THE CIVIL RIGHTS BILL, AND THE VETO.
Doubts as to the President's Decision -- Suspense ended --
The Veto Message -- Mr. Trumbull's Answer -- Mr. Reverdy
Johnson defends the Message -- Rejoinder -- Remarks of Mr.
Yates -- Mr. Cowan appeals to the Country -- Mr. Stewart
shows how States may make the Law a Nullity -- Mr. Wade --
Mr. McDougall on Persian Mythology -- Mr. J. H. Lane defends
the President -- Mr. Wade -- The President's Collar -- Mr.
Brown -- Mr. Doolittle -- Mr. Garrett Davis -- Mr. Saulsbury
-- Yeas and Nays in the Senate -- Vote in the House -- The
Civil Rights Bill becomes a Law.
The Civil Rights Bill having finally passed through Congress, on the
15th of March, by the concurrence of the Senate in the amendments of
the House, was submitted to the President for his approval. Much
anxiety was felt throughout the country to know what would be the fate
of the bill at the hands of the Executive. Some thought it incredible
that a President of the United States would veto so plain a
declaration of rights, essential to the very existence of a large
class of inhabitants. Others were confident that Mr. Johnson's
approval would not be given to a bill interfering, as they thought, so
flagrantly with the rights of the States under the Constitution.
All doubts were dispelled, on the 27th of March, by the appearance of
the President's Secretary on the floor of the Senate, who said, in
formal phrase: "Mr. President, I am directed by the President of the
United States to return to the Senate, in which house it originated,
the bill entitled 'An act to protect all persons in the United States
in their civil rights, and to furnish the means of their vindication,'
with his objections thereto in writing."
The Secretary of the Senate then read the message, which was heard
with profound attention by the Senators, and a large assembly which
thronged the galleries, drawn thither in anticipation of the
President's veto message.
"_To the Senate of the United States:_
"I regret that the bill which has passed both houses of
Congress, entitled 'An act to protect all persons in the
United States in their civil rights, and furnish the means
for their vindication,' contains provisions which I can not
approve, consistently with my sense of duty to the whole
people and my obligations to the Constitution of the United
States. I am therefore constrained to return it to the
Senate, the house in which it originated, with my objections
to its becoming a law.
"By the first section of the bill, all persons born in the
United States, and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of
the United States. This provision comprehends the Chinese of
the Pacific States, Indians subject to taxation, the people
called Gypsies, as well as the entire race designated as
blacks, people of color, negroes, mulattoes, and persons of
African blood. Every individual of those races, born in the
United States, is by the bill made a citizen of the United
States. It does not purport to declare or confer any other
right of citizenship than Federal citizenship. It does not
purport to give these classes of persons any _status_ as
citizens of States, except that which may result from their
_status_ as citizens of the United States. The power to
confer the right of State citizenship is just as exclusively
with the several States as the power to confer the right of
Federal citizenship is with Congress.
"The right of Federal citizenship thus to be conferred on
the several excepted races before mentioned is now, for the
first time, proposed to be given by law. If, as is claimed
by many, all persons who are native-born, already are, by
virtue of the Constitution, citizens of the United States,
the passage of the pending bill can not be necessary to make
them such. If, on the other hand, such persons are not
citizens, as may be assumed from the proposed legislation to
make them such, the grave question presents itself, whether,
when eleven of the thirty-six States are unrepresented in
Congress, at this time it is sound policy to make our entire
colored population and all other excepted classes citizens
of the United States? Four millions of them have just
emerged from slavery into freedom. Can it be reasonably
supposed that they possess the requisite qualifications to
entitle them to all the privileges and immunities of
citizens of the United States? Have the people of the
several States expressed such a conviction? It may also be
asked whether it is necessary that they should be declared
citizens in order that they may be secured in the enjoyment
of civil rights? Those rights proposed to be conferred by
the bill are, by Federal as well as by State laws, secured
to all domiciled aliens and foreigners even before the
completion of the process of naturalization, and it may
safely be assumed that the same enactments are sufficient to
give like protection and benefits to those for whom this
bill provides special legislation. Besides, the policy of
the Government, from its origin to the present time, seems
to have been that persons who are strangers to and
unfamiliar with our institutions and our laws should pass
through a certain probation, at the end of which, before
attaining the coveted prize, they must give evidence of
their fitness to receive and to exercise the rights of
citizens as contemplated by the Constitution of the United
States.
"The bill, in effect, proposes a discrimination against
large numbers of intelligent, worthy, and patriotic
foreigners, and in favor of the negro, to whom, after long
years of bondage, the avenues to freedom and intelligence
have now been suddenly opened. He must, of necessity, from
his previous unfortunate condition of servitude, be less
informed as to the nature and character of our institutions
than he who, coming from abroad, has to some extent at
least, familiarized himself with the principles of a
Government to which he voluntarily intrusts 'life, liberty,
and the pursuit of happiness.' Yet it is now proposed by a
single legislative enactment to confer the rights of
citizens upon all persons of African descent, born within
the extended limits of the United States, while persons of
foreign birth, who make our land their home, must undergo a
probation of five years, and can only then become citizens
upon proof that they are of 'good moral character, attached
to the principles of the Constitution of the United States,
and well disposed to the good order and happiness of the
same.'
"The first section of the bill also contains an enumeration
of the rights to be enjoyed by these classes, so made
citizens, 'in every State and Territory in the United,
States.' These rights are, '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 have 'full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens.' So, too, they are made subject
to the same punishment, pains, and penalties in common with
white citizens, and to none others. Thus a perfect equality
of the white and black races is attempted to be fixed by
Federal law, in every State of the Union, over the vast
field of State jurisdiction covered by these enumerated
rights. In no one of these can any State ever exercise any
power of discrimination between the different races.
"In the exercise of State policy over matters exclusively
affecting the people of each State, it has frequently been
thought expedient to discriminate between the two races. By
the statutes of some of the States, Northern as well as
Southern, it is enacted, for instance, that no white person
shall intermarry with a negro or mulatto. Chancellor Kent
says, speaking of the blacks, that 'marriages between them
and whites are forbidden in some of the States where slavery
does not exist, and they are prohibited in all the
slaveholding States, and when not absolutely contrary to
law, they are revolting, and regarded as an offense against
public decorum.'
"I do not say this bill repeals State laws on the subject of
marriage between the two races, for as the whites are
forbidden to intermarry with the blacks, the blacks can only
make such contracts as the whites themselves are allowed to
make, and therefore can not, under this bill, enter into the
marriage contract with the whites. I cite this
discrimination, however, as an instance of the State policy
as to discrimination, and to inquire whether, if Congress
can abrogate all State laws of discrimination between the
two races in the matter of real estate, of suits, and of
contracts generally, Congress may not also repeal the State
laws as to the contract of marriage between the two races?
Hitherto every subject embraced in the enumeration of rights
contained in this bill has been considered as exclusively
belonging to the States. They all relate to the internal
policy and economy of the respective States. They are
matters which in each State concern the domestic condition
of its people, varying in each according to its own peculiar
circumstances, and the safety and well-being of its own
citizens. I do not mean to say that upon all these subjects
there are not Federal restraints, as, for instance, in the
State power of legislation over contracts, there is a
Federal limitation that no State shall pass a law impairing
the obligations of contracts; and as to crimes, that no
State shall pass an _ex post facto_ law; and as to money,
that no State shall make any thing but gold and silver a
legal tender. But where can we find a Federal prohibition
against the power of any State to discriminate, as do most
of them, between aliens and citizens, between artificial
persons called corporations and natural persons, in the
right to hold real estate?
"If it be granted that Congress can repeal all State laws
discriminating between whites and blacks, in the subjects
covered by this bill, why, it may be asked, may not Congress
repeal in the same way all State laws discriminating between
the two races on the subject of suffrage and office? If
Congress can declare by law who shall hold lands, who shall
testify, who shall have capacity to make a contract in a
State, then Congress can by law also declare who, without
regard to color or race, shall have the right to sit as a
juror or as a judge, to hold any office, and, finally, to
vote, 'in every State and Territory of the United States.'
As respects the Territories, they come within the power of
Congress, for, as to them, the law-making power is the
Federal power; but as to the States, no similar provisions
exist, vesting in Congress the power 'to make rules and
regulations' for them.
"The object of the second section of the bill is to afford
discriminating protection to colored persons in the full
enjoyment of all the rights secured to them by the preceding
section. It declares 'that any person who, under color 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 this act, or to different punishment, pains,
or penalties on account of such person having at one 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, shall be deemed guilty of a misdemeanor, and,
on conviction, shall be punished by fine not exceeding
$1,000, or by imprisonment not exceeding one year, or both,
in the discretion of the court.' This section seems to be
designed to apply to some existing or future law of a State
or Territory which may conflict with the provisions of the
bill now under consideration. It provides for counteracting
such forbidden legislation by imposing fine and imprisonment
upon the legislators who may pass such conflicting laws, or
upon the officers or agents who shall put, or attempt to
put, them into execution. It means an official offense, not
a common crime committed against law upon the persons or
property of the black race. Such an act may deprive the
black man of his property, but not of the right to hold
property. It means a deprivation of the right itself, either
by the State Judiciary or the State Legislature. It is
therefore assumed that, under this section, members of State
Legislatures who should vote for laws conflicting with the
provisions of the bill; that judges of the State courts who
should render judgments in antagonism with its terms; and
that marshals and sheriffs, who should, as ministerial
officers, execute processes, sanctioned by State laws and
issued by State judges, in execution of their judgments,
could be brought before other tribunals, and there subjected
to fine and imprisonment for the performance of the duties
which such State laws might impose.
"The legislation thus proposed invades the judicial power of
the State. It says to every State court or judge, If you
decide that this act is unconstitutional; if you refuse,
under the prohibition of a State law, to allow a negro to
testify; if you hold that over such a subject-matter the
State law is paramount, and 'under color' of a State law
refuse the exercise of the right to the negro, your error of
judgment, however conscientious, shall subject you to fine
and imprisonment. I do not apprehend that the conflicting
legislation which the bill seems to contemplate is so likely
to occur as to render it necessary at this time to adopt a
measure of such doubtful constitutionality.
"In the next place, this provision of the bill seems to be
unnecessary, as adequate judicial remedies could be adopted
to secure the desired end without invading the immunities of
legislators, always important to be preserved in the
interest of public liberty; without assailing the
independence of the judiciary, always essential to the
preservation of individual rights; and without impairing the
efficiency of ministerial officers, always necessary for the
maintenance of public peace and order. The remedy proposed
by this section seems to be, in this respect, not only
anomalous, but unconstitutional; for the Constitution
guarantees nothing with certainty, if it does not insure to
the several States the right of making and executing laws in
regard to all matters arising within their jurisdiction,
subject only to the restriction that, in cases of conflict
with the Constitution and constitutional laws of the United
States, the latter should be held to be the supreme law of
the land.
"The third section gives the district courts of the United
States exclusive 'cognizance of all crimes and offenses
committed against the provisions of this act,' and
concurrent jurisdiction with the circuit courts of the
United States of all civil and criminal cases 'affecting
persons who are denied or can not enforce in the courts or
judicial tribunals of the State or locality where they may
be any of the rights secured to them by the first section.'
The construction which I have given to the second section is
strengthened by this third section, for it makes clear what
kind of denial or deprivation of the rights secured by the
first section was in contemplation. It is a denial or
deprivation of such rights 'in the courts or judicial
tribunals of the State.' It stands, therefore, clear of
doubt, that the offense and the penalties provided in the
second section are intended for the State judge, who, in the
clear exercise of his function as a judge, not acting
ministerially, but judicially, shall decide contrary to this
Federal law. In other words, when a State judge, acting upon
a question involving a conflict between a State law and a
Federal law, and bound, according to his own judgment and
responsibility, to give an impartial decision between the
two, comes to the conclusion that the State law is valid and
the Federal law is invalid, he must not follow the dictates
of his own judgment, at the peril of fine and imprisonment.
The legislative department of the Government of the United
States thus takes from the judicial department of the States
the sacred and exclusive duty of judicial decision, and
converts the State judge into a mere ministerial officer,
bound to decree according to the will of Congress.
"It is clear that, in States which deny to persons whose
rights are secured by the first section of the bill any one
of those rights, all criminal and civil cases affecting them
will, by the provisions of the third section, come under the
exclusive cognizance of the Federal tribunals. It follows
that if, in any State which denies to a colored person any
one of all those rights, that person should commit a crime
against the laws of the State--murder, arson, rape, or any
other crime--all protection and punishment through the
courts of the State are taken away, and he can only be tried
and punished in the Federal courts. How is the criminal to
be tried? If the offense is provided for and punished by
Federal law, that law, and not the State law, is to govern.
"It is only when the offense does not happen to be within
the purview of the Federal law that the Federal courts are
to try and punish him under any other law; then resort is to
be had to 'the common law, as modified and changed' by State
legislation, 'so far as the same is not inconsistent with
the Constitution and laws of the United States.' So that
over this vast domain of criminal jurisprudence, provided by
each State for the protection of its own citizens, and for
the punishment of all persons who violate its criminal laws,
Federal law, wherever it can be made to apply, displaces
State law.
"The question here naturally arises, from what source
Congress derives the power to transfer to Federal tribunals
certain classes of cases embraced in this section. The
Constitution expressly declares that the judicial power of
the United States 'shall extend to all cases in law and
equity arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made,
under their authority; to all cases affecting embassadors,
other public ministers, and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies
between two or more States, between a State and citizens of
another State, between citizens of different States, between
citizens of the same State claiming land under grants of
different States, and between a State, or the citizens
thereof, and foreign States, citizens, or subjects.'
"Here the judicial power of the United States is expressly
set forth and defined; and the act of September 24, 1789,
establishing the judicial courts of the United States, in
conferring upon the Federal courts jurisdiction over cases
originating in State tribunals, is careful to confine them
to the classes enumerated in the above recited clause of the
Constitution. This section of the bill undoubtedly
comprehends case, and authorizes the exercise of powers that
are not, by the Constitution, within the jurisdiction of the
courts of the United States. To transfer them to those
courts would be an exercise of authority well calculated to
excite distrust and alarm on the part of all the States; for
the bill applies alike to all of them--as well to those that
have as to those that have not been engaged in rebellion.
"It may be assumed that this authority is incident to the
power granted to Congress by the Constitution, as recently
amended, to enforce, by appropriate legislation, the article
declaring that 'neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.' It can
not, however, be justly claimed that, with a view to the
enforcement of this article of the Constitution, there is,
at present, any necessity for the exercise of all the powers
which this bill confers.
"Slavery has been abolished, and, at present, nowhere exists
within the jurisdiction of the United States; nor has there
been, nor is it likely there will be, any attempt to revive
it by the people of the States. If, however, any such
attempt shall be made, it will then become the duty of the
General Government to exercise any and all incidental powers
necessary and proper to maintain inviolate this great
constitutional law of freedom.
"The fourth section of the bill provides that officers and
agents of the Freedmen's Bureau shall be empowered to make
arrests, and also that other officers may be specially
commissioned for that purpose by the President of the United
States. It also authorizes circuit courts of the United
States and the superior courts of the Territories to
appoint, without limitation, commissioners, who are to be
charged with the performance of _quasi_ judicial duties. The
fifth section empowers the commissioners so to be selected
by the courts to appoint, in writing, under their hands, one
or more suitable persons, from time to time, to execute
warrants and other processes described by the bill. These
numerous official agents are made to constitute a sort of
police, in addition to the military, and are authorized to
summon a _posse comitatus_ and even to call to their aid
such portion of the land and naval forces of the United
States, or of the militia, 'as may be necessary to the
performance of the duty with which they are charged.'
"This extraordinary power is to be conferred upon agents
irresponsible to the Government and to the people, to whose
number the discretion of the commissioners is the only
limit, and in whose hands such authority might be made a
terrible engine of wrong, oppression, and fraud. The general
statutes regulating the land and naval forces of the United
States, the militia, and the execution of the laws, are
believed to be adequate for every emergency which can occur
in time of peace. If it should prove otherwise, Congress
can, at any time, amend those laws in such manner as, while
subserving the public welfare, not to jeopard the rights,
interests, and liberties of the people.
"The seventh section provides that a fee of ten dollars
shall be paid to each commissioner in every case brought
before him, and a fee of five dollars to his deputy, or
deputies, 'for each person he or they may arrest and take
before any such commissioner,' 'with such other fees as may
be deemed reasonable by such commissioner,' 'in general for
performing such other duties as may be required in the
premises.' All these fees are to be 'paid out of the
Treasury of the United States,' whether there is a
conviction or not; but, in case of conviction, they are to
be recoverable from the defendant. It seems to me that,
under the influence of such temptations, bad men might
convert any law, however beneficent, into an instrument of
persecution and fraud.
"By the eighth section of the bill, the United States
courts, which sit only in one place for white citizens, must
migrate, with the marshal and district attorney (and
necessarily with the clerk, although he is not mentioned),
to any part of the district, upon the order of the
President, and there hold a court 'for the purpose of the
more speedy arrest and trial of persons charged with a
violation of this act;' and there the judge and the officers
of the court must remain, upon the order of the President,
'for the time therein designated.'
"The ninth section authorizes the 'President, or such person
as he may empower for that purpose, to employ such part of
the land and naval forces of the United States, or of the
militia, as shall be necessary to prevent the violation and
enforce the due execution of this act.' This language seems
to imply a permanent military force, that is to be always at
hand, and whose only business is to be the enforcement of
this measure over the vast region where it is intended to
operate.
"I do not propose to consider the policy of this bill. To me
the details of the bill seem fraught with evil. The white
race and the black race of the South have hitherto lived
together under the relation of master and slave--capital
owning labor. Now, suddenly, that relation is changed, and,
as to the ownership, capital and labor are divorced. They
stand, now, each master of itself. In this new relation, one
being necessary to the other, there will be a new
adjustment, which both are deeply interested in making
harmonious. Each has equal power in settling the terms, and,
if left to the laws that regulate capital and labor, it is
confidently believed that they will satisfactorily work out
the problem. Capital, it is true, has more intelligence; but
labor is never so ignorant as not to understand its own
interests, not to know its own value, and not to see that
capital must pay that value. This bill frustrates this
adjustment. It intervenes between capital and labor, and
attempts to settle questions of political economy through
the agency of numerous officials, whose interest it will be
to foment discord between the two races; for, as the breach
widens, their employment will continue, and when it is
closed, their occupation will terminate.
"In all our history, in all our experience as a people
living under Federal and State law, no such system as that
contemplated by the details of this bill has ever before
been proposed or adopted. They establish, for the security
of the colored race, safeguards which go infinitely beyond
any that the General Government has ever provided for the
white race. In fact, the distinction of race and color is,
by the bill, made to operate in favor of the colored and
against the white race. They interfere with the municipal
legislation of the States, with the relations existing
exclusively between a State and its citizens, or between
inhabitants of the same State--an absorption and assumption
of power by the General Government which, if acquiesced in,
must sap and destroy our federative system of limited
powers, and break down the barriers which preserve the
rights of the States. It is another step, or rather stride,
to centralization and the concentration of all legislative
power in the National Government. The tendency of the bill
must be to resuscitate the spirit of rebellion, and to
arrest the progress of those influences which are more
closely drawing around the States the bonds of union and
peace.
"My lamented predecessor, in his proclamation of the 1st of
January, 1863, ordered and declared that all persons held as
slaves within certain States and parts of States therein
designated, were and thenceforward should be free; and,
further, that the Executive Government of the United States,
including the military and naval authorities thereof, would
recognize and maintain the freedom of such persons. This
guarantee has been rendered especially obligatory and sacred
by the amendment of the Constitution abolishing slavery
throughout the United States. I, therefore, fully recognize
the obligation to protect and defend that class of our
people whenever and wherever it shall become necessary, and
to the full extent compatible with the Constitution of the
United States.
"Entertaining these sentiments, it only remains for me to
say that I will cheerfully coöperate with Congress in any
measure that may be necessary for the protection of the
civil rights of the freedmen, as well as those of all other
classes of persons throughout the United States, by judicial
process under equal and impartial laws, in conformity with
the provisions of the Federal Constitution.
"I now return the bill to the Senate, and regret that, in
considering the bills and joint resolutions--forty-two in
number--which have been thus far submitted for my approval,
I am compelled to withhold my assent from a second measure
that has received the sanction of both houses of Congress.
"ANDREW JOHNSON.
"WASHINGTON, D. C., _March_ 27, 1866."
The death and funeral obsequies of Senator Foot prevented the Senate
from proceeding to the consideration of the President's veto message
for more than a week after it was read. On the 4th of April the Civil
Rights Bill came up to be reconsidered, the question being, "Shall the
bill pass, the objections of the President notwithstanding."
It devolved upon Mr. Trumbull, the author of the bill, to answer the
objections of the President. In answer to the President's position
that the bill conferred only Federal citizenship, and did not give any
_status_ as citizens of States, Mr. Trumbull said: "Is it true that
when a person becomes a citizen of the United States he is not also a
citizen of every State where he may happen to be? On this point I will
refer to a decision pronounced by the Supreme Court of the United
States, delivered by Chief-Justice Marshall, the most eminent jurist
who ever sat upon an American bench. In the case of Gassies _vs._
Ballon, reported in 6 Peters, the Chief-Justice, in delivering the
opinion of the court, says:
"'The defendant in error is alleged in the proceedings to be
a citizen of the United Stated States, naturalized in
Louisiana, and residing there. This is equivalent to an
averment that he is a citizen of that State. _A citizen of
the United States residing in any State of the Union is a
citizen of that State._'"
The message declared "that the right of Federal citizenship is now for
the first time proposed to be given by law." "This," said Mr.
Trumbull, "is not a misapprehension of the law, but a mistake in fact,
as will appear by references to which I shall call the attention of
the Senate." Mr. Trumbull then referred to the "collective
naturalization" of citizens of Louisiana, Texas, and Cherokees,
Choctaw, and Stockbridge Indians.
To the remark in the message that "if, as many claim, native-born
persons are already citizens of the United States, this bill can not
be necessary to make them such," Mr. Trumbull replied: "An act
declaring what the law is, is one of the most common of acts known by
legislative bodies. When there is any question as to what the law is,
and for greater certainty, it is the most common thing in the world to
pass a statute declaring it."
To the objection that eleven States were unrepresented, the Senator
replied: "This is a standing objection in all the veto messages, yet
the President has signed some forty bills. If there is any thing in
this objection, no bill can pass Congress till the States are
represented here. Sir, whose fault is it that eleven States are not
represented? By what fault of theirs is it that twenty-five loyal
States which have stood by this Union and by the Constitution are to
be deprived of their right to legislate? If the reason assigned is a
good one now, it has been a good one all the time for the last five
years. If the fact that some States have rebelled against the
Government is to take from the Government the right to legislate, then
the criminal is to take advantage of his crime; the innocent are to be
punished for the guilty.
"But the President tells us that 'the bill, in effect, proposes a
discrimination against large numbers of intelligent, worthy, and
patriotic foreigners, and in favor of the negro.' Is that true? What
is the bill? It declares that there shall be no distinction in civil
rights between any other race or color and the white race. It declares
that there shall be no different punishment inflicted on a colored man
in consequence of his color than that which is inflicted on a white
man for the same offense. Is that a discrimination in favor of the
negro and against the foreigner--a bill the only effect of which is to
preserve equality of rights?
"But perhaps it may be replied to this that the bill proposes to make
a citizen of every person born in the United States, and, therefore,
it discriminates in that respect against the foreigner. Not so;
foreigners are all upon the same footing, whether black or white. The
white child who is born in the United States a citizen is not to be
presumed at its birth to be the equal intellectually with the worthy,
intelligent, and patriotic foreigner who emigrates to this country.
And, as is suggested by a Senator behind me, even the infant child of
a foreigner born in this land is a citizen of the United States long
before his father. Is this, therefore, a discrimination against
foreigners?
"The President also has an objection to the making citizens of Chinese
and Gypsies. I am told that but few Chinese are born in this country,
and where the Gypsies are born, I never knew. [Laughter.] Like Topsy,
it is questionable, whether they were born at all, but 'just come.'
[Laughter.]
"But, sir, perhaps the best answer to this objection that the bill
proposes to make citizens of Chinese and Gypsies, and this reference
to the foreigners, is to be found in a speech delivered in this body
by a Senator occupying, I think, the seat now occupied across the
chamber by my friend from Oregon, [Mr. Williams,] less than six years
ago, in reply to a message sent to this body by Mr. Buchanan, the then
President of the United States, returning, with his objections, what
was known as the Homestead Bill. On that occasion the Senator to whom
I allude said:
"'But this idea about "poor foreigners," somehow or other,
bewilders and haunts the imagination of a great many. * * * * *
"'I am constrained to say that I look upon this objection to
the bill as a mere quibble on the part of the President, and
as being hard-pressed for some excuse in withholding his
approval of the measure; and his allusion to foreigners in
this connection looks to me more like the _ad captandum_ of
the mere politician or demagogue, than a grave and sound
reason to be offered by the President of the United States
in a veto message upon so important a measure as the
Homestead Bill.'
"That was the language of Senator Andrew Johnson, now President of the
United States. [Laughter.] That is probably the best answer to this
objection, though I should hardly have ventured to use such harsh
language in reference to the President as to accuse him of quibbling
and of demagoguery, and of playing the mere politician in sending a
veto message to the Congress of the United States."
The President had urged an objection that if Congress could confer
civil rights upon persons without regard to color or race, it might
also confer upon them political rights, and among them that of
suffrage. In reply to this, Mr. Trumbull referred to the policy of the
President himself in undertaking to "reörganize State governments in
the disloyal States." He "claimed and exercised the power to protect
colored persons in their civil rights," and yet, when "urged to allow
loyal blacks to vote," he held that "he had no power; it was
unconstitutional."
"But, sir," continued Mr. Trumbull, "the granting of civil rights does
not and never did, in this country, carry with it rights, or, more
properly speaking, political privileges. A man may be a citizen in
this country without a right to vote or without a right to hold
office. The right to vote and hold office in the States depends upon
the legislation of the various States; the right to hold certain
offices under the Federal Government depends upon the Constitution of
the United States. The President must be a natural-born citizen, and a
Senator or Representative must be a citizen of the United States for a
certain number of years before he is eligible to a seat either in this
or the other House of Congress; so that the fact of being a citizen
does not necessarily qualify a person for an office, nor does it
necessarily authorize him to vote. Women are citizens; children are
citizens; but they do not exercise the elective franchise by virtue of
their citizenship. Foreigners, as is stated by the President in this
message, before they are naturalized are protected in the rights
enumerated in this bill, but because they possess those rights in
most, if not all, the States, that carries with it no right to vote.
"But, sir, what rights do citizens of the United States have? To be a
citizen of the United States carries with it some rights, and what are
they? They are those inherent, fundamental rights which belong to free
citizens or free men in all countries, such as the rights enumerated
in this bill, and they belong to them in all the States of the Union.
The right of American citizenship means something. It does not mean,
in the case of a foreigner, that when he is naturalized he is to be
left entirely to the mercy of State legislation. He has a right, when
duly naturalized, to go into any State of the Union, and to reside
there, and the United States Government will protect him in that
right. It will protect a citizen of the United States, not only in one
of the States of the Union, but it will protect him in foreign lands.
"Every person residing in the United States is entitled to the
protection of that law by the Federal Government, because the Federal
Government has jurisdiction of such questions. American citizenship
would be little worth if it did not carry protection with it.
"How is it that every person born in these United States owes
allegiance to the Government? Every thing that he is or has, his
property and his life, may be taken by the Government of the United
States in its defense, or to maintain the honor of the nation. And can
it be that our ancestors struggled through a long war and set up this
Government, and that the people of our day have struggled through
another war, with all its sacrifices and all its desolation, to
maintain it, and at last that we have got a Government which is
all-powerful to command the obedience of the citizen, but has no power
to afford him protection? Is that all that this boasted American
citizenship amounts to? Go tell it, sir, to the father whose son was
starved at Andersonville; or the widow whose husband was slain at
Mission Ridge; or the little boy who leads his sightless father
through the streets of your city, made blind by the winds and the sand
of the Southern coast; or the thousand other mangled heroes to be seen
on every side, that this Government, in defense of which the son and
the husband fell, the father lost his eyes, and the others were
crippled, had the right to call these persons to its defense, but has
no right to protect the survivors or their friends in any right
whatever in any of the States. Sir, it can not be. Such is not the
meaning of our Constitution. Such is not the meaning of American
citizenship. This Government, which would go to war to protect its
meanest--I will not say citizen--inhabitant, if you please, in any
foreign land, whose rights were unjustly encroached upon, has
certainly some power to protect its own citizens in their own country.
Allegiance and protection are reciprocal rights."
To the President's objection to the second section of the bill, that
it discriminated in favor of colored persons, Mr. Trumbull replied:
"It says, in effect, that no one shall subject a colored person to a
different punishment than that inflicted on a white person for the
same offense. Does that discriminate in favor of the colored person?
Why, sir, the very object and effect of the section is to prevent
discrimination, and language, it seems to me, could not more plainly
express that object and effect. It may be said that it is for the
benefit of the black man, because he is now, in some instances,
discriminated against by State laws; but that is the case with all
remedial statutes. They are for the relief of the persons who need the
relief, not for the relief of those who have the right already; and
when those needing the relief obtain it, they stand upon the precise
footing of those who do not need the benefit of the law."
The President had further objected to this section, that "it provides
for counteracting such forbidden legislation by imposing fine and
imprisonment upon the legislators who may pass such conflicting laws."
"Let us see," said Mr. Trumbull, "if that is the language or the
proper construction of the section. I will read again the first lines
of it. It declares 'that any person who, under color of any law,
ordinance, regulation, or custom, shall subject, or cause to be
subjected, etc., * * * shall be punished,' etc.
"Who is to be punished? Is the law to be punished? Are the men who
make the law to be punished? Is that the language of the bill? Not at
all. If any person, 'under color of any law,' shall subject another to
the deprivation of a right to which he is entitled, he is to be
punished. Who? The person who, under the color of the law, does the
act, not the men who made the law. In some communities in the South a
custom prevails by which different punishment is inflicted upon the
blacks from that meted out to whites for the same offense. Does this
section propose to punish the community where the custom prevails? or
is it to punish the person who, under color of the custom, deprives
the party of his right? It is a manifest perversion of the meaning of
the section to assert any thing else.
"But it is said that under this provision judges of the courts and
ministerial officers who are engaged in execution of any such statutes
may be punished, and that is made an objection to this bill. I admit
that a ministerial officer or a judge, if he acts corruptly or
viciously in the execution or under color of an illegal act, may be
and ought to be punished; but if he acted innocently, the judge would
not be punished. Sir, what is a crime? It is a violation of some
public law, to constitute which there must be an act, and a vicious
will in doing the act; or, according to the definition in some of the
law-books, to constitute a crime there must be a violation of a public
law, in the commission of which there must be a union or joint
operation of act and intent, or criminal negligence; and a judge who
acted innocently, and not viciously or oppressively, would never be
convicted under this act. But, sir, if he acted knowingly, viciously,
or oppressively, in disregard of a law of the United States, I repeat,
he ought to be punished, and it is no anomaly to prescribe a
punishment in such a case. Very soon after the organization of this
Government, in the first years of its existence, the Congress of the
United States provided for punishing officers who, under color of
State law, violated the laws of the United States."
Mr. Trumbull then read from an act of Congress passed in 1790,
providing for the punishment of certain offenses against foreign
ministers, and said: "By this provision all officers executing any
process in violation of the laws of the United States are to be
subject to a much longer imprisonment than is provided by this bill.
"But, sir, there is another answer, in my judgment, more conclusive,
to all these objections to this second section, which is the vital
part of the bill. Without it, it would scarcely be worth the paper on
which the bill is written. A law without a penalty, without a
sanction, is of little value to any body. What good does it do for the
Legislature to say, 'Do this, and forbear to do that,' if no
consequence is to follow the act of disobedience? This is the vitality
of the bill. What is the objection that is made to it, and which seems
even to have staggered some friends of the measure? It is because it
reads in the first section that any person who, 'under color of law,'
shall commit these offenses, shall be subject to the penalties of the
law. Suppose those words had been left out, and the bill read, 'any
person who shall subject any inhabitant of a State to different
punishment by reason of his color shall be punished,' would there have
been any objection to the bill then? That is the way most criminal
laws read. That is the way the law punishing conspiracies against the
Government reads. If two or more persons conspire together to
overthrow the Government, or by force to resist its authority, they
are liable to indictment, and, upon conviction, to imprisonment in the
penitentiary and to heavy fine. Would the fact that the persons
engaged in the conspiracy were judges or governors or ministerial
officers, acting under color of any statute or custom, screen them
from punishment? Surely not.
"The words 'under color of law' were inserted as words of limitation,
and not for the purpose of punishing persons who would not have been
subject to punishment under the act if they had been omitted. If an
offense is committed against a colored person simply because he is
colored, in a State where the law affords him the same protection as
if he were white, this act neither has nor was intended to have any
thing to do with his case, because he has adequate remedies in the
State courts; but if he is discriminated against, under color of State
laws, because he is colored, then it becomes necessary to interfere
for his protection.
"The assumption that State judges and other officials are not to be
held responsible for violations of United States laws when done under
color of State statutes or customs is akin to the maxim of the English
law that the king can do no wrong. It places officials above the law;
it is the very doctrine out of which the rebellion was hatched.
"Every thing that was done by that wicked effort to overturn our
Government was done under color of law. The rebels insisted that they
had a right to secede; they passed ordinances of secession, they set
up State governments, and all that they did was under color of law.
And if parties committing these high crimes are to go free because
they acted under color of law, why is not Jeff Davis and every other
rebel chief discharged at once? Why did this country put forth all its
resources of men and money to put down the rebellion against the
authority of the Government except it had a right to do so, even as
against those who were acting under color of law? Lee, with his rebel
hordes, thundering upon the outskirts of this very city, was acting
under color of law; every judge who has held a court in the Southern
States for the last four years, and has tried and convicted of treason
men guilty of no other offense than loyalty to the Union, acted under
color of law.
"Sir, if we had authority by the use of the army and the war power to
put down rebels acting under color of law, I put the question to every
lawyer, if we had not authority to do that through the courts and the
judicial tribunals if it had been practicable? Suppose it had been
practicable, through the marshals, to arrest the Legislature which
convened at Montgomery, and undertook to take the State of Alabama out
of the Union and set up a government in hostility thereto, ought it
not to have been done? Was not that a conspiracy against this
Government? When the Legislature assembled at Montgomery in 1861, and
resolved that the connection between Alabama and the United States was
dissolved, and when its members took steps to maintain that
declaration; when the same thing was done in South Carolina, and
courts were organized to carry out the scheme, will any body tell me
it would not have been competent, had it been practicable, for the
United States courts in those States to have issued process for the
arrest of every one of those legislators, governors, judges, and all.
And, sir, had this been done, and it had turned out upon trial that
any of the parties arrested had been engaged in armed hostility
against the United States, as some of them had been when, with arms in
their hands, they seized the arsenals and other public property of the
United States, would they not have been found guilty of treason and
hung for treason? and would the fact that they had acted under color
of law have afforded them any protection?"
The President, in his Veto Message, had said, "I do not apprehend that
the conflicting legislation which the bill seems to contemplate is so
likely to occur as to render it necessary, at this time, to adopt a
measure of such doubtful constitutionality."
"That statement," replied Mr. Trumbull, "makes it necessary that I
should advert to the facts and show whether there is any likelihood of
such conflicting legislation; and my testimony comes from the
President himself, or those acting under his authority."
After having referred to legislative enactments of several of the
Southern States very oppressive to the colored people, Mr. Trumbull
remarked: "Now, sir, what becomes of this declaration that there is no
necessity for any measure of this kind? Here are the laws of Texas, of
Mississippi, of Virginia, to which I have referred; and laws equally
oppressive exist in some of the other States. Is there no necessity to
protect a freedman when he is liable to be whipped if caught away from
home? no necessity to protect a freedman in his rights when he is not
permitted to hold or lease a piece of ground in a State? no necessity
to protect a freedman in his rights, who will be reduced to a slavery
worse than that from which he has been emancipated if a law is
permitted to be carried into effect? Sir, these orders emanate and
this information comes from officers acting by presidential authority,
and yet the President tells us there is no danger of conflicting
legislation."
After having answered other objections of the President, Mr. Trumbull
said: "I have now gone through this Veto Message, replying with what
patience I could command to its various objections to the bill. Would
that I could stop here, that there was no occasion to go further; but
justice to myself, justice to the State whose representative I am,
justice to the people of the whole country, in legislation for whose
behalf I am called to participate, justice to the Constitution I am
sworn to support, justice to the rights of American citizenship it
secures, and to human liberty, now imperiled, require me to go
further. Gladly would I refrain speaking of the spirit of this
message, of the dangerous doctrines it promulgates, of the
inconsistencies and contradictions of its author, of his encroachments
upon the constitutional rights of Congress, of his assumption of
unwarranted powers, which, if persevered in and not checked by the
people, must eventually lead to a subversion of the Government and the
destruction of liberty.
"Congress, in the passage of the bill under consideration, sought no
controversy with the President. So far from it, the bill was proposed
with a view to carry out what were supposed to be the views of the
President, and was submitted to him before its introduction in the
Senate. I am not about to relate private declarations of the
President, but it is right that the American people should know that
the controversy which exists between him and Congress in reference to
this measure is of his own seeking. Soon after Congress met, it became
apparent that there was a difference of opinion between the President
and some members of Congress in regard to the condition of the
rebellious States and the rights to be secured to freedmen.
"The President, in his annual message, had denied the constitutional
power of the General Government to extend the elective franchise to
negroes, but he was equally decided in the assertion of the right of
every man to life, liberty, and the pursuit of happiness. This was his
language:
"'But while I have no doubt that now, after the close of the
war, it is not competent for the General Government to
extend the elective franchise in the several States, it is
equally clear that good faith requires the security of the
freedmen in their liberty and their property.'
"There were some members of Congress who expressed the opinion that in
the reörganization of the rebellious States the right of suffrage
should be extended to the colored man, though this was not the
prevailing sentiment of Congress. All were anxious for a
reörganization of the rebellious States, and their admission to full
participation in the Federal Government as soon as these relations
could be restored with safety to all concerned. Feeling the importance
of harmonious action between the different departments of the
Government, and an anxious desire to sustain the President, for whom I
had always entertained the highest respect, I had frequent interviews
with him during the early part of the session. Without mentioning any
thing said by him, I may with propriety state that, acting from the
considerations I have stated, and believing that the passage of a law
by Congress, securing equality in civil rights to freedmen and all
other inhabitants of the United States, when denied by State
authorities, would do much to relieve anxiety in the North, to induce
the Southern States to secure these rights by their own action, and
thereby remove many of the obstacles to an early reconstruction, I
prepared the bill substantially as it is now returned with the
President's objections. After the bill was introduced and printed, a
copy was furnished him, and at a subsequent period, when it was
reported that he was hesitating about signing the Freedmen's Bureau
Bill, he was informed of the condition of the Civil Rights Bill then
pending in the House, and a hope expressed that if he had objections
to any of its provisions he would make them known to its friends, that
they might be remedied, if not destructive of the measure; that there
was believed to be no disposition on the part of Congress, and
certainly none on my part, to have bills presented to him which he
could not approve. He never indicated to me, nor, so far as I know, to
any of its friends, the least objection to any of the provisions of
the bill till after its passage. And how could he, consistently with
himself? The bill was framed, as was supposed, in entire harmony with
his views, and certainly in harmony with what he was then and has
since been doing in protecting freedmen in their civil rights all
through the rebellious States. It was strictly limited to the
protection of the civil rights belonging to every freeman, the
birthright of every American citizen, and carefully avoided conferring
or interfering with political rights or privileges of any kind.
* * * * "If the bill now before us, and which goes no further than to
secure civil rights to the freedman, can not be passed, then the
constitutional amendment proclaiming freedom to all the inhabitants of
the land is a cheat and a delusion.
"I can not better conclude what I have to say than in the language of
Mr. Johnson on the occasion of the veto of the Homestead Bill, when,
after stating that the fact that the President was inconsistent and
changed his opinion with reference to a great measure and a great
principle, is no reason why a Senator or Representative, who has acted
understandingly, should change his opinion. He said:
"'I hope the Senate and House of Representatives, who have
sanctioned this bill by more than a two-thirds majority,
will, according to the Constitution, exercise their
privilege and power, and let the bill become a law of the
land, according to the high behest of the American people.'"
On the next day, April 5th, Mr. Johnson, of Maryland, made a speech
sustaining the Veto Message. He argued that negroes were not citizens
of the United States by reason of their birth in the United States,
and that Congress had no authority by law to declare them such. To
sustain his position, he made quotations from the opinion of the
minority in the Dred Scott case, as rendered by Mr. Justice Curtis. He
then proceeded to reply to some of Mr. Trumbull's arguments against
the Veto Message: "The honorable member from Illinois disposes of the
President's objection to the first section of this bill by saying that
it is merely declaratory. I know it is competent for any legislative
body, on a question where difference of opinions exist in relation to
any legal proposition, to remove them by declaratory legislation; but
that is not the purpose of this bill. It professes to be passed in the
exercise of a positive and absolute power to change the law--not to
declare what the law was in order to remove doubts, but to make the
law. It assumes, or otherwise there would be no occasion for it, that
birth alone does not confer citizenship; and assuming that no
citizenship would exist in consequence of birth alone, it declares
that birth alone, in spite of State constitution and State laws, shall
confer citizenship. Now, with all deference to the opinion of the
honorable Chairman of the Committee on the Judiciary, that seems to me
to be a proposition as clearly erroneous as any proposition can be in
relation to constitutional law. The States were sovereign before the
Constitution was adopted; and the Constitution not only, according to
its very terms, does not profess to confer upon the Government of the
United States all governmental power, but as far as Congress is
concerned, professes to confer upon that department of the Government
only the particular delegated powers there enumerated; but so anxious
were the framers of that instrument and the great men of that day, to
whom the subsequent organization of this Government was left, that
although they had no doubt as to the principle that only the delegated
powers were granted, (and the debates in the Convention itself as well
as the debates in the conventions of the several States, when the
Constitution was before them for adoption or rejection, all went upon
the theory that no powers were conferred except such as were expressly
granted, or as were reasonably implied to be as necessary to carry out
the powers expressly granted,) by the tenth amendment adopted recently
after the Constitution went into operation, and recommended by the
men, many of whom were the framers of the Constitution itself, that
the powers not delegated by the Constitution, and not denied to the
States by the same instrument, were to be considered reserved to the
States respectively, or to the people.
"Standing, therefore, as well upon the nature of the Government
itself, as a Government of enumerated powers specially delegated, as
upon the express provision that every thing not granted was to be
considered as remaining with the States unless the Constitution
contained some particular prohibition of any power before belonging to
the States, what doubt can there be that if a State possessed the
power to declare who should be her citizens before the Constitution
was adopted that power remains now as absolute and as conclusive as it
was when the Constitution was adopted? The bill, therefore, changes
the whole theory of the Government.
"The President, then, I think, is right. I go further than he does. He
expresses a doubt whether Congress has the power; I affirm, with all
deference to the better judgment of the majority of the Senate who
voted for the bill, and to that of the honorable Chairman of the
Committee on the Judiciary, that it is perfectly clear that no such
power exists in Congress as the one attempted to be exercised by the
first section. I hold, with Mr. Justice Curtis--and his opinion to
this day has never been questioned--that citizenship of the United
States consequent upon birth in a State is to depend upon the fact
whether the constitution and laws of the State make the party so born
a citizen of the State.
"But that is not all. This first section has another provision. Not
satisfied with making the parties citizens and clothing them with all
the rights belonging to white citizens by the laws of the States, it
says that they 'shall be subject to like punishment, pains, and
penalties, and to none other.' That invades the jurisdiction of the
States over their criminal code. Congress assumes to define a crime,
and defining a crime gives to its own courts exclusive jurisdiction
over the crime and the party charged with its perpetration. It strikes
at the criminal code of the States. The result, therefore, of the
three provisions in this section is, that contrary to State
constitutions and State laws, it converts a man that is not a citizen
of a State into a citizen of the State; it gives him all the rights
that belong to a citizen of the State; and it provides that his
punishment shall only be such as the State laws impose upon white
citizens. Where is the authority to do that? If it exists, it is still
more obvious that the result is an entire annihilation of the power of
the States. It seems to be the fashion of the hour--I do not know that
my honorable friend from Illinois goes to that extent--to hold to the
doctrine that the sooner every thing is vested in the Government of
the United States the better for the country. It is a perilous
delusion. If such a proposition had been supposed to be found any
where in the Constitution of the United States, it never would have
been adopted by the people; and if it is assumed, or if it is
considered as constitutionally existing by virtue of some power not
before known, the Government will not last half a century. I have not
time to read from the writings of Mr. Madison and Mr. Hamilton and the
decisions of the Supreme Court on the question.
"But you, Mr. President, know very well that consolidation of power in
the Government of the United States was looked upon as certain ruin to
republican institutions. In the first place, it would be sure to
result in anarchy; and in the second place, in order to be saved from
the horrors of anarchy, we should be compelled to take refuge in
despotic power, and the days of constitutional liberty would soon be
numbered. The doubt then was, and the doubt now should be more firmly
settled in the public mind, that a country as extensive as that of the
United States can not exist except by means of divided sovereignties;
one sovereignty having charge of all external matters, or matters
between the States to which the powers of the States are inadequate;
the other sovereignties having power over all internal matters to the
management of which they are adequate. Despotism would soon be our
fate, preceded by anarchy; the military chieftain instead of being
looked upon, as he should be by every republican, with alarm and
concern, would be hailed as a savior, in order to save us from the
horrors of disorganization.