A Just and Lasting Peace: A Documentary History of Reconstruction

by John David Smith

  After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the 14th Amendment. It would be running the slavery argument into the ground, to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of the 14th Amendment, Congress has full power to afford a remedy, under that Amendment and in accordance with it.

  When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights, as a citizen or a man, are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the 13th Amendment, which merely abolishes slavery, but by force of the 14th and 15th Amendments.

  On the whole we are of opinion, that no countenance of authority for the passage of the law in question can be found in either the 13th or 14th Amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned. . . .

  • • •

  Mr. Justice Harlan dissenting:

  The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent Amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. “It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.” Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.

  The purpose of the 1st section of the Act of Congress of March 1, 1875, was to prevent race discrimination in respect of the accommodations and facilities of inns, public conveyances and places of public amusement. It does not assume to define the general conditions and limitations under which inns, public conveyances and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied so as to work a discrimination solely because of race, color or previous condition of servitude. The 2d section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen, of that equality of right given by the 1st section, except for reasons by law applicable to citizens of every race or color and regardless of any previous condition of servitude.

  There seems to be no substantial difference between my brethren and myself as to the purpose of Congress; for, they say that the essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances and theaters; but that such enjoyment shall not be subject to conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is, that colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances and places of amusement as are enjoyed by white persons; and vice versa.

  The court adjudges, I think erroneously, that Congress is without power, under either the 13th or 14th Amendment, to establish such regulations, and that the 1st and 2d sections of the statute are, in all their parts, unconstitutional and void.

  Whether the legislative department of the government has transcended the limits of its constitutional powers, “Is at all times,” said this court in Fletcher v. Peck, 6 Cranch, 128, “a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. . . . The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” More recently in Sinking Fund Cases, 99 U. S., 718, we said: “It is our duty, when required in the regular course of judicial proceedings, to declare an Act of Congress void if not within the legislative power of the United States, but this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”

  Before considering the language and scope of these Amendments it will be proper to recall the relations subsisting, prior to their adoption, between the National Government and the institution of slavery, as indicated by the provisions of the Constitution, the legislation of Congress, and the decisions of this court. In this mode we may obtain keys with which to open the mind of the people, and discover the thought intended to be expressed.

  In section 2 of article IV. of the Constitution it was provided that “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” Under the authority of this clause, Congress passed the Fugitive Slave Law of 1793, establishing a mode for the recovery of fugitive slaves, and prescribing a penalty against any person who should knowingly and willingly obstruct or hinder the master, his agent, or attorney, in seizing, arresting and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive.

  In Prigg v. Commonwealth of Pennsylvania, 16 Pet., 539, this court had occasion to define the powers and duties of Congress in reference to fugitives from labor. Speaking by Mr. Justice Story it laid down these propositions:r />
  That a clause of the Constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another construction equally accordant with the words and sense in which they were used, would enforce and protect the right granted;

  That Congress is not restricted to legislation for the execution of its expressly granted powers; but, for the protection of rights guarantied by the Constitution, may employ such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed;

  That the Constitution recognized the master’s right of property in his fugitive slave and, as incidental thereto, the right of seizing and recovering him, regardless of any state law, or regulation, or local custom whatsoever; and,

  That the right of the master to have his slave, thus escaping, delivered up on claim, being guarantied by the Constitution, the fair implication was that the National Government was clothed with appropriate authority and functions to enforce it.

  The court said: “The fundamental principle, applicable to all cases of this sort, would seem to be that when the end is required the means are given, and when the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionary to whom it is intrusted.” Again: “It would be a strange anomaly and forced construction to suppose that the National Government meant to rely for the due fulfillment of its own proper duties, and the rights which it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union, should be confided to state sovereignty which could not rightfully act beyond its own territorial limits.”

  The Act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of Congress.

  It is to be observed from the report of Priggs’ Case that Pennsylvania, by her Attorney-General, pressed the argument that the obligation to surrender fugitive slaves was on the States and for the States, subject to the restriction that they should not pass laws or establish regulations liberating such fugitives; that the Constitution did not take from the States the right to determine the status of all persons within their respective jurisdictions; that it was for the State in which the alleged fugitive was found to determine, through her courts or in such modes as she prescribed, whether the person arrested was, in fact, a freeman or a fugitive slave; that the sole power of the General Government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile state action; and that for the General Government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the States, would be a dangerous encroachment on state sovereignty. But to such suggestions this court turned a deaf ear, and adjudged that primary legislation by Congress to enforce the master’s right was authorized by the Constitution.

  We next come to the Fugitive Slave Act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of Congress to enforce the master’s rights. The provisions of that Act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave, substantially the whole power of the Nation. It invested commissioners, appointed under the Act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded all good citizens to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that Act, it is sufficient to say that Congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master’s claim to recover his fugitive slave. And this court, in Ableman v. Booth, 21 How., 506 [62 U.S., XVI., 169], adjudged it to be “in all of its provisions fully authorized by the Constitution of the United States.”

  The only other case, prior to the adoption of the recent amendments, to which reference will be made, is that of Dred Scott v. Sandford, 19 How. 399[60 U.S., XV., 663]. That case was instituted in a Circuit Court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another State. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement that Scott—being of African descent, whose ancestors, of pure African blood, were brought into this country and sold as slaves—was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves thus imported and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a State in the sense in which the word “citizen” is used in the Constitution of the United States.

  In determining that question, the court instituted an inquiry as to who were citizens of the several States at the adoption of the Constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British Government. The result was a declaration by this court, speaking by Chief Justice Taney, that the legislation and histories of the times and the language used in the Declaration of Independence, showed “That neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that instrument;” that “they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;” that he was “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;” and that “this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion.”

  The judgment of the court was that the words “people of the United States” and “citizens” meant the same thing, both describing “the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;” that “they are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people and a constituent member of this sovereignty;” but, that the class of persons described in the plea in abatement did not compose a portion of this people, were not “included, and were not intended to be included, under the word ‘citizens’ in the Constitution;” that, therefore, they could “claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;” that, “on the contrary, they were at the time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority and had no rights or privileges but such as those who held the power, and the government might choose to grant them.”

  Such were the relations which formerly existed between the government, whether national or state, and the descendants, whether free or in bondage, or those of African blood, who had been imported into this country and sold as slaves.

  The 1st section of the 13th Amendment provides that “Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Its 2d section declares that “Congress shall have power to enforce this article by appropriate legislation.” This Amendment was followed
by the Civil Rights Act of April 9, 1866, which, among other things, provided that “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” 14 Stat. at L., 27. The power of Congress, in this mode, to elevate the enfranchised race to national citizenship, was maintained by the supporters of the Act of 1866 to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The Act of 1866, in this respect, was also likened to that of 1843, in which Congress declared “That the Stockbridge Tribe of Indians, and each and every one of them, shall be deemed to be and are hereby declared to be citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges and immunities of such citizens, and shall in all respects be subject to the laws of the United States.” If the Act of 1866 was valid in conferring national citizenship upon all embraced by its terms, then the colored race, enfranchised by the 13th Amendment, became citizens of the United States prior to the adoption of the 14th Amendment. But, in the view which I take of the present case, it is not necessary to examine this question.

  The terms of the Thirteenth Amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet, it is historically true that that Amendment was suggested by the condition, in this country, of that race which had been declared, by this court, to have had—according to the opinion entertained by the most civilized portion of the white race, at the time of the adoption of the Constitution—“no rights which the white man was bound to respect,” none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an Act of Congress to aid in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them.