The Pennsylvania State University

The Graduate School

DEFIANT: AFRICAN AMERICAN LEGAL AND CULTURAL RESPONSES TO

NORTHERN WHITE SUPREMACY, 1865-1915

A Dissertation in

History & African American and Diaspora Studies

by

Tyler Daniel Sperrazza

© 2020 Tyler Daniel Sperrazza

Submitted in Partial Fulfillment of the Requirements for the Degree of

Doctor of Philosophy

August 2020 ii

The dissertation of Tyler Sperrazza was reviewed and approved by the following:

William A. Blair Walter L. and Helen P. Ferree Emeritus Professor of American History Dissertation Co-Advisor Co-Chair of Committee

Shirley Moody-Turner Associate Professor of English and African American Studies Dissertation Co-Advisor Co-Chair of Committee

Amira R. Davis Assistant Professor of History, African American Studies, and Women’s, Gender, and Sexuality Studies

Gregory Eghigian Professor of History

William J. Doan Professor of Theatre

Michael Kulikowski Edwin Erle Sparks Professor of History and Classics Head, Department of History

iii

ABSTRACT

This dissertation argues for the central place of theaters and places of amusement in the story of the African American fight for citizenship in the northern United States from 1865 to 1915. The 1875 Civil Rights Act explicitly mentions “theaters” as public accommodations that could not be segregated under federal law. Despite this and other state laws preventing segregation, northern African Americans were still subjected to segregation, harassment, and violence in these spaces. This study tells the stories of

African American litigants throughout the northern United States who brought the fight for citizenship and equal rights to municipal, state, and federal courts. Their cries for justice and equality reveal that the system known as Jim Crow segregation—most often recognized as a southern phenomenon—was actually conceived in the North. Parallel to the court battles, this study explores the growing movement among African American theater artists to create new styles of entertainment and build new venues outside of white-owned and dominated spaces. These simultaneous movements challenge our traditional understandings of the post-bellum pre-Harlem Renaissance moment in

American and African American history. iv

TABLE OF CONTENTS

Acknowledgements…………………..……………………………………………………………………………v

Introduction…………………..………………………………………………………………………………….…. 1

Chapter 1 Setting the Stage: Race, American Theaters, and the Law 1820-1866…….…. 16

Chapter 2 The Curtain Rises: Reconstruction Offers Hope, 1866-1882……………………. 54

Chapter 3 The Tragedy Begins—The Civil Rights Cases to Plessy, 1883-1900………….. 93

Chapter 4 The Curtain Falls: Life After Plessy v. Ferguson, 1900-1920……………………131

Chapter 5 The Hidden Lives of America’s Forgotten Black Artists, 1896-1946………… 165

Afterword………………………………………………………………………………………………………... 202

Bibliography…………………………………………………………………………..………………………… 210

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ACKNOWLEDGEMENTS

I did not write this dissertation in a vacuum. The next two-hundred or so pages are the culmination of many years of work on the parts of others to get this document to print despite me kicking, screaming, and doing everything possible to delay that day.

First and foremost, my advisors, Bill Blair and Shirley Moody-Turner, deserve all the credit for this dissertation becoming a reality. They both suffered through numerous drafts of present-tense prose, passive voice, and thinly argued narrative, while constantly reminding me to think bigger and encouraging me that the project had much larger legs than I ever believed it could.

Their work was picked up in recent months by my committee. Thank you to Greg

Eghigian for your steadfast encouragement that I was on the right track, Amira Rose

Davis for your scholarly mentorship, friendship, and distracting discussions of the current Broadway season, and Bill Doan for the road trips, Frozen performances, and tattoo sketches that pushed me over the finish line.

Thank you to my faculty at Penn State in both History and African American

Studies for working with me throughout my six and a half years as a graduate student.

Crystal Sanders, Nan Woodruff, Lori Ginzberg, Dan Letwin, Tony Kaye, and Andrew

Sandovál-Strausz all offered guidance and lessons that helped this project along. Kate

Merkel-Hess and Bryan McDonald were early sounding boards for my work, and could seemingly always tell when I needed to hear that the work I was doing was important.

In African American Studies, Courtney Morris, Keith Gilyard, Paul Taylor, and Kevin

Bell all provided invaluable knowledge of their fields and honest critiques of my work that helped shape this project from its earliest days. vi

The seeds of this project began at Le Moyne College under my advisors Doug

Egerton and Holly Rine. Their hands are all over this dissertation; if you squint you can even see faint tracings of Doug’s red pen. They, along with Karel Blakeley, Matt Chiorini,

Ann Ryan, and Leigh Fought, were some of the earliest champions of my work, and each of them gave a bit of themselves to my scholarly endeavors.

When you begin graduate school, no one tells you just how much damn paperwork there is going to be. I am forever grateful to the staff members of the

Richards Civil War Era Center, the History & African American Studies Departments, and the Penn State Libraries for helping me navigate the waters of Ph.D. bureaucracy.

Special thanks are in order for Barby Singer, Matt Isham, and Eric Novotny, who always went above and beyond.

I would have quit years ago if not for my compatriots in graduate studies both at

Penn State and elsewhere. I would not have made it through my comprehensive exams or my archival trips without Megan McDonie. Tom Rorke, Ben Herman, Mallory Huard and Sara Kern provided much needed distractions and pep talks at key moments. Cecily

Zander and I bounced our dissertations off one another between verses of Hamilton on our road trip from State College to Chattanooga. Rick Daily offered compassion and sunlight. ShaVonte Mills offered empathy and a humanity that is too often lacking in academia. Marc Carpenter was a confidante and early sounding board. The cohorts before me at Penn State and specifically in the Richards Civil War Era Center were filled with talented colleagues who offered wisdom and modeled what young scholars should be: Emily Seitz, Chris Hayashida-Knight, Lauren Golder, Evan Rothera, Antwain

Hunter, Sean Trainor, Will Bryan, Kathryn Falvo, and Paul Matzko all helped this project in one way or another. Angela Riotto and Brian Matthew Jordan took me under vii their wings at one of my first conferences, and are two of the best humans currently working in our field.

This project was lucky to be supported my numerous grants and funding fellowships that helped shaped the research. The Penn State History Department, Penn

State Africana Research Center, Filson Historical Society, and Massachusetts Historical

Society via the New England Regional Fellowship Consortium all have my deepest thanks for supporting my archival research trips.

State College, Pennsylvania can be a lonely place to work on a dissertation.

Thankfully I was able to find “my people” fairly quickly once I moved here in 2013, and the group has been growing ever since. Thank you for everything James McCready,

Hailley Fargo, Madeline Biever, Richard and Heidi Biever, Leah Mueller, Roger Tharp,

Kris and Tracy Hanahan, Steve and Libby Snyder, and my entire State College theater family. Thanks also to my therapist, Dr. Jess Buckland, who helped me realize why I would have ever agreed to put myself through the dissertating process.

In my fifth year of graduate school, just as I was beginning to get into the writing groove, an opportunity came around that I could not pass up. Thanks to my advisors and departmental administrators, I was able to leave my work as a graduate assistant and take on a full-time position in the Department of Student Affairs at Penn State.

Michael Blake gave me the opportunity of a lifetime, and I will be forever grateful. He and Mary Edgington allowed me to continue my work towards my Ph.D. while working full-time, and there are a lot of bosses that wouldn’t let that happen.

My extended family helped this project in ways they probably don’t even realize.

Sam and Eileen Sperrazza hosted me during multiple archival trips to New York, and

Uncle Sam drove me to and from the city often on his way into work to help me save on viii travel costs. Don and Dawn Sperrazza constantly checked in on my progress, and Uncle

Don took pity on me during the summer before graduate school and allowed me to tag along on some plumbing jobs to make some extra cash to help cover me before my graduate stipend kicked in.

My mom, Sara Sheldon, and my dad, Dan Sperrazza, have been my champions for literally as long as I can remember. Thanks for sticking with me every time I came home at the holidays and said “no, I’m not done yet.” I hope this makes some of that stress and anxiety worth it, though, in the current job market, it probably actually just makes it worse. Should’ve gotten a J.D. like you two. My stepmom, Mary Pat Sperrazza, was always proud of the work I did, and consistently checked in on my progress.

My sister, Dr. Whitney Sheldon Sperrazza, is the most brilliant person I know.

She is the reason I am in academia, mostly because I am always happily following in her giant footsteps. She helped me realize the passion I had for education and scholarly pursuits, and her list of accomplishments in her own field grows longer by the minute.

She is my ultimate role model, and my best friend. My brother-in-law, Matt Seidel, is the second-most brilliant person I know. He is a perfect gentleman, scholar, musician, and activist, and he kicks my ass at chess every time.

Finally, this dissertation is dedicated to my wife, Taylor Bigelow. My graduate school journey parallels our relationship, in that we began dating during the road trip to move me into my first State College apartment in July, 2013. Now, two weeks after our third wedding anniversary, we will both be graduating with our doctorates. She is my constant cheerleader and my best friend, and there is no way I would have finished this project without her support.

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Black Histories Matter

Black Stories Matter

Black Lives Matter 1

INTRODUCTION

This dissertation centers leisure space as a prominent area of African

American legal and cultural struggles over segregated public accommodations in northern cities from the end of the Civil War through the early Progressive Era. It examines black citizens’ simultaneous use of courtrooms and theaters as sites of resistance against white supremacist practices of segregation, discrimination, and racially motivated violence. Courtrooms and theaters served similar functions for

African American activists; they performed their citizenship both by bringing lawsuits and demanding access to stages and auditoriums. Beginning with the historical legacy of theaters as sites of racial conflict during the antebellum era, this study follows two sets of black activists. First, it examines the plaintiffs who brought cases of injustice before northern courts beginning in the 1860s and throughout the Reconstruction Era. Second, it highlights some of the black artists and theater-makers who used their changing legal and social status during

Reconstruction and the Gilded Age to create new opportunities beyond white- controlled spaces in the twentieth century. Activists used local legal action in municipal, county, and state courts to demand equal access to public accommodations, with theaters central to many of the cases. Their direct action during what is known as the post-bellum pre-Harlem years of 1865 to 1915, expanded notions of citizenship and belonging, offered an alternative path to equality, and helped lay the tactical groundwork the next generation of black civil rights leaders. 2

The stories of these African American men and women challenge our dominant historical narratives of the post-Reconstruction and Jim Crow era

North. Prior to the last two decades, most Reconstruction scholarship categorized the era as one of failure for black Americans. Historians acknowledged the importance of abolition, but pointed to the 1877 Hayes-Tilden Compromise, the

1883 Supreme Court ruling in The Civil Rights Cases, and the ultimate death knell for black rights in Plessy v. Ferguson (1896) as evidence that

Reconstruction era gains were short-lived. Historian Rayford Logan famously termed the post-bellum, pre-Harlem Renaissance era as the “nadir” of black political life. In many ways Logan was correct: the violence, discrimination, and widespread economic strife of many African Americans cannot be denied. In recent years, though, scholars of African American politics, legal history, and cultural studies have explored the ways in which African American citizens fought back against white violence, segregation, and discrimination. In many ways, they have built on the scholarship of W. E. B. Du Bois in Black Reconstruction by placing black Americans at the center of the narrative.1

1 C. Vann Woodward’s theses dominate the field of post-Reconstruction and Jim Crow Era scholarship, see: C. Vann Woodward, Origins of the New South, 1877-1913 (Baton Rouge: LSU Press, 1951); Edward Ayers, The Promise of the New South: Life After Reconstruction (New York: Oxford University Press, 1992). For general syntheses of Reconstruction see: Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988); Allen C. Guelzo, Fateful Lightning: A New History of the Civil War and Reconstruction (New York: Oxford University Press, 2012). David Blight, Race and Reunion: The Civil War in American Memory (Cambridge: Harvard university Press, 2002) For the “nadir” thesis see: Rayford Logan, The Negro in American Life and Thought: The Nadir: 1877-1901 (New York: Dial Press, 1954); Rayford Logan, The Betrayal of the Negro, from Rutherford B. Hayes to Woodrow Wilson (New York: Da Capo Press, 1965). W.E.B. Du Bois, Black Reconstruction in America: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (New York: Harcourt, 1935). 3

Until recently, scholars have routinely ignored the place of the North in studies of Jim Crow segregation. Those who have dealt with segregation throughout the country have tended to focus on the federal level—Supreme Court decisions, Congressional debates, and presidential actions. Below the federal level, however, the cases explored in this dissertation reveal patterns of segregation in public accommodations occurring in even the most racially

“tolerant” areas of the North. Northern cities with large free black populations before the Civil War renegotiated racial lines after emancipation and the passage of the Reconstruction Amendments. White northerners had always exercised a certain level of racial segregation, and struggled to maintain their pre-war racial boundaries in the new post-war world.

Uncovering northern white supremacist practices of violence and segregation adds to a richer understanding of racial discrimination in the United

States in two ways. First, it challenges the idea of southern white exceptionalism, which for decades has allowed northerners to turn a blind eye to their own racist practices. Second, it changes our understanding of the history and geography of

Jim Crow laws.2 Many of the local, state, and federal legal precedents that defined the Jim Crow laws came from northern state and local judges.

2 C. Vann Woodward, The Strange Career of Jim Crow, 3rd ed. (New York: Oxford University Press, 1974); For more on antebellum citizenship rights see: Martha Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018). For works that focus on the federal story of citizenship and civil rights legislation during Reconstruction see: Amy Dru Stanley, “Slave Emancipation and the Revolutionizing of Human Rights,” in Gregory P. Downs and Kate Masur, eds, The World the Civil War Made (Chapel Hill, University of North Carolina Press, 2015); Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.W. Norton and Company, 2019). For recent works that deal with northern issues of segregation, but do not focus on public 4

This work also challenges traditional histories of the era by examining theaters and places of amusement as the loci of struggle. Legal battles for access to theaters were central to the fight against Jim Crow segregation. Theaters were such vital spaces in nineteenth and early twentieth century communities that

Congress included “theaters and other places of amusement” as protected accommodations in the first section of the Civil Rights Act of 1875. African

Americans fought to gain access to theaters because they were critical public spaces where they both performed and participated in the culture of the nation.

As historian Millington Bergeson-Lockwood noted in his study of segregated skating rinks in Massachusetts, “exclusion from places like theaters and skating rinks compromised visions of racial equality.” Leisure spaces were highly visible public spaces where black patrons could be humiliated when denied entry on account of their race. Scholars of leisure studies have long explored the intersection of race and leisure, but most focused on leisure spaces other than theaters. Most theater historians dealing with race and racism on the stage have

accommodations and cultural spaces see: Heather Cox-Richardson, The Death of Reconstruction: Race, Labor, and Politics in the Post-Civil War North, 1865-1901 (Cambridge: Harvard University Press, 2004); Thomas Sugrue, Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North (Westminster: Random House, 2008); Hugh Davis, We Will Be Satisfied with Nothing Less: The African American Struggle for Civil Rights in the North During Reconstruction (Ithaca: Cornell University Press, 2011); Andrew Slap and Michael T. Smith, eds, This Distracted and Anarchical People: New Answers for Old Questions About the Civil-War Era North (New York: Fordham University Press, 2013); Douglas Egerton, The Wars of Reconstruction: The Brief, Violent History of America’s Most Progressive Era (New York: Bloomsbury, 2014). Two studies in the last five years deal explicitly with places of leisure and public accommodations in the North, see: David Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore, 1865-1920 (New York: Fordham University Press, 2016); Millington W. Bergeson-Lockwood, Race Over Party: Black Politics and Partisanship in Late-Nineteenth Century Boston (Chapel Hill: University of North Carolina Press, 2018). 5 focused on minstrelsy and other types of racial representation rather than the political fights over theater spaces. This study brings these disparate threads together and shows the connection between the theater history of black

Americans and their legal fights for civil rights. The scholarship of African

American theater details the rise of black performance and the creation of black- owned theatrical ventures during the post-bellum, pre-Harlem era. This expansion of black theater and performance fits neatly within the narrative of northern segregation and discrimination: by the turn of the century many black theater artists countered northern discrimination by creating their own spaces free from white oppression.3

Theaters and other cultural spaces expand our understanding of the

African American social movements of the late nineteenth and early twentieth centuries. Early civil rights organizations like the Equal Rights League, Afro-

American League, the Niagara Movement, and others were certainly not solely

3 Leisure studies scholars who work on the late-nineteenth and early twentieth-century have conducted multiple studies of urban leisure and the importance of leisure to Progressive Era Americans, see: Gunther Barth, City People: The Rise of Modern City Culture in Nineteenth-Century America (New York: Oxford University Press, 1980); Lewis Erenberg, Steppin’ Out: New York Nightlife and the Transformation of American Culture (Westport, Conn.: Greenwood Press, 1981); Kathryn Glover, ed., Hard at Play: Leisure in America, 1840-1940 (Amherst: University of Massachusetts Press, 1992). For scholarship that deals directly with racial exclusion from spaces of leisure, though not theaters, see: Victoria Wolcott, Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America (Philadelphia: University of Pennsylvania Press, 2012); Millington W. Bergeson-Lockwood, “‘We Do Not Care Particularly about the Skating Rinks’: African American Challenges to Racial Discrimination in Places of Public Amusement in Nineteenth-Century Boston, Massachusetts,” The Journal of the Civil War Era 5, no. 2 (June 2015): 257; Bergeson-Lockwood, Race Over Party; Errol Hill and James Hatch, A History of African American Theatre (New York: Cambridge University Press, 2003). For a fantastic study that explores racial segregation and black performance at the turn of the century, see: Karen Sotiropolous, Staging Race: Black Performers in Turn of the Century America (Cambridge: Harvard University Press, 2008). 6 engaged in the fight against discrimination in theaters. Most were founded to support the fights for voting rights, school desegregation, and an end to racialized violence and lynching. However, each of these early rights organizations also aided in the fight to end segregation in theaters and places of amusement. The activists of the era understood that access to cultural spaces and cultural production were imperative if African Americans were to truly be seen as citizens of the nation. Participatory citizenship did not only mean voting rights, but also the right to engage in public spaces with other citizens freely and without fear of discrimination.4

Federalism complicated the push for African American citizenship in the postwar world. The relationships between local, state, and federal laws created a messy web of legislation and legal precedent. A host of new historical scholarship has sought to unravel this web, and helped expand the notion of federalism from a binary relationship between state and federal laws to an overlapping dialogue between multiple levels of government.5 Additionally, legal scholars have

4 For more on the work of early black rights organization see: Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900 (Chapel Hill: The University of North Carolina Press, 2007); Judith Giesberg, Army at Home: Women and the Civil War on the Northern Home Front (Chapel Hill: The University of North Carolina Press, 2009); Eric Ledell Smith, “‘Asking for Justice and Fair Play’: African American State Legislators and Civil Rights in Early Twentieth- Century Pennsylvania,” Pennsylvania History: A Journal of Mid-Atlantic Studies 63, no. 2 (Spring 1996): 169-203; Angela Jones, “The Niagara Movement, 1905-1910: A Revisionist Approach to the Social History of the Civil Rights Movement,” Journal of Historical Sociology 23, no. 3 (Sept. 2010): 453-500; Zebulon Miletsky, “The Dilemma of Interracial Marriage: The Boston NAACP and the National Equal Rights League, 1912- 1927,” Historical Journal of Massachusetts 44, no. 1 (Winter 2016): 137-169; Val Marie Johnson, “‘The Half Has Never Been Told’: Maritcha Lyons’ Community, Black Women Educators, the Woman’s Loyal Union, and ‘the Color Line’ in Progressive Era Brooklyn and New York,” Journal of Urban History 44, no. 5 (2018): 835-861. 5 For more on the new directions in the study of federalism see the December, 2019 Special Issue of the Journal of the Civil War Era, particularly: Rachel Shelden, 7 revealed the ways in which African Americans navigated the courts during and after Reconstruction. Much of this scholarship focuses on the South and points to the ways in which formerly enslaved people used their new status as citizens under the 14th Amendment and 1866 Civil Rights Act to sue in southern courts.

Legal historian Laura Edwards argued that the changes at the federal level

“allowed people to imagine the federal government as a more immediate presence in their lives: a legal ally in their efforts to give rights meaning.” This study builds on that argument by revealing that local and state statutes, as well as state and federal constitutional amendments, were just as critical for African

Americans of all genders, both North and South. When the federal system failed, and the United States Supreme Court nullified federal rights legislation, African

American litigants turned to the states for protection against racial discrimination. Courtrooms of the late nineteenth and early twentieth centuries became battlegrounds for civil rights, outlasting the traditional understanding of when courts abandoned protecting the rights of black people.6

“Introduction: Federalism in the Civil War,” The Journal of the Civil War Era 9, no. 4 (December 2019): 499-503. For specific discussions of race and federalism in this special issue see: Kate Masur, “State Sovereignty and Migration before Reconstruction,” The Journal of the Civil War Era 9, no. 4 (December 2019): 588-611. 6 Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015); Foner, The Second Founding. Edwards and Foner primarily deal with changes in the law and African American litigants in the southern states, as do: Diane Miller Sommerville, Rape and Race in the Nineteenth-Century South (Chapel Hill: The University of North Carolina Press, 2004); Hannah Rosen, Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (Chapel Hill: The University of North Carolina Press, 2009); Kate Masur, An Example for All the Land: Emancipation and the Struggle Over Equality in Washington, D.C. (Chapel Hill: The University of North Carolina Press, 2010); Cynthia Greenlee, “‘Due to Her Tender Age’: Black Girls and Childhood on Trial in South Carolina, 1885-1920” (PhD diss., Duke University, 2014). 8

This dissertation is grounded in thirty-six court cases heard in northern county, state, and appellate courts between 1860 and 1920 that were originally brought by either African American plaintiffs or the government on behalf of an

African American plaintiff. The defendant in every case was either a white man or woman or a company or establishment owned by a white citizen. The cases spanned throughout the North, with eighteen originating in New York, six in

Ohio, three in Pennsylvania, and the others spread among Illinois, Indiana,

Massachusetts, Connecticut, Iowa, Missouri, Minnesota, and Michigan. It is imperative to study the work of black legal activists on the ground alongside the grander narrative of federal rights legislation. As legal historian Laura Edwards argued, “legal change not only flowed from above, but also welled up from below.” This study takes that counsel to heart by adding the work of northern activists and litigants to the narrative.7

Exploring the work of African American activists in the “post-bellum, pre-

Harlem era” (1865-1915) expands our understanding of the temporal

7 The cases are listed here, by state. New York: Clark v. Rochester (1864), People & Hoffman v. Acton (1867), Socy for Reformation of Juvenile Delinquents v. Diers (1871), Wallack v. Society for Reformation of Juvenile Delinquents (1876), Metropolitan Board of Health v. Heister (1868), Neuendorff v. Duryea (1877), Lewis v. Hitchcock (1882), People & King v. Gallagher (1882), Cisco v. School Board Borough of Queens (1899), Cooper v. New Haven Steam Boat Co. (1883), People v. King (1888), Thomas v. Williams (1905), Aaron v. Ward (1911), Burks v. Bosso (1905), Joyner v. Moore Wiggins Co. (1912), People & Burnham v. Flynn (1907), Johnson v. Auburn & Syracuse (1915). Ohio: Anderson v. Rawlings (1899), Davis v. Euclid Avenue Garden Theatre (1911), Deuwell v. Foerster (1912), Fowler v. Benner (1912), Johnson v. Humphrey Pop Corn Co. (1902), Youngstown, et al v. Tokus (1915). Pennsylvania: West Chester & P.R. Co. v. Miles (1867), Drew v. Peer (1880), U.S. v. Newcomer (1876). Massachusetts: Burton v. Scherpf (1861), Bryant v. Rich’s Grill (1914). Indiana: State v. Gibson (1871). Illinois: U.S. v. Taylor (1880), Baylies v. Curry (1889). Connecticut: Faulkner v. Solazzi (1907). Michigan: Ferguson v. Gies (1890). Minnesota: Rhone v. Loomis (1898). Missouri: Younger v. Judah (1892). Iowa: Brown v. J.H. Bell Co (1910). Edwards, A Legal History of the Civil War and Reconstruction, 6 9 relationships between state, nation, and the politics of black civil rights. Rather than simply connecting this era to the long civil rights movement, this work argues for the unique moment that was the post-bellum, pre-Harlem era for black

Americans. Long movement scholarship was first named by historian Jaqueline

Dowd-Hall, who explored what she referred to as “a more robust, more progressive, and truer story” of the civil rights movement “that took root in the liberal and radical milieu of the late 1930s.” Hall and others look to the early twentieth century–predominantly the years following World War I, the Great

Depression, and subsequent New Deal Democratic policies–and find tactics and organizing efforts similar to those of the 1950s and 1960s era of the “Civil Rights

Movement.” This study seeks to show how the years between 1865 and 1915 helped to shape fundamental realities for black Americans and their relationship to the nation that would have tremendous consequences for the later civil rights struggles of the twentieth century.8

8 For the seminal article on the long civil rights movement, see: Jacqueline Dowd Hall, “The Long Civil Rights Movement and the Political Uses of the Past,” The Journal of American History 91, no. 4 (March 2005): 1233-1263. Plenty of scholarship has come after Hall’s thesis that endorses her timeline and pushes the civil rights movement earlier into the 1910s and 20s, see: Adrienne Lentz-Smith, Freedom Struggles: African Americans and World War I (Cambridge: Harvard University Press, 2009); Blair Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (Chapel Hill: University of North Carolina Press, 2010); Nicole Myers Turner, Soul Liberty: The Evolution of Black Religious Politics in Postemancipation Virginia (Chapel Hill: The University of North Carolina Press, 2020). For work that challenges the efficacy of the long civil rights movement, see: Sundiata K. Cha-Jua and Clarence Lang formulated the argument that the “long civil rights” movement creates a “vampire” movement that acts as if undead, “existing both everywhere and nowhere,” see: Sundiata K. Cha-Jua and Clarence Lang, “The ‘Long Movement’ as Vampire: Temporal and Spatial Fallacies in Recent Black Freedom Studies,” The Journal of African American History 92, no. 2 (Spring 2007): 265-288. For other recent scholarship that challenges aspects of the long movement thesis, see: Eric Arnesen, “Reconsidering the ‘Long Civil Rights Movement’,” Historically Speaking 10, no. 2 (April 2009): 31-34; Christopher W. Schmidt, “Legal History and the Problem of the Long Civil Rights Movement,” Law & Social Inquiry 41, no. 4 (Fall 2016): 1081-1107. 10

The post-bellum, pre-Harlem era is not used in historical scholarship, but is rather a temporal boundary crafted by scholars of African American literature.

The idea of southern exceptionalism in civil rights literature is echoed by a similar “Harlem exceptionalism” that pervaded literary studies. But the years of the Harlem Renaissance are useful as a temporal guidepost for historians.

Between 1865 and 1915, the foundations of the black communities in areas like

Harlem, Washington, D.C., and Chicago were being shaped by state and federal discussions surrounding citizenship and civil rights. As discussed above, Rayford

Logan deemed the post-bellum, pre-Harlem era as the “nadir” of black political and economic history. After Logan’s thesis, many literary and cultural scholars expanded the term “nadir” to every aspect of black life, particularly in the realm of cultural production.

For years, black cultural scholars saw the Harlem Renaissance as the moment when back cultural production finally emerged from the nadir. More recently, many scholars across a variety of fields have pushed back against the idea of this era as a “nadir.” This study links with that literary and cultural scholarly tradition and adds to recent work seeking to reclaim the pre-Harlem period as one of important black cultural production. In the same ways that the black litigants used the courts to fight for citizenship, black cultural workers— writers, theater artists, and musicians—spent the post-bellum, pre-Harlem years asserting their citizenship through their artistic contributions. The “nadir” may accurately describe the political reality for black Americans at the federal level,

11 but it overlooks the legal, political, and cultural mobilization on the ground by black activists fighting for equality.9

The following chapters explore how African American citizens asserted their rights to participate in cultural spaces in the face of northern white supremacy. Chapter 1 provides context that illustrates the importance of theaters as not only cultural spaces but political spaces. It explores the legal place of theaters and public accommodations under “common law,” and tracks the influence of common law on early rights legislation. The chapter centers on the antebellum “theater riots” and argues that those riots should be re-interpreted as scenes of racially motivated violence by white northerners against free black populations. Contemporary black writers and activists condemned the riots as evidence of white racism in northern cities, and the antebellum violence foreshadowed later racial violence in the North after the turn of the twentieth century. Urban racial violence and widespread anti-black state legislation characterized the antebellum years for northern free black communities.

Northern states passed laws prohibiting black immigration, limiting black voting, and banning interracial marriage. The Civil War years afforded northern African

9 For work that counteracts the narrative of the post-bellum, pre-Harlem era as a cultural “nadir,” see: Kevin Gaines, Uplifting the Race: Black Leadership, Politics, and Culture in the Twentieth Century (Chapel Hill: University of North Carolina Press, 1996); Barbara McCaskill and Caroline Gebhard, eds., Post-Bellum, Pre-Harlem: African American Literature and Culture, 1877-1919 (New York: New York University Press, 2006); John Ernest, Chaotic Justice: Rethinking African American Literary History (Chapel Hill: University of North Carolina Press, 2009); Gene Jarrett, Representing the Race: A New Political History of African American Literature (New York: New York University Press, 2011); Koritha Mitchell, Living With Lynching: African American Lynching Plays, Performance, and Citizenship, 1890-1930 (Champaign: University of Illinois Press, 2011); Shirley Moody-Turner, Black Folklore and the Politics of Racial Representation (Jackson: University Press of Mississippi, 2013). 12

Americans new opportunities to press for their rights, and many early civil rights actions began before the war’s conclusion. Northern lawmakers focused on common law doctrine and the early understandings of public versus private when crafting the earliest federal civil rights legislation, the Civil Rights Act of 1866.

Chapter 2 examines how African American litigants began to use the newly passed federal legislation to fight for change at the local level. The 1866 Civil

Rights law was primarily a means of protecting the rights of newly freed African

Americans in the South. But northern black activists used the language of the

1866 law to push for their rights to equal access in public accommodations. The years between the 1866 and 1875 Civil Rights Act were characterized by rampant northern discrimination and attempts by African American litigants to sue for their rights. Some northern states, like New York, Pennsylvania, and

Massachusetts, passed civil rights legislation during those years, but most African

Americans in the North needed to rely on federal statutes. The federal Civil

Rights Act of 1875 gave African Americans a tool to assert their citizenship rights in court. State courts began to cite the 1875 Act in their decisions, and African

American litigants won victories over discriminatory white business owners.

The Supreme Court decision in the Civil Rights Cases (1883) decimated the federal protections granted under the Reconstruction Amendments and 1875

Civil Rights Act. However, Chapter 3 focuses on the explosion of state civil rights legislation in the North designed to fill the void left after the 1883 Supreme Court decision. African American litigants continued to force the issue of civil rights by bringing cases to northern municipal, county, and state courts and demanding equal protection under the law. State courts affirmed the constitutionality of state 13 civil rights legislation in the wake of the Civil Rights Cases, and black litigants won victories against discriminatory white northerners. Parallel to successes in the courtroom, black theatrical workers saw increased opportunities in the 1880s and 1890s. The birth of vaudeville and the circuit system for touring companies provided black entertainers with steadier wages, consistent work, and larger audiences. Vaudeville revues replaced blackface minstrel shows, and presaged early forms of musical comedies which would become staples of black-owned theaters in the twentieth century. The chapter ends with the U.S. Supreme

Court’s decision in Plessy v. Ferguson (1896) and sets the table for the backlash to come.

Chapter 4 examines the white assault on civil rights legislation in the wake of Plessy v. Ferguson. Sweeping decisions from state courts superseded the courtroom victories of the late nineteenth century and severely narrowed the scope of civil rights laws. The cases explored in this chapter reflect how twentieth century judges used the legal precedents set by Plessy and the Civil Rights Cases to gut the civil rights protections of northern states. Simultaneously, black cultural workers and theatrical professionals began to look for opportunities beyond white-owned spaces. The second part of the chapter details the early efforts to form a black-owned and operated theatrical circuit that would provide opportunities for black artists. These ventures were linked to the project of “racial uplift” that dominated black intellectual writing of the era. Black-owned and operated theaters were vital to the uplift project because they served as beacons of cultural respectability and economic independence. This narrative reveals the 14 different strategies necessary for black activists to secure victories once Plessy limited their ability to fight for civil rights in the courtroom.

In Chapter 5, I zoom in on a single black theatrical worker, Frank

Andrews, and detail his world in the wake of Plessy v. Ferguson. Andrews, like other actors of his day, maintained constant work within a racial system that did not allow for steady employment or high wages for black artists. Unlike many of his counterparts, though, Andrews passed as a white man in order to maintain a steady career as a theater and film actor. Andrews offers a singular example of the nuanced possibilities of black life outside the traditional civil rights narrative.

Historian Allyson Hobbs argues, “the history of passing is a composite of cultural and political history […] that opens a wide window into larger issues.” Andrews’ life provides us a glimpse into some of those historical issues, and offers an alternative path during Jim Crow. His narrative does not fit a heroic narrative of civil rights struggle, but his life allowed him to survive and provide a comfortable, middle-class life for his family.10

This dissertation exposes local actions within uniquely northern and urban communities, but those local actions speak to the larger reality of black life in after Reconstruction, adding nuance to our dominant narratives of the Jim Crow

Era. The stories challenge traditional portrayals of the trajectory of white supremacy, civil rights, and black activism. When these court cases are taken into account, we can see a clear project of racial discrimination throughout the northern states well before Jim Crow laws were codified throughout the South.

10 Allyson Hobbs, A Chosen Exile: A History of Racial Passing in American Life (Cambridge: Harvard University Press, 2014), 25. 15

These men and women demand that we stop viewing Jim Crow as a uniquely southern project, and that we see theaters and cultural spaces as important sites of political meaning. Their lives spent in northern courtrooms and on northern stages help us reassess how we view the intersection of politics and culture. It is imperative that historians pay attention to cultural spaces—they are where the stories of the nation are perpetually re-written and re-interpreted.

16

Chapter 1

Setting the Stage: Race, American Theaters, and the Law, 1820-1866

On the night of May 10, 1849 a roar went up from a crowd spilling out of

New York’s Astor Place Theatre, “three cheers for Macready, Nigger Douglass, and Pete Williams.”11 The crowd of white New Yorkers moved quickly through the

Bowery in Lower Manhattan and proceeded to smash windows, fire buildings, and attack any African American who dared wander the streets alone. This was the Astor Place Riot—the most famous antebellum theater riot that raged for two days and caused tens of thousands of dollars in property damage before finally being put down by the United States Army.12

It was ostensibly a riot sparked by a bitter rivalry between two performers.

American actor Edwin Forrest and English actor William Charles Macready had been embroiled in a bitter feud for the better part of a decade, and on May 10,

1849, the dispute erupted. The theater was a natural flashpoint: Macready was performing that evening and Forrest’s supporters were able to flood the venue in order to jeer and protest the Englishman. The rioters looking to pick a fight vastly

11 New York Herald, May 8, 1849. Here the crowd was referring to renowned abolitionist, Frederick Douglass, and notable New York City free black pastor, Pete Williams. 12 For detailed descriptions of the events leading up to the Astor Place Riot, as well as the events of the riot itself, see: Nigel Cliff, The Shakespeare Riots: Revenge, Drama, and Death in Nineteenth-Century America (New York: Random House Inc., 2007); Richard Moody, The Astor Place Riot (Bloomington: Indiana University Press, 1958); Leo Hershkowitz, “An Anatomy of a Riot: Astor Place Opera House, 1849,” New York History 87:3 (2006): 277-311 17 outnumbered Macready and his entourage, and soon after the performance began he and his tiny band of supporters were fleeing into the New York night.

But why, in a riot concerning a feud between an American and English actor would the crowd jeer the names of two prominent African American men,

Frederick Douglass and Peter Williams? Douglass was an international figure by

1849. He began publishing his abolitionist newspaper, The North Star, in 1847 in

Rochester, New York, and was a world-renowned speaker. Pete Williams was a prominent figure in the New York African American community as the pastor of

St. Phillips African Episcopal Church on Centre Street in Manhattan. What did either of them have to do with William Charles Macready, and why would newspaper accounts be sure to print that their names were jeered along with the

Englishman’s?

Northern racism and white supremacy lived at the heart of the Astor Place

Riot. An incident that began as simply taunting and antagonizing a rival actor quickly turned into a violent, angry group of white men and women looking to hurt black northerners and destroy their property. The jeers of Douglass and

Williams alongside Macready highlighted the important intersection of race and theatrical violence. The white New Yorkers in 1849, like other violent white crowds of the antebellum era, viewed theaters as spaces where their racial supremacy could be threatened. And while the Astor Place Riot may be the most famous antebellum theatrical riot, the circumstances mirrored dozens of other violent incidents occurring in and around the theaters of the antebellum North.13

13 The term “riot” is a historically specific, racially coded term. In the antebellum era, it was mainly used to describe white crowd (or mob) violence. Historians of nineteenth 18

Earlier historians who have examined antebellum theatrical riots have hinted about the role race may have played in the incidents, but these observations often neglected the broader context of racial segregation in antebellum theater history. By failing to connect the white New Yorkers’ anti- black violence with the customary practices of racial exclusion that governed northern theaters, such histories obscure how antebellum racial separation of northern public spaces was driven by the same white anxieties and white supremacist attitudes that fueled racial rioting.14

Theaters were sites of racial and political collision. They were central to the social and political spheres of antebellum cities. Most major cities throughout the United States contained at least one theater, opera house, athenaeum, or other performance venue. White and black northerners saw the potential of theaters as sites where a lone orator or performer could hold the attention of hundreds or thousands at one time. Performers endorsed political agendas and shared radical social ideas. The stages of northern theaters often threatened the status quo. Throughout the antebellum era black activists and sympathetic politicians in the North fought to legally expand access to public accommodations like theaters. White patrons often responded to these threats by exercising a basic form of political action: rioting. The Astor Place Riot was just one of many that

century riots are predominantly focused on these instances of white violence. The term has evolved in histories of the 20th Century to describe distinctly urban uprisings. See Heather Ann Thompson, “Understanding Rioting in Postwar Urban America.” Journal of Urban History 26, no. 3 (March 2000): 391–402. 14 Paul A. Gilje, Rioting in America, (Bloomington: Indiana University Press, 1996); Cliff, The Shakespeare Riots, 18-24; Hershkowitz, “An Anatomy of a Riot: Astor Place Opera House, 1849,” 279-281. 19 took place in the North during the antebellum era, and a large number either began in or centered on a theatrical venue.15

Theaters and other public spaces served as arenas for black activism in the antebellum period. African Americans in northern cities used theaters, athenaeums, concert halls, and other public venues to hold conventions and meetings during which they drafted petitions, adopted resolutions, and debated how to best serve their interests. Scholars have chronicled African American social and political debates during the antebellum era, and most focused on the role of African American activists in the fight for the abolition of slavery. Others explored the internal debates between African American thinkers who advocated for emigration from the United States and those who forwarded an assimilationist ideal. All of these histories, though, overlooked the central place of theaters and other places of public amusement to the work of antebellum black activists.16

15 Gilje, Rioting in America. In “Appendix A” Gilje catalogs every recorded nineteenth- century riot and determines that at least 35 of the riots began in theatrical venues. For more on the American political tradition of rioting see: Gilje, Rioting in America; Wiliam Pencak, et al. eds., Riot and Revelry in Early America, (University Park: The Pennsylvania State University Press, 2002); David Waldstreicher, In the Midst of Perpetual Fetes: The Making of American Nationalism, 1776-1820, (Williamsburg: Omohundro Institute of Early American History and Culture, 1997). 16 Leslie M. Alexander, African or American? Black Identity and Political Activism in New York City, 1784-1861, (Urbana: University of Illinois Press, 2008), 32-34; Elsa Barkley Brown, “Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom,” in Time Longer Than Rope: A Century of African American Activism, 1850-1950, eds. Charles M. Payne and Adam Green, (New York: New York University Press, 2003), 68-110; Gayle T. Tate, Unknown Tongues: Black Women’s Political Activism in the Antebellum Era, 1830-1860 (East Lansing: Michigan State University Press, 2003); Shawn C. Comminey, “National Black Conventions and the Quest for African American Freedom and Progress, 1847-1867,” International Social Science Review, 91:1 (2015); Stephen Kantrowitz, More Than Freedom: Fighting for Black Citizenship in a White Republic, 1829-1889, (New York: Penguin Press, 2012). 20

African American political thinkers and activists worked to redefine citizenship as a national identity rather than one bestowed by individual states.

Federalism seemingly deferred the citizenship question to the states, but African

American activists saw the need for a national understanding of citizenship. Only then, they argued, could free African Americans in northern states truly work for the freedom and rights of all black citizens, including those still held in bondage in the South.17 Building on the scholarly focus on black activism and abolition, recent works have examined the ways in which black political writers and activists thought beyond abolition and imagined an American society where all black men were free from slavery and civic equality.18 During the 1840s and

1850s, many African American political thinkers recognized that abolition represented not the final goal, but simply one step toward full citizenship.

Examining racially motivated riots and how theatrical venues were often the sites of racial conflict offers a fuller understanding of why African American activists of the mid to late nineteenth century included specific language about

17 Christopher James Bonner, Remaking the Republic: Black Politics and the Creation of American Citizenship (Philadelphia: University of Pennsylvania Press, 2020), 38-45; Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009); Anne Twitty, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787-1857 (Cambridge University Press, 2018). 18 Kareema J. Gray, “Social Change for Social Betterment: African Americans in Nineteenth-Century Philadelphia, PA,” Journal of African American Studies 18 (2014): 432-456; John T. Cumbler, From Abolition to Rights for All: The Making of a Reform Community in the Nineteenth Century, (Philadelphia: University of Pennsylvania Press, 2008); Crystal Lynn Webster, “In pursuit of autonomous womanhood: nineteenth- century black motherhood in the U.S. North,” Slavery & Abolition, 38:2 (2017): 425- 440; Mitch Kachun, “‘Our Platform Is as Broad as Humanity’: Transatlantic Freedom Movements and the Idea of Progress in Nineteenth-Century African American Thought and Activism,” Slavery & Abolition, 24:3 (2003): 1-23; Kantrowitz, More Than Freedom; Tate, Unknown Tongues. 21

access to public accommodations in their fight for civil and political rights.19

Indeed, northern black activists used their writings, speeches, and petitions to express their frustrations to northern white audiences full of men and women who supported abolition but to whom the idea of “social equality” was often abhorrent.20 By linking the push for abolition with access to public accommodation demands, these activists rejected the majority of white northerners’ watered-down notions of equality that sought to render black

Americans as more than slaves but less than citizens. Black men and women protested the lack of federal and state protections against discrimination and racial violence, and petitioned their governments for change.

Until the Civil Rights Act of 1866, no federal laws protected citizens of the antebellum United States from discrimination. African Americans had no legal recourse against racially motivated violence like the Astor Place Riot. They were barred from public accommodations. Attempts to build their own institutions were often met with violence.21 War resulted in federal and state civil rights laws that detailed the rights and protections of citizens. But even then, the legislation did not necessarily end discrimination in public accommodations.

19 Bonner, Remaking the Republic; Alison M. Parker, Articulating Rights: Nineteenth Century American Women on Race, Reform, and the State (DeKalb, Ill.: Northern Illinois University Press, 2010), 97-103. 20 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, (New York: W.W. Norton and Company, 2019), 6-8; 21 White domestic terrorists commonly targeted black churches, newspaper offices, schools, and other important community institutions throughout the nineteenth and twentieth centuries. In 1892 a white mob in Memphis, Tenn., burned the offices of anti- lynching activist Ida B. Wells’ Memphis Free Speech. In 1921 white violence in the Greenwood Massacre destroyed “Black Wall Street” in Tulsa, Oklahoma, and the 16th Street Baptist Church bombing in 1963 targeted a critical rallying point for civil rights activities in Birmingham, Alabama. 22

Histories of the mid-nineteenth century largely ignore the role of theaters as important sites of black struggle, and they were violent places even without racial conflict.22 Antebellum theaters were loud, hellish spaces ripe with conflict and full of interesting personalities and idiosyncrasies. Patrons and performers regularly exchanged verbal barbs, and sometimes came to physical blows. Alcohol flowed freely in even the most “respectable” theatrical establishments, and by the final act of most shows a majority of the audience members were usually inebriated.23 It was no wonder that these spaces often served as the flashpoints for political violence. There are some histories of violence which mention these theaters and an even smaller amount of work that is focused keenly on the place of theaters in antebellum riots.24 Most of these studies, however, have been produced by “theater historians” writing in a subfield that is all-too-often isolated

22 The major syntheses of the nineteenth century discuss popular culture, but mainly within larger discussions on Jacksonian democracy. They point to the expansion of access to the cultural sphere for a larger percentage of Americans. There is little to no discussion of the political dynamics of theaters and theatrical productions. The only exception is when the authors choose to discuss performances of “Uncle Tom’s Cabin” in the abolitionist context. See, Daniel Walker Howe, What Hath God Wrought, (New York: Oxford University Press, 2007), 443-446; Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln, (New York: W.W. Norton & Company, 2005), 307-315. 23 For general histories of antebellum theaters see: John Hanners, “It Was Play or Starve”: Acting in the Nineteenth-Century American Popular Theatre, (Bowling Green: Bowling Green State University Press, 1993); Bruce A. McConachie and Daniel Friedman, eds. Theatre for Working Class Audiences in the United States, 1830-1980 (Westport, CT: Greenwood Press, 1985); Garff B. Wilson, Three Hundred Years of American Drama and Theatre: From Ye Barre and Ye Cubb to A Chorus Line (Englewood Cliffs, NJ: Prentice-Hall, 1982); Montrose J. Moses and John Mason Brown, eds. The American Theatre: As Seen By Its Critics, 1752-1934 (New York: Cooper Square Publishers, 1967). 24 Heather S. Nathans, “‘Blood Will Have Blood’: Violence, Slavery, and Macbeth in the Antebellum American Imagination,” in Scott L. Newstok and Ayanna Thompson, eds., Weyward Macbeth: Intersections of Race and Performance; Elizabeth Williamson, “Fireboys and Burning Theatres: Performing the Astor Place Riot,” The Journal of American Drama and Theatre 25, no. 1 (Winter 2013): 5-26; 23

from larger historiographical considerations.25 By placing the history of theater riots in conversation with legal and political histories of the antebellum period and with African American history, this work forces a reconsideration of the riots themselves and a deeper understanding of the importance of racial tensions and the project of white supremacy to the violent incidents.

*Antebellum Theater and Race*

New York, Philadelphia, and Boston all served as theatrical hubs during the antebellum period. Each city had a number of well-established theaters that catered to both white and black patrons, though the audiences were always segregated and certain performances were closed to black customers. New York had The Bowery, Niblo’s Garden, The Winter Garden, The Lyceum, Madison

Square Theater, Booth’s Theater, Philadelphia had the Walnut Street, Forrest’s

Theater, and The Academy of Music. Boston had the Music Hall, The Boston

Theatre, Selwyn’s, Hollis Street, The Globe, Beethoven Hall, The Park, and The

Tremont. Each of these spaces offered a variety of acts for patrons of a certain

25 “Theater historian” is a potentially derisive description often applied to scholars working outside of traditional history departments in academia. For historians outside of traditional history departments who deal with nineteenth-century American theatrical riots see: Nathans, “‘Blood Will Have Blood’,” 42-57; Williamson, “Fireboys and Burning Theatres,” 7-10;Bruce A. McConachie, “‘The Theatre of the Mob’: Apocalyptic Melodrama and Preindustrial Riots in Antebellum New York,” in McConachie and Friedman, eds. Theatre for Working Class Audiences, 17; Richard Butsch, “American Theater Riots and Class Relations, 1754-1849,” Theatre Annual: A Journal of Performance Studies 48 (1995): 41; Julia Curtis, “A Summary of the Charleston Theatre Riot of 1817,” Theatre Symposium 24 socioeconomic status. Theater admission could be cheap depending on the venue and type of performance, but even the lowest-priced seats in urban theaters remained beyond many in the working class. This class exclusion shifted rapidly during the latter half of the nineteenth century as theater owners dipped prices because of increased demand and more competition.26

During the 1850s and early 1860s theaters catered to white and black patrons, though owners racially segregated patrons in different tiers of seating.

The third tier was reserved for African American patrons and sex workers of all races. The dress circle, or “lower balcony,” and orchestra were typically reserved for white patrons. In the larger picture of northern interracial interactions, however, theatres were one of the most public spaces that “race-mixing” occurred regularly and generally without incident. Theatre managers were concerned first and foremost with turning a profit—bigger crowds meant bigger profits and the segregation of seating sections maintained a thin veneer of propriety in an industry that was not known for worrying about scandalous behavior.27

The stages of northern theaters were even more segregated than the seating galleries. White patrons accepted that African Americans could attend performances—as long as black people sat in the third tier—but an African

American actor onstage could prompt a boycott by white clientele. Thus, black actors were nearly non-existent onstage. Ira Aldridge, the most famous black

26 Errol Hill and James Hatch, A History of African American Theatre, (Cambridge: Cambridge University Press, 2003), 35-52. 27 Hatch and Hill, African American Theatre (177-185); Marvin Edward McAllister, White People Do Not Know How to Behave at Entertainments Designed for Ladies & Gentlemen of Colour: William Brown’s African & American Theater (Chapel Hill: University of North Carolina Press, 2003). 25

American actor of the early republic, remained the exception, but his fame and success came mostly in Europe after doors continued to close for him in the

United States.28

All of this is not to say that African Americans did not possess the talents and desires to write, direct, produce, perform, and consume theater. Instead, this void illuminated the insidious and pervasive institutionalized racism of the

United States. Theater owners barred black Americans from fully participating in the most basic leisure activities, relegated them to the cheap seats of most theaters, or banned them outright from attending certain performances. White theater owners kept talented black men and women off the stages throughout the nineteenth century because theater was more than a leisure activity—it was the mirror that white Americans held up to themselves. White Americans preferred to conceive of their society as devoid of blackness.29

British imports were the single-greatest moneymaker in the antebellum theatrical world. Touring performances of Shakespeare and Jonson by acclaimed

British actors like William Macready played to sold-out houses for weeks at a time. While many white Americans often scoffed at European habits and

28 For more on Ira Aldridge and the limited access for black performers in the early republic and antebellum years see: Bruce A. McConachie, Melodramatic Formations: American Theatre and Society, 1820-1870 (Iowa City: University of Iowa Press, 1992); Bernth Lindfors, Ira Aldridge: The African Roscius (Rochester: University of Rochester Press, 2014). 29 For more on the political history of leisure spaces see: LeRoy Ashby, With Amusement for All: A History of American Popular Culture Since 1830, (Lexington, KY: The University Press of Kentucky, 2006); Lewis Erenberg, Steppin’ Out: New York Nightlife and the Transformation of American Culture (Westport, Conn.: Greenwood Press, 1981); Gunther Barth, City People: The Rise of Modern City Culture in Nineteenth- Century America (New York: Oxford University Press, 1980); Kathryn Glover, ed. Hard at Play: Leisure in America, 1840-1940 (Amherst: University of Massachusetts Press, 1992). 26 traditions, the theater welcomed any and all things British. Shakespearean dramas held prime billing in most American playhouses during the antebellum period. Other well-known plays by European imports like Marlowe and Moliere filled the remaining bills during the early antebellum years.

Here lay the earliest problem of representation for African Americans—not only were black bodies not being represented onstage, not even authentic

“American” bodies were being presented. Instead, European imports were transported across the Atlantic and lightly edited to appeal to American sensibilities about sex and race.30

Not all African Americans looked upon theaters as desirable spaces.

Various leaders in northern black communities sought to shut down theaters altogether because they contained dubious content and encouraged disturbing behavior within the audiences. Theaters and performers were constantly under siege from temperance societies and lecturers on Christian morality.31 Both white and black moral reformers considered theaters dens of iniquity that plagued cities, and the morality warriors had a point—alcohol, sex and sex workers, racial- intermixing, gambling, and rioting were all possible when one ventured out to a night at the theater. Some moral thinkers succeeded in winning passage of anti- theater laws as late as the 1860s. New York State’s Sunday-Theater Act of 1860

30 For more on European imports and their influence on the American theatrical tradition, see: David Grimsted, Melodrama Unveiled (Berkeley: University of California Press, 1987); Thomas Postlewait and Bruce A. McConachie, eds., Interpreting the Theatrical Past (Iowa City: University of Iowa Press, 1989); Jeffrey Mason, Melodrama and the Myth of America (Bloomington: University of Indiana Press, 1993) 31 N.L. Rice, et.al, The Christian Sabbath: Its History, Authority, Duties, Benefits, and Civil Relations, (New York: Robert Carter & Brothers, 1862), 22. 27 prohibited any performance on the stage during the Sabbath—and by extension any sale of alcohol to theater patrons.32

Debate over the morality of theaters, and the place of amusements in society, lasted throughout the antebellum period as theaters became more numerous and the specter of class and racial mixing reached a climax in the years leading up to the Civil War. Henry Bellows, Unitarian theologian and founder of the United States Sanitary Commission, went on a speaking tour specifically to debate the morality of the theater. He noted in his speech at New York City’s

Academy of Music in April of 1857 that for many Christians “the stage…is the most essentially wrong of all institutions, because it is the most attractive, dazzling, and complete of public amusement.”33 Bellows, however, used his platform to defend the concept of “amusement” in principle while decrying the societal ills sometimes accompanying the pursuit of simple amusements within the space of antebellum theaters. “Nor are the vices of society drunkenness, lust, and gambling, to be placed among the relaxations and amusements of mankind.

They are the serious and horrible outbreak of lawless appetites, which do nothing to recreate but only to destroy.” 34 Bellows was determined to speak to the health and well being of American society at large. “Society is the better, the safer, the more moral and religious for amusement.”35

The writings and speeches of on moral reformers illustrated the multitude of differing views on antebellum theaters in both the white and black

32 Ibid. 33 New York Tribune, April 29, 1857. 34 Ibid. 35 Ibid. 28 communities. The battle for equal access to theaters regardless of race began during a moment where many black activists argued to shut down those very same establishments. Patrick Rael’s Black Identity and Black Protest in the

Antebellum North highlighted the work of black activists to shut down theaters within cities. Black reformers lumped theaters in with grog shops and taverns as

“the most formidable barriers to the onward progress…the liberation of the enslaved…and the elevation of the enfranchisement of the free.”36 While some black activism was done on behalf of temperance and racial uplift through the denial of alcohol and public amusement, a parallel fight attempted to gain access to theatrical spaces.

*Theaters and Antebellum Riots*

Theatrical venues offered the perfect setting for racialized violence because of their interracial and interclass clientele.37 Racism was one of the central causes of theatrical riots, and the violence of these confrontations in the 1820s and

1830s prompted many northern municipalities to pass laws preventing interracial mixing in public accommodations.38 The riots were not solely the result of class animosities or anti-British sentiment, but also stemmed from

36 Patrick Rael, Black Identity and Black Protest in the Antebellum North, (Chapel Hill: University of North Carolina Press, 2002), 194. 37 Paul A. Gilje, Rioting in America, (Bloomington: Indiana University Press, 1996), 2, 11-17. 38 For more on the theatre of the Early Republic see: Mason, Melodrama and the Myth of America, 1-18. 29 deeply held white anxieties about the place of free African Americans in northern society.39

Antebellum crowd violence was fairly common; historian Paul Gilje asserted that “patterns of popular disorder were established during the early republic that would endure for more than one hundred years.”40 Riots erupted for myriad reasons, but all served a social function: punishing seemingly guilty parties, disputing unpopular election results, and defending ethnic or racial superiority. Gilje’s multiple works on rioting in the antebellum United States treat theatrical riots with great importance. He noted that often the general rowdiness on the part of theatrical audiences boiled over into full-blown racial or nativist riots.41

This work builds on Gilje’s assertion that rowdiness could sometimes “boil over,” and contends that in the cases of the three riots explored here, white dominance over the urban space was central to the motivations of the rioters.

Historians of free black communities in the antebellum North have been quicker to spot these links between urban violence and white anxieties, but they typically only connect race and theatrical violence when the actions are directed against black-operated theaters.42 It became clear in the language from newspaper

39 Paul Gilje in Rioting in America asserted that “whites repeatedly focused their rage on property that symbolized the black associational activity that asserted a separate African- American identity,” 91. 40 Ibid, 2. 41 Ibid, 183. 42 Shane White, Stories of Freedom in Black New York, (Cambridge, Mass.: Harvard University Press, 2002), 68-126. See also, Gilje, Rioting in America, 91; Rael Black Identity and Black Protest, 73-76. 30 sources and eyewitness accounts that race and the challenge to white authority in these spaces provided key elements in riling up the crowd.

A first example centers on the destruction of New York’s African Grove

Theatre by white rioters in the early fall of 1822. William A. Brown, African

American producer and playwright, had built a new theatrical space on Mercer

Street in New York City.43 Brown was one of the only successful African American theatrical entrepreneurs of the early republic, meaning that his venture lasted for longer than one year. Brown’s African Grove Theatre had been on the move after being forced out of multiple other venues in the city between 1820 and 1821 by threats of violence or white landlords unwilling to rent to him once they saw the steady stream of free African American patrons attending his shows each evening. Brown had moved into a relatively peaceful part of New York City, but his theater was close to white theaters. In 1822 Brown chose to rebrand his venture at the corner of Houston and Mercer Streets as the American Theatre— possibly to smooth over relations with white New Yorkers and remain as inclusive as possible.

On the evening of August 10, a group of young white men entered the newly built theatre—a building historian Shane White considered “one of the largest investments made up to that time by any African American entrepreneur, and certainly the most conspicuous”—and proceeded to physically harm William

43 For more on the African Grove see: Marvin McAllister, White People Do Not Know How to Behave at Entertainments Designed for Ladies and Gentlemen of Colour: William Brown's African and American Theater (Chapel Hill: University of North Carolina Press, 2003); and Errol Hill and James V. Hatch, A History of African American Theatre, (New York: Cambridge University Press, 2006). 31

Brown, the African American actors, and patrons. In the process, the crowd destroyed more than two hundred dollars worth of scenery, seating, and costumes.44 Gilje pointed out that “institutions that were a source of pride for blacks were the focal point for attacks by whites.”45 He specifically discussed black churches as sites of riotous behavior aimed at black communities. But theater historian Marvin McAllister made a specific point about William A.

Brown’s African and American Theater being a target for white violence. “But white aggression against seemingly superior African Americans was never limited to moral institutions; equally prideful black sites, like Brown’s economically and culturally menacing American Theatre, became targets.”46 Black churches were not the only significant symbol of a “distinct African American identity” that threatened northern white people. Theaters too could be viewed as dangerous because they offered African Americans a forum in which to express their cultural and political views.

Brown and members of the American Theatre company brought charges against the rioters, but all were dismissed.47 Despite knowing the identity of the man who beat William Brown, no case was ever entered into the record after charges were filed. Some historians believed this to be evidence of a conspiracy or a cover-up, and while that may be true, the event sent a message to both African

American entrepreneurs and theatrical audiences more broadly: violence against

44 White, Stories of Freedom, 88. 45 Gilje, Road to Mobocracy, 153-155. 46 McAllister, White People Do Not Know How to Behave, 143. 47 White, Stories of Freedom, 95-96. 32 black bodies and black-owned property was acceptable and would not be punished by law.48

Twelve years later, in July of 1834, one of New York’s more famous “race riots” of the nineteenth century occurred, and it too centered on a theatrical venue.49 The so-called “Farren Riot”—named for the British actor William

Farren—began from a clerical error. The manager of the Catham Street Chapel double-booked the venue on July 7, and a brawl began outside the doors between the New York Sacred Music Society which was to rehearse for a concert that evening and black New Yorkers gathering for a belated celebration of the anniversary of New York State’s emancipation law, which passed on July 4,

1827.50 This small melee, as Gilje states, “boiled-over” into four days of widespread rioting, looting, burning, and physical violence aimed at wealthy New

York abolitionists and free black neighborhoods.

The riots were dubbed the Farren Riots in theatrical histories because of the central place of George Farren and his engagement at the Bowery Theatre.

Farren was the stage manager of the Bowery Theater and an English-born abolitionist. Throughout the week leading up to the riot, pro-slavery New Yorkers had accused Farren of “using language derogatory to the character and insulting to the feelings of Americans.”51 On the night of July 9, that same crowd came to

48 For more on the potential conspiracy theory see: White, Stories of Freedom, 93-96 and Gilje, The Road to Mobocracy, 156-157. 49 It should be noted that just three months prior in April massive riots occurred around the election results: Gilje, Road to Mobocracy, 138-142; “New-York Riots,” Newburyport Herald, April 4, 1834, America’s Historical Newspapers. 50 New Hampshire Sentinel, July 17, 1834. For a detailed secondary account of the Farren Riot see: Gilje, Road to Mobocracy, 162-170. 51 Massachusetts Spy, July 16, 1834. 33 the Bowery Theatre to attack Farren. They jeered him to the point that the performance stopped and the watchmen evicted the crowd from the theater.

The crowd then traveled to the Rose Street home of the American abolitionist, Lewis Tappan, and caused significant damage to his property before entering a known free black neighborhood and looting or setting fire to more than fifty residences.52 Some historians merely hinted at the connection of

Farren, an English-born theater manager, to Lewis Tappan and the free black neighborhood as a source of potential motivation for the riot, but the newspaper record offered a much clearer link. The crowd reportedly believed that Tappan and Farren were responsible for “getting up the meeting of the blacks in Chatham

Street Chapel” and over the next three days attacked three separate African

American churches on Centre, Anthony, and Bowery Streets. It also demolished a black school house on Orange Street and multiple homes.53 “The mob compelled occupants of [every] house” to set light at the windows, and wherever colored people were seen, or no lights were shown, the work of destruction commenced….many blacks were shamefully abused and injured, some of them severely.”54

The white men in the violent crowd may have had nativist tendencies, but their real issues with Farren were his comments in support of the American Anti-

Slavery Society. The British actor represented abolitionism, and they used his appearance onstage in the Bowery as an excuse to inflict violence on a large

52 New Hampshire Sentinel, July 17, 1834. 53 Salem Gazette, July 15, 1834. 54 Massachusetts Spy, July 16, 1834. 34 portion of New York’s free black community over the course of a four-day reign of terror.

Finally, we come to the Astor Place Riot, fifteen years after one of the largest and most costly race riots in New York City history, and over a decade before the incendiary draft riots in the summer of 1863. On the evening of May

10, 1849, a crowd gathered outside the Astor Place Theatre in New York City to pay a visit to acclaimed British actor, William Charles Macready. They brought clubs, sticks, and various improvised weapons with which to express their feelings about the man. The crowd cheered in support of a man named Edwin

Forrest, and invoked his name against Macready. For a brief moment, the crowd only hurled insults, but as the roar grew louder they began to pelt the stage with debris, causing the play to prematurely end. Macready fled the theater as the crowd clashed with the New York militia over the next six hours, leaving twenty- one New Yorkers dead and more than two hundred rioters, police, and militia dead or wounded.55

On its face, the riot did not seem to have anything to do with race, but a deeper exploration of the accounts from eyewitness revealed the racial context.

Holding a central place in histories of both New York City and antebellum urban spaces, this violent event provides an understanding of the outrages wrought on black bodies in and around theatrical venues.

55 For detailed descriptions of the events leading up to the Astor Place Riot, as well as the events of the riot itself, see: Nigel Cliff, The Shakespeare Riots: Revenge, Drama, and Death in Nineteenth-Century America (New York: Random House Inc., 2007); Richard Moody, The Astor Place Riot (Bloomington: Indiana University Press, 1958); Leo Hershkowitz, “An Anatomy of a Riot: Astor Place Opera House, 1849,” New York History 87:3 (2006): 277-311; The National Era, May 17, 1849. 35

By 1826, William Charles Macready had solidified his place on the London stage, and brought his signature performance of Macbeth to New York City in that same year in order to tap into the American fascination with Shakespeare.

He was known to many of his admirers, both male and female, as the consummate English gentleman, and had been traveling between New York and

London for various engagements for twenty-three years. He was fifty-six years old, and on May 7 of that year, he began his farewell run of Macbeth at the Astor

Place Theatre.56

Edwin Forrest, by contrast, was a young man of 43 at the time and had struggled to gain international acclaim. His American fame, though, was unparalleled. Many theater critics viewed American actors like Forrest as inferior to those with training on the London stage. By the mid-1830s, virtually all of the actors at New York’s Park Theatre, which was seen as the most established theatre in the States, were “English imports.”57 By the 1840s, however, Forrest had broken through and was booking performances throughout the South and

West, until finally landing an engagement at the newly opened Bowery Theatre.

Forrest was loud, brash, and reportedly uncompromising in his desire to be at the top of his profession.58

56 For more on William Charles Macready see: William Charles Macready, The Journal of William Charles Macready, 1832-1851. J.C. Trewin, ed. (Carbondale: Southern Illinois University Press, 1967); Cliff, The Shakespeare Riots, Chapter 1 and Chapter 3. 57 Cliff, The Shakespeare Riots, 8. 58 For more on the life and career of Edwin Forrest see: Lawrence Barrett, Edwin Forrest (New York: Benjamin Blom, 1969); Bruce A. McConachie, “The Theatre of Edwin Forrest and Jacksonian Hero Worship,” in When They Weren’t Doing Shakespeare: Essays on Nineteenth Century British and American Theatre, eds. Judith L. Fisher and Stephen Watt, 3-18 (Athens: The University of Georgia Press, 1989); Moody, Edwin Forrest: First Star of the American Stage. 36

The rivalry between these two men exploded in 1849, but had been simmering since they began publicly critiquing one another throughout the

1840s, culminating in a confrontation in Edinburgh, Scotland, in 1846.59 Forrest had received a flurry of poor reviews in London, and was adamant that during

Macready’s final visit to the United States he would receive the same hospitality.60 Macready began his performance of Macbeth on May 10 facing a wall of hissing and booing. Forrest supporters had gathered more than a thousand protestors in the theatre, spending hundreds of dollars so that at a specific moment during Macready’s performance, banners unfurled reading,

“You Have Been Proved A Liar” (speaking to Macready’s persistent claims that

Forrest had hissed him three years prior in Scotland) and “No Apologies─ It is

Too Late.”

By the third act that evening, the crowd was chanting “three cheers for

Edwin Forrest” and threw three seats onstage from the balcony, which caused the musicians to scatter and the curtain to be brought down early on Macready’s opening night. The crowd continued to cheer once the curtain had fallen, and at one point roared a sarcastic refrain, “three cheers for Macready, Nigger Douglass, and Pete Williams.”61 Pete Williams was the pastor of St. Phillips African

59 A rejoinder to “The replies from England, etc. to certain statements circulated in this country respecting Mr. Macready,” (New York: Stringer & Townsend, 1849), 31. The account in this publication, authored anonymously by “An American Citizen,” details the events leading up to the alleged “hissing” and states that the testimony came from a sheriff in Edinburgh, who had clearly witnessed a large man matching Forrest’s description trying to leave the theater unnoticed after the heckling had occurred. 60 For more on Forrest’s trip to London, see: Cliff, The Shakespeare Riots, 87-110 and 130-150. For more on Forrest’s plan to ruin Macready’s final American tour see: Cliff, The Shakespeare Riots, vi-xx. 61 New York Herald, May 8, 1849. For more on the events of the evening of May 7-10, see: Cliff, The Shakespeare Riots, xvii-xxi. 37

Episcopal Church on Centre Street—one of the churches attacked during the

Farren riots fifteen years earlier.

Frederick Douglass had been in the city earlier that week giving a speech for the American Anti-Slavery Society. His visit provided the racial dimension behind the actions of the rioters at Astor Place on May 10. While giving a speech to the American Anti-Slavery Society, Douglass played host to Julia and Eliza

Griffiths who had arrived in New York a few days before. Douglass and the two white, English ladies traveled the city together, both of the ladies on his arm.

They attempted to dine in several locales. Douglass recounted that not only were the New Yorkers, both wealthy and poor, utterly disgusted with the sight of the ladies on his arm, they vocalized their disgust saying, “‘Look!’ ‘Look!’ ‘Where?’

‘At, what?’ ‘Why, that BLACK! BLACK! BLACK!’”62 The sight of a black man walking with two white women was something that they could not silently abide.

Douglass was horrified by these reactions, and viciously attacked the racism of all classes of New Yorkers, forcefully pointing out their hypocrisies: “In the same

Franklin Hotel, in which we could not be allowed to dine on account of our color, we saw a large number of colored waiters in the nearest proximity to white gentlemen and ladies without offense.”63 White northerners accepted black bodies in their public spaces, but only when their presence did not threaten the racial hierarchy. Black men could serve as waiters in a restaurant, but could not dine with white friends without being harassed.

62 The North Star, May 25, 1849. 63 Ibid. 38

During a riot supposedly over a theatrical rivalry, two prominent African

American men were named because the real danger was not Macready and his criticism of Forrest but what Macready represented: British ideals concerning the abolition of slavery. To working-class, white New Yorkers he threatened their position in the racial hierarchy of the United States.

The Astor Place Riot ended rather quickly. The police and militia, possibly having learned their lesson in 1834, quickly quelled the uprising, though the casualty list was much higher on both sides: twenty-one dead and more than two hundred estimated wounded. Widespread property damage to black neighborhoods and abolitionist’s homes did not occur, but not for want of trying.

On the morning of May 11, following the deadly use of force by the police and militia, the rioters met at City Hall Park to draft resolutions against the

“aristocracy” responsible for the deaths of their comrades. The term “aristocracy” could have been replaced with “Englishmen” or “abolitionists;” the crowd sought to place the blame for the riot on those who had stirred racial tensions by allowing free black men like Douglass and Williams to believe they were of the same class as the white men of the crowd.

The second resolution was most compelling because it provided a link to the disparaging cries of Douglass and Williams the night before. “We mingle our tears and lamentations…[to those]…who have fallen victims to the pride, tyranny, and inhumanity of those who…have shown a higher regard for the applause of those who courted a fatal issue, than for the lives of their fellow-citizens.”64 That

64 National Aegis, May 16, 1849. 39

“fatal issue” was slavery, and “those who court” it were abolitionists like the

Tappan brothers and George Templeton Strong—the latter of whom spent the morning of May 11, 1849, barricading his home and readying his pistols, expecting the rioters to attack abolitionists as they had in 1834.65

Later that month, Douglass, in his North Star cheered the actions of police and militia in killing white rioters hell-bent on destroying African American property. He lamented that the government of Philadelphia, rocked by its own race riot in 1849, did not punish rioters with such vigor as earlier that month in

New York. “Shame upon the guilty city! Shame upon its lawmakers, and law administrators! – Philadelphia will never be redeemed from the curse of mobs, until it copies the example set by the government of New York in the late Riots in

Astor Place”66 Douglass not only supported the force leveled against the crowd during the Astor Place Riot of May 10, 1849, but used the actions of the New York

City government and militia as an example to other cities dealing with nativist, racist rioters.

Douglass, as he did so often, presaged the consequences of white

Americans’ lack of restraint. Terror wrought on black bodies by white hands was widespread throughout the antebellum years in spaces far north of the Mason-

Dixon Line. White men and women saw free black communities and their institutions as significant threats to their way of life and took advantage of opportunities to do those institutions harm. Riots began for many reasons, but theatrical riots in particular afforded the opportunity for violent white crowds to

65 Cliff, The Shakespeare Riots, 233. 66 Frederick Douglass, The North Star, May 25, 1849. 40 challenge the place of black bodies in important cultural spaces. This violence continued throughout the nineteenth century, and only began to end once free

African American patrons and performers began suing for their rights as citizens after the passage of the Fourteenth Amendment.

*Black Activism, Federalism, and the Law*

The realization of equal protection under the law for all citizens regardless of race required a reinterpretation of the U.S. Constitution. In the decades after the nation’s founding, the understanding among the majority of citizens was a legal culture of voluntary association with a particular state, a focus on the freedom of the individual, and a republic led by an elite class who could be trusted to act virtuously for the good of the people.67 The federal government was not directly involved in the lives of citizens. This was evidenced by the dearth of federal laws dealing with individual rights and freedoms—those were left up to the individual member states.

Black Americans of the antebellum period used a unifying ideology of both state and national citizenship to push for equal rights. In an 1845 convention meeting in Philadelphia, the black activists presented signed a petition urging all black Americans to pursue the “national rights” of all citizens as secured by the

67 Foner, The Second Founding, 8; R. Owen Williams, “The Civil Rights Act of 1866 at the Supreme Court,” in Christian Samito, ed. The Greatest and Grandest Act: The Civil Rights Act of 1966 from Reconstruction to Today (Carbondale, Ill.: Southern Illinois University Press, 2018), 163-165. 41

U.S. Constitution.68 Federalism erected barriers to a unified idea of citizenship and equal rights. Rather than view themselves as “citizens of the Commonwealth of Pennsylvania,” the black conventioneers in Philadelphia argued for a national idea of citizenship. This allowed them to advocate for crimes against black citizens throughout the nation, and invoke their federal rights to life, liberty, and the pursuit of happiness. Black activists throughout the country attempted to force the federal government to grant them equal protection by invoking the idea of national citizenship.

Local and state laws governing black bodies in public spaces existed in the early colonial period and throughout the early republic, but until the 1866 Civil

Rights Act no explicit federal law protected civil rights regardless of race. Early statutes varied greatly from state to state and city to city. A variety of factors including the population density of the African American community, its geographical location within the state, and the ideologies of the neighboring white communities combined to determine how African Americans would be treated.69 Many northern politicians throughout the antebellum period argued against additional immigration of African Americans into their states, and three

68 Quoted in Bonner, Remaking the Republic, 39. For new directions in the scholarship on federalism see Rachel Shelden, “Introduction: Federalism in the Civil War Era,” The Journal of the Civil War Era 9, no. 4 (December 2019): 499-503. For more on federalism and its impact on the evolution of black citizenship in the early republic and antebellum period see: Bonner, Remaking the Republic, 40-45; Edwards, The People and Their Peace; Anne Twitty, Before Dred Scott; Novak, “The Legal Transformation of Citizenship in Nineteenth-Century America,” 90-97; Douglas Bradburn, The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804 (Charlottesville: University of Virginia Press, 2009). 69 See, Vincent Harding, There is a River: The Black Struggle for Freedom in America (New York, 1982), 117-119; and James O. Horton, Free People of Color: Inside the African American Community (Washington, D.C., 1993), 151-152. 42 northern states—Illinois in 1848, Indiana in 1851, and Oregon in 1857—passed amendments into their state constitutions that specifically prohibited black immigration.70

African American rights in the North during the antebellum period existed in a constant state of flux. A state would pass a statute limiting the rights of free black men and women, and then repeal the law a few years later. For instance,

Ohio’s black laws restricting the rights and freedoms of free black Ohioans existed since the 1830s, but were repealed in 1849.71 Regional diversity also played a role: certain northern cities were considered hotbeds for abolition while others within the same state maintained segregation for decades after the Civil

War had ended. Black northerners lived in this constant state of anticipation and dashed hopes. Those who were drawn to the political work of the black northern counterpublic knew they had to be ready to take advantage of political moments when opportunities arose.

State governments spent the antebellum years crafting various laws dealing with the status of African-descended peoples within their borders. These laws were wildly different from state to state even within the same region. In

1860 in New England, for example, a black man and white woman could legally marry in Massachusetts, Vermont, and New Hampshire, but could not in Maine or Rhode Island.72 In 1855, only five northern states allowed African American

70 Leon Litwack, North of Slavery: The Negro in the Free States, 1790-1861 (Chicago, 1961), 70. 71 Paul Finkelman, “Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North,” Rutgers Law Journal 17 (Spring and Summer 1986), 427-28. 72 Franklin Johnson, State Legislation Concerning the Free Negro, 51-56. 43

men to vote without hefty property-owning restrictions.73 The irony was that during this period in American history, legal rights were being explicitly expanded for white men; the Jacksonian Democratic revolution paved the way for universal white manhood suffrage as states began to codify exclusion from suffrage based on color.74

But even the states were silent when it came to crafting legislation dealing with the rights of access to public accommodations. As stated above, the issues of

“public” versus “private” fell under the realm of common law understandings of property—the government did not need to craft legislation. Instead, municipal authorities, judges, and lawyers settled those matters in court using legal precedents rather than relying on statutes.75

Public accommodation is a tricky term to define because it is often misread or misconstrued as a “publicly-funded” accommodation. This is not the case. The term comes from common law practices denoting any establishment or accommodation created and serving members of the public for specific purposes.76 Thus, a privately owned inn, boarding house, railroad car, or tavern

73 These states were Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. New Jersey and Pennsylvania restricted black male suffrage in the early nineteenth century, and New York installed strict property requirements. One estimate stated that in 1855, only 16 black men in the entire state of New York could vote. For more on voting rights by state see: Johnson, State Legislation Concerning the Free Negro, and Foner, The Second Founding, 93-124. 74 William A. Blair, “Vagabond Voters and Racial Suffrage in Jacksonian-Era Pennsylvania,” The Journal of the Civil War Era 9, no. 4 (December 2019), 569-585. 75 Sandoval-Strauss, Hotel, 288-294. 76 These common law versus constitutional law debates will be taken up more in Chapter 2. A.K. Sandoval-Strausz does a brilliant job highlighting the use and evolution of common laws concerning innkeepers and carriers and their application to the African American fight for civil rights. See A.K. Sandoval-Strauz, Hotel: An American History, (New Haven: Yale University Press, 2007), 288-294. 44 was considered a “public accommodation” under most state and federal statutes because lawyers and adopters used the common law understanding of the rights of travelers to attain shelter and boarding. The debate surrounding expansion of civil rights legislation to “public accommodations” clashed between the rights of patrons seeking the accommodation under common law practices and the right of the proprietors to deny access.77

For most Americans in the antebellum years, the legal system was a local entity that dealt with concerns over property—it was an establishment that protected the individual freedoms implied by the Constitution but not explicitly mentioned in any particular article or amendment.78 It took—as the foremost legal scholar of the nineteenth century, Laura Edwards, stated—the “turmoil of war” for those legal systems and their underpinnings to be “intentionally dismantled or unintentionally eviscerated” before African Americans could use the state and federal governments to enact real change.79

The Civil War years offered new opportunities for free black northerners to expand their access to the political sphere. Many black activists in northern cities used the war years as a catalyst for social change. Historian Judith Giesberg noted that the Civil War offered opportunities for black women to become more involved in the public spheres of northern cities. “Wartime benevolence work provided black women with spaces in which to share their humiliation at being

77 Sandoval-Strausz, Hotel, 294. 78 Edwards, A Legal History of the Civil War and Reconstruction, 1-10. 79 Edwards, A Legal History of the Civil War and Reconstruction, 3. 45 denied access to the city, to experience a feeling of racial and gender solidarity over the issue, and opportunities to act on their convictions.”80

Black women brought the fight over public accommodations to the home front when they pushed for equal access to streetcars in major northern and western cities. They recognized the common law foundations of equal rights legislation—that is to say, they understood that bringing their cases to court allowed them to effect change using legal precedent.81 Black equal rights activists used these tactics throughout the Reconstruction era and into the twentieth century. Courts became the sites where laws were argued and precedents written.

Theaters and places of entertainment faded into the background during the wartime push for equal rights. The more public fights centered on transportation and equal access to public schools for black children. In her study of wartime activism in the north, Giesberg only mentioned theaters once. She quoted a white opponent of the equal rights protests and offered a window into the attitude of white northerners and the anxieties they felt about desegregating any aspect of public accommodations. The author of a sardonic editorial cartoon bemoaned the “good time coming…when our colored brethren shall come into the full inheritance of their rights—shall sit in cars and the dress circles of theatres, with none to molest them or make them afraid.”82 The cartoonist saw the desegregation of streetcars as the first step to full social equality, and believed that the integration of theater audiences was the next logical step. The court case

80 Judith Giesberg, Army at Home: Women and the Civil War on the Northern Home Front, (Chapel Hill, University of North Carolina Press, 2009), 94. 81 Sandoval-Strausz, Hotel, 210-214. 82 Ibid, 102. 46 made no mention of theaters and concerned only public transportation, but in the anxious minds of many white northerners, removing one brick of segregation caused the wall of white supremacy and their “distinctions of caste and color” to crumble.83 And they saw clear signs that those distinctions were disappearing almost immediately after the Civil War ended. Federal legislation began to dismantle local and municipal customs that separated black and white northerners.

Fights to expand civil rights and social equality took a secondary place to abolition, but they were still present. Like the black Philadelphians in 1845, many activists believed that federal recognition of black citizenship and abolition went hand in hand. Black activists in the antebellum years fought first for ending slavery, and the efforts on behalf of free blacks to fight for expanded civil rights were almost always offered up as a subsequent phase of the freedom struggle.84

Emancipation raised the question of the nature of freedom and the possibility for federal action on civil rights, but even white Republicans who supported emancipation balked at the prospect of black and white social equality.

The Civil War offered at least male African Americans the chance to press the claim for equality by serving in the United States Colored Troops. Black military service prompted many of the conversations on black citizenship.

83 Ibid. 84 Daniel R. Biddle and Murray Dubin, Tasting Freedom: Octavius Catto and the Battle for Equlity in Civil War America, (Philadelphia: Temple University Press, 2010); Brown, “Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom”; Kate Masur, An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. (Chapel Hill, University of North Carolina Press, 2010); Hugh Davis, “The Pennsylvania State Equal Rights League and the Northern Black Struggle for Legal Equality, 1864-1877,” The Pennsylvania Magazine of History and Biography 126:4 (October 2002), 611-634. 47

However, the “citizenship” that free black men and women aspired to was not a necessarily a citizenship that granted any particular social or political rights. In

1863, United States Attorney General Edward Bates was tasked with studying the question of citizenship in U.S. law since the nation’s founding and assessing the attitudes of white northerners towards African Americans. He concluded that during the Civil War “northerners more and more came to think of their black neighbors as citizens in some meaning of the word,” but that only a small percentage “could conceive of them as voters.”85 Furthermore, he argued that

“the vast majority of Republicans had come to believe that African Americans were citizens,” but that the word “citizen” meant solely one who belonged to the nation, not necessarily one endowed with social and political rights like suffrage or holding elected office.86

This balancing act by white northerners frustrated black activists who saw the war as an opportunity to assert not only that they were citizens, but also that citizenship meant equality with white Americans. Beginning in 1864 and through the end of the war and Reconstruction, the National Equal Rights League and its numerous state auxiliaries held annual conventions where members articulated their demands for equality.87 Black writers like Frances E. W. Harper, T. Thomas

Fortune, Frederick Douglass, and W. E. B. Du Bois wrote treatises on the

85 Michael Les Benedict, “’Membership of a Nation, and Nothing More’: The Civil Rights Act of 1866 and the Narrowing of Citizenship in the Civil War Era,” in The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian G. Samito, (Carbondale: Southern Illinois University Press, 2018), 9-36 86 Ibid. 87 The Weekly Anglo-African, April 17, 1860; New National Era, January 18, 1872; New National Era, January 25, 2872. 48

meaning of social equality and its importance for the future of the nation.88 Their tenacity helped convince Radical Republicans in Congress that federal protections were needed to help enforce the changes brought by emancipation.

Between 1864 and 1866, black activists, white southern violence against formerly enslaved people, and the political pressure of Radicals like Senators Thaddeus

Stevens and Charles Sumner resulted in the first federal civil rights legislation in the nation’s history.

The 1866 Civil Rights Act was the culmination of African American activism, abolitionist politics, and a strong federal government controlled by a single political party. The strong federal government under Republican control allowed the law to pass despite a presidential veto. The act itself was not aimed at northern citizens: its goal was to offer protections to formerly enslaved African

Americans and white loyalists living in the formerly Confederate states. Similarly, the final draft of the Act was not aimed at creating a society without racial separation. But once African American activists and their white allies saw the federal government offer them equal protections, they began to use the language of the act to push for radical change at the state and local level. For many in the

North this was an unintended and unanticipated consequence of legislation aimed at protecting formerly enslaved persons.89

88 The New Era, January 27, 1870 89 For a thorough and detailed account of the Civil Rights Act of 1866, its passage and subsequent use throughout American legal history see: George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 (New York: Oxford University Press, 2013). 49

The 1866 Act was the first federal piece of civil rights legislation in the history of the United States. Legal historian George Rutherglen argued that

“before the passage of the Civil Rights Act of 1866, the term ‘civil rights’ carried no special connotation that applied specifically to racial discrimination and equal rights.”90 Instead, Rutherglen and others argued that “civil rights” before the flurry of legislation after the Civil War referred more generally to the “rights of private individuals in dealing with one another at common law.”91 The language of the law accomplished two goals: it granted birthright citizenship (except for

Native Americans) and offered specific federal protections for those citizens.92 Its first clause read:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.93

90 Ibid, 41. 91 Ibid. 92 Deborah A. Rosen, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880 (Lincoln: University of Nebraska Press, 2007); Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018). 93 “Statutes at Large,” Congressional Globe 31 (1866), p. 27 50

The law was enacted to protect newly freed African Americans in the South from both physical and economic violence. The Black Codes enacted throughout the southern states during and immediately following the Civil War were aimed at curtailing the rights of black southerners in the wake of freedom. Vagrancy laws, sharecropping contracts, and legal limitations—such as African Americans not being allowed to serve on juries or testify in court against white citizens—limited black access to southern political and economic society.94

There was nothing in the act, though, regarding access to public accommodations. The earliest federal civil rights legislation did not guarantee what many African American citizens believed were fundamental civil liberties safeguarding the equal right to leisure. Richard G. L. Paige, a formerly enslaved man who became a member of the Virginia House of Delegates wrote in 1872 that

“we cannot go to a decent place at the theater.”95 Access to public accommodations was a focal point for many seeking equal rights, but the Civil

Rights Act of 1866 was not concerned with equal access to accommodations throughout the nation. It was concerned with Black Codes and protecting southern African Americans against white violence in former Confederate states.

The Civil Rights Act of 1866 directly combatted the Black Codes by focusing on economic and legal privileges. The first ten rights granted by the law all dealt with access to a fair economy and a fair legal system: “enforce contracts,

94 For a specific history of Black Codes see: W.E.B. Du Bois, Black Reconstruction in America (New York: Oxford University Press, 1935), 104-145; Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), 198-216. 95 Congressional Globe, 42nd Congress, 2nd Session, 1872, 726, 432. 51 to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.”96 These were fairly straightforward answers to southern Black Codes. But the final words of the first section were painfully vague: “and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens” is open to interpretation.

Which laws and proceedings are specific to the “security of person and property?”

Could this include access to public accommodations?

The freedom struggle in the North centered on education, marriage, and public accommodations, yet the 1866 act dealt with none of these issues.

However, it did set a precedent for how civil rights legislation would be crafted in the decades to follow. It modeled the type of language and punishments that accompanied violations of future civil rights laws. The second section of the Act gave the federal government the authority to enforce the first section, and this was where the act gained its teeth:

And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.97

96 “Statutes at Large,” Congressional Globe 31 (1866), p. 27 97 Ibid. 52

As Eric Foner stated “the Civil Rights Bill represented the first attempt to give meaning to the Thirteenth Amendment, to define in legislative terms the essence of freedom.”98 The Civil Rights Act was aimed to define freedom for the formerly enslaved, but it offered avenues for all black Americans to access rights and privileges previously denied.

The legislation terrified many white northerners, especially Democrats who considered the Civil Rights Act of 1866 as not only a horrible overreach of federal authority to affect the day-to-day lives of citizens, but also as a sign of the end of white supremacy. On February 3, 1866 after the Act passed in Senate, The

Patriot, a leading Democratic party newspaper in Harrisburg, Pennsylvania, led with an article titled “More Niggerism!” It read, “The Rump Senate yesterday

(2d) passed the ‘Civil Rights’ bill, which undertakes to nullify all State laws in relation to citizenship and make negroes equal to whites in civil and political rights IN ALL THE STATES OF THE UNION.”99 The Democrats of Harrisburg were clearly concerned with the federal government’s trampling of state law.

More importantly, they were terrified that this law was written not solely for the

South as a Reconstruction measure but applied equally to “ALL THE STATES OF

THE UNION” as they emphasized so boldly.

The protection of white supremacy was vital to many white northerners.

The article in the Harrisburg Patriot went on to print the voting results in the

Senate and applaud the Democratic Senators who voted “nay.” “As heretofore in all the negro measures of the Disunionists, the Democracy are found voting

98 Foner, Reconstruction, 244. 99 The Patriot, February 3, 1866. Emphasis is the original author’s. 53

solidly for the White Race, and for the Union and its perpetuity.”100 White northerners saw this legislation as potentially destructive to the “White Race” and their racial supremacy in the United States. The debates over the law in the

House and Senate revolved around white fears of racial intermarriage and desegregated education.101 The threat to their way of life was palpable.

But while white northerners ranted and raved, black northerners rejoiced and regrouped. The Civil Rights Act of 1866 and the subsequent passage of the

Fourteenth Amendment to the United States Constitution finally offered legal recourse against discriminatory actions. The same activists fighting over streetcars and schoolhouses during the Civil War with limited tools like boycotts and petitioning now had access to the courts. And it was in the courthouses of northern cities where the war for equal access to theaters and public spaces was waged.

100 Ibid. 101 Foner, Reconstruction, 243-251. 54

Chapter 2

The Curtain Rises: Reconstruction Offers Hope, 1866-1882

On a Thursday evening in April 1874 Rachael Andessa Peer and her husband, Pusey Anthony Peer—both of them African American citizens residing in Philadelphia—attempted to enter the city’s Arch Street Theatre. They were some of the hundreds of Philadelphians who turned out to support the city’s police fund for the benefit of the upcoming Centennial Exhibition.102 The couple purchased reserved tickets and began to enter the theater when an employee pushed them away from the entrance door shouting, “clear them niggers out.”103

The theater’s ushers forcibly removed the Peers from the premises, resulting in injuries to Mrs. Peer and significant damages to their personal property. Two years later, in 1876, Pusey Anthony Peer sued the theater’s white manager in court and won.

The Peers employed tactics similar to African American activists during the Civil War years, but in 1876 federal law was now on their side. The 1875 Civil

Rights Act articulated specific rights granted to citizens of the United States regardless of race. Like the black women who fought streetcar segregation in San

Francisco and Philadelphia, the Peers brought their case before the court to force the justice system to make a judgment.104 Whether consciously or not, the Peers

102 The Philadelphia Inquirer, October 31, 1878. 103 Drew v. Peer 93 PA 234 (1880). 104 Judith Giesberg, Army at Home: Women and the Civil War on the Northern Home Front, (Chapel Hill, University of North Carolina Press, 2009), 91-94; Daniel R. Biddle and Murray Dubin, Tasting Freedom: Octavius Catto and the Battle for Equlity in Civil War America, (Philadelphia: Temple University Press, 2010); Brown, “Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from 55 pressured the judiciary to expand the legal precedents concerning the rights to equal access. While the case was not tried in a federal court, the language of the

1875 Civil Rights Act appeared throughout the proceedings.

The case made its way to the Pennsylvania Supreme Court where the arguments made particular reference to the 1875 act. Peer demanded that Drew as the manager of the theater was responsible for the actions of her employees, and thus owed the couple damages. Justice Thayer reviewed the facts of the case to verify that “there was no evidence of any regulation excluding colored persons from the theatre.”105 This was an important point of emphasis in the case because evidence of a standardized practice of exclusion was a clear violation of the 1875

Civil Rights Act.

Federal legislation was the catalyst for the Peers’ legal battle, and they used national law in a municipal setting to fight discriminatory local practices.

The Peer’s case was an example of how codified federal equal rights legislation could overturn local customs and practices that created segregated public spaces.

In this case, the white theater manager argued that she “had a right to exclude persons of color from her theatre, and if, upon finding that they were not permitted to enter, they refused to retire, she was authorized to compel them so to do, using no more force than was necessary.”106 The Pennsylvania Supreme

Court, in its affirmation of the Court of Common Pleas decision, made a point to

Slavery to Freedom”; Kate Masur, An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. (Chapel Hill, University of North Carolina Press, 2010); Hugh Davis, “The Pennsylvania State Equal Rights League and the Northern Black Struggle for Legal Equality, 1864-1877,” The Pennsylvania Magazine of History and Biography 126:4 (October 2002), 611-634. 105 Drew v. Peer 93 PA 234 (1880). 106 Ibid. 56 refuse this particular argument, judging that Drew as proprietor had no right to exclude patrons based on the color of their skin.107 Federal laws overruled Drew’s local customs.

Between 1866 and 1882, African American litigants used their understandings of federal citizenship to fight segregation in local and state courts. The Civil Rights Acts of 1866 and 1875 provided the basis for this collision between local, state, and federal laws. Republicans in Congress were quick to pass the Civil Rights Act of 1866 granting equal protection as citizens of the United

States. But that law did not speak to any specific rights and privileges.

Nevertheless, almost immediately after the passage of the 1866 Civil Rights Act,

African Americans used it to sue in municipal and county-level courts throughout the northern states.108 Some of the cases explicitly mentioned the language of the act, but all of them were based on the relationship of public and private accommodations to the laws governing the civil rights of citizens.

Federalism and its complicated web of local, state, and federal laws has hidden a layer of black activism during Reconstruction that fought for equal rights within the local and state courts. This chapter examines fourteen such cases that centered on federal civil rights legislation between 1866 and 1875,

107 Ibid. There is additional language in Supreme Court Justice Sterrett’s decision that speaks to the act of purchasing a ticket in a theater and being deprived of ingress and egress to and from the building. “We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.” 108 This chapter examines fourteen such cases that challenged either the 1866 or 1875 Civil Rights Acts. The breakdown of states is as follows: New York-6, Pennsylvania-2, D.C.-2, Massachusetts-1, Iowa-1, Indiana-1, Illinois-1. 57 before considering the monumental 1875 act itself. With the 1866 and 1875 Civil

Rights Act, the federal government altered the meaning of citizenship. African

American litigants then used that new language of national citizenship in their local and state courtrooms, and attempted to set legal precedents that would protect and enforce those national rights. Similar to the lawsuits brought by formerly-enslaved African Americans in local southern courts, these northern black litigants sought protection under the federal law within the walls of their local courtrooms.109

Consequently, state and municipal laws and practices cannot be ignored when telling the larger story of civil rights in the North. While major laws and court decisions were being handed down in Washington, D.C. that defined federal citizenship, black northerners were being shut out of streetcars, hotels, and theaters in blatant disregard for newly adopted federal statutes. If the local authorities refused to bring charges or arrest perpetrators, state and federal equal rights laws were toothless. The messiness of laws versus local customs meant that white northerners intent on barring access to black Americans could do so with

109 For more on southern African American litigants see: Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015); Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009); Diane Miller Sommerville, Rape and Race in the Nineteenth-Century South (Chapel Hill: The University of North Carolina Press, 2004); Hannah Rosen, Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (Chapel Hill: The University of North Carolina Press, 2009); Kate Masur, An Example for All the Land: Emancipation and the Struggle Over Equality in Washington, D.C. (Chapel Hill: The University of North Carolina Press, 2010); Cynthia Greenlee, “‘Due to Her Tender Age’: Black Girls and Childhood on Trial in South Carolina, 1885-1920” (PhD diss., Duke University, 2014).

58 impunity because the federal and state laws were constantly being challenged, re- written, or struck down completely.110 This messiness is precisely the reason to focus on local actions in northern cities.

The years after the Civil War saw a tremendous concentration of power by the federal government, but much of that power was aimed at the southern states formerly in rebellion against the United States.111 The war broke open several lingering debates over constitutional ambiguities regarding the rights of states, the rights of the federal government, and questions of citizenship. These ambiguities in part led the Northern Republican-controlled Congress to attempt to resolve questions concerning citizenship. But as with all federal projects, the signing of a law in Washington, D.C., did not necessarily mean that it was applied uniformly in every municipality. Federal laws needed to first be enacted by local authorities, and then enforced by the judiciary when challenged. The laws only worked for black Americans if the local legal system played by the rules.

The definition of citizenship lay at the heart of these postwar court battles over civil rights. The Civil Rights Act of 1866 and the Fourteenth Amendment finally defined who were citizens, but left a vague interpretation as to the specific rights granted to citizens.112 It was up to the nation’s judiciary, from county level circuit courts to the U.S. Supreme Court, to determine how the nature of those

110 Eric Foner notes in Reconstruction that due to Northern public opinion regarding civil rights the Supreme Court and federal government moved away from protecting the civil rights of black Americans. See: Foner, Reconstruction, 529. 111 Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (New York: Fordham University Press, 2005), 2. 112 Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900 (Chapel Hill: University of North Carolina Press, 2007), 1-6. 59 rights would be interpreted. In 1873, the U.S. Supreme Court ruling in The

Slaughterhouse Cases upended the 1866 Civil Rights Act, and caused

Republicans in Congress to draft what would become the 1875 Civil Rights Act.

The 1875 Civil Rights Act revealed the importance of theaters and places of public amusement to understandings of citizenship and equal rights. But the federal project of crafting this legislation was only one half of a larger story about the ways in which African Americans interpreted their new rights under the

Fourteenth Amendment. Missing from our broader understanding are the

African Americans activists at the local level working to preserve these newly found rights to attend theaters, travel on steamboats, and access public accommodations. Historians have recently begun to fill in this half of this story: tales of segregated roller-skating rinks, boardwalks, and saloons dot the historiography of Reconstruction and the turn-of-the-century urban experience.113

The act itself spoke directly to the experience of segregation in public accommodations and attempted to remedy the embarrassing injustice of being denied entry or safe passage based on the color of one’s skin. In her important article on the Civil Rights Act of 1875, historian Amy Dru Stanley argues that the

113 Millington W. Bergeson-Lockwood, “‘We Do Not Care Particularly about the Skating Rinks’: African American Challenges to Racial Discrimination in Places of Public Amusement in Nineteenth-Century Boston, Massachusetts,” The Journal of the Civil War Era 5, no. 2 (June 2015); David E. Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore, 1865-1920 (New York: Fordham University Press, 2016); Angel David Nieves and Leslie M. Alexander, eds., “We Shall Independent Be”: African American Place Making and the Struggle to Claim Space in the United States (Boulder: University Press of Colorado, 2008). 60

act “altered the very conception of being human.”114 Stanley explored the shift from eighteenth-century conceptions of human rights based on property ownership and wealth accumulation to a new ideal of the right “to seek amusement, to pursue pleasure, to experience rapture in public, and that this right must be written into the positive law of the nation-state.”115 Her work drew on Congressional debates over the language of the 1875 Civil Rights Act and focused on the implications of the legislation at the federal and constitutional level.

Stanley and subsequent historians have been interested in the larger picture of a shifting ground of federal policies. More recent works have focused on momentous questions such as “the relationship of rights and sovereignty, moral norms and positive law, freedom and coercion.” The on-the-ground testimonies of African Americans were revealed through their petitions brought to Congress by their representatives. This important work enhanced our understanding of the creation of the law and highlighted the African American experience of segregation that ultimately compelled Congress to act.116

Remarkably though, there has not been a thorough examination of the ways in which theaters specifically served as sites of conflict between municipal statutes or customs and the newly codified federal legislation. This neglect is more surprising given that the Civil Rights Act of 1875 prominently mentioned

114 Amy Dru Stanley, “Slave Emancipation and the Revolutionizing of Human Rights,” in The World The Civil War Made, ed. Gregory P. Downs and Kate Masur (Chapel Hill: The University of North Carolina Press, 2015), 270. 115 Ibid. 116 Stanley, “Slave Emancipation and the Revolutionizing of Human Rights,” 275. 61

“theaters” in the language of the law. The first section of the act itself reads: “All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyance on land or water, theatres, and other places of public amusement.” 117 This positive right to equal enjoyment of theaters specifically highlighted the important place theaters held in the social, cultural, and political lives of American citizens. The right to attend the theater was as important as the right to move freely throughout the nation.

*Civil Rights and State Laws*

The intervening years between the 1866 and 1875 Civil Rights Laws were tumultuous for black Americans attempting to define citizenship. The 1866 Civil

Rights Law aimed to protect the rights of newly freed African Americans in the

South. Congressional Republicans paid some attention to northern free black communities during debates, but they prioritized aiding southern black

Americans in the wake of the Black Codes. The language of the 1866 law centered on rights concerning property ownership, contracts, and access to the justice system for recourse against crime.118 Had the 1866 law and the subsequent

117 “An Act to Protect All Citizens in Their Civil and Legal Rights,” U.S. Statutes at Large 18, part 3, chap. 114 (Washington, D.C.: Government Printing Office, 1875), 335-37. 118 Michael Les Benedict, “’Membership of a Nation, and Nothing More’: The Civil Rights Act of 1866 and the Narrowing of Citizenship in the Civil War Era,” in The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian G. Samito, (Carbondale: Southern Illinois University Press, 2018), 9-36; Kurt T. Lash, “Enforcing the Rights of Due Process: The Original Relationship Between the 62

Fourteenth and Fifteenth Amendments to the Constitution been sufficiently upheld in the courts, there would have been no need for another law in 1875. But that is not what happened.

White northerners continued to discriminate against African American citizens, forcing them to try to seek restitution in northern courts. In the wake of the 1866 Civil Rights Act, just as they had during the Civil War, black Americans in northern cities attempted to invoke their equal rights of citizenship in the courtroom. Unlike during wartime, they now had a federal law that not only explicitly granted them United States citizenship but seemed to support their equal rights as citizens.

Many of the cases brought by African Americans to test their newly protected rights as citizens were decided in favor of the white defendants. These lower-level cases from northern courts illustrated the difficulties African

American litigants faced when seeking justice. The federal law could be interpreted differently depending on the locality, the political leaning of a particular judge, or the region’s own history of discriminatory customs.119 For example, in West Chester & P. R. Co. v Miles (1867) the Pennsylvania Supreme

Court ruled against Mary Miles, an African American passenger, who had been removed from her seat in a railcar on account of her race. Miles sued the West

Fourteenth Amendment and the 1866 Civil Rights Act,” University of Illinois College of Law Legal Studies Research Paper (2016). 16-25; Mark Shawhan, “’By Virtue of Being Born Here’: Birthright Citizenship and the Civil Rights Act of 1866,” Harvard Latino Law Review 15 (2012)

119 Melissa Milewski, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights, (New York: Oxford University Press, 2017). 63

Chester and Philadelphia Railroad Company for damages in 1866.120 The company was charged with trespass upon her person and she was awarded a $5 settlement.

The company appealed and the appellate court reversed the decision on the basis that “a policy of separating races” was perfectly legal. According to the appellate justices, the railroad was protecting its property and clientele by seating passengers by race in order to avoid “potential disruptions.”121 The court ultimately protected the racist sensibilities of white customers who refused to sit among black patrons. This case was heard in between the passage of the 1866

Civil Rights Act and the ratification of the Fourteenth Amendment. Because no specific language in the original 1866 Civil Rights Act prohibited discrimination or segregation, the Pennsylvania Court had no basis to uphold the decision in favor of Mary Miles. In this instance, an initial victory was won because of one judge’s interpretation of the federal law, but was then overturned because of a higher judge’s re-interpretation.

The inconsistent nature of interpreting civil rights legislation had bearing on West Chester & P.R. Co. v Miles and many of the subsequent cases brought by

African American plaintiffs. Some of these court cases and their appeals spanned months or years, all while new state and federal legislation was being passed. The

Miles case, for example, was argued before the Pennsylvania Supreme Court in

April of 1867 and decided in November. The incident between Miles and the railroad took place in 1866. At the time, Pennsylvania had no law governing the

120 West Chester & P.R. Co. v. Miles, 55 PA 209 (1867) 121 Ibid. 64 rights of passengers in public or private transportation. However, on March 22,

1867, the legislature passed a law explicitly protecting African American passengers from discrimination. It stated that no railroad or railway corporation could “exclude any person on account of their color or race” or risk fines of up to five hundred dollars.122

If that state law had been in place in 1866 when Miles was expelled from the railcar, her initial suit could have been based on the Pennsylvania legislation concerning discrimination on railroads. Instead, lacking any explicit law, she was forced to prove that the railroad company had committed a “trespass against her person” which left her fate open to the appellate court’s interpretation.

Unlike other state civil rights laws passed during this same moment, the

Pennsylvania law only focused on transportation. No clause dealt with places of amusement, and no language centered on hotels or taverns. This may have been due to the Pennsylvania legislature attempting to directly respond to the activism of African American men and women in the streetcars of Philadelphia and

Harrisburg.123 During Reconstruction, African American citizens in Pennsylvania cities asserted their right to ride on streetcars alongside white neighbors. Some black men and women chose to boycott streetcars rather than ride in segregated cars. Other African American women sued streetcar companies that segregated

122 Franklin Johnson, The Development of State Legislation Concerning the Free Negro, (Westport, Conn.: Greenwood Press, 1919), 173. 123 Judith Giesberg, Army at Home: Women and the Civil War on the Northern Home Front, (Chapel Hill: University of North Carolina Press, 2009), 107. 65 riders, and their pressure directly contributed to the passage of the 1867

Pennsylvania Civil Rights Law barring discrimination on railroads.124

The wording of the law reflected the ways northern rail companies attempted to regulate African American bodies on public conveyances. The law could have simply stated that no railroad could force patrons to move or deny them services based on race. But it went further and mentioned specific examples such as “throwing cars from the track”—a practice that disabled a streetcar or railroad car completely so that no one could ride it.125 White conductors and drivers often rode cars off the tracks when black passengers boarded, forced all of the passengers to disembark, and then crews came back later to repair the car.

Black activists reportedly responded by remaining on cars once they were thrown from the track, forcing the white drivers into a stalemate.126 The inclusion of

“throwing cars from the track” in the statute’s verbiage proved that the legislature knew that white northerners disabled or destroyed railroads and streetcars rather than see black and white passengers riding together.

Like streetcars and railroads, theaters and places of public amusement were at the heart of northern fights for equal rights at the state level, and the language of the state civil rights laws reflected the importance of places of amusement. The 1867 Pennsylvania Law was not the only example of a northern state passing protections for African American citizens in the absence of a federal

124 Geoff D. Zylstra, “Whiteness, Freedom, and Technology: The Racial Struggle over Philadelphia’s Streetcars, 1859-1867,” Technology and Culture, 52:4 (October 2011), 678-702); Daniel R. Biddle and Murray Dubin, Tasting Freedom: Octavius Catto and the Battle for Equality in Civil War America, (Philadelphia: Temple University Press, 2010), 323-354 125 Biddle and Dubin, Tasting Freedom, 348-349. 126 New York Times, May 18, 1865; Christian Recorder, February 9, 1867. 66 law or constitutional amendment. Massachusetts acted first, even before the federal government.

The architect of both the 1866 and 1875 Civil Rights Acts was

Massachusetts Senator Charles Sumner, abolitionist and a leading Radical

Republican. In 1865 the New England state passed a law that “no distinction, discrimination, or restriction on account of color or race shall be lawful in any licensed inn, in any public place of amusement, public conveyance, or public meeting.”127 It expanded that law a year later in 1866: “it is not lawful to exclude persons or restrict them in any theater or public place of amusement, licensed under the laws of the Commonwealth, or in any public conveyance or public meeting, or licensed inn, except for good cause.”128 In 1868 New York passed a universal manhood suffrage amendment to its constitution stating “every male inhabitant of the state shall be entitled to vote.”129 The laws indicated a willingness of northern legislatures to fill the void of federal legislation regarding the specific rights granted to all citizens regardless of race. They also reflected that northern African American activist organizations were bringing their concerns to state legislatures and making lawmakers aware of discrimination and segregation.130

127 Johnson, The Development of State Legislation, 124. 128 Ibid., 124-125. 129 Ibid., 149. 130 Andrew Diemer, “Reconstructing Philadelphia: African Americans and Politics in the Post-Civil War North,” The Pennsylvania Magazine of History and Biography 133:1 (Jan. 2009), 29-58; Hugh Davis, “The Pennsylvania State Equal Rights League and the Northern Black Struggle for Legal Equality, 184-1877,” The Pennsylvania Magazine of History and Biography 126:4 (Oct. 2002), 611-634; Zylstra, “Whiteness, Freedom, and Technology,” 697-701; 67

While some northern states worked to craft civil rights legislation to model the 1866 Civil Rights Act, the U.S. Supreme Court began to erode the federal layer of civil rights law. In 1873 the U.S. Supreme Court decision in the

Slaughterhouse Cases began the systematic dismantling of laws meant to protect the rights of black Americans, even though the cases themselves had nothing to do with racial matters. The City of New Orleans had established a corporation to regulate the slaughterhouse industry. A butcher’s organization challenged the arrangement, and the cases made their way to the U.S. Supreme Court. The cases centered on the loss of the “potential to pursue a livelihood” as guaranteed by the language of the Fourteenth Amendment.131 At issue though, was whether the

Fourteenth Amendment expanded constitutional rights for all citizens. The majority decision, delivered by Justice Samuel F. Miller—a Republican—declared that the Fourteenth Amendment was not originally intended to transfer the natural rights of citizenship from state authority to federal authority.132

But this is precisely why this history of black activism cannot solely focus on the federal level. At the same moment the U.S. Supreme Court decided the constitutionality of federal protection of rights, state-level courts heard cases brought by black citizens suing for equal protection. In Iowa, the case of Coger v.

North West Union Packet Co. was already making its way through the lower courts. In December 1873 the Supreme Court of Iowa ruled in favor of Ms. Coger,

131 For a much more thorough analysis of the Slaughterhouse Cases, their path to the Supreme Court and the fallout beyond just civil rights see, Kaczorowski, The Politics of Judicial Interpretation. 132 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, (New York: W.W. Norton and Company, 2019); Kaczorowski, The Politics of Judicial Interpretation, 124-139. 68 a mixed-race citizen, who had brought suit against the North West Union Packet steamboat company. Ms. Coger alleged that she was forcibly removed from her dining table aboard the steamboat on account of her race. The Iowa Supreme court affirmed the lower court ruling and upheld the penalty of a fine of $200.133

*The Civil Rights Act of 1875 and Black Litigants*

While lower courts continued to wade into the civil rights debate, Congress took almost two years to offer a correction to the Slaughterhouse Cases and reassert the constitutionality of the Civil Rights Act of 1866 and the

Reconstruction Amendments. On Saturday, February 27, 1875, the United States

Senate resumed debates on the bill that became the Civil Rights Act of 1875. The bill had been reintroduced to the Senate in April 1874, after floundering in the

Judiciary Committee for almost three years. Senator Charles Sumner, the bill’s author, made countless motions to bring the measure to a vote in the Senate, but had been frustrated by the Senate Judiciary Committee’s lack of approval. After introducing the bill in 1870, Sumner had repeatedly blamed the Judiciary

Committee for stalling it, threatening multiple times to pull the bill out of committee and put it before the Senate chamber.134 On March 9, 1871 Sumner stood before the Senate and held forth on the gravity of the proposed law. “It is a

133 Coger v. North West Union Packet 37 Iowa 145 (1873) 134 David H. Donald, Charles Sumner and the Rights of Man, (New York: Alfred Knopff, 1970), 537-539. 69 very important bill; nothing more important could be submitted to the Senate; and I submit that Congress ought to act upon it before we go home. No resolution of adjournment should be adopted until the bill I now hold in my hand, or something equivalent to it, becomes a law.”135

But Congress did adjourn. And it adjourned twice more before his proposal came to a vote. On a Saturday afternoon in February 1875, Senator

George Edmunds of Pennsylvania, the bill’s new sponsor, saw the years of arguments and amendments finally end with passage by 38 yeas to 26 nays. The

1875 Civil Rights Act moved to the desk of President Ulysses S. Grant who signed it the following Tuesday, March 1, 1875. A decade of work on this monumental legislation, and lifetimes of activism and disappointment were summed up with five simple words in the Congressional Record: “so the bill was passed.”136

The Act was short and to the point, swiftly reaffirming the freedoms thought to be won with the Fourteenth Amendment and effectively reversing the

Supreme Court’s decision in the Slaughterhouse cases. Racism and white supremacy could not be legislated away, but the 1875 Civil Rights Act’s first section guaranteed that any citizen with access to a courtroom could sue anyone who violated his or her “full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyance on land or water, theatres, and other places of public amusement.”137 Its second and third sections

135 Charles Sumner Papers, vol. 20, “Supplementary Civil Rights Bill-The Last Appeal,” 314; 136 “Civil Rights,” Congressional Record 3 (1875), p. 1870. 137 Charles Sumner Papers, vol. 20, “Supplementary Civil Rights Bill-The Last Appeal,” p. 314. 70 outlined the punishments and jurisdictions of the act, and the fourth affirmed the right of any citizen regardless of “race or previous condition of servitude” to serve as “grand or petit juror in any court of the United States or of any State.”138

The Civil Rights Act of 1875 changed black Americans’ lives. The groundbreaking piece of legislation offered an entire race of human beings rights previously denied, and provided explicit language for the protection of those rights. The act guaranteed that discriminatory actions like those against the Peers at the Arch Street Theatre did not go unpunished. Sumner and other Republican lawmakers knew that the law was somewhat limited in both its scope and its mechanisms for enforcement.139 The act reflected the reality that the judicial system, rather than local or state legislation, provided the path for African

Americans seeking equal protection under the law. Yet this placed a burden on people who often had less financial means to pursue these options. There was no national police force or federal bureau of investigation to arrest white northerners who discriminated against African Americans. Individual citizens needed to bring suits before the courts to guarantee their civil rights.

Despite this transformative language, some of the most influential histories of the nineteenth century have dismissed the law. Eric Foner declared it

“a dead letter” by 1883.140 Others easily brushed the law aside as a weak attempt by Republicans to placate an ever-weakening Radical bloc, or a sign of a

138 Ibid. 139 Donald, Charles Sumner and the Rights of Man, 531-533. 140 Foner, Reconstruction, 556. 71 weakened Republican civil rights agenda because of the omission of a school integration clause.141

These interpretations failed to highlight the important activity in African

American activism at the state and local level that accompanied the passage of the law. Foner stated that the law “left the initiative for enforcement primarily with black litigants suing for their rights in already overburdened federal courts,” but did not discuss lower court actions.142 He concluded his section on the Civil

Rights Act of 1875 with the assertation that “only a handful of blacks” challenged discrimination by hotels, theaters, and railroads. But contemporaries did not share the assessment of historians.143 Cases began to appear outside of federal courts that nonetheless used the theories of the new law.144

The northern press responded quickly and negatively to the 1875 Civil

Rights Act.145 Northern Democratic outlets railed against the Act as

141 Kaczorowski, The Politics of Judicial Interpretation, 158-159; Hugh Davis refers to it as the “eviscerated Civil Rights Act of 1875” due to the lack of a school integration clause, see Davis, We Will Be Satisfied with Nothing Less, 130-131. Davis also does not touch on any of the cases discussed in this chapter, focusing instead solely on the issue of school integration. For more on the general context surrounding the Civil Rights Act of 1875 and its passage see: James McPherson, “Abolitionists and the Civil Rights Act of 1875,” The Journal of American History 52:3 (Dec. 1965), 493-510; Bertram Wyatt Brown, “The Civil Rights Act of 1875,” The Western Political Quarterly 18:4 (Dec. 1965), 763- 775; Alfred Avins, “The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations,” Columbia Law Review 66:5 (May 1966), 873-915; L. E. Murphy, “The Civil Rights Law of 1875,” The Journal of Negro History 12:2 (April 1927), 110-127. 142Foner, Reconstruction, 556 143 Ibid. 144 Recently some scholars have begun to challenge various aspects of these older interpretations, see: Michael Les Benedict, “Constitutional Politics in the Gilded Age,” The Journal of the Gilded Age and Progressive Era 9:1 (Jan. 2010), 7-35 and Kirt H. Wilson, “The contested space of prudence in the 1874-1875 civil rights debate,” Quarterly Journal of Speech 84:2 (1998), 131-149. 145 A.N. Mohamed, “Attitudes of Northern papers toward the egalitarian laws of Reconstruction,” Newspaper Research Journal 19:3 (Summer 1998), 47-62. 72

“unconstitutional” and “ruinous to free government in a free country, a scandal to our age.”146 The New York Times reported at length on the Act in an attempt to terrify its readers into action against Congress’ decision: “if any keeper of a restaurant or inn in this City or any other city refuses to take colored men into his house, he must pay the colored man five hundred dollars, or he may be fined five hundred dollars and imprisoned for one year.”147 The Times overreacted. The punishment was a five hundred dollar fine or imprisonment lasting between thirty days and one year. But its message was clear: this act threatened the lives and livelihoods of white northern citizens. It was a “violent, unconstitutional, and most perilous measure” that was “destructive of the vital theory of our

Government.”148 One of the loudest mouthpieces of white northern sentiment stood firmly against Congress, and others quickly followed.

From every corner of the North, Democratic newspaper editors pilloried the Civil Rights Act and its affront to the rights of white northerners. The Daily

Albany Argus declared it the “Negro Supremacy Act and argued “ it is really an act conferring upon negroes privileges not enjoyed by whites, and is therefore unequal, oppressive, and unjust.”149 It followed up its rhetoric a week later with an examination of the consequences of the act, along with a theory on the true purpose of the law. “It was merely an act of political persecution, to provoke impetuous Southerners to commit foolish acts by the way of retaliation, in order

146 New York Times, March 2, 1875. 147 Ibid. 148 New York Times, March 2, 1875. 149 Daily Albany Argus, March 4, 1875 73

that thus the Northern heart might be stirred.”150 Here, a northern paper argued that Charles Sumner and the Radical Republicans passed the act to incite racial violence as a means of justifying harsher Reconstruction legislation against southern states: “the demagogues seek to arouse the passions of the ignorant by representing great danger as imminent, in order that votes may be thus obtained.”151 This was deeply disturbing to the Democratic editors of the Argus who bemoaned, “these petty revenges retard the day of thorough pacification of the country.”152 The Democrats wanted to remind readers that the sectional tensions of the Civil War years were gone, and replaced by harmony and

“thorough pacification.” They believed that Republicans and those sympathetic to the Civil Rights Act were trying to slow or reverse the reunification of the nation by sowing racial discord.153 These sentiments reverberated throughout northern cities and had real consequences for African American citizens attempting to assert their equal rights granted under the new law.

White Republicans had somewhat muted responses to the passage of the

Civil Rights Act of 1875. Some chose to challenge Democratic outcries with tongue-in-cheek articles like the one that ran in the New York City’s Commercial

Advertiser two days after the passing of the law. “False Alarm!”—the headline read—“there have been high-toned Southern gentlemen who refused to extend to colored boys the same social recognition and domestic endearments they

150 Daily Albany Argus, March 10, 1875 151 Ibid. 152 Ibid. 153 For more on the interpretations of this era as one of “reunion” see: David Blight, Race and Reunion: The Civil War in American Memory, (Cambridge: Belknap Press, 2001). 74 extended to their dusky sisters, but we never know one of those chivalric souls who refused money from a ‘nigger’.”154 The article was responding to reports that hotels throughout the South had shuttered their doors in the wake of the Civil

Rights Act. As the Republican editors quipped, “no Democrat is going to refuse to make as much money as possible out of his African brethren, in hotel, restaurant, theatre, or anywhere else...chivalry worships the Almighty Dollar.”155

Other responses were more thoughtful and illuminated some of the intentions behind the act’s passage. Massachusetts Representative Benjamin

Butler, one of the law’s Republican architects in Congress, published an open letter that was reprinted throughout the North responding to an inquiry from

African American lawyer and civil rights advocate Robert Harlan of Cincinnati,

Ohio. Specifically, Butler addressed whether the law applied equally to saloons and barbershops in addition to the types of establishments explicitly named in the language of the act. Butler first addressed the saloon question with an overtly paternalistic response. He was “happy to say that the civil rights bill does not give any right to a colored man to go into a drinking saloon without the leave of the proprietor, and am very glad that it does not.... I hope no barkeeper will ever let a colored man have a glass of liquor at any bar open for drinking.”156 Whether

Butler actually believed this or was trying to mollify criticism of the law was unclear, but he took a relatively common stance among northern advocates for civil rights statutes: civil rights did not mean social equality.

154 The Commercial Advertiser, March 3, 1875. 155 Ibid. 156 Hon. Benjamin F. Butler letter to Mr. Harlan. Reprinted in The Patriot, March 22, 1875. 75

Butler delineated between “private business” and “public employments,” and employed the common law justifications that were explored in detail in the previous chapter. “From time immemorial all men have had equal rights at the common law in places of public amusement...because all such business was for the public under special privileges granted by the government.”157 Places of public amusement under common law could mean many things including theaters, parks, boardwalks, beaches, or swimming pools to name a few.158 He then specifically referenced the common law jurisdiction on theaters because they were “licensed by the public authorities and protected by the police.”159 He concluded by contesting allegations that the Civil Rights Act gave black citizens more rights than white citizens, saying it “only confirms these rights of all citizens to the colored man in consideration of the prejudice against him and an attempt in certain parts of the country to interfere with the exercise of those common law rights.”160 Like many northerners, Butler saw the discrimination and prejudice he described in his letter as a predominantly southern issue. When he explicitly singled out “certain parts of the country” he could have just as easily stated “the states formerly in rebellion.” Butler was a Congressman, and for months before the law’s passage Congress had heard testimony through petitions of African

Americans throughout the southern states who experienced discrimination and

157 Ibid. 158 As A.K. Sandoval-Strausz notes, “the common law of innkeepers…served as the entering wedge of broader assertions about the federal government’s authority to regulate a wide variety of institutions and categories of space.” See A.K. Sandoval- Strausz, Hotel: An American History, (New Haven: Yale University Press, 2007), 290. 159 Ibid. 160 Ibid. 76

segregation.161 Northern black organizations and activists also sent petitions decrying racial discrimination, but the majority of the appeals came from southern constituencies.162

The Civil Rights Act may have been enacted to deal with what most saw as a southern problem, but northern African Americans used it to reveal the deep prejudices present throughout the entire nation. Some northerners were unaware of just how deeply this law would affect the boundaries of public space. The court records and newspaper reports from years immediately following the passage of the Civil Rights Act reveal daily battles waged in ticket queues, box offices, restaurant doorways, and steamboat platforms. African Americans in the North were willing to put their bodies on the line to test their newly granted freedoms.

*Federal Law, State Courts, and Theatrical Culture*

The Civil Rights Act of 1875 was a federal law, but the immediate impetus for activism did not confine itself to the federal level. County and state courts served most often as the battlegrounds over equal rights. For one, historians have overlooked the evoluton in state statutes in the wake of the 1875 Civil Rights Act,

161 For more on the link between the clause concerning theaters in the 1875 act and emancipation see Stanley, “Slave Emancipation and the Revolutionizing of Human Rights,” 289-291. 162 Elsa Barkley Brown, “Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom,” in Time Longer Than Rope: A Century of African American Activism, 1850-1950, eds. Charles M. Payne and Adam Green, (New York: New York University Press, 2003), 68-110; Eric Klinek, “Window on the Collections: ‘To petition the Government for a redress of grievances,” Pennsylvania Legacies 8:1 (May 2008), 3-5. 77 and the ways in which the decisions of the Congress in Washington, D.C., trickled down throughout the various legislatures in state capitols throughout the country. An exploration of lower-level courts offers additional stories to the fight for equal rights in the Reconstruction era.163

In total, seventeen cases directly referencing the Civil Right Act of 1875’s clause regarding theaters or other public accommodations were brought by

African American plaintiffs in state courts between 1875 and 1883. Of those cases, eight were either upheld or overturned to rule in favor of the African

American plaintiff. Six of the cases were relegated back to the lower court for retrial, and three were overturned in favor of the white defendant. The variety of these cases revealed the wide array of discrimination facing African Americans in northern cities. The cases were brought by African American plaintiffs to courts of common pleas, circuit courts, or municipal courts.164 Thus, they have been easy to miss by historians of Reconstruction paying more attention to the federal level.

Two of the earliest cases occurred less than two months after the act was passed, and both revealed how quickly the language of a statute could be re- interpreted once the law was applied in the courts. Both cases centered on the definition of “public accommodations” as it applied to the 1875 Civil Rights Act, and in both instances the court’s ruling weakened the power of the law and narrowed its scope. Both cases were filed by African American patrons who had been denied “equal enjoyment” of places of entertainment. The cases hinged on

163 Stanley, “Slave Emancipation and the Revolutionizing of Human Rights.” 164 Some of the court records list the original African American plaintiff as the “defendant.” These are instances where the original white defendant has appealed a lower court decision. 78 whether or not the courts determined the places of entertainment, a billiard hall and a theater, were truly “public accommodations” as defined by the Civil Rights

Act. In both instances, the courts ruled in favor of the white defendants on the basis that the places of entertainment were private businesses despite the fact that the word “theaters” appeared in the first section of the Civil Rights Act. The cases reflected the capriciousness of the legal system, and how difficult it was for

African American plaintiffs to win victories, even when the law explicitly defended them.

In March, 1875, a New Jersey case confirmed the public versus private nature of the law and upheld the Civil Rights Act’s foundation in “common law” definitions of public accommodations. On March 26, 1875, The New York

Evening Post reported on the case of Peter Katzenbech, the owner and manager of an inn and saloon in Trenton, New Jersey. Katzenbech had been arrested earlier that month “under authority of the Civil Rights act” after two African

American patrons alleged he had barred them from his billiard saloon.165 The

U.S. Commissioner who decided whether to present the case to a grand jury held that “the keeping of a billiard saloon is a private business, not subject to the same application of the Civil Rights bill as hotels. Also, that the owner of such a place may exclude any class of customers that he chooses without having his motives subjected to inquiry.”166 Benjamin Butler and other Republican lawmakers would have joined with Democrats and applauded the Commissioner’s decision in this case. The court had protected private property ownership and had drawn a line

165 The New York Evening Post, March 26, 1875. 166 Ibid. 79 between the civil right of access to public accommodations and full social equality. These cases began to litigate the meaning of public versus private in a newly defined racial world.

The subsequent case, brought less than month later in April 1875, involved a well-known and respected member of the New York City theatrical community,

William W. Tillotson. He was accused of denying access to African American patrons, was brought before a federal commissioner, but was ultimately released with no punishment.

The details of the Tillotson case revealed the power of federal judges and commissioners to interpret laws as they saw fit. The law written to protect the equal rights of African Americans could be re-interpreted to effectively deny them those same rights. Tillotson, a white New Yorker, was the treasurer of Booth’s

Theatre on 23rd Street and Sixth Avenue in Manhattan. As treasurer, Tillotson was responsible for managing the box office of the theater and overseeing the disbursement of tickets and funds. On Monday April 19, two African American patrons, William R. Davis, Jr., and Isaiah Creshom were denied tickets in the parquet level of the theater. The two black New York citizens watched as white patrons were sold tickets for the same section denied to them. By Davis’ account

“he was refused on the ground that he could not be admitted there [the parquet level] on account of his color, but must go up stairs in the upper circle, a place set apart for colored people, if he wanted to gain admission.”167 The following morning Davis contacted an Assistant U.S. District Attorney for Southern New

167 New York Times, April 22, 1875. 80

York and reported Tillotson “did deny [Davis] the privileges and facilities of attending a performance at Booth’s Theatre; that the reason for such denial was on account of race and color, and that [Davis] is a citizen of the United States.”168

This case represented a difference in jurisdiction; while the Katzenbech case in

New Jersey was handled in state court, the Tillotson case was a federal matter.

Federal authorities acted quickly in response to Davis’s allegations. U.S.

Commissioner John Davenport issued a warrant for Tillotson’s arrest, which U.S. marshals carried out the following evening.169 The first hearing of the case was held the following week, and as in the Trenton billiard saloon case discussed above, the arguments centered on the definitions of public versus private accommodations. Both Davis and his representation, Assistant U.S. District

Attorney Purdy, admitted that this was meant to be a test of the limits of the newly passed Civil Rights Act. “Mr. Purdy suggested it might be as well to raise a constitutional objection before the Commissioner, who, Mr. Purdy believed, had full power to pass upon it.”170 Purdy had no desire to see Tillotson sit in a jail cell for his refusal to sell tickets to black patrons; Purdy himself stated that

“inasmuch as it was to be made a test case, and as the defendant was prepared to give bail, he would prefer to have him do so.”171 Davis’s goal was to put a case

168 Ibid. 169 Evening Post, April 21, 1875. 170 New York Times, April 27, 1875. 171 Evening Post, April 21, 1875. This was a common tactic used by African American activists and grassroots political organizations throughout the nineteenth and into the twentieth century. Judy Giesberg notes that women in San Francisco intentionally broke the city’s laws concerning segregated streetcars in order to ensure their cases would be brought to court. Other historians, like Laura Edwards, detail how southern African American men and women used the Reconstruction Amendments and the new state constitutions in the wake of the Civil War to assert their newly won freedom. For more 81 before a federal commissioner who would be forced to weigh in on the constitutionality of the Civil Rights Act.

Davis must have been disappointed in Commissioner Davenport’s final response and ruling in this matter. Throughout the hearing Davenport repeatedly questioned the foundations of the Civil Rights Act by challenging the very nature of “common laws” regarding public accommodations. Davenport believed “a theatre business was a mere private business speculation” and that managers of theaters had every right to deny patrons without having their motivations questioned—a similar posture as the commissioner in the Katzenbach billiard case.172 But Davenport went further than the commissioner of the Katzenbach case. He specially addressed the common law basis of public accommodations.

Davenport wrote, “As to the point that a theatre being licensed was thus made a public institution, subject to Government control in relation to the detail matter of accommodation, he denied its soundness, contending that the licensing was, in substance, merely a police regulation.”173 Here, Davenport re-wrote decades of common law precedent. A “license” granted by a state or municipality was not enough to define the space as a “public accommodation” subject to the Civil

Rights Act.174

In the end, Davenport formally waived the federal examination of

Tillotson, and the matter was settled. No evidence suggested that Davis followed

see: Giesberg, Army at Home; Laura Edwards, Gendered Strife and Confusion: The Political Culture of Reconstruction, (Urbana, IL: University of Illinois Press, 1997). 172 New York Times, April 27, 1875. 173 Ibid. 174 A.K. Sandoval-Strauz, Hotel: An American History, (New Haven: Yale University Press, 2007), 288-294. 82 with civil action against Tillotson or Booth’s Theatre. These two cases highlight the local nature of civil rights laws and discrimination within public accommodations in the north. While both were brought before federal authorities, these were small jurisdictions with individual commissioners responsible for interpreting constitutional law. Each commissioner waxed poetic on his own beliefs regarding the Civil Rights Act and ruled accordingly. The

Tillotson case was heard within two months of the law passing Congress. It should have been subject to the law of the land at that point, which had not yet declared the Act unconstitutional. Tillotson should have been tried before a federal court and subjected to the punishment laid out in section three of the law.

But because of an individual commissioner’s actions, the law was not upheld, and a very high-profile theater manager walked free despite denying access to black patrons.

A fuller understanding of the significance of Tillotson avoiding charges demands a deeper look at theater culture after the Civil War. Theaters in the northern United States began to serve as sites of resistance immediately following the Civil War. Free African Americans began testing the boundaries of civil rights and equality in various leisure spaces. While many northern theaters in 1860 were uninviting places for African Americans, the war began to relax boundaries between white and black audiences, especially in the later years and immediately following the war when a rush of American playwrights and minstrel companies began producing shows that called for “authentic darkies” to fill roles. More opportunities for black performers, coupled with a rising tide of civil rights protests, characterized the first decade following the Civil War. 83

However, the post-Civil War years also coincided with a dramatic restructuring of theater management. Between 1865 and 1880 theatrical production in the United States underwent a fundamental shift from traveling stock companies to centralized “combination companies.” In the past, as discussed in the previous chapter, theater groups popped up in small towns, put together a few stock plays, and then traveled a local touring circuit. After the war,

New York became a haven for theatrical producers eager to make more money by saving costs on travel. A combination company would write, cast, rehearse, and produce shows in New York that would then join a traveling tour of plotted circuits of theaters controlled by that same company. This meant that actors and theatrical producers did not need to own their own buildings—there were pre- planned circuits for them at theaters managed by their combination company.

Theater buildings left the hands of actual theater practitioners and became money-making real estate ventures for businessmen who had little theatrical experience.175 Spaces that were once governed by a middling or lower class of actors, performers, and theatrical practitioners were now run by hard-nosed venture capitalists eager to turn the largest profit.

African American patrons were potentially bad for business. Theater managers, like William Tillotson, were deeply concerned about how to make their playhouses attractive to their target clientele: white, middle-class ticket buyers.

As the New York Times put it, “seven or eight negroes seated every evening in

175 For a fantastic resource on the transition from stock companies to combinations and the rise of capitalist theater managers see Jack Poggi, Theater in America: The Impact of Economic Forces, 1870-1967, (Ithaca: Cornell University Press, 1968), 3-64. 84

Mr. Delmonico’s rooms would not tend to attract general customers.”176 The argument made by the editorial was clear: if a manager were seen catering to black patrons, “he probably loses his white customers.”177 The perceived respectability of those black patrons became important.

Respectability correlated with class status, and during the postwar period class became an increasingly integral part of how theater spaces were governed.

Black activist organizations like the Equal Rights League, National Afro-

American League, and the membership of the Colored Conventions understood the need to work within the structures and boundaries of the American legal system. They also recognized the importance of performing respectability as a means of expressing their equality with white citizens.178

African American civil rights work in the North necessitated an understanding of the class dynamics within the free black communities, and nowhere was this understanding more important than in theatrical spaces.

Theaters were one of the few spaces in northern cities where white and black

176 New York Times, March 2, 1875. 177 Ibid. 178 Evelyn Brooks Higginbotham’s groundbreaking 1992 Signs article and her subsequent monograph examined the intersectionality of race, class, and gender when it came to studying the lives and work of black women in the United States. She explored the gendered, classed marker of “the lady” as a coded term for respectability, and one that black women could very rarely achieve. “No black woman, regardless of income, education, refinement, or character, enjoyed the status of lady.” See: Evelyn Brooks Higginbotham, “African-American Women’s History and the Metalanguage of Race, Signs 17, no. 2 (Winter 1992): 251-274; Evelyn Brooks Higginbotham, Righteous Discontent: The Women’s Movement in the Black Baptist Church, 1880-1920 (Cambridge: Harvard University Press, 1993); Rebecca J. Fraser, “‘I must speak, I must think, I must act.’ [Laura Simmes, 1864] the Christian Recorder, literary activism, and the black female intellectual,” Slavery & Abolition 39:4 (2018), 663-684; Shawn Alexander, ed. T. Thomas Fortune, The Afro-American Agitator: A Collection of Writings, 1808-1928 (Gainesville: University Press of Florida, 2010). 85 patrons occupied the same room for a significant length of time, albeit often forced to sit in separate sections. But patrons of a theater attended both to see the performance and be seen by the other members of the audience. Thus, African

American activists fought to protect their right to both attend the theater and be seen attending the theater.179

Theatrical hubs like New York, Philadelphia, and Boston exploded in the postwar period, which sparked increased competition among theater owners to attract audiences. Between 1815 and 1865, only thirty-five theaters opened in the three cities. In the fifty years between 1865 and 1915, over one hundred theater houses opened across New York, Philadelphia, and Boston. The rate of failure seemed to be about fifty percent, but some lasted for generations and can still be visited. The increased competition forced these venture capitalist theater owners to become even more creative with their marketing strategies and much more concerned with the demands of their wealthier and most populous patrons.180

Since the majority of their patrons were white, including a rapidly increasing immigrant population, many theater owners began to enforce policies barring

African Americans from certain performances. Many, like Booth’s Theatre in New

York City, instituted a “colored evening” which was the only night during the week that black patrons were admitted.181 These policies flew in the face of

179 Errol Hill and James Hatch, A History of African American Theatre, (Cambridge: Cambridge University Press, 2003). 180 Nathan Hurwitz, A History of American Musical Theatre: No Business Like It (New York: Routledge, 2014), Ethan Mordden, Anything Goes: A History of American Musical Theatre (New York: Oxford University Press, 2013); John Bush Jones, Our Musicals, Ourselves: A Social history of American Musical Theatre (Brandeis, 2003). 181 Hill and Hatch, A History of African American Theatre, 205. 86 federal law and black activists responded by flooding the courts with more test cases.

By June 1875 the Civil Rights Act had become a major focus of the federal courts. Black litigants, often with the financial support of organizations like the

Equal Rights League or National Afro-American League, filed suits against discriminatory white business owners. These cases were heard throughout the country, and U.S. Circuit Court Justices began to issue official decisions that affected legal precedents. From Galveston, Texas, to Winona, Minnesota, federal judges debated the constitutionality of the law and pushed test cases up to the

U.S. Supreme Court. U.S. Circuit Court Justice Morrel in Galveston upheld a

$500 fine imposed on a theater manager for barring access to an African

American woman.182 No matter that the case occurred in Texas, northerners were still anxious to track its progress. The editor of the New York Times wrote “It is to be hoped that the interest manifested in this Galveston case may lead to its being carried with unnecessary delay to the Supreme Court of the United States, where the question involved may be definitely settled.”183 The case in Minnesota similarly upheld the Civil Rights Act’s constitutionality.184

All of these cases had one thing in common: they were all brought by individual African American plaintiffs exercising their constitutional rights as citizens. The Civil Rights Act of 1875 may not have been the wide-ranging reform

182 New York Tribune, June 8, 1875. 183 Ibid. 184 The New York World, June 14, 1875. This case raised eyebrows throughout the north because the US. Circuit Court Justice Nelson, who rendered the decision, was a Democrat. 87 that both contemporaries and future historians would have liked, but it had very real meaning for black citizens who initiated test actions at a local level. Finally, these men and women had something to fall back on and potentially heal some of the pain and embarrassment they felt when they were physically barred from public spaces.

One of those African American plaintiffs, William Tecumseh Barks, brought federal suit in Pittsburgh against a steamboat captain who forcibly removed him from a dining table on the steamer. Barks, a poet, served in the 54th

Massachusetts during the Civil War and settled in Pittsburgh, Pennsylvania, after the war. He was a civic organizer, treasurer of the Pittsburgh branch of the

National Afro-American League, and was elected commander of Post 206 of the

Pennsylvania Department of the Grand Army of the Republic.185 In 1884 he became only the second black policeman in Pittsburgh’s history. Barks was the pinnacle of black respectability, but that did not save him from suffering injustice at the hands of a white business owner.

On October 22, 1874 Barks had sat down to eat his dinner on the steamboat Geneva out of Brownsville, Pennsylvania. The captain of the vessel,

Michael A. Cox, allegedly “entered the cabin, and [seized] him by the ‘nape of the neck’ threw him from the table remarking he would not allow ‘a nigger to eat at

185 Pittsburgh Daily, December 27, 1906; Barbara Gannon, The Won Cause: Black and White Comradeship in the Grand Army of the Republic (Chapel Hill: The University of North Carolina Press, 2011), 206. Gannon’s appendices list the all-black and integrated G.A.R. posts throughout all of the organization’s departments. Robert G. Shaw Post 206 was an all-African American veteran post. It was not an integrated post, like others throughout the state of Pennsylvania. Instead, it only served veterans of the United States Colored Troops like William T. Barks. 88

his table.’”186 The Civil Rights Act allowed Barks to seek restitution for that injustice. The case was tried first in county court, but the jury failed to reach a verdict. It was then brought to the U.S. District Court in Pittsburgh before Judge

Winthrop W. Ketcham who ruled in favor of Barks.187

Other victories followed throughout 1875 and 1876. One of the most telling did not even involve a living plaintiff. In March 1876, the Pennsylvania Supreme

Court ruled in the Mount Morah Cemetery case that the body of an African

American man could finally be buried in the plot purchased for him by his family.

A Philadelphia paper remarked “that such a prejudice should have been pleaded at all in reference to such a place as a burial ground is an evidence of the absurdity to which it have been carried in the section of the country from which it sprung.”188 The paper referred to the northern attitudes and prejudices as having been brought forth by the South and bemoaned the way those prejudices had seeped into the northern conscience. The editors ended with a hopeful resolution.

“This case should that all further exhibition of this absurd prejudice is as useless as it is foolish, and that the civil rights act will be resolutely enforced by the courts.”189

Local, state, and federal courts across the nation stood firmly on the side of the Civil Rights Act throughout most of 1875 and 1876. The Louisiana Supreme

Court upheld the Act in Joseph v. Bidwell (1876), ruling in favor of the black

186 Washington Review and Examiner, November 3, 1875; Washington Reporter, November 3, 1875. 187 Pittsburgh Post Gazette, May 15, 1878. 188 The North American, March 7, 1876. 189 Ibid 89 plaintiff, David Bidwell. Peter Joseph, the theater manager, was convicted of denying Bidwell admission to his theater. Joseph appealed the lower court decision that upheld the Civil Rights Act as well as the accompanying $500 fine he was forced to pay. The Louisiana justices affirmed the lower court’s decision, arguing that “the evidence satisfied us that the plaintiff [Bidwell] was rudely denied admission to the theatre solely on account of his being a colored man.”190

In New York the following year, much was made of James Milton Turner’s suit against the Astor House Inn. Turner, who had five years earlier been appointed by President Ulysses S. Grant as Consul General to Liberia sued the Astor House for damages related to the Civil Rights Act. Turner was denied a room, and he claimed it was on the basis of his race. The lower court ruled in favor of Turner.

When the manager of the Astor House Inn appealed, the federal appellate court justice ultimately dismissed the suit, choosing not to weigh in on the constitutionality of the Civil Rights Act, and allowing the lower court’s verdict to stand.191

Despite these scattered victories, the constitutionality of the Act had yet to be upheld by the United States Supreme Court, which left African American citizens somewhat in limbo. Many black litigants like William R. Davis, Jr., hoped that their cases would serve as test cases that would ultimately make their way to the Supreme Court. In 1875, a U.S. Circuit Court Justice in San Francisco seemed poised to prod the Supreme Court into issuing a ruling. But as the law was

190 Joseph v. Bidwell 28 La. Ann. 382 (1876). The court did see fit to lower the fine by $200, from $500 to $300. 191 New York Herald, January 1, 1877. 90 exposed to further scrutiny throughout the federal court system, district court judges began to set precedents that weakened the Act and narrowed the definitions of both “public accommodations” and citizenship.

On the afternoon of December 4, 1875, an African American theater patron named Green had purchased a reserved dress circle ticket at Maquire’s Theatre in

San Francisco. He returned later that evening to enter the performance but was told by the doorkeeper “you can’t go in; we do not admit negroes into this theatre.”192 Green sued the theater owner and won damages under the provisions of the Civil Rights Act. The owner appealed the decision in late December, 1876, and was acquitted on the basis that he had not knowingly or maliciously “directed his employees to exclude negroes or head established a rule of that kind.”193 This case, like Drew v. Peer above, set an important precedent. It differentiated discrimination by an individual and discrimination by a business or organization.

The court stated that an owner could not be held responsible for the action of an employee, unless it was proven that the employee’s discriminatory act was grounded in the owner’s codified policies.194 In the wake of the decision, Green’s attorney was quoted as saying “that they would now bring the case to the

Supreme Court of the United States.”195

Similar losses mounted between 1877 and 1882, all cutting away parts of the Civil Rights Act’s foundation and disputing certain aspects of the law’s language. The U.S. Circuit Court in Illinois ruled in U.S. v. Taylor (1880) that

192 New York Herald, January 1, 1876. 193 Ibid. 194 Ibid. 195 Boston Daily Advertiser, February 3, 1876. 91 because “no explicit assertion of citizenship” was made by the victim at the time of the discrimination, the case did not fall under the Civil Rights Act and the indictment of the defendant must be thrown out.196 Using Taylor as precedent, the U.S. Southern District Court of New York threw out an indictment in Lewis v.

Hitchcock (1882). The court ruled that Hitchcock had been forcibly removed from Lewis’s restaurant on account of his race, but that Hitchcock had failed to assert that he was a citizen. Thus, the Civil Rights Act could not protect him and he was not eligible for damages.197

These cases highlight the complex web of federal, state, and local legislation governing black bodies and their access to spaces. The individual plaintiffs in these cases were all making the same assertions of their right to enter a public space as equal to a white patron. But the small idiosyncrasies of situation, the setting, the lower court decision, and that of the appellate courts are all incredibly complex. It makes for an ever-changing situation for African

Americans in northern cities who were constantly negotiating their rights daily.

Black Chicagoans could wake up the morning following the Circuit Court decision in Lewis v. Hitchcock and no longer feel safe entering a white restaurant. On the other hand, black New Yorkers could read about the Drew v. Peer decision and boldly enter theaters with the might of the court’s precedent behind them. These individual acts of defiance by seeking suit in courts of common please and local district courts had real consequences for northern black citizens. But that tide would soon shift against them once again, and the U.S. Supreme Court would

196 United States v. Taylor 3 F. 563 (1880) 197 Lewis v. Hitchcock, 10 F. (1882) 92 finally weigh in on the Civil Rights Act, and shut the window for black activism in the federal courts. This caused black activists and advocates to find new avenues of justice in the lower courts of northern states.

93

Chapter 3

The Tragedy Begins: The Civil Rights Cases and Plessy, 1883-1900

In March 1888, Josephine Curry filed suit in the Circuit Court of Cook

County, Illinois, against Joseph Baileys. Curry was an African American woman suing Baylies—a white man—for denying her access to his theater, the People’s

Theater of Chicago.198 Curry asserted that two years prior, in June 1886, she and her husband had procured tickets to the first balcony of the People’s Theater for an evening performance. A white colleague had purchased the tickets for them because the theater had a policy preventing black patrons from sitting in the orchestra and first balcony sections. The Currys made their way to their seats, but an usher stopped them and directed them back to the ticket office. There, Joseph

Baylies, the manager of the theater, threw Josephine Curry’s money at her and said, “Get out of here, you damn niggers.” This incident formed the crux of the case: a white theater manager refused service and access to particular sections based on a patron’s race. Baylies’ actions may not have been illegal throughout the United States, but in 1888 in Illinois they were punishable by a fine of $100 according to the recently passed Civil Rights Act of Illinois.199

198 Elizabeth Dale, “‘Social Equality does Not Exist among Themselves, nor among Us:’ Baylies vs. Curry and Civil Rights in Chicago, 1888,” The American Historical Review 102:2 (Apr., 1997), 311-339. 199 Franklin Johnson, The Development of State Legislation Concerning the Free Negro, (Westport, Conn.: Greenwood Press, 1919), 97; Millington Bergeson-Lockwood, “’In Accordance with the Spirit of the Times’: African American Citizenship and the Civil Rights Act of 1866 in New England Law and Politics,” in The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian G. Samito, (Carbondale: Southern Illinois University Press, 2018), 89-90. 94

The jury ruled in favor of Mrs. Curry, awarding her $100. The Illinois

Appellate and Illinois State Supreme Courts upheld the ruling the following year.

Curry took advantage of the Illinois statute of 1885 prohibiting discrimination from public accommodations on the basis of race. The state law replicated the federal 1875 Civil Rights Act. It began the same way but chose to include even more specific examples of public accommodations: “All persons shall be entitled to the equal privileges of inns, restaurants, eating-houses, barbershops, public conveyances on land or water, theaters and all other places of public accommodation and amusement, subject only to conditions applicable alike to all citizens.”200 Neighboring Indiana’s 1885 law began with the exact same language.201

The U.S. Supreme Court’s decision in 1883 that gutted the federal Civil

Rights Act did not deter African Americans from trying to use local and state courts to protect their civil rights. Once the law was declared unconstitutional, federalism enabled black citizens to press for civil rights on the basis of state legislation. Like recent histories of black legal action in southern courts, the cases discussed revealed a pattern of black litigation at the local and state level well past 1883.202

200 Johnson, Development of State Legislation, 97. 201 Ibid, 101. 202 Laura Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015); Hannah Rosen, Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (Chapel Hill: The University of North Carolina Press, 2009); Kate Masur, An Example for All the Land: Emancipation and the Struggle Over Equality in Washington, D.C. (Chapel Hill: The University of North Carolina Press, 2010); Cynthia Greenlee, “‘Due to Her Tender Age’: Black Girls and Childhood on Trial in South Carolina, 1885-1920” (PhD diss., Duke University, 2014). 95

Black litigants of the period, like those from earlier decades, saw public accommodations as central to their understanding of equal rights. The cases tried between 1883 and 1900 highlighted the significance of theaters and places of public amusement to African American ideas of citizenship. Three of the cases,

Baylies v. Curry (1888), Younger v. Judah (1892), and Anderson v. Rawlings

(1899) all centered on the right to access theatrical venues regardless of race. The examination of these cases adds to recent studies of African American activism and public accommodations in the North.203

Between 1883 and 1900, African American civil rights operated within a web of local, state, and federal statutes and legal precedents. The seventeen years were characterized by uncertainty over where citizenship was defined and which laws or court rulings took precedent. Three of the cases, Baylies v. Curry (1888),

People v. King (1888), and Ferguson v. Gies (1890), all saw African American plaintiffs win in courts against white businesses practicing segregation. These three cases were all tried prior to the U.S. Supreme Court’s ruling in Plessy v.

Ferguson (1896). Once the 1896 ruling came down, African Americans began to lose more court battles than they won, but they did not stop challenging segregation in their local and state courts.

203 David Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore, 1865-1920 (New York: Fordham University Press, 2016); Millington W. Bergeson-Lockwood, Race Over Party: Black Politics and Partisanship in Late-Nineteenth Century Boston (Chapel Hill: University of North Carolina Press, 2018). 96

*The Slaughterhouse Cases and State Civil Rights Legislation*

Following the U.S. Supreme Court decision in the 1883 Civil Rights Cases,

African Americans looked to the state and local levels to protect their civil liberties. The court’s decision to strike down the Civil Rights Act of 1875 while weakening the language of the Fourteen Amendment left a void that African

Americans were desperate to fill. They needed a legal basis for defining freedom.

Almost immediately, legal arguments came from the pens of northern state legislators and governors sympathetic to the push by African Americans for civil rights. Three northern states had already passed statutes by the time the

Supreme Court ruled on the Civil Rights Cases in 1883. New York,

Massachusetts, and Pennsylvania had earlier laws on the books that mirrored the language of the federal Civil Rights Act of 1875. Other northern states scrambled to pass legislation that protected access to public accommodations for their

African American citizens.204

Theaters remained central battlegrounds in the minds of black activists who insisted that the fight for equality did not end with the abolition of slavery or with the Fifteenth Amendment that granted black male suffrage. Black activist and newspaper editor, T. Thomas Fortune, argued that very point, stating that when it came to equal access to public accommodations “such as theatres and kindred places of amusement, one man’s money, all things being equal, should be as good as another’s.” Fortune continued, “these matters reach down in the very

204 Bergeson-Lockwood, “’In Accordance with the Spirit of the Times’,” 92. 97 life of a people; they are fundamentally the things which in all times have moved men to associate themselves together in civil society.” Fortune equated equal access to theaters and public accommodations with suffrage, equality in public education, and the right to life, liberty, and personal protection from racial violence and lynching.205

For Fortune and others, theaters represented more than places of amusement; they were vital spaces where African American citizens asserted equality and participated in civil society.206 This expectation that equal access to theaters was linked to the rights of citizenship coincided with a theatrical boom in the 1880s and 1890s. Theater became even more engrained in both urban and rural society with the rise of vaudeville, the rebirth of minstrelsy, and the expansion of circuit companies that travelled throughout the United States and brought theatrical entertainment to even the most rural regions of the country.207

Theaters always had been important spaces for civil engagement in urban spaces.

In the era of expanding theatrical venues and vaudeville circuits, African

American activists understood the importance of attending the theater and demanded the right to equal access.

Activists used local, state, and federal courts to demand equal access to theaters and other public accommodations. In the wake of Congress’s passage of the 1875 Civil Rights Act black litigants took to the bar and sought redress against

205 T. Thomas Fortune, “The Afro-American League,” The Freeman, June 2, 1887. 206 Donald M. Scott, “The Popular Lecture and the Creation of a Public in Mid- Nineteenth-Century America,” The Journal of American History 66, no. 4 (March 1980): 791-809; Barbara L. Webb, “Authentic Possibilities: Plantation Performance of the 1890s,” Theatre Journal 56 (2004): 63-82. 207 Hill and Hatch, 67-80. 98 white discrimination. The dominant historical narratives of the 1875 Civil Rights

Act tended to downplay these legal actions. Historians used the fact that the act was declared unconstitutional as evidence that black activists could not adequately defend themselves in courtrooms. These histories echoed contemporaries in the 1870s and 1880s who wrote that “the few isolated efforts made to enforce it by legal process have hardly served to call attention to its existence.”208 The historical narratives discounted the work done by the activists discussed in the subsequent pages, and interpreted the Supreme Court’s decision to declare the act unconstitutional as a failure of black litigants to adequately defend it. Those histories ignored the success of black litigants in the lower state courts and the parallel development of state legislation that echoed the 1875 Civil

Rights Act.209

Those legal successes and the new state legislation filled the void of rights legislation once the 1875 act was declared unconstitutional and allowed African

Americans to continue to push for equal access to theaters and public accommodations. By 1900, eighteen northern and western states passed

208 New York Tribune, October 17, 1883. For historians on the 1883 Civil Rights Cases see: Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.W. Norton & Company, 2019), 151-157; George Anastaplo, Reflections on Constitutional Law, (Lexington: The University Press of Kentucky, 2006), 132-138, 139-145; Stephen Robinson, “African American Citizenship, the 1883 Civil Rights Cases and the Creation of the Jim Crow South,” History (2017), 226-241; Pamela Brandwein, “A Judicial Abandonment of Blacks? Rethinking the ‘State Action’ Cases of the Waite Court,” Law & Society Review 41:2 (2007), 343-386. 209 James McPherson, “Abolitionists and the Civil Rights Act of 1875,” The Journal of American History 52:3 (Dec. 1965), 493-510; Bertram Wyatt Brown, “The Civil Rights Act of 1875,” The Western Political Quarterly 18:4 (Dec. 1965), 763-775; Alfred Avins, “The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations,” Columbia Law Review 66:5 (May 1966), 873-915; L. E. Murphy, “The Civil Rights Law of 1875,” The Journal of Negro History 12:2 (April 1927), 110-127. 99 legislation securing civil rights for all citizens regardless of race. Other than

Wyoming, every state’s law included a specific reference to “theaters,” “places of entertainment,” or “places of amusement.”210

These newly-passed statutes were the result of African American activists bringing cases to local and state courts and arguing that equal access to public accommodations constituted a fundamental civil right. Despite the lack of federal legislation after the 1883 Civil Rights Cases, black activists successfully used the municipal and state courts to defend their right to a night at the theater.

Between 1873 and 1883 the United States Supreme Court did not enter the civil rights debate. It had tested the waters a bit with the Slaughterhouse Cases in

1873. Once the 1875 Civil Rights Act became law, it took eight years for a test case to come before the court. Ultimately, five separate cases from U.S. circuit courts across the country were brought to the U.S. Supreme Court in October 1882.211

(The five cases, or United States v. Stanley, et al. will be referred to by their common name: the Civil Rights Cases.) Each of the cases dealt with a distinct facet of the 1875 Civil Rights Act, and the U.S. Supreme Court decided to group them together in order to rule on the constitutionality of the act and its basis in the Reconstruction Amendments. Two of the cases dealt with equal access and accommodations in hotels and inns; one dealt with segregated cars on a railroad line, and the final two dealt with segregated seating within theaters. The Civil

210 Milton R. Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” The Annals of the American Academy of Political and Social Science 275 (May 1951), 47-52. 211 U.S. v. Stanley, et al 109 U.S. 3 (1883); C. Vann Woodward, The Strange Career of Jim Crow, (New York: Oxford University Press, 1974), 70-73. 100

Rights Cases were argued in October 1882 but were not decided until a year later.212

The majority justices of the U.S. Supreme Court were determined to protect the rights of the states from what they viewed as federal overreach. The

Civil Rights Cases nullified the Civil Rights Act of 1875 and weakened the enforcement of the Thirteenth and Fourteenth Amendments. Justice Joseph

Bradley penned the majority opinion of the court and focused on the distinction between state action and individual action. Bradley reasoned that the legislative authority for the Civil Rights Act of 1875 was the Fourteenth and to a lesser extent the Thirteenth Amendment.213 Simply put, in 1875 Congress believed it had the power to pass the Civil Rights Act based on its interpretation of the powers granted by the Fourteenth Amendment, but Bradley was not convinced.

Bradley believed that the Fourteenth Amendment’s application in the 1883

Civil Rights Cases was fundamentally flawed because the amendment only applied to state actions, not actions by individuals. Bradley’s opening salvo centered on the first section of the Amendment, which he described as

“prohibitory on the states” meaning it applied only to actions taken by state

212 Pamela Brandwein, “A Judicial Abandonment of Blacks? Rethinking the ‘State Action’ Cases of the Waite Court,” Law & Society Review 41:2 (2007), 343-386; Michael J. Horan, “Political Economy and Sociological Theory as Influences upon Judicial Policy- Making: The Civil Rights Cases of 1883,” The American Journal of Legal History 16:1 (Jan. 1972), 71-86; Michael A. Ross, “The Supreme Court, Reconstruction, and the Meaning of the Civil War,” Journal of Supreme Court History 41:3 (Nov. 2016) 275-294. 213 U.S. v. Stanley, et al 109 U.S. 3 (1883); Morroe Berger, Equality by Statute: Legal Controls Over Group Discrimination (New York: Columbia University Press, 1952), 48- 53; John Braeman, Before the Civil Rights Revolution: The Old Court and Individual Rights (New York: Greenwood Press, 1988), 66-68; George Anastaplo, Reflections on Constitutional Law, (Lexington: The University Press of Kentucky, 2006), 132-138, 139- 145. 101

authorities.214 He focused on the Amendment’s wording that “no State” could make or enforce a law denying equal protection, and wrote that “individual invasion of individual rights is not the subject-matter of the amendment.”215

Bradley was a Republican judge who had voted with the court’s minority against a narrow interpretation of the Thirteenth and Fourteenth Amendments in The

Slaughterhouse Cases (1873). His interpretation was starkly similar to the ruling in Slaughterhouse which determined that the wording of “privileges and immunities of citizens of the United States” only pertained to the small offering of rights granted and protected by the federal government.216 Bradley and his colleagues had narrowly defined the powers of the Amendment and gutted the constitutionality of the Civil Rights Act of 1875.

The U.S. Attorney arguing in defense of the 1875 Civil Rights Act sought to prove that the 1875 Civil Rights Act was not an unconstitutional overreach by the federal government. Attorney General Charles Devens articulated why state sponsorship through the process of licensure should be a significant factor in how those businesses were regulated. States granted licenses to certain businesses, specifically theaters and inns, in order to regulate their business practices.217 If a

214 U.S. v. Stanley, et al 109 U.S. 3 (1883). 215 U.S. v. Stanley, et al 109 U.S. 3 (1883); Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.W. Norton & Company, 2019), 151-157; Stephen Kantrowitz, More Than Freedom: Fighting for Black Citizenship in a White Republic (New York: Penguin Press, 2012), 411-413. 216 Slaughter-House Cases 83 U.S. 36 (1873); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (New York: Fordham University Press, 2005); Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York: Collier Books, 1965), 104-109. 217 Joseph W. Singer, “No Right to Exclude: Public Accommodations and Private Property,” Northwestern Law Review, 90 (Summer 1996), 1393. 102 business that was licensed by the state discriminated against a patron, Devens argued, that was equivalent to a state action of discrimination. Devens emphasized the fact that municipalities like New York City, Boston, and

Philadelphia furnished licenses to operate theaters and inns within cities. Once the state, through the arm of the local authority, had entered into a contract with a business through the act of licensure, that business was then subject to the state’s authority. For Devens and those in support of the constitutionality of the

Civil Rights Act of 1875, Congress had the “right to prohibit any discrimination against persons applying for admission to an inn or theater based upon race, color, or previous condition of servitude” because they were governing proprietors and businesses that, while in a sense private, were also state- sponsored entities providing for the general welfare.218

Devens’ argument backfired. It failed to sway the Supreme Court justices, and would ultimately be used as a precedent that protected the right of an individual to discriminate. After 1883, Devens’ language was cited in case law affirming the rights of business owners to exclude patrons at will. The Iowa

Supreme Court in Bowlin v. Lyon (1885) decided that since the U.S. Attorney made a distinction between franchised and private businesses, it would too. The result was a decision reversing a judgment in favor of African American plaintiffs who were barred from entering a skating rink by the white proprietor. “The public has assumed no control of [the skating rink] and it does not appear that it is a business in which the public have a concern[...]We see no reason why they

218 Logan, The Betrayal of the Negro, 114-119. 103

might not have limited their invitation to certain individuals or classes.”219 The

U.S. Supreme Court set the precedent: the Civil Rights Act of 1875 was no longer a weapon to be wielded against individual acts of discrimination.

Five days after the Supreme Court’s decision, T. Thomas Fortune wrote,

“the colored people of the United States feel to-day as if they had been baptized in ice water. From Maine to Florida [….] public meetings are being projected far and wide to give expression to the common feelings of disappointment.”220 Frederick

Douglass spoke at one of the public meetings organized at Lincoln Hall in

Washington, D.C. one week after the court’s decision. Douglass argued that “we have been, as a class, grievously wounded, wounded in the house of our friend, and this wound is too deep and too painful for ordinary measured speech.”221

Organizations like the Equal Rights League and Afro-American League made their frustrations with the Supreme Court’s decision known.

*Northern States and Civil Rights Legislation*

The rush to pass state laws guaranteeing equal access responded to the demands of African American citizens. In the wake of the 1883 Civil Rights

219 Ibid, 1394. 220 New York Globe, October 20, 1883, reprinted in Shawn Leigh Alexander, ed., T. Thomas Fortune, the Afro-American Agitator: A Collection of Writings, 1880-1928 (Gainesville: University of Florida Press, 2008) 15-17; see also Stephen Robinson, “African American Citizenship, the 1883 Civil Rights Cases and the Creation of the Jim Crow South,” History (2017), 226-241. 221 Philip S. Foner, ed., Life and Writings of Frederick Douglass, vol. IV (New York: International Publishers, 1954), 393. 104

Cases, a host of northern states moved immediately to pass legislation that mirrored the act in their own legislatures. By 1900 eighteen northern and western states had passed some version of a civil rights law.222 Only two states,

Massachusetts and New York, had legislation prior to the 1883 decision. Eleven states—Connecticut, Iowa, New Jersey, Ohio, Colorado, Illinois, Indiana,

Michigan, Minnesota, Nebraska, and Rhode Island—all passed a state civil rights law within two years of the nullification of the 1875 Civil Rights Act. Pennsylvania passed its law in 1887. The remaining four—Washington, California, Wisconsin, and Wyoming—passed laws in the 1890s. All but one state, Wyoming, referenced

“places of amusement” generally and fifteen specifically referenced “theaters.”223

Northern state legislatures brought the language of the nullified 1875 Civil

Rights Act into their state laws. State legislators understood that the 1875 Act was incredibly difficult to enforce. As discussed in the previous chapter, even

Massachusetts Senator Charles Sumner, the act’s author, recognized the limitations of the government to enforce the law.224 The state legislatures did nothing to strengthen the enforcement clauses of any of their acts. All eighteen laws depended on the individual victim of the discriminatory act to bring the case before the court—the laws did not require states to actively enforce racial

222 The eighteen states were: California, Colorado, Connecticut, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Washington, Wisconsin, and Wyoming. For a detailed analysis of the differences between these statutes see: Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” 47-52; Johnson, Development of State Legislation, 57-207. 223 Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” 49. 224 David H. Donald, Charles Sumner and the Rights of Man (New York: Alfred Knopff, 1970), 531-533. 105

equality.225 This is important to note because it seemingly corresponds with the dominant historical narrative that the nullification of the 1875 Act signaled the death-knell of Reconstruction and the progress of African Americans on civil rights.226

On the surface, Foner and other scholars were right: the 1875 Act was

“reduced to a dead-letter”—but only at the federal level.227 True, northern states passed legislation with no responsibility for enforcement; African American citizens had no real recourse. But that is not what happened—historians have ignored the multitude of lawsuits and criminal cases brought to northern courts that used new state civil rights laws to push for equality. Between 1883 and 1896 black theatergoers, restaurant patrons, hotel guests, and railway riders brought their fight for equal access to local and state courts throughout the north and demanded states uphold the newly passed civil rights legislation.228

Even states that already had civil rights laws amended or expanded those laws in the wake of the 1883 decision. Of the northern states, Massachusetts was the most progressive on civil rights—the state law protecting against

225 Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” 48-51. 226 One historian even goes so far as to state “in some respects the act was a meaningless achievement.” See: Vanessa Holloway, Black Rights in the Reconstruction Era (Lanham: Rowman & Littlefield, 2018), 15-17. Other histories that downplay the effectiveness of the act due to its limited enforcement see: Francine Romero, “Before the Federal Rights Revolution: The Impact of Northern State Civil Rights Laws in the First Half of the Twentieth Century,” Social Science History 43:2 (Summer 2019), 345-363; Brandwein, “A Judicial Abandonment of Blacks,” 345-346; Robinson, “African American Citizenship, the 1883 Civil Rights Cases and the Creation of the Jim Crow South,” 230-231. 227 Foner, The Second Founding, 151-157. 228 This chapter deals with six such cases, two involving theaters, two involving restaurants, and two dealing with access to modes of transportation. 106

discrimination was on the books beginning in 1865.229 During Reconstruction, however, New York became the first northern state to pass a new statute in the wake of the 1875 Civil Rights Act. Whether it saw the writing on the wall with the

1883 Civil Rights Cases or chose to simply shore up the state statutes in the event of a future reversal of the 1875 Act, the state legislature moved in 1881 to secure civil rights within its state statutes. New York’s 1881 law was a re-draft of its 1873 law described in the previous chapter and amended its language slightly. Now, rather than only protecting “citizens of the State” the 1881 law simply stated that

“no person” be denied the full and equal enjoyment of public accommodations.230

The law’s language also specified which businesses were considered “public accommodations:” hotels, taverns, restaurants, public conveyances on land and water, and finally theaters and other places of public resort or amusement.

Finally, New York’s 1881 statute made it clear whom this law was meant to protect. “Denying because of race, creed, or color, or aiding or inciting thereto every offense is a misdemeanor and punished accordingly.”231

Massachusetts cut right to the core of the issue by adding “color” and

“race” to the text of its 1885 law. “There shall be no distinction or discrimination on account of color or race, or except for good cause, in admission to or treatment in any theater, skating-rink, or other public place of amusement, whether

229 Johnson, The Development of State Legislation Concerning the Free Negro, 124; Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” 49.

230 Johnson, The Development of State Legislation Concerning the Free Negro, 150; Romero, “Before the Federal Rights Revolution,” 351-352. 231 Johnson, The Development of State Legislation Concerning the Free Negro, 150 107 licensed or not, or public conveyance, public meeting or inn, whether licensed or not.”232

In the case of Pennsylvania, earlier battles over civil rights laid the foundation for the commonwealth’s amended 1887 Civil Rights Law. During and immediately after the Civil War, black women like Carrie Recounts and Emma

Jane Turner, who experienced segregation on Philadelphia’s streetcars, brought their cases to court. They succeeded in convincing the state legislature to pass a law in 1867 that prevented “railroad[s] or railway corporation[s]” from segregating cars or discriminating against certain passengers based on race.233

The new law in 1887 grouped hotels, theaters, and other places of public amusement together with railroads and other public conveyances as places in which the state could regulate freedom. Like New York and Massachusetts, the legislature’s language was very specific. The law included specific protections for access to “theaters, concert halls, and places of entertainment or amusement.”234

Unlike all of the other state laws, it also mentioned three types of transportation: railroads, street-railways, and omnibus lines. The specificity of including street- railways and omnibus lines arose from the petitions by African American women activists in Philadelphia and other major metropolitan areas including

Harrisburg, the state capital.235 In Philadelphia, African American citizens rode

232 Ibid, 125 233 Johnson, The Development of State Legislation Concerning the Free Negro, 173. 234 Ibid, 174. 235 Judith Giesberg, Army at Home: Women and the Civil War on the Northern Home Front, (Chapel Hill: University of North Carolina Press, 2009), 110-115. H.E. Cox, “Jim Crow in the City of Brotherly Love; The Segregation of Philadelphia Horse Cars,” The Negro History Bulletin 26 (1962): 119-123; Roger Lane, Roots of Violence in Black Philadelphia, 1860-1900 (Cambridge, Mass.: Harvard University Press, 1986). 108 the streetcars to the theater and attended performances knowing that if they experienced discrimination, the law was on their side.

Other northern and western states passed laws mirroring the Civil Rights

Act of 1875 after the U.S. Supreme Court’s opinion. By 1900 eighteen states passed legislation banning discrimination based on race.236 The state statutes were all, at their core, a recapitulation of the overturned federal Civil Rights Act of 1875. The penalties for excluding patrons from public accommodations varied from state to state. Many were less punitive than the federal statute and only charged perpetrators with misdemeanor crimes and a maximum fine of $50.

Other states—New Jersey being the most extreme—leveled punishments on par with the struck down federal law. A person convicted of discriminating or barring entry to a public accommodation in New Jersey faced up to a year in prison and fines up to $1000.237 All of the laws, though, depended upon individual victims of discrimination bringing their cases to northern courts and suing for their equal rights.

*African Americans, State Legislation, and Public Accommodations*

African American victims of racial discrimination did just that—they brought dozens of cases to northern courts and demanded the states uphold their

236 Ibid. 237 Konvitz, “Legislation Guaranteeing Equality of Access to Places of Public Accommodation,” 49. 109 civil rights as citizens. The statutes and the response by black citizens reflected the growing movement to expand the rights and freedoms of African American citizens in northern states. State lawmakers recognized voids in their laws that allowed for the possibility of a portion of their citizens to be discriminated against. But legislators only saw these issues because their African American citizens brought cases to their municipal courts and fought to have their rights protected. State laws were used throughout the twentieth century Jim Crow era by civil rights organizations like the National Association for the Advancement of

Colored People to bring test cases to northern courts against discrimination.238

Two of the earliest cases centered on equal access to public accommodations and set important precedents for subsequent fights for access to theaters and places of amusement. The first, People v. King (1888) in New York, was brought by African American patrons who were denied access to a skating rink. The second, Ferguson v. Gies (1890) in Michigan, was brought by a black patron denied service at a restaurant. Both were early tests of newly passed state laws protecting civil rights based on race.239 People v. King (1888) ruled in favor of African American’s suing for equal access based on the idea of a state’s “police power” which authorized the state to punish businesses that threatened the general welfare—in this case by excluding patrons based on race. Ferguson v.

Gies (1890) challenged the entire idea that “separate” amenities could be “equal”

238 Matthew Lassiter, “De Jure/De Facto Segregation: The Long Shadow of a National Myth,” in Matthew Lassiter and Joseph Crespino, eds., The Myth of Southern Exceptionalism (New York: Oxford University Press, 2009), 25-48; Romero, “Before the Federal Rights Revolution,” 355-360. 239 People v. King 110 NY 418 (1888); Ferguson v. Gies 82 Mich. 358 (1890); David McBride, “Fourteenth Amendment Idealism: The New York State Civil Rights Law, 1873- 1918,” New York History 71:2 (April 1990), 207-233. 110 and used common law understandings of “public accommodations” to assert the authority of the state to punish businesses that discriminated based on race.

On June 13, 1884 three African American residents of Norwich, New York, attempted to purchase tickets to a skating exhibition. The rink’s proprietor,

Calvin L. King, advertised an evening of skating exhibitions by the Binghamton

“Apollo Club” at his rink in Norwich. The three men, George F. Breed, William

Wyckoff, and Charles Robbins were among the “several hundred” patrons who flocked to King’s establishment that day.240 Breed, Wyckoff, and Robbins attempted to purchase tickets to the event at the door of the rink. King’s employee at the ticket booth, acting in accordance with King’s instructions,

“refused to sell them tickets because they were persons of color.”241 The three men left the skating rink and immediately made a complaint to their local officials. The District Attorney indicted King and his agent under the New York

State civil rights law stating that King, the skating rink’s owner, excluded George

Breed, William Wyckoff, Charles Robbins, and others from both the physical space of the rink and the equal enjoyment of the rink and its amenities.242 King was found guilty of the charges and was fined $50. He appealed and his case made its way to the New York Court of Appeals.

The appellate court justices used King’s appeal to set a sweeping precedent in their state regarding civil rights, state power, and the definitions of public accommodations. King’s lawyers appealed on the grounds that the New York

240 People v. King 110 NY 418 (1888). 241 Ibid. 242 Ibid. 111

State statute, similar to the Civil Rights Act of 1875, should be deemed unconstitutional. Unfortunately for King, the New York Court of Appeals had a much broader idea of a state’s authority over its citizens than the U.S. Supreme

Court. Penned by Chief Judge of the Court of Appeals, Charles Andrews, the opinion centered on a broad interpretation of both the New York State and

United States constitutions. Andrews wrote that the clause in the bill of rights that protected “life, liberty, and property” should include not only acts by the government that threatened those rights but also acts by individuals. “The clause,” Andrews argued, “protects every essential incident to the enjoyment of those rights.”243 The court was very clear in its opinion that the bill of rights should be given a “large and liberal interpretation.” With the phrase “also protects every essential incident to the enjoyment of those rights,” the justices defined every potential violation of civil liberties as a violation of both the state and federal constitutions. The government was not the only potential violator of civil liberties; instead, any incident infringing on those rights was subject to state authority.244

The court also focused on the ability of state power to enforce civil rights legislation—even if that legislation seemed to violate the laws of private property—in the interest of the general welfare of the state’s citizens. According to the court, precedent existed for the constitutionality of the “police power of the state.” The court viewed “police powers” as unstated laws that authorized the

243 Ibid. 244 McBride, “Fourteenth Amendment Idealism,” 214-218.

112 state to regulate the actions of either businesses or persons who threatened the public. These powers superseded most rights of private property owners, if and when the use of the property threatened “the common good and general welfare.”

The court likened legislating access to public accommodations to legislation that punished tavern owners for crimes committed by patrons who became intoxicated at their establishments. Police power was not to be used to “deprive an individual of the right to pursue a lawful business,” but precedents existed that punished business owners for threatening the common good and general welfare.

In the court’s opinion, discriminating against patrons based solely on the color of their skin threatened the common good, and was thus subject to punishment by the police power of the state. 245

The phrase “state police power” used by the New York Court of Appeals described the duty of states to act on behalf of and for the interest of their citizens’ safety and welfare. The legal precedent was taken from the

Massachusetts Supreme Court’s decision in Commonwealth v Alger (1851). The court argued that the legislature was vested with the power to “establish reasonable laws, statutes, and other ordinances [….] as they shall judge to be for the good and welfare of the Commonwealth and subjects of the same.”246 Like

Massachusetts, many northern states interpreted their civil rights laws as extensions of “state police power;” they enforced policies on certain private

245 Ibid, 220-221. 246 Thomas C. Mackey, Red Lights Out: A Legal History of Prostitution, Disorderly Houses and Vice Districts, 1870-1917, (New York: Garland Publishing, 1987), 215. 113 properties and businesses in order to protect the welfare and safety of the greater population of citizens regardless of race.247

However, the issue of state police power came into conflict with municipal authorities who deemed their own statutes and municipal codes as having precedent over local matters like business licenses and property usage. People v.

Ah Ho (1878) was an example of this conflict that reached the Supreme Court of

Idaho. Ah Ho, a Chinese immigrant and sex worker, was arrested and cited for residing in a “bawdy house” which was against the Idaho state law. However, Ah

Ho appealed her conviction on the basis that Boise City, where the bawdy house sat, had granted its mayor the power to regulate, fix the location of, or abolish bawdy houses in the city.248 Thus, the Supreme Court of Idaho overturned her conviction on the grounds that the state could not prosecute and fine her; those powers were granted to the municipality under its charter.

When it applied these ideals of “police power” to the People v. King decision, the New York State Court of Appeals entered the debate over licensure of certain types of businesses engaged in “public amusement.” As stated previously, theaters, hotels, taverns, and other “places of amusement” were often issued licenses by states or municipalities in order to conduct their business.

Under common law, licensure was often the prerequisite for a business to be considered a “public accommodation.”249 Because the public authority issued

247 Kate Masur, “State Sovereignty and Migration before Reconstruction,” The Journal of the Civil War Era 9:4 (Dec. 2019), 588-611; Dale Kretz, “Pensions and Protest: Former Slaves and the Reconstructed American State,” The Journal of the Civil War Era 7:3 (Sep. 2017), 425-445. 248 Mackey, Red Lights Out, 224. 249 A.K. Sandoval-Strausz, Hotel: An American History, (New Haven: Yale University Press, 2007), 290; George Rutherglen, Civil Rights in the Shadow of Slavery: The 114 licenses the space was deemed “public,” even if it was technically privately owned. This was one of the many reasons “theaters and places of amusement” were linked to public accommodation law and civil rights legislation. They were one of the clearest examples of a “public accommodation” in most cities.250

In People v. King, the New York State Court of Appeals weighed whether the state could compel private business owners to admit patrons regardless of race. The court concluded that the “business of conducting a theater or place of public amusement” was in fact a private business. However, the state legislature tasked municipalities with regulating theaters through licensing, thereby inserting the “public authority” into private business.251 That process of licensing gave the municipalities the power to “enforce restrictions relating to such places, in the public interest.”252 It used this precedent to argue that the state statute enforcing fair access to public accommodations was no different from the criteria for granting or withholding licenses from other private businesses, like theaters, that did not comply with the “public interest.” The New York State Court of

Appeals used theaters and other places of “public accommodation” defined under common law to uphold the constitutionality of New York State’s civil rights law.

George Breed, William Wyckoff, and Charles Robbins were trying to gain access to a skating rink, but their use of the law to claim equal rights by bringing a complaint to the local magistrate became a touchstone for a sweeping precedent

Constitution, Common Law, and the Civil Rights Act of 1866 (New York: Oxford University Press, 2013). 250 Sandoval-Strausz, Hotel, 291-293. 251 McBride, “Fourteenth Amendment Idealism,” 217. 252 People v. King 110 NY 418 (1888). 115 regarding a state’s role in the application of “police power,” “common law,” and the equal rights of citizens. The court’s final statement laid bare the complicated place of civil rights and equality in northern states like New York. It ruled that the state’s civil rights legislation did not interfere with private business; the law merely protected access to public spaces including theaters. However, the court was careful to note that the statute did not “seek to compel social equality.”253

The justices were careful to distinguish between protecting the rights of African

American citizens under the theory of common laws governing places of public amusement and the enjoyment of social equality. Public accommodations needed to be regulated, the court argued, because they were under the jurisdiction of the state. But social equality for African Americans could not be legislated. No law could compel white northerners into viewing African American citizens as social equals.

The second case to take up the issue of state civil rights statutes in the wake of the Civil Rights Cases was Ferguson v. Gies (1890) in the Supreme Court of Michigan. On August 15, 1889 William W. Ferguson, an African American citizen of Detroit, Michigan, entered a restaurant in the city owned by Edward G.

Gies. Ferguson alleged that the restaurant was split into two distinct “sides” one furnished with fine glassware and tablecloths and the other with wooden tables and beer glasses. Ferguson and a friend sat on the side furnished with tablecloths when a waiter approached and stated that they could not be served on the

“restaurant” side but would need to move to a table on the “saloon” side in order

253 Ibid. 116

to be accommodated.254 Gies testified in the lower court that he “refused to serve

Ferguson for no other reason than that he was a colored man.”255 Ferguson brought a complaint to the local authorities and the case was brought to circuit court.

The case turned on the circuit court justice’s interpretation of the 1885

Michigan Civil Rights Act which stated that “all persons are entitled to the full and equal accommodation of inns, restaurants, eating-houses, barbershops, public conveyances on land and water, theatres, and all other places of public accommodation and amusement.”256 Wayne County Circuit Judge, George

Gartner instructed the jury in the case and used his own interpretation of “full and equal.” He stated that “full and equal” did not mean identical accommodations, but “substantially the same accommodation.” Justice Gartner used the example of a hotel guest being unable to demand a particular room, as long as all of the rooms in the hotel were “substantially the same.”257

In 1890 Justice Gartner’s language was not as haunting as it would be for

African Americans six years later. His interpretation of “full and equal enjoyment” was eerily similar to the forthcoming 1896 Plessy v. Ferguson decision of the U.S. Supreme Court. Ferguson v. Gies was just one of many test cases that introduced various legal arguments and precedents into the common law of the United States that would later be used by the U.S. Supreme Court to establish the doctrine of “separate but equal” accommodations. The circuit court

254 Ferguson v. Gies 82 Mich. 358 (1890). 255 Ibid. 256 Johnson, The Development of State Legislation Concerning the Free Negro, 127. 257 Ibid. 117 jury in Michigan took these instructions and found for the restaurant owner,

Gies, on the grounds that there was a table offered to Ferguson in a different but

“equal” section of the establishment.258

The Supreme Court of Michigan had a very different interpretation from

Circuit Court Justice Gartner. In a unanimous decision the court threw out the circuit court verdict and took the opportunity to deliver a stunning thesis on the importance of civil rights legislation at the state level. The justices wrote that

Michigan’s civil rights law was much more than just a statute, but rather it

“exemplified the changed feeling of our people towards the African race, and placed the colored man upon a perfect equality with all others, before the law in this State.”259 The court expanded the language of the statute to remove any perception that “separation” could ever mean “equality.” This alone was a major blow to the proponents of “separate but equal.”

The court went further, however. Ferguson v. Gies was yet another instance of African Americans using the laws of public accommodations and places of amusement to assert the rights granted them as citizens of the states.

The justices of the Supreme Court of Michigan used the case to draw a line in the sand against not only acts of discrimination but opinions and feelings of prejudice in their state.

The prejudice against association in public places with the negro, which does exist, to some extent, in all communities, less now than formerly, is unworthy of our race; and it is not for the courts to cater to or temporize with a prejudice which is not only not humane, but unreasonable. Nor shall I ever be willing to deny to any

258 Ferguson v. Gies 82 Mich. 358 (1890). 259 Ibid. 118

man any rights and privileges that belong in law to any other man, simply because the Creator colored him differently from others.260

The justices refused to accept that any court or statute should “cater to or temporize with a prejudice.” The court made an attempt to legislate opinion: it acknowledged the existence of prejudice but vehemently denied its place in any court of law. The Supreme Court of Michigan made a strong statement against segregation, discrimination, and the concept of “separate but equal” accommodations. It overturned the lower court ruling and judged for the plaintiff, William Ferguson.261

These various court records reflected a pattern of discrimination by northern white proprietors of public accommodations and places of amusement.

Many were determined to deny access to African Americans. Others, like Edward

Gies, believed that by offering segregated spaces within their establishments they complied with the law while also protecting the racial sensibilities of their white customers. Whatever the motivation, northern white business owners and managers attempted to find ways of circumventing the newly passed state statutes.

African Americans in northern states faced tremendous challenges when suing for their rights. The two cases above, People v. King and Ferguson v. Gies represented two different ways in which states chose to implement civil rights legislation. People v. King was a criminal case in which the defendant, King, was charged with a misdemeanor criminal offense by the District Attorney of the

260 Ibid. 261 Ibid. 119 municipality. Ferguson v. Gies was a civil case; Ferguson sued Gies for damages under the language of the civil rights law. Before 1896, most northern states with civil rights laws only allowed for civil actions. New York and Massachusetts were the exceptions. This reliance on civil litigation versus criminal placed the onus of bringing suit onto the African American citizens whose rights were violated. It was commonly known, for instance, among Chicago’s saloon owners and liquor dealers that because the civil rights law was not classified as criminal, the police made no arrests for the violation; someone had to go to court and institute civil action.262

For African Americans in states without codified civil rights laws, the fight for equality was even more daunting. The legal precedents from northern courts based on northern state statutes had no bearing on cases in southern courts without civil rights laws. The case of Younger v. Judah (1892) in the Supreme

Court of Missouri offered an opinion on civil rights cases that had no basis in state statutes. Younger, an African American citizen of Kansas City, Missouri, and his companion, an unnamed African American woman, attempted to sit in the orchestra section of the Ninth Street Theater in Kansas City. The ushers of the theater denied them access because they were African American. Younger left the theater and later sued in circuit court alleging that his civil rights had been violated.263

262 Perry R. Duis, The Saloon: Public Drinking in Chicago and Boston, 1880-1920, (Urbana: University of Illinois Press, 1983), 157. 263 Younger v. Judah 11 Mo. 303 (1892). 120

The Circuit Court of Jackson County, Missouri, ruled in favor of the theater manager, Judah. Younger appealed to the Supreme Court of Missouri, but the court affirmed the ruling. The State Supreme Court referenced the fact that many states had enacted statutes, and many of their courts had already heard cases that tested those state laws.264 The court then listed the myriad cases already discussed—Baylies v. Curry (1889), Ferguson v. Gies (1890), and People v. King (1888)—all of which dealt with access to theaters and other public accommodations, and ruled that proprietors of a business could be held liable for refusing to admit a patron based on race. The justices then added, “as we have no such statute, these cases furnish no aid in the solution of the question now in hand.”265 Because of the lack of a state statute protecting civil rights, Younger’s claim was thrown out of court.

These cases proved the existence of a pattern of discrimination and segregation throughout United States. The conflicts reflected when African

American patrons or performers had the opportunity, means, and access to use the court system. The criminal cases became part of the public record because the municipal officials on the ground took statements and pursued charges. And they existed because African American plaintiffs had access to legal representation.

For decades, African Americans had made extensive use of the legal system.

Black activists and organizations understood that that best way to legally guarantee equality of public accommodations occurred through the United States

Supreme Court. Black litigants and their attorneys, like in the Tillotson case from

264 Ibid. 265 Ibid. 121 the previous chapter, attempted to bring test cases through the court system and get them onto the U.S. Supreme Court’s docket.266

*Plessy v. Ferguson and Judicial Reinterpretations of State Laws*

In 1896, the U.S. Supreme Court ruled that social equality—the right to equal access to theaters and public accommodations being one of its main pillars—was not the same as political equality. The ruling in Plessy v. Ferguson

(1896) changed the landscape of civil rights cases throughout the country. The case stemmed from a Louisiana test case in which African American activists chose Homer Plessy to test the State of Louisiana’s 1890 “Separate Car Act.” The act dictated that railways and streetcar lines furnish separate cars for black and white riders. Plessy’s organization brought its suit up through the Louisiana courts on the grounds that the law violated their Fourteenth Amendment rights to equal protection. However, the U.S. Supreme Court famously ruled against

Plessy and established the legal doctrine of “separate but equal” accommodations.267 The majority opinion of the court, written by Justice Henry

266 Steve Luxenberg, Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation (New York, W.W. Norton & Company, 2019), 344. 267 Plessy v. Ferguson 163 U.S. 537 (1896). For a comprehensive synthesis of the case, its inception, and its aftermath see: Luxenberg, Separate: The Story of Plessy v. Ferguson. For more on the inception of the case, see: Rebecca J. Scott, “The Atlantic World and the Road to ‘Plessy v. Ferguson’,” The Journal of American History 94:3 (December 2007), 726-733; Carolyn Karcher, “Albion W. Tourgée and Louis A Martinet: The Cross-Racial Friendship behind ‘Plessy v. Ferguson’,” MELUS 38:1 (Spring 2013) 9-29. For more on the fallout of Plessy and its impact on African Americans see: Mark Golub, “Plessy as ‘Passing’: Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson,” Law & Society Review 39:3 (Sep. 2005), 563-600. 122

Billings Brown, determined that the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality.”268 Therefore, the Fourteenth Amendment, which formed the foundation of every individual state’s civil rights statute, could not afford social equality because it unconstitutionally attempted to legislate racial prejudice.

Plessy’s attorneys argued that segregation laws marked black Americans as inferior to whites. If African Americans could not access the same accommodations, they argued, the nation was placing a “badge of inferiority” upon an entire race of its citizens. The Supreme Court rejected this argument, stating that if black Americans believed that segregation marked them as inferior “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.”269 The Court ruled that laws enforcing segregation did not mark races as differently equal.

The landmark opinion also offered a dissent from Supreme Court Justice

John Marshall Harlan. A man who became known as “The Great Dissenter,”

Harlan was the only justice to depart from his colleagues. He took his fellow justices to task stating that in the case of the Louisiana Separate Car Act “the thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert

268 Plessy v. Ferguson 163 U.S. 537 (1896). 269 Ibid; Luxenberg, Separate: The Story of Plessy v. Ferguson, 344-345. 123

the contrary.”270 He ended the dissent with a scathing warning for the future. “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”271 The

Dred Scott case was a stepping stone to civil war, and the Plessy case quickly became the cornerstone of the new Jim Crow reality.

The immediate aftermath of Plessy saw multiple African American defendants in state courts lose civil rights lawsuits against discriminatory white businesses. The Minnesota Supreme Court ruled in Rhone v. Loomis (1898) that

“saloons” did not fall under the jurisdiction of Minnesota’s civil rights law of

1897.272 The Minnesota law contained the phrase “or other places of refreshment” when outlining the types of accommodations covered by the law.

The court stated specifically that the law was to be “strictly constructed” and

“where general terms follow specific terms, they will be limited to things or places of the same general character.” The court ruled that a saloon dealing with

“intoxicating liquors” was not the same as a restaurant, inn, or eating-house because “dealing in intoxicating liquors is not one of the privileges or immunities guaranteed by the constitution.”273 The Minnesota civil rights law was declared unconstitutional in this case because of the justice’s interpretation of the right to consume alcohol in a saloon versus the right to consume non-alcoholic beverages in a restaurant.

270 Ibid. 271 Ibid. 272 Rhone v. Loomis 74 Minn. 200 (1898). 273 Ibid. 124

The 1899 case of Anderson v. Rawlings reflected the changing interpretation of state civil rights statutes in the wake of the Plessy decision. In

1899 the State of Ohio, First Circuit Court, Hamilton County decided the case of

M. C. Anderson v. James W. Rawlings. Anderson, a white theatrical producer, brought his appeal to the First Circuit Court after the Court of Common Pleas in

Hamilton County charged him with a misdemeanor under the Ohio Civil Rights

Act and compelled him to pay Mr. Rawlings $500 in damages. Anderson had leased the Fountain Square Theater Company in Hamilton County, Ohio, for a week of performances in 1898. Rawlings, an African American citizen of

Hamilton County, attempted to purchase a ticket to the performance. Rawlings alleged that the ticket seller refused to sell him tickets to the parquet section on account of his race. The lower court of common pleas ruled in favor of Rawlings, but the Circuit Court overturned the decision.274

The First Circuit Court of Hamilton County, Ohio, set a precedent in

Anderson v. Rawlings (1899) that centered on the proof necessary to indict a business proprietor for violating a civil rights law. The justices reversed the lower court’s decision on the grounds no evidence existed that Anderson, the producer, had personally discriminated against Mr. Rawlings. Since Anderson did not refuse Mr. Rawlings entrance, he was not liable for the actions taken by his employees. In the end, the lower court’s decision was reversed, and Rawlings’ forfeited the $500 in damages.275

274 M.C. Anderson v. James W. Rawlings 10 Ohio Cir. Dec. 112 (1899). 275 Ibid. 125

The losses by African American litigants, like those in Rhone v. Loomis and Anderson v. Rawlings, reflected the new reality of American racial discrimination. Black plaintiffs faced an ever-increasing number of legal precedents that ruled against their rights to equal access to theaters and other public accommodations. Those same theatrical spaces were also going through a parallel transition—one that saw rapid growth in the number of theaters, but declining opportunities for black performers on white stages. Like black litigants, black theatrical professionals needed to carve out their own spaces to assert their right to equal access during the era of Plessy v. Ferguson.

*African American Theater in the Plessy Era*

The 1890s saw a significant rise in the number of black theatrical ventures in the major urban centers of northern states. Errol Hill, the foremost authority on African American theater, wrote “as the century entered its closing decade, the involvement of African Americans in the theatre as a profession could no longer be officially ignored.”276 The 1890 census was the first national census that included an enumeration of African Americans in the performing arts showing

1,881 musicians and music teachers, 1,310 showmen and theatrical managers, and 180 actors.277 The first decade of the twentieth century saw the meteoric rise

276 Errol Hill and James V. Hatch, A History of African American Theater (New York: Cambridge University Press, 2003), 90. 277 Report on the Population of the United States at the Eleventh Census, 1890 (Washington, D.C.: Government Printing Office, 1897), part 2, table 82, 335. 126 of Bert Williams and George Walker but also lesser-known but no less famous vaudevillians like Ernest Hogan and Billy McClain.278 Black theatrical artists in

New York City were determined to carve out a place for themselves on

Broadway’s stages, even if they needed to create those opportunities on their own.

One of the first major enterprises that offered black performers opportunities in New York City came in 1895. That summer, an enormous pageant swept into Brooklyn, New York’s Ambrose Park that transported urban northerners to the “sunny south of the antebellum era.” The pageant, Black

America, was the brainchild of Nate Salsbury, known as the master of outdoor entertainments responsible for Buffalo Bill’s Wild West Show.279 Salsbury was a white theatrical manager and an accomplished creator of outdoor spectacle performances like the Wild West Show. To create Black America, Salsbury recruited nearly five hundred black performers from Virginia and the Carolinas to come to Brooklyn and depict a massive “nostalgic view of slavery as a beneficent institution.”280 While the content of Salsbury’s massive undertaking was less than progressive, there were clear practical advantages of working with Salsbury’s massive organization.

278 Hill and Hatch, A History of African American Theater, 130-134. See also Karen Sotiropoulos, Staging Race: Black Performers in Turn of the Century America (Cambridge: Harvard University Press, 2006); Louis Chude-Sokei, The Last “Darky:” Bert Williams, Black-on-Black Minstrelsy, and the African Diaspora (Durham: Duke University Press, 2006). 279 Lori L. Brooks, “Journey to a Land of Cotton: A Slave Plantation in Brooklyn, 1895,” American Studies 53:1 (2014), 57-78; Webb, “Authentic Possibilities: Plantation Performance of the 1890s,” 74-81. 280 Brooks, “Journey to a Land of Cotton,” 58. 127

Salsbury’s work paralleled the rise in minstrel performance that pervaded the 1880s and 1890s. These new minstrel shows featured “authentic” black bodies—often black performers in burnt cork—rather than the antebellum tradition of white men and women in blackface.281 The new minstrel tradition relied on similar tropes as antebellum minstrelsy, but now featured black performers who could make a living in the theater. The content, like Salsbury’s

Black America, presented a racist view of black life, but the performers themselves received weekly wages, lodging while on tour, and steady employment.282

One of the black performers employed by Salsbury was Billy McClain, one of the most notable black vaudeville performers of the twentieth century. McClain got one of his earliest opportunities to produce and direct while working with

Salsbury’s Black America. McClain’s contemporary, Thomas Fletcher, noted in his memoirs that Black America helped launch the careers of the early generation of black vaudevillians.283 McClain served as a performer in the pageant but also as its stage manager. He recruited for Salsbury, rehearsed the performers, conducted the choir, and assisted with the conceptual design of the show.

McClain would later write that his experience working with Black America helped train him for his subsequent work in the vaudeville circuit. More importantly, he stated that Black America “was the most stupendous thing of its

281 Hill and Hatch, History of African American Theatre, 93-134; W.T. Lhamon Jr., Raising Cain: Blackface Performance from Jim Crow to Hip Hop (Cambridge, Mass.: Harvard University Press, 1998), 1-6. 282 Hill and Hatch, History of African American Theatre, 142-144. 283 Tom Fletcher, 100 Years of Show Business: The Tom Fletcher Story (New York: Burdge, 1954), 94-97. 128 kind ever attempted by and for co lord [sic] people. . . . [l]n successfully staging and producing the last named play I conclusively demonstrated my creative and executive ability.”284

Nate Salsbury and Billy McClain’s work on Black America was a theatrical enterprise, but the pageant’s place in New York City’s history fit into the broader story of the changing demographics of the City. Historian Lori Brooks argued that

Black America helped to reveal the racial tensions bubbling under the surface of the city.285 The pageant arrived in 1895, the same year New York State passed the latest iteration of its Civil Rights Act. Civil rights legislation was on the books in

New York since the 1860s, but the latest version raised the fines for violations of the law and made violations subject to misdemeanor charges in criminal court.286

Black America was a popular attraction for New York’s African American residents, but some offered harsh critiques. The pageant offered a depiction of

African American society that was incongruous to the real lives of black New

Yorkers. The pageant smoothed over slavery and depicted “bygone days” where southern black people were content with their position. This contrasted with the changing face of African American culture in the North. As Salsbury himself suggested, “urban and northern life had ‘spoiled’ something essential and authentic in African Americans and insinuated that urban blacks were

284 Blossom, McClain Folder, Billy Rose Theater Collection, New York Public Library. 285 Brooks, “Journey to the Land of Cotton,” 71. 286 Johnson, The Development of State Legislation Concerning the Free Negro, 147. Until that year, cases in New York could only be brought in civil court. Now, violators were subject to criminal grand jury indictments. Section 2 of the new law stated that violators “shall for every such offense forfeit and pay not less than $100 nor more than $500 to the person aggrieved thereby, and shall also be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $100 nor more than $500, or shall be imprisoned not less than thirty days nor more than ninety, or both.” 129

‘inauthentic’ representations of black America.”287 Salsbury referenced this notion of “inauthentic” blackness after an African American patron of Black

America was forcibly removed from the pageant grounds after complaining “his race was being burlesqued in the cake walk.”288

Beyond Salsbury’s Black America, African American theatrical professionals in New York and other northern urban centers asserted their presence on the stage and changed the trajectory of black theatrical performance.

Theater historian Jocelyn Buckner noted that by the 1890s, black entertainers were moving from the minstrel show to more “modern forms” of stage entertainment such as vaudeville and musical comedies.289 The musical comedy movement, led by Bert Williams and George Walker, offered new opportunities for black performers to grace the stages of northern cities. The new wave of black theatrical professionals created brand new shows that challenged the minstrel tradition and sought to legitimize their work in the profession.290 As the twentieth century began, black theatrical workers continued to assert their right to produce and perform.

The legal and cultural landscape for civil rights looked bleak only a decade after Josephine Curry sued and won in Illinois Supreme Court. Curry’s 1888 case against the manager of the People’s Theater of Chicago served as a strong rebuke of northern discrimination and a signal that African American citizens could use

287 Brooks, “Journey to the Land of Cotton,” 70. 288 “Black America,” New York Daily Mirror, July 6, 1895. 289 Jocelyn L. Buckner, “‘Spectacular Opacities:’ The Hyers Sisters’ Performances of Respectability and Resistance,” African American Review 45:3 (Fall 2012), 309-323. 290 For more on the new wave of musical comedy creation see Hill and Hatch, A History of African American Theatre, 135-158. 130 the legal system to protect their equal rights to access in public accommodations and places of amusement.

By 1899 though, those signals and rebukes were happening less often; they were replaced with couched legal jargon that overturned black courtroom victories and declarations that any equal rights legislation could be deemed unconstitutional. Northern case law was transformed in the eight years between

Curry’s case in Chicago and the U.S. Supreme Court’s decision in Plessy v.

Ferguson (1896). The dozens of African American litigants who brought suits to northern judges and juries fundamentally altered the course of the nation’s civil rights legislation. For many, their goal was to be Homer Plessy, to get their case all the way to the U.S. Supreme Court in the hopes that the justices there would one and for all stamp them with the seal of equality.

Despite the outcome of Plessy v. Ferguson black northerners inside and outside the courtroom had spent the final decade of the nineteenth century re- writing the unwritten rules in northern cities. Citizens like Curry, Ferguson,

Burks, and Rawlings asserted their rights to attend theatrical productions while

McClain, Williams, Walker, and Fletcher pushed their way onto the northern stages. Theaters and public amusements were at the heart of these civil rights battles because the two paths to equal rights were perfectly entwined. The right to attend mirrored the right to perform. And in both arenas, African American citizens took center stage.

131

Chapter 4

The Curtain Falls: Life After Plessy v. Ferguson, 1900-1920

Plessy v. Ferguson changed the landscape of civil rights legislation in the

United States. The U.S. Supreme Court upheld Louisiana’s 1890 “Separate Car

Act” which demanded “separate and equal” train cars be provided for white and black travelers.291 With that decision the court sanctioned state laws and constitutions that featured codified segregation known as “Jim Crow.” The era was defined by the legal and social understanding that the white and black races should exist separately whenever possible. The “separate but equal” ruling in

Plessy was often said to have “made segregation the law of the land.”292 While that was certainly the case, the reality was much more complex. For much of the country, including many northern municipalities, segregation had been the law of the land for decades.293

Throughout the two decades after the Plessy decision, African American activists continued to sue for their rights in northern courts with little to no

291 Plessy v. Ferguson 163 U.S. 537 (1896). For more on the legal precedents set by Plessy v. Ferguson see William James & Hull Hoffer, Plessy v. Ferguson: Race and Inequality in Jim Crow America, (Lawrence: University of Kansas Press, 2012); Blair Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson, (Chapel Hill: The University of North Carolina Press, 2010). 292 Kelley, Right to Ride, 15. Kelley states “Plessy’s prominence, however, has left many people with the mistaken notion that segregation began at that moment and that it was really just a southern problem.” 293For more on northern segregation more broadly, particularly in transit see: Kelley, Right to Ride, 15-32; for more on the northern history of segregation in schools see Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, (Chapel Hill: The University of North Carolina Press, 2007), 151-172; Thomas Sugrue, Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North, (New York: Random House, 2008). 132

success.294 However, their tenacity in the courtroom was supported by auxiliary organizations, cultural groups, and an ever-expanding network of black community organizations that fought a parallel fight for civil rights beyond the courts.

This chapter examines the two decades post-Plessy and highlights the continued importance of theaters and other places of amusement to the construction of African American citizenship. Two court cases, Thomas v.

Williams (1905) and Commonwealth v. George (1915) centered on how African

Americans articulated their rights as citizens to go to the theater. Despite suffering losses in both cases, the presence of African American litigants during this period revealed a continuation of the struggle for equal rights in the North well into the twentieth century—long after Plessy had codified segregation.

African American litigants continued to sue for access to a variety of public accommodations during the first decades of the twentieth century. The cases explored in this chapter each contributed to a growing body of legal precedents articulated by northern state judiciaries. In the wake of Plessy, judges used cases brought by black plaintiffs in the nineteenth century to reinterpret civil rights.

With no federal civil rights law, African Americans appealed to state statutes that protected civil rights, all of which remained on the books throughout the twentieth century. Despite state laws that prohibited racial discrimination, state

294 Robin F. Bachin, “Mapping Out Spaces of Race Pride: The Social Geography of Leisure on the South Side of Chicago, 1900-1919,” in “We Shall Independent Be:” African American Place Making and the Struggle to Claim Space in the United States eds. Angel David Nieves & Leslie M. Alexander, (Boulder: University of Colorado Press, 2008). 133 judiciaries applied the language of the federal case law in Plessy to limit black citizens’ rights.

In the United States after Plessy white theater managers, railroad owners, and hotel proprietors in the South made the same arguments against equal access to accommodations as their northern counterparts.295 Even the Plessy decision itself used rulings from northern cases, like New York’s People v. King (1888), to rationalize “separate but equal.”296 The “Jim Crow Era” documented in photographs of southern cities littered with “Whites Only” signs, separate water fountains, and “No Coloreds Allowed” warnings was not solely a southern project.

It built on decades of discrimination and segregation on the part of northern private business owners who defended their racism in the courts.

The post-Plessy moment for African American citizens in northern cities codified in a national legal ruling what had been true for decades below the federal level: African Americans were denied access to certain spaces because of the color of their skin. Black people, however, did not quietly accept the situation.

Between 1896 and 1915 twenty cases across northern and western states pitted

African American plaintiffs against white business owners over access to public accommodations. Of those twenty cases, six involved theaters or performance

295 Kelley, Right to Ride, 15-25. Kelley’s first chapter “New York” documents northern discrimination and connects the rationale in New York City to later discriminatory practices in the Jim Crow South. 296 The majority justices in Plessy v. Ferguson cited numerous northern state courts to form the foundation of their legal precedent. A selection of those cases includes: West Chester &c. Railroad v. Miles (Pennsylvania), Chicago &c. Railroad v. Williams (Illinois), and People v. King (New York). 134

venues.297 Federal statutes and constitutional amendments could not help

African Americans after Plessy, so they redoubled their efforts in state courts. In short, at least once per year between 1896 and 1915 an African American appeared in a northern appellate, superior, or supreme court to argue for their civil rights under state laws, though few secured legal victories.

These decades were not solely defined by losses, however. Recently, scholars of African American literature and culture have worked to reassert the importance of the post-Reconstruction, pre-Harlem Renaissance era.298 In 1954, historian Rayford Logan deemed the era to be the “nadir” of African American political life.299 His foundational scholarship considered the limitations of the reconstruction amendments and rise of widespread state sanctioned violence, particularly lynching. This chapter, however, builds upon the developing tradition that points to a countermovement happening simultaneously that

297 The six cases directly involving theaters are: Anderson v. Rawlings (1899), Thomas v. Williams (1905), Davis v. Euclid Avenue Garden Theatre (1911), Joyner v. Moore Wiggins Co. (1912), Woolcott v. Shubert (1915), and Commonwealth v. George (1915) 298 There are plenty of recent works that challenge the idea of this period as a nadir. See: Post-Bellum, Pre-Harlem: African American Literature and Culture, 1877-1919, eds. Barbara McCaskill & Caroline Gebhard, (New York: New York University Press, 2006); Shirley Moody-Turner, Black Folklore and the Politics of Racial Representation (Jackson: University Press of Mississippi, 2013); W. T. Lhamon, Raising Cain: Blackface Performance from Jim Crow to Hip Hop (Cambridge, Mass. ;London: Harvard University Press, 2000); Daphne Brooks, Bodies in Dissent: Spectacular Performances of Race and Freedom, 1850-1910 (Durham: Duke University Press, 2006); Karen Sotiropoulos, Staging Race: Black Performers in Turn of the Century America (Cambridge, Mass.: Harvard Univ. Press, 2008); Camille F. Forbes, Introducing Bert Williams: Burnt Cork, Broadway, and the Story of America’s First Black Star (New York: Basic Civitas, 2008); Koritha Mitchell, Living with Lynching: African American Lynching Plays, Performance, and Citizenship, 1890-1930 (Urbana: University of Illinois Press, 2012); Thomas Laurence Riis, Just before Jazz: Black Musical Theater in New York, 1890-1915 (Washington: Smithsonian Institution Press, 1989). 299 The concept of this era as a “nadir” was introduced by historian Rayford W. Logan’s 1954 book The Negro in American Life and Thought: The Nadir, 1877-1901 (New York: Dial Press, 1954). He continued the project in The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (New York: Da Capo Press, 1965). 135 evidenced a vibrant and growing African American political social and culture life.

While the terrain was certainly harder to navigate, African Americans continued to push for access to leisure, and, moreover, moved to develop their own cultural institutions and spaces of public life. New developments in African

American theater highlighted this shift to black-owned and operated institutions.

African American plaintiffs did not stop seeking their day in court after Plessy.

African American theater companies and vaudeville acts did not shutter doors and cease to perform. Instead, plaintiffs flooded northern courts with cases arguing for equal access, and the black theatrical movement exploded throughout the north in the 1890s and early twentieth century.

*Black Litigants and Theatrical Spaces*

At the turn of the twentieth century theaters remained pivotal battlegrounds in the fight for civil rights, but those battles became much harder to win. New legal precedents, like those set in Anderson v. Rawlings (1899) made it difficult to sue an individual for discrimination because courts continued to rule that no civil rights law protected against “individual” actions, only “state” actions.300 In 1905, the case of Thomas v. Williams reached the New York State

300 M.C. Anderson v. James W. Rawlings 10 Ohio Cir. Dec. 112 (1899). See previous chapter 3, 30-32. 136

Supreme Court, Appellate Division.301 Percy Williams, the owner of a Manhattan theater, appealed the lower court’s ruling that he had violated the New York State

Civil Rights Act. The Municipal Court of Manhattan’s tenth district had ruled in favor of Lucy Thomas, an African American woman who attempted to enter

Williams’ theater. Thomas claimed that Williams denied her admission based on her race and the lower court agreed and ruled in favor of Ms. Thomas. The black press applauded the lower court’s decision, but the victory was short lived.302 The

Supreme Court of New York overturned the Municipal Court’s decision because of a lack of evidence presented at the first trial.303

In Thomas v. Williams, the New York Supreme Court upheld an important precedent: an employer could not be held responsible for the individual actions of an employee. The court ruled in favor of Williams because it found that he was

“refused an opportunity of proving that he, personally, had not authorized her exclusion.”304 The court found it important that “the defendant was not personally present at the time of the acts complained of, and that the exclusion of the plaintiff, if any, was the act of some employee.”305 For the New York State

Supreme Court, it did not matter in this case if Williams had a policy in his theater for excluding black patrons that his employee merely obeyed. To find him guilty, they needed evidence that he personally refused admittance to Lucy

301 Thomas v. Williams 95 N.Y.S. 592 (1905). 302 Bellingham Herald (WA), March 14, 1905; Cleveland Gazette, March 25, 1905. 303 Evening News (NY), March 7, 1905. 304 Thomas v. Williams 95 N.Y.S. 592 (1905). 305 Ibid. 137

Thomas. This set a precedent that protected business owners from being liable for the actions of their employees.

On March 10, 1915 the Superior Court of Pennsylvania overruled a lower county court ruling in the case of Commonwealth v. George which centered on the rights of African Americans to freely enter theatrical spaces and sit where they pleased.306 With the decision, the judges effectively wrote the separate but equal doctrine of Plessy v. Ferguson into the legal precedents of the

Commonwealth of Pennsylvania.

The case began in 1913, when two African American patrons attended a performance at the Victoria Theatre in downtown Harrisburg, Pennsylvania. The men purchased tickets, but were refused lower-level seats. The theater’s employees forced the men to sit in the balcony. After the incident, the two men filed a complaint, causing the District Attorney of Dauphin County to bring charges against George, the local white businessman who owned the Victoria

Theatre.307

The central issue of the initial trial in Dauphin County Court was the interpretation of Pennsylvania’s Civil Rights Act of 1887 and whether or not

“access” was the same as “accommodation.” Passed in the wake of the U.S.

Supreme Court’s decision in the Civil Rights Cases, the state statute made it unlawful for theater managers to “refuse to accommodate, convey, or admit any person on account of race or color.”308 The Commonwealth of Pennsylvania, on

306 Commonwealth v. George 61 Pa. Super. 412 (1915). 307 Patriot (Harrisburg), December 20, 1913; Patriot (Harrisburg), December 24, 1913. 308 Franklin Johnson, The Development of State Legislation Concerning the Free Negro, (Westport, Conn.: Greenwood Press, 1919), 174. 138 behalf of the African American patrons of the Victoria Theatre, charged George with a misdemeanor and argued that his offer of a “seat in the balcony forms no excuse, and did not render his action any less a discrimination against the complainant, or any less a violation of the statute.”309 The Commonwealth believed that the statute protected a theater proprietor’s right to “make reasonable regulations for the comfort, convenience, and control of his theater, but any regulations based on race or color alone are not reasonable and are expressly prohibited by the Act of May 19, 1887.” The Commonwealth’s case in support of the African American men rested on the interpretation that “access” and “accommodation” meant two different things: “access” spoke to the right of a person to enter an establishment, while “accommodation” meant that once they were admitted they had the same opportunity of experience as every other patron. 310

George’s lawyers took exception to this interpretation and argued that their client could not be compelled to grant “greater” rights to African American patrons than to his white patrons. They contended that “a colored person has no greater rights than a white person and the purchase of a theatre ticket cannot invest him with more.”311 Furthermore, they argued that “the Act of 1887 relates only to admission and not to accommodations to a theatre,” and that the

“manager of a place of amusement may make reasonable regulations for the separation of races whom he is required to admit.”312 These arguments

309 Commonwealth v. George 61 Pa. Super. 412 (1915). 310 Ibid. 311 Ibid. 312 Ibid. 139 challenged the Commonwealth’s assertions and forced the jury in Dauphin

County Court to choose between two opposing interpretations of the same law.

The jurors in the county-level circuit court found George guilty of a misdemeanor under the Pennsylvania Civil Rights Act of 1887, and sentenced him to a fine of $50. George and his lawyers appealed, and the case made its way to Superior Court. The disposition of the circuit court judge in his comments to the jury before deliberations formed the crux of George’s appeal. The Dauphin

County Court justice told the jurors that it was their duty to convict if they found that the “only reason [the black plaintiffs] were excluded from the lower floor” was on account of their race.313 But the judge continued with specific instructions that, according to George’s lawyers, deliberately misinterpreted the Pennsylvania

Civil Rights Act. The judge stated that the proprietor of a theater “has no right to compel you to climb the stairway on to the balcony when there are unoccupied seats on the first floor.”314

George’s attorneys argued that the judge had offered the jury a misinterpretation of the Civil Rights Act. The jury was told that under the state statute a theater proprietor had no right to compel patrons to sit in specific areas of the theater. According to George’s lawyers this instruction violated George’s rights as a private business owner to control his private property, and the civil rights law made no mention regarding different “sections” of a public accommodation. Both sides offered their own interpretations of the Civil Rights

Act’s language, but the ultimate decision laid in the hands of the Pennsylvania

313 Ibid. 314 Ibid. 140

Superior Court.315 The court ruled to reverse the judgment and defended the right of a theater to discriminate against its patrons based on race. In its opinion, the court referenced Plessy v. Ferguson multiple times stating, “a discrimination against colored persons by permitting them to sit only in the balcony of a theatre is not unlawful.”316 The Pennsylvania Superior Court endorsed the Jim Crow doctrine of “separate but equal” as the law of the land. The Commonwealth, on behalf of the African American patrons, appealed one final time to the

Pennsylvania Supreme Court, but in January, 1916, the court refused to hear the appeal. The highest state court ended the legal matter and endorsed the Superior

Court’s “separate but equal” mandate.317

The case of Commonwealth v. George in 1915 was just one in a wave of cases after the Plessy decision that ultimately weakened civil rights laws across the country and rolled back protections for African American citizens. The justices of the Pennsylvania Superior Court studied over thirty years of precedent when deciding whether to overturn the county court ruling in Commonwealth v.

George. The case was argued in 1915, thirty-two years after the Pennsylvania Civil

Rights Act of 1887 was passed, and almost fifty years after the first federal civil rights legislation of 1866. In the decades following the Civil War, legal briefs and court records teemed with cases arguing the issue of civil rights for African

American citizens when specifically applied to access to public accommodations and theaters. The U.S. Supreme Court’s ruling in Plessy v. Ferguson (1896)

315 Patriot (Harrisburg), January 12, 1915. 316 Commonwealth v. George 61 Pa. Super. 412 (1915) 317 Patriot (Harrisburg), January 12, 1916. 141 ushered in a new wave of local and state cases, like Commonwealth v. George that challenged state civil rights acts. But, as evidenced in the cases above, many state courts began to use Plessy as precedent for weakening state statutes.

*Plessy, Jim Crow Laws, and Public Accommodations*

State statutes protecting African American rights to equal accommodations did not always hold up under the scrutiny of state courts. The specific contexts of the cases and the dispositions of the judges hearing them made it difficult to predict which courts were sympathetic to African American plaintiffs. In the wake of the U.S. Supreme Court ruling in the Civil Rights Cases

(1883) every northern state except Delaware passed some type of legislation protecting the right to equal access to public accommodations regardless of race.318 Sometimes those statutes held up when challenged in the state appellate or supreme courts.

318 Johnson, The Development of State Legislation Concerning the Free Negro, 80-84. Delaware passed the opposite of civil rights legislation as a response to the U.S. Supreme Court’s decision in the 1873 Slaughterhouse Cases. Delaware’s “civil rights law” protected the rights of private business owners. In 1874 the legislature passed “An Act in relation to certain classes of persons exercising a public employment” that stated: “That no keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travelers, guests or customers, shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by him, would be offensive to the major part of his customers, and would injure his business. The act went on to specifically target theaters: “the proprietor of a theatre, or other place of public amusement, shall not be obliged to receive into his show, or admit into the place where he is pursuing his occupation, any person whose presence there would be offensive to the major part of his spectators or patrons, and thereby injure his business.” 142

In the case of Burks v. Bosso in New York, however, the state law was struck down. In 1902 George W. Burks, an African American citizen of Rochester,

New York, attempted to have his shoes shined by Paul Bosso, a white shoeshine in the city of Rochester. Bosso’s stand was located in the ground floor lobby of the

Powers Block, a “large commercial building in the city of Rochester, and extensively used for offices.”319 Bosso refused stating he “did not shine the shoes of colored men.”320 Burks sued for damages in the Municipal Court of Rochester under the 1865 New York Civil Rights Law. The Municipal Court of the city of

Rochester ruled in favor of Burks and awarded him damages. Bosso then appealed to the Monroe County Court and the county justice reversed the decision and ruled in favor of Bosso. Burks appealed the reversal to the New York

State Supreme Court, Appellate Division, the second-highest court in the state.

African American legal defense funds in New York stepped in to help support

Burks’s appeal process. A June, 1902 editorial in The Colored American called for contributions to help support Burks, stating “the people of this city have taken charge of the case of Geo. W. Burks [….] the local councils and citizens will fight the case to the bitter end.”321 In March 1903 the appellate justices offered their opinion in favor of the African American patron, Burks.

In his decision, New York State Appellate Justice Spring offered a broad interpretation of what constituted “public accommodations” and ruled in favor of

Burks, the black plaintiff. Justice Spring drilled down to the particular clause in

319 Burks v. Bosso 81 N.Y.S. 384 (1903). 320 Ibid. 321 Colored American (NY) June 14, 1902. 143 the New York State Civil Rights Law of 1895 and argued that the word “other” in the clause “other places of public accommodation” was an “enlarging” clause that under the law could and should include Bosso’s shoeshine stand.322 Judge Spring admitted that it was “exceedingly difficult to draw the line between places which may be for the accommodation of the public and those which are of a private character.”323 Ultimately his decision centered on if the shoeshine stand was in a

“public” place and should be considered a “public accommodation.” According to this reasoning, the location of the stand in the lobby of a public building where

“men and women and strangers” were served constituted an “other” public accommodation under the language of the statute, even though shoeshine stands were not explicitly named in the law. The court determined that Bosso used race as the primary factor when he denied service to Burks, and therefore violated the

New York State Civil Rights Law.

Two years later the New York State Court of Appeals reversed Justice

Spring’s decision and set a legal precedent that limited the reach of the New York

State Civil Right Act. In January, 1905, the shoeshine, Bosso, appealed to the

New York State Court of Appeals. Justice Werner believed that the case had been overcomplicated by the opinions of lower court justices, stating that the language of the New York State Civil Rights law of 1895 was simple. Werner wrote, “it seems obvious that the statute under consideration cannot be held to apply to a

‘bootblacking stand.’”324 He continued, “we are of the opinion that the phrase,

322 Ibid. 323 Ibid. 324 Burks v. Bosso 180 N.Y. 341 (1905). 144

‘and all other places of public accommodation,’ does not include bootblacking stands. The phrase referred to, although general in its nature, is limited and qualified by the specific designations which precede it.”325 Those specific designations were “inns, restaurants, hotels, eating houses, bath houses, barber shops, theatres, music halls and public conveyances on land and water.”326 The news of the court’s reversal rippled throughout the nation—the Times-Picayune in New Orleans, Louisiana ran the headline “Negro Lost His Case: Bootblacks

Cannot be Compelled to Shine the Shoes of Blacks” and reported that

“bootblacking stands were not places of public accommodation.”327 New York’s decision to limit the meaning of “public accommodations” set precedents for white business owners throughout the country.

The highest court in the state reversed the second-highest court’s decision on the basis that the justices of the court of appeals did not believe “bootblacking stands” to be public accommodations. The course of George W. Burks’ four-year odyssey through the New York judicial system ended in a losing decision because of the opinion of a group of judges. Ultimately legislators could pass the most progressive laws they wished. But those laws were only enforceable if the men of the judiciary assented.

Northern jurists often borrowed from other states the methods for eviscerating laws that helped black Americans. The Supreme Court of Iowa was the first to use the precedent of Burks v. Bosso (1905) to rule against a black

325 Ibid. 326 Johnson, The Development of State Legislation Concerning the Free Negro, 151. 327 Times-Picayune (New Orleans, LA) February 1, 1905.

145 patron suing a white business owner. In 1910 the Supreme Court of Iowa ruled in

Brown v. J.H. Bell Co. that it would follow the “strict construction” of its own state’s civil rights law as the New York Supreme Court had in Burks v. Bosso

(1905). The Iowa court ruled against Mrs. Susie Brown, an African American citizen of Iowa, who sued the J. H. Bell Coffee Company for refusing to offer her and her husband free samples at a food show on account of their race.328

In order to limit what businesses could be considered “public accommodations,” Iowa justices cited the overturning of the federal Civil Rights

Act of 1875 in U.S. v. Stanley et.al (1883) as well as the New York Supreme

Court’s decision in People v. King (1888). The court stated in its opinion that the state civil rights acts did not confer social equality within private establishments.

“A private businessmen,” the court argued, “may discriminate as he pleases.” The court agreed with precedents like Burks v. Bosso (1905) that narrowly interpreted the language of the state civil rights statutes and dismissed any case involving a privately owned business. 329

State courts defined the limits of state civil rights legislation throughout the second decade of the twentieth century. Plessy set the precedent that allowed for “separate and equal” accommodations. Thus, the terms of the court cases shifted in the post-Plessy years. The cases were no longer centered on the question of the constitutionality of the state statutes. Instead, courts determined what types of establishments were covered under the language of the state statutes. In January 1912 the Court of Common Pleas of Franklin County, Ohio,

328 Brown v. J. H. Bell Co. 146 Iowa 89 (1910). 329 Ibid. 146 ruled in Deuwell v. Foerster that soda fountains did not fall under the language of “public accommodations” in the Ohio civil rights law.330 Graham Deuwell, an

African American citizen of Ohio, sued George Foerster and his partners after

Foerster refused to serve him a glass of soda water. Foerster owned a soda fountain and candy shop in Columbus, Ohio and claimed that his business was not a place of public accommodation and therefore not subject to the terms of the civil rights law.

The Court of Common Pleas of Franklin County agreed with Foerster and his partners. In his opinion Justice Kinkead returned to the foundations of the nation’s civil rights laws: common law. “The civil rights statute had its origin in the common law principle that inns, hotels and public carriers held themselves out for the service of the general public, that is, the masses, everybody.”331

Kinkead argued that the common law origins of the civil rights statutes must be considered, and therefore only businesses that served the “general public” or

“masses” were subject to the terms of the statutes. Instead of broadening the interpretation of the public, Kinkead’s opinion narrowed it in order to exclude black people from establishments. Business serving the public interests did not include, according to Kinkead, soda fountains or candy shops because, he argued,

“it is not everybody that has a taste or desire for candy or soda water.”332 He distinguished between public amenities that served “the masses” versus businesses that catered to a select clientele.

330 Deuwell v. Foerster 30 Ohio Dec. 510 (1912) 331 Ibid. 332 Ibid. 147

His rationale that “not everybody that has a taste or desire for candy or soda water” deserved equal acces to a business added a new element to interpretations of civil rights legislation. Kinkead introduced the aspect of “taste” into the legal precedents and argued that customers’ individual tastes must be brought into account when considering a business’ designation as public or private.

It took very little time for Kinkead’s interpretation to influence other court proceedings. In August 1912 the Court of Common Pleas of Cuyahoga County made an identical ruling with regard to an ice-cream parlor. The court found in

Fowler v. Benner (1912) that an ice-cream parlor was not a place of public amusement and therefore exempt from the civil rights law of the State of Ohio.333

The justices in the Cleveland case used the precedent set by Kinkead of Franklin

County who ruled that the Columbus soda fountain was a private business rather than a public accommodation because it did not serve the “masses,” as not every citizen had a taste for soda. All of the cases were connected, and the legal precedents set by a single case were cited in the case records of every subsequent judicial decision.

While the U.S. Supreme Court’s ruling in Plessy made it more difficult to challenge segregation in public accommodations, it did not make it impossible. In one case, earlier victories by African American plaintiffs led to a subsequent victory a decade later. In November 1902 the Eight Circuit Court of Ohio ruled in favor of an African American plaintiff in Johnson v. Humphrey Pop Corn Co.

333 Fowler v. Benner 23 Ohio Dec. 59 (1912) 148

Lewis Johnson, the plaintiff in the case, asserted that on July 17, 1901 he purchased a ticket to “Euclid Beach Park,” an amusement park owned by the defendant, Humphrey Pop Corn Company. Johnson stated that the employees of the amusement park’s bowling alley “denied him the privilege of so playing, wrongfully and without legal excuse.” He went on to state that he was “a colored man, a person of African descent, and that he was so denied the privilege of bowling for no other reason that that.”334 Johnson filed a civil suit for $275 in damages in the Cuyahoga County Court of Common Pleas, but the lower court dismissed the lawsuit after the amusement park filed a “general demurrer” in response to Johnson’s suit. A “general demurrer” was a legal answer to a civil charge that could be distilled down to two words: “so what?” The amusement park did not deny that Johnson was denied admittance but believed that it had acted within its rights. The court agreed with the amusement park, and Johnson appealed to the Eighth Circuit Court.

The Circuit Court’s decision illustrated the way earlier civil rights cases affected the legal precedent for later litigants. In its decision in Johnson v.

Humphrey Pop Corn Co. the Eighth Circuit Court of Ohio used Ferguson v. Gies

(1890) from the Michigan Supreme Court.335 As stated earlier that case centered on whether a separate area of a restaurant for black patrons constituted “full and equal” accommodations under the law. The Ohio court stated that the Michigan court’s opinion was “well considered and supported by both reason and

334 Lewis E. Johnson v. Humphrey Pop Corn Co. 4 Ohio C.C. (n.s.) 49 (1902) 335 Ferguson v. Gies 82 Mich. 358 (1890). 149

authority.”336 The work done by William W. Ferguson in Michigan in 1890 directly aided Lewis E. Johnson in Ohio twelve years later. The efforts of black plaintiffs and legal activists resonated beyond their own rulings and established precedents for decades.

African American plaintiffs were not the only litigants using civil rights legislation to bring suits in northern courts. In 1911, for example, litigation from the 1860s that centered on African American access to theaters upheld a judgment for a white woman refused service at a bathhouse.337 In October 1911, the New York Court of Appeals—the highest court in the state—upheld the lower court ruling in favor of the plaintiff, Ada S. Aaron. Ms. Aaron asserted that she had been visiting the bathhouse on Coney Island owned by the defendant,

William J. Ward, when she was involved in an altercation concerning her place in the queue to bathe. She was forcibly removed from the premises and was not given a refund of twenty-five cents for her ticket. She sued for damages in the amount of $250, but the court found in favor of the bathhouse owner, William

Ward. The court ruled that access to public accommodations could be limited for reasons beyond race, such as gender, religion, or in Ada Aaron’s case, simply because the proprietors did not care for a patron’s behavior.338 The justices of the

New York State Court of Appeals leaned on precedent when writing their decision in Aaron v. Ward (1911). Their opinion cited many of the cases previously discussed in the chapter, as well as three cases from earlier chapters.

336 Lewis E. Johnson v. Humphrey Pop Corn Co. 4 Ohio C.C. (n.s.) 49 (1902). 337 In the opinion of Aaron v. Ward (1911), the justices reference Munn v. Illinois, Baylies v. Curry, Drew v. Peer, Ferguson v. Gies, People v. King, and Burks v. Bosso. 338 Aaron v. Ward 203 N.Y. 351 (1911) 150

Each of the above cases complicated the legal landscape for African

American litigants. African American citizens, who celebrated when states passed civil rights statutes, were struck with the reality of the courtroom and its web of precedents and conflicting interpretations. In the decade after Plessy, African

American litigants challenged northern segregation in the courts and used their access to the justice system to effect change. But the continued litigation revealed the constant reality of discrimination in northern places of amusement and public accommodation. The records of these court battles proved that many white northerners refused to admit, serve, and accommodate African American patrons and performers. However, the court cases represented only those instances where

African Americans chose to take on injustice through the legal system. Outside the courtroom, African American theater producers, actors, writers, and scholars used other arenas to fight for equality.

*Black Organizing and Urban Violence*

Black litigants did not bring cases to courts in a vacuum—the black press and early black organizations remained alert to court cases throughout the country in order to offer their support. Legal defense funds like the Legal Rights

Union formed to assist African American plaintiffs in their legal battles against discrimination. The league, founded by “New York’s leading colored men” in

1896, “establish[ed] a defense fund to promote the cause of equal rights, and render[ed] legal aid to those needing it by becoming responsible for services of 151

counsel and necessary expenses.”339 Organizations like the Equal Rights League— still active in 1910—the Niagara Movement founded in 1905, and the National

Association for the Advancement of Colored People (NAACP) founded in 1909, all discussed ways to aid black litigants in the fight for equality.340 The NAACP and

Equal Rights League played major roles in passing protection for interracial marriage in Boston in the early decades of the twentieth century.341 Black women in New York City organized the Women’s Loyal Union of New York and Brooklyn

(WLU) which fought for fair educational policies and resisted urban segregation.342 Each organization worked to strengthen state civil rights laws, attempted to pass them in states that did not have them on the books, and fought to repeal Jim Crow segregation throughout the country. Black activist

339 Enterprise (Omaha, NE) February 22, 1896. 340 Eric Ledell Smith, “‘Asking for Justice and Fair Play’: African American State Legislators and Civil Rights in Early Twentieth-Century Pennsylvania,” Pennsylvania History: A Journal of Mid-Atlantic Studies 63, no. 2 (Spring 1996): 169-203; Jennifer Fronc, “The Horns of the Dilemma: Race Mixing and the Enforcement of Jim Crow in New York City,” Journal of Urban History 33, no. 1 (Nov. 2006): 3-25; Stephen Weinberger, “‘The Birth of a Nation’ and the Making of the NAACP,” Journal of American Studies 45, no. 1 (Feb. 2011): 77-93; Angela Jones, “The Niagara Movement, 1905-1910: A Revisionist Approach to the Social History of the Civil Rights Movement,” Journal of Historical Sociology 23, no. 3 (Sept. 2010): 453-500; Robert W. Williams, “Politics, Rights, and Spatiality in W.E.B. Du Bois’s ‘Address to the Country’ (1906),” Journal of African American Studies 14 (2010): 337-358; Kenneth W. Goings and Brian D. Page, “African Americans Versus the Memphis Street Railway Company: Or, How to Win the Battle but Lose the War, 1890-1920,” Journal of Urban History 30, no. 2 (Jan, 2004): 131-151. 341 Zebulon Miletsky, “The Dilemma of Interracial Marriage: The Boston NAACP and the National Equal Rights League, 1912-1927,” Historical Journal of Massachusetts 44, no. 1 (Winter 2016): 137-169. 342 Val Marie Johnson, “‘The Half Has Never Been Told’: Maritcha Lyons’ Community, Black Women Educators, the Woman’s Loyal Union, and ‘the Color Line’ in Progressive Era Brooklyn and New York,” Journal of Urban History 44, no. 5 (2018): 835-861. 152 organizations recognized the importance of supporting African American litigants in lawsuits against discriminatory white businesses.343

The cases above reflected a continuation of the legal challenges that

African American citizens faced in northern states. Laws granting them civil rights and equal access to theaters and places of public amusement had been on the books for decades, but they faced constant discrimination that forced many to turn to the courts. The courts were not an option for others, though, for myriad potential reasons. Court cases cost time and money. There were legal fees and missed time from work, not to mention the mental stress of the time spent in the courtroom. Sometimes black organizations and communities helped offset the legal costs with defense funds, but not every litigant had access to those funds.

Cases that went through multiple appeals lingered for years in the court system.

Many whose rights were violated probably decided that the fight was not worth the $50 they may or may not win depending on the disposition of a judge.

Additionally, as stated above, these cases were not tried in a vacuum. The

African American litigants were all too familiar with the racial tensions that pervaded northern cities, and the potential dangers facing black men and women who stood up to white northerners. For example, in Thomas v. Williams (1905)

343 For more on organizations funding black litigants see: Jennifer B. Wriggins, “Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007,” The Review of Litigation 27, no. 1 (Fall 2007): 37-61; Melissa Milewski, “From Slave to Litigant: African Americans in Court in the Postwar South, 1865-1920,” Law and History Review 30, no. 3 (August 2012): 723-769; Jon-Christian Suggs, Whispered Consolations: Law and Narrative in African American Life (Ann Arbor: University of Michigan Press, 2000). For more on agitation at the state level for civil rights laws see: Smith, “Asking for Justice and Fair Play,” 169-174. 153

Lucy Thomas and her lawyers would have all known that less than five years earlier a race riot consumed West-Side Manhattan.

Between 1890 and 1910 the African American population of New York City almost quadrupled from 23,601 to 91,709. The majority of African American citizens in 1910 were Southern born. However, because of the city’s massive size, this quadrupling meant a less than one percent increase in the African American demographic of the city.344 The city responded by segregating these populations and cordoning them off in districts like Harlem and the Tenderloin. At times, the close proximity of African Americans to the other most-populous newcomers to the city, Irish immigrants, exploded in violence.345

In August 1900, a confrontation between police and a black man caused hundreds of white New Yorkers to attack black neighborhoods in Manhattan. An

African American man, Arthur J. Harris, killed a white policeman, and news of the slaying consumed the city. Small fights broke out in the wake of the killing, and one altercation occurred on the night of August 15 outside the home of the dead policeman. When a white crowd attacked an African American man outside the home, it touched off racially motivated violence that lasted through the night.

The entire white neighborhood “went wild with rage.”346 According to firsthand accounts and affidavits collected in the aftermath, “up and down the streets, through hotels and saloons, in cellars and on streetcars” African Americans were

344 Compendium of the Eleventh Census, 1890, 564. 345 Allison Shertzer, Randall P. Walsh, and John R. Logan, “Segregation and Neighborhood Change in Northern Cities: New Historical GIS Data from 1900-1930,” Historical Methods: A Journal of Quantitative and Interdisciplinary History 49, no. 4 (2016): 187-197. 346 Gilbert Osofsky, “Race Riot, 1900: A Study of Ethnic Violence,” The Journal of Negro Education 32:1 (Winter, 1963), 20. 154

attacked and beaten.347 The white rioters forcibly removed black bodies from accommodations and places of public amusement. No civil rights legislation protected African Americans from mob rule.348

The black press quickly pointed out that northern violence paralleled the lawlessness of the southern states. An editorial in Advance linked the violence in

New York with the violent riot in New Orleans the previous month, stating of

“lawlessness is but lawlessness, and should be condemned and repudiated wherever it shows its head, whether north, east, south, or west.”349 The editor of

Zion’s Herald stated even more plainly, “the extremists who think that the Negro is ill-treated only in the South, will have occasion to revise their opinion when they read what took place in New York last week.”350 The Freeman used the riot to expound upon the long history of New York City’s white citizens’ penchant for racial violence stating, “the New York Democrats of the baser element are not novices at the business of hanging Negroes to lamp posts.”351 The New York riot of 1900 showed that violence, discrimination, and segregation were not limited to

347 For newspaper accounts of the New York City riot, and the subsequent investigations, see: Springfield Republican, August 16, 1900; Wilkes-Barre Times, August 16, 1900; Boston Daily Advertiser, August 17, 1900; Philadelphia Inquirer, August 17, 1900; Springfield Republican, August 17, 1900; Trenton Evening Times, August 18, 1900; Patriot (Harrisburg, PA) August 30, 1900; Boston Journal, September 1, 1900; Philadelphia Inquirer, September 5, 1900. 348 For more secondary studies of the riot, see: Martha Hodes, “Knowledge and Indifference in the New York City Race Riot of 1900: An Argument in Search of a Story,” Rethinking History 15, no.1 (March 2011): 61-89; James Campbell, “‘You needn’t be afraid here: you’re in civilized country’: Region Racial Violence, and Law Enforcement in Early Twentieth-Century New Jersey, New York, and Pennsylvania,” Social History 35, no. 3 (August 2010): 253-267; Marcy S. Sacks, “‘To Show Who Was in Charge’: Police Repression of New York City’s Black Population at the Turn of the Twentieth Century,” Journal of Urban History 31, no. 6 (Sept. 2005): 799-819. 349 Advance, September 22, 1900. 350 Zion’s Herald, August 22, 1900. 351 Freeman, September 8, 1900. 155 the southern states. After the Supreme Court’s decision in Plessy v. Ferguson and the codification of Jim Crow, the courtroom became one of the only institutional venues for black Americans to conduct their protest.

*The Emergence of an African American Theater*

Much of early twentieth century black activism focused on the creation of a distinctly African American culture as a means of promoting equality and

“advancing the race.” Black writers and cultural thinkers expressed this ideology of “racial uplift” in a variety of ways, but two of the most important were black economic independence through black-owned enterprises, and the proliferation of black culture through theater, music, and literature. As in the 1880s and

1890s, this uplift ideology and cultural activism paralleled the legal battles of the first two decades of the twentieth century.352

352 For more on the ideology of “racial uplift” in the late-nineteenth and early-twentieth century, see: Cheryl Hicks, Talk With You Like A Woman: African American Women Justice, and Reform in New York, 1890-1935 (Chapel Hill: The University of North Carolina Press, 2010); Kevin Gaines, Uplifting the Race: Black Leadership, Politics, and Culture in the Twentieth Century (Chapel Hill: The University of North Carolina Press, 1996); Michele Mitchell, Righteous Propagation: African Americans and the Politics of Racial Destiny After Reconstruction (Chapel Hill: The University of North Carolina Press, 2004); Pero Gaglo Dagbovie, “Reflections on Conventional Portrayals of the African American Experience during the Progressive Era or ‘the Nadir’,” The Journal of the Gilded Age and Progressive Era 13, no. 1 (Jan. 2014): 4-27; Mitch Kachun, “‘Big Jim’ Parker and the Assassination of William McKinley: Patriotism, Nativism, Anarchism, and the Struggle for African American Citizenship,” The Journal of the Gilded Age and Progressive Era 9, no. 1 (Jan. 2010): 93-116; Gregory Michael Dorr, “Conceiving Contempt and Pity: Race and Progressive Era Americans,” The Journal of the Gilded Age and Progressive Era 9, no. 3 (July 2010): 395-400; Kristen M. Turner, “Class, Race, and Uplift in the Opera House: Theodore Drury and His Company Cross the Color Line,” Journal of Musicological Research 34, no. 4 (2015): 320-351; Gene Jarrett, “‘We Must 156

The turn of the century brought significant changes to the African

American theatrical scene as new types of musical production replaced traditional minstrel shows. These new musical forms of theater helped to carve out a market for African American entertainers in northern cities.353

Simultaneously, there was an explosion in the sheer number of African

Americans who chose to ply their trade in the theater. Chroniclers estimated that over three hundred different “black showmen, actors, and musicians” graced the stages of New York City between 1900 and 1905.354 As discussed in the previous chapter, the few exceptional vaudevillians had made their mark in the 1880s and

1890s. But by 1905 African American theatrical productions were becoming much more mainstream.355

Write Like the White Men’: Race, Realism, and Dunbar’s Anomalous First Novel,” Novel 37, no. 3 (Summer 2004): 303-325; Windy Lawrence, Benjamin Bates, and Mark Cervenka, “Politics Drawn in Black and White: Henry J. Lewis’s Visual Rhetoric in Late- 1800s Black Editorial Cartoons,” Journalism History 40, no. 3 (2014): 138-147; Glen McClish, “‘To Furnish Specimens of Negro Eloquence’: William J. Simmons’s Men of Mark as a Site of Late-Nineteenth-Century African American Rhetorical Education,” Rhetoric Society Quarterly 44, no. 1 (2014): 46-67; Henry Louis Gates, Jr. and Gene Andrew Jarrett, eds. The New Negro: Readings on Race, Representation, and African American Culture, 1892-1938 (Princeton: Princeton University Press, 2007), 1-18. 353 Hill and Hatch, A History of African American Theatre, 141-142 354 Henry T. Sampson, The Ghost Walks: a chronological history of blacks in show business, 1865-1910 (Metuchen, NJ: The Scarecrow Press, Inc., 1988), 197-355. 355 For more on the expansion of African American theater and its integration onto mainstages of Broadway see: LeRoy Ashby, With Amusement for All: A History of American Popular Culture Since 1830 (Lexington: The University Press of Kentucky, 2006), 143-209; Landis K. Magnuson, Circle Stock Theater: Touring American Small Towns, 1900-1960 (Jefferson, NC: McFarland & Co. Inc.: 1995); Melinda D. Wilson, “Take a Giant Step Into (African) American Theatre History: Broadway’s First ‘Universal’ Drama,” The Journal of American Drama and Theatre 20, no. 3 (Fall 2008): 49-73; Crystal M. Fleming and Lorraine E. Ross, “Black Cultural Capitalists: African-American Elites and the Organization of the Arts in Early Twentieth Century Boston,” Poetics 35 (2007): 368-387; Bethany Holmstrom, “Integrating Broadway: Cultural Memory, Performance, and History in The Southerners,” Journal of American Drama and Theatre 22, no. 2 (Spring 2010): 67-83. 157

The creation of an independent vaudeville circuit was one of the most important developments for African American theater in the early twentieth century. On January 12, 1912, African American show producer, Sherman H.

Dudley, published an open call in The Freeman, one of the leading African

American newspapers of the era published in Indianapolis, Indiana. Dudley sought to create a network of “real theaters, planned and operated by colored men, and not backed by white men.” He called for black investors, financial partners, and theatrical producers and argued that “the day now is ripe, the time has come; there is more profit in show business than any other business you can invest your money in, if properly managed.”356 He hoped to create “ten theaters in ten cities” and claimed that he would be able to “keep the doors open 365 days per year and guarantee a success. Not only was Dudley a shrewd businessman, but he understood the importance of networking by using the black press. As historian Athelia Knight pointed out, “when he chose to present his proposition in the The Freeman, he was taking advantage of the wide distribution of that newspaper to carry his message throughout the black community.”357 The black press was critical to the creation of a black entertainment industry. Dudley’s assurances in his newspaper marketing reflected the attitude of the burgeoning black theatrical elite who saw opportunities in the new world of vaudeville entertainment, and used the network of black organizations and the black press to assist their enterprises.

356 The Freeman, January 20, 1912. Athelia Knight, “He Paved the Way for T.O.B.A.,” The Black Perspective in Music 15:2 (Autumn, 1987), 153-181. 357 Knight, “He Paved the Way for T.O.B.A.,” 164. 158

Dudley was a vaudevillian himself who began his career with the Smart Set

Company in New York and received glowing reviews during the first decade of the century.358 Dudley desired to expand the reach of African American theatrical performance and maintain control of every aspect of the productions. He was clear about the purpose: African American professionals, not white theatrical producers, would control this circuit.

For Dudley and others, the 1910s represented the perfect decade to begin this expansion because of the number of abandoned antebellum theater buildings throughout northern cities. In another article intended to drum up support for his circuit, Dudley claimed that “in nearly every city there are theaters for lease

[….] you don’t have to build them. This is due to the passing of the ‘pistol drama’ for whites.”359 Dudley referred to the decline of antebellum melodrama, but saw that decline as an opportunity for vaudeville, and black vaudeville specifically, to take over those theatrical properties for next to no cost.

Dudley’s proposition was risky because African American-owned theatrical ventures had a history of being unsuccessful. Sylvester Russell of The Freeman wrote a response to Dudley’s call and questioned the ability of a black-owned theater to compete with white enterprises.360 Russell advised Dudley to join with white vaudeville producers and minstrel show runners who employed black

358 New York Age, April 2, 1908. In the article, the reviewer noted: “For a number of years, Bert Williams and Ernest Hogan have rightly held the title of being the two funniest colored comedians. For all that they still deservedly hold the title, but S.H. Dudley should not be considered harmless by Messrs. Williams and Hogan, for Dudley is coming and coming fast.” 359 The Freeman, January 20, 1912. 360 The Freeman, February 10, 1912. 159 performers and performed in black neighborhoods. However, Dudley had already pointed out that white-owned companies paid far less to African American performers than white performers, and there were not enough opportunities in white companies to sustain the number of black performers looking for work.361

Despite the warnings, Dudley’s dream soon became a reality. By June 1912

Dudley secured eight theaters for his circuit, one in each of New York,

Philadelphia, Baltimore, Richmond, Newport News, and Norfolk, and two theaters in Washington, D.C.362

The most important aspect of the “Dudley Circuit” was its forty-week- per - year schedule that offered consistent employment for professional black performers. The most difficult part of being an actor in the early twentieth century—which remains to this day—was booking consistent work. Dudley’s circuit solved this issue by employing performers on the circuit and in the physical theaters themselves. Two years after its inception, the circuit included twenty-three theaters, all owned or managed by African Americans spanning from New York to Atlanta. A prime example of the circuit’s success was the New

Standard Theater in Philadelphia, owned by John T. Gibson, that employed more than 100 African American theater professionals and paid out annual performer salaries totaling over $52,000.363

While black theater professionals like Dudley, Ernest Hogan, Billy

McClain, and others inserted themselves into the narrative of twentieth century

361 The Freeman, January 20, 1912. 362 Athelia Knight, “He Paved the Way for T.O.B.A.,” 159. 363 Ibid, 163. See also The Freeman May 23, 1914. In The Freeman article, theatrical reporter J.H. Gray noted that the theater was valued at over $70,000. 160

American culture, African American literary figures contributed as well. Some of the most influential black writers of the century laid claim to that distinction in its opening decade. Their contributions were relevant to the mission of civil rights work because they mined their experiences as black bodies in the United States and interrogated what blackness and equality under the law actually meant.364

Pauline Hopkins’ Of One Blood or, The Hidden Self (1902) offered a tremendous commentary on what W. E. B. Du Bois referred to as the “problem of

America in the twentieth century,”—the color line. Hopkins’ novel ultimately united the black and white races and revealed the “hidden self” as one of racial amalgamation, thus solving the problem of the color line. The political ramifications were clear: by positing a world of racial unity and porous boundaries between white and black, Hopkins offered a path to full citizenship for African Americans.365 Hopkins acknowledged the central issue of racial amalgamation when her narrator asked, “who is clear enough in vision to decide who hath black blood and who hath it not?”366 This was a direct challenge to the

364 Michele Birnbaum, “Racial Hysteria: Female Pathology and Race Politics in Frances Harper’s Iola Leroy and W. D. Howells’s An Imperative Duty,” African American Review 33, no. 1 (Spring 1999): 7-23; Anna Storm, “Quinine Pills and Race Progress: Alice Dunbar-Nelson and the Black Women’s Literary Tradition,” Legacy: A Journal of African American Women Writers 33, no. 2 (2016): 361-383; Dolen Perkins-Valdez, “‘Atlanta’s Shame’: W.E.B. Du Bois and Carrie Williams Clifford Respond to the Atalanta Race Riot of 1906,” Studies in the Literary Imagination 40, no. 2 (Fall 2007): 133-174; Andreá N. Williams, “Black Women’s Labor and the Melodrama of Class Mobility in Sutton Griggs’s ‘Overshadowed’,” African American Review 45, no. 1 (Spring 2012): 49- 64; Andrew W. Kahrl, “The Political Work of Leisure: Class, Recreation, and African American Commemoration at Harpers Ferry, West Virginia, 1881-1931,” Journal of Social History 42, no. 1 (Fall 2008): 57-77. 365 Pauline E. Hopkins, Of One Blood, Or, The Hidden Self (New York: Washington Square Press, 2004). 366 Ibid, 134. 161 formal and informal laws of white supremacy, but also connected with racial uplift ideology explored in the earlier chapters.

Similarly, African American playwrights used their experiences of racial inequality to develop narratives that challenged the racial status quo. In her groundbreaking work, Living with Lynching, historian and literary scholar

Koritha Mitchell offered unique perspectives through close textual readings of plays written and performed for and by African American women dealing with the effects of lynching on their families and communities. Mitchell argued that the genre of lynching plays was one example of “how blacks used art to sustain their conceptions of themselves of modern citizens, even as they were routinely denied the rights and privileges of that status.”367 Mitchell added, “as much as

African Americans worked toward citizenship rights in terms of voting and holding political office, there is no question that citizenship was negotiated in private and corporeal ways.”368

367 Koritha Mitchell, Living with Lynching: African American Lynching Plays, Performance, and Citizenship, 1890-1930 (Urbana: University of Illinois Press, 2012), 16. For more on lynching performance and its connections to the anti-lynching work of activists like Ida B. Wells, see: Judith L. Stephens, “Racial Violence and Representation: Performance Strategies in Lynching Dramas of the 1920s,” African American Review 33, no. 4 (Winter 1999): 655-671; Judith L. Stephens, “Politics and Aesthetics, Race, and Gender: Georgia Douglas Johnson’s Lynching Dramas as Black Feminist Cultural Performance,” Text and Performance Quarterly 20, no. 3 (July 2000): 251-267; Patricia D. Watkins, “Rape, Lynching, Law, and ‘Contending Forces’: Pauline Hopkins- Forerunner of Critical Race Theorists,” CLA Journal 46, no. 4 (June 2003): 521-542; Laura H. Korobkin, “Imagining State and Federal Forces in Pauline E. Hopkins’s Contending Forces,” Legacy: A Journal of African American Women Writers 28, no. 1 (2011): 1-23. For studies that examine actual lynchings from the perspective of performance studies and theater see: Kirk W. Fuoss, “Lynching Performances, Theatres of Violence,” Text and Performance Quarterly 19, no. 1 (Jan. 1999): 1-37; Raymond M. Hyser and Dennis B. Downey, “‘A Crooked Death’: Coatesville, Pennsylvania and the Lynching of Zachariah Walker,” Pennsylvania History: A Journal of Mid-Atlantic Studies 54, no. 2 (April 1987): 85-102. 368Ibid. 162

The notion of citizenship was central to the development of these black cultural artifacts. The novels, plays, and musicals created in the context of the dozens of legal battles offer a different path to citizenship. Culture, many scholars would argue, was a clear path to citizenship. And the northern legislatures realized that when they inserted “theaters” and places of public amusement into the language of civil rights laws.

Georgia Douglass Johnson’s lynching drama A Sunday Morning in the

South illustrated how African American writers understood citizenship at the turn of the century. Johnson wrote the character of Tom as a teenage boy of exemplary character with dreams of becoming a lawyer. Tom was arrested on a false charge of rape, but during the trial proceedings he clung to the belief that he would be treated to the rights and privileges enjoyed by citizens of the United

States. Tom “acknowledged that racial injustices take place, but he seems convinced that they stem from ‘weaknesses’ of current laws. That is, when African

American’s rights are disregarded, it is only because the legal system has not managed to tame unruly mobs. Tom is sure the nation is committed to justice, so he is determined to help strengthen the system.” 369

Tom’s willingness to listen to the police officers and abide by their rules was a conception of citizenship revolving around responsibility-based demands on the state. Rather than focusing on his basic right to be protected, Tom focused on gaining tools to improve society. He “believed that he could depend on the justice system to recognize his citizenship and value his testimony.”370 Johnson,

369 Ibid, 125. 370 Ibid. 163 as playwright, offered this conception of citizenship as evidence of the black communities’ commitment to an exemplary model of citizenship that trusted the government and believed in the nation’s values. Her work linked the courtroom and the stage together as equally valid pathways toward citizenship.

Despite the nickname of the “Progressive Era,” the early decades of the twentieth century were deeply regressive for African Americans throughout the

United States. African American legal activists, entertainers, educators, and scholars took vastly different approaches to the new Jim Crow reality in the decades following Plessy v. Ferguson. Many of them believed that the only path forward was to continue fighting segregation and demanding access to white spaces. Many, though, believed that their real power lay in embracing a separate, black space that they owned, enjoyed, and prospered from.

If the law demanded that African American entities be separate, then separate they did. By 1917, the Dudley Circuit of Theaters increased its membership to twenty-eight. With each passing year, black theaters were opening their doors to accommodate the demands of their patrons who were forced out of formerly-mixed spaces. In 1917, The Freeman reported that there were 473 theaters that catered to black audiences, and at least half of those were owned and operated solely by African American proprietors.

The history of segregation in northern spaces of public amusement challenges traditional notions of the Jim Crow Era. The Superior Court of

Pennsylvania and the New York State Court of Appeals do not appear as villains in most histories of Jim Crow segregation. And maybe they were not villains, but the justices of the courts certainly played a role in endorsing and legalizing Jim 164

Crow segregation in northern states throughout the end of the nineteenth and early twentieth centuries. But the work of African American litigants, coupled with the overwhelming movements in African American cultural production, continued to challenge a society where “separate but equal” could be considered the law of the land.

165

Chapter 5

The Hidden Lives of America’s Forgotten Black Artists, 1896-1946

An older, white-haired gentleman climbed the stairs and entered his third floor walkup apartment in a building on Manhattan’s West Side. He shuffled his feet a bit, somewhat unsteady as he made his way across the room to his dining table and gently set down the day’s haul—three newspapers. He carefully unfolded the first paper and discarded the first three pages. He did not need them; his name only appeared on page four. He lifted a finger and scanned down the advertisements to his name. Frank. Andrews. He snatched up the scissors sitting on the table beside him and deftly clipped the relevant article. The remains of the fourth page made their way to the floor along with the rest as he turned his attention to the next paper. The process was repeated for each paper: unfolding, scanning, clipping, and discarding the rest. Satisfied with his work, he lifted a clean sheet of paper and some glue from the stack near where the scissors were stored and began to work. He made sure each clipping was squared up with the edge of the paper, and was careful not to use too much glue lest it bled through and his name was smudged, or worse, erased.

Then, the editing began. Each clipping was a cast list naming the title of the play, the actors, and the characters they portrayed. He meticulously underlined his name and the character he played in each clipping. Next to the article at the top of the page, he wrote his character’s name along with year and venue: “The Professor-Oakland Gardens-Boston-99.” Above that another note:

“The Widow at the Barton Theater-May/88.” Below the two lower articles, a 166 correction: “I did not play in Prince and Pauper-F.A.” The page was completed, laid out to dry, and then added to the box next to the table. The clippings glued to pages stacked in a box were the sum of his life’s work; the cut remains on the floor were lost forever. The only things he deemed worth saving were the mentions of his name, the character he portrayed, and the venue and date of the performance. Very little other editorializing was recorded. The scrapbook was not a journal where he recorded his innermost thoughts and feelings, but a historical record of a career in the theater spanning over four decades, hundreds of roles, and thousands of performances. What remained was his legacy as a successful actor. What remained hidden were the personal sacrifices he made to achieve that legacy.371

Frank Andrews was a stage and screen actor beginning in the late 1890s who hit his stride in the 1910s and 1920s. Andrews was mixed race, but chose to pass as white for the majority of his adulthood. His life and career illuminate the ways in which African American entertainers fought to survive within the complex landscape of segregation and citizenship. He serves to highlight a different path to the rights of citizenship than those taken by the African

American activists fighting legal battles in northern courtrooms. He was one of many New York actors during that time who was able to survive on acting talent alone. His papers reveal that he signed contracts almost monthly. His work took

371 Frank Andrews’ papers are housed in the Harvard Theatre Collection in the Houghton Library at Harvard University in Cambridge, Mass. His collection was un-catalogued until 2013, and still only fills one box with very little accompanying information in Harvard’s database. The collection is accompanied by three census records indicating the ambiguity surrounding Andrews’ racial identity. I am grateful to the archivists at the Harvard Theatre Collection who noted Andrews’ racially ambiguous identity in the record notes, or I may very well have overlooked his entire collection. 167 him on tour throughout the Northeast. Once silent film began to take off, he found himself out West in California as well. Andrews made his living as a character actor, but certainly had the look of a leading man. He received dozens of letters from adoring fans throughout his life, and was clearly a respected and valued member of the New York City theatrical community.372

But Andrews racial secret would have forced him either to leave the United

States for Europe to find work or to spend his days as an actor performing in much smaller venues for much lower pay. Frank Andrews was mixed-race. He was the son of mixed-race parents. United States Census records listed Frank, his parents, and siblings as “Mu” for mulatto in 1880 and then “B” for black in 1900.

Thus, his decision in 1910 to declare himself as “white” to a census official revealed that Andrews chose to hide his true racial identity. A number of reasons explain why a mixed-race man in 1910 New York City decided to pass as white, including access to segregated spaces, better employment opportunities, or as a shield from white violence and white supremacy. While we cannot know

Andrews’ full motivations, one thing is certain—his job depended on it.373

His job, though, was more than just a job—it was his passion—and it seemed he would do anything to follow that passion. Andrews recorded over five hundred separate shows in his scrapbook. If each of those ran for only one

372 Andrews appears throughout newspaper records from early twentieth century New York City. As noted throughout this chapter, he was never a true “leading man” but was consistently employed alongside some of the most notable stage and screen actors of the early twentieth century. He was his day’s Gary Cole, James Rebhorn, Fred Willard, or Patrick Wilson: actors you may not be able to name but are seemingly cast as supporting characters in every movie and television show. 373 United States Census, Schedule 1: Inhabitants in the Town of Hyde Park, in the County of Norfolk, State of Mass. (1880), 50; Twelfth Census of the United States, Schedule 1-Population of Hyde Park Town, Norfolk, Massachusetts (1900), 8. 168 weekend he would have done well over one thousand discreet performances in his lifetime, and most of the shows played for far longer than a single weekend.

Accounting for the tours he was a part of and the film shoots he was on, the man spent the better part of forty years doing little else but acting. He played in comedies, tragedies, and silent films. He was a second-tier star throughout his career, never achieving top billing in New York but was consistently the third or fourth to be named in the papers or on the marquees. And in order to maintain that workload he took on all the roles he could, even when he was asked to don blackface or to portray a white slave driver ordering the death of a black character. Andrews performed his roles, recorded them in his scrapbook, and convinced his entire industry that he was a white man. It was his ultimate role, and one that he played every day of his life.

But for a man who was consistently working on Broadway and later in

Hollywood, theater and film historians take no notice of his work or his exceptional status as a black actor passing seamlessly within the white popular culture mainstream. He is never mentioned in any theater history text, and is not listed among the biographies and encyclopedias of black performers and entertainers compiled during the 1970s and 1980s. It is precisely because he did not make it into these earlier bibliographies and compilations that his story serves as a perfect end to the larger discussion of segregation in leisure spaces and places of amusement.374

374 These encyclopedias truly laid the groundwork for any of us working in African American theater history. Errol Hill and James Hatch tirelessly tracked down any and every name they could in order to complete as full a record as possible. Their tireless work to recover the names of forgotten black performers and bring them into historians’ 169

Andrews’ life revealed the pragmatic choices African Americans living under the Plessy v. Ferguson decision made every day of their lives. He was thirty years old when Plessy was decided, and he would work for at least another forty years afterwards. He retained no records that he was a member of an organization like the Equal Rights League, Afro-American League, or National

Association for the Advancement of Colored People. He did not publicly protest against racist depictions of African Americans in American drama. There are no clues as to his politics or how he voted. We only know that he made a choice to protect himself and his ability to work. His story was forgotten, but it is a sobering reminder that not every black man or woman in our history books was a heroic champion for the race. There were many who made the difficult choice to deny a part of themselves to the world in order to survive.

Frank Andrews’ successful acting career expands our understanding of the

African American experience in the United States during the turn of the century.

To speak to “an African American experience” as monolithic at any point would be anachronistic and irresponsible. Rather, examining his life and work adds yet another important lens through which to view the daily life of African Americans in a country where their status as citizens and human beings was constantly shifting and being called into question. Exploring Andrews’ life within the context

work is unparalleled and, in many ways, makes this examination of Andrews possible. For more see; James V. Hatch, Black Image on the American Stage: a Bibliography of Plays and Musicals, 1770-1970 (New York: DBS Publications, 1970); The Theatre of Black Americans, Errol Hill, ed. (New York: Applause Theatre Book Publishers, 1980); The Roots of African American Drama: An Anthology of Early Plays, 1858-1938, James V. Hatch, ed. (Detroit: Wayne State University Press, 1991); Errol Hill and James V. Hatch, A History of African American Theater (New York: Cambridge University Press, 2003). 170 of his post-bellum, pre-Harlem world reveals a different side of the narrative of progress and racial uplift that began to take shape during the early decades of the twentieth century.375

While opportunities opened up for people of color in the immediate post- war period when Andrews was born, by the time he was of an age to work as an actor, those doors had begun to close. His tactic of passing for white allowed him to continue to work in a predominantly white occupation, all while denying his true identity to the broader public. Andrews’ decision to pass for white sheds light on the broader context of race relations in urban environments, and the lengths many African Americans were willing to go to pursue their dreams.

Andrews’ ability to maintain an impressive career while hiding in plain sight is a perfect example of the other side of racial progress: segregation in the

North pushed many African Americans to seek ways of surviving that forced them to deny parts of their own humanity. Some fought the system; others did what they needed to do in order to get by. Some enjoyed a modicum of success relative to the rest of the black middle class: others were not so lucky, and instead sought other opportunities when and where they could find them. Some performed as amateurs, and got their theatrical fix in community productions housed in churches, schools, or hotel bars and taverns. Others, like Andrews, hid their true

375 Racial uplift as an ideology for change was pushed for by contemporaries like W.E.B. Dubois, Ann Julia Cooper, and Pauline Hopkins along with many others around the turn of the century. For more on historians work on racial uplift and its efficacy see: Michelle Mitchell, Righteous Propagation: African Americans and the Politics of Racial Destiny after Reconstruction (Chapel Hill: University of North Carolina Press, 2004); Gene Andrew Jarrett, Representing the Race: A New Political History of African American Literature (New York: New York University Press, 2011). 171

identity in order to thrive on the white side of the city.376 The most difficult questions historians face is how many actually passed. The literature on passing is fairly broad, and covers certain subsets of African American communities, but most major works on passing focus on one individual’s story because it is almost impossible to gain a full picture of passing in the United States at any moment in time. The very act of passing successfully denies the truth to both the actor’s own contemporaries and to the historical record.377

Race in the nineteenth and early twentieth centuries relied on both social norms and assumed biological truths in order to operate. The ability to pass ultimately came down to observable phenotypes like skin color and hair texture.

However, throughout the nineteenth and twentieth centuries, the true race of a person was ultimately determined by ancestry. Between 1910 and 1927 ten southern states codified “one drop rule” legislation that defined anyone with any black ancestry—or at least a very small portion of black ancestry—as “black” in the eyes of the law.378 These laws propped up the project of Jim Crow segregation

376 Alysson Hobbs, A Chosen Exile: A History of Racial Passing in American Life (Cambridge: Harvard University Press, 2014). For more on passing see: Albert M. Camarillo, “Navigating Segregated Life in America’s Racial Borderhoods, 1910s-1950s,” The Journal of American History (December 2013): 645-662. 377 There are multiple instances of passing as a trope in contemporary literature during the turn of the century. The most famous earlier example of passing literature is William Wells Brown’s Clotel: or the president’s daughter. More contemporary examples around Andrews’ life would be Nella Larsen’s Passing from 1921 or the earlier Frances E.W. Harper’s Iola Leroy: or, shadows uplifted from 1892. For more on historians studying passing as a historical phenomenon see: Allyson Hobbes, A Chosen Exile: A History of Racial Passing in American Life (Cambridge: Harvard University Press, 2014); Emily Clark, Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World (Chapel Hill: University of North Carolina Press, 2015), 378 For more on racial phenotypes and the making of race in American law see: Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009); Hobbs, A Chosen Exile, 145-151. 172 which relied upon clear distinctions between white and black bodies. In fact,

Plessy v. Ferguson (1896) exposed the need for Jim Crow segregation to adopt stricter “biological” legislation on race. Homer Plessy was a light skinned black man who purchased a ticket and was not challenged until he declared his parentage. White supremacy viewed light skinned African Americans and their ability to pass as a threat to the racial order.379

Andrews’ need to hide in plain sight within the boundaries of a northern city like New York open our eyes to the realities of racial proscription in the

172ostbellum north.380 As shown in previous chapters, the popular understanding of the Jim Crow era as a southern experiment that galvanized racist white southerners but was largely absent in the North rings false when held up to the historical record. Northerners were complicit, and Andrews experience proves something even more apparent: Jim Crow first danced in the North, then traveled south, before finally returning North once more.381

379 Mark Golub, “Plessy as ‘Passing’: Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson,” Law & Society Review 39:3 (Sep. 2005), 563-600; Steve Luxenberg, Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation (New York, W.W. Norton & Company, 2019). 380 For more on the legal realities facing African Americans in the north see Chapter 2. See also: Thomas J. Sugrue, Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North (New York: Random House, 2009). 381 This argument does not necessarily push back against a particular literature but instead seeks to broaden the conversation to encompass the North as well as the South. I am not suggesting that all past historians of Jim Crow were naïve and saw the North as a racial utopia. Instead what I argue as I do elsewhere is that the southern experiences of black codes and lynching have kept historians of Jim Crow focused on the South while perhaps less violent, but no less unjust acts were occurring in the North. For more on recent works attempting to turn our gaze North see: Sugrue, Sweet Land of Liberty; Blair L.M. Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (Chapel Hill: The University of North Carolina Press, 2010); David Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore, 1865-1920 (New York: Fordham University Press, 2016).

173

The theater industry of the 1890s and on through the 1920s to which

Andrews belonged perfectly illustrated this dynamic. As shown previously, for decades the state public accommodation and leisure laws had been a smattering of weak statutes that were inconsistently enforced depending on the municipality.

After the Civil War and the passage of the 1866 and 1875 Civil Rights Laws, the backlash of white northerners came swiftly. Northern white theater managers began to enforce their old municipal statutes and customs denying access to black patrons. They stood firm and were challenged in the courts, but ultimately won the day in 1896 with the Plessy v. Ferguson decision, effectively ending the ground gained in 1875. Plessy would usher in a wave of separate-but-equal spaces throughout the North and South, but the northerners had already carved out many those separate spaces. They were the tiers of the theaters, the access to the stage itself for black actors, and the denial of dressing rooms and accommodations for black performers. The trajectory of Andrew’s life and career contrasted with what it would have been had he been unable to pass for white proves this timeline. But unlocking the secret of Frank Andrews’ past began with a knock at a door.

*Frank Andrews’ Early Life and Career*

Jacob Andrews opened the door to his family’s presumably modest home in New Bedford, Massachusetts sometime in 1870—Jacob was a mixed-race picture frame gilder and his wife, Marietta, kept the home—a federal census taker 174 was standing in the threshold. The man asked Jacob a series of questions about his family, his work, and his estate. The census official recorded Jacob’s answers on his list and moved on. The official noted in column four that Jacob responded that he was, indeed, a mulatto: an individual who claimed both white and black parentage.382

The Andrews family was a bit of an anomaly in Massachusetts in 1870.

Despite Boston being billed as “the cradle of abolition” the Commonwealth of

Massachusetts had a tiny free black population. In 1860 black and mulatto residents accounted for 0.78 percent of the total population, numbering just

9,602.383 Ten years later in 1870 that number creeped up to 0.96 percent with just 13,947 black and mulatto residents.384 It was not until the 1880 census that black and mulatto residents of Massachusetts made up over 1 percent of the population—numbering 18,607, good for 1.04 percent.385 Simply put, the

Andrews were unique.

Frank had been born on July 26, 1866 to Jacob and Marietta, but we know little about his childhood or adolescence.386 We know he went to school; the 1880

382 United States Census, Schedule 1-Inhabitants in Ward Six, City of Boston, in the County of Suffolk, State of Mass. (1870), 94. 383 “State of Massachusetts, Table No. 1-Population by Age and Sex,” Population of The United States in 1860; Compiled from the Original Returns of the Eight Census under the Direction of the Secretary of the Interior, (Washington D.C.: Government Printing Office, 1864), 218. 384 “Table I. Population of the United States (By States and Territories) in the Aggregate,” Ninth Census-Volume I The Statistics of the Population of the United States…Compiled from the Original Returns of the Ninth Census, (Washington D.C.: Government Printing Office, 1872), 3-6. 385 “Table 1a-The United States, in the Aggregate, and by Sex, Nativity, and Race,” Statistics of the Population of the United States at the Tenth Census, (Washington D.C.: Government Printing Office, 1882), 3. 386 Births Registered in the City of Boston for the year eight hundred and sixty-six, 2. 175 census taker recorded the family on June 16, 1880 and 13 year-old Frank was listed as “At School” along with his siblings.387 We lose track of Frank due to the fire that destroyed most of the 1890 census, but the 1900 record places now thirty-three-year-old Frank as still living with his parents and working as an actor. The census also notes that he was never unemployed during the previous year. Frank and all of the members of the family were listed as black.388

Between 1900 and 1910 Frank’s situation transformed. He was now living with his wife, whom he had married just four years prior to the census visit, and their two children. His wife, Ethel (nee. Bland), was an Englishwoman who had immigrated to the United States in 1901. When the census taker asked Frank, the head of the household, to list his race and the race of his wife and children, he told the census man in no uncertain terms that he and his brood were “white.”

Andrews, now in his forties and enjoying an incredibly successful acting career, had recreated himself. He was able to deny his blackness to the outside world, and he did so in order to fulfill his dream. Frank Andrews did not leave us a diary where he recorded his innermost thoughts. There is no archive of his internal struggles, his loves, his hatreds, his passions, or his malaise. All we have left from him is a scrapbook.

It is a document of roughly two hundred unbound pages consisting of newspaper clippings, photographs, and handwritten notes from either Frank

Andrews himself or fan letters that he pasted in. The overall condition of the book

387 United States Census, Schedule 1: Inhabitants in the Town of Hyde Park, in the County of Norfolk, State of Mass. (1880), 50 388 Twelfth Census of the United States, Schedule 1-Population of Hyde Park Town, Norfolk, Massachusetts (1900), 8. 176 is very poor despite the amount of care Andrews took in preparing the pages. Its paper is stained and tearing at the edges, and many of the photographs are faded and worn. But despite the wear the pages still have life in them to tell his story.

His scrapbook provides a lens into his life as a working actor in New York City during the early twentieth century. A tangled web of motivations likely pushed him to ultimately live his life as a white man, allowing him to thrive in a career and a community that would have otherwise been closed.

What was the dream, and why would Andrews need to deny his blackness in order to see it fulfilled? The dream was a successful career on the New York stage: a difficult proposition both then and now for even the most talented actors and actresses. Theater historian Sean Holmes noted that “even in an era of expanding opportunities, the majority of the thirty thousand or so professional performers in the United States never made it onto the New York stage or toured with a first-class company.”389 A successful New York career depended on perseverance or, if that was lacking, the right connections. The theatrical world of the post-bellum north was both rigidly controlled and wide open: new theater companies were popping up constantly, and there was no shortage of audience members to fill seats. However, the gateways to the big time were tightly controlled by a handful of producers and theater managers, the majority of whom were white men.390

389 Sean P. Holmes, “All the World’s a Stage! The Actors’ Strike of 1919,” The Journal of American History (March 2005): 1293. 390 For more on segregated theaters and leisure spaces see Hill and Hatch, A History of African American Theater, 185-213; Victoria Wolcott, Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America (Philadelphia: University of Pennsylvania Press, 2012). 177

The racial disparities become clear once again when we look at the process by which theater actually happened in the United States and how that business model was different for white and black performers. A typical theatrical venue served as a multi-purpose space where different types of acts could come and rent the space for a fee, then take home a percentage of the box office earnings. Very few theaters housed their own companies. Rather, the traveling troupes would roll into town, play a week of shows, often different shows each night, and then move on to the next town. This practice had been in place for decades when intelligent managers around the 1880s and 1890s realized they could make more money by offering consistent performances throughout the country on a nightly basis; the vaudeville circuit was born.391 Now, patrons could pony up twenty cents to see a vaudeville variety show instead of the average theatrical ticket price of a dollar fifty.392

Aside from the vaudeville circuit, though, the main stages of New York,

Philadelphia, and Boston served as clearinghouses for the brightest stars of the day, all of whom were white. Pre-war talents such as Charlotte Cushman and

Edwin Booth were still performing into the 1870s and 1880s, but new talents were beginning to grace the stages consistently, particularly in the major East

Coast theater hubs of New York, Philadelphia, and Boston. At the turn of the century, touring acts became more and more popular and theater managers saw the opportunity to grab those popular acts and hold them in town for weeks at a

391 Brenda Dixon Gottschild, Waltzing in the Dark: African American Vaudeville and Race Politics in the Swing Era (New York: St. Martin’s Press, 2000). 392 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 15 178 time. These longer stays for acts like Haverley’s Minstrels, Williams and Walker,

Callender’s Minstrels, and Christie’s Minstrels dramatically increased their popularity in the major East Coast cities as patrons flocked to see them again and again.393

Bert Williams and George Walker were the exception to the rule in terms of black performers on Broadway. The two former street performers who once danced and sang for pennies tossed into a hat began selling out venues up and down the East Coast. They made the move to Broadway in 1903 with their

African-inspired musical revue In Dahomey.394 Williams and Walker were certainly not the norm, and they experienced a level of success that only a few other African American acts between 1865 and 1915 were able to achieve. They were the “colored act” that liberal white northerners could point to as proof that they were offering opportunities for black performers, and could celebrate the

“elevated” style of Williams and Walker as opposed to more traditional “darky humor.” Writing in 1908 about a New York performance of Williams and

Walker’s acclaimed “Bandanna Land” a white critic in the Brooklyn Eagle wrote,

“but art has no color line and it is simple justice to say that our stage as no white comedian so good as Bert Williams.” The critic would go on to make a distinction between about Williams and Walker’s style. “Anyone who…stays away from

Bandanna Land in the fear that it is an ordinary rough and tumble ‘darky show’ will make an unfortunate mistake.”395 But Williams and Walker were the

393 The New York Times, August 17-20, 1916. 394 Karen Sotiropoulos, Staging Race: Black Performers in Turn of the Century America (Cambridge: Harvard University Press, 2006), 42-80. 395 Brooklyn Eagle, August 10, 1908. 179 exception, and most black performers at the turn of the century needed to travel extensively in order to scrape together a living wage.

Andrews was no exception, and he traveled throughout the northern

United States from 1900 to 1920. Acting companies of the nineteenth century were rarely “resident” companies of specific theaters but instead trekked across the country on various “circuits” in order to string together enough performances to make a profit. During those travels, Andrews would have been put in close proximity to his fellow actors and actresses—intimate settings like train compartments, hotel quarters, dressing rooms, and backstage wings. This alone would have barred a black actor from joining up with a white troupe. Thanks to extensive research into the early years of Bert Williams and George Walker, as well as other black vaudeville circuit acts, we know of the difficulties faced by

African American performers while traveling throughout the northern,

Midwestern, and western United States. Bert Williams, whom many regard as the first black “star” of stage and screen, was upset at the different treatment he received in the United States: “I am often treated with an air of personal and social condescension by the gentleman who sweeps out my dressing room or the gentleman whose duty it is to turn the spotlight on me.”396 Williams and Walker were routinely denied accommodations while traveling with even their most famous production of Follies, and even when they were allowed a room in an upscale hotel they were forced to use the freight elevator so as to not mingle with the establishment’s white guests.

396 Quoted in Louis Chude-Sokei, The Last “Darky:” Bert Williams, Black-on-Black Minstrelsy, and the African Diaspora (Durham: Duke University Press, 2006), 259. 180

Andrews’ whiteness allowed him to maneuver safely and comfortably in spaces that would have been closed to him had he not made the decision to pass as a white man. Not only could he access spaces, but he also could access higher wages as a white man. Average wages for a consistently employed actor with a company are hard to pin down during the nineteenth and early twentieth centuries. Some historians estimate that at the turn of the century, the average performer earned an annual salary of $875 for a twenty-five-week season.397 It was not until the founding of Actor’s Equity Association in 1913 that union members were guaranteed the standard pay rate. Actor’s Equity was an interracial organization from its inception, but membership was limited to those actors who could secure regular work, which limited the non-white membership to the few exceptional actors and actresses who were able to engage star vehicles like Follies.

Based on Andrews’ Actors Equity contracts for the years 1915-1918, we know he was being paid $75 per week for supporting roles in a variety of shows.

Now that may sound like a lot for 1915 money, but contrast that with a famous

African American performer like Bert Williams who was making almost $300 per week in 1910. However, the reason there is so much data on Williams is because he is the exception not the rule. Andrews’ rate of $75 per week as a white actor in a supporting role in touring productions was the standard “Equity Rate.” Black performers who were not stars like Williams and could not gain membership into the union were paid considerably less, sometimes as little as $15 or $20 per week

397 Benjamin McArthur, Actors and American Culture, 1880-1920 (Philadelphia: University of Pennsylvania Press, 1984), 24. 181

to portray maids, field hands, or enslaved characters onstage.398 A passing

Andrews who worked 40 weeks out of the year would have made upwards of

$3,000 per year as opposed to a black actor who would barely scrape together

$900. His whiteness allowed him to make over three times the amount he would have made as a black man.399 Men like Bert Williams were the exception, not the rule. They were certainly able to carve out a space for themselves in the professional New York theater world and vaudeville circuit. Other African

Americans were not so lucky. Williams and Walker could be “race men;” Andrews was most likely a pragmatist. He chose to pass as white, and chose to live n the most profitable theatrical hub in the nation.

*Andrews, Theatrical Culture, and Blackface Minstrelsy*

Nowhere was the theatrical life more dynamic than in New York City.

While the Great White Way of Broadway theaters was still being developed during the 1880s and 1890s, few theater historians would argue against the claim that New York was the center of the theater world at the turn of the century. For all of these cities, the theater was the main source of entertainment for working class consumers in the nineteenth and early-twentieth centuries. Theater was

398 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 27. 399 Errol Hill notes that the typical black vaudevillian during this period would earn $15- 20 per week. There were a few notable exceptions like Bert Williams, George Walker, and Ernest Hogan, but they were a select few out of thousands of black entertainers trying to find consistent work. Hill and Hatch, History of African American Theatre, 164. 182 accessible to all levels of society: literate and illiterate, black and white, rich and poor, all had a place—both figuratively and literally—in the tiered galleries of the grand theaters and opera houses. Additionally, aside from Masonic lodges and fraternal meeting houses, theaters served as significant social and political spaces for holding municipal meetings, community events and recitals, as well as intellectual and political debates. They functioned as sites for both civic and social engagement. The fluid space of the theater served as bastions of theatrical talent as well as white supremacy throughout the post-bellum period. Even the physical structures of theaters were designed for segregation and discrimination.

The exclusivity of certain tiers of seats combined with multiple entrances and exits allowed for different classes and races to move within the same building without ever crossing paths. Theaters allowed northerners of all classes to observe the behaviors of other classes without needing to be in the same physical space as them. For instance, the grand tier was separated by a staircase, but afforded a wonderful view of the lower-class hullabaloo in the lower orchestra.

Segregation and northern theaters were a match made in heaven, until the 1875

Civil Rights Act began to challenge white northerners’ deepest-held racial beliefs.400

Before the creation of the black vaudeville circuit in 1912, African

American performers wanting to find consistent work had only a few options, and

400 For more on the physical space of theaters built in the nineteenth century see: David Grimsted, Melodrama Unveiled (Berkeley: University of California Press, 1987); Thomas Postlewait and Bruce A. McConachie, eds., Interpreting the Theatrical Past (Iowa City: University of Iowa Press, 1989); Jeffrey Mason, Melodrama and the Myth of America (Bloomington: University of Indiana Press, 1993); and Bruce A. McConachie, Melodramatic Formations: American Theatre and Society, 1820-1870 (Iowa City: University of Iowa Press, 1992). 183 even those were not always palatable. They could join a circus troupe as stagehands and work up through the ranks by petitioning tour managers to give them a chance at performing as a substitute. Or they could use local connections or friends in the business to get them an audition with a producer, though connections for African Americans with mainstream vaudeville producers at this point were slim.401

That began to change in 1912 with Sherman Dudley and the creation of the black vaudeville circuit. Dudley was an African American vaudeville performer who saw a need for black-owned theatrical venues that could provide stable employment throughout the entire year. His goal was to create a network of black theaters that would exist parallel to the mainstream vaudeville circuit network, but would employ solely African American performers, stagehands, and managers. In 1912, he and his partners created the “United Circuit” which merged with another fledgling vaudeville venture to create a network of eight theaters along the East Coast.402

The theaters were all black-owned and operated, but many catered to white and black patrons. They would charge lower prices for their shows than the white theaters in the same cities, but Dudley and his company worked with other mainstream vaudeville companies to make sure their bookings did not conflict.

Ticket prices were lower for “colored shows,” usually fifty percent off the regular price, so an audience member normally paying 20 cents for a white show would

401 Sotiropoulos, Staging Race, 63-65. 402 Athelia Knight, “He Paved the Way for T.O.B.A.,” The Black Perspective in Music (15:2, Autumn 1987), 155-156. 184

pay a dime to watch a negro circuit performance.403 In this way, black performers by 1912 could somewhat begin to think about making a permanent career of acting, but it was limited to a single vaudeville circuit of eight theaters on the East

Coast.

Frank Andrews, though, had another option available to him. Theater had always been at the center of popular culture in the United States, but the mid-late nineteenth century saw an explosion of theaters throughout the North to keep up with audience demand. The reasons for this increased demand were many: increasing urban populations, rising number of American-based playwrights and performers, economic prosperity leading to more disposable income, and finally a new group of entertainers eager to show northern audience what they had been missing for years—real black faces.

Frank Andrews passing as a white man cannot be understood without first understanding the proper context of the performative aspects of blackness and whiteness in the United States at the turn of the century. The “authentic darky” phenomenon—the shift from white actors in blackface to black actors themselves performing caricatures of black life—has been a boon for performance theorists studying the nineteenth and early-twentieth centuries because it centers on arguments of what it means to be “authentic.” Authenticity is at the heart of

Frank Andrews’ career because he is consistently hiding a piece of his authentic self from the world while recreating pieces of that true black self through the use of blackface.

403 Chude-Sokei, The Last Darky, 55. 185

Performance theorist Daniel Foster studied sight and sound separately and then combined them into an abstract concept pertaining to how the audience received the performance in front of them. “Before becoming codified as the minstrel show, blackface was more blackvoice.”404 Before the “racist” undertones of the early minstrel shows in the 1830s, the convention of blacking ones face was simply seen as assuming the voice of a black character, an “other” that needed to be differentiated. Once the “minstrel show” appeared, racist depictions of black characters became normalized by the end of the Civil War and beyond. The audiences began to see blackness rather than simply hear it. Blackface no longer just represented the voice in which a character was speaking, but was now meant to stand in as a visual representation for how all blacks acted. “As the audiences for the minstrel show became white and rich, these audiences began to observe the show less as a burlesque of themselves and their pretensions of wealth and respectability than as a ‘realistic representation’ of African Americans.”405

The dehumanization of African Americans and the creation of a black

“other” went hand in hand, but dehumanizing an abstract “blackness” became more difficult immediately after the Civil War for a variety of reasons. First,

African Americans were more of a physical, visual presence in the everyday lives of white Americans, and furthermore, those black bodies were now able to assume socio-economic or political roles equal to and higher than white

404 Daniel H. Foster, “From Minstrel Shows to Radio Shows: Racism and Representation in Blackface and Blackvoice,” Journal of American Drama and Theatre 17:2 (2005), 12. 405 Foster, “From Minstrel Shows to Radio Shows,” 13. For more on minstrelsy see: See Eric Lott, Love and Theft: Blackface Minstrelsy and the American Working Class (New York: Oxford University Press, 1993); W.T. Lhamon Jr., Raising Cain: Blackface Performance from Jim Crow to Hip Hop (Cambridge, Mass.: Harvard University Press, 1998). 186

Americans. Black men were able to vote with the passage of the Fifteenth

Amendment—a right denied to white women—and several black men were elected to local, state, and federal political office. Second, many historians argue that the northern audiences were clamoring for “authentic” experiences of

African Americans as they had seen in their tours South during the Civil War. The war years fueled the introduction of black bodies into minstrel shows because audiences were no longer content to suffer hackneyed impersonations from white comedians. They wanted to go straight to the source.406 This clamoring for “real” black bodies did not change attitudes of white northern audiences. These audiences wanted “real negroes” onstage but those men and women were still caricatures of their true selves when forced to perform inauthentic scripts filled with clichés and negative stereotypes.

Most mainstream theater and film of the early twentieth century, including the shows in which Frank Andrews was acting, followed a carefully crafted racial script that delineated what was acceptable behavior for black characters. Black minstrelsy was the standard and the most powerful tastemaker, creating caricatures and perpetuating stereotypes that persist into the twenty- first century. Film and race theorist Dan Flory argued that “film audiences were cognitively impaired so that they could not see black characters as fully human.”407 The dominant narratives of blackness in film dealt in racialized

406 Lott, Love and Theft. See also, Lori Brooks, “Journey to the Land of Cotton: A Slave Plantation in Brooklyn, 1895,” American Studies 53:1 (2014), 57-78; Zakiya R. Adair, “Respectable Vamp: A Black Feminist Analysis of Florence Mills’ Career in Early Vaudeville Theater,” Journal of African American Studies 17:1 (2013), 7-21. 407 Dan Flory, “Race, Rationality, and Melodrama: Aesthetic Response and the Case of Oscar Micheaux,” The Journal of Aesthetics and Art Criticism 63:4 (2005) 327. 187 stereotypes that forced audiences to see depictions of black bodies as inhuman.

Flory dealt with early silent films by Oscar Micheaux, but his arguments center on the process by which films like Birth of a Nation followed the minstrel and melodramatic traditions of stage shows like Uncle Tom’s Cabin, which trained white audiences to see race in a particular way, and especially view black characters as less than their white counterparts. “Modified melodrama [the genre of Uncle Tom’s Cabin and Birth of a Nation] presuppose[d] myths about the inferiority of blacks, their alleged inability to absorb ‘civilization’ as well as their alleged lack of intelligence.”408

Early twentieth-century audiences of both stage and screen were preconditioned to view black characters as less than human. Thus, when black actors began to take over for white performers in blackface, those actors would be forced to either accept and embrace the position of being less than human by their white audiences (as the cast of television’s Amos ‘n’ Andy were repeatedly accused of doing by black critics) or risk losing work. Flory writes, “white audiences entered the theatre with preconceived notions of blacks forged by decades of subhuman stage and film portrayals [….] integrity and economics left black actors confused about how to shape their performances.”409 When attending minstrel shows and blackface performances either onstage or in film, white audiences would have seen what they expected to see out of black characters. Thus, these representations would have “largely agreed with their

408 Ibid, 330. 409 Ibid, 334. 188

conceptions of blacks as inferior and lacking capacity for full humanity.”410

Authenticity and ownership also play a direct role in the rise and fall of blackface minstrelsy. Authenticity can be defined as “the artifacts and rituals which are a culture’s ‘currency,’ conferring value on those ‘acceptably derived’ from original sources.”411 Applied to blackface and racialized performance the

“original sources” are those that are particularly important; there came a point in time when white audiences just could not accept white performances as true depictions of other races. This was seen in the 1890s trends to recruit black minstrels, as well as the reactions to popular films like The Al Jolson Story.412

Likewise, ownership of certain accents, skin-colors, hairstyles, and other aesthetic stereotypes played an important role, particularly when it came to appropriations of ethnically-owned forms by white audiences.413 The effects of this boom of blackface minstrelsy and ethnic caricature played a major role in

Frank Andrews’ career and his status as a working actor on both stage and screen.

Andrews, a black man passing successfully as a moderately famous white actor for the better part of thirty years, often performed in blackface. He had his own chance to don the burnt cork during a performance of Wildfire in Cincinnati in 1907. Andrews played “the valet,” a black character, alongside his white acting partner Harry G. Stafford’s “colored jockey.” Andrews saved a photograph of the

410 Ibid, 335. 411 Joel Rudi now, “Race, Ethnicity, Expressive Authenticity: Can White People Sing the Blues?” The Journal of Aesthetics and Art Criticism 52:1 (1994), 129. 412 Hill and Hatch, History of African American Theatre, 134. 413 Rudinow, “Race, Ethnicity, Expressive Authenticity,” 130. 189 two men with the play’s star, Lillian Russell. Andrews wore a dark suit with a white hat. Incidentally, Stafford’s hands are covered with white gloves—Andrews’ are left bare. Perhaps this was because Andrew’s olive skin was deemed convincing enough to match his character’s black face, while Stafford’s hands were unconvincingly too white. The men’s’ faces, however, were the same: covered with dark black makeup to assume the role of “the negro” or “the other” in opposition to the pure white of Lillian Russell’s dress.414 The photograph is stark: two men with dark black faces and large-painted on lips wearing all black stand ready to carry the luggage of the pale, white leading lady. Their reason for existence in that moment is to show the audience the stark difference between the races: pure, white, and innocent versus the blackness of servitude and labor.

Andrews took on the role in Cincinnati and then followed with the company to Broadway in 1908, daubing burnt cork on his face throughout the circuit. This was not the typical action of a black man donning blackface. In normal situations the white audience knows that the man behind the burnt cork mask is actually a black man who is darkening his skin for comedic effect.

Instead, when Andrews daubed the burnt cork, he became a version of his true self. Not to say that he was a caricature, but that he was seen by the audience members as a black man only when he was onstage not offstage. This act changes our understanding of how passing operated in the world. Few if any other

414 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 194. 190 instances of passing literature ever discuss instances where the passer willfully becomes a black body in the eyes of the white world.415

Through blackface Andrews was able to access a part of his true self onstage, but another performance of his shows just how far his self-denial needed to go in the service of his career. In 1897 Frank Andrews, a black man, would play the role of one of the most reviled, racist, evil characters in all of American literature and drama: Simon Legree—the abusive overseer in Harriet Beecher

Stowe’s Uncle Tom’s Cabin. In 1896 Andrews signed on for a tour with Rice’s

Minstrels. The company had become famous in the 1870s under the direction of

Thomas Rice and was known for its low forms of minstrelsy. Andrews, however, became a part of the company as it was beginning to transition from the minstrel show genre toward producing pieces with broader appeal. The company took on classic works and tuned them to fit more into the comedic genre. Andrews’ self- denial would have been the most rigorously tested, as he took on the part of one of the most heinous figures in all of anti-slavery literature: Simon Legree.416 The book became an international best-seller and quickly became into a fully staged play. Stowe herself had reservations about the play, particularly because the main character of Tom and all of the other supporting African American characters were re-written in a minstrel-show style.417 Minstrel songs were added for the

415 None of the literary examples of passing I’ve studied involve scenes of characters willfully coming clean except in order to create some sort of dramatic climax. The ultimate goal of the passing characters is to remain hidden until they can finally reveal themselves to be who they truly are when they exist in a world who accepts their blackness. Examples are Nella Larson’s Passing and Frances Harper’s Iola Leroy. 416 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 241. 417 For the shifting history of minstrelsy after the Civil War see: Dale Cockrell, Demons of Disorder: Early Blackface Minstrels and Their World (Cambridge: Cambridge University Press, 1997); Ken Emerson, Doo-Dah: Stephen Foster and the Rise of 191 black chorus to sing. Dance numbers were placed at the beginning of the show to ease the transition between minstrel comedy and high drama for the audience.

The resulting show was a huge commercial success, in part because of its embracing of the minstrel style. This was one of the reasons it was so attractive to companies like Rice’s Comedians. It offered them a chance to “legitimize” their entertainments while still performing in a familiar style.418

Andrews, a black man passing as a white man, took the stage as Simon

Legree in 1897 in a performance in Taunton, Mass. The play received rave reviews, and Andrews saved a copy of the cast list as printed in the local newspaper for his scrapbook.419 He went through his typical meticulous cutting and pasting, and drew a line in ink connecting his name with his character name, as he did on each and every cast list he saved. This character though was out of style for Andrews. In his headshots, portraits, and other photographs he maintained in his scrapbook he presented himself as dignified, refined, and with a general air of goodness surrounding him. His roles up to this point in 1897 and after were either comedic character parts where he would don blackface or

“respectable” roles like butlers, doctors, and lawyers. Legree represented a new challenge for Andrews at this stage of his career.

American Popular Culture (New York: Da Capo Press, 1998); David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (London: Verso Publishing, 1999);and J. Mahar, Behind the Burnt Cork Mask: Early Blackface Minstrelsy and Antebellum American Popular Culture (Urbana: University of Illinois Press, 1999). 418 Anne E. Marshall, “The 1906 Uncle Tom’s Cabin Law and the Politics of Race and Memory in Early-Twentieth-Century Kentucky,” The Journal of the Civil War Era 1:3 (2011), 368-393. Marshall discusses the contested legacy of Uncle Tom’s Cabin and how it was used by white and black citizens of Kentucky as a means of remembering the years before the Civil War in public spaces like theaters. 419 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 226. 192

Simon Legree was a northern-born plantation driver who not only saw enslaved people as nothing more than objects and tools to enjoy beating and breaking their spirits for pleasure. He raped enslaved women and had no second thoughts of torturing, beating, and killing them if they refused his advances. In

Stowe’s novel, Legree appears about midway through the story when he buys

Uncle Tom at a slave auction. Upon arriving at Legree’s plantation in Louisiana

Tom refuses to participate in the abuse of other slaves, and firmly maintains his strong Christian ideals despite all Legree’s efforts to “break” him. At the novel’s climax, Legree ordered Tom be beaten so badly that the enslaved man died from his injuries.

One can imagine the possible range of emotions Andrews might have felt were he directed to pantomime beating a black man to death onstage. There is no way of knowing how Rice’s Comedians staged their rendition of Uncle Tom’s

Cabin, and certainly no way of knowing how they choreographed this particular beating scene. Often minstrel acts revised tragedies or dramas as comedies, making villains more bumbling buffoons than evil connivers. Rice’s group was widely known as a comedic troupe, but clues in Andrews’ clippings suggest they played this as a tragedy.

We are only privy to the cast list from the news clipping, but two things stand out. First, the character of Legree appeared in Acts III through V, which matched the character arc from the novel, and Tom was indeed sold to Legree as the Act V location was listed as “Home of Simon Legree.” This meant Legree’s character was present in the Final Act of the play and had not been written out in order to make the play less tragic. Second, the final section of the play was 193 denoted as “And the Apotheosisis [sic] of Eva in Heaven.” The minstrel troupe seemingly added in a section at the end of the play where the character Eva ascended to heaven, presumably to reconcile with Tom who saved her life when she was a child. Thus, Tom did indeed die in Rice’s rendition, and Legree was most likely responsible. Had there been a comedic revision, Tom probably would not have died, thus rendering Rice’s epilogue unnecessary. Instead Tom would have most likely outsmarted Legree, and Legree chased away never to be heard from again while Tom was reunited with the Clare family and his freedom was purchased as planned.420 Even in the most comedic of adaptations though,

Andrews was portraying a white character who orders the death of an enslaved black man.

We have no way of knowing what it would have been like for Andrews to play this role. His personal thoughts and reflections cannot be recovered. He may have felt nothing for a variety of reasons: Andrew was an actor and most working actors who play multiple roles over the course of a single week or sometimes a single day freely disassociate from their characters. The roles are ephemeral so the reactions to the roles are too. Or perhaps playing this role was an absolute nightmare for Andrews and it tormented him until the day he died: he left nothing in his scrapbook to hint at either.

But we can take something away from his embodiment of Legree, and that is the historical fact that a black man assumed the role of a white slave driver over the course of multiple performances on a tour of the East Coast and was paid to

420 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 226-228. 194

do so.421 He earned a living hiding behind the mask of one of the most despicable characters in the literary canon while convincing his managers and cast mates that he was their equal in every way. That act of personal resistance should not go unnoticed or unmentioned. But it can also serve as a signifier of why Andrews’ choice to pass was so important for his career. Uncle Tom’s Cabin was one of the most widely produced dramatic productions of the nineteenth century. Every company performing Uncle Tom’s Cabin needed to hire an actor to Simon Legree for every performance of the show. And those actors needed to be white men.

Andrews was paid seventy-five dollars a week to portray one of the most despicable white men ever written in literature, and he walked home with that paycheck each week. The simple act of walking into a casting call for a part like

Simon Legree would have been unthinkable for a black actor; anyone foolish enough to try would have been shown the door immediately. Black actors would certainly be needed for productions of Uncle Tom’s Cabin but they would be relegated to filling out the ensemble roles as servants and field hands, and they would be paid less than half of the seventy-five dollars Andrews brought in each week. Passing allowed Andrews access to the majority of available roles in the productions themselves. It was not just about access to accommodations and certain spaces, but access to far more potential job opportunities that could only be filled by a white actor.

Legree was not the only despicable white character Andrews ever portrayed. In 1929, over thirty years after his turn as Legree he played La Fouche

421 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 33. 195 in Dion Boucicault’s The Octoroon. The play ran at Maxine Elliott’s Theatre beginning on March 12, 1929 and was a hit for a Broadway revival.422 Andrews clipped the cast list announcement, scene synopsis, and advertisement from three separate pages of a New York paper and fit them back together in his scrapbook.

He had ceased the practice of underlining his name, perhaps because the novelty of seeing his name in print had worn off after forty years. Besides, he was booking consistent work on stage and screen at this point he barely had room in the scrapbook to contain the almost weekly newspaper clippings mentioning his name.423

The character La Fouche was the classic Andrews role by 1929—he appeared in a few scenes sporadically, was somewhat comedic in those scenes, and offered Andrews a chance to flex his dramatic muscle every now and then. La

Fouche is not necessarily an “evil” character in the same vein as Legree, but certainly falls in the category of a “louse” or “degenerate” whose only role in the plot is to antagonize the leading characters and throw up opposition to the protagonist. La Fouche utters “lynch him!” about a variety of African American characters throughout the play, and while these moments are, in the end, played for comedy, the reality of the situation in 1929 concerning lynching would have been all too familiar, especially for a black man hiding in plain sight in his light skin.

422 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 296. 423 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 297-304. 196

*Later Career and Death*

Andrews was never found out. His true self was never discovered, at least judging by his scrapbook and the fragments he left behind. He found work in the film industry beginning in the 1920s with the Eastern Film Company of

Providence, RI. He was living in New York at the time, and had married Ethel

Bland a white Englishwoman. They had a son, Bruce in 1909 so he would have been about 15 at the time his father was beginning to find consistent work not just on stage but on screen. Andrews, now in his early 50s, was primarily a character actor, who took on roles as both white and black characters. There is no indication in any of his contract negotiations that he was viewed as anything but a white man, and his ability to work in as many venues as he did proved that none of his contemporaries were wise to his ruse.

To the outside world Andrews was a white man in the theatrical world, and what did white men in that world do: they inevitably tried their hand at playwriting. Andrews was no exception. Tucked within the box containing his scrapbook is a bound typed script titled “Who Died First: Negro Farce by Frank

Andrews.” The document claims to be copyrighted and lists Andrews’ address on

W. 47th Street in Manhattan.424 It is unclear if the farce—a modest script of eleven pages—was ever performed. Judging by Andrews’ meticulous record keeping of his accolades and achievements it is probably a safe assumption to guess that it

424 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 5. 197 was never brought to the stage as evidenced by the lack of news clippings about it in his scrapbook.

The plot of his farce is facile and does not reveal anything about his inner character or his conception of himself. Instead it contains the tropes of many minstrel depictions of African Americans during the turn of the century. Rastus, a

“lazy, good for nuthin nigger,” and his wife, Mandy, each attempt to convince a white man the other has died in order to swindle the white men out of money to cover the funeral costs. The charade goes on for eleven pages until finally the two white men get wise and outsmart the two black characters.425 Andrews the writer created a ten minute interlude piece that would have been standard fare for minstrel audiences. He crafts his black characters as would a white playwright: devoid of any real emotional depth no internal motivation other than making the most money by putting in the least amount of effort, ultimately to be outsmarted by a white man. Rastus and Mandy are written with dialect as opposed to the white characters, Mr. Smith and Mr. Jones, and the constant bickering and violent threats between the black husband and wife is a classic trope of minstrel comedy.

For all of his accomplishments on the stage and screen, the end of

Andrews’s career is shrouded in mystery. It is difficult to uncover which performance was his last. There is a clue to how his career was progressing in those latter years though. Among his clippings is an article titled “Actor Falls

Unconscious in Crowded 45th Street.” The article states “Frank Andrews, fifty-five

425 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 6-17. 198 years old, said to be playing in ‘Listening In’ at the Bijou Theatre, on West Forty- fifth Street dropped unconscious to the sidewalk…his condition was reported to be serious. He was said to be suffering from a chronic ailment.”426 Andrews offers us a glimpse though because above the clipping is a note in Andrew’ hand that appears to read: “this was pulled by me for a Press Stunt and was a Flare back

[sic] as the Rotten Press agent fell down on the job after I had done my bit.”427

Andrews was attempting to get his name in the papers by feigning an ailment.

The man who had played many roles on and off stage his entire life was playing with his audience once again.

Four years after his “health scare” in 1925 he lived in New York City at 36

W. 46th Street alone as a boarder. Ethel, his wife, was not mentioned in any census records after 1910. In 1940 Andrews was listed as a widower. Ethel

Andrews passed away in 1910. The “New York Theatre” section of the Wilkes-

Barre Times mentioned her passing: “Ethel L. Andrews, professionally known as

Ethel Bruce, and wife of Frank Andrews, died in New York recently, at the age of

36.”428 By 1940, Frank and Ethel’s son, Bruce, would have been old enough to try to make a living on his own.

Frank continued to act and perform during this time: playbills and photographs exist of performances as late as 1932. He remained active in the

Actor’s Equity Union. In 1933 the New York Times noted that Andrews, “ veteran actor,” was engaged as a “special representative of the Actors Equity

426 Frank Andrews Collection, Harvard Theatre Collection, Box 1; Item 313. 427 Ibid. 428 Wilkes-Barre Times, October 8, 1910. 199

Association.”429 And the archives revealed a curious development in the mid-

1940s that might offer a glimpse into Andrews’ racial identity in his later years.

In 1936, a group of African American theater artists founded the Negro

Actors Guild in order to increase the visibility of black performers and support the efforts of black artists. In both 1945 and 1946, their membership renewal records list “Frank Andrews” on the rolls. Now, there is no other context in

Andrews’s own records to corroborate whether or not he joined the Negro Actors

Guild in 1945. There are no documents in his personal archive that reflect membership in the organization. But, by 1945, might he have become comfortable with revealing his mixed-race identity?430

The theatrical world of the 1940s, particularly in New York, was vastly different than the business Andrews grew up in, and afforded many more opportunities for black performers.431 The Federal Theatre Project’s Negro

Theatre Unit during the 1930s introduced the country to African American theatrical work in ways that had never before been shared.432 And in 1940, Abram

Hill and Frederick O’Neal founded the American Negro Theatre in Harlem. The

429 New York Times, January 11, 1933. 430 For more on the Negro Actors’ Guild see: Hill and Hatch, History of African American Theatre, 315. 431 Melinda D. Wilson, “Take a Giant Step Into (African) American Theatre History: Broadway’s First ‘Universal’ Drama,” The Journal of American Drama and Theatre 20, no. 3 (Fall 2008): 49-73; Bethany Holmstrom, “Integrating Broadway: Cultural Memory, Performance, and History in The Southerners,” Journal of American Drama and Theatre 22, no. 2 (Spring 2010): 67-83; LeRoy Ashby, With Amusement for All: A History of American Popular Culture Since 1830 (Lexington: The University Press of Kentucky, 2006), 143-209. 432 For more on the Federal Theatre Project and the Negro Theatre Unit see: Hill and Hatch, History of African American Theatre, 315-334. 200

New York Andrews knew had changed tremendously, and perhaps he decided to change with it.

There may have been additional pressures to adjust his way of life, particularly from others in the entertainment industry. For example, one of the founders of the Negro Actors Guild, Fredi Washington, was often assumed to be passing as white. Washington would vehemently deny those accusations, claiming “I am a Negro and I am proud of it.”433 She did admit to passing occasionally when traveling to performances in the South, assisting her bandmates by shopping for them in white stores that they could not enter.

But what has Andrews career revealed about the world he lived in? By the late 1920s and into the 1930s there were many more opportunities for African

American actors in theater and film. Shuffle Along, written by four black vaudeville performers, premiered on Broadway in 1921 with an all-black cast. In

1939 Hattie McDaniel won an Academy Award for her role in Gone With the

Wind. The segregation of theaters and movie houses was constantly being challenged by labor organizations of actors and theatrical technicians. Actors

Equity Association, the union to which Andrews belonged and paid dues, was officially desegregated by 1935, though certain locals had allowed black members since the mid-1920s.434 But we do not know if any of these changing opportunities meant that Andrews was willing to or ever actually did reveal his true identity.

433 Allyson Hobbs, A Chosen Exile, 172. 434 Eric Arnesen, “Following the Color Line: Black Workers and the Labor Movement Before 1930,” Radical History Review (55, 1993), 53-87. 201

He left no diary, and very little personal correspondence exists. What he did hold onto, though, were his photographs and reviews, commemorating an illustrious career that achieved what few actors at the time were able to accomplish: survival. It is impossible, though to know how his racial truth affected his everyday life. There are no newspaper mentions of him being African

American, and had someone, somewhere, ever suspected enough to tell the press it would have been a front-page story. Instead, what we are let with are more questions than answers, the most fascinating of which is this: how many others are there, hiding in plain sight, hoping one day to exist as their true selves? 202

AFTERWORD

The post-bellum, pre-Harlem moment was unique in the history of the

United States. The years between 1865 and 1915 were the first time since the end of the American Revolutionary War in 1783 that the future of the nation’s constitutional laws was ever so readily pliable and fluid. Slavery, the foundational economic system of the nation, and from which followed the country’s social and political doctrines, had evaporated. What would take its place? African American citizens both North and South threw themselves into the debates over the course of the nation. They did not sit idly by and allow their local, state, and federal governments to make decisions without their input. They poured their blood, sweat, and tears into making their voices heard in a nation that had previously been deaf to their cries.

The conditions of possibility for moments like the Harlem Renaissance,

New Negro Movement, and other twentieth century social movement were forged in the post-bellum, pre-Harlem period. This periodization is important because it begins with the year African Americans were formally recognized as citizens of the nation, and ends during the decade when their rights as citizens were almost fully stripped away at not only the federal but the state level in court decisions like Commonwealth v. George (1915). But during those years, a tremendous amount of organizing laid foundations for the future. The activism of African

American litigants and conventioneers led to structured organizations like the

NAACP. The earlier legal battles were picked up by equal rights organizations, and expanded to include boycotting and lobbying at both the state and federal 203 level. The conditions for the explosion of African American cultural politics of the

Harlem and Washington, D.C. renaissances were built in the wake of the Civil

War.

The twenty court cases detailed in this study, together with another two dozen that provided legal context or precedent, revealed a pattern of discrimination that pervaded northern society in the years after the Civil War.

The rhetoric of Jim Crow dancing in the North before traveling southward is not new: C. Vann Woodward claimed as much in 1995. However, these cases also revealed a pattern of African American struggle against the discriminatory doctrines of Jim Crow.

Many popular histories claimed that 1964 Civil Rights Act and the 1968

Fair Housing Act signaled the death knell of Jim Crow in the racially segregated

South. But this legislation also changed northern laws. The modern civil rights movement was born of the 1950s: Brown v. Board of Education (1954), the

Montgomery bus boycotts, and the creation of institutions like the Southern

Christian Leadership Council and the Student Non-Violent Coordinating

Committee have become the tentpoles for the popular understanding of the movement. But these southern organizations were mirrored in the North with the

Harlem bus boycotts of the 1940s, the work of northern chapters of the NAACP and the Congress on Racial Equality (CORE), and the development of interracial unionism that fought for economic rights alongside civil rights.435 The North was always a part of the struggle for civil rights, as was the theater.

435 For more on the twentieth-century civil rights movement in the North see: Martha Biondi, To Stand and Fight: The Struggle for Civil Rights in Postwar New York City 204

The black theatrical movements of the twentieth century were a direct result of the foundations built during the post-bellum, pre-Harlem period. One of the most important pieces of black theater in the history of the United States was

W. E. B. DuBois’ Star of Ethiopia pageant first performed in New York City in

1913. Du Bois used the pageant as a beacon for what black artists could achieve when they created spaces and organizations for their own artistic development.

He wrote in The Crisis in 1916 that the Philadelphia performance of the Star of

Ethiopia was “the dawn of the day for the colored playwright and the colored actor.”436 Ten years later he coined what he referred to as the “four fundamental principles of Negro Drama” stating that “real Negro theater” must be “about us, by us, for us, and near us.”437 The work of the early decades of the twentieth century shaped the tenets of black theater entering mid-century.

Just as black activism and theatrical production grew, so too did white supremacy and racialized violence. The Reconstruction years saw thousands of

“murders and outrages” perpetrated against black Americans throughout the southern states, and the court cases in this study reveal acts of discrimination and physical violence against African Americans in the North. White terror escalated throughout the post-bellum, pre-Harlem moment, as did the tactics and strategies for systematically controlling black bodies. The Philadelphia Riot of

1917, Red Summer of 1919, and the Tulsa Race Massacre of 1921 were just three

(Cambridge: Harvard University Press, 2006); Jeanne Theoharis, A More Beautiful and Terrible History: The Uses and Misuses of Civil Rights History (New York: Beacon Press, 2018); Clarence Taylor, Civil Rights in New York City: From World War II to the Giuliani Era (New York: Fordham University Press, 2011). 436 W. E. B. Du Bois, Crisis 12.4 (1916) 437 W. E. B. Du Bois, Crisis (1926) 205 of the violent eruptions throughout the nation. The last served to destroy the most economically self-sufficient and successful black communities in the country.

Violence was only one strategy employed by white Americans both North and South, eager to continue to limit the rights of black Americans as they had done in Plessy v. Ferguson and subsequent civil rights court battles. The practice of carving up neighborhoods and preventing black families from moving into certain regions—a policy known as “red-lining”—became ubiquitous in both the

North and the South.438 Theaters and other public accommodations throughout northern states continued to discriminate against black American patrons, as evidenced by the numerous civil rights cases tried in northern courts between

1915 and 1968.439

Two simultaneous processes characterized the post-bellum, pre-Harlem moment. The first was the abolition of slavery, the reality of black citizenship,

438 Richard Rothstein, The Color of Law: A Forgotten History of how Our Government Segregated America (New York: W. W. Norton, 2017). 439 Representative court cases from northern states between 1915 and 1968 include: Johnson v. Auburn & S. E. R. Co. 156 N.Y.S. 93 (1915); Gibbs v. Arras Brothers, Inc. 222 N.Y. 332 (1917); Guy v. Tri-State Amusement Co. 7 Ohio App. 509 (1917); Goff v. Savage 122 Wash. 194 (1922); Bolden v. Grand Rapids Operating Co. 239 Mich. 318 (1927); De La Ysla v. Publix Theatres Corp. 82 Utah 598 (1933); Harvey, Inc. v. Sissle 53 Ohio App. 405 (1936); McCrary v. Jones 1941 Ohio App. 935 (1941); Suttles v. Hollywood Turf Club 45 Cal. App. 2d 283 (1941); State v. Rosecliff Realty Co. 1 N.J. Super. 94 (1948); Everett v. Harron 380 Pa. 123 (1955); Fletcher v. Coney Island, Inc. 100 Ohio App. 259 (1955); Hobson v. York Studios, Inc. 145 N.Y.S.2d 162 (1955); Long v. Mountain View Cemetery Association 130 Cal. App. 2d 328 (1955); Coleman v. Middlestaff 147 Cal. App. 2d Supp. 833 (1957); Lambert v. Mandel’s of California 156 Cal. App. 2d Supp. 855 (1957); McClain v. South Pasadena 155 Cal. App. 2d 423 (1957); Browning, et. al. v. Slenderella Systems of Seattle 54 Wn.2d 440 (1959); Gardner v. Vic Tanny Compton, Inc. 182 Cal. App. 2d 506 (1960); State v. Sprague 105 N.H. 355 (1964); Fraser v. Robin Dee Day Camp 44 N.J. 480 (1965); Beech Grove Investment Co. v. Civil Rights Commission 380 Mich. 405 (1968).

206 and the rapid expansion of black community organizations, presses, and collectives. The second was the codification of white supremacy into the laws and customs of the United States at the local, state, and federal levels. By focusing on this era of rapid change we can clearly see these as parallel processes that were grounded in local municipalities and communities. The local activists brought cases to local courts, appeals to state courts, and some were heard at the federal level. Local black theatrical organizations began to create localized networks that slowly reached adjacent states and finally became nationwide touring performance circuits. As black activism in the courts and black performance in the theaters expanded, so too did the systematic codification of white supremacy, first at the state level, then at the federal.

Reclaiming this era as a unique moment in our timeline of American and particularly African American history is fundamental to our understanding of the twentieth century civil rights movement. It highlights the earliest experimentation by black Americans to exercise their newly granted constitutional rights as citizens, and it was the first time that the project of white supremacy in the United States was forced to reconcile its project of white domination with a completely free and African American population who were now legitimized by citizenship via the Fourteenth Amendment. Throughout this study there are constant references to the “complexity” or “messiness” of how civil rights litigation and legislation were debated and applied. Much of this

“messiness” is due to the unprecedented circumstances of the post-bellum, pre-

Harlem moment. These stories of African American litigants and theatrical 207 performers allow us to see how the United States codified segregation into laws that claimed to uphold complete racial equality.

This is the reason post-bellum, pre-Harlem stories centered on theaters matter to our understanding of the African American freedom struggle as both a political and cultural movement. The later movements of the twentieth century were reacting to and fighting against legislation and legal precedent that was codified into state and federal law by 1915. But the post-bellum, pre-Harlem years allow us to see how African Americans worked to stymie that process of codification in the courts, and resist discrimination in public accommodations.

They went to their court battles armed with newly passed state and federal civil rights laws to support their claims against racial discrimination, something the boycotters of Montgomery and the marchers in Selma in the 1950s did not have.

The post-bellum, pre-Harlem stories uncover the process by which state and federal judges and legislators systematically dismantled or weakened civil rights protections passed in the wake of the Reconstruction Amendments, thus rendering their protections null and void.

The world of black performers and theatrical professionals may have hit its peak in the years of the Harlem and Washington, D.C. renaissances of the 1920s and 1930s. The number of independent black theater companies and interracial productions continued to expand throughout the mid-twentieth century. The

Federal Theatre Project, formed during as part of the Second New Deal, included a Negro Theater Wing, whose mission supported black playwrights, directors, actors, and producers to create works by African Americans, for African 208

Americans, about African Americans, and near African Americans, thus achieving

W. E. B. Du Bois’s tenets of black theater at a national level.440

However, racial discrimination in the entertainment industry remains a stumbling block for an industry that views itself as one of the most inviting and progressive in the world. In the ninety-one years that the Academy Awards for film have been awarded, only forty-four African American individuals have ever won. Broadway has a slightly better track record than Hollywood of recognizing black talent. The pinnacles of theatrical achievement in the United States, the

Tony Awards, have been given since 1947. In the seventy-three years of the awards, fifty-four African American actors have won. The representation of

African Americans among theater and film producers, venue owners, directors, and technicians remain incredibly low.441

Today in 2020, the United States is again in a moment of reckoning with its white supremacist doctrines and policies. The Black Lives Matter movement, founded in the wake of the 2014 murder of Michael Brown at the hands of the police in Ferguson, Missouri, has begun to hold the lens up to the racialized violence woven throughout the history of the United States. On May 25, 2020, police in Minneapolis, Minnesota murdered George Floyd, a 46-year old African

American citizen. White police murdering black Americans is but one facet of

440 For more on the “Negro Units” of the Federal Theatre Project see: Kate Dossett, Radical Black Theatre in the New Deal (Chapel Hill: University of North Carolina Press, 2020). 441 Zoe Haylock, “Tonys: A Look Back at Black Actors Who Have Won,” The Hollywood Reporter, June 10, 2018; Yolanda Sangweni, “The Way-Too-Short List of Black Oscar Winners,” Essence, February 24, 2019; Darnell Hunt, et. al., Hollywood Diversity Report 2018 (Los Angeles: UCLA College Institute for Research on Labor and Employment, 2019). 209 white supremacy, but its roots run all the way back to slave catchers in the antebellum era, the formation of the Ku Klux Klan in the post-bellum moment, and the murders and outrages against black bodies that perpetuated throughout

Reconstruction and into the twentieth century.442

This study ends with the story of Frank Andrews for two distinct reasons, first as an individual representation of the life of a black entertainer during the post-bellum, pre-Harlem era, and second as a reminder of the importance of archiving the lives and telling the stories of black Americans. Had Frank chosen to not create a scrapbook, and had his descendants chosen to dismiss its significance or destroy it, his story would have been lost. There are hundreds of thousands of black stories and voices that we have lost. We have a duty to tell of those that we have found, and amplify their experiences against the overwhelming tide of white-washed American history.

442 Angela F. Murphy, The Jerry Rescue: The Fugitive Slave Law, Northern Rights, and the American Sectional Crisis (New York: Oxford University Press, 1994); Richard J. M. Blackett, The Captive's Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery (New York: Cambridge University Press, 2018); Nancy McClean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan (New York: Oxford University Press, 1994). 210

BIBLIOGRAPHY

Court Records

Aaron v. Ward, 203 N.Y. 351 (N.Y. App. 1911).

Anderson v. Rawlings, 10 Ohio Cir. Dec. 112 (Ohio 1899).

Baylies v. Curry, 128 Ill. 287 (Ill. Sup. 1889).

Beech Grove Investment Co. v. Civil Rights Commission, 380 Mich. 405 (Mich. Sup. 1968).

Bolden v. Grand Rapids Operating Co., 239 Mich. 318 (Mich. 1927).

Brown v. J. H. Bell Co., 146 Iowa 89 (Iowa Sup. 1910).

Browning, et. al. v. Slenderella Systems of Seattle, 54 Wn.2d 440 (Wn. Sup. 1959).

Bryant v. Rich’s Grill, 216 Mass. 344 (Mass. Sup. 1914).

Burks v. Bosso, 180 N.Y. 341 (N.Y. App. 1905).

Burks v. Bosso, 81 A.D. 530 (N.Y. App. Div. 1903).

Burton v. Scherpf, 83 Mass. 133 (Sup. 1861).

Charge to Grand Jury-Civil Rights Act, 30 F. Cas. 1005 (U.S. App. Tenn. 1875).

Clarke v. Rochester, 28 N.Y. 605 (App. 1864).

Coger v. North West Union Packet Co., 37 Iowa 145 (Iowa Sup. 1873).

Coleman v. Middlestaff, 147 Cal. App. 2d Supp. 833 (Cal. App. 1957).

Commonwealth v. George, 61 Pa. Super. 412 (Pa. Super. 1915).

Cooper v. District of Columbia, 1 MacArth. & M. 250 (U.S. App. 1880).

Cooper v. New Haven S.B. Co., 18 F. 588 (U.S. Dist. 1883).

Davis v. Euclid Avenue Garden Theatre Co., 17 Ohio C.C. (n.s.) 495 (Ohio 1911).

De La Ysla v. Publix Theatres Corp., 82 Utah 598 (Sup. 1933). 211

Deuwell v. Foerster, 30 Ohio Dec. 510 (Ohio 1912).

District of Columbia v. Saville, 1 MacArth. 581 (U.S. App. 1874).

Donnell v. State, 48 Miss. 661 (Sup. 1873).

Drew v. Peer, 93 Pa. 234 (Sup. 1880).

Everett v. Harron, 380 Pa. 123 (Pa. Sup. 1955).

Faulkner v. Solazzi, 79 Conn. 541 (Conn. Sup. 1907).

Ferguson v. Gies, 82 Mich. 358 (Mich. Sup. 1890).

Fletcher v. Coney Island, Inc., 100 Ohio App. 259 (Ohio 1955).

Fowler v. Benner, 23 Ohio Dec. 59 (Ohio 1912).

Fraser v. Robin Dee Day Camp, 44 N.J. 480 (Sup. 1965).

Gardner v. Vic Tanny Compton, Inc., 182 Cal. App. 2d 506 (Cal. App. 1960).

Gibbs v. Arras Brothers, Inc., 222 N.Y. 332 (N.Y. App. Div. 1917).

Goff v. Savage, 122 Wash. 194 (Wash. Sup. 1922).

Guy v. Tri-State Amusement Co., 7 Ohio App. 509 (Ohio 1917).

Hall v. De Cuir, 95 U.S. 485 (U.S. 1877).

Harvey, Inc. v. Sissle, 53 Ohio App. 405 (Ohio 1936).

Hobson v. York Studios, Inc., 145 N.Y.S.2d 162 (N.Y. App. Div. 1955).

Johnson v. Auburn & S. E. R. Co., 169 A.D. 864 (N.Y. App. Div. 1915).

Johnson v. Humphrey Pop Corn Co., 4 Ohio C.C. (n.s.) 49 (Ohio 1902).

Jones v. Broadway Roller Rink Co., 136 Wis. 595 (Wisc. Sup. 1908).

Joseph v. Bidwell, 28 La. Ann. 382 (Sup. 1876).

Joyner v. Moore-Wiggins Co., 152 A.D. 266 (N.Y. App. Div. 1912).

Lambert v. Mandel’s of California, 156 Cal. App. 2d Supp. 855 (Cal. App. 1957).

212

Lewis v. Hitchcock, 10 F. 4 (U.S. Dist. 1882).

Long v. Mountain View Cemetery Association, 130 Cal. App. 2d 328 (Cal. App. 1955).

McClain v. South Pasadena, 155 Cal. App. 2d 423 (Cal. App. 1957).

McCrary v. Jones, 1941 Ohio App. 935 (Ohio 1941).

Metropolitan Board of Health v. Heister, 37 N.Y. 661 (App. 1868).

Neuendorff v. Duryea, 69 N.Y. 557 (App. 1877).

People & John T. Hoffman v. Acton, 48 Barb. 524 (N.Y. App. Div. 1867).

People ex rel. Burnham v. Flynn, 189 N.Y. 180 (N.Y. App. 1907).

People ex rel. Cisco v. School Board of the Borough of Queens, 44 A.D. 469 (N.Y. App. Div. 1899).

People ex rel. King v. Gallagher, 11 Abb. N. Cas. 187 (N.Y. 1882).

People v. King, 110 N.Y. 418 (N.Y. App. 1888).

Rhone v. Loomis, 74 Minn. 200 (Minn. 1898).

Soc’y for the Reformation of Juvenile Delinquents v. Diers, 60 Barb. 152 (N.Y. App. Div. 1871).

State v. Gibson, 36 Ind. 389 (Ind. Sup. 1871).

State v. Rosecliff Realty Co., 1 N.J. Super. 94 (N.J. Super. 1948).

State v. Sprague, 105 N.H. 355 (Sup. 1964).

Suttles v. Hollywood Turf Club, 45 Cal. App. 2d 283 (Cal. App. 1941).

Thomas v. Williams, 95 N.Y.S. 592 (N.Y. Sup. 1905).

United States v. Newcomer, 27 F. Cas. 127 (U.S. Dist. 1876).

United States v. Stanley, et. al., 109 U.S. 3 (U.S. 1883).

United States v. Taylor, 3 F. 563 (U.S. App. 1880).

Wallack v. Society for Reformation of Juvenile Delinquents, 67 N.Y. 23 (App. 1876). 213

West Chester & P. R. Co. v. Miles, 55 Pa. 209 (Sup. 1867).

Woolcott v. Shubert, 169 A.D. 194 (N.Y. App. Div. 1915).

Younger v. Judah, 111 Mo. 303 (Mo. Sup. 1892).

Youngstown Park, et. al. v. Tokus, etc., 22 Ohio C.A. 417 (Ohio App. 1915).

Periodicals/Publications

A Rejoinder to “the Replies from England, Etc. To Certain Statements Circulated in This Country Respecting Mr. Macready. New York: Stringer & Townsend, 1849.

Congressional Globe. 1872.

Report on the Population of the United States at the Eleventh Census, 1890. Washington, D. C. : Government Printing Office, 1897.

"Statutes at Large." Congressional Globe 31 (1866).

Advance, September 22, 1900.

Bellingham Herald, March 14, 1905.

Boston Daily Advertiser, August 17, 1900.

Boston Daily Advertiser, February 3, 1876.

Boston Journal, September 1, 1900.

Brooklyn Eagle, August 10, 1908.

Christian Recorder, February 9, 1867.

Cleveland Gazette, March 25, 1905.

Colored American, June 14, 1902.

Daily Albany Argus, March 10, 1875.

Daily Albany Argus, March 4, 1875.

Enterprise, February 22, 1896.

214

Evening News, March 7, 1905.

Evening Post, April 21, 1875.

Freeman, September 8, 1900.

Massachusetts Spy, July 16, 1834.

National Aegis, May 16, 1849.

New Hampshire Sentinel, July 17, 1834.

New National Era, January 18, 1872.

New National Era, January 25, 1872.

New York Age, April 2, 1908.

New York Daily Mirror, July 6, 1895.

New York Globe, October 20, 1883.

New York Herald, January 1, 1876.

New York Herald, January 1, 1877.

New York Herald, May 8, 1849.

New York Times, April 22, 1875.

New York Times, April 27, 1875.

New York Times, March 2, 1875.

New York Times, May 18, 1865.

New York Tribune, April 29, 1857.

New York Tribune, June 8, 1875.

New York Tribune, October 17, 1883.

Newburyport Herald, April 4, 1834.

Patriot, August 30, 1900.

Patriot, December 20, 1913. 215

Patriot, December 24, 1913.

Patriot, January 12, 1915.

Philadelphia Inquirer, August 17, 1900.

Philadelphia Inquirer, September 5, 1900.

Pittsburgh Daily, December 27, 1906.

Pittsburgh Post Gazette, May 15, 1878.

Salem Gazette, July 15, 1834.

Springfield Republican, August 16, 1900.

Springfield Republican, August 17, 1900.

The Commercial Advertiser, March 3, 1875.

The Freeman, February 10, 1912.

The Freeman, January 20, 1912.

The Freeman, May 23, 1914.

The New Era, January 27, 1870.

The New York Evening Post, March 26, 1875.

The New York Times, August 17, 1916.

The New York Times, January 11, 1933.

The New York World, June 14, 1875.

The North American, March 7, 1876.

The North Star, May 25, 1849.

The Patriot, February 3, 1866.

The Philadelphia Inquirer, October 31, 1878.

The Weekly Anglo-African, April 17, 1860.

216

Times-Picayune, February 1, 1905.

Trenton Evening Times, August 18, 1900.

Washington Reporter, November 3, 1875.

Washington Review and Examiner, November 3, 1875.

Wilkes-Barre Times, August 16, 1900.

Wilkes-Barre Times, October 8, 1910.

Zion’s Herald, August 22, 1900.

Manuscript Collections

Frank Andrews Collection, Harvard Theatre Collection. Houghton Library, Cambridge, Mass.

Charles Sumner Papers. Microform. The Penn State University Libraries.

Secondary Literature

Adair, Zakiya R. "Respectable Vamp: A Black Feminist Analysis of Florence Mills’ Career in Early Vaudeville Theater." Journal of African American Studies 17, no. 1 (2013): 7-21.

Alexander, Leslie M. African or American? Black Identity and Political Activism in New York City, 1784-1861. Champaign: University of Illinois Press, 2008.

Alexander, Shawn, ed. T. Thomas Fortune, the Afro-American Agitator: A Collection of Writings, 1808-1928. Gainesville: University Press of Florida, 2010.

Anastaplo, George. Reflections on Constitutional Law. Lexington: The University Press of Kentucky, 2006.

Arnesen, Eric. "Following the Color Line: Black Workers and the Labor Movement before 1930." Radical History Review 55 (1993): 53-87.

———. "Reconsidering the ‘Long Civil Rights Movement’." Historically Speaking 10, no. 2 (April 2009): 31-34.

Ashby, LeRoy. With Amusement for All: A History of American Popular Culture since 1830. Lexington: The University Press of Kentucky, 2006.

217

Avins, Alfred. "The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations." Columbia Law Review 66, no. 5 (May 1966): 873-915.

Ayers, Edward. The Promise of the New South: Life after Reconstruction. New York: Oxford University Press, 1992.

Bachin, Robin F. "Mapping out Spaces of Race Pride: The Social Geography of Leisure on the South Side of Chicago, 1900-1919." In “We Shall Independent Be”: African American Place Making and the Struggle to Claim Space in the United States, edited by Angel David Nieves and Leslie M. Alexander. Boulder: University of Colorado Press, 2008.

Baker, Bruce E., and Brian Kelly, eds. After Slavery: Race, Labor, and Citizenship in the Reconstruction South. Gainesville: The University Press of Florida, 2013.

Barrett, Lawrence. Edwin Forrest. New York: Benjamin Bloom, 1969.

Barth, Gunther. City People: The Rise of Modern City Culture in Nineteenth-Century America. New York: Oxford University Press, 1980.

Benedict, Michael Les. "‘Membership of a Nation, and Nothing More’: The Civil Rights Act of 1866 and the Narrowing of Citizenship in the Civil War Era." In The Greatest and Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, edited by Christian G. Samito. Carbondale: Southern Illinois University Press, 2018.

———. "Constitutional Politics in the Gilded Age." The Journal of the Gilded Age and Progressive Era 9, no. 1 (January 2010): 7-35.

Berger, Morroe. Equality by Statute: Legal Controls over Group Discrimination. New York: Columbia University Press, 1952.

Bergeson-Lockwood, Millington. Race over Party: Black Politics and Partisanship in Late-Nineteenth Century Boston. Chapel Hill: University of North Carolina Press, 2018.

———. "‘In Accordance with the Spirit of the Times’: African American Citizenship and the Civil Rights Act of 1866 in New England Law and Politics." In The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, edited by Christian G. Samito. Carbondale: Southern Illinois University Press, 2018.

———. "‘We Do Not Care Particularly About the Skating Rinks’: African American Challenges to Racial Discrimination in Places of Public Amusement in Nineteenth-Century Boston, Massachusetts." The Journal of the Civil War Era 5, no. 2 (June 2015): 254-88. 218

Biddle, Daniel R., and Murray Dubin. Tasting Freedom: Octavius Catto and the Battle for Equality in Civil War America. Philadelphia: Temple University Press, 2010.

Birnbaum, Michele. "Racial Hysteria: Female Pathology and Race Politics in Frances Harper’s Iola Leroy and W. D. Howells’s an Imperative Duty." African American Review 33, no. 1 (Spring 1999): 7-23.

Blair, William A. “Vagabond Voters and Racial Suffrage in Jacksonian-Era Pennsylvania.” The Journal of the Civil War Era 9, no. 4 (December 2019): 569- 585.

Blight, David. Race and Reunion: The Civil War in American Memory. Cambridge: Harvard University Press, 2002.

Bonner, Christopher James. Remaking the Republic: Black Politics and the Creation of American Citizenship. Philadelphia: University of Pennsylvania Press, 2020.

Braeman, John. Before the Civil Rights Revolution: The Old Court and Individual Rights. Westport: Greenwood Press, 1988.

Brandwein, Pamela. "A Judicial Abandonment of Blacks? Rethinking the ‘State Action’ Cases of the Waite Court." Law & Society Review 41, no. 2 (2007): 343-86.

Brooks, Daphne. Bodies in Dissent: Spectacular Performances of Race and Freedom, 1850-1910. Durham: Duke University Press, 2006.

Brooks, Lori L. "Journey to a Land of Cotton: A Slave Plantation in Brooklyn, 1895." American Studies 53, no. 1 (2014): 57-78.

Brown, Bertram Wyatt. "The Civil Rights Act of 1875." The Western Political Quarterly 18, no. 4 (December 1965): 763-75.

Brown, Elsa Barkley. "Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom." In Time Longer Than Rope: A Century of African American Activism, 1850-1950, edited by Charles M. Payne and Adam Green. New York: New York University Press, 2003.

Buckner, Jocelyn L. "‘Spectacular Opacities’: The Hyers Sisters’ Performances of Respectability and Resistance." African American Review 45, no. 3 (Fall 2012): 309-23.

Butsch, Richard. "American Theater Riots and Class Relations, 1754-1849." Theatre Annual: A Journal of Performance Studies 48 (1995).

219

Camarillo, Albert M. "Navigating Segregated Life in America’s Racial Borderhoods, 1910s-1950s." The Journal of American History (December 2013): 645-62.

Campbell, James. "‘You Needn’t Be Afraid Here: You’re in Civilized Country’: Regional Racial Violence and Law Enforcement in Early Twentieth-Century New Jersey, New York, and Pennsylvania." Social History 35, no. 3 (August 2010): 253-67.

Cha-Jua, Sundiata K., and Clarence Lang. "The ‘Long Movement’ as Vampire: Temporal an Spatial Fallacies in Recent Black Freedom Studies." The Journal of African American History 92, no. 2 (Spring 2007): 265-88.

Chude-Sokei, Louis. The Last “Darky”: Bert Williams, Black-on-Black Minstrelsy, and the African Diaspora. Durham: Duke University Press, 2006.

Clark, Emily. Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World. Chapel Hill: The University of North Carolina Press, 2015.

Cliff, Nigel. The Shakespeare Riots: Revenge, Drama, and Death in Nineteenth- Century America. New York: Random House, 2007.

Cockrell, Dale. Demons of Disorder: Early Blackface Minstrels and Their World. Cambridge: Cambridge University Press, 1997.

Comminey, Shawn C. "National Black Conventions and the Quest for African American Freedom and Progress, 1847-1867." International Social Science Review 91, no. 1 (2015).

Cox, H. E. "Jim Crow in the City of Brotherly Love: The Segregation of Philadelphia Horse Cars." The Negro History Bulletin 26 (1962): 119-23.

Cox-Richardson, Heather. The Death of Reconstruction: Race, Labor, and Politics in the Post-Civil War North, 1865-1901. Cambridge: Harvard University Press, 2004.

Cumbler, John T. From Abolition to Rights for All: The Making of a Reform Community in the Nineteenth Century. Philadelphia: University of Pennsylvania Press, 2008.

Dagbovie, Pero Gaglo. "Reflections on Conventional Portrayals of the African American Experience During the Progressive Era or ‘the Nadir’." The Journal of the Gilded Age and Progressive Era 13, no. 1 (January 2014): 4-27.

Dale, Elizabeth. "‘Social Equality Does Not Exist among Themselves, nor among Us’: Baylies Vs. Curry and Civil Rights in Chicago, 1888." The American Historical Review 102, no. 2 (April 1997): 311-39.

220

Davis, Hugh. We Will Be Satisfied with Nothing Less: The African American Struggle for Civil Rights in the North During Reconstruction. Ithaca: Cornell University Press, 2011.

———. "The Pennsylvania Equal Rights League and the Northern Black Struggle for Legal Equality." The Pennsylvania Magazine of History and Biography 126, no. 4 (October 2002): 611-34.

Diemer, Andrew. "Reconstructing Philadelphia: African Americans and Poilitics in the Post-Civil War North." The Pennsylvania Magazine of History and Biography 133, no. 1 (January 2009): 29-58.

Donald, David H. Charles Sumner and the Rights of Man. New York: Alfred Knopf, 1970.

Dorr, Gregory Michael. "Conceiving Contempt and Pity: Race and Progressive Era Americans." The Journal of the Gilded Age and Progressive Era 9, no. 3 (July 2010).

Du Bois, W. E. B. Black Reconstruction in America: An Essay toward a History of the Part of Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880. New York: Harcourt, 1935.

———. The Autobiography of W.E.B. Du Bois: A Soliloquy on Viewing My Life from the Last Decade of Its First Century. New York: Oxford University Press, 2007.

Duis, Perry R. The Saloon: Public Drinking in Chicago and Boston, 1880-1920. Champaign: University of Illinois Press, 1983.

Edwards, Laura. Gendered Strife and Confusion: The Political Culture of Reconstruction. Champaign: University of Illinois Press, 1997.

———. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South. Chapel Hill: University of North Carolina Press, 2009.

———. A Legal History of the Civil War and Reconstruction. New York: Cambridge University Press, 2015.

Egerton, Douglas. The Wars of Reconstruction: The Brief, Violent History of America’s Most Progressive Era. New York: Bloomsbury, 2014.

Emerson, Ken. Doo-Dah: Stephen Foster and the Rise of American Popular Culture. New York: Da Capo Press, 1998.

Erenberg, Lewis. Steppin’ Out: New York Nightlife and the Transformation of American Culture. Westport, Conn.: Greenwood Press, 1981. 221

Ernest, John. Chaotic Justic: Rethinking African American Literary History. Chapel Hill: The University of North Carolina Press, 2009.

Finkelman, Paul. "Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North." Rutgers Law Journal 17 (1986).

Fleming, Crystal M., and Lorraine E. Ross. "Black Cultural Capitalists: African- American Elites and the Organization of the Arts in Early Twentieth Century Boston." Poetics 35 (2007): 368-87.

Fletcher, Tom. 100 Years of Show Business: The Tom Fletcher Story. New York: Burdge Press, 1954.

Flory, Dan. "Race, Rationality, and Melodrama: Aesthetic Response and the Case of Oscar Micheaux." The Journal of Aesthetics and Art Criticism 63, no. 4 (2005).

Foner, Eric. Reconstruction: America’s Unfinished Revolution. New York: Harper & Row, 1988.

———. The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W. W. Norton & Co., 2019.

Foner, Philip S., ed. Life and Writings of Frederick Douglass Vol. IV. New York: International Publishers, 1954.

Forbes, Camille F. Introducing Bert Williams: Burnt Cork, Broadway, and the Story of America’s First Black Star. New York: Basic Civitas, 2008.

Fortune, T. Thomas. "The Afro-American League." The Freeman, June 2, 1887.

Foster, Daniel H. "From Minstrel Shows to Radio Shows: Racism and Representation in Blackface and Blackvoice." The Journal of American Drama and Theatre 17, no. 2 (2005).

Fraser, Rebecca J. "‘I Must Speak, I Must Think, I Must Act.’ [Laura Simmes, 1864] the Christian Recorder Literary Activism, and the Black Female Intellectual." Slavery & Abolition 39, no. 4 (2018): 663-84.

Fronc, Jennifer. "‘The Horns of the Dilemme’: Race Mixing and the Enforcement of Jim Crow in New York City." Journal of Urban History 33, no. 1 (November 2006): 3-25.

Fuoss, Kirk W. "Lynching Performances, Theatres of Violence." Text and Performance Quarterly 19, no. 1 (January 1999): 1-37.

222

Gaines, Kevin. Uplifting the Race: Black Leadership, Politics, and Culture in the Twentieth Century. Chapel Hill: The University of North Carolina Press, 1996.

Gannon, Barbara. The Won Cause: Black and White Comradeship in the Grand Army of the Republic. Chapel Hill: The University of North Carolina Press, 2011.

Gates, Jr., Henry Louis, and Gene A. Jarrett, eds. The New Negro: Readings on Race, Representation, and African American Culture. Princeton: Princeton University Press, 2007.

Giesberg, Judith. Army at Home: Women and the Civil War on the Northern Home Front. Chapel Hill: The University of North Carolina Press, 2009.

Gilje, Paul A. The Road to Mobocracy: Popular Disorder in New York City, 1763-1834. Chapel Hill: The University of North Carolina Press, 1987.

———. Rioting in America. Bloomington: Indiana University Press, 1996.

Goings, Kenneth W., and Brian D. Page. "African Americans Versus the Memphis Street Railway Company: Or, How to Win the Battle but Lose the War, 1890-1920." Journal of Urban History 30, no. 2 (January 2004): 131-51.

Goldberg, David. The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore, 1865-1920. New York: Fordham University Press, 2016.

Golldstein, Warren. Playing for Keeps: A History of Early Baseball. Ithaca: Cornell University Press, 1989.

Golub, Mark. "Plessy as ‘Passing’: Judicial Responses to Ambiguously Raced Bodies in Plessy V. Ferguson." Law & Society Review 39, no. 3 (September 2005): 563- 600.

Gottschild, Brenda Dixon. Waltzing in the Dark: African American Vaudeville and Race Politics in the Swing Era. New York: St. Martin’s Press, 2000.

Gray, Kareema J. "Social Change for Social Betterment." Journal of African American Studies 18 (2014): 432-36.

Greenlee, Cynthia. "‘Due to Her Tender Age’: Black Girls and Childhood on Trial in South Carolina, 1885-1920." Ph.D. dissertation, Duke University, 2014.

Grover, Kathryn, ed. Hard at Play: Leisure in America, 1840-1940. Amherst: University of Massachusetts Press, 1992.

Guelzo, Allen C. Fateful Lightning: A New History of the Civil War and Reconstruction. New York: Oxford University Press, 2012. 223

Hall, Jacqueline Dowd. "The Long Civil Rights Movement and the Political Uses of the Past." The Journal of American History 91, no. 4 (March 2005): 1233-63.

Hanners, John. ‘It Was Play or Starve’: Acting in the Nineteenth-Century American Popular Theatre. Bowling Green: Bowling Green State University Press, 1993.

Harding, Vincent. There Is a River: The Black Struggle for Freedom in America. New York: Harcourt Brace, 1982.

Hatch, James V. Black Image on the American Stage: A Bibliography of Plays and Musicals, 1770-1970. New York: DBS Publications, 1970.

———, ed. The Roots of African American Drama: An Anthology of Ealry Plays, 1858- 1938. Detroit: Wayne State University Press, 1991.

Hershkowitz, Leo. "An Anatomy of a Riot: Astor Place Opera House, 1849." New York History 87, no. 3 (2006): 277-311.

Hicks, Cheryl. Talk with You Like a Woman: African American Women Justice and Reform in New York, 1890-1935. Chapel Hill: The University of North Carolina Press, 2010.

Higginbotham, Evelyn Brooks. Righteous Discontent: The Women’s Movement in the Black Baptist Church, 1880-1920. Cambridge: Harvard University Press, 1993.

———. "African American Women’s History and the Metalanguage of Race." Signs 17, no. 2 (Winter 1992): 251-74.

Hill, Errol, ed. The Theatre of Black Americans. New York: Applause Theatre Book Publishers, 1980.

Hill, Errol, and James V. Hatch. A History of African American Theatre. New York: Cambridge University Press, 2003.

Hobbs, Allyson. A Chosen Exile: A History of Racial Passing in American Life. Cambridge: Harvard University Press, 2014.

Hodes, Martha. "Knowledge and Indifference in the New York City Race Riot of 1900: An Argument in Search of a Story." Rethinking History 15, no. 1 (March 2011): 61-89.

Holloway, Vanessa. Black Rights in the Reconstruction Era. Lanham: Rowman & Littlefield, 2018.

Holmes, Sean P. "All the World’s a Stage! The Actors’ Strike of 1919." The Journal of American History (March 2005). 224

Holmstrom, Beth. "Integrating Broadway: Cultural Memory, Performance, and History in the Southerners." The Journal of American Drama and Theatre 22, no. 2 (Spring 2010): 67-83.

Horan, Michael J. "Political Economy and Sociological Theory as Influences Upon Judicial Policy-Making: The Civil Rights Cases of 1883." The American Journal of Legal History 16, no. 1 (January 1972): 71-86.

Horton, James O. Free People of Color: Inside the African American Community. Washington, D.C.: Smithsonian Institution Press, 1993.

Howe, Daniel Walker. What Hath God Wrought. New York: Oxford University Press, 2007.

Hurwitz, Nathan. A History of American Musical Theatre: No Business Like It. New York: Routledge, 2014.

Hyser, Raymond M., and Dennis B. Downey. "‘A Crooked Death’: Coatesville, Pennsylvania and the Lynching of Zachariah Walker." Pennsylvania History: A Journal of Mid-Atlantic Studies 54, no. 2 (April 1987): 85-102.

James E. Brunson, III. The Early Image of Black Baseball: Race and Representation in the Popular Press, 1871-1890.

James, William, and Hull Hoffer. Plessy V. Ferguson: Race and Inequality in Jim Crow America. Lawrence: University of Kansas Press, 2012.

Jarrett, Gene A. Representing the Race: A New Political History of African American Literature. New York: New York University Press, 2011.

———. "‘We Must Write Like the White Men’: Race, Realism, and Dunbar’s Anomalous First Novel." Novel 37, no. 3 (Summer 2004): 302-25.

Johnson, Franklin. The Development of State Legislation Concerning the Free Negro. Westport: Greenwood Press, 1919.

Johnson, Val Marie. "‘The Half Has Never Been Told’: Maritcha Lyons’ Community, Black Women Educators, the Woman’s Loyal Union, and ‘the Color Line’ in Progressive Era Brooklyn and New York." Journal of Urban History 44, no. 5 (2018): 835-61.

Jones, Angela. "The Niagara Movement, 1905-1910: A Revisionist Approach to the Social History of the Civil Rights Movement." Journal of Historical Sociology 23, no. 3 (September 2010): 453-500.

225

Jones, John Bush. Our Musicals, Ourselves: A Social History of American Musical Theatre. Waltham: Brandeis University Press, 2003.

Jones, Martha. All Bound up Together: The Woman Question in African American Public Culture, 1830-1900. Chapel Hill: The University of North Carolina Press, 2007. ———. Birthright Citizens: A History of Race and Rights in Antebellum America. New York: Cambridge University Press, 2018.

Kachun, Mitch. "‘Our Platform Is as Broad as Humanity’: Transatlantic Freedom Movements and the Idea of Progress in Nineteenth-Century African American Thought and Activism." Slavery & Abolition 24, no. 3 (2003): 1-23.

———. "‘Big Jim’ Parker and the Assassination of William Mckinley: Patriotism, Nativism, Anarchism, and the Struggle for African American Citizenship." The Journal of the Gilded Age and Progressive Era 9, no. 1 (January 2010): 93-116.

Kaczorowski, Robert. The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876. New York: Fordham University Press, 2005.

Kahrl, Andrew W. "The Political Work of Leisure: Class, Recreation, and African American Commemoration at Harpers Ferry, West Virginia, 1881-1931." Journal of Social History 42, no. 1 (Fall 2008): 57-77.

Kantrowitz, Stephen. More Than Freedom: Fighting for Black Citizenship in a White Republic, 1829-1889. New York: Penguin Press, 2012.

Karcher, Carolyn. "Albion Tourgée and Louis A. Martinet: The Cross-Racial Friendship Behind ‘Plessy V. Ferguson’." MELUS 38, no. 1 (Spring 2013): 9-29.

Kelley, Blair L. M. Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy V. Ferguson. Chapel Hill: The University of North Carolina Press, 2010.

Klinek, Eric. "Window on the Collections: ‘To Petitions the Government for a Redress of Grievances’." Pennsylvania Legacies 8, no. 1 (May 2008): 3-5.

Knight, Athelia. "He Paved the Way for T.O.B.A.". The Black Perspective in Music 15, no. 2 (Autumn 1987): 153-81.

Konvitz, Milton R. "Legislation Guaranteeing Equality of Access to Places of Public Accommodation." The Annals of the American Academy of Political and Social Science 275 (May 1951): 47-52.

226

Korobkin, Laura H. "Imagining State and Federal Forces in Pauline E. Hopkins’s Contending Forces." Legcacy: A Journal of African American Women Writers 28, no. 1 (2011): 1-23.

Kretz, Dale. "Pensions and Protest: Former Slaves and the Reconstructed American State." The Journal of the Civil War Era 7, no. 3 (September 2017): 425-45.

Lancot, Neil. Negro League Baseball: The Rise and Ruin of a Black Institution. Philadelphia: University of Pennsylvania Press, 2004.

Lane, Roger. Roots of Violence in Black Philadelphia. Cambridge: Harvard University Press, 1986.

Lasch, Kurt T. "Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act." University of Illinois Legal Studies Research Paper (2016): 16-25.

Lassiter, Matthew. "De Jure/De Facto Segregation: The Long Shadow of a National Myth." In The Myth of Southern Exceptionalism, edited by Matthew Lassiter and Joseph Crespino. New York: Oxford University Press, 2009.

Lawrence, Windy, Benjamin Bates, and Mark Cervenka. "Politics Drawn in Black and White: Henry J. Lewis’s Visual Rhetoric in Late-1800s Black Editorial Cartoons." Journalism History 40, no. 3 (2014): 138-47.

Lentz-Smith, Adrienne. Freedom Struggles: African Americans and World War I. Cambridge: Harvard University Press, 2009.

Lhamon, Jr., W. T. Raising Cain: Blackface Performance from Jim Crow to Hip Hop. Cambridge: Harvard University Press, 1998.

Lindfors, Bernth. Ira Aldridge: The African Roscius. Rochester: University of Rochester Press, 2014.

Litwack, Leon. North of Slavery: The Negro in the Free States, 1790-1861. Chicago: University of Chicago Press, 1961.

Logan, Rayford. The Negro in American Life and Thought: The Nadir: 1877-1901. New York: Dial Press, 1954.

———. The Betrayal of the Negro, from Rutherford B. Hayes to Woodrow Wilson. New York: Da Capo Press, 1965.

Lott, Eric. Love and Theft: Blackface Minstrelsy and the American Working Class. New York: Oxford University Press, 1993.

227

Luxenberg, Steve. Separate: The Story of Plessy V. Ferguson, and America’s Journey from Slavery to Segregation. New York: W. W. Norton & Company, 2019.

Mackey, Thomas C. Red Lights Out: A Legal History of Prostitution, Disorderly Houses and Vice Districts, 1870-1917. New York: Garland Publishing, 1987.

Magnuson, Landis K. Circle Stock Theater: Touring American Small Towns, 1900- 1960. Jefferson: McFarland & Company, Inc., 1995.

Mahar, J. Behind the Burnt Cork Mask: Early Blackface Minstrelsy and Antebellum American Popular Culture. Champagin: University of Illinois Press, 1999.

Marshall, Anne E. "The 1906 Uncle Tom’s Cabin Law and the Politics of Race and Memory in Early-Twentieth-Century Kentucky." The Journal of the Civil War Era 1, no. 3 (2011): 368-93.

Mason, Jeffrey. Melodrama and the Myth of America. Bloomington: University of Indiana Press, 1993.

Masur, Kate. An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. Chapel Hill: The University of North Carolina Press, 2010.

———. "State Sovereignty and Migration before Reconstruction." The Journal of the Civil War Era 9, no. 4 (December 2019): 588-611.

McAllister, Marvin Edward. White People Do Not Know How to Behave at Entertainments Designed for Ladies & Gentlemen of Colour: William Brown’s African & American Theater. Chapel Hill: The University of North Carolina Press, 2003.

McArthur, Benjamin. Actors and American Culture, 1880-1920. Philadelphia: University of Pennsylvania Press, 1984.

McBride, David. "Fourteenth Amendment Idealism: The New York State Civil Rights Law, 1873-1918." New York History 71, no. 2 (April 1990): 207-33.

McCaskill, Barbara, and Caroline Gebhard, eds. Post-Bellum, Pre-Harlem: African American Literature and Culture, 1877-1919. New York: New York University Press, 2006.

———, eds. Post-Bellum, Pre-Harlem: African American Literature and Culture, 1877- 1919. New York: New York University Press, 2006.

McClish, Glen. "‘To Furnish Specimens of Negro Eloquence’: William J. Simmons’s Men of Mark as a Site of Late-Nineteenth-Century African American Rhetorical Education." Rhetoric Society Quarterly 44, no. 1 (2014): 46-67. 228

McConachie, Bruce A. "‘The Theatre of the Mob’: Apocalyptic Melodrama and Preindustrial Riots in Antebellum New York." In Theatre for Working Class Audiences in the United States, 1830-1980, edited by Bruce A. McConachie and Daniel Friedman. New York: Greenwood Press, 1985.

———. "The Theatre of Edwin Forrest and Jacksonian Hero Worship." In When They Weren’t Doing Shakespeare: Essays on Nineteenth Century British and American Theatre, edited by Judith L. Fisher and Stephen Watt. Athens: The University of Georgia Press, 1989.

———. Melodramatic Formations: American Theatre and Society, 1820-1870. Iowa City: University of Iowa Press, 1992.

McConachie, Bruce A., and Daniel Friedman, eds. Theatre for Working Class Audiences in the United States, 1830-1980. Westport: Greenwood Press, 1985.

McPherson, James. "Abolitionists and the Civil Rights Act of 1875." The Journal of American History 52, no. 3 (December 1965): 493-510.

Miletsky, Zebulon. "The Dilemma of Interracial Marriage: The Boston Naacp and the National Equal Rights League, 1912-1927." Historical Journal of Massachusetts 44, no. 1 (Winter 2016): 137-69.

Milewski, Melissa. Litigating across the Color Line: Civil Cases between Black and White Southerners from the End of Slavery to Civil Rights. New York: Oxford University Press, 2017.

———. "From Slave to Litigant: African Americans in Court in the Postwar South, 1865- 1920." Law and History Review 30, no. 3 (August 2012): 723-69.

Miller, Scott. Strike up the Band: A New History of Musical Theatre. Portsmouth: Heinemann Press, 2007.

Mitchell, Koritha. Living with Lynching: African American Lynching Plays, Performance, and Citizenship, 1890-1930. Champaign: University of Illinois Press, 2011.

Mitchell, Michele. Righteous Propagation: African Americans and the Politics of Racial Destiny after Reconstruction. Chapel Hill: The University of North Carolina Press, 2004.

Mohamed, A. N. "Attitudes of Northern Papers toward the Egalitarian Laws of Reconstruction." Newspaper Research Journal 19, no. 3 (Summer 1998): 47-62.

Moody, Richard. The Astor Place Riot. Bloomington: Indiana University Press, 1958.

229

———. Edwin Forrest: First Star of the American Stage. New York: Alfred A. Knopf, 1960.

Moody-Turner, Shirley. Black Folklore and the Politics of Racial Representation. Jackson: University Press of Mississippi, 2013.

Mordden, Ethan. Anything Goes: A History of American Musical Theatre. New York: Oxford University Press, 2013.

Moses, Montrose J., and John Mason Brown, eds. The American Theatre: As Seen by Its Critics, 1752-1934. New York: Cooper Square Publishers, 1967. Murphy, L. E. "The Civil Rights Law of 1875." The Journal of Negro History 12, no. 2 (April 1927): 110-27.

Nathans, Heather S. "‘Blood Will Have Blood’: Violence, Slavery and Macbeth in the Antebellum American Imagination." In Weyward Macbeth: Intersections of Race and Performance, edited by Scott L. Newstok and Ayanna Thompson. New York: Palgrave Macmillan, 2010.

Nieves, Angel David, and Leslie M. Alexander, eds. “We Shall Independent Be”: African American Place Making and the Struggle to Claim Space in the United States. Boulder: University Press of Colorado, 2008.

Novak, William J. "The Legal Transformation of Citizenship in Nineteenth-Century America." In The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804, edited by Douglas Bradburn. Charlottesville: University of Virginia Press, 2009.

Osofsky, Gilbert. "Race Riot, 1900: A Study of Ethnic Violence." The Journal of Negro Education 32, no. 1 (Winter 1963).

Parker, Alison M. Articulating Rights: Nineteenth Century American Women on Race, Reform, and the State. DeKalb: Northern Illinois University Press, 2010.

Pascoe, Peggy. What Comes Naturally: Miscegenation Law and the Making of Race in America. New York: Oxford University Press, 2009.

Pencak, William, and et. al., eds. Riot and Revelry in Early America. University Park: The Pennsylvania State University Press, 2002.

Perkins-Valdez, Dolen. "‘Atlanta’s Shame’: W. E. B. Du Bois and Carrie Williams Clifford Respond to the Atlanta Race Riot of 1906." Studies in the Literary Imagination 40, no. 2 (Fall 2007): 133-74.

Poggi, Jack. Theater in America: The Impact of Economic Forces, 1870-1967. Ithaca: Cornell University Press, 1968.

230

Postlewait, Thomas, and Bruce A. McConachie, eds. Interpreting the Theatrical Past. Iowa City: University of Iowa Press, 1989.

Rael, Patrick. Black Identity and Black Protest in the Antebellum North. Chapel Hill: The University of North Carolina Press, 2002.

Rice, N. L., and et. al., eds. The Christian Sabbath: Its History, Authority, Duties, Benefits, and Civil Relations. New York: Robert Carter & Brothers, 1862.

Riis, Thomas Laurence. Just before Jazz: Black Musical Theater in New York, 1890- 1915. Washington, D. C. : Smithsonian Institution Press, 1989.

Robinson, Stephen. "African American Citizenship, the 1883 Civil Rights Cases and the Creation of the Jim Crow South." History (2017): 226-41.

Roediger, David R. The Wages of Whiteness: Race and the Making of the American Working Class. London: Verso Publishing, 1999.

Romero, Francine. "Before the Federal Rights Revolution: The Impact of Northern State Civil Rights Laws in the First Half of the Twentieth Century." Social Science History 43, no. 2 (Summer 2019): 345-63.

Rosen, Deborah A. American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880. Lincoln: University of Nebraska Press, 2007.

Rosen, Hannah. Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South. Chapel Hill: The University of North Carolina Press, 2009.

Ross, Michael A. "The Supreme Court, Reconstruction, and the Meaning of the Civil War." Journal of Supreme Court History 41, no. 3 (November 2016): 275-94.

Rudinow, Joel. "Race, Ethnicity, Expressive Authenticity: Can White People Sing the Blues?". The Journal of Aesthetics and Art Criticism 52, no. 1 (1994).

Rutherglen, George. Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866. New York: Oxford University Press, 2013.

Sacks, Marcy S. "‘To Show Who Was in Charge’: Police Repression of New York City’s Black Population at the Turn of the Twentieth Century." Journal of Urban History 31, no. 6 (September 2005): 799-819.

Sampson, Henry T. The Ghost Walks: A Chronological History of Blacks in Show Business, 1865-1910. Metuchen: The Scarecrow Press, Inc., 1988.

Sandoval-Strauz, A. K. Hotel: An American History. New Haven: Yale University Press, 2007. 231

Schmidt, Christopher W. "Legal History and the Problem of the Long Civil Rights Movement." Law & Social Inquiry 41, no. 4 (Fall 2016): 1081-107.

Scott, Donald M. "The Popular Lecture and the Creation of a Public in Mid-Nineteenth- Century America." The Journal of American History 66, no. 4 (March 1980): 791-809.

Scott, Rebecca J. "The Atlantic World and the Road to ‘Plessy V. Ferguson’." The Journal of American History 94, no. 3 (December 2007): 726-33.

Shawhan, Mark. "‘By Virtue of Being Born Here’: Birthright Citizenship and the Civil Rights Act of 1866." Harvard Latino Review 15 (2012).

Shelden, Rachel. "Introduction: Federalism in the Civil War." The Journal of the Civil War Era 9, no. 4 (December 2019): 499-503.

Shertzer, Allison, Randall P. Walsh, and John R. Logan. "Segregation and Neighborhood Change in Northern Cities: New Historical Gis Data from 1900-1930." Historical Methods: A Journal of Quantitative and Interdisciplinary History 49, no. 4 (2016): 187-97.

Singer, Joseph W. "No Right to Exclude: Public Accommodations and Private Property." Northwestern Law Review 90 (Summer 1996).

Slap, Andrew, and Michael T. Smith, eds. This Distracted and Anarchical People: New Answers for Old Questions About the Civil War-Era North. New York: Fordham University Press, 2013.

Smith, Eric Ledell. "‘Asking for Justice and Fair Play’: African American State Legislators and Civil Rights in Early Twentieth-Century Pennsylvania." Pennsylvania History: A Journal of Mid-Atlantic Studies 63, no. 2 (Spring 1996): 169-203.

Sommerville, Diane Miller. Rape and Race in the Nineteenth-Century South. Chapel Hill: The University of North Carolina Press, 2004.

Sotiropolous, Karen. Staging Race: Black Performers in Turn of the Century America. Cambridge: Harvard University Press, 2008.

Stanley, Amy Dru. "Slave Emancipation and the Revolutionizing of Human Rights." In The World the Civil War Made, edited by Gregory P. Downs and Kate Masur. Chapel Hill: University of North Carolina Press, 2015.

Stephens, Judith L. "Politics and Aesthetics, Race, and Gender: Georgia Douglas Johnson’s Lynching Dramas as Black Feminist Cultural Performance." Text and Performance Quarterly 20, no. 3 (July 2000): 251-67.

232

———. "Racial Violence and Representation: Performance Strategies in Lynching Dramas of the 1920s." African American Review 33, no. 4 (Winter 1999): 655-71.

Storm, Anna. "Quinine Pills and Race Progress: Alice Dunbar-Nelson and the Black Women’s Literary Tradition." Legacy: A Journal of African American Women Writers 33, no. 2 (2016): 361-83.

Suggs, Jon-Christian. Whispered Consolations: Law and Narrative in African American Life. Ann Arbor: University of Michigan Press, 2000.

Sugrue, Thomas. Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North. Westminster: Random House, 2008.

Tate, Gayle T. Unknown Tongues: Black Women’s Political Activism in the Antebellum Era, 1830-1860. East Lansing: Michigan State University Press, 2003.

Thompson, Heather Ann. "Understanding Rioting in Postwar Urban America." Journal of Urban History 26, no. 3 (March 2000): 391-402.

Trewin, J. C., ed. The Journal of William Charles Macready. Carbondale: Southern Illinois University Press, 1967.

Turner, Kristen M. "Class, Race, and Uplift in the Opera House: Theodore Drury and His Company Cross the Color Line." Journal of Musicological Research 34, no. 4 (2015): 320-51.

Turner, Nicole Myers. Soul Liberty: The Evolution of Black Religious Politics in Postemancipation Virginia. Chapel Hill: The University of North Carolina Press, 2020.

Twitty, Anne. Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787-1857. New York: Cambridge University Press, 2018.

Waldstreicher, David. In the Midst of Perpetual Fetes: The Making of American Nationalism, 1776-1820. Williamsburg: Omohundro Institute of Early American History and Culture, 1997.

Watkins, Patricia D. "Rape, Lynching, Law, and ‘Contending Forces’: Pauline Hopkins- Forerunner of Critical Race Theorists." CLA Journal 46, no. 4 (June 2003): 521- 42.

Webb, Barbara L. "Authentic Possibilities: Plantation Performance of the 1890s." Theatre Journal 56 (2004): 63-82.

Webster, Crystal Lynn. "In Pursuit of Autonomous Womanhood: Nineteenth-Century Black Motherhood in the U.S. North." Slavery & Abolition 38, no. 2 (2017): 425- 40. 233

Weinberger, Stephen. "‘The Birth of a Nation’ and the Making of the Naacp." Journal of American Studies 45, no. 1 (February 2011): 77-93.

White, Shane. Stories of Freedom in Black New York. Cambridge: Harvard University Press, 2002.

White, Timothy R. Blue-Collar Broadway: The Craft and Industry of American Theater. Philadelphia: University of Pennsylvania Press, 2015.

Wilentz, Sean. The Rise of American Democracy: Jefferson to Lincoln. New York: W. W. Norton & Co., 2005.

Williams, Andreá N. "Black Women’s Labor and the Melodrama of Class Mobility in Sutton Griggs’s ‘Overshadowed’." African American Review 45, no. 1 (Spring 2012): 49-64.

Williams, R. Owen. "The Civil Rights Act of 1866 at the Supreme Court." In The Greatest and Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today, edited by Christian Samito. Carbondale: Southern Illinois University Press, 2018.

Williams, Robert W. "Politics, Rights, and Spatiality in W. E. B. Du Bois’s ‘Address to the Country’ (1906)." Journal of African American Studies 14 (2010): 337-58.

Williamson, Elizabeth. "Fireboys and Burning Theatres: Performing the Astor Place Riot." The Journal of American Drama and Theatre 25, no. 1 (Winter 2013): 5- 26.

Wilson, Garff B. Three Hundred Years of American Drama and Theatre: From Ye Barre and Ye Cubb to a Chorus Line. Englewood Cliffs: Prentice-Hall, 1982.

Wilson, Kirt H. "The Contested Space of Prudence in the 1874-1875 Civil Rights Debate." Quarterly Journal of Speech 84, no. 2 (1998): 131-49.

Wilson, Melinda D. "Take a Giant Step into (African) American Theatre History: Broadway’s First ‘Universal’ Drama." The Journal of American Drama and Theatre 20, no. 3 (Fall 2008): 49-73.

Wolcott, Victoria. Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America. Philadelphia: University of Pennsylvania Press, 2012.

Woodward, C. Vann. Origins of the New South. Baton Rouge: LSU Press, 1951.

———. The Strange Career of Jim Crow. 3rd ed. New York: Oxford University Press, 1974.

234

Wriggins, Jennifer B. "Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007." The Review of Litigation 27, no. 1 (Fall 2007): 37-61.

Young, William C. Documents of American Theater History: Volume 1-Famous American Playhouses, 1716-1899. Chicago: The American Library Association Press, 1973.

Zylstra, Geoff D. "Whiteness, Freedom, and Technology: The Racial Struggle over Philadelphia’s Streetcars, 1859-1867." Technology and Culture 52, no. 4 (2011): 678-702.

VITA

Tyler Daniel Sperrazza

Education

Ph.D. 2013-2020 Pennsylvania State University History & African American and Diaspora Studies Advisors: William A. Blair & Shirley Moody- Turner

M.A. 2015 Pennsylvania State University History

B.A. 2013 Le Moyne College History & Theatre Arts

Awards and Fellowships

2017 New England Regional Fellowship Consortium Fellow, Mass. Historical Society

2016 Research Travel Grant, Research and Graduate Studies Office, Penn State

2016 McCourtney Pre-Dissertation Grant, Penn State History Department

2015 Weigley Graduate Student Travel Grant, Society for Military History

2014 Seed Grant, Africana Research Center, Penn State

2014 Master’s Thesis Grant, Filson Historical Society

Publications

2020 “Veterans at the Footlights: Unionism and White Supremacy in the Theater of the Grand Army of the Republic” in The War Went On: Reconsidering the Lives of Civil War Veterans, Brian Matthew Jordan and Evan Rothera, eds. Baton Rouge: LSU Press.