Capitol Men (55 page)

Tillman offered a unique defense. Rather than attempt to explain away alleged polling station abuses or uphold the vote's legitimacy, he simply argued that it was essential that whites govern South Carolina—that their restored authority was important to the national reconciliation then taking place between North and South. He added, in a twisted allusion to then-prevailing notions of social Darwinism, that the whites' willingness and ability to "win" the election by whatever means necessary, in this case intimidation and trickery, only proved their natural racial superiority. Democratic supremacy in South Carolina politics, in his view, merely evinced "the great universal law of nature—the inevitable law of the survival of the fittest." Despite Tillman's candor, or more likely because of it, the House committee gave the election to Smalls.

But by 1882, it was apparent that only fate or luck could spare Smalls from the Democratic efforts to eliminate him from Congress in the upcoming election. Sensing that he would not be able to muster enough delegates to win the nomination of the Republican Party that year, Smalls threw his weight behind the white candidate, E.W.M. Mackey, who had played an active role in the constitutional convention of 1868 and in the "dual house." Mackey won the election but died soon after, and Smalls was selected to replace him and finish out his term. He was then reelected in his own right in 1884.

In 1886 Smalls mounted his last congressional campaign. Time and again he had plucked victory from seemingly impossible odds, but by now the move to oust him and collapse the black enclave he ruled in Beaufort had become something like a national Democratic crusade. So phalanx-like were the forces opposing him that even a modest bill he managed to pass in the House to provide a pension to Maria Hunter, the widow of the former Union general David Hunter, was blocked. Hunter's memory was sacred to the black Sea Islanders because of his
1862 declaration that slaves in South Carolina were "forever free," helping pave the way for the eventual enlistment of black soldiers in support of the Union. Smalls told Congress, "Less than a quarter of a century ago that class of which I am a representative were 'hewers of wood and drawers of water. Our lives were one long eternal night...[thus] we can never forget the Moses who led us out of the land of bondage." But the eloquence of Smalls's appeal failed to impress President Cleveland, who vetoed the appropriation.

One affront led to another. In Boston in 1882 Smalls was denied a hotel room on account of his race. Blacks across the nation were outraged by this mistreatment, which was reported in the press, although Smalls himself insisted the matter be dropped. More painful for him was the Democrats' success, in the 1886 campaign year, at turning even some of his long-faithful neighbors against him over issues of color. As a one-man bastion of power in the low country, he relied heavily on the spoils system—distributing patronage to maintain his base of support. Smalls himself was a mulatto and his patronage tended to favor other light-skinned blacks. Challenged by the pure black, or "African," members of his constituency, Smalls argued that it had simply made sense for him to appoint to office men who could read and write, had seen something of the world, or had had dealings with whites; this, he insisted, did not imply these individuals were better than others, only that they were better equipped to work for the interests of the Sea Islands. But many had come to view this practice as exclusionary and did not countenance Smalls's argument. Due in part to the death from malaria of W. J. Bowen, his chief Republican opponent, Smalls secured his party's 1886 nomination, but he lost the general election. As in 1880 he made a formal protest on the grounds that Democratic fraud had tilted the results. Unlike 1880, however, this time Congress refused to come to the rescue.

As Robert Smalls fought to defend his Sea Islands from the encircling forces of redemption, elsewhere in America "Sumner's Law," the hard-won Supplementary Civil Rights Act of 1875, faced increasing hostility as the idea of equal rights lost favor.

No one had expected the new law to erase prejudice overnight; the hope had been that by assuring "citizens of every race and color, regardless of any previous condition of servitude," the right "to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement," a process of assimilation and mutual
acceptance would be encouraged: black and white Americans might learn to exist as equals in their daily lives.

But any sense of triumph accompanying the law's enactment had proved fleeting. At its birth it was widely denounced as impractical, un-enforceable, and perhaps unconstitutional; it was nearly friendless from the start. Neither President Grant nor any member of Congress spoke out with enthusiasm to support it, and even some of the law's original backers were alienated when Congress cut the provision for school desegregation. While Northern newspapers expressed skepticism as to the law's chances for success, the South declared open defiance. "A thousand federal lawsuits and fines cannot establish ... negro equality" was the opinion heard from Georgia. "We would ride in wagons or walk, live in boarding-houses or starve, live without a laugh or public entertainment, rather than be dictated to, and forced to mingle with an element inferior, ill-bred, ignorant, and forced by law upon us."

Early attempts to apply the law in real-world situations encountered immediate resistance from local courts, including the stirrings of a philosophy that would, within a generation, come to dominate race relations in America—"separate but equal"—the belief that equal standing in the eyes of the law was sufficient to assume equal treatment.

Unquestionably, the courts were put off by the ambiguity in this legislation. Federal judges both north and south made numerous requests to the office of the attorney general in Washington, asking questions that needed clarification: Did the civil rights law cover all kinds of steamboats and water conveyances? Did the term
inns
refer to hotels only or also saloons and restaurants? Could a defendant evade punishment by demonstrating that although a complainant might not be allowed access to "white" accommodations, the accommodation offered was equivalent?

The
New York Times
worried that sensation seekers would exploit the law. Blacks living in the North were "quiet, inoffensive people who ... have no desire to intrude where they are not welcome," one editorial assured its readers, but the South held "colored men and women who delight in 'scenes' and cheap notoriety ... Such men as Pinchback of Louisiana...[who] would take no small delight in breakfasting at the Café Brunswick, in attending a fashionable ball, or occupying seats in the dress circle at the opera."

The paper's confidence in the moderation of Northern blacks was, however, misplaced, and some of the first tests of the new law occurred there. William E. Davis Jr., the business manager of a black newspaper,
"a respectable-appearing colored man ... intelligent and well-educated...[who] converses and dresses well," went to the box office at the Booth Theatre on West 23rd Street in New York City and was refused when he attempted to purchase seats for either the orchestra or the parquet. The theater's treasurer, William Tillotson, told Davis that he would have to be content with seats in the "upper circle," an area of the balcony set aside for colored patrons. The next morning Davis filed a complaint with the U.S. attorney, who ordered Tillotson arrested, but a grand jury failed to return an indictment.

In another incident in New York, a black man complained that a confectioner on Sixth Avenue had refused to sell him ice cream. Authorities declined to order the confectioner's arrest on the grounds that an ice cream peddler's business was not covered by Sumner's legislation. "What good is the civil rights law, "the frustrated complainant asked, "if a colored man cannot get a plate of ice cream the same as a white man?"

Mrs. Henry Jones of Philadelphia also found the law unhelpful. As she and her family marched in procession with her husband's remains to the Mount Moriah Cemetery, where she had purchased a double plot, the funeral was stopped by a group of men claiming to represent a "cemetery association." They informed her that no black person could be buried there, for, like schools, cemeteries had been excised legislatively from the civil rights act's guarantee of equal access.

There were, however, a few positive signs. In early June, Henry Greenwall, manager of the Tremont Opera House in Galveston, was convicted under the law for refusing to sell tickets to two black women who wished to sit on the main floor. The judge fined Greenwall $500 but didn't stop there; in addition, he hurled a "contempt" ruling at a local newspaper that had criticized his judgment. In Virginia a hotel clerk named Newcomer refused lodging to a black minister, Fields Cook, telling him there were no rooms available but suggested to the clergyman that, if he wished, he could sit in a room off the lobby all night. While sitting, Cook kept count as Newcomer admitted eighteen white arrivals to the hotel. At one point a white guest, learning of Cook's plight, offered to allow the clergyman to sleep on a spare bed in his room, but the hotel clerk would not allow it. A jury, instructed by a judge about the new law and offended by Newcomer's special cruelty to Cook, found the clerk guilty.

The case of a black woman named Green, who was put off a steamboat, exemplified how courts would use the emerging doctrine of "separate but equal." Green was on board the
City of Bridgeton,
traveling between Savannah, Georgia, and various points in Florida, and by her own account, she

demanded to ride in the same cabin with the white people and on the same deck, and demanded [the] same and equal accommodations which the white people enjoyed...[but] the purser insisted that if I did he would put me ashore at Doboy. He used no abusive language to me, with the exception of the tone of his voice, just as if I was a brute or something. He came to the passengers and collected the fare politely and turned to me and said, "Say, have you a ticket?" and I said "No, but here is the money." And he said, "Go downstairs, or I will put you off at Doboy."...I went ashore because I was afraid, from the way he spoke to me, that he would put me off, and having my nephew I was afraid one or the other of us would fall overboard.

The master of the steamboat later insisted that Green had been unruly and that when she went ashore at Doboy, she continued to holler at and threaten the purser, "daring him to come out on the wharf, saying what she would do with him." The woman and her nephew ended up waiting six hours for another boat so they could continue their trip.

When Green's case came before the federal district court judge John Erskine, he criticized any interpretation of the new law that would "put passengers in the same cabin or stateroom, who would be repulsive or disagreeable to each other." Better, he said, to prevent "contacts and collisions arising from natural and well known repugnancies," which might "breed disturbances where white and colored persons are huddled together without their consent." He pointed out that the Civil Rights Act did not forbid steamboat owners from regulating the business of their vessels "in such manner that the accommodations for colored passengers ... may be distinct and separate from those assigned to white passengers" and concluded that "the cabin and state rooms reserved for colored passengers on the
City of Bridgeton
were substantially equal" to those from which Green and her nephew were excluded.

The policy of providing "separate but equal" services and accommodations for blacks thus became a handy means of sidestepping the law without directly challenging its constitutionality. Still, the hypocrisy of the policy was evident even in its earliest applications. The "separate" facilities offered to blacks were almost always inferior and rarely "equal"; and although blacks were separated on the grounds that their presence was offensive to whites, loutish, drunken whites were never forcibly separated from well-behaved blacks.

In Baltimore, Judge William F. Giles articulated an objection to a civil rights case that foreshadowed the law's ultimate fate. On June 9, 1876, a group of twenty men and women of color were traveling from Rockville, Maryland, to Washington on their way home from a large black political meeting. After the conductor informed them they would have to ride in the smoking car, they brought suit against the Baltimore & Ohio Railroad. Judge Giles, citing both the
Slaughterhouse Cases
and
United States v. Cruikshank,
ruled that under the Fourteenth Amendment the federal government could punish only state actions that deprived citizens of certain rights, not the actions of individuals or businesses such as railroads. Congress, he declared, had no right to enforce penalties for violations of rights that belong to a citizen
as a citizen of a state,
and therefore the Civil Rights Act of 1875 was unconstitutional.

This was, in the eyes of many supporters of the new law, a willful misreading of the Fourteenth Amendment, an opinion more expressive of contemporary views than sympathetic to the goal of the amendment's authors, who had intended that it
would
reach individual, not state, acts of discrimination. As one advocate of the act inquired, "If the states are to be allowed through the corporation ... to trod upon the privileges of the negro, then where is the good from the amendment contemplated by its framers?" The hearings of the Congressional Joint Committee on Reconstruction, which informed the framing process, had showed clearly that most discrimination against blacks originated with individuals or businesses, not state governments or state agencies.

By 1877, only two years after the law's passage, its judicial history of complaints was already hopelessly scrambled, and the law's application limited. Several representative legal actions that had deadlocked in lower courts, ultimately known as
Civil Rights Cases,
were bundled and presented to the Supreme Court, where, it had been long believed, the law's many inconsistencies would find resolution.