Reconstruction

by Brooks D. Simpson

  What were these Slaughter-house cases? The gentleman should be aware that a decision of any court should be examined in the light of the exact question which is brought before it for decision. That is all that gives authority to any decision.

  The State of Louisiana, by act of her Legislature, had conferred on certain persons the exclusive right to maintain stock-landings and slaughter-houses within the city of New Orleans, or the parishes of Orleans, Jefferson, and Saint Bernard, in that State. The corporation which was thereby chartered were invested with the sole and exclusive privilege of conducting and carrying on the live-stock, landing, and slaughter-house business within the limits designated.

  The supreme court of Louisiana sustained the validity of the act conferring these exclusive privileges, and the plaintiffs in error brought the case before the Supreme Court of the United States for review. The plaintiffs in error contended that the act in question was void, because, first, it established a monopoly which was in derogation of common right and in contravention of the common law; and, second, that the grant of such exclusive privileges was in violation of the thirteenth and fourteenth amendments of the Constitution of the United States.

  It thus appears from a simple statement of the case that the question which was before the court was not whether a State law which denied to a particular portion of her citizens the rights conferred on her citizens generally, on account of race, color, or previous condition of servitude, was unconstitutional because in conflict with the recent amendments, but whether an act which conferred on certain citizens exclusive privileges for police purposes was in conflict therewith, because imposing an involuntary servitude forbidden by the thirteenth amendment, or abridging the rights and immunities of citizens of the United States, or denying the equal protection of the laws, prohibited by the fourteenth amendment.

  On the part of the defendants in error it was maintained that the act was the exercise of the ordinary and unquestionable power of the State to make regulation for the health and comfort of society—the exercise of the police power of the State, defined by Chancellor Kent to be “the right to interdict unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead in the midst of dense masses of population, on the general and rational principle that every person ought so to use his own property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community.”

  The decision of the Supreme Court is to be found in the 16th volume of Wallace’s Reports, and was delivered by Associate Justice Miller. The court hold, first, that the act in question is a legitimate and warrantable exercise of the police power of the State in regulating the business of stock-landing and slaughtering in the city of New Orleans and the territory immediately contiguous. Having held this, the court proceeds to discuss the question whether the conferring of exclusive privileges, such as those conferred by the act in question, is the imposing of an involuntary servitude, the abridging of the rights and immunities of citizens of the United States, or the denial to any person within the jurisdiction of the State of the equal protection of the laws.

  That the act is not the imposition of an involuntary servitude the court hold to be clear, and they next proceed to examine the remaining questions arising under the fourteenth amendment. Upon this question the court hold that the leading and comprehensive purpose of the thirteenth, fourteenth, and fifteenth amendments was to secure the complete freedom of the race, which, by the events of the war, had been wrested from the ­unwilling grasp of their owners. I know no finer or more just picture, albeit painted in the neutral tints of true judicial impartiality, of the motives and events which led to these amendments. Has the gentleman from Kentucky read these passages which I now quote? Or has the gentleman from Georgia considered well the force of the language therein used? Says the court on page 70:

  The process of restoring to their proper relations with the Federal Government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal Government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal Government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

  They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil, without the right to purchase or own it. They were excluded from any occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.

  These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal Government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the Government of the Union the States which had been in insurrection until they ratified that article by a formal vote of their legislative bodies.

  Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.

  Hence the fifteenth amendment, which declares that “the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

  We repeat, then, in the light of this recapitulation of events almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested: we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment in terms mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances
of that race, and designed to remedy them, as the fifteenth.

  These amendments, one and all, are thus declared to have as their all-pervading design and end the security to the recently enslaved race, not only their nominal freedom, but their complete protection from those who had formerly exercised unlimited dominion over them. It is in this broad light that all these amendments must be read, the purpose to secure the perfect equality before the law of all citizens of the United States. What you give to one class you must give to all; what you deny to one class you shall deny to all, unless in the exercise of the common and universal police power of the State you find it needful to confer exclusive privileges on certain citizens, to be held and exercised still for the common good of all.

  Such are the doctrines of the Slaughter-house cases—doctrines worthy of the Republic, worthy of the age, worthy of the great tribunal which thus loftily and impressively enunciates them. Do they—I put it to any man, be he lawyer or not; I put it to the gentleman from Georgia—do they give color even to the claim that this Congress may not now legislate against a plain discrimination made by State laws or State customs against that very race for whose complete freedom and protection these great amendments were elaborated and adopted? Is it pretended, I ask the honorable gentleman from Kentucky or the honorable gentleman from Georgia—is it pretended anywhere that the evils of which we complain, our exclusion from the public inn, from the saloon and table of the steamboat, from the sleeping-coach on the railway, from the right of sepulture in the public burial-ground, are an exercise of the police power of the State? Is such oppression and injustice nothing but the exercise by the State of the right to make regulations for the health, comfort, and security of all her citizens? Is it merely ­enacting that one man shall so use his own as not to injure another’s? Are the colored race to be assimilated to an unwholesome trade or to combustible materials, to be interdicted, to be shut up within prescribed limits? Let the gentleman from Kentucky or the gentleman from Georgia answer. Let the country know to what extent even the audacious prejudice of the gentleman from Kentucky will drive him, and how far even the gentleman from Georgia will permit himself to be led captive by the unrighteous teachings of a false political faith.

  If we are to be likened in legal view to “unwholesome trades,” to “large and offensive collections of animals,” to “noxious slaughter-houses,” to “the offal and stench which attend on certain manufactures,” let it be avowed. If that is still the doctrine of the political party to which the gentlemen belong, let it be put upon record. If State laws which deny us the common rights and privileges of other citizens, upon no possible or conceivable ground save one of prejudice, or of “taste,” as the gentleman from Texas termed it, and as I suppose the gentlemen will prefer to call it, are to be placed under the protection of a decision which affirms the right of a State to regulate the police of her great cities, then the decision is in conflict with the bill before us. No man will dare maintain such a doctrine. It is as shocking to the legal mind as it is offensive to the heart and conscience of all who love justice or respect manhood. I am astonished that the gentleman from Kentucky or the gentleman from Georgia should have been so grossly misled as to rise here and assert that the decision of the Supreme Court in these cases was a denial to Congress of the power to legislate against discriminations on account of race, color, or previous condition of servitude, because that court has decided that exclusive privileges conferred for the common protection of the lives and health of the whole community are not in violation of the recent amendments. The only ground upon which the grant of exclusive privileges to a portion of the community is ever defended is that the substantial good of all is promoted; that in truth it is for the welfare of the whole community that certain persons should alone pursue certain occupations. It is not the special benefit conferred on the few that moves the legislature, but the ultimate and real benefit of all, even of those who are denied the right to pursue those specified occupations. Does the gentleman from Kentucky say that my good is promoted when I am excluded from the public inn? Is the health or safety of the community promoted? Doubtless his prejudice is gratified. Doubtless his democratic instincts are pleased; but will he or his able coadjutor say that such exclusion is a lawful exercise of the police power of the State, or that it is not a denial to me of the equal protection of the laws? They will not so say.

  But each of these gentlemen quote at some length from the decision of the court to show that the court recognizes a difference between citizenship of the United States and citizenship of the States. That is true, and no man here who supports this bill questions or overlooks the difference. There are privileges and immunities which belong to me as a citizen of the United States, and there are other privileges and immunities which belong to me as a citizen of my State. The former are under the protection of the Constitution and laws of the United States, and the latter are under the protection of the constitution and laws of my State. But what of that? Are the rights which I now claim—the right to enjoy the common public conveniences of travel on public highways, of rest and refreshment at public inns, of education in public schools, of burial in public cemeteries—rights which I hold as a citizen of the United States or of my State? Or, to state the question more exactly, is not the denial of such privileges to me a denial to me of the equal protection of the laws? For it is under this clause of the fourteenth amendment that we place the present bill, no State shall “deny to any person within its jurisdiction the equal protection of the laws.” No matter, therefore, whether his rights are held under the United States or under his particular State, he is equally protected by this amendment. He is always and everywhere entitled to the equal protection of the laws. All discrimination is forbidden; and while the rights of citizens of a State as such are not defined or conferred by the Constitution of the United States, yet all discrimination, all denial of equality before the law, all denial of the equal protection of the laws, whether State or national laws, is forbidden.

  The distinction between the two kinds of citizenship is clear, and the Supreme Court have clearly pointed out this distinction, but they have nowhere written a word or line which denies to Congress the power to prevent a denial of equality of rights, whether those rights exist by virtue of citizenship of the United States or of a State. Let honorable members mark well this distinction. There are rights which are conferred on us by the United States. There are other rights conferred on us by the States of which we are individually the citizens. The fourteenth amendment does not forbid a State to deny to all its citizens any of those rights which the State itself has conferred, with certain exceptions, which are pointed out in the decision which we are examining. What it does forbid is inequality, is discrimination, or, to use the words of the amendment itself, is the denial “to any person within its jurisdiction the equal protection of the laws.” If a State denies to me rights which are common to all her other citizens, she violates this amendment, unless she can show, as was shown in the Slaughter-house cases, that she does it in the legitimate exercise of her police power. If she abridges the rights of all her citizens equally, unless those rights are specially guarded by the Constitution of the United States, she does not violate this amendment. This is not to put the rights which I hold by virtue of my citizenship of South Carolina under the protection of the national Government; it is not to blot out or overlook in the slightest particular the distinction between rights held under the United States and rights held under the States; but it seeks to secure equality, to prevent discrimination, to confer as complete and ample protection on the humblest as on the highest.

  The gentleman from Kentucky, in the course of the speech to which I am now replying, made a reference to the State of Massachusetts which betrays again the confusion which exists in his mind on this precise point. He tells us that Massachusetts excludes from the ballot-box all who cannot read and write, and points to that fact as the exercise of a right which this bill would abridge or impair. The honorable
gentleman from Massachusetts [Mr. DAWES] answered him truly and well, but I submit that he did not make the best reply. Why did he not ask the gentleman from Kentucky if Massachusetts had ever discriminated against any of her citizens on account of color, or race, or previous condition of servitude? When did Massachusetts sully her proud record by placing on her statute-book any law which admitted to the ballot the white man and shut out the black man? She has never done it; she will not do it; she cannot do it so long as we have a Supreme Court which reads the Constitution of our country with the eyes of justice; nor can Massachusetts or Kentucky deny to any man, on account of his race, color, or previous condition of servitude, that perfect equality of protection under the laws so long as Congress shall exercise the power to enforce, by appropriate legislation, the great and unquestionable securities embodied in the fourteenth amendment to the Constitution.

  But, sir, a few words more as to the suffrage regulation of Massachusetts.

  It is true that Massachusetts in 1857, finding that her illiterate population was being constantly augmented by the continual influx of ignorant emigrants, placed in her constitution the least possible limitation consistent with manhood suffrage to stay this tide of foreign ignorance. Its benefit has been fully demonstrated in the intelligent character of the voters of that honored Commonwealth, reflected so conspicuously in the able Representatives she has to-day upon this floor. But neither is the inference of the gentleman from Kentucky legitimate, nor do the statistics of the census of 1870, drawn from his own State, sustain his astounding assumption. According to the statistics we find the whole white population of that State is 1,098,692; the whole colored population 222,210. Of the whole white population who cannot write we find 201,077; of the whole colored population who cannot write, 126,048; giving us, as will be seen, 96,162 colored persons who can write to 897,615 white persons who can write. Now, the ratio of the colored population to the white is as 1 to 5, and the ratio of the illiterate colored population to the whole colored population is as 1 to 2; the ratio of the illiterate white population is to the whole white population as 1 is to 5. Reducing this, we have only a preponderance of three-tenths in favor of the whites as to literacy, notwithstanding the advantages which they have always enjoyed and do now enjoy of free-school privileges, and this, too, taking solely into account the single item of being unable to write; for with regard to the inability to read, there is no discrimination in the statistics between the white and colored population. There is, moreover, a peculiar felicity in these statistics with regard to the State of Kentucky, quoted so opportunely for me by the honorable gentleman; for I find that the population of that State, both with regard to its white and colored populations, bears the same relative rank in regard to the white and colored populations of the United States; and, therefore, while one negro would be disfranchised were the limitation of Massachusetts put in force, nearly three white men would at the same time be deprived of the right of suffrage—a consummation which I think would be far more acceptable to the colored people of that State than to the whites.