Few bills, if any, have had a longer legislative history in the Congress of the United States than the Civil Rights Act of 1875. From the time that Charles Sumner of Massachusetts first introduced it in the Senate in 1870 until it was passed by both houses and signed by the president almost five years later, the bill was subjected to endless scrutiny and debate. Its supporters argued that the bill was necessary to protect the rights of all citizens against class and caste prejudice. They insisted that it did. no more than provide a federal guarantee of the rights that citizens were supposed to enjoy on the basis of common law. The opponents called it an unconstitutional attempt to legislate social equality and an unenforceable and unmitigated evil. It was, moreover, impolitic, for it would "vex white men, North and South," and it would "expose the black man to more persecution. He is going too fast. He needs time and patience." Despite the fact that the bill's author had long since died and that there were no supporters to match the ardor of Sumner, the bill passed the House by a vote of 162-99 and the Senate by a vote of 38-26,

1974 by John Hope Franklin

becoming law on March 1, 1875.1 It was the final triumph of a Republican majority of doubtful motives that would, within a few days, be superseded by an anti-civil rights Democratic majority.

The "great fundamental principles" that the bill proposed to enact into law were that "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement," and that such enjoyment should be 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." Another provision was that "no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude."

'The bill's history has been discussed by several historians. See David Donald, Charles Sumner and the Rights of Man (New York, 1970); L. E. Murphy, "The Civil Rights Law

Persons found guilty of violating the act-by denying to any citizen the enjoyment of the accommodations it described or by aiding or inciting such denial-would, for every offense, "forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in any action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year."

The act placed direct responsibility for enforcement on the federal courts and their officers. District and circuit courts of the United States were to have cognizance of all crimes and offenses against the statute. "And the district attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the circuit and territorial courts" were specifically authorized and required to institute proceedings against "every person who shall violate the provisions of this act, and cause him to be arrested and imprisoned or bailed... for trial before such court of the United States... as by law has cognizance of the offense." District attorneys were obligated to prosecute such proceedings to their termination. Any district attorney who willfully failed to institute and prosecute the required proceedings was to pay the sum of five hundred dollars to the person aggrieved and was to be fined not less than one thousand nor more than five thousand dollars.2

From the very beginning, the prospects for effective enforcement of the new measure were not bright. President Grant made no comment about the bill either at the time that he signed it or in subsequent messages to Congress or in other public statements. Members of Congress had little to say about the bill after it had passed. At least one member attempted to soften the blow by minimizing its possible

of 1875," Journal of Negro History 12 (1927):110-127; Alfred H. Kelly, "The Congressional Controversy Over School Segregation," American Historical Review 64 (1959):537-563; and James McPherson, "Abolitionists and the Civil Rights Act of 1875," Journal of American History 52 (1965):493-510. For a sample of debate on the bill, see Congressional Record, 43 Cong., 2 sess., no. 3, pt. 2, pp. 939-1005, 1791-1870.

218 Statutes at Large 335.

effects. Representative Benjamin Butler, who had a significant part in bringing about the bill's passage as well as in deleting the provision that would have desegregated schools, sought to allay the fears of a friend. In a letter to Robert Harlan of Cincinnati, Butler said that the bill did not give Negroes the right to go into a drinking saloon and that he was very glad it did not. "I am willing to concede, as a friend to the colored man, that the white race may have at least this one superior privilege ... and I never shall do anything to interfere with the exercise of that high and distinctive privilege." 3

If people in high places were somewhat diffident about speaking out, the general public was not. The New York Times, which had vigorously opposed the bill from the beginning, insisted that it was unconstitutional and, what was more, that it could not be enforced. White southerners, the newspaper argued, would close their businesses rather than comply with the provisions of the act. There would be little trouble in the North, the paper predicted, largely because the blacks are in so great a minority that "they will hardly deem it prudent to force themselves into first-class hotels or restaurants. . . . As a rule, the negroes in this part of the country are quiet, inoffensive people who live for and to themselves, and have no desire to intrude where they are not welcome. In the South, however, there are many colored men and women who delight in 'scenes' and cheap notoriety." 4

There were, however, Negroes in the South and also in the North who were prepared to intrude where they were not welcome in order to test the efficacy of the new legislation. On the day after it was signed into law, several Negroes in Richmond visited "various restaurants, including the bar room at the Exchange Hotel, and in one instance a barber shop, and demanded to be waited upon. They were refused in every instance and ordered out." A Negro couple in New Orleans attempted to occupy a stateroom on a steamboat plying the Mississippi River between that city and a landing on the Red River and were refused. In

3 Benjamin Butler to Robert Harlan in Harper's Weekly, Apr. 24, 1875.

4 New York Times, Mar. 2, 6, 1875.

Chicago two Negroes demanded seats in the dress circle of the McVickers Theater; and although the ticket taker offered them seats elsewhere they persisted in their demands, "and there being no alternative, in they went. Except for their color," one reporter observed, "they would not have been noticed, for they behaved with becoming propriety." During the month after the passage of the bill the New York Times was embarrassed to report that in New York "an intelligent and respectable-appearing colored man" accompanied by a friend attempted to gain admission to the parquet of Booth's Theater but was not admitted because of his color and was told to go to the upper circle, whereupon he left.5

Between 1875 and 1877 blacks in all parts of the country were seeking to enjoy the privileges granted in the new law and were demanding that the government of the United States enforce it. In Wilmington, North Carolina, a Negro demanded that a saloonkeeper be arrested for refusing to sell him liquor.6 Two Negro women in Galveston, Texas, sought admission to the parquet of the Tremont Opera House and were refused." In Winona, Minnesota, several Negroes sought to indict by grand jury persons who had denied them accommodations.8 A similar complaint was brought in San Francisco, and in Philadelphia a Negro woman brought action against the Mt. Moriah Cemetery Association for refusing to permit burial of her husband in a plot they had purchased. Neither observers on the sidelines nor federal officials could claim that the Civil Rights Act failed to command the attention of possible beneficiaries.

The determination of blacks to enjoy their civil rights was at least matched by the spirited and vigorous resistance offered by whites in all parts of the country. Immediately upon learning of the act being passed the proprietor of the

Park Hotel in Baltimore closed his house to the public "to escape incurring the [act's] penalties." In Chattanooga, Tennessee, two hotels surrendered their licenses as public places and became private boardinghouses. 10 Resistance in Virginia took several forms. In Alexandria on March 2, the two principal hotels canceled their licenses and closed. Proprietors of saloons in various parts of the state posted notices that the price of a drink would be $5.00, with liberal discounts to friends. Presumably, the proprietors had no Negro friends. During the same week that the act was passed a member of the state legislature in Richmond introduced a bill "to punish parties creating disturbances in hotels, theaters, and other places of amusement." And to prevent white friends or lightskinned Negroes from purchasing theater tickets and passing them on to their darker brothers, the proposed bill provided that such tickets should be marked "not transferable, to be used only by the original purchaser." 11 This was the kind of resistance that caused a reporter to observe some six months later that the Civil Rights Act had been "a dead letter in Virginia apparently for some time.” 12

Elsewhere the resistance was as intense if not as imaginative as that in Virginia. In New York a Negro was put out of a confectioner's shop when he sought to order a dish of ice cream.13 The Baltimore and Ohio Railroad Company held its ground against eighteen blacks who wanted to ride from Rockville to Washington in a car occupied by whites. 14 There were numerous other instances in which railroad conductors steadfastly refused to permit blacks to ride in the first-class cars with white passengers, even when they presented first-class tickets. 15 The Philadelphia proprietor of Bingham House refused to give a Negro minister any accommodations in the hotel. A white guest offered to share his room with the

Negro, but the proprietor would not permit him to do so. The minister then sat in the entire night and saw eighteen whites receive accommodations. 16

There can be no doubt that the pressures of Negroes who sought early and effective enforcement of the Civil Rights Act and the stern resistance of the whites had much to do with the desire of U. S. district attorneys and marshals for some instructions from Washington. One Tennessee judge observed, "The severe penalties imposed by this law upon prosecuting attorneys and other officials will, we are advised, be attempted to be enforced, should the grand jury fail to indict, in the assumption that their action will be controlled by such officers unless the Court acts." 17 As Negroes made their complaints, U. S. attorneys began to act. They could do nothing, however, until they were fully informed of the provisions of the law; and the office of the Department of Justice in Washington was remarkably derelict in providing attorneys in the field with copies. of the act. The attorney general, George H. Williams of Oregon, was in the final months of his tenure- he would resign in May 1875and he might well have been preoccupied with other matters. But he sent out no special instructions regarding the new act, although during March 1875 he sent out three circulars to U.S. attorneys and marshals. One dealt with an "Act regulating fees and costs and for other purposes"; another dealt with recommendations for pardons; and a third contained copies of an "Act to provide for reductions of terms of sentence of United States prisoners.” 18 One might assume that the new civil rights law was at least as important as one regulating fees and costs.

U. S. attorneys were obliged, therefore, to send special and urgent requests to the attorney general for copies of the new statute. "Please send me without delay a duly certified copy of the 'Civil Rights Bill' as it exists as a law," the U. S. attorney for western Tennessee wrote. "I

16 27 Federal Cases 127.

17 Charge by Judge Halmor H. Emmons to the grand jury of the Circuit Court for the Western District of Tennessee, Mar. 1875, 30 Federal Cases 1005.

18 Justice Department, Instruction Book E, pp. 333, 338, 359.

desire it for use in court and am anxious that it be forwarded as early as possible.” 19 “Complaint is made under the civil rights law," wrote the U.S. attorney for the southern district of Ohio. "Please send me copies of the law.” 20 The U. S. attorney for Georgia complained that he was unable to draw an indictment for several aggrieved parties because he had not seen a copy of the law. "Will you please send me a copy of the Law known as the 'Civil Rights Bill' recently passed." "21 Before the end of the first month after the bill's passage similar requests were forwarded to Attorney General Williams by U. S. attorneys in Chicago, Savannah, Raleigh, New Orleans, and San Francisco. The U. S. attorney for California seemed especially anxious, for he wrote, "Can I be furnished with a certified copy of the law previous to its appearing in book form. If not I will be compelled to defer any prosecutions under it till the session laws are received in the usual way." 22

It was, of course, the responsibility of the secretary of state to furnish certified copies of newly enacted legislation, but the interest of the office of the attorney general in this critical piece of legislation can hardly be denied. Despite the fact that the attorney general himself routinely distributed other acts of Congress to U.S. attorneys without being solicited, he nevertheless referred their requests for copies of this act to the secretary of state. Later, as the requests increased, he complied with some of them directly.23 The disposition of others of these requests is not clear, however. The en