CHAPTER IX.

THE CIVIL RIGHTS BILL IN THE SENATE.

Duty of Congress consequent upon the Abolition of Slavery --

Civil Rights Bill introduced -- Reference to Judiciary

Committee -- Before the Senate -- Speech by Mr. Trumbull --

Mr. Saulsbury -- Mr. van Winkle -- Mr. Cowan -- Mr. Howard

-- Mr. Johnson -- Mr. Davis -- Conversations with Mr.

Trumbull and Mr. Clark -- Reply of Mr. Johnson -- Remarks by

Mr. Morrill -- Mr. Davis "wound up" -- Mr. Guthrie's Speech

-- Mr. Hendricks -- Reply of Mr. Lane -- Mr. Wilson -- Mr.

Trumbull's closing remarks -- Yeas and Nays on the passage

of the Bill.

The preceding Congress having proposed an amendment to the

Constitution by which slavery should be abolished, and this amendment

having been "ratified by three-fourths of the several States," four

millions of the inhabitants of the United States were transformed from

slaves into freemen. To leave them with their shackles broken off,

unprotected, in a new and undefined position, would have been a sin

against them only surpassed in enormity by the original crime of their

enslavement.

As provided in the amendment itself, it devolved upon Congress "to

enforce this article by appropriate legislation." The Thirty-ninth

Congress assembled, realizing that it devolved upon them to define the

extent of the rights, privileges, and duties of the freedmen. That

body was not slow in meeting the full measure of its responsibility.

Immediately on the reässembling of Congress after the holidays,

January 5, 1866, Mr. Trumbull, in pursuance of previous notice,

introduced a bill "to protect all persons in the United States in

their civil rights, and furnish the means of their vindication." This

bill, having been read twice, was referred to the Committee on the

Judiciary.

It was highly appropriate that this bill, involving the relations of

millions of the inhabitants of the United States to the Government,

should be referred to this able committee, selected from among the men

of most distinguished legal ability in the Senate. Its members were

chosen in consideration of their high professional ability, their long

experience, and exalted standing as jurists. They are the legal

advisers of the Senate, whose report upon constitutional questions is

entitled to the highest consideration.

To such a committee the Senate appropriately referred the Civil Rights

Bill, and the nation could safely trust in their hands the great

interests therein involved.

The bill declares that "there shall be no discrimination in civil

rights or immunities among the inhabitants of any State or Territory

of the United States on account of race, color, or previous condition

of slavery; but the inhabitants, of every race and color, without

regard to any previous condition of slavery or involuntary servitude,

except as a punishment for crime whereof the party shall have been

duly convicted, shall have the same right to make and enforce

contracts, to sue, be parties, and give evidence, to inherit,

purchase, lease, sell, hold, and convey real and personal property,

and to full and equal benefit of all laws and proceedings for the

security of person and property, and shall be subject to like

punishment, pains, and penalties, and to none other, any law, statute,

ordinance, regulation, or custom to the contrary notwithstanding. Any

person who, under cover of any law, statute, ordinance, regulation, or

custom, shall subject, or cause to be subjected, any inhabitant of any

State or Territory to the deprivation of any right secured or

protected by the act, or to different punishment, pains, or penalties,

on account of such person having at any time been held in a condition

of slavery or involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, or by reason of his

color or race, than is prescribed for the punishment of white persons,

is to be deemed guilty of a misdemeanor, and, on conviction, to be

punished by a fine not exceeding $1,000, or imprisonment not exceeding

one year, or both, in the discretion of the court."

Other provisions of the bill relate to the courts which shall have

jurisdiction of cases which arise under the act, and the means to be

employed in its enforcement.

That no question might arise as to the constitutionality of the law,

all the provisions which relate to the enforcement of the act were

borrowed from the celebrated Fugitive Slave Law, enacted in 1850. It

was a happy thought to compel the enemies of the negro themselves, as

judges, to pronounce in favor of the constitutionality of this

ordinance. It is an admirable illustration of the progress of the age,

that the very instruments which were used a few years before to rivet

tighter the chains of the slave, should be employed to break those

very chains to fragments. It shall forever stand forth to the honor of

American legislation that it attained to more than poetic justice in

using the very means once employed to repress and crush the negro for

his defense and elevation.

Within less than a week after the reference of this bill to the

Judiciary Committee, it was reported back, with no alteration save a

few verbal amendments. On account of pressure of other business, it

did not come up for formal consideration and discussion in the Senate

until the 29th of January. On that day Mr. Trumbull, having called up

the bill for the consideration of the Senate, said:

"I regard the bill to which the attention of the Senate is now called,

as the most important measure that has been under its consideration

since the adoption of the constitutional amendment abolishing slavery.

That amendment declared that all persons in the United States should

be free. This measure is intended to give effect to that declaration,

and secure to all persons within the United States practical freedom.

There is very little importance in the general declaration of abstract

truths and principles unless they can be carried into effect, unless

the persons who are to be affected by them have some means of availing

themselves of their benefits. Of what avail was the immortal

declaration 'that all men are created equal; that they are endowed by

their Creator with certain inalienable rights; that among these are

life, liberty, and the pursuit of happiness,' and 'that to secure

these rights governments are instituted among men,' to the millions of

the African race in this country who were ground down and degraded,

and subjected to a slavery more intolerable and cruel than the world

ever before knew? Of what avail was it to the citizen of

Massachusetts, who, a few years ago, went to South Carolina to enforce

a constitutional right in court, that the Constitution of the United

States declared that the citizens of each State shall be entitled to

all the privileges and immunities of citizens in the several States?

And of what avail will it now be that the Constitution of the United

States has declared that slavery shall not exist, if in the late

slaveholding States laws are to be enacted and enforced depriving

persons of African descent of privileges which are essential to

freemen?

"It is the intention of this bill to secure those rights. The laws in

the slaveholding States have made a distinction against persons of

African descent on account of their color, whether free or slave. I

have before me the statutes of Mississippi. They provide that if any

colored person, any free negro or mulatto, shall come into that State

for the purpose of residing there, he shall be sold into slavery for

life. If any person of African descent residing in that State travels

from one county to another without having a pass or a certificate of

his freedom, he is liable to be committed to jail, and to be dealt

with as a person who is in the State without authority. Other

provisions of the statute prohibit any negro or mulatto from having

firearms; and one provision of the statute declares that for

'exercising the functions of a minister of the Gospel, free negroes

and mulattoes, on conviction, may be punished by any number of lashes

not exceeding thirty-nine, on the bare back, and shall pay the costs."

Other provisions of the statute of Mississippi prohibit a free negro

or mulatto from keeping a house of entertainment, and subject him to

trial before two justices of the peace and five slaveholders for

violating the provisions of this law. The statutes of South Carolina

make it a highly penal offense for any person, white or colored, to

teach slaves; and similar provisions are to be found running through

all the statutes of the late slaveholding States.

"When the constitutional amendment was adopted and slavery abolished,

all these statutes became null and void, because they were all passed

in aid of slavery, for the purpose of maintaining and supporting it.

Since the abolition of slavery, the Legislatures which have assembled

in the insurrectionary States have passed laws relating to the

freedmen, and in nearly all the States they have discriminated against

them. They deny them certain rights, subject them to severe penalties,

and still impose upon them the very restrictions which were imposed

upon them in consequence of the existence of slavery, and before it

was abolished. The purpose of the bill under consideration is to

destroy all these discriminations, and to carry into effect the

constitutional amendment."

After having stated somewhat at length the grounds upon which he

placed this bill, Mr. Trumbull closed by saying: "Most of the

provisions of this bill are copied from the late Fugitive Slave Act,

adopted in 1850 for the purpose of returning fugitives from slavery

into slavery again. The act that was passed at that time for the

purpose of punishing persons who should aid negroes to escape to

freedom is now to be applied by the provisions of this bill to the

punishment of those who shall undertake to keep them in slavery.

Surely we have the authority to enact a law as efficient in the

interests of freedom, now that freedom prevails throughout the

country, as we had in the interest of slavery when it prevailed in a

portion of the country."

Mr. Saulsbury took an entirely different view of the subject under

consideration: "I regard this bill," he said, "as one of the most

dangerous that was ever introduced into the Senate of the United

States, or to which the attention of the American people was ever

invited. During the last four or five years, I have sat in this

chamber and witnessed the introduction of bills into this body which I

thought obnoxious to many very grave and serious constitutional

objections; but I have never, since I have been a member of the body,

seen a bill so fraught with danger, so full of mischief, as the bill

now under consideration.

"I shall not follow the honorable Senator into a consideration of the

manner in which slaves were treated in the Southern States, nor the

privileges that have been denied to them by the laws of the States. I

think the time for shedding tears over the poor slave has well nigh

passed in this country. The tears which the honest white people of

this country have been made to shed from the oppressive acts of this

Government, in its various departments, during the last four years,

call more loudly for my sympathies than those tears which have been

shedding and dropping and dropping for the last twenty years in

reference to the poor, oppressed slave--dropping from the eyes of

strong-minded women and weak-minded men, until, becoming a mighty

flood, they have swept away, in their resistless force, every trace of

constitutional liberty in this country.

"I suppose it is a foregone conclusion that this measure, as one of a

series of measures, is to be passed through this Congress regardless

of all consequences. But the day that the President of the United

States places his approval and signature to that Freedmen's Bureau

Bill, and to this bill, he will have signed two acts more dangerous to

the liberty of his countrymen, more disastrous to the citizens of this

country, than all the acts which have been passed from the foundation

of the Government to the present hour; and if we on this side of the

chamber manifest anxiety and interest in reference to these bills, and

the questions involved in them, it is because, having known this

population all our lives, knowing them in one hour of our infancy

better than you gentlemen have known them all your lives, we feel

compelled, by a sense of duty, earnestly and importunately, it may be,

to appeal to the judgment of the American Senate, and to reach, if

possible, the judgment of the great mass of the American people, and

invoke their attention to the awful consequences involved in measures

of this character. Sir, stop, stop! the mangled, bleeding body of the

Constitution of your country lies in your path; you are treading upon

its bleeding body when you pass these laws."

After having argued at considerable length that this bill would be a

most unconstitutional interference on the part of the Federal

Government with "the powers of the States under the Federal

Constitution," the Senator from Delaware thus concluded:

"Sir, from early boyhood I was taught to love and revere the Federal

Union and those who made it. In early childhood I read the words of

the Father of his country, in which he exhorted the people to cling to

the union of these States as the palladium of liberty, and my young

heart bounded with joy in reading the burning words of lofty

patriotism. I was taught in infancy to admire, as far as the infant

mind could admire, our free system of government, Federal and State;

and I heard the old men say that the wit of man never devised a better

or more lovely system of government. When I arrived at that age when I

could study and reflect for myself, the teachings of childhood were

approved by the judgment of the man.

"I have seen how under this Union we had become great in the eyes of

all nations; and I see now, notwithstanding the horrible afflictions

of war, if we can have wisdom in council and sincere purpose to

subserve the good of the whole people of the United States, though

much that was dear to us has been blasted as by the pestilence that

walketh in darkness and the destruction that wasteth at noonday, how

we might, in the providence of God, resume our former position among

the nations of the earth, and command the respect of the whole

civilized world. But, sir, to-day, in viewing and in considering this

bill, the thought has occurred to me, how happy were the founders of

our Federal system of government, that they had been taken from the

council chambers of this nation and from among their fellow-men before

bills of this character were seriously presented for legislative

consideration. Happily for them, they sleep their last sleep, and--

"'How sleep the brave who sink to rest,

By all their country's wishes blest!

When Spring, with dewy fingers cold,

Returns to deck their hallowed mold,

She there shall dress a sweeter sod

Than Fancy's feet have ever trod.

"'By fairy hands their knell is rung;

By forms unseen their dirge is sung;

There Honor comes, a pilgrim gray,

To bless the turf that wraps their clay;

And Freedom shall henceforth repair

And dwell a weeping hermit there.'"

On the following day, Mr. Van Winkle, of West Virginia, addressed the

Senate on the merits of the bill. He thought that the objects sought

could only be attained through an amendment to the Constitution. He

moreover said:

"We hear a great deal about the sentence from the Declaration of

Independence, that 'all men are created equal.' I am willing to admit

that all men are created equal; but how are they equal? Can a citizen

of France, for instance, by going into England, be entitled to all the

rights of a citizen of that country, or by coming into this country

acquire all the rights of an American, unless he is naturalized? Can a

citizen of our country, by going into any other, become entitled to

the rights of a citizen there? If not, it may be said that they are

not equal. I believe that the division of men into separate

communities, and their living in society and association with their

fellows, as they do, are both divine institutions, and that,

consequently, the authors of the Declaration of Independence could

have meant nothing more than that the rights of citizens of any

community are equal to the rights of all other citizens of that

community. Whenever all communities are conducted in accordance with

these principles, these very conditions of their prosperous existence,

then all mankind will be equal, each enjoying his equality in his own

community, and not till then. Therefore, I assert that there is no

right that can be exercised by any community of society more perfect

than that of excluding from citizenship or membership those who are

objectionable. If a little society is formed for a benevolent,

literary, or any other purpose, the members immediately exercise, and

claim the right to exercise, that right; they determine who shall come

into their community. We have the right to determine who shall be

members of our community; and much as has been said here about what

God has done, and about our obligations to the Almighty in reference

to this matter, I do not see where it comes in that we are bound to

receive into our community those whose minglings with us might be

detrimental to our interests. I do not believe that a superior race is

bound to receive among it those of an inferior race, if the mingling

of them can only tend to the detriment of the mass. I do not mean

strict miscegenation, but I mean the mingling of two races in society,

associating from time to time with each other."

Mr. Cowan, of Pennsylvania, spoke against the bill. He said: "The

identical question came up in my State--the question whether the negro

was a citizen, and whether he possessed political power in that

State--and it was there decided that he was not one of the original

corporators, that he was not one of the freemen who originally

possessed political power, and that they had never, by any enactment

or by any act of theirs, admitted him into a participation of that

power, except so far as to tax him for the support of Government. And,

Mr. President, I think it a most important question, and particularly

a most important question for the Pacific coast, and those States

which lie upon it, as to whether this door shall now be thrown open to

the Asiatic population. If it be, there is an end to republican

government there, because it is very well ascertained that those

people have no appreciation of that form of government; it seems to be

obnoxious to their very nature; they seem to be incapable either of

understanding it or of carrying it out; and I can not consent to say

that California, or Oregon, or Colorado, or Nevada, or any of those

States, shall be given over to an irruption of Chinese. I, for my

part, protest against it.

"There is a great deal more in this bill that is exceedingly

objectionable. It is the first time, I think, in the history of

civilized legislation, that a judicial officer has been held up and

subjected to a criminal punishment for that which may have been a

conscientious discharge of his duty. It is, I say, the first case that

I know of, in the legislation of modern and civilized nations, where a

bill of indictment is to take the place of a writ of error, and where

a mistake is to be tortured into a crime.

"I may state that I have another objection to this bill at the present

time; and that is, that the people of several States in the Union are

not represented here, and yet this law is mainly to operate upon those

people. I think it would be at least decent, respectful, if we desire

to maintain and support this Government on the broad foundation upon

which it was laid--namely, the consent of the governed--that we should

wait, at any rate, until the people upon whom it is to operate have a

voice in these halls."

Mr. Cowan then proceeded in a somewhat "devious course," as it was

characterized by another Senator, to make remarks upon the subject of

reconstruction. Many questions and remarks were interposed by other

Senators, giving the discussion an exceedingly colloquial style.

At length, Mr. Howard, of Michigan, having obtained the floor, spoke

in favor of the bill. He said: "If I understand correctly the

interpretation given by several Senators to the constitutional

amendment abolishing slavery, it is this: that the sole effect of it

is to cut and sever the mere legal ligament by which the person and

the service of the slave was attached to his master, and that beyond

this particular office the amendment does not go; that it can have no

effect whatever upon the condition of the emancipated black in any

other respect. In other words, they hold that it relieves him from his

so-called legal obligation to render his personal service to his

master without compensation, and there leaves him, totally,

irretrievably, and without any power on the part of Congress to look

after his well-being from the moment of this mockery of emancipation.

Sir, such was not the intention of the friends of this amendment at

the time of its initiation here, and at the time of its adoption; and

I undertake to say that it is not the construction which is given to

it by the bar throughout the country, and much less by the

liberty-loving people.

"But let us look more closely at this narrow construction. Where does

it leave us? We are told that the amendment simply relieves the slave

from the obligation to render service to his master. What is a slave

in contemplation of American law, in contemplation of the laws of all

the slave States? We know full well; the history of two hundred years

teaches us that he had no rights, nor nothing which he could call his

own. He had not the right to become a husband or a father in the eye

of the law; he had no child; he was not at liberty to indulge the

natural affections of the human heart for children, for wife, or even

for friend. He owned no property, because the law prohibited him. He

could not take real or personal estate either by sale, by grant, or by

descent or inheritance. He did not own the bread he earned and ate. He

stood upon the face of the earth completely isolated from the society

in which he happened to be. He was nothing but a chattel, subject to

the will of his owner, and unprotected in his rights by the law of the

State where he happened to live. His rights, did I say? No, sir, I use

inappropriate language. He had no rights; he was an animal; he was

property, a chattel. The Almighty, according to the ideas of the

times, had made him to be property, a Chattel, and not a man.

"Now, sir, it is not denied that this relation of servitude between

the former negro slave and his master was actually severed by this

amendment. But the absurd construction now forced upon it leaves him

without family, without property, without the implements of husbandry,

and even without the right to acquire or use any instrumentalities of

carrying on the industry of which he may be capable; it leaves him

without friend or support, and even without the clothes to cover his

nakedness. He is a waif upon the current of time; he has nothing that

belongs to him on the face of the earth, except solely his naked

person. And here, in this State, we are called upon to abandon the

poor creature whom we have emancipated. We are coolly told that he has

no right beyond this, and we are told that under this amendment the

power of the State within whose limits he happens to be is not at all

restrained in respect to him, and that the State, through its

Legislature, may at any time declare him to be a vagrant, and as such

commit him to jail, or assign him to uncompensated service."

Mr. Johnson, of Maryland, made a speech, in which he expressed himself

as in favor of conferring citizenship upon the negro, and yet unable

to vote for this bill from the opinion he entertained on "the question

of power." He referred to the Dred Scott and other decisions, and

showed their bearing upon the legislation now proposed. He said: "I

have been exceedingly anxious individually that there should be some

definition which will rid this class of our people from that

objection. If the Supreme Court decision is a binding one, and will be

followed in the future, this law which we are now about to pass will

be held, of course, to be of no avail, as far as it professes to

define what citizenship is, because it gives the rights of citizenship

to all persons without distinction of color, and, of course, embraces

Africans or descendants of Africans."

He referred to a precedent when Congress had conferred the rights of

citizenship: "The citizens of Texas, who, of course, were aliens, it

has never been doubted became citizens of the United States by the

annexation of Texas; and that was not done by treaty, it was done by

legislation. If the power was in Congress by legislation to make

citizens of all the inhabitants of the State of Texas, why is it not

in the power of Congress to make citizens by legislation of all who

are inhabitants of the United States, and who are not citizens? That

is what this bill does, or what it proposes to do. There are within

the United States millions of people who are not citizens, according

to the view of the Supreme Court of the United States. Ought they to

be citizens? I think they ought. I think it is an anomaly that says

there shall not be the rights of citizenship to any of the inhabitants

of any State of the United States.

"While they were slaves, it was a very different question; but now,

when slavery is terminated, and by terminating it you have got rid of

the only obstacle in the way of citizenship, two questions arise:

First, whether that fact itself does not make them citizens? Before

they were not citizens, because of slavery, and only because of

slavery. Slavery abolished, why are they not just as much citizens as

they would have been if slavery had never existed? My opinion is that

they become citizens, and I hold that opinion so strongly that I

should consider it unnecessary to legislate on the subject at all, as

far as that class is concerned, but for the ruling of the Supreme

Court to which I have adverted."

Mr. Davis, of Kentucky, spoke against the propriety and

constitutionality of making all negroes citizens of the United States.

He said: "There never was a colony before the Declaration of

Independence, and there never was a State after the Declaration of

Independence, up to the time of the adoption of the Constitution, so

far as I have been able to learn by the slight historical examination

which I have given to the subject, that ever made or attempted to make

any other person than a person who belonged to one of the

nationalities of Europe a citizen. I invoke the chairman of the

committee to give me an instance, to point to any history or any

memento, where a negro, although that negro was born in America, was

ever made a citizen of either of the States of the United States

before the adoption of this Constitution. The whole material out of

which citizens were made previous to the adoption of the present

Constitution was from the European nationalities, from the Caucasian

race, if I may use the term. I deny that a single citizen was ever

made by one of the States out of the negro race. I deny that a single

citizen was ever made by one of the States out of the Mongolian race.

I controvert that a single citizen was ever made by one of the States

out of the Chinese race, out of the Hindoos, or out of any other race

of people but the Caucasian race of Europe.

"I come, then, to this position: that whenever the States, after the

Declaration of Independence and before the present Constitution was

adopted, legislated in relation to citizenship, or acted in their

governments in relation to citizenship, the subject of that

legislation or that action was the Caucasian race of Europe; that none

of the inferior races of any kind were intended to be embraced or were

embraced by this work of Government in manufacturing citizens."

Mr. Trumbull inquired, "Will the Senator from Kentucky allow me to ask

him if he means to assert that negroes were not citizens of any of

these colonies before the adoption of the Constitution?"

"I say they were not," said Mr. Davis.

"Does the Senator wish any authority to show that they were?" asked

Mr. Trumbull.

"When I get through," said Mr. Davis, "you can answer me."

Mr. Trumbull replied: "I understood the Senator to challenge me to

produce any proof on that point, and I thought he would like to have

it in his speech. I can assert to him that by a solemn decision of the

Supreme Court of North Carolina, they were citizens before the

adoption of the Constitution."

"If the honorable Senator will allow me," said Mr. Davis, "I will get

along with my remarks."

"I think you will get along better," replied Mr. Trumbull, "by not

being exposed in your statements."

"The honorable Senator is full of conceit, but I have seen less

conceit with a great deal more brains," said Mr. Davis, who then

proceeded "to throw up" what he termed "the main buttress for the

defense of the positions" that he took.

"My main position," said he, "is, that no native-born person of the

United States, of any race or color, can be admitted a citizen of the

United States by Congress under the power conferred in relation to

naturalization by the Constitution upon Congress."

After reading some authorities, the Senator proceeded to say: "A grave

hallucination in this day is to claim all power; and a minor error is

that every thing which passion, or interest, or party power, or any

selfish claims may represent to the judgment or imagination of

gentlemen who belong to strong parties, to be necessary or useful for

the good and the domination of such parties, is seized upon in

defiance of a fair construction of language, in outrage of the plain

meaning of the Constitution. That is not the rule by which our

Constitution is to be interpreted. It is not the rule by which it is

to be administered. On the contrary, if the able, honorable, and

clear-headed Senator from Illinois would do himself and his country

the justice to place himself in the position of the framers of the

Constitution; if he would look all around on the circumstances and

connections of that day, on the purposes of those men not only in

relation to forming a more perfect Union, but also in relation to

securing the blessings of life, liberty, and property to themselves

and their posterity forever; if the honorable Senator would construe

the Constitution according to the light, the sacred and bright light

which such surrounding circumstances would throw upon his intellect,

it seems to me that he would at once abandon this abominable bill, and

would also ask to withdraw its twin sister from the other House that

both might be smothered here together upon the altar of the

Constitution and of patriotism."

At the close of Mr. Davis' speech, much debate and conversation ensued

among various Senators upon a proposed amendment by Mr. Lane, of

Kansas, by which Indians "under tribal authority" should be excluded

from the benefits conferred by this bill. After this question was

disposed of, Mr. Davis was drawn out in another speech by what seemed

to him to be the necessity of defending some positions which he had

assumed. He said:

"I still reiterate the position that the negro is not a citizen here

according to the essential fundamental principles of our system; but

whether he be a citizen or not, he is not a foreigner, and no man,

white or black, or red or mixed, can be made a citizen by

naturalization unless he is a foreigner."

Mr. Clark, of New Hampshire, interposed: "I wish the Senator from

Kentucky would tell us what constitutes a citizen under the

Constitution."

"A foreigner is not a citizen in the fullest sense of the word at

all," said Mr. Davis.

"The Senator is now telling us," said Mr. Clark, "who is not a

citizen, but my question is, What constitutes a citizen?"

"I leave that to the exercise of your own ingenuity," replied Mr.

Davis.

"That is it," said Mr. Clark. "Washington is dead; Marshall is dead;

Story is dead; I hoped the Senator from Kentucky would have

enlightened us. He says a negro is not a citizen, and a negro is not a

foreigner and can not be made a citizen. He says that a person who

might be and was a citizen before the Constitution, is not a citizen

since the Constitution was adopted. What right was taken away from him

by the Constitution that disqualifies him from being a citizen? The

free negroes in my State, before the Constitution was adopted, were

citizens."

Mr. Davis, having admitted that free negroes were citizens before the

Constitution in New Hampshire, Mr. Clark said:

"I desired that the Senator should tell me what, in his opinion,

constituted a citizen under the Constitution."

Mr. Davis replied: "I will answer the honorable Senator. We sometimes

answer a positive question by declaring what a thing is not. Now, the

honorable Senator asks me what a citizen is. It is easier to answer

what it is not than what it is, and I say that a negro is not a

citizen."

"Well, that is a lucid definition," said Mr. Clark.

"Sufficient for the subject," said Mr. Davis.

"That is begging the question," Mr. Clark replied. "I wanted to find

why a negro was not a citizen, if the gentleman would tell me. If he

would lay down his definition, I wanted to see whether the negro did

not comply with it and conform to it, so as to be a citizen; but he

insists that he is not a citizen."

"I will answer that question, if the honorable Senator will permit

me," said Mr. Davis. "Government is a political partnership. No

persons but the partners who formed the partnership are parties to the

government. Here is a government formed by the white man alone. The

negro was excluded from the formation of our political partnership; he

had nothing to do with it; he had nothing to do in its formation."

"Is it a close corporation, so that new partners can not be added?"

asked Mr. Stewart, of Nevada.

"Yes, sir," said Mr. Davis; "it is a close white corporation. You may

bring all of Europe, but none of Asia and none of Africa into our

partnership."

"Let us see," said Mr. Clark, "how that may be. Take the gentleman's

own ground that government is a partnership, and those who did not

enter into it and take an active part in it can not be citizens. Is a

woman a citizen under our Constitution?"

"Not to vote," said Mr. Davis.

"I did not ask about voting," said Mr. Clark. "The gentleman said

awhile ago that voting did not constitute citizenship. I want to know

if she is a citizen. Can she not sue and be sued, contract, and

exercise the rights of a citizen?"

"So can a free negro," said Mr. Davis.

"Then, if a free negro can do all that," said Mr. Clark; "why is he

not a citizen?"

"Because he is no part of the governing power; that is the reason,"

Mr. Davis replied.

"I deny that," said Mr. Clark, "because in some of the States he is a

part of the governing power. The Senator only begs the question; it

only comes back to this, that a nigger is a nigger." [Laughter.]

"That is the whole of it," said Mr. Davis.

[Illustration: Hon. Reverdy Johnson.]

"That is the whole of the gentleman's logic," said Mr. Clark.

In answer to the statement insisted on by Mr. Davis, "You can not make

a citizen of any body that is not a foreigner," Mr. Johnson said:

"That would be an extraordinary condition for the country to be in.

Here are four million negroes. They are not foreigners, because they

were born in the United States. They have no foreign allegiance to

renounce, because they owed no foreign allegiance. Their allegiance,

whatever it was, was an allegiance to the Government of the United

States alone. They can not come, therefore, under the naturalizing

clause; they can not come, of course, under the statutes passed in

pursuance of the power conferred upon Congress by that clause; but

does it follow from that that you can not make them citizens; that the

Congress of the United States, vested with the whole legislative power

belonging to the Government, having within the limits of the United

States four million people anxious to become citizens, and when you

are anxious to make them citizens, have no power to make them

citizens? It seems to me that to state the question is to answer it.

"The honorable member reads the Constitution as if it said that none

but white men should become citizens of the United States; but it says

no such thing, and never intended, in my judgment, to say any such

thing. If it had designed to exclude from all participation in the

rights of citizenship certain men on account of color, and to have

confined, at all times thereafter, citizenship to the white race, it

is but fair to presume, looking to the character of the men who framed

the Constitution, that they would have put that object beyond all

possible doubt; they would have said that no man should be a citizen

of the United States except a white man, or rather would have

negatived the right of the negro to become a citizen by saying that

Congress might pass uniform rules upon the subject of the

naturalization of white immigrants and nobody else; but that they did

not do. They left it to Congress. Congress, in the exercise of their

discretion, have thought proper to insert the term 'white' in the

naturalization act; but they may strike it out, and if it should be

stricken out, I do not think any lawyer, except my friend from

Kentucky, would deny that a black man could be naturalized, and by

naturalization become a citizen of the United States.

"But to go back to the point from which the questions of my honorable

friend from Kentucky caused me to digress, we have now within the

United States four million colored people, the descendants of

Africans, whose ancestors were brought into the United States as

chattels. It was because of that condition that they were considered

as not entitled to the rights of citizenship. We have put an end to

that condition. We have said that at all times hereafter men of any

color that nature may think proper to impress upon the human frame,

shall, if within the United States, be free, and not property. Then,

we have four million colored people who are now as free as we are; and

the only question is, whether, being free, they can not be clothed

with the rights of citizenship. The honorable member from Kentucky

says no, because the naturalization clause does not include them. I

have attempted to answer that. He says no, because the act passed in

pursuance of that clause does not include them. I have answered that

by saying that that act in that particular may be changed."

On the following day, February 1st, the discussion of the bill was

resumed by Mr. Morrill, of Maine. He said of the bill: "It marks an

epoch in the history of this country, and from this time forward the

legislation takes a fresh and a new departure. Sir, to-day is the only

hour since this Government began when it was possible to have enacted

it. Such has been the situation of politics in this country, nay, sir,

such have been the provisions of the fundamental law of this country,

that such legislation hitherto has never been possible. There has been

no time since the foundation of the Government when an American

Congress could by possibility have enacted such a law, or with

propriety have made such a declaration. What is this declaration? All

persons born in this country are citizens. That never was so before.

Although I have said that by the fundamental principles of American

law all persons were entitled to be citizens by birth, we all know

that there was an exceptional condition in the Government of the

country which provided for an exception to this general rule. Here

were four million slaves in this country that were not citizens, not

citizens by the general policy of the country, not citizens on account

of their condition of servitude; up to this hour they could not have

been treated by us as citizens; so long as that provision in the

Constitution which recognized this exceptional condition remained the

fundamental law of the country, such a declaration as this would not

have been legal, could not have been enacted by Congress. I hail it,

therefore, as a declaration which typifies a grand fundamental change

in the politics of the country, and which change justifies the

declaration now.

"The honorable Senator from Kentucky has vexed himself somewhat, I

think, with the problem of the naturalization of American citizens. As

he reads it, only foreigners can be naturalized, or, in other words,

can become citizens; and upon his assumption, four million men and

women in this country are outside not only of naturalization, not only

of citizenship, but outside of the possibility of citizenship. Sir, he

has forgotten the grand principle both of nature and nations, both of

law and politics, that birth gives citizenship of itself. This is the

fundamental principle running through all modern politics both in this

country and in Europe. Every-where, where the principles of law have

been recognized at all, birth by its inherent energy and force gives

citizenship. Therefore the founders of this Government made no

provision--of course they made none--for the naturalization of

natural-born citizens. The Constitution speaks of 'natural-born,' and

speaks of them as citizens in contradistinction from those who are

alien to us. Therefore, sir, this amendment, although it is a grand

enunciation, although it is a lofty and sublime declaration, has no

force or efficiency as an enactment. I hail it and accept it simply as

a declaration.

"The honorable Senator from Kentucky, when he criticises the methods

of naturalization, and rules out, for want of power, four million

people, forgets this general process of nations and of nature by which

every man, by his birth, is entitled to citizenship, and that upon the

general principle that he owes allegiance to the country of his birth,

and that country owes him protection. That is the foundation, as I

understand it, of all citizenship, and these are the essential

elements of citizenship: allegiance on the one side, and protection on

the other."

In reply to statements made by Mr. Davis, Mr. Morrill remarked: "The

Senator from Kentucky denounces as a usurpation this measure, and

particularly this amendment, this declaration. He says it is not

within the principles of the Constitution. That it is extraordinary I

admit. That the measure is not ordinary is most clear. There is no

parallel, I have already said, for it in the history of this country;

there is no parallel for it in the history of any country. No nation,

from the foundation of government, has ever undertaken to make a

legislative declaration so broad. Why? Because no nation hitherto has

ever cherished a liberty so universal. The ancient republics were all

exceptional in their liberty; they all had excepted classes, subjected

classes, which were not the subject of government, and, therefore,

they could not so legislate. That it is extraordinary and without a

parallel in the history of this Government, or of any other, does not

affect the character of the declaration itself.

"The Senator from Kentucky tells us that the proposition is

revolutionary, and he thinks that is an objection. I freely concede

that it is revolutionary. I admit that this species of legislation is

absolutely revolutionary. But are we not in the midst of revolution?

Is the Senator from Kentucky utterly oblivious to the grand results of

four years of war? Are we not in the midst of a civil and political

revolution which has changed the fundamental principles of our

Government in some respects? Sir, is it no revolution that you have

changed the entire system of servitude in this country? Is it no

revolution that now you can no longer talk of two systems of

civilization in this country? Four short years back, I remember to

have listened to eloquent speeches in this chamber, in which we were

told that there was a grand antagonism in our institutions; that there

were two civilizations; that there was a civilization based on

servitude, and that it was antagonistic to the free institutions of

the country. Where is that? Gone forever. That result is a revolution

grander and sublimer in its consequences than the world has witnessed

hitherto.

"I accept, then, what the Senator from Kentucky thinks so obnoxious.

We are in the midst of revolution. We have revolutionized this

Constitution of ours to that extent; and every substantial change in

the fundamental constitution of a country is a revolution. Why, sir,

the Constitution even provides for revolutionizing itself. Nay, more,

it contemplates it; contemplates that in the changing phases of life,

civil and political, changes in the fundamental law will become

necessary; and is it needful for me to advert to the facts and events

of the last four or five years to justify the declaration that

revolution here is not only radical and thorough, but the result of

the events of the last four years? Of course, I mean to contend in all

I say that the revolution of which I speak should be peaceful, as on

the part of the Government here it has been peaceful. It grows out, to

be sure, of an assault upon our institutions by those whose purpose it

was to overthrow the Government; but, on the part of the Government,

it has been peaceful, it has been within the forms of the

Constitution; but it is a revolution nevertheless.

"But the honorable Senator from Kentucky insists that it is a

usurpation. Not so, sir. Although it is a revolution radical, as I

contend, it was not a usurpation. It was not a usurpation, because it

took place within the provisions contemplated in the Constitution.

More than that, it was a change precisely in harmony with the general

principles of the Government. This great change which has been wrought

in our institutions was in harmony with the fundamental principles of

the Government. The change which has been made has destroyed that

which was exceptional in our institutions; and the action of the

Government in regard to it was provoked by the enemies of the

Government. The opportunity was afforded, and the change which has

been wrought was in harmony with the fundamental principles of the

Government."

The Senator from Maine opposed the theory that this is a Government

exclusively for white men. He remarked: "It is said that this

amendment raises the general question of the antagonism of the races,

which, we are told, is a well-established fact. It is said that no

rational man, no intelligent legislator or statesman, should ever act

without reference to that grand historical fact; and the Senator from

Pennsylvania, [Mr. Cowan,] on a former occasion, asserted that this

Government, that American society, had been established here upon the

principle of the exclusion, as he termed it, of the inferior and the

barbarian races. Mr. President, I deny that proposition as a

historical fact. There is nothing more inaccurate. No proposition

could possibly be made here or anywhere else more inaccurate than to

say that American society, either civil or political, was formed in

the interest of any race or class. Sir, the history of the country

does not bear out the statement of the honorable Senator from

Pennsylvania. Was not America said to be the land of refuge? Has it

not been, since the earliest period, held up as an asylum for the

oppressed of all nations? Hither, allow me to ask, have not all the

peoples of the nations of the earth come for an asylum and for refuge?

All the nations of the earth, and all the varieties of the races of

the nations of the earth, have gathered here. In the early settlements

of the country, the Irish, the French, the Swede, the Turk, the

Italian, the Moor, and so I might enumerate all the races, and all the

variety of races, came here; and it is a fundamental mistake to

suppose that settlement was begun here in the interests of any class,

or condition, or race, or interest. This Western Continent was looked

to as an asylum for the oppressed of all nations and of all races.

Hither all nations and all races have come. Here, sir, upon the grand

plane of republican democratic liberty, they have undertaken to work

out the great problem of man's capacity for self-government without

stint or limit."

Mr. Davis then made another speech in opposition to the bill. When the

hour for adjournment had arrived, and Mr. Johnson interrupted him with

a proposition that "the bill be passed over for to-day," Mr. Davis

said, "I am wound up, and am obliged to run down." The Senate,

however, adjourned at a late hour, and resumed the hearing of Mr.

Davis on the following day.

In alluding to Mr. Johnson's strictures on his assertion that Congress

had no power to confer the right of citizenship on "the native born

negro," Mr. Davis said: "The honorable Senator, [Mr. Johnson,] as I

said the other day, is one of the ablest lawyers, and, I believe, the

ablest living lawyer in the land. I have seen gentlemen sometimes so

much the lawyer that they had to abate some of the statesman

[laughter]; and I am not certain, I would not say it was so--I will

not arrogate to myself to say so--but sometimes a suspicion flashes

across my mind that that is precisely the predicament of my honorable

friend.

"I maintain that a negro can not be made a citizen by Congress; he can

not be made a citizen by any naturalization laws, because the

naturalization laws apply to foreigners alone. No man can shake the

legal truth of that position. They apply to foreigners alone; and a

negro, an Indian, or any other person born within the United States,

not being a foreigner, can not be naturalized; therefore they can not

be made citizens by the uniform rule established by Congress under the

Constitution, and there is no other rule. Congress has no power, as I

said before, to naturalize a citizen. They could not be made citizens

by treaty. If they are made so at all, it is by their birth, and the

locality of their birth, and the general operation and effect of our

Constitution. If they are so made citizens, that question is a

judicial question, not a legislative question. Congress has no power

to enlarge or extend any of the provisions of the Constitution which

bear upon the birth or citizenship of negroes or Indians born in the

United States.

"If there was any despot in Europe or in the world that wanted a

master architect in framing and putting together a despotic and

oppressive law, I would, if my slight voice could reach him, by all

means say to him, Seek the laboratory of the Senator from Illinois. If

he has not proved himself an adept in this kind of legislation,

unconstitutional, unjust, oppressive, iniquitous, unwise, impolitic,

calculated to keep forever a severance of the Union, to exclude from

all their constitutional rights, privileges, and powers under the

Government eleven States of the Union--if he has not devised such a

measure as that, I have not reason enough to comprehend it."

Mr. Davis closed his speech by saying: "Was it for these fruits and

these laws that we went into this war? Was it for these fruits and

these laws and these oppressions that two million and a quarter of men

were ordered into the field? Was it that the American people might

enjoy these as the fruits of the triumphant close of this war, that

hundreds of thousands of them have been mutilated on the battle-field

and by the diseases of the camp, and that a debt of four or five

thousand million dollars has been left upon the country? If these are

to be the results of the war, better that not a single man had been

marshaled in the field nor a single star worn by one of our officers.

These military gentlemen think they have a right to command and

control every-where. They do it. They think they have a right to do it

here, and we are sheep in the hands of our shearers. We are dumb."

Mr. Trumbull said: "I will occupy a few moments of the attention of

the Senate, after this long harangue of the Senator from Kentucky,

which he closed by declaring that we are dumb in the presence of

military power. If he has satisfied the Senate that he is dumb, I

presume he has satisfied the Senate of all the other positions he has

taken; and the others are about as absurd as that declaration. He

denounces this bill as 'outrageous,' 'most monstrous,' 'abominable,'

'oppressive,' 'iniquitous,' 'unconstitutional,' 'void.'

"Now, what is this bill that is obnoxious to such terrible epithets?

It is a bill providing that all people shall have equal rights. Is not

that abominable? Is not that iniquitous? Is not that monstrous? Is not

that terrible on white men? [Laughter.] When was such legislation as

this ever thought of for white men?

"Sir, this bill applies to white men as well as black men. It declares

that all men in the United States shall be entitled to the same civil

rights, the right to the fruit of their own labor, the right to make

contracts, the right to buy and sell, and enjoy liberty and happiness;

and that is abominable and iniquitous and unconstitutional! Could any

thing be more monstrous or more abominable than for a member of the

Senate to rise in his place and denounce with such epithets as these a

bill, the only object of which is to secure equal rights to all the

citizens of the country--a bill that protects a white man just as much

as a black man? With what consistency and with what face can a Senator

in his place here say to the Senate and the country, that this is a

bill for the benefit of the black men exclusively, when there is no

such distinction in it, and when the very object of the bill is to

break down all discrimination between black men and white men?"

Mr. Guthrie, of Kentucky, said: "My doctrine is that slavery exists no

longer in this country; that it is impossible to exist in the face of

that provision; and with slavery fell the laws of all the States

providing for slavery, every one of them. I do not see what benefit

can arise from repealing them by this bill, because, if they are not

repealed by the Constitution as amended, this bill could not repeal

them. I hope that all the States in which slavery formerly existed

will accept that constitutional provision in good faith. I myself

accept it in good faith. Believing that all the laws authorizing

slavery have fallen, I have advised the people of Kentucky, and I

would advise all the States, to put these Africans upon the same

footing that the whites are in relation to civil rights. They have all

the rights that were formerly accorded to the free colored population

in all the States just as fully this day as they will have after this

bill has passed, and they will continue to have them.

"Now, to the States belong the government of their own population, and

those within their borders, upon all subjects. We, in Kentucky,

prescribe punishment for those who violate the laws; we prescribe it

for the white population; we prescribe it for the free African

population, and we prescribe it for the slave population. All the laws

prescribing punishment for slaves fell with slavery, and they were

subject afterward only to the penalties which were inflicted upon the

free colored population, they then being free. Slaves, for many

offenses, were punished far less than the free colored people. No

slave was sent to the penitentiary and punished for stealing, or any

thing of that kind, whereas a free person was. But all these States

will now, of course, remodel their laws upon the subject of offenses.

I would advise that there should be but one code for all persons,

black as well as white; that there shall be one general rule for the

punishment of crime in the different States. But, sir, the States must

have time to act on the subject; and yet we are here preparing laws

and penalties, and proposing to carry them into execution by military

authority, before the States have had time to legislate, and even

before some of their Legislatures have had time to convene.

"Kentucky has had her share of talking here, and, sir, she has had her

share of suffering during the war. At one time she was invaded by

three armies of the rebellion; all but seven or eight counties of the

State, at one time, were occupied by its armies, and her whole

territory devastated by guerrillas. We have suffered in this war. We

have borne it as best we could. We feel it intensely that now, at the

end of the war, we should be subjected to a military despotism, our

houses liable to be entered at any time when our families are at rest,

by military men who can arrest and send to prison without warrant, and

we are obliged to go, and we are obliged to pay any fines they may

impose. I do not believe that you will lose any thing if you pause

before passing such legislation as this, and establishing these

military despotisms, for we do not know where they are to end."

Mr. Hendricks, of Indiana, had proposed to strike out the last clause

of the bill, which provided that "such part of the land and naval

forces of the United States, or of the militia," as should be

necessary, might be employed to prevent the violation, and enforce the

due execution of this act. The Senator from Indiana opposed the bill

on the ground that it employed the machinery of the Fugitive Slave

Law, and that it was to be enforced by the military authority of the

United States. He said:

"This bill is a wasp; its sting is in its tail. Sir, what is this

bill? It provides, in the first place, that the civil rights of all

men, without regard to color, shall be equal; and, in the second

place, that if any man shall violate that principle by his conduct, he

shall be responsible to the court; that he may be prosecuted

criminally and punished for the crime, or he may be sued in a civil

action and damages recovered by the party wronged. Is not that broad

enough? Do Senators want to go further than this? To recognize the

civil rights of the colored people as equal to the civil rights of the

white people, I understand to be as far as Senators desire to go; in

the language of the Senator from Massachusetts [Mr. Sumner], to place

all men upon an equality before the law; and that is proposed in

regard to their civil rights."

In reference to the reënactment of the odious features of the Fugitive

Slave Law in this bill, Mr. Hendricks said: "I recollect how the blood

of the people was made to run cold within them when it was said that

the white man was required to run after the fugitive slave; that the

law of 1850 made you and me, my brother Senators, slave-catchers; that

the _posse comitatus_ could be called to execute a writ of the law,

for the recovery of a runaway slave, under the provisions of the

Constitution of the United States; and the whole country was agitated

because of it. Now slavery is gone; the negro is to be established

upon a platform of civil equality with the white man. That is the

proposition. But we do not stop there; we are to reënact a law that

nearly all of you said was wicked and wrong; and for what purpose? Not

to pursue the negro any longer; not for the purpose of catching him;

not for the purpose of catching the great criminals of the land; but

for the purpose of placing it in the power of any deputy marshal in

any county of the country to call upon you and me, and all the body of

the people, to pursue some white man who is running for his liberty,

because some negro has charged him with denying to him equal civil

rights with the white man. I thought, sir, that that frame-work was

enough; I thought, when you placed under the command of the marshal,

in every county of the land, all the body of the people, and put every

one upon the track of the fleeing white man, that that was enough; but

it is not. For the purpose of the enforcement of this law, the

President is authorized to appoint somebody who is to have the command

of the military and naval forces of the United States--for what

purpose? To prevent a violation of this law, and to execute it.

"You clothe the marshals under this bill with all the powers that were

given to the marshals under the Fugitive Slave Law. That was regarded

as too arbitrary in its provisions, and you repealed it. You said it

should not stand upon the statute-book any longer; that no man, white

or black, should be pursued under the provisions of that law. Now, you

reënact it, and you claim it as a merit and an ornament to the

legislation of the country; and you add an army of officers and clothe

them with the power to call upon any body and every body to pursue the

running white man. That is not enough, but you must have the military

to be called in, at the pleasure of whom? Such a person as the

President may authorize to call out the military forces. Where it

shall be, and to whom this power shall be given, we do not know."

Mr. Lane, of Indiana, replied to the argument of his colleague. He

said: "It is true that many of the provisions of this bill, changed in

their purpose and object, are almost identical with the provisions of

the Fugitive Slave Law, and they are denounced by my colleague in

their present application; but I have not heard any denunciation from

my colleague, or from any of those associated with him, of the

provisions of that Fugitive Slave Law which was enacted in the

interest of slavery, and for purposes of oppression, and which was an

unworthy, cowardly, disgraceful concession to Southern opinion by

Northern politicians. I have suffered no suitable opportunity to

escape me to denounce the monstrous character of that Fugitive Slave

Act of 1850. All these provisions were odious and disgraceful in my

opinion, when applied in the interest of slavery, when the object was

to strike down the rights of man. But here the purpose is changed.

These provisions are in the interest of freemen and of freedom, and

what was odious in the one case becomes highly meritorious in the

other. It is an instance of poetic justice and of apt retribution that

God has caused the wrath of man to praise Him. I stand by every

provision of this bill, drawn as it is from that most iniquitous

fountain, the Fugitive Slave Law of 1850.

"Then my colleague asks, Why do you invoke the power of the military

to enforce these laws? And he says that constables, and sheriffs, and

marshals, when they have process to serve, have a right to call upon

the _posse comitatus_, the body of the whole people, to enforce their

writs. Here is a justice of the peace in South Carolina or Georgia, or

a county court, or a circuit court, that is called upon to execute

this law. They appoint their own marshal, their deputy marshal, or

their constable, and he calls upon the _posse comitatus_. Neither the

judge, nor the jury, nor the officer, as we believe, is willing to

execute the law. He may call upon the people, the body of the whole

people, a body of rebels steeped in treason and rebellion to their

lips, and they are to execute it; and the gentleman seems wonderfully

astonished that we should call upon the military power. We should not

legislate at all if we believed the State courts could or would

honestly carry out the provisions of the constitutional amendment; but

because we believe they will not do that, we give the Federal officers

jurisdiction.

"But what harm is to result from it? Who is to be oppressed? What

white man fleeing, in the language of my colleague, pursued by these

harpies of the law, is in danger of having his rights stricken down?

What does the bill provide? It places all men upon an equality, and

unless the white man violates the law, he is in no danger. It takes no

rights from any white man. It simply places others on the same

platform upon which he stands; and if he would invoke the power of

local prejudice to override the laws of the country, this is no

Government unless the military may be called in to enforce the order

of the civil courts and obedience to the laws of the country."

Mr. Wilson, of Massachusetts, said, in answer to some objections to

the bill urged by Mr. Guthrie: "The Senator tells us that the

emancipated men ought to have their civil rights, that the black codes

fell with slavery; but the Senator forgets that at least six of the

reörganized States in their new Legislatures have passed laws wholly

incompatible with the freedom of these freedmen; and so atrocious are

the provisions of these laws, and so persistently are they carried

into effect by the local authorities, that General Thomas, in

Mississippi, General Swayne, in Alabama, General Sickles, in South

Carolina, and General Terry, in Virginia, have issued positive orders,

forbidding the execution of the black laws that have just been passed.

"So unjust, so wicked, so incompatible are these new black laws of the

rebel States, made in defiance of the expressed will of the nation,

that Lieutenant-general Grant has been forced to issue that order,

which sets aside the black laws of all these rebellious States against

the freedmen, and allows no law to be enforced against them that is

not enforced equally against white men. This order, issued by General

Grant, will be respected, obeyed, and enforced in the rebel States

with the military power of the nation. Southern legislators and people

must learn, if they are compelled to learn by the bayonets of the Army

of the United States, that the civil rights of the freedmen must be

and shall be respected; that these freedmen are as free as their late

masters; that they shall live under the same laws, be tried for their

violation in the same manner, and if found guilty, punished in the

same manner and degree.

"This measure is called for, because these reconstructed Legislatures,

in defiance of the rights of the freedmen, and the will of the nation,

embodied in the amendment to the Constitution, have enacted laws

nearly as iniquitous as the old slave codes that darkened the

legislation of other days. The needs of more than four million colored

men imperatively call for its enactment. The Constitution authorizes

and the national will demands it. By a series of legislative acts, by

executive proclamations, by military orders, and by the adoption of

the amendment to the Constitution by the people of the United States,

the gigantic system of human slavery that darkened the land,

controlled the policy, and swayed the destinies of the republic has

forever perished. Step by step we have marched right on from one

victory to another, with the music of broken fetters ringing in our

ears. None of the series of acts in this beneficent legislation of

Congress, none of the proclamations of the Executive, none of these

military orders, protecting rights secured by law, will ever be

revoked or amended by the voice of the American people. There is now

"'No slave beneath that starry flag,

The emblem of the free.'

"By the will of the nation freedom and free institutions for all,

chains and fetters for none, are forever incorporated in the

fundamental law of regenerated and united America. Slave codes and

auction blocks, chains and fetters and blood-hounds, are things of the

past, and the chattel stands forth a man, with the rights and the

powers of the freemen. For the better security of these new-born civil

rights we are now about to pass the greatest and the grandest act in

this series of acts that have emancipated a race and disinthralled a

nation. It will pass, it will go upon the statute-book of the republic

by the voice of the American people, and there it will remain. From

the verdict of Congress in favor of this great measure, no appeal will

ever be entertained by the people of the United States."

Mr. Cowan spoke again, and denounced the section of the bill which

provided for its enforcement by the military. He said: "There it is;

words can not make it plainer; reason can not elucidate it; no

language can strengthen it or weaken it, one way or the other. There

is the question whether a military man, educated in a military school,

accustomed to supreme command, unaccustomed to the administration of

civil law among a free people, is to be intrusted with these appellate

jurisdiction over the courts of the country; whether he can in any

way, whether he ought in any way, to be intrusted with such a power.

I, for my part, will never agree to it; and I should feel myself

recreant to every duty that I owed to myself, to my country, to my

country's history, and I may say to the race which has been for

hundreds and thousands of years endeavoring to attain to something

like constitutional liberty, if I did not resist this and all similar

projects."

Mr. Trumbull answered some objections to the bill. "The Senator from

Indiana [Mr. Hendricks] objects to the bill because he says that the

same provisions which were enacted in the old Fugitive Slave Law are

incorporated into this, and that it has been heralded to the country

that it was a great achievement to do this; and he insists that if

those provisions of law were odious and wicked and wrong which

provided for punishing men for aiding the slave to escape, therefore

they must be wicked and wrong now when they are employed for the

punishing a man who undertakes to put a person into slavery. Sir, that

does not follow at all. A law may be iniquitous and unjust and wrong

which undertakes to punish another for doing an innocent act, which

would be righteous and just and proper to punish a man for doing a

wicked act. We have upon our statute-books a law punishing a man who

commits murder, because the commission of murder is a high crime, and

the party who does it forfeits his right to live; but would it be just

to apply the law which punishes a person for committing murder to an

innocent person who had killed another accidentally, without malice?

That is the difference. It is the difference between right and wrong,

between good and evil. True, the features of the Fugitive Slave Law

were abominable when they were used for the purpose of punishing, not

negroes, as the Senator from Indiana says, but white men. The Fugitive

Slave Law was enacted for the purpose of punishing white men who aided

to give the natural gift of liberty to those who were enslaved. Now,

sir, we propose to use the provisions of the Fugitive Slave Law for

the purpose of punishing those who deny freedom, not those who seek to

aid persons to escape to freedom. The difference was too clearly

pointed out by the colleague of the Senator [Mr. Lane] to justify me

in taking further time in alluding to it.

"But the Senator objects to this bill because it authorizes the

calling in of the military; and he asserts that it is the only law in

which the military is brought in to enforce it. The Senator from

Pennsylvania [Mr. Cowan] follows this up with a half hour's speech,

denouncing this law as obnoxious to the objection that it is a

military law, that it is taking the trial of persons for offenses out

of the hands of the courts and placing them under the military--a

monstrous proposition, he says. Is that so? What is the law?

"It is a court bill; it is to be executed through the courts, and in

no other way. But does the Senator mean to say it is a military bill

because the military may be called in, in aid of the execution of the

law through the courts? Does the Senator from Pennsylvania--I should

like his attention, and that of the Senator from Indiana, too--deny

the authority to call in the military in aid of the execution of the

law through the courts?

"Let me read a clause from the Constitution, which seems to have been

forgotten by the Senator from Pennsylvania and the Senator from

Indiana. The Senator from Pennsylvania, who has denounced this law,

has been living under just such a law for thirty years, and it seems

never found it out. What says the Constitution? 'Congress shall have

power to provide for calling forth the militia to execute the laws of

the Union.'

"Then, can not the militia prevent persons from violating the law?

They are authorized by the Constitution to be called out for, the

purpose of executing the law, and here we have a law that is to be

carried into execution, and when you find persons combined together to

prevent its execution, you can not do any thing with them! Suppose

that the county authorities in Muscogee County, Georgia, combine

together to deny civil rights to every colored man in that county.

For the purpose of preventing it, before they have done any act, I say

the militia may be called out to prevent them from committing an act.

We are not required to wait until the act is committed before any

thing can be done. That was the doctrine which led to this rebellion,

that we had no authority to do any thing till the conflict of arms

came. I believed then, in 1860, that we had authority; and if it had

been properly exercised, if the men who were threatening rebellion,

who were in this chamber defying the authority of the Government, had

been arrested for treason--of which, in my judgment, by setting on

foot armed expeditions against the country, they were guilty--and if

they had been tried and punished and executed for the crime, I doubt

whether this great rebellion would ever have taken place.

"There is another statute to which I beg leave to call the attention

of the Senator from Pennsylvania, and under which he has lived for

thirty years without ever having known it; and his rights have been

fully protected. I wish to call attention to a section from which the

tenth section of the bill under consideration, at which the Senator

from Indiana is so horrified, is copied word for word, and letter for

letter. The act of March 10, 1836, 'supplementary to an act entitled

"An act in addition to the act for the punishment of certain crimes

against the United States, and to repeal the acts therein mentioned,"

approved 20th of April, 1818,' contains the very section that is in

this bill, word for word. It did not horrify the country; it did not

destroy all the liberties of the people; it did not consolidate all

the powers of the Constitution in the Federal Government; it did not

overthrow the courts, and it has existed now for thirty years!"

The question was first taken on the amendment offered by Mr.

Hendricks, to strike out the tenth section of the bill. The vote

resulted yeas, twelve; nays, thirty-four.

At this stage of the proceedings, Mr. Saulsbury moved to amend the

bill by adding in the first section of the bill after the words "civil

rights," the words, "except the right to vote in the States." He

desired that if the Senate did not wish to confer the right of

suffrage by this bill, they should say so. The question being taken on

Mr. Saulsbury's amendment, the vote resulted seven in the affirmative

and thirty-nine in the negative.

The vote was finally taken on the passage of the bill, which resulted

thirty-three in the affirmative and twelve in the negative. The

following Senators voted in favor of the bill:

Messrs. Anthony, Brown, Chandler, Clark, Connor, Cragin,

Dixon, Fessenden, Foot, Foster, Harris, Henderson, Howard,

Howe, Kirkwood, Henry S. Lane, James H. Lane, Morgan,

Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague,

Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson,

and Yates--33.

The following voted against the bill, namely:

Messrs. Buckalew, Cowan, Davis, Guthrie, Hendricks,

McDougall, Nesmith, Norton, Riddle, Saulsbury, Stockton, and

Van Winkle--12.

Five Senators were absent, to wit:

Messrs. Creswell, Doolittle, Grimes, Johnson, and Wright--5.

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