social separation of the races is, of course, brought about without statute law, but by custom, or even we may say customary law, which is always apt to be the better enforced; and under the civil rights decisions of the United States Supreme Court in 1883, such customary law has been rendered immune from Federal control.  Legislation now exists in all Southern States as to separate, though equal, accommodations in public conveyances; at one time such statutes were restricted to interstate commerce, but the present tendency of court decision appears to be to recognize even their interference with interstate commerce as part of the reasonable State police jurisdiction.  Such statutes apply generally to railroads, steamboats, and street cars, or other conveyances of transportation.  They are not so usual as to hotels, eating-houses, theatres, or other public places, probably because in such it is more easy to secure the desired segregation without legislation.  We may, therefore, conclude that legislation on this point will be universal in the South and in Oklahoma or other border States with Southern sympathies, and will not be declared unconstitutional by the courts.

[Footnote 1:  American Political Science Review, vol.  III, No. 2, 1909.]

The labor unions very generally exclude negroes, both in the South and North, and in many Southern States the whites refuse to work with negroes in mills.  Until and unless labor unions are chartered or incorporated under legislation forbidding such action, it is probable that their by-laws excluding negroes, though possibly unreasonable at the common law, could not be reached by the Fourteenth Amendment; and public sentiment in the States where such by-laws are common would probably prevent any permanent vindication of the right of the negro to join labor unions by State courts.  That is to say, countervailing legislation would promptly be adopted.

Coming to education, the same principle seems to be established, that if the facilities are equal the education may be separate for the different races, just as it may be for the different sexes; and it would even appear that when the appropriation is not adequate for giving higher or special education to both races, particularly when there are few negroes applying for it, high-schools or special schools may be established for whites alone.

Coming to the matter of sexual relation, a different principle applies.  Under their unquestioned power of defining crimes, their police power in criminal and sanitary matters, the States may forbid or make criminal miscegenation.  Cohabitation without marriage may, of course, be forbidden to all classes, and in the case of cohabitation between white and black the penalty may be made more severe, for it has been held that as both parties to the offence are punished equally, there is, under such statutes, no denial of the equal protection of the law. A fortiori, marriage