A Just and Lasting Peace: A Documentary History of Reconstruction

by John David Smith

  Sir, I have replied to the extent of my ability to the arguments which have been presented by the opponents of this measure. I have replied also to some of the legal propositions advanced by gentlemen on the other side; and now that I am about to conclude, I am deeply sensible of the imperfect manner in which I have performed the task. Technically, this bill is to decide upon the civil status of the colored American citizen; a point disputed at the very formation of our present form of government, when by a short-sighted policy repugnant to true republican government, one Negro counted as three fifths of a man. The logical result of this mistake of the framers of the Constitution strengthened the cancer of slavery, which finally spread its poisonous tentacles over the Southern portion of the body politic. To arrest its growth and save the nation we have passed through the harrowing operation of intestine war, dreaded at all times, resorted to at the last extremity, like the surgeon’s knife, but absolutely necessary to extirpate the disease which threatened with the life of the nation the overthrow of civil and political liberty on this continent. In that dire extremity the members of the race which I have the honor in part to represent—the race which pleads for justice at your hands to-day—forgetful of their inhuman and brutalizing servitude at the South, their degradation and ostracism at the North, flew willingly and gallantly to the support of the national government. Their sufferings, assistance, privations and trials in the swamps and in the rice fields, their valor on the land and on the sea, form a part of the ever-glorious record which makes up the history of a nation preserved, and might, should I urge the claim, incline you to respect and guarantee their rights and privileges as citizens of our common Republic. But I remember that valor, devotion and loyalty are not always rewarded according to their just deserts, and that after the battle some who have borne the brunt of the fray may, through neglect or contempt, be assigned to a subordinate place, while the enemies in war may be preferred to the sufferers.

  The results of the war, as seen in reconstruction, have settled forever the political status of my race. The passage of this bill will determine the civil status, not only of the Negro, but of any other class of citizens who may feel themselves discriminated against. It will form the capstone of that temple of liberty, begun on this continent under discouraging circumstances, carried on in spite of the sneers of monarchists and the cavils of pretended friends of freedom, until at last it stands, in all its beautiful symmetry and proportions, a building the grandest which the world has ever seen, realizing the most sanguine expectations and the highest hopes of those who, in the name of equal, impartial and universal liberty, laid the foundation stone. . . .

  JOHN MERCER LANGSTON, “EQUALITY BEFORE THE LAW”

  (May 17, 1874)

  Like Elliott, other African-American leaders also lobbied for Sumner’s civil rights bill,especially following the senator’s death on March 11, 1874. In May of that year, John Mercer Langston (1829–1897) presented a lecture on equal rights and citizenship at Oberlin College, from which he had graduated in 1849. Born a slave in Virginia, Langston was freed after the death of his slaveholding father, went to Ohio to study, and eventually became a lawyer. During the Civil War, he was a leading recruiter for the U.S. Colored Troops. During much of Reconstruction, he served as dean of Howard University’s law department. In his Oberlin address, Langston argued that the Reconstruction amendments were meaningless if some citizens were denied civil or political privileges that others enjoyed.

  . . . It is no more interesting to the patriot than to the philanthropist to trace the changes which have been made during the last decade in our legislation and law. Nor is there anything in these changes to cause regret or fear to the wise and sagacious lawyer or statesman. This is particularly true since, in the changes made, we essay no novel experiments in legislation and law, but such as are justified by principles drawn from the fountains of our jurisprudence, the Roman civil and the common law. It has been truthfully stated that the common law has made no distinction on account of race or color. None is now made in England or in any other Christian country of Europe. Nor is there any such distinction made, to my knowledge, in the whole body of the Roman civil law.

  Among the changes that have been wrought in the law of our country, in the order of importance and dignity, I would mention, first, that slavery abolished, not by State but national enactment, can never again in the history of our country be justified or defended on the ground that it is a municipal institution, the creature of State law. Henceforth, as our emancipation has been decreed by national declaration, our freedom is shielded and protected by the strong arm of national law. Go where we may, now, like the atmosphere about us, law protects us in our locomotion, our utterance, and our pursuit of happiness. And to this leading and fundamental fact of the law the people and the various States of the Union are adjusting themselves with grace and wisdom. It would be difficult to find a sane man in our country who would seriously advocate the abrogation of the 13th amendment to the Constitution.

  In our emancipation it is fixed by law that the place where we are born is ipso facto our country; and this gives us a domicile, a home. As in slavery we had no self ownership, nor interest in anything external to ourselves, so we were without country and legal settlement. While slavery existed, even the free colored American was in no better condition; and hence exhortations, prompted in many instances by considerations of philanthropy and good-will, were not infrequently made to him to leave his native land, to seek residence and home elsewhere, in distant and inhospitable regions. These exhortations did not always pass unheeded; for eventually a national organization was formed, having for its sole purpose the transportation to Africa of such colored men as might desire to leave the land of their birth to find settlement in that country. And through the influence of the African Colonization Society not a few, even, of our most energetic, enterprising, industrious and able colored men, not to mention thousands of the humbler class, have been carried abroad.

  It may be that, in the providence of God, these persons, self-expatriated, may have been instrumental in building up a respectable and promising government in Liberia, and that those who have supported the Colonization Society have been philanthropically disposed, both as regards the class transported and the native African. It is still true, however, that the emancipated American has hitherto been driven or compelled to consent to expatriation because denied legal home and settlement in the land of his nativity. Expatriation is no longer thus compelled; for it is now settled in the law, with respect to the colored, as well as all other native-born Americans, that the country of his birth, even this beautiful and goodly land, is his country. Nothing, therefore, appertaining to it, its rich and inexhaustible resources, its industry and commerce, its education and religion, its law and Government, the glory and perpetuity of its free institutions and Union, can be without lively and permanent interest to him, as to all others who, either by birth or adoption, legitimately claim it as their country.

  With emancipation, then, comes also that which is dearer to the true patriot than life itself: country and home. And this doctrine of the law, in the broad and comprehensive application explained, is now accepted without serious objection by leading jurists and statesmen.

  The law has also forever determined, and to our advantage, that nativity, without any regard to nationality or complexion, settles, absolutely, the question of citizenship. One can hardly understand how citizenship, predicated upon birth, could have ever found place among the vexed questions of the law; certainly American law. We have only to read, however, the official opinions given by leading and representative American lawyers, in slaveholding times, to gain full knowledge to the existence of this fact. According to these opinions our color, race and degradation, all or either, rendered the colored American incapable of being or becoming a citizen of the United States. . . .

  With freedom decreed by law, citizenship sanctioned and sustained thereby, the duty of allegian
ce on the one part, and the right of protection on the other recognized and enforced, even if considerations of political necessity had not intervened, the gift of the ballot to the colored American could not have long been delayed. The 15th amendment is the logical and legal consequences of the 13th and 14th amendments of the Constitution. Considerations of political necessity, as indicated, no doubt hastened the adoption of this amendment. But in the progress of legal development in our country, consequent upon the triumph of the abolition movement, its coming was inevitable. And, therefore, as its legal necessity, as well as political, is recognized and admitted, opposition to it has well-nigh disappeared. Indeed, so far from there being anything like general and organized opposition to the exercise of political powers by the enfranchised American, the people accept it as a fit and natural fact.

  Great as the change has been with regard to the legal status of the colored American, in his freedom, his enfranchisement, and the exercise of political powers, he is not yet given the full exercise and enjoyment of all the rights which appertain by law to American citizenship. Such as are still denied him are withheld on the plea that their recognition would result in social equality, and his demand for them is met by considerations derived from individual and domestic opposition. Such reasoning is no more destitute of logic than law. While I hold that opinion sound which does not accept mere prejudice and caprice instead of the promptings of nature, guided by cultivated taste and wise judgment as the true basis of social recognition; and believing, too, that in a Christian community, social recognition may justly be pronounced a duty, I would not deal in this discussion with matters of society. I would justify the claim of the colored American to complete equality of rights and privileges upon well considered and accepted principles of law.

  As showing the condition and treatment of the colored citizens of this country, anterior to the introduction of the Civil Rights Bill, so called, into the United States Senate, by the late Hon. Charles Sumner, I ask your attention to the following words from a letter written by him:

  “I wish a bill carefully drawn, supplementary to the existing Civil Rights Law, by which all citizens shall be protected in equal rights:—

  “1. On railroads, steamboats and public conveyances, being public carriers.

  “2. At all houses in the nature of ‘inns.’

  “3. All licensed houses of public amusement.

  “4. At all common schools.

  “Can you do this? I would follow as much as possible the language of the existing Civil Rights Law, and make the new bill supplementary.”

  It will be seen from this very clear and definite statement of the Senator, that in his judgment, in spite of and contrary to common law rules applied in the case, certainly of all others, and recognized as fully settled, the colored citizen was denied those accommodations, facilities, advantages and privileges, furnished ordinarily by common carriers, inn-keepers, at public places of amusement and common schools; and which are so indispensable to rational and useful enjoyment of life, that without them citizenship itself loses much of its value, and liberty seems little more than a name.

  The judicial axiom, “omnes homines oequales sunt,” is said to have been given the world by the jurisconsults of the Antonine era. From the Roman, the French people inherited this legal sentiment; and, through the learning, the wisdom and patriotism of Thomas Jefferson and his Revolutionary compatriots, it was made the chief corner-stone of jurisprudence and politics. In considering the injustice done the colored American in denying him common school advantages, on general and equal terms with all others, impartial treatment in the conveyances of common carriers, by sea and land, and the enjoyment of the usual accommodations afforded travelers at public inns, and in vindicating his claim to the same, it is well to bear in mind this fundamental and immutable principle upon which the fathers built, and in the light of which our law ought to be construed and enforced. This observation has especial significance as regards the obligations and liabilities of common carriers and inn-keepers; for from the civil law we have borrowed those principles largely which have controlling force in respect to these subjects. It is manifest, in view of this statement, that the law with regard to these topics is neither novel nor unsettled; and when the colored American asks its due enforcement in his behalf, he makes no unnatural and strange demand.

  Denied, generally, equal school advantages, the colored citizen demands them in the name of that equality of rights and privileges which is the vital element of American law. Equal in freedom, sustained by law; equal in citizenship, defined and supported by the law; equal in the exercise of political powers, regulated and sanctioned by law; by what refinement of reasoning, or tenet of law, can the denial of common school and other educational advantages be justified? To answer, that so readeth the statute, is only to drive us back of the letter to the reasonableness, the soul of the law, in the name of which we would, as we do, demand the repeal of that enactment which is not only not law, but contrary to its simplest requirements. It may be true that that which ought to be law is not always so written; but, in this matter, that only ought to remain upon the statute book, to be enforced as to citizens and voters, which is law in the truest and best sense.

  Without dwelling upon the advantages of a thorough common school education, I will content myself by offering several considerations against the proscriptive, and in favor of the common school. A common school should be one to which all citizens may send their children, not by favor, but by right. It is established and supported by the Government; its criterion is a public foundation; and one citizen has as rightful claim upon its privileges and advantages as any other. The money set apart to its organization and support, whatever the sources whence it is drawn, whether from taxation or appropriation, having been dedicated to the public use, belongs as much to one as to another citizen; and no principle of law can be adduced to justify any arbitrary classification which excludes the child of any citizen or class of citizens from equal enjoyment of the advantages purchased by such fund, it being the common property of every citizen equally, by reason of its public dedication.

  Schools which tend to separate the children of the country in their feelings, aspirations and purposes, which foster and perpetuate sentiments of caste, hatred, and ill-will, which breed a sense of degradation on the one part and of superiority on the other, which beget clannish notions rather than teach and impress an omnipresent and living principle and faith that we are all Americans, in no wise realize our ideal of common schools, while they are contrary to the spirit of our laws and institutions.

  Two separate school systems, tolerating discriminations in favor of one class against another, inflating on the one part, degrading on the other; two separate school systems, I say, tolerating such state of feeling and sentiment on the part of the classes instructed respectively in accordance therewith, cannot educate these classes to live harmoniously together, meeting the responsibilities and discharging the duties imposed by a common government in the interest of a common country.

  The object of the common school is two-fold. In the first place it should bring to every child, especially the poor child, a reasonable degree of elementary education. In the second place it should furnish a common education, one similar and equal to all pupils attending it. Thus furnished, our sons enter upon business or professional walks with an equal start in life. Such education the Government owes to all classes of the people.

  The obligations and liabilities of the common carrier of passengers can, in no sense, be made dependent upon the nationality or color of those with whom he deals. He may not, according to law, answer his engagements to one class and justify non-performance or neglect as to another by considerations drawn from race. His contract is originally and fundamentally with the entire community, and with all its members he is held to equal and impartial obligation. On this subject the rules of law are definite, clear, and satisfactory. These rules may be stated con
cisely as follows: It is the duty of the common carrier of passengers to receive all persons applying and who do not refuse to obey any reasonable regulations imposed, who are not guilty of gross and vulgar habits of conduct, whose characters are not doubtful, dissolute or suspicious or unequivocally bad, and whose object in seeking conveyance is not to interfere with the interests or patronage of the carrier so as to make his business less lucrative.

  And, in the second place, common carriers may not impose upon passengers oppressive and grossly unreasonable orders and regulations. Were there doubt in regard to the obligation of common carriers as indicated, the authorities are abundant and might be quoted at large. Here, however, I need not make quotations. The only question which can arise as between myself and any intelligent lawyer, is as to whether the regulation made by common carriers of passengers generally in this country, by which passengers and colored ones are separated on steamboats, railroad cars, and stage coaches, greatly to the disadvantage, inconvenience, and dissatisfaction of the latter class, is reasonable. As to this question, I leave such lawyer to the books and his own conscience. We have advanced so far on this subject, in thought, feeling, and purpose, that the day cannot be distant when there will be found among us no one to justify such regulations by common carriers, and when they will be made to adjust themselves, in their orders and regulations with regard thereto to the rules of the common law. The grievance of the citizen in this particular is neither imaginary nor sentimental. His experience of sadness and pain attests its reality, and the awakening sense of the people generally, as discovered in their expressions, the decisions of several of our courts, and the recent legislation of a few States, shows that this particular discrimination, inequitable as it is illegal, cannot long be tolerated in any section of our country.