by Philip Dray
The Slaughterhouse Cases arose in 1869 when the state of Louisiana tried to limit all butchering in New Orleans to a central slaughterhouse, where standards of sanitation could be better enforced, rather than in the city's many privately run operations. A group of independent butchers sued on the grounds that such a monopoly violated their rights under the Thirteenth Amendment's ban on "servitudes"; also, they cited the Fourteenth Amendment's edict against a state's enforcing "any law which shall abridge the privileges or immunities of citizens of the United States," arguing that it prohibited the state from interfering with their trade in order to "sustain their lives through labor." The butchers also contended that the slaughterhouse monopoly denied the Fourteenth Amendment's guarantee of due process. This legal strategy, engineered by the butchers' attorney, Joseph A. Campbell, a former Supreme Court justice who had defected to the Confederacy, was cleverly innovative, suggesting that the scope of the Fourteenth Amendment might be broader than its original purpose of safeguarding freedmen's rights.
The Supreme Court, in a 5-4 decision, ruled against the butchers, knocking out the "servitudes" argument and delineating the Fourteenth Amendment's protections as chiefly applicable to the freedmen. It ruled that the organization of slaughterhouses belonged to the police powers of the state. The amendment's "privileges and immunities" was said by the majority to describe a very limited number of rights associated with citizenship and guaranteed by both the state and federal government, such as voting rights. Foes of civil rights legislation pounced joyously on the ruling, for it acknowledged the states' authority to regulate private businesses and their day-to-day interactions with citizens and a limit to the federal government's ability to intervene. On January 6, the day following Stephens's appearance, Elliott rose to address the House. The mood was expectant, the galleries again packed, and the reporters' tables full to see "the African" challenge "the Brain of the Confederacy." Several dignitaries, including General William Tecumseh Sherman, were present. At that time most congressmen did not have separate offices but carried on their correspondence and other work at their desks on the House floor. "A few extreme Democrats pretended to be busy with letters and documents," noted the Chicago Tribune, "but the eloquence of the speaker soon drew them from their preoccupation, and compelled them to listen."
Elliott began by calling attention to the fact that black Americans deserved the civil rights bill and other protections because they had earned their citizenship. "In the events that led to the achievement of American independence," he reminded his listeners, the black American was not "an inactive or unconcerned spectator." To make his point, and in response to James B. Beck, a Kentuckian who earlier had disparaged the courage of black men while boasting of the chivalrous character of his own state, Elliot contrasted the brave actions of black troops at the Battle of New Orleans in 1815 with the less distinguished performance of a unit of Kentuckians. "Under the immortal Jackson, a colored regiment held the extreme right of the American line unflinchingly, and drove back the British column that pressed upon them, at the point of the bayonet," while the Kentucky outfit, in General Jackson's own words, had, at a critical moment, "ingloriously fled" the scene. And in the recent war, Elliott added, while "the negro, true to that patriotism and love of country that have ever characterized and marked his history on this continent, came to the aid of the government," the state of Kentucky "coldly [declared] her neutrality in the impending struggle."
Elliott then turned to the Slaughterhouse Cases, dismissing Beck's and Stephens's suggestion that the ruling had determined that the state, not the federal government, had legislative power over its citizens. What the Supreme Court had ruled, he explained, was that a state did have certain police powers, such as offering, for reasons of health and sanitation, exclusive slaughtering rights to a single corporation, but that any effort to conflate the butchers' claims of unfair treatment with those of freedmen was spurious. Elliott reminded Congress that in the Slaughterhouse Cases, the Supreme Court had suggested that it was the amendment's equal rights clause, not its privileges and immunities clause, that perhaps afforded blacks the most legitimate protection. "No state shall 'deny to any person within its jurisdiction the equal protection of the laws,'" quoted Elliott. "No matter, therefore, whether his rights are held under the United States or under his particular state, he is equally protected by this amendment. He is always and everywhere entitled to equal protection of the laws."
"The [Reconstruction] amendments, one and all," he continued,
have as their all-pervading design and end the security to the recently enslaved race, not only their nominal freedom, but their complete protection from those who had formerly exercised unlimited dominion over them. It is in this broad light that all these amendments must be read, the purpose to secure the perfect equality before the law of all citizens of the United States ... If a state denies to me rights which are common to all her other citizens, she violates this amendment, unless she can show, as was shown in the Slaughterhouse Cases, that she does it in the legitimate exercise of her police power.
Elliott clearly relished the opportunity to diminish an ex-Confederate of Stephens's stature. "While the honorable gentleman contended himself with harmless speculations in his study, or in the columns of a newspaper, we might well smile at the impotence of his efforts to turn back the advancing tide of opinion and progress," Elliott mused.
But, when he comes again upon this national arena, and throws himself with all his power and influence across the path which leads to the full enfranchisement of my race, I meet him only as an adversary; nor shall age or any other consideration restrain me from saying that he now offers this government, which he has done his utmost to destroy, a very poor return for its magnanimous treatment, to come here and seek to continue, by the assertion of doctrines obnoxious to the true principles of our government, the burdens and oppressions which rest upon five millions of his countrymen who never failed to lift their earnest prayers for the success of this government when the gentleman was seeking to break up the Union of these states and to blot the American republic from the galaxy of nations.
"Sir," Elliott continued, addressing the Speaker:
it is scarcely twelve years since that gentleman shocked the civilized world by announcing the birth of a government which rested on human slavery as its cornerstone. The progress of events has swept away that pseudo-government which rested on greed, pride, and tyranny; and the race whom he then ruthlessly spurned and trampled on are here to meet him in debate, and to demand that the rights which are enjoyed by their former oppressors ... shall be accorded to those who even in the darkness of slavery kept their allegiance true to freedom and the Union. Sir, the gentleman from Georgia has learned much since 1861; but he is still a laggard. Let him put away entirely the false and fatal theories which have so greatly marred an otherwise enviable record.
Murmurs of approval from the gallery had been growing louder as Elliott lashed Stephens, and they crested in loud applause when he declared, "That gentleman would better befit his station if, instead of throwing himself in the way of the progress of the nation that had so magnanimously pardoned him for conspiring to overthrow the Republic, he would lay his shoulder to the wheel and help it on to a better and more glorious future."
The chairman's gavel quieted the room, and Elliott turned to answer Congressman Harris, who had clashed the day before with Ransier.
To the diatribe of the gentleman from Virginia, who spoke yesterday, and who so far transcended the limits of decency and propriety as to announce upon this floor that his remarks were addressed to white men alone, I shall have no word of reply. Let him feel that a negro was not only too magnanimous to smite him in his weakness, but was even charitable enough to grant him the mercy of his silence. I shall, sir, leave to others less charitable the unenviable and fatiguing task of sifting out of that mass of chaff the few grains of sense that may, perchance, deserve notice.
The audience reacted so enthusiastic
ally to this putdown of the smug Harris, with applause and stamping of feet, that it was several minutes before order could be restored.
"The results of the war, as seen in reconstruction," Elliott said, moving on, "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." Alluding to the popular idea, represented in a well-known allegorical lithograph of the postwar era, that Reconstruction was a process of America rebuilding itself into an impressive new and vast public structure, a pavilion constructed on the firm pillars of justice and fair play, Elliott vowed that the Sumner bill would "form the capstone of that temple of liberty, begun on this continent under discouraging circumstances ... 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 stones."
Finally, as a parable for the unique dual nature of America, where black and white people lived and worked side by side, Elliott invoked the scriptural story of Ruth. "Our race has 'reaped down your fields,'" he said, and now, having been given their civil rights, he vowed, they would be whites' fellow citizens in the truest sense, sharing with a grateful and faithful heart the nation's endless bounty. "For whither thou goest, I will go," Elliott intoned, "and where thou lodgest, I will lodge; thy people shall be my people, and thy God my God; where thou diest, will I die, and there will I be buried; the Lord do so to me, and more also, if aught but death part thee and me."
That a black man should, on the floor of Congress, deliver so powerful an address on such a theme, a defense of Reconstruction itself, and in so doing skillfully filet three of the South's leading apologists, including the vice president of the Confederacy, was an audacious triumph. To then, in a soaring finale, link America's two races in a bond so enduring that it bore analogy to biblical faith! It was arguably one of the most daring addresses ever proclaimed in Congress. Elliott had replied "by calm, convincing arguments to the conceited assumptions of superiority made by plantation overseers who occupy seats in the House of Representatives," raved the New National Era, which gave the story its entire front page. Agreed the National Republican, "No more dignified, skillful, exhaustive tearing down of the false theories raised by caste alone has ever been witnessed in legislative halls." The New York Times chimed in with fulsome praise: "Mr. Elliott is of the blackest of his race, a fact to which he referred with much feeling, in regretting that it was necessary for him, in an American Congress, to ask for civil rights. His speech was well-written, and it was delivered with the earnestness and eloquence of a natural and experienced orator. The African love of melody was noticeable in the harmony of his delivery." Journalist Marie Le Baron noted that "the blade of sarcasm with which he annihilated his rude Southern opponent was wielded as one would wield a knife, a bone, a stinging snake. 'I am what I am,' was the rude spirit, 'and believe in my own nobility.'" Almost comical was the Charleston News & Courier's churlish reaction to the great address, saying of the debate over the civil rights bill only that "Elliott, of South Carolina, delivered a speech in advocacy of it." This single sentence was the paper's sole mention of the event, although it did devote several columns to Stephens's remarks.
Elliott's speech was instantly immortalized by a popular engraving titled "The Shackle Broken—by the Genius of Freedom." Its several panels reproduced images suggested by Elliott's words—colored troops in combat; Lincoln and Sumner on pedestals; Sumner proclaiming "Equality of rights is the first of rights"; and a representation of a cozy black homestead, captioned "American slave labor is of the past—Free labor is of the present—We toil for our own children and not for those of others." There was, in apparent homage to Robert Smalls, an image of blacks manning a small armed naval vessel, above a quotation of Lincoln's: "So far as tested, it is difficult to say they are not as good soldiers as any." In the center was Elliott himself, holding forth on the House floor to a rapt audience of colleagues and an attentive gallery, and across the bottom ran a line from Elliott's address: "The rights contended for in this bill are among the sacred rights of mankind, which are not to be rummaged for among old parchments or musty records; they are written as with a sunbeam in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power."
At night a large biracial crowd gathered outside Elliott's boarding house on Second Street. A band played, and several speakers hailed the day's hero, who was then introduced, to rapturous applause. No record exists of his remarks, but it's likely he told his hearers much of what he would soon offer a similar group in South Carolina:
In the recent debate on the civil rights bill, the privilege of replying to the elaborate legal and constitutional argument of Mr. Beck, of Kentucky, and more particularly of Hon. Alexander H. Stephens, of Georgia, was, by general consent, awarded to me ... No man could have had a more exciting theme, or a more exciting occasion. I must speak under the eyes of crowded galleries, in the presence of a full house, and of many distinguished strangers, attracted by the novel interest of such an occasion. I may confess to you, fellow citizens, that I trembled for the result...[However], friends have been delighted, and enemies have been forced to concede that the Vice President of the Southern Confederacy—a man acknowledged to be of the greatest intellectual force, and long public experience—has been met in debate, and that his sophistries have been exposed, and his constitutional arguments overthrown, by one of that race, which, twelve years ago, he described as fit only to be "hewers of wood and drawers of water." This triumph I do not chiefly value as a personal one. If it be a triumph, it is a triumph for you as well as for me—a triumph for our whole race.
The national recognition of Elliott as an orator of genius, an heir to Charles Sumner himself, was a particularly meaningful affirmation, granting Elliott the kind of intellectual prominence only Frederick Douglass and a few other black Americans enjoyed. Newspapers began taking an interest in all aspects of his life, even his and Grace's plans to renovate their house in Columbia, and gave significant coverage to his visit to Boston's Faneuil Hall, where he'd been invited to offer the chief eulogy at a memorial gathering for Sumner. In response to the new curiosity about Elliott, an unconfirmed story emerged from a town in upstate New York where, it was said, the teenage Robert Elliott had once bested a local physician in a debate over slavery. The older man was arguing for the gradual emancipation of the slaves when Elliott inquired if, in amputating someone's arm, the good doctor would also do so one finger at a time. "The victory for the colored boy was complete," it was reported, "and the excitement of the audience knew no bounds ... That boy's name was Robert B. Elliott ... whose recent speech on the Supplementary Civil Rights Bill has electrified the nation."
Back in the galleries overlooking Congress, Elliott's treatment of Stephens had whetted appetites for more of the sport of black congressmen skewering pompous former Confederates. The next victim was Democrat William Robbins of North Carolina, who, after boasting of his service in the rebel army and his role in several famous battles, argued against the civil rights bill on the grounds that although whites had tried "to bring these barbarians up to civilization," black people were simply not capable of the ascent. The civil rights bill, Robbins declared, would therefore bring the whites of the South down to the level of the ex-slaves. Richard Cain of South Carolina replied that the "civilizing instruments" used by Robbins and his fellow whites "to bring these barbarians up to civilization" had been the lash and the whipping post, but that, despite such abysmal treatment, he and Robbins today stood on the same floor of Congress and that he had come to assert his rights. To Robbins's humiliation, even many white members joined the gallery in chuckling at his efforts and at Cain's wit and eloquence in the exchange. "In the ratio of their numbers," a Re
publican told a reporter, "it must be conceded that the colored representatives in Congress are better parliamentary speakers than the whites."
The knock-down success of Elliott's address helped gain some momentum, at long last, for Sumner's civil rights bill, which in May 1874 was passed by the Senate. Many saw the vote as a kind of memorial tribute to Sumner, or an homage to the idealism of early Reconstruction, which amounted to basically the same thing. In the House, the bill came up for a vote in early 1875 with the strong backing of Benjamin Butler of Massachusetts and James Garfield of Ohio.
By now, the Republicans had experienced a setback in the November 1874 elections, losing 170 seats in the House of Representatives and control of that body for the first time since 1860. In part this expressed the nation's weariness with Reconstruction but more specifically its unease with the Senate's approving vote, which made passage of Sumner's civil rights law appear imminent. As William Gillette points out, a looming new civil rights law "mandating social equality" was a peril that any Southern voter could understand. Questions such as "Do you wish to be buried in a nigger grave-yard?" or "Do you wish your daughter to marry a nigger?" summed up why many felt that the Republicans could no longer be trusted with the management of Congress, the Southern statehouses, or the nation's racial dynamics. Putting the "nigger into our tea and coffee" was how one Kentucky editor denigrated Sumner's bill. President Grant had spoken supportively of civil rights legislation in his second inaugural address, but even he acknowledged that this issue had turned the tide against the Republicans in the South and border states, a view seconded by the journalist Charles Nordhoff, who saw former white Republican voters desert the party in droves.