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It is true that the Radicals were against segregation by state law, a point on which Sumner and Edmunds were particiularly vociferous. No doubt the Radical position was that this was a matter to be left to the business proprietor, and if the state should by statute decree such segregation it would be a degrading mark of inferiority. But it is equally clear that the Republican moderates and a few Radicals, as noted above, were not in agreement on this point, and the Radicals would never have been able to muster a two-thirds vote to put across their position in 1866.
Viewed historically, therefore, the majority decision in Plessy v. Ferguson by a group of judges all of whom were contemporaries of the Fourteenth Amendment's adoption 180 is an accurate reflection of the original limitations on the scope of that amendment. The dissent of Mr. Justice Harlan is a virtual model, on the other hand, of the Radical position. Indeed, his analogy to segregated sides of a street may well have been taken from one of Edmunds' speeches.18 Harlan made clear that he was concerned with segregation by law, and not voluntarily or by action of the railroad in putting separate coaches on the train, as long as no legal segregation was made necessary by state statute.18
While the Fourteenth Amendment does not prohibit states from segregating persons in public accommodations, in this author's view this is a matter which ought to be left to the discretion of the individual business proprietors, as the Radicals contemplated. Such a proprietor will doubtless arrange his customers so as to give the largest scope for individual convenience and freedom of choice and association. In public places, every person should have the fullest liberty to sit with others he finds compatible and avoid the company of those he finds distasteful. Restoration of the common-law rule by which the business proprietor and not the government determined this in accordance with the wishes of the customers will effectuate this end. Accordingly, although a state has the power to segregate persons by race or otherwise in public accommodations, in a modern society it would be highly inexpedient to exercise such power.
THE FOURTEENTH AMENDMENT AND REAL PROPERTY RIGHTS
(Charles C. Tansill,* Alfred Aving, ** Sam S. Crutchfield, *** and Kenneth W.
No consideration of anti-discrimination legislation in housing can be complete without an investigation of the original intent of the framers of the Fourteenth Amendment and its companion statute, the Civil Rights Act of 1866. These provisions, and particularly the latter statute, have been used not only in popular writings but even in judicial opinions : to support such legislation. The question of whether they do in fact support such legislation in light of the intention of the framers of these enactments has never been investigated. This article will seek to determine the original intent of the Congress which passed the Civil Rights Act of 1866 and the Fourteenth Amendment, in order to inquire what was sought to be accomplished by these measures as they affect real property rights.
186 163 U.S. 537 (1896).
• A.B. 1912, A.M. 1913, Ph.D. 1915, Catholic Univ. of America ; Ph.D. 1918, Johns Hopkins Univ. ; LL.D. 1949, Boston College. Asst. Prof. of American History, American Univ., 1919-21, Professor, 1921-1939; Albert Shaw Lecturer in Diplomacy, Johns Hopkins Univ., 1930–1Professor of American History, Fordham Univ., 1939-44; Professor of American History, Georgetown Univ., 1944-1961. Author: Pennsylvania and Maryland Boundary Controversy (1915); Canadian Reciprocity Treaty of 1854 (1921) ; Robert Smith (Secretary of State) (1927); The Purchase of the Danish West Indies (1931)); America Goes to War (1936); United States and Santo Domingo, 1798-1873 (1938); The Domestic Relations between the U.S. and Hawaii, 1885–89 (1940): The Foreign Policy of Thomas F. Bayard (1940); Major Issues in Canadian-American Relations (1943); The Congressional Career of Thomas F. Bayard (1946) ; Back Door to War (1952); America and the Fight for Irish Freedom (1958); Documents Illustrative of Formation of Union of American States (Sesquicentennial Memorial Document authorized by the Congress of the U.S. 1927); Proposed Amendments to the Constitution, 1889–1927 (1927). Copyright 1962, by Charles C. Tansill and Sam S. Crutchfield.
** B.A. 1954, Hunter College ; LL.B. 1956, Columbia Univ. ; LL.M. 1957, New York Univ. ; M.L. 1961, J.S.D. 1962, Univ. of Chicago. Member of the New York, Illinois. Florida, District of Columbia, and United States Supreme Court Bars. Former Special Deputy Atty. Gen. of New York. Author: The Law of AWOL. App. Atty., F.P.C. & N.L.R.B., 1958-60; Assistant Professor of Law, John Marshall Law School, 1960-1 ; Associate Professor of Law, Chicago-Kent College of Law, 1961-3.
*** B.A. 1960, LL.B. 1963, George Washington Univ. Member, D.C. Bar.
****A.B. 1909, State Univ. of Iowa; Ph. D. 1915, Harvard Univ. ; Litt.D. 1945, Columbia Univ. Professor of Political Science, Northwestern Univ., 1919–1952; Professor of Political Science, Queens College, 1953-4; Professor of Political Science, C.W. Post College of Long Island Univ., 1959-date. Member of Bd. of Personnel Examiners, U.S. Dept. of Labor, 1933. Cons. O.S.S., 1943–5, political cons. Gen. MacArthur Hdqrs., Allied Supreme Commander, Tokyo, 1946, with rank of brigadier general. Trustee, Upper Iowa Univ. Author: The American Senate and World Peace (1944); Democracy versus Communism (1957).
Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, now 42 U.S.C. & 1982.
1. Black Codes and Other Discrimination in Real Property in 1866 When the Thirty-Ninth Congress met in December, 1865, it was much preoccupied with the problem of the so-called "Black Codes" enacted by Southern legislatures, which were deemed or depicted in strong language by northerners as returning the newly freed Negro to the status of virtual slaves. Most attention was paid to vagrancy laws, which were depicted as outrageously harsh and unjust. However, restrictions on the right to contract, engage in business, or own real estate also attracted attention.
For example, Congressman M. Russell Thayer of Pennsylvania, a supporter of the Civil Rights Bill, declared that Southern states had enacted laws "which declare, for example, that (freemen) shall not have the privilege of purchasing a home for themselves and their families ; laws which impair their ability to make contracts for labor in such manner as virtually to deprive them of the power of making such contracts." Senator Lyman Trumbull of Illinois likewise declared that Southern laws "did not allow him to buy or sell, or to make contracts; that did not allow him to own property." Congressman William Windom of Minnesota told the House that "The State laws of Georgia and South Carolina prohibit any Negro from buying or leasing a home," and set forth in detail the effects of a similar Mississippi statute. And Congressman William Lawrence of Ohio concluded : "If States may deny to any class of our citizens the right to
N.Y. Times, Dec. 8, 1957, Real Estate, Sec. 8, p. 1, col. 8. 3 See Colorado Anti-Discrimination Comm. v. Case, P. 2d
(Colo. 1962), concurring opinion of Frantz, J.; Railway Mail Assn. r. Corsi, 326 U.S. 88, 98 (1945). Frankfurter, J., concurring.
• A full account of its activities of interest here is contained in Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights!, 2 Stan. L. Rev. 5 (1949) ; James The Framing of the Fourteenth Amendment (1956).
5 Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rer. 1, 13-14, n.35 (1955). See Cong. Globë, 39th Cong., 1st Sess. 39, 474 (1865) (hereinafter referred to as Globe), wherein Senator Lyman Trumbull (III.) said that Southern states discriminate against freemen in their statutes, "deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished." See also Globe, 603, 605, 744-5.
Globe 1123 (“Vagrant laws have been passed ; laws which, under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again"); 1124, 1151, 1153, 1160 ("In South Carolina and other states there are laws compelling the return of the freedman to his master under the name of employer, and allowing him to be whipped for insolence"); 1621, 1759.
7 Globe 1151. He also said: "Why should they be deprived of the right to make and enforce contracts of the right to inherit, purchase, lease, hold, and convey real and personal property ?" (Globe 1151) What kind of freedom is that under which a man may
be deprived of the ability to make a contract to sell or convey real or personal estate ; may be deprived of the liberty to engage in the ordinary pursuits of civilized life ?" (Globe 1152).
8 Globe 322. He also declared that Congress may "permit the colored man to contract. permit him to buy and sell."
.Globe 1160. He stated : "Lieutenant Stewart Eldridge writes to Major General Howard from Vicksburg, Mississippi, under date of November 28, 1865 : 'I have the honor to include herewith for your consideration the freedmen's bill, which has just become a law in this State, and would respectfully ask your attention to the following points thereon: Section first prohibits the holding, leasing, or renting of real estate by freedmen. Section five authorizes mayors and boards of police by their sole ediet to prevent any freedmen from doing any independent business and to compel them to labor as employees, with no appeal from such decision.' Colonel Samuel Thomas, assistant commissioner, writes from Jackson, Mississippi, concerning this same Mississippi freedmen's bill: 'The freedmen bill has become law. It does not allow freedmen to own or lease estate. Thousands of acres have been rented from owners of land by freedmen who expected that they would be allowed to cultivate land in this way. They are notified that they must give up their leases by citizens. What course must I pursue ?!" See also Globe 39, 1759. Congressman George Julian of Indiana stated: "Mississippi allows no negro living in any corporate town to lease or rent lands," Globe 3210. See infra, n.17.
make contracts, to own a homestead lit] may strip men of all that is valuable in life. . . ." 10
Southern states were not alone in restricting the rights of Negroes to own land or make contracts. The Indiana Constitution of 1851 provided as follows:
"Sec. 1. No Negro or mulatto shall come into or settle in the State after the adoption of this Constitution.
“Sec. 2. All contracts made with any Negro or mulatto coming into the State contrary to the provisions of the foregoing section shall be void; and every person who shall employ such Negro or mulatto or otherwise encourage him to remain in the State, shall be fined in any sum not less than ten dollars nor more than $500." 1 This provision was so often referred to during the debates in 1866,12 that Congressman William E. Niblack was moved to say: "Mr. Speaker, the Constitution and laws of Indiana relating to negroes and mulattoes have been so often referred to in the debates during the present session of Congress, and are so different from those of most, if not all, of the other northern states that I ... feel called upon ... to vindicate ... the policy which our people have seen proper to pursue.
Likewise, the Oregon Constitution of 1857 provided that “No free negro or mulatto, not residing in this state at the time of the adoption of this constitution, shall, reside, or be within this state, hold any real estate, or make any contracts, or maintain any suit thereon."
Thus, the Thirty-Ninth Congress was faced with state legislation which prohibited Negroes from buying or selling real estate, making contracts, or engaging in business. The problem was not one of forcing private individuals to deal with Negroes, but simply of removing state legislation which prohibited them from leasing or buying land from willing sellers. It was to this that Congress directed its attention.
II. The Freeman's Bureau Bill On January 5, 1866, Senator Trumbull introduced a bill to enlarge the powers of the Freedmen's Bureau. Section 7 provided : “That whenever, in any State or district in which the ordinary course of judicial proceeding has been interrupted by the rebellion, and wherein, in consequence of any State or local law . . . any of the civil rights or immunities belonging to white persons, including the right to make and enforce contracts, to sue, ... to inherit, purchase, lease, sell, hold, and convey real and personal property ... are refused or denied to negroes . . it shall be the duty of the President ... to extend military protection This bill was in a sense a successor to the one to secure equal rights proposed by Senator Henry Wilson of Massachusetts.That bill was urged by Wilson to "secure to these freemen the right to acquire and hold property, to enjoy the fruits of their own labor. These are among the natural rights of free
Trumbull agreed that “it is idle to say that a man is free . . . who cannot buy and sell, who cannot enforce his rights.” 18
10 Globe 1837. Cf. Globe 340, 1124, 1680. And Senator John B. Henderson of Missouri declared that the South denied freed Negroes "the right to hold real or personal property." Globe 3034. Testimony before the Joint Committee of Fifteen on Reconstruction tended to reinforce this view. One witness, a loyalist New Orleans attorney: upon being asked "What is the prevailing sentiment among the rebels in regard to allowing negroes to become landhoiders in the state ?” replied: "There is a very general opposition to that." Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 273 (1914). See also 276.
11. Ind. Const., Art. XIII (1851). It is interesting to note that the Supreme Court of Indiana held that the Civil Rights Act of 1866 overruled this provision. Smith r. Moody, 26 Ind. 299 (1866). 12 See, e.g., Globe 318, App. 158. 13 Globe 3211-2.
14 Ore. Const., Art. I, § 35 (1857). Illinois had an unrepealed constitutional provision prohibiting Negroes from coming into the state. Ill. Const., Art. 14 (1848). However, legislation effectuating it had been repealed. Globe 3038.
15 Globe 129. The Bureau had been created by the Act of March 3, 1865, c. 90, 13 Stat. 507.
16 Globe 318.
18 Globe 42. He also said: "I do not believe the Senator is in favor of that kind of freedom that turns the emancipated workingman out into the highway, then takes him up as a vagrant and makes a slave of him because he cannot get a home when they do not allow him to lease land or buy a humble home. They have enacted a law in the State of Mississippi that will not allow the black man to lease lands or to buy lands outside of the cities. Where in God's name is he to go ? They have enacted å law in the State of Louisiana that he must get a home in twenty days, and they will not sell him land or allow him to lease land. We must annul this; we must see to it that ... he can
work when and for whom he pleases that he can lease and buy and sell and own property, real and personal ; . : . who knows that his cabin, however humble. is protected by the just and equal laws of his country." Globe 111.
io Globe 43.
The Freemen's Bureau Bill was urged by Trumbull as a temporary expeident, a companion measure to the permanent Civil Rights Bill. He supported it as an enforcement of the Thirteenth Amendment, declaring that Congress had power to "declare null and void all laws which will not permit the colored man to contract . . . which will not permit him to buy and sell.” 20 Senator William Stewart of Nevada likewise supported the bill to give Negroes "a chance to hold property."
The Freemen's Bureau Bill never became law. The President vetoed it, and the Senate failed to override the veto.” However, the remarks made on its behalf are of significance in an understanding of the Civil Rights Act of 1866.
III. The Civil Rights Act of 1866 On January 29, 1866, before the House had acted on the Freemen's Bureau Bill, Senator Trumbull brought up in the Senate his Civil Rights Bill. Section 1 of this bill contained a provision very similar to that of Section 7 of the Freemen's Bureau Bill. It provided : "That there shall be no discrimination in the civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servi. tude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right 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 benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding."
The purpose of this bill, according to Trumbull, was to nullify state statutes in Southern states which denied Negroes "fundamental rights as belong to every free person.” These rights Trumbull found in court decisions interpreting the "privileges and immunities" clause of the United States Constitution. For example, he quoted one Maryland case interpreting this clause to include "the peculiar advantage of acquiring and holding real as well as personal property, and that such property should be protected and secured by the laws of the state in the same manner as the property of the citizens of the State is protected.” From a Massachusetts decision, he again gleaned the right to “take and hold real estate. But his greatest reliance was placed on the enumeration of rights in Corfield v. Coryell, including the right to acquire and possess property of every kind to take, hold, and dispose of property, either real or personal.
He concluded his objects to be to secure : The great fundamental rights set forth in this bill: the right to acquire prop erty ... to make contracts, and to inherit and dispose of property.
Here we may stop for a moment to analyze Trumbull's concept of the clause which gives citizens of one state the privileges and immunities of citizens of the several states. Absent this clause, residents of one state might be considered as mere aliens in another state, and hence disabled from acquiring, under English common law rules, real estate by inheritance, succession, or conveyance, but this clause removes the disability of sister-state residence, and permits residents of other states to hold property they might otherwise acquire.30 However, it
20 Globe 322, Cf. Globe 209. 21 Globe 298. 22 Globe 915–7, 943. 23 Globe 474. This was previously considered. See Globe 211. 24 U.S. Const., Art. IV, $ 2. 25 Globe 474, citing Campbell v. Morris. 3 Har. & McH. 535 (Md. 1797). 33 Globe 474, citing Abbott v. Bayley, 23 Mass. (6 Pick.) 89, 92, (1827). 276 Fed. Cas. 546, 551–2 (No. 3,230) (C.C. Pa. 1823). See also Globe App. 135. 293, 1835. This case was also referred to in the debate on the Fourteenth Amendment." See Globe 2765.
28 Globe 475. 2 Ibid.
He further noted : "A law that does not allow a colored person to hold property is certainly a law in violation of the rights of a freeman. .
30 Magill v. Brown, 16 Fed. Cas. 408, 428 (No. 8952) (C.C.E.D. Pa. 1833). The reference in Trumbull's quotation of Abbott v. Bayley, supra note 26, to the fact that "they shall not be deemed aliens, but may take and hold real estate," supports this view. Likewise, Senator Edgar Cowan of Pennsylvania observed : "but in so far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the State of Pennsylvania ; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that particular." Globe 2890.
has never been suggested that this clause gives residents of one state the right to compel residents of another to sell them land although the owners are unwilling to do so, even if this unwillingness stemmed from the owner's dislike of nonresidents. All the clause does is to sweep away state laws which forbid the sale or devise to non-residents, leaving the latter to obtain land only if the owner is willing to part with it. The use of this clause in urging the passage of the Civil Rights Bill shows that the latter was intended to have the same effect, and nothing in the debates detracts from this view.
The debates in both houses of Congress show that this was the undoubted intent of the proponents of the bill. Senator John Sherman of Ohio said "that these men must be protected in certain rights . to acquire and hold property, and other universal incidents of freedom." 31 And after the President's veto of the Civil Rights Bill, Trumbull again asserted "that certain fundamental rights belong to every American citizen as such, and among those are the rights ... to acquire property.”
Statements in the House are to the same effect. Congressman James F. Wilson of Iowa, manager of the Civil Rights Bill from the House Committee on the Judiciary, opened the debate in that body by defining "civil rights." He quoted from Kent, that civil rights were the absolute rights of individuals, including “the right to acquire and enjoy property," 33 and likewise quoted from the privileges and immunities clause of Article 4 of the Constitution and from Corfield v. Coryell. He asserted that "the entire structure of this bill rests on the discrimination ... made by the States." He emphatically disclaimed any intent to "deprive a white man of a single right to which he is entitled.” 35 And finally, Wilson returned to Kent as well as Blackstone to drive home his point that property rights were fundamental.*
Congressman Cook declared that the Civil Rights Bill would not touch or impair any rights of whites, but only prevent state discriminatory legislation. Congressman Thayer declared that "the sole purpose of the bill is to secure" to freemen "those rights which constitute the essence of freedom, and which are common to the citizens of all civilized States," rights "which are common to the humblest citizen of every free state,” the right “to make and enforce contracts" and the right "to inherit, purchase, lease, hold and convey real and personal property." Congressman Lawrence, in urging passage of the bill over the President's veto, reiterated its aim of annulling discriminatory state laws. And even the President, in his veto message, urged as an objection that the bill would
31 Globe 744. In opposing the bill, Senator Garrett Davis of Kentucky urged that "Some of the States deny to negroes the right to hold lands," and that the bill would overturn this. Globe 1415.
32 Globe 1781. Senator Edgar Cowan, a moderate Republican from Pennsylvania, agreed "that all men should have the right to contract, and generally to purchase, lease and hold real estate." Ibid. Cf. Globe, 1255.
33 Globe 1117.
* Ibid. He included : “The right of personal property; which he defines to be, 'The free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.' Sharwood's Blackstone, vol. 1, chap. 1. In his lecture on the absolute rights of persons, Chancellor Kent (Kent's Commentaries, vol. 1, page 599) says: "The absolute rights of individuals may be resolved into ... the right to acquire and enjoy property.'”.
37 Globe 1123–4. He had previously stated that "every individual citizen of each state in the union has rights in every other state the right to acquire, possess and dispose of property," and that those rights came from the United States Constitution and not from the States. Globe 899.
Globe 1151-2. *» Globe 1835, declaring that the federal government could intervene "if a State, by her laws, says to a whole class of native or naturalized citizens, 'You shall not buy a house or homestead to shelter your children within our borders ;' 'you shall have no right to sue in our courts or make contracts.' ” And Congressman Samuel Shellabarger of Ohio stated: “Who will say that Ohio can pass a law enacting that no man of the German race, and whom the United States has made a citizen of the United States, shall ever own any property in Ohio, or shall ever make a contract in Ohio, or ever inherit property in Ohio, or ever come into Ohio to live, or even to work? If Ohio may pass such a law, and exclude a German citizen, not because he is a bad man or has been guilty of crime, but because he is of the German nationality or race, then may every other state do so; and you have the spectacle of an American citizen admitted to all its high privileges, and entitled to the protection of bis government in each of these rights, and bound to surrender life and property for its defense, and yet that citizen is not entitled to either contract, inherit. own property, work, or live upon a single spot of the Republic, nor to breathe its air.” Globe 1294.