A Just and Lasting Peace: A Documentary History of Reconstruction (65 page)

 

SEC. 5. That Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

It was adjudged in
Strauder v. West Virginia
, 100 U.S. 303, and
Ex parte Virginia
, 100 U.S. 339, and my brethren concede, that positive rights and privileges were intended to be secured, and are, in fact, secured, by the 14th Amendment.

But when, under what circumstances, and to what extent may Congress, by means of legislation, exert its power to enforce the provisions of this amendment? The theory of the opinion of the majority of the court—the foundation upon which their reasoning seems to rest—is that the general government cannot, in advance of hostile state laws or hostile state proceedings, actively interfere for the protection of any of the rights, privileges and immunities secured by the 14th Amendment. It is said that such rights, privileges and immunities are secured by way of
prohibition
against state laws and state proceedings affecting such rights and privileges, and by power given to Congress to legislate for the purpose of carrying
such prohibition
into effect; also, that congressional legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.

In illustration of its position, the court refers to the clause of the Constitution forbidding the passage by a State of any law impairing the obligation of contracts. That clause does not, I submit, furnish a proper illustration of the scope and effect of the 5th section of the 14th Amendment. No express power is given Congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of Congress and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in Congress, by legislation, to protect a right derived from the National Constitution. But a prohibition upon a State is not a
power
in
Congress
or
in the National Government
. It is simply a
denial
of
power
to the
State
. And the only mode in which the inhibition upon state laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits for the reason that they are suits arising under the Constitution. The 14th Amendment presents the first instance in our history of the investiture of Congress with affirmative power, by
legislation
, to
enforce
an express prohibition upon the States. It is not said that the
judicial
power of the Nation may be exerted for the enforcement of that Amendment. No enlargement of the judicial power was required, for it is clear that had the 5th section of the 14th Amendment been entirely omitted the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that Amendment. The power given is in terms, by congressional
legislation
, to enforce the provisions of the Amendment.

The assumption that this Amendment consists wholly of prohibitions upon state laws and state proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the 1st section—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside”—is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the State in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the “People of the United States.” They became, instantly, citizens of the United States,
and
of their respective States. Further, they were brought, by this supreme act of the Nation, within the direct operation of that provision of the Constitution which declares that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Art. 4, sec. 2.

The citizenship thus acquired, by that race, in virtue of an affirmative grant from the Nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of Congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms distinct and positive, to enforce “the
provisions of
this article
” of Amendment; not simply those of a prohibitive character, but the provisions—
all
of the provisions—affirmative and prohibitive, of the Amendment. It is, therefore, a grave misconception to suppose that the 5th section of the Amendment has reference exclusively to express prohibitions upon state laws or state action. If any right was created by that Amendment, the grant of power, through appropriate legislation, to enforce its provisions, authorizes Congress, by means of legislation, operating throughout the entire Union, to guard, secure and protect that right.

It is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the Nation, to colored persons, when they were made citizens of the State in which they reside? Did the constitutional grant of state citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became entitled, upon the adoption of the 14th Amendment, “to all privileges and immunities of citizens in the several States,” within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which by that clause of the Constitution they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free republican government, such as are “common to the citizens in the latter States under their constitutions and laws by virtue of their being citizens.” Of that provision it has been said, with the approval of this court, that no other one in the Constitution has tended so strongly to constitute the citizens of the United States one people.
Ward
v.
Maryland
, 12 Wall., 418;
Corfield
v.
Coryell,
4 Wash. C. C., 871;
Paul
v.
Va.,
8 Wall., 168;
Slaughter-House Cases,
16 Id., 36.

Although this court has wisely forborne any attempt, by a comprehensive definition, to indicate all of the privileges and immunities to which the citizen of a State is entitled, of right, when within the jurisdiction of other States, I hazard nothing, in view of former adjudications, in saying that no State can sustain her denial to colored citizens of other States, while within her limits, of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other States, within the jurisdiction of that State, could claim, in virtue of section 2 of article 4 of the Constitution, every privilege and immunity which that State secures to her white citizens. Otherwise, it would be in the power of any State, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other States, belonging to that proscribed race when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each State shall be entitled to “all privileges and immunities of citizens of the several States.” No State may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other States, of whatever race, to enjoy in that State all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, while in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. It is not to be supposed that anyone will controvert this proposition.

But what was secured to colored citizens of the United States—as between them and their respective States—by the national grant to them of state citizenship? With what rights, privileges or immunities did this grant invest them? There is one, if there be no other: exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent Amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the Nation. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. . . .

My brethren say, that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The Statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the Nation, through Congress, has sought to accomplish in reference to that race, is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step, in this direction, the Nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, “For it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.” Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional Amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be in this Republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freeman and citizens because of their race, color or previous condition of servitude. To that decree—for the condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, Congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.

For the reasons stated I feel constrained to withhold my assent to the opinion of the court.

(1906)

Washington Lafayette Clayton (1836–1921) was born in Jefferson, Alabama, but migrated with his family to Itawamba County, Mississippi, during the 1840s. He lived in Fulton and later moved to Tupelo, in Lee County, working as a circuit-riding lawyer with a keen eye for detail and local color. Early in the twentieth century, Clayton published several autobiographical articles in the
Tupelo Journal
chronicling the social history of northeastern Mississippi during Reconstruction. His historical memory of the period conforms to what historian David W. Blight termed “the white supremacist vision” of the Civil War era, which “by the turn of the century delivered the country a segregated memory” of the conflict “on Southern terms.” Clayton, for example, portrayed the freedmen as gullible, ignorant, ungrateful, yet wily. He believed that carpetbaggers, scalawags, and ex-slaves betrayed his fellow white Mississippians. Military rule and self-assertion by the freedpeople were odious, he recalled. The blacks, in his opinion, “kept moving from bad to worse.” In his final article, Clayton detailed the nonviolent means whites employed to trick and intimidate black voters. “This took place throughout the state,” he said, seemingly with pride, “and the Republican party was put out of business in Mississippi.”

When the war of 1861 had closed and the survivors of the army returned to their homes, they found many changes had taken place in their absence, and especially was this noticeable in the border land of the country. In the first place, all property in slaves was destroyed, and the supply of horses and mules had been reduced very much. Such a thing as a good saddle horse or a good wagon mule could not be found, unless they had been hidden out, and this was a very dangerous thing to do. Some enemy or slave would be almost sure to point out the hiding place of the stock, and if the enemy came, he took them, and if the friend happened along, he impressed them for service, and in either event, the stock was gone and the owner none the better off, as the scrip given by the friend proved of no more value toward the last than the want of it by the enemy. To the everlasting credit of the negroes it must be said that they were so far loyal to their owners as a general thing that they remained at home and worked faithfully, and in many instances had the care and possession of the entire interests of their master's farms and stock, and were ever ready to do and suffer whatever might be required for the interest of their owners.

After the war in all the thinly settled slave districts, like North Mississippi, they still remained at home and finished the crops before they were turned loose as free. I have often thought that as the slaves assembled round the cabin hearths in the days succeeding the close of the war and before the time of their final release, they had wonderful reasonings among themselves as to what would be the outcome of the war to them. You must remember that they could neither read nor write, and only in a few instances had anyone explained to them that Lincoln had issued his proclamation freeing them, and as we went on with our work as formerly, they must have endeavored often to peer into wonderland to find what it would bring to them. And yet how cautious they must have been, because of the fear of punishment. They had not yet learned that they were no longer in fear of the Patrolers if they failed to carry a pass from their owners, and consequently had not moved about much. I remember very well that our slaves were just as obedient and worked as well during the making of the crop of 1865 as they had ever been and done. So one morning after the crop was completed, I said to my father, “Father, I think we had better tell our negroes they are free and have a right to go where they please.” He agreed it was the course to take, and we called them up and told them of their right to go or remain as they might choose, and that they were as free as we were, and I think we might have added, a little freer. And I assure you that the white women had the cooking to do that day, and many women who had never made a biscuit or fried ham and eggs, were forced to look into cookbooks to learn that which seemed to have come to the old black mammy by instinct.

But I want to tell you it did not take a lifetime for the poor ignorant negroes to learn the extent of their freedom and their rights thereunder. When they ascertained the fact that they had a right to stand and listen to a white man talk, and none dare molest or make them afraid, they took advantage of every opportunity to listen and to learn. And when the reconstruction measures were passed by Congress, they were not long in learning that the bottom rail was on top. I remember and shall never forget the wonderful influence any worthless carpetbagger had on them to the exclusion of all advice any of us might give. Some irresponsible fellow put it into their heads that every slave was to be given forty acres of land and a mule from the lands of the former slave owners, and having once taken root, it spread through the land of the South, and was generally believed.

Once upon a time one of these slick friends of the former slaves, and who had such wonderful influence over them, taking advantage of the ignorance and confidence of an old time darkey, meeting him on his former master's plantation, informing the old ex-slave that he was one of the men whom the government had appointed to measure off the aforesaid forty acres and give him a deed to it, and that another man would be round soon to assign and deliver him his mule with which to work it. So with glad heart and ready hand the old negro assisted the pretended official in making the measurement. When that was done, the old man wanted his deed, which was readily written and delivered on the payment to the swindler of $8.75, being all the money the old man had. Some days after this the old negro seemed more independent than usual, and began putting on airs of ownership when his former master said to him, “Dick, what's the matter with you? For some time you have been putting on airs like you owned the place.” “Yes, sar, I does own part of de place.” “How's that? What do you mean, you old fool?” “Well, sar, de guberment man jist comed round and measured me off my forty acres offen your land, and gived me a deed to it.” Much astonished, but knowing some fraud had been practiced upon the old darkey, the owner asked to see the deed. Thereupon the old man handed out his supposed deed for the inspection of his former master, and the present landlord, and when held up to the light of intelligence, the old man was dumbfounded to hear the words read, “As Moses lifted up the serpent in the wilderness, so have I lifted this old darkey out of eight dollars and seventy-five cents. Selah!” It was said long, long time ago that “a fool and his money are soon parted,” and this is especially true where gross ignorance and unbounded confidence [are] on one side and unscrupulousness on the other. But I have thought of all the villains known to mankind it is he who abuses the confidence reposed in him, and swindles under the guise of friendship. It puts me more in mind of the kiss with which our Saviour was betrayed than any with which I can compare it.

It was some years before the old darkey ceased saying, “Masser” when addressing a white man. Old Uncle Jim Hussey, a fine old time darkey, who lived and died near Mooresville in Lee county, Mississippi, kept up the habit of calling his old friends Masser till the time of his death. There was another peculiarity about Uncle Jim which I do not think applies to any other ex-slave in all this country, and that is that he always under all circumstances voted the Democratic ticket. In the darkest days of Mississippi, when the colored population marched to the polls in solid phalanx and voted in columns for the Republican party, Uncle Jim always from the very beginning and as long as he voted, put in his vote for the Democrats. He always said that as the colored people were living with the whites and largely dependent upon them, it did seem to him that what was to the interest of one race must be equally so for the other, and that as the white people were the more intelligent, it stood to reason that they would advocate and vote for those principles which would make for their betterment and consequently for the best interests of all.

He was a fine old character, as polite as a Chesterfield, and as kind hearted as any man I have ever met, white or black. He thought nothing of taking off his hat and bowing graciously to anyone whom he met from pure politeness. But those kind are becoming fewer and fewer every year. If we had more such men as Uncle Jim, and fewer of the worthless and law-breaking class, the country would be better off.

•   •   •

Just what was heaped upon a proud and noble people here in the South after the war, none will ever know after this generation passes off the stage of action. We cannot write so succeeding generations can appreciate what we endured. The truth is that the South was settled by the chevaliers of England and their descendants, a proud and loyal people. In addition to this, they raised up what their enemies call a slave aristocracy, but which we thought of as agricultural kings, who lived on their plantations, surrounded by their slaves, managed generally by overseers, and dispensed hospitality like princes. Then we had the smaller slave-holders, nestled here and there amid these greater slave owners, and hoping to be larger owners of both slaves and land in the future, the most of those who did not own slaves hoped to do so some time in the future. There were really few of them of the renting class who aspired to no better situation in the financial world. The master owned his slaves, and when he said to one, “go,” he went, and when he said to another, “do this,” he did it. No questions were asked, but unquestioning obedience was the rule of the master. Not only this, but even those who did not own slaves, felt no hesitance in commanding them when about them as if they did own them. But when the reconstruction measures were enforced, all these ex-slaves were allowed to vote and hold office, while all the whites who had held any office, civil or military, in the United States, or in the different states, were disfranchised. As a general thing it was the custom to elevate to office our most intelligent and accomplished men; and so take the number who had held office, from the old men of eighty and the young men of twenty-one and all the way between, and there was a mighty host of our best men who could neither vote nor hold office under these infamous measures. Consequently, the negroes, just from the plow and the hoe, and having no learning, and in most instances no intelligence, took the offices and went to the capitals, to make laws for us. If a man is in bondage and has no desire for freedom and liberty of action and no aspirations for higher and loftier things, he may not suffer much from his condition, and especially when he has a kind and considerate master. But a proud, noble and intelligent people, like those of the South, to be subjected to such treatment as we received just after the war, was enough to cause more suffering and did cause more suffering than our slaves ever endured, mental suffering being so much worse than bodily suffering.

I myself was in Jackson, Mississippi when the legislature was in session during the seventies, and while there were not as many negroes then in the legislature as there had been, they very largely predominated. The Legislative Hall looked like a great dark cloud with a small white rift at the edge of it. You know I suggested some time back that it was quite probable that the negroes, just after the war, and before they were actually told by their owners that they might go free, had many whispered talks as to what the war would bring to them, being still under fear of their old owners.

The people of the South had seen much of sorrow and death during the war, and had been beaten and overpowered by numbers and forced to submit. Her brave and chivalrous sons were resting beneath the soil of the many battlefields on which they had sustained Her honor, or their bones were bleaching Her plains, where no friendly eye ever saw their forms after they fell. The military power of the United States, dotting town and hamlet, held the survivors in subjection. We were thus held beneath the rod and afraid to make a move for our release. You can understand, when you are told that many men came down from the North to lead these ignorant slaves and fatten on the South, why the Jews so much hated one of their own race who became a tax collector under the Roman Empire, to whom they were subjected in the time of our Saviour's sojourn on earth. Men will have to be different to what they now are before they can quietly and placidly see their enemies take their sustenance, make the laws by which they are to be governed and appoint over them their former slaves to execute such laws. Nothing restrained our people during those reconstruction days but the fear of the military power.

I remember very well how intense the feeling was against one, Flood, who was chief of the Registration Board at Fulton, where I then lived. That always was a white county, and it was almost impossible to restrain the boys from doing him some personal injury. He was a shrewd, unscrupulous adventurer, who came here, not to serve his country, but himself, and who ingratiated into the confidence of the negroes, and but for the fact that he feared the consequences of his conduct, would have remained there to try for office. But when the election was over by which the military constitution was adopted, he had seen enough to indicate to him that he might do better somewhere else. During the first campaign for the adoption or rejection of the constitution, which had been submitted to the people for ratification or rejection, I took a part in the speech making in opposition to the adoption. There were several features of that constitution which were so objectionable, that it failed of the necessary vote. Then the military authorities, who were in charge of the entire South, and who had all power, eliminated certain of those objectionable features, and the constitution for Mississippi was again submitted, with those features left off, and thus carried.

In that first campaign Eugene Whitfield ran for Congress on the Republican ticket, and was opposed by a little fellow from the North, who ran for the same office, but now opposed the adoption of the constitution, and whom I suspect was here after the “loaves and fishes,” as well as Flood. His name has passed out of my mind. I remember to have made a speech at old Ryan's Wells, north of Fulton, during this campaign, and in which Whitfield and his opponent also spoke. There was a yankee driving Whitfield around over the campaign, against whom Whitfield's opponent seemed to have great feeling for some cause, and when he rose to make his speech in opposition to the constitution and Whitfield, I saw him place a cocked pistol in his hat behind where he stood to make his address, and I thought sure he was going to open in warm style on Whitfield. But when he began he said, “Gentlemen, I am not after Colonel Whitfield. He is a nice gentleman. But I am after his carriage driver.” And from that he went for the carriage driver in the roughest manner I have ever heard anyone abused from the stump, but he opened not his mouth. It seems he was a Republican booster of Whitfield, and was carrying him through the campaign.