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Volumn 23, Issue 1, 2005, Pages 53-94

Travelers, strangers, and Jim Crow: Law, public accommodations, and Civil Rights in America

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EID: 64949195519     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000000055     Document Type: Article
Times cited : (32)

References (251)
  • 2
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    • Civil Rights Cases, 109 U.S. 3 (1883)
    • (1883) Civil Rights Cases , vol.109 , Issue.U , pp. 3
  • 5
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    • Letter From Birmingham Jail
    • New York: Harper & Row
    • Martin Luther King, Jr., "Letter From Birmingham Jail," in Why We Can't Wait (New York: Harper & Row, 1964), 81
    • (1964) Why We Can't Wait , pp. 81
    • Luther King Jr., M.1
  • 6
    • 85038697022 scopus 로고    scopus 로고
    • Notably, Willard Hurst entertained the idea that the development of the automobile and the corresponding growth of the hotel industry granted new importance to the law of innkeepers and made [d]iscrimination on racial, national, or religious grounds, in serving the traveling public . . . a greater problem. Hurst, Technology and the Law: The Automobile (unpublished 1949 manuscript)
    • Notably, Willard Hurst entertained the idea that the development of the automobile and the corresponding growth of the hotel industry granted "new importance to the law of innkeepers" and made "[d]iscrimination on racial, national, or religious grounds, in serving the traveling public . . . a greater problem." See Hurst, "Technology and the Law: The Automobile" (unpublished 1949 manuscript)
  • 7
    • 85014586381 scopus 로고    scopus 로고
    • cited in William J. Novak, Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst, Law and History Review 18 (2000): 109-10. Hurst was correct about the hotel and innkeeper law, though as I shall demonstrate, the change had taken place many decades earlier than he supposed
    • cited in William J. Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst," Law and History Review 18 (2000): 109-10. Hurst was correct about the hotel and innkeeper law, though as I shall demonstrate, the change had taken place many decades earlier than he supposed
  • 8
    • 85038756551 scopus 로고    scopus 로고
    • The Woodward thesis stated first, that legally enforced racial segregation did not appear in the South immediately after Emancipation, but rather was imposed only after about 1890; and second, that before this happened, there had been realistic and partially explored historical alternatives to the final outcome of de jure separation of black and white Americans. C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1955), chap. 1
    • The "Woodward thesis" stated first, that legally enforced racial segregation did not appear in the South immediately after Emancipation, but rather was imposed only after about 1890; and second, that before this happened, there had been realistic and partially explored historical alternatives to the final outcome of de jure separation of black and white Americans. See C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1955), chap. 1
  • 9
    • 84963072444 scopus 로고    scopus 로고
    • Howard N. Rabinowitz, More than the Woodward Thesis: Assessing The Strange Career of Jim Crow, Journal of American History 75 (1988): 842
    • Howard N. Rabinowitz, "More than the Woodward Thesis: Assessing The Strange Career of Jim Crow," Journal of American History 75 (1988): 842
  • 10
    • 85038778669 scopus 로고    scopus 로고
    • For a detailed historiography and extensive bibliography of this debate, Rabinowitz, 845-50. Key works include Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961)
    • For a detailed historiography and extensive bibliography of this debate, see Rabinowitz, 845-50. Key works include Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961)
  • 16
    • 85038783676 scopus 로고    scopus 로고
    • But legal historians increasingly suspect that Plessy's actual jurisprudential importance has been greatly exaggerated: Stephen J. Riegel, The Persistent Career of Jim Crow: Lower Federal Courts and the 'Separate but Equal' Doctrine, 1865-1896, American Journal of Legal History 28 (1984): 18-10
    • But legal historians increasingly suspect that Plessy's actual jurisprudential importance has been greatly exaggerated: see Stephen J. Riegel, "The Persistent Career of Jim Crow: Lower Federal Courts and the 'Separate but Equal'" Doctrine, 1865-1896," American Journal of Legal History 28 (1984): 18-10
  • 18
    • 84959708810 scopus 로고
    • When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy
    • 1995
    • Barbara Young Welke, "When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914," Law and History Review 13 (1995): 261-316
    • (1855) Law and History Review , vol.13 , pp. 261-316
    • Young Welke, B.1
  • 19
    • 85038745942 scopus 로고    scopus 로고
    • and Recasting American Liberty : Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge: Cambridge University Press, 2001)
    • and Recasting American Liberty : Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge: Cambridge University Press, 2001)
  • 20
    • 0346590705 scopus 로고
    • Separate but Equal' and the Law of Common Carriers in the Era of the Fourteenth Amendment
    • See, for example, Earl M. Maltz, "'Separate but Equal' and the Law of Common Carriers in the Era of the Fourteenth Amendment," Rutgers Law Journal 17 (1986): 553-68
    • (1986) Rutgers Law Journal , vol.17 , pp. 553-568
    • Maltz, E.M.1
  • 21
    • 10044270754 scopus 로고
    • The Failure of Freedom: Class, Gender, and the Evolution of Segregated Transit Law in the Nineteenth-Century South
    • Patricia Hagler Minter, "The Failure of Freedom: Class, Gender, and the Evolution of Segregated Transit Law in the Nineteenth-Century South," Chicago-Kent Law Review 70 (1995): 993-1009
    • (1995) Chicago-Kent Law Review , vol.70 , pp. 993-1009
    • Hagler Minter, P.1
  • 22
    • 10044275643 scopus 로고    scopus 로고
    • Law, Society, Identity, and the Making of the Jim Crow South
    • Kenneth W. Mack, "Law, Society, Identity, and the Making of the Jim Crow South," Law and Social Inquiry 24 (1999): 377-109
    • (1999) Law and Social Inquiry , vol.24 , pp. 377-109
    • Mack, K.W.1
  • 26
    • 85038665920 scopus 로고    scopus 로고
    • Key texts in the historical debate over American liberalism include Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press, 1947)
    • Key texts in the historical debate over American liberalism include Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press, 1947)
  • 33
    • 85038718063 scopus 로고    scopus 로고
    • and Liberalism and Republicanism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992)
    • and Liberalism and Republicanism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992)
  • 36
    • 84959805699 scopus 로고
    • The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse
    • James T. Kloppenberg, "The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse," Journal of American History 74 (1987): 9-33
    • (1987) Journal of American History , vol.74 , pp. 9-33
    • Kloppenberg, J.T.1
  • 37
    • 85038680175 scopus 로고    scopus 로고
    • and The Virtues of Liberalism (New York: Oxford University Press, 1998), especially chaps. 3, 4, 8, 9
    • and The Virtues of Liberalism (New York: Oxford University Press, 1998), especially chaps. 3, 4, 8, 9
  • 38
    • 84963041652 scopus 로고
    • Republicanism: The Career of a Concept
    • Daniel T. Rodgers, "Republicanism: The Career of a Concept," Journal of American History 79 (1992): 11-38
    • (1992) Journal of American History , vol.79 , pp. 11-38
    • Rodgers, D.T.1
  • 39
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    • For the intersection of this debate with legal history, especially, Cambridge: Cambridge University Press
    • For the intersection of this debate with legal history, see especially Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993)
    • (1993) Law, Labor, and Ideology in the Early American Republic
    • Tomlins, C.1
  • 42
    • 85038739197 scopus 로고    scopus 로고
    • Among political theorists, questions about liberalism are often situated within a larger scholarly debate about civil society. Key works in this literature include John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971)
    • Among political theorists, questions about liberalism are often situated within a larger scholarly debate about civil society. Key works in this literature include John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971)
  • 46
    • 0004123406 scopus 로고
    • South Bend: University of Notre Dame Press
    • Alisdair MacIntyre, After Virtue (South Bend: University of Notre Dame Press, 1984)
    • (1984) After Virtue
    • MacIntyre, A.1
  • 47
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    • trans. Christian Lenhardt and Shierry Weber Nicholson Cambridge: MIT Press
    • Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholson (Cambridge: MIT Press, 1990)
    • (1990) Moral Consciousness and Communicative Action
    • Habermas, J.1
  • 50
    • 85038696512 scopus 로고    scopus 로고
    • Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), xxiii-xxiv, 602-12, and generally
    • Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), xxiii-xxiv, 602-12, and generally
  • 53
    • 85038712043 scopus 로고    scopus 로고
    • Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (Dobbs Ferry, N.Y.: Oceana, 1985)
    • Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (Dobbs Ferry, N.Y.: Oceana, 1985)
  • 60
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    • Little Rock: Little Rock Print. & Pub
    • A Digest of the Statutes of Arkansas (Little Rock: Little Rock Print. & Pub., 1874), 257-60
    • (1874) A Digest of the Statutes of Arkansas , pp. 257-260
  • 61
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    • Congressional Globe
    • 13 May
    • Congressional Globe, 41st Congress, 2nd Session, 13 May 1870, 3434
    • (1870) 41st Congress, 2nd Session , pp. 3434
  • 62
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    • Congressional Globe
    • Session, 9 March
    • Congressional Globe, 42nd Congress, 1st Session, 9 March 1871, 21
    • (1871) 42nd Congress, 1st , pp. 21
  • 64
    • 85038739416 scopus 로고    scopus 로고
    • Alfred Avins's The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations, Columbia Law Review 66 (1964): 873-915, provides a useful overview of the Congressional debates over the Act, though Avins was apparently writing in opposition to the Civil Rights Act of 1964
    • Alfred Avins's "The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations," Columbia Law Review 66 (1964): 873-915, provides a useful overview of the Congressional debates over the Act, though Avins was apparently writing in opposition to the Civil Rights Act of 1964
  • 65
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    • The issue of state action under the Fourteenth Amendment was raised because apart from common schools and other public institutions of learning, which were unmistakably state institutions, other establishments covered by the proposed civil rights bill were technically privately owned concerns
    • The issue of state action under the Fourteenth Amendment was raised because apart from "common schools and other public institutions of learning," which were unmistakably state institutions, other establishments covered by the proposed civil rights bill were technically privately owned concerns
  • 66
    • 85038767072 scopus 로고    scopus 로고
    • This is not to suggest that inns preceded carriers each and every time they were mentioned. In some cases this order was reversed, including in the first draft of the proposed Act. But once the debate began in earnest and the wording of the Act was changed on 18 January 1872 to mention inns before carriers the form in which it was finally enacted, Sumner and other supporters of the bill gave precedence to the law of innkeepers. Congressional Globe, 42nd Congress, 2nd Session, 22 January 1872, 487
    • This is not to suggest that inns preceded carriers each and every time they were mentioned. In some cases this order was reversed, including in the first draft of the proposed Act. But once the debate began in earnest and the wording of the Act was changed on 18 January 1872 to mention inns before carriers (the form in which it was finally enacted), Sumner and other supporters of the bill gave precedence to the law of innkeepers. Congressional Globe, 42nd Congress, 2nd Session, 22 January 1872, 487
  • 67
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    • Congressional Globe
    • 15 January
    • Congressional Globe, 42nd Congress, 2nd Session, 15 January 1872, 381-85
    • (1872) 42nd Congress, 2nd Session , pp. 381-385
  • 68
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    • Congressional Record
    • 29 April
    • Congressional Record, 43rd Congress, 1st Session, 29 April 1874, 3452-53
    • (1874) 43rd Congress, 1st Session , pp. 3452-3453
  • 69
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    • Congressional Record
    • Session, 19 December
    • Congressional Record, 43rd Congress, 1st Session, 19 December 1873, 340 (Vol. 2, Pt. 1)
    • (1873) 43rd Congress, 1st , vol.2 , Issue.PART. 1 , pp. 340
  • 70
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    • Congressional Record
    • 6 January, 2
    • Congressional Record, 43rd Congress, 1st Session, 6 January 1874, 408 (Vol. 2, Pt. 1)
    • (1874) 43rd Congress, 1st Session , vol.408 , Issue.PART. 1
  • 71
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    • For further examples, Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 843-44
    • For further examples, see Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 843-44
  • 72
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    • Congressional Record
    • 6 January, 2
    • Congressional Record, 43rd Congress, 1st Session, 6 January 1874, 423-24, 427 (Vol. 2, Pt. 1)
    • (1874) 43rd Congress, 1st Session , vol.24-423 , Issue.PART. 1 , pp. 427
  • 74
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    • 78 Mass. 211
    • McCrea v. Marsh, 78 Mass. 211 (1858)
    • (1858) McCrea v. Marsh
  • 75
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    • and Burton v. Scherpf, 83 Mass. 133 (1861)
    • and Burton v. Scherpf, 83 Mass. 133 (1861)
  • 76
    • 85038670101 scopus 로고    scopus 로고
    • leadings for which are kept at the Social Law Library, Boston; Julia Griffiths, ed., Autographs for Freedom (Auburn, N.Y.: Alden, Beardsley, 1854)
    • pleadings for which are kept at the Social Law Library, Boston; Julia Griffiths, ed., Autographs for Freedom (Auburn, N.Y.: Alden, Beardsley, 1854)
  • 77
    • 85038796841 scopus 로고    scopus 로고
    • James Kent, Commentaries on American Law (New York: O. Halsted, 1827), 2:464
    • James Kent, Commentaries on American Law (New York: O. Halsted, 1827), 2:464
  • 78
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    • Cambridge, Mass, Hilliard and Brown, chap, vi, art. vii
    • Joseph Story, Commentaries on the Law of Bailments (Cambridge, Mass.: Hilliard and Brown, 1832), chap, vi, art. vii
    • (1832) Commentaries on the Law of Bailments
    • Story, J.1
  • 79
    • 85038675184 scopus 로고    scopus 로고
    • With the advent of the steam locomotive, however, common carrier law grew in importance within American jurisprudence: the 1851 edition of Story's Bailments retained the same ordering and references as the 1832 edition, but two later treatises diverged in this respect: Isaac Redfield's The Law of Carriers of Goods and Passengers, and] the Responsibility and Duty of Innkeepers (Cambridge, Mass, Houghton & Co, 1869) dealt with innkeepers toward the end of the
    • With the advent of the steam locomotive, however, common carrier law grew in importance within American jurisprudence: the 1851 edition of Story's Bailments retained the same ordering and references as the 1832 edition, but two later treatises diverged in this respect: Isaac Redfield's The Law of Carriers of Goods and Passengers . . . [and] the Responsibility and Duty of Innkeepers (Cambridge, Mass.: Houghton & Co., 1869) dealt with innkeepers toward the end of the volume
  • 80
    • 85038728671 scopus 로고    scopus 로고
    • while Isaac Edwards's A Treatise on the Law of Bailments (New York: Banks & Bros., 1878) maintained the older sequence, though without the customary description of carriers in terms of innkeepers
    • while Isaac Edwards's A Treatise on the Law of Bailments (New York: Banks & Bros., 1878) maintained the older sequence, though without the customary description of carriers in terms of innkeepers
  • 81
    • 85038685176 scopus 로고    scopus 로고
    • Foner, Reconstruction, 369, 497-99, 525-28
    • Reconstruction , vol.369 , Issue.497 , pp. 525-528
    • Foner1
  • 82
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    • The Conservative Tradition in the Writing of American Legal History
    • On the common law
    • On the common law, see Morton J. Horwitz, "The Conservative Tradition in the Writing of American Legal History," American Journal of Legal History 17 (1973): 275
    • (1973) American Journal of Legal History , vol.17 , pp. 275
    • Horwitz, M.J.1
  • 83
    • 85038666585 scopus 로고    scopus 로고
    • and especially The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 1-30
    • and especially The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 1-30
  • 86
    • 85038677369 scopus 로고    scopus 로고
    • the legal treatises cited below, as well as Century Digest, Cases to 1896, v. 2, under Innkeepers St. Paul: West Publishing Co, 1911, My contention that the status of the traveler is the fundamental consideration behind these aspects of the common law puts me into disagreement with Joseph William Singer, who has argued that it is the fact of their being public callings that requires inns, carriers, and other establishments to serve all comers. In refuting the role of travel, he states: If the importance of the right to travel is the basis for placing a duty to serve on inns and common carriers, then surely the duty should extend to businesses that sell food and clothing. In fact, the eighteenth- and nineteenth-century statutes I have cited did often apply to people who sold provisions, then called victuallers. Regarding clothiers, the scarcity of retail clothing stores until relatively recently makes it difficult to come to meaningful c
    • See also the legal treatises cited below, as well as Century Digest, Cases to 1896, v. 2, under "Innkeepers" (St. Paul: West Publishing Co., 1911). My contention that the status of the traveler is the fundamental consideration behind these aspects of the common law puts me into disagreement with Joseph William Singer, who has argued that it is the fact of their being public callings that requires inns, carriers, and other establishments to serve all comers. In refuting the role of travel, he states: "If the importance of the right to travel is the basis for placing a duty to serve on inns and common carriers, then surely the duty should extend to businesses that sell food and clothing." In fact, the eighteenth- and nineteenth-century statutes I have cited did often apply to people who sold provisions, then called victuallers. Regarding clothiers, the scarcity of retail clothing stores until relatively recently makes it difficult to come to meaningful conclusions about their status in early America
  • 87
    • 85038711253 scopus 로고    scopus 로고
    • Notably, the argument that stores partook of the same legal status as inns was in fact deployed by opponents of federal civil rights enforcement in the 1870s: Appendix to the Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 28-29 (Pt. 6)
    • Notably, the argument that stores partook of the same legal status as inns was in fact deployed by opponents of federal civil rights enforcement in the 1870s: see Appendix to the Congressional Globe, 42nd Congress, 2nd Session, 6 February 1872, 28-29 (Pt. 6)
  • 88
    • 0004575044 scopus 로고    scopus 로고
    • I agree with Singer's normative argument and recognize the existence of public callings, but the historical record indicates that travelers and strangers did indeed have a special status. No Right to Exclude: Public Accommodations and Private Property, Northwestern University Law Review 90 (1996): 1283-1497, especially 1446
    • I agree with Singer's normative argument and recognize the existence of public callings, but the historical record indicates that travelers and strangers did indeed have a special status. See "No Right to Exclude: Public Accommodations and Private Property," Northwestern University Law Review 90 (1996): 1283-1497, especially 1446
  • 89
    • 79956508265 scopus 로고    scopus 로고
    • The Innkeeper's Tale: The Legal Development of a Public Calling
    • For an introduction to innkeeper law
    • For an introduction to innkeeper law, see David S. Bogen, "The Innkeeper's Tale: The Legal Development of a Public Calling," Utah Law Review 51 (1996): 51-92
    • (1996) Utah Law Review , vol.51 , pp. 51-92
    • Bogen, D.S.1
  • 92
    • 85038714879 scopus 로고    scopus 로고
    • Some states referred to the common duties of the innkeeper and provided public penalties for their contravention without naming them specifically, as in The Public Statute Laws of the State of Connecticut Hartford: Hudson & Goodwin, 1808, 640-42
    • Some states referred to the common duties of the innkeeper and provided public penalties for their contravention without naming them specifically, as in The Public Statute Laws of the State of Connecticut (Hartford: Hudson & Goodwin, 1808), 640-42
  • 93
    • 85038658977 scopus 로고
    • ublic Acts of the General Assembly of North Carolina Newbern: Martin & Ogden
    • See also Public Acts of the General Assembly of North Carolina (Newbern: Martin & Ogden, 1804), 2:122
    • (1804) , vol.2 , pp. 122
  • 94
    • 85038666143 scopus 로고    scopus 로고
    • Marbury & Crawford's Digest of Laws of Georgia (Philadelphia: R. Aitken, 1800), 453-54
    • Marbury & Crawford's Digest of Laws of Georgia (Philadelphia: R. Aitken, 1800), 453-54
  • 98
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    • Chicago: Regnery Gateway, Innkeepers were not, however, at liberty to exclude people whose illness was not a danger to other guests and whose removal might result in damage to their health
    • Kym S. Rice, Early American Taverns: For the Entertainment of Friends and Strangers (Chicago: Regnery Gateway, 1983). Innkeepers were not, however, at liberty to exclude people whose illness was not a danger to other guests and whose removal might result in damage to their health
    • (1983) Early American Taverns: For the Entertainment of Friends and Strangers
    • Rice, K.S.1
  • 99
    • 85038732893 scopus 로고    scopus 로고
    • Gilbert v. Hoffman, 66 Iowa 205 (1885)
    • See Gilbert v. Hoffman, 66 Iowa 205 (1885)
  • 100
    • 85038659585 scopus 로고    scopus 로고
    • and McHugh v. Schlosser, 159 Pa. 480 (1894)
    • and McHugh v. Schlosser, 159 Pa. 480 (1894)
  • 101
    • 85038763408 scopus 로고    scopus 로고
    • Generally speaking, nineteenth-century courts gradually reduced innkeepers' discretion over their premises even as they granted railroads broadened prerogative to control their operations. John P. Hankey and A. K. Sandoval-Strausz, The Entrepreneurial Redefinition of Space: Hotels and Railroads in Antebellum America, paper delivered at The Next Social History? conference, Franke Institute for the Humanities, 1998 and the Decennial Digest, Century Edition (St. Paul: West Publishing, 1902), under Carriers and Innkeepers
    • Generally speaking, nineteenth-century courts gradually reduced innkeepers' discretion over their premises even as they granted railroads broadened prerogative to control their operations. See John P. Hankey and A. K. Sandoval-Strausz, "The Entrepreneurial Redefinition of Space: Hotels and Railroads in Antebellum America," paper delivered at "The Next Social History?" conference, Franke Institute for the Humanities, 1998 and the Decennial Digest, Century Edition (St. Paul: West Publishing, 1902), under "Carriers" and "Innkeepers."
  • 102
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    • On linkage of liquor and accommodation, A Collection of All Such Acts of the General Assembly of Virginia . . . (Richmond: S. Pleasants, 1814), 284-87
    • On linkage of liquor and accommodation, see A Collection of All Such Acts of the General Assembly of Virginia . . . (Richmond: S. Pleasants, 1814), 284-87
  • 103
    • 85038795288 scopus 로고    scopus 로고
    • and General Laws of Pennsylvania 1700-1849 (Philadelphia: Johnson, 1849), 598
    • and General Laws of Pennsylvania 1700-1849 (Philadelphia: Johnson, 1849), 598
  • 105
    • 85038798730 scopus 로고    scopus 로고
    • and Commonwealth v. Shortridge, 6 Marsh. 631 (1830);
    • and see also Commonwealth v. Shortridge, 6 Marsh. 631 (1830)
  • 107
    • 85038673441 scopus 로고    scopus 로고
    • State v. Wynne, 8 N. C. 451 (1821)
    • State v. Wynne, 8 N. C. 451 (1821)
  • 108
    • 85038672640 scopus 로고    scopus 로고
    • On price-setting, The Laws of Maryland (Baltimore: Nicklin & Co., 1811), 1:392
    • On price-setting, see also The Laws of Maryland (Baltimore: Nicklin & Co., 1811), 1:392
  • 109
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    • ortland: Thos. Todd
    • Laws of the State of Maine (Portland: Thos. Todd, 1834), 75, 698
    • (1834) Laws of the State of Maine , vol.75 , pp. 698
  • 110
    • 85038717980 scopus 로고    scopus 로고
    • On Sabbath exception, General Laws of Massachusetts, 407
    • On Sabbath exception, see also General Laws of Massachusetts, 407
  • 111
    • 85038707024 scopus 로고    scopus 로고
    • and Digest of Laws of Georgia, 481
    • and Digest of Laws of Georgia, 481
  • 113
    • 85038781335 scopus 로고    scopus 로고
    • Story, Bailments, chap. vi, art. vii, §464. These treatise-writers also noted that while the presumption of guilt in English common law was related to the low repute in which innkeepers were held, the higher social status of American hosts, who were as often as not the equals of their guests, did not serve to lessen the burdens placed on innkeepers at law
    • Story, Bailments, chap. vi, art. vii, §464. These treatise-writers also noted that while the presumption of guilt in English common law was related to the low repute in which innkeepers were held, the higher social status of American hosts, who were as often as not the equals of their guests, did not serve to lessen the burdens placed on innkeepers at law
  • 115
    • 85038698334 scopus 로고    scopus 로고
    • Laws of the State of Connecticut
    • Laws of the State of Connecticut, 640
    • , vol.640
  • 117
    • 85038744216 scopus 로고    scopus 로고
    • Nor was public oversight of inns purely restrictive: the state of New York actively encouraged the maintenance of inns in remote yet important locations by easing licensing requirements for establishments that were rarely visited but were nevertheless of public utility. Laws of the Colony of New York (Albany: Lyon, 1888-), 11th Session, 710
    • Nor was public oversight of inns purely restrictive: the state of New York actively encouraged the maintenance of inns in remote yet important locations by easing licensing requirements for establishments that were rarely visited but were "nevertheless of public utility." See Laws of the Colony of New York (Albany: Lyon, 1888-), 11th Session, 710
  • 118
    • 85038795860 scopus 로고    scopus 로고
    • Laws of Maryland, 396
    • Laws of Maryland, 396
  • 119
    • 85038706810 scopus 로고    scopus 로고
    • and Laws of Pennsylvania, 600
    • and see also Laws of Pennsylvania, 600
  • 122
    • 85038736593 scopus 로고    scopus 로고
    • The Diary of Robert Love, P-363 of the Pre-Revolutionary War Diaries at the Massachusetts Historical Society; Charles Z. Lincoln, The Colonial Laws of New York from the Year 1664 to the Revolution (Albany: J. B. Lyon, 1894), 100
    • "The Diary of Robert Love," P-363 of the Pre-Revolutionary War Diaries at the Massachusetts Historical Society; Charles Z. Lincoln, The Colonial Laws of New York from the Year 1664 to the Revolution (Albany: J. B. Lyon, 1894), 100
  • 124
    • 85038698946 scopus 로고    scopus 로고
    • and Laws of the State of Connecticut, 641-12
    • and Laws of the State of Connecticut, 641-12
  • 125
    • 84933492542 scopus 로고
    • Ignoring History: The Liability of Ships' Masters, Innkeepers and Stablekeepers under Roman Law
    • For the ancient Roman and medieval English origins of innkeeper law
    • For the ancient Roman and medieval English origins of innkeeper law, see David S. Bogen, "Ignoring History: The Liability of Ships' Masters, Innkeepers and Stablekeepers under Roman Law," American Journal of Legal History 36 (1992): 326-60
    • (1992) American Journal of Legal History , vol.36 , pp. 326-360
    • Bogen, D.S.1
  • 128
    • 85038676665 scopus 로고    scopus 로고
    • chap, vi, art. vii, §467
    • Story, Bailments, chap, vi, art. vii, §467
    • Bailments
    • Story1
  • 131
    • 85038659578 scopus 로고    scopus 로고
    • William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1769), 1:13.402
    • William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1769), 1:13.402
  • 132
    • 85038667976 scopus 로고    scopus 로고
    • and 14.417-18
    • and 14.417-18
  • 133
    • 85038756372 scopus 로고    scopus 로고
    • 2:30.451
    • 2:30.451
  • 134
    • 85038725602 scopus 로고    scopus 로고
    • 3:9.164
    • 3:9.164
  • 135
    • 85038756560 scopus 로고    scopus 로고
    • 4:13.168
    • 4:13.168
  • 137
    • 85038709719 scopus 로고    scopus 로고
    • A. K. Sandoval-Strausz, For the Accommodation of Strangers: Urban Space, Travel, Law, the Market, and Modernity at the American Hotel, 1789-1908 (Ph.D. diss., University of Chicago, 2002), chaps. 1, 2, 4
    • A. K. Sandoval-Strausz, "For the Accommodation of Strangers: Urban Space, Travel, Law, the Market, and Modernity at the American Hotel, 1789-1908" (Ph.D. diss., University of Chicago, 2002), chaps. 1, 2, 4
  • 143
    • 85038685685 scopus 로고    scopus 로고
    • Some scholars, most notably Charles Sellers in The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991), have attributed all these changes to the rapid penetration of capitalism into various spheres of everyday life. While I agree that market relations were transformative in this period, such arguments, when drawn too briefly or broadly, lose their explanatory force and obfuscate rather than elucidate; for this reason I have chosen to avoid elaborating such an argument in this article
    • Some scholars, most notably Charles Sellers in The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991), have attributed all these changes to the rapid penetration of capitalism into various spheres of everyday life. While I agree that market relations were transformative in this period, such arguments, when drawn too briefly or broadly, lose their explanatory force and obfuscate rather than elucidate; for this reason I have chosen to avoid elaborating such an argument in this article
  • 144
    • 0002011316 scopus 로고    scopus 로고
    • For commentary on the promise and problems of theories of market revolution, Melvyn Stokes and Stephen Conway, eds, Charlottesville: University Press of Virginia
    • For commentary on the promise and problems of theories of market revolution, see Melvyn Stokes and Stephen Conway, eds., The Market Revolution in America: Social, Political, and Religious Expressions, 1800-1880 (Charlottesville: University Press of Virginia, 1996)
    • (1996) The Market Revolution in America: Social, Political, and Religious Expressions, 1800-1880
  • 145
    • 58149340158 scopus 로고    scopus 로고
    • The Market Revolution Ate My Homework
    • and Daniel Feller, "The Market Revolution Ate My Homework," Reviews in American History 25 (1997): 408-15
    • (1997) Reviews in American History , vol.25 , pp. 408-415
    • Feller, D.1
  • 146
    • 85038661392 scopus 로고    scopus 로고
    • Markham v. Brown, 8 N. H. 523 (1837), 525-26, 529. It is worth noting that the English common law did not expand privileges in an inn beyond travelers themselves
    • Markham v. Brown, 8 N. H. 523 (1837), 525-26, 529. It is worth noting that the English common law did not expand privileges in an inn beyond travelers themselves
  • 147
    • 85038791700 scopus 로고    scopus 로고
    • Holder v. Soulby, 8 C.B. 254 (1860), 256
    • See, for example, Holder v. Soulby, 8 C.B. 254 (1860), 256
  • 148
    • 79956457146 scopus 로고
    • The Queen v. Rymer, 2
    • The Queen v. Rymer, 2 Q.B.D. 136 (1877)
    • (1877) Q.B.D , vol.136
  • 149
    • 85038767833 scopus 로고    scopus 로고
    • Lamond v. Richard and the Gordon Hotels, Limited, 1 Q.B. 541 (1897)
    • Lamond v. Richard and the Gordon Hotels, Limited, 1 Q.B. 541 (1897)
  • 150
    • 85038687683 scopus 로고
    • 5 Har, Del, 494
    • State v. Whitby, 5 Har. (Del.) 494 (1854)
    • (1854) State v. Whitby
  • 151
    • 85038749474 scopus 로고    scopus 로고
    • For the leading case law on the duties of board and hearth, Mason v. Thompson, 9 Pick. (Mass.) 280 (1830)
    • For the leading case law on the duties of "board" and "hearth," see Mason v. Thompson, 9 Pick. (Mass.) 280 (1830)
  • 152
    • 85038753791 scopus 로고    scopus 로고
    • Wintermute v. Clarke, 5 Sandf. (N.Y.) 242 (1851)
    • Wintermute v. Clarke, 5 Sandf. (N.Y.) 242 (1851)
  • 153
    • 85038794758 scopus 로고    scopus 로고
    • Walling v. Potter, 35 Conn. 183 (1868)
    • Walling v. Potter, 35 Conn. 183 (1868)
  • 154
    • 85038761729 scopus 로고    scopus 로고
    • Note that the extension of travelers' protections to local residents was often contested, as in Thickstun v. Howard, 8 Blackf. (Ind.) 535 (1847)
    • Note that the extension of travelers' protections to local residents was often contested, as in Thickstun v. Howard, 8 Blackf. (Ind.) 535 (1847)
  • 155
    • 79956463582 scopus 로고
    • Ingalsbee v. Wood, 33 N.Y. 577 (1865)
    • (1865) Wood , vol.33 , Issue.Y , pp. 577
    • Ingalsbee, V.1
  • 156
    • 85038663569 scopus 로고    scopus 로고
    • On common carrier law, Jencks v. Coleman, 2 Sumn. (Mass.) 221 (1835)
    • On common carrier law, see Jencks v. Coleman, 2 Sumn. (Mass.) 221 (1835)
  • 157
    • 85038658839 scopus 로고    scopus 로고
    • Bennett v. Dutton, 10 N.H. 481 (1839)
    • Bennett v. Dutton, 10 N.H. 481 (1839)
  • 158
    • 85038795274 scopus 로고    scopus 로고
    • Wheeler v. San Francisco & A. R. Co., 31 Cal. 46 (1866)
    • Wheeler v. San Francisco & A. R. Co., 31 Cal. 46 (1866)
  • 159
    • 85038747544 scopus 로고    scopus 로고
    • Tarbell v. Central Pacific R. Co., 34 Cal. 616 (1868)
    • Tarbell v. Central Pacific R. Co., 34 Cal. 616 (1868)
  • 160
    • 85038788908 scopus 로고    scopus 로고
    • ittsburgh, C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576 (1877)
    • Pittsburgh, C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576 (1877)
  • 161
    • 85038738186 scopus 로고    scopus 로고
    • Brown v. Memphis & C. R. Co., 5 Fed. 499 (1880)
    • Brown v. Memphis & C. R. Co., 5 Fed. 499 (1880)
  • 162
    • 85038745285 scopus 로고    scopus 로고
    • Brown v. Memphis & C. R. Co., 7 Fed 51 (1881)
    • Brown v. Memphis & C. R. Co., 7 Fed 51 (1881)
  • 163
    • 85038717035 scopus 로고    scopus 로고
    • Atwater v. Delaware, L. & W. R. Co., 48 N.J. Law 55 (1886)
    • Atwater v. Delaware, L. & W. R. Co., 48 N.J. Law 55 (1886)
  • 164
    • 85038659855 scopus 로고    scopus 로고
    • The federal cases indicate that courts increasingly scrutinized the exclusion of women on the basis of reputation for chastity. On the relative development of innkeeper and common carrier law, their respective sections in the American Digest, Century Edition St. Paul: West Publishing, 1902, The severing of the relationship between travel and liquor retailing is perhaps most unequivocally demonstrated by the rise of the saloon, a drinking establishment that lacked any apparent connection to the accommodation of wayfarers. Notably, late nineteenth-century efforts to control public drinking sometimes involved the reimposition of older standards, as with the 1896 Raines Law's requirement that some saloonkeepers maintain beds on the premises
    • The federal cases indicate that courts increasingly scrutinized the exclusion of women on the basis of "reputation for chastity." On the relative development of innkeeper and common carrier law, see their respective sections in the American Digest, Century Edition (St. Paul: West Publishing, 1902). The severing of the relationship between travel and liquor retailing is perhaps most unequivocally demonstrated by the rise of the saloon, a drinking establishment that lacked any apparent connection to the accommodation of wayfarers. Notably, late nineteenth-century efforts to control public drinking sometimes involved the reimposition of older standards, as with the 1896 Raines Law's requirement that some saloonkeepers maintain beds on the premises
  • 168
    • 85038744117 scopus 로고    scopus 로고
    • Adams v. Freeman, 12 Johnson (N.Y.) 408 (1816), an apparent outlier on the restriction of privileges to travelers
    • See, for example, Adams v. Freeman, 12 Johnson (N.Y.) 408 (1816), an apparent outlier on the restriction of privileges to travelers
  • 172
    • 79956457053 scopus 로고
    • 1 Phila, Pa, 426 , 436
    • Commonwealth v. Mitchet, 1 Phila. (Pa.) 426 (1850), 436, 439-10
    • (1850) Commonwealth v. Mitchet , pp. 439-510
  • 173
    • 79956457099 scopus 로고
    • Congressional Globe
    • Session, 21 December
    • Congressional Globe, 42nd Congress, 2nd Session, 21 December 1871, 279-80
    • (1871) 42nd Congress, 2nd , pp. 279-280
  • 174
    • 85038793972 scopus 로고    scopus 로고
    • Congressional Globe, 42nd Congress, 2nd Session, 8 February 1872, 892-93 and 9 February 1872, 928
    • Congressional Globe, 42nd Congress, 2nd Session, 8 February 1872, 892-93 and 9 February 1872, 928
  • 175
    • 85038685883 scopus 로고    scopus 로고
    • Appendix to the Congressional Record, 43rd Congress, 1st Session, 29 May 1874, 341-14 (2, Part 6)
    • Appendix to the Congressional Record, 43rd Congress, 1st Session, 29 May 1874, 341-14 (Vol. 2, Part 6)
  • 176
    • 85038716937 scopus 로고    scopus 로고
    • Appendix to the Congressional Record, 43rd Congress, 1st Session, 22 May 1874, 363 (2, Part 6)
    • Appendix to the Congressional Record, 43rd Congress, 1st Session, 22 May 1874, 363 (Vol. 2, Part 6)
  • 177
    • 79956502405 scopus 로고
    • Acts of the 39th Tennessee General Assembly
    • Acts of the 39th Tennessee General Assembly, 1st Session (1875), 216-17
    • (1875) 1st Session , pp. 216-217
  • 178
    • 79956471707 scopus 로고
    • Wilmington: Mercantile Printing, 440 Ch 194 passed 25 March
    • Revised Statutes of the State of Delaware (Wilmington: Mercantile Printing, 1893) 440 (Ch 194 Vol. 15, passed 25 March 1875)
    • (1875) Revised Statutes of the State of Delaware , vol.15
  • 179
    • 84903330629 scopus 로고
    • The Enforcement of the Civil Rights Act of 1875
    • John Hope Franklin, "The Enforcement of the Civil Rights Act of 1875," Prologue (1974): 226-28
    • (1974) Prologue , pp. 226-228
    • Hope Franklin, J.1
  • 182
    • 85038803284 scopus 로고    scopus 로고
    • For details of state laws, Compiled Statutes of New Jersey (Newark: Soney & Sage, 1911), 1442
    • For details of state laws, see Compiled Statutes of New Jersey (Newark: Soney & Sage, 1911), 1442
  • 184
    • 85038795497 scopus 로고    scopus 로고
    • Revised Statutes of the State of Indiana (Chicago: E. B. Myers, 1888), § 1291a
    • Revised Statutes of the State of Indiana (Chicago: E. B. Myers, 1888), § 1291a
  • 185
    • 85038728099 scopus 로고    scopus 로고
    • Revised Statutes of Colorado (Denver: Smith-Brooks, 1908), §609
    • See also Revised Statutes of Colorado (Denver: Smith-Brooks, 1908), §609
  • 188
    • 85038721791 scopus 로고    scopus 로고
    • Annotated Revised Statutes of the State of Ohio (Cincinnati: W. H. Anderson, 1898), §4426-1
    • Annotated Revised Statutes of the State of Ohio (Cincinnati: W. H. Anderson, 1898), §4426-1
  • 192
    • 85038790991 scopus 로고    scopus 로고
    • Welke, Recasting American Liberty, chap. 9, esp. 343-18, 358-64
    • Welke, Recasting American Liberty, chap. 9, esp. 343-18, 358-64
  • 199
    • 84972270074 scopus 로고
    • Regulation in America: A Review Article
    • Thomas K. McCraw, "Regulation in America: A Review Article," Business History Review 49 (1975): 159-83
    • (1975) Business History Review , vol.49 , pp. 159-183
    • McCraw, T.K.1
  • 200
    • 0003736594 scopus 로고
    • Cambridge: Belknap Press of Harvard University
    • McCraw, Prophets of Regulation (Cambridge: Belknap Press of Harvard University, 1984)
    • (1984) Prophets of Regulation
    • McCraw1
  • 207
    • 85038737562 scopus 로고    scopus 로고
    • Morgan v. Virginia, 328 U.S. 373 (1946)
    • Morgan v. Virginia, 328 U.S. 373 (1946)
  • 208
    • 79956463395 scopus 로고
    • 339 U.S. 816
    • Henderson v. United States, 339 U.S. 816 (1950). There had been two earlier legal victories in lawsuits brought by the NAACP and other private plaintiffs - in Nixon v. Herndon (1927)
    • (1950) Henderson v. United States
  • 212
    • 79956502324 scopus 로고
    • Donald R. McCoy and Richard T. Ruetten, Quest and Response: Minority Rights and the Truman Administration (Lawrence: University Press of Kansas, 1973), 10. In recognizing the continuities between nineteenth- and twentieth-century antidiscrimination law, it is important to note, first, that Mitchell was not the first time that American courts had upheld equality in transportation under the ICC; and second, that the Court recognized this, its verdict in Morgan citing key nineteenth-century rulings involving interstate transportation
    • (1973) Quest and Response: Minority Rights and the Truman Administration , vol.10
    • McCoy, D.R.1    Ruetten, R.T.2
  • 213
  • 215
    • 84962994467 scopus 로고    scopus 로고
    • For an excellent review of the historiography of the effect of Brown, Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, Journal of American History 81 (1994): 81-118
    • For an excellent review of the historiography of the effect of Brown, see Michael J. Klarman, "How Brown Changed Race Relations: The Backlash Thesis," Journal of American History 81 (1994): 81-118
  • 220
  • 223
    • 85038773512 scopus 로고
    • New York: Columbia University Press
    • Jack Greenberg, Race Relations and American Law (New York: Columbia University Press, 1959), 81-87, 96-101
    • (1959) Race Relations and American Law , vol.81-87 , pp. 96-101
    • Greenberg, J.1
  • 228
    • 0013504956 scopus 로고    scopus 로고
    • 165-169, 193-199
    • Dittmer, Local People, 153-57, 165-69, 193-99
    • Local People , pp. 153-157
    • Dittmer1
  • 234
    • 85038737538 scopus 로고    scopus 로고
    • Brief of Appellees in Heart of Atlanta v. U. S., 8-13, 38-39, 42-13, 53-54
    • Brief of Appellees in Heart of Atlanta v. U. S., 8-13, 38-39, 42-13, 53-54
  • 235
    • 85038799357 scopus 로고    scopus 로고
    • Amicus Curiae
    • Brief of the Attorney General of the State of New York as
    • Brief of the Attorney General of the State of New York as Amicus Curiae in Support of Affirmance, 1, 3-10
    • Support of Affirmance , vol.1 , pp. 3-10
  • 236
    • 85038788958 scopus 로고    scopus 로고
    • Brief of the State of California as
    • Brief of the State of California as Amicus Curiae, 1, 4-8
    • Amicus Curiae , vol.1 , pp. 4-8
  • 237
    • 85038668617 scopus 로고    scopus 로고
    • Amicus Curiae Brief on Behalf of the Commonwealth of Massachusetts, 1, 16. This is not to say that economic arguments were not made in briefs before the Supreme Court, but rather that these points were secondary, made only after lengthy appeals to the need to protect black travelers
    • Brief on Behalf of the Commonwealth of Massachusetts , vol.1 , pp. 16
    • Curiae, A.1
  • 238
    • 85038738658 scopus 로고    scopus 로고
    • 61
    • Brief of Appellees, 56-59, 61. The New York State amicus brief invoked innkeeper law in the same context: "The Civil Rights Act of 1964 only deprives operators of public places catering to transients of the freedom to deny their accommodations to a segment of the public, a so-called freedom that innkeepers never had under the common law." State of New York as Amicus Curiae, 9-10
    • Brief of Appellees , pp. 56-59
  • 241
    • 85038704777 scopus 로고    scopus 로고
    • Cox also made specific reference to the common law in refuting Rolleston's Thirteenth Amendment argument, observing that the motel's attorney was effectively claiming "that the Anglo-American common law for centuries has subjected to slavery innkeepers, hackmen, carriers, wharfage men, terriers, all kinds of other people holding themselves out to serve the public." See Kurland, 42
    • , vol.42
    • Kurland1
  • 243
    • 77950671032 scopus 로고
    • 379 U.S. 294 , 300
    • See Katzenbach v. McClung, 379 U.S. 294 (1964), 300
    • (1964) Katzenbach v. McClung
  • 244
    • 85038792021 scopus 로고    scopus 로고
    • [It but] emphasizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U.S. 485
    • [It but] emphasizes the soundness of this Court's early conclusion in Hall v. DeCuir, 95 U.S. 485."
  • 246
    • 85038745273 scopus 로고    scopus 로고
    • 88th Congress, 2d Session, Senate, Report No. 872, "Civil Rights - Public Accommodations" Senate Commerce Committee, submitted February 10, 1964, and Report No. 872, Appendix A, by Senator Winston L. Prouty (Washington, D.C.: Government Printing Office, 1964); Papers of Earl Warren, Container No. 267, Case No. 515, 1964 Term, Bench Memo; Papers of William J. Brennan, Jr., Part I: 127, Case File No. 64-515; Papers of William O. Douglas, Container No. 1348
  • 247
    • 0003762703 scopus 로고
    • New York: Simon & Schuster
    • See, for example, Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1973), 576-80
    • (1973) A History of American Law , pp. 576-580
    • Friedman, L.M.1


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