the 43rd Congress became Dem.-169, Rep.-109, other-14 in the 44th Congress. *2 Massachusetts, that bastion of Republicanism, was swept, was swept by the Democratic tidal wave; even Butler's own seat could not be saved from the holocaust.20 The depression, fraud, corruption, and sundry scandals were major Democratic assets," ,204 but the "party of the rebellion" also made the civil rights bill, and especially race-mixing in schools, pay handsome dividends in the election." 266 When the "lame-duck" Second Session of the Fifty-Third Congress met in the early part of 1875, Congressman Alexander White, an Alabama Republican lawyer, moved to amend the Senate bill by specifically permitting school segregation, while Congressman John Cessna, a Pennsylvania Republican lawyer, moved to retain the Senate bill intact, and Congressman Stephen W. Kellogg, a Connecticut Republican lawyer, moved to strike all reference to schools." Congressman John R. Lynch, a Mississippi Republican Negro photographer, then launched into a defense of the Senate school clause. He said: 206 "I regard this school clause as the most harmless provision in the bill. If it were true that the passage of this bill with the school clause in it would tolerate the existence of none but a system of mixed free schools, then I would question very seriously the propriety of retaining such a clause; but such is not the case. . . . it simply confers upon all citizens, . . . to send their children to any public free school that is supported in whole or in part by taxation, the exercise of the right to remain a matter of option as it now is nothing compulsory about it. That the passage of this bill can result in breaking up the public school system in any State is absurd. The men who make these reckless assertions are very well aware of the fact, or else they are guilty of unpardonable ignorance, that every right and privilege that is enumerated in this bill has already been conferred upon all citizens alike in at least one-half of the States of this Union by State legislation. In every Southern State where the republican party is in power a civil rights bill is in force that is more severe in its penalties than are the penalties in this bill. We find mixed-school clauses in some of their State constitutions. If, then, the passage of this bill, which does not confer upon the colored people of such States any rights that they do not possess already, will result in breaking up the public-school system in their respective States, why is it that State legislation has not broken them up? This proves very conclusively, I think, that there is nothing in the argument whatever. . . . My opinion is that the passage of this bill just as it passed the Senate will bring about mixed schools practically only in localities where one or the other of the two races is small in numbers, and that in localities where both races are large in numbers separate schools and separate institutions of learning will continue to exist, for a number of years at least." 207 Lynch then read an editorial from the Jackson Clarion, a Democratic newspaper, that the pending bill would have no effect on the Mississippi school system. He concluded that although Negroes did not want mixed schools, they did not want to be separated by law instead of individual choice, and declared that if the bill were passed, "there will be nothing more for the colored people to ask or expect in the way of civil rights." 20 262 U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957, 691 (1960). 203 Trefausse, Ben Butler 230 (1957). 204 27 Encyclopedia Britannica 720 (11th ed. 1911). 205 Congressional Record, 43rd Congress, Second Session 951, 952, 978, 982, 1001, App. 17, 20, 113 (1875) (hereinafter referred to as Cong. Rec. 43/2.) 206 Cong. Rec. 43/2, 938-9. 267 Cong. Rec. 43/2, 945. 288 Ibid. He said: "it is contrary to our system of government to discriminate by law between persons on account of their race, their color, their religion, or the place of their birth. It is just as wrong and just as contrary to republicanism to provide by law for the education of children who may be identified with a certain race in separate schools to themselves, as to provide by law for the education of children who may be identified with a certain religious denomination in separate schools to themselves. The duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned. "The colored people in asking the passage of this bill just as it passed the Senate do not thereby admit that their children can be better educated in white than in colored schools; not that white teachers because they are white are better qualified to teach than colored ones. But they recognize the fact that the distinctions when made and tolerated by law is an unjust and odious proscription; that you make their color a ground of objection. and consequently a crime. This is what we most earnestly protest against. Let us confer upon all citizens, then, the rights to which they are entitled under the Constitution; and then if they choose to have their children educated in separate schools, as they do in my own State, then both races will be satisfied, because they will know that the separation is their own voluntary act and not legislative compulsion." 270 209 Congressman William E. Finck, an Ohio Democratic lawyer who had voted against the Fourteenth Amendment in the 39th Congress, stated that it did not give the federal government power to regulate admission to schools. He quoted copiously from the McCall case to support this proposition." Congressman John B. Storm, a Pennsylvania Democratic lawyer, also urged that segregated schools conferred equal rights." Cain, a South Carolina Negro Republican, added that he thought Negroes "shall not lose anything if it (the school clause) is struck out." He said that they "could afford for the sake of peace in the republican ranks, if for nothing else-not as a matter of principle-to except the school clause. A Virginia Democrat praised the state's school system and warned that the bill would deliver a fatal blow to it; a view which a Republica colleague of his endorsed.273 272 The next day, February 4, 1975, was the last day of House debate, Congressman James B. Sener, a Virginia Republican lawyer who had been defeated for re-election, told the House that not only would the school clause demolish the southern school systems, but also it would drag down the Republican Party in the South.274 Congressman Ellis H. Roberts, a Republican newspaper editor from New York, opposed the complete elimination of the school clause because he wanted to give Negroes the right to go to school, but favored the segregation provision so that the South would not be antagonized. A Missouri Republican who had also been defeated extolled the segregated schools of St. Louis and opposed the bill." 276 275 Cain arose, despairing of the school clause, which he called the most important part of the bill. He said: "As a republican, and for the sake of the welfare of the republican party, I am willing, if we cannot rally our friends to those higher conceptions entertained by Mr. Sumner-if we cannot bring up the republican party to that high standard with regard to the rights of man as seen by those who laid the foundation of this Government-then I am willing to agree to a compromise. If the school clause is objectionable to our friends, and they think they cannot sustain it, then let it be struck out entirely. We want no invidious discrimination in the laws of this country. Either give us that provision in its entirety or else leave it out altogether, and thus settle the question." 19277 Under questioning, Cain averred that the southern Negroes did not want mixed schools, and said that the only mixed institutions in South Carolina was the state college. He further declared that if Congress would force people to accept mixed schools, they would obey without trouble. But he once again concluded that he would prefer the school clause stricken rather than have a segregation provision therein.278 Congressman Simeon B. Chittenden, a New York Republican, then explained why he was going to vote against the bill: "I do not want to go down with my party quite so deep as the bill would sink it if it becomes the law, and that is the reason why I speak. *** I am a practical man, and believe it impolitic unnecessarily to vex white men, North and South, by passing this bill now." 19 279 White of Alabama then made a major speech in favor of segregation amendment. He attacked fellow Republican extremists and counseled "moderation on this subject." He said that the evil "to be remedied by this bill is that the people of color in many of the States are denied the privilege of admission to public schools." He added that neither Negroes or whites in the South desired race-mixing, and averted to the action of the House Judiciary Committee in reporting a school segregation amendment, commenting as follows: "This is a question of expediency, not a matter of right. Your committee concede this by providing in their bill for separate schools. Had it been a matter 200 Cong. Rec. 43/2, 948. 270 Cong. Rec. 43/2, 951. 271 Cong. Rec. 43/2, 957. 272 Cong. Rec. 43/2, App. 119-120 (Cong. Eppa Hunten). 273 Cong. Rec. 43/2, App. 158-9 (Cong. J. Ambler Smith). 274 Cong. Rec. 43/2, 978-9. He said: "in this effort they are crippling the great republican party in eight of the (southern) states . . . which for Grant 275 Cong. Rec. 43/2, 980-1. 278 Cong. Rec. 43/2, 981 (Con. Edwin O. Stanard). 277 Ibid. 278 Cong. Rec. 43/2, 981-2. 20 Cong. Rec. 43/2, 982. cast their electoral vote of right or of principle, they could not have provided in their bill for separate schools; but as it was neither, but only a question of expediency, they could do so, and acted wisely and will in so doing.” "280 White then made a lengthy political analysis, in which he pointed out that the civil rights bill was changing so many white votes that it would cost the Republican Party every southern state. Speaking of the Republican mountain areas, he warned: 281 "No earthly power could have loosed your hold upon them but the republican party itself. But when you proposed to put the Senate bill upon them; when. as they were told, you proposed to invade the sanctity of their homes and to force social equality upon them; when you proposed to force their children into schools with colored children or deprive them of the benefits of the common schools, the blood of the Anglo-Saxon rebelled, and they turned away from you. You may say that this is a prejudice but they say it is not, that it is a sentiment; but whether the one or the other it is a fact, and a stubborn fact-one that will not yield to force. If the civil-rights bill which is on your table becomes the law, you will drive these men, whose fidelity to republican principles has been proven by sacrifices and trials to which no northern republican has been subjected, permanently away from you, and you obliterate in a brief time the republican party South." 252 Kellogg then explained that he was moving to strike out the school clause because schools should be under local control, because the school clause might injure the school systems, and because national legislation should not provide for segregation by law. Congressman James Monroe, an Ohio Republican, added that although he preferred the Senate bill, he would rather have the school clause stricken out than to take the House Judiciary Committee's provision providing for segregated schools. He explained that Negroes and radicals were opposed to any statutory racial distinctions, and would prefer to take their chances for obtaining an education for colored students under the Constitution without a statute, than to accept segregated education under federal law. And Congressman Barbour Lewis, a Tennessee Republican, warned about sentiment against school-mixing in the South." 284 283 He Congressman Julius C. Burrows, a Michigan Radical Republican, arose to warmly endorse the Senate bill. He pointed to the widespread illiteracy among Negroes as the reason why they needed schools more than anything else. further protested against the school segregation provision, as "entering upon that course of legislation which draws a line of demarcation between American citizens who by your laws and your Constitution stand in absolute equality. . . ." He added that the provision permitting states to establish school segregation "is to establish by Federal law separate schools in the majority of the States of this Union." To this objection came on several grounds. First, he said that it would create racial prejudice in small children where none had existed before. Secondly, he urged that a segregated school system would double the expense for schools. Finally, he said that the federal law would reopen the contest about school segregation in those states which had already eliminated it by local law. He named Connecticut, Illinois, Iowa, Massachusetts, Minnesota, and Michigan as states where school segregation had been abolished.296 Rapier, the Negro Republican colleague of White, also rejected any compromise and made an emotional appeal for the Senate bill." 280 Cong. Rec. 43/2, App. 15. 287 281 Cong. Rec. 43/2, App. 16-24. He said: "But it is to the effects of this measure upon the people of the Southern States I wish to call attention. The elections there have swept nearly every republican Representative from the States of Virginia, West Virginia, North Carolina. Tennessee, Georgia, Alabama, and Arkansas. while in the State Legislatures there has been a corresponding dimunition of power. Falling bodies move with accelerated rapidity and cumulative force, and unless this downward movement is speedily checked, in a brief time the republicans in the South will have no Representative here, and no power or influence in a Legislative Assembly in the South. . . . These consequences have followed from the proposal to pass the civil rights bill of last session, and will be multiplied and it may be made irreparable by its passage. The result then will be to lose you the entire South, and to break and dissipate your political power there for all time to come. Looking at it as a mere question of party tactics, where in the North and West can you expect to gain, by the passage of this bill, States or voters to compensate you for the loss of nine hundred thousand voters and seven or eight States in the South?" Id. at 17. 282 Cong. Rec. 43/2, App. 20. 283 Cong. Rec. 43/2, 997-8. 288 Congressman William W. Phelps, a New Jersey Republican lawyer, opposed the bill as unconstitutional and destructive of the budding southern school systems. But his main argument was political. He said that the two parties had divided in the last election on the bill, and that the people voted against it emphatically." But Congressman Charles G. Williams, a Wisconsin Republican, opposed school segregation, "thereby nurturing a prejudice they never knew, and preparing these classes for mutual hatred hereafter, though they are the upon whose action the peace and tranquillity of the nation must depend." Finally, two Republicans appealed for Democratic votes to let Negroes go to school, based on God and the 1872 Democratic platform.200 Butler of Massachusetts, who concluded the debate, also expressed a preference for no school provision rather than for one with segregated schools.*1 ones * 289 . A vote was then taken on Kellogg's motion, striking out the entire school clause, including its section permitting states to maintain segregated schools. This vote carried by 128 to 48. A vote to restore the school clause, and providing for segregation and other public accommodation, on White's motion, lost by 114 to 91. In neither case were the yeas and nays taken.202 293 Federal compulsion of school desegreation then reached what would be its high water mark for over three-quarters of a century. A vote was taken on restoring the school clause as it passed the Senate. This vote lost by 114 yea to 148 nay. The affirmative votes were all cast by Republicans. Of the Negative votes, 61 were cast by Republicans and 87 by Democrats. All the few remaining Democrats who had served in the 39th Congress, Charles Eldredge of Wisconsin, William E. Finck of Ohio, William E. Niblack of Indiana, and Samuel J. Randall of Pennsylvania, all of who had voted against the Fourteenth Amendment in the House, and James W. Nesmith of Oregon, who as a Senator was absent when the vote was taken on it in 1866, voted nay, as could be expected. The Republican vote is of more interest. The school clause split off about one-third of the Republican party. This split was not based on North-South lines. Of the Republicans voting for the school clause, 98 came from the North, one came from a border state (Maryland), and 15 came from the South. Of the Republicans voting against the school clause 37 came from the North, 7 from the border states of Delaware, Maryland, West Virginia, and Missouri, and 17 came from the South. To further show the nature of the split, all five Republicans from Louisiana, all three from Mississippi, and all four from South Carolina voted for the school clause, while four out of five from Alabama, all five from Tennessee, and four out of five from Virginia voted against it. Seven out of nine Michigan Republicans voted for it, but all three Minnesota Republicans voted against it. The New Jersey Republican delegation was split three to three, while the Pennsylvania delegation was split, twelve for and nine against. There was a somewhat heavier vote against the clause by Republicans in marginal seats. About one third of the Republicans who voted for the school clause had been defeated in 1874, while one-half who voted against it had been defeated. However, this does not seem to be such an undue proportion as to lead to the conclusion that the defeats in 1874 were the sole factors for voting against the clause, although doubtless they were an important cause. By this time, only a handful of Republicans sat in the House who had been in the 39th Congress and voted for the Fourteenth Amendment. The following of that group voted for the school clause: Godlove S. Orth of Indiana, John A. Kasson of Kansas, Henry L. Dawes and Samuel Hooper of Massachusetts, James A. Garfield and William Lawrence of Ohio, William D. Kelley, Leonard Myers, and Charles O'Niell of Pennsylvania, and Philetus Sawyer of Wisconsin, all of whom but Hooper and Sawyer were lawyers. Four Republicans who had voted for the Fourteenth Amendment voted against the school clause. They were Hezekiah S. Bundy, an Ohio Republican lawyer, Robert S. Hale, a former New York State judge whose speech against the original draft of the Fourteenth Amendment had resulted in the substantial rewording of the First Section,* 288 Cong. Rec. 43/2, 1001-2, Cong. Rec. 43/2, 1002. 204 290 Cong. Rec. 43/2, 1003 (Cong. William A. Phillips, Kansas; Cong. John P. Shanks, Ind.). 21 Cong. Rec. 43/2, 1005. Cong. Rec. 43/2, 1010. 23 Cong. Rec. 43/2, 1011. 294 See Cong. Globe, 39th Cong., 1st Sess. 1063-6 (1866). Glenni W. Scofield of Pennsylvania, a former state judge, who had several years before spoken against railroad segregation," 206 and Luke P. Poland, a former Chief Justice of the Vermont Supreme Court who had likewise taken a prominent part in urging passage of the Fourteenth Amendment, as a senator from that state. 297 299 The House vote for the Fourteenth Amendment was 128 to 37. The party line-up in the 39th Congress of Republican: 149, and Democrat: 42, is not very dissimilar to the total vote on the school clause, of Republican: 142, and Democrat: 58, if the southern and Nebraska delegations, which were unrepresented in the 39th Congress when the Fourteenth Amendment was proposed, is eliminated from both party totals. Thus, if the third of the Republicans in the House which had defected on the school clause at the end of the reconstruction in 1875, were presented with a school clause by the Radicals in 1866, and likewise defected then, as they probably would have, it would have meant a swing of 40 Republican votes. The vote on the Fourteenth Amendment with a school desegregation provision would have been about 88 to 77, far less than the two-thirds necessary for passage. A school desegregation provision on the Fourteenth Amendment would have blocked that amendment in the House, without considering the more narrowly divided Senate. 5. SUMMARY AND CONCLUSIONS In contrast to the scanty debates in 1866 on schools, those on the Civil Rights Act of 1875 were voluminous and exhaustive. These debates have been set forth at some length above to demonstrate that virtually every possible position that is espoused today was known and advocated by 1875 in regard to race relations and schools. Moreover, every substantial argument for or against school segregation or integration was known and advocated at that time. The only difference today is that partisans of these positions are using longer words and bigger footnotes to say the same thing. One must flatter oneself to believe that one has something really new to say on the subject which was not said almost a century ago.200 The views expressed ranged the entire spectrum. The unreconstructed Democrats from Delaware and Kentucky expressed the ante-bellum view that Negroes paid so little in taxes that they ought to be exempted from both taxes for schools and should not go to any kind of school at all. We need not concern ourselves with what they thought of the Fourteenth Amendment. More progressive Democrats such as Thurman and Merrimon thought that the Fourteenth Amendment had nothing to do with schools, or at least school segregation, and that Negroes in schools should be rigidly segregated by law. However, as all Democrats, and conservatives voted against the Fourteenth Amendment, their views are not too significant. The "swing" group of Republican moderates, who made possible the Fourteenth Amendment, led by Trumbull of Illinois, believed that the right to go to school was not a civil right protected by the Fourteenth Amendment, over which Congress could legislate. As for the District of Columbia, this group advocated or acquiesced in separate and equal facilities by law for Negroes. This group included not only the moderates of 1866, but also such erstwhile regulars and Radicals as Morrill of Maine, Poland of Vermont, and Sprague of Rhode Island. It constituted at all relevant times about a third of the Republican strength in both Houses of Congress. There was also a handful of regulars, such as Pratt of Indiana and Sherman of Ohio, who believed that the McCann case was correctly decided but that Congress could abolish at least state-wide school segregation laws. Apparently, they believed that the local school boards should decide whether schools should be segregated or integrated. Their view would probably also require the overruling of Berea College v. Kentucky." 299 205 Cong. Globe, 40th Cong., 2nd Sess. 1965 (1868). 200 Cong. Globe, 39th Cong., 1st Sess. 2 61-4 (1866). Poland was also a member of the House Judiciary Committee which drafted the committee's school segregation provision, and was one of the three Republicans committee members to vote against the Senate school clause, four of them voting for it. 207 Id. at 2545. 209 U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957, 691 (1960). 200 See the statement of Congressman John B. Storm, a Pennsylvania Democrat: "I believed that this subject had been talked threadbare both before the House and the |