THE ENFORCEMENT
OF THE
CIVIL RIGHTS ACT OF 1875
JOHN HOPE FRANKLIN
Few bills, if any. have had a longer legislative
history in the Congress of the United Stales
than the Civil Rights Act or 1875. From the time
that Charles Sumner of Massachusetts first introduced it in the Senate in 1870 until it was
passed by both houses and signed by the president almost five years laler, the bill was sub·
jected to endless scrutiny and debate. Its
supporters argued that the bill was necessary
to protect the rights of all ci tizens against class
and caste prejudice. They insisted that it did
no more than provide a federal guarantee of
the rights that citizens were supposed to enjoy
on the basis of common law. The opponents
called it an unconsti tut ional attempt to legislate social equal ity and an unenforceable and
unmitigated evi l. It was, moreover, impolitic,
foritwQuld "vex white men, North and South,"
and it would "expose the black man to more
persecution. He is going too fast. He needs
time and patience." Despite the fact that the
bill's author had long since died and that there
were no supporters to match the ardor of
Swnner, the bill passed the House by a vote
of 162-99 and the Senate by a vote of 38-26,
© 197-4 by John Hope Frankhn
becoming law on March 1, 1875. l ltwas the final
triumph of a Republican majority of doubtful
motives that would, within a few days, be
superseded by an anti-civil rights Democratic
majority.
The "grea t fundamental principles" that the
bill proposed to enact into law were that "all
persons within the jurisdiction of the United
States shall be entitled to the full and equal
enjoyment of the accommodations, advantages,
facilities, and privileges of inns, public conveyances o n land or water, theaters, and o ther
places of public amusement," and that such
enjoyment should be subject "only to the conditions and limitations established by law, and
applicable alike to citizens of every race and
colo r, regardless of any previous condition of
servitude." Another provision was that " no
citizen possessing all otherquaJjfications which
are o r may be prescribed by law shalJ be disqualified for service as grand or petit juror in
any court of the United States, or of any Slate,
on account of race, color, or previous condition
of servitude."
'TIle bill's h'$lory has brion d,scuS5ed by historians . David Don;.Id, 0,.,/" SlImntr
Iht R'gh/'J of
Ma1l (New York, 19'10); L E. Murphy, ''T'he Civil RIghts u.w
."d
aVIl. RJGHTS
225
Persons found guilty of violating the act- by
denying to any citizen the enjoyment of the accommodatlOns it described or by aiding or
inciting such denial - would , for every offense,
"forfeit and pay the sum of five hundred dollars
to the person aggrieved thereby, to be recovered
in any action of debt, with full costs; and shall
also, for every such offense, be deemed guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor
more than one thousand dollars, or shall be
imprisoned not less than thirty days nor more
than one year."
The act placed direct respons ibility for enforrement on the federal courts and their offi cers. District and circuit courts of the United
States were to have cognizance of all crimes
and offenses against the statute. "And the district attorneys, marshals, and deputy marshals
of the United States, and commissioners appointed by the circuit and territorial courts"
were speciflcally authorized and required to
institute proceedings against "every person
who shall violate the provisions of this act,
and cause him .to be arrested and im prisoned
or bailed . .. for trial before such court of the
United States . . . as by law has cognizance of
the offense." District attorneys were obligated
to prosecute such proceedings to their tennination. Any district attorney who willfully failed
to ins titute and prosecute the required proceedings was 10 pay Ihe sum of five hundred
dollars to the person aggrieved and was to be
fined nolless than one thousand nor more than
five thousand dollars. 2
From the very beginning, the prospects for
effective enforcement of the new measure were
not bright. President Grant made no comment
about the bill either at the time that he signed
it or in subsequent messages to Congress or in
other public statements. Members of Congress
had little to say abou t the bill after it had
passed. At least one member attempted to
soften the blow by minimizing its possible
of 1875," Journal of Nrgro H.story 12 (1921}.110-127; Alfred H .
Congreisional Ovfl" Schoo15egrega lion," Amr riClln Hi5tol1e"l Rtv,,'w 64 (1959);537-563: and
James McPherson. " Abolitionists and the Civ il Rights Act of
effects. Representative Benjamin Butler, who
had a s ignificant part in bringing about the
bill's passage as well as in dele ting the provis ion that would have desegregated schools,
sought to allay the fears of a friend . In a letter
to Robert Harlan of Cincinnati, Butle r said that
the bill did not give Negroes the right to go
into a drinking saloon and that he was very
glad it did not. " 1 am willing to concede, as a
friend to the colored man, that the white race
may have at least this one superior privilege
... and I never shall do anything to interfere
with the exercise of that high and d istinctive
privilege." 3
If people in high places were somewhat diffident about speaking out, the general public
was not . The N('IIJ York Times, which had vigorouslyopposed the bill from the beginning, insisted that it was unconstitutional and, what
was more, that it could not be enforced. While
southerners, the newspaper argued, would
dose their businesses rather than comply with
the provisions of the act. There would be little
trouble in the North, the paper predicted,
largely because the blacks are in SO great a
minority that " they will hardly deem it prudent
10 force themselves into first-c lass hotels or
restaurants ... . As a rule, the negroes in this
part of the country are quiet, inoffensi ve people who live for and to themselves, and have
no des ire to intrude where they are not welcome. In the South , however, there are many
colored men and women who delight in 'scenes'
and cheap notoriety. " 4
There were, however, Negroes in the South
and also in the North who were prepared to
intrude where they were not welcome in order
to test the efficacy of the new legislation. On
the day after it was signed into law, several
Negroes in Richmond visited "various restaumnts, including the bar room at the Exchange Hotel, and in one instance a barber
shop, and demanded to be wailed upon. They
were refused in every instance and ordered
out." A Negrocouple in NewOrleansattempted
to occupy a sta teroom on a steamboal plying
the Mississippi River behveen that city and a
land ing on the Red River and were refused. In
1875," !ourn,;I of A.me,je"" History 52 (1965):493-510. For a
sample of debale on the bill, M'e Cong'Nsio,,/1 Record, 43
Cong., 2 sess .. no. 3, pt. 2, pp. 939-1005, 1791- 1870.
• 18 Stlltu/n g/ LII'gt 335.
226
PROLQCUE - WiNTER 1974
• Benjamin Butler 10 Rob<i! r1 Harlan in Ilarpu'. A p r. 24, 1875.
•
York Times, Ma'. 2, 6, 1875.
Chicago two Negroes demanded seats in the
dress circle of the McVickers Theater; and although the ticket taker offered them seats elsewhere they persisted in the ir demands, "and
there being no alte rnat ive, in they went. Except
for their color," o ne reporter observed, "they
would not have been noticed, for they behaved
with becomi ng propriety." During the month
after the passage of the biU the New York Times
was embarrassed to report that in New York
" an intelligent and respectable-appeari ng
colored man" accompanied by a friend attempted to gain ad m ission to the parquet of
Booth's n1eater but was not admitted because
of his color and was told to go to the upper
circle, whereupon he lefl.5
Between 1875 and 1877 blacks in all parts of
the coun try were seeking to enjoy the privileges
granted in the new law and were demanding
that the government of the United States enforce it. In Wilmington, North Carolina, a
Negro demanded that a saloonkeeper be arrested for refusing to sell him liquor. 6 Two
Negro women in Galveston, Texas, sought admission to the parquet of the Tremont Opera
House and were refused.' In Winona, Min nesota, several Negroes sought to indict by
grand jury persons who had denied them accommodations. 8 A si milar complaint was
brought in San Francisco, and in Philadelphia
a Negro woman brought action against the MI.
Moriah Cemetery Association fo r refusing to
permit burial of her husband in a plot they had
purchased .' ei ther observers o n the sidelines nor federal officials could claim that the
Civil Rights Act failed to command the attention of possible beneficiaries.
The determination of blacks to enjoy their
civil rights was at least matched by the spirited
and vigorous resistance offered by whi tes in all
parts of the country. Immediately upon learningof the act being passed the proprietor of the
'Ibid .• Mar. 3. 14, 20. Apr. 22. 187S.
-Ibid .. Mar. 6, 1875.
Park HOlel in Baltimo re dosed his house to the
pub lic " to escape incurring the [act's] pena lties." In O1altanooga, Tennessee, two hotels
surrendered their licenses as public places and
became private board inghouses. lo Resistance
in Virginia took several fOnTIs . In Alexand ria
on March 2, the two principal hotels canceled
their licenses and closed. Proprietors of saloons
in various parts of the state posted notices that
the price of a d rink would be $5.00, with liberal
discounts to friends. Presumably, the proprietors had no Negro friends . During the same
week that the act was passed a member of the
state legislature in Richmond introduced a bill
" to punish parties creating disturbances in
hotels, theaters, and other places of amuse·
menl. " And to prevent w hite friends or lightsk inn ed Negroes from purchas in g theater
tickets and passing them on to their darker
brothers, the proposed bill provided that s uch
tickets should be marked " not transferable, to
be used only by the original purchaser." It Th is
was the kind of resistance that caused a reporter
to observe some six months later that the Civil
Rights Act had been "a dead letter in Virginia
apparently for some time. " 1:1
Elsewhere the resistance was as intense if
not as imaginative as tha t in Virginia. In New
York a Negro was put out of a confectioner's
shop when he sought to order a dish of ice
cream.t3 111e Baltimore and Ohio Rai lroad
Company held its ground against eighteen
blacks who wan ted to ride from Rockville to
Washington in a car occupied by whites. 14
There were numerous other instances in which
railroad conductors steadfastly refused to permit blacks to ride in the first -class cars with
wh ite passengers, even when they presented
first -class tickets. IS The Phi ladelphia proprietor of Bingham House refused to give a Negro
minister any accommodations in the hotel. A
white guest offered to share h is room with the
,0 N. Y. Times, Mar. 3, 1875.
"Ibid., Mar. 3, 7, 1875.
'Ibid., June 8. 1875.
-Ibid .. Ju ... e 9, 1875.
·U.S. Atty. Walier Va ... Dyke 10 Ally. Gen . George H.
WilliNn5, Mar. U , 1875, R«ords of the 0ep;!rtmef11 of Justice,
RI't"Ofd Group 60, National Archives 8uildi ... g: N.Y. Timt3.
29, Dec. 30. 1875, Mar. 7. 1876. Unless othcrwi$t'
i ... correspondence of attorney. }lc ... .,,,,1 and Justice Department manuscriplS are m Rl"COrd Group 60.
'"Ibid., Sept. 6, 1875.
"Ibid .. June 12, 1873.
,. 6 9-16; N.Y. Timts, Mar. 23, 1877.
'"I ... L,ttle Rock .. Negro woman was refu...n a ""011 in the
ladi.,,' car, ibid. , Dec. 14. II'J7S. For a similar incident, see
25 r,dwIICQus882.
CIVIL RIGHTS
227
Negro, but the proprietor would not perm it
him to do so, The minister then sat in the enlire nighl and saw eighle-en whiles receive
accommodations. 16
There can be no doubt thai the pressures of
Negroes who sought early and effective enforcement of the Civil Rights Act and the stem
resistance of the whites had much to do with
the desire of U. S. di strict attomeys and marshals for some instructions from Washington.
One Tennessee judge obselVed , 'The severe
penalties imposed by this law upon prosecu ting attorneys and o ther officials w ill, we are
advised, be attempted to be enforced, should
the grand jury fail to indict, in the assumption
that their action will be controlled by such officers unless the Court acts." 11 As Negroes
made their complaints, U. S. attorneys began
to act. They could do nothing, however, unti l
they were fu lly infornled of the provisions of
the law; and the office of the Department of
Justice in Washington was remarkably derelict
in providing attorneys in lhe field with copies
of the act. The attorney general, George H .
Williams of Oregon, was in the final months
of his lenure - he would resign in May 1875and he might well have been preoccupied w ith
other matters. But he senl ou t no special instructions regarding the new act, although during March 1875 he sent out three circulars to
U. S. attorneys and marshals. One dealt wilh
an " Act regulating fees and costs and for other
purposes"; another dealt with recommendations for pardons; and a third contained copies
of an "Act to provide for reductions of terms of
sentence of United States prisoners." 18 One
might assume that the new civil rights law was
at least as important as one regu lating fees and
costs.
U. S. attorneys were obliged, therefore, to
send special and urgent requests to the attorney
general for copies of the new statute. " Please
send me withoul delay a duly certified copy of
the 'Civil Rights Bill' as it exists as a law," the
U. S. attorney for western Tennessee wrote. " I
'-27 Ftdtra/Cd$n 127.
"Charge by Judge Hillmor H. Emmon, 10 the grand jury
of the C,,"Cuil Court for lhe Western Oisuic1 of Tennessee,
1875.30 FtdrrllJ C.sn 1005.
,. Justice Departmenl, InMruction 800k E. pp. )33, 3)3,
"'.
228
PROlOCUE - WINTER 1974
desire it for use in court and am anxious that
it be fOTVlfarded as early as possible." 19 "Complaint is made underthecivil rights law," wrote
the U. S. attorney for the southern district of
Ohio. "Please send me copies of the law." 20
The U. S. attorney for Georgia complained that
he was unable todraw an indictment for several
aggrieved parties because he had not seen a
copy of the law. 'Will you please send me a
ropy of the Law known as the 'Civil Rights Bill'
recently passed." 11 Before the end of the first
month after the bill's passage similar requests
were fOTVlfarded to Attorney General Williams
by U. S. attorneys in Chicago, Savannah,
Raleigh, New Orleans, and San Francisco, The
U. S. attorney for California seemed especially
anxious, for he wrote, "Can I be furnished with
a certified copy of the law prev ious to its appearing in book form. If not I will be compelled
to defer an y prosecutions under it till the session laws are received in the usual way." 22
It was, of course, the responSibility of the
secretary of state to furnish certified copies of
newly enacted legislation, but the interest of
the office of the attorney general in this critical
piece of legislation can hardly be denied . Despile the factlhat the attorney general himself
routinely distributed other acts of Congress to
U. S. attorneys without being solicited, he
nevertheless referred their requests fo r copies
of this act 10 the secretary of state. Later, as lhe
requests increased, he complied with some of
them diredly.23 The disposition of others of
these requests is nOI dear, however. The en-
'·U. S. Ally . W. W. MUITlIY 10 William s, Ml'1Tlphis, Tenn.,
Mar. 4, 1875.
OITt'legram of U. 5 Ally Warner H Bateman to WiUWns,
Cincinnah. MM. 8, 1875.
''''.
5. Ally . H.!'. Farmw 10
Allanta, MM. 9,
1:1 U. S. Ally J. O. Glovu 10 Wilhams, Chicago, Mar 13.
1875; U. S. Commissioner A. N. Wilson 10 Williarru, Si;vannah, Mar 15,1815; U.S. Commissioner R. W. Belil to Wil_
liams. Raleigh, Mar. 15, \875; U. S. Ally. ' . R. Beckwith to
Williams, NcwOrlearuo, Mar. 16, 1875; Van Dyke to Wtlliams,
San Fnnrisro, Mar. 24, 1875.
:&:IISet' Justice Department, Instruction Book E, for JettHS
10 U. S. atto rneys in Memphis and Clodnnati, Mar. 9, 1875,
and San Francisco, Apt. 5, 1875.
dorsement on the request from the U. S. attorney in Atlanta merely indicates that the
letter was "filed "; and one wonders if the attorney ever saw a copy of the statute before the
session laws were printed and distributed .24
Specific requests for instructions and interpretations regardi ng the Civil Rights Act
came into the office of the attorney general
from federal officials in the fi eld and from
others. A member of a legal debating society
in Cincinnati queried the attorney general on
whether the law "contem plated and can be so
construed as to include drinking saloons, and
other places of public resort in its provisions."
"Some of us," the correspondent continued,
"are of the opinion that the preamble to the
law, and the word ' Inns' which in the English
sense also includes drinking places brings all
eating and drinking saloons and their proprietors within the provisions of the civil rights
The attorney general replied courteously that " under the laws creating the offi ce
of Attorney General he is precluded from giving opinions except upon the call of the President or the head of one of the Executive
Deparbnents of the Government." 28 In 1879
the collector of customs at Natchez, Mississippi,
infonned the attorney general that Negroes
constantly complained to him that steamboat
officers refused to carry them "even after they
tende r them the amount of passage money demanded ." The collector wanted to know if any
law of Congress made the officer liable for SO
refusing. 111.e attorney general referred the collector to the Civil Righ ts Act of 1875, which, he
observed, "makes such refu sal an offense to
wh ich considerable penalty attaches, and provides the method by which a prosecuti on for
the penalty or for damages to the party entitled
can be pursued ." 21 Attorney General Charles
Devens ilppears, on the surface, to have been
a bit more willi ng to discuss the Civil Rights
... Farmw to Williams. Atlanb, Mar. 9. 1875.
" William Tr.avi, to WilliamJ, Cincinnati, Mar. 22. 1815.
" Williams to Tr.avis, Mu. 26, 1815. Juslice
. ... Bool< K.
., Collecto r E.
J. Ca5teUor
10 Any Gen. 0"rl6 Devens,
Natchu. Miss" Miy 14, 1879; and Devens 10 usleUo r, May
20. 1879, Juslice [)eparlment,
Book M.
Act than his predecessor, Attorney General
Williams. But neither Devens nor any of the
other four attorneys general who succeeded
Williams during the life of the ad exerted any
more influence than Williams in seeking its
enforcement. ZII
Even w ithout encourageme nt or specific instructions from the attorneys general. the U. S.
attorneys gave evidence of some diligence in
the prosecution of civil rights cases, if only to
escape the penalties of the law. In April 1875.
when a black, William R. Davis, was refused
admission to a New York theater, he called on
Assistant U. S. Attorney Purdy and requested
him to issue a warmnt for the arrest of the
ticket seller. That evening Davis wen t to the
theater with the chief deputy marshal, pointed
out the offender, and the marshal ilITCsted him.
When the case came before the U. S. commissione r, the assistant district attorney appeared
for the government . The counsel for the defense
refused to di sclose what the nature of his defense would be; and the assistant U. S. attorney
said, " It is imperatively required by the law
that the District Attorney shall di!igentlyprosecute all cases arising under it, under penalty of
civil and criminal prosecution , in the event of
failure." Amid laughter. thecommissionersaid,
'1 guess no one will question your zea lous attention toduty." 29 Several days later. when the
case was argued, the assistan t U. S. attorney
sought a ruling from the commissioner regarding the law's constitut ionality but the commissioner declined to make such a ruling. The
grand jury, to whom the case was remanded ,
was not impressed that the Negro had a case;
and it presented no bill against thedefendant. 30
In the Philadelph ia hotel sit-in case in 1876,
both U. S. Attorney Valent ine and his assistant,
Hazlehurst, participated in the prosecution.
They argued successfully that the act was constitutional and that the defendant. in refusing
-The aUomeys general wno 5I'rvNi bt:twffn Milr. I, 1875,
when tt... act was passed, and <XI. 15, 188J, when it was
declared unconstitutmna.l by Ihe Su preme Cou rt, an' as
folio"", H . Will Wns untiJ May 5. 1875. Edwirds
Pie""'PO"t, 1m-76, Al ph0n50 Tafl , 1876-77,Charles Devens,
1877..J1 I . McVeig h, 1881 , and Benjamin 8 n'W'!t .....,
1881-85.
.. N Y.
'10
Apr 22, 1815.
Ib id .. Apr. 21. June 15, 1815.
aVIL RlGI-ITS
229
a room to a prospective guest who was a traveler, "because of color," was guilty "in the
manner and form as he stands indicted. " In
charging the jury Judge John Cadwalader said,
'The case appears to the court to be proved ."
The jury then found the defendant guilty.31
When eighteen b lacks b rought suit again st the
Baltimore and Ohio Railroad Company in
1876, charging that the company assigned
them to a separate c"l.r that they insisted was
inferior, the U. S. attorney, Archibald Stirling,
Jr., joined the a tto rney for the plaintiffs in
pressing the civil action. On the basis of i1
charge by Judge William F. Gi les, the jury
b rought in a decision fo r the defendant, whereupon the U. S. attorney said he would reserve
an exception to the ruling and appeal it to the
U. S. Supreme Court.a2 Although Congress
had deleted the provision for schools from the
1875 bill, the U. S. attorney for the southern
dis trict of Ohio sought to prosecute a township
in C lermont County, Ohio, forexduding Negro
children from the school nearest their home.
The jury found for the defendant, presumably
on the ground that in traveling five miles to the
school designated fo r them the Negroes were
placed at no material disadvantage with respect
to their white neighoors.3:l
Blacks who were aggrieved did not hesitate
to involve federal officials, including U. S.
attorneys, in their efforts to secure redress. In
Ottawa, Kansas, a Negro, Smi th L. Rogers, was
refused a haircut in a white barbershop; and
he went to Topeka to consult with the U. S.
attorney, J. R. Hallowell. Finding the chief
altoO'ey absent, Rogers consulted with the assistant, who promised to refer the matte r to
Hallowell. When Rogers did not receive a reply
as promptly as he thought he should , he d ispatched a letter to the attorney general of the
United States, who, of course, referred the mat ter to H allowell. By that time, however, Rogers
had the reply that he certainly did not wish to
receive. Hallowell wrote, "After an examination
o f yo ur case as presented by you tom y assistant
... and in your letter heretofore received, I am
of the opinion that while the conduct o f the
parties who refused to wait on you on account
"' u.s. v. V FedmII CIIstS 127.
""CI. lly v. & Ohio R.R. Co .. 6 946.
and N.Y. Times. Mar. 23, ]877.
.. U.S. v . Bunlin , 10 Fednal Rep",'e, 730.
230
PROLOCUE - Wir-rrnR 1974
o f your color was reprehensible and unbecoming a citizen of Kansas or of the Uni ted States,
yet I know of no law of the United States which
would make them criminally liable for such
refusa1." 34 Thus, barbershops were added 10
Butler's saloons as places "of su perior privilege"
on which blacks cou ld not trespass.
Since U. S. attorneys were not obliged to participate in civil righlscas{'s, when the aggrieved
party brought a civil action against the alleged
offender to recover the $500 provided for in the
law, they must have been relieved whenever
such ach on was brought. And th e amount was
soaltractive that many aggrieved blacks seemed
to prefer to bring civil action. Indeed, o ne of
the early criticisms of the statute was tha t
"shyster lawyers" wouJd make a business of
sending Negroes into places o f p ublic accommodation with the ho pe that they would be
refused service, thus giving them an opportunity to collect damages, which would be divided between the plaintiff and the lawyer.35
In many parts of the country Negroes took
their complaints to the U. S. commissioners or
U. S. attorneys; and it is not too much to conclude that when they subsequen tly brought
civil sui ts, they did so after consu ltation with or
even upon advice from federal officials.
William R. Davis, the b usiness agent for the
Negro paper Tile Progressive Americarl, had an
opportunity to observe the altitude o f the U. S.
attorney's office in New York to ward criminal
charges against alleged offenders . On the
morning of November 22, 1879, an octoroon
woman who was a friend of Davis purchased
two tickets to a matinee performance at the
New Yo rk Grand Opera House. That afternoon,
when they presented themselves fo r admission,
they werc barred by the ticket taker who to ld
them that their tickets were not vaJ.i d . Then
Davis hired a young white boy to purchase two
tickets for him and gave him ten cents for his
trouble. With the newly purchased tickets
Davis and his lightskinned friend once again
sought admission. She gained entrancc, but
Davis was stopped . When he insisted o n en tering, he was evicted by the police. TIle fo l1owing
day Davis took up the matter of denial of his
.. U. S. Alty. J. R. HaUowell to Smith l. Rogers, Topeka,
Kans. , Sept. 2, 1879; Rogers to Devens, Ottawa, Kans. , Sept.
S, 1879: and Rogers to Deven.s. Ot tawa. Kans., Sept. 22,1879.
.. N. Y. Times. Mar. 14, 1875.
civil rights with Assistant U. S. District Attorney Fiero, who advised Davis that he could
secure "all the vind ication his rights required
by beginning a civil suit in the United States
District Court, the civil penalty recoverable
being $500." Davis was by now an old hand at
civil rights cases. He had lost a case against
Booth's Theater during the first weeks after
the law was passed. At this point, he would
not be denied the full legal assistanre of the
government of the United Sta tes- if he could
get it. Of the assista nt district attorney it must
be said that he argued the case for Davis with
great energy, and when the court divided on
the question of the guilt of the defendant, the
U. S. attorney sent it on to the U. S. Supreme
Court. This became one of the cases to be decided in 1883.:16
The role of the judiciary, especially in the
months jus t after the act was passed, was crucial
in detennining the manner and the zeal with
which it was enforced, if, indeed, it was to be
enforced at aiL And the ever-present question
of the constitutionality of the act was a temptation-even to a U. S. commissioner, to say
nothing of a district or circuit court judge- to
issue an opinion on the weighty question,
thereby becoming a participant in the final decision-making process. Not many judges took
the rather modest position of Robert Dick of
the western district of North Carolina who, in
April 1875, declined to rule on the question of
constitutionality. In answer to the grand jury's
question as to whether or not the act was constitutional, he said, ' The const itutionality of
the Civil Rights bill has been asserted by the
deliberate action of Congress, composed of
many able lawyers and wise and enlightened
statesmen, and it would be very presumptuous
in me, collaterally and without argument, to
decide differently upon a question wh ich that
body carefully considered and acted upon
under the solemn sanction of official ob ligation." 37 Some judges were content to assume
that the statute was constitutional and merely
to pass judgment on the facts in the case.
.. U S. v. Sl:mwrl D. Smg lr fClI, File no. 93511. Supreme
Court tnontenpt, Justice Department; N Y Timtf, Nov 25,
10, 1879, Jan. 15, 1880.
I"INo. 18256, caS(' not cited, 30 r . dnal CR5($ 999. For a
simiLn view, see the charge to the jury by Judge Morrill of
the U. S. District Court for the Eastem District ofTe<a5, N . y.
Tim" , MiOY 5, 1815.
Others seemed almost anxious to comment on
its constitutionality. In either case, the effect
of their opinions, or even of their charges to
the jury, on the enforcement of the act was
extremely important.
One of the earliest judicial opinions regarding the law's constitutionality was given on
June 8, 1875, by Judge R. R. Nelson of the U. S.
District Court of Minnesota. In response to a
request made by a grand jury regarding a case
it was considering, Nelson referred to the doctrine of implied powers set forth in 181 9 by
Otief Justire John Marshall in McCulloch v.
Maryland. "If the opinion in that case," Judge
Nelson said, "correctly represents the extent of
Congressional legislation, the power of Con gress can be exerted directly to put down all
outrage or discrimination on the part of in dividuals when the motive originates only in
race or color.... The law in my opinion is
constitutional." 38 Several months later its
constitutionality was upheld by Judge Alexander Rives of the U. S. Dis trict Court for the
Westem District of Virginia. The U. S. attorney, "deeming it a matter of interest," dispatched a message to the attorney general as
soon as the opinion was rendered. 39
While it is difficult to assess the effect of
favorable decisions in civil rights cases beyond
the specific cases themselves, some judges left
no dou bt that they would not be lenient with
those found guilty of violations. In his charge
to the grand jury, Judge Morrill of the U. S. District Court for the Eastem District of Texas reviewed the Civil Rights Act and expressed the
opinion that "all persons have a legal right to
have board and lodgings at inns, transportation
on steamers, rail roads, or stages, and en!ranre
in theatres." On the basis of this view, the
manager of the Tremont Opera House in Galveston was fined $500 for refusing two Negro
women seats in the parquet of the theater.
When theeditorof the Galveston NroJscriticized
the construction Judge Morrill placed on the
act in his ruling, the outraged judge ordered
the marshal to bring the editor into court and
have him show Cause why he should not be
held in contempt. Through his attorney the
editor inunediately apologized and said that
:1&
N. Y. Tim ... , June 9, 1875.
• u . S. Atty. WiOITef\ S. Liouty to Pierrepont, HarrlJonburg,
Oct. 21 , t87S.
OVIL RIGHTS
231
"no disrespect was intended, nor was any attempt to influence the ruling or bring the court
into disrepute intended." 40
After the first two years, few judges were
hearing cases arising under the act; but in 1882
a judge for the circuit court in the southern
district of Ohio made it qui te clear that the act
should be enforced . The case involved a Negro
woman with a round trip first-class ticket
traveling with her husband and sick child
from Lexington to Cincinnati. As she attempted
to go into the lad ies' ca r, she was stopped by
the brakeman. When the conductor upheld the
brakeman's action , the woman got off and retumed later by another route. In his opinion
Judge Swing said, " In the eye of the law we all
stand now upon the same footing.... Whatever the social relations of life may be, before
the law we all stand upon the broad plane of
equality. And this company was bound to provide fo r this colored woman precisely such
accommodations, in every respect, as were
provided for white women." The jury brought
in a verdict for the plaintiff and awarded her
Sl ,OOOdamages.41
There can be li ttle doubt that adverse judicial
opi nions or criticisms of the act tended to discourage enforcement; and many such views
were expressed during the lifeoftheact. Several
judges, for example, refused to interpret it as
covering places of accommodation or am usement that it did not specifically mention. For
example, in North Carolina, U. S. Commissioner E. H. McQuiggdismisscdonecivii rights
case in March 1875 on the ground that the act
d id not apply to saloons.42 In June 1875, U. S.
Commissioner Betts of New York, wi thout asking the name of the complainant or of the person against whom he desired to enter the complaint, refused to grant a warrant. on the
ground that the law d id not extend to ice cream
parlors.4.l
Some judges did not hesitate to declare the
act unconstitutional and even to chastise Congress for its presumption. Judge Halmor H.
Emmons, ruling in the Circuit Court of the
Westem District of Tennessee, said in the
month the act was passed that Congress had
no right, under the Thirteenth or Fourteenth
Amendment orotherwise, "todedare it a crime
for any individuals to deny to negroes the full
and equal enjoyment of accommodations .. . of
the theaters and inns of a state." 44 In May 1875
Judge Brook of the eastern d istrict of North
Carolina charged the jury that the criminal
fea tures of the statute " in which they as a
Grand Jury were alone interested," were un·
constitu tional. During the same week Judge
Dick charged the grand jury of the western
district of North Carolina that "a citizen of the
United States, under the broad Constitution of
this country can go to any portion of it and
exercise all the immunities which by his freedom he possesses, but no law, human or divine, can compel a hotch-potch of citizens; all
that is ne-cessary are suitable comforts, and
every inn-keeper has a right to exercise his
privilege as to where he shall place his guests,
convenience and comfort being aU that is
required , and no law can say all men shall be
equal socially." 4(1
What Judge Dick seemed to suggest was that
while an innkeeper migh t be expected to provide reasonably equal accommodations for all
travelers, he was not obliged to provide precisely the same ilccommodations. In a case
before the District Court for the Westem District of Texas in 1877, Judge Thomas H. Duval
was much more explicit on the question of separa te but equal accommodations. In part, he
said, " If there are two cars equally fit and appropriate, in aU respects, for use of white female passengers and for colored female passengers, there is no offence of denying a colored
female passenger entrance to one and requiring her to ride in the other." 46 Such an interpretation of the law, however, presented new
opportunities for its evasion. When a Negro
woman, traveling on a steamboat from Savannah to Palatka, Aorida, in 1878 sought firstclass accommodations, the purser refused, say·
ing that the upper deck was reserved for
whites. She then brought him into court and
.. 30
"N.Y. Timn, May S, june 8, 1875.
• , G r<ly
Y. R.R. CD., II Ftdmll Rqtorttr
683.
· ·N.Y. Timn. M .. r. 6, 1875.
o:I lbid., June 12, 1875.
232
PROLOGUE - WINTER 1974
10U5: N .Y. TImn, M3r. 23, ]875.
uN. Y. Timn, May 1,2, 1875, and Hllrptr', Wttloly, M..y 15,
1875, p. 395. See the ruling in • casc, N. Y•
Times. June 7, 1876.
.. U. S. v. Dodgt. 25 CaMS 882. Indeed . in its Oct.
1877 tenn the Supreme Court ruled thaI I louisiana Law ...•
q ulring wh ite and Negro passengers 10 bcaroxnmodated in
accused him of violating the Civil Rights Act.
The purser pleaded that she was noisy and
boisterous while on board. In deciding against
the Negro woman, Judge John Erskine admi tted that common law required carriers to be
open to aU, but he insisted that the owner
could make ru les to preserve order and decorum . He added, somewhat lamely, tha t it was
all right for offi cials of the steamboat to keep
blacks and whites separate, since the accommodations were substantially equal. He said
nothing about the desirability of separating
this allegedly boisterous Negro passenger from
the more decorous Negro passengers, if, indeed, the owner's rules were for the purpose
of preserving order and decorum .47
Thus, there were sharp d ifferences among
federal judges regard ing the question of consti tutionality. Some assumed the acl to be
constitutional, wh ile others were quile certain
of that. On the other hand, some den ied thai
their courts had jurisdiction to rule on such
matters, while others declared, with considerable feeli ng. that the law was unconstitutionaL
Some merely nullified the effect of the law
by declaring that its requirements had been
satisfied w hen separate but substantially equal
accommodations were provided . The s ituation
became so confu sed and the chances of relief
under the act so uncertain that there is small
wonder thai after 1877 the number of complaints declined significantly. Perhaps an even
more importan t explanation for the decline in
cases a riSing under the act was the preoccu pation of federal offi cials wi th secu ring a ruling
by the Supreme Court.
Very soon after passage of the act, judges in
lower courts and other interested persons
began to focus their attention on the Supreme
Court with the hope tha t it would soon nile on
the law's constitutionali ty. In July 1875, Judge
Halmor H. Emmons, who in March had declared the act unconstitutional, inquired of the
attorney general whether the Supreme Court
had before it any case involving its constitutionality. The attorney general replied that no
" u . S. Atty . j. H. Stand ish to Pierrepont. Grand RoIpids,
july 7, 1875; S. F. I"'illips, soJ.id tor general and acting . ttorney general , to july 12, 187S, JustiOi!' Instruction Book F. Standish had written at the suggeshon 01
Judge Emmons.
the 5.1me cabin WaS unconstitu tiona l. Hall v CRCwi" 95
U. 5. 485.
.. U. S. Y. Mw"ay Stlmlry. Fi le no. 7826, Supreme Court
transcript. JU1Ui« The rase filed with the
Cou rt Oct. 6. 1876.
. , e ,u " v CIty of g, r"dgtto" , 10 Cases 1090. See also
Smoot v . Cr" l,a l Rllliway Co., 13 Frdera l RtpCtrlu 337, in
wh ich the ludge d"niro thai he had jurisd k l io" to rule 0"
accommodations.
such case was before the Court.- It was to be
only a matter of months, however, before such
cases would be on the docket of the high court.
The first case arose in Kansas. In October
1875 one Murray Stanley of Topeka, Kansas,
refused to serve supper to a Negro who came to
hjs inn . The grand jury indicted Stanley for
conduct in violation of an act of Congress and
"against the peace and dignity of the United
States." In June of the follow ing yea r, aft er a
good deal of legal maneuvering on both sides,
the judges of the U. S. circuit court in Kansas
divided in their opinion . They agreed, with
much pleasure it would appear, to send the
case to the Supreme Court.49
At about the same time anothe r civil rights
case reached the Court from Califo rn ia . It involved the denial of a seat to a Negro in the
dress circle of Maguire'S New Theatre in San
Francisco. The defendant, Michael Ryan, fi led
a dem urrer to the charge that he had violated
the law and challenged both the substance and
form of the information that had been presented. The circuit court sustained him and dismissed the case. The U. S. attorney sent the record of the case to the Supreme Cou rt, where it
was filed October 14, 1876. so In transmitting
the case to the a ttomey general, the U. S. attorney for Califom ia was almost apologetic. He
observed that th is was merely "one of a large
number of cases which I am compelled under
heavy penalties to bring." Thus, eighteen
months afte r it was passed, the Supreme Court
had before it two cases involving the Civil
Rights Act. It would be seven years, however,
before the Court disposed of these and similar
"'''''.
In subsequent years other civil rights cases
came to the Supreme Court. The Court received
one from Missouri in 1877 involving the denial
of a room to a Negro at an inn in Jefferson City.
..0 U. 5 Y. Mirilarl Rya", File no. 7914, Sup reme Court
transcri pt , jU$lice Depart ment.
., Ibid .. U. S. Atly. J. M. Coghlan to Atly.
FranciKO, Oct. 3, 1876.
Tafl , San
OVlL RlC IITS
2JJ
A case involving the eviction of a Negro
woman from the ladies' car in Tennessee
reached the Court in 188O. ln the same year William R. Davis, the Negro who had been denied
a seat at the New York Grand Opera, placed his
case before the Cou rt.S2 The judges of the lower
cou rts were most cooperative in facilitating
appeals to the Supreme Cou rt in each of these
cases. At the level of the circuit court, the
judges- two in number - were quile conveniently d ivided; and the cons istency of the
division suggests that this was a technique by
which the circu it judges were pleased to send
the cases on to the Court, s ince there was no
danger of thei r being reversed .
The opening of each term of the Coun, beginning in 1876, caused a bui ldup of anxiety
regarding possible decisions in the civil rights
cases. The closing of each term, with no decis ion on the cases, brought a correspond ing
amount of disappointment to the legal profes sion and to the general public. The reason for
the delay is not clear. It may be that the Court
was waiting fo r a variety of cases; but it had a
rich variety by 1880. However, the reason for
the de lay is not relevant to th is d iscussion. At
the same time, the fact that there was inordinate
delay is qui te relevant. It was well known
throughout the coun try that the Supreme Court
began to cons ider its first civil rights case in
1876. There can be no dou bt that lawyers,
judges, and even the public tended to suspend
activity in the area of civil rights, hoping that
the matter would soon be settled once and for
all by the nat ion 's highest tribunal. In 1879
Judge Gresham took a civil rights case under
advisement and said that he would not rule in
the matter because of an impend ing decision
by the Supreme Cou rt. In reply to an inquiry
from the U. S. attorney for Indiana, the attorney general in formed him that the Court would ,
perhaps, reach the Kansas civil rights case "in
a month or two." During the nexl fou r years the attorney general was besieged wi lh requests for informat ion
regarding pending civil righ ts cases. In March
1880, he wrote the U. S. attorney in New York
that the civil rights cases " have remained unacted upon." M In the following mon th he
speculated that the cases would be decided by
Ihe Su preme Court "at a very early day of its
nexl term, in October next." M To the U. S.
a tto mey al Nashville, Tennessee, who was interested in one of the cases, he wrote in November 1880 that he wou ld move 10 have it
advanced so Ihal it could be argued with the
olher cases .:i6 But the cases were not argued
du ring that A year later, the attorney
general 's offi ce had to report that "nothing had
been said allhis term about these cases." For anolher two years the nation waited.
Finally, in October 1883, the Su preme Court
declared that Congress had no power to pass
laws regulating the conduct and transactions
of individuals unless it was clothed with direct
and plenary powers of legislation ove r a whole
subject, such as foreign or interslate commerce, commerce wi th Ind ian tribes, the coinage of money, the establishment of post offices
and post roads, or declaring war. "But where a
subject is not subm itted to the genemllegisla·
live power of Congress, but is only submitted
thereto for the purpose of renderi ng effective
some prohibition agains t particular state legis·
lalion o r slate action in reference to Ihat
subject, the power given is limited to its object,
and any legi slation by Congress in the mailer
must necessarily be corrective in its character."
Mr. Justice Bradley said Ihat the Civi l Rights
Act was not corrective, but primary and direct
and , therefore, unconstitutional. 111e wrongful
acts of an indi vidual, unsupported by state
authority in the shape of laws, customs, judicial, o r executive proceedings, were "simply a
private wrong, or a crime of that ind ividual."
..a U. S. v. Srmtud N/rho/s, Fileno. 8060, Feb. 5. 1877; R,ch"nJ
"Devens to U. S. Atty. James A. Wardner. Nov. 30, 1880.
ibid .
A. Rol""so,,, ""d Slll/,t J. /", W,ft v. M mrphis & R.R. Co .. File no. 9402, Feb. 7, 1880; ;and U. S. v. s,,",u t/ D.
Si"S/t lo" . File no. \1358, Mar. 10, 1880, Sup ...me: Court
transcripts, Justice I)q>artmen!.
..a U. S. Alty. Nelson Truslu to Drvens, [ndi;anipolis, J;tn.
14, 1879; [)evms to Tru sler, Jan . 17. 187'9, Ju s!ice I)q>artment,
Instruction Book Ii.
234
PROLOGUE- WINTER 11174
.. Devens 10 S. L \\bodford , Mar. 4, 1880, jUlti"" Depart·
ment , Instruction BooI< I.
.. Devens to Chari.... L Holston , Apr. 30, 1880, Justice
I)q>artmenl, imtruction IIool< K .
I' See Mi"ute!; of the Supreme Court of the Unit..d Stat....,
Record Group 267, Arcnive$ Microfilm Pub\k;atiOl1
M2 15, roll 14•
MPhillip5 to B. Sawyer, Nov. 17, 1881 ,
[nSlruct io" Book l .
Redress or relief must be sought from the state,
not from the federal During the days following the decision,
numerous citizens expressed their views regarding its wisdom and its justice. None was
more eloquent or passionate than Frederick
Douglass, by far the outstanding Negro leader
of the time. Before a protest meeting held in
Washington o n October 22, 1883, he expressed
deepest regret that the Court had seen fi t to
strike down the law. ' When it has taken its
place upon the statute book," he said, "and
has remained there for nearly a decade, and
the country has la rgely assented to it, you will
agree with me that the reasons for declaring
such a law unconst itutional and void should be
strong, irresistible, and absolutely conclusive." 00 These remarks struck a high note that
was more eloquent than accurate. I-Ie could
hard ly have proved that the country had
"largely assented " to the act. Much more hardheaded and realistic were the comments of the
white ed itor of an Arkansas newspaper who
said, ''Wh ile publicopinion decrees that whites
and blacks shall not enjoy the social relations
of equality the Civil Rights Act of 1875 pronounces the latter entitled 10, no such measure
can be enforced, even though pronounced constitutional a thousand limes. Society decides
for itself what is and what is not social equality .
The sta tutes cannot decide it. At all even ts,
they cannot be enforced in th is regard against
public sentiment." 61
The Civi l Rights Act was never effectively
enfora>d; but the reasons were a bit more complex than those suggested by the Arkansas
editor. From the day it was introduced in 1870
until it was declared unconsti tu tional thirteen
years later, il was bitterly assailed by its numerous enemies and only lamely defended by
its dwindling number of friends. In the South
it found no general support, except among
blacks, while in the North the o pponen ts
seemed to be at least as numerous as supporters. The air of controversy that surrounded
its enactment continued to dog it aU its life;
and there could have been little chance for
effective enforcement when the status of the
"IO')U S. 3.
• ProcuJ",ss of lite R.ghl! M gss Mufl ns , Lmcoln Hgl/,
Oc,. 22 . 188J (W;o.sh in!)ton, 1883), p. 6.
.. O:ily A.,kuSils (;gUllt , Oct. ]9, 1883.
gro up it was designed to benefit was generally deteriorating. A Mississippi editor said
in the year it was passed that any effort to inculcate in the Negro the great truths that mankind has discovered "but tends to bestialize
his nature and by obfuscating his little brain
un fits him for the d uties assigned him as a
hewer of wood and drawer of water. The effort
makes him a demon of w ild, fanatical destruction and consigns him to the fata l shot of the
white man." 62 Two years after the act was
passed, one of the most respected ed.itors of
the North made a final pronouncement on the
Negro when he said na tly and unequivocally,
"Henceforth, the nation as a nation will have
nothing more to do with him ." 63 This was not
a climate that was congenial to theenforcernent
of equal rights for Negroes.
Surely the lukewann-to-indiffercnl altitude
of the federal officials toward the Civil Rights
Act had much to do with the manner in which
it was indifferently enforced . When the attorney general did not feel obliged even to provide his subordinates with copies of the act
and when the greatest pressure on U. S. attorneys and marshals arose from the fact that
dereliction on their part migh t be costly, there
was no reason to expect vigorous enforcement .
There was, moreover, the unsettling effect that
the numerous adverse decisions of the lower
courts had on enforcement. Neither federal
officials nor the general public of a part icular
judicial district could muster much enthusiasm
for the law or even respect for it when jl,ldges
excoriated not only the law but the lawmakers
as well. Finally, the unconscionable Six-year
delay by the Supreme Court itself merely
created a state of suspense d uring which both
the white public and federal officials fe lt that
they could ignore the law with impunity. Long
before the act was struck down by the Court it
had become a casualty in the war waged by
white supremacists who were detennined to
make certain that the freedom of the Negro,
forged out of an earlier war, would be most
0
carefully proscribed.
"'MISSISSI ppi Wttkly Pilot, Apr. 10, 1875, quolin!) lhe
H;onds boro lHmlX'l'gl. in Vemon L Wharton, The N<'Sr1l in
/\1,S$i561pp', 186$-1890 (o.apd Hill. 1947), p. 1M.
ATht
24 (Apr. 5. 1871),202.
Rayford W.
Logan, Tht Ntgro on Amrri(gn utt and 71Io1l8hl: TItt Ngd",
1877- 1901 (New York, \954), PI" 159- 169.
CIVIL RIGHTS
2J5