Comparing Mr. Bingham's proposed amendment with the original bill, Mr. Wilson said: "What difference in principle is there between saying that the citizen shall be protected by the legislative power of the United States in his rights by civil remedy and declaring that he shall be protected by penal enactments against those who interfere with his rights? There is no difference in the principle involved. If we may adopt the gentleman's mode, we may also select the mode provided in this bill. There is a difference in regard to the expense of protection; there is also a difference as to the effectiveness of the two modes. Beyond this, nothing. This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty it is to protect him. The amendment of the gentleman recognizes the principle involved, but it says that the citizen despoiled of his rights, instead of being properly protected by the Government, must press his own way through the courts and pay the bills attendant thereon. This may do for the rich, but to the poor, who need protection, it is mockery. The highest obligation which the Government owes to the citizen, in return for the allegiance exacted of him, is to secure him in the protection of his rights. Under the amendment of the gentleman, the citizen can only receive that protection in the form of a few dollars in the way of damages, if he shall be so fortunate as to recover a verdict against a solvent wrong-doer. This is called protection. This is what we are asked to do in the way of enforcing the bill of rights. Dollars are weighed against the right of life, liberty, and property. The verdict of a jury is to cover all wrongs and discharge the obligations of the Government to its citizens.

"Sir, I can not see the justice of that doctrine. I assert that it is the duty of the Government of the United States to provide proper protection and to pay the costs attendant on it. We have gone out with the strong arm of the Government and drawn from their homes, all over this land, in obedience to the bond of allegiance which the Government holds on the citizen, hundreds of thousands of men to the battle-field; and yet, while we may exercise this extraordinary power, the gentleman claims that we can not extend the protecting hand of the Government to these men who have been battling for the life of the nation, but can only send them, at their own cost, to juries for verdicts of a few dollars in compensation for the most flagrant wrong to their most sacred rights. Let those support that doctrine who will, I can not."

At the conclusion of Mr. Wilson's speech, Mr. Eldridge, of Wisconsin, moved to lay the whole subject on the table. This motion was rejected—yeas, 32; nays, 118.

The House then rejected Mr. Bingham's proposed amendment, and recommitted the bill to the Committee on the Judiciary.

On the 13th of March the bill was reported back from the committee with some amendments, one of which was to strike out in section one the following words:

"Without distinction of color, and there shall be no discrimination in civil rights, or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery."

The words were omitted to satisfy some who feared that it might be held by the courts that the right of suffrage was conferred thereby.

Another amendment proposed was the addition of a section to the bill, to-wit:

"And be it further enacted, That upon all questions of law arising in any case under the provisions of this act, a final appeal may be taken to the Supreme Court of the United States."

Other amendments proposed and adopted were chiefly of a verbal character.

The main question was finally taken, and the bill passed by the following vote:

YEAS—Messrs. Alley, Allison, Ames, Anderson, James M. Ashley, Baker, Baldwin, Banks, Baxter, Beaman, Bidwell, Blaine, Blow, Boutwell, Bromwell, Broomall, Buckland, Bundy, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, Delano, Deming, Dixon, Donnelly, Driggs, Dumont, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Abner C. Harding, Hart, Hayes, Higby, Hill, Holmes, Hooper, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John H. Hubbard, Hulburd, James Humphrey, Ingersoll, Jenckes, Julian, Kelley, Kelso, Ketcham, Kuykendall, Laflin, George V. Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, Marvin, McClurg, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O'Neill, Orth, Paine, Perham, Pike, Plants, Price, Alexander H. Rice, Sawyer, Schenck, Scofield, Shellabarger, Sloan, Spalding, Starr, Stevens, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Ward, Warner, Elihu B. Washburne, William B. Washburn, Welker, Wentworth, Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, and Woodbridge—111.

NAYS—Messrs. Ancona, Bergen, Bingham, Boyer, Brooks, Coffroth, Dawson, Denison, Glossbrenner, Goodyear, Grider, Aaron Harding, Harris, Hogan, Edwin N. Hubbell, Jones, Kerr, Latham, Le Blond, Marshall, McCullough, Nicholson, Phelps, Radford, Samuel J. Randall, William H. Randall, Ritter, Rogers, Ross, Rosseau, Shanklin, Sitgreaves, Smith, Taber, Taylor, Thornton, Trimble, and Winfield—38.

NOT VOTING—Messrs. Delos R. Ashley, Barker, Benjamin, Brandegee, Chanler, Reader W. Clarke, Culver, Defrees, Eckley, Eggleston, Eldridge, Finck, Griswold, Hale, Henderson, Hotchkiss, James R. Hubbell, James M. Humphrey, Johnson, Kasson, McIndoe, McKee, Niblack, Noell, Patterson, Pomeroy, Raymond, John H. Rice, Rollins, Stilwell, Strouse, Robert T. Van Horn, Henry D. Washburn, and Wright—34.

It is an illustration of the opinion which the minority entertained of the bill to the last, that after it had finally passed, and the previous question had been moved on the adoption of the title, Mr. Le Blond moved to amend the title of the bill by making it read, "A bill to abrogate the rights and break down the judicial system of the States."

On the 15th of March the amendments made by the House came before the Senate for adoption in that body. While these were under consideration by the Senate, Mr. Davis, of Kentucky, made two motions to amend, which were rejected. He then moved to lay the bill on the table, and was proceeding to make a speech, when he was informed that his motion was not debatable. He then withdrew his motion to lay on the table, and moved to postpone the bill until the first Monday of December following. Finding that the last amendment proposed by the House of Representatives was before the Senate, and that his motion could not be entertained, he proceeded to make a speech on the question before the Senate. He asserted that "Congress has no authority or jurisdiction whatever" over the subject of legislation which the bill contains. He closed his remarks with the following words: "I therefore, on the grounds that I have stated, oppose this bill. I know that they weigh nothing with the dominant power here. What care I for that? What care I for the manner in which my suggestions may be received by the majority? Nothing—less than nothing, if possible. I am performing my duty according to my sense of that duty; and in despite of all opposition, of frowns or scoffs, or of any other opposition, come in what form it may, I will stand up to the last hour of my service in this chamber, and will, endeavor, as best I can, to perform my duty whatever may betide me."

The amendments of the House were agreed to, and the CIVIL RIGHTS BILL wanted only Executive approval to become a law of the land.



CHAPTER XI.

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 cooeperate 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 "reoerganize 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 reoerganization 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 reoerganization 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.

"The honorable member referred to the act of 1790, but it relates entirely to different subjects, and all the statutes to which he adverted are statutes of the same description. What is the twenty-sixth section of the act of 1790 to which he referred? The preceding section provided that no one should sue a foreign minister, and the section to which my friend referred particularly, said that if a party did sue a foreign minister he should be liable to be punished. Certainly; but why? Because the Government of the United States was vested with the exclusive authority in all cases depending upon the law of nations; and the law of nations saving from responsibility embassadors accredited to the United States, for civil debts, he who attempted to interfere offended against the Government, and he offended in relation to a subject exclusively committed to the General Government. The power, therefore, which Congress exerted in the particular legislation to which the honorable member reverted is just the power which they exert when they provide for the punishment of any man who counterfeits the currency of the United States, or forges its paper, or forges its bonds, or interferes with the administration of the Post-office Department. These are all powers incidental to the possession of the express power, and in the case to which he adverted the express power was one necessarily belonging to the Government, because it was a power belonging to and regulated by the law of nations, and not by any municipal regulation.

"The honorable member from Illinois tells us that the President's objection, that there are eleven States not now represented, is entitled to no consideration whatever. The honorable member seems to suppose that the President adverted to the fact that there were eleven States not represented as showing that Congress possessed no constitutional authority to legislate upon the subject, supposing that they would have had the authority if those States were represented. That is not the view taken by the President; it is an entire misapprehension of the doctrine of the President. He says no such thing, and he intimates no such thing. But assuming, what in another part of the message he denies, that the authority might be considered as existing, he submits as a question of policy whether it is right to change the whole domestic economy of those eleven States, in the absence of any representation upon this floor from them. My honorable friend asks whose fault it is that they are not represented. Why are they not here? He says their hands are reeking with the blood of loyal men; that they are unable to take the oath which a statute that he assumes to be constitutional has provided; and he would have the country and the Senate to believe that that is the reason why they are not here. Is that the fact, Mr. President? These States are organized, and how organized? What have they done? They have abolished slavery by an astonishing unanimity; they have abolished nearly all the distinctions which antecedently existed between the two races. They have permitted the negroes to sue, they have permitted them to testify; they have not yet permitted them to vote.

"Why are they not received? Because, in the judgment of the Senate, before the States can be considered as restored, Congressional legislation on the subject is necessary. Whose fault is it that there has not been Congressional legislation? Is it the fault of the eleven States? Certainly not; it is our own fault. And why is it that we are in point of fact delaying their admission, whether it is to be considered as a fault or not? Because we want to inquire into the condition of these States. Why, in the name of Heaven! how long have we been here? We came here early in December, and this is the month of April; and here we may remain until July, or, as rumor has it, until next December; and shall we be satisfied within that time that Congressional legislation may be safely adopted?

"I have a word or two more to say. My honorable friend from Illinois, as it seemed to me—his nature is impulsive, and perhaps he was carried further than he intended—seemed to intimate that the President of the United States had not acted sincerely in this matter; that his usurpation was a clear one, and that he was to be censured for that usurpation. What has he done? He has vetoed this bill. He had a constitutional right to do so. Not only that; if he believed that the effect of the bill would be that which he states in his Veto Message, he was not only authorized but bound to veto it. His oath is to 'preserve' as well as to 'protect and defend' the Constitution of the United States; and believing, as he does, and in that opinion I concur, that this bill assails the Constitution of the United States, he would have been false to his plighted faith if he had not returned it with his objections.

"He desires—and who does not?—that the Union shall be restored as it originally existed. He has a policy which he thinks is best calculated to effect it. He may be mistaken, but he is honest. Congress may differ with him. I hope they will agree sooner or later, because I believe, as I believe in my existence, that the condition in which the country now is can not remain without producing troubles that may shake our reputation, not only in our own eyes, but in the eyes of the civilized world. Let the day come when we shall be again together, and then, forgetting the past, hailing the present, and looking forward to the future, we shall remember, if we remember the past at all, for the exhibition of valor and gallantry displayed on both sides, and find in it, when we become one, a guarantee that in the future no foreign hostilities are to be dreaded, and that no civil discord need be apprehended."

Mr. Trumbull said: "The opinion of Judge Curtis, from which the Senator read, was the opinion of a dissenting judge, entitled to very great credit on account of the learning and ability of that judge, but it was not the opinion of the court, and an examination of the entire opinion, which is very lengthy, would perhaps not sustain the precise principles the Senator from Maryland laid down. But, sir, I have another authority which I think of equal weight with that of Judge Curtis—not pronounced in a judicial tribunal it is true, but by one of the most eminent members of the bar in this nation; I may say by a gentleman who stands at the head of the bar in America at this time—an opinion pronounced, too, in the exercise of official duties; and I propose to read a few sentences from that opinion, for it is to be found reported in the Congressional Globe containing the proceedings of this body less than ninety days ago. This is the language:

"'While they [negroes] were slaves, it was a very different question; but now, when slavery is terminated, and by terminating it you have got rid of the only obstacle in the way of citizenship, two questions arise: first, Whether that fact itself does not make them citizens? Before they were not citizens, because of slavery, and only because of slavery. Slavery abolished, why are they not just as much citizens as they would have been had slavery never existed? My opinion is that they become citizens, and I hold that opinion so strongly that I should consider it unnecessary to legislate on the subject at all, as far as that class is concerned, but for the ruling of the Supreme Court, to which I have adverted.'

"Sir, that opinion was held by the honorable Senator from Maryland who made this speech to-day. He holds the opinion so strongly now that slavery is abolished, which was the only obstacle in the way of their being citizens, that he would want no legislation on the subject but for the Dred Scott decision! What further did the Senator from Maryland say less than ninety days ago? It is possible, doubtless—it is not only possible but it is certainly true—that the Senator from Maryland, by reading the conclusive arguments of the Veto Message in regard to Chinese and Gypsies, has discovered that he was in error ninety days ago. I by no means mean to impute any wrong motive to the Senator from Maryland, but simply to ask that he will pardon me if I have not been able to see the conclusive reasoning of the Veto Message."

After quoting still further from Mr. Johnson's speech, made on a previous occasion, Mr. Trumbull said: "But as I am up, I will refer to one other point to which the Senator alluded, and that is in regard to the quotation which I made yesterday from the statute of 1790. I quoted that statute for the purpose of showing that the provisions in the bill under consideration, which it was insisted allowed the punishment of ministerial officers and judges who should act in obedience to State laws and under color of State laws, were not anomalous. I read a statute of 1790 to show that the Congress of the United States, at that day, provided for punishing both judges and officers who acted under color of State law in defiance of a law of the United States. How does the Senator answer that? He says that was on a different subject; the law of 1790 provided for punishing judges and officers who did an act in violation of the international law, jurisdiction over which is conferred upon the nation. Let me ask the Senator from Maryland, if the bill under discussion does not provide for the punishment of persons who violate a right secured by the Constitution of the United States? Is a right which a citizen holds by virtue of the Constitution of his country less sacred than a right which he holds by virtue of international law?"

Mr. Johnson replied as follows: "It is singular, in my estimation, how a gentleman with a mind as clear as Mr. Trumbull's, with a perspicacity that is a little surprising, could have fallen into the error of supposing that there is any inconsistency between the doctrine contained in the speech to which he has adverted and the one which I have maintained to-day. What I said then I say now, that as far as the United States are concerned, all persons born within the limits of the United States are to be considered as citizens, and that without reference to the color or the race; and after the abolition of slavery the negro would stand precisely in the condition of the white man. But the honorable member can hardly fail, I think—certainly he can not when I call his attention to it—to perceive that that has nothing to do with the question now before the Senate. His bill makes them citizens of the United States because of birth, and gives them certain rights within the States."

Mr. Fessenden asked: "Were not your remarks made on this very question in this bill?"

"No," replied Mr. Johnson; "on another bill." He continued: "What I maintain is this—and I have never doubted it, because I entertained the same opinion when I made those remarks that I entertain now—that citizenship of the United States, in consequence of birth, does not make a party a citizen of the State in which he is born unless the Constitution and laws of the State recognize him as a citizen. Now, what does this bill propose? All born within the United States are to be considered citizens of the United States, and as such shall have in every State all the rights that belong to any body else in the State as far as the particular subjects stated in the bill are concerned. Now, I did suppose, and I shall continue to suppose, it to be clear, unless I am met with the almost paramount authority of the Chairman of the Judiciary Committee, that citizenship, by way of birth, conferred on the party as far as he and the United States were concerned, is not a citizenship which entitles him to the privilege of citizenship within the State where he is born; if it be true, and I submit that it is true beyond all doubt, that over the question of State citizenship the authority of the State Government is supreme.

"Now, the honorable member is confounding the status of a citizen of the United States and the status of a citizen of the United States who as such is a citizen of the State of his residence. Maintaining, as I do, that there is no authority to make any body a citizen of the United States so as to convert him thereby into a citizen of a State, there is no authority in the Constitution for this particular bill, which says that because he is a citizen of the United States he is to be considered a citizen of any State in which he may be at any time with reference to the rights conferred by this bill."

Mr. Trumbull replied: "I desire simply to remark that the speech from which I quoted, made by the Senator from Maryland, was made upon this very bill. It was in reference to this bill that he was speaking when he laid down the proposition that every person born in the United States since the abolition of slavery was a citizen of the United States, and if there was any doubt about it, it was proper for us to declare them so, and not only proper, but our duty to do so; and to make the matter specific, the honorable Senator voted for this proposition, which I will now read, on the yeas and nays:

"'All persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States, without distinction of color.'

"Upon the adoption of that proposition as an amendment, it not being in the bill as originally introduced, the Senator from Maryland, with thirty others, voted in the affirmative. So we have his high authority for saying that all persons born in the United States, and not subject to any foreign Power, are citizens of the United States, exactly as it appears in this bill."

"Mr. Yates, of Illinois, remarked: "I remember very well that the Senator from Maryland offered an amendment to the Freedmen's Bureau Bill to this effect: to strike out the words 'without distinction of color.' The Freedmen's Bureau Bill applied legislation by Congress to the freedmen in the States and to the condition of the freedmen in the States. It was legislation that affected the freedmen in the rebellious States. If I remember aright the Senator from Maryland moved to strike out the words 'without distinction of color' in one section of that bill, and for that motion he gave this reason: because, under the Constitution of the United States, as amended, abolishing slavery in all the States and Territories of the United States, the freedmen occupied precisely the same position with any other citizen of the United States in any State or Territory. I understood him as taking the broad position, which I have maintained, and which Republican Senators have maintained, and which I think the country maintains, that under the Constitution, as amended, the freedman occupies precisely the same position as any man born in any State or Territory of the United States; and that was the object, if I understood the Senator from Maryland, of his moving to amend the Freedmen's Bureau Bill by striking out the words 'without distinction of color.'

"I recognize the authority of the decisions quoted by the Senator from Maryland before the adoption of the amendment to the Constitution. The States had the power over the question of slavery in the States before the amendment to the Constitution; but by the amendment to the Constitution, in which the States have concurred, the freedman becomes a free man, entitled to the same rights and privileges as any other citizen of the United States."

Mr. Cowan, of Pennsylvania, spoke in favor of the veto, premising that his words, "if they are not to convince any body in the Senate, may go to the country and be reflected on there." Mr. Cowan said he was quite willing that all the people of this country should enjoy the rights conferred upon them by this bill. But, supposing the bill had all the merit in the world, it would not be effective to attain the ends hoped for by its friends; and apart from that, its provisions were exceedingly dangerous. It gave married women and minors the right to make and enforce contracts. The grammatical structure of a portion of the bill was such as to enable a corrupt, passionate, or prejudiced judge to take advantage of it in order to widen the jurisdiction of the United States courts, and drag into them all the business which had heretofore occupied the State courts. This would be enough in this nineteenth century to make a man tremble for the fate of constitutional government. "If," said Mr. Cowan, "we had undoubted authority to pass this bill, under the circumstances I would not vote for it, on account of its objectionable phraseology, its dubious language, and the mischief which might attend upon a large and liberal construction of it in the District and Circuit Courts of the United States." The trouble and expense of obtaining justice in the United States courts, but one, or at most two existing in any of the Southern States, would debar the African from applying to them for redress. "Your remedy," said the Senator, "is delusive; your remedy is no remedy at all; and to hold it up to the world as a remedy is a gross fraud, however pious it may be. It is no remedy to the poor debtor that you prosecute his judge, and threaten him with fine and imprisonment. It is no remedy to the poor man with a small claim that you locate a court one or two hundred miles away from him which is so expensive in its administration of justice that he can not enter there.



"There is another provision of the bill, which, notwithstanding the act of Congress relied upon by the honorable Senator from Illinois, I think is unquestionably anomalous, and to me not only anomalous, but atrocious; and that is, the substitution of an indictment for the writ of error. What has been the law of these United States heretofore? When an act of Congress came in contact with a State law, and the judge of a State court decided that the law of Congress was unconstitutional, there was an appeal given to the debated party to the Supreme Court of the United States in order to determine the constitutionality of the law. But, sir, who, until the last few months, ever heard of making the judge a criminal because he decided against the constitutionality of a law of the United States? One would think we were being transported back to the dark ages of the world when a man is to be accused and perhaps convicted of a crime who has done nothing more than honestly and conscientiously discharged his duty. I know that the persons of embassadors are sacred, and I know that it is a very high offense against the law of nations, which no civil judge of any court could justify, to invade this sacred right of the embassador, but every body knows that that is an exceptional case. Every body knows that in all times and at all ages the judge was punishable who did not respect the person of an embassador. But that is not this case. That analogy will not help the third section of this bill. It is openly avowed upon the floor of the Senate of the United States, in the year of our Lord 1866, in the full blaze and light of the nineteenth century, that the indictment is to be a substitute for the writ of error, and it is justified because a judge ought to be indicted who violates the sacred person of an embassador! What potency there must be in the recent amendment of the Constitution which has foisted the negro and set him upon the same platform as the envoy extraordinary and minister plenipotentiary of Great Britain or of all the Russias to the United States of America, and made him as sacred as an embassador, and the judge who decides against him is to be punished as a criminal!"

Mr. Stewart showed that States might easily avoid all the annoying operations of this bill which were feared by its opponents: "When I reflect how very easy it is for the States to avoid the operation of this bill, how very little they have to do to avoid the operation of the bill entirely, I think that it is robbed of its coercive features, and I think no one has any reason to complain because Congress has exercised a power, which it must be conceded it has, when it has exercised it in a manner which leaves it so easy for the States to avoid the operation of this bill. If passed to-day, it has no operation in the State of Georgia; it is impossible to commit a crime under this bill in the State of Georgia; and the other States can place themselves in the same position so easily that I do not believe they ought to complain."

He then read the second section of an act passed in Georgia, precisely similar to the first section of the Civil Eights Bill. Nothing could be done in Georgia under "color of law," which would subject officers to the penalties provided by the Civil Rights Bill. "It being so easily avoided by being complied with, by doing a simple act of justice, by carrying out the spirit of the constitutional amendment, I can not give my consent to defeat a bill the purpose of which is good, the operation of which is so innocent, and may be so easily avoided."

The Republican Senators were desirous of bringing the bill to a final vote on this evening, but on account of the illness of Senator Wright, of New Jersey, it was proposed by Democratic members to appoint some hour on the following day when the vote should be taken in order that they might have a full vote.

Mr. Wade, of Ohio, said: "If this was a question in the ordinary course of legislation, I certainly would not object to the proposition which the gentlemen on the other side make; but I view it as one of the greatest and most fundamental questions that has ever come before this body for settlement, and I look upon it as having bearings altogether beyond the question on this bill. The bill is, undoubtedly, a very good one. There is no constitutional objection to it; there has been no objection to it raised that creates a doubt in the mind of any mortal man; but, nevertheless, we are at issue with the President of the United States upon a question peculiarly our own. The President of the United States has no more power under the Constitution to interpose his authority here, to prescribe the principle upon which these States should be admitted to this Union, than any man of this body has out of it. The Constitution makes him the executive of the laws that we make, and there it leaves him; and what is our condition? We who are to judge of the forms of government under which States shall exist; we, who are the only power that is charged with this great question, are to be somehow or other wheedled out of it by the President by reason of the authority that he sets up.

"Sir, we can not abandon it unless we yield to a principle that will unhinge and unsettle the balances of the Constitution itself. If the President of the United States can interpose his authority upon a question of this character, and can compel Congress to succumb to his dictation, he is an emperor, a despot, and not a President of the United States. Because I believe the great question of congressional power and authority is at stake here, I yield to no importunities of the other side. I feel myself justified in taking every advantage which the Almighty has put into my hands to defend the power and authority of this body, of which I claim to be a part. I will not yield to these appeals of comity on a question like this; but I will tell the President and every body else that, if God Almighty has stricken one member so that he can not be here to uphold the dictation of a despot, I thank him for his interposition, and I will take advantage of it if I can."

Mr. McDougall, of California, replied to Mr. Wade. This wayward Senator from California has wide notoriety from his unhappy habits of intemperance. He has been described by a writer unfriendly to his politics as "the most brilliant man in the Senate; a man so wonderfully rich, that though he seeks to beggar himself in talents and opportunities, he has left a patrimony large enough to outdazzle most of his colleagues." He frequently would enter the Senate-chamber in a condition of apparent stupor, unable to walk straight; and after listening a few moments to what was going on, has arisen and spoken upon the pending question in words of great beauty and force.

On this occasion Mr. McDougall is described as having been in a worse condition than usual. His words were muttered rather than spoken, so that only those immediately about him could hear; and yet his remarks were termed by one of his auditors as "one of the neatest little speeches ever heard in the Senate." His remarks were as follows: "The Senator from Ohio is in the habit of appealing to his God in vindication of his judgment and conduct; it is a common thing for him to do so; but in view of the present demonstration, it may well be asked who and what is his God. In the old Persian mythology there was an Ormudz and an Ahriman—a god of light and beauty, and a god of darkness and death. The god of light sent the sun to shine, and gentle showers to fructify the fields; the god of darkness sent the tornado, and the tempest, and the thunder, scathing with pestilence the nations. And in old Chaldean times men came to worship Ahriman, the god of darkness, the god of pestilence and famine; and his priests became multitudinous; they swarmed the land; and when men prayed then their offerings were, 'We will not sow a field of grain, we will not dig a well, we will not plant a tree.' These were the offerings to the dark spirit of evil, until a prophet came who redeemed that ancient land; but he did it after crucifixion, like our great Master.

"The followers of Ahriman always appealed to the same spirit manifested by the Senator from Ohio. Death is to be one of his angels now to redeem the Constitution and the laws, and to establish liberty. Sickness, suffering, evil, are to be his angels; and he thanks the Almighty, his Almighty, that sickness, danger, and evil are about! It may be a good god for him in this world; but if there is any truth in what we learn about the orders of religion in this Christian world, his faith will not help him when he shall ascend up and ask entrance at the crystal doors. If there can be evil expressed in high places that communicates evil thoughts, that communicates evil teachings, that demoralizes the youth, who receive impressions as does the wax, it is by such lessons as the Senator from Ohio now teaches by word of mouth as Senator in this Senate hall.

"Sir, the President of the United States is a constitutional officer, clothed with high power, and clothed with the very power which he has exercised in this instance; and those who conferred upon him these powers were men such as Madison, and Jay, and Hamilton, and Morris, and Washington, and a host of worthies; men who, I think, knew as much about the laws of government, and how they should be rightly balanced, as any of the wisest who now sit here in council. It is the duty of the President of the United States to stand as defender of the Constitution in his place as the conservator of the rights of the people, as tribune of the people, as it was in old Rome when the people did choose their tribunes to go into the senate-chamber among the aristocracy of Rome, and when they passed laws injurious to the Roman people, to stand and say, 'I forbid it.'

"That is the veto power, incorporated wisely by our fathers in the Constitution, conferred upon the President of the United States, and to be treated with consideration; and no appeal of the Senator to his God can change the Constitution or the rights of the President of the United States, or can prevent a just consideration of the dignity of this Senate body by persons who have just consideration, who feel that they are Senators.

"It is a strange thing, an exceedingly strange thing, that when a few Senators in the city of Washington, ill at their houses, give assurance that they can be here to act upon a great public question on the day following this, we should hear a piece of declamation, the Senator appealing to his God, and saying, with an Io triumphe air, 'Well or ill, God has made them ill.' Sir, the god of desolation, the god of darkness, the god of evil is his god. I never expected to hear such objections raised among honorable men; and men to be Senators should be honorable men. I never expected to hear such things in this hall; and I rose simply to say that such sentiments were to be condemned, and must receive my condemnation, now and here; and if it amounts to a rebuke, I trust it may be a rebuke."

The Senate adjourned, with the understanding that the vote should be taken on the following day. In the morning hour on that day, as the States were called for the purpose of giving Senators an opportunity of introducing petitions or resolutions, Mr. Lane, of Kansas, presented a joint resolution providing for admitting Senators and Representatives from the States lately in insurrection. This bill, emanating from a Republican Senator, who professed to have framed it as an embodiment of the President's policy, was evidently designed to have an influence upon the action of the Senate upon the Civil Rights Bill. It proposed that Senators and Representatives from the late rebellious States should be admitted into Congress whenever it should appear that they had annulled their ordinances of secession, ratified the constitutional amendment abolishing slavery, repudiated all rebel debts, recognized the debts of the United States, and extended the elective franchise to all male persons of color residing in the State, over twenty-one years of age, who can read and write, and who own real estate valued at not less than two hundred and fifty dollars.