the Negro showed little fear, but talked of it

familiarly and even fondly as simply a crossing of the

waters, perhaps—who knows?—back to his ancient forests

again. Later days transfigured his fatalism, and amid the

dust and dirt the toiler sang:

“Dust, dust and ashes, fly over my grave, But the Lord

shall bear my spirit home.”

The things evidently borrowed from the surrounding

world undergo characteristic change when they enter the

mouth of the slave. Especially is this true of Bible phrases.

“Weep, O captive daughter of Zion,” is quaintly turned

into “Zion, weep-a-low,” and the wheels of Ezekiel are

turned every way in the mystic dreaming of the slave, till

he says:

“There’s a little wheel a-turnin’ in-a-my heart.”

As in olden time, the words of these hymns were

improvised by some leading minstrel of the religious

band. The circumstances of the gathering, however, the

rhythm of the songs, and the limitations of allowable

thought, confined the poetry for the most part to single or

double lines, and they seldom were expanded to quatrains

or longer tales, although there are some few examples of

sustained efforts, chiefly paraphrases of the Bible. Three

short series of verses have always attracted me—the one

that heads this chapter, of one line of which Thomas

Wentworth Higginson has fittingly said, “Never, it seems

to me, since man first lived and suffered was his infinite

longing for peace uttered more plaintively.” The second

and third are descriptions of the Last Judgment—the

one a late improvisation, with some traces of outside

influence:

“Oh, the stars in the elements are falling, And the

moon drips away into blood, And the ran-

somed of the Lord are returning unto God,

Blessed be the name of the Lord.”

And the other earlier and homelier picture from the

low coast lands:

“Michael, haul the boat ashore, Then you’ll hear

the horn they blow, Then you’ll hear the

trumpet sound, Trumpet sound the world

around, Trumpet sound for rich and poor,

Trumpet sound the Jubilee, Trumpet sound

for you and me.”

Through all the sorrow of the Sorrow Songs there

breathes a hope—a faith in the ultimate justice of things.

The minor cadences of despair change often to triumph

and calm confidence. Sometimes it is faith in life, some-

times a faith in death, sometimes assurance of boundless

justice in some fair world beyond. But whichever it is, the

meaning is always clear: that sometime, somewhere, men

will judge men by their souls and not by their skins. Is such

a hope justified? Do the Sorrow Songs sing true?

The silently growing assumption of this age is that the

probation of races is past, and that the backward races of

to-day are of proven inefficiency and not worth the saving.

Such an assumption is the arrogance of peoples irreverent

toward Time and ignorant of the deeds of men. A thousand

years ago such an assumption, easily possible, would have

made it difficult for the Teuton to prove his right to life.

Two thousand years ago such dogmatism, readily welcome,

would have scouted the idea of blond races ever leading

civilization. So wofully unorganized is sociological knowl-

edge that the meaning of progress, the meaning of “swift”

and “slow” in human doing, and the limits of human per-

fectability, are veiled, unanswered sphinxes on the shores

of science. Why should AEschylus have sung two thousand

years before Shakespeare was born? Why has civilization

flourished in Europe, and flickered, flamed, and died in

Africa? So long as the world stands meekly dumb before

such questions, shall this nation proclaim its ignorance and

unhallowed prejudices by denying freedom of opportunity

to those who brought the Sorrow Songs to the Seats of the

Mighty?

Your country? How came it yours? Before the Pil-

grims landed we were here. Here we have brought our

three gifts and mingled them with yours: a gift of story and

song—soft, stirring melody in an ill-harmonized and

unmelodious land; the gift of sweat and brawn to beat

back the wilderness, conquer the soil, and lay the founda-

tions of this vast economic empire two hundred years ear-

Progressivism 1185

lier than your weak hands could have done it; the third, a

gift of the Spirit. Around us the history of the land has

centred for thrice a hundred years; out of the nation’s

heart we have called all that was best to throttle and sub-

due all that was worst; fire and blood, prayer and sacrifice,

have billowed over this people, and they have found peace

only in the altars of the God of Right. Nor has our gift of

the Spirit been merely passive. Actively we have woven

ourselves with the very wrap and woof of this nation—we

fought their battles, shared their sorrow, mingled our

blood with theirs, and generation after generation have

pleaded with a headstrong, careless people to despise not

Justice, Mercy, and Truth, lest the nation be smitten with

a curse. Our song, our toil, our cheer, and warning have

been given to this nation in blood-brotherhood. Are not

these gifts worth the giving? Is not this work and striving?

Would America have been America without her Negro

people?

Even so is the hope that sang in the songs of my

fathers well sung. If somewhere in this whirl and chaos of

things there dwells Eternal Good, pitiful yet masterful,

then anon in His good time America shall rend the Veil

and the prisoned shall go free. Free, free as the sunshine

trickling down the morning into these high windows of

mine, free as yonder fresh young voices welling up to me

from the caverns of brick and mortar below—swelling with

song, instinct with life, tremulous treble and darkening

bass. My children, my little children, are singing to the

sunshine, and thus they sing:

Let us cheer the wea-ry trav-el-ler,

Cheer the wea-ry trav-el-ler, Let us

cheer the wea-ry trav-el-ler

A-long the heav-en-ly way,

And the traveller girds himself, and sets his face

toward the Morning, and goes his way.

The After-Thought

Hear my cry, O God the Reader; vouchsafe that this my

book fall not still-born into the world-wilderness. Let there

spring, Gentle One, from out its leaves vigor of thought

and thoughtful deed to reap the harvest wonderful. (Let

the ears of a guilty people tingle with truth, and seventy

millions sigh for the righteousness which exalteth nations,

in this drear day when human brotherhood is mockery and

a snare.) Thus in Thy good time may infinite reason turn

the tangle straight, and these crooked marks on a fragile

leaf be not indeed

Source:

W. E. B. DuBois, The Souls of Black Folk. New York: Vintage

Books, 1990.

Elkins Act, 1903

Federal U.S. legislation, passed on February 19, 1903, pro-

hibiting railroads from giving rebates to favored shippers

engaged in interstate commerce. Supported by antimonopoly

reformers and by the railroads, which were being compelled

to grant rebates to certain powerful trusts, the act provided for

prosecution and punishment of shippers, railroad corpora-

tions, agents, and officers who gave or received rebates. It

made deviation from the published rates a misdemeanor and

gave federal courts the power to issue injunctions against vio-

lators. Introduced by Senator Stephen B. Elkins of West Vir-

ginia, the act reinforced the Interstate Commerce Act. On June

29, 1906, the government enacted the Hepburn Act, which

strengthened the Elkins Act and increased the power of the

Interstate Commerce Commission (ICC) to regulate railroads.

In strengthening the Interstate Commerce Act, the 1906 act

extended the ICC’s jurisdiction to include refrigeration and

storage facilities, terminals, bridges, and pipelines. It empow-

ered the commission to set reasonable maximum railroad rates

to require uniform accounting methods. It also prohibited rail-

roads from carrying commodities—other than certain products

needed for railway operations—produced by companies in

which they held a financial interest. The Elkins Act prohibiting

rebates was also strengthened. The ICC’s rulings were made

binding without court action, though its decisions could be

appealed.

________________________

_______________________

An Act

To further regulate commerce with foreign nations and

among the States.

Be it enacted by the Senate and House of Represen-

tatives of the United States of America in Congress

assembled, That anything done or omitted to be done by

a corporation common carrier, subject to the Act to reg-

ulate commerce and the Acts amendatory thereof which,

if done or omitted to be done by any director or officer

thereof, or any receiver, trustee, lessee, agent, or person

acting for or employed by such corporation, would con-

stitute a misdemeanor under said Acts or under this Act

shall also be held to be a misdemeanor committed by

such corporation, and upon conviction thereof it shall be

subject to like penalties as are prescribed in said Acts or

by this Act with reference to such persons except as such

penalties are herein changed. The willful failure upon the

part of any carrier subject to said Acts to file and publish

the tariffs or rates and charges as required by said Acts or

strictly to observe such tariffs until changed according to

law, shall be a misdemeanor, and upon conviction thereof

the corporation offending shall be subject to a fine not

less than one thousand dollars nor more than twenty

thousand dollars for each offense; and it shall be unlaw-

1186 ERA 7: The Emergence of Modern America

ful for any person, persons, or corporation to offer, grant,

or give or to solicit, accept, or receive any rebate, con-

cession, or discrimination in respect of the transportation

of any property in interstate or foreign commerce by any

common carrier subject to said Act to regulate commerce

and the Acts amendatory thereto whereby any such prop-

erty shall by any device whatever be transported at a less

rate than that named in the tariffs published and filed by

such carrier, as is required by said Act to regulate com-

merce and the Acts amendatory thereto, or whereby any

other advantage is given or discrimination is practiced.

Every person or corporation who shall offer, grant, or

give or solicit, accept or receive any such rebates, con-

cession, or discrimination shall be deemed guilty of a

misdemeanor, and on conviction thereof shall be pun-

ished by a fine of not less than one thousand dollars nor

more than twenty thousand dollars. In all convictions

occurring after the passage of this Act for offenses under

said Acts to regulate commerce, whether committed

before or after the passage of this Act, or for offenses

under this section, no penalty shall be imposed on the

convicted party other than the fine prescribed by law,

imprisonment wherever now prescribed as part of the

penalty being hereby abolished. Every violation of this

section shall be prosecuted in any court of the United

States having jurisdiction of crimes within the district in

which such violation was committed or through which

the transportation may have been conducted; and when-

ever the offense is begun in one jurisdiction and com-

pleted in another it may be dealt with, inquired of, tried,

determined, and punished in either jurisdiction in the

same manner as if the offense had been actually and

wholly committed therein.

In construing and enforcing the provisions of this sec-

tion the act, omission, or failure of any officer, agent, or

other person acting for or employed by any common car-

rier acting within the scope of his employment shall in

every case be also deemed to be the act, omission, or fail-

ure of such carrier as well as that of the person. Whenever

any carrier files with the Interstate Commerce Commis-

sion or publishes a particular rate under the provisions of

the Act regulate commerce or Acts amendatory thereto, or

participates in any rates so filed or published, that rate as

against such carrier, its officers, or agents in any prosecu-

tion begun under this Act shall be conclusively deemed to

be the legal rate, and any departure from such rate, or any

offer to depart therefrom, shall be deemed to be an

offense under this section of this Act.

Sec. 2. That in any proceeding for the enforcement of

the provisions of the statutes relating to interstate com-

merce, whether such proceedings be instituted before the

Interstate Commerce Commission or be begun originally

in any circuit court of the United States, it shall be lawful

to include as parties, in addition to the carrier, all persons

interested in or affected by the rate, regulation, or practice

under consideration, and inquiries, investigations, orders,

and decrees may be made with reference to and against

such additional parties in the same manner, to the same

extent, and subject to the same provisions as are or shall be

authorized by law with respect to carriers.

Sec. 3. That whenever the Interstate Commerce Com-

mission shall have reasonable ground for belief that any

common carrier is engaged in the carriage of passengers or

freight traffic between given points at less than the pub-

lished rates on file, or is committing any discriminations

forbidden by law, a petition may be presented alleging

such facts to the circuit court of the United States sitting

in equity having jurisdiction; and when the act complained

of is alleged to have been committed or as being commit-

ted in part in more than one judicial district or State, it

may be dealt with, inquired of, tried, and determined in

either such judicial district or State, whereupon it shall be

the duty of the court summarily to inquire into the cir-

cumstances, upon such notice and in such manner as the

court shall direct and without the formal pleadings and

proceedings applicable to ordinary suits in equity, and to

make such other persons or corporations parties thereto as

the court may deem necessary, and upon being satisfied of

the truth of the allegations of said petition said court shall

enforce an observance of the published tariffs or direct

and require a discontinuance of such discrimination by

proper orders, writs, and process, which said orders, writs,

and process may be enforceable as well against the parties

interested in the traffic as against the carrier, subject to the

right of appeal as now provided by law. It shall be the duty

of the several district attorneys of the United States, when-

ever the Attorney-General shall direct, either of his own

motion or upon the request of the Interstate Commerce

Commission, to institute and prosecute such proceedings,

and the proceedings provided for by this Act shall not pre-

clude the bringing of suit for the recovery of damages by

any party injured, or any other action provided by said Act

approved February fourth, eighteen hundred and eighty-

seven, entitled An Act to regulate commerce and the Acts

amendatory thereof. And in proceedings under this Act

and the Acts to regulate commerce the said courts shall

have the power to compel the attendance of witnesses,

both upon the part of the carrier and the shipper, who shall

be required to answer on all subjects relating directly or

indirectly to the matter in controversy, and to compel the

production of all books and papers, both of the carrier and

the shipper, which relate directly or indirectly to such

transaction; the claim that such testimony or evidence may

tend to criminate the person giving such evidence shall to

excuse such person from testifying or such corporation

producing its books and papers, but no person shall be

Progressivism 1187

prosecuted or subjected to any penalty or forfeiture for or

on account of any transaction, matter, or thing concerning

which he may testify or produce evidence documentary or

otherwise in such proceeding: Provided, That the provi-

sions of an Act entitled “An Act to expedite the hearing

and determination of suits in equity pending or hereafter

brought under the Act of July second, eighteen hundred

and ninety, entitled ‘An Act to protect trade and commerce

against unlawful restraints and monopolies,’ ‘An Act to reg-

ulate commerce,’ approved February fourth, eighteen

hundred and eighty-seven, or any other Acts having a

like purpose that may be hereafter enacted, approved

February eleventh, nineteen hundred and three,” shall

apply to any case prosecuted under the direction of the

Attorney-General in the name of the Interstate Commerce

Commission.

Sec. 4. That all Acts and parts of Acts in conflict with

the provisions of this Act are hereby repealed but such

repeal shall not affect causes now pending nor rights which

have already accrued, but such causes shall be prosecuted

to a conclusion and such rights enforced in a manner

heretofore provided by law and as modified by the provi-

sions of this Act.

Sec. 5. That this Act shall take effect from its passage.

Source:

Statutes at Large, Vol. 32, pp. 847–849.

Lochner v. New York, 1905

U.S. Supreme Court decision of April 17, 1905, invalidating

an 1897 New York State law that limited the hours of work in

bakeries to not more than 60 hours a week or 10 hours a day.

Joseph Lochner, a bakery owner who was convicted of violat-

ing the law, challenged it in court. The Supreme Court ruled

the law unconstitutional—overstepping the state’s own police

powers to regulate public safety, health, morals, and general

welfare—because the law interfered with the right of contract

between an employer and employees and because it violated

individual liberty under the due process clause of the Four-

teenth Amendment. Peckham wrote the opinion for the

Court. Justice Oliver Wendell Holmes dissented, as did Justice

Harlan with Justices White and Day concurring. The entire

decision may be found in In

Landmark Documents in Ameri-

can History

. www.factsonfile.com.

On September 3, 1916, Congress enacted the Adamson

Act, which established an eight-hour day for railroad workers

operating on interstate lines, without a reduction in their

wages. It replaced the 10-hour day and provided time-and-a-

half for overtime. The act was passed as an emergency mea-

sure to avoid the threatened strike by railway workers that

might have hindered U.S. preparations for World War I. The

railroads claimed that the act was unconstitutional, effectively

raising wages rather than limiting hours, because normal oper-

ation required more than eight hours of work. In

Wilson v.

New

(243 U.S. 332 [1917]), the Supreme Court upheld the act

under the federal government’s right to regulate interstate

commerce.

________________________

_______________________

Mr. Justice Peckham . . . delivered the opinion of the court:

The indictment, it will be seen, charges that the plain-

tiff in error violated the 1005h section of article 8, chapter

415, of the Laws of 1897, known as the labor law of the

state of New York, in that he wrongfully and unlawfully

required and permitted an employee working for him to

work more than sixty hours in one week. . . . It is assumed

that the word means nothing more than the requirement

arising from voluntary contract for such labor in excess of

the number of hours specified in the statute. . . .

The statute necessarily interferes with the right of

contract between the employer and employees, concern-

ing the number of hours in which the latter may labor in

the bakery of the employer. The general right to make a

contract in relation to his business is part of the liberty of

the individual protected by the 14th Amendment of the

Federal Constitution. . . . Under that provision no state can

deprive any person to life, liberty, or property without due

process of law. The right to purchase or to sell labor is part

of the liberty protected by this amendment, unless there

are circumstances which exclude the right. There are,

however, certain powers, existing in the sovereignty of

each state in the Union, somewhat vaguely termed police

powers, the exact description and limitation of which have

not been attempted by the courts. Those powers, broadly

stated, and without at present, any attempt at a more spe-

cific limitation, relate to the safety, health, morals, and

general welfare of the public. Both property and liberty

are held on such reasonable conditions as may be imposed

by the governing power of the state in the exercise of those

powers, and with such conditions the 14th Amendment

was not designed to interfere. . . .

The state, therefore, has power to prevent the individ-

ual from making certain kinds of contracts, and in regard

to them the Federal Constitution offers no protection. If

the contract be one which the state, in the legitimate exer-

cise of its police power, has the right to prohibit, it is not

prevented from prohibiting it by the 14th Amendment.

Contracts in violation of a statute, either of the Federal or

state government, or a contract to let one’s property for

immoral purposes, or to do any other unlawful act, could

obtain no protection from the Federal Constitution, as

coming under the liberty of person or of free contract.

1188 ERA 7: The Emergence of Modern America

Therefore, when the state, by its legislature, in the

assumed exercise of its police powers, has passed an act

which seriously limits the right to labor or the right of con-

tract in regard to their means of livelihood between per-

sons who are sui juris (both employer and employee), it

becomes of great importance to determine which shall

prevail—the right of the individual to labor for such time

as he may choose, or the right of the state to prevent the

individual from laboring, or from entering into any con-

tract to labor, beyond a certain time prescribed by the

state.

This court has recognized the existence and upheld

the exercise of the police powers of the states in many

cases which might fairly by considered as border ones, and

it has, in the course of its determination of questions

regarding the asserted invalidity of such statutes, on the

ground of their violation of the rights secured by the Fed-

eral Constitution, been guided by rules of a very liberal

nature, the application of which has resulted, in numerous

instances, in upholding the validity of state statutes thus

assailed. . . .

* * *

It must, of course, be conceded that there is a limit to the

valid exercise of the police power by the state. There is no

dispute concerning this general proposition. Otherwise the

14th Amendment would have no efficacy and the legisla-

tures of the states would have unbounded power, and it

would be enough to say that any piece of legislation was

enacted to conserve the morals, the health, or the safety of

the people; such legislation would be valid, no matter how

absolutely without foundation the claim might be. The

claim of the police power would be a mere pretext—

become another and delusive name for the supreme

sovereignty of the state to be exercised free from constitu-

tional restraint. This is not contended for. In every case

that comes before this court, therefore, where legislation

of this character is concerned, and where the protection of

the Federal Constitution is sought, the question necessar-

ily arises: Is this a fair, reasonable, and appropriate exercise

of the police power of the state, or is it an unreasonable,

unnecessary, and arbitrary interference with the right of

the individual to his personal liberty, or to enter into those

contracts in relation to labor which may seem to him

appropriate or necessary for the support of himself and his

family? Of course the liberty of contract relating to labor

includes both parties to it. The one has as much right to

purchase as the other to sell labor.

This is not a question of substituting the judgment of

the court for that of the legislature. If the act be within the

power of the state it is valid, although the judgment of the

court might be totally opposed to the enactment of such a

law. But the question would still remain: Is it within the

police power of the state? and that question must be

answered by the court.

The question whether this act is valid as a labor law,

pure and simple, may be dismissed in a few words. There

is no reasonable ground for interfering with the liberty of

person or the right of free contract, by determining the

hours of labor, in the occupation of a baker. There is no

contention that bakers as a class are not equal in intelli-

gence and capacity to men in other trades or manual occu-

pations, or that they are not able to assert their rights and

care for themselves without the protecting arm of the

state, interfering with their independence of judgment and

of action. They are in no sense wards of the state. Viewed

in the light of a purely labor law, with no reference what-

ever to the question of health, we think that a law like the

one before us involves neither the safety, the morals, nor

the welfare, of the public, and that the interest of the pub-

lic is not in the slightest degree affected by such an act.

The law must be upheld, if at all, as a law pertaining to the

health of the individual engaged in the occupation of a

baker. It does not affect any other portion of the public

than those who are engaged in that occupation. Clean and

wholesome bread does not depend upon whether the

baker works but ten hours per day or only sixty hours a

week. The limitation of the hours of labor does not come

within the police power on that ground.

It is a question of which of two powers or rights shall

prevail—the power of the state to legislate or the right of

the individual to liberty of person and freedom of contract.

The mere assertion that the subject relates, though but in

a remote degree, to the public health, does not necessarily

render the enactment valid. The act must have a more

direct relation, as a means to an end, and the end itself

must be appropriate and legitimate, before an act can be

held to be valid which interferes with the general right of

an individual to be free in his person and in his power to

contract in relation to his own labor.

This case has caused much diversity of opinion in the

state courts. . . .

We think the limit of the police power has been

reached and passed in this case. There is, in our judgment,

no reasonable foundation for holding this to be necessary

or appropriate as a health law to safeguard the public

health, or the health of the individuals who are following

the trade of a baker. If this statute be valid, and if, there-

fore, a proper case is made out in which to deny the right

of an individual, sui juris, as employer or employee, to

make contracts for the labor of the latter under the pro-

tection of the provisions of the Federal Constitution, there

would seem to be no length to which legislation of this

nature might not go. The case differs widely, as we have

Progressivism 1189

already stated, from the expressions of this court in regard

to laws of this nature, as stated in Holden v. Hardy. . . .

We think that there can be no fair doubt that the trade

of a baker, in and of itself, is not an unhealthy one to that

degree which would authorize the legislature to interfere

with the right to labor, and with the right of free contract on

the part of the individual, either as employer or employee.

In looking through statistics regarding all trades and occu-

pations, it may be true that the trade of a baker does not

appear to be as healthy as some other trades, and is also

vastly more healthy than still others. To the common under-

standing the trade of a baker has never been regarded as an

unhealthy one. Very likely physicians would not recom-

mend the exercise of that or of any other trade as a remedy

for ill health. Some occupations are more healthy than oth-

ers, but we think there are none which might not come

under the power of the legislature to supervise and control

the hours of working therein, if the mere fact that the occu-

pation is not absolutely and perfectly healthy is to confer

that right upon the legislative department of the govern-

ment. It might be safely affirmed that almost all occupa-

tions more or less affect the health. There must be more

than the mere fact of the possible existence of some small

amount of unhealthiness to warrant legislative interference

with liberty. It is unfortunately true that labor, even in any

department, may possibly carry with it the seeds of

unhealthiness. But are we all, on that account, at the mercy

of legislative majorities? A printer, a tinsmith, a locksmith,

a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a

lawyer’s, or a physician’s clerk, or a clerk in almost any kind

of business, would all come under the power of the legisla-

ture, on this assumption. No trade, no occupation, no mode

of earning one’s living, could escape this all-pervading

power, and the acts of the legislature in limiting the hours

of labor in all employments would be valid, although such

limitation might seriously cripple the ability of the laborer

to support himself and his family. . . .

It is also urged, pursuing the same line of argument,

that it is to the interest of the state that its population

should be strong and robust, and therefore any legislation

which may be said to tend to make people healthy must be

valid as health laws, enacted under the police power. If this

be a valid argument and a justification for this kind of leg-

islation, it follows that the protection of the Federal Con-

stitution from undue interference with liberty of person

and freedom of contract is visionary, wherever the law is

sought to be justified as a valid exercise of the police

power. Scarcely any law but might find shelter under such

assumptions, and conduct, properly so called, as well as

such terms as they may think best, or which they may

agree upon with the other parties to such contracts.

Statutes of the nature of that under review, limiting the

hours in which grown and intelligent men may labor to

earn their living, are mere meddlesome interferences with

the rights of the individual, and they are not saved from

condemnation by the claim that they are passed in the

exercise of the police power and upon the subject of the

health of the individual whose rights are interfered with,

unless there be some fair ground, reasonable in and of

itself, to say that there is material danger to the public

health, or to the health of the employees, if the hours of

labor are not curtailed. . . .

* * *

It is manifest to us that the limitation of the hours of labor

as provided for in this section of the statute under which

the indictment was found, and the plaintiff in error con-

victed, has no such direct relation to, and no such substan-

tial effect upon, the health of the employee, as to justify us

in regarding the section as really a health law. It seems to

us that the real object and purpose were simply to regulate

the hours of labor between the master and his employees

(all being men, sui juris), in a private business, not danger-

ous in any degree to morals, or in any real and substantial

degree to the health of the employees. Under such cir-

cumstances the freedom of master and employee to con-

tract with each other in relation to their employment, and

in defining the same, cannot be prohibited or interfered

with, without violating the Federal Constitution.

The judgment of the Court of Appeals of New York, as

well as that of the Supreme Court and of the County Court

of Oneida County, must be reversed and the case

remanded to the County Court for further proceedings not

inconsistent with this opinion.

Reversed.

Mr. Justice Holmes dissenting:

I regret sincerely that I am unable to agree with the

judgment in this case, and that I think it my duty to express

my dissent.

This case is decided upon an economic theory which

is large part of the country does not entertain. If it were a

question whether I agreed with that theory, I should desire

to study it further and long before making up my mind.

But I do not conceive that to be my duty, because I

strongly believe that my agreement or disagreement has

nothing to do with the right of a majority to embody their

opinions in law. It is settled by various decisions of this

court that state constitutions and state laws may regulate

life in many ways which we as legislators might think as

injudicious, or if you like as tyrannical, as this, and which,

equally with this, interfere with the liberty to contract.

Sunday laws and usury laws are ancient examples. A more

modern one is the prohibition of lotteries. The liberty of

1190 ERA 7: The Emergence of Modern America

the citizen to do as he likes so long as he does not interfere

with the liberty of others to do the same, which has been a

shibboleth for some well-known writers, is interfered with

by school laws, by the Post office, by every state or munic-

ipal institution which takes his money for purposes

thought desirable, whether he likes it or not. The 14th

Amendment does not enact Mr. Herbert Spencer’s Social

Statics. . . . But a Constitution is not intended to embody a

particular economic theory, whether of paternalism and

the organic relation of the citizen to the state or of laissez

faire. It is made for people of fundamentally differing

views, and the accident of our finding certain opinions nat-

ural and familiar, or novel, and even shocking, ought not to

conclude our judgment upon the question whether

statutes embodying them conflict with the Constitution of

the United States.

General propositions do not decide concrete cases.

The decision will depend on a judgment or intuition more

subtle than any articulate major premise. But I think that

the proposition just stated, if it is accepted, will carry us far

toward the end. Every opinion tends to become a law. I

think that the word “liberty,” in the 14th Amendment, is

perverted when it is held to prevent the natural outcome

of a dominant opinion, unless it can be said that a rational

and fair man necessarily would admit that the statute pro-

posed would infringe fundamental principles as they have

been understood by the traditions of our people and our

law. It does not need research to show that no such sweep-

ing condemnation can be passed upon the statute before

us. A reasonable man might think it a proper measure on

the score of health. Men whom I certainly could not pro-

nounce unreasonable would uphold it as a first installment

of a general regulation of the hours of work. Whether in

the latter aspect it would be open to the charge of inequal-

ity I think it unnecessary to discuss.

Source:

Supreme Court Reporter, Vol. 25, pp. 539–551.

Niagara Movement,

Declaration of Principles, 1905

Manifesto issued by the Niagara Movement, militant forerun-

ner of the National Association for the Advancement of Col-

ored People (NAACP), on its formal organization at Niagara

Falls, Ontario, in July 1905. African-American intellectuals,

led by the sociologist and civil rights activist W. E. B. DuBois,

gathered on the Canadian side of Niagara Falls (since no hotel

on the U.S. side would let them register) to found the black

protest movement. DuBois’s 1903 work

Souls of Black Folk

provided the intellectual impetus for the movement. The Nia-

gara initiative was a reaction against both the U.S. Supreme

Court’s landmark 1896

Plessy v. Ferguson

ruling, which pro-

pounded the segregationist doctrine of “separate but equal,”

and black leader Booker T. Washington’s accommodationist

strategies for black social and economic advancement, as

expressed in his 1895 Atlanta Compromise address. The Nia-

gara declaration demanded an end in the United States of all

forms of racial prejudice and discrimination and called for

equality of economic and educational opportunity. Until such

demands were met, the declaration warned, the movement

would protest publicly to dramatize racial injustice.

________________________

_______________________

Progress

The members of the conference, known as the Niagara

Movement, assembled in annual meeting at Buffalo, July

11th, 12th and 13th, 1905, congratulate the Negro-Ameri-

cans on certain undoubted evidences of progress in the last

decade, particularly the increase of intelligence, the buy-

ing of property, the checking of crime, the uplift in home

life, the advance in literature and art, and the demonstra-

tion of constructive and executive ability in the conduct of

great religious, economic and educational institutions.

Suffrage

At the same time, we believe that this class of American

citizens should protest emphatically and continually

against the curtailment of their political rights. We believe

in manhood suffrage; we believe that no man is so good,

intelligent or wealthy as to be entrusted wholly with the

welfare of his neighbor.

Civil Liberty

We believe also in protest against the curtailment of our

civil rights. All American citizens have the right to equal

treatment in places of public entertainment according to

their behavior and deserts.

Economic Opportunity

We especially complain against the denial of equal oppor-

tunities to us in economic life; in the rural districts of the

South this amounts to peonage and virtual slavery; all over

the South it tends to crush labor and small business enter-

prises; and everywhere American prejudice, helped often

by iniquitous laws, is making it more difficult for Negro

Americans to earn a decent living.

Education

Common school education should be free to all American

children and compulsory. High school training should be

adequately provided for all, and college training should be

the monopoly of no class or race in any section of our com-

Progressivism 1191