WASHINGTON, D.C., _March 27, 1866_.
_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 of 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 these 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 the present 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 the civil rights
proposed to be conferred by the bill. Those rights are, by Federal as
well as 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 just 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
person 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 other. Thus a perfect equality of the white
and colored 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 the 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 that 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 police 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 anything 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 subjects 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 lawmaking power is the Federal power; but as to the States no
similar provision exists 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 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, shall be deemed guilty of a misdemeanor, and on conviction
shall be punished by fine not exceeding $1,000, or 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 functions 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
decide 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 a 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
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, whenever 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 ambassadors, 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 lands 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 cases 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 or 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 $10 shall be paid to each
commissioner in every case brought before him, and a fee of $5 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 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 or 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 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, toward centralization and the concentration of all
legislative powers 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 guaranty 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 cooperate 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.