With the records such as this the Negro found himself at the close of the eighteenth century a vital factor in every phase of the development of Latin America. I have not attempted to treat his services in the Southern States of the North American Union for the facts here are too well known to require discussion within the limits of the present article. Suffice it to say that the position which the Negro and his mixed progeny of European or Indian blood had won in South America, they have also earned, if even they have not as yet received, due recognition therefore in North America.
With a firm faith in our ability and the consciousness of our inalienable title to a worthy share in the development of the New World. We may look forward with confidence to the inevitable reward of industry sustained by the courage which demands that an honest toiler shall not be despoiled of the fruits of his labor. We may expect therefore that as Negro slavery began in the West Indies and South America and crept northward, so also will come to the United States the gradual dissolution of the problem of color in the general problems of a progressing human race.
[William Pickens. The Constitutional Status of the Negro from 1860-1870]
The second decade of the latter half of the nineteenth century was the most epochal period in American legal history since the time of the national constitution. So far as the American Negro is concerned, this period marks the greatest possible changes in legal and constitutional status. Three years before the opening of this decade the highest court of the nation had declared the Negro to have only the status of the lower animals, while at the close of the decade the Negro had acquired a status in the organic law of the land which entitled him to membership in the Supreme Court itself. In this period the Negro changed from a chattel to a person, from an animal to a man, from a slave to a citizen,—so far as the supreme law of the land is concerned.
This period also contains the two extremes on the scale of discriminations against the American Negro in statute law. Before this period there were comparatively few statutory discriminations against the black race in the Southern States. For in that section the Negro had no personal rights at law, and discriminatory statutes were not necessary. When a discrimination is made against a class in statute law, it is thereby implied that this class has at least some rights based on the fundamental law of the land. Therefore the legislative discriminations against black people before this period were found chiefly in the border states and in the "free" states against "free" Negroes,—a strange contradiction of terms.—But this decade, from 1860 to 1870, also contains the extremes of the Negro's legal status in the South: at the opening of the decade stood the Negro slave, at the close stood the Negro senator; after the middle of this period the South passed the extreme "Black Laws," intended to nullify the effect of the Thirteenth Amendment as far as possible, while at the end of the decade came the Fifteenth Amendment, marking an epoch. These "Black Laws" of the South were enacted between 1865 and 1868 and were inspired by the ratification of the Thirteenth Amendment. They had for their models, it is said, the similar laws that had been passed in previous decades against the helpless "free" Negroes of the North and the border states. But they outdid the models.
These "Black Laws" are worth considering, for in them are found a sufficient cause and a very cogent reason for the Fourteenth and the Fifteenth Amendments. There is really no need for the charge that these two Amendments were the inspiration of revenge or of the desire for political advantage of the party in power. At any rate, such great products of statesmanship should stand on their merits, and not be condemned, even if it could be shown that they were originally based in unworthy motives. It does not lessen the beauty of the rose if the plant was sprouted in manure. But the argument of ultra-motive is unnecessary, for the "Black Laws" of the South were the immediate occasion, and doubtless the only efficient cause, of the Fourteenth Amendment. After the passage of the Thirteenth Amendment, if the former slave states had accorded the ex-slaves even half justice, it is very likely that the Negro's friends in Congress would have quickly forgotten him,—as they have since done in the face of the worst injustices. But it was not unnatural for the South, after the ratification of the Thirteenth Amendment which gave the Negro only the lowest degree of freedom, to try to pass systems of laws that would cause the Negro's freedom to make as little change as possible in the social organism and in his relation to the white race. Not to have done so would have been evidence of superhuman foresight and self-control. From the standpoint of the Negro's interests, however, these laws were "black," not only in name and aim but in their very nature. Instead of being the property of a personally interested master, the Negro was to be converted into the slave of a much less sympathetic society in general. The "free" Negro's lot was to be much harder than that of the slave had been; for altho no longer entitled to "board and keep" from his employer, yet he was to be forbidden by law to move or to change his employment. This would have left his wages at the mercy of the employer. It is a law of economics that the mobility of labor is necessary to the normal regulation of wages. Some states absolutely forbade the freedmen to engage in skilled work, leaving for them only the most menial and least profitable occupations. In the famous old state of South Carolina the employer was to be allowed to inflict corporal punishment, or as the euphemism of the law put it, to "moderately correct" the servants. "Master" and "servant" were the terms used in these laws,—not employer and employee. The vagrancy laws and laws of apprenticeship were all of a nature to entrap the ignorant and take advantage of the weak. Famous old South Carolina even sought to regulate the amount of "politeness" due from the "servant" to the "master's family."
In the face of all these stereotyped facts, why should any honest student of history have to resort to any intangible and indefinite thing like a feeling of revenge or a desire for political and party advantage as an explanation of the motives of those who conceived and passed by the Fourteenth Amendment? This Amendment was passed by the friends of freedom to keep the Thirteenth Amendment from being a mere farce. They sought thereby to secure for the Negro the protecting power of the ballot, as the only effective means of influencing his civil and political interests in a government like this. There was no thought or hope of making him dominant in a country that was predominantly white. But the backers of the Amendment sought to lead the state governments to this reasonable end by inducing rather than by compelling them. The effect of this amendment was to be based on impartial mathematics, and the choice was to be left to the majority of voters of the state. The state was simply not to have a power in the national government based on a population which the state itself did not recognize as a part of its own citizenry.
Up to 1865 nearly all the states of the Union had restricted the right to vote to white men. After the Negro was freed some Northern states voluntarily removed this restriction. The friends of freedom hoped that the Fourteenth Amendment would induce others to do so, by making it to the advantage of their national representative power. But from the ratification of the Amendment in 1868 to 1870 not a single state, with the sole exception of Minnesota, heeded the warning or yielded to the inducement of the suffrage clause of the Fourteenth Amendment. And it might be noted in passing that there were not enough Negroes in Minnesota to make any difference either way. Up to 1870 fourteen states still restricted the suffrage to white men. This obstinacy on the part of the reactionaries caused the friends of freedom in 1870 to ratify the Fifteenth Amendment, which substituted must for persuasion and virtually penalized discriminations against any race in the matter of the suffrage. What evidence is there that any of these steps were taken in a spirit of revenge? Revenge usually acts in haste and without waiting on the development of other sufficient causes. The persuasion of the Fourteenth Amendment was not resorted to till three years after the close of the war, and when there had risen the plainest need for even more than persuasion in the interests of justice and humanity. And the Fifteenth Amendment did not appear till five years after the war, when even the Fourteenth Amendment had failed to persuade. Why should revenge wait so long and advance so reluctantly? It seems that the friends of freedom, who had the political power in their hands, were slow to anger and plenteous in hope.
This suffrage amendment was to be a bulwark to the liberties not only of black men but of all men in America; it was directed not only against the "Black Laws" of the South but against political and civil slavery everywhere in the nation. It is interesting to note that of the states who were members of the Union up to 1865, only five can be listed in the honor roll of those who have never discriminated against the Negro voter: Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.