ANDREW JOHNSON.

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.

A Compilation of the Messages and Papers of the Presidents. Volume 6, part 2: Andrew Johnson · 第 239 / 803 题