traveler, and because they were licensed and bonded to serve all.178

In an all-night session which followed, one Democrat declared that the rights in the bill were not privileges of federal citizenship protected by the fourteenth amendment,179 while another prophesied: "If this bill shall pass, I do not doubt that that court [United States Supreme Court] when the appropriate time comes, will declare that it is void."180

With the Republicans still unwilling to adjourn at 1:30 a.m.,181 Senator William T. Hamilton, a Maryland Democratic lawyer, launched into a lengthy speech. He first stated that the fourteenth amendment gave Congress no power to regulate proprietors of businesses. Then after commenting at length on the vagueness of the term "other places of public amusement" in the statute,182 Hamilton turned his attention to the legal status of inns:

Those peculiar legal characteristics of inns arose when countries were sparsely settled and when it was important that responsible individuals should at all times be prepared to receive the traveler, a stranger, weary and distant from home it may be.183

But, he said, inns no longer receive any grant from the government and any one had a right to establish an inn. Licenses were no longer intended as a privilege, but merely for taxation.184 He then declared:

So far as I am concerned, in reference to inns, I would brush away all the old common-law notions that attached to them hundreds of years ago and that gave to the books pages upon pages of law. The old common-law rights and responsibilities of innkeepers, while still in the law good and applicable, is being practically discarded every day; so that there is hardly a case known in the books at this day in which the responsibility of innkeepers has been involved in any suit for not receiving guests, except it may be under the kind of legislation now here attempted in this bill. It is a thing of the past; and if this bill is passed the States ought to change the common-law rule and put inns on the same footing with other common branches of business. Competition is the ruling spirit everywhere, and innkeepers and hotel-keepers now are only too anxious to get guests.1

185

23-26, 131, 226-27, 233-34 (1919); HUGHES, A HISTORY OF THE AMERICAN THEATRE 3, 11, 34 (1951). Note the indictment in Commonwealth v. Twitchell, 58 Mass. (4 Cush.) 74, 75 (1849), which accused the defendant of establishing an unlicensed theatre "to the great encouragement of dissipation and idleness." Cf. Downing v. Blanchard, 12 Wend. 383, 385 (N.Y. Sup. Ct. 1834), which stated: "People are called away from their regular business-they spend their time to no purpose, and their money foolishly, if not viciously." 178. 2 CONG. REC. App. 305 (1874).

179. Id. at 4162-64 (remarks by Sen. James K. Kelley).

180. Id. at App. 315 (remarks by Sen. Augustus S. Merrimon).

181. Id. at 4166.

182. Id. at App. 361-62.

183. Id. at App. 362.

184. Id. at App. 363:

I can do all these things; I am entitled to do all these things by virtue of my natural rights; and when gentlemen assert that a license is a privilege, it is a great error in language and in fact. A license is a tax instead of a privilege; it is a restriction, instead of a grant. I have a right to do these things, and Government interposes to restrict my right either for the purposes of revenue or otherwise.

185. 2 CONG. REC. App. 363 (1874).

Hamilton then read from Tidswell's Innkeeper's Legal Guide to the effect that under common law, inns could restrict themselves to various classes of people, and he accused the majority of changing the common law. He stated that Negroes could establish their own inns, and that some of them already had inns to which other colored people could go. He stated that there was no logical basis for limiting the bill to inns, and that eating-houses, grocery stores, shoemakers, tailors, and butchers were even more necessary for colored people than inns, yet the bill excluded them. Owners of houses and tenements who advertised to rent them could turn away Negroes, he noted, but only inns were singled out.186

As for theaters, Hamilton said that they were not necessities. A theater was licensed "because at one time it became so licentious in the opinion of moralists of the day that it was thought to be necessary to make theaters the subject of legislation.....They were at that day and are still discouraged and discountenanced by a great many people who think no good of them."187 Many churchgoers would like to outlaw theaters, he stated, and Negroes would do well to spend their money in more useful ways. Commenting that places of amusement would not fall under the bill unless licensed, he declared:

True it must have generally a license to exhibit. The license, however, is intended for revenue to the State, not to add to the natural right to follow a lawful calling. The honorable Senator from New Jersey in his speech has impliedly if not directly said that because a theater is licensed by the State, it is therefore a public institution and has its being given to it, and being a public institution and existing by virtue of State authority the United States can embrace it in its legislation under the fourteenth amendment.

Not so; they are no less private enterprises because they may be taxed or licensed, and especially when licensed for the purposes of revenue.188

Finally, at the end of a twenty-hour session, the Senate passed the bill by. a vote of 29 to 16. The affirmative votes were all cast by Republicans. Three Republicans, from Virginia, West Virginia and Wisconsin, and all the Democrats, voted in the negative.189

V. THE FInal Debates AND ENACTMENT

In the elections of 1874, the Republican Party suffered a political hemorrhage. While holdovers kept the Senate Republican by a much reduced margin, the Democratic Party gained a landslide victory in the House, in part due to public antipathy towards the civil rights bill.100 Even Butler lost his seat in normally Republican Massachusetts, 191

186. Id. at App. 363-64.

187. Id. at App. 364.

188. Id. at App. 365.

189. Id. at 4176.

190. 3 CONG. REC. 951, 952, 978, 982, 1001 (1875); id. at App. 17, 20, 113. 191. TREFOUSSE, BEN BUTLER 230 (1957).

When the "lame duck" Second Session of the Forty-Third Congress met in the early part of 1875, Butler and Congressman Lawrence, the Republican ex-judge from Ohio, engaged in the following colloquy during the course of the debate on the civil rights bill as revised by the House Judiciary Committee: Mr. LAWRENCE. This bill, as I understand it, adopts as to public inns precisely the rule of the common law.

Mr. BUTLER.... Not only as to public inns, but in every other of its provisions the bill adopts precisely the rule of the common law. Mr. LAWRENCE. And the bill is necessary because the common law has been changed by local statutes.

Mr. BUTLER.... The bill is necessary because. [of] prejudice, 192

...

Congressman William E. Niblack, an Indiana Democratic lawyer who had voted against the fourteenth amendment, asked Butler why the bill was needed, if there was a common-law remedy. The latter replied that Negroes lacked funds to carry on a lawsuit, and that southern state judges would not give Negroes their rights under the law. 193

Congressman William E. Finck, an Ohio Democrat who had voted against the fourteenth amendment, declared that its first section was a "command directed against the States in their organization as States," and did not authorize the federal government to regulate hotels, carriers, theaters, and schools.194 He quoted copiously from the Slaughter-House Cases, and concluded that since the bill was not aimed at states, but at businesses, it was beyond Congress' power. 195 Another Democrat also stated that the bill was unnecessary because Negroes had common-law protection, and denied that state judges would not give them equal justice.196 A Negro Republican from the South objected that common-law remedies were too "general."197

The last word of the evening came from Congressman J. Ambler Smith, a Virginia Republican lawyer but an opponent of the bill. After quoting from the Slaughter-House Cases, he declared that the bill violated the private property rights of business proprietors, and that even the states therefore could not pass anti-discrimination laws. He quoted from the decision of an Ohio court that theaters could exclude whomever they pleased.198

The next day, February 4, 1875, the last day of House debate, Congressman Robert S. Hale, a Republican former judge from New York, who had served with Finck in the 39th Congress, and had participated actively in the debates on the fourteenth amendment,199 arose to rebut Finck. Hale com

192. 3 CONG. REC. 940 (1875).

193. Ibid.

194. Id. at 947.

195. Id. at 949.

196. Id. at 952-53.

197. Id. at 959.

198. Id. at App. 156-57.

199. Tansill, Avins, Crutchfield & Colegrove, The Fourteenth Amendment and Real

menced by stating that, alone among Republicans, he had voted against the fourteenth amendment 200 because it gave Congress additional power to legislate not found in any prior amendment except the thirteenth amendment.201 That additional power was the power to enforce the last sentence of the first section of the fourteenth amendment, which power he did not deem limited to the correction of state laws. In the course of his argument he was interrupted by Congressman Lucius Q. C. Lamar, a Mississippi Democratic lawyer, and later a United States Supreme Court Justice, as follows:

Again, sir, suppose it were true that Congress was to be limited to rectifying abuses by State legislation, does any gentleman upon that side of the House or upon this deny that to-day State after State of the South does live under laws which are inconsistent with the fourteenth amendment; that practices are there permitted which are in violation of the fourteenth amendment? And if that be so, then cannot Congress interfere by a general law to overrule State legislation?

Mr. LAMAR. I ask the gentleman if he will indicate what legislation of what State violates the provisions of the fourteenth amendment?

Mr. HALE, of New York. I am unable to indicate it at present; but I did not suppose any gentleman disputed it.

Mr. LAMAR. I do dispute it.

Mr. HALE, of New York. I supposed it was a matter of absolute notoriety. I never heard it questioned before, and I did not suppose any gentleman would question it. I do not propose to put my finger on the particular statute.

Mr. LAMAR. I assure the gentleman from New York that if there exists in the entire range of all the statutes of all the States in the South one single act, one single provision of law inconsistent with any of the principles or provisions of any of the amendments to the Federal Constitution I am like himself ignorant of the existence of such provision.

Furthermore, I say, sir, to him that throughout the length and breadth of the southern section there does not exist in law one single trace of privilege or of discrimination against the black race. If there is, I know nothing of it.

Mr. HALE, of New York. Now, let me ask the gentleman whether under the laws of the State of Mississippi it is possible for a colored man to travel over the railroads or in any other public conveyances in that State with the same facilities and the same conveniences that a white man may travel?

Mr. LAMAR. I answer my friend from New York with all the emphasis that I can give, that they do travel precisely with the same facilities and with the same conveniences, and a great many more as there are more of them, than the white people of Mississippi.

Property Rights, in OPEN OCCUPANCY VS. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT 77-79 (Avins ed. 1963).

200. Hale did not vote, and is not recorded as having been paired on the vote, when the fourteenth amendment first passed the House. CONG. GLOBE, 39th Cong., 1st Sess. 2545 (1866). After it was returned with a modification from the Senate, he voted for it on final passage. Id. at 3149. Finck voted against it both times.

201. 3 CONG. REC. 979 (1875).

Mr. HALE, of New York. Then, Mr. Speaker, the State of Mississippi is indeed an exception to the general rule. I am through, Mr. Speaker.

Mr. McKEE. Let me say that my colleague is correct. In Mississippi, under the laws and under the constitution-republican laws and republican constitution-the colored man has the same rights that a white man has. My colleague is legally correct, but practically my colleague is mistaken. I refer to the treatment of colored people on steamboats, in hotels, theaters, etc.

Mr. LAMAR. Practically my colleague is mistaken, and legally

also.202

Congressman Ellis H. Roberts, a Republican newspaper editor from New York, interjected that he did not see any point to the colloquy as to whether state legislation guaranteed common-law rights when Negroes were in fact denied those rights. On this basis, he supported the legislation.203 Congressman Alexander White, an Alabama lawyer, attacked the Democrats' opposition to federal action, claiming that the alternative was to "leave such rights to the State courts, with the common-law remedy, which would be tantamount to no right and no remedy."204 The bill sustained yet another Democratic attack, using the Slaughter-House Cases as ammunition.205 A Michigan Republican added that the bill was designed to prohibit exclusion from carriers, inns and theaters because of color.206 Congressman William W. Phelps, a New Jersey Republican lawyer but an opponent of the bill, declared:

Take again your provision for inns. Exact this, and you build upon a foundation which once existed, but which for years has been torn away. Governments used to give especial privileges and monopolies to the inn-keeper, and then the government in proper reciprocity had a right to impose obligations and duties... the reason of the law that used to govern them failing, the law itself fails. We no longer give to inn-keepers especial privileges-any monopoly in the business; we cannot therefore burden their business with any restrictions. Therefore I claim that an enlightened court will refuse to enforce the provisions.207

Phelps predicted that inns would be closed if the bill were passed. And Congressman James A. Garfield, an Ohio Republican lawyer who had voted for the fourteenth amendment, and who later would become the President, noted that the bill "is a declaration that every citizen of the United States shall be entitled to the equal enjoyment of all those public chartered privileges granted under State laws."208

202. Id. at 980. Congressman George C. McKee, who interjected the comment, was a Mississippi Republican lawyer. When cases arose under the federal statute, the courts, of course, found no state discriminatory laws. See United States v. Washington, 20 Fed. 630 (C.C.W.D. Tex. 1883); Smoot v. Kentucky Cent. Ry. Co., 13 Fed. 337 (C.C.D. Ky. 1882); Charge to Grand Jury, 30 Fed. Cas. 999 (No. 18,258) (C.C.W.D.N.C. 1875). 203. 3 CONG. REC. 980 (1875).

204. Id. at App. 15.

205. Id. at 996.

206. Id. at 999 (Remarks of Rep. Julius C. Burrows).

207. Id. at 1002.

208. Id. at 1005.