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.