[213]. “Following the Colour Line,” pp. 172–73.
CHAPTER VII
CIVIL RIGHTS OF NEGROES
The Thirteenth Amendment to the Federal Constitution, prohibiting slavery or involuntary servitude, except as a punishment for crime, was proposed to the legislatures of the thirty-six States on February 1, 1865, a little over two months before the surrender of Lee at Appomattox, and was declared to have been ratified by twenty-seven States, the requisite three-fourths, by December 18, 1865. The latter date marked the Negro’s final freedom from physical bondage. His body could no longer be owned as chattel property. But there is a vast difference between being able to say “No man owns my body,” and “I have the same rights, privileges, and immunities as other free men.” This difference the Thirty-ninth Congress—that of 1865–1866—fully realized, and grappled with.
The first ten Amendments were passed soon after the adoption of the Constitution to satisfy the demands of those who were jealous of the power of the Federal government. These, in brief, guaranteed to the citizens of the United States (1) freedom of religion, speech, press, assembly, and of petition for redress of grievances; (2) the right to keep and bear arms; (3) the right not to have soldiers quartered in one’s house in time of peace without one’s consent; (4) freedom from unreasonable searches and seizures; (5) the right not to be denied life, liberty, or property without due process of law; (6) the right to trial by jury; (7) the right of the accused to be confronted by his accuser; (8) the right not to have one’s property taken for public use without compensation; and (9) the right not to be subjected to cruel or unusual punishment, and not to have excessive bail required. These were limitations upon the power of Congress, the States themselves having guaranteed such rights to their own citizens by their bill of rights. After the War, the Federal government was fearful that the States, particularly those lately in rebellion, would not grant these rights or privileges to the freedmen, who, according to the Dred Scott decision, were not citizens. All the power that Congress had over the States, it seems, was to enforce the Thirteenth Amendment by appropriation legislation. But it proceeded to make the most of the power it had, biding its time when another amendment to the Constitution would give it more power over the States.
FEDERAL CIVIL RIGHTS LEGISLATION
The first step taken by Congress, under the power supposedly arising out of the Thirteenth Amendment, was an attempt to secure to the Negro his so-called “civil rights.” Unfortunately, there seems to be no succinct definition of this term. Bouvier[[214]] defines the phrase thus: “A term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth Amendments to the Constitution and by various acts of Congress made in pursuance thereof.” This definition, however, helps little, and one is thrown back upon the Amendments and subsidiary enactments themselves to work out from them what are the civil rights of a citizen and of the Negro in particular.
During the summer and fall of 1865, between the close of the War and the convening of Congress, there had developed on the part of the radical element of the Republican party under Thaddeus Stevens an opposition to President Johnson’s Reconstruction plans. The first Civil Rights Bill passed the Senate on February 2, 1866, passed the House a few days later, but on March 27, was returned with the veto of the President. It was passed, however, over his veto on April 9, 1866, and was thereafter known as the Civil Rights Bill[[215]] of 1866. The first section reads: “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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishments, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.”
It is evident that the first phrase was intended to contravene the Dred Scott decision and to establish the Negro’s citizenship. While the Bill was before Congress, the great subject of debate was as to just what rights would be given thereby to the Negro. Some opposed it because they thought it would give him the right of suffrage, the right to intermarry with whites, to attend the same schools and churches, to sit on juries, and to testify in courts. It must be remembered that the “Black Laws” of the free States were still in force, and the Congressmen from those States were as jealous of Federal interference on the subject as those from the Southern States.
It is not the purpose here to discuss the Civil Rights Bill as it was regarded by the people, but rather as it was interpreted by the courts. Although it stood scarcely more than two years before it was eclipsed and practically superseded by the Fourteenth Amendment, nevertheless it stood long enough to be tested by the courts.
The Negroes, prompted in some instances probably by white persons, undertook immediately to see what rights were really secured to them by the Bill. In Tennessee and Mississippi, in 1866, convictions were had under the existing State laws against intermarriage, as there had previously been. Appeal to the Federal Supreme Court was talked of, but nothing came of it. With a view to testing their rights, Negroes in New York demanded sleeper accommodations on railroads, and went to fashionable restaurants and demanded the right to sit with the white patrons, but in both instances were refused. In Baltimore they sought accommodations on street cars, in theatres, saloons, etc. with whites, but were met with the same refusal.[[216]]