by Philip Dray
In late 1872 the civil rights cause received a boost from an unusual source. John A. Coleman, a white businessman from Providence, Rhode Island, described in an article in the Atlantic Monthly how, after attempting to use a New Haven-New York City ticket for travel in the opposite direction, he had been arrested and bodily removed from a train. In "The Fight of a Man with a Railroad," Coleman accused the conductor of pettiness in refusing to honor his ticket, but the larger issue his story highlighted, and with which most readers could identify, was the routine insensitivity of railroad authorities and even the occasional bullying of passengers. This, Coleman wrote, was a particular failing of American railroads, and even an embarrassment, in light of the more civilized treatment accorded European rail travelers. The New National Era seized on Coleman's arrest and harsh treatment as valuable testimony; for once, a prominent white person had been victimized by the same "tyranny of railroad corporations" that affiicted black people every day. The Era pointed out that unlike Coleman, who had his case heard several times in court and had the satisfaction of venting his anger in the pages of a national magazine, blacks had no choice but to suffer in intimidated silence.
Black congressmen themselves were not immune to prejudice on the rails. "Here am I, a member of your honorable body, representing one of the largest and wealthiest districts in the state of Mississippi," John Roy Lynch of Natchez told the House,
and yet when I leave my home to come to the capital of the nation ... to participate with you in making laws for the government of this great republic ... if I come by way of Louisville or Chattanooga, 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. If this treatment was confined to persons of our own sex, we could possibly afford to endure it. But such is not the case. Our wives and our daughters, our sisters and our mothers, are subjected to the same insults and to the same uncivilized treatment.
"IF I COME BY WAY OF LOUISVILLE OR CHATTANOOGA, I AM TREATED NOT AS AN AMERICAN CITIZEN, BUT AS A BRUTE."
Joseph Rainey told a story of being physically removed from a hotel dining room in Suffolk, Virginia; another black representative asserted that while traveling from Boston to Washington he would need to "carry a basket of bread and wine with him" or go hungry. Robert Brown Elliott, never one to endure a slight, remonstrated with the proprietor when refused a meal at the café in the train station at Wilmington, North Carolina. "[Elliott] was compelled to leave the restaurant or have a fight for it," lawmaker Richard "Daddy" Cain told Congress. "He showed fight ... and got his dinner." The next time Elliott and Cain passed through Wilmington, they tried to avoid another scene by having food and coffee brought to them on the train, but the train master refused, accusing the congressmen of "putting on airs." Elliott later won some measure of revenge at a restaurant in Washington, where a young white man complained to the management about his presence at a nearby table. Elliott made inquiries, learned the fellow clerked in the Treasury Department, and arranged to have him fired.
Along with railroads, hotels were also an embattled civil rights terrain. Would whites consent to sit in lobbies alongside blacks and take meals with them, or stay in hotel rooms, use bathrooms, and sleep in beds that blacks had occupied? The answer, generally, was a resounding "No!" Hotel managers warned that they would shut down their businesses completely if legislators continued to "push on the dusky column." Even the great Frederick Douglass had been refused dinner at the Planter's House in St. Louis. Staying at the hotel in 1871 while on a lecture tour, he had gone out one afternoon to do some visiting. When he returned for dinner, he was challenged at the door to the dining room and asked if he was a registered guest; he replied that he was, but when the registration book was consulted, it was found that his name had been scratched out. Douglass demanded an explanation, but the hotel offered none. The New National Era indignantly cited Douglass's reputation and the fact that he was welcome in some of the world's most dignified salons and lecture halls, and lamented the fact that "Mr. Douglass's experience ... is the experience of thousands of his race all over the country." To stamp out "the accursed prejudice which deprives colored men of the common courtesies of civilized intercourse," the paper called for "legislation as will teach snobbery everywhere that men who were good enough to fight to save the life of the Republic are also good enough to enjoy the common rights belonging to citizens."
The reports of Douglass's mistreatment prompted P.B.S. Pinchback's Louisianian to make a disheartening association, observing that "the roasting of a poor negro lad with kerosene at Port Jervis a few days ago by two or three white brutes, is but the crystallization of a sentiment which in less defined form shut Frederick Douglass from a hotel in St. Louis ... and turns up its fastidious nose at the negro in street car, the church, or the theatre."
St. Louis also offered harsh treatment to Congressman Lynch, in what would prove an embarrassing gaffe. Beginning in 1869, town fathers there had held occasional "capital removal conventions" as part of a public relations effort to lobby the rest of the country on the idea of relocating the nation's capital from Washington to St. Louis. Lynch, as a member of Congress, was invited to town to be wined and dined and persuaded on the matter by local boosters. But, arriving late at night, he was turned away from the Planter's House, where Mississippi's other congressmen were staying, and he wound up wandering the streets in the middle of the night with his luggage, unable to find a hotel. The incident made the newspapers the next day, much to the chagrin of the host committee. The nation's capital, of course, remained in Washington.
More than that of other public accommodations, the potential integration of hotels and restaurants produced the greatest alarm over "social equality," which whites feared would lead to the eventual amalgamation of America's distinctive racial groups. "Social equality" was one of the most highly charged terms in late-nineteenth-century America, but a misleading "bugbear," as Alonzo Ransier remarked. Attaining equal rights in the public sphere did not imply that blacks and whites would be forced into social intimacy; only whites opposed to civil rights laws insisted on that interpretation. Sumner himself stressed that his proposed law would not regulate social interactions. Any person could freely choose his friends and associates and do so within the walls of his private dwelling, but "he cannot appropriate the sidewalk to his own exclusive use, driving into the gutter all whose skin is less white than his own."
There was of course great hypocrisy to the charge that "social equality" was being forced on the South. As civil rights advocates never failed to point out, whites had for decades permitted close relations with blacks as servants and had indulged them as sexual partners and blood kin. "Why this fear of the negro since he has been a freedman," asked Rainey, "when in the past he was almost a household god, gamboling and playing with the children of his old master? And occasionally it was plain to be seen that there was a strong family resemblance between them." Thomas Cardozo, Mississippi's light-skinned superintendent of education, liked to say he had no trouble understanding what social equality was—he saw "a practical demonstration" of it "whenever I look in the glass."
Charles Sumner envisioned his civil rights act as a final phase in the evolution of national authority that had begun with the Civil War itself, in which the North denied the Confederate states their right to secede. The advance had continued with the Emancipation Proclamation, the Thirteenth Amendment, the Civil Rights Bill of 1866, the Reconstruction Acts, the Fourteenth and Fifteenth Amendments, and the Enforcement Acts—documents that presumed the constitutional duty of the federal government to establish and defend the status of residents of the United States. Sumner's legislation also relied, ironically, on a widely disgraced antebellum law—the Fugitive Slave Act of 1850, which had criminalized th
e abetting of slave runaways or the failure to return them to their owners. In practice, the Fugitive Slave Act caused few runaway slaves to be returned to their Southern owners, and its implication that all Americans, including Northerners, were now to act as "slave catchers" only served to agitate public opinion in the run-up to civil war. But postwar civil rights advocates like Sumner found a technical advantage to be made of this heinous law, for it had required the involvement of federal officers and judges. By making it incumbent upon the national government to use its branches and agencies to defend a slaveholder's right to his property, the law created a precedent for the idea that an individual's constitutional rights could be not only recognized but actively enforced by Congress.
Sumner was often criticized for bringing too much emotion to the law and ignoring its intricacies, although what really separated him from his congressional brethren was his greater willingness to shape existing laws to meet present social needs, an idea that would not fully engage the American legal establishment for another half-century. One of Sumner's heroes was the eminent New England jurist Joseph Story, who taught that although common law deserved respect for being based on precedent, it was not to be regarded as infallible; wise lawmakers looked not solely backward for guidance, but around them as well. When a fellow senator protested to Sumner, "I have sworn to support the Constitution, which, as I understand, binds me not to vote for anything that I believe to be unconstitutional," Sumner replied, "I have also sworn to support the Constitution, and it binds me to vote for anything for human rights."
Sumner believed that Congress's duty lay in the enactment of legislation it deemed necessary and that outstanding issues of constitutionality should be left to the courts. Most men in Congress, however, many of whom were lawyers, considered themselves expert on the subject of the Constitution and did not agree that such responsibility should be passed along. They raised numerous objections to his proposed legislation—that enforcing equality in churches was unconstitutional, that the government could not impose rules of conduct on privately owned businesses, and that blacks and whites actually preferred a degree of separation in many of their activities.
The latter point was integral to Southern representatives' perennial argument that race relations were a matter of intimate concern primarily to Southerners, since it was in their section that most black Americans lived. Sumner's crusade for civil rights, in their view, was intrusive. "I am not here to be dictated to by the Senator from Massachusetts," James Lusk Alcorn of Mississippi declaimed on the Senate floor.
He fights the battles of the colored people from afar off, at a safe distance. I have fought their battles in a hand-to-hand conflict. I hold my place here under their authority ... I speak for both races; I speak that their friendly relations may not be thus unwisely disturbed. I, sir, whose childhood was nursed in the lap of the negro; who in his boyhood shared every playground with the negro ... I, sir, have no snobbish prejudice against the colored people.
Rhetoric similar to Alcorn's echoed across the corridor in the House chamber as well, prompting Joseph Rainey to demand,
If the Democrats are such staunch friends of the negro, why is it that when propositions are offered here and elsewhere looking to the elevation of the colored race ... the Democrats array themselves in unbroken phalanx, and vote against every such measure? You, gentlemen of that side of the House, have voted against all the recent amendments to the Constitution, and the laws enforcing the same. Why do you do it? I answer, because those measures had a tendency to give to the poor negro his just rights, and because they proposed to knock off his shackles and give him freedom of speech, freedom of action, and the opportunity of education, that he might elevate himself to the dignity of manhood. Now you come to us and say that you are our best friends. We would that we could look upon you as such.
Had Sumner faced only the predictable Southern hostility to his bill, his task might have been easier; but numerous moderate Republicans opposed him as well, most notably the Illinois senator Lyman Trumbull, one of the main architects of the Civil Rights Act of 1866 and the Fourteenth Amendment, as well as Lot Morrill of Maine. Both men thought Sumner's bill overstepped congressional authority—that there was no basis for the federal government to influence the treatment an individual received in a public accommodation; and they challenged specifically its reliance on the Declaration of Independence as a source of legislative powers. Sumner grew impatient with what he saw as Morrill's insistence on the strictest of constitutional interpretations. "He [Morrill] finds no power for anything unless it be distinctly written in positive precise words. He cannot read between the lines; he cannot apply a generous principle which will coordinate everything there in harmony with the Declaration of Independence." Trumbull believed that "in regard to the rights that belong to the individual as man and as a freeman under the Constitution ... I think we had a right to pass the Civil Rights Bill [of 1866]...but I think we went to the verge of constitutional authority." Sumner, in Senate session, accused Trumbull of standing in the way of equal rights.
"Equal rights in what and for what?" Trumbull demanded.
"Equal rights for the colored race."
"Has not a colored man the same right to go anywhere that I have?" Trumbull asked.
"He is exposed to insult wherever he goes," Sumner replied.
"And so is the white man."
Sumner frowned. "My friend ought not to say that. He knows a white man may travel from one end of the country to another, and he is exposed to no insult on account of his color."
"I do not know of any right by law that a white man has to travel that a colored man has not," Trumbull insisted. "And if [Sumner] will show me where any white man has any right to travel that a colored man has not, I will vote with him to correct it. There is perfect equality now."
"Perfect equality!" Sumner snorted. "Will the Senator listen to Mr. Frederick Douglass as he reports his experiences? I wish the Senator would listen to him reporting his experience on his recent visit to New Orleans; how he was insulted on all the railroads, shut out from equal rights." Douglass, describing his journey, had written in the Independent of being made to sit in "a second class car, amid filth and smoke," and of being denied refreshments at depots en route.
"I ask the Senator," Alcorn of Mississippi interjected, querying Sumner, "was Mr. Douglass insulted anywhere in the South?"
"He was."
"Whereabouts?"
"At what precise stopping-place, I know not."
"I say that colored men can travel in Mississippi and do travel in Mississippi in first-class cars," Alcorn asserted, "and that there is no insult offered them anywhere."
"Then Mississippi is in a happier condition than I had supposed," Sumner retorted.
"Then," Alcorn proposed, "let your legislation come up to the line and leave Mississippi alone."
"We must legislate generally," Sumner said, exasperated. "There must be one law for every part of the country, the law of equal rights.
Perhaps the bill's chief technical difficulty was that it sought to guarantee equal treatment in public accommodations that, unlike voting, had never been made explicit by previous legislation. And unlike a formal right, such as voting, daily interactions between the races regarding public accommodations were governed by deeply ingrained patterns of prejudice that would be hard to police and perhaps impossible to reform. "Equality," C. Vann Woodward observes, "was a far more revolutionary aim than freedom." Securing equal rights in everyday life "involved many more relationships than those between master and slave ... It involved such unpredictable and biased people as hotel clerks, railroad conductors, steamboat stewards, theater ushers, real estate agents, and policemen."
To those who questioned whether the government could proscribe private actions, Sumner replied that certain institutions, although in private hands, were nonetheless part of the public weal. Schools, supported by tax dollars and regulated by law, were certainly public, not private, entities; simil
arly, hotels, railroads, and theaters were licensed and subject to public regulation. "A hotel is a legal institution ... a railroad corporation is also a legal institution," he insisted. "So is a theater, and all that my bill proposes is that those who enjoy the benefits of law shall treat those who come to them with equality ... Whoever seeks the benefit of the law, as the owners and lessees of theaters do, as the common carriers do, as hotelkeepers do, must show equality."
Was Lyman Trumbull correct in suggesting that a bill requiring equal rights in the private interactions of citizens went too far? This was the core question, for even if such laws were morally right, even if Congress should be allowed to enact them, how could they be successfully enforced? The uncertainty raised some ancillary questions: Where exactly did the battle for black America's rights end? Did it ever end? In 1865 William Lloyd Garrison, believing that with the adoption of the Thir teenth Amendment the longstanding goal of the American Anti-Slavery Society was attained, had tried to disband that organization. Wendell Phillips and Frederick Douglass resisted, however. They believed, as Lincoln had observed of his Emancipation Proclamation, "We are like whalers who have been long on chase. We have at last got the harpoon into the monster, but we must now look how we steer, or, with one 'flop' of his tail, he will send us all into eternity." A significant number of abolitionists were willing to view the Thirteenth Amendment as only the first victory in what would be a long crusade to win true equality for the freedmen, and they remained committed to that struggle, even after the Constitution was amended further to provide citizenship rights and the franchise. The discrimination a black American encountered in his or her daily experience, however difficult to address, could not be swept to the margins; it must be confronted. "While a colored gentleman is ... unable to obtain admission to the public hotels; while state-rooms are refused in our steamboats, and berths refused in our sleeping-cars, on account of color," Douglass wrote, "the negro is not abolished as a degraded caste."