modations were closed to Negroes, as were hotels, places to eat, sleeping cars, churches and cemeteries.30

Senator Frederick T. Frelinghuysen, a New Jersey Republican, then rose to offer some technical amendments as to wording, and to urge an amendment providing that churches, schools, cemeteries, and institutions of learning established exclusively for either colored or whites should remain segregated. To do otherwise, he contended, would allow whites to join Negro churches and wrest their valuable property from them. Since Negroes could not be given greater privileges than whites, the law would have to be modified." Sumner ultimately accepted this amendment.a

Next, Senator Frederick A. Sawyer, a South Carolina Republican, objected that the Sumner amendment would endanger the amnesty bill. He stated that the South Carolina civil rights law was enforced generally, although conceding some lapses by courts. He favored Sumner's bill, although as an independent measure, and spent much time defending himself from Sumner's stinging attacks. Hill also asserted that Negroes had ample accommodation and did not favor race mixing. Senator James W. Nye, a Radical Republican lawyer from Nevada, supported Sumner's bill. He asserted that equality before the law does not "mean that I am to be kicked from the cars because I am not blessed with a white skin."

1936

35

Senator Eli Saulsbury, a Delaware Democrat, made a characteristic attack on Sumner's bill as one "of social equality enforced by pains and penalties." He declared:

"If a man chooses to ride in the same car with Negroes, if he voluntarily attends the same church and sits in the same pew, then he chooses social equality with negroes . . . But, if he . . . is compelled to ride in the same car then it is enforced social equality, and that is what the Senator's amendment proposes."

...

37

38

Saulsbury condemned the bill for requiring mixed railroads, hotels, churches, and cemeteries. He predicted that whites would cease to patronize places affected by the law, and that they would have to close for want of business. He even asserted that churches would be closed. But Nye said that since southerners were willing to ride with Negroes when they were slaves, they should not object now that they are free. He added that if they did not want to eat with Negroes, they could get up and leave the table.30

40

The next day, Sumner read some more letters from Negroes. One complained that he could get no seat in a theater or street car." Another said that the Arkansas civil rights law" was a "dead letter," while a third stated that a Negro committee was refused service at a restaurant, that another colored family could not get a stateroom, and that a colored minister would be refused admission to hotels, theaters, and churches."

Senator Allen G. Thurman, an Ohio Democrat and a former chief justice of the state supreme court, attacked Sumner's amendment for infringing individual liberty and freedom of association, by forcing whites to associate with Negroes in places of amusement, clubs, and churches. He said that the bill denied "them the liberty to choose their own associates in places of public amusement, in the church, or in the school." He discussed at length the right of people to form clubs, societies, and churches limited to one group." After some legal arguments, Thurman returned to attack the bill for enforcing “social equality." He asked rhetorically: "where have the people of the United States given up their liberty to form associations the members of which shall be exclusively black or exclusively white?" He applied this concept to churches, lodges, ceme

30 Globe 42/2, 429-435.

1 Globe 42/2, 435.

32 Globe 42/2, 487.

33 South Carolina Act of Feb. 13, 1869, No. 98. See also Rev. Stat. of S.C.. 136 (1873); Redding v. South Carolina R. Co., 3 S.C. (3 Rich.) 1 (1871).

34 Globe 42/2, 489-490.

35 Globe 42/2, 491--2.

30 Globe 42/2, 495.

37 Globe 42/2. App. 9.

38 Globe 42/2, App. 10-11.

Globe 42/2, 708.

40 Globe 42/2, 726.

1

teries, and "a theater for whites alone or blacks alone." Thurman concluded: "I do not know any country in the world in which the subject or the citizen is interferred with as this bill proposes to interfere with him; to take from men the right to associate according to their own tastes when by doing so they interfere with the right of no one, and do not injure or in any way prejudice the state. I know of no country in which the liberty of free association, according to the taste or the wishes or the interests of the persons associating, is denied to either subject or citizen. And yet the Senator, in the name of liberty, in the name of freedom, in the name of humanity, seeks to manacle the American people and take from them liberties that they and their ancestors have enjoyed from time immemorial, and which the people in every civilized country enjoy at this day.

"I will repeat again, his bill is a bill of depotism and not of liberty." "

Two days later, Senator Lyman Trumbull, the veteran Illinois lawyer and legislator who, as Republican Chairman of the Senate Judiciary Committee, had shepherded to passage the Civil Rights Act of 1866, the forerunner of the first section of the Fourteenth Amendment, and had frequently acted as spokesman and leader of the Senate Republicans in the Thirty-Ninth Congress, opposed Sumner's amendment. He confined civil rights to those enumerated in the 1866 law, and said that it "did not extend . . . to social rights." He added:

"The railroad corporations make regulations in regard to the manner in which their trains are to be conducted; they set aside one car for ladies, another for gentlemen; they have first and second-class passenger cars, freight cars, and saloon cars, and I suppose they have a right to make all these regulations; but whatever right the white man has the black man has also." 45

Senator John W. Stevenson, a Kentucky Democratic lawyer, also complained that the bill was intended to "coerce social equality between the races in hotels, in theaters, in railways, and other modes of public conveyance.'

99 46

At length, a vote was taken on Sumner's amendment to the amnesty bill. A 28-to-28 tie resulted, and the vice-president voted in the affirmative to break it." However, because a number of supporters of the amnesty bill considered Sumner's measure unconstitutional and voted against it, it received less than the requisite two-thirds vote, only 33 yea to 19 nay."

49

On February 19, a bill similar to Sumner's provision was introduced into the House of Representatives.50 Congressman James G. Blair, a Missouri Republican lawyer, advocated the right of business owners to provide segregated facilities. He declared that "unless the law imposes upon public carriers and hotel-keepers the duty of providing white associates for their colored passengers and guests, there can be no question but that these officers and persons may discharge every duty enjoined on them by law by providing separate accommodations for the colored people.' He said that the bill proposed unwanted social equality for whites, and that hotels would be closed if it were passed." He added:

9951

"Let the steam and sail vessels have their separate rooms and tables for the colored people, the railway companies separate cars, and the hotel-keepers separate rooms, and tables; managers of theaters separate galleries, and public schools separate houses, rooms, and teachers, and the question of races will adjust itself quicker than by using arbitrary means."

"Let our Republican friends come up to the work manfully, for if they have the power under the Constitution to do what they are seeking to do by this bill, they have the power to blot out all distinction on account of color. Let me insist that my Republican friends not stop here Should any white

man or white child refuse to speak to a Negro on the public highway, in the streets or elsewhere, because of color, find them and send them to the penitentiary."

44 Globe 42/2, App. 29.

45 Globe 42/2, 901.

46 Globe 42/2, 913.

47 Globe 42/2, 919.

48 Globe 42/2, 926-8.

49 Globe 42/2, 928-9.

50 Globe 42/2, 1116.

61 Globe 42/2, App. 143. 52 Ibid.

53 Globe 42/2, App. 144.

He also declared: "it is not depriving any colored person of any legal right to have separate accommodations on ships, boats, cars, hotels, theaters.

Congressman Henry D. McHenry, a Kentucky Democratic lawyer, also decried the bill for enforcing social equality in public accommodations." He, too, concluded: "The right of a citizen to associate exclusively with those who are congenial to him, and whom he recognizes as his peers, is an individual liberty, and no Government can prostrate it to his inferiors under the pretext of ‘equality before the law." 55 Congressman John M. Rice, another Kentucky Democratic lawyer, also raised the social equality argument, and predicted that white patronage would be withdrawn from carriers, hotels, and theaters, and that their business would be ruined.5

On May 8, the Senate again considered an amnesty bill which had passed the House.57 Sumner at once moved to annex his civil rights bill to this measure.5 During the ensuing debate and parliamentary maneuvering, Trumbull got into a debate with Sherman of Ohio and Edmunds of Vermont. Trumbull attacked his fellow Republicans with some warmth for loading Sumner's measure on to the amnesty bill. He added:

"That is his proposition; and to pass what? A civil rights bill! Mr. President, it is a misnomer; and I now ask the Senator from Ohio, and I would be glad to give way for an answer, if he will tell me one single right that he has or I have that the colored people of this country have not. What is it? What civil right do I have or has he that is denied a colored man? I want to know what it is.

"I know of no civil right that I have that a colored man has not, and I say it is a misnomer to talk about this being a civil rights bill. If the Senator from Ohio means social rights, if he means by legislation to force the colored people and white people to go to church together, or to be buried in the same grave-yard, that is not a civil right. I know of no right to ride in a car, no right to stop at a hotel, no right to travel possessed by the white man that the colored has not." 99 59

9 60

Edmunds then asserted that it was no more equality before the law to require "that the black man shall go to one hotel to stay and the white man shall go to another," than it would be to require "that the colored man shall go into Pennsylvania Avenue or Maryland Avenue when he wants to go to the west end of town, and the white man shall take Massachusetts or some other avenue where it is proper for white people to go." When Senator Orris S. Ferry, a Connecticut Republican lawyer, asked him whether segregation by sex was any denial of equality, Edmunds replied: "Would it not be a denial of right to declare that white men or men with red hair, or native citizens only should be entitled to travel in a particular horse-car, and that every other class of people should only be allowed to travel in another?", 61

Trumbull then derided Edmund's argument, and said that nobody was being kept out of the cars on account of his hair color. He added that Negroes had the same legal right to be transported in a railroad or put up in a hotel as white people, and that the bill was not a civil rights bill at all.2 Senator John Sherman, the Ohio Republican lawyer who voted with Trumbull for the Fourteenth Amendment, then reminded the latter that the Republicans had voted under his leadership for the Civil Rights Act of 1866, and that this bill was intended to carry out the purposes of that act by protecting "the colored people in their right to travel in the cars," which "right is denied practically in many of the

54 Globe 42/2, App. 217.

55 Globe 42/2, App. 219. He also said: "The law can only prevent prejudice from interfering with the legal rights of others; but social prejudice is a social liberty that the law has no right to disturb." Id. at 218. See also id. at 371 (Cong. James Č. Harper, D.See also id. at 383.

N.C.).

56 Globe 42/2, App. 597.

57 Globe 42/2, 3179.

58 Globe 42/2, 3181.

50 Globe 42/2, 3189. Trumbull called Sumner's amendment a "social equality bill" the next day. Globe 42/2, 3254. This is precisely what the southern Democrats were calling it.

60 Globe 42/2, 3190.

61 Ibid. Edmunds also said: "I defy him to point out any distinction between the right of Congress under the Constitution in this District, for illustration, to declare that a white child shall not go to a particular public school and that he shall go to another if he goes at all, and the power to declare that a white man shall not ride in a particular horse-car that has a blue stripe across it, and that if he rides at all he shall ride on a different one." 62 Ibid.

States." When Trumbull urged that they had this right at common law, Sherman said that a better remedy was needed."

63

Senator Francis P. Blair, a Missouri Democratic lawyer who had switched from the Republican party to become the losing Democratic Vice-Presidential candidate in 1868, also said that the bill was designated to give Negroes "social rights, to impose upon the whites of the community the necessity of a close association in all matters with the negroes." He said that this would irritate the whites. He advocated separate railway cars, hotels, and other facilities for Negroes. Ferry also denied the necessity for the bill on the ground that Negroes had all the common-law remedies they needed to obtain service on carriers and hotels.5

64

Trumbull, Senator Eugene Casserly, a California Democratic lawyer, and Senator James L. Alcorn, a Mississippi Republican lawyer, then all declared that Negroes had the same rights under common law to travel on railways as did whites, while Edmunds and Sumner declared once again that the bill was necessary. When a vote was taken on adding Sumner's civil rights bill to the amnesty bill, it resulted in a 29 to 29 tie. The vice-president then broke the tie in Sumner's favor."7

66

Next the silly season started, with amendments obviously intended merely to make a point. Senator Henry Cooper, a Tennessee Democratic lawyer, moved to amend Sumner's bill to provide that there should be no discrimination based on pecuniary condition, so that a poor person who could not pay would have to be given accommodation. This was laughingly voted down 35 to 7. Hill moved to require that customers be properly clothed. No roll-call was even demanded on this.68

Ultimately, a second vote was taken on annexing Sumner's bill to the amnesty bill, and a 28 to 28 tie resulted, which the vice-president broke in Sumner's favor. However, the 32 to 32 vote on the combined measure was less than the requisite two-thirds needed for passage.TO

70

Several days later, Trumbull, who was much in favor of amnesty but who had voted consistently against the amnesty bill with Sumner's amendment, moved to annex the amnesty bill as a rider to another piece of legislation." When several senators warned that Sumner would simply annex his bill to the amnesty rider, the following coloquy ensued:

"Mr. TRUMBULL.

I want amnesty so much that I will vote for almost anything that is not unconstitutional to get it."

"Mr. SCOTT. . . . Suppose . . . the civil rights bill gets on by the same process?" "Mr. TRUMBULL. I know of no civil rights bill."

"Mr. SUMNER. I know of one. [laughter.]"

"Mr. TRUMBULL. There is a bill that has been misnamed a civil rights bill, proposing to establish social rights which is unconstitutional in its provisions, and which I shall not vote for. But the Senator from Pennsylvania and myself agreeing, and the Senator from West Virginia, I believe, agreeing, let us unite together and vote down this misnamed civil rights bill, this monstrosity that has got a name that does not belong to it, that seeks under false pretenses to impose upon the country and upon the colored people of the country by giving it a name. You cannot make a mule a horse by calling it a horse. Let us vote it down... bills misnamed civil rights-called bills to establish equal rights when they establish no equality. . . ." 12

Sumner answered Trumbull's vehement attack with a letter from Frederick Douglass denying any desire for "social equality;" and Trumbull replied by reading a newspaper clipping stating that Negroes wanted social equality, the ac

03 Globe 42/2, 3192.

4 Globe 42/2, 3251.

05 Globe 42/2, 3257.

Globe 42/2, 3264. Speaking of Trumbull, Edmunds declared: "He does not believe that it is a right belonging to a citizen of the United States to travel in a car if he is a citizen and conforms to all other conditions if his color happens to be one way rather than another; and so on through the whole list." Ibid. A little while later, a similar exchange occurred. Globe 42/2, 3268.

07 Globe 42/2, 3264-5.

Globe 42/2, 3265.

Globe 42/2, 3268.

70 Globe 42/2, 3270.

71 Globe 42/2, 3360.

Globe 42/2, 3361. Trumbull also called it a "social equality bill" the next day. Globe 42/2, 3418, 3421.

curacy of which Sumner disputed." No southern Democrat arose; Trumbull was no doubt doing their work very satisfactorily.

Meanwhile, in the House, a move was made to suspend the rules and pass a resolution requiring the House Judiciary Committee to report a supplemental civil rights bill, the terms of which were not set forth. Presumably they were to be at least generally similar to the Sumner Senate bill. The vote was 112 yea, 76 nay, and it lost for want of two-thirds vote. Eleven Republicans who had voted for the Fourteenth Amendment voted yea; four Democrats who had voted against the Fourteenth Amendment voted nay. Rep. John A. Bingham of Ohio, who had framed the first section of the Fourteenth Amendment, voted in the affirmative."

After sundry parliamentary maneuvering in which Trumbull and Sumner proposed to tack the amnesty bill and the civil rights bill on to various items of other legislation, and which other senators opposed, as it would defeat every bill to which they were attached," Senator Matthew H. Carpenter, a Wisconsin Republican, decided to break the deadlock. On May 21 at about 5 p.m., with both Sumner and Trumbull absent, and with the Senate having barely a quorum, Carpenter first called up the civil rights bill, with the intention of amending it to cover only public inns, licensed places of amusement, and common carriers. By passing a civil rights bill first, he could then get the amnesty bill through, he reasoned. The Senate rebuffed Democratic members' attempts to adjourn," and prepared to work through the night.

76

Democrats opposed the civil rights bill.78 The Carpenter substitute, principally designed to eliminate the school and jury clauses, was then adopted by 22 to 20, with 32 senators absent," and the bill then passed by a party-line vote of 28 to 14.80

The next morning, Sumner bitterly denounced the Carptenter substitute as "an emasculated civil rights bill," and moved to add his own proposal to the pending amnesty bill. This time, his entreaty that the Senate make "the Declaration of Independence in its principles and promises a living letter" fell on deaf ears, and his proposal was decisively rejected, 13 to 29. The Senate then passed the amnesty bill, 38 to 2, Sumner and one other Western Radical alone voting in the negative. That was the end of the bill for that session and Congress.

85

83

3. SUMNER'S TESTAMENT

At the opening of the First Session of the Forty-Third Congress, Sumner once again introduced his civil rights bill.83 However, debate commenced in the House, where a copy of the bill had previously been introduced. Congressman Charles A. Eldridge, a Wisconsin Democratic lawyer, immediately moved an amendment permitting businesses to make a separate accommodation for white persons. Congressman Benjamin F. Butler, Republican Chairman of the Judiciary Committee, which had reported the bill out, advocated it because Negroes who paid first class fare were thrown into dirty cars, or expelled from railroads entirely. Congressman William Lawrence, an Ohio Republican gave an instance of this. Butler, however, added that Negroes who discriminated against whites would also be liable.80 And Congressman Joseph H. Rainey, a South Carolina Negro Republican, complained that Negroes could not enter hotels, public conveyances, amusements, churches, and cemeteries.87

73 Globe 42/2, 3361-2.

74 Globe 42/2. 3383. The Republicans voting yea were: Ames, Banks, Bingham, Dawes, Garfield, Hooper. Kelley, Ketcham, Myers, Sawyer, and Scofield. Democrats in the negative were Eldridge, Kerr, Niblack, and Randall. See also Cong. Globe, 42d Cong., 3rd Sess. 85 (1872).

75 Globe 42/2, 3418-3427.

78 Globe 42/2, 3730.

77 Globe 42/2, 3727–3729.

78 Globe 42/2, 3733-4. Casserly called it unconstitutional.

79 Globe 42/2, 3735.

80 Globe 42/2, 3736.

81 Globe 42/2, 3737-8. See also id. at 3739.

82 Globe 42/2: 3738.

83 2 Cong. Rec. 10-11 (43rd Cong., 1st Sess. 1873) (hereinafter referred to as Cong. Rec. 43/1).

$4 Cong. Rec. 43/1, 97, 337-8.

85 Cong. Rec. 43/1, 339.

88 Cong. Rec. 43/1, 341-2.

87 Cong. Rec. 43/1, 344.