by Philip Dray
that if we wanted to see dead niggers, here was a chance ... Almost as soon as we got to the top of the landing, sure enough, we began to stumble on them, most of them lying on their faces, and, as I could see, by the dim light of the lanterns, riddled with bullets. One poor wretch, a stalwart looking fellow, had been in the burning courthouse, and as he ran out with his clothes on fire, had been shot. His clothes to his waist were all burnt off, and he was literally broiled ... I counted eighteen of the misguided darkies, and was informed that they were not one-fourth of the number killed.
Walking among the prostrate forms on the ground, the visitors were alarmed to find one that still seemed alive. Revolvers were quickly drawn, and a white man said, "I will shoot that black dog." But when the body was turned over, it was evident the man was already dead. Smoke from the courthouse, which was still on fire, and the stench of burning flesh from the littered corpses, Hill reported, soon drove the tourists back to their boat.
In New Orleans, Kellogg and Emory were staggered by reports of the apparent magnitude of the violence. Now faced with the necessity of moving troops into the area, they met resistance from several steamboat operators, who refused to provide passage on the grounds that visibly aiding federal forces would harm their business. Although the Metropolitan Police from New Orleans and at least one federal officer made it to Colfax within a few days of the battle, the first contingent of a hundred federal troops did not arrive at Colfax until April 21, eight days later. The commanding officer, Captain Jacob H. Smith, listened to various accounts of the affair, including that of C. C. Nash, and concluded that most of the victims had been gunned down after surrendering.
Scholarly and official estimates of how many blacks died at Colfax have always varied widely, from sixty to as many as two hundred. Calculating the death toll was complicated by the fact that many bodies were badly burned, others were lost in the river or in the cypress pond, and some were carried away by friends or relatives. Because many black families were too frightened to claim their dead, dozens of the victims were interred in mass graves—the very trenches they themselves had dug as fortifications to defend the courthouse.
Pinchback traveled upriver to the scene of the massacre and was overwhelmed by the magnitude of the devastation. In his brief tenure as Louisiana's governor a few months earlier, he had tried unsuccessfully to arrange for either General Longstreet or federal forces to establish control of outlying districts like Grant Parish, and it saddened him to see the terrible consequences of that policy's failure. Back in New Orleans he joined concerned black citizens at an emotional meeting, where resolutions of protest were drafted and comparisons made to the wartime slaughter at Fort Pillow, where Confederates under the command of General Nathan Bedford Forrest notoriously massacred surrendering black troops. Pinchback, upon reaching the podium, recited from Shakespeare ("Give me no help in lamentation. /1 am not barren to bring forth complaints. / All springs reduce their currents to mine eyes, / That I, being governed by the watery moon, / May send forth plenteous tears to drown the world") and urged the gathering to disregard press accounts that had characterized the events at Colfax as a "race war." It was, he insisted, a confrontation between citizens defending a legitimate Republican state government outpost and bitter Southern men determined to carry Louisiana backward into the past. Refuting the notion that the blacks had been the aggressors, Pinchback noted, "My knowledge of their temperament and disposition teaches me that they would not be guilty of the wrong alleged, for the obvious reason that they know too well what would be the inevitable result, owing to the immense disparity between the numbers of white and colored people in this country."
Pinchback condemned the fact that the massacre would surely intimidate blacks and keep them from voting, and he returned to criticisms he had, as governor, leveled at the McEnery faction—about white Louisianians' unwillingness to accept the changes the war had brought and the weakness of moderate whites who might exercise a controlling influence on the most vicious white element. "A large number of white people feel just as sad as we do," he told his colored listeners, "but unfortunately for them they dare not come out and express their opinion. They are ground down in a slavery worse than ours was. They are slaves to a mistaken public opinion."
Whereas the Memphis and New Orleans riots of 1866 and the Klan violence of 1870–71 had motivated Congress to take action that would safeguard the freedmen, it was the strange fate of the Colfax massacre to spark a federal judicial decision that inhibited that protection. As ever, the Justice Department was faced with the awkward challenge of prosecuting mob violence and murder with statutes designed to protect civil rights. The United States initially indicted ninety-eight whites under the Enforcement Acts, which outlawed conspiracies to deny such rights, but ultimately brought only nine men to trial. Despite graphic testimony from witnesses, one defendant was acquitted; the trials of the remaining eight ended with a hung jury. In a second trial, the defendant William Cruikshank and two others were convicted; these verdicts were appealed to the Supreme Court.
In a landmark decision, United States v. Cruikshank (1876), the Supreme Court voted unanimously that the indictments were improper, ruling that the right of citizens to assemble was protected as a federal right only if they did so for the purpose of petitioning Congress or for anything else directly connected with the federal government; any other assembly, such as that of the black defenders at Colfax, was not protected by federal law. Echoing the court's actions three years earlier in the Slaughterhouse Cases, the ruling in Cruikshank further stipulated that guarantees of due process and equal protection promulgated in the Fourteenth Amendment restricted only the states and offered no protection regarding actions involving individuals. Essentially, this meant that though states could not deprive citizens of life, liberty, property, or equal rights without due process of law, the federal government had no jurisdiction when private citizens, such as a mob or a vigilante army, did so. The part of the indictment that invoked the Enforcement Acts was thrown out on the grounds that there was no allegation that the victims' race had anything to do with the assault on the courthouse.
"This racist and morally opaque decision," argues the historian Ted Tunnell, "reduced the Fourteenth Amendment and the Force Acts to meaningless verbiage as far as the civil rights of Negroes were concerned." After all, notes the scholar Eugene Gressman, "it was private action, not state action, that had caused so much of the postwar bloodshed and atrocities in the South ... It was private action, not state action, that had been the prime motivation for all the toil and debates that produced the Fourteenth Amendment and the surrounding legislation."
When the case against the perpetrators of the Colfax massacre proved unprosecutable, the highest court in the land concluded that the problem lay in the overreaching nature of the statutes violated; it then proceeded to render those laws meaningless. By gutting the Enforcements Acts and placing private actions beyond the reach of the federal judiciary, the decision left Southern blacks in a position of greatly increased vulnerability.
The only silver lining in the aftermath of the crime was the broadly shared sense of shame and violation; the nation, as had Pinchback and others, reacted strongly to the killings in Louisiana. The blaring New York Times headline "A Second Fort Pillow: Surrendered Negroes Butchered in Cold Blood" was typical of the outcry. "The war between the races, so constantly carried on in this distracted state," noted the paper's editorial, "has seldom presented such a horrifying instance as this burning of a courthouse filled with human beings ... the terrible scenes enacted at Colfax Courthouse ... appear to be more like the work of fiends than that of civilized men in a Christian country."
America, it seemed, still cared about the inequities Reconstruction aimed to alleviate; the question was how long it would honor that commitment.
Chapter 8
CAPSTONE OF THE RECONSTRUCTED REPUBLIC
SENATOR CHARLES SUMNER'S BREAK with President Grant in 1872 was a troubling develop
ment in the eyes of most black Americans, and not solely because of its detriment to the electoral fortunes of the Republican Party. Sumner was the primary force behind a controversial piece of legislation then making its way through Congress, a civil rights act (called the Supplementary Civil Rights Act, for it would expand on those rights granted by the Civil Rights Act of 1866) that would for the first time guarantee citizens everywhere equal access to public accommodations. First introduced by Sumner in May 1870, and reintroduced twice in 1871, the bill stipulated that no public inns or places of public amusement for which a license was needed, no railroads or stage lines, charities or cemeteries, no churches or jury boxes, and no schools supported at public expense should make any distinction as to admission on account of race, color, or previous condition of servitude.
This initiative was an effort to finalize the work of Reconstruction by establishing civil rights not simply at the ballot box but in the public sphere where Americans lived their daily lives. As South Carolina congressman Alonzo Ransier said in support of the bill, "We cannot ... educate our children, defend our lives and property in the courts, receive the comforts provided in our common conveyances ... and, in short, engage in 'the pursuit of happiness' as rational beings, when we are circumscribed within the narrowest possible limits on every hand, disowned, spit upon, and outraged in a thousand ways."
Sumner found authority for his civil rights law in some inspired places—the Thirteenth Amendment, of course, which had abolished slavery and, by interpretation, all "badges of slavery" (in Sumner's view, discrimination that publicly set blacks apart as an inferior class was surely a "badge of slavery"), but also the Declaration of Independence and the Sermon on the Mount, sources "earlier in time, loftier, more majestic, more sublime in character and principle" than the Constitution itself. Sumner's conviction that the Declaration of Independence's "pledge of universal human equality was as much a part of the public law of the land as the Constitution" was a faith he had in part adopted from former president John Quincy Adams, who, in old age, received Sumner frequently at his home outside Boston. Since the U.S. Constitution was famously evasive on the subjects of race and slavery, Sumner saw the Declaration as a more valuable and useful instrument in relating America's core principles to the problem of racial equality. He considered the Constitution, drafted in Philadelphia in 1787, to be a pragmatic, "earthly body," while the Declaration, penned by Jefferson at the very moment of America's creation in 1776, was "the soul" of the United States.
The federal government could not watch over each and every interaction between white and black Americans, enforcing equality on an individual basis, but Sumner hoped that by authorizing penalties for those who discriminated and offering legal recourse to their victims, the nation would ultimately choose compliance, and race relations would evolve favorably. This formalizing of equal rights under the law was, for Sumner, "the subject of subjects," a matter that would "not admit of postponement or hesitation"; he saw his bill as "the capstone of the Reconstructed Republic" and a fitting culmination to his life's work.
CHARLES SUMNER
That effort had begun as early as 1849, when he was the attorney in a case seeking change in Boston's segregated schools. Sumner lent his representation pro bono to the plaintiff, a five-year-old child named Sarah Roberts, at the request of her father, Benjamin, who was a local black leader. The complaint in Sarah Roberts v. the City of Boston was that the city's policy of segregating pupils by race defied more general Massachusetts standards of equality. The chief primary school used by black children in the city was in disrepair and far inferior to the schools white children attended, yet spokesmen for the schools insisted that the difference was "one which the Almighty has seen fit to establish, and it is founded deep in the physical, mental, and moral natures of the two races. No legislation, no social customs, can efface [it]." Sumner alleged that the school committee had no right to this position, as the Massachusetts Constitution itself had never made such a distinction. To assert the concept of equality before the law, he alluded to the Declaration of Independence, the writings of the eighteenth-century French philosophes, and the Bible. The Boston schools, in defying the most fundamental ideals of equality, he said, were "condemned by Christianity."
In arguing the Roberts case, Sumner described both the inferior physical character of the Negro school Sarah Roberts was made to attend and the destructive psychological and sociological effect of segregation on children—both blacks and whites. "The whites themselves are injured by the separation. Nursed in the sentiment of caste, receiving it with the earliest food of knowledge, they are unable to eradicate it from their natures." Later, Sumner would observe that segregation "cannot fail to have a depressing effect on the mind of colored children, fostering the idea in them and others that they are not as good as other children," anticipating by a century the principal rationale used to defeat legalized segregation in America's public schools in 1954 and, by extension, all Jim Crow restrictions. Sumner's brief, however, was rejected by the Massachusetts Supreme Court, which deemed it extravagant and overly reliant on abstract philosophical arguments.
A generation later, the school clause in Sumner's Supplementary Civil Rights legislation helped spark the first national dialogue on the subject, pitting the ideals of equality in education and the eradication of racial prejudice against concerns over states' rights and forced "social equality." Most people declared the nation unprepared for mixed education and were inclined to treat the question of the clause's legitimacy as not only an abstraction but also possibly dangerous, for the certain result of such a mandate would be that whites would desert public schools. Reports had already emerged from the South that Sumner's planned legislation was inhibiting school construction projects. But such warnings emanated not solely from below the Mason-Dixon Line; the New York Times also recommended that the matter be tabled until greater national progress in race relations was achieved. Even many black spokesmen, who agreed with Sumner that separation likely had a hurtful effect on black children, were willing for now to surrender the concept of equality in the interest of keeping education itself available.
Sumner remained steadfast, however, his very public leadership on the issue bringing to his desk each day fresh testimony from black Americans relating their inability to enjoy equal access in public life. "How is it possible for one who has never been denied any of these privileges," Sarah Thompson of Memphis asked Sumner in early 1872, "to express so fully and clearly the profound sense of humiliation which we feel?" Thompson explained that she and her four young children had been barred from a railroad waiting room in Louisville:
To keep ourselves warm, we were obliged to walk to and fro in front of the depot in the sleet and while my dear children were suffering and crying from the severity of the cold. In faltering accents one of them inquired of me, "Why is this, ma? What have we done? Why can't we go in there and warm just like others?" Oh, sir, words are inadequate to express my feelings at that time. How my very soul burned with indignation. We had committed no offense. Our only crime was that of being American negroes.
Charlotte Forten, the black Philadelphia missionary teacher to the Sea Islands, assured Sumner, "I think only those who have suffered deeply from the cruel, cruel prejudice in this country can know how it embitters as well as depresses, how it gradually weakens and undermines one's faith in human nature—and, oh, how that loss of faith darkens the world, as nothing else can."
Even many Southern whites saw the inherent injustice. "For God's sake urge your Civil Rights Bill with all the vehemence of your soul," a man from Tennessee implored Sumner. "Yesterday I bought a R.R. ticket in company with four colored men. They paid the same price for theirs ... but I ... because my skin is white, was furnished a nice, soft, quishened [sic] seat in an elegant car; they were forced to occupy 'plank seats' in a filthy box ... In no sense of the word can this be right." The peripatetic Gilbert Haven was aghast at the conditions the railroads created. "The cars into whi
ch [blacks] are thrust are hideous pens," he wrote of a journey by rail in the South, where a fellow clergyman "of the offensive hue" was forced to ride "in a dirty, ill-ventilated, close-packed, unswept car, as mean as mean could be. Yet he was paying first-class fare and two score of seats in my clean car were vacant. But for him to have asked to occupy one would have brought a revolver against his head."
One of the most disturbing testimonials came from Howard University, where it was reported that two black visitors—William White, a student from Fisk University in Nashville, and James Rapier (later a congressman from Alabama)—were treated so poorly by the railroad that White was made seriously ill. Even though he and Rapier held first-class tickets, White reported, "from Nashville to Chattanooga I was compelled to ride in the car next to the baggage car, where smoking, drinking, and obscene conversation were carried on continually by low whites ... At stations for meals I could get nothing to eat ... At Chattanooga where I arrived at about 5 o'clock in the morning I was not permitted to enter the sitting room." White and Rapier were forced to stand on the dark station platform in the cold until their connecting train departed at 8 A.M. On that train they were assigned to one half of the baggage car, where the door was left open to the elements because there was a corpse being shipped among the baggage. G. W. Mitchell of Howard remarked, as he passed along White's complaint to Sumner, "This is simply an illustration of what is occurring daily, and to which all are subjected in whose veins flows a perceptible amount of African blood."
