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      The specific enumeration was in response to a sentiment expressed at the very outset by Senator John Sherman, who desired to secure such rights to the freedmen, “naming them, defining precisely what they should be.” ¹⁵ Shortly stated, freedmen were to have the same enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said William Lawrence of Ohio, were the “ necessary incidents of these absolute rights,” that is, of “life, liberty, and property,” lacking which those “fundamental rights” could not be enjoyed.¹⁶ It was these “enumerated rights,” “stated in the bill,” said Martin Thayer of Pennsylvania, that were “the fundamental rights of citizenship.” ¹⁷

      Section 1 of the Bill was a studied response to a perceived evil, the Black Codes,¹⁸ which the Republicans averred were designed to set emancipation at naught, to restore the shackles of the prior Slave Codes, and to return the blacks to serfdom. The Bill was necessary, Senator Henry Wilson of Massachusetts said, because the new Black Codes were “nearly as iniquitous as the old slave codes.” ¹⁹ Citing the prewar Slave Code of Mississippi, which prohibited the entry of a free Negro into the State, travel from one county to another, serving as a preacher, teaching slaves, and so on, Senator Trumbull stated that “the purpose of the bill . . . is to destroy all these discriminations.” ²⁰ References to the Black Codes stud the debates:²¹ they were described as “atrocious” and “malignant.” ²² Samuel W. Moulton of Illinois, William Windom of Minnesota, Thomas D. Eliot of Massachusetts, and Senator Daniel Clark of New Hampshire considered that the Bill was needed to protect the Negro against “damnable violence,” “wrong and outrage,” “fiendish oppression,” “barbarous cruelties.” ²³ As Senator John B. Henderson, a Republican from Missouri, stated, “though nominally free, so far as discriminating legislation could make him [the black] so he was yet a slave.” ²⁴ Republicans did not have to travel beyond the halls of Congress to savor Southern recalcitrance. Toward the close of the debates, Benjamin G. Harris of Maryland, an old-line Democrat, said,

      The States will still retain control and govern in their own way that portion of their population without leave asked of the United States. Mr. Speaker, all the efforts made here or elsewhere to educate the negro to an equality with the white man in the southern States, either civilly, socially or politically, are perfectly idle. The negro must be kept in subordination to the white man.²⁵

      So it proved.

      The explanations of the Civil Rights Bill by the respective committee chairmen made its limited objectives entirely clear. Speaking to “civil rights and immunities,” House Chairman Wilson asked,

      What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed . . . Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.”

      quoting Chancellor Kent.²⁶ Of “immunities” Wilson said that a black should “not be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . This is the spirit and scope of the bill, and it does not go one step beyond.” ²⁷ M. Russell Thayer of Pennsylvania stated that “to avoid any misapprehension” as to what the “fundamental rights of citizenship” are, “they are stated in the bill. The same section goes on to define with great particularity the civil rights and immunities which are to be protected by the bill.” And, he added, “when those civil rights which are first referred to in general terms [that is, civil rights and immunities] are subsequently enumerated, that enumeration precludes any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated,” that the Bill was for “the protection of the fundamental rights of citizenship and nothing else.” ²⁸ Wilson emphasized that the rights enumerated were no “greater than the rights which are included in the general terms ‘life, liberty, and property.’ ” ²⁹ He did not proceed from the dictionary but responded to a sentiment unequivocally articulated by James W. Patterson of New Hampshire in a later discussion of the Fourteenth Amendment, for which he voted. I am opposed, he stated, “to any law discriminating against [blacks] in the security of life, liberty, person, property and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality . . . are . . . the worst enemies of the colored race.” ³⁰

      Such views had been expressed in the Senate by Trumbull, who drafted the Bill: “The bill is applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.” ³¹ Commenting on Corfield v. Coryell, Trumbull stated that such cases had held that under the “privileges and immunities” of Article IV, §2, a citizen had “certain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.” These were the rights with which the Civil Rights Bill would clothe the Negro.³²

      Suffrage, said Senator Jacob M. Howard in later explaining the Fourteenth Amendment, is not “one of the privileges and immunities thus secured by [Article IV, §2 of] the Constitution”; it is not, said Senator William P. Fessenden of Maine, chairman of the Joint Committee on Reconstruction, a “natural right.” ³³ Trumbull stated that the Bill “has nothing to do with the right of suffrage, or any other political rights.” ³⁴ When Senator Willard Saulsbury, a Democrat of Delaware, sought specifically to except “the right to vote,” Trumbull replied: “that is a political privilege, not a civil right. This bill relates to civil rights only.” ³⁵ And he reiterated that the Bill “carefully avoided conferring or interfering with political rights or privileges of any kind.” ³⁶ The views of Trumbull and Wilson were shared by fellow Republicans. The “only effect” of the Bill, said Senator Henderson, was to give the blacks the enumerated rights. “These measures did not pretend to confer upon the negro the suffrage. They left each State to determine the question for itself.” ³⁷ Senator Sherman said the bill “defines what are the incidents of freedom, and says that these men must be protected in certain rights, and so careful is its language that it goes on and defines those rights, the rights to sue and be sued [etc.] . . . and other universal incidents of freedom.” ³⁸ Thayer stressed that the bill did not “extend the right of suffrage,” that suffrage was not a “fundamental right.” ³⁹ That the purpose of the bill was to prevent discrimination with respect to enumerated, fundamental not political or social rights, was also stated in one form or another by Cook and Moulton of Illinois, Hubbell, Lawrence, and Shellabarger of Ohio, and Windom of Minnesota.⁴⁰

      Since Corfield v. Coryell ⁴¹ is cited on all hands, it will profit us to consider its bearing on the scope of “privileges or immunities.” The actual holding was that the phrase did not confer on an out-of-state citizen the right to dredge for oysters in New Jersey waters. In passing, Justice Washington stated:

      

      We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental . . . They may, however, be all comprehended under the following general heads: Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety . . . The right of a citizen of one state to pass through, or reside in any other state, for purposes of trade, agriculture, professional pursuits,⁴² or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either

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