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Butler closed the debate by praising Elliott's analysis of the constitutional points. He stated that while the Democrats conceded that Negroes had all the rights of the bill, "because of prejudice the States will not enforce them."148 Where states enforce the rights, the federal bili will remain inoperative, he noted, but where the states do not do their duty, the federal courts will intervene. The bill was then returned to the Judiciary Committee. 149

Several days later, a Negro congressman complained that he and his colleagues were not served in hotels, railroad cárs, and restaurants." January 17, 1874, Congressman Robert Hamilton, a New Jersey Democratic lawyer, stated that the bill was unconstitutional because “the Constitution does not act upon corporations or individuals; they are not prohibited from making a distinction between citizens in their relations with them, nor is any power given to Congress to enact laws upon that subject."151 After discussing the limited nature of the privileges and immunities clause of the Fourteenth Amendment, he ended with a long quotation from the Slaughter-House

160 On

Cases. 162

B. The Senate Resumes Its Consideration

Debate on Sumner's bill in the form in which it had been annexed to the amnesty bill began in the Senate on January 27, 1874. Senator Ferry's suggestion that the bill be referred to the Judiciary Committee, was opposed by Sumner who urged that it already had received extensive consideration in the Senate. He appealed for immediate consideration and adverted to the Declaration of Independence and to "the outrages to which the colored race are exposed ... in travel and at hotels."153 Ferry replied that the Sumner bill was unconstitutional.154

Edmunds, who had previously been a staunch supporter of Sumner, now arose to concur in the proposal that the bill be referred to the Judiciary Committee. While supporting equal rights, even he suggested that some of Sumner's drafts had been in excess of the constitutional power of Congress. Stewart of Nevada joined in these constitutional doubts.155 Both Edmunds and Stewart were Republicans who had voted for the fourteenth amendment. Frelinghuysen agreed that the bill should be referred, notwithstanding Sumner's objections, and Morrill of Maine joined in to renew his constitutional objections to Sumner's bill.166 Ultimately, the bill was referred to the Judiciary Committee.

148. Id. at 457. 149. Id. at 458.

150. Id. at 565-67 (remarks of Rep. Richard H. Cain). Restaurants were not included in the bill, which in itself is significant, since complaints were made of discrimination therein. However, there was no common-law duty to serve all people in a restaurant; hence although such discrimination was eenly felt, Congress felt it lacked constitutional power to alleviate it. See note 83 supra.

151. Id. at 741.
152. Id. at 741-42.
153. Id. at 946.
154. Ibid.
155. Id. at 947.

On March 11, 1874, Sumner died, leaving as his last request the passage of his civil rights bill.157 Frelinghuysen reported it from the Judiciary Committee in virtually unchanged form on April 29, and opened debate by finally narrowing its constitutional basis to the equal protection clause of the fourteenth amendment. He thrice declared that “this bill therefore properly secures equal rights to the white as well as to the colored race."'158 After denying that "social.equality" was involved, he explained :

This bill does not disturb any laws, whether statute or common, relating to the administration of inns, places of public amusement, schools, institutions of learning or benevolence, or cemeteries, supported in whole or in part by general taxation (and it is only to these that it applies), excepting to abrogate such laws as make discrimination on account of race, color, or previous servitude.

Inns, places of amusement, and public conveyances are established and maintained by private enterprise and capital, but bear that intimate relation to the public, appealing to and depending upon its patronage for support, that the law has for many centuries measurably regulated them, leaving at the same time a wide discretion as to their administration in their proprietors. This body of law and this discretion are not disturbed by this bill, except when the one or the other discriminates on account of race, color, or previous servitude.

As the capital invested in inns, places of amusements, and public conveyances is that of the proprietors, and as they alone can know what minute arrangements their business requires, the discretion as to the particular accommodation to be given to the guest, the traveler, and the visitor is quite wide. But as the employment these proprietors have selected touches the public, the law demands that the accommodation shall be good and suitable, and this bill adds to that requirement the condition that no person shall, in the regulation of these employments, be discriminated against merely because he is an American or an Irishman, a German or a colored man.

Next he turned to the constitutional question. He justified the bill under three licads: (1) the three post-Civil War amendments combined with recent history, (2) the privileges and immunities clause and (3) the equal protection clause of the fourteenth amendment. After quoting copiously from the Slaughter-House Cases, he said:


It will be claimed that it is not one of the privileges of a citizen of the United States to visit inns or theaters. ... that a State may prohibit them all. To that I agree. This bill does not say that a State shall afford any of these benefits to a citizen of the United States.

But it is one of the privileges of a citizen of the United States, as such, not to be discriminated against on account of race or color by

156. Id. at 949.
157. Id. at 4786 (remarks by Rep. Alonzo J. Ransier).
158. Id. at 3451.
159. Id. at 3452,

the law of a State relating to inns, schools, &c., or in the adminis-
tration of any institution depending upon the law of a State.160

Frelinghuysen then went on to declare that no state could make any discrimination in its laws against a class, whether such discrimination caused injustice or hardship or not, because this would violate the equal protection clause of the fourteenth amendment. He concluded that equal protection of the laws was a privilege likewise protected under the privileges and immunities clause. Therefore, he argued, although a state could change its laws as it sees proper in regard to inns, public conveyances and places of amusement, a state could not discriminate against any of its citizens. The remedy must be directed at business owners because:

We cannot deal with the States or with their officials to compel proper legislation and its enforcement; we can only deal with the offenders who violate the privileges and immunities of citizens of the United States. ... as you cannot reach the Legislatures, the injured party should have an original action in our Federal courts, so that by injunction or by the recovery of damages he could have relief against the party who under color of such law is guilty of infringing his


Thurman rose and stated that the bill was not only unconstitutional, but that it would oust the state courts of common-law jurisdiction. 162 Conkling, however, rebutted that the bill would merely give Negroes an alternative remedy.163 On May 20, Senator Daniel D. Pratt, an Indiana Republican lawyer, who supported the bill, affirmed that although under state law Negroes discriminated against would be entitled to civil action for damages, this bill provided “a more efficient remedy."181

Thurman then renewed his oft-repeated constitutional objections. He noted that, like other parts of the Constitution, the fourteenth amendment was directed only to the States, and not to private individuals. In response to questioning, he stated that Congress could enforce the amendment by providing judicial review of cases involving claims arising thereunder.166 The fourteenth amendment is directed to state laws, yet he objected the bill is aimed at the action of private individuals.166 In response to more questioning,

160. Id. at 3454.

161. Ibid. It is interesting to note that Section 4 of the bill punished state officers who discriminated in selecting people for jury duty. Id. at 3451. This provision was ultimately sound constitutional. See Ex parte Virginia, 100 U.S. 339 (1880). It is possible that Frelinghuysen might have either provided a remedy by way of punishing judges who discriminated, or appellate review in the federal courts in such cases. See Strauder v. West Virginia, 100 U.S. 303 (1880).

162. 2 CONG. Rec. 3455 (1874). 163. Id. at 3456. 164. Id. at 4082. 165. Id. at 4083-85. 166. Id. at 4085 : "No State shall make or enforce any Law which shall abridge the privileges or immunities of citizens of the United States.” Does this bill deal with any such

he declared that the Slaughter-House Cases had clearly shown that the federal privileges and immunities did not embrace the businesses in the bill.187

The next day, Morton of Indiana addressed himself to the argument urged by Thurman that Congress lacked power to pass the bill because the fourteenth amendment was directed only at state action. He pointed out that it was possible to enforce the amendment only by acting on individuals:

We cannot arrest or punish a State for the violation of this amendment, but we can punish any person who undertakes to violate the amendment under the cover of a State law. We (can) take from any official, from any person who undertakes under cover of State authority or under any pretense to violate the right of any pesson under this amendment, all protection and cover of the State law.168

The equal protection clause of the fourteenth amendment, he continued, meant that all persons must be given the equal benefit of the laws:

Every discrimination against the negro as a class is denying to them the equal protection of the laws. For example, if a State should pass a law forbidding to negroes the right to bring suits in court, to sue for debts, ... these things would be denying to them the equal protection of the laws. If the colored man has no right to bring a suit in court for the collection of a debt, a thing that does not pertain perhaps to his personal safety at all, yet it is denying to him the equal benefit, the equal protection of the laws. 189

Senator Augustus S. Merrimon, a North Carolina Democratic lawyer, asked Morton whether the right to attend a theater was one based on United States citizenship. Morton like nearly everyone else thought that theaters were legally open to all and answered in the affirmative.170 The fourteenth

law of a State? No, sir, it does not profess to do so. It is not aimed at any law of a State. It is aimed against the acts of individuals; it is aimed against keepers of theaters, keepers of circuses, keepers of hotels, managers of railroads, stagecoaches, and the like. There is not one single sentence in the whole bill which is leveled against any law made or enforced by a State. The Constitution says that no State shall make or enforce any such law. This bill says to a State "Although you do not make any such law, although you do not enforce any such law, although your law is directly the opposite, although you punish every man who does any one of the acts mentioned in this bill, and punish him ever so severely, yet the Congress of the United States will step in and under the clause of the Constitution which says that you, the State, shall not make or enforce any such law, we, the Federal power, will seize the man whom you have punished for this very act, and will punish him again; we will treat the keeper of a theater as the State; we will treat the hotelkeeper as the State; we will treat the railroad conductor as the State; we will treat the stage-driver as the State; and although you may have punished each and every one of these men for the very acts enumerated in this bill, we, under the pretense that the States do make or enforce a law which deprives a citizen of his equal privileges and immunities, will seize that citizen again and subject him to a double punishment for the offense for which he has already suffered." That is what this bill is; and no sophistry can make it anything else. 167. 2 CONG. Rec. 4087-88 (1874). 168. Id. at App. 358.

169. Id. at App. 359. This illustration was, of course, taken directly from the Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. $ 1981 (1964).

170. 2 CONG. Rec. App. 360 (1874). He stated :

amendment, Morton added, "prevents any State from making any odious discrimination against any class of people."171 He gave as an example a state law forbidding a colored man from entering railroad cars. He justified punishing private individuals on the theory that in discriminating they were acting under cover of such a law. To declare the law void would not punish the wrongdoer who was enforcing the state discriminatory law. Hence a penal offense against individuals was needed. He concluded that public conveyances were public institutions like schools or courts, to which all persons were equally entitled. 172

On the following day, Senator John P. Stockton, a New Jersey Democratic lawyer, who had been denied a seat in the 39th Congress, and was therefore not around to vote against the fourteenth amendment, agreed that the bill simply re-enacted the common-law rule as to carriers and inns. He specifically adverted to the fact that inns were licensed by the local courts, yet protested against any interference with the innkeeper's right to regulate his guests.174 After quoting copiously from the Slaughter-House Cases, he declared that "the whole operation of the [fourteenth] amendment ... is to prohibit State legislation from a certain kind of legislation, precisely as by the Constitution it is forbidden a State to pass an 'ex post facto law.' "176

Senator James L. Alcorn, a Mississippi Republican lawyer, justified including theaters in the bill because the theater is a licensed institution," and, interestingly enough, launched into an extended defense of the utility of theaters,176 Probably, this was a reaction to the prevalent notion that places of amusement were public nuisances, which should admit as few people as possible.177 He also defended inclusion of hotels, as necessary to the

173 and

A theater is a place of public amusement, licensed by law, carried 'on under the regulations according to which theaters or such places are generally conducted, and it is a place to which any decent, respectable, well-dressed person has a right to be admitted; and any discrimination against him on account of his color on the part of the State where that theater is located is a discrimination which that State is not allowed to make. So in regard to traveling in the stage-coach or upon the cars. If a State is at liberty to exclude a colored man from the cars on account of his color in traveling, then it has the power to make an odious discrimination because of race, the very thing that the fourteenth amendment intended to stamp out. 171. Id. at App. 360. 172, Id. at App. 360-61. 173. Id. at 4144. He said: The innkeeper, by the common law of England and by the common law of most of the States of this land, altered by statutes of the States ... but very slightly, goes to the county court; he proves that he has so many beds, accommodations for so many wayfarers, and he gets his license from the county court, with a recommendation from his neighbors and friends, to keep a wayside inn, wherein the weary traveler may rest. He is called upon every year to renew that license, for no man is authorized to keep a bar-room exclusively so on the highway; but he may keep a house of entertainment for those who are weary, for those who need it. Unless he agrees to do that, he cannot have a license. 174. Ibid. 175. Id, at 4146. 176. Id, at App. 305.

177. For some descriptions of opposition to theater in the United States, see Hewitt, THEATRE U.S.A. 46-47 (1959); 1 HORNBLOW, A HISTORY OF THE THEATRE IN AMERICA

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