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and ultimately concluded with a protracted harangue on race, mixing, hybrids, and school

At 1:30 a.m., with the Republicans still refusing to adjourn, 134 Senator William T. Hamilton, a Maryland Democratic lawyer, launched into a lengthy oration He advocated separate churches, cemeteries, hotels, places of amusement, and other facilities, and predicted that the bill would destroy the white patronage of

hotels. 137



The early hours of the morning were taken up principally with the school cla ise." In the course of discussing segregated schools, Senator Edmunds of Vermont, a staunch Radical Republican supporter of Sumner, contended that the Fourteenth Amendment forbade State segregation in carriers," while Senator Aaron A. Sargent, a California Republican lawyer, denied that this was the effect of the Fourteenth Amendment.140 Then, after the school issue was disposed of, the Senate passed the bill by a vote of 29 to 16, and adjourned after a twenty hour session. Voting or paired against the bill were all the Democrats and four Republicans, from Nebraska, Virginia, West Virginia, and Wisconsin, with the affirmative votes all cast by Republicans.

The house took no action on the bill during this session. In occasional de bate, Democrats attacked it in broadside harangues for race-mixing." A Tennessee Republican doubted the constitutionality of the law, and stated that



136 Cong. Rec. 43/1, App. 316-8.
156 Cong. Rec. 43/1, 4166.
137 Cong. Rec. 43/1, App. 367-8, 370.
138 Cong. Rec. 43/1, 4167-4175.

13 Cong. Rec. 43/1, 4172–3. Replying to Senator Sargent, he declared : "But the Senator's argument results in exactly this : that the fourteenth amendment does not, as it respects common schools, level a distinction which a State may have a right to make on account of race and color. If if does not level that distinction, then it does not level a distinction that a State has a right to make on the same account in respect to a railway, or a highway, or a steamboat, or any other thing; for the fourteenth amendment is general and sweeping If the State has that right, we cannot interfere with it. If the State has not that right, we cannot confer it by an act of Congress, because such an act of Congress would be in violation of the fourteenth amendment itself." Ibid.

140 Cong. Rec. 43/1, 4174. He said :

"Now, sir, one single remark in reply to that only which can be considered as argument in reply to my positions, and that is, that the amendment which I propose, by providing that there may be separate schools, is a violation of the fourteenth amendment, upon the same principle that a denial of the right of a colored man to ride in the same car, or have identical accommodations in the same hotel, would be a violation of the fourteenth amendment. I do not believe either of these cases cited as illustrations would be a denial of any right guaranteed by the fourteenth amendment. The fourteenth amendment was not intended merely to say that black men should have rights, but that black and white men and women should have rights. It was a guarantee of equality or right to every person within the jurisdiction of the United States, be he black or white. It is a very common thing for me and for every Senator here, and every white man in the country, when he goes to a railroad train without his wife on his arm or some female friend, to be assigned to a car separate from some other car more privileged than the one he takes, by its female society, though not perhaps better in its fittings, which is assigned to ladies or to gentlemen who have ladies with them. Is that a violation of the fourteenth amendment? Suppose the man who is thus required to take the second car on the train instead of the first should be black instead of white, would the difference in color make a violation of the fourteenth amendment ?

"I do not believe these things are of enough importance for us to legislate upon thein here. They regulate themselves. I doubt if any white man ever felt outraged because he was told to take one car rather than another, on account of a discrimination in the car he should take. Why, then, should the black man?

"So with reference to the hotel table. In most of the hotels, in all of them I believe in New York and in the larger cities, the tables are small, circular tables where families sit, or two or three persons who happen to be friends, and the guests are assigned by the landlord to the places they take. A person entering the dining-room does not take a seat at any table he sees fit; he is put here or there, wherever the landlord pleases. And in assigning rooms at a hotel, the landlord may put him in the fourth story or the first; and if he does not like his accommodation he can go to some other hotel. He has no direction in the matter, and certainly no right to demand under the fourteenth amendment that he shall be put in the third story instead of the fourth, or the second instead of the third. These hotel illustrations fail for that very reason. The fourteenth amendment does not apply to them at all. They are simply incidents of business which have existed for years, and will exist for years whether the fourteenth amendment exists or not.

"If the car to which a white man without a lady is assigned, or the black man is assigned, is just as good as any other of the train, drawn by the same engine, at an equal rate of speed, where is the harm done by that regulation ? And why should we intertere with the business of railroad companies and hotel-keepers in this inquisitive way, putting our noses into the smallest details of business."

141 Cong. Rec. 43/1, 4176.

142 Cong. Rec. 43/1, App. 341-4 (Cong. William B. Read of Ky.) ; App. 417-421 (Cong. Ephraim K. Wilson of Md.) ; App. 481 (Cong. John J. Davis of West Virginia).


colored people were content with segregated accommodations, and only complained of inferior treatment.

Congressman James T. Rapier, an Alabama Negro Republican lawyer, complained that Negroes were all denied first class railroad accommodations, and replied to a prior speaker:

“And I state without fear of being gainsaid, the statement of the gentleman from Tennessee to the contrary notwithstanding, that there is not an inn between Washington and Montgomery, a distance of more than a thousand miles, that will accommodate me to a bed or meal. Now, then, is there a man upon this floor who is so heartless, whose breast is so void of the better feelings, as to say that this brutal custom needs no regulation ?" 144 He went on to point out that whites had a common law right to accommodations, which Negroes also should have, that exclusion from first class accommodations was the result of prejudice, and that it humiliated him. He disclaimed any desire for social equality, but decried being forced to inferior cars, and the fact that on railroad trips he could not get a sleeping car berth.145

Congressman Chester B. Darrall, a Louisiana Republican, re-echoed these views. After noting the Louisiana State Contitution gave Negroes equal rights in public conveyances and other licensed businesses, he reassured the House that Vegroes rarely insisted on exercising them, and that the state laws was not rigidly enforced. He read a resolution of several leading New Orleans whites advocating non-discrimination in public conveyances and licensed resorts, headed by General G. T. Beauregard, who he neglected to mention was a prominent Republican patronage-holder. Darrall deplored the fact that wealthy New Orleans Negroes and prominent colored office-holders could not obtain first class accommodations in carriers and hotels, and gave examples of this. He called for an end to such discrimination by passage of the bill."




The elections of 1874 were a disaster for the Republican Party. The Senate remained Republican by a much reduced margin due to holdovers, but the House of Representatives, where all the members ran for re-election, became Democratic by a wide margin.47 Even Butler lost his seat in normally Republican Massachusetts." The depression, fraud, corruption, and sundry scandals were all helpful to the Democratic Party,49 but it also made considerable gains based on a "white backlash" vote against the civil rights bill, and especially the school clause. 150

When the "lame-duck” Second Session of the Forty-Third Congress met in the early part of 1875, Congressman Alexander White, an Alabama Republican, moved to amend the civil rights bill by specifically permitting segregation in schools and in public accommodations.181 Butler then spoke briefly, denying that the bill was intended to promote social equality in public places, and noted that people who used the services of carriers, theaters, and inns did not do so to obtain the society of others but to obtain necessary services." Congressman John R. Lynch, a Mississippi Republican Negro, also rebutted the social equality argument. He complained that Negro women could not get equal treatment, and that he himself, when coming to Congress, was "forced to occupy a filthy smoking-car both night and day; with drunkards, gamblers, and criminals” because of color.153


143 Cong. Rec. 43/1, 4593 (Cong. Roderick R. Butler). He said: "The colored people do not want to be put in cars with the whites ; that is not what they complain of ; it was that they had to pay first-class fare and be put in second or third class cars, mixed up often with drunken rowdies smoking and using vulgar language in the presence of their wives and daughters. That is wrong, and no just man will say otherwise.'

14 Cong. Rec. 43/1, 4782. See also id. at 4783 : "Every day my life and property are exposed, are left to the mercy of others, and will be so long as every hotel-keeper, railroad conductor, and steamboat captain can refuse me with impunity the accommodations common to other travelers."

145 Cong. Rec. 43/1, 4783-5. See also the remarks of Congressman Ransier, a South Carolina Negro Republican. Id. at 4786.

148 Cong. Rec. 43/1, App. 477–180.

147 U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957, 691 (1960).

148 Trefousse, Ben Butler 230 (1957). 149 27 Encyclopædia Britannica 720 (11th ed. 1911). 160 Congressional Record, 43rd Congress, Second Session 951, 952, 978, 982, 1001, App. 17, 20, 113 (1875) (hereinafter referred to as Cong. Rec. 43/2.

151 Cong. Rec. 43/2, 939.
152 Cong. Rec. 43/2, 940.
153 Cong. Rec. 43/2, 944-5.

65–5060-66pt. 1- 45



That evening, Congressman John B. Storm, a Pennsylvania Democrat, twitted the Republicans for inconsistency in permitting school segregation but not segregation in carriers, hotels, and theaters." Congressman Thomas Whitehead, a Virginia Democrat, said that the civil rights bill was hurting the Republican Party, and stated that racial discrimination could not be proved. In response to questioning, he affirmed that Negroes could ride in Virginia in first-class railway and streetcars, while a Negro congressman, Rainey of South Carolina, denied it.158

Cain, a South Carolina Negro, then arose to rebut Whitehead, and stated that a colored lady he knew was thrown out of a first class railroad car into a smoking car when she reached Virginia.157 The latter interrupted him to state that Negroes could ride any Richmond street car, but Rainey said he was confined to a "colored car," while Cain added the experience of a friend in support of this.16

When Congressman Benjamin W. Harris, a Massachusetts Republican lawyer, arose to rebut Whitehead and support the bill, the latter asked whether proprietors of hotels could, under the bill, segregate patrons :

"Mr. WHITEHEAD. I just want to know whether you are in favor of a hotelkeeper being forced by law to make white and black people sit at the same table?

"Mr. HARRIS. I will tell him what the Massachusetts doctrine is. It is that when any man, white or black, respectable and well-behaved, comes into any hotel in our Commonwealth and asks to have a comfortable apartment assigned him and proper food furnished him, he has a right to it, without regard to his color. But, sir, there is nothing proposed here that would authorize any colored man to force himself on the gentleman from Virginia. This law merely provides that white and black shall be alike entitled to a common hospitality.

"Mr. WHITEHEAD. That does not answer my question at all. Do you wish hotel-keepers to be bound to place white and black at the same table?

"Mr. HARRIS .... I will tell the gentleman, however, that in Massachusetts we do not make all classes of white men sit at the same table or sleep in the same bed. But every man in Massachusetts, be he white or black, can have entertain. ment at one of our hotels, and a black man can get entertainment there equal to that afforded to any white man, if he is despectable and pays his bill." US

A little later, the following colloquy occurred :

“Mr. HARRIS . We do not propose to make any man eat at any other man's table uninvited, but we do not propose that a white man, a keeper of a public hotel, shall kick a black man out of doors and refuse him food and shelter simply because he is a black man. That is the difference between us.

"Mr. WHITEHEAD. We do not, either."

Thereafter, Rainey urged the bill because common-law remedies were too “general," and disclaimed any desire for social equality. Congressman James T. Rapier, an Alabama Negro Republican lawyer, who had tried to interrupt Harris' speech to answer Whitehead, then arose to endorse, in effect, Harris' answer. 161

The next day, February 4, 1875, was the last day of House debate, and strict time limitations were imposed. A Democrat said that southern states already had civil rights laws, and stated that few Negroes used railroads or hotels. A friend of Sumner brought forth the Declaration of Independence and equality of opportunity. However, a New York Republican opposed it because few Negroes traveled in the South, while the bill would, in his view, simply stir up bad feel.

White of Alabama made a long speech in which he rejected extremists on both sides. In his eyes, the evils to be remedied were the denials of admission of



ings. 184

164 Cong. Rec. 43/2, 951.
153 Cong. Rec. 43/2, 952-3.
156 Cong. Rec. 43/2, 955.
157 Cong. Rec. 43/2, 956.
158 Cong. Rec. 43/2, 957.
159 Cong. Rec. 43/2, 958.
180 Ibid.

Harris was, no doubt, thinking of the Massachusetts civil rights law. Mass. Act of May 16, 1865, Stat. 1865, c. 277. In respect to the right to segregate under such a statute, compare People v. Gallagher, 93 N.Y. 438 (1883) with Ferguson v. Glles, 82 Mich. 358, 46 N.W. 718 (1890). See also the rhetoric on this subject from Congressman Eppa Hunton, another Virginia Democrat, in Cong. Rec. 43/2, App. 119.

101 Cong. Rec. 43/2, 959-960.
182 Cong. Rec. 43/2, 977-8 (Cong. James H. Blout, Ga.).
163 Cong. Rec. 43/2, 979 (Cong. E. Rockwood Hoar, Mass.).
164 Cong. Rec. 43/2, 982 (Cong. Simeon B. Chittenden).






Vegroes to carriers, hotels, and theaters. To him, the Senate bill provided equal rights and a community of enjoyment; the House Judiciary bill provided equal rights, separate enjoyment in schools and a community of enjoyment elsewhere; while his bill provided separate enjoyment in all places. He opposed race mixing." In a long oration, he said that southern Republicans did not want race mixing, and that the bill was costing them every state in the south."

The last Democratic bombast came from Congressman Charles A. Eldridge, a Wisconsin lawyer, whose low opinion of Negroes had not improved since he voted against the Fourteenth Amendment.167 When Congressman John Y. Brown, a Kentucky Democrat, whose views on Negroes were as far from the noted abolitionist's ideals as it was possible to get, arose to pour invective on Butler, the House was diverted into a party-line censuring of him.168

The Republicans closed the debate. A Tennessee Republican asserted that without the civil rights bill Negroes would be consigned to inferior accommodations in carriers." A Michigan Republican added that the bill was designed to prohibit exclusion from carriers, inns, and theaters because of color, and opposed segregation by statute. And a Wisconsin Republic opposed all segregation by laws in public places.

For the grand finale, Butler took the helm. Ridiculing the social equality arguments, Butler proceeded to take sweet revenge for Brown's attack by having his ante bellum secessionist sentiments read. Then "waving the bloody shirt,” he concluded in an outburst of flamboyant theatrics which was to be the final notoriety of his House career. 172

The House first voted to strike out the whole school clause, and then voted down White's substitute which, while providing for segregation in public facilities, also restored the school clause to the bill. It then decisively rejected a school integration substitute, and thereafter passed the bill by a vote of 162 to 99. The vote was strictly on party lines, except that two Democrats voted with the majority and eleven Republicans, ten of them from the South and border states, voted with the minority.17

Senate debate was brief. Senator Thomas F. Bayard, a Delaware Democrat, ridiculed the bill for requiring the federal courts to examine whether one seat in a hotel, theater, or railway was as good as another. 174 Senator William T. Hamilton, a Maryland Democratic lawyer, urged that a theater-owner should be able to select his audience.176 He concluded with a bombastic broadside against prej. udice, racial antagonism, and race mixing."

The debate was closed by Senator George F. Edmunds, the Radical Republican lawyer from Vermont who had voted for the Fourteenth Amendment. After accusing the Democrats of consistently opposing any rights for Negroes, he replied to their arguments that the bill was unconstitutional for want of power in Congress to pass it by asking rhetorically: "where is the authority for saying that a State shall not have a right to pass a law which shall declare that all citizens of the German race shall go upon the right-hand side of the streets and all citizens of French descent shall go upon the left, and so on, and that all people of a particular religion shall only occupy a particular quarter of the town, and all the people of another religion another side?"

The bill then passd by a vote of 38 Republicans in favor to 20 Democrats and six Republicans against. Of the affirmative Republicans, eight had voted for the Fourteenth Amendment as senators and seven as members of the House. The most significant negative Republican vote was cast by Senator William Sprague of Rhode Island, who had voted for the Fourteenth Amendment.178



185 Cong. Rec. 43/2, App. 15. 193 Cong. Rec. 43/2, App. 17-24. 107 Cong. Rec. 43/2, 982-5. See also Cong. Globe, 39th Cong., 1st Sess. 2545 (1866). 165 Cong. Rec. 43/2, 985–992. 15 Cong. Rec. 43/2, 998-9 (Cong. Barbour Lewis). 170 Cong. Rec. 43/2, 999 (Cong. Julius C. Burrows). 171 Cong. Rec. 43/2, 1002 (Cong. Charles G. Williams). 172 Cong. Rec. 43/2, 1005-9. 173 Cong. Rec. 43/2, 1011. 174 Cong. Rec. 43/2, App. 105. 175 Cong. Rec. 43/2, App. 115. 176 Cong. Rec. 43/2, App. 116–7. 177 Cong. Rec. 43/2, 1870.

178 Ibid.


In evaluating legislative history to determine intent of the body passing an enactment, one deals in probabilities rather than in mathematical certainties. However, propositions can range from highly improbable to those of which one is morally sure.

The legislative history of the Civil Rights Act of 1875 shows that Congress was principally concerned with complaints by Negroes that they were excluded from railways and other carriers, inns, and theaters, or if admitted were consigned to substantially inferior accommodations. These complaints of being relegated to dirty, smoke-filled railway cars, or of being unable to get hotel rooms and meals, run like a thread throughout the debates. There is a noticeable absence of complaints about mere segregation per se.

In determining whether the debates reflect an intent on the part of the framers of the Fourteenth Amendment to abolish racial segregation, several positions may be readily identified. The Democrats were in favor of strict racial segregation by law to avoid race-mixing. However, they had also opposed the Fourteenth Amendment and would be likely to give it a very narrow construction. We may therefore ignore their views.

Republican moderates, such as Trumbull, joined by several Radicals, such as Senators Lot M. Morrill of Maine, and William Sprague of Rhode Island, who had voted for the Fourteenth Amendment, were of the view that states retained power even under the Fourteenth Amendment to segregate people in railways and in other public places by law. They consistently voted and spoke against the civil rights bill on the ground that it was an unconstitutional "social equality" bill. Their position was essentially in accord with the Democratic position on this point. Trumbull even went so far as to deny that the right to ride in a railway was a civil right at all protected by the Fourteenth Amendment. Considering the fact that in 1872 Trumbull had been a member of the bar for about 40 years, in public life since 1840, a justice of the Illinois Supreme Court for five years, and a United States Senator for 18 years, over six of which he served as Chairman of the Senate Judiciary Committee, it is patent that if he did not know what he was voting for when he voted for the Fourteenth Amendment nobody did.

Moreover, the votes of Trumbull and the other Republican moderates were decisive in the narrowly divided 39th Congress. To obtain the necessary two-thirds majority after President Andrew Johnson's veto of the Freeman's Bureau Bill was sustained, it was necessary to persuade two marginal Republicans to switch to the majority, and to expel or exclude on flimsy grounds Senator John P. Stockton, a New Jersey Democrat." Even so, the President's opponents were unsure of their necessary majority.1

. On the key test of strength, the overriding of the veto of the Civil Rights Act of 1866, the vote was 33 to 15, with one presidential supporter absent.182 Although the vote on the Fourteenth Amendment was 33 to 11, the difference is accountable to the absence of presidential supporters, with only one vote switching.183 Had Trumbull, the virtual Republican spokesman, or any other moderates defected, the razor-thin two-thirds majority would have evaporated, and there would have been no Fourteenth Amendment. Indeed, Morrill, Sprague, and Trumbull alone could, by such a defection, have destroyed the anti-Johnson majority, and no doubt would have done so had the Fourteenth Amendment been loaded with any anti-segregation provision. Moreover, there were other moderates who would have added to such a group of defectors. Since the Radicals in the 39th Congress could have done nothing without the moderate vote, it is clear that the moderate views must be decisive.

However, it may be noted that even the Radicals did not intend in the Civil Rights Act of 1875 to eliminate the rights of carriers, inn-keepers and theaters to segregate their patrons, notwithstanding some confusion on this point in the lower federal courts.184 Frelinghuysen as much as admitted the right of businesses to segregate, as did other members of Congress. Moreover, all proponents of the bill concurred in the position that it was merely designed to re-enact the common law, which allowed businessmen to segregate their patrons if given equal accommodations. Finally, no complaint was made about segregation by Negroes, but only about unequal accommodations.


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170 Cong. Globe, 39th Cong., 1st Sess. 943 (1866). 180 Cong. Globe, 40th Cong., 2d Sess. 823 (1868). 181 See Cong. Globe, 39th Cong., 1st Sess. 1786 (1866). 182 1d. at 1809. 183 Id. at 3042. 184 Compare United States v. Newcomer, 27 Fed. Cas. 127, No. 15, 868 (E.D. Pa, 1876) with United States v. Dodge, 25 Fed. Cas. 882, No. 14, 976 (W.D. Tex. 1877).

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