Civil Rights Act of 1875
No issue concerned black Representatives more than the civil rights bill of 1875. The Civil Rights Act of 1866, which guaranteed citizens the right to enter into contracts and to purchase, sell, or lease property, had been a first step. And the series of Ku Klux Klan Acts, which had incrementally outlawed discrimination in voter registration in local and congressional elections and empowered circuit judges to appoint election supervisors, had advanced the cause of civil rights a bit further. But neither effort fully satisfied ardent reformers, such as Senator Charles Sumner. On May 13, 1870, Sumner introduced sweeping legislation that promised to fully enforce and expand upon the Thirteenth, Fourteenth, and Fifteenth Amendments. The centerpiece of his original bill outlawed racial discrimination in juries, schools, transportation, and public accommodations. But with Illinois Senator Lyman Trumbull, chairman of the powerful Judiciary Committee, opposed to the measure, Sumner’s bill remained trapped in committee.96
On December 2, 1873, the Opening Day of the 43rd Congress, Sumner dutifully submitted his civil rights bill.97 Two weeks later on December 18—bolstered by the GOP’s 111-Member majority—House Judiciary Committee Chairman Benjamin Butler of Massachusetts submitted his own civil rights bill, which echoed much of Sumner’s language.98 A Democrat who supported the doctrine of states’ rights, Butler changed his party allegiances and his attitude toward African Americans while serving as a brigadier general in the Union Army during the Civil War. Recalling the deaths of black Union soldiers on the battlefield, Butler declared, “May my right hand forget its cunning and my tongue cleave to the roof of my mouth if I ever fail to defend the rights of these men who have given their blood for me and my country. . . . God helping me, I will keep that oath.”99
Opponents lined up to denounce Butler’s bill when it came to the House Floor the following January. Democratic Representative Milton Durham of Kentucky accused the measure of trying to start “a war of the races, [in which] the black race in this country will be exterminated.”100 Other Democrats stood up one by one, claiming that the civil rights bill attempted to enforce rights beyond the scope of the Constitution; that it usurped the power of the states to regulate public schools; and that it forced Southerners to develop what they believed to be unattainable—an equitable multiracial society. Amendments aimed at killing the civil rights bill flooded in at such an alarming rate that Butler pulled the bill from the floor and sent it back to his committee.
In the Senate, Sumner’s death on March 11, 1874, breathed new life into his legislative agenda. On his deathbed, Sumner allegedly repeated at least three times to Representative George Hoar: “You must take care of the civil rights bill—my bill, the civil rights bill—don’t let it fail!”101 Primarily out of respect for their deceased colleague, Senators passed the bill—29 to 16—two months later.102 The legislation was referred to the House Judiciary Committee on June 18, leaving the chamber to consider both Sumner’s and Butler’s legislation.103
Widespread Republican losses in the 1874 midterm elections further endangered the civil rights bill. Sixty-two House Republican incumbents failed to win re-election; 43 hailed from northern or western states. The large GOP majority in the House during the 43rd Congress gave way to a 79-Member Democratic advantage in the 44th Congress.104 A financial panic in 1873 followed by the onset of a depression, combined with multiple charges of corruption in Republican President Ulysses S. Grant’s administration, were primarily blamed for the loss.105
There was also a sense on Capitol Hill that the public had grown disinterested in civil rights legislation. A top House Republican, James Garfield of Ohio—where GOP electoral losses were especially devastating—observed “a general apathy among the people concerning the war and the negro.”106James Sener, a scalawag from Virginia, blamed prolonged congressional debate on the civil rights bill for his electoral loss. Sener noted that although he continually opposed the bill during the first session of the 43rd Congress, his constituents feared that “under the whip and spur of party pressure” that Sener might “yield my honest convictions to the will of the majority.”107 Among those who lost their elections that year was Benjamin Butler; Democrat Charles P. Thompson defeated him by six percent of the vote.108 On the other hand, the electoral loss also rallied Republican Representatives, who returned to the lame duck session in 1875 determined not to leave office without passing some form of civil rights legislation.
Democrats, however, believed their election win gave them a mandate to scuttle the civil rights bill. They continually halted business by submitting multiple motions to adjourn every time Butler attempted to place the legislation on the House Calendar for debate. A top GOP lieutenant, John Cessna of Pennsylvania, attempted to circumvent Democrats by drastically changing House Rules, disposing of all dilatory motions (those put forward strictly to stall consideration of legislation) for the remainder of the term. The change failed to achieve the two-thirds majority needed to alter House Rules after 15 Republicans defected. But over strong Democratic objections, Cessna worked with Speaker Blaine to broker a compromise, restricting the use of dilatory motions and opening an opportunity to debate civil rights legislation.109
African Americans in Congress Lead the Debate
During the precarious lead-up to the 1874 elections, as white Republicans in the House avoided commenting on the civil rights bill, African-American Representatives took the lead in debate. Facing some of the former Confederacy’s great orators, the seven black Members serving in the House at the time made some of their most famous and impassioned speeches in support of the civil rights bill. That the House had seven black Representatives (a record number) was, in itself, an argument in favor of the bill. As one scholar notes, “their presence demonstrated that equality in politics could work [and] . . . signaled the drastic change that had overtaken the country’s political order.”110
The climax of the first session of the 43rd Congress starred the talented and charismatic black South Carolina Representative Robert Elliott. The rules of debate governing the civil rights bill limited each Member to 20 minutes. Late in the day on January 5, 1874, however, former Confederate vice president Alexander Stephens of Georgia requested a full hour to make his argument. Ebenezer Hoar of Massachusetts—George Hoar’s brother and one of the bill’s champions—initially objected to giving the former rebel leader additional time to make his argument against the bill. African-American Representative Josiah Walls joined in the objection. But after what must have been a quick strategic discussion on the Republican side of the chamber, both Hoar and Walls agreed to withdraw their objections on the condition that Elliott would receive an hour to speak as well.111
At 63 and suffering from frequent headaches, Stephens stood feebly in the back of the chamber. Dressed in all black and leaning precariously on a stack of Congressional Record volumes―which held his written speech close to his face—the Georgian delivered his argument in what was described as a loud, shrill monotone. Though the Democratic side of the chamber filled to hear Stephens speak, the Republicans nearly abandoned the House Chamber, leaving only 20 or so of their Members present.112 Stephens outlined arguments that served as the rallying cry for the bill’s opponents: that the legislation was unconstitutional because it overreached into private lives and businesses; that racial segregation was the natural order of the South; and that, if left in their own social, political, and economic spheres, both white and black Southerners would prosper independently. African Americans “have no desire for anything partaking of the character of social rights,” the Georgian argued, “and if the people, colored and white, in several Southern States, shall be left to themselves to work out their own destiny under the present system, subject alone to the controlling law of justice . . . without external interference of any sort, it will, in my judgment, be infinitely better for both races.”113 When Stephens finished after 4:00 pm, Republicans requested that the House adjourn so that Elliott could lead off the debate the next day.114
Whether intentional or not, delaying Elliott’s response proved a brilliant strategic move. After word spread overnight that Elliott would deliver his rebuttal the next day, Members crowded the House Floor and African-American visitors packed the public galleries to hear Elliott speak. Reporters sat in the press gallery, pens poised. There was an immediate, visible contrast between Elliott and Stephens. Stephens was old and frail, but Elliott was only 31, tall and square-shouldered, and he strode confidently into the chamber. Though he later admitted to feeling nervous, Elliott spoke with rhetorical flourish, and rarely referred to his notes. Standing straight and gesturing enthusiastically, he converted his reportedly quick temper into a passionate response. Elliott subtly poked fun of Stephens’ stature and personal history, at one point referring to the Georgian’s arguments as “impotent.” “Sir, the gentleman from Georgia has learned much since 1861,” Elliott declared, “but he is still a laggard.” Elliott dismissed Stephens’ extensive constitutional argument, claiming he would not take such a legal lesson from someone who had so recently sought “the break up of the Union of these States and to blot the American Republic from the galaxy of nations.” Elliott argued that African Americans were entitled to the protections of the Fourteenth Amendment and the Constitution in all spheres of life. He concluded by listing the contributions made by African Americans to the United States and praised the impressive way in which freedmen and women had integrated themselves so newly into the political process. “The passage of this bill will determine the civil status, not only of the negro, but of any class of citizens who may feel themselves discriminated against,” Elliott said. “It will form the cap-stone of that temple of liberty. . . . [W]e are at last politically free. The last vestiture only is needed—civil rights.”115
Elliott ended his speech to an eruption of wild applause. Democrats—who had sat at their desks on the House Floor and feigned inattention—found themselves staring at Elliott during his delivery. Members on the Republican side (and reportedly some Democrats) lined up to shake Elliott’s hand afterward; he was later greeted at his Washington, DC, boardinghouse with a large crowd and a brass band.116 Journalists pounced on the symbolism of the exchange between Elliott and Stephens: a man described as “blacker than boot polish,” had verbally skewered one of the former Confederacy’s stalwart politicians. The South Carolinian “has demonstrated the real force of the new order of things,” a reporter from the Chicago Tribune declared.117
Elliott was hardly alone among his African-American colleagues in deftly defending the bill. As southern Democrats denied that southern railroads, hotels, theaters, and restaurants discriminated against black customers, African-American Representatives provided vivid anecdotes of personal experiences with racism and segregation in public accommodations as evidence of the need for a civil rights bill. Joseph Rainey claimed he was unable to procure first-class tickets on some railway lines and pointed out that he could not eat in the first-class dining room on a boat from Washington to Norfolk. Forced to wait for a table in the servants’ dining room, Rainey had shouted, “I’d starve first”; from then on he brought his own meals while traveling. Rainey drilled this injustice into the heads of his colleagues: “Do you think it is right that when I go forth from this capital as an honored member of Congress that I should be subjected to the insults from the lowest fellow in the street if he should happen to feel so inclined?”118
When traveling from his district to the nation’s capital, John Lynch noted, “I am treated, not as an American citizen, but as a brute. Forced to occupy a filthy smoking car both night and day, with drunkards, gamblers, and criminals; and for what? Not that I am unable or unwilling to pay my way; not that I am obnoxious in my personal appearance or disrespectful in my conduct; but simply because I happen to be of a darker complexion.”119
James Rapier noted the irony of the second-class treatment he received while traveling even though he had a privileged role as a United States Representative. “Just think that the law recognizes my right upon this floor as a law-maker, but that there is no law to secure me an accommodation whatever while traveling here to discharge my duties as a Representative. . . . Is not this most anomalous and ridiculous?” Rapier reminded his colleagues that, “Every day my life and property are exposed, are left to the mercy of others, and will be so long as every hotelkeeper, railroad conductor, and steamboat captain can refuse me with impunity.”120
Opponents of the bill argued that regulating discrimination in public accommodations was beyond the scope of the Constitution. The Reconstruction Amendments, which already guaranteed the basic political rights afforded to all male citizens, extended the federal government’s power to its limit. “The colored people are now in substantial enjoyment of their full rights and privileges granted by the recent amendments to the Constitution,” argued Democrat John Storm of Pennsylvania. “This bill is thrust upon us now for no other purpose than exciting bad feelings.” Virginian Thomas Whitehead added “now the colored man is a citizen. He can vote. He can hold office. . . . He can hold property. He can do in my state just what any other man can do. . . . Now, what is the object of this bill?”121
While the Constitution could provide political equality before the law, Southerners argued that it could not enforce social equality. John Harris declared that the racial division was “a natural prejudice that God himself placed in the hearts of southern children,” absurdly adding that a Representative of any race could be “thrust from a particular railroad car when his high position was not known.”122 Representative Whitehead went even farther and argued that “the Almighty has given [African Americans] what he cannot get rid of—a black skin! . . . You have not the power to make him white and he will never be satisfied short of that.”123James Blount of Georgia tried to blame the victims of discrimination and claimed that African Americans in the South did not care for equal access to theaters, hotels, and streetcars. “These people are poor,” he said, “and these things they care nothing about. . . . They are especially often involved in criminal charges. . . . [Judicial rights] are the rights of most practical value to them.”124
The greatest fear of southern Democrats was treating African Americans as equals in everyday society. “There are in the Southern States two races, as distinct in their social feelings and prejudices as in color,” declared Representative Blount. “The sooner they are recognized by our rulers the better for both races and the country.”125 Democrat Charles Eldredge of Wisconsin blamed the violence and unrest in the South on the “unnatural relation in which two races have been placed to each other,” adding, “it is a result . . . which may always be expected when it is attempted to subject men of culture . . . to the domination and rule of brute force.”126
Despite their idealism, most Radical Republicans also believed African Americans belonged to a separate social sphere. But that did not mean the federal government should deny them equal opportunity. “We do not propose to legislate to establish any equality,” Benjamin Butler said. What Butler intended to do, instead, was establish a level playing field: “Not all men are equal, but every man has the right to be the equal of every other man if he can. . . . And all constitutions, all laws, all enactments, all prejudices, all caste, all custom, all contravention of that right is unjust, impolitic, and unchristian.”127
The African-American Members during this era were pragmatists when addressing the issue of using legislation to compel social and racial equality. Richard Cain noted that “no laws enacted by legislators can compel social equality.”128 James Rapier claimed that the civil rights bill “does not and cannot contemplate any such idea as social equality; nor is there any man upon this floor so silly as to believe that there can be any law enacted or enforced that would compel one man to recognize the other as his equal socially.” But he also rejected segregation as a caste system that prevented social mobility, calling such a method “an anti-republican principle in our free country.”129 John Lynch pointed out the hypocrisy of the argument that social equality divided on matters of race: “I have never believed for a moment that social equality could be brought about even between persons of the same race. . . . But those who contend that the passage of this bill will have a tendency to bring about social equality between the races virtually and substantially admit that there are no social distinctions among white people, whatsoever.”130
As white Southerners made dire predictions about the deleterious effects of the civil rights bill on white southern culture, Richard Cain responded with his characteristic wit: “I think [that if] so harmless a measure as the civil-rights bill, guaranteeing to every man of the African race equal rights with other men, would bring death to the South, then certainly that noble march of Sherman to the sea would have fixed them long ago.”131
“No Compromise to Offer on this Subject”: The Education Clause
The sticking point on the final version of the 1875 civil rights bill became the section providing federal funding for and the desegregation of public education in the South. Traditionally, states and local municipalities controlled public schools. But throughout the former Confederacy, local prejudice led to uneven educational opportunities where schools were deeply segregated. Both Southern Democrats and moderate Republicans feared that angry white parents would pull their children out of mixed-race schools, effectively ending public education in the South. “The great evil this bill has in store for the black man is found in the destruction of the common schools of the South,” declared Roger Mills, a white Democrat from East Texas. “When the common schools are broken up in all the Southern States . . . what is to become of the children of the colored people? Are they to grow up on ignorance and vice?”132 Democrat Milton Durham of Kentucky argued that his white constituents paid the bulk of the taxes and that many took advantage of public schools. “Should this bill pass,” Durham warned, “and the children of freedmen demand admission into these schools, I believe the system in Kentucky will be so injured as to become worthless.”133 Moderate Republicans were wary of the education clause as well. Though Barbour Lewis of Tennessee supported the civil rights bill, noting that “the colored people deserve this measure,” he argued that integrated schools were unacceptable “because people of their own choice . . . simply as a matter of taste, have maintained separate schools.”134
To move the bill out of the Judiciary Committee in the face of such broad opposition, Butler amended the education clause by inserting language that called for “separate, but equal” public schools.135 By the time the bill came to a vote on February 4, 1875, three versions existed, each differing only on the education provisions: the amended House bill, calling for “separate, but equal” public schools; the Senate bill, which included the legislation’s original intent to desegregate and federally fund common schools; and an amended version offered by Republican Representative Stephen Kellogg of Connecticut, stripping the bill of all references to public education.
Black Members vigorously defended the education clause, preferring almost unanimously the Senate version of the bill.136 John Lynch contended that increased federal funding for education was the most harmless provision of the bill: “All share its benefits alike,” he said.137 Richard Cain sharply admonished his southern colleagues: “Examine the laws of the South, and you will find that it was a penal offense for anyone to educate the colored people there. . . . You robbed us for two hundred years. During all that time we toiled for you. We have raised your cotton, your rice, and your corn. . . . And yet you upbraid us for being ignorant—call us a horde of barbarians!”138Alonzo Ransier had great faith that access to equal educational rights and opportunities would allow talented black men to earn good standing in their communities and would in turn curb discrimination. “Let the doors of the public school house be thrown open to us alike,” he declared, “if you mean to give these people equal rights at all, or to protect them in the exercise of the rights and privileges attaching to all freemen and citizens of our country.”139
By the time the civil rights bill came to a vote, the measure had been gravely wounded. The bill’s last days were filled with desperate pleas from its supporters. “Spare us our liberties; give us peace; give us a chance to live; . . . place no obstruction in our way; give us an equal chance,” Richard Cain pleaded. “We ask no more of the American people.”140 James Rapier despaired, “I have no compromise to offer on this subject. . . . After all, this question resolves itself into this: either I am a man or I am not a man.”141
Minutes before the final measure came to a vote in the House, Members passed Kellogg’s amendment eliminating all references to public education, 128 to 48. A motion replacing the House version with the Senate bill failed soon afterward, 148 to 114. The battered civil rights bill finally passed 162 to 99. The measure provided no mechanism to regulate public schools but stipulated equal access to public transportation and accommodations regardless of race. It also prohibited the exclusion of African Americans from jury service. Black Members received the final version of the bill with mixed reactions. Despite its diluted form Richard Cain, John Lynch, Joseph Rainey, and James Rapier voted in its favor. But Alonzo Ransier and Josiah Walls were so disappointed by the elimination of the education clause, they declined to vote.142 The legislation passed the Senate on February 27. On March 1, President Ulysses S. Grant signed it into law.143 The fact that Republicans, who within days would be relegated to minority status, managed to steer such a bill through the chamber at the conclusion of a lame duck session represented a considerable legislative victory. But in their desperation to pass the measure, Republicans had left the Civil Rights Act of 1875 in such a weakened state that it did little to impede the creation of an insidious system of segregation in the South. Moreover, the limited protection it did afford would soon be stripped by the courts.
96For a concise summary of congressional civil rights legislation in the 19th and 20th centuries, see Donald Bacon et al., The Encyclopedia of the United States Congress, vol. 1 (New York: Simon and Schuster, 1995): 354–363. Office of the Historian, U.S. House of Representatives, “Constitutional Amendments and Major Civil Rights Acts of Congress Referenced in Black Americans in Congress.”
97Congressional Record, Senate, 43rd Cong., 1st sess. (2 December 1873): 2.
99Congressional Record, House, 43rd Cong., 1st sess. (7 January 1874): 458.
100Congressional Record, House, 43rd Cong., 1st sess. (6 January 1874): 406.
101Edward L. Pierce, Memoir and Letters of Charles Sumner, vol. 4 (New York: Arno Press, 1969): 598.
102Congressional Record, Senate, 43rd Cong., 1st sess. (22 May 1874): 4176.
103Congressional Record, House, 43rd Cong., 1st sess. (18 June 1874): 5162–5163.
104Office of the Historian, U.S. House of Representatives, “Party Divisions.”
105Steven W. Stathis, Landmark Legislation, 1774–2002: Major U.S. Acts and Treaties (Washington, DC: Congressional Quarterly Press, 2003): 111.
106Quoted in Foner, Reconstruction: 555.
107Congressional Record, House, 43rd Cong., 1st sess. (4 February 1875): 978.
108Dubin et al., U.S. Congressional Elections, 1788–1997: 231.
109Asher C. Hinds, Hinds’ Precedents of the House of Representatives, vol. 4 (Washington, DC: Government Printing Office, 1907): 353–354; Foner, Reconstruction: 555; Wilson, The Reconstruction Desegregation Debate: 38. Republicans lost some support in the final vote on the civil rights bill because of the rule change. In a speech denouncing the bill, William Phelps of New Jersey noted, “In order to pass this bill we have altered the rules of procedure under which for fifty years this House has transacted its business.” See Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 1001. Debate was often very contentious, with Butler facing the brunt of the attacks. On February 3, 1875, Butler found himself squaring off in the center aisle of the House Chamber with William McLean of Texas when the latter accused Butler of denigrating the South. McLean hurled a personal insult at Butler, in violation of House Rules, and later retracted his comment. See Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 940–941, 943. The following day, John Brown of Kentucky declared, “If I wished to describe all that was pusillanimous in war, inhuman in peace, forbidden in morals, and infamous in politics, I should call it ‘Butlerism.’ ” Brown was censured for his remarks. See Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 985–992. An attempt to strike Butler’s words from the Congressional Record failed just before the civil rights bill passed. See Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 1008. Though they overwhelmingly favored censuring Brown, black Members remained silent during the more heated bickering on the House Floor.
110Wilson, The Reconstruction Desegregation Debate: 25.
111Congressional Record, House, 43rd Cong., 1st sess. (5 January 1874): 378.
112Philip Dray, Capitol Men: The Epic Story of Reconstruction Through the Lives of the First Black Congressmen (Boston, MA: Houghton Mifflin, 2008): 169–170; Wilson, The Reconstruction Desegregation Debate: 29–30.
113Congressional Record, House, 43rd Cong., 1st sess. (5 January 1874): 381.
114Ibid., 386. The House Journal indicates that the House adjourned at 4:40 PM on January 5. See House Journal, 43rd Cong., 1st sess. (5 January 1874): 186.
115Congressional Record, House, 43rd Cong., 1st sess. (6 January 1874): 409–410.
116Dray, Capitol Men: 175–177.
117“Congressman Elliott’s Speech,” 8 January 1874, Chicago Daily Tribune: 4; “Congress,” 7 January 1874, New York Times: 1.
118Christopher, Black Americans in Congress: 32–33.
119Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 945.
120Congressional Record, House, 43rd Cong., 1st sess. (9 June 1874): 4782–4785.
121Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 951–953.
122Congressional Record, House, 43rd Cong., 1st sess. (5 January 1874): 377.
123Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 953.
124Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 978. For further discussion of the constitutional arguments made during the debates on the civil rights bill, see Wilson, The Reconstruction Desegregation Debate: 151–181.
125Congressional Record, House, 43rd Cong., 1st sess. (6 January 1874): 411.
126Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 983.
127Congressional Record, House, 43rd Cong., 1st sess. (7 January 1874): 455–456.
128Congressional Record, House, 43rd Cong., 1st sess. (10 January 1874): 565.
129Congressional Record, House, 43rd Cong., 1st sess. (9 June 1874): 4785.
130Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 944.
131Congressional Record, House, 43rd Cong., 1st sess. (24 January 1874): 901–903. For more on the equality debate in the civil rights bill, see Wilson, The Reconstruction Desegregation Debate: 77–120.
132Congressional Record, House, 43rd Cong., 1st sess. (5 January 1874): 385.
133Congressional Record, House, 43rd Cong., 1st sess. (6 January 1874): 406.
134Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 998–999.
135Wilson, The Reconstruction Desegregation Debate: 37.
136Most African-American Members preferred the Senate version of the civil rights bill. See, for example, Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 1001. Richard Cain expressed lukewarm support for Kellogg’s version, probably because of his firm rejection of the compromise “separate, but equal” legislation. See Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 982.
137Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 943–947.
138Congressional Record, House, 43rd Cong., 1st sess. (24 January 1874): 901–903.
139Congressional Record, House, 43rd Cong., 1st sess. (7 February 1874): 1314.
140Congressional Record, House, 43rd Cong., 2nd sess. (4 February 1875): 982.
143Congressional Record, Senate, 43rd Cong., 2nd sess. (27 February 1875): 1870; Congressional Record, House, 43rd Cong., 2nd sess. (1 March 1875): 2013.