A Just and Lasting Peace: A Documentary History of Reconstruction (51 page)

(January 6, 1874)

Elliott, the African-American congressman from South Carolina, was a tireless advocate of black rights during Congressional Reconstruction. In 1871, he forcefully promoted the Ku Klux Act and, following his reelection in 1872, supported Senator Charles Sumner's longstanding efforts to pass civil rights legislation mandating equal access to public facilities—including railroads, theaters, hotels, schools, cemeteries, churches, and juries—for persons of all races. In January 1874, Elliott delivered a moving speech endorsing Sumner's bill, dismissing states' rights arguments propounded by Southern Democrats and grounding his advocacy of Sumner's proposed legislation in the Fourteenth Amendment's equal-protection clause.

. . . Are we then, sir, with the amendments to our Constitution staring us in the face; with these grand truths of history before our eyes; with innumerable wrongs daily inflicted upon five million citizens demanding redress, to commit this question to the diversity of legislation? In the words of Hamilton, “Is it the interest of the government to sacrifice individual rights to the preservation of the rights of an artificial being called the states? There can be no truer principle than this, that every individual of the community at large has an equal right to the protection of government. Can this be a free government if partial distinctions are tolerated or maintained?”

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.”

But the Slaughterhouse cases!—The Slaughterhouse cases!

The honorable gentleman from Kentucky, always swift to sustain the failing and dishonored cause of proscription, rushes forward and flaunts in our faces the decision of the Supreme Court of the United States in the Slaughterhouse cases, and in that act he has been willingly aided by the gentleman from Georgia. Hitherto, in the contests which have marked the progress of the cause of equal civil rights, our opponents have appealed sometimes to custom, sometimes to prejudice, more often to pride of race, but they have never sought to shield themselves behind the Supreme Court. But now, for the first time, we are told that we are barred by a decision of that court, from which there is no appeal. If this be true we must stay our hands. The cause of equal civil rights must pause at the command of a power whose edicts must be obeyed till the fundamental law of our country is changed.

Has the honorable gentleman from Kentucky considered well the claim he now advances? If it were not disrespectful I would ask, has he ever read the decision which he now tells us is an insuperable barrier to the adoption of this great measure of justice?

In the consideration of this subject, has not the judgment of the gentleman from Georgia been warped by the ghost of the dead doctrines of states' rights? Has he been altogether free from prejudices engendered by long training in that school of politics that well-nigh destroyed this government?

Mr. Speaker, I venture to say here in the presence of the gentleman from Kentucky and the gentleman from Georgia, and in the presence of the whole country, that there is not a line or word, not a thought or dictum even, in the decision of the Supreme Court in the great Slaughterhouse cases, which casts a shadow of doubt on the right of Congress to pass the pending bill, or to adopt such other legislation as it may judge proper and necessary to secure perfect equality before the law to every citizen of the Republic. Sir, I protest against the dishonor now cast upon our Supreme Court by both the gentleman from Kentucky and the gentleman from Georgia. In other days, when the whole country was bowing beneath the yoke of slavery, when press, pulpit, platform, Congress and courts felt the fatal power of the slave oligarchy, I remember a decision of that court which no American now reads without shame and humiliation. But those days are past; the Supreme Court of today is a tribunal as true to freedom as any department of this government, and I am honored with the opportunity of repelling a deep disgrace which the gentleman from Kentucky, backed and sustained as he is by the gentleman from Georgia, seeks to put upon it.

What were these Slaughterhouse cases? The gentleman should be aware that a decision of any court should be examined in the light of the exact question which is brought before it for decision. That is all that gives authority to any decision.

The State of Louisiana, by act of her Legislature, had conferred on certain persons the exclusive right to maintain stock-landings and slaughterhouses within the city of New Orleans, or the parishes of Orleans, Jefferson, and Saint Bernard, in that State. The corporation which was thereby chartered were invested with the sole and exclusive privilege of conducting and carrying on the live-stock, landing, and slaughter-house business within the limits designated.

The supreme court of Louisiana sustained the validity of the act conferring these exclusive privileges, and the plaintiffs in error brought the case before the Supreme Court of the United States for review. The plaintiffs in error contended that the act in question was void, because, first, it established a monopoly which was in derogation of common right and in contravention of the common law; and, second, that the grant of such exclusive privileges was in violation of the thirteenth and fourteenth amendments of the constitution of the United States.

It thus appears from a simple statement of the case that the question which was before the court was not whether a State law which denied to a particular portion of her citizens the rights conferred on her citizens generally, on account of race, color, or previous condition of servitude, was unconstitutional because in conflict with the recent amendments, but whether an act which conferred on certain citizens exclusive privileges for police purposes was in conflict therewith, because imposing an involuntary servitude forbidden by the thirteenth amendment, or abridging the rights and immunities of citizens of the United States, or denying the equal protection of the laws, prohibited by the fourteenth amendment.

On the part of the defendants in error it was maintained that the act was the exercise of the ordinary and unquestionable power of the State to make regulation for the health and comfort of society—the exercise of the police power of the State, defined by Chancellor Kent to be “the right to interdict unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead in the midst of dense masses of population, on the general and rational principle that every person ought so to use his own property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community.”

The decision of the Supreme Court is to be found in the 16th volume of Wallace's Reports, and was delivered by Associate Justice Miller. The court hold, first, that the act in question is a legitimate and warrantable exercise of the police power of the State in regulating the business of stock-landing and slaughtering in the city of New Orleans and the territory immediately contiguous. Having held this, the court proceeds to discuss the question whether the conferring of exclusive privileges, such as those conferred by the act in question, is the imposing of an involuntary servitude, the abridging of the rights and immunities of citizens of the United States, or the denial to any person within the jurisdiction of the State of the equal protection of the laws.

That the act is not the imposition of an involuntary servitude the court hold to be clear, and they next proceed to examine the remaining questions arising under the fourteenth amendment. Upon this question the court hold that the leading and comprehensive purpose of the thirteenth, fourteenth, and fifteenth amendments was to secure the complete freedom of the race, which, by the events of the war, had been wrested from the unwilling grasp of their owners. I know no finer or more just picture, albeit painted in the neutral tints of true judicial impartiality, of the motives and events which led to these amendments. Has the gentleman from Kentucky read these passages which I now quote? Or has the gentleman from Georgia considered well the force of the language therein used? Says the court on page 70:

 

The process of restoring to their proper relations with the Federal Government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal Government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal Government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

 

They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil, without the right to purchase or own it. They were excluded from any occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal Government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the Government of the Union the States which had been in insurrection until they ratified that article by a formal vote of their legislative bodies.

Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and discuss the history of the recent amendments, as that history related to the general purpose which pervades them all. A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.

Hence the fifteenth amendment, which declares that “the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

We repeat, then, in the light of this recapitulation of events almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested: we mean, the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment in terms mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them, as the fifteenth.

These amendments, one and all, are thus declared to have as their all-pervading design and ends the security of 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. What you give to one class you must give to all, what you deny to one class you shall deny to all, unless in the exercise of the common and universal police power of the state, you find it needful to confer exclusive privileges on certain citizens, to be held and exercised still for the common good of all.

Such are the doctrines of the Slaughterhouse cases—doctrines worthy of the Republic, worthy of the age, worthy of the great tribunal which thus loftily and impressively enunciates them. Do they—I put it to any man, be he lawyer or not; I put it to the gentleman from Georgia—do they give color even to the claim that this Congress may not now legislate against a plain discrimination made by state laws or state customs against that very race for whose complete freedom and protection these great amendments were elaborated and adopted? Is it pretended, I ask the honorable gentleman from Kentucky or the honorable gentleman from Georgia—is it pretended anywhere that the evils of which we complain, our exclusion from the public inn, from the saloon and table of the steamboat, from the sleeping coach on the railway, from the right of sepulture in the public burial ground, are an exercise of the police power of the state? Is such oppression and injustice nothing but the exercise by the state of the right to make regulations for the health, comfort and security of all her citizens? Is it merely enacting that one man shall so use his own as not to injure another's? Is the colored race to be assimilated to an unwholesome trade or to combustible materials, to be interdicted, to be shut up within prescribed limits? Let the gentleman from Kentucky or the gentleman from Georgia answer. Let the country know to what extent even the audacious prejudice of the gentleman from Kentucky will drive him, and how far even the gentleman from Georgia will permit himself to be led captive by the unrighteous teachings of a false political faith.