January 5, 1866, Mr. Trumbull, of Illinois, introduced “a bill
to protect all persons in the United States in their civil
rights, and furnish the means of their vindication,” which was
referred to the Judiciary Committee, of which he was Chairman.
By this bill all courts, National and State, were opened to
colored persons as parties and witnesses as to white citizens,
and they were subject to like punishments. January 11th, he
reported it to the Senate with amendments, and the next day
the Senate proceeded to its consideration. The amendments were
adopted, when, on motion of Mr. Trumbull, it was postponed.
January 25th, its consideration was resumed, and continued
until February 2d, when it passed the Senate,--Yeas 33, Nays 12.
March 13th, the bill passed the House of Representatives, with
amendments,--Yeas 111, Nays 38. The Senate promptly concurred
in the House amendments.
March 27th, President Johnson returned the bill to the Senate
with his objections.
April 6th, after debate of several days, the bill passed the
Senate again, notwithstanding the veto of the President, two
thirds agreeing,--Yeas 33, Nays 15.
April 9th, it passed the House again, notwithstanding the veto
of the President, two thirds agreeing,--Yeas 122, Nays 41.
* * * * *
Mr. Sumner, on the first day of the session, had introduced
a “Bill supplying appropriate legislation to enforce the
Amendment to the Constitution prohibiting Slavery.”[212] He
had also succeeded at an earlier day in opening the courts
of the District of Columbia,[213] and then the courts of the
United States, to colored testimony.[214] The bill of Mr.
Trumbull was introduced after consultation with Mr. Sumner,
who watched its progress with absorbing interest, not doubting
that it would be a precedent for a similar bill securing
political rights. That the latter were embraced in civil
rights was ably stated by Mr. Bingham, of Ohio, in the House
of Representatives, while the Civil Rights Bill was under
discussion.
“A distinction is taken, I know very well, in modern
times, between civil and political rights. I submit with
all respect that the term ‘political rights’ is only a
limitation of the term ‘civil rights,’ and by general
acceptation signifies that class of civil rights which
are more directly exercised by the citizen in connection
with the government of his country. If this be so, are
not political rights all embraced in the term ‘civil
rights,’ and must it not of necessity be so interpreted?
Blackstone, whose Commentaries on the Common Law are so
exact in definition, uses in that classic of the law the
terms ‘civil liberty’ and ‘political liberty’ everywhere
as synonymous. It never occurred to him that there was a
colorable distinction between them.”[215]
Another point equally clear to Mr. Sumner was, that a bill
to secure equal rights at the ballot-box was “appropriate
legislation” in enforcement of the Constitutional Amendment
abolishing Slavery, just as much as the Civil Rights Bill. If
the latter was constitutional, so also was the former. This
appears in the speech of February 5th and 6th, and also in that
of March 7th. But he took care to present it briefly in the
debate on the Constitutional Amendment.
February 9th, interrupting Mr. Reverdy Johnson, of Maryland,
with his permission, Mr. Sumner, after reading the operative
words of the Civil Rights Bill, which had already passed the
Senate and was then pending in the House, said:--
As I understand it, this bill, which, as the Senator will see, actually
annuls all State laws, everywhere throughout the United States, fixing
any inequality in civil rights, is founded upon the second clause of
the recent Amendment to the Constitution abolishing Slavery. Now the
point to which I ask the attention of the Senator, before he passes
from this branch of the discussion, is, whether, if we can annul all
State laws declaring inequality in civil rights, we cannot also annul
all State laws declaring inequality in political rights? whether,
if this bill is constitutional, as I believe it is, such a bill as
I propose would not also be constitutional? And in this connection
I call attention to the famous judgment of Chief Justice Marshall,
which the Senator remembers so well, in the case of _M’Culloch_ v.
_The State of Maryland_,[216] where the Chief Justice distinctly
announces, having the point before him, that it is within the power of
Congress to select its means, provided the means are appropriate to the
end, and it is not for the Supreme Court, or any other branch of the
Government, to sit in judgment on the means Congress chose to select.
Therefore, if Congress now think, that, to enforce the abolition of
Slavery, it is necessary, in the first place, to annul all inequality
of civil rights, and, in the second place, to annul all inequality of
political rights, I ask the Senator whether the latter proposition
can be called in question?--whether an Act of Congress annulling all
State laws declaring inequality of political rights is not absolutely
constitutional, being “appropriate legislation” to enforce the
Constitutional Amendment?
Mr. Johnson replied, that he had stated more than once that the
bill on which Mr. Sumner “now relies is unconstitutional,” and
then said:--
“But even supposing it to be within the power of Congress
to pass a law of that kind, it by no means follows that
I think it has power to pass a law placing all the
inhabitants of the States on the same political ground.”
Later in his speech Mr. Sumner interrupted Mr. Johnson again,
with his permission:--
My argument is, that, if, to carry out the prohibition of Slavery,
and to complete the duty of Abolition, it shall be regarded necessary
to confer the franchise, it is within the power of Congress so
to do. And now I ask my honorable friend to give the Senate the
benefit of his opinion on this precise point. If Congress, under the
Constitutional Amendment, can secure equality of civil rights, may
it not, _a fortiori_, secure equality in political rights, under the
same clause? I do not ask the Senator whether in his opinion it may
under that clause confer equality in civil rights. I assume that it
can, and the Senator knows well that the Senate has acted accordingly.
Senators all about me assume that power; and now I ask the Senator, as
a Constitutional lawyer to whom we refer daily, whether, if you can do
the one, you cannot do the other?
Mr. Johnson replied at once: “I answer that in the negative
very decidedly, and have only time to give a few reasons for
it.”
* * * * *
The following remarks, sketched for a speech on the veto of the
Civil Rights Bill, and not delivered, are presented here in
illustration of opinion at that time.
If I have not taken part in this debate, it is not from lack of
interest in the question, but because on other occasions I have
expressed my views on our duty to maintain the freedmen in their
rights, civil and political, and since the cause, in the hands of the
able Chairman of the Judiciary Committee [Mr. TRUMBULL], needed no
assistance from me. I cannot disguise my joy that a measure like that
now pending should receive the support it does. This is an augury for
the future. If I were disposed to despair on other questions, I should
take heart, when I see how Senators, once lukewarm, indifferent, or
perhaps hostile, now generously unite in securing protection to the
freedman by Act of Congress.
But, Mr. President, I am unwilling that this debate should close
without at least one remark applicable to the future. You are about to
decree that colored persons shall enjoy the same civil rights as white
persons,--in other words, that with regard to civil rights there shall
be no distinction of color; and this you do under the Constitutional
Amendment by which Congress is empowered to “enforce” the prohibition
of Slavery by “appropriate legislation.” Rightly you regard the
present proposition as “appropriate legislation” to this end. It is
so, unquestionably. But I should fail in frankness, if I did not give
notice that at the proper time I shall insist that every reason,
every argument, every consideration, by which you assert the power of
Congress for the protection of colored persons in civil rights, is
equally strong for their protection in political rights. There is no
difference between the two cases. In each you legislate to the same
end,--that the freedman may be maintained in that liberty so tardily
accorded; and the legislation is just as appropriate in one case as in
the other.
All this, Sir, I have seen from the beginning; but I have been
unwilling to embarrass the present bill by any additional proposition.
The protection of colored persons in their civil rights by Act of
Congress will be a great event. It will be great in itself. It will be
greater still because it establishes the power of Congress, without
further Amendment of the Constitution, to protect colored persons in
all their rights, including of course the elective franchise. The
power is ample. I trust that you will not hesitate to exercise it.
…
The able and exhaustive argument of the Senator from Illinois [Mr.
TRUMBULL] has rendered all minute discussion of the veto superfluous.
He has taken it up paragraph by paragraph, and has shown how absolutely
unfounded it is in reason or authority. And then again, when the
Senator from Maryland [Mr. JOHNSON] attempted to vindicate it, he has
most successfully quoted that Senator against himself. If argument
could avail, the veto is already lost, even without a vote.
But there are considerations of a more general character, which I
desire to present very briefly; for at this stage of the debate I
cannot venture to trespass on your attention.
Sir, you do not forget the Dred Scott decision, pronounced just as
Mr. Buchanan was coming into power,--fit decision to inaugurate such
a Presidency. Take it all in all, that decision must always stand
forth in bad eminence, as perhaps the most thoroughly perverse and
reprehensible in judicial history. Whether regarded in the light of
morals or politics or jurisprudence, or of juridical history, it was
simply shocking. It was an insult to conscience, to reason, and to
truth.
The essential element of this decision was, that persons “guilty of
a skin not colored like our own” could not be citizens of the United
States; and this postulate was sustained by that remarkable assertion,
outrageously false in history, that at the adoption of the Constitution
colored persons were regarded as having no rights which the white
man was bound to respect,--when, in point of fact, at that time they
enjoyed the right of citizens in several States of the Union, while
in England, Scotland, France, and Holland, to say nothing of other
countries, it had been solemnly declared that all men within their
respective borders were free.
In the lapse of time this decision passed out of sight. It seemed to
be dead. Blasted at once by an indignant public sentiment, it received
a more formal condemnation on two separate occasions: first, when the
Attorney General, in an elaborate opinion, declared that a colored
person was a citizen of the United States;[217] and, secondly, when
the Supreme Court of the United States admitted a colored person as a
counsellor at its bar.[218] We all thought this decision dead, and the
whole practice of the Government was altered accordingly. Passports
were issued to colored persons as citizens, and licenses to enter into
the country trade were awarded to colored persons as citizens. For the
time being that ill-begotten decision was practically dead.
But now it is once more alive. Bursting the cerements of the grave, it
again stalks into this Chamber to fright us from our propriety. Not
now from the Supreme Court does it come, but from the President. That
public opinion which did not hesitate to condemn the Supreme Court
cannot hesitate now to condemn the President.
The veto does not undertake to declare precisely that colored
persons are not citizens under the Constitution, but it forbids all
legislation positively declaring this citizenship. It is the Dred
Scott decision in a new draught. It is the same thing, only with a
new shake of the kaleidoscope. You cannot adopt this veto without
practically overturning the recent practice of the Government, and
setting aside that opinion of Attorney-General Bates which is one of
the most illustrious acts in the Administration of President Lincoln.
For myself, I have always regarded that production as of the first
importance in our recent history. The future historian, as he records
the events by which the Republic has been elevated, must dwell with
pride upon that simple act, where a single officer of the Government
did so much to fix the liberties of a race.
I have said that this veto revives the Dred Scott decision. It does
more. It is bad to revive the worst decision in our history; but this
veto practically sets aside one of the best decisions in our history.
I refer to the case of _M’Culloch_ v. _Bank of Maryland_, where our
great magistrate, Chief Justice Marshall, expended all his marvellous
talent in expounding the powers of Congress under the Constitution. In
all the annals of the Supreme Court there is no decision more carefully
considered or wrought with a finer skill. In this remarkable judgment
it has been positively declared, that, where the Constitution confers
upon Congress certain powers, it is within the discretion of Congress
to determine when and how they shall be exercised. Here are the precise
words:--
“The government which has a right to do an act, and has imposed
on it the duty of performing that act, must, according to
the dictates of reason, be allowed to select the means; and
those who contend that it may not select _any appropriate
means_, that one particular mode of effecting the object is
excepted, take upon themselves the burden of establishing
that exception.… Let the end be legitimate, let it be within
the scope of the Constitution, and _all means_ which are
appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the
Constitution, are constitutional.”[219]
According to this authoritative text, Congress must determine the
“means” it will employ in the exercise of its powers. But this veto
pretends to despoil Congress of this discretion.
In the exercise of its discretion, Congress has undertaken to assure
civil rights to colored persons. It has been moved to this especially
in pursuance of the second clause of the Thirteenth Amendment, where
it is empowered to enforce the prohibition of Slavery by appropriate
legislation. The present bill is regarded as essential to enforce the
prohibition of Slavery, and Congress, in the exercise of its discretion
under the Constitution, has passed it. But the veto comes to arrest
this discretion. So far as its influence goes, it will neutralize and
nullify the great Amendment by which Slavery has been abolished. It
leaves the letter in the Constitution, but it takes away the powers by
which that letter is made a living soul.
* * * * *
I have said enough to condemn the veto. I have shown, first, that
it revives a most odious judgment, and, secondly, that it subverts
a received rule of interpretation, and degrades that Constitutional
Amendment which is the glory of our recent history. But I go further.
…