36

When the Thirty-Ninth Congress commenced the work of reconstruction with the Freedmen's Bureau Bill, 35 it was careful to give as much protection to loyal white southerners, known as "refugees," as it was to the newly liberated Negroes. The House was told that they were to be treated "exactly the same," and that they had "all the rights under this bill that the freedmen have.' Likewise, when Senator Garrett Davis, a Kentucky Democrat, complained that the Civil Rights Bill was partial to Negroes, Senator Lyman Trumbull, an Illinois Republican and a former state supreme court justice, who was in charge of the bill as Chairman of the Judiciary Committee, replied that "this bill applies to white men as well as black men," and that its "only object . . . is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man." 38 Trumbull also observed that not only did the Freedmen's Bureau Bill provide for white refugees, but that "we have been feeding more white persons than colored persons in some localities. . . .” 30 The Fourteenth Amendment was likewise designed to protect southern white loyalists. The following exchange between Representative Robert S. Hale, a Republican former judge from New York, and Bingham, shows this clearly:

"Mr. HALE. It is claimed that this constitutional amendment is aimed simply and purely toward the protection of 'American citizens of African descent' in the states lately in rebellion. I understand that to be the whole intended practical effect of the amendment."

"Mr. BINGHAM. It is due to the committee that I should say that it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment." "0

Shortly thereafter, in respect to South Carolina, Bingham urged the amendment "to protect the few loyal white men there against State statutes of confiscation and statutes of banishment." He observed that as the Constitution stood the federal government was powerless, once the southern states were restored, "to protect the loyal white minority." He added:

"Restore those States with a majority of rebels to political power, and they will cast their ballots to exclude from the protection of the laws every man who bore arms in defense of he Government. The loyal minority of white citizens and the disfranchised colored citizens will be utterly powerless. There is no efficient remedy for it without an amendment to your Constitution." "1 Congressman Giles W. Hotchkiss, a New York Republican lawyer, in urging that the intial draft of the Fourteenth Amendment's first section be redrafted, stated that he wanted to protect white persons as well as blacks."2

Representative John M. Broomall, a Radical Republican from Pennsylvania, also advocated protecting loyalists in mountain areas without "distinction of caste or color" who had been banished or imprisoned for standing against secession. Broomall adverted to the fact that the property of white southern loyalists had been seized and confiscated in state courts, and they "are denied remedy in the courts of the reconstructed South. . . ." Representative Thomas

35 A discussion of the debates in the first session of the Thirty-Ninth Congress which led to the Fourteenth Amendment is contained in Tansill, Avins, Crutchfield & Colegrove, The Fourteenth Amendment and Real Property Rights in Open Occupancy vs. Forced Housing Under the Fourteenth Amendment 68 (Avins ed. 1963).

The following colloquy occurred between Representatives Green C. Smith, a Kentucky Unionist, and Thomas D. Eliot, a Massachusetts Republican, who was in charge of the Freedman's Bureau Bill:

"Mr. SMITH. Then the word 'refugee' applies only to whites. I would inquire. . . if, under this law and under the operations of the Freedmen's Bureau, all white men who were not rebels and who were as poor as the negroes are entitled to the same privileges and the same protection that negroes are?

"Mr. ELIOT. The object of this bill is to place the refugees-that is to say the loyal white men who have fled from their homes because of the rebellion-upon the same footing with the freedmen as to the care and protection of the Government. that there is no distinction made in this bill between the rights of freedmen and of refugees under it. They are treated alike from the first to the last. 39 (1) Globe 516 (1866).

"Mr. ELIOT. I will say.

37 Ibid. (Rep. Eliot). See also id. at 632 (Rep. Moulton); 651 (Rep. Grinnell); 1262 (Rep. Broomall): 1292 (Rep. Bingham).

38 Id. at 599. See also id. at 1757.

20 Id. at 746. See also id. at 943.

40 Id. at 1065.

41 Id. at 1094.

See also Bingham's reference to statutes of banishment and confiscation

at pp. 1091 and 1093. 42 Id. at 1095.

T. Davis, a New York Republican, agreed with this object." Representative Samuel W. Moulton of Illinois warned that Union soldiers were being presecuted by rebels in the Kentucky courts, and that if the rebels regained power in the South they would persecute white unionists as well as freedmen in the South, confiscate their property, pass laws discriminating against them, and drive them out of the state or kill them. He added that such a process was already beginning."

A Pennsylvania Republican complained that Alabama had passed criminal laws severely punishing both white and black workers." Representative Buckland of Ohio declared "that the Government was bound to protect the rights of the loyal white people and the loyal colored people of the South. . . ."* Another Ohio Republican read letters and articles to the House describing how white loyalists in the South were being insulted and driven out."

47

Representative Sidney Perham, a Maine Republican, declared that the southern "policy is to render it so uncomfortable and hazardous for loyal men to live among them as to compel them to leave." He, too, recounted how the Kentucky courts were prosecuting Union soldiers and imprisoning them for acts done pursuant to military orders. He cited the Schurz report for the proposition that "if the military forces should be removed, it would be impossible for Union men, black or white, to remain there." Representative Ephraim R. Eckley, an Ohio Republican, added:

"The whole North is full of loyal refugees who do not dare return to their former homes. . . . Reject the amendment . . . and you must widen the asylum in the North for those southern people who have sympathy with the Government." Finally, the Joint Committee on Reconstruction, which reported out the Fourteenth Amendment, gave as a reason for it:

66

". . . without the protection of United States troops, Union men, whether of northern or southern origin, would be obliged to abandon their homes. . . the general feeling and disposition among all classes are yet totally averse to the toleration of any class of people friendly to the Union, be they white or black; ... Southern men who adhered to the Union are bitterly hated and relentlessly persecuted. . . . All such demonstrations show a state of feeling against which it is unmistakably necessary to guard." 50

151

Even after proposing the Fourteenth Amendment, Congress continued its criticism of southern states for "denying protection to the people who were true and loyal during the war. . . Representative Kasson of Iowa said that loyal men were being driven out of the South by violence, and that southern states should not be admitted to representation until "first they . . . take care that all free men, white or black, who adhere to the Government of the United States shall be protected as fully as one of their own class of citizens." 52 Senator Morton of Indiana declared that southern loyalists were murdered with impunity because the state governments "failed to extend protection to the loyal men, either white or black," and as a result the white majority was able to persecute "the loyal men, both white and black, in their midst. . . ." 53 Senator Timothy O. Howe, a Wisconsin Republican and a former state supreme court justice who had voted for the Fourteenth Amendment, declared that it was adopted because the Joint Committee on Reconstruction, after taking testimony,

"finally came to the conclusion that it would not be safe to commit these two populations, the loyal white men and the freedmen of those communities to the keeping of those governments unless some further restrictions were placed upon

47 Id. at 1835 (Rep. William Lawrence).

48 Id. at 2082-3. Representative Thaddeus Stevens of Pennsylvania, leader of the House Radical Republicans, thought that the Fourteenth Amendment does "not sufficiently protect the loyal men of the rebel States from the vindictive persecutions of their victorious rebel neighbors." Id. at 2460.

45 Id. at 2536. See also id. at 2537 (Rep. Beaman), 2539 (Rep. Farnsworth).

50 S. Rep. No. 112, 39th Cong. 1st Sess. 11-12 (1866). For discussion of this point during the debates on ratification, see Fairman, op. cit. supra, n. 21 at 90.

51 39 (2) Globe 128 (1866) (Sen. Sherman).

52 Id. at 346. See also discussion of hostility to loyal whites and their protection in H.R. Rep. No. 21, 40th Cong., 2nd Sess. 2 (1868); H.R. Rep. No. 30, 40th Cong., 2nd Sess. 5, 26 (1868).

53 40 (2) Globe 725 (1868).

the authority of the State governments than were placed by the Constitution as it then stood." 54

55

Senator William M. Stewart, a Nevada Republican lawyer, ascribed the Radical plan of reconstruction to the "denial of the rights of the black man and of the white Union man of the South" by the Johnson governments." An Oregon Republican declared that if the southern rebels had been left to themselves "they would have imposed upon the loyal white people of the South political burdens and disabilities for the purpose of gratifying their revengeful feelings. . . ." 58 It is obvious that the southern white unionists or loyalists were not being discriminated against based on race, color, or previous conditions of servitude. Discrimination against them was based on adherence to the national government, or political viewpoint. If the first section had been confined to racial discrimination, one of the major objects of congressional solicitude in submitting the Fourteenth Amendment would have been left out. It is therefore clear once again that if racial discrimination were deemed to have a special condemnation, under the Fourteenth Amendment, an important group, of equal concern with Negroes to the framers could not benefit from it. This is strong evidence that no such primacy was given to racial discrimination.

58

5. PROTECTION OF SOUTHERN REPUBLICANS

One of the three major statutes passed during the Reconstruction Period to enforce the Fourteenth Amendment, and especially the Equal Protection Clause, was the Ku Klux Klan Act of 1871." This statute was designed, not to bar racial discrimination, but to protect southern Republicans against politically inspired violence. White Republicans were as much covered as were black Republicans. Thus, Representative Horace Maynard, a Tennessee Republican, gave as the reason for the bill that "this Congress will be recreant to its duty if it stops short of making it just as safe anywhere in the country to vote the Republican ticket as it is to vote the Democratic ticket." Senator Morton of Indiana declared:

50

"the white people in many parts of the South who are Republicans, who are the friends of the Government, have no security for life or property in the State courts, and that the colored people, . . . because they, too, are Republicans, have no protection for life and property. I plead for the security and protection of these people, not because they are Republicans, but because they are human beings; because they are men and women entitled to the protection of the laws; and I call upon all men, without regard to party, . . . to give to the citizens of the United States, whatever may be their political views, the equal protection of the laws."

"We are not at liberty to doubt that the purpose is by these innumerable and nameless crimes to drive those who are supporting the Republican party to abandon their political faith or flee from the State. A single murder of a leading Republican will terrify a whole neighborhood or county.'

Senator Daniel D. Pratt, an Indiana Republican lawyer, made a lengthy argument to demonstrate that the Equal Protection Clause gave as much protection to white persons discriminated against on account of their politics as it did to Negroes discriminated against because of race. He observed that southern courts were virtually closed "when a man of known Union sentiments, white or black,

Id. at 883. See also id. at app. 113 (Sen. Sumner and Morrill of Maine). Representative Burton C. Cook, an Illinois Republican lawyer, likewise asserted: "It is also manifest the white Union men of the southern States who risked so much and suffered so much for their devotion to the country would be left in the power of their enemies, receiving no measure of protection . . ." Id. at 2402.

55 Id. at 2898.

58 40 (3) Globe 900 (1869) (Sen. George H. Williams).

57 17 Stat. 13. Ch. 22.

58 42 (1) Globe app. 412-4 (1871) (Rep. Ellis H. Roberts, N.Y.).

59 Id. at app. 310.

Id. at app. 251-2.

Republican, observed:

See also id. at 702, where Senator George F. Edmunds, a Vermont

The disorders in the South are not like the disorders in many other States, where there always are disorders, the results of private malice. The slaying of men there, as a rule is but one step in the progress of a systematic plan and an ulterior purpose, and that is not to leave in any of those States a brave white man who dares to be a Repub lican or a colored man who dares to be a voter. The one is to be expelled or slain and the other is to be reduced to what they consider to be his normal condition." Senator Allen G. Thurman, an Ohio Democrat, id. at app. 219.

invokes their aid." " He added that the first section of the Fourteenth Amendment, "by way of limitation upon the power of the States, applies equally to both races . . . whether Caucasian, African, or Asiatic in origin." He observed: "If protection is guaranteed to the African, it is also to the Chinaman if naturalized; and what warrant have we to claim that the whites alone are excluded?" 62

Senator George F. Edmunds, a Vermont Republican lawyer in charge of the bill for the Judiciary Committee, observed that a refusal of a state to protect a man because he was a Democrat, a Catholic, a Methodist, or a native of Vermont, would constitute a denial of equal protection of the laws within the meaning of the Fourteenth Amendment. Edmunds remarked:

63

"But when you . . . come to the next [fourteenth] article of the Constitution, which secures the rights of white men as much as of colored men, you touch a tender spot in the party of our friends on the other side. If you wish to employ the powers of the Constitution to preserve the lives and liberties of white people against attacks by white people . . . contrived in order to drive them from the States in which they have been born or have chosen to settle, contrived in order to deprive them of the liberty of having a political opinion . . . then the whole strength of the Democratic party and all its allies is arrayed against ... such an act." "

Senator Lyman Trumbull, an Illinois Republican and chairman of the Senate Judiciary Committee, observed in criticizing one of the drafts of the bill:

"Now, there is nothing in the [Fourteenth Amendment of the] Constitution of the United States in regard to race, color, or previous condition of servitude' that I am aware of. The Constitution of the United States guarantees to all citizens the equal right of protection wherever they are, and guarantees the equal protection of the laws to all persons, whether they are citizens or not.... Now, if you can punish persons for doing an injury to a man because he is white, or because he is black, or because he is yellow, why can you not punish him for an injury done to a man because he is regarded as a mean man, because the community do not like him, because he is an unpopular man?" Representative Charles W. Willard, a Vermont Republican lawyer, likewise declared, in criticizing another section as it was originally drafted:

"But no man is guaranteed by the Constitution, on account of his race, color, or previous condition of servitude, the enjoyment of any more rights than every citizen has by that instrument the guaranty of. The Constitution holds over no man any additional shield on account of his birth-place, or parentage, or previous condition. . . . That instrument gives him as a citizen no rights which it does not give to me or any other man. It gives him as a citizen no rights which are not given to white and black alike. Alike they are entitled to the equal protection of the laws, . . . The Constitution now calls them all citizens, and gives to all the protection which it gives to any citizen; and it is the most patent inequality and injustice to give Irishmen or Chinamen or colored men a remedy against a county, and in the United States courts, when a white native citizen can only have his remedy against individuals and in the State courts.

"It is true that a person may suffer this damage by reason of his previous condition of servitude. .. but every offense has something peculiar in its character, and which constitutes the motive for its commission against that particular individual. But the life of a colored person, the house of a colored person are no more under the peculiar protection of the United States than the life and property of citizens of different complexions; and where the guarantee is the same it is clear that the remedy must be the same. When we have just got rid... by the amendment to the Constitution, of the inequality, . . . let us

1 Id. at 505.

62 Id. at 506.

63 Id. at 567,

04 Id. at 696.

See also the somewhat humorous remarks of Senator Allen G. Thurman, an Ohio Democrat, id. at app. 219.

85 Id. at 758. Trumbull also observed:

66

if you can punish an offense committed against a man because he is white or because he is black, . . . if you can punish a mob for getting up a riot and driving a man off on that account, I want to know if you cannot punish a mob for injuring a person for any cause that may be conceived of, because they want a man's property, because they want him out of the community, because they are 'Regulators,' as they had in Nevada some time ago. . ." Id. at 759.

not now begin to go over to the other side and give greater rights and more effectual remedies to one man than to another, to one class of men than to another, to one race of men than to another. Of course, I deny that we have any constitutional power to do this; but I . . . confine my remarks mainly to a consideration of the injustice of the legislation. . . . I believe a black man is just as good as a white man . . . and while I would give to him the same rights and the same protection which I would give to any one, I would not give him any greater rights or any higher remedies than are allowed to other citizens... we must [not] make him an exceptional and favored class in the administration of our laws." 66

It is quite clear that southern white Republicans, at least, were not being discriminated against on account of race or color, and if the Equal Protection Clause were limited, in whole or in part, to preventing such discrimination, there would have been no legal basis for protecting them under that clause. But such was not the understanding of the framers of the Fourteenth Amendment. They were loud in their assertions that discrimination based on race or color was not entitled to be more guarded against than political discrimination or any other form of discrimination. In their eyes, everyone was entitled to the same protection, whether the discrimination was based on race, color, religion, birthplace, politics, personal traits, or any other ground.

6. PROTECTION OF ALIENS AND CHINESE

68

Discrimination by law against Chinese on the West Coast, which was deemed in legal theory to be based on nativity rather than race," was extensive during the Reconstruction Period. The California courts would not permit them to be witnesses," as a result of which they received no protection from legal authorities against robbery or other crimes committed on them by white persons."

70

Discrimination against aliens or travelers in respect to natural or "civil" rights was contrary to Bingham's ideals as they were set forth in some of his earliest speeches. In 1859, even before the Civil War, he declared "that natural or inherent rights" were guaranteed by the Fifth Amendment's use of "the broad and comprehensive word 'person,' as contra-distinguished from the limited term citizen," so that the "natural rights to all persons, whether citizens or strangers, may not be infringed. . . ."" In introducing his first draft of what was later to become the Equal Protection Clause, Bingham declared that "the divinest feature of your Constitution is the recognition of the absolute equality before the law of all persons, whether citizens or strangers. ." 72 Indeed Bingham was sharp in his criticism of the Civil Rights Act of 1866 " for protecting only citizens and not all persons in their civil rights." It can hardly be doubted that the differences

60 Id. at 791.

7 41 (2) Globe 4275 (1870) (Rep. Sargent), 4278 (Rep. Fitch).

es See 39 (1) Globe 628 (1866) (Rep. Marshall); id. at 1056 (Rep. Higby); 40 (3) Globe 1033-4 (1869) (Sen. Morton); 41(2) Globe 3807-8 (1870) (Sen. Stewart); 42 (2) Globe 898 (1872) (Sen. Corbett): 901 (Sen. Trumbull), 912 (Sen. Stevenson), 985 (Sen. Sumner); 43 (2) Globe 1794 (1875) (Sen. Thurman).

41(3) Globe 1253 (1871) (Sen. Morton). See People v. Washington, 36 Cal. 658 (1869); Speer v. See Yup Co., 13 Cal. 73 (1859); People v. Hall, 4 Cal. 399 (1854). 39 (1) Globe 2892 (1866) (Sen. Conness).

35(2) Globe 983 (1859). See also 42 (1) Globe app. 314 (1871), where Representative Horatio C. Burchard, an Illinois Republican lawyer, referred to "those inalienable rights that belong to every human being everywhere, and in the enjoyment of which the stranger as well as the citizen is protected by every free Government."

12 39 (1) Globe 158 (1866). See also id. at 1094.

73 14 Stat. 27 (1866).

4 39 (1) Globe 1292 (1866). Bingham declared:

are we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates? Do we not thereby declare the States may discriminate in the administration of justice for the protection of life against the stranger irrespective of race or color? "Sir, that is forbidden by the Constitution of your country. The great men who made that instrument. inserted the more comprehensive words. 'no person;' thereby obeying that higher law given by a voice out of heaven: 'Ye shall have the same law for the stranger as for one of your own country'

"This bill, sir departs from that great law. The alien is not a citizen. You propose to enact this law, you say, in the interests of the freedmen. But do you propose to allow these discriminations to be made in States against the alien and stranger? Can such legislation be sustained by reason or conscience? ... Is it not as unjust as the unjust State legislation you seek to remedy? Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law."