1. Testimony of Mary Jane Chilton (plaintiff), 10 Dec. 1872, Transcript of Testimony, pp. 20–35, Missouri State Archives (Jefferson City, Mo.), Record in Chilton v. St. Louis & Iron Mountain Ry., 114 Mo. 88 (1893).

2. Amended Answer, Transcript of Record, pp. 5–7, Statement and Brief of the Respondents, p. 21, Record in Chilton v. St. Louis & Iron Mountain Ry.

3. The reader will quickly discover that this is not a constitutional legal history. By focusing on the impact of social structure on law, I do not mean to suggest that constitutional changes, including the adoption of the Thirteenth and Fourteenth Amendments, and laws attempting to implement those changes such as the Civil Rights Act of 1875 and various anti-discrimination statutes adopted by individual states, were irrelevant to people of color's lives or to the evolution of racial segregation. Others have documented their vital practical and symbolic importance. See, e.g., Nelson, William E., The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988)Google Scholar; Kaczorowski, Robert J., “Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” New York University Law Review 61 (1986): 863Google Scholar; Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988).Google Scholar My goal here is to tell another part of the story that has to date been neglected.

4. Brown v. Board of Education, 347 U.S. 483 (1954).

5. Woodward, C. Vann, The Strange Career of Jim Crow, 3d ed. (New York: Oxford University Press, 1974)Google Scholar.

6. Plessy v. Ferguson, 163 U.S. 537 (1896). See, e.g., Tribe, Laurence H., The Constitutional Protection of Individual Rights (Mineola, N.Y.: Foundation Press, 1978), 1020Google Scholar; Miller, Loren, The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York, 1966), 169Google Scholar; Keller, Morton, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge: Harvard University Press, 1977), 453–54Google Scholar; Higginbotham, Judge A. Leon, Book Review of Bell, Derrick A., Race, Racism, and the American Law, in University of Pennsylvania Law Review 122 (1974): 1053–65Google Scholar; Woodward, C. Vann, “The National Decision Against Equality,” in American Counterpoint: Slavery and Racism in the North/South Dialogue (New York, 1983), 212.Google Scholar As some scholars have recognized, Chief Justice Lemuel Shaw anticipated the separate but equal doctrine in the pre—Civil War Massachusetts school case of Roberts v. City of Boston, 5 Cushing 198 (Mass. 1849), in which the Court upheld the right of the state to have racially segregated schools. See Kousser, J. Morgan, “‘The Supremacy of Equal Rights’: The Struggle Against Racial Discrimination in Antebellum Massachusetts and the Foundations of the Fourteenth Amendment,” Northwestern University Law Review 82 (1988): 941.Google Scholar In fact, in Roberts, Justice Shaw explicitly justified racial segregation by reference to the accepted practice of segregating students by sex.

7. Tindall, George B., South Carolina Negroes, 1877–1900 (Columbia: University of South Carolina Press, 1952)Google Scholar, predated and anticipated some of Woodward's arguments. Other historians expressly claiming to support the Woodward thesis include Wynes, Charles E., Race Relations in Virginia, 1870–1902 (Charlottesville: University of Virginia Press, 1961)Google Scholar; Logan, Frenise A., The Negro in North Carolina, 1876–1894 (Chapel Hill: University of North Carolina, 1964)Google Scholar; Dethloffand, Henry C.Jones, Robert R., “Race Relations in Louisiana, 1877–98,” Louisiana History 9 (1968): 301Google Scholar; Somers, Dale A., “Black and White in New Orleans: A Study in Urban Race Relations, 1865–1900,” Journal of Southern History 40 (1974): 19.Google Scholar For works disputing Woodward and arguing that in the immediate wake of the Civil War custom and practice mandating segregation had the force of law, see Williamson, Joel, After Slavery: The Negro in South Carolina During Reconstruction, 1861–1877 (Chapel Hill: University of North Carolina Press, 1965)Google Scholar; Wharton, Vernon Law, The Negro in Mississippi, 1865–1890 (New York: Harper and Row, 1965).Google Scholar The strongest critique of the Woodward thesis, however, has come from Rabinowitz, Howard N., Race Relations in the Urban South, 1865–1890 (New York: Oxford University Press, 1978).Google Scholar Based on his study of five southern cities, Rabinowitz argues that exclusion from public accommodations was the norm from which people of color worked forward toward segregated accommodations.

8. Lofgren, Charles A., The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 116–47, 196–97Google Scholar; Riegel, Stephen J., “The Persistent Career of Jim Crow: Lower Federal Courts and the ‘Separate but Equal’ Doctrine, 1865–1896,” American Journal of Legal History 20 (1984): 17.Google Scholar

9. See, e.g., Velde, Lea S. Vander, “The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity,” Yale Law Journal 101 (1992): 775Google Scholar; Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press, 1992)Google Scholar; Scott, Joan Wallach, Gender and the Politics of History (New York: Columbia University Press, 1988).Google Scholar See also Welke, Barbara Y., “Unreasonable Women: Gender and the Law of Accidental Injury, 1870–1920,” Law and Social Inquiry 19 (1994): 369.Google Scholar

10. See, e.g., Brown, Elsa Barkley, Hine, Darlene Clark, Terborg-Penn, Rosalyn, eds., Black Women in America: An Historical Encyclopedia (Carlson Publishing, 1993)Google Scholar; Higginbotham, Evelyn Brooks, Righteous Discontent: Women in the Black Baptist Church (Cambridge: Harvard University Press, 1993)Google Scholar; Jones, Jacqueline, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (New York: Basic Books, 1985)Google Scholar; Giddings, Paula, When and Where I Enter: The Impact of Black Women on Race and Sex in America (New York: Bantam, 1984)Google Scholar; Sterling, Dorothy, ed., We Are Your Sisters: Black Women in the Nineteenth Century (New York: W. W Norton, 1984)Google Scholar; Hooks, Bell, Ain't I a Woman (South End Press, 1981)Google Scholar; Lerner, Gerda, Black Women in White America (New York: Pantheon Books, 1972).Google Scholar

11. Higginbotham, Evelyn Brooks, “Beyond the Sound of Silence: Afro-American Women in History,” Gender and History 1 (Spring 1989): 50.CrossRefGoogle Scholar

12. For an introduction to the growing body of legal scholarship at the intersection of feminist legal theory and critical race theory, see Kimberle Crenshaw, “Demargin-alizing the Intersection of Race and Sex;” and Crenshaw, , “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” Stanford Law Review 43 (1991): 1241–1299CrossRefGoogle Scholar. I wish to thank Bryant Garth, Director of the American Bar Foundation, for first pointing out the potential relevance of critical race theory to my research.

13. This language which is part of the title of the article is similar to the title of the black women's studies book edited by Hull, Gloria T., Scott, Patricia Bell, and Smith, Barbara, eds., All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave (Old Westbury, N.Y.: The Feminist Press, 1981).Google Scholar As legal scholar Kimberle Crenshaw has noted of the book's title, “it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis.” Crenshaw, “Demarginalizing the Intersection of Race and Sex,” 139.

14. Understanding the role of sex in the development of separate but equal doctrine helps explain why the doctrine, following the Supreme Court's decision in Plessy, became such an effective tool for demanding that if racial separation was to be the law, it must include a meaningful equality.

15. Day v. Owen, 5 Mich. 520 (1858); McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151 (1914). This article relies on the published decisions of state and federal courts and the Interstate Commerce Commission between 1855 and 1914, the underlying trial records, including trial transcripts and appellate briefs, newspaper accounts of those decisions, and census data on the plaintiffs collected from the United States manuscript censuses. I am aware of forty-seven published cases. While most of these cases are appellate decisions, they also include published trial court decisions, charges to grand Juries, and civil and criminal Jury instructions. To date, I have been able to locate the trial court records in thirty of these cases. For federal cases, other than Supreme Court cases, the records, if they have been preserved, are held by the appropriate geographic branch of the National Archives. The records in United States Supreme Court decisions are widely held by law libraries on microfilm. For state cases, again, to the extent they have been preserved, the records are held in one of three places: the state supreme court, the state archives, or a repository law school in the state. The United States manuscript censuses are held on microfilm at each of the geographic branches of the National Archives. I do not intend to suggest that these cases present a complete picture of people of color's legal, much less political, challenges to segregation on common carriers. For example, neither Elizabeth Jennings's successful suit against the Third Avenue Railroad Company in New York City in 1855, nor Sojourner Truth's successful suit against streetcars in Washington, D.C., in 1865, resulted in published legal opinions. Nonetheless, published decisions were the law to which courts referred in crafting the law of segregation on common carriers. Moreover, the trial transcripts in these cases present a much broader picture of carrier practices than the particular incident which led to the suit. Sterling, We Are Your Sisters, 223–24; Litwack, Leon F., North of Slavery: The Negro in the Free States 1790–1860 (Chicago and London: The University of Chicago Press, 1961), 111–12.Google Scholar

16. I use the terms “people of color,” “men of color” and “women of color,” rather than the terms “black,” “freedwomen” or “freedmen,” or “African-American” to refer to the individual men and women who challenged racial segregation on common carriers. First, most of these men and women did not view themselves as black. In the United States censuses some reported themselves as mulatto, their friends and acquaintances, even lawyers, testified to the lightness of their skin. Their skin coloring was inextricably intertwined with their class status. Nor did most of the plaintiffs think of themselves as African-American. Finally, many of these men and women were free before the war and thus did not come within the accepted understanding of the term freedmen, for example. In referring more generally to blacks or the black community, I use “black” and “people of color” interchangeably.

17. See, e.g., Cott, Nancy F., The Grounding of Modern Feminism (New Haven: Yale University Press, 1987)Google Scholar; Cott, Nancy F., The Bonds of Womanhood: “Woman's Sphere” in New England, 1780–1835 (New Haven: Yale University Press, 1977)Google Scholar; Smith-Rosenberg, Carroll, Disorderly Conduct: Visions of Gender in Victorian America (New York: Oxford University Press, 1985)Google Scholar; Dubois, Ellen Carol, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878,” Journal of American History 74 (1987): 836Google Scholar; Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).Google Scholar

18. Toquevillel, Alexis de, Democracy in America (New York: Langley, 1840), 211–14Google Scholar; Cott, Bonds of Womanhood; Kerber, Linda K., “Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History,” Journal of American History 75 (1988): 9.Google Scholar

19. Ryan, Mary P., Women in Public: Between Banners and Ballots, 1825–1880 (Baltimore and London: Johns Hopkins University Press, 1990), 76–87Google Scholar; Cohen, Patricia Cline, “Safety and Danger: Women on American Public Transport, 1750–1850,” in Helly, Dorothy O. and Reverby, Susan M., eds., Gendered Domains: Rethinking Public and Private in Women's History (Ithaca: Cornell University Press, 1992), 109, 119Google Scholar; White, John H. Jr, The American Railroad Passenger Car (Baltimore: Johns Hopkins University Press, 1978), 208Google Scholar; Richards, Jeffrey and MacKenzie, John M., The Railway Station: A Social History (Oxford: Oxford University Press, 1993), 158–59Google Scholar; Berg, Walter G., Buildings and Structures of American Railroads (New York: John Wiley & Sons, 1900), 72, 78, 138, 345, 348.Google Scholar

20. The long open structure of the American railroad car was a significant departure from the compartment cars characteristic of trains in Europe. One could imagine the history of racial segregation in the American South unfolding differently had American railroad cars been more like those in Europe. See Schivelbusch, Wolfgang, The Railroad Journey: The Industrialization of Time and Space in the Nineteenth Century (Berkeley: The University of California Press, 1977), 70–112.Google Scholar

21. Although a few railroads had provided crude sleeping cars before the Civil War, it was not until after the war that Pullman cars were first built and put into use on major roads at premium rates. Dining cars too were largely a post-war innovation. White, American Railroad Passenger Car, preface, 8, 14–15, 208; Stover, John F., American Railroads (Chicago: University of Chicago Press, 1961), 165–67Google Scholar; Testimony of Winfield F. Cozart (plaintiff), 15 March 1909, Transcript of Testimony, pp. 6–9, ICC Docket No. 1718, RG 134 Interstate Commerce Commission, Box 1354, National Archives (Suitland, Md.), Record in Cozart v. Southern Ry., 16 I.C.C. 226 (1909).

22. Reed, Robert C., Train Wrecks: A Pictorial History of Accidents on the Main Line (Seattle: Superior Publishing, 1968), 55–58.Google Scholar

23. See, e.g., Testimony of Ida B. Wells (plaintiff), Testimony of G. H. Flowers (witness for plaintiff), Testimony of G. W. Maseley (witness for plaintiff), Testimony of Silas Kearney (witness for plaintiff), Transcript of Record, pp. 20, 23–25, Tennessee State Library and Archives (Nashville, Tenn.), Record in Chesapeake, Ohio & Southwestern R.R. v. Wells, 85 Tenn. 613 (1887).

24. White, American Railroad Passenger Car, 208, 462; Commonwealth of Massachusetts, Fifteenth Annual Report of the Board of Railroad Commissioners, January, 1884 (Boston: Wright & Potter, 1884), 44–46.Google Scholar The class and gender divisions on steamboats, were, if anything, more carefully defined than on railroads. See Greenhill, Basil and Clifford, Ann, Travelling by Sea in the Nineteenth Century: Interior Design in Victorian Passenger Ships (New York: Hastings House, 1974), passimGoogle Scholar; Brinnin, John Malcolm, The Sway of the Grand Saloon (New York: Delacorte Press, 1971), 248.Google Scholar Of the means of public carriage available at the end of the War, only streetcars did not provide segregated facilities for ladies. There are technological, economic, and social reasons why this might have been so. See Middleton, William D., The Time of the Trolley (Milwaukee: Kalmbach, 1967)Google Scholar; Hood, Clifton, 722 Miles: The Building of the Subways and How They Transformed New York (New York: Simon & Schuster, 1993), 117–19Google Scholar; Scharff, Virginia, Taking the Wheel: Women and the Coming of the Motor Age (New York: The Free Press, 1991), 6–7Google Scholar; Cohen, “Safety and Danger,” 119–20.

25. See Brown v. Memphis & C. R.R., 7 F. 51, 56 (C.C.W.D. Tenn. 1881).

26. See, e.g., Bass v. Chicago & Northwestern Ry., 36 Wis. 450 (1874) (ladies' car); Williams v. Toledo, Wabash & Western, 77 111. 354 (1875) (ladies' waiting room); Hall v. Decuir, 95 U.S. 485 (1877) (concurrence, dicta) (ladies' cabin).

27. Bass v. Chicago & Northwestern Ry., 36 Wis. 450, 460 (1874).

28. Litwack, North of Slavery, 97; Woodward, Strange Career, 17; Berlin, Ira, Slaves Without Masters: The Free Negro in the Antebellum South (New York: The New Press, 1974), 322–26Google Scholar; Wade, Richard C., Slavery in the Cities: The South 1820–1860 (New York: Oxford University Press, 1964), 267Google Scholar; Fischer, Roger A., “A Pioneer Protest: The New Orleans Street-Car Controversy of 1867,” Journal of Negro History 53 (1968): 219–21.Google Scholar

29. Testimony of Cap't. V. B. Baranco (Mississippi steamboat captain and owner, witness for defendant), Feb. 10, 1873, Transcript of Record, pp. 33, 40, Testimony of James E. Moore (steward; witness for plaintiff), March 31, 1873, Transcript of Record, p. 64, Testimony of P. G. Deslonde (witness for plaintiff), March 24, 1873, Transcript of Record, p. 67, Microfilm Reel 147, U.S. Supreme Court Records & Briefs, University of Chicago Law School (Chicago, Ill.), Record in Hall v. Decuir, 95 U.S. 485 (1877). Even these accommodations were not entirely equal though. While steamboats might set aside one or two staterooms for “some special people” they served these people their meals in their rooms and locked the interior door of the room to ensure that the inhabitants did not attempt to Join whites at the table for dining.

30. For a broad view of the social and legal stakes set up by emancipation see Litwack, Leon F., Been in the Storm So Long: The Aftermath of Slavery (New York: Vintage Books, 1979).Google Scholar

31. See, e.g., Woodward, Strange Career, 25; Litwack, Been in the Storm So Long, 262.

32. Jencks v. Coleman, 13 F. Cas. 442 (C.C.D.R.I. 1835) (No. 7,258); Commonwealth v. Power, 48 Mass. (7 Met.) 596 (1844); Elliott, Byron K. and Elliott, William F., A Treatise on the Law of Railroads, vol. 1 (Indianapolis: Bowen-Merrill, 1897), 301–3.Google Scholar

33. Rabinowitz, Race Relations, 183–97. For studies of individual southern states see Barr, Alwyn, Black Texans: A History of Negroes in Texas 1528–1971 (Austin: Jenkins, 1973), 42, 82, 140Google Scholar; Cartwright, Joseph H., The Triumph of Jim Crow: Tennessee Race Relations in the 1880s (Knoxville: University of Tennessee Press, 1976), 102–7, 165–71, 184–91Google Scholar; Logan, The Negro in North Carolina, 177–80; Tindall, South Carolina Negroes, 299–302; Williamson, After Slavery, 281–85, 287, 298; Wharton, The Negro in Mississippi; Wynes, Race Relations, 68–77.

34. Lofgren, Plessy, 17.

35. It is essential to see this reconstruction of white womanhood as a component of the construction of race in the postemancipation years. Cash, W. J., The Mind of the South (New York: Knopf, 1941), 117–19Google Scholar, and passim. More recent scholarship has refined the picture Cash drew of white women in the South. See Hodes, Martha, “Sex Across the Color Line: White Women and Black Men in the Nineteenth-Century American South” (forthcoming, Yale University Press, 1995), 70–79, 86–101Google Scholar; Hodes, , “The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War,” Journal of the History of Sexuality 3 (1993): 403Google Scholar; Genovese, Elizabeth Fox, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988)Google Scholar; Scott, Ann Firor, The Southern Lady: From Pedestal to Politics, 1830–1930 (Chicago: University of Chicago Press, 1970).Google Scholar Blacks were all too aware of the importance of gender to white supremacy. As one black woman would note in 1920, “our whole big problem lies with the southern white woman.” Quoted in Glenda Gilmore, “‘We Can Go Where You Cannot Airford To Go’: Intersections of Gender and Race in New South Political Praxis,” Ware, Susan, ed., New Viewpoints in Women's History: Working Papers from the Schlesinger Library Fiftieth Anniversary Conference (Cambridge, Mass.: The Arthur and Elizabeth Schlesinger Library on the History of Women in America, 1994).Google Scholar Gilmore's article provides a rich introduction to how black women used their female gender successfully to demand resources from the state during the progressive era which black men could not have made because of their gender. As she explains, black women could enter public space in ways black men could not for two reasons. First, their presence “could not be misconstrued as a bid for sexual access to white women.” And, second, similar to white women, they could claim to be protecting and strengthening home and hearth.

36. Mississippi forbade “any freedman, negro, or mulatto to ride in any first-class passenger car, set apart, or used by and for white persons.” Florida excluded people of color from cars provided for whites and excluded whites from cars provided for people of color. It did not require carriers to provide cars for people of color, nor did it require segregation in smoking cars. Texas was the only state whose provisional legislature required railroad companies to attach a car for freedmen. Woodward, Strange Career, 23–24.

37. In South Carolina, the Anti-Discrimination Law of 1868 formally made racial discrimination on carriers illegal, but the major railway lines effectively achieved segregation by providing first- and second-class cars. Williamson, After Slavery, 283–84. See also Testimony of William H. Heard, Before the Interstate Commerce Commission, Dec. 15, 1887, Transcript of Testimony, pp. 5, 11–12, ICC Formal Docket 46, National Archives (Suitland, Md.), RG 134, Record in Heard v. Georgia R.R., 1 I.C.C. 719, 722 (1887).

38. See, e.g., Testimony of J. H. Mossoss (Mississippi steamboat clerk, witness for defendant), Feb. 4, 1873, Transcript of Record, pp. 8–9, Testimony of Cap't. John W. Cannot (Mississippi steamboat captain, master, and owner, witness for defendant), Feb. 4, 1873, Transcript of Record, pp. 16–17, Record in Hall v. Decuir.

39. Rabinowitz, Race Relations, 183–84.

40. Testimony of J. Alexander Chiles (plaintiff), May 22, 1906, Transcript of Record, pp. 19–20, Microfilm Reel 834, U.S. Supreme Court Records & Briefs, University of Chicago Law School (Chicago, I11.), Record in Chiles v. Chesapeake & Ohio Ry., 218 U.S. 71(1910). Repeatedly in the lawsuits brought by women of color to challenge their exclusion from the ladies' car on trains, the railroad's employees admitted that women of color frequently rode in the ladies' car. See, e.g., Testimony of Charles H. Dorr (conductor St. Louis & Iron Mountain Ry), Transcript of Record, p. 38, Record & Briefs in Chilton Logwood v. Memphis & Charleston R.R., 23 F. 318, 319 (C.C.W.D. Tenn. 1885).

41. Testimony of Cap't. V. B. Baranco (Mississippi steamboat captain and owner, witness for defendant), 10 Feb. 1873, Transcript of Record, pp. 35–36, Record in Hall v. Decuir.

42. Testimony of Elizabeth Francis (stewardess, witness for defendant), 30 Jan. 1885, Transcript of Testimony, p. 17, Admiralty Case No. 90, RG 21, National Archives, Mid-Atlantic Region (Philadelphia, Pa.), Record in The Sue, 22 F. 843 (D. Md. 1885); Testimony of Dick Moody (porter, witness for defendant), Transcript of Record, p. 37, Tennessee State Library and Archives (Nashville, Tenn.), Record in Ohio & Southwestern R.R. v. Wells, 85 Tenn. 613 (1887). Ida B. Wells brought two suits against the railroad. The first suit was for her ejection on September 15, 1883; the second suit was for her ejection on May 4, 1884. In both cases the trial court reached a verdict for Wells. Because there are two separate trial court records, I will refer to them by the date of the incident.

43. Gender operated, ironically, to leave a more complete historical record of the women who brought suit than of the men. At least three factors turned the traditional bias against women in the historical record on its head: first, the extent to which men's and women's travel replicated their gendered roles in society; second, the stereotypically gendered terms in which women and men brought suit; and third, law and the gendered structure of travel. I discuss these factors in greater length in Welke, Barbara Y., “Gendered Journeys: A History of Injury, Public Transport, and American Law, 1865–1920” (Ph.D. diss., University of Chicago, 1995), 679–82.Google Scholar

44. See, e.g., Hall v. Decuir, 95 U.S. 485 (1877); The Sue, 22 F. 843 (D. Md. 1885); Green v. City of Bridgeton, 10 F. Cas. 1090 (S.D. Ga. 1879) (No. 5,754).

45. See, e.g., Murphy v. Western & Atlantic R.R., 23 F. 637 (C.C.E.D. Tenn. 1885); McGuinn v. Forbes, 37 F. 639 (D. Md. 1889). Statutory Jim Crow formally placed women and men of color on the same legal plane. Not coincidentally, men of color through the NAACP and black churches increasingly became the leaders in the fight against racial inequality. Nonetheless, women of color were the foot soldiers in the battle against inequality and segregation. Consider the example of Rosa Parks and of the four plaintiffs, all females of color, in the Montgomery bus segregation suit. Black Women Oral History Project, Interview with Rosa Parks, Aug. 22 and 23, 1978 (Schles-inger Library, Radcliffe College); Browder v. Gayle, 142 F. Supp. 707, affd, Gayle v. Browder, 352 U.S. 903 (1956) (per curiam). For a discussion of the broader context of Parks' actions and the Montgomery bus suit and boycott, see Branch, Taylor, Parting the Waters: America in the King Years, 1954–63 (New York: Simon & Schuster, 1988)Google Scholar, esp. chaps. 4 and 5. Black women's activism extended to every aspect of life. See Gilmore, “‘We Can Go Where You Cannot Afford To Go,’” 158–79.

46. Testimony of Lola Houck (plaintiff), Testimony of F. Farnsworth (conductor, witness for defendant), Testimony of B. B. Creary (passenger, witness for defendant), Transcript of Testimony, pp. 4–11, 16, 42, 54, Record in Houck v. Southern Pacific Ry., 38 F. 226 (C.C.W.D. Tex. 1888).

47. See, e.g., Chicago & Northwestern Ry. v. Williams, 55 I11. 185 (1870); Bill of Exceptions, Transcript of Record, pp. 7–8, Microfilm Reel 111, U.S. Supreme Court Records & Briefs, University of Chicago Law School (Chicago, I11.), Record in Railroad Co. v. Brown, 84 U.S. 445, 447 (1873); Congressional Globe, 40th Cong., 2nd Sess. (Feb. 10, 1868), 1121; Testimony of Mary Jane Chilton, Dec. 10, 1872, Transcript of Record, p. 21, Record in Chilton v. St. Louis & Iron Mountain Ry.

48. See Higginbotham, Evelyn Brooks, “African-American Women's History and the Metalanguage of Race,” Signs 17 (1992): 251, 262–66.CrossRefGoogle Scholar

49. Testimony of William H. Fleetwood (captain steamer City of Bridgeton, witness for defendant), Transcript of Testimony, pp. 16, 17–18, Record in Green v. City of Bridgeton.

50. Summary of Testimony, Transcript of Record, pp. 7, 8, 9, U.S. Supreme Court Record & Briefs, Microfilm Reel 211, University of Chicago Law School (Chicago, Ill.), Record in The Civil Rights Cases, 109 U.S. 3 (1883) (Robinson v. Memphis & Charleston R.R.).

51. Brown v. Memphis & C. R.R., 4 F. 37, 38 (C.C.W.D. Tenn. 1880).

52. See Darlene Clark Hine's thoughtful essay on the destructive results of assumptions that black women were naturally immoral. Hine, , “Rape and the Inner Lives of Black Women in the Middle West: Preliminary Thoughts on the Culture of Dissemblance,” Signs 14 (1989): 195.CrossRefGoogle Scholar

53. Testimony of Mary Jane Chilton (plaintiff), December 10, 1872, Transcript of Record, pp. 27–28, Record in Chilton v. St. Louis & Iron Mountain Ry.; Testimony of Lola Houck (plaintiff), Testimony of F. Farnsworth (conductor, witness for defendant), Testimony of B. B. Creary (passenger, witness for defendant), Transcript of Testimony, pp. 4–11, 16, 42, 54, RG 21, National Archives, Southwest Region (Fort Worth, Tex.), Record in Houck v. Southern Pacific Ry., 38 F. 226 (C.C.W.D. Tex. 1888).

54. Jones, Labor of Love, 60, 149, 150. See also Note, , “Rape, Racism and the Law,” Harvard Women's Law Journal 6 (1983): 103, 117–23Google Scholar; Higginbotham, “The Metalanguage of Race,” 262–66; Crenshaw, “Demarginalizing the Intersection of Race and Sex,” 158–59. As Crenshaw notes, “When Black women were raped by white males, they were being raped not as women generally, but as Black women specifically: Their femaleness made them sexually vulnerable to racist domination, while their Blackness effectively denied them any protection. This white male power was reinforced by a Judicial system in which the successful conviction of a white man for raping a Black woman was virtually unthinkable.”

55. Bill of Exceptions, Transcript of Record, p. 8, Record in Railroad Co. v. Brown; Testimony of William Murray (conductor, witness for defendant), Transcript of Record, pp. 27–33, Record in Ohio & Southwestern R.R. v. Wells (Sept. 15, 1883, incident); Declaration, May 19, 1887, Transcript of Record, p. 9, Florida State Archives (Tallahassee, Fl.), Record in Williams v. Jacksonville, Tampa & Key West Ry, 26 Fl. 533 (1890).

56. See, e.g., Brown v. Memphis & C. R.R., 4 F. 37, 38 (C.C.W.D. Tenn. 1880); Brown v. Memphis & C. R.R., 7 F. 51, 67 (C.C.W.D. Tenn. 1881).

57. See, e.g., Term. Act 1905, ch. 150, sec. 1, requiring separation of white and colored passengers on streetcars, but providing that statute did not applying to nurses attending children or helpless persons of the other race. The Tennessee Supreme Court upheld the statute in Morrison v. State, 116 Tenn. 534 (1905).

58. Litwack, Been in the Storm So Long, 265.

59. Hodes, “The Sexualization of Reconstruction Politics” 404.

60. Murphy v. Western & Atlantic R.R., 23 F. 637, at 638–39.

61. For example both William Howard Day and John Green were travelling with their wives. “William Howard Day,” in Blackett, R. J. M., Beating Against the Barriers: Biographical Essays in Nineteenth-Century Afro-American History (Baton Rouge: Louisiana State University Press, 1986), 312Google Scholar; Central R.R. of New Jersey v. Green, 86 Pa. 421 (1878). There were men though like Robert McGuinn who were traveling alone. McGuinn v. Forbes, 37 F. 639 (D. Md. 1889).

62. Berlin, Slaves Without Masters, 136, 176, 397; Jones, Labor of Love, 61–62, 80; Foner, Reconstruction, 366.

63. Rabinowitz, Race Relations, 61–67; Jones, Labor of Love, 56, 111, 125.

64. In the larger work of which this is a part, I include biographical data on all of the men and women of color. The detail is important both to document the characteristics of those who challenged racial segregation, but also to reclaim their lives for history. It is particularly important to recover the identities of the women who brought suit because it contributes to hearing the voices of women of color in a context where those voices have long gone unheard. Given the space confines of the article format, I give here only a sense of their elite status. While each of the plaintiffs were individuals, they were, nonetheless, part of a class, perceived themselves as such and were so perceived before the law. See Welke, “Gendered Journeys,” 483–545.

65. For example, Mary Jane Chilton, the woman whose story begins this article was a slave in Tennessee before the War. After the Civil War, she moved to St. Louis, Missouri where she was a washerwoman. Testimony of Mary Jane Chilton (plaintiff), Transcript of Record, pp. 24–25, Record in Chilton v. St. Louis & Iron Mountain Ry.

66. McGuinn v. Forbes, 37 F. 639 (D. Md. 1889); Heard v. Georgia R.R., 1 I.C.C. 719, 720 (1887).

67. In the actual petition, in contrast to the Commission's opinion, they are listed by name as Wesley J. Gaines, H. M. Turner, Evans Tyree, C. S. Smith, and E. H. Lampton. Petition, Feb. 25, 1908, Docket No. 1468, RG 134, National Archives (Suitland, Md.), Record in Gaines v. Seaboard Airline Ry., 16 I.C.C. 471 (1909).

68. Testimony of J. Alexander Chiles (plaintiff), May 22, 1906, Transcript of Record, p. 19, Record in Chiles v. Chesapeake & Ohio Ry.; Council v. Western & Atlantic R.R., 1 I.C.C. 638, 639 (1887); Foner, Reconstruction, 360.

69. Testimony of Emma Coger (plaintiff), Transcript of Record, p. 51, Coger v. Northwestern Union Packet; Testimony of Ida B. Wells (plaintiff), Transcript of Record, p. 19, Record in Ohio & Southwestern R.R. v. Wells (Sept. 15, 1883, incident); Sterling, We Are Your Sisters, 479; Bowie v. Birmingham Ry. & Electric Co., 125 Ala. 397 (1899).

70. Testimony of Robert N. Lander (plaintiff), Transcript of Record, p. 13, Kentucky State Archives (Frankfort, Ky.), Record in Ohio Valley Ry's. Rec'r v. Lander, 104 Ky. 431 (1898); U.S. Manuscript Census of 1880, Alabama, Reel 18, p. 280 (E. H. & Laura Logwood); U.S. Manuscript Census of 1880, Kentucky, Reel 412, p. 263 (William & S. J. Gray); Gray v. Cincinnati S. R.R., 11 F. 683 (C.C.S.D. Ohio 1882).

71. U.S. Manuscript Census of 1870, Louisiana, Reel 527, p. 393 (Decuir, Widow Ant.); Riffel, Judy, ed., A History of Pointe Coupee Parish and Its Families (Baton Rouge: Le Comite Des Archeves de la Louisiane, 1983), 193Google Scholar; Reasons for Judgment, June 14, 1873, Transcript of Record, p. 74; Testimony of P. G. Deslonde (witness for plaintiff), March 31, 1873, Transcript of Testimony, p. 69, Record in Hall v. Decuir.

72. See Higginbotham, “Beyond the Sound of Silence,” 58; Jones, Labor of Love, 143.

73. Berlin, Slaves Without Masters, 271–79; Horton, James O., “Freedom's Yoke: Gender Conventions among Antebellum Free Blacks,” Feminist Studies 12 (1986): 56.CrossRefGoogle Scholar

74. Higginbotham, “The Metalanguage of Race,” 271; idem, “Beyond the Sound of Silence,” 58–59. See also chapter 7 of idem, Righteous Discontent: The Women's Movement in the Black Baptist Church, 1880–1920 (Cambridge: Harvard University Press, 1992), in which the author describes the politics of respectability as both subversive and conservative. Black women's groups in the twentieth century divided over whether to pursue race advancement through the rise of black women or to concentrate on race advancement bound by traditional notions of man as the breadwinner and women as their helpmeets. See Deborah Gray White, “The Slippery Slope of Class in Black America: The National Council of Negro Women and The International Ladies' Auxiliary to the Brotherhood of Sleeping Car Porters, A Case Study,” in Ware, New Viewpoints in Women's History, 180, 189–90.

75. Litwack, Been in the Storm So Long, 244. Jacqueline Jones notes that white employers in the postbellum South disdainfully treated freedwomen who “played the lady” by withdrawing from field labor. She explains, “To apply the term ladylike to a black woman was apparently the height of sarcasm; by socially prescribed definition, black women could never become “ladies,” though they might display pretensions in that direction.” Jones, Labor of Love, 59.

76. Testimony of Hattie Green (plaintiff), Nov. 29, 1878, Transcript of Testimony, pp. 7, 10–11, 14–15, Record in Green v. City of Bridgeton. Hattie Green was a slave before Emancipation and testified that she did not go to school and was not educated as a slave. Nonetheless, her awkward signature does appear at the end of her testimony and when she brought suit in 1878, at the age of twenty-three, she was married, a dressmaker and employed others. Testimony of Hattie Green (libellant), Dec. 2, 1878, Transcript of Testimony, pp. 19–20, Record in Green v. City of Bridgeton. Historian Jacqueline Jones describes sewing, along with school teaching, as genteel occupations for black women in the postbellum south. Jones, Labor of Love, 143.

77. Testimony of William H. Heard (plaintiff), Dec. 15, 1887, Transcript of Testimony, pp. 5, 11, Record in Heard v. Georgia R.R.

78. Testimony of Emma Coger (plaintiff), Transcript of Record, pp. 20, 22, Record in Coger v. Northwestern Union Packet.

79. Testimony of Ida B. Wells (plaintiff), Transcript of Record, pp. 21–22, Record in Ohio & Southwestern R.R. v. Wells (Sept. 15, 1883, incident).

80. Many women and men of color never challenged the direction to ride in the smoker or a Jim Crow car. For example, a woman of color named Willie Torian who was riding in the Jim Crow car on the day that Robert Lander seated his wife Fannie in the ladies' car, testified that she had no idea what the other cars on the train were like. “I never was in them others in my life. When I got on that train they always told me to go in that car and I always went in there.” Testimony of Willie Torian (woman of color, passenger in Jim Crow car, witness for plaintiff), Transcript of Record, p. 18, Record in Ohio Valley Ry's. Rec'r v. Lander.

81. See, e.g., Testimony of Lola Houck (plaintiff), Transcript of Testimony, pp. 1–2, 7–8, Record in Houck v. Southern Pacific Ry., 38 F. 226 (C.C.W.D. Tex. 1888); Testimony of J. H. Mossoss (clerk, steamer Governor Allen, witness for defendant), Testimony of Capt. John W. Cannot (witness for defendant), Testimony of D. E. Grove (witness for defendant), Feb. 4, 1873, Transcript of Record, pp. 10–12, 13, 14, 20, 27, Record in Hall v. Decuir; Testimony of Martha Stewart (libellant), Testimony of Winnie Stewart (libellant), Jan. 29, 1885, Transcript of Testimony, pp. 5, 7, 15, Record in The Sue, 22 F. 843 (D. Md. 1885). Testimony of Ida B. Wells (plaintiff), Transcript of Record, pp. 20, 23, Record in Ohio & Southwestern R.R. v. Wells (Sept. 15, 1883 incident).

82. See, e.g., Petition, June 29, 1872, Transcript of Record, pp. 1–2, Record in Hall v. Decuir; Testimony of Hattie Green (libellant), Nov. 29, 1878, Transcript of Testimony, pp. 7, 10–11, 14–15, Record in Green v. City of Bridgeton; Logwood v. Memphis & Charleston R.R., 23 F. 318 (C.C.W.D. Tenn. 1885).

83. Veblen, Thorstein, “Economic Theory of Women's Dress,” Popular Science Monthly 46 (Dec. 1894): 198, 205Google Scholar; Hall, Lee, Common Threads: A Parade of American Clothing (Boston: Little, Brown, 1992)Google Scholar; Jones, Labor of Love, Litwack, Been in the Storm So Long, 244–46.

84. Complaint, Aug. 31, 1882, RG 21, National Archives, Great Lakes Region (Chicago, 111.), Record in Gray v. Cincinnati S. R.R., 11 F. 683 (C.C.S.D. Ohio 1882).

85. Testimony of Robert N. Lander (plaintiff), Transcript of Record, pp. 15, 16, Record in Ohio Valley Ry's. Rec'r v. Lander.

86. Testimony of R G. Deslonde (witness for plaintiff), 31 March 1873, Transcript of Record, pp. 65–67, Record in Hall v. Decuir.

87. Testimony of Winfield F. Cozart, 15 March 1909, Stenographer's Minutes Before the Interstate Commerce Commission, pp. 7–8, Record in Cozart v. Southern Ry.

88. Testimony of G. H. Flowers (witness for plaintiff), Testimony of G. W. Maseley (witness for plaintiff), Testimony of Silas Kearney (witness for plaintiff), Transcript of Record, pp. 23–24, 25, Record in Ohio & Southwestern R.R. v. Wells (Sept. 15, 1883, incident).

89. See, e.g., Testimony of Asa Needham, Jr. (agent of The Sue, witness for defendant), Testimony of W. C. Geoghagan (Captain, witness for defendant), Jan. 29, 1885, Transcript of Testimony, pp. 65–98, Record in The Sue.

90. Answer, Oct. 29, 1878, p. 9, Record in Green v. City of Bridgeton.

91. See Higginbotham, Righteous Discontent; Rouse, Jacqueline, Lugenia Burns Hope: Black Southern Reformer (Athens: University of Georgia Press, 1989)Google Scholar; Giddings, When and Where I Enter, 95–102.

92. Declaration, April 13, 1883, Record in Logwood v. Memphis & Charleston R.R.

93. Petition, Nov. 9, 1881, RG 21, National Archives, Southeast Region (East Point, Ga.), Record in Smoot v. Kentucky Central Ry., 13 F. 337 (C.C.D. Ky. 1882).

94. Council v. Western & Atlantic R.R., 1 I.C.C. 638 (1887); Heard v. Georgia R.R., 1 I.C.C. 719 (1888); Heard v. Georgia R.R., 2 I.C.C. 508 (1889).

95. Section 3 of the Act forbade common carriers from giving “undue or unreasonable preference or advantage to any particular person… in any respect whatsoever,” and from subjecting “any particular person … to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Interstate Commerce Act of 1887, 24 Stat. 379 (1887).

96. See Council v. Western & Atlantic R.R., 1 I.C.C. 638 (1887); Heard v. Georgia R.R., 1 I.C.C. 719 (1888). Barnes, Catherine A., Journey from Jim Crow: The Desegregation of Southern Transit (New York: Columbia University Press, 1983)Google Scholar, passim. Charles Lofgren briefly discusses the legislative history of the Interstate Commerce Act with respect to racial discrimination. Lofgren, Plessy, 141–2.

97. Petition, Feb. 25, 1908, Record in Gaines v. Seaboard Airline Ry.

98. Lofgren, Plessy, 28–29, 31, 33, 41.

99. McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151 (1914).

100. Testimony of J. Alexander Chiles, May 22, 1906, Transcript of Record, pp. 20–21, Record in Chiles v. Chesapeake & Ohio Ry.

101. Hodes, “The Sexualization of Reconstruction Politics,” 404.

102. See, e.g., Declaration, March 4, 1868, Transcript of Record, pp. 1–2, Record in Railroad Co. v. Brown; Declaration, April 13, 1883, Record in Logwood v. Memphis & Charleston R.R.; Petition, Feb. 28, 1887, Record in Houck v. Southern Pacific Ry.

103. See, e.g., MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987)Google Scholar; Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass.: Harvard University Press, 1982).Google Scholar

104. See, e.g., Chicago & Northwestern Ry. v. Williams, 55 111. 185 (1870); Brown v. Memphis & C. R.R., 7 F. 51 (C.C.W.D. Tenn. 1881); Gray v. Cincinnati S. R.R., 11 F. 683 (C.C.S.D. Ohio 1882).

105. Murphy v. Western & Atlantic R.R., 23 E 637 (C.C.E.D. Tenn. 1885); Central R.R. of New Jersey v. Green, 86 Pa. 427 (1878).

106. See, e.g., Cully v. Baltimore & Ohio R.R., 6 F. Cas. 946 (D. Md. 1876) (No. 3466); Smoot v. Kentucky Central Ry., 13 F. 337 (C.C.D. Ky. 1882); Butts v. Merchants & Miners Transportation, 230 U.S. 126 (1913).

107. Murphy v. Western & Atlantic R.R., 23 F. 637 (1885). There does not appear to have been an appeal.

108. Council v. Western & Atlantic R.R., 1 I.C.C. 638 (1887); Heard v. Georgia R.R., 1 I.C.C. 719 (1887).

109. Cozart v. Southern Ry., 16 I.C.C. 226 (1909); Gaines v. Seaboard Air Line Ry., 16 I.C.C. 471 (1909).

110. See, e.g., The West Chester and Philadelphia R.R. v. Miles, 55 Pa. 209 (1867); Hall v. Decuir, 95 U.S. 485 (1877), rev'g Decuir v. Benson, 27 La. Ann. 1 (1875); Chesapeake, Ohio & Southwestern R.R. v. Wells, 85 Tenn. 613 (1887).

111. See, e.g., Gray v. Cincinnati S. R.R., 11 F. 683 (C.C.S.D. Ohio 1882); The Sue, 22 F. 843 (D. Md. 1885); Houck v. Southern Pacific Ry., 38 F. 226 (C.C.W.D. Tex. 1888).

112. Chicago & Northwestern Ry. v. Williams, 55 111. 185 (1870); Coger v. Northwestern Union Packet, 37 Iowa 145 (1873).

113. Railroad Co. v. Brown, 84 U.S. 445 (1873); Central R.R. of New Jersey v. Green, 86 Pa. 421 (1878).

114. The commitment of appellate judges to the rule of law during the years of slavery is addressed in John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (1976); and Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975).

115. A number of the case records include evidence of the ratio of white to black passengers. See, e.g., Testimony of John S. Lawrence (agent & general manager, steamer City of Bridgeton, witness for defendant), Dec. 1, 1878, Transcript of Testimony, p. 2, Record in Green v. City of Bridgeton: Testimony of W. M. Cowhig (asst. to the gen'l superintendent of transportation, The Southern Railway), March 15, 1909, Before the Interstate Commerce Commission, Transcript of Hearing, pp. 15–16, Record in Cozart v. Southern Ry.

116. Woodward, Strange Career, 69.

117. Rabinowitz, Race Relations, 333–39.

118. Lofgren, Plessy, 25.

119. See ibid., 116–47; Riegel, “The Persistent Career of Jim Crow,” 17, 20.

120. Day v. Owen, 5 Mich. 527 (1859); The West Chester and Philadelphia R.R. v. Miles, 55 Pa. 209, 215 (1867).

121. For example, on every railroad journey before and after her trip on September 21, 1886, the railway's employees had allowed Lola Houck to ride in the ladies' car without objection. Testimony of Lola Houck (plaintiff), Transcript of Testimony, pp. 1–2, 6, Record in Houck v. Southern Pacific Ry.

122. See Rabinowitz, Race Relations, passim.

123. See Inhabitants of Worcester v. The Western R.R., 4 Met. 564, 566 (1842); Story, Joseph, Commentaries on the Law of Bailments (Boston: Little, Brown, 1870, 8th ed.), 581.Google Scholar

124. See text accompanying note 32.

125. See text accompanying notes 25–27. It is critical to bear in mind that the social norms relating to gender and embodied in ladies' and gentlemen's accommodations resulted in a physical structuring of travel that lent itself to segregation.

126. 55 Pa. 209, 211.

127. Brief & Argument for Plaintiff in Error (John G. Benson, defendant), December 1876, p. 10, Record in Hall v. Decuir. The Court in Decuir struck down an 1869 Louisiana statute barring racial discrimination on common carriers. The Court held that in regulating interstate as well as intrastate passengers the law violated the Commerce Clause of the U.S. Constitution.

128. Brief and Argument for Plaintiff in Error (John G. Benson, defendant), p. 33, Record in Hall v. Decuir.

129. See, e.g., Council v. Western & Atlantic R.R., 1 I.C.C. 638, 641 (1887); Chiles v. Chesapeake & Ohio Ry., 125 Ky. 299, 305 (1907).

130. The West Chester and Philadelphia R.R. v. Miles, 55 Pa. 209, 210 (1867).

131. Appellee's Brief (Anna Williams, plaintiff), pp. 1–4, Record in Chicago & Northwestern Ry. v. Williams.

132. While many of the cases, including Williams, sound like breach of contract cases, the courts never treated them as such. Rather, courts uniformly applied the common law of common carriers and state and, when the plaintiff raised them, federal constitutional provisions. Many of the cases, moreover, included a claim for physical assault. These claims depended upon the court's finding as to whether the carrier's servants removed or forcibly excluded the passenger pursuant to a regulation. Under the common law of carriers, a carrier was allowed to use reasonable force to remove passengers violating reasonable regulations. Finally, the damages awarded included not only actual damages (which in many cases would have been nominal) but also damages for any indignity, vexation, or disgrace which the individual had suffered, which was consistent with the distinctive legal status of these claims. See, e.g., Chicago & Northwestern Ry. v. Williams, 55 111. 185, 188, 190 (1870).

133. Chicago & Northwestern R.R. v. Williams, 55 111. 185, 189 (1870).

134. The references to first-class fare can be confusing. On many trains, as on the Chicago & Northwestern R.R. train on which Anna Williams had sought passage, there was a single fare which applied to all the coaches. In these cases, the railroads uniformly referred to the single fare as first-class fare.

135. U.S. v. Dodge, 25 F. Cas. 882 (D.C.W.D. Tex. 1877) (No. 14,976) (charge to jury). Dodge was a criminal prosecution against the president, vice-president, superintendent, and conductor on the Houston & Texas Central Railway under the Civil Rights Act of 1875, but the Court stressed in its jury charge that the right to equal carriage was protected by the common law.

136. Gray v. Cincinnati S. R.R., 11 F. 686–87.

137. Logwood v. Memphis & Charleston R.R., 23 E 319. Despite this favorable instruction, other aspects of the case explain why the jury reached a verdict for the defendant railroad. The conductor had testified that although “colored people” were generally required to ride in the front car, “proper persons” who objected to sitting there were allowed to take a seat in the ladies' car. He noted as well that the Logwoods had always been permitted to ride in the ladies' car and insisted that he had told Mrs. Logwood to take a seat in the forward car and when he finished he would find her a seat in the ladies' car. Judge Hammond told the jury that “[a]ll travelers have to submit to some discomforts and inconveniences, and should not be too exacting, but are entitled to polite treatment, free from any kind of indignity.” He then instructed the jury that if they believed the conductor and “there was no unreasonable delay” the Logwoods could not recover.

138. The fact that automobile makers at the turn of the twentieth century designed and marketed automobiles relying on these same assumptions suggests that the assumptions themselves retained their social currency. As historian Virginia Scharff describes, “manufacturers tended to associate the qualities of comfort, convenience, and aesthetic appeal with women, while linking power, range, economy and thrift with men. Women were presumed to be too weak, timid, and fastidious to want to drive noisy, smelly gasoline-powered cars.” As she explains these assumptions led manufacturers to devise “a kind of'separate spheres' ideology about automobiles: gas cars were for men, electric cars were for women.” Scharff, Taking the Wheel, 36–37.

139. Gray v. Cincinnati S. R.R., 11 E 683, 686.

140. It is important to recall that when Murphy entered the ladies' car several white men were already riding there unmolested by the conductor.

141. Murphy v. Western & Atlantic R.R., 23 F. 637, 640 (C.C.E.D. Tenn. 1885).

142. Council v. Western & Atlantic R.R., 1 I.C.C. 638, 641 (1887).

143. See, e.g., Letter from Winfield Cozart to E. A. Moseley, Informal Complaint, July 6, 1908, Record in Cozart v. Southern Ry.; Petition, February 25, 1908, Record in Williams v. Jacksonville, Tampa & Key West Ry.

144. For example, in her testimony in The Sue, Martha Stewart noted that she and her sisters had not even bothered to seek a stateroom, because steamers absolutely refused to sell them to people of color. The general manager for the steamboat line admitted this point. Nevertheless, the Stewart sisters had not challenged this practice and Judge Murphy did not touch on it in his opinion in favor of the Stewart sisters. Testimony of Martha Stewart (libellant), Jan. 29, 1885, Transcript of Testimony, pp. 8, Testimony of Reuben Foster (general manager of the Chesapeake & Richmond Steamboat Co., witness for defendant), Jan. 30, 1885, Transcript of Testimony, p. 45, Record in The Sue, 22 F. 843 (D. Md. 1885). Similarly, during the testimony in William H. Heard's case before the Interstate Commerce Commission in 1887, against the Georgia Railroad, one conductor explained that he would find any way he could around selling a sleeping car ticket to a person of color. The general counsel for the railroad warned that if the Commission required the railroad to give people of color access to sleeping accommodations when that issue came before the Commission, the railroad would stop providing sleeping cars to all passengers rather grant access to people of color or provide separate cars for them. Deposition of Mr. Harris (conductor, witness for defendant), Argument of Joseph B. Cumming (general counsel, the Georgia Railroad), Dec. 15, 1887, Transcript of Hearing, pp. 10–11, 34–35, Record in Heard v. Georgia R.R.

145. In the early cases this issue was presented and addressed indirectly. See, e.g., United States v. Dodge, 25 F. Cas. 882 (D.C.W.D. Tex. 1877) (No. 14,976). See also Gaines v. Seaboard Air Line Ry., 16 I.C.C. 471 (1909), interpreting the Interstate Commerce Act to require carriers who offer Pullman sleeping accommodations and dining accommodations to white passengers to provide the same to passengers of color.

146. McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151 (1914). Despite the Court's favorable position on this point, it nevertheless refused to grant the injunction the plaintiffs sought against enforcement of the statute because they had not met the legal standard for injunctive relief.

147. McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151, 161–62 (1914).

148. Brown v. Memphis & C. R.R., 7 F. 58. Significantly, the defendant railroad in Brown had also initially claimed to eject Brown on the basis of a regulation barring colored persons from riding in the ladies' car. The railroad later withdrew the argument because, in fact, it did not have a formal regulation.

149. Brown v. Memphis & C. R.R., 5 F. 499, 500, 502 (C.C.W.D. Tenn. 1880).

150. Brief for Plaintiffs in Error (Richard A. & Sallie J. Robinson), p. 17, Robinson v. Memphis & Charleston R.R. The Civil Rights Act of 1875 provided that all persons “shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres, and other public places of amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” The Civil Rights Act of 1875, 18 (Part 3) Stat. 335, 336 (1875). The Court held the act unconstitutional insofar as it attempted to regulate intrastate accommodations. 109 U.S. 3 (1883).

151. The West Chester and Philadelphia R.R. v. Miles, 55 Pa. 211–12.

152. Bowie v. Birmingham Ry. & Electric Co., 125 Ala. 397, 405–10 (1899); Murphy v. Western & Atlantic R.R., 23 F. 637, 638–41 (C.C.E.D. Tenn. 1885). After passage of the Civil Rights Act of 1875, which forbade discrimination on the basis of race in public accommodations, an editorial in a North Carolina paper warned “if the principles of the Republicans succeed, the negro will be forced upon … [the white man's] wife, and his daughter, on the can, steamboats, in public inns, at hotel tables, and in theatres and other places of amusement.” Raleigh Daily Sentinel, Aug. 2, 1875, quoted in Rabinowitz, Race Relations, 186.

153. Appellant's [Defendant Chicago & Northwestern Railroad] Oral Argument, pp. 4–5, Record in Chicago & Northwestern Ry. v. Williams.

154. Testimony of Charles H. Dorr (conductor, witness for defendant), December 11, 1872, Transcript of Testimony, p. 37, Record in Chilton v. St. Louis & Iron Mountain Ry.

155. Testimony of Charles Oaks (brakeman, witness for defendant), Transcript of Testimony, p. 31, Record in Houck v. Southern Pacific Ry.

156. Statement and Brief of the Respondent, p. 22, Record in Chilton v. St. Louis & Iron Mountain Ry.

157. See, e.g., Testimony of F. Farnsworth (conductor, witness for defendant Southern Pacific Railway), Transcript of Testimony, p. 44, Record in Houck v. Southern Pacific Ry.

158. Southern Ry. v. Wood, 114 Ga. 159 (1901).

159. Amended Answer (St. Louis & Iron Mountain Ry.), November 1, 1871, Statement and Brief of the Respondent, p. 22, Chilton v. St. Louis & Iron Mountain Ry., 114 Mo. 94.

160. 38 S.C. 529, 532, 539, 546 (1892).

161. Tennessee was the first state in the wake of Reconstruction to adopt a law relating to race and accommodations on railroads. But the Tennessee statute (prior to its amendment in the early 1890s), was not a Jim Crow measure as we would later come to understand that term. Its specific purpose was to end the widespread railroad practice of forcing first-class passengers of color to ride in smoking cars and to guarantee them equal, though not racially integrated, first-class accommodations. See Lofgren, Plessy, 21–22.

162. It is too often forgotten that in the wake of Plessy, only carriers had the right to regulate the conditions of passage for interstate, as opposed to intrastate, passengers. By 1910, even the Supreme Court, it seemed, was willing to ignore exactly what ground—company regulation or state statute—was the basis for excluding a person of color from the first-class white car. See Chiles v. Chesapeake & Ohio Ry., 218 U.S. 71, 75, 77 (1910); Testimony of J. Alexander Chiles (plaintiff), Testimony of W. Ridgeway (conductor, witness for defendant), Transcript of Record, pp. 20, 32, Record in Chiles v. Chesapeake & Ohio Ry. From its first pronouncements on race after the Civil War, the United States Supreme Court played an important role in allowing Southern states to decide the terms on which blacks would enjoy access to accommodations in public transit. In 1876, in Hall v. Decuir, the United States Supreme Court struck down a Louisiana statute which forbade racial discrimination on common carriers. In The Civil Rights Cases, decided in 1883, the Court struck down most of The Civil Rights Act of 1875, including the restriction against racial discrimination on common carriers.

163. Petition, Sept. 13, 1870, Judgment, Dec. 11, 1872, Transcript of Record, pp. 1, 6–7, Letter from Everett N. Patteson (lawyer for plaintiffs) to Mo. S. Ct, Nov. 30, 1891, Record in Chilton v. St. Louis & Iron Mountain Ry.; Minute Book, Jan. 1870–Sept. 1876 (8156), Minute Book, April 1873–April 1876 (8157), Minute Book, Oct. 1876-Oct. 1879 (8062), Minute Book, 1879–1883 (8061), Minute Book, Mar. 1891–Mar. 1901 (8092), Missouri State Archives (Jefferson City, Mo.); Chilton v. St. Louis & Iron Mountain Ry., 114 Mo. 88 (1893).

164. See Welke, “Gendered Journeys.”

165. See, e.g., Higginbotham, “The Metalanguage of Race,” 251–74; Jones, Labor of Love, Sterling, We Are Your Sisters.

166. See Kerber, Linda K., “The Mystery of Historiography” in Ware, New Viewpoints in Women's History.Google Scholar