A Century of Lawmaking For a New Nation
INTRODUCTION
As you read the debates in A Century of Lawmaking For a New Nation: U. S. Congressional Documents and Debates with selected portions of the debates for the 1866 civil rights act and the debates about the three constitution amendments (1865 13th, 1868 14th, 1870 15th) you will notice that both Article II Section 1 clause 5 and “natural born Citizen” are mentioned in passing and not discussed as a debate topic. Apparently the Senators and Representatives in the 1800s (1865 – 1870) knew what “except” and “or” and “natural born” and “Citizen” implied in 1787, and that “or” applied only until the last “...or a Citizen of...” died sometime in the 1800s.
Numbers in parentheses (e.g., 2612) are for the original Congressional Globe website pages before they were archived. PDFs of the original Congressional Globe debates are available at the urls listed below. Selected here are the urls for the 36th to the 44th Congresses, before the start of the civil war to the start of reconstruction when black Republicans were being elected to federal offices until the Democrats started to work against black candidates, essentially the start of putting them on the Democratic political plantation for a few decades.
→ https://blogs.loc.gov/teachers/2023/03/century-of-lawmaking-new-look-new-location/
Congressional Globe
→ https://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/debates-of-congress/congressional-globe/
“The Globe, as it is usually called , contains the congressional debates of the 23rd through 42nd Congresses (1833-73). There are 46 volumes in the series based on the table found in the Third Edition of Checklist of United States Public Documents 1789-1909, Volume 1B (pp. 1466-69).”
“The contents of the appendix of each volume vary from Congress to Congress, but appendixes typically contain presidential messages, reports of the heads of departments and cabinet officers, texts of laws, and appropriations. Speeches not indexed or referenced on the pages reprinting the debates appear in the appendix as well.”
“This collection is available in PDF on Congress.gov (→ https://www.congress.gov/) on the Browse pages under Debate of Congress from the 23rd through 42nd Congresses.”
“An archived version is available here.”
→ https://webarchive.loc.gov/all/20211111045023/https://memory.loc.gov/ammem/amlaw/lwcg.html
→ https://webarchive.loc.gov/all/20211110153216/https://memory.loc.gov/ammem/amlaw/lwcglink.html
PDFs are available to download:
→ https://www.congress.gov/browse/36th-congress (March 4, 1859 - March 3, 1861)
→ https://www.congress.gov/browse/37th-congress (March 4, 1861 - March 3, 1863)
→ https://www.congress.gov/browse/38th-congress (March 4, 1863 - March 4, 1865)
→ https://www.congress.gov/browse/39th-congress (March 4, 1865 - March 3, 1867)
→ https://www.congress.gov/browse/40th-congress (March 4, 1867 - March 3, 1869)
→ https://www.congress.gov/browse/41st-congress (March 4, 1869 - March 3, 1871)
→ https://www.congress.gov/browse/42nd-congress (March 4, 1871 - March 3, 1873)
→ https://www.congress.gov/browse/43rd-congress (March 4, 1873 - March 3, 1875)
→ https://www.congress.gov/browse/44th-congress (March 5, 1875 - March 3, 1877)
→ CALIBRE-ebook.com: Listen While You Read
“Calibre is pronounced as cal-i-ber not ca-li-bre. If you’re wondering, calibre is the British/commonwealth spelling for caliber. Being Indian, that’s the natural spelling for me” [Kovid Goyal].
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1) Install the app, right click on PDF, Microsoft WORD, LibreOffice ODT, notepad ‘txt’ documents to see the words ‘Open with’.
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3) To read a document after it is open right click on the document page to see the calibre menu.
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CONTENTS
A Century of Lawmaking For a New Nation: U. S. Congressional Documents and Debates [jpg]...1
Introduction…4
→ CALIBRE-ebook.com: Listen While You Read...4
[Start of a few debates about the 1865 Thirteenth Amendment—freedom.]…7
38th CONGRESS 1st SESSION December 7, 1863 to July 4, 1864…7
My comment about “before and higher”…24
38th CONGRESS 2nd SESSION December 5, 1864 to March 3, 1865…31
The Dred Scott decision [text]…49
My comment about “the laws of descent”…55
My comment about “slavery is a wrong” not “a right”…62
My comment about “Resolved”…67
39th CONGRESS 1st SESSION December 4, 1865 to July 28, 1866…112
[Start of a few debates about the 1866 Civil Rights Act – inclusion]…151
My comment about “loyalty” and “the test oath”…164
My comment about Sen. Trumbull’s ‘understanding’: “…under the naturalization laws the children…born here of parents...not...naturalized are citizens”…221
My comment about “natural-born citizen or citizens”…224
My comment about “Congress … uniform rule”...227
My comment about the two words “born” and “declared”…240
My comment about “All persons born in this country are citizens”…242
My comment about “owe allegiance” and “temporarily resident”…247
My comment about “tribal authority”…248
My comment about “native-born citizen”, “eligible”, “President or Senator or Representative”…249
I, Abraham Lincoln, President of the United States… 257, 266
My comment about Andrew Johnson recognized as a “citizen”…262
Mr. Bancroft’s Address…273
MEMORIAL OF ABRAHAM LINCOLN…274
My comment about “Blackstone says: … aliens … natural-born subjects” and Mr. Wilson’s comment “This law bound the colonies before the Revolution, and was not changed afterward”…295
My comment about “impression” … “citizen” … “one or both” … “parents” … “alien” … “birth”…297
My comment about “natural … native”, and “expressed by a writer on”...299
My comment about “no other rights”, “rights of nature”, “civil rights”…310
My comment about “discretionary”…324
My comment about “native-born” and “citizens”…324
My comment about “citizen”, “jurisdiction”, “allegiance”…326
My comment about “citizen”, “country”, “born”…335
My comment about “bill proposes”, “make”, “citizen”, “born”…345
My comment about “suggested”, “infant”, “citizen”, “before”…346
My comment about “President … natural-born citizen … Senator or Representative … citizen”…348
[Start of a few debates about the 1868 Fourteenth Amendment – citizen]…366
My comment about “born, or hereafter to be born” and “naturalization laws”…387
My comment about “born … parents” and “subject … authority”…396
[Start of a few debates about Reconstruction and the 1870 Fifteenth Amendment – vote.]…415
40th CONGRESS 3rd SESSION December 7, 1868 to March 3, 1869…447
Appendix
How Firm A Foundation…454
Ghost From Valley Forge…456
Child of the Patriotic Dead…457
Wake UP Look UP Sit UP Stand UP Speak UP…458
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Congressional Globe Debates and Proceedings
→ https://memory.loc.gov/ammem/amlaw/lwcglink.html ←
38th Congress to the 42nd Congress
A few debates from the 38th Congress to the 42nd Congress supporting and opposing one civil rights act and three amendments to the U.S. Constitution.
1865 Thirteenth Amendment
Proposed: January 31, 1865 / Ratified: December 6, 1865
1866 Civil Rights Act
Passed: April 9, 1866
1868 Fourteenth Amendment
Proposed: June 13, 1866 / Ratified: July 9, 1868
1870 Fifteenth Amendment
Proposed: February 26, 1869 / Ratified: February 3, 1870
1. The 1865 Thirteenth Amendment: Positive law abolition of human slavery and national freedom for all persons, male and female. This amendment language is positive law, law expressed by people which respects and is supported by natural law, revealed in human nature expressed with spirit, breath, thoughts, mind, self, soul, being, life, existence, body.
According to natural law human persons are not to be yoked by words of people called legislators who use words in acts of Congress or amendments (“acts” and “amendments” are positive law words), or words of judges who use words to express ex nihilo a fiat (‘because we said so’) ‘opinion’ which asserts that it is ‘legal’ for human persons to be yoked and treated like animals. Because the 1865 amendment freedom words are positive law based on natural law, the positive law words of the 1865 amendment broke the slave yoke of the 1857 Dred Scott decision positive law slavery words of one person, Supreme Court Chief Justice Taney.
2. The 1866 Civil Rights Act: Positive law inclusion in national society of all persons, male and female.
3. The 1868 Fourteenth Amendment: Positive law citizenship for all U. S. persons, male and female.
4. The 1870 Fifteenth Amendment: Positive law vote for only U. S. citizen males.
The 1920 Nineteenth Amendment is positive law which gave all U. S. citizens the ‘right’ to vote when it was proposed June 4, 1919 and ratified August 18, 1920. As positive law (law of people), the amendment ‘gave’ to all U. S. citizens, male and female, only the national ‘right’ to vote for all federal offices, President, House, and Senate. The words “male” and “female” refer to natural law (law of nature) existence only by birth alone.
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[Start of a few debates about the 1865 Thirteenth Amendment—freedom.]
38th CONGRESS 1st SESSION
December 7, 1863 to July 4, 1864
(2612)
HOUSE OF REPRESENTATIVES
May 31, 1864
ABOLITION OF SLAVERY
Joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States.
Mr. HOLMAN. I object to the second reading of the joint resolution.
The joint resolution is as follows:
That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which when ratified by three fourths of said Legislatures, shall be valid, to all intents and purposes, as a part of the said Constitution, namely:
ARTICLE XIII
SEC. 1. 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.
SEC. 2. Congress shall have power to enforce this article by appropriate legislation.
The SPEAKER. The question then is, “Shall the joint resolution be rejected?”
Mr. WILSON demanded the previous question.
The previous question was seconded, and the main question ordered.
Mr. SCHENCK demanded the yeas and nays.
The yeas and nays were ordered.
The question was taken; and it was decided in the negative—yeas 55, nays 76; … [snip]
So the joint resolution was not rejected. [snip]
(2613)
ABOLITION OF SLAVERY
Mr. MORRIS, of New Your. Mr. Speaker, the questions which now engross so much of the public attention as to the status of the several States in rebellion, and just what disposition shall be made of them when finally subdued, are increasing in interest.
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Upon the remaining question, is it necessary for Congress and the loyal States to exercise the power conferred, I remark it depends much upon the question whether slavery should be cherished or destroyed.
The framers of the Constitution knew little of the true character of slavery. It was reserved for their descendants to learn this by an experience bitter and expensive. Few persons at the moment realize the danger of the first error. … . [snip]
Once more: our fathers permitted slavery from a supposed necessity. This was their first error. They expected it would become extinct under the workings of the Constitution. This was a second error. Others followed, and since the forma-
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tion of our Government millions have been enslaved. An entire race has been deprived of all social rank, barred from our schools, shut out from the gospel, and then held to be inferior for not rising in spite of their hinderances to an equality with the Saxon in the enjoyment of each of these privileges. Under our Government the African is a nondescript; he is not a man, nor yet is he a brute; he has not the rights nor the protection of either; he has no resting place, no refuge within this land of liberty and Christianity, and yet he is the only innocent party within its entire boundaries. Tell me where he may rear the home altar and enjoy unmolested the companionship of wife and children. Up to this hour, such is the force of prejudice, that if, rising above and forgetting the inhuman treatment of our Government, the colored man enters our armies and imperils his life in its defense, he is denied not only the pay but the protection of a soldier. And yet we crave Heaven’s blessing.
Had slavery been content with despoiling the colored race only, its existence, I doubt not, might have been prolonged for years. But, in its greed, its exactions reached beyond. It inaugurated a plan of adding territory, by conquest and purchase, to our already immense unpopulated domain, for the avowed purpose of creating slave States, that an equilibrium might be preserved between freedom and slavery. What a scheme in a free Government! It was a procedure as prudent and quite as certain to be productive of good as it would be if a Christian church, for the promotion of harmony and a growth in grace, should, upon the receipt of each saint, admit an avowed infidel and libertine into its communion. Satisfy me that a union of holiness and sin, a blending of heaven and hell are essential to harmony and peace, and I will admit not only the policy but the wisdom and justice of retaining the system of slavery in our Government. [snip]
Self-preservation! It is engraven upon each soul by the finger of God. It is an instinct in every breast. It is recognized by every being on earth, except such as have lost their humanity through the influence of this damned sin. Self-preservation! It is written in every constitution in Christendom; it underlies all Governments, and is tolerated even by those absolute monarchies where the tyrant’s will is the only law. ….
We see that slavery, after despoiling the African, has steadily and aggressively advanced in its exactions and lusts, till it is now thundering at our gates and threatening the nation’s existence. Shall we yield this? The nation and slavery cannot both live. Which is of the greater value? I say destroy this monster at once, root out this noxious plant, leave not a fiber to again sprout and choke the tree of liberty planted by our fathers. We have the power; the necessity is apparent; therefore let us perform this duty and save the nation. To stop short of this is a criminal truce.
Sir, this is not a mere struggle between the North and the South; it is a conflict between two systems; a controversy between right and wrong. This is not a war between the Puritan and the Cavalier; freedom begat the former and slavery the latter. They are only instruments in the hands of their respective creators.
Mr. Speaker, the present American Congress occupies a position at this moment of greater responsibility than has devolved upon a like body since the year 1776. … Our action this day will give perpetuity to a nation of freemen or of slaves. By our action at this time shall we be honored or execrated by the millions who shall people the continent of the West. They eyes of a world are upon us; the hopes of the oppressed, the interests of freedom in every land hang upon our decision, and the blessings or the cursings of Almighty God await our final proceedings.
Mr. HERRICK obtained the floor.
The House then took a recess until half past seven o’clock p. m.
EVENING SESSION
The House reassembled at half past seven o’clock p. m., (Mr. L. MYERS occupying the chair as Speaker pro tempore,) and resumed the consideration of joint resolution of the Senate No. 16, submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States.
[Mr. Herrick opposed the 13th Amendment]
Mr. HERRICK. Mr. Speaker, as I intend to vote against this proposition to tamper with the Constitution of our fathers, which I have been taught to reverence as a masterpiece of wisdom in statesmanship, and as being the foundation of the most perfect system of human government ever devised by man, it is but proper that I should state to the House and the country some of the reasons which impel me to make the record I intend upon the question of the passage of this important resolution. ….
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To my mind, this is a disunion measure; and in my view the adoption of this resolution by Congress, and its subsequent incorporation into the Constitution through the assent of “bogus” State organizations to be improvised for the occasion, under the President’s one tenth amnesty proclamation or the reconstruction bill introduced by the distinguished gentlemen from Maryland or new States to be organized by dividing old ones, as in the case of West Virginia, or created out of Territories not having a sufficient number of inhabitants to entitle them to a single Representative upon this floor—I say the adoption of this measure under such circumstances can have no other effect than to seal forever the dissolution of the Union declared by the seceding States three years ago, however superior the northern States may prove in military power.
Sir, this resolution is nothing else than a disunion measure. It means nothing else than eternal disunion and a continuous war. Its design could have been only to widen the existing breach between the Union and the slave States now in rebellion, and to render peace upon any acceptable terms to the South unapproachable. It will give the rebel leaders a new pretext for continuing in arms, for it is virtually a formal declaration of Congress and the northern people that submission to the Federal authority and a renewal in good faith of their allegiance to the Government will profit them nothing in the way of securing to themselves and their posterity the rights which the Constitution, as their fathers and our fathers made it, guaranties to all the States. I mean the right to regulate their own internal affairs, to determine their own system of labor, to control their own social institutions, to have slavery or leave it alone, to fix the status of their inhabitants severally, and to give or withhold the rights of citizenship and suffrage as they may see fit, and to exercise the attributes of absolute sovereignty in all matters not especially delegated to the General Government.
This resolution, which strikes at the original compact between the several States, and which, I apprehend, is to be “put through” and forced into the Constitution “by hook or by crook,” by the creation, if necessary, of new or bogus States enough to insure for it the requisite indorsement of the Legislatures of three fourths of those which the ruling power may please to reckon in the Union, will, in my judgment, close the last avenue to a reconciliation of our present sectional difficulties, and in the eyes of the world will furnish sufficient justification for continued resistance on the part of the States which may not be allowed to freely participate in making this virtually new Constitution—new, because this amendment will absolutely upset the social organization in which the people of the slave holding States were bred, while it will disturb the rights of property among them, disarrange all their industrial pursuits, and completely wipe out of existence, without compensation, the patrimony of a multitude of innocent people, many of whom may not have participated in the rebellion in any degree.
Do the advocates of this measure want the old Union restored? Are they desirous of having this sanguinary contest terminated in the return of the southern States to their allegiance? Do they wish to reestablish fraternal relations through an honorable peace with those people who are now in rebellion, and are they ready, through the cooperation of a reconciled South, once more to form a united country that we may again take our place in the front rank of the nations of the earth? If so, I beg them to pause before they consummate this momentous action. How can they expect to get the seceded States back into the Union by enacting measures to keep them out, is a question that has been pertinently asked; and here I ask it again of the supporters of this resolution. Why, if they be really desirous of restoring the Union, will they not drop the negro and cease to tamper with the Constitution until peace shall once more spread her wings within our borders?
The Constitution as framed by the founders of our Government should be the bond of peace. Fidelity to its provisions and strict adherence to
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its considerate compromises is the sacred duty of all who have shared its blessings. …. [snip]
Why will not our friends upon the other side of the House let this whole negro question rest until we shall have subdued the rebellion; or at least, why will they not leave it to abide its fate at the hands of the military departments? …. If the negro emancipation is found to stand in the way of the reestablishment of our free and united Government, upon the principles and compromises which guided our fathrs in its original construction, is it not their high and patriotic duty to let the negro slide while we reconcile the dreadful sectional antagonism which is deluging the land with the best blood of our people?
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Sir, the assumption that slavery is the cause of this war, and that there can be no union of these States while slavery is tolerated in any of them, is a position which the facts do not warrant or justify. The Union, according to my understanding, was established upon the idea that a free Government could exist when composed of independent States, of various geographical positions, and possessing altogether different systems of social organization, for common purposes; and the assumption of the Republicans, to which I refer, is an argument not only against the rights of States to govern themselves, but it is a concession that the great principle contended for in the Revolution of 1776, after a trial of eighty years has proved a failure, and that we are now carrying on a gigantic civil war to establish a consolidated central Government upon a homogeneity of interests. Success in this undertaking would only undo what our fathers accomplished in 1776. But, sir, in my judgment this can never be accomplished.
Before we can have any right to expect peace, Mr. Speaker, and such a peace as will reconcile the people of the two sections again to live together under one Government and present to the world a united and prosperous country, the glowing fanatics of the party now in power must cease to breathe threatenings and slaughter upon the southern people for the sin of slave holding, and cease to clamor for extermination, general confiscation, and universal emancipation. ….
Sir, the slavery issue, which this resolution seeks to finally settle in a summary manner by the immediate abolition of slavery, is legitimately merged in the higher issue of the right of the States to control their domestic affairs, and to fix each for itself the status, not only of the negro, but of all other people who dwell within their borders. That is the great question involved in the resolution now before the House. ….
Now, sir, in resisting the various unconstitutional schemes of the President and his party in Congress to accomplish the abolition of slavery, the Democratic party have not sought to uphold the institution of negro bondage on its merits, but only to maintain the constitutional right of each State to determine for itself, as the northern States have done, what shall be the relative position of the black race in their midst; and to determine also, when they will abolish slavery, or whether they will abolish it at all. These rights, guarantied by the Constitution, have been exercised by the northern States at their pleasure, and the Democracy hold as a principle that the southern States cannot and should not be deprived of the same privileges. …. [snip]
Now, sir, the truth is that the protection which the Constitution threw around the slavery system of the South, and the guarantee it gave to the African slave trade for a period of twenty years, was in fact the very bond of our Union; for it is manifest that no Union could have been formed if those, in these days, horrid provisions had been omitted! What a terrible idea for our negro-worshiping friends on the other side of the House to contemplate!
Mr. Speaker, from my very heart I am constrained to any that of all the measures of this Congress apparently designed to perpetuate the disunion of these States, I regard that now under consideration the most pernicious, because it will be the most effective, and will, as I have before said, entirely close the door to a peaceful reconciliation, if it should be consummated, by incorporating the proposed amendment into the Constitution with the free consent of the States now in rebellion.
Sir, we want those rebellious States to return to the Union under the Constitution to which they owe unquestioned allegiance, and we should be careful to supply them with no justification for continued hostility to the Federal authority. We should hesitate to erect, in our hatred of slavery and slaveholders, even the slightest barrier to prevent their return to their old positions in the Union the moment their physical power shall be overcome by our military movements. In their present condition we have no right to impose upon them this proposed constitutional provision, which we know will be obnoxious, even as a punishment for their rebellion. If they are again to become a part of the General Government, they surely, after they shall so become, ought to be consulted in amending the fundamental law under which they are expected to live in communion with us. [snip]
(2618)
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[Mr. Kellog supported the 13th Amendment]
Mr. KELLOG, of New York. Mr. Speaker, of all the various measures this Congress has in hand and upon which it must act, the most important in my judgment are those which most directly bear upon the terrible issue now on trial for the unity or dismemberment of our country, and which decides for weal or woe the present and future well-being of ourselves and our country. … Whether the President’s plan is entirely wise, or that of others, including that before this House, is in my judgment about equally doubtful. But the rebellion crushed, that reconstruction follows as a consequence, I have no doubt. Nor that alone; but slavery, the cornerstone of the rebellion, is thereby and therewith destroyed, leaving the way to reconstruction plain and obvious. The Congress of the United States, being the ultimate tribunal to decide whether the form of government adopted by a State entitles it to representation here under the Constitution, should do its duty promptly in aid of the event.
And here, sir, permit me to call to the stand, in proof of the fact I have just stated, the best and highest evidence possible. In his Democracy a Hebrew of the Hebrews, a slaveholder, knowing whereof he speaks, Andrew Johnson, of Tennessee—the utterance of whose name excites most to reverence for his almost superhuman efforts and saving power put forth for the salvation of his country in this great crisis of its fate:
“The people made the Government, and it must remain under the control of the people. The Government being under the people, and the institutions under the Government, any institution antagonistic to the Government must necessarily give way for the preservation of the Government. Institutions must not rise above the Government. Institutions are tolerated for a time, they are not fixed; they are subject to change, or they die out. Not so the Constitutional, which is a fixed, a lasting institution of the people.” * * * * “All institutions must be subordinate to the Government of the United States. Before the rebellion we could discuss all institutions, all subjects, all measures, except slavery. On that subject no one dared speak, or write, or print, except on the side of the slave aristocracy. Now, thank God, the time has come, when the press is unmuzzled—when the press can discuss this and all other subjects. The time has come when this institution is dead—when the chains are broken and the captive set free. The institution is dead.” * * * * “Being dead, let us in a becoming manner prepare for the funeral obsequies. Now is the time to dispose of this great question. It is a great question, and one which must be settled upon the great principle of human freedom; not by abolitionists in the North, nor by secessionists in the South, but by that great law of self-preservation which governs all men alike. Slavery is a cancer upon the body-politic, which must be rooted out before perfect health can be restored. The great law I refer to is now at work, and negroes and all things else which may be in the way to impede its course must get out. Do not go to inventing, but find out the great principles of this law, and conform your actions thereto.
“Destroy the rebellion, and let slavery go with it.” * * * * “The Union and the Constitution must be preserved intact.” * * * * “The edict has gone forth, and all that remains to be done is to change the relation of master and slave. The day is not far distant when this nation will be the great center of civilization, of the arts and science, and of true religion.” * * * * “Let us go on with our mighty work. To talk about breaking up a Government like this for slavery! ‘Tis madness. Let it go on with its great mission.”
(2939)
HOUSE OF REPRESENTATIVES
June 14, 1864
ABOLITION OF SLAVERY—AGAIN
Mr. HIGBY. I call for the regular order of business, and I yield to the gentleman from New York, [Mr. PRUYN.]
[Mr. Pruyn opposed the 13th Amendment]
Mr. PRUYN. For the first time in our history it is now proposed to make a change in the Constitution which, if effected, will interfere with the reserved rights of the States. This question is presented in the midst of a great struggle which demands all the power and energies and thought of the country, and when a large number of the States, and those most deeply to be affected by the contemplated change, are not represented in either House of Congress. …. [snip]
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At the time of the adoption of the Constitution of the United States the several States were independent sovereignties, each claiming and exercising the full attributes of sovereignty under constitutions or forms of government which they had respectively established or recognized. The Constitution was a grant of power by these sovereignties, each acting for itself severally, as appears by the express terms of the instrument, and each retaining every attribute and power not thus granted, and that this might not rest on implication only, however clear and strong, it was so expressly declared by one of the amendments to the Constitution, insisted upon by some of the States at the time of its adoption, and forth with assented to by the others. The reserved rights of the States, as they are often called—more properly their inherent original rights of sovereignty not; granted under the Constitution to the common Government thereby established—it will thus be seen are in no manner impaired or affected by that instrument, but belong to and remain with the States respectively as fully and entirely as if it did not exist.
I admit that the Constitution should be liberally construed for the purpose for which it was established, but I deny that it can be constructively enlarged, or that under the pretense of amending it, we can go out side of the terms and of the spirit of the grant, and draw within its grasp subjects with which it does not deal, and which have been expressly declared to be beyond its reach. This is not the legitimate meaning of the power to amend; such a power would be one to originate—to create—to establish. The right remained with the States severally to regulate their internal affairs each in its own way, and according to its own views of right and duty. The relations of parent and child, of master and servant; the law of marriage; the mode of alienating property; the law of descent; in short, almost all that concerned the social relations, and the every-day life and pursuits of the great body of the people, were left to be regulated by each State as it chose. The States were not asked to give up these rights, and they were not asked to give up these rights, and they were not in any way yielded, and from the history of the times there can be no doubt that had it been proposed to give this large class of powers to the General Government the Constitution would never have been adopted.
Let us suppose that it had been distinctly declared by the Constitution, as adopted by the Convention which formed it, that the powers remaining in and not granted by the States respectively
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might at any time be delegated or transferred to the General Government, under the section authorizing amendments. Had this been done, no candid man who has studied our political history, or who is familiar with the debates in the State conventions which adopted the Constitution, will hesitate to say that it would never have received the sanction of the number of States required to put it into operation. Or had it been proposed to add to the amendment declaring the powers not granted to the United States to be reserved to the States, a proviso that this should not interfere with the right of the General Government to absorb any of those powers by future amendments, can it be believed that it would have been adopted? The history of the times, and the debates already referred to, pronounce a most emphatic negative.
It may be said that the objection I make would apply even if all the States should assent to a new clause to be added to the Constitution. My answer is that such an assent would be good not by way of amendment, but as a new or further grant of power.
Twelve amendments to the Constitution have been made, the first ten almost simultaneously with its adoption. They are declaratory and restrictive, containing the great principles of the Bill of Rights. … All these amendments, it will be observed, are in subsistence declaratory and restrictive, or regulate the exercise of powers already granted, and do not enlarge the powers of the General Government. Since the last of them was adopted sixty years have passed, during which time the instrument has not been touched.
But, to return to the point I am considering: Can three fourths of the States, under this power to amend, overturn the institutions, subvert the authority, and change the condition of the other States? … I find that the amendment affirming the reserved rights of the States was adopted unanimously by the States which voted on it, and that in Massachusetts it was proposed by John Hancock, president of the State convention, warmly approved by Samuel Adams, and recommended for adoption to the other States. (See Eliot’s Debates.) [snip]
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To construe the Constitution as authorizing three fourths of the States to impose upon the residue terms and conditions of Union not agree upon or assented to by them, would be a wide departure from its spirit, and a monstrous usurpation of power; and this it is which we are now called upon to do; to take a further step to alienate the feelings of the South, and to embarrass and impede their return to the Union. No matter what the question may be, whether that of slavery or of any other domestic institution or right reserved to the States; so long as it is reserved, Congress has no right to interfere with it in any way. Let us leave it as the fathers of the Republic left it, to each State to do what it believes to be just and expedient in reference to its own people and to its own institutions. Had this course been pursued; had not the aggressive, untiring spirit of abolitionism, which has brought so much misery and wretchedness upon the negro population to the South, been constantly at work; emancipation would have taken place in may of the slave States years since, and the so-called political power of slavery would have disappeared long before the opening of the rebellion. But a spirit of intermeddling and of false philanthropy has delayed this result and brought evils upon our country which no man living can expect to see wholly removed.
[Mr. Wood opposed the 13th Amendment]
Mr. FERNANDO WOOD. Mr. Speaker, this is a proposition to provide by an amendment to the Constitution for the abolition of slavery without compensation in all of the States in the Union. It will be, if adopted, a change in the fundamental law—a material alteration in the Constitution of the United States as formed by the founders of the Government. It is therefore, a proposition which involves considerations and reflections such as belong to the gravest questions which can come before the American people for determination. It is whether we shall alter the whole structure and theory of government by changing the basis upon which it rests. My first difficulty in assenting to the resolution is that this is no time for any alternation in the organic law. We are now in the midst of a fearful civil war. The horrid din of this conflict, the groans of the wounded and dying, the sad evidences of death and destruction are all around us. Until recently, even at the very doors of this capital, the armed enemy has presented his threatening hostility. The whole people of America are involved directly or indirectly in this dreadful conflict. Reason, judgment, and that cautious investigation and comparison of interests, opinions, and prejudices necessary to a proper adjustment of a nation’s welfare have been banished by the graver realities of war. This is no time to make or alter constitutions. Those who are enveloped in the elemental strifes of the tempest or the earthquake, and involved in the ruin thus created, cannot judge of the cause or measure the extent of the calamity. So it is with the historical convulsions which have desolated vast regions and swept myriads to the grave. The spectator who is himself in the midst of the horrors of war has seldom the coolness to discriminate and decide, with any reasonable degree of accuracy, as to the impelling cause of the struggle. The passions of men, the excitements of the contest, the temptations of ambition, avarice, and fear, all tend to blind the vision and warp the judgments of the actors in the terrible drama now being performed on this continent before the civilized world as spectators. Therefore, in my opinion, this is no time to act upon the proposition, no time to change the fundamental law. Nations do not alter their forms of government amid revolutions. We are now surrounded by dangers from without and from within. The people are in an unnatural excitement, unsuited to that calm deliberation which an alteration of the Constitution requires. All our statesmanship, love of country, efforts at union, consolidation, and good-fellowship, should be devoted to a restoration of our fraternity and prosperity as a people.
But if a change can be made, is this such a one as should be made? It is sought through this amendment to abolish at once and summarily the system of domestic servitude existing in one third of the States which came into the Union with the Government and which have remained with it until now. The effects of such a revulsion in such an interest will be of the most wide-spread and radical character. It will, of course, add to the existing sectional hostilities, and if possible make the pending conflict yet more intense and deadly.
Mr. Speaker, I see many objections to this amendment, while I fail to find one reason in its favor. I am opposed to it because it aims at the introduction of a new element over which Government shall operate. It proposes to make the social interests subject for governmental action. This is the introduction of a principle antagonist to that which underlies all republican systems. Our Union was made for the political government of the parties to it, for certain specified objects of a very general character, all of them political, and none of them relating to or affecting in any manner individual or personal interests in those things which touch the domestic concerns. There is no feature or principle of it giving to the Federal power authority over them. These were reserved and left exclusively to the jurisdiction of the States and “the people thereof.” Of this character are the marital relations, the religious beliefs, the right of eminent domain within the territorial limits of the States, other private property, and all matters purely social. Slavery where it exists is a system of domestic labor; it is not the creature of law. It existed without law before this Government was established. It is incorporated into the organization of society as part of the existing domestic regulations. It cannot be brought within constitutional jurisdiction any more than can any or either of the other private and personal interests referred to.
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Again, sir, the proposed amendment to abolish slavery in the States of the Union is unjust in itself, a breach of good faith, and utterly irreconcilable with expediency. It is unjust because it involves a tyrannical destruction of individual property under the plea of a legitimate exercise of the functions of Government. It is in theory the idea which has been derived from despotism and the notions of feudal powers that Governments are omnipotent, and draw within their sphere all that belongs to the individual, even the liberty of thought, speech, and conscience. …. [snip]
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I insist that no vindictory laws can be passed either depriving individuals of anything which can be denominated as property or infringing existing social relations as the punishment of the offenses either of men or communities. Neither Congress nor the assent of the States requisite to incorporate a new article or amendment into the Constitution can do so justly, under any pretense, when the object is to appropriate private property without due compensation, or confiscate it without the formality of trial and condemnation. Within the scope and reason of the Constitution any amendment to it would be legitimate when ratified by the required three fourths of the States; but for those three fourths to attempt a revolution in social or religious rights by seizing on what was never intended to be delegated by any of the parties to the compact, would be a prodigy of injustice carried out under the forms of law, a wrong more fatally so because made by the very highest authority. If an amendment were now proposed to the Constitution declaring an establishment of religion or prohibiting the free exercise of it by the citizen, it would be parallel with the present and no more obnoxious than this is to merited condemnation. The States, sovereign as I claim that they are and continue to be, could not have delegated what they did not themselves possess, that is, to destroy or appropriate individual rights without compensation. In all the acts of emancipation heretofore passed the tacit consent of the citizens affected accompanied the passage of the statute. A species of property which has ceased to be profitable is usually surrendered without protest or opposition. Men are not disposed to cavil at the exercise of a power abstractly arbitrary, which rid them of a relation which is onerous or inconvenient. Such was slavery in the States where it has been abolished. But where it is one of the main sources of the prosperity of the community it will be regarded very differently.
This proposed alteration of the Constitution is therefore beyond the power of the Government, but the necessary consequences of it are revolting so. It involves the extermination of the white men of the southern States, and the forfeiture of all the land and other property belonging to them. Negroes and military colonists will take the place of the race thus blotted out of existence. Is this intended as the last scene of the bloody drama of carnage and civil war now being prosecuted? The world looks on with horror, and it will leave to future ages a fearful warning to avoid similar acts of perfidious atrocity.
But, sir, the most important aspect of this question is whether it is not a violation of the plighted faith of the States who shall aid in foisting this amendment into the Constitution. That the States in establishing the Constitution performed it as a federal act has been shown in the Federalist by an argument as indisputable as any mathematical demonstration. Mr. Madison says on this subject:
“Each State in ratifying the Constitution is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national Constitution.”
It is true that the common Government which resulted presents national characteristics, especially in this respect, that its operation is exerted immediately upon citizens within the scope of the powers delegated to it in their individual capacities. The State sovereignties were by no means quenched by the act of federation, but by it certain functions were delegated by the sovereign power in each State to a common depository, to be used incertain cases, and to be exercised over the citizens respectively of each and every State by virtue of the sovereignty of their several States. … The citizen is bound to obey the Constitution and laws of the United States, because his State is a party to the Federal compact, and for no other reason. The State has delegated a portion of her authority (not of her sovereignty, which is, in its very nature, indivisible as that of individual personality) to a common agency, who may thus with the scope of such procuration requires obedience to its requirements. The Government of the Union has this extent and no more, and allegiance, loyalty, and nationality are the new-fangled catch-words of the exploded dogmas of the old Federal party. Allegiance is due to the law, and derives its sanction from the sovereignty of each individual State.
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The Democratic party has always maintained the doctrine that the Constitution was a compact from the times of Jefferson, and has for more than sixty years declared this as the foundation of its political faith. It is laid down most distinctly in the Kentucky and Virginia resolutions, the corner-stone of Democracy—
“That the several States composing the United States of America are not united on the principles of unlimited submission to the General Government, but that by compact, under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definitive powers, reserving each State to itself the residuary mass of right to their own self-government, and that whensoever the General Government assumes undelegated powers its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party; that this Government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measures of redress.”
Such is the language of Mr. Jefferson in the Kentucky resolutions. In the Virginia resolutions, the author of which was Mr. Madison, it is declared—
“That in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.”
Daniel Webster emphatically recognized this character of a compact in the Constitution when he stated that “if the northern States refuse willfully and deliberately to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact.” Nay, the dominant party in this House, acting on the same theory of a bargain broken on the part of the South by secession, and considering themselves thereby absolved from the constitutional obligation to return fugitive slaves, have just passed a bill to repeal the fugitive slave law. It must be taken as conceded that the Constitution is a compact and covenant. Now, the very nature of a compact requires that there shall be contracting parties, and mutual obligations and considerations. The States and the people of those States in their sovereign capacity are the parties, and must be held answerable for any breach of good faith in not observing the terms of the contract, or in attempting to change them in any particular which destroys or alters essential and material portions. There was an implied and solemn understanding that the local and domestic institutions of the States should not be attempted to be interfered with in any manner so are to be drawn within the sphere of Federal authority. Does any one suppose that if it had been imagined for a moment that the rights of property and the social relations of the citizens of the several States could have been made the subject of Federal legislation in any contingency that the Constitution would have been ratified by any of the States? The local jurisdiction over slavery was one of the subjects peculiarly guarded and guarantied to the States, and an amendment ratified by any number of States less than the whole, though within the letter of the article which provides for amendments, would be contrary to the spirit of the instrument, and so in reality an act of gross bad faith.
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The control over slavery, and the domestic and social relations of the people of the respective States, was not and never was intended to be delegated to the United States, and cannot now be delegated except by the consent of all the States. Articles nine and ten of the Amendments to the Constitution are conclusive on this point. These articles are the general rules for the construction and interpretation of the entire instrument. Powers already granted may be modified, enlarged, or taken away by an amendment, but those which are retained by the people, or reserved to them or to the States, cannot be delegated to the United States, except by the unanimous consent of all the States. This is the only reasonable construction of those articles, in accordance with the plain sense and meaning of the words. The entire subject of slavery in the States has been reserved by them, and the right been retained by the people. No power has been delegated to the United States over this relation thus reserved to the legislative power of the State, and which is thus retained by the people, subject to such State power alone. It stands precisely on the same footing as that of eminent domain in the respective States, a prerogative of their inherent sovereignty, which cannot be taken away by an act of other States. How would an agreement between private parties be construed and interpreted which should declare that the articles of association might be modified and altered by three fourths of the number, and then should declare that certain rights were reserved to them individually? Would not, manifestly, the matters not delegated but reserved be considered as excepted from the subjects which were within the scope of the authority to alter or modify? … I maintain that article ten of the Amendments is point-blank against such a supposition, and is equally repugnant to an invasion of the right of the State alone to legislate on the subject of slavery. …. [snip]
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The proposal of this amendment arraigns the President as having violated the Constitution in his emancipation proclamation, and stamps it a nullity and void. It is an implied confession that the Administration, carrying on an aggressive war on States and State institutions, had this design in view from the commencement—that the war was not for the purpose of sustaining the Government, preserving the Union, and maintaining the supremacy of the Constitution, but was directed against the sovereignties of the States, and to destroy such of their domestic institutions as were obnoxious to the views of the party controlling the Government for the time. The aggressor is always in the wrong in case of hostilities among States united under a federal system like ours, no matter on which side the General Government may array itself. This is the spirit embodied in the Crittenden resolutions, but is is not in accordance with the policy now avowed by the Administration in prosecuting the war, nor by the party which supports the President for reelection, and least of all by the proposed amendment to the Constitution. The Administration party have proclaimed “that the utter and complete extirpation of slavery from the soil of the Republic” is its present object, and support the adoption of an amendment to the Constitution to this effect. Impartial history, in dealing with these events, will pronounce a verdict that this attitude, and, above all, the attempt to change the Constitution to make that illegal which was not so before, shows that the moving cause of the war was from the commencement the prohibition of slavery. That design, suspected with such ample ground, is now rendered transparently clear. No candid mind can avoid the inevitable conclusion which will brand northern sectionalism as the primary cause of the war, and that the apprehensions of the southern people were fully justified by the events now taking place and by the previous acts and proclamations of the Government. The pretext that those acts were done in its defense will be regarded as a falsehood, only intended to deceive the people and conceal the real character of the war.
The charge that slavery was the cause of the war is notoriously false. The agitation against slavery and the menaces uttered against that institution had risen to such an alarming height that the States where it existed believed that the only recourse left was to attempt to peaceably to withdraw from the Confederation on the ground that the compact was broken.
The sentiment of opposition to slavery is so powerful that I could hardly expect to offer any reason which would awaken sympathy in behalf of its continuance, even if I showed that it was the best possible condition to insure the happiness of the negro race, or that its abolition was an invasion of the rights of the masters and the well-being of the communities where it existed. I have abstained from doing any more than to assert that the relation was one having a legal existence in the southern States and fully recognized by the Constitution. This is uncontrovertible, a fact not to be denied, and virtually admitted by the amendment now proposed. The theory that the States never parted with their sovereignty is likewise not acceptable to the opposite side of the House, and the notion that the General Government is paramount and can set aside all State authority is now popular. [snip]
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We have destroyed the former happy state of mutual friendship by innovations on the principles of the Government, first by the specious pretext of destroying slavery by excluding it from the common territory, and since the war broke out by executive usurpations substantially amounting to a military dictatorship under the same pretext, and the plausible though false assumption that this was necessary to preserve the existence of the Government. The present attempt to change the principles of the Union, though proposed in the form and letter of the Constitution, is adverse to its spirit and irreconcilable with its ends. But if it were allowable, it would be madness to press the alteration at this time, when a civil war is raging of such gigantic proportions. Pass this amendment, and the only limit of this war will be the subjugation of the South or the exhaustion of the North. And what is involved in the subjugation of the South? Nothing less than extermination. The contest is of a nature to admit of no termination until the last man dies on the battle-field or the scaffold. From this alternative my soul turns away in loathing and disgust. If the objects of the war were all that its instigators and supporters claim for them, I would shrink from the enforcement of the awful penalty which demands the annihilation of a kindred people. …. [snip]
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[Mr. Higby supported the 13th Amendment]
Mr. HIGBY. Before speaking to the resolution embracing the proposition to amend I refer to the fifth article of the Constitution of the United States, which makes ample provision and explains the way by which an amendment may be made. The Article reads as follows:
“ARTICLE V.— The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of it’s equal suffrage in the Senate.
Article V Itemized
Article V Part 1
The Congress,
whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution,
or, on the Application of the Legislatures of two thirds of the several States,
[the Congress] shall call a Convention for proposing Amendments,
which, in either Case,
shall be valid to all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress;
Article V Part 2
Provided that no Amendment which may be made prior to the
Year One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
and that no State, without its Consent,
shall be deprived of it’s equal Suffrage in the Senate. [End of comment]
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The resolution follows in accordance and in consonance with the method proposed by that article of the Constitution, and it proposes an article which, should it become a portion of the Constitution, will forever prohibit the institution of slavery within the limits of our country. The resolution and amendment proposed read as follows.”
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid, to all intents and purposes, as a part of the said Constitution, namely:
ARTICLE XIII
SEC. 1. 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.
SEC. 2. Congress shall have power to enforce this article by appropriate legislation.
Sir, the whole debate on the other side of the House upon this proposition has been upon the presumption that whatever action is taken by us as a legislative body is conclusive; that if this resolution passes this House—it having already pass the Senate—it becomes a finality, and whatever is embraced in it becomes a portion of the Constitution of the United States. Let no such fallacy sink deep into the heart of any man. The Constitution has most amply and cautiously provided that the national legislative branch of the Government can make no such amendment. Why, sir, the resolution simply gives the amendment in so many words, and proposes its ratification, and then the amendment goes to the State Legislatures, and must be ratified by them.
There is nowhere contemplated in the Constitution of the United States any action by Congress that more completely acknowledges and recognizes State sovereignty than this very provision of the Constitution explaining how it may be amended. Our people are looking with anxiety to the action of Congress with reference to this subject. And now let me put a question to gentlemen on the other side of the House. They have belabored this side often and long with denunciations that State rights are not regarded, that State sovereignty by our action is unheeded, and that we are aiding the national Government to absorb all powers which legitimately belong to the States under and by virtue of the Constitution. I appeal to them when a proposition does come from this side of the House that acknowledges and recognizes State sovereignty in full, whether they dare submit that proposition to the several States; whether they have faith in State sovereignty so great that when the Constitution makes a provision so ample as it has in this case, and so safe too, requiring the Legislatures of three fourths of the States to ratify, that they dare allow their different States to act upon this subject.
The only question that could possibly arise—and that one I find dwelt upon the very little—is whether the times call for an amendment of this character, but the great burden of the argument on the other side is that there is no power in the Constitution to do this act. The member from New York who has just taken his seat [Mr. FERNANDO WOOD] has had the hardihood to promulge to this nation that the ninth and tenth articles of the Amendments to the Constitution do away and make a nullity of the article to which I have directed attention and quoted. Can he find anywhere in the Constitution a provision by which it may be amended in so indirect a way, and the portions amended be left as dead matter to cumber the living body? He would search in vain for such a provision. Why, sir, he would trample the Constitution under his feet. And if we follow out his argument and act upon it we will become violators of that instrument.
I regard the fifth article as a part of the Constitution just as full of vitality as it was the day our fathers established it as a part of the Constitution of this country; and, sir, the gentleman from New York, if he has a particle of honesty, himself will ignore every word which he has said upon that one subject.
Let me call the attention of the House to the only limitation in the instrument; and they are referred to this fifth article, where the limitation is to be found; it provides “that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article.” But, sir, this Constitution is entirely silent with reference to all other portions, including even that which provides that fugitives from labor shall be returned to service. Upon this the Constitution is silent, and even before 1808 it could have been amended, with the exception above quoted, by pursuing the course laid down in the fifth article.
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Now, sir, what is there in the proposition contained in this resolution? It is that a certain amendment, specifying it in so many words, shall be submitted to the different State Legislatures for their action, and if the Legislature of three fourths of the States of the Union ratify it it becomes a portion of the Constitution of the United States. And, sir, that is a proposition appealing to State sovereignty that members upon the other side of the House dare not allow to be submitted and acted upon by those high constitutional deliberative bodies. [snip]
We are told that the institution of slavery in the rebellious States has rights under this Government. The rights of slavery! What right, in God’s name, has the institution that has now two or three hundred thousand men arrayed in arms against the Government? Is this bold effrontery to be weighed as argument, and are we yet to hear about the rights of slavery? It has culminated in concentrating its whole power against this Government. What right has it which this Government is bound to respect?
What was its morale, sir? In early days as an institution it was humble and unpretending. While it was an institution in the colonies it had no political power. The charm of this whole institution has been in the political power that it has exercised. But, sir, as we emerged from dependents as colonies and became an independent nation, the fathers who lived in its very midst trod very cautiously over the ground. Why, sir, what was its first exercise of power? When Virginia, which was then a slave State, ceded the Northwest Territory to the Union, it demanded that slavery should be prohibited forever in that Territory, and the power was admitted to rest in Congress to prohibit the institution from ever going there while it was a Territory. Such was the morale of slavery in its early days, so far as the exercise of political power was concerned. But, sir, it increased in magnitude and in proportions, and became interwoven with our whole system. It was held in early times to be an evil, but a necessary one; it was
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impossible to throw it aside then, but it was hoped and believed by those who were helping to sustain it for the time being that it would wear away and finally disappear.
But, sir, as it increased in power, so it acquired political ascendency; it spread over a vast extent of country; slavery was the rule and freedom the exception, and the poor whites under its shadow were insignificant in comparison with master or even bondsman. Slave labor became profitable; it constituted the great labor force, and, what was still sweeter than all, it gave such a political ascendency that it enabled a few States and a comparatively few white people to control the Government. I declare, sir, for myself, and no man is responsible for what I say but myself, that no Government is republican inform, body, or spirit, that tolerates such an institution as slavery. I lay it down as a self-evident truth to my mind, and if every other man would take the same ground there could be no such institution in existence under the Constitution as we now have it. But as I am probably alone here in that view, and as that construction would not be given by other men, I prefer that the Constitution be changed in the respect that is contemplated by this resolution. For, sir, I would not be willing to trust all men with the construing of the Constitution in its many provisions, for fear self-interest and love of personal aggrandizement would influence in construction instead of a love of equal justice. It has been claimed in latter years that slavery is an institution sanctioned by divine law and by the word of God. Ah, sir, those who made that claim did not read the Scriptures very faithfully, for they would have found it said even in the Old Testament that when a servant escapes from his master he shall not be returned to him again; he shall let him go free:
“Thou shalt not deliver unto his master the servant which is escaped from his master unto thee:
“He shall dwell with thee, even among you, in that place which he shall choose in one of thy gates, where it liketh him best: thou shalt not oppress him.”
And over and above all, they forgot the new covenant, whose Founder told the world that He came to “fulfill the law.”
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But, sir, it will do for old fogy exploded divines to dwell upon that subject and show the validity and divine origin of slavery—for such men as the one who was voted for the Chaplain of this House (Bishop Hopkins) at the commencement of this session. The evils of the institution and the effects resulting from those evils are too numerous to mention in a brief hour speech. I have declared that the institution is anti-republican, and that no Government which tolerated it could be in form, body, or spirit a republican Government. Why, sir, men have stood upon this floor, prior to the rebellion, who represented States that had more slaves than free white inhabitants, and I instance South Carolina as one of those States. Those slaves have no political or civil rights, and yet every five of them are equal to three white persons, giving representation on this floor to four hundred thousand slaves, not one of whom has in the State or nation a voice or a vote, and who can enjoy no civil or political rights any more than the horse and ox which his master owns. The hundred thousand white inhabitants and five hundred thousand slaves—equal to three hundred thousand whites—would give five hundred thousand inhabitants to be represented in the State; and, under the rule of giving one member of Congress to every one hundred thousand inhabitants, that would give to a State having only two hundred thousand white inhabitants five Representatives on this floor. That is not republicanism, sir. That is anti-republicanism. It is the very worst kind of a Government imaginable. It is despotism to the extent of the slave representation—a cruel, brutal despotism.
Mr. Speaker, the people of the South have been extremely cunning in the argument of this question whenever it has been raised. Whenever the spirit of free discussion has arisen, and the question of slavery has been debated, they who were in favor of the abolition of slavery were told that they were in favor of giving to the slaves the civil rights that white people had, the political rights, and not only that but the social rights. The latter point was pressed with more vehemence than all the others. And while they have pressed that as an argument why slavery should not be annihilated, the secret with the South in holding fast to slavery has been the political power which it has given them in this Government. There is the charm; there is the fascination. It is power, political power. That is what they have held to. [snip]
Sir, I was speaking of slaves. They are property. They are held as such; that is, when we acknowledge the institution as a legal and rightful one between man and man. But I deny that, in right and justice, such an institution can exist. But, sir, the argument is that in States the institution exists. If it be so, human beings are property; and the five hundred thousand slaves are nothing but property in the estimate as between man and man. And yet, sir, when the Representative leaves his State and comes into this Hall, the five hundred thousand slaves in his State count as three hundred thousand inhabitants, and the State sends here three members, on property owned in human beings over whom they exercise absolute control as property, whom they can buy and sell. But here they stand and talk about the rights of freemen, the rights of free speech, the sovereignty of States, and the rights of their constituents. It is an institution, sir, which has its pens where humanity is herded like cattle, and has its block in market where human beings are bought and sold. And that is claimed to be republicanism. It is a republicanism, sir, which is born of hell, not of earth, or of above the earth. It is an institution which is now at war with this Government, and which will destroy it if it can. And we on this side of the House propose to do away with it in the way pointed out by the Constitution, or so to amend the Constitution that it cannot exist when peace is restored; and they cavil at it on the other side of the House. That shows, Mr. Speaker, how hollow their arguments are and how insincere their purposes and pretenses.
Now, sir, as to the political power exercised by this institution. Slavery wished that there should be a line of latitude between freedom and slavery; and it gave us the Missouri compromise in 1820. It was legitimate, below a certain line, to hold slaves; above it it was unlawful. Great principles of human right were to be bounded by lines of latitude and longitude. I cannot enumerate all the opportunities it has sought to exercise power, and all the wrong it has done.
But what has been done by the Government, under the dictation of the slave power, at certain well-known periods? In 1850 the State which I have the honor in part to represent upon this floor could not be admitted into this Union except through an infamous compromise. The fugitive slave law had to be tacked on and made a part of the bundle. I tell gentlemen on the other side of the House that the Congress then in session, and the Executive who occupied the presidential chair at that day, did more mischief, more toward bringing about the condition of things we have suffered and endured, and which we are now suffering in agony, than any one public act ever done in this country. It was the low, crouching, and mean subserviency of great political parties to the encroachments, arrogance, and aggressions of the slave power.
In 1854 the votaries of the slave power with few exceptions demanded that the Missouri compromise line should be obliterated, and that demand was yielded to. Some of the older and far-seeing ones were fearful when that line was removed that free institutions and free labor in the struggle for supremacy would get the advantage of the slave power. And their fears were not without foundation.
-20-
The struggle in Kansas during the last Administration is an illustration of the fallacy of human judgment and human intention, for those men who desired the admission of Kansas as a slave State had the whole power of Government to aid them. They had not only the civil but the military power to aid in subduing the people and bringing them to terms. It was all of no avail. When the Lecompton constitution came before Congress slavery sugared it all over in order to make it a sweet morsel and palatable to the throats of that people. They told them in the English bill, so infamous, that if they would accept that constitution they might come in as a State with what population they then had. Not only that, but that they should have all of the salt springs and five percent of the receipts of the sale of the public lands in their State. This was the bribe which they were offered to induce them to accept that constitution; and if Kansas should refuse the offer admission should be postponed until she had the population the censure required. In 1858, after that turmoil in which the Lecompton constitution was attempted to be forced upon then, the people took a vote on it and refused to accept the humiliating imposition by an overwhelming majority. They became a free people and a free State. In that movement slavery was defeated.
It has controlled political parties. Its power has been so great that all political parties have been compelled to bend the knee to it. In 1850, in the passage of the fugitive slave law, the two great parties of the country, the Democratic and Whig, were represented in the infamous transaction. They joined their hands in infamous fellowship, a Democratic Congress passing it and a Whig Executive approving it. And in 1860 there was no political party that did not tolerate and acknowledge the status of this institution of slavery. There was not a national party that had a candidate for the Presidency but acknowledged the right to hold slaves as property in a State. It could have no footing unless it did so. The present Executive took his seat in the presidential chair with the recognition of the right of every State to have the institution of slavery inviolate by Federal action. And yet, sir, slavery arrogantly insisted that the Government was aggressive in its policy. In 1856 it demanded non-intervention, and in the Cincinnati convention non-intervention was made a part of its platform. In 1860, at Charleston, it demanded intervention, and because there was not a yielding and knocking under to that demand it divided the Democratic party, and ran its candidate upon that proposition. And then, notwithstanding the pledge of every party that the institution of slavery was a recognized institution of the different States whose State constitutions allowed its existence, and which every State government could have within its limits, it made war upon this Government for the reason that it would not acknowledge the grasping policy which it demanded.
And gentlemen argue here that we are waging war upon the South. It is a falsehood in fact, yet not intended as such, because some as good men as are here, men whom I know to be as correct as can be upon this subject, still talk on this subject as though the Government was waging war upon the South.
Mr. Speaker, I commend to the attention of every member of this House for his perusal and study a report that was made in the Thirty-Sixth Congress in the session of 1840-61. It is the report of a select committee of five, appointed on the 9th of January, and to whom was referred the special messages of the Presidential and sundry other papers. On the 28th of February, 1861, that committee submitted a report, and I will read from it an extract to be found upon page 3:
“Self-preservation is the first law of a nation. The power to defend its implements of self-preservation is one of the clearest of all its powers. We cannot conceive of a nation without the power to build and defend forts and all implements of war within its own jurisdiction. ….
(2945)
But, Mr. Speaker, it may be possible that some gentlemen upon this floor may question the veracity of that portion of the report, but those gentlemen will not question the veracity of what I am about to read, for it comes from one who many of them loved at that time, and I do not know but their love still continues:
“Even now the danger is upon us. In several of the States which have not yet seceded, the forts, arsenals, and magazines of the United States have been seized. This is by far the most serious step which has been taken since the commencement of the troubles. This public property has long been left without garrisons and troops for its protection, because no person doubted its security under the flag of the country in any State of the Union. Besides, our small Army has scarcely been sufficient to guard our remote frontiers against Indian incursions. The seizure of this property, from all appearances, has been purely aggressive, and not in resistance to any attempt to coerce a State or States to remain in the Union.”
-21-
This is an extract from a special message sent to Congress by James Buchanan, and has his signature as President.
And this was signed on the 8th day of January, 1861, almost two months before his presidential term expired. War! Talk about waging war. These villains were laying destruction across the pathway of the Government, seizing its property here and there, going in military array and doing it, threatening men if they did not yield, and yet we are told that this Government has been waging war against the South! That is as big a lie as the institution of slavery is itself. I call slavery the great lie of the age, got up by a body of men, while this is a simple lie by individuals, and history will put the stamp on it.
But we are told further than that—and here is where men attempt to escape—that Abraham Lincoln gave strength to the rebellion by his proclamation. On the 1st day of January, 1863, President Lincoln issued his proclamation after giving a hundred days’ notice, ample time for the rebel States to lay down their arms and come back into the Union and be as they were before they took up arms—a grace which none but the God of heaven would have given, and I doubt whether He would have given it.
Why sir, the Opposition seek an excuse under that proclamation to withdraw their aid to the Government in this hour of its peril. Let me remind such of a little piece of history taken from the words of the vice president of the confederate States, and which has become a part of the history of that government. He says that the new government formed by them is based upon the institution of slavery as its foundation. Do gentlemen object to getting at the foundation and knocking it to pieces? Do they desire to haggle at the branches, and attack the trunk before they reach the foundation? Is that the way to destroy a system which has slavery as its foundation? There is a preferable mode. Strike at the foundation first, knock it out, and the superstructure will fall, and the whole mass will come crushing down. It is the best blow possible to be struck.
Mr. Speaker, gentlemen who would avoid supporting the Government cry, “Oh, the proclamation!” The proclamation struck at the foundation. It struck at the root of the terrible aggression against this Government. It struck at the very vitality of it, and every man of sense and judgment knows it, and they only deny it for an excuse for not rendering aid to the Government.
Mr. Speaker, there never was a time when the proposition contained in this resolution and in this proposed amendment of the Constitution needed more the action of this body than now, at this time, during this session; and, sir, the States, by their Legislatures, should act upon it at their earliest sessions after it shall have passed this Congress. The Constitution should be adapted to the condition of the country where the noble men of the loyal States are giving up their lives and where they have given them up by thousands. Their bones are bleaching upon hundreds of battle-fields. They are drenching with their blood the soil over which they are moving with victory perching on their banners and killing out the roots of slavery so that it cannot exist; and we, as the legislative part of this Government, should be adapting the Constitution and all the laws as speedily as we can to the new condition of the country where our armies do march in triumph, so that we may never see nor feel again this power that has come so near being the end of this nation.
[Mr. Kalbfleisch opposed the 13th Amendment]
Mr. KALBFLEISCH. Mr. Speaker, I shall not attempt to wander over the road traveled by the gentleman who preceded me, [Mr. HIGBY,] but will endeavor to take a common-sense view of the subject, and in plain language strive to give expression to the sentiments I entertain in regard to the proposition now before the House.
For the first time in the history of our country a serious attempt is about to be made to introduce a radical change in the Constitution under which we have enjoyed the greatest amount of earthly blessings ever vouchsafed to a nation. The question as to its propriety is therefore a grave one, beset with many perils, and its consideration should be approached with the greatest care and conducted with the most serious deliberation. ….
The subject embraced in the proposed amendment to the Constitution, that of prohibiting involuntary servitude, or, in other words, slavery, in any State or Territory, is not a new one and for the first time agitated. It received the attention of the framers of that instrument, and was exhaustively debated and thoroughly considered by them. They were not unmindful of the fact that the time might arrive when it would require the greatest forbearance on the one side and the utmost caution on the other to avoid a crisis like that in which the nation is now plunged. They settled the distracting question for themselves by mutual concession on the part of conflicting interests and views, and then provided for the permanency of that settlement by the adoption of a clause in the Constitution providing that amendments to it should be made only with the assent of three fourths of the parties to the compact. …. [snip]
(2946)
-22-
By grossly high coloring and unfairly exaggerating the evils of slavery, these politicians succeeded in exciting among the people a sentiment of blind enthusiastic sympathy for the negro, of which they artfully availed themselves as a stepping stone to place and power. … This proposition to amend the Constitution for the benefit of the negro is, I repeat, but a new dodge in their game. The Democratic party are to be abused and maligned anew for daring to oppose them in their destructive career, and another agitation attempted to be excited, based upon the plea of justice to the negro. …. [snip]
A part of the game to retain power and control of the Government has been to misrepresent and vituperate the Democratic party. We are charged with opposing their proposed change in the Constitution simply with a design to thwart the Government in its purposes and action, and to frustrate its efforts for the restoration of the Union.
This is no new charge. … They are often in derision styled “copperheads,” with intent to convey the idea of their favorable disposition to the so-called southern confederacy and their opposition to our own Government. These charges and accusations need no retort nor defense. ….
But here let me say that these aspersions upon and misrepresentation of the Democratic party, wanton and unjustifiable as they are, have tended more to the prolongation of the civil war that a casual observation would lead one to suppose. …. [snip]
So much for this charge that the Democrats are the enemies of the Government. I acknowledge, sir, and here I hope I may not be misunderstood, that when I speak of the Government I mean the Government as distinct and different from the individuals who, for the time being, administer it. ….
Having, Mr. Speaker, referred to these unfounded charges against the Democratic party, so far as I consider them worthy of notice, I desire somewhat to examine the claims of their opponents to all the political virtues which they so boastingly put forth. Let us see, also, whether these professions of desire to restore the Union are founded in truth or conceived in a genuine spirit of patriotism. They assert that the institution of slavery is the primary cause of this war, and that it should, therefore, be no longer allowed to exist. … I deny, however, slavery to have been the origin of all our evils; but admitting, for the sake of the argument, that it was, upon reflection it will be found that the question still arises, is its utter annihilation at the present time, and in the present condition of the country and that of the negro race, the proper remedy? ….
But passing over this question and conceding, if you please, for argument’s sake, the position of our opponents, what justification can they possibly find for their attempt to enact laws depriving innocent offspring of lands owned by their forefathers, and thus robbing them of their lawful inheritance, to be parceled out among these liberated slaves? This is an assumption of power in direct violation of the Constitution, quite as much so as would be a law for the utter abolition of slavery. And yet we have had not even a hint of a proposition to amend that instrument so as to permit of confiscation. And why? Was it because that, unlike the slavery agitation, there was no political capital to be made from such a proposition, and because they feared that a proposition so outrageous might lead to a more careful inquiry and scrutiny into their acts by the people, and result in the raising of a whirlwind the effects of which no political organization could withstand? It would seem so, at all events. [snip]
(2947)
Let us talk no more about amending the Constitution to attempt to free the negroes. Are we not warned by the signs of the times, lest in so doing we may not only lay the foundation for enslaving the white people of this country, but of the whole American continent beyond redemption and for all time to come? [snip]
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In conclusion, Mr. Speaker, permit me to appeal to gentlemen of the Opposition to pause and reflect. Let me remind them that the country has little to hope for the future unless the war and its speedy and successful termination be not made the primary and unceasing object of all our efforts. Let us, I beseech you, thus occupy our attention, and leave this carping about constitutional amendments and other measures of like character to be disputed about and disposed of hereafter. Is not the war still the question of all questions pressing upon our consideration? Alas ! no one can deny it. Let our earnest effort then be to unite in the endeavor to secure an early and honorable termination thereof. Above all let us not be led astray by a desire for mere partisan success, and thus, through party strife, place additional barriers in the way of the consummation that our people so fervently desire. Let our aim be to restore the country to its former happy condition; but, if unsuccessful, let us at least maintain our great charter inviolate. Let us heed the lesson which history teaches us, that it is wisest always to leave well enough alone.
Mr. SHANNON obtained the floor. [snip]
(2948)
[Mr. Shannon supported the 13th Amendment]
Mr. SHANNON. Mr. Speaker, I am not addicted to boring this House with set speeches, and nothing save the deep conviction I feel of the importance of the question now pending would induce me on this occasion to occupy time in these closing days of the session. But, sir, I would not do justice to the constituency I represent were I not to place upon the record my protest and their protest against this rebellion and its unholy cause.
It will not, I trust, be necessary in this, the fourth year of our struggle, to press upon this House proof that slavery is alone responsible for this war. No man who has read carefully the history of the past eighty years, whatever may be his political bias, will, I think, differ with this opinion. It is now our province to inquire whether that curse can be perpetuated with safety to American freedom and national unity, and if we find that it cannot, it will then become our duty to see to it that for the future it shall not exist as an element of disruption and disintegration in our midst.
Sir, the apothegm [a maxim, instructive saying] “liberty regulated by law” expresses my idea of the spirit of American institutions. It is that condition of the people wherein each is at liberty to regulate his own domestic affairs according to his own judgment or caprice, only being careful that those laws which protect the rights of his neighbor from infringement must not be violated. Slavery is inconsistent with this condition; it makes the many subject to the few, makes the laborer the mere tool of the capitalist, and centralizes the political power of the nation. … The man who owns five hundred slaves figures in the tables of representation as the equal of three hundred non-slaveholders. In plain Saxon, Mr. Speaker, the half-witted heir to a plantation stocked with five hundred negroes, located in a slave State, has just the same voice in this Hall as have three hundred of your constituency, even though my friends on the opposite side should move into your district.
Much was said a few years ago on this floor and elsewhere about higher law, and men were branded with every opprobrious epithet who believed that slavery should be amenable to a law higher than constitutions or human enactments. Sir, the statesman of the North was not responsible for that doctrine; the Commonwealth of Kentucky has adopted it as a part of her organic act. The constitution of that State, adopted in 1850, contains this remarkable sentence:
“That the right of property is before and higher than any constitutional sanction; that the right of the owner of a slave to such slave and its increase is the same, and as inviolable, as the right of the owner of any other property whatever.”
[My comment about “before and higher”]
The property, the slave, i.e., slavery, is “higher” than ‘freedom’.
The civil war pro-slavery Democrats were implying that slavery is determined by natural law (law of nature), and so it is said to be superior to the positive law (law of people) constitution. In other common sense words, ‘slavery’ is higher, i.e., superior, to freedom.
Do you see the problem?
Well, slavery is NOT natural law; slavery is positive law and is said by ‘people’ to be superior to ‘nature’.
Any positive law proposed by people can be corrected by a positive law proposed by people, i.e., by positive law amendment of a positive law constitution.
Do you see the solution?
Yes, natural law (law of nature) ‘freedom’ is superior to positive law (law of people) ‘slavery’. [End of comment]
-24-
Now, sir, any gentleman who will turn to article thirteen, section three, of that instrument will see that I do not misquote the people of Kentucky when I assert that with them slavery assumes to exist by a “higher law” than the constitutions of our fathers. “He that is not for us is against us.” Slavery is by its own declarations in antagonism to our Constitution, and for that reason, if for no other, I would oppose its continuance. [snip]
It has been asserted, and even in some cases by divines otherwise respectable, that this thing, slavery, was of divine origin. … Who will dare make, in this enlightened age, the assertion that the fruits of slavery are divine? … Where is there one fruit this tree that any man will dare to call divine?
Mr. Speaker, I have no respect for clergymen who so far forget the sacredness of their high calling as to give utterance to such a dogma. The man who preaches such stuff and believes it, if there is one such, I cannot help looking upon as a fool; the more intelligent the man who gives it utterance, the less do I respect him; for a fool may be pitied, a hypocrite must be despised. Slavery divine, indeed! Is its divinity attested by its unbridled licentiousness, or by its degradation of labor; by its destruction of every family tie, or its prostitution of both races in prohibiting its victims from acquiring that knowledge which would enable them to read God’s holy word? [snip]
(2949)
Slavery had been suffered to remain in our system at first by men who were anxiously counting the days, the time, when it could be abolished, as they believed, without peril to the country. They argued that it was weak, and the sense of justice which they believed was inborn in the American heart would soon lead to its final and utter abolition. In fact, our fathers were abolitionists. A provision was incorporated into the Constitution by which no new additions were to be made to the stock of slaves then in the country, and it was believed that gradually and without a jar to the Federal system it would become extinct. Our fathers were mistaken. Slavery was not waning. Every year but added strength and gave vigor to the accursed tree, and eighty years after it is found to have grown so much as to number more victims than was the entire population of the Republic in the days of the Revolution. Warning, indeed! Why, sir, to-day it claims more territory than our fathers aspired to possess for the whole nation, and fights this war to enable it to wrench more domain from the grasp of freedom. This mistake, leaving to the people of the several States the right and authority to establish and regulate the crime of human slavery, has well-nigh proved a vital one. It is not necessary to trace the progress of the slave power. Every page of our nation’s history records it. Every school-boy is familiar with it. From the purchase of Louisiana and from the passage of the Missouri compromise to the breaking out of the rebellion, every year’s legislation embodied some new concession to slavery, and the pill was always labeled “compromise.” It was continually making aggressions upon freedom, and still claiming that it was only securing to itself rights guarantied to it by the Constitution.
Assuming that the Government was a partnership of the States, the adherents of slavery finally attempted to dissolve it unless the reins of power were delivered into their hands. ….
Now, sir, what is this institution of slavery that has sought to assume the reins of Government in this land of freedom? What is slavery, sir? It is “the sum total of all villainies.” … Slavery is paganism refined, brutality vitiated, dishonesty corrupted; and, sir, we are asked to retain this curse, to protect it after it has corrupted our sons, dishonored our daughters, subverted our institutions, and shed rivers of the best blood of our countrymen.
Sir, the time has passed for concessions to the slave power. Slavery has risked all to gain all, and now it must abide by the cast of its own die; and to us there is but one issue, dissolution and a recognition of the confederacy, or the utter and immediate abolition of slavery. There is now no middle ground. I believe now that since the days of Calhoun there has never been a middle ground. We have tried tenderness long enough. For eighty years we have been compromising; we have coaxed and petted; it has availed us nothing. …. [snip]
Mr. Speaker, there can be no reunion with slavery—the day when such a thing was possible has passed. … Sir, I can never bring myself calmly to contemplate the possibility of a reunion with the South which shall tolerate the further existence of slavery, much less one that shall restore it to its former assumed privileges. No, sir, we must either abolish slavery, or consent to see the Union of our fathers destroyed, its hitherto proud name become a hissing and a reproach, and its people no longer free.
-25-
Sir, there is but one compensation we can render to this country for the terrible sacrifices she has been called upon to endure in this struggle; that compensation is the entire abolition of the curse of slavery; otherwise the blood of our countrymen is shed in vain. ….
But, sir, if we are to make emancipation effective and adequate to our national disease, we must adopt it boldly, resolutely, and at once. We must not only emancipate the slaves in the seceded States, but we must include the slaves of the border States, leaving no root of the accursed tree to spring up for the future to the peril of the country.
(2950)
And, sir, the measure now pending seems to me to be the only one adequate to the emergency. [snip]
[Mr. Marcy reluctantly supported the 13th Amendment]
Mr. MARCY. Mr. Speaker, … In the expression of my sentiments I shall not be sustained with the hope that my counsels will be heeded by the Administration party in power in this House, but if my remarks go out to the country, it is more probable that the righteous aversion existing in the hear of the people to this Administration may receive strength.…
I address myself now, Mr. Speaker, to the consideration of the President’s position as a plain, honest man, seeking for what is the best for the whole country, and as a man free from all prejudices, free from fanaticism, and free from the mortal sin of ever having by word or deed promoted and fostered hatred between the two sections of the country. The Constitution in plain and unmistakable terms—so plain that a wayfaring man though a fool and a joker need not err therein—defines and limits the President’s use of means and measures in the exercise of his duty in its protection and defense. His oath confines him to the use of the means which the Constitution provides. When he knowingly violates the sacred instrument, instead of either protecting or defending it, he destroys it; he commits a high crime against the American people, and registers in heaven the act of his perjury, and all his aiders and accessories to the crime in this Congress, and all that portion of the wicked, disloyal abolition party who sustain the President in his infractions on the Constitution, are joint heirs with him to the inheritance of eternal infamy.
If the President has the right to overlap, or, in the language of the gentleman from Ohio, [Mr. GARFIELD,] “override” the Constitution and to substitute his own views for the written law of the land, he can justify himself by showing wherein the Constitution gives him that right. He says he does it to preserve the nation. How would you like a physician to preserve your life by cutting your heart out; the Constitution is the heart of the nation. Oaths are of no consequence when those who take them are allowed discretion as to when and for what purposes they can be violated. In time of peace the Constitution cannot become obsolete. In times of war, for still more obvious reasons, it cannot be laid aside. ….
We are not to-day, Mr. Speaker, where my voice can reach the erring and misguided South; If we were I should entreat them to return to their allegiance, to come back within the fold of the Union and once more cross their hands in friendship with us. …. [snip]
(2952)
The Union, as presented to the South by the abolition party, is nothing more nor less than the acceptance of a master who is to prescribe their laws and regulate their internal policies. [snip]
More than once, sir, …. So, sir, amid the general wreck of States, and floating about as we are on the waves of this tempestuous ocean of civil war, I will cling to the Constitution as my only hope of refuge and safety. To refuse its aid would be madness.
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[Mr. Coffroth opposed the 13th Amendment]
Mr. COFFROTH. Mr. Speaker, … had it not been for the extraordinary legislation that has been pressed upon the House—legislation, in my opinion, which is not only subversive of the interests of the people, but which erects an insurmountable barrier to the restoration of the Union. The resolution before us proposes to amend the Constitution, made by the patriots of the Revolution, so as to abolish slavery throughout the United States. It proposes to set free four million ignorant and debased negroes to swarm the country with pestilential effect. It is to carry out the design of the bad and wicked men whose fanatical teaching has produced the terrible bloodshed and destruction of life through which we are now passing. …. [snip]
(2960)
[Mr. Holman opposed the 13th Amendment]
Mr. HOLMAN. Mr. Speaker, … I desire to present briefly my views on the pending question … It presents the question, shall the Constitution of the United States be amended? … The more serious question is, shall the Constitution be amended at all? Are the times propitious for the consideration of such a question? … Of all of the measures of this disastrous Administration, each in its turn producing new calamities, this attempt to tamper with the Constitution threatens the most permanent injury. I speak, sir, without reference to the merits of the amendment. If it were ever so wise in the abstract the present condition of the country would demand its postponement. The bitter experience of three years and a half of uninterrupted misfortune ought to have taught the Republican party the fallibility of their judgment, fatality of their policy; but the more fatal their measures the more reckless their experiments. What a series of promises and failures! The act of confiscation was to terrify the South and more than supply the expenses of the war. Yet it only impoverished the Treasury by hosts of new officers, and swelled the ranks of the rebel army. [snip]
(2977)
HOUSE OF REPRESENTATIVES
June 15, 1864
ABOLITION OF SLAVERY
The House then resumed the consideration of joint resolution of the Senate (N. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States.
[Mr. Farnsworth supported the 13th Amendment]
Mr. FARNSWORTH. Mr. Speaker, … I was surprised at the speech of my colleague last evening. In the whole course of a prepared speech of an hour’s length, scarcely one word did he utter by way of rebuke of the rebels and traitors of the South. …. [snip]
(2980)
Mr. Speaker, I am in favor of finishing this business entirely and finally now. No child is so simple as not to know that slavery is the cause of this war; that it is the source of all our woe. Then why not finish it? It has spread the land with weeds and mourning. It has hung the very heavens with black. It has disgraced and dishonored us long enough with the other nations of the earth, and God is now chastising us for the sin.
[Mr. Thayer supported the 13th Amendment]
Mr. THAYER. Mr. Speaker, I rise … and to give my reasons why I believe it to be the duty of every man who has the welfare of his country at heart to vote for the joint resolution now before the House. … Sir, I would consider it derogatory to the representatives of a free people to enter into a deliberate argument to refute a proposition so monstrous and so barbarous as that enunciated by the gentleman from New York. Humanity and civilization revolt against a sentiment so inhuman in itself, and so debasing to the mind that holds it, as the sentiment which we listened to yesterday, that slavery is the best possible condition of the negro race.
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Mr. FERNANDO WOOD. I reaffirm it.
Mr. THAYER. I am willing that he shall reaffirm it. Let that record which he here reaffirms to-day go down to posterity in the history of the country, and let those who act with the gentleman from New York assume the responsibility of that sentiment before the country if they dare. …. [snip]
Mr. FERNANDO WOOD. That is why I did it, for posterity, not for this House, nor for the fanaticism of the day. [snip]
(2981)
[Mr. Mallory opposed the 13th Amendment]
Mr. MALLORY. I not only take issue with the gentleman from Pennsylvania who just addressed the House, on his assertion that this is preeminently the time to amend the Constitution, but, sir, … of all the times, from the foundation of the Government down to the present moment, for taking into consideration the Constitution, that great instrument of organic law, for the purpose of alteration and amendment, this is the most inopportune and unfit. …. [snip]
No, Mr. Speaker, this is not the time for changing the Constitution of the United States. …. [snip]
The provisions of that great instrument in relation to the subject of slavery were the result of compromise, without which this Government never could have been framed. To that Constitution, with that and other compromises embraced in it, every State in the Union gave not only an implied but a direct and express assent. We are informed by the best writers on the science of government, at least they have consented to the truth of the aphorism, that “all government derives its just powers from the consent of the governed.” … If all Governments derive their just powers from the consent of the governed, when you have amended this Constitution what right have you to say to those States in revolt, who are not here to-day to engage in your deliberations, that they are bound by that Constitution to which they have given neither assent or dissent? [snip]
(2983)
Mr. Speaker, I will conclude what I have to say with the assertion that I believe that the only way to preserve this Union is to stand by the Constitution as our fathers made it; not to change it; to preserve its great safeguards of liberty from destruction or violation; to return to the original policy of this Government, indorsed by the President and his Cabinet, by Douglas and Crittenden; the policy of conciliation and coercion which has received the name of border State policy—the policy of conciliation and coercion going hand in hand. I was always for it—I am for it now. While I would put down the military power of the South by force of arms I would “still carry in my right hand gentle peace;” I would hold it out to them; I would persuade them by every inducement I could offer them as erring men and brother to abandon their bloody rebellion. I will not denounce them as devils. I would not say that I will exterminate you if you do not submit, and strip you of all you have if you do; but I would say, “Come back, and I will forgive you as freely as the Son of man ever forgave repentant sinners.”
[Mr. Kelley supported the 13th Amendment]
Mr. KELLEY. Mr. Speaker, madness and despair rave, …. And I rise that I may thus publicly thank God and the good people by whose suffrages I am here to-day for the golden opportunity afforded me of doing such an act.
When the proposed amendment to the Constitution shall have been adopted and approved by the Legislatures, as I hope it will be, that instrument will be perfect as the genius of man can conceive. … [snip]
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I appeal to those gentlemen on the other side of the House … to vote with us, and not withhold from the intelligent people of this country the right to pass upon this question so fraught with blessed or fearful consequences. We do not make the amendment. We cannot make it. We can but initiate it. Gentlemen, you who profess to have such abiding confidence in the people, will you let them have an opportunity to say whether the Constitution shall be constitutionally amended? In their name, in the name of Democracy, in the name of Humanity, in the name of Christianity, I pray you for once to make good your professions and confide in the people sufficiently to permit them to say yea or nay on the question whether they will peaceably and constitutionally extinguish the scourge and disgrace of our common country, human slavery.
[Mr. Edgerton opposed the 13th Amendment]
Mr. EDGERTON. Mr. Speaker, having on the question of its second reading voted for the rejection of the joint resolution now before the House, and intending to vote against it when put upon its passage, I desire to state some of the reasons that influence my vote. …. [snip]
(2988)
If we are to restore the Union with the seceded States and save the Constitution, other arguments than war and denunciation and insult and the invocation of the spirit of revenge and plunder must be used. It was not in that way the Union and Constitution were formed, nor can they thus be saved. In persisting in your policy, of which the joint resolution now before the House is but one expression, you are but paving the way for the division and dishonor of your country, and for your own dishonor, when impartial history shall sit in judgment upon the men and events of these perilous days.
[Mr. Arnold supported the 13th Amendment]
Mr. ARNOLD. Mr. Speaker, … I cannot let the occasion pass without briefly giving my reasons for voting for this constitutional amendment.
SHALL SLAVERY STILL LIVE?
Slavery is to-day an open enemy striking at the heart of the Republic. It is the soul and body, the spirit and motive of the rebellion. …. [snip]
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This constitutional amendment has passed the Senate, long regarded as the citadel of the slave power; how strange if it should fail in the popular branch of Congress! The people and the States are eager and impatient to ratify it. Will those who proclaim to represent the ancient Democracy refuse to give the people an opportunity to vote upon it? Is this your confidence in the loyal masses?
The passage of this resolution will strike the rebellion at the heart. I appeal to border State men and Democrats of the free States; look over your country; see the bloody footsteps of slavery; see the ruin and desolation which it has brought upon our once happy land; and I ask, why stay the hand now ready to strike down to death the cause of all these evils? Why seek to prolong the life, to restore to vigor, the institution of slavery, now needing but this last act to doom it to everlasting death and damnation? [snip]
Mr. Speaker, I thank God and a liberty-loving constituency for the privilege of voting for this constitutional amendment, for universal emancipation throughout our country. Let us now, to-day, in the name of liberty, justice and of God, consummate this grand revolution. Let us to-day make our country, our whole country, the home of the free..
I conclude, in the language of the President:
“So much good has not been done by one effort in all past time as in the providence of God it is now your high privilege to do. May the vast future not have to lament that you have neglected it.”
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[Mr. Ingersoll supported the 13th Amendment]
Mr. INGERSOLL. Mr. Speaker, …. But in justice to the liberty-loving and Union-loving men who sent me here, and in justice to myself I ask the indulgence of the House for the few minutes which have been generously given me by my friend, the honorable gentleman from California, [Mr. SHANNON,] out of his hour, in which to discuss the joint resolution now under consideration.
I have the proud honor to represent a district in which a very great majority of the people are thoroughly and unalterably anti-slavery. They are in favor of justice and against oppression and wrong everywhere and in every form. [snip]
I hold that slavery and rebellion are so closely allied that any act, legislative or military, which cripples the one tends to destroy the other. If slavery could be abolished to-day the rebellion would end to-morrow. If the rebellion could be put down to-day slavery would go down to-morrow. So that in my opinion any act that we can do, which is lawful in itself, to weaken slavery, if we should fail to do it, we would be criminally culpable.
I believe slavery is the mother of this rebellion, that this rebellion can be attributed to no other cause but slavery; from that it derived its life and gathers its strength to-day. …. [snip]
I am in favor of the adoption of this amendment to the Constitution for the sake of the seven million poor white people who live in the slave States but who have ever been deprived of the blessings of manhood by reason of this thrice-accursed institution of slavery. Slavery has kept them in ignorance, in poverty, and in degredation. Abolish slavery, and school-houses will rise upon the ruins of the slave mart, intelligence will take the place of ignorance, wealth of poverty, and honor of degration; industry will go hand in hand with virtue, and prosperity with happiness, and disinthralled and regenerated people will rise up and bless you and be an honor to the American Republic.
Slavery has shed every drop of blood which has been spilled in this war. It has filled thousands of graves with our heroic dead. ….
(2991)
[Mr. Randall opposed the 13th Amendment]
Mr. RANDALL, of Pennsylvania. The joint resolutions under consideration, Mr. Speaker, propose to amend the Constitution of the United States so as to prevent the existence of slavery in any of the States. Sir, I cannot favor this amendment with my vote, for many reasons:
1. The time proposed for the agitation of this question is most inopportune. ….
2. It in substance says to the people of the seceded States that we never will live on terms of peace within the Union so long as slavery has any existence among them, ….
3. It tends to that which at this time our people have most to fear, a centralization of power and a consolidated Government. It strikes at the root of all State institutions, it overturns and sets at naught all local laws, …. [snip]
(2992)
[Mr. Pendleton opposed the 13th Amendment]
Mr. PENDLETON. I desire, before proceeding with any remarks upon this joint resolution, to submit an amendment. [snip]
Mr. ARNOLD. I desire to ask the gentleman from Ohio whether with that amendment he will vote for the resolution?
Mr. PENDLETON. I will not. There is no difficulty in answering that question; but I desire, if gentlemen intend to submit a proposition of this kind to the States for ratification, that they shall submit it to conventions which are elected for the sole purpose of passing on it, and not to Legislatures already elected upon other and different issues. [snip]
(2994)
We have gone too far toward consolidation already. Federal power is encroaching on the States. The Executive is displacing the Legislature; the rights of individuals are not safe; the rights of minorities are not respected; power is raising itself above law, above Constitution and putting the safeguards of liberty and the guarantees of good government beneath his feet. … We must retrace our steps; we must return to States rights. They are the conservators of liberty; they are the con-
(2995)
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servators of Union; and the first step of that return should be now and here, in our firm resolve to remit to the States, where the Constitution left it, the whole subject of domestic slavery. [snip]
38th CONGRESS 2nd SESSION
December 5, 1864 to March 3, 1865
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HOUSE OF REPRESENTATIVES
December 14, 1864
[Mr. Brooks, a Democrat, was against slavery but he opposed the 13th Amendment
In his hour and a half speech he references world history.
→ “Negotiation is the preliminary step to reconciliation”.
→ “… I never, never will consent to a severance of this Union”;
→ “But, on the contrary, if the war should be persisted in, I am ready and willing to maintain those rights as they have been handed down to us by our ancestors”;
→ “Whenever the South refuses all proffers of peace whatsoever, I am ready, upon the reserved rights of this nation, to maintain its legitimate constitutional authority by force of arms”.]
PRESIDENT’S MESSAGE
Mr. BROOKS. Mr. Chairman, I intimated my design, when the President’s annual message was received, to make some remarks on it; ….
There are, sir, two cardinal topics in the message of the President in which I wish particularly to solicit attention; and these are, first, that the war must go on without further negotiation; and, second, that the war must go on until the abolition of slavery is made perpetual throughout all portions of the old United States. [snip]
Mr. BROOKS. I intend to discuss the President’s message of this year, and the topics therein set forth. Permit me, first, to call the attention of the House to the numerous amendments which are proposed to the Constitution. One of them is to change the principle of representation, proposed by the gentleman from Wisconsin, [Mr. SLOAN;] another is to change the great principle of the Constitution as to export duties, proposed by the honorable member from Maryland, [Mr. DAVIS,] and another comes down to us from the Senate, with the sanction of the President of the United States, and that is, to alter the Constitution on the subject of slavery. No time seems to me more inauspicious than in the midst of civil war, with the clangor of arms all around us, with comparatively but a small territorial part of our whole country assembled by their Representatives upon the floor of this House; no time, sir, seems to me more inauspicious to make great fundamental changes of the Constitution of the United States.
But it is said that slavery is the stumbling-block in the way of the restoration of the Union, and that without the abolition of slavery it is not possible for us, now or hereafter, to live on terms of amity and peace with our former southern countrymen. I do not now, or at any time this session, propose to rediscuss this topic of slavery. I have nothing new to say upon it, or but little to take back. I adhere to the opinions which I have heretofore advanced on that subject on the floor of this House, and, in the main, to the opinions which I have held for twenty-five to thirty years, and which some not unkind friend has reproduced for the reading of the House from a newspaper I wrote for, years and years ago. These opinions are but little changed. I do not, however, intend to discuss the abstract question of slavery at all, or its political or constitutional connections with the Government of the land.
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The approval of the system of slavery, Mr. Chairman, and the acceptance of it as an institution existing, are very different things. I accept, if I do not approve. The Constitution of my country teaches me to be tolerant in all things, even in the most important of all matters, that of religion. Intolerance is criminal at all times; but intolerance is repelled under our form of Government in every line and letter of the Constitution under which we live; and if the Constitution did not teach me that, the Bible does. Sir, when the Saviour was on earth He lived under a Government where there were sixty million slaves; and when, from the Mount of Olives, He ascended into heaven, His eyes looked down upon Jerusalem and Judea, full of thousands and tens of thousands of slaves. And when the Apostle Paul stood upon Mars’ hill, after wandering among the magnificent temples of the Acropolis, some of them dedicated to the unknown God, he preached to the Athenians, surrounded by their masses of slaves, no intolerance, to persecution, no civil war for the abolition of slavery; but if not there, elsewhere, Servants, obey your masters. The teachings of our Saviour were also to render unto Caesar the things that are Caesar’s, and to God the things that are God’s, with submission to civil government and the Christian obedience even of slaves to their masters. The whole spirit of the evangelists is full of like toleration to an institution which, in the end, the lessons of Christianity were to subvert, but the overthrow of which, by violence and force, is there everywhere condemned.
If, then the Saviour of the world and His apostles were thus tolerant upon the subject of slavery, why cannot there be equal toleration among His professed people in their administration of the Government in this country? Toleration, indeed, is the essential principle of our institutions. Toleration pervades every part of our social organizations. We are tolerant of the Jew, who does not believe in the Saviour. We are tolerant of those Christians who do not respect our Sabbath. We are tolerant of a great and rising State in the center of this continent, which has now one hundred and twenty-five thousand inhabitants, and a city of twenty thousand people. We are tolerant there upon the subject of polygamy, expressly forbidden in the New Testament, if tolerated in the Old; tolerant, though expressly forbidden by the Saviour and His apostles; and these people from this great Territory are admitted to a seat upon the floor of this House, and take part in our deliberations and debates, while we are in a frightful civil war now seemingly only to abolish negro slavery.
And now are we to be told at this day and hour that we cannot be tolerant upon this subject of slavery, when not only the Saviour and apostles tolerated it, but when the patriarchs Abraham, Isaac, and Jacob were holders of bondmen and bondwomen? Let me not be misunderstood; I do not mean to be understood as saying that the spirit of the Bible upholds slavery, and I do not mean to say there are not teachings in the sermons of our Saviour and the apostles which in the end would abolish slavery through the whole earth; but I do mean to say that not only the Saviour and the apostles, but that the fathers of the Church were tolerant with slavery, and that for more than a thousand years the fathers of the Church exercised a religious and political influence through the emperors of Rome in upholding the institution of slavery from abolition by force or violence, while they left it to be abolished by the peaceful and graceful influences of Christianity.
Mr. PRICE. As the gentleman quotes scripture so glibly, and refers to the fathers of the Church so readily, I wish to ask him if he has read where it is written that the time of this ignorance was winked at, but that now He commands all men, everywhere, even McClellan Democrats, to repent?
Mr. BROOKS. I do not know who has given the gentleman any superior wisdom that enables him to say that this is a wiser age than the age of our Saviour, of the apostles, and of Abraham, and Isaac, and Jacob.
I was about to say that the Church was over a thousand years in abolishing Roman slavery. And yet here in six months, by constitutional proclamation, or in five or six years by civil war, we propose to abolish it in blood and by violence through an empire almost as vast as the empire of Rome. Slavery was not abolished in England until 1102, by the council of London, and in Ireland until 1172, by the council of Armagh. As a matter of admonition, if not hor history, let me here state that when, in 451, or 456, in the council of St. Patrick, held in Ireland, there was a proposition from some of the clergy to induce slaves to run away, the thirty-second canon of that council was expressly issued, ordaining that to steal slaves by inducing them to run away was to expose the clergy to be considered as thieves and robbers. The Church, while sapping the foundation of slavery, expressly forbade all violence, all wrong.
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But homogeneity, we are told, must exist through the hitherto thirty-four States of this Union. The Union cannot exist unless we are a homogeneous people. No matter whether slavery be right or wrong, Christian or unchristian, it must be abolished, we are told, this day and this hour, in order to make us a homogeneous, a united, a one and indivisible people. Sir, homogeneity can never exist in a great nation, among a great people. Look at the great nations now covering large extents of the globe. There is the Russian empire—what an empire! what different institutions, what various tribes! How unlike—unlike in manners, unlike in character, frequently unlike in origin. And there is the great empire of Austria, which, stretching from Italy to Hungary, contains races of all varieties of character. Twelve different languages are spoken in that empire, and its institutions are as diverse as can well be imagined; its people are unlike, various, and different—more different than any people that exist in this country. And there is Switzerland, too, the only republic existing in Europe, except that little one perched on the Apennines—an old republic of twenty-five cantons, in which are spoken three different languages—the Italian, the German, and the French—the debates, at times, in their general congress going on in all these three tongues. The habits, the customs, the costumes, too, of the Swiss are more or less diverse. The canton of Zug varies more from the canton of Neufchatel than Massachusetts and South Carolina. The religion is Catholic and Protestant, and Protestant of various creeds and characters, and yet in that republic no effort whatsoever has ever been made by that republican people to have homogeneous institutions or one people alike in all respects as to their character. Then there is Great Britain, that vast empire which stretches from the arctic regions of the north to the Ganges and the Himalaya mountains, and which embraces even in India over a hundred million people; what empire is more tolerant than that in its diverse and varied institutions? There is Catholic Canada, with French institutions yet existing there, and with no right of trial by jury among many portions of the people of Canada. In India there are diverse and innumerable religions and peoples; the Hindoos, the Brahmins, the Sepoys. I should but consume time were I even to enumerate them. No nation has been more tolerant of religion, of prejudices, of politics and passion than the British people have been. This vast empire of Britain has only been maintained by the tolerant spirit of the British Parliament and the British Government extending throughout the whole earth, in all the varied domains of that vast empire. No effort has ever been made in England by any edict
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of the British Parliament at any time, or on any occasion, to have a homogeneous people. There is no centralization, no consolidation there. Even when the Sepoy went to war, civil war, against the empire of Great Britain, because he was compelled to bite greased cartridges contrary to his religion, the empire and authorities of Great Britain respected the miserable prejudices of the Sepoy, abolished the order, and restored peace throughout all the vast empire.
Mr. KASSON. Will the gentleman allow me one word? If I understand the direction of his argument, it relates to the necessity of the abolition of slavery in order to result in the homogeneity of the American people. In connection with his review of European systems, I ask him to explain, if he can consistently with his theory, why it has been found necessary in England, and France, and Denmark, and Russia, and Holland to abolish the institution of slavery in order to establish satisfactorily to them what they consider the homogeneity of their institutions?
Mr. BROOKS. The gentleman cannot yet comprehend the whole course of my argument, but I will answer his question by saying, so far as Great Britain is concerned, that, in my judgment, slavery was abolished in her distant British West India colonies mainly to destroy this country and to rend this Union, and for no other purpose. {Laughter on the Republican side of the House.]
Mr. KASSON. How with France, and Denmark, and Holland, and Russia?
Mr. BROOKS. The system of servitude which exists in Russia is not slavery. The people there are not slaves; the are adseript glebae—servants belonging to the soil—and that system has been changed, or is being slowly changed gradually, and not by civil war. But those institutions were not abolished in order to make or unmake the homogeneity of institutions in Europe, but for other purposes. It would divert me too far, however, from the line of my argument to enter upon the point now.
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But, sir, I was about to say that not only throughout the vast empire of Great Britain there existed none of this homogeneity of institutions, but that even in the little islands of Great Britain and Ireland there was no homogeneity there. There is the Celt who speaks one tongue across the Irish Channel; there is the Welshman who looks over across the Channel, and speaking another tongue; then there are Englishmen with their various dialects in Lancashire and Yorkshire and in other counties; and there are the Gaels in Scotland who speak a language utterly incomprehensible to the great mass of the English people. Any man who has traveled over that country, as I did twenty-five years ago with a pack upon my back, throughout the whole of Lancashire and Yorkshire and those border counties, can bear testimony to this fact, that in a day’s or half a day’s travel among the people in that part of the country, you pass among men whose institutions not only differ far more than the institutions of the North and the South, but you go among a people speaking a language not only incomprehensible to you, but to those who are upon their borders. Thus any traveler who passes beyond the Lowlands, perhaps with some Lady of the Lake for his guide-book, into the Highlands of Scotland, will soon find that as he goes north from Stirling castle he goes among a foreign people, with foreign institutions, speaking tongues far different from those of the great majority of the English people. The wise people of England, the wise Government of England have never attempted to have homogeneity of institutions; not only throughout their vast empire, but even in their own little islands, they have respected the rights, the privileges, the prerogatives of the Welsh, the Celts, the Gaels, and the other varieties of men throughout all parts of England, and it is only by this spirit of toleration, this noble spirit of toleration, this worthy conciliatory spirit of the nation that that vast empire of England has been able to stretch its power beyond its own little domain all over the earth, encircling the globe, as has been well said, by the beat of its drums that greet the rising of the morning sun.
Homogeneity never existed throughout the vast Roman empire. It was not attempted by the dictators of Rome; and it never was attempted subsequently by the emperors of Rome. But autonomy, or self-independence, was the principle on which the great Roman empire was reared and maintained, and not only so, but it was the only principle on which that Government was enabled to sustain itself in its vast aggregation of territory. When Julius Caesar conquered the Gauls he did not take away from the barbarian people of Gaul their local institutions, their self-government, the government of their chieftains. He left all that to them. And when Pompey invaded the Asiatic cities and subjected them to the Roman empire, he left to those Asiatic cities the government and control of their own local institutions; and their self-government in that manner attached them to the empire. To the Ionians were reserved their archons and prytanes; to the Dorians, their ephori and cosmi; ay, to all the Grecian cities and States, more or less, their local institutions, their magistrates, their self-government, their peculiar institutions. Coining was allowed to some; fiscal regulations to others. Confederations were allowed to exist in Greece long after the domination of the Roman empire. There was not only the well-known Amphictyonic, but the Panionian, the Boeotian, the Achaean. Autonomy, as far as possible, homogeneity seldom, if ever, was the Roman rule. The self-government of the subject States was as much as possible preserved. Their local institutions were maintained and invigorated. And it was by the preservation of their self-government, and of those local institutions, that the vast empire of Rome was maintained for so many years, and was perpetuated from age to age, often even under the worst of emperors.
Mr. BOUTWELL. I would like to ask the gentleman from new York whether he did not state in this House at the last session that the institution of slavery was dead in this country.
Mr. BROOKS. I stated in the opening of my remarks that I have nothing to unsay in what I said in that speech.
Mr. BOUTWELL. I would like a distinct answer to the question which I put.
Mr. BROOKS. My speech is on record; and I have not a word to take back of it.
Mr. BOUTWELL. Will the gentleman allow me a single moment?
Mr. BROOKS. Certainly.
Mr. BOUTWELL. If the statement of the gentleman at last session be a fact, that the institution of slavery is dead, I would like to know how any action of the Government can affect the local institution of slavery in this country.
Mr. BROOKS. Then why should you try to kill a dead body?
Mr. STEVENS. But we ought to bury it lest it become noxious.
Mr. BROOKS. But that is no reason why we should have a wake over it. The whole country has become intoxicated on this subject of slavery, and in the midst of that intoxication this civil war is kept up.
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I am calling the attention of the House, Mr. Chairman, to these historical facts because they are perfectly applicable to our times, and to our day. History but repeats itself. There is but little new in the history of man. Man but repeats over what preceding man has done. I was about to say, when interrupted, that the great Augustus Caesar, whose empire stretched in the west from the pillars of Hercules to the Tigris and the Euphrates in the east, from the hundred-gate Thebes in the south to the Ultima Thule of Britain in the north, embracing an empire so vast that Ovid wrote of it, “when Jupiter looked out from the portals of heaven he saw nothing but what was Roman,” nil nisi Romanum; that great founder of the Roman empire over millions of human beings, that wise and wonderful man, never attempted any homogeneity of institutions. But, through out all that vast territory, as far as was possible, there was left to the people of the empire their autonomy or self-government, their local institutions. The Parthian, the Indian, the Scythian, the Sarmatian, the Briton, the Egyptian, each and all had reserved to them their local institutions, their local religions, their local governments. The gods of Egypt and the gods of Gaul, the gods of Athens and the gods of Asia, were worshiped, if not in the Capitol of Rome, at least in its close vicinity. And Augustus Caesar himself caused sacrifice to be offered in the holy temple of the living God, in Jerusalem. All religions, all policies, more or less, were tolerated, only in subordination to the great head of the empire at Rome. And it was the foundation of that empire in the spirit of toleration that kept it together for hundreds and hundreds of years, and which made the name of Caesar, illustrious, not only throughout that whole land, but sent down that name immortal to all posterity as the name of czars and kaisers in the royal houses of kings and emperors.
I repeat, then, that if we pay attention to the teachings, to these examples of history, we must see that homogeneity is not a possible condition for a great people. Centralization, consolidation, are the English words which we substitute for the term homogeneity. Centralization and consolidation is nothing but unlimited despotism. There is no freedom for the people, no self-government, no municipal government, no household government, no family government under such a system. There is no other government worthy of a free people; there is no other government which can maintain the rights and prerogatives of the people but one which shall be founded on some other principle than that of consolidation and centralization. It was not possible for Rome; it was not possible for Athens; it will not be possible for the Government at Washington, with all the telescopes which they may mount upon the highest pinnacles in this city, t look over the vast territory from Passamaquoddy to the Rio Grande and Oregon, and to regulate the local rights and privileges of the millions and millions of people that not only exist now, but are hereafter to exist throughout this vast territory. Even the Puritans taught us better lessons than consolidation and centralization, though their sons have forgotten that lesson. Liberty was cradled in their municipal institutions; and liberty is cradled in the family, in the country, the town, the city, and the State, and not in the federal central Government. The federal Government is to maintain liberty, but it is not its birthplace, its cradle, its nursing mother. For the cradle of human liberty, I repeat, is in the household, in the family, in the home, in the city, the country, and the State; and wherever other institutions, the product of centralization or consolidation, exist, as in France or in Russia, there must exist despotism.
Mr. L. MYERS. Will the gentleman from New York [Mr. BROOKS] permit me to ask him a question?
Mr. BROOKS. Certainly.
Mr. L. MYERS. I should like to know if at the last session the gentleman did not tell us that we were taught intolerance by the Puritans.
Mr. BROOKS. That may be true. But they taught us many good things. They had some virtues as well as faults. They were right in their local institutions.
Now I have dwelt thus long upon this subject in order to approach another topic, and that is to say that if this homogeneity, this centralization is persisted in, this war must go on until the subjection of the South follows. In my judgment two more fatal errors exist, or have existed, or can exist, than that this is to be a short civil war, or that our hitherto southern countrymen can ever be subjugated to this empire of centralization and consolidation. Civil wars are never short when a people are in earnest, as the people of the North and the people of the South are now; we, in earnest for anti-slavery and consolidation; they, in earnest, as they say, for the maintenance of self-government. No war like that can be ended in ninety days, or in a summer’s campaign, but is to be a war of years and years. Whatever we may say of the south, the earnestness of that people, their indomitable and furious character, show that in a war to subjugate them extermination must follow.
All civil wars of like character, and waged with like spirit, have lasted for years. The Peloponnesian war lasted twenty-seven years, and ended in the ruin of Greece. The civil wars of Rome lasted for years and years. The wars of the houses of York and Lancaster lasted thirty years. The war of the German confederation lasted thirty years; and for over forty years raged the civil war in Holland and the Netherlands, when an effort was made by the king of Spain, under the Duke of Alva, to subjugate the people of Holland and the Netherlands to the Inquisition and taxation of Spain. All history shows that our civil war is to be long, if not endless, if it is to be conducted in the spirit in which it is conducted now. It is not
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to be a war, then, of ninety days, nor of four years, nor of this Administration alone; but it is to be a war to be passed on from Administration to Administration, throughout all time, until the spirit of toleration is once more revived in this country, and we learn to revere the lessons our fathers left to us.
The subjugation of eight million people! It is an utter impossibility; it cannot be done. The outward man may be subjugated. He may be made to bend, to cringe, to bow, to take the oaths of allegiance. With bayonets surrounding him, you may for a time take from him all outward manliness. But the spirit within him, with which God has inspired him, can never subjugated by mortal man. The soul is indomitable, although you may have the outward profession of obedience. This subjugation can never be even apparently perfected only by the constant outward exhibit of bayonets. But whenever that exhibit is withdrawn insurrection and armed rebellion will follow. This nation may be made a nation of soldiers, but if it be made a nation of soldiers altogether, I repeat again that men of our kith and kin, men of our blood and our soul, men educated in our institutions, and inspired by the education which has been given to us by our ancestors, such men, whether right or wrong, can never be subjugated. God never made the race we are born of to be subjects or slaves.
All Europe—France, England, Russia, all combined—can never subdue my own native State of Maine. You may drive the people from the seacoast, but they will go to the mountains; you may desolate their hills and their valleys, but the spirit of the noble people of that gallant State can never, never be subjugated by the whole earth combined. Eight millions of like men, for like we are, with the same blood coursing in our veins, and spread over territory reaching from the Potomac to the Rio Grande, never, never can be subjugated by men of the same kith and kin. Not only human courage, but climate, soil, and a territory fortified by swamp and forest and malaria all forbid. Every wood in Virginia is a fortress. Every swamp in Carolina and Georgia is a ditch. The vastness of the territory to be subjugated is its great defense. Marion and Sumter in the swamps of South Carolina kept at bay for months the finest infantry of England under Lord Rawdon, and the best cavalry in the world under Colonel Tarleton.
I know that these truths are unpalatable; but it is quite time that they should be preached to our countrymen even if they do not like to hear. They are not new. They have all been preached in the English tongue before, and in another great civil war. I speak but the words which our noble ancestors upon the other side of the ocean spoke in the days of the Revolution, when they said that three millions of Englishmen in the American colonies of Great Britain could never, never be subjugated by the armed empire of England. Subjugation they pronounced to be utterly impossible in 1774-75, as I pronounce it now, in 1864.
But I am asked, “What are we to do? Are we to submit to rebels and the rebellion? Are we to lie down and let the rebels of the South ride over us? Are we to give up this great contest, and to surrender our holy Union and our sacred institutions?” I say, never; no, never! Never, I repeat, never are we to surrender the institutions that our fathers bequeathed us, or the unity that they bestowed upon us. But we are to resort to their lessons and their instructions for the salvation, the redemption, and the reintegration of this Union. What the people of the North desire is reunion and peace. What the people of the South desire is peace, not with dishonor, but peace with honor. We both desire peace; and why not, then, try to agree upon terms? Negotiation is the preliminary step to reconciliation. This is the lesson that our fathers have bequeathed to us. Convention, consultation—these are the great prevailing principles of our Government, and the only principles upon which that Government can be maintained and handed down to our children, unless we intend to be eternally in arms.
Tell me not that I am premature in these remarks. They are the words of Burke, and Fox, and Chatham, and Camden, and other illustrious Englishmen in the beginning of our Revolution, in 1772, in 1774, in 1776, and until the treaty of peace in 1783. Let me call the attention of this House and of the country to some of the motions made in the British Parliament prior to the outbreak of our Revolution in 1776, and pending that Revolution.
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In 1774, April 15, Lord North introduced into the House of Commons a bill to provide for the trial of Boston people who might be charged with violating the laws of England, not in Massachusetts, not in Boston, but providing for taking them to England and elsewhere to be tried. Loud was the remonstrance from Boston, and from Massachusetts generally, and from all parts of this then colonial country. But Lord North was sustained; the bill was carried in the House of Commons by a vote of 127 to 44, and in the House of Lords by a vote of 49 to 12.
In 1774, April 19, there was introduced a motion to repeal the tea duty, and Edmund Burke seconded that resolution. But Burke and those who agreed with him did not succeed. The people of England were no more willing to reason then than the people of the North or South are willing to reason now. The proposition was voted down—ayes 49, noes 182.
In 1774, November 30, in the new Parliament, the king sent in a speech adverse to the colonies—utterly adverse to their right to control their local institutions, their right of local self-government. There was great debate upon that; but the address was carried in the House of Commons by a vote of 264 to 73, and in the House of Lords by a vote of 63 to 13.
In 1775, January 20, in the beginning of the outbreak of our Revolution, Lord Chatham made his great effort in the House of Lords to have the British troops withdrawn from the city of Boston—to stop fighting, for fighting had begun in the city of Boston, and try consultation and conciliation with the good people of Massachusetts, in order to avoid the effusion of human blood. But Lord Chatham if heard was not heeded. The proposition was voted down (as a like proposition has been voted down in this House) by a vote of 68 to 18. On that occasion Lord Chatham said:
“Resistance to your act was as necessary as it was just, and your declaration of the omnipotence of Parliament, and your imperious doctrine of the necessity of submission, will be found equally incompetent to convince or enslave your fellow-subjects in America, who feel that tyranny, whether ambitioned by an individual part of the Legislature or the bodies who compose it, is equally intolerable to British subjects.
“I trust it is obvious to your lordships that all attempts to impose servitude upon such men, to establish despotism over such a mighty continental nation, must be vain, just be fatal. We shall be forced ultimately to retract. Let us retract while we can, not when we must.”
The proposition of Lord Chatham was supported by Lords Shelburne, Camden, Rockingham, and Richmond, but was supported in vain. The British ministry was deaf to the eloquence of Chatham, and deaf to the reasoning of the surrounding nobility.
Lord Chatham then took another step. He proposed, if the colonies would recognize the supreme Government of England, to invite from the colonies a free gift of revenue; but this was rejected by a vote of 61 to 32.
In 1775, January 29, there appeared before the British Parliament, claiming a hearing, the illustrious Franklin, the well-known Butler, and the distinguished Lee. They asked to be heard at the bar of the House of Commons in behalf of the colonies of the United States, but they were not heard. They were refused a hearing because the British Parliament would not recognize the legal existence of any Congress of the United States.
In 1775, February 2, Lord North moved his address to the king against the colonies; Fox moved to amend
that by censuring the ministry, but he failed by a vote of 304 to 105. The address was carried by a vote in the House of Commons of 296 to 106, and in the House of Lords of 87 to 27.
In 1775, March 22, Burke proposed concession, conciliation, and addressed the House on the subject. He was heard undoubtedly with far less patience than I am heard here to-day. His motion was rejected, 270 to 78. Lord North then exclaimed—and the like of which we often hear on the floor of this House—that Burke was but helping the rebellion.
In 1776, Congress petitioned the king to be heard, and the petition was rejected as from an illegal body.
The Duke of Grafton then left the party in power, and joined the Opposition. The address to the king, however, was carried by a vote in the House of Commons of 176 to 72, and in the House of Lords of 75 to 32.
Burke then proposed conciliation again, and asked for the calling of a congress by royal authority to settle the difficulties. His proposition was lost by a large majority. It is a proposition which seems to me at this time, in the omnipotence of our power and the abundance of our victories, ought to come—I will not say from this, but from the other side of the House—that there may be consultation with the people of the South to see whether this horrible effusion of human blood cannot be stopped. But the proposition of Burke was lost by a large majority, although it was supported by Barre, Fox, and others; and Lord North was said at heart to favor Burke’s proposition.
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Lord North, however, soon after, as an organ of the king and ministry, introduced a bill prohibiting intercourse with the colonies. Martial law was declared, and the proposition was carried by a vote of 112 to 16 in the House of Commons, and 78 to 19 in the House of Lords. And it was about that time that the British ministry resolved not to trust to the people of England, of Scotland, and of Ireland for the restoration of harmony and peace, but to rely upon the Hessians. The Landgrave of Hesse-Cassel furnished 12,104; the Duke of Brunswick 4,084; the Prince of Hesse 668; and the Prince of Waldeck 670–17,526 Hessians in all. This proposition to employ these Hessians was carried in the House of Commons by a vote of 242 to 88. There exists at this time in Hesse-Cassel a beautiful palace, with beautiful grounds, called Wilhemshoe, and surpasses, in my judgment, Versailles, even, built by the purchase-money of these Hessians—money obtained from the British treasury; but no Englishman looks at it, beautiful as it is, without the blush of shame that the money of England was used to employ Hessians to subjugate the colonies.
In 1778, after Burgoyne’s defeat, the people of England, for the first time, began to have some sense of the magnitude of the war they were undertaking.
Mr. BROOMALL. Let me ask the gentleman whether those movements to which he is referring did not lead to the success of the rebellion in the colonies.
Mr. BROOKS. I will say to the gentleman that Lord North, the Earl of Temple, and the Tories of England generally used the very words that we have heard so often on the other side of the House, “You are helping the rebellion.” But if these men had been heard and heeded in the beginning of the American Revolution there would have been no war. If the wisdom of Chatham had been confided in the colonies would not have rebelled, and there would have been no separation from Great Britain. It was because the people of England and the ministry would not listen to the admonitions of these wise statesmen that the empire was broken up, and we became independent States instead of loyal colonies.
After the defeat of Burgoyne there once more arose a great debate in the British Parliament, in which Fox and Germaine participated. The words of Fox were admonitory, and so well worth remembering that I will read them. Fox was comparing Germaine to Dr. Sangrado—
“Bleeding, he said, has been his only prescription. For ten years that he has presided over American affairs, the most violent, scalping, tomahawking measures have been taken. If a people deprived of their ancient rights have grown tumultuous, bleed them. If they are attacked with a spirit of insurrection, bleed them. If their fever should have run into rebellion, bleed them, cries the State physician. More blood! More blood! Still more blood!”
This was the remedy of Lord Germaine. I will not say it is the only remedy of any member upon the floor of this House of Congress.
In 1788 Lord North, now awakened to the perils of the empire, proposed a consultation, but it was then too late. He proposed to repeal every anti-colonial act of Great Britain from 1763 to 1778, and he proposed to treat the Congress of the colonies as a body to be consulted. But it was too late. And here I beg gentlemen upon the other side to recall history, to be admonished by it, for history in this day is but a repetition of the past. Holland and France and Spain were awakening, and Franklin and Laurens and Lee and others were in consultation with the rivals of the English monarch, and those monarchs were prepared to interfere in the contest between English and these colonies. Our Congress, aware of its strength for the first time, refused to listen to Lord North. So the storm may be gathering now. Yes, the storm is gathering beyond the Rio Grande—a foreboding storm—and the empire of France established there through Maximilian will soon be stretching its vast arms over the Rio Grande and interfering with these States of America.
But before anybody has interfered, before England, or Holland, or Spain, or France has interfered, I beseech my countrymen, in view of these lessons of history, in the spirit of forbearance and conciliation, to endeavor to end this war, now, when we are strong, and when no foreign arm is actually upraised, the more to rend asunder the Union.
Commissioners were sent to Philadelphia, but sent in vain. The emissaries of France were in Philadelphia, not to heal the breach, but to widen it, and 1783 England was obliged to grant to these colonies their independence. I advise no such grant; I desire the acceptance of no such proposition. I am indisposed ever to receive such a proffer of peace as that; but at this day, and at this hour, holding up the lessons of history, I beseech this honorable House to study these lessons of history before it is too late, and secure a peace when it can be done by mingled kindness and conciliation as well as by force of arms.
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Mr. WILSON. I desire to ask the gentleman a question: suppose the Government of the United States should adopt the plan he suggests for restoring peace to the country, and that plan should fail, is the gentleman ready then to wage war against this rebellion until it shall have been crushed and the authority of the Government maintained; or would be then acknowledge the independence of the Rebel States?
Mr. BROOKS. Never will I consent to acknowledge their independence. We are one people, one country, and have one destiny; it is written out by the finger of Omnipotence.
Mr. WILSON. With all respect to the gentleman from New York, I desire an answer. I wish to know whether, if these means should fail, the gentleman would then be willing to wage this war for the suppression of the rebellion. If not, what means would the gentleman have the Government adopt?
Mr. BROOKS. I am coming to that. I was about to say, when the gentleman interrupted me, that God made this for one country. Omnipotence seems to have written out for it one destiny and one law. It is written out in the rock-ribbed Alleghanies, which extend from the Hudson almost to the Mississippi; it is written out on the great father of the waters with its hundred thousand miles of navigation. We are made for one people, and what God has put together no man can put asunder.
But more, war is not the remedy; it is not the Christian, it is not the civilized remedy for this disaster and trouble in which we are involved at the present hour. Our first duty is to try conciliation and kindness; our first duty is to imitate the proposition of Burke in the British Parliament—negotiation. If we offer negotiation, and the South refuse to hear negotiation upon just and equitable terms, the South will be divided and we shall be united. The war will then be there a war at the ballot-box, and in the southern country; not here a war of blood and devastation. Our remedy is not the sword, it is not the cartridge-box, until all other remedies whatsoever have been exhausted.
Then, as Christians, we are Christians, or profess Christianity, our first duty to God, our first duty to our institutions, is to assemble in convention and to try reconciliation.
[Here the hammer fell.]
Mr. PRICE obtained the floor.
Mr. BROOKS. I should like to have a little more time to conclude my remarks.
Mr. GARFIELD. I move that the gentleman have leave to go on.
The CHAIRMAN. Leave can be granted by unanimous consent.
No objection was made.
Mr. BROOKS. Whenever the day and hour come when Christianity fails to restore peace, when the example of our fathers who assembled in convention fails to restore peace, I shall be ready to mark out the course that I will pursue, and I tell the honorable gentleman again that I never, never will consent to a severance of this Union. I wish to be so understood, not only here, but everywhere. I wish my voice, if possible, to be heard South as well as North. Every human effort that can be made by the arts of peace should be made, and if the Union cannot be restored exactly as it was, in the same words and in the same letters, I am prepared for some other bargain which will again be satisfactory to all sections of this Union.
Mr. WILSON. I desire to ask whether, in any event, under any circumstances, the gentleman is in favor of maintaining the Union by war against the rebellion.
Mr. BROOKS. I repeat that under no circumstances will I ever consent to ask for a passport to go to Mount Vernon or Monticello or to the tomb of Marshall, or to demand one to go to Concord and Lexington and Bunker Hill. Under no circumstance, if I descend or ascend the Mississippi, will I ever consent to have my baggage examined by the officers of a foreign country upon the banks of that river.
Mr. WILSON. I submit that the gentleman has not answered my question directly. I ask again whether the gentleman is willing, under any circumstances, to secure to himself the enjoyment of the privilege he has mentioned through force of arms against the rebellion.
Mr. BROOKS. If it be necessary; if the South has no reason; if it will hear nothing of peace; if it will obstruct the Mississippi and the Chesapeake, and is determined to take from us the rights which we have had from our ancestors, then a new case will arise; but until that case arises in the rebellion, I do not propose to mark out the course which I will pursue hereafter.
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Mr. WILSON. I now ask if in any event, in the new case, he would then be willing to wage war against those now in rebellion against the authority of the Government.
Mr. BROOKS. I do not believe that after any of these efforts for peace there would be any such new case. But, on the contrary, if the war should be persisted in, I am ready and willing to maintain those rights as they have been handed down to us by our ancestors. I know the astuteness of the gentleman from Iowa, and I see the coterie of claquers by which he is surrounded in this effort to catechise me.
Mr. BOUTWELL. I call the gentleman to order.
Mr. BROOKS. I am afraid the gentleman does not give a right interpretation to my words. I mean nothing objectionable to the gentleman. I do not wish to say anything that may be offensive. I think I have expressed myself clearly. What I object to is laying down what I would do in a certain contingency; because what may happen hereafter I cannot say. I cannot lay down a programme for the future; but as explicitly as a man can say it, I have said, and repeat, that under no circumstances will I ever consent to a severance of the Union of these States.
Mr. WILSON. But the gentleman did state a case which may occur in the future, and I ask him again, in the event of that case occurring, is he willing to meet it by force of arms?
Mr. BROOKS. Whenever the south refuses all proffers of peace whatsoever, I am ready, upon the reserved rights of this nation, to maintain its legitimate constitutional authority by force of arms. [Several MEMBERS. “Now you’ve got it.”] There may be various ways of settling the difficulties with the South; even the slave question may be got over. The honorable gentleman from Wisconsin may be gratified by refusing the South the right of representation for its slaves on the three-fifths principle. I think the South would willingly consent to that and to have every negro there count one, as at the North. I think there will be no difficulty about that. I think that the subject of the fugitive slave law, which is so offensive to the great mass of the northern people, may be arranged. I see no essential difficulty in that.
The great object in the formation of the Union was commerce and trade. Commerce and trade formed this Union, not patriotism altogether. I was because of the difficulty of having an equal system of duties between Rhode Island and New York and Connecticut, and between Annapolis, in Maryland, and the eastern coast of Virginia, so as to have one commerce, that this Constitution was made.
We might have a zollverein, as they have in Germany, for the collection of our duties. All those difficulties that exist now between ourselves and our southern countrymen might be adjusted in convention, by peaceable negotiation. But, as I have shown before by the example of nations that have gone before us, in my judgment they never can be adjusted by arms. In the end, as the President of the United States said in his inaugural address, we must come to terms by negotiation.
Mr. KASSON. Will the gentleman from New York, with a view to get his opinion on the subject, permit me to ask him a question?
Mr. BROOKS. Certainly.
Mr. KASSON. It is this. The gentleman from New York has run a parallel, instead of a contrast, between this causeless and infamous rebellion and that of our fathers against the English Government for a cause which they avowed with a list of their grievances. He now asserts it as a fact that, with a proper proffer of terms on our part, the Union can be restored. I ask him to give to the House the benefit of his information on that point. What evidence has he got that the South will come back into the Union on any terms consistent with the preservation of the Constitution and the Union? The evidence is what I desire.
Mr. BROOKS. What evidence could I have? If I should speak to some southern man, or if I should write to some southern man, I should, in doing so, be violating the laws of the country. I cannot write to any man in the South. I cannot commune with anybody in the South. That is one of the difficulties of the position.
Mr. KASSON. The distinguished gentleman from New York has affirmed the fact that peace can be restored on that basis. I wish the evidence of the fact on which the whole argument rests.
Mr. BROOKS. Suppose we try. At an early period of the war a gentleman from the State of Georgia, well known in this House, a gentleman who is now vice president of the so-called southern confederacy, made an effort to be heard in the interest of peace, and was refused an audience. Another effort was made from the Canadian frontier, but the President of the United States did not permit it to come to any conclusion. Under the laws of our country, I repeat, it is impossible for an individual legitimately to obtain information from the southern country. Hence it is impossible for me to answer the question of the gentleman from Iowa. All that I can say is—try, try. If we succeed, immortality will rest upon our efforts. If we fail, we shall be right as against the South; and the responsibility will be on southern heads.
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Mr. KASSON. Do I understand the gentleman from New York to say that any authorized commission to treat for peace on the basis of the Union has ever been refused to be received by this Government, either from Canada, Fortress Monroe, or elsewhere—any authorized commission to treat for peace on the basis of the Union?
Mr. BROOKS. Mr. Stephens, of Georgia, had a commission which was understood to be for peace, and he was not received.
Mr. KASSON. It is denied by the head of that rebel government himself.
Mr. BROOKS. And is affirmed by Mr. Stephens in a speech which he has made in the South.
Mr. KASSON. I have not seen that speech. I differ with the gentleman from New York on the point of fact.
Mr. BROOKS. Mr. Chairman, I am well aware that at this period of the history of the country it is in vain to make such speeches as I am now making. I make them, not for the present moment, but to sow the seeds of thought and of consideration for the people of this great country. I make them to be considered and dwelt upon hereafter, and I hope that they will lead to reflection throughout the country. I hope the Republican side of the House will cease to cherish that feeling against us on this side of the House in which they have hitherto indulged. We desire Union as much as they do; but we do not see, in their
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mode and manner of obtaining that Union, any good result possible, and we do not believe that it is possible. I address my remarks to the House, in accordance with my purpose to try and produce some community of feeling, some community of action, which may, hereafter, be useful to our constituents. If I were acting the mere role of an Opposition member, I should do nothing but throw obstacles in the way of the other side of the House; but I hold it to be the duty of a man in the Opposition to propose as well as to oppose; and hence the propositions which I have put out.
No man on that side of the House, I call God to witness, desires the reunion of these States more ardently than I desire it. No man would make greater sacrifices than I would make to restore to peace and harmony this now bleeding country. But I speak in vain. I am in a minority on the floor of this House, and will be in a greater minority hereafter. I can only appeal to my countrymen, to their good feeling, to their reason and their sense. To them I appeal as to Americans having a great history, not now, I trust, to end. I appeal more especially to New England men, for independence, self-action, and individuality upon this floor. I appeal to that State in which I was born—the State of Massachusetts—which sometimes thinks and acts for herself, independent even of party chains. Let her step forth and act now on this great occasion, and immortalize herself, as she has heretofore done.
Mr. ELIOT. I would ask the gentleman from New York [Mr. BROOKS] if it is not true that the part of Massachusetts in which he was born belongs now to the State of Maine?
Mr. BROOKS. I do not think the gentleman should ask so impertinent a question as that. The wit of the remark does not compensate for the time of the House occupied by it.
Mr. ELIOT. It has truth in it, at all events.
Mr. BROOKS. I am happy to say that I was not born in that part of Massachusetts which the gentleman represents. These personalities are wholly uncalled for.
There was a period in the history of Massachusetts when the State, great and powerful in her control over the Revolution of 1776, forgetting the rival claims of her own eminent sons, and even forgetful of the good city of Boston, in the person of John Adams nominated a slaveholder, George Washington, of Virginia, to be the Commander-in-Chief of the armies of the United States. It is in that spirit that I invoke Massachusetts men to act now; I implore Massachusetts men to look back to these antecedents of their history and emulate the glory of that Era. And I also appeal to other New England men upon the floor of this House; and to those who come from the far distant shores of the Pacific I thus appeal, because this Government is now a New England Government, and, in the main, in the hands of New England men.
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Throughout the vast regions of the lakes, across the Rocky mountains, the New England element governs and controls this country. I appeal, therefore, to the three New England men from the State of Iowa, and to the honorable gentleman, the leading member from the State of Illinois. I appeal to the honorable gentleman from Pennsylvania [Mr. STEVENS,] the monitor and the Mentor of this House, who was born among the Green mountains of Vermont, and who exercises so omnipotent an influence in controlling the deliberations of this body; to him I appeal for the support of this effort to bring peace again to our people. Let us together try to do honor to New England men and New England history, forgetful of those provincialisms which have been fostered by this civil war, and, if possible, accomplish the restoration of this Union.
Oh, that it was within my power to go within the portals of the White House, and to approach the Chief Magistrate there; I would do what, alas ! as an impenitent sinner, I do not dare do to my Maker—on bended knees implore him in his now almost omnipotent authority to exercise all the powers of Christianity, all the lessons, all the arts of peace for the restoration of this now divided and broken Union, and to stop the further effusion of human blood. In the name of that great patriot whom we once in common revered, whose voice has been so often heard in the deliberations of this Capitol, in the name Henry Clay, in whose company, in the better days of the Republic, we both marched together, I would invoke him to remember the history of that great man.
Thrice by efforts of conciliation he averted the evils of civil war. First upon the Missouri question in 1820; then in 1832, in the Senate, by his action upon the tariff, in eloquence which stirred the nation’s heart, and which had an omnipotent and controlling influence then over both Houses of Congress, he again stopped the threatened effusion of human blood. And in the great compromise questions of 1850, by his eloquence, his power, his wisdom, his social influence, as well as by his omnipotence in debate, by the respect which all portions of this country had for that great and illustrious man, civil war was again averted by this unhappy land.
O, that I could approach the White House, and repeat to the Chief Magistrate the lessons of our illustrious teacher, and invoke him to follow that illustrious example, and to do himself the immortal honor, to be, not the last President of the United States, but the saviour and restorer of this divided, distracted, and bleeding Union.
[Mr. Price supported the 13th Amendment]
Mr. PRICE. Mr. Chairman, I have heard it said that genius is the crowing diadem on the brow of manhood; but if I had ever been induced to believe the declaration, I should have changed my opinion since I became a member of this House. I have listened, sir, as this House has done, frequently—again and again—to the honorable gentleman from New York, [Mr. BROOKS,] when he has held spell-bound the members of this body upon questions that have agitated this country from its center to its circumference; and when I have returned to my home on the western bank of the Mississippi, and my constituents have asked me concerning the members and the doings of this House, and when they have asked me the question “Who is the best orator in the lower House of Congress?” I have invariably referred them to the gentleman from New York who has just taken his seat. His silvery accents, his smooth sentences, his well-informed mind, enlightened not only from history, but from his travels in foreign lands, qualify him admirably to entertain and to instruct an audience of this or any other kind.
But, sir, I regret to say, and I say it with sincere sorrow, that his ingenuity is equal, if not superior, to his genius. Sir, there is not a man upon either side of this House to-day, who has listened to the honorable gentleman’s speech of an hour and a half, his eloquence, his rhetoric, his oratory, but must be satisfied that the entire aim and intent of the whole speech and the desire of the man are that it shall aid the enemies of our country, and as a consequence depress the friends of the Administration and of the Government and of the civil and religious institutions with which we are blessed in this land. Slavery—the very thing that the honorable gentleman told us in that very place at the last session of Congress was dead—slavery is the alpha and the omega of that speech. That speech, I undertake to say, without fear of successful contradiction, is intended to strengthen the hands of the slaveholders and the hands of the rebels; and in just so much as it strengthens their hands it weakens ours, and causes the blood of patriot hearts to flow upon southern soil. No other conclusion can be arrived at. [snip]
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Slavery—that thing that was “dead,” and which the gentleman from New York now seeks to resurrect—is not the blessed boon to the human family that he and others would have us believe at this day, if he is to be believed in his declarations made a few years since upon this same question. I read from his own language. “Washington, March 8, 1833,” is the date. This is December 14, 1864. …. It is not a matter of yesterday with him. … He says:
“Slavery carries with it its own afflictions, its own punishments. It is a dead drag to the body politic.” [snip]
“It is a dead drag to the body politic. It is impossible for any community to prosper with it in its bosom.” [snip]
“The affliction bears as heavily upon the master as upon the slave.” [snip]
“It endangers the peace and happiness of the master..”
Does the gentleman wish to endanger the peace and happiness of his friends in the South. If not, why does he come into this Congress and continue his present course of conduct? [snip]
“And robs the slave of his freedom and his birthright.”
So we think.
“As to prosperity and the accumulation of property, it keeps the master in the rear of others in a like situation exempt from this evil, and thus depresses him when it depresses his servant. It is demonstrable, in my opinion, that that community of whites, taken as a whole, must be happier, more prosperous, and richer, where slaver is prohibited than where it is allowed.”
Now I wish to say to the gentleman from New York that we are in favor of prohibiting slavery. Does he say that is wrong? He says that it produces unhappiness. It is his own language—not dictated to him by me; not dictated to him by any gentleman on this side of the House, or any gentleman upon this floor, for it was written at a time when no man who occupies a seat here now was a member of this House. It was his candid opinion on the question. [snip]
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On the other side are the apologists of slavery. They are the men who claim to be Union men, but who, in all their speeches, all their actions, and all their efforts, are forever finding fault with what is done on the side of the Union, and by Union men, while they have never a word against treason, or traitors, or against Jeff. Davis’s government …. [snip]
I have a hope, therefore—nay, it is only a half hope—that hereafter the speeches to be made on this floor by members on the other side of the House will have a little more of the right of the true metal of patriotism unalloyed; that they will contain words of cheer for their country and for the brave men who are carrying the flag of freedom in the forefront of advancing columns, charging on the enemy in the battle-field; and that they will contain no words of cheer for those who are endeavoring to destroy our civil and religious institutions.
Mr. SPALDING. I move that the committee rise. The motion was agreed to.
So the committee rose; and the Speaker having resumed the chair, Mr. BLAINE reported that the Committee of the Whole on the state of the Union had had under consideration the Union generally, and particularly the last annual message of the President of the United States, and had come to no conclusion thereon. [snip]
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HOUSE OF REPRESENTATIVES
January 6, 1865
ABOLITION OF SLAVERY
[Mr. Ashley supported the 13th Amendment]
Mr. ASHLEY. I desire to call up this morning, pursuant to notice previously given, the motion to reconsider the vote by which the joint resolution proposing an amendment to the Constitution to reference to slavery was rejected. [snip]
Mr. ASHLEY. Mr. Speaker, “If slavery is not wrong, nothing is wrong.” Thus simply and truthfully has spoken our worthy Chief Magistrate.
The proposition before us is, whether this universally acknowledged wrong shall be continued or abolished. Shall it receive the sanction of the American Congress by the rejection of this proposition, or shall it be condemned as an intolerable wrong by its adoption?
If slavery had never been known in the United States, and the proposition should be made in Congress to-day to authorize the people of the several States to enslave any portion of our own people or the people of any other country, it would be universally denounced as an infamous and criminal proposition, and its author would be execrated, and justly, by all right-thinking men, and held to be an enemy of the human race.
I do not believe such a proposition could secure a single vote in this House; and yet we all know that a number of gentlemen who could not be induced to enslave a single freeman will nevertheless vote to keep millions of men in slavery, who are by nature and the laws of God as much entitled to their freedom as we are. I will not attempt to explain this strange inconsistency or make an argument to show its fallacy. I content myself with simply stating the fact. …. [snip]
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[Mr. Orth supported the 13th Amendment]
Mr. ORTH. Mr. Speaker, we are still grappling with treason and rebellion. Four years of war, … have not yet sufficed to assure to us a permanent peace and an undivided nationality. …. [snip]
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Slavery is dying; it raised its arm to destroy the Government, and the American people have decreed that it is unfit to live. ….
The bill now under consideration proposes to submit the following amendment of the Constitution to the several States for adoption or rejection, according to the terms prescribed by that instrument, and if ratified by the votes of three fourths of the States will then become a part of our fundamental law:
ARTICLE XIII
SEC. 1. 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.
SEC. 2. Congress shall have power to enforce this article by appropriate legislation.
The effect of such amendment will be to prohibit slavery in these United States, and be a practical application of that self-evident truth, “that all men are created equal; that they are endowed by their Creator with certain unalienable rights: that among these, are life, liberty, and the pursuit of happiness.”
This bill originated in the Senate during the last session of Congress, in obedience to what was believed to be the general sentiment of the American people, and passed by the necessary vote of two thirds of the members of that body. It was then sent to this House for concurrence, and after considerable discussion was defeated by a vote of 95 in the affirmative and 66 in the negative, (twenty-one members not voting,) being twelve votes less than necessary to make the two-thirds vote required by the Constitution. …. [snip]
Congress cannot amend the Constitution, and hence, if this bill should pass, the question will then simply be referred to the people of the several States for their action. In other words, we, by our action here, simply authorize the people to determine for themselves whether they will ratify or reject the proposed amendment. To me it seems that on such a proposition there should not be a dissenting voice. … [snip]
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[Mr. Scofield supported the 13th Amendment]
Mr. SCOFIELD. Mr. Speaker, I rise to make some observations in reply to the very remarkable criticism pronounced by the gentleman from New York [Mr. BROOKS[ on the anti-slavery portion of the President’s message.
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If the war should end now without a division of the Union, what would be the status of slavery? … Congress has abolished slavery in the District of Columbia, and prohibited it in all the Territories; …. In all the remainder of the States the slaves were liberated by the President’s proclamation; but that instrument, it is said, is too just to be legal. …. [snip]
The President, in obedience to the advice of the people and the dictates of his own kind heart and unimpassioned judgment, has recommended that we should submit this amendment to the action of the States. Why should it not be done?
Because, says the gentleman from New York, [Mr. BROOKS,] we should not amend the Constitution in the midst of civil war. Why, then, did he, in the close of his speech, propose to amend it through the medium of a convention, so as to give slavery an increased representation in this House and a protraction of its mischievous life, and, further, to amend, in pursuit of some State sovereignty vagary, so as to sink the Government of the United States into a mere agency for the collection of customs? Do not take the medicine now, says the tender nurse to the sick man, wait till you are well and able to bear it. If the gentleman will examine his own heart he will probably find that it is the character of the amendment that is offensive to him, and not its untimely presentation. [snip]
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HOUSE OF REPRESENTATIVES
January 7, 1865
ABOLITION OF SLAVERY
The SPEAKER. The next business in order is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Ohio [Mr. BLISS] is entitled to the floor.
[Mr. Bliss opposed the 13th Amendment]
Mr. BLISS. Mr. Speaker, I deem it my duty to the people whom I represent as a member of this body, to utter in their name some words of protestation against the immolation of the Constitution of the United States which is threatened by the representatives of the party which holds the majority of the House. In that sacred instrument is contained the life-blood of our Government, and in its fate is involved the highest mortal interest of the American people. [snip]
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The SPEAKER. The question is on the motion to reconsider the vote by which the House rejected the joint resolution submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States. [snip]
[Mr. Rogers opposed the 13th Amendment]
Mr. ROGERS. Mr. Speaker, it is the first time in the history of this country, until the present party came into power, when any body of men claimed that in the Constitution of the United States, and by virtue of the laws of the several States before they formed it, each State had no right to legislate and control its own domestic institutions according to its own judgment exclusively. In this question there is not only involved at this time the propriety of interfering with the Constitution of the country, but behind that a grave and serious question, in my judgment,
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arises, whether there is any power in the confederated Government of this country by an act of legislation and confirmation of the Legislatures of three quarters of the States to interfere with the domain of any State whatever, or its right to control the institution of slavery or any other domestic institution, which was not delegated to the General Government but reserved to the States exclusively.
I say, sir that all the parties of the country, not only the Democratic party, but the old Whig party, and the Republican party, until lately, always claimed and held that this institution of slavery was peculiarly under the province of the individual States, and that when the States entered into this confederated Government the powers that they did not delegate to that Government were expressly reserved to the States; that no power not delegated to the General Government could by the force of any amendment to the Constitution be taken away from the States, because they had only confederated themselves together for the purpose laid down in the organic act, and because it would be an act of the creature not given by its creator.
If I understand the object of this Government, it was to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; and I hold now, as the law of the land and as the well-settled principle laid down by the authors of the organic act and by all the great men who have written on the subject, that the institution of slavery belongs peculiarly and solely to the States, and that no thirty-three States, or any other number, by combining together have the lawful right to deprive a single State of an institution which was not delegated to the General Government, and which was reserved by the people when they entered into the confederation of States and formed the American Union. If it be true that the States where slavery existed never delegated the right to interfere with that institution, what right has the Congress of the United States or the people of other States, through their Legislatures, to interfere with slavery in another State, which institution is peculiarly and solely the creature of the State—a right which was never delegated to the General Government, and to interfere with which has always been held by all parties we had no right? Solely and alone it has been always held that the institution belonged exclusively to the jurisdiction of the States.
If Congress will take the pains to look over the platforms of the different political parties of the country they will find that for years and years they have iterated and reiterated the truth that the right of each State to control this domestic institution according to its own judgment exclusively was essential to the balance of power upon which our fabric of government depends. If you look at the platform adopted by the Republican convention at Chicago, which nominated Abraham Lincoln in 1860, you will find that it lays down that the right to control this domestic institution rests exclusively with the States, and that that right is essential to the perfection and endurance of our political institutions.
Now, if it was a principle of this Government, well recognized, that it was a right reserved to the States to legislate upon this subject according to their own internal will, it is a right which still exists. Because this country has been involved in a war; because a civil revolution has rocked the country from one end to the other; because it is now a question who is responsible for the war, that does not change a lawful principle if that principle existed before hostilities commenced; and we are bound now by the same rule, controlled by the same law and indubitable principle which never dies or passes away, and it is reserved to the people of the respective States to-day and hereafter to control and do as they see fit with that which was never delegated to the General Government, but expressly reserved to the respective States.
This institution of slavery is one which has existed time out of mind, which existed before our forefathers landed upon American soil, which is an institution imported from Great Britain and other countries, one in the progress of which large sums of money had been made, which had become a part and a feature of the government of the different States, and of the colonies of this country before the Declaration of American Independence and the adoption of the Constitution of the United States. No one will deny that before the formation of the Constitution, and at the time of the Declaration of Independence, the institution of slavery was exclusively under the jurisdiction and control of the organic law of the State in which it existed. If that is so, is there anything to be found in the organic law which shows that when those nine States first ratified the Constitution they delegated to the General Government any right whatever with regard to this institution? On the contrary, did they not, by the very language of the Constitution, reserve all powers not delegated to the General Government? And if they did reserve it to the people of the respective States, if it was an institution of the States, I ask any men how it is possible, by any amendment of the Constitution, for the General Government to become possessed of the right to legislate upon and control an institution the power over which was never delegated by the States when they entered into and framed the Constitution of this country?
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You will find by looking at the organic law that those amendments which are provided for by it mean amendments which shall be germane to the organic law itself. The framers of it, the men who assembled in the old Halls of the Confederation in 1787, after having been purified by the glories and the triumphs of the Revolution, intended that amendments only should be made which were germane to the organic act, and which were within the purview of the powers which were delegated to the General Government. There is nothing in the Constitution which recognizes for one moment that the whole structure and framework of the Government may be amended or altered in reference to matters reserved to the States, matters never delegated to the General Government.
If the position in reference to the amendment of the Constitution taken by gentlemen on the other side of the House be true, then the other relations of the States, the marital rights, the rights of husband and wife, of parent and child, of master and servants; the right of licensing hotels, the right of making private contracts, the rights of courts, the manner in which they shall obtain evidence, the allowance of parties to be witnesses, the jurisdiction and powers of State courts, the rights of suffrage for State officers, constitutions of States and all the rights which now belong to the States, upon the same principle may be interfered with, abolished, and annulled. Those rights, like those connected with the institution of slavery, belong solely and exclusively to the jurisdiction of the States, and were never delegated to the General Government. Does any man here believe that Congress, by a constitutional amendment, can so far alter the organic law of the land as to interfere with marital relations in the States; interfere with the manner in which evidence shall be given; take away the constitutional provision that a man shall enjoy property by descent in certain ways defined by the organic law of a State and blot all States laws out of existence? I ask, do gentlemen here believe that by constitutional amendment the General Government would have a right to do away with all those express and reserved rights of the States, and which were never delegated to that General Government, and never constituted a part of the jurisdiction of the Congress of the United States or of the people, except that the people of each State could act and legislate upon those individual concerns according to their own judgment exclusively, and the dictates of their own consciences?
You must remember that it is proposed by this amendment that the States in which slavery exists shall have no vote, because they are not in a position to exercise the right to vote upon this question. But it is proposed that three fourths o f the States—States wherein slavery does not exist; States which have no interest in that species of property—shall get together, and by the action of three fourths of them deprive of their property the citizens of the loyal border States; the men who have braved this current of war, and shown the proudest and purest patriotism of any class of men on the face of the earth; the men who have invested their money in slave property; the men whose fathers fought side by side with the men of New York and New Jersey on the battlefields of the country to drive back the invaders of England. Shall it be said that under a republican Government, in a country supposed to be one of liberty, that we can trample on the rights of those men by taking their property without any compensation whatever, and robbing them of that which by the Constitution of the country is guarantied to them, and which by the blood of their fathers who fought against the wickedness and tyranny of England was handed down to them to be perpetuated to them and their children and children’s children unimpaired forever?
Does any man here believe that the members of the Convention that Washington and those men who assembled in Philadelphia to frame this sacred instrument, the representatives of the northern and southern States, who went there to carry out the will of their masters, the people, intended that when they reserved rights to the States and did not delegate them to the General Government, that three fourths of the States, without the consent of the other one fourth, could, by combining together under the form of an amendment, deprive the other States of these privileges which they wrested from King George, for which they fought, and which were guarantied to them by the organic laws of their own States, and protected and defended in particular respects, to which I shall refer hereafter, by the organic law of the Union? I want to read one paragraph from the platform upon which the party which is represented upon the other side of the House established themselves at Chicago upon this question. They then held the doctrine which we now and ever have held. It was left for this revolutionary Republican party to proclaim a doctrine so destructive to the great interests of the citizens of this country, and the fundamental law of the land.
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The third paragraph of the Republican platform reads that—
“The right of each State to legislate and control its own domestic institutions according to its own judgment exclusively is essential to that balance of power on which the perfection and endurance of our political fabric depend.”
Now, is that true? Is the right of each State to legislate and control its own domestic institutions according to its own judgment exclusively essential to that balance of power upon which the perfection and endurance of our Republic depend? Was it true in 1860 that the right of each State to legislate and control its institutions in that way was necessary to the endurance of this political fabric? Why did the Republican party establish that platform? Why was Mr. Lincoln nominated upon that platform and go to the American people in 1860 and ask them to support him? Why, it was because he knew, as the old Whig and Democratic parties and all parties had known, that no amendment to the Constitution by the interference of Congress, or of two thirds, or nine tenths, or nineteen twentieths of the States could take away institutions existing in the States, the control over which had never been delegated to the General Government, and to interfere with which the Federal Government can find no warrant in the organic law. I do submit that in time of peace, in times when passion did not hold sway, but reason exercised its functions, it would be difficult to find a man in this country who would hold to the doctrine that, under the terms of the organic law in the contemplation of those who made it, any number of States have a right to take away the legislative, judicial, or domestic functions of any other States unless those functions were delegated to the General Government.
But, sir, the gentleman from Ohio [Mr. ASHLEY] says that he does not believe any constitution can legalize the enslavement of man. I will quote his language:
“I do not believe any Government, democratic or despotic, can rightfully make a single slave, and that which a Government cannot rightfully do it cannot rightfully or legally authorize or even permit its subjects to do. I do not believe that there can be legally such a thing as property in man.”
Let us examine the organic law and the state of society in this country before the Revolution and formation of the Constitution, and I think I can plainly show that slaver were property. It is not our duty to settle the justice or injustice, the policy or impolicy, of slavery. It will not be disputed that before the adoption of the organic law every State had a right to confer
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on whom it pleased the rights and privileges of citizens, and it cannot be successfully denied that property in the African race was then sustained by law, and it will not be denied by any lawyer that the several States never surrendered these rights and privileges by adopting the Constitution of the United States. Will any man then pretend that the provisions of the organic act in relation to the personal rights to which a citizen of the State was entitled included the negro African race at that time here, or who should afterward be imported? Every person who was a citizen and recognized as such in the several States became also a citizen of the Union, but none other. It was framed by them and for them and their posterity, but for no one else; and the personal rights guarantied to citizens of the Union were intended to embrace those only who were then members of States according to the provisions of the organic law and the doctrines on which it was founded.
Who were citizens of the several States under the governments of the thirteen colonies when they separated from Great Britain and took their places as an independent nation? Who were the citizens whose liberties had been violated by the mother country, and who declared their independence and determined to defend their rights by force of arms? Neither the persons who had been imported as slaves nor their descendants, whether they had then become free or not, were then included in the general words of the Declaration of Independence or acknowledged as a part of the people. They had for more than a century before been regarded as an inferior race and not fit to associate with whites, socially or politically; that the negro might justly and lawfully be reduced to slavery for the benefit of the white race; he was bought and sold like any other article of merchandise. It was an established axiom in morals and politics which no one disputed, and which was not considered open to dispute; and no nation more uniformly acted upon it than the English Government. They seized them on the coast of Africa and sold and held them for their own use, and were more engaged in this commerce than any other nation in the world; and the opinion and practice of England naturally impressed themselves upon the American colonies, and every one of the thirteen colonies bought and sold them as such. Not one of that race had then migrated to this country voluntarily, but had been brought here as merchandise; and slavery existed in every State save one at the adoption of the Constitution, at which time there was no Government of the United States in existence with special, enumerated, and limited powers. Not only did slavery lawfully exist before the formation of the organic law, but it is expressly recognized by the Constitution. Representatives and direct taxes are in part apportioned by the number of slaves:
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“Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.” — Article 1, section 2.
“The migration or Importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” — Article 1, section 9.
“No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” — Article 4, section 2.
Now, it does seem to me that the decision of the Supreme Court of the United States in the celebrated Dred Scott case, although not upon this particular point, yet goes clearly to show that there is no authority, by amending the Constitution of the country, to interfere with rights of the States which never were delegated to the General Government. I will read a part of the judgment of the court in the case, as well to show that slavery cannot be abolished in this way, as for the purpose of showing that it is a well-settled principle of law, which can hardly be denied by any living man, that slaves are held as goods and chattels, and can be bought and sold like any other property.
But it is proclaimed that because the Declaration of Independence declares that all men are born equal, having certain inalienable rights, among which are life, liberty, and the pursuit of happiness, it never was intended that slavery should exist lawfully. I presume that no right-minded man will pretend that the framers of the Declaration of Independence, when they said that all men were born equal and had certain inalienable rights, intended to include slaves, because slaves at that time never had held any political rights. Slaves had been held here long before the formation of the Constitution; the institution had been transmitted by England and other European nations to the colonies here; slaves were treated here as property liable to be bought and sold, and not as citizens within the meaning of the Declaration of Independence or of the original laws of the country. I will now read from the Dred Scott decision, 19 Howard, page 410:
[→ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393]
“It then proceeds to say: 'We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.'
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
“Yet the men who framed this declaration were great men-high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.
“This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. “
* * * * * * * * * *
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“The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under territorial government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this—if it is beyond the powers conferred on the Federal Government-it will be admitted, we presume, that it could not authorize a territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution.
“It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument.
“But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.
“Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
“Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.”
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I take the ground, sir, that is taken in this decision, that it is beyond the power of the Federal Government, not only beyond the power of those who may sit here as the Representatives of the people to act and legislate for them, but that it is beyond the power of the constitutional authorities of America, of the people in their sovereign capacity, by any amendment of the Constitution to interfere with an institution that belongs solely and exclusively to the jurisdiction of an individual State, without the consent of that State. And I ask what safety there would be in a Republic like this if three fourths of the States could deprive the other fourth of those rights, jurisdiction over which was not delegated by the States to the General Government? Would not the whole framework of the Government be thereby overthrown? And would not despotism and tyranny, in times of war and excitement, prevail over the land in bold and undisturbed impunity? Would it not be a recognition of the authority of three fourths of the States to trample upon those rights and liberties transmitted to us by our noble ancestors who fought side by side together, and handed them down to you and me to protect our lives and property from the influences of despotism and tyranny?
I submit that the proposition on its very face is too absurd to deserve consideration in a republican Government. Can it be that those intelligent and patriotic men who established the independence of the Government, and who battled for their liberties till the soil of our country was marked with their blood from hill to hill, and from plain to plain, intended that the life of freedom breathed into their nostrils might be crushed out by the tyranny or partisan passions of Congress, or of three fourths of the States, and that a minority of the States might be treated as conquered provinces? It is a doctrine which would reduce American freemen to the grade of Russian serfs.
There are lawyers on the other side of the House who know the general rules governing the construction of Statutes, contracts, and constitutions. They know that we must construe the Constitution according to the reason and the spirit of it. We must consider what animated the minds of the people and of the delegates who framed it. What were the object and intention of the framers of it? Was it their intention that after going through that vast scene of blood, after such an exhibition of patriotism as the world had never seen, those rights for which they had fought and won, to protect their liberties, their properties, and their households, might be torn from their descendants by the vote of three fourths of the States, against the plain principles for which they fought? Did they ever intend that a two-third vote in Congress, and three fourths of the States, could take from the fourth of the States certain institutions which were guarantied to them as much as my property was guarantied to me, or our fathers or grandfathers’ property guarantied to them by the success of the Revolution, and by the organic law of the land.
It is dangerous, in the present state of the country, to undertake to trample on the precious landmarks of the Constitution. We have been taught to believe that it is the barrier by which the tides of despotism and tyranny are to be kept back. It is only by upholding that barrier that
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our citizens can escape the evils of that unconstitutional desolation of the country, the evils of this terrible unprovoked war, for which a portion of the people of the North are more accountable than the people of the South. In these times of excitement, when private rights are so much trampled on, it is dangerous to trifle with the sacred landmarks which the wisdom of Washington, of Jefferson, and of the great statesmen and heroes of the Revolution had established in our land as principles to be handed down to us, and to secure ourselves and posterity from the wickedness of unscrupulous tyrants.
But, says the gentleman from Ohio, slavery is the cause of the war. Sir, slavery is not the cause of the war any more than were seamen the cause of the war of 1812. The war of 1812 with Great Britain was because she interfered with our seamen; and the same argument might have been made then that is made now in regard to slavery—that seamen were the cause of the war, and that if we had not had seamen we would not have had war. I tell you, sir, that it was the interference with the rights of American seamen on the part of Great Britain that caused the war. It was not because there were seamen, but because the rights which Government of this country guarantied to and threw round them were invaded by Great Britain, and they were taken from the decks of our ships, the soil of America, and forced into the service of a nation hostile to us. Great Britain, by her acts, caused that war.
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The history of our country will, in pages red with blood, record that this war was caused by the acts of the abolitionists of the North; of those men who interfered with the institutions of the South. Those men are responsible for all this bloodshed which is now wetting American soil, and causing the earth to groan beneath the deadly weight of the commingled bones of our brethren. I charge here to-day that is interference with slavery has alone severed our glorious Union; blighted our national prosperity; wrecked our civil and political liberty; studded our country with the graves of noble soldiers; caused a hundred fields to weep with brothers’ blood; and the screams of wives and mothers to emanate from domestic circles at the ghastly appearance of a tyrant’s assassin dragging from the death-bed of a wife or the grave of a child the husband and father, to be incarcerated in a dungeon or cell. I implore you, in the name of truth, do not charge upon slavery the cause of this war. By the history of this country I charge that such men as Wendell Phillips, Horace Greeley, Lloyd Garrison, and those in power, have been the promoters of this war, and the blood of this nation rests upon them. Thank God, I am free from it.
And there is another consideration which I would urge—one of still greater moment—one which stirs the heart of this nation, and which I trust will yet bring back the glory of the American people. I urge that at this time it is not patriotic to urge such a measure as this. It tends to distract the country; it embitters all the elements of social life; it separates the ties of religious brotherhood, and weakens those great principles for which this Government was founded, and for which the blood of the people both of the North and the South was so freely poured out.
I see before me patriotic men from the State of Kentucky; the State which has stood between the ire of the North and the ire of the South; a State that has been true to the Constitution; whose sons here represent the principles ever held by that great statesman Henry Clay; a State that stands by the landmarks of the organic law of the land as the only palladium of our civil liberty. In the name of God, is it justice, is it magnanimity, is it in accordance with that injunction of Scripture, “Do unto others as ye would have others do unto you,” to strip from those men the valuable rights of property which were considered sacred until this civil war raised its hydra head? Is it just and right to take away from those men now, after they have for three years and a half interposed their State for the protection of our firesides and our families, to take away their property without any compensation? By what right do we propose to take away their property without paying for it? The Constitution says that private property shall not be taken for public use without just compensation. Now, if we regard at all the rights guarantied by the Constitution, by what right do we propose to take away the property of the loyal men of Delaware, Kentucky, and other States, without just compensation?
Nearly every man, if not all of them, in the Convention who framed the Constitution of the United States were slaveholders; that the Constitution of the United States not only recognizes the right of the States to hold this institution, not only allowed them to continue to hold it and not give it up to the General Government, but that Convention, comprising these wise and patriotic statesmen, expressly fortified and sustained it. They not only declared that slavery existed, but that the importation of slaves should not be interfered with until a time named in the Constitution, and they put a provision in the Constitution that no amendment should be made to it which should interfere in any manner with the right to import slaves from foreign countries until the year 1808, and out of which trade Massachusetts, New Hampshire, New York, and other States made money until that year. Why will you regard other prohibitions contained in the Constitution, if you are to pay no regard to those prohibitions and guarantees which relate to this institution?
The power to interfere with the importation of slaves into this country was delegated; but it was provided that it should not be exercised until the year 1808. The Constitution can be amended in that respect, because by the organic law the power to make such an amendment after the year 1808 was expressly granted; it was made one of the ligaments which interwove the different parts of the Constitution together. Because that was made a part of the organic law of the land, and for that reason alone, the Federal Government, by two thirds of Congress and three fourths of the State Legislatures, representing the people who made the Constitution, has the right to make such an amendment. Why? Because that is an amendment contemplated by the organic act; it is an amendment within the purview of the powers delegated to the General Government; it is an amendment in relation to a question the control of which is not reserved to the States; it is an amendment which the General Government was expressly authorized to make. It was provided by the Constitution that until the year 1808 the importation of slaves should not be interfered with by the General Government, but that after that date Congress might make any law they deemed proper in regard to that matter.
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No man, though he search till the end of time, can show me an instance in which an amendment has been allowed which did not come within the plain letter or the spirit of the Constitution. Examine, if you choose, the amendments which were adopted after the Constitution had been ratified, and the Government established. Those amendments, which were adopted by the people because they apprehended that their personal rights, their life, liberty, or property which they had fought to maintain during the mighty strife of the Revolution might be invaded, were germane to the Constitution itself. You will find none but such as came within the powers delegated to the General Government, either by the spirit or the letter of the Constitution. For, sir, the Constitution is to be interpreted, not only by its letter, but, like all other laws, by its spirit, and the object had in view by its framers when they made it, which object was to preserve the rights of themselves and their posterity for all time to come.
Another evidence that it never was intended that three fourths of the States should have the power, through the process of amendments, to interfere with the domestic policy and internal concerns of the other States, is found in the fact that no such authority is in the organic law. Every gentleman here knows perfectly well that in the Convention by which the Constitution was framed attempts were made to give the General Government power to interfere with the institution of slavery. But all propositions of that kind were rejected. Sir, the Constitution would never have been framed, the wise principles of our fathers would never have been embodied in the General Government, the flag of this country would never have waved in triumph from the dome of this Capitol over this degenerate race but for the fact that our fathers saw, when such propositions to interfere with the domestic institutions of the States were voted down, that the rights for which they had fought, and which had been embodied in the organic law of the States, should never be trampled upon by the tyranny or despotism of fanatical power. The right to maintain the institution of slavery was reserved to the respective States. If you examine the Constitution to arrive at the meaning of its framers, you will find that by that organic law certain rights were expressly prohibited to the States—among others, the right to coin money, make treaties, grant letters of marque and reprisal, &c.
Why were those prohibitions expressly inserted, if it was believed that powers were delegated to the General Government when no express language to that effect was used? Do I make myself understood? I ask, why did the Convention which framed the Constitution declare in that instrument that certain powers should not be exercised by the States? It was because those powers were intended to be exclusively delegated to the General Government; because it was the design to endow that Government with the exclusive control of those subjects, and because it was provided in another part of that instrument that “the powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively or to the people.” Thus was exhibited the object of the framers of the Constitution; that they intended to guard State lines; that they were not willing that their children, to whom this Government should descend, should be deprived of the benefit of those immutable principles of American liberty for the defense of which they had resisted and defied the power of Great Britain. Guided by an almost superhuman foresight, those who framed the Constitution stamped indelibly the landmarks for our guidance; and among the most vital principles which they sought to preserve was the right of the respective States to the control of their own domestic institutions. If slavery can be abolished by an amendment of the organic law in States where it exists, without their consent, then by the same process can slavery be established in States where it does not exist, and against their consent, if three quarters of the States so decide. Was a doctrine so monstrous ever contemplated by the illustrious dead who framed the organic law? Yet such was the case, if one fourth of the States can be deprived of their slave property by the action of the other three fourths.
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Why, gentlemen, where are we to land if such a constitutional amendment as is now proposed be lawful? Look at the declaration of the platform adopted at Baltimore, the platform upon which Mr. Lincoln received the suffrages of a majority of the American people. That platform declares that slavery is the cause of war, and that the preservation of the national life demands its complete extermination; and on that ground it approves, as coming within the powers of the Constitution, the proclamation of Mr. Lincoln abolishing slavery. If Mr. Lincoln, by the spirit and meaning of the Constitution, was justified in issuing that proclamation, and if it was so far valid as to confiscate property in slaves, what is the necessity for this amendment to the Constitution? If that proclamation abolishing slavery is the law of the land, as declared by a large portion of the people through their representatives at Baltimore, when they emphatically proclaimed to the world, and asked the suffrages of the American people upon the announcement, that Mr. Lincoln’s proclamation was a death-blow to the institution of slavery and was warranted by the Constitution, why ask this legislation? Ah, gentlemen, it shows to you and it shows to me the danger of all such interferences. It shows that in the same way you may by an amendment to the Constitution declare the right of the trial by jury abolished; that the right of freedom from unreasonable searches shall no longer remain; and that that article which declares that no man shall be deprived of his life, liberty, and property without due process of law, may also be taken away. In like way by an amendment to the Constitution you may establish an oligarchy, a despotism, or a monarchy upon the ruins of this Republic.
I have no doubt I will be told that this is rebellious talk, and that it tends to aid and comfort the rebels. I avow here that it is my conviction we have more to fear that our rights and liberties
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and property will be taken away by the despotic usurpations of the abolition party than from the acts of Jeff. Davis or the confederate government, and I am here to-day to enter my protest against the high-handed acts of the Administration. Although I have not heretofore taken up much time of the House by the discussion of these topics, still I have not ceased to enter my protest against those acts to which I have referred. I protest against them as a citizen of the United States, and as a citizen of the gallant State of New Jersey, which has clung to the Constitution of the United States as the ligament of the Union, a State whose brave sons in thousands have gone from her hills and her valleys and laid down their lives a willing sacrifice for their country; a State which has always been true to the Constitution and the Union, and which, I thank God, has never yet cast her vote in favor of the wild fanaticism of abolition which has run riot all over this land.
I have already shown that the organic law provides that taxation and representation of the country shall in part depend upon the number of slaves. In other words, it is declared that slaves shall constitute a part of the population which is to be represented in Congress. If this amendment be passed, that portion of the Constitution will still remain. If I understand correctly, there is no intention on the part of this Congress to interfere with that portion of the Constitution. The Constitution, then, will provide that taxation and representation shall be according to a certain number of these slaves. You make no provision for making these emancipated slaves citizens of the United States, or giving them any power in the sovereignty of a State. You do not change their political condition. How then can they be represented as provided by the Constitution? What a strange anomaly shall we then have—the Constitution providing that they shall be represented when they are not really represented! If this be passed I tell you that it will be the last act in the dissolution of the Union, for the southern people can never be expected to come back and with bended knees bow down to the imperial dignity of this Administration as serfs and slaves.
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I want the Union restored. I want the Union as it was made for us by our fathers. I want the Union which was made by the patriots, the statesmen, the brave men of the times that tried men’s souls. I want the Union which protects the liberties of white men and women. I want the Union that has given us peace and prosperity and grandeur which as never before belonged to any nation in the world. But I tell you that we can only have such a Union by adhering to the immutable rights of all the States. The Union is the only condition of peace; we ask no more. If you love the Union as much as I do, if you want the Union restored, let it be known that it shall be restored with all the rights and privileges that came down to us from our ancestors. I repeat what General McClellan said, “The Union is the one condition of peace; we ask no more.” We want to preserve the blood of this nation. We love our country, and we cannot afford to make war upon the people of one section for the purpose of carrying out any frenzy or false philanthropy of those who have undertaken to recognize that doctrine.
[Mr. Davis, who supported the 13th Amendment, yielded to Mr. Pruyn who opposed it.]
Mr. DAVIS, of New York obtained the floor, but yielded to
Mr. PRUYN. Who said: I wish simply to make a statement to the House with reference to this question, without entering into a discussion of its merits.
When this subject came up at the last session, I stated my views somewhat at length in regard to it. My position then was somewhat at length in regard to it. My position then was substantially that under the power to amend the Constitution we could not interfere with or take away the reserved rights of the States. I do not now propose to discuss the subject of slavery in any way; I did not then. I look upon the question before us simply as one of power, and it is immaterial in this view whether it relates to slavery, to the marital relation, to the laws of descent[*], or to any other of the subjects over which the State governments have entire control. I then remarked that if gentlemen would look at the debates of the State conventions which passed upon the adoption of the Constitution of the United States, they would clearly see that that instrument would never have been ratified had it been supposed by the States that under the power to amend their reserved rights might one by one be swept away. This is the first time in our history in which an attempt of this kind has been made, and should it be successful it will, in my judgment, be an alarming invasion of the principles of the Constitution.
I have only to say in addition, that further investigation has confirmed the views I before expressed, and I cannot therefore vote in favor of this proposition, believing the subject to be one not legitimately within our jurisdiction. If it be asked what then can be done, I answer, leave the matter with the States, where it belongs, or obtain a supplementary article to the Constitution, not as an amendment, but as the grant of a new power based on the consent of all the States, as the Constitution itself is.
[My comment about “the laws of descent”]
As John Jay might might have articulated if asked about the words “laws” and “decent” as used by Rep. Pruyn, while they are primarily a reference to natural law lineage, descent is another word for devolve — to pass on citizen status — which, under Article II authority, can only devolve — be passed on — from U. S. citizen married parents with only singular U. S. citizenship to “natural born Citizen” children; and, for Article II eligibility to be president, with the word “laws” implying citizenship being passed to children by birth alone, not by Article I naturalization authority, and definitely NOT naturalization authority by Article III Supreme Court fiat (‘because we said so’) opinion. The 1898 U. S. Supreme Court made an Article III constitutional error, an error which the Article I U. S. Congress or the Legislatures of the ‘several States’ have never tried to correct with an Article V amendment (but one or the other Article V authority should do so now in the 2000s).
The Supreme Court never has, does not now, and never will have constitutional authority to naturalize, ie., to ‘grant’ U. S. citizenship to alien children born on U. S. soil to parents when both parents are aliens, whether one reproducer (the unmarried female alien who does not want to or is not able to identify the male) or both reproducers are legal or illegal visitors or immigrants. The Congress and the Legislatures of the ‘several states’ with an Article V amendment, or the Court by revisiting and overturning the 1898 Wong Kim Ark decision, must stop ‘birthright citizenship’ and ‘anchor baby’ migration immediately. [End of comment]
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[Mr. Davis supported the 13th Amendment]
Mr. DAVIS, of New York. Mr. Speaker, I did not intend to trespass upon the time of this House during the discussion of this bill, but I have heard from the lips of two or three gentlemen whose views have been expressed here sentiments which are not in accordance with my own, and I think it due to myself and to my constituents that I should place upon record the sentiments which will control my action and determine my vote. Having lived more that half a century, I have never, until this morning understood to its full and perfect extent the definition of civil liberty. I find, by the commentary of the gentleman from New Jersey, [Mr. ROGERS,] that civil liberty consists in the right of one people to enslave another people to whom nature has given equal rights of freedom. Sir, civil liberty, in my judgment, has no such interpretations, no such meaning; and no man who regards himself as made in the image of his Maker, solely responsible to his Maker for his thoughts actions, can recognize a sentiment which lowers him in his own estimation, in the estimation of Heaven, and before the face of the whole world. Nature made all men free, and entitled them to equal rights before the law; and this Government of ours must stand upon this principle, which, sooner or later, will be recognized throughout the civilized world.
But we are told, while asserting this principle of legal or civil equality, that we are violating the fundamental principles of the Constitution under which we live, by the measure now under consideration. I can see no such violation, and even if there were a technical violence done to the letter of the Constitution I should hold it defensible for the purpose of preserving the life and the power of the Republic which our fathers framed for the perpetuation of civil liberty.
As I understand it, our Constitution was framed and the Government organized for the purpose of perpetuating the blessings of liberty to all in present and in future times. That Constitution provided the mode of its amendment, and the power of amendment was restricted in two points alone. The one was in reference to the importation of “persons” or slaves, before the year 1808; and the other was in restriction of the power of the people to reduce the senatorial representation of any State without its consent; all else was left to the future determination and judgment of the people of the United States, as a united, aggregate, and sovereign nation.
What powers, sir, were in the purview of those who framed the Constitution and of those by whose votes it was adopted? If gentlemen will rise from the narrow and restricted interpretation of the texts to the magnificence of the exordium by which our fathers in that Constitution announced the formation of a republican Government founded on the principles of equality and justice, they will find that the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, ordained and established our Constitution and the Government of the Union. These were the great and cardinal purposes for which the Government was framed. Liberty, that civil and religious liberty which was so clearly and beautifully defined in the Declaration of Independence, and which, in the language of that Declaration, had been proclaimed to the world as the inalienable inheritance of every man, gave vitality to the Constitution and the Government which by it was called into life. The unfortunate restriction which then existed in our land upon universal freedom, in the form of African slavery, was regarded as temporary in its character and as tolerable only by reason of the exigencies of the hour. Our fathers predicted that the time would soon come when the interests of the country would demand that slavery should pass away. Jefferson predicted it, Washington prayed for it and all the great men of that great age believed that the stain of African slavery would soon cease from the land.
But, sir, as years rolled on, slavery, once regarded as a crime and a curse, became to the South a profitable institution. The acquisition of new territories adapted to slave labor, and the increased value of cotton arising from the invention of Whitney, have rendered it for the interest of the South to maintain slave labor which capital might own and which avarice might control. Interest, individual interest, bound up in the “almighty dollar,” has lent its support to an institution which in its origin was forced upon an unwilling people by the imperial power and cupidity of England; and upon that institution has grown up a caste, an aristocracy, based upon the ownership of labor, of sinews, bones, and blood entirely inconsistent with republican government and republican institutions. It is this power thus grafted upon and maintained by slavery which has undertaken to overthrow this Government.
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The honorable gentleman from New Jersey [Mr. ROGERS] has just told us that the interference of northern men with slavery has been the cause of the existing war. History repudiates and denies the declaration. This war sprang from the aristocracy of the South in an effort to maintain and to extend a system of servitude on which alone that aristocracy could be perpetuated. For the last thirty years this sentiment has been publicly and repeatedly proclaimed by leading southern statesmen, and their most influential legislators long since declared that in view of the vast increase of wealth and population in the free States, culminating, as finally it would, in political ascendency, the preservation of aristocracy and of slavery which supported it dictated a dissolution of the ties which bound the southern States to the Federal Union.
This war was conceived more than thirty years ago, and John C. Calhoun was present at its conception; and yet we are told to-day that this war was sprung upon us by the action of the northern abolitionists, and by men interfering with the rights of the southern States. I tell the honorable gentleman from New Jersey that this Government as such never laid its hand upon the institution of slavery. On the other hand, it has yielded, and the people of the North have yielded year after year, and time after time, to the demands of this slave power in order to promote peace throughout our borders. I could go on for hours enumerating the concessions which have been made to this power of slavery; and yet the South has never been satisfied. Were we of the North responsible for this war? No, sir; the South commenced it without cause, and commenced it while they had control of this Government from its head to its foot; while every department was in their power, and while they, through their public men, admitted that it was beyond the power of this Government for the next four years to interfere with the institution of slavery.
Sir, this war was not commenced by the South for the purpose of protecting the rights guarantied to them by the Constitution. It was prosecuted for the purpose of taking away rights secured by that Constitution to the people of the whole country. And when they attempted to overthrow that beneficent Government of our fathers, I, for one, who had for twenty-five years, in every place where my voice could be raised, defended, so far as I could, what I regarded as the constitutional rights of our southern brethren; I, who had denounced the extreme northern sentiment on this subject, made up my mind that if the South could voluntarily make war on this Government for their institutions and to overthrow ours, it was my duty, as an American citizen, to
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do all in my power to protect our Government, even at the expense of slavery or of southern aristocracy. Sir, slavery should find no protection and no apology among gentlemen who represent the free States of the North.
Slavery has wrought too much of evil; it has shed too much of innocent blood; it has sent too many of our citizens, our brothers, our relatives, and friends to inhospitable graves; it has held it carnival of blood and death on too many battlefields for gentlemen from the free North to stand here as its advocates and defenders. And yet what I would do would be done in no spirit of malignity, in no spirit of vindictiveness, in no spirit of unkindness. I would say that slavery should die because it is irreconcilable and incompatible with freedom; because it has undertaken to destroy our Government, to subvert our institutions, and to cause desolation and suffering and death throughout the length and breadth of the land.
I am no advocate for the exercise of tyrannic and despotic power. I have no feeling of bitterness toward the misguided and deluded people of the South. I love the Union too well for that. It is for the Union and the Union alone that I plead to-day. For that Union I am ready to give up every resentment, to forget every sacrifice that the North has made, and to ask the people of the South to come back into the Union with those principles of freedom which shall make and which alone can make the Union perpetual. I have known from the reading of history that the exercise of despotic power is always wrong and always disastrous. I would not, then, exercise that power. We have seen it exercised abroad for the purpose of restricting liberty of opinion. We have seen it exercised in Holland where, for more than seventy-five years, the despotism of Church and State attempted to control the minds of men. And yet, through those years of disaster and suffering, the people of Holland adhered to their religious faith and finally maintained the independence of their religious sentiments. We saw it in Spain where the despotism of Charles V and Philip II and III drove from the borders of Andalusia five hundred thousand Moors to the coast of Barbary. We have seen it in England, where, from generation to generation, religious and State despotism attempted to interfere with the rights, civil and religious, of British subjects. And yet, sir, we have never found that the exercise of despotic and arbitrary power produced any good result to the people.
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No, sir, we must not proceed in the exercise of arbitrary and despotic power. It is with love, kindness, conciliation, exerted in every channel where love, kindness, and conciliation may be exhibited, that we should proceed. In every way where we can consistently with our duty, consistently with the existence and protection of the Government, show kindness to the South, we are bound to do it for the sake of the Union. I for one, am willing to wipe out the record of the past, bloody and painful as it is, and to show that we can take back our erring and repentant enemies into the Union, with all the rights which we, as northern men, possess under the Constitution of the country, and with no other. That, sir in the full enjoyment of American constitutional freedom, gives them everything which our fathers claimed, and which we claim now under the Constitution.
Now, sir, what is this proposition? Is it despotic and arbitrary in its character? Not at all. We propose simply to submit to the people of the States the proposition to amend the Constitution. It requires the assent of three fourths of all the States represented in this Congress. Did they not agree to that when they framed the Constitution? Is not that the principle on which all State governments are founded? When I look at the constitution of the State of New York I find it a government of majorities. If I look to the town and country governments, I find them governments of majorities; and, sir, if we have a national Government under our Constitution which, as I claim, is a supreme Government, that Government is a Government of majorities or pluralities, as fixed by our organic law.
Now, sir, for the purpose of perpetuating our institutions, those who framed the Constitution entered into a solemn compact and covenant that, with certain two exceptions, the people should have the right to change that organic law in every other respect whatever; and therefore when it appears to the people that there exists in this land an institution inconsistent with that Constitution, inconsistent with the principles of our Government, we, as their Representatives, say that we propose to them, in accordance with that Constitution, to determine for themselves whether or not they will amend it, and thereby remove the evil, there is nothing despotic, nothing wrong, nothing which should call forth the animadversions and maledictions of the honorable gentleman from New Jersey, [Mr. ROGERS.] In that we propose nothing which is not constitutional, nothing which is not just.
And I submit to my friends on the other side of the House that the day is come when they should act fearlessly and honestly upon this subject. Is there a gentleman there who does not believe that the American people in their majesty and in their power have decreed the absolute and perpetual annihilation of slavery? Has not the popular verdict, which went forth in November last, proclaimed that that is the unalterable decision of the American people? Is there one who will deny that the next Congress, which according to law will convene here one year from December, 1864, will possess the requisite power to pass the amendment now proposed and submit it to the people? Is there any one who does not know that it will be in the power of the President of the United States, whenever this proposition may be rejected by a vote of this House, to call within sixty days an extra session of that Congress? And although at large expense and at great annoyance to our people, the President can present this one question to their consideration and decision, and then by their act they can announce that this proposition shall be submitted to the vote of the American people.
Gentlemen may talk of slavery, and attempt to keep it in life and being. It is too late for that. This world moves. The American people have found that the institution of slavery is a great public evil and crime, and when this rebellion broke out and evinced its wicked design to overthrow the Government in order that slavery might be perpetuated they went to work with the determination that it should be extinguished. They entered upon the part of duty before them with the old motto of Hampden engraved upon their shield, “nulla vestigia retrosum”—there is no step to be taken backward. We must go on, for the very safety of our nation and of our people, until slavery is obliterated from our land. Then, and then only, shall we possess peace. Then, and then only, when that is a conceded fact, will the powers now in rebellion against the Government lay down their arms and submit to the just authority of the Federal Government.
Sir, this world is after all a progressive world. Its advances are slow but sure. Long before the days of Adam changes were going on, the records of which are to be found in the vestiges of races long since passed away. Age after age, ere after era, have swept onward, each with its own order of organic life, flourishing, decaying, perishing, pursuant to the inexorable law of development and progression, and the rocks alone by their fossil remains attest the strange creations of the past.
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We see evidences of progress in the institutions of society as well as in the physical world. The despotism and tyranny of old Governments and empires, and the barbaric customs of former generations, are passing away. Other institutions have succeeded, better but not yet perfect, and these in turn must give way to the more beneficent and more perfect creations of a brighter future. And perhaps hereafter some explorer in our history shall find for the astonishment of his times, deep buried in the strata of political geology, a monster fossil more wonderful than the mastodon, and more terrible than the pterodactylus, which shall be recognized as the last vestige of African slavery.
We, sir, are improving, yet we are not perfect. It was not the design of the Creator that this world, either in its physical, in its moral, or in its political character, should assume perfection, except with the passing away of long ages. We have our work to do for this generation. Past generations have been building up their work for us; and, taking advantage of their advancements and of their improvements, we to-day have our duty to perform in opening a wider pathway for civilization and for freedom.
I trust that gentlemen will regard this as no party question. It is with me a question of national life. I have no party feeling whatever in connection with this whole subject. Since the first gun was fired in the harbor of Charleston I have declared always that I would be governed by no political or partisan feeling until this rebellion shall be put down; and then, if it shall be the interest or the policy of the people to raise and to discuss party and political issues, let us meet those issues manfully, firmly, and as freemen. But until that time let us remember that we have sworn to support the Government of this Union. Having taken upon myself that oath, I mean to support it in its integrity, in its unity, in its power; and I care not what institution of the past or of the present may stand in the way of the maintenance of this Government, whether it be the institution of slavery, whether it be party, or anything else, I stand pledged before Heaven to assist to the extent of my power in striking it down.
Let us preserve that glorious heritage which our fathers gave us; and when we speak of civil liberty let it not be that which represents only the blood of a particular race; let it be that which represents man, no matter what land may have given him birth, no matter what may have been his political condition.
I am not, sir, one of those who believe that the emancipation of the black race is of itself to elevate them to an equality with the white race. I believe in the distinction of races as existing in the providence of God for his wise and beneficent designs to man; but I would make every race free and equal before the law, permitting to each the elevation to which its own capacity and culture should entitle it, and securing to each the fruits its own progression.
This we can do only by removing every vestige of African slavery from the American Republic.
The SPEAKER, (after a pause,) Is the House ready for the question? [snip]
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[Mr. Higby supported the 13th Amendment]
Mr. HIGBY. Now, Mr. Speaker, a few facts. In 1849 and 1850 the people of California, under a provisional governor, assembled and elected delegates to a convention. The day was fixed and the convention was held. The object of that convention was to frame a constitution for the admission of California into the Union as a State. After long and arduous labors that convention presented to the people a constitution for adoption, and let me say that in that convention there were men from the extreme South, men who are to-day sympathizing with this rebellion, who were just as zealous opposers of the introduction of slavery as any man upon this floor to-day, and who in that convention labored to put down all arguments which could be raised in favor of its introduction. They presented a constitution which did not tolerate slavery, and the result was that the people adopted it and sent it to Congress, with Wright and Gilbert to this House, and Senators-elect to the Senate, for admission as a State under it into the Union. [snip]
Mr. Speaker, …. I hope we shall soon take a vote upon this question, and that it will be a successful one; that there will be a two-thirds vote in this House, and that the question will be sent to the States for them to take action upon, we well knowing, and the people well knowing, that the action we take upon the question here is not final, but that it must be ratified by the Legislatures of three fourths of the States. Then, if it shall so be that they ratify our action, that action will be a binding force and power upon us, become a part of the Constitution, and expel forever from the country the question which has been an apple of discord in our midst for half a century.
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So far as the power which the North has had in this Government is concerned in regard to which the gentleman claims that it has had the controlling power, I will leave him to settle that question with the vice president of the confederate States, Mr. Stephens, who reiterated in his speech in the Georgia convention which passed their ordinance of secession, that the South had held the power in this Government from its origin down to the time they were making their complaints. I leave it to the gentleman from New York, who was born, as he tells us, in a free State, whose State of adoption is a free State, and who never has had any direct interest in a slave State, to settle that question with Mr. Stephens. I think that the southern gentleman has given us facts that are true, while the gentleman from New York has been very much mistaken in the facts that he has attempted to present. And here I leave the question.
Mr. ASHLEY. If no other gentleman wishes to go on to-night I desire to say that I will ask the House, perhaps on Monday evening, or on Tuesday morning at furthest, to sustain a motion for the previous question.
I now ask that certain amendments which the committee on the rebellious States propose to offer be ordered to be printed.
It was so ordered.
Mr. WILSON. I propose, when the bill comes before the House for consideration, to offer an amendment in the nature of a substitute. I ask that it may also be printed. It was so ordered. [snip]
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HOUSE OF REPRESENTATIVES
January 9, 1865
ABOLITION OF SLAVERY
The SPEAKER. The next business in order is the consideration of the business in which the House was engaged at the adjustment on Saturday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States.
[Mr. Yeaman supported the 13th Amendment]
Mr. YEAMAN. Mr. Speaker our Government being based upon the idea of the right and the capacity of the people to govern themselves, and the whole scheme being but a means to ascertain and execute the will of the people, it follows as a necessary sequence that this will, when legally expressed, must be submitted to. I do not mean we must surrender opinions and principles, nor abjectly submit to the edicts of a majority, but I mean acquiescence in the legitimate result of the governmental compact, loyalty to the Government, reserving, of course, the right, at the stated constitutional periods, to change our governors. Observance of this rule would have saved us this war, and an observance of it now will carry us and the Government through it in safety. …. [snip]
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THE AMENDMENT
After much hesitation and earnest reflection, I have concluded to vote for the resolution submitting to the people of the States the proposed amendment to the Constitution, which, if successful, will forever settle the vexed and distressing question of slavery. …. [snip]
THE ISSUE—DIPLOMACY OF EMANCIPATION
The perpetuity of slavery is not the issue. That issue was made up four years ago, and the case has been decided against the institution, one half the jury being its own friends. Were we to do nothing and say nothing, Mr. Davis and General Lee, Mr. Stephens and Mr. Sedden, Governor Smith, Porcher Miles, and the Richmond press, would soon overturn slavery on their present line of thought and conduct. Indeed, it is notorious they have resolved to put the negro in the fight; and we in Kentucky all know what that means for slavery. When these men turn practical abolitionists by offering the negro his freedom for his services as a soldier, it is high time for conservative men here to cease hailing and doubting on the subject. Shall we debate whether slavery can be preserved, and make a stand and submit to an overthrow for its sake, when the people of the loyal States have pronounced against it, and when the leading spirits of the rebellion have fully made up their minds to abandon it, and even to strangle it in the house of its friends in the frantic efforts to save the one point of secession? …. [snip]
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LEGALITY OF THE AMENDMENT
It has been urged that as slavery was in existence when the Constitution was framed, and was by that instrument recognized and guarantied, it thus became a vested interest, and that it is incompetent by subsequent amendment to divest that interest, especially in States refusing to adopt the amendment; and that it is incompetent for the General Government in any form to regulate domestic and State institutions. To my mind this is a singular misapplication of legal reasoning. The argument is based on the extremest point of State rights, State sovereignty, compact, league, &c. It is well known I do not belong to that school. It is applying to the constitutional, fundamental legislation of the people, acting in their sovereign capacity, the same rules and limitations which do apply to statutory enactments and to the legislative powers of Congress as delegated and limited by the people. This is in the nature of an original compact of government, springing from the secure of all power, the people. It is competent for them to construct a Government as they please. Securely, in the original instrument or contract, they could have declared all slavery abolished. The contracting power is inherent in them, and they have pointed out the mode by which the instrument may be amended. It is equally competent to do by amendment what might have been done by original compact. If it was competent to declare the three fifths of the slaves should be represented in this House, it was equally competent to declare that none of them should be or that they all should be. It is not a question of construction or of legislative power. The argument I am combating would limit the power of the people in framing a Government. It would deny to the people of a State the power to alter a fundamental law once made and interest acquired under it. I have not a particle of doubt as to the competency and binding effect of the amendment when ratified by the requisite number of States. The Constitution is but a law, the law of original institution by the people, as distinguished from an enactment of Congress. They made it, and they can change it. It they can change the tenure of office or enlarge or restrict the elective franchise, they may prescribe what shall be property and what shall not. Is it not better to satisfy this demand for this one amendment than by the aggravation of a refusal provoke the calling of a convention that may overhaul and remolded and possibly disfigure our entire constitutional fabric? [snip]
Mr. Speaker, I have done what I deemed best for my immediate constituents, for my whole State, and for the nation. … If my vote be the means, in this close contest, of determining this great question, and thereby in some measure assisting in the restoration of peace, I will be more than compensated for any sacrifice I may have made. If it be a virtue to emancipate four million slaves, I claim not the credit. Their bonds were broken by the blind rage of their masters; and if it be a crime or an error, I say we have only smoothed the pillow of a dying man; and substituted law for violence. And when it is ended it will be written of the institution and its mistaken friends, as one of the most charming historians has said of one of the greatest disturbers of the peace of Europe in the seventeenth century, who fell in his own house, under the halberds of his own men, who so lately were obedient to his every nod:
“Thus Wallenstein fell, not because he was a rebel, but he became a rebel because he fell. Unfortunate in life that he made a victorious party his enemy, and still more unfortunate in death that the same party survived him and wrote his history.”
[Mr. Morrill supported the 13th Amendment]
Mr. MORRILL. Mr. Speaker, if the vote on this question had been taken on Saturday, I should have said nothing, and to-day I intend only to occupy a few minutes in what may prove a fruitless attempt to obtain something more than a mere party vote in behalf of a measure which will mark an era in our history, and should enlist the cordial favor of every lover of the great principles upon which our Government was founded. It is no occasion for passion, but the times call for direct and unequivocal action. Every vote will explain itself, with no aid from any other, and will admit of no commentary.
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There is a reluctance upon the part of a portion of this House to even propose, for the subsequent action of the people, this amendment to the Constitution of the United States, that to me is surprising. There is not the smallest doubt of the constitutional power or of the legal regularity of the proceedings contemplated. Any objection must, therefore, apply to the merits of the measure and not to the measure itself; to the end and not to the means. How can any man, educated in any of the schools of party to be found in our country, be opposed to the utter and complete extinguishment of slavery? There is no party whose creed is not fundamentally thoroughly hostile to this most deservedly hated institution, and none which could not, consistently with all its theories of good government, hail with joy its final obliteration, unless it be within the now contracted limits of the so-called confederate States. Can it be that gentlemen are unwilling even to allow the people of all the States to pass upon this proposition? For that will be the whole extent of our action, or merely to give the people an opportunity to show whether two thirds of all the States will decide that there are reasons of sufficient gravity to induce them to adopt the amendment.
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This question will come up. It is only a question of time. When it does come before the people will gentlemen then be prepared to take the stump against it? If not, the harmony of the record had better now be provided for. [snip]
But it is said that this question of slavery is one of the reserved rights of the States which we must not touch. It may be proved traitor, pirate, and murderer, but is still too sacred to be touched by military or even civil authority! … But slavery is a wrong[*]; so recognized by the whole civilized world; and cannot claim immunity as a right[*]. There is now practically but one amendment to the Constitution which we are not at liberty to make, and that relates to a wholly different subject, namely, “No State without its consent shall be deprived of its equal suffrage in the Senate.” Anything else that this is as much an open question as it would be if we were now at work framing a Constitution for the first time for a free people. [snip]
[My comment about “slavery is a wrong” not “a right”]
The word “wrong” is an implicit reference to positive law (law of people), and the word “right” is an implicit reference to natural law (law of nature). A positive law enacted by people who are members of a legislature can be corrected with another positive law enacted by a new legislature by adherence to the natural law which is the fundamental and philosophical support of all positive law. Nature (natural law) supports ‘rights’ of people, it is not law (positive law) passed by people which gives fundamental and philosophical credence to nature or the natural law which ‘comes from’ nature. Natural law which comes ‘from’ nature precedes positive law which comes ‘from’ people.
Slavery of humans is called “slavery” because even the slave masters understand that persons of a different color (or race or religion or ideology) are humans, not animals (or whatever ‘ideological / philosophical theory’ may be on the agenda of the new world order of the future; e.g., in addition to ‘critical race theory’, maybe ‘critical social theory’, ‘critical transgender theory’, ‘critical transhuman theory’, etc.).
That is why physical or ideological slavery is a positive law “wrong” and not a natural law “right”. A natural law ‘right’ does not need positive law for it to be recognized as a natural law ‘right’, but a positive law ‘wrong’ definitely does need a positive law for it to be accepted as a positive law “right” which needs to be retained and maintained because it is economically profitable to the ideological slave masters.
Although a natural law ‘right’ does not need a positive law for it to be recognized as a natural law ‘right’, natural law ‘rights’ do need positive law for them to be accepted as philosophically fundamental to positive law and so they must be recognized and defended as ideological / philosophical natural law ‘rights’ which need to be reinforced with ‘right’ thinking, not ‘wrong’ think.
When Democratic Party candidate Barack Hussein Obama said, five days before his inauguration,“we are five days away from fundamentally transforming the United States of America”, it is possible that he really meant “trans forming” America with ‘wrong think’ about natural law (law of nature) biology. If trans forming was really his under the radar intent, it is contrary to “right thinking”' about all of human biology history, past and future, into the forever of time. The Greek phrase ‘εις τον αιωνα’ is transliterated ‘eis ton aiona’ and translated ‘into the age’ (or ‘eon’). The word ‘αιωνα’ / ‘aiona’ implies into “time” or into “forever” or forever of “time” or unending “time”. [End of comment]
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It is sometimes asked whether the Constitution as it was could have been adopted if it had been foreseen at the time an amendment like this would ever be proposed; and in reply it might be asked, if the growth and the past and present history of slavery could have been foreseen, whether in that case the Constitution as it was could have been adopted? This proves nothing, save that the world moves and is not precisely in the condition now it was then. Then slavery was expected speedily to die out, and Madison, and many other southern men in Congress, sought to cripple it by taxing the introduction of slaves, which, under the Constitution, could not be prohibited until 1808. When 1808 arrived the law was already on the statute-book to interdict the further introduction of slaves at the first possible moment. We all know Madison, in drafting the Constitution, studiously avoided any words that would furnish to future generations evidence that slavery had ever existed in the young Republic. He at least honestly looked forward to the time when it would all disappear, leaving no blot behind. Nobody foresaw how it would disappear, and perhaps no one expected in the hour of its most colossal growth, and protected by fresh and impregnable securities, that it would commit suicide. But that is its fate. It leaped into the Red Sea, and, like Pharaoh and his host, it will be drowned—a fate that would make the morning stars of our Constitution sing for joy; and shall any of us mourn and refuse to be comforted?
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What a spectacle do we present! Here the Congress of the United States are debating whether slavery shall have a longer lease of life or not, when it has only just been barely frustrated in the attempt to take the life of Congress itself, and would do it now if its power equaled its will. … If a vote in favor of the amendment to the Constitution, by which slavery may be forever abolished, secures to any man that stigma, it can have no terrors for those who have been Republican, for such a vote is expected of them as an ordinary duty, and, if feared by any one who has not been a Republican, let him find courage to adopt the badge of distinction, and he may, to the discomfiture of his revilers, use and wear it as a most trusty weapon to cleave his way through the world to honor and troops of friends.
[Mr. Odell, a Democrat, supported the 13th Amendment]
Mr. ODELL. Mr. Speaker, …. If the proposed amendment to the Constitution as it passed the Senate shall receive the vote of two thirds of the members of this body, as required by the fifth article of the Constitution, and shall then be ratified by the people, its immediate effect will be to liberate from bondage three million seven hundred and forty-eight thousand three hundred and ninety-three [3,748,393] human beings, as shown by the census of 1860, securing to them the blessings of freedom. Its influence will not only reach the negro, but will affect for good the future destiny of the white race North and South. The material interest of three hundred and forty-five thousand five hundred and thirty-four slaveholders [345,534] will be of course affected, and it is a statistical fact that of this number two hundred and seventy-five thousand six hundred and eighty-one [275,681] persons own less than ten slaves, and of this latter number seventy-six thousand six hundred and seventy [76,670] own a single slave, showing that the interest is not of such extent as many at the North have heretofore been led to suppose. I cannot but conclude, from the best light I can obtain, that the operation of this measure will be most beneficial to the non-slave holding white population of the Southern States. When these poorer laboring classes shall no longer have to contend with and struggle against and be degraded by slave labor, then, and not until the, will they come into the enjoyment of blessings such as are now fully enjoyed by the honest, toiling, working men of the North. [snip]
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As certain as the North and South are now engaged in a struggle for military supremacy, so certain is it that slavery must fall and die.
The destruction of slavery is the legitimate fruit of the rebellion. It was predicted by leading minds both North and South before the war began.
Its death-blow was inflicted by the South when it opened its rebel batteries upon Fort Sumter. When the national flag was assailed, then began the overthrow of slavery as a natural consequence.
That slavery is dead is an admitted truth. ….
It is an accepted truth, both North and South, that the peculiar institution is gone, with or without restoration.
Now, I am in favor of giving it a constitutional burial; not by the irregularity of a proclamation by the President, of doubtful constitutionality even in his own mind, as he has frequently admitted, and which was conceded by the late Baltimore convention that renominated Mr. Lincoln, when they proposed this amendment to the Constitution as one of the planks of their platform, which was accepted by him in his letter of acceptance of their nomination. He and they both have thus expressed doubts as to the proclamation. And hence we have this more legal way of disposing of the evil before us. [snip]
Much has been said and written in regard to the compromise measures introduced by the distinguished, patriotic, and lamented Mr. Crittenden in the Senate. We have been wont to charge upon the Opposition the responsibility of the failure of these resolutions; we have affirmed if the Republican members of the Senate had accepted them we would not have been involved in this unhappy struggle. I am not quite sure of that. I incline to think that at that time treason was deep down in the hearts of the southern leaders. But it might have been even so. I refer to it only to show at that time it was not thought by the men of my party that the Constitution could not and ought not to be amended upon the subject of slavery. Reference to the action of the Senate will show that every Democrat North and South voted for these resolutions, which provided for several amendments relating to this vexed question of slave labor.
Again, the House will remember the famous Corwin resolution, which in its provisions was to amend the Constitution, fastening slavery upon the country for all coming time. That passed by the required vote in both Houses, after weeks of debate, the Democratic members all voting for it. That amendment was as follows:
“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”
This clearly recognizes the right to amend; if not, why was such action recommended, and why did Democrats vote for it?
If gentlemen will refer to the debates of the Thirty-Sixth Congress they will find there recorded very many resolutions offered by Democrats, and voted for by these, proposing to amend the Constitution, and all referring to slavery.
With this party record my conclusion is, that if it was constitutionally right for the men of the true faith in that day to thus vote for an amended Constitution upon this subject, it is highly proper for me to do so now in the light of the experience of the past four years. If the Constitution could be amended legally to continuing slavery, it surely may be for its destruction. The action of the South in their rebellion has not commended them to me for any special acts of grace or forbearance. Their treason to their country is only equaled by their treachery to the Democratic party. Personally I have feelings upon this subject toward the men of the South for their treason as a Democrat that no men of the Opposition have a right to indulge in.
The Democratic party had been their faithful defenders. We were and had been their friends through evil and good report. We had stood by them in all their interests. More that this, we have yielded our own convictions and prejudices to theirs. As we met them from time to time in our national conventions it was only to submit to new demands made upon us to favor, strengthen, and extend their system of slave labor. To secure peace and harmony these demands were acceded to. The steadily increasing pecuniary interest of the slaveholders gave them power, and led them, in the love of gain, to depart from the teachings and principles of the fathers upon the subject. With the modern slaveholder it was no
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longer an evil to be endured for a while, but a blessing to be perpetuated through all future time. From our present stand-point the error of thus having yielded to the slave power of the South is clearly seen by the nation and more keenly felt by the Democratic party. I need not say to the intelligent men who surround me that if the party North had resisted this encroachment upon the religious belief and northern sentiment forced upon us by the South the war now waging would never have been inaugurated. Better far for our country and the race had we exerted our power and manhood at an earlier period in our history. [snip]
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Mr. Speaker, the effect of this action by this body is only in its operation to submit to the people, to your constituents and to mine, sir, the proposition of amendment of the Constitution. It remains for them to decide it by their suffrage. We shall then all have with them an opportunity of expressing our opinions upon the question at the ballot-box. I know of no good reason why I, as a Democrat, believing in the right of the people to rule, should arrogate to myself, in my position as a Representative, the exclusive right of a voice upon this subject. They have, under our Constitution, an equal right with myself; and I will not deprive them by my action of the privilege of exercising it. [snip]
Mr. Speaker, I am fully aware of the fact that my position and intended action upon this all-important question will not be in accord with my friends upon this side of the Chamber. … Yet I believe this thing of slavery has lifted its hydra head above the Government of my country. It has been for years a dead weight upon our party. And the time, in my humble judgment, has now come when as a party we ought to unloose ourselves from this dead body. We ought no longer to consent to be dragged down by its influence. We ought to accept the facts of history as they are transpiring around us, and march on with the world in its progress of human events.
The time now favor, and the way is open for the great Democratic party to turn its back upon the dark-past and its eyes upon the bright future.
[Mr. Ward supported the 13th Amendment]
Mr. WARD. Mr. Speaker, it is not my intention to discuss at this time and place the causes which have inaugurated the terrible rebellion which has already cost the Republic such a frightful waste of life and treasure. It is enough for me to know that a death-blow has been aimed at the heart of the American Union to feel indignant at the outrage and solicitous to avert it. It is enough for me to know that a sacrilegious attempt has been made to break up the wisest form of government that human wisdom ever devised, to feel it my duty to join in the effort to chastise the perpetrators of so great a crime. ….
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This Government did not begin the war. The seceded States, at the time the rebellion was inaugurated, had nothing to complain of; no overt act had been committed by the Government, none of their prerogatives had been interfered with, none of their citizens had been burdened by taxation, all their rights and institutions were under the protection of the United States. They have gone out from among us under the false pretense that they foresaw in the future that they should lose their just political power and influence in the Union, and acting upon this self-imposed delusion they have drawn the sword wantonly and willfully upon the Government and loyal people of the United States. [snip]
Sir, I am as strongly opposed as any of my compeers on the other side of the House to the readmission into the Union, with the right of slaves property, of any State where slavery has been swept away by the onward march of our armies. Whatever may be the object of the war, the practical result is the same, and that is the overthrow of slavery in all those portions of slave holding territory which our armies subjugate; in these the relation of master and slave ceases to exist. …. [snip]
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[Mr. Mallory opposed the 13th Amendment]
Mr. MALLORY. Mr. Speaker, it is not my purpose to detain the House by an extended argument on this question now. … Mr. Speaker, gentlemen may say what they please about the proposed amendment of the Constitution of the United States, but no man can successfully deny the assertion I now make, that it is a radical change of the Government of the United States. … It is an effort to take from the States of this Union, by constitutional amendment, the great power of regulating their domestic and social affairs in their own way, and I deny the power to do that by Congress, even through an amendment of the Constitution adopted in accordance with the mode pointed out for amending that instrument.
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Adopt this amendment, change the Government of the United States, say to the States of the Union everywhere, North, South, East, and West, that they shall not regulate their internal affairs in their own way, and is not that, I ask, changing the Government? Is it not taking from the States a power which, if attempted to be taken from them at the time the Constitution was adopted, would have prevented the adoption of that instrument? If you can do that can you not also introduce an amendment to the Constitution prohibiting States of the Union from regulating their marital relations? Can you not, with the same propriety, take from every State of the Union the right to regulate the relations of guardian and ward? … Yet at the very time you are doing this you propose to say to them that you will so change that Constitution as to make it entirely different from what it was when they engaged in this rebellion. We are to say to them, “We call you back to a Government which had no existence when you refused obedience to it.” Now, have we a right to do this? …. [snip]
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What is to be done with the negroes who may be freed? Is not that a disturbing question? Is not that an exciting question? If you are to send them out of the country, where are you to send the? What nation on the face of the globe would be willing to receive them? Do you say, “Send them to Africa?” How will you get them there? This is a rich Government; it is a powerful Government; it is a Government that can, according to the theory acted on by this Administration, do whatever it pleases, provided the greenbacks will hold out. …. I do not know what amount it will require; but the sum is enormous. ….
Mr. MALLORY’S time having expired, Mr. VOORHEES was recognized as entitled to the floor. [snip]
Mr. VOORHEES. I shall not occupy the floor more than fifteen minutes.
Mr. MALLORY. Mr. Speaker, I have suggested why, financially, we cannot agree to the deportation of this class. …. [snip]
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[Mr. Voorhees opposed the 13th Amendment]
Mr. VOORHEES. Mr. Speaker, ….
It must have occurred to every observer that great indifference has been displayed during this discussion on both sides of the House. … In July last the President, with becoming frankness at least, announced to the American people that no propositions of peace in this unhappy land would be entertained by him until slavery was destroyed. This was plainly stated. ….
Upon the assembling of Congress here a few weeks ago, the President in his annual message again asserted this condition as the only one on which the war could end. … He thus commits the blood and treasure of the country to the overthrow of the institution of slavery. There is no escape from this position, and I do not suppose he for a moment desires to evade it. He told the people in advance for what they should bleed and die in the event of his reelection, and he simply reiterates his assertion in the message. [snip]
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But, although I regard the act of the House today on this proposed amendment to the Constitution with total indifference, so far as the existence of the institution of slavery is concerned, yet I shall vote against its passage. I shall give my reasons, but not elaborate them. I hold that this is an improper time to amend the fundamental law of the country. …. [snip]
But I hold finally that the Constitution does not authorize an amendment to be made by which any State or citizen shall be divested of acquired rights of property or of established political franchises. The construction which our fathers gave to the Constitution, and to which we have all hitherto adhered, guarantied to the slave holding States the right of property in slaves. This proposition is too well settled for discussion. It needs only to be stated. …. [snip]
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[Mr. Clay opposed the 13th Amendment]
Mr. CLAY. Mr. Speaker, … We see here in this House twenty-odd northern States arrayed against one southern State. I conceive that to pass this proposed amendment to the Constitution is in violation of plighted faith made to my State and people, and cannot be evaded without dishonor; it is in violation of faith pledged not only to Kentucky but to the whole country. [snip]
On what, then, is it proposed that the amendment of the Constitution shall, in reality, act? Solely on the State of Kentucky, a State which has always been loyal to the Union. … It has always been admitted by northern statesmen heretofore that Congress had no right to interfere with any State on the subject of slavery. Daniel Webster, one of the ablest men that the North has produced, and in his day the greatest constitutional lawyer and
statesman in the country, in one of his speeches in opposition to the extension of slavery in the Territories, said:
“We have slavery already among us. The Constitution found it among us; it recognized it, and gave it solemn guarantees. To the fullest extent of these guarantees we are all bound in honor, in justice, and by the Constitution.” * * * *
“Slavery, as it exists in the States, is beyond the reach of Congress. It is a concern of the States themselves; they have never submitted it to Congress, and Congress has no rightful power over it. I shall concur, therefore, in no act, no measure, no menace, no indication of purpose, which shall interfere, or threaten to interfere, with the exclusive authority of the several States over the subject of slavery as it exists within their respective limits.”
On another occasion, in the Senate, Mr. Webster said:
“I have often, Mr. President, expressed the opinion that over slavery as it exists in the States this Government has no control whatever. It is entirely and exclusively a State concern. And while it is thus clear that Congress has no direct power over the subject it is our duty to take care that the authority of the Government is not brought to bear upon it by an indirect interference whatever.”
And at a still later period, recurring again to the same subject, in a public speech, Mr. Webster said:
“I hold that Congress is absolutely precluded from interfering in any manner, direct or indirect, with this [slavery] as with any other of the institutions of the States.” * * *
“I say that there is no power, direct or indirect in Congress, or the General Government, to interfere in the slightest degree with the institutions of the South.”
These were the opinions of that great and good man; although born and reared in the North, opposed to slavery, his honest conviction governed him, and Massachusetts statesmen would do well to follow his example.
We have been told here, not only by the President of the United States, but by Mr. Seward, Secretary of State, as well as by Congress itself, that neither the people of the non-slave holding States nor Congress has any power over the subject of slavery. …. [snip]
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Mr. Speaker, in the adoption of this amendment you northern men will be merely carrying out to the letter the charges made by your enemies; you will be verifying the predictions made by disloyal men. … It is a matter of justice … let me read a resolution passed by the Congress of the United States in February, 1861:
“Resolved[*], That neither the Congress of the United States nor the people nor governments of the non-slave holding States have the constitutional right to legislate upon or interfere with slavery in any of the slave holding States of the Union.”
That resolution was passed unanimously by the Congress of the United States; and among those who voted for it are many gentlemen, leaders of the Republican party, who are now members of this House. Where will these gentlemen stand today when the vote is taken? …. [snip]
[My comment about “Resolved”]
The word “resolved” in the 1861 resolution by the U. S. Congress is not a reference to a positive law (law of people) amendment of the Constitution, but “resolved” is a reference to a positive law (law of people) resolution, decision, opinion, understanding (take your pick) by the U. S. Congress to prohibit the U. S. Congress itself and the governments of the “several States”, executive, legislative, judiciary (and the people as individuals) to “interfere” with slavery.
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Only the bicameral federal legislature can propose and enact resolutions and amendments which affect the federal and state governments and individual citizens. This 1861 resolution restricts and prohibits anyone from doing anything to interfere with slavery as an institution. The governing authorities of the “several States” (Governor, Legislature, Court), and the federal government (Article I Legislature, Article II President, Article III Court), according to this positive law resolution by the U. S. Congress itself, are not superior to the natural law freedom statements about natural ‘rights’ (e.g., speech, self-defense, etc.) explicitly written within the Constitution, a positive law.
So, what did the bicameral federal legislature do? The House and Senate legislators enacted a positive law ‘resolution’ to inform federal and state governing authorities that they, the U. S. Congress legislators, are asserting that state and federal governing authorities do not have either natural law or positive law standing to “legislate” or “interfere” with an economically profitable ‘institution’ even if it is not socially profitable, and they are prohibited from doing so by a positive law of people, not prohibited by a natural law of nature, the only foundation of all positive law proposed by people.
As a sidebar comment related to resolutions and amendments, from the 1860s to the 2000s, state and federal governments do not have standing to “legislate” upon or “interfere” with the 1st Amendment freedom of speech and the 2nd Amendment freedom of self-defense, to use only two natural law (immutable law ‘inherent’ in nature) freedoms listed in two positive law amendments (law ‘written’ by people).
What the 1861 resolution did was identify slavery of human beings (animals cannot be slaves) as a positive law ‘institution’ protected by a positive law “resolution”, not protected by natural law as an ‘institution’ with moral law societal benefits.
The opponents of the 13th Amendment who defended slavery of human beings never, ever, used natural law persuasively to defend slavery of human beings, or of animals. They knew in 1861 and we know today in the 2000s that animals (oxen, cows, horses, dogs, etc.) are not thought of as natural law or positive law ‘slaves’.
An Article V proposal to amend the constitution is not the result of a simple resolution. When the Legislatures of the “several States” ratify an Article V amendment proposed by either two-thirds of the bicameral U. S. Congress or by two-thirds of the Legislatures of the “several States”, the ratified proposal is the voice of the people by amendment, not by resolution. The people are sovereign, not the legislators of the “several States” or the legislators of the tripartite federation. [End of comment]
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There was no power to be exercised, nor could there be, for forcing the reluctant States into the Union. This is not a consolidated Government, but a confederation of independent States. The Constitution of the United States is the bond of the Union. It is the contract by which the States agreed to form a Government for themselves. It is a limited Government. The Constitution declares that the powers not vested in this Government are reserved to the States and to the people. We have, therefore, none but delegated powers, and when we undertake to go beyond them our acts are null and void. You have no more right to change the fundamental law in reference to slavery, being one of the reserved rights of the States, than you have a reference to anything else, and if you do it you do it by force and force alone. [snip]
All your arguments and all your homilies upon slavery I have heard. They are nothing but the distempered imagination of narrow minds, catering to the public opinion of a law and degraded constituency; nothing else. We ought to give them as much attention as the advice of a pauper picked up in the streets of London would receive in regard to the financial affairs of the Barings or the Rothschilds, who cannot keep a sixpence in his pocket from morning to night.
You talk about slavery, and say you want to do us good by taking our slaves away from us. If you would march your armies into your northern cities, where men live in marble palaces, who make fortunes out of the people, and if you would seize the contents of their banks and distribute it among the poor, you would do more good than you would be letting those nabobs have it who eat their sumptuous dinners and drink their fine wines. If you are going to revolutionize society everywhere and do the greatest good, seize upon that property and divide it among those who are poor and needy.
The remarks of my friend from New York, [Mr. ODELL,] which I heard with regret, were a stab directly at the right to hold property. He is arraying the small number of slaveholders against the large number of non-slaveholders, and would rob the few to please the many.
[Here the hammer fell.]
Mr. KASSON obtained the floor, but yielded. [snip]
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HOUSE OF REPRESENTATIVES
January 10, 1865
ABOLITION OF SLAVERY
The SPEAKER. The next business in order is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Iowa [Mr. KASSON] is entitled to the floor.
[Mr. Kasson supported the 13th Amendment]
Mr. KASSON. Mr. Speaker, … I entertain upon the only two questions which, in my judgment, are involved in its consideration. These are its constitutionality and its policy. ….
Why, sir, this question was propounded to the people of this country by the convention of Union men which met at Baltimore in June of last year; they challenged the people of this entire nation to its consideration by declaring that the best interests of the country required that this amendment should be adopted. …. [snip]
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Mr. KASSON. I speak now of the principle of compensation. If it is unjustifiable, there being no express provisions of the Constitution against it, if it be unjustifiable to take what they call property without just compensation, then, sir, it applies to the action of States exactly as it does to the United States; and to gradual emancipation identically with prompt emancipation; for gradual emancipation only takes away a smaller proportion, a less amount of the property. It would be just as much a violation of principle. It is a question of degree, and not a change of principle.
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Mr. KASSON. I was about to say, Mr. Speaker, that one of the effects—and I avoid all allusion to the exercise of private authority, I only speak of the philosophy of the institution as traced in its effects on society—that one of its effects as stated to me yesterday on competent authority was that one of the “institutions” subordinate to the institution of slavery had been called into play against some soldiers of our Army who had been taken prisoners and had escaped. It is well known that it is a recognized business in parts of the South to keep and train blood-hounds for the recovery of fugitive slaves. ….
For myself, sir, I will go to the noble, gallant people of Iowa with no such record connected with my name. I had rather stand solitary, with my name recorded for this amendment, with the hope of justice twenty years hence, than to have all the honors which could be heaped upon me by any political party in opposition to this doctrine. You cannot resist the tide of modern civilization. It commenced with our Revolution and it will flow on until unforeseen obstacles shall block up its course. It was sustained by the spirit of Washington and Madison and Jefferson, who denounced this institution; it was strengthened by France, when that great empire, then flushed with the liberal genius of a republic, pronounced a decree for the entire abolition of slavery throughout her then extended colonial dominions. Thence it passed to England, and, although a bitter enemy of France, and disliking everything favored by the French people, yet after twenty years of contest under the leadership of men whose names stand high—none higher—on the roll of English history or of fame, freedom became a fixed fact throughout all the dominions of Great Britain. Subsequently it even permeated the arbitrary despotism of Russia, and now, by a decree of the imperial Government, seven million serfs are set free and restored to the natural rights of mankind. Then came Holland and Denmark in the train of emancipation, leaving the kingdom of Spain, the last resources upon the European continent of the institution of slavery, and not even there, I believe, tolerated on her own soil, but only in her distant colonies. [snip]
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[Mr. Wood opposed the 13th Amendment]
Mr. FERNANDO WOOD. This question, Mr. Speaker, has been very thoroughly discussed, and I doubt whether it is possible for either side of the House to advance any new or original proposition with reference to it. At the last session I had the honor to submit my views to the consideration of the House, and to state the reason why I should vote against the adoption of this resolution to amend the Constitution. I stated then that I doubted the power, in this mode, to reach the object aimed at; and I have listened with a great deal of interest to the discussion to-day, particularly that part of it between the gentleman from Iowa and the gentleman from Indiana, and I have heard nothing that has in the least altered or modified the views I expressed at that time.
I admit, with my friend from Ohio, [Mr. Cox,]
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that the people can alter their fundamental, organic form of government, and so can the people change entirely their Government. That is the doctrine which the southern people assert. But, sir, that is not this proposition. This is a proposition to change the form of government, a form adopted with certain theories, with certain principles, for certain objects; and I contend that while we may amend the Constitution in the mode provided by that instrument, we can amend it only to reach and cover those subjects or powers which were delegated originally to the General Government. The Federal Government was made by the States; the people collectively were never called to act upon it; and while the Constitution provides for its own amendment, so as to enable the General Government to carry out the objects originally delegated to it, still all the reserved rights are reserved to the States. If we can amend the Constitution in this respect, we can amend it so as to reach to the marital relations and all other matters of a domestic character. [snip]
Well, sir, we will assume that we have abolished slavery. What then? The gentleman from Kentucky [Mr. MALLORY] asked you yesterday what do you propose to do with these people when you have freed them? Deport them? As the gentleman told you, it would add $4,000,000,000 to your debt, but that, in his own expressive language, would not deter gentlemen upon the other side of the House. The scheme of colonization has been abandoned; that scheme had for its supporters such men as Henry Clay and Daniel Webster. Our new lights have gone against that. The desire to keep these negroes here for home consumption. First, to use them as instruments by which to obtain political power. Secondly, to retain the power thus obtained. Thirdly, to gratify vengeance against the slaveholder. Fourthly, as an excuse for continuing the war, and thus to continue the army of Government officials, and finally, if possible to elevate the negro to the condition of the white man and give him suffrage, and by that means to create a power which will forever rule and control this country. [snip]
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I can only say further, Mr. Speaker, that I shall vote against this resolution. I shall vote against it because it is not within the power of Congress to pass it. I shall vote against it because it is unwise, impolitic at this time, if we could pass it legally. I shall vote against it because it is another step toward the eternal separation of the two sections. I shall vote against it because it would be no advantage to the negro if successful. …. [snip]
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[Mr. Eldridge opposed the 13th Amendment]
Mr. ELDRIDGE. I have not designed to make a speech upon this resolution, and I do not expect to do so now. All I shall say will be little more, perhaps, than a statement of some of the reasons why I cannot support this resolution.
The Government of the United States is one of limited and defined powers. It possesses the powers, and only the powers, granted to it through the Federal Constitution. … The power of amendments as conferred through the Constitution can, as it seems to me, extend only to matters in which the States have a common interest. It is one of the reserved rights of the States under their own State constitution to regulate, control, and manage their local and peculiar interests in their own way. [snip]
But, sir, I could not myself at this time vote for this resolution if I did not doubt the power to amend the Constitution in the particular proposed. I do not “deem it necessary” or wise in an hour like this to change so essentially and radically our Constitution of government. …. [snip]
Sir, I have no sympathy with the institution of slavery, powerful as it may have been in the past; between Jeff. Davis struggling to save his neck and Mr. Lincoln to build his empire, it seems to be doomed. …. [snip]
[Mr. King supported the 13th Amendment]
Mr. KING. Mr. Speaker, in contemplating the rise, the progress, and rapid development of the grandest system of government ever yet devised, I am led to reflect upon its present condition, and, if possible, to raise myself for a moment above the raging elements now threatening its existence, ….
In considering the subject now before the House, I recognize in it the fruition of the disturbances of the last thirty years. By these amendments to promised fruits of the abolition of slavery are sought to be realized. If the union of the States is to be maintained thereby; … if, in a word, all the best interests of our common country are to be promoted by these amendments, I am prepared now, as I have ever
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been prepared, to make any and every sacrifice, personal to myself, which shall accomplish objects so great and desirable. I do so the more readily because I recognize in the manner of presenting these amendments one of the modes pointed out by the Constitution for submitting to the States, or rather the people of the States, propositions for its amendment. [snip]
And here I am reminded by the arguments of gentlemen upon this floor of our want of constitutional power to pass this amendment. I aver that if I had a doubt as to the right Congress upon this subject of proposing and passing this amendment by two thirds of this House, and the Senate as at present organized, I unquestionably would vote against this amendment. ….
Some gentlemen argue that we have no right to do it because slavery was one of the reserved rights of the states. I see nothing in the Constitution which reserves that right to the States, but I see from the proceedings which took place prior to the adoption of the Constitution, and especially in the provisions which are in the Constitution itself, that the Convention to frame the Constitution did take cognizance of this question of slavery. In the ninth section of the first article—and that is what is declared as one of the sentiments of the great Dred Scott decision—all the States were allowed, for twenty years after the adoption of the Constitution, to buy, sell, trade, and traffic in slaves in any manner they might please. And they might have done so, so far as any prohibition in the Constitution is concerned, up to 1864. But after the lapse of twenty years power was given to Congress to prohibit it in the future; and they did so at a subsequent period. Suppose we had here a proposed amendment to abrogate that ninth section, giving Congress that power after the expiration of twenty years, and to say that Congress should have no such power in the future, would gentlemen then quote the very language of the ninth section giving to all the States the power to trade and traffic in such property? Gentlemen would not have the power to do that.
There is another provision which allows Congress to propose amendments to the Constitution. And the last provision is that Congress shall have no power to propose amendment by which States are deprived of their equal right of representation in the Senate. Now I maintain that this House has no right to propose an amendment to deprive a State of its equal representation in the Senate, because all our powers to propose amendments are derived from the Constitution. That is really the only existing prohibition that I know of in the Constitution. Can it be said, under that restriction declaring the powers of the General Government, and the powers reserved to the States, Congress has no right to propose any amendment to the Constitution at all? Legitimately and logically, the argument would come to that. And yet, on a moment’s reflection, no gentleman would take such a position.
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Some gentlemen argue that we have no right to make any amendment, unless it be in reference to something already in the Constitution. The answer to that is that the very first session of Congress after the adoption of the Constitution a number of amendments were adopted on the suggestion of States to which the Constitution had been submitted for ratification, some of which had no sort of reference to anything in the Constitution as originally drafted. The Most important of these grew out of principles which had cost the people of England oceans of blood—out of principles which were asserted in the Revolution. There cannot be any doubt of this; but if any gentleman should still have a doubt on the subject, let us see how this Constitution was to be adopted
In the very last article of the Constitution it is declared that the ratification by the conventions of nine States shall be sufficient for the establishment of the Constitution between the States so ratifying the same. Eleven of the States ratified the Constitution at once. Nine would have been enough to create and constitute a Government, not only de facto but de jure. The States of North Carolina and Rhode Island did not agree to it for several years afterwards; and according to my view of it they were not parties to the Constitution. The Convention originated with the delegates from Pennsylvania, New Jersey, Delaware, Virginia, and perhaps some other States, who recommended that delegates should meet in Philadelphia on the second Monday in May, 1787—to do what? In order to amend and revise the Articles of Confederation. That was all the power they had. But who will say that after these delegates assembled in Convention they had not plenary power? They exercised it, and nobody has ever objected to it.
But the article of the Constitution which gives Congress power to propose amendments is that which declares that Congress, whenever two thirds of both Houses shall find it necessary, shall propose amendments to the Constitution, and if adopted by three fourths of the States they become a part of the Constitution; or, on the application of the Legislatures of two thirds of the States, shall call a convention for proposing amendments, and that these amendments, when adopted by three fourths of the States, shall be valid to all intents and purposes as part of the Constitution.
There are thus two modes provided for amending the Constitution. If the proposed amendments come from the Legislatures of two thirds of the States, they are to be referred to a convention. But if they come from Congress, I ask whether Congress has not plenary powers to the extent of the authority given in the Constitution to propose any amendment it pleases, which is not expressly prohibited to it, or reserved to the States in the Constitution itself. Certainly it has. But I have heard the suggestion that it cannot be done because, says one gentleman, there are eleven States that are not represented here. Why are they not here? Is it our fault that they are not? We cannot coerce States to send members here. That is one of the powers of coercion which I deny. It is a personal privilege guarantied to the States, and if they fail to avail themselves of it, it is their own fault.
This House and the Senate, as at present organized, constitute Congress, and we have a right to propose amendments to the Constitution. …. [snip]
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When Mr. Lincoln’s Administration came in seven States had dissolved the Union so far as they could. Mr. Lincoln was inaugurated. I have not been a Republican or a supporter of his Administration, except so far as my convictions satisfied me he was right. Every man must admit that since the days of Washington no President has entered upon the administration of the Government under such perilous circumstances. ….
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Mr. Speaker, I have done with the subject. In what I have said I have been prompted by no spirit of ill or hate to the mass of the southern people of the Union. … Let us hope, Mr Speaker, that from the bloody ordeal and fierce chastening of the past four years our glorious nation may still brave the trials yet to come, and that ere long we shall enter the sunshine of peace, and stand before the world a free, united, and happy people.
[Mr. Grinnell supported the 13th Amendment]
Mr. GRINNELL. I will detain the House but a few moments, intending to divide my time with the gentleman from Illinois, [Mr. FARNSWORTH.]
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I regard this as a marked day in American politics and American history. I am happy to follow a gentleman from a slave State—and a slaveholder too, I believe—[Mr. KING,] who advocates a constitutional amendment whereby slavery may become extinct throughout all the breadth of the land. …. [snip]
Now, sir, … I am here to say that I do not enter into the discussion of the simple propriety of this measure. No; at the threshold I deny that there can be property in man. I never believed in the doctrine. My whole nature revolted at it, and the reading of books of law, volumes of history, and of God’s word, never taught me else than that the institution was barbaric, in defiance of natural justice, and so shameful in its pretensions that in no State in this Union has its legal existence been established by any law. And here I desired to ask the gentleman from Kentucky, [Mr. CLAY,] when he spoke of the legal and constitutional rights of his people, where he finds a law in the State of Kentucky, or in any other slave State, that establishes the system of African slavery. It cannot be found. Slavery is an outlaw, and we are but proposing to execute the criminal that has been an outlaw for generations in this country.
It is well known that the British constitution and the common law of England and the decisions of the great jurists of England were against the existence of slavery in that country. One John Hawkins was the first to engage in the slave trade in this country. He planted the institution here. Did that legalize slavery? Did he have from his queen any authority to traffic in human beings? None. How did slavery come to exist in the colonies? From whence came the authority to hold slaves? From England? No. Did it come by colonial legislation? No. How, then, came it in these States? By brutal force. As I have already said, it is not found to be established by law in any State, and must stand here as an outlaw. The great expounders of our Constitution have said that the Declaration of Independence itself, proclaim all men free and equal, laid the corner-stone of our Confederacy, and that it is above all constitutions and all laws. That is enough for me; and we are only tolerating here that which should have ceased to exist long ago, and spared us civil war. Sir, if I had my preference, I would rather see slavery wiped out here by a legal decision, and announced by a chief justice—our Lord Mansfield, I trust—on the great principles of justice, rather than by the tardy action of States. [snip]
The gentleman from New York [Br. BROOKS] stands up here in defense of those who are now in rebellion, so far as to declare that slavery has not ruled the country. I wish, sir, that he had been more conversant with American history; that he had read less of newspapers and more of our political history. Why, sir, it is well known that the great majority of the people of this country have been controlled by the institutions of the South. We propose to break away from that control, and to stand forth free and independent, never more to be bartered away by a body of men banded together for any political or selfish purpose, much less by those in the control of tyrants.
If you look into the facts and figures in regard to this control, you will find that up to the year of the rebellion for two thirds of the time the Presidency of the United States had been held by slaveholders or southern men; you will find that of the Presidents of the Senate slavery had sixty-one out of seventy-seven; you will find that of Speakers of the House of Representatives they had twenty-one out of thirty-three; you will find that of Attorney Generals they had fourteen out of nineteen; and that they have had the Secretaryship of State nearly two thirds of the time; and since the slavery agitation, as if it were to be ready for this conflict of arms, for four fifths of the time have the Secretary of War and the Secretary of the Navy been from the South.
Look too, at the Supreme Court of the United States and its organization; slavery has had seventeen out of the twenty-eight members. It was organized purposely, as all the world knows, to give five judges to the slave holding States, and four to the free States, notwithstanding that the free States exceeded the slaves States almost one third in population and one half in wealth and in business for the courts.
Thus do facts answer the assertion of the gentleman. And hence it is the business, the high and holy work of the American people henceforth to sunder these shackles, and no more to be controlled by the system of slavery which was fast binding us and defenseless to be cast into outer darkness.
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Mr. Speaker, I need not give my reasons in full why I shall vote for this constitutional amendment. I will simply state a few of the reasons that will impel me to do so. In the first place, I will vote for it because the Constitution provides for its own amendment. Secondly, I will vote for it because it allows the people of the States to exercise their sovereignty—that “popular sovereignty” which we have heard descanted upon, lo, these many years. I propose to have a practical illustration of the doctrine. I will vote for it because it is a measure of justice to millions in chains, to hundreds of thousands fighting our battles. The country demands it. The people, although their Representatives here heed not their voices, demand it. They demand it by the voice of four hundred thousand majority given in the late election to the present Executive of the United States. Above all there is a voice sounding out louder than the thunder if men would hear it; it is the voice of God to this nation, “Break every yoke and let the oppressed go free.” [snip]
I will now yield the remainder of my hour to the gentleman from Illinois, [Mr. FARNSWORDH,] who desires to speak upon this question.
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[Mr. Farnsworth supported the 13th Amendment]
Mr. FARNSWORTH. Mr. Speaker, “property,” “vested rights,” “robbery,” are the dying cries from the agonized hearts of the men who defend man-stealing and women-whipping, and who apologize for treason. I do not rise here for the purpose of making a constitutional argument, but only for the purpose of briefly answering those charges. It seems to me that they come from the wrong side of this question when used by the men who oppose this constitutional amendment.
“Property!” What is property? That is property which the Almighty made property. When at the creation He gave man dominion over things animate and inanimate, He established property. Nowhere do you read that He gave man dominion over another man.
“Vested rights!” What vested rights so high or so sacred as a man’s right to himself, to his wife and children, to his liberty, and to the fruits of his own industry? Did not our fathers declared that those rights were inalienable? And if a man cannot himself alienate those rights, how can another man alienate them without being himself a robber of the vested rights of his brother-man?
“Vested rights” and “robbery,” forsooth, from the slaveholder! Why, sir, it is passing strange that men, from usage and familiarity with a crime, will even get to using the very words and phrases in defense of that crime which legitimately and properly describe the crime itself. There never was a highwayman who had pursued his course of crime for a series of years who did not regard the execution of the law upon him for his crimes us most unjust to him. The poet has well said that—
“No man e’er felt the halter draw,
With good opinion of the law.”
It has been truly said by the gentleman who preceded me, [Mr. GRINNELL,] that in the statutes of no slave State in the Union can you find the origin of slavery. There is not a statute in any one of those States that ever established property in slaves; not one. It is a carbuncle; it is an ulcer; it is a cancer which has grown up by stealth upon the body-politic, and which has only from usage become familiarized to men, and they have surrounded it with the statutes protecting the relation that we find in any of the codes of the slave States. You cannot find in any statutes of any civilized nation on the face of the earth where property in things animate or inanimate is established. Nowhere is that property defined; nowhere is it declared in any statute in the world that man shall have property in this or that thing. Because, as I have said before, the Almighty having given property in these things it is only necessary that civilized society should surround it with laws to protect men in the possession and enjoyment of it.
I trust we will hear no more of robbery, of vested rights. Slavery commenced in robbery and theft, and has been carried on by a trespass, and no usage in the lapse of time can make that just or legal or right which in its origin and inception was a crime.
What is that we now propose to do? We propose to say in the organic law of the land that there shall be no more involuntary servitude except as a punishment for crime. And there is another thing; we are now dealing with a class. While there may be now and then a loyal slaveholder in the rebellious States, as a class the slaveholders are traitors, as a class they brought on this rebellion, as a class they are fighting our soldiers in the field, starving our prisoners in their dungeons, and by every high-handed and ruthless outrage conducting this war of treason. That is the character of slaveholders as a class.
But there is another class of people there denominated slaves. What are they? Invariably the friends of the Union; invariably the friends of the Union soldier, giving him aid and comfort, secreting him on his stolen flight from southern dungeons to the lines of our Army, furnishing him food and shelter on the way, and diverting from him the bloodhounds on his track. [snip]
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Mr. Speaker, I thank God that by the votes of my constituents, who sent me here by over thirteen thousand majority, I have the privilege to-day of standing up here and advocating this amendment; … When this usage of slavery is abolished and when we have ceased to be familiarized with the clank of chains, then we shall look upon this thing with the horror it deserves.
[Mr. McBride supported the 13th Amendment]
Mr. McBRIDE. Mr. Speaker, by the vote on the motion of the gentleman from Ohio [Mr. ASHLEY] this House will decide whether the proposed amendment to the Constitution, by which slavery shall be prohibited within the limits of the United States, shall be submitted to the several States for their action or not. …. [snip]
But, sir, I have listened carefully and attentively to the arguments of gentlemen upon the pro-slavery side of this question, who deny our authority to amend the Constitution as proposed, without being able to perceive the justice or soundness of their assumption. I perused with patience the ingenious argument of the distinguished gentleman from Ohio, [Mr. PENDELTON,] made at the last session of Congress, and reiterated Saturday last by his colleague, [Mr. BLISS,] the gentleman from New York, [Mr. PRUYN,] and a member from New Jersey whom I do not choose to name. The gist of that argument being that slavery is a State institution, never submitted by them to Federal control, that it is an indefeasible right of property conferred by State laws, and not to be divested by any other sanction, is a fallacy which can, I think, be most easily and conclusively met and answered. You assert that slavery is a local institution, deriving all its right to exist from the municipal laws of each State where it is acknowledged. I admit the assertion. You assert that it was a subject left by the framers of the Constitution to the States, to be by them controlled, legislated upon, encouraged, fostered, or abolished in the States, as to them seemed most expedient. That I also admit.
You assert that, owing its existence to State laws and State authority, and being a subject left by the framers of our fundamental law to the exclusive control of the State authority, therefore we have no right to so amend the Constitution as to take Federal control of and abolish it. This assertion I deny. The conclusion does not follow from your premises, as I now propose to demonstrate. This is a proposition to amend the Constitution of the United States and to establish in that Constitution a power hitherto not possessed. That Constitution is the existing fundamental law of all the States, having been assented to and ratified by them. It contains among its provisions one by which it prescribes the methods by which the instrument may be altered, changed, and amended. Those methods are, that the two Houses may, by a two-thirds vote, propose amendments; or Congress may, on application of the Legislatures of two thirds of the several States, call a convention to propose amendments to the Constitution; and in either case, whenever the proposed amendment or amendments shall be ratified by three fourths of the States, they shall be come valid and binding provisions of the Constitution; and upon this power of amendment there is one and only one limitation, and that is that “no State without its consent shall be deprived of its equal suffrage in the Senate.” The full and complete power to amend the Constitution in any and every particular is given and confirmed by the fifth article of the Constitution, curtailed by the single existing limitation as to equal State representation in the Senate. If the States had intended, when the Constitution was originally formed, to forever keep the institution of slavery beyond Federal control, they should and would have excepted that also, with the right of equal suffrage in the Senate, from among the subjects of rightful amendment.
I grant that the right to abolish slavery was not given to the Federal authority as a legislative power, but the means by which the national Government might obtain that power through an amendment to the Constitution were given, and those we now propose to apply.
If domestic slavery was beyond our control originally, the Constitution points out the way by which we may legitimately take it under cognizance, and we are following strictly the methods it prescribes.
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But we are met with another objection, that if we emancipate we must enfranchise also. I deny the conclusion; but I should not be deterred from the move, even if it were correct. A recognition of natural rights is one thing, a grant of political franchisers is quite another. We extend to all white men the protection of law when they land upon our shores. We grant them political rights when they comply with the conditions which those laws prescribe. If political rights must necessarily follow the possession of personal liberty, then all but male citizens in our country are slaves. This illustration alone reduces the conclusion to an absurdity. Sir, let the rights and status of the negro settle themselves as they will and must upon their own just basis. If, as a race, they shall prove themselves worthy the elective franchise, I tell gentlemen they will enjoy the right; they will demand and they will win it, and they ought to have it. If, on the contrary, as a race, they are so far inferior to those with whom they must compete as to be unequal to the high and responsible position of free electors, any attempt to elevate them to that standard will be a signal failure. I have no faith in their ability to contend in the race before them successfully, and no fear of degrading my own race by contact with them, for, sir, there is an antagonism between the races which will prevent anything like a complete blending of them, and I leave all questions of the consequences of emancipation to be settled by justice and expedience as experience shall dictate. “Sufficient unto the day is the evil thereof,” and I will do what right and expedience require now, and leave the consequences to be provided for as they may arise. Conscious as I am that the best interests of the country and posterity require a mitigation of the evils with which slavery has afflicted this war-desolated and strife-torn land, I will not suffer myself to be prevented from giving my aid to this beneficent proposition by any imaginary evils that it may not provide for. If the abolition of slavery shall still leave us the dregs of this pestiferous question to be dealt with at a future time, I am willing to trust the future for their settlement, well convinced that all others are mere subordinate difficulties which time and statesmanship will enable us to wisely overcome
Mr. C. A. WHITE obtained the floor.
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HOUSE OF REPRESENTATIVES
January 11, 1865
ABOLITION OF SLAVERY
The SPEAKER. The regular order of business is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Ohio [Mr. C. A. WHITE] is entitled to the floor.
[Mr. White, a Democrat, opposed slavery and opposed the 13th Amendment]
Mr. C. A. WHITE. Mr. Speaker, this is a proposition to amend the Constitution of the United States so as to prohibit the existence of the institution of slavery throughout the entire territorial jurisdiction of the United States, and conferring upon congress plenary power to pass all necessary enactments to enforce this provision of the Constitution. I do not propose at this time to enter upon a discussion of the abstract question of slavery. This, sir, is not so much a question of expediency, in my mind, as a question of right and of power, and as such I propose to discuss it to-day. …. [snip]
Did the States, when they ratified the Constitution of the United States, intend by the fifth article of that Constitution to confer upon two thirds of Congress and three fourths of the States unlimited power? If the construction claimed by gentlemen upon the other side be true, it is so. All then that you would have to do in order to make the Congress of the United States as omnipotent as the Parliament of Great Britain would be to change the fifth article of the Constitution, and provide that a majority of a quorum in Congress might amend the Constitution, and that would confer upon the Congress of the United States as plenary, omnipotent, unlimited power over every subject of legislation, ay, sir, it would make the Congress of the United States as omnipotent as the English Parliament. Does any man believe that the people of the States who adopted this Constitution, jealous as they were of the encroachments of centralized power, would have incorporated any such provision as that in the Constitution if they had so understood it?
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I maintain, therefore, that the proposed amendment of the Constitution cannot be made of binding force and effect upon the States except by the ratification and consent of the States given in the exercise of the sovereign power of the States; that even the Legislatures of the States have not the power to give the Consent. Sir, it is written down in the Constitution, tenth amendment, that “no person shall be deprived of life, liberty, or property except by due process of law.”
What is “process of law?” It imports day in court and trial by jury. Is not the right of the master to the service of the slave property? Those who made our Constitution for us and the States that ratified it so understood. I will not allude to the express provisions of the Constitution in which we have a direct recognition of the right to service in slaves as property in fixing the basis of taxation and representation, and in other respects. Every one of the original thirteen States while the constitutional Convention was laboring to effect the completion of that instrument was a slave State; and at the time of its adoption each State except one was a slave State.
That is property which the local municipal law recognizes as property. I cannot accept the doctrine of the gentleman from Illinois, [Mr. FARNSWORTH,] that that is property which God makes property. Why, sir, I think that he would have great difficulty in tracing the title of his land if he would attempt to tract it to that omnipotent source. Adopting that doctrine, he would find a link missing in the chain of almost every title in the land.
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The right to service in slaves, then, is recognized as property. That right of property cannot be taken away from any person except by “due process of law.” “Due process of law,” as I before remarked, imports day in court and trial by jury. The only power, then, that can reach this question is the omnipotent sovereignty of the State, which rises above and overshadows, controls and molds, every other power and every other right and interest. Why, sir, the right to possess and enjoy property is essential to the very existence of man. We could not live without it. It is guarantied in the Constitution. Maryland and Missouri have abolished slavery. How did they do it? They did it by the exercise of the sovereignty of the State, and consistently with this provision of the Constitution, guarantying the right of individuals in property. They did it by conventions representing the sovereignty of the State. They did it consistently with the provisions of the Constitution, because the Constitution itself recognizes the sovereignty of the States.
Sir, I am a believer to the fullest extent in that doctrine which has been denounced upon this floor as a damnable heresy—the absolute, unqualified sovereignty of the States. And I believe it is because these States are absolutely and exclusively sovereign that they may, in the exercise of their sovereignty delegated to conventions for the purpose, dispose of this institution of slavery, and that, too, consistently with this provision written down in the tenth amendment of the Constitution of the United States.
Now, sir, what is sovereignty? It is defined by our law-writers to be the supreme power in the land. There can be but one supreme power; supreme is superlative; there can be none greater. Thee cannot be more than one supreme power over the same subject-matter at one and the same time. If the Congress of the United States is supreme and sovereign the States cannot be supreme and sovereign. If the States are supreme in power the Congress of the United States cannot be. It is an absolute absurdity and monstrosity to allege the contrary. Why, sir, we should then be in a worse condition than that child who was claimed by two mothers; we should be torn to pieces by these two omnipotent powers. Sovereignty is a thing that inheres in a State, it cannot be parted with, it cannot be alienated. The States could not dispose of their sovereignty.
Now, what is the sovereign power in a State? … Is it the Congress of the United States, with the President and the Supreme Court? Is that the sovereignty of the nation—the sovereignty of the State? No, sir; the people are the State. The people are the sovereigns. The people never parted with their sovereignty. For the sake of convenience and from the necessities of the case, millions of people scattered and dispersed over a vast extent of territory must act through agencies and through instrumentalities in making their sovereignty felt and demonstrating it in the administration of government. [snip]
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What is the Constitution of the United States? It is nothing more nor less than the prescribed form adopted by the separate and distinct sovereignties through and by which these agencies shall be appointed, and placing limitations to the powers which they shall exercise. And that is all there is of it, delegating the powers that they shall exercise, and limiting the powers to the States. That is the whole scope of the Constitution.
What are the constitutions of the States? They are not the delegations of power, because the State is sovereign, and the constitutions of the States are limitations of power upon the Legislatures, State agencies appointed for the purpose of administering the regular objects of government. One is a delegation and the other a limitation of powers, and we of the Federal Government can only exercise such powers as are granted, and the State government cannot exercise any powers that are prohibited, but it may exercise all that are not prohibited.
Why, sir, you might as well attempt to make me believe that a man can be the subject of two omnipotent Gods, as be the subject of two sovereignties. [snip]
Mr. C. A. WHITE. It is supreme because these sovereign States, each one speaking for itself, has said it shall be supreme; and it is because we are simply the agents and representatives of these supreme and sovereign powers that is supreme acting within the scope of the powers they have delegated to us.
No, sir; I claim that the States have not, by any provision in the Constitution of the United States, expressed or implied, conferred upon the Congress of the United States jurisdiction over this matter, that they have never parted with or alienated their sovereignty or any part of it, and indeed they could not part with or alienate it.
But it is claimed that the fifth article of the Constitution delegates this power, and gives the power to amend over every subject, and that it is limited only by the discretion of Congress and of the people. Now, sir this, to my mind, is an absurdity. I do not believe that there is a State in this Union—certainly not one of the original thirteen States—that would have adopted this Constitution with any such understanding. Why, sir, if that proposition were true, what might not three fourths of the States do? They might impose all the burdens of taxation upon one quarter of the States. I do not believe that any such power as this belongs to the United States, or to three fourths of the States, or can be enforced in the shape of a constitutional amendment. [snip]
Mr. Speaker, the discussion upon this subject has been chiefly upon the abstract question of slavery itself. Now, sir, I am not here the advocate of slavery, or the apologist of slavery, and I have no interest in the institution, except so far as I am interested in it in common with every other citizen of my State. But, pass this constitutional amendment, and will it affect the status of individuals within the States designed to be affected by it? Will that make a single man free? If slavery goes down, if go down it must, it will be under the sturdy and stunning blows dealt upon it by your armies; it will be by the application of force to that institution. It will be by driving the rebels to that state of extremity that they will be compelled to crowd the list of their armies with their slaves. I believe that if we drive that people to that extremity and force them to enlist their three million slaves into their armies, with the promise of freedom for their service, that annihilation of slavery by these means will sound the death-knell of the Union forever.
I do not believe with some gentlemen upon the other side of the House that this war is an instrument in the hands of God for the purpose of working out His designs with reference to this institution of slavery. I do not believe that this war is of God. I believe further that if this institution is a heinous sin against God, and an offense against the laws of humanity and civilization, as gentlemen claim it to be, that those laws ordained of God from the foundation of time for the government
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of the moral and material universe, will finally work out the eradication of this institution peaceably, quietly, without any disturbance of the elements of society.
I believe that these are the instrumentalities through and by which the institution would have finally been disposed of. The heated, unwise, angry discussions for the last thirty years on this question in Congress and out of Congress have done much to strengthen the institution of slavery. ….
I have therefore constantly opposed all these schemes, because I have desired the restoration of the Union of these States, …. We have no right to impose new conditions of union upon the people of the South, only so far as the dumb eloquence of numbers and power gives us the right.
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But, sir, let me now look at the humanity of this measure. What will be the effect of turning loose in our midst here more than three million men without property, at a time of great political commotion, when all the foundations of society are broken up, and while we are convulsed by a terrible revolution that is rocking the land from one end to the other? What will be the effect of turning loose this mass of people? Where will they go? What do you propose to do with them? Do you propose to enfranchise them, and make them “before the law,” as the gentleman from Pennsylvania [Mr. STEVENS] says, the equals of the white man; give them the right of suffrage; the right to hold office; the right to sit upon juries? Do you intend, in other words, to make this a mongrel Government, instead of a white man’s Government? Do you intend to degrade the United States of America to the low condition of the provinces of Central America? Is it for that that we are wasting our blood and our treasure? Have we no higher aim or purpose that this in the great struggle in which we are engaged?
That, as I said before, will be the effect of throwing this people on their own resources. They cannot remain South. If you liberate the negro by the bayonet, the tenure by which he will hold his liberty will be only that by which you have given it to him; he will be free just as long as the soldier sets his bayonet between the slave and the master, and no longer. The exodus of the negro race from all these States is absolutely necessary if it would be free. Where can the negro go? Certainly not to the cold regions of New England. Its types of industry, manufactures, are but ill adapted to the nature and capacity of that race.
The Mississippi valley where we are engaged in the simpler pursuits of agriculture is destined to be the home of that people. There we have prejudices, and these prejudices are things which are of ourselves a part. We cannot eradicate them if we would ….
The only way, then, to a restoration of a permanent and lasting peace, a peace that will give strength and stability to the Government, and win to it the hearts and consciences of the American people, is to find some basis on which all cn stand, which will secure the rights of all, and perpetuate the liberties of all.
ABOLITION OF SLAVERY—AGAIN
[Mr. Smithers supported the 13th Amendment]
Mr. SMITHERS. Mr. Speaker, after the elaborate discussion which this question has received, it ought perhaps to be deemed superfluous to add anything to the matter which has already been adduced in support of the pending proposition.
The locality from which I come, and the people which I represent, are the only considerations which induce me to trespass upon the patience of the House, already sufficiently taxed. Representing a constituency governed by laws tolerating and regulating the institution of African slavery, it is scarcely proper that I should permit the vote to be taken on a measure so important and so material to their interests, without a brief presentation of the reasons which induce me to support. In doing so I shall not deal with the humanitarian phase of the question, or argue the share slavery has had in originating or maintaining the existing rebellion.
The immediate practical effect of this measure is to abrogate the possibility of slavery in Kentucky and Delaware, …. Satisfied that the measure is constitutional and beneficial, not only to the Republic, but eminently to my immediate constituency, I cheerfully accord my vote to the passage of the bill.
In arguing the constitutionality of the question there has but one objection been proposed that strikes me with any degree of plausibility. The power of amendment is so clearly conferred by the Constitution, and the mode so distinctly pointed out, as to preclude question or even cavil as to the authority or the method. Unless the Constitution be itself unconstitutional, there can be no difficulty in the exercise of the power so far as this House is concerned in originating this measure. That instrument has explicitly provided for its own amendment. This power was distinctly surrendered by the States and the people, save only in the two cases expressly mentioned, and except as to them exists without limitation. So in the ratification by the Legislatures or conventions to which it is to be referred; the power is expressly delegated to three fourths to bind the whole, and the act of the requisite number is agreed and declared to be considered as the act of the whole as fully as if each had formally assented and actually adopted the proposed measure. The only question which remains is whether the subject of African slavery is properly and legally within the purview and fair intendment of prohibition by constitutional amendment; and here the objection is raised that we invade the domain of private rights and destroy the vested interests which individuals have in a subject of property.
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The mistake of those who propose this objection seems to me to consist in not sufficiently distinguishing between the taking of the thing and the abolition of the tenure by which it is held. I do not entirely agree with those who allege that slavery is impossible in law or necessarily unconstitutional. It has been too long established, too clearly recognized, not only by the acquiescence but by the express sanction of the Constitution and the repeated adjudication of the courts, for me to deny its legality or doubt the validity of the right. Its origin lost in the remoteness of antiquity, practiced at some time by every nation of the earth, it vindicates its lawfulness by the universality of its existence, and cites as the monument of its title the common consent of mankind. And the sentiment that “that is property which the law makes property,” however condemned by the moralist or reprobated by the humanitarian, must be respected by the jurist and accepted by the legislator.
The nature of the right, however, is material in determining the question presented for solution, and the quality of the recognition is equally material in deciding the extent of our constitutional power. How far soever into the past the beginning of the enslavement of mankind may have extended, it is unquestionable that it has its origin in force. It claims no natural sanction for its existence [Ed., “no natural” = no law of nature basis to support a law of people “sanction”, i.e., an opinion of people, similar to the Article III Supreme Court ‘naturalization’ of Wong Kim Ark with a fiat—‘because we said so— ‘opinion’], nor in its operation is it confined to any race. The white man equally with the black has been the subject of its oppressive jurisdiction. The slave pens of Algiers have confined Christian captives until they were haled forth to the auction block; and our boasted Saxon ancestors wore around their necks the symbols of bondage. In this country it has existed from its earliest settlement, and in every colony it found forbearance, if not active effort for its introduction and maintenance. It obtained in Massachusetts as well as in South Carolina, and that it spread more rapidly and endured more firmly in the latter is due perhaps quite as much to the quality of the climate and the adaptation of the soil to the productions rendering its labor remunerative as to the superior morality or intelligence of the inhabitants. Though thus universally practiced, its injustice was too patent not to be recognized, and its tendencies too deleterious not to be mourned. Its existence became soon to be tolerated rather than encouraged, and at the adoption of the Constitution there is abundant evidence, not only of the hope but the expectation, that it would soon cease to prevail. And in this connection it ought not to be forgotten that its introduction into Indiana was denied even by southern slave-owners against the repeated petition of the inhabitants. The invention of the cotton-gin gave a fresh impetus to its expansion, and by rendering it more valuable stimulated its growth. The inventive genius of New England furnished the inducement, and the cupidity of the master, in estimat-
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ing his pecuniary advantages, lost sight of the wrong.
Mr. Speaker, I am no apologist for slavery, but I cannot be false to truth by willfully perverting history. The necessary characteristics of slavery are bad enough; it is of itself and in itself wrong enough; its concomitants and consequences are injurious enough to deserve universal condemnation without attributing to the master qualities which sink him below the level of mankind.
It is not true that wanton cruelty and unmitigated oppression were universally or even ordinarily exercised toward the slaves. The fact that from four hundred thousand, at the adoption of the Constitution, the race has increased to four million in the space of less than eighty years, is a sufficient evidence that their treatment has been generally humane. [snip]
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Of all those who voted for me I do not know one who would not vote for this amendment; and I am well assured that of those who did not support me there are hundreds, perhaps thousands, who will hail with joy the accomplishment of this great measure of justice, tranquility, and security.
[Mr. Holman supported the 13th Amendment]
Mr. HOLMAN. Mr. Speaker, I will not discuss the question of political power involved in this amendment. I will consider only the question of expediency. [snip]
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Gentlemen assume that the Constitution is responsible for slavery and bewail the error of our fathers. Sir, this assumption is not true. The Constitution is in no sense responsible for slavery. The whole theory of the Government is that the States alone control their domestic affairs; no power of local domestic government is delegated to Congress: “the powers not delegated are reserved to the States or to the people.” If in the judgment of our fathers African slavery had been inconsistent with a republican form of government, it could have been abolished under the power to “guaranty to each State a republican form of government.” But Washington signed the bills to admit Kentucky and Vermont into the Union with their respective domestic policies. Generations had confirmed this interpretation of the Constitution. …. [snip]
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I am no apologist of slavery. I know no argument for its defense. I would to God there was not a slave on the face of the green earth. I have ever indulged the hope that time and Providence would relieve this nation from the reproach and still preserve the public liberty unimpaired; but such are the embarrassments of the question in providing for the very people you would in theory incorporate into the body of your citizens, that in dealing with it as a practical question, even a son of Massachusetts, with absolute military and civil power, in Louisiana, only changes the form of slavery and converts the slave into a serf. But these are but the incidents of the pending measure. It is upon the amendment of the Constitution that we decide. [snip]
[Mr. Cravens opposed the 13th Amendment]
Mr. CRAVENS. Mr. Speaker, before the debate closes on this proposition to amend the Constitution of the United States, I desire to say a word or two merely to place myself right in regard to the vote I shall give. The speeches made by gentlemen on the other side of the Chamber have tended to leave the impression that those who vote against this measure are influenced to do so by a desire to protect and perpetuate the institution of slavery. I am only authorized to speak for myself, and in doing so I declare that no desire to perpetuate slavery will influence my vote. I shall vote against the amendment because I think this not the proper time to make radical changes in our fundamental law. I shall vote against it because I believe there could not be that fair, free, and unbiased deliberation had by the whole people on the question that its importance demands, and because, in my judgment, it will not remove from the halls of legislation a question that has been a disturbing element for more that half a century—I mean the question of the condition of the negro, irrespective of his condition as a slave. I believe that the passage of this amendment will multiply rather than diminish our troubles upon that subject. …. [snip]
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[Mr. Broomall supported the 13th Amendment]
Mr. BROOMALL. Mr. Speaker, ….
I do not propose to enter at length into the arguments for and against the institution of slavery. I look upon the question, whether or not the institution ought to be abolished in a proper way, as having been settled by the people at the last election, and the verdict rendered upon that occasion I hold must and will be carried out, if not by this, at least by the next Congress.
But I propose to examine some of the arguments against this measure which have been offered by gentlemen upon the other side of the House. It is assumed upon the other side of the House, by gentlemen who it appears to me ought to understand the laws of the land, that we have no power to abolish the institution of slavery. This is a very singular position for any legal mind to take. Why, sir, the institution of slavery is not among the reserved exceptions in the Constitution of the United States. Wherever power was not intended to be given to the people to alter for fundamental law, it was so expressed in the body of the Constitution, and the institution of slavery does not appear in that instrument as one of the subjects to be interdicted from the action of the people upon their organic law. [snip]
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Sir, the question of human liberty is committed by the Constitution to the people of the United States. I have always supposed that the framing of the Constitution and the formation of our government were for the express purpose of perpetuating and preserving the liberties of the people. And upon the very threshold of that instrument I find authority for that position. We are told, in the preamble of the Constitution, that—
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution.”
Showing that this very subject was before the framers of the Constitution, and in direct and positive language committed to the Government of the United States, to be exercised whenever the people, in a constitutional way, should call upon that Government to exercise it.
But the gentleman from New York [Mr. FERNANDO WOOD] takes another position—a very strange position for any man to occupy at this late day of Christian civilization—and that is, that the condition of slavery is the proper and normal condition of the negro. I thought that that doctrine belonged to the past days of the Republic. ….
What ! the normal condition of a human being, his natural and normal condition, is to be that of a slave! What is the argument in favor of that position? What reason can be alleged for it? … According to this doctrine whatever is is to be continued, right or wrong.
The gentleman’s own ancestors were slaves as abject as any in the South. It has been but a few centuries since the gentleman’s own ancestors were bought and sold with the land upon which they lived. More than that, it has been but a few centuries since our mothers were themselves forced, by despotic law and custom, to submit themselves to liberties upon the part of their masters, and probably the little Norman blood that exists in his veins, if any does exist in the veins of that gentleman, is derived from that circumstance.
Suppose some wise statesman of that day had told our ancestors, when they were being bought and sold, that it was their normal and proper condition, because it was then their condition, what would the gentleman’s ancestors have said in reply to that argument? Ah ! when, the question comes to be turned the other side up; when the question comes to be put to a man, whether he himself will submit to be a slave, then it is time for him to say that slavery is the normal and natural condition of a human being.
I remember that, at the last session of Congress, a question was propounded to one of my colleagues [Mr. THAYER] something like this: whether he maintained that there existed power in the people of the United States, under the provision of the Constitution allowing them to alter their organic law, to so alter it as to establish slavery in any State where it does not now exist. The answer to that question is easy. Power can do anything that is possible to it, and when the people of the United States resolve by physical force to enslave any portion of a free people, I know of no means but resistance with the sword to prevent it. But I do say that there are some things that are not within the limits of human legislation. It is not within the limits of human laws to legislate away the soul of man; we cannot deprive him, by any process of legislation, constitutional or otherwise , of his free agency; we cannot legislate away his liberty. No man can sell himself. Hence no man can empower his Government to sell him. [snip]
By the fifth article of the Constitution of the United States power is given to three fourths of the States to change the terms of the compact at will, (except in the single item of representation in the Senate,) against the consent of the remaining States. Now, I desire to ask those who urge the principle of State sovereignty against the pending resolution whether the States, by subscribing to that article, did not ipso facto, surrender their sovereignty; whether a State, entering into even a mere treaty with other States, by the terms of which the treaty may be altered at will by the others against the consent, can after that, and under the treaty, still claim to be sovereign. It looks to me as if those who deny the power to pass this pending resolution, upon the ground of State sovereignty, will find it very difficult to answer that question in such a way as to justify the position they are taking. [snip]
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[Mr. Pendleton opposed the 13th Amendment]
Mr. PENDLETON. Mr. Speaker, I shall not detain the House long to-day. That this subject was under discussion at the last session of Congress I endeavored to maintain by argument that three fourths of the States did not possess constitutional power to pass this amendment. … I am constrained to say that I have heard nothing which has in the least degree weakened by faith in the conclusion at which I had arrived. It is because I cannot go beyond this question of power, because I am not at liberty to consider any other question, that I shall confine myself exclusively to its consideration. [snip]
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Mr. SMITH obtained the floor, and then, (at twenty minutes past four o’clock, p. m.,) on motion of Mr. WASHBURNE, of Illinois, the House adjourned.
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ABOLITION OF SLAVERY
The SPEAKER. The regular order is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Kentucky [Mr. SMITH] has the floor.
[Mr. Smith supported the 13th Amendment]
Mr. SMITH. Mr. Speaker, I ask the indul-
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gence of the House for a short time while I state as clearly as I can the reasons which will compel me to cast the vote I shall give upon this proposition. …. [snip]
Sir, the doctrine enunciated by a great statesman in 1832, that this is a Government of the people, is true to-day. This Congress emanated from the people; the Constitution emanated from the people; the States emanated from the people; and the people, not of Ohio, not of North Carolina, not of Kentucky, not of any other individual State, but the people of the whole country, have a right to control it as their best judgment may dictate; and when the people of this country see proper to alter or amend their fundamental law, whatever that amendment may be, if it is in harmony with that instrument itself and in accordance with the feelings and best interests of the people, he who dares proclaim the sentiment that it is not only the right but the sacred duty of a single individual State of this country to resist such an amendment when adopted, announces himself as a revolutionist now and forever, and deserves the desecration of men who favor law and order in the land. When this Government was formed, it was formed not by the individual independent sovereignties; it was formed by a united people who had assembled in their representative capacity for the purpose of making a stronger and more perfect Union; and they declared that that instrument which was to be the fundamental law of the Government might be amended in the way their interests might dictate. I do not, however, intend to debate the constitutional question; but I intend to lay down the proposition that it is the duty of the American Congress, under the present circumstances, to submit this amendment to the people, and that it is the duty of the people to adopt it; because, in my judgment, it was this isolated subject of slavery that produced the revolution or the rebellion; and only by getting rid of this subject can we give permanent peace and tranquility to the land. [snip]
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Now, why do I approve of this amendment of the Constitution? Why do I advocate it? Why do I make these declarations? It is because I want peace in the State of Kentucky; because I want the people of that State united; because I want the people of the country united. I know that the war began on the subject of slavery. The speeches in Congress indicated that. Mr. Davis himself declared it. The southern confederacy has so acted, and has so conducted all its correspondence and all its warfare, as to convince the world that the perpetuation of slavery was its leading object. …. [snip]
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Now, sir, there was the doctrine of consolidation, preached by the fathers of the Government, by the framers of the Constitution. Those men believed that the power existed in the Government to execute all the laws enacted by the Government, and that when the Government was formed the States gave up everything connected with sovereignty; there was nothing of it left in a single State. Therefore the idea that a feeble, insignificant State has the right to oppose a Federal law, a law of the nation, is obnoxious and abominable, leads to war and destruction and anarchy. It is a doctrine under which we cannot maintain the Government. [snip]
Mr. SMITH. I regard the present condition of our country in a different light from many men who have spoken in this House. I believe that the union of the States is an inevitable result of its war. I believe that just so certainly as these States were united under the original compact between our fathers, just so certainly will they, by the blood which is now being spilt, be brought back to a stronger union, a more surely perpetual union, and a more glorious union than it was before. …. [snip]
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[Mr. Cox opposed the 13th Amendment]
Mr. COX. Mr. Speaker, when we left these Halls last year there was a prospect that the administration of the Government would have been changed by the election. The political conventions of the two parties met. The party of the Administration made this amendment of the Constitution a part of their creed. They went before the people claiming the power to abolish slavery by constitutional amendment. Nowhere did the opposite party take ground against the power; everywhere they took ground against its exercise. …. [snip]
My colleague [Mr. C. A. WHITE] says the States are unlimited and absolute in their sovereignty, and therefore the federal Government is not sovereign. I ask him to beware where this doctrine leads. But may not the States in their unlimited and sovereign convention, deriving their powers from the original consent of all, give up portions of their sovereignty, modify it, as Mr. Calhoun holds, by the amendatory clause? May they not thus speak the most potential voice of the people of the States in all affairs? It is the people of all the States who consent to amending the Constitution, and by a mode which allows two thirds of both Houses to propose the amendment, which is to be sent to the Legislatures for the ratification of three fourths. First and last and all the time, the States are the constituents of the Federal Government, and as such, and by their State action, they can create and they destroy. I am of the State-rights school so far as this question is concerned, and of the strictest sect. [snip]
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Does it follow, as my friend from Iowa suggested, that I weaken my argument against the amendment because I argue its demerits while acknowledging the power to amend? … If it be true that a denial of the power is apt to be regarded as an apology for a mischief, do I not strengthen the argument by discussing the mischief? The mischief to be apprehended in this instance is not the abolition of slavery. It is the abolition by this amendment of our peculiar form and structure of Government. The argument which I desired to hear and meet should be directed to this point. Who cares, sir, whether slavery die or live, when the question is, “Shall the form and substance of our Government perish?” Show me that the Government will perish or be imperiled if this amendment is not carried, and I will vote it though all the devils in the South and North should confront me with their wrath! Show me that by voting against it I facilitate the reestablishment of the Government, in all its integrity, and my vote shall be against it. [snip]
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Mr. COX. Before I get through I will meet the statement of the gentleman. I believe this amendment, if carried out, will have a tendency toward consolidating power in the Federal head. Whatever it may be termed, I am opposed to compounding powers in the Federal Government. …. [snip]
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ABOLITION OF SLAVERY—AGAIN
[Mr. Woodbridge opposed the 13th Amendment]
Mr WOODBRIDGE. Mr. Speaker, I can well understand and fully appreciate the argument which my friend from Ohio [Mr. PENDELTON] advanced on the floor of this House yesterday, contending that there was no power in Congress to pass this resolution. …. [snip]
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HOUSE OF REPRESENTATIVES
January 13, 1865
ABOLITION OF SLAVERY
The SPEAKER. The regular order of business is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Missouri {Mr. ROLLINS] is entitled to the floor.
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[Mr. Rollins supported the 13th Amendment]
Mr. ROLLINS, of Missouri. Mr. Speaker, …. At the last session of Congress when the vote was taken upon this proposition I voted against it. On this occasion when the vote is taken I propose to vote for it. ….
Mr. Speaker, I entertain the same opinion to-day in regard to the rebellion that I have ever done. I feel the same animosity, the same hatred, the same contempt for it now, and for those who initiated it, as I did when it was first put on foot. …. [snip]
Sir, if I could save this Constitution and this Union by preserving the institution of slavery in its present status in the various States I would do it most cheerfully. … In other words, I adopt precisely the sentiment so felicitously expressed by the President of the United States in a letter which he addressed to Mr. Greely more than two years ago; and, in order to refresh the minds of these gentlemen who are pleased to give me their attention, I desire to read one or two sentences from that letter. It expresses the correct views, as I think, that all men who aim at the preservation of the Government should adhere to. The President said:
“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it; and if I could save it by freeing all slaves I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save this Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.”
That was the disposition of the President two years ago. That was my position two years ago; that is my position now. And what I propose to do now in the vote which I shall give upon this proposition, is simply because I believe that ultimately it will tend to save the Union; and to do that I am willing to do more now than I have heretofore done. …. [snip]
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Now, sir, I come to make a few observations …. If I believed this amendment to be unconstitutional, as a matter of course I would be bound by my oath not give a vote for it; but believing it to be constitutional, and believing also in the expediency of the measure, I shall vote for the amendment.
Is this amendment constitutional? How are we to get light upon this subject? My answer is, by referring to the instrument itself; and I have yet to meet the first gentleman on either side of the House who will deny the proposition that in accordance with the letter of the Constitution this amendment may be proposed to the States for their adoption or rejection. The provision of the Constitution which confers the power of amendment, and which I do not propose to read, has but two limitations, as has been repeatedly remarked in this discussion. So far as the letter of the Constitution is concerned, except in reference to those two limitations, Congress has the right and the power to propose any amendment to be adopted or rejected by the States themselves. According to the letter of the Constitution we are governed only by the two limitations found in the instrument itself.
And the next question which presents itself is whether there are any other limitations in the Constitution, except the restrictions found in the article itself, to prevent Congress from proposing this amendment to the States.
Mr. C. A. WHITE. I understood the gentleman from Missouri [Mr. ROLLINS] to say that no person upon this side of the House had advo-
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cated the principle that the letter of the Constitution put a limitation upon the power of Congress to pass this amendment. I beg leave to remind him that in the few remarks which I had the honor to submit on Wednesday last I made that distinct proposition. I contended that the word “amendment” was a limitation of itself; that the amendment must relate to some clause or provision already in the Constitution. And that this proposition now under consideration being to insert a separate and distinct clause in the Constitution, having no connection with any grant of power to be found in it, was a supplement to the Constitution and not an amendment; and that the very letter of the Constitution limited the power of Congress over the subject of amendments to the delegation of powers to Congress to amend the Constitution.
Mr. ROLLINS, of Missouri. My answer to the gentleman is, that all the amendments that have been made were open to the same objection. I was not so fortunate, Mr. Speaker, as to hear the gentleman’s speech nor have I had time to read it; but in reference to the question of limitation, I think that the best way to obtain light on the subject is to read what the Constitution itself says:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of it’s equal suffrage in the Senate.
The Constitution can only be changed by amendment, and, according to the gentleman’s theory, we can add nothing to it, however good or desirable, unless there was already “some clauses or provision in the Constitution” relating to the subject proposed to be added. This I regard as absurd.
Now, sir, I cannot for my life see, as my friend from Ohio sees, where there are any other limitations of the power of Congress, according to the letter of the instrument, than those which we find in the clause of the Constitution itself. The limitation is there according to the letter, and there alone; and if there is any other limitation in reference to the power of Congress, it must be outside of this article of the Constitution; and the next question which I propose to suggest, in order to come to a correct conclusion on this subject, is, is there any other limitation of the power of Congress in proposing amendments to this instrument? I assert that there is; and I adopt the very excellent view suggested in the running debate by the gentleman from Massachusetts, [Mr. BOUTWELL,] in answer to the distinguished gentleman from Ohio, [Mr. PENDLETON] and that is, that the limitation of amendment to this Constitution is found also in the very preamble to the instrument itself. I do not believe, sir, with my friend from Ohio [Mr. COX] that we have a right to make any amendment whatever to this Constitution, that there is no limitation except the express limitation contained in the clause which I have just read. There are other limitations, and those limitations are found, as I conceive, in the preamble preceding the Constitution itself. What is that preamble?
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“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Now, I do not believe that any amendment can be made to this instrument which has for its object, or whose direct tendency would be, to destroy the very object and purposes for which the Constitution was established. Therefore, sir, any amendment to this Constitution which would destroy “a more perfect union,” which would fail to “establish justice,” which would fail to “insure domestic tranquility,” which would fail to “provide for the common defense,” or to “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,” is not an amendment which may be proposed by Congress, or may be adopted and ratified by the States; and every Representative who votes must be a “law unto himself” whether any amendment proposed is in accordance with the Constitution. [snip]
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Mr. Speaker, the American sentiment is decidedly anti-slavery; and that is another consideration why I am willing to vote for this amendment. … We may as well unsheathe the sword and cut the Gordian knot!
I said, Mr. Speaker, that the American public sentiment is anti-slavery. I say now, from my own experience that the public sentiment of the
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southern people is anti-slavery. ….
Mr. Speaker, when the framers of the American Constitution in 1787 formed that instrument they committed a great mistake in not disposing finally and forever of the institution of slavery. If the venerable man whose “counterfeit presentment” [pointing to the portrait of Washington] stands before us upon the wall of this Representative Chamber could come from the sacred spot of Mount Vernon, which holds his ashes, and the question was put to him “Would you as President of that Convention, and the noble men who composed that body, now dispose gradually and directly of the institution of slavery upon this continent?” is there a man who hears my voice who would doubt what would be the answer of the Father of his country? It was not because they were not anti-slavery, but because they were afraid to deal with it. They had other delicate and important questions to deal with which prevented them from disposing of the institution of slavery. They were planting deeply upon this continent the foundation of a temple which was
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to last forever; a temple of liberty which was to shield not only themselves but their posterity, and that men in all time to come should take refuge there. …. [snip]
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Why not, then, leae the matter to the good sense and patriotism of the American people—the people of all the States? Why not cut this Gordian know? Why not dispose at once of this distracting question? We never can have tranquility and peace so long as it remains in the form in which it now exists.
[Here the hammer fell, another hour having expired.]
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[Mr. Garfield supported the 13th Amendment]
Mr. GARFIELD. Mr. Speaker, we shall never know why slavery dies so hard in this Republic and in this Hall till we know why sin outlives disaster, and Satan is immortal. Its marvelous tenacity of existence has outlived the expectations of its friends and the hopes of its enemies…. . [snip]
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I appeal to the facts of history, and to bring them clearly before us, I affirm:
I. That prior to the 4th day of July, 1776, these colonies were neither free nor independent. Their sovereignty was lodged in the Crown of Great Britain. I believe no man will deny this. It was admitted even in the first declaration of right by the revolutionary Congress that assembled in 1774 to pray for a redress of grievances. …
II. I affirm that no colony declared itself free and independent. …. [snip]
III. The sovereignty of this people, the, was first lodged in the revolutionary Congress; and it continued there until the 1st day of March 1787, when they lodged it in the Articles of Confederation. They established then a confederacy, properly so called; and even that confederacy was declared to establish a “perpetual Union.” Even it, with all its loose phrases and provisions, left small ground for the doctrine of secession.
IV. On the 21st day of June, 1788, a new lodgment of this sovereignty of the American people was made. It was then lodged in this Constitution of the United States under which we now act—lodged there by the action of the people. In each of these successive steps the people have altered and amended the fundamental law of the land as it has pleased them. In each change they have made a stronger and safer Government.
If the gentleman looks, then, for a kind of political “apostolic succession” of American sovereignty, he will find it in this order, and this would be the genealogy: first, the Crown and Parliament of Great Britain; second, the revolutionary Congress; third, the Articles of Confederation; and fourth and now, the Constitution of the United States.
Well, now, if no one of these colonies was sovereign and independent, when and how did any of the States become so?
But let us suppose, for the sake of argument, that up to the day of the adoption of our present Constitution the colonies were separately sovereign and independent. Who made the Constitution an authoritative instrument? It tells its own story best. “We, the people of the United States, in order to form a more perfect Union, &c., do ordain and establish this Constitution”—not “we the sovereign States, do enter a league, or form a compact of confederation.” In that great initial action of the people what limits or restrictions confined them? Absolutely no human power, no barriers of sovereignty. There was nothing to restrain them but the laws of nature and the laws of God as they understood them. Over that limitless expanse they ranged at will, and out of such material as their wisdom selected they built the fabric of our Constitution.
And now I ask my colleague [Mr. PENDLETON] by what means the will of this nation reaches me with its obligations? I answer, only as that will is revealed to me in the logical and grammatical meaning of the words and phrases of the written Constitution. Beyond this there is, there can be, no legal force or potency. If the amending power granted in the Constitution be in any way abridged or restricted, such restriction must be found in the just meaning of the instrument itself. Any other doctrine would overthrow the whole fabric of jurisprudence. ….
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I did not intend, Mr. Speaker, ever to address this House upon the subject of slavery. I had almost promised myself that I might turn my thoughts to other and larger fields soon to open before us; but when I saw the institution maintained again and again in this House I could not resist my inclination to strike one blow in hope of hastening its doom. [snip]
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ABOLITION OF SLAVERY—AGAIN
[Mr. Baldwin supported the 13th Amendment]
Mr. BALDWIN, of Massachusetts, obtained the floor. [snip]
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Mr. BALDWIN, of Massachusetts. Mr. Speaker, … I propose only to take some notice of what is said or implied in one or two of the arguments that have been urged against the measure now before the House.
1. One argument against the measure assumes that the people of this Republic cannot safely be trusted with control of the form of their national government. It is said that if we admit that the people have rightful authority to amend the Constitution so as to abolish and prohibit slavery, it will follow that the people have also authority to set up a monarchy, or do anything else that implies unlimited control over the form of their government, therefore such authority must be denied. That is to say, the right of self-government, the right of democratic institutions, the right of the people of these States to be the source and the organizers of political power in the nation, must not be admitted, because it would be dangerous to trust the people with full power to amend the Constitution and decide for themselves how and by what methods they will be governed.
2. It appears to me that in the discussion of this question of power to amend the Constitution two things have been confounded that should be considered separately. One is, what can be done to amend the Constitution within the limits of that instrument, while preserving it and along with it the republican form of government it has created; the other is, the right of the people to change the form of their government by setting aside the present republican Constitution and putting in its place another constitution entirely different. No man will deny that our national Constitution requires a republican form of government. Nor can it easily be denied that not only the preamble but also the whole intent and spirit of the instrument require all amendments to be in harmony with republican principles. But it does not follow that the people of these States have lost the right to change entirely the form of their government by means of a new Constitution regularly adopted. You may call such a change of the form of government “an amendment of the Constitution” if you will, for in securing it the same method must be pursued that is required for the most unimportant change; but you must admit that it is an amendment “in the nature of a substitute.”
But let us consider what is chiefly meant by the representation that the measure before the House “changes the form of the Government.” It is quite possible that some gentlemen are not yet emancipated from the notion that slavery itself is the chief thing in our form of government. For years the slave power was persistently put forward as “the Constitution and the laws.” Slavery and nothing else is meant now, by some gentlemen, whey they put on and countenance and talk mournfully of “the Constitution as it is and the Union as it was.” It is not surprising that such people talk as if the form of our Government would be wrecked and the foundations of the earth put out of course if slavery should be swept away by such and amendment of the national Constitution. But their astonishing monomania does not change the nature of things. It cannot transform a devil into a seraph, nor make an outrageous barbarism pass current as Christian civilization. But, in this discussion, the representation that the measure now under consideration “changes the form of our Government,” has chiefly meant that it denies that theory of “State sovereignty” to which secession treason appeals for justification, and which is so pertinaciously urged here by some gentlemen on the other side of the House. They assume that his disorganizing theory describes correctly the form of our Government, and, of course, proceed to talk as if the Government itself would be wrecked if their theory of “State sovereignty” should fail to regulate the proceedings of Congress and the people. In their view “the form of our Government would be changed” by any measure that should spurn this pestilent theory and trample it under foot; a theory that is utterly unwarranted by anything in the national Constitution or in the history of our political institutions.
Our National Union was established by the Declaration of Independence. Previous to that Declaration there were no States; there were only colonies and dependencies of Great Britain. The Union and the States came into existence together as a union. By the Federal Constitution this national Union was organized, consolidated, and made more perfect. The doctrine of independent State sovereignty was not tolerated in the constitutional Convention, for the men who controlled that Convention and represented the spirit of the country meant that this Republic should be a great and inseparable nation. After the national Government was fully organized, and during the administration of John Adams, while the country was agitated by a storm of political excitement, the factious vehemence of the Opposition gave birth to this doctrine, that the national Union is merely a compact, league, or agency of independent State sovereignties. I refer, of course, to the notorious Kentucky and Virginia resolutions of 1798 -99. I do not think the men of that time who were concerned in this business understood very well what they did. Certainly they did not mean all that has since been meant by the nullifiers and secessionist. [snip]
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Mr. Speaker, If we have learned anything from the sad experience of the last three or four years, it is that slavery should be destroyed in this Republic, and by an amendment of the national Constitution be forbidden, and made for evermore impossible wherever the national banner floats as the symbol of our national sovereignty. Why should slavery be so strenuously supported at the present time? It is an outlaw to civilization; and this southern treason has now made it an outlaw to the Government, to patriotism, and to all honest regard for the welfare of the nation. The slave power has bred traitors as naturally as foul vapors breed disease, or as a den of thieves breeds villainy. Any compromise with it would necessarily become to us “the mother of woe, and death, and hell.” Let it be destroyed, for our republican institutions cannot be safe while it exists! Let it be destroyed that the rights of man may be vindicated and eternal justice satisfied.
Mr. BROWN, of Wisconsin, obtained the floor, but yielded to
Mr. HIGBY, who moved that the House do now adjourn. [snip]
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HOUSE OF REPRESENTATIVES
January 28, 1865
ABOLITION OF SLAVERY
The House then proceeded to the consideration of the motion to reconsider the vote by which the House, at its last session, rejected the joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States so as to prohibit slavery in the several States; upon which Mr. BROWN, of Wisconsin, was entitled to the floor.
Mr. BROWN, of Wisconsin. When I obtained the floor upon the close of the debate when this subject was last under consideration, it was with the expectation of opening the discussion on Tuesday next, to which day this subject had been postponed. I desire to ask unanimous consent that I be allowed to follow the speaker who may close the discussion to-day, and be entitled to the floor when the consideration of this subject shall be resumed on Tuesday next.
The SPEAKER. The gentleman from Wisconsin [Mr. BROWN] asks permission to waive his right to the floor to-day, and that he shall be considered entitled to it on Tuesday next. Is there any objection? [snip]
Mr. HIGBY. I had supposed that I should immediately follow the gentleman from Wisconsin [Mr. BROWN] in this debate. That was one reason why, on the day that he obtained the floor, I moved the adjournment; in order that he might have a full opportunity to be heard when the question should come up again, and that I might immediately follow him. But he has obtained leave, by unanimous consent, to speak on Tuesday next, the day when the question is to come up again. [snip]
Mr. SPEAKER. Although no entry will be made on the Journal, the Chair will feel bound to recognize the gentleman from Wisconsin [Mr. BROWN] as entitled to the floor, if he claims it on Tuesday next, after the one who shall have obtained it at the time of the adjournment to-day shall have concluded his remarks.
[Mr. Higby supported the 13th Amendment]
Mr. HIGBY. Mr. Speaker, amid the long debate that has occurred upon this question, not only at the last session but also at this session, three classes of objections principally have been raised upon the other side of the House. One of them is that the Constitution of the United States contains no provision by which we can make an amendment of the character proposed in the resolution now before the House; another, joined with the objection I have just named, is that it is inexpedient at this time to make this amendment; and the third objection is, that slavery is the true condition of the African race.
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Mr. Speaker, objections of this kind are the only ones which at this time men could possibly raise to the passage of this resolution. The first of these statements savors of the argument which has been used for scores of years, that the States were complete sovereignties when they organized the General Government. The proposition is very simple, very direct. It is a matter of fact in history that the States never were separate and independent. As dependent colonies, they united together for the purpose of gaining their independence and securing a separation from the mother country. They were dependent colonies at that time, but through their union and their united action independence was obtained. And having obtained their independence, the very first action on their part was to establish a constitution for a General Government over all.
They established a Government under the Articles of Confederation, which, for the sake of distinction from the present Constitution, I will designate as the former Constitution. Then they had established that Government, there was no State government that could exist for any time except by virtue of the Confederation. When they had continued under that form of government until they found that it would not accomplish its ends and objects, they established the present Con-
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stitution; and it was established for the purpose of common defense, for the purpose of giving to the States under the General Government such local powers as the General Government saw fit to give; and they could not exist as separate and independent States except by virtue of the General Government which the people established. Under that Government, the States could have no separate, independent sovereignty.
Now Sir, two of the Articles of Confederation explain the object of the establishment of that form of government. The third article contains virtually the preamble; it declares the objects and the purposes of establishing that Constitution. It reads thus:
“The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.”
In this article is embraced a declaration of the objects and purposes for which this Government was established; and it was under this as the Government of the United States that each State had whatever local government it could possess secured to it.
But, sir, in order to understand the full object and intent of that form of government, it is necessary to read the last or thirteenth article:
“Every State shall abide by the determination of the United States in Congress assembled on all questions which by this Confederation is submitted to them; and the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any attention at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State.”
It will be observed, Mr. Speaker, that this article corresponds with one portion of what we find in the preamble of the present Constitution:
“The Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual.”
Now, sir, the third article which I have read and this last one embrace all the objects and purposes for which this first Constitution was established, “for their common defense, the security of their liberties,” and to make a Union that should be perpetual.
This instrument was used for a few years as the one through which the General Government was operated. But, sir, it was found to be weak and imbecile; it was found that there was not power enough at the center, and that the vitality at the extremities was so great that the danger was the breaking up of the Union and the defeat of the objects for which the Government was organized. A convention was called, delegates being sent from various States of the Union; and the result of the work of that convention was to give us the present Constitution under which we are operating our Government. Now, sir, let us see how long the rule which was prescribed for the amendment of the Articles of Confederation was regarded by the men who established that form of government when it had been found that it did not secure the great objects for which it was created, and how long a constitution was allowed to stand in the way of preserving the Union and securing the liberties of the people.
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The result of that convention was the Constitution which we now have, with the exception of the twelve articles which have since been added as amendments. What is very singular, is that the last article of the present Constitution reads thus:
“The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”
That article of the Constitution is in complete violation of the last article of the first Constitution, which required that any amendment should be sanctioned by every State in the Union before it became a part of the Constitution; but under this article of the present Constitution, when nine States had ratified it, it should be established as the Government of those nine States.
What was the object of establishing this new Constitution? Now, sir, there is something a little singular, something marked, something that is worthy of attention, that had reference to the Articles of Confederation. The States united in making them, while the preamble to the present Constitution declares that—
“We, the people of the United States, in order to form a more perfect union, &c., do ordain and establish this Constitution for the United States of America.”
The Articles of Confederation declared that the Union should be perpetual, but when they who established it found that it would not answer, they framed another Constitution, and announced their purpose in the preamble. The preamble declared that “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” It was to establish a more perfect union than the original one. The Articles of Confederation could not stand in the way of the accomplishment of these declared purposes. The old frame of government was swept away, and another was substituted in its place. That was in entire violation of the original instrument. The liberties of the people made it necessary, and the matter could not be referred to the people except by pursuing such a course.
It is said, sir, in this House that the Constitution cannot be amended in the manner proposed in this resolution and in regard to the subject-matter embraced, notwithstanding the Constitution provides the mode and method by which it may be amended. There is but one method provided for amendment. It is the mode attempted by this joint resolution. The Constitution provides that a two-thirds vote of both branches of Congress shall be required to pass a proposition for amendment; and it is further provided that it must be ratified by the Legislatures of three fourths of the States before it shall become a part of the Constitution of the United States. It is the method now adopted in the proposed amendment.
I lay down this proposition, sir, that when the States ratified the Constitution they yielded and subscribed to all the provisions of that instrument, among which provisions is the method by which the Constitution could be amended. What does a State subscribe to when it ratifies the Constitution? It subscribes to the objects and purposes declared in the preamble. It subscribes to what is contained in the first article. It subscribes to every article in that instrument, and among others it subscribes to the one which provides for an amendment to the Constitution. There is no exception. I say that whenever the States finally ratified the Constitution they subscribed to the provision by which that Constitution could be amended.
But, sir, the objection is raised that certain articles of the Constitution prescribe the powers that are granted to the General Government and the rights reserved to the States, and which are not granted to the General Government. I ask the gentlemen who raise this objection where in the Constitution they find it. They do not find it anywhere in the first seven articles of the Constitution adopted by the Convention and ratified by the States. They do not find it there, but they say that we will find it among the amendments. I turn to them and find certain rights are reserved—articles nine and ten are the ones they refer to.
Article nine provides that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people;” and article ten provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Here is where they find ground for their argument. Mr. Speaker, until these amendments were added to the Constitution there were no rights reserved to the States. I do not think that will be disputed.
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Now, sir, where did these amendments originate? If they have not come to the Constitution by virtue of this power of amendment they do not belong in it. If any rights have been reserved to the States they have been reserved by these express words of the Constitution, and these express words are given to the Constitution by a two-third vote of the House and Senate, and by the ratification of the Legislatures of three fourths of the States, and these are simple amendments of the Constitution by the method which the Constitution proposes, and by pursing precisely the same process we are trying to pursue in order to make this amendment.
Again, sir, is it pretended that anywhere in the Constitution it has been expressed that it requires the assent of every State to an amendment, or that we are required to pursue any other course than the one that is prescribed and expressed? These amendments have been made by this same process; and in those amendments it is not declared that to take away any one of these rights will require the assent of every State of the Union. These amendments have not attempted to amend that portion of the Constitution which instructs us how amendments shall be made, but simply express and declare the reservation of those rights to the States or peoples of the States not enumerated in the powers granted; and, sir, whatever a two-third vote in Congress has proposed, and the ratification of the Legislatures of three fourths of the States have added to the Constitution, a two-thirds vote of Congress and a ratification of three fourths of the States can take away. And will it be pretended that there is not the same power, and by precisely the same process, to remove from the Constitution articles nine and ten?
And if that be true it is in the power of Congress and of these States, by precisely the same process, indirectly to reach any question which might be the annihilation of any portion of the Constitution, under the same process. I will, Mr. Speaker, suppose for a moment, for the sake of argument that we have no power under the Constitution to propose in this body, to be ratified by three fourths of the States, an amendment taking from the States any one of the rights reserved. I suppose that for the sake of the argument, and for the purpose of presenting another point, and under that supposition I will submit to members this question: what are rights reserved? The preamble of the Constitution declares certain purposes for which the Government is established. The States and the people of the States have given in their adhesion to that instrument, and they have united together for that purpose. Now, sir, what are rights reserved? Are they rights to establish institutions or to do anything by their local governments that should destroy the force and effect of the powers granted? Or are the rights reserved those only which would aid to carry out the objects and purposes of the General Government itself? Why, sir, the commander of an army who divides his forces and sends a portion of them against the enemy does not keep his reserves back to war against those he has sent in advance. They all go to the aid and support of the portion sent in advance provided the enemy is too much for those in front, and when the commander, with practiced eye, observes that it is necessary for the reserves to go forward, they go forward to the same kind of work that those are engaged in advance. Those in advance and the reserve both cowork and do battle together for one common object, the conquest of their common enemy.
Rights reserved? Why, just look at these amendments which have already been made, and you will find that they were all for the purpose of securing liberties to the people, and not for the purpose of giving to them power of oppression and despotism. Rights were reserved, fearing that the General Government might be too strong or too weak; if too strong, that it might trample under foot the liberties of the people, might establish despotism; rights were reserved, if it proved too weak, for purpose of keeping vitality in the General Government, that it should be administered for the purpose of securing liberties to the people, insuring domestic tranquility, providing for the common defense, and promoting the general welfare. Reserved rights! Were any rights reserved that any State should nourish within itself institutions of any character which should create turmoil, tumult, war, and bloodshed throughout the whole land? Why, sir, one of the very objects for which this Constitution was established is being violated by an institution cherished by State governments. It has been the sole cause of the four years’ rebellion and war, and we are told that we have no power to amend the Constitution, to aid in getting rid of the evil.
If such was the case we might as well surrender and say that we have no Government at all, because this institution which we are taking steps according to the Constitution to remove is the very one which lies at the foundation of the whole struggle, bloodshed, distress, and desolation,
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which have prevailed all over the land for the last four years. We have a practical illustration. When the Constitution is turned to for the purpose of showing a limitation of time within which certain subjects should not be interfered with, we find that up to 1808 it was claimed that the States could employ themselves in the slave trade; but after that time Congress could legislate, without any amendment of the Constitution, and prohibit it. I have no doubt, Mr. Speaker, that it was believed by the framers of the Constitution that when Congress could reach the question it would put an effectual stop to the slave trade, and that that would be the end of the institution itself.
The slave trade was a constant feeder of the institution until that time. It was supposed that it must have this great source of supply or it would become exhausted and wear itself out; and no doubt such was the logic that influenced the minds of the men who framed the Constitution, that when Congress could reach it by its power after the 1808, it would deal an effectual blow to slavery, and that it would finally become extinct. But with the great experience that they had, there has been the experience of years since, and such an experience as shows that instead of its wasting away, even with the checks that this Government could put upon that trade, slavery has been increasing with great rapidity, and slaves have increased in number faster in proportion than the white population of the country. That, therefore, would destroy the proposition they advocated and the conclusion to which they came. I have no doubt if they could only have looked into the future and seen the results as time has developed them, they would have made a provision in that instrument by which Congress could have exercised control over the institution of slavery for its ultimate extinction.
To my mind there is no question, not the least, in relation to our power. We have the power. This cannot be a right reserved to the States. When we see the evil which it generates, when we see its effect upon the welfare of the country, when we see how much of internal commotion and turmoil it has occasioned, we must see at once that it is a disturbing, a destructive element everywhere; not only in the States where it exists, but in the States where it does not exist. It affects the general interests of the entire country and the nation. There is no domestic tranquility now, and there never will be while this institution remains in the land.
This question of expediency it seems to me is but a mountain of frost which an hour’s sun will entirely annihilate. There never was a time when the expedience was so great. Expediency or inexpediency does not enter into this question for a moment. Now is the time, this session of Congress, as speedily as we can act, for us to pass this measure, and then State after State will take it up and act upon and ratify it.
And in conclusion, for I do not propose to occupy the time of the House much longer, I will venture the assertion that if this resolution passes this body by a two-thirds vote, some State that either now has, or within the last four years had, this institution of slavery within its borders, will be one of the first and the swiftest to ratify this amendment to the Constitution, and if their Legislatures can meet we will find State after State doing the same, and if those in rebellion should lay down their arms, and ask to be allowed to come back into the Union, they will come with constitutions remodeled, and with this amendment ratified along with their constitutions. And we would get more than a three-fourths vote, even in the fifteen slave States. The revolution in public sentiment is going forward, and as those States come, one after another, and knock at the door of Congress and ask that their Representatives be again admitted upon this floor, they will come with free constitutions, and will accept this proposition as it goes from Congress, and will cheerfully ratify. They will accept the terms joyfully, as contributing to their domestic happiness and prosperity, as well as to the national welfare.
We find the most strenuous opposition to this measure coming from free States. The Representatives from free States are the most urgent and vehement in their opposition to this proposition. What a sad picture is thus presented. While the great mass of those who come here from the slave States are asking that this great boon be given them, and that they may be enabled to get rid of an institution which presses upon them directly, and indirectly upon every State in the Union, the gentleman from New York [Mr. FERNANDO WOOD] is taking still stronger ground, and in advance of others who oppose this proposition. His position, among others, is that the true condition of the African race is slavery. He is one of the Representatives of a State that has over four million inhabitants. [snip]
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Mr. Speaker, but one wish possesses me in regard to this subject: it is that this resolution may pass. I hope that the obstacles which have been raised by members upon the other side of the House will in their own minds melt away, and that they will realize the true condition of the country and see that the only way to restore the peace that the country needs is is to pass this resolution and submit it to the action of the Legislatures of the several States. I have no doubt as to the conclusion at which the States will arrive. I feel confident that we shall have the ratification of at least three fourths, if not more, and thus settle forever a question that has caused so much painful anxiety to every lover of this country.
[Mr. Finck opposed the 13th Amendment and slavery as an institution]
Mr. FINCK. Mr. Speaker, the resolution under consideration has been discussed so fully that I shall content
myself with stating very briefly some of the reasons why I shall vote against its passage. …. It seems to me that gentlemen have mistaken the true issue involved when they argue that opposition to this resolution is to favor slavery. Sir, I know that for myself I am not the friend or advocate of slavery. I know that the Democratic party of the North is not now and has never been a pro-slavery party. In a speech which I delivered on this floor at the last session, I took occasion to say that “I do not defend slavery. I am not its advocate or friend. I have no interest whatever in the institution. If it must die, as the legitimate result of the organization of the rebellion, let it perish.” I repeat that today.
This is not a question whether slavery is right or wrong. It is not a question whether slavery ought to be continued or abolished; but it involves the question whether we are willing to surrender to the Federal Government the power to interfere with and regulate the domestic affairs of the States. I will not consent to aggregate new powers in the hands of the Federal Government at the sacrifice of the States. …. [snip]
There was no question discussed in the Convention which framed the Constitution more carefully considered than that of the division of powers between the States and the Federal Government. … The Convention was firmly opposed to a strong national Government, and in favor of a Government with limited and well-defined, specific powers, with a reservation to the States and people of all the powers not delegated. …. [snip]
Gentlemen in this discussion have seen proper to denounce what is denominated “States rights.” I do not precisely understand what they mean by this course of argument. If it is meant that the States have no right to secede and destroy the Union, I will agree with them in that, because I deny the existence of any such right. But if it is meant that the States do not possess certain well-defined and understood reserved powers, which are sovereign in their character, and which cannot be invaded or subordinated by the Federal Government, then I take issue with them. The United States, under the powers delegated to it by the Constitution, is supreme in the exercise of all powers thus delegated. The Constitution is the life of the Federal Government; it cannot exist without it, and outside of that instrument enjoys no powers. Within the powers delegated to it by the Constitution it is supreme; but the States are also supreme in all their reserved powers. Both the Federal and State Governments are supreme each in their own respective and constitutional sphere. Does any gentleman controvert this proposition? Even Alexander Hamilton, the ablest and strongest advocate of centralized power, admits this much. In a speech which he delivered in the New York convention he said:
“The laws of the United States are supreme as to all their proper constitutional objects. The laws of the States are supreme in the same way. Suppose both Governments lay a tax of a penny on an article: had not each an uncontrollable power to collect its own tax? The meaning of the maxim, there cannot be two supremes, it simply this—two powers cannot be supreme over each other.”
And speaking further on the same subject, he says:
“I maintain that the word supreme imports no more than this, that the Constitution, and laws made in pursuance
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thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all proper objects and powers of the General Government. The States, as well as individuals, are bound by these laws; but the laws of Congress are restricted to a certain sphere, and if they depart from this sphere they are no longer supreme or binding. In the same manner the States have certain independent powers in which their laws are supreme. For example, in the making and executing laws concerning the punishment of certain crimes, such as murder, theft, &c., the States cannot be controlled. With respect to certain other objects, the powers of the two Governments are concurrent and yet supreme. [snip]
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[Mr. Washburne supported the 13th Amendment]
Mr. WASHBURNE, of Illinois. I do not propose, Mr. Speaker, to make any speech upon the subject before the House. I have no occasion to define my position on that question or questions kindred to it. But in connection with the remarks which have just fallen from the gentleman from Ohio [Mr. FINCK] in opposition to the passage of this constitutional amendment, I desire to say that he differs radically from distinguished gentlemen of my State of his own party. The Legislature of Illinois is now in session, and resolutions have just been before it instructing our Senators and requesting our members of Congress to vote for the passage of this constitutional amendment. In the Senate there was a very able and elaborate discussion upon the subject, and out of eleven of the Democratic members of that body only five voted against the resolutions of instruction. …
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… A tribute of respect is due to all these Democratic gentlemen in our Legislature who declared by speech or vote their determination to permit the people of the United States to amend the Constitution, to wipe out the institution of slavery, so wicked and infernal in itself, and which has brought such untold horrors upon the nation.
[Mr. Cole supported the 13th Amendment]
Mr. COLE, of California. Mr. Speaker, the dominion of force is giving way to reason. The rightful relations of men to each other are being understood and acknowledged. Mutual reliance is a law of civil society, and there is no such thing as absolute independence among men. Whatever is beneficial to a portion, says the political philosopher, is beneficial to the whole community; and whatever is injurious to a portion is injurious to the whole. Every individual is therefore interested in the welfare of every other individual, and this without limitation or qualification. The obligation to render justice is as wide as the universe, and neither nation nor individual can override it with impunity. This rule has been recognized by the more enlightened Governments in their action upon the subject of slavery. Much has been done with the last century to destroy this acknowledged evil, and the United States has not lagged behind in the work. ….
[Mr. Starr supported the 13th Amendment]
Mr. STARR. Mr. Speaker, after the lengthy and thorough discussion of the question before the House by the many able gentlemen who have preceded me, an humble individual like myself cannot hope to say much with reference thereto that will be new, neither can I expect to influence the opinions of any gentleman upon the floor of this House upon this important subject. ….
In the first place, Mr. Speaker, …. I am, however, quite willing to say, that if the people of the United States have the power to amend the Constitution as proposed, then we are proceeding in the proper manner to enable them to exercise that power if they choose to do so; that they should have the opportunity to determine for themselves whether or not they desire such amendment, and that I envy not the man who, professing to represent a free people, is at the same time unwilling to accept their judgment upon the institutions of the Government. …. [snip]
And now, Mr. Speaker, I wish to make a brief reference to the speech made by the gentleman from New York city, [Mr. FERNANDO WOOD.]
In his defense of the institution of slavery he cited the cruelties of the negro race in their native wilds as a justification for enslaving, or rather continuing the enslavement, of that portion of the same race who are living under the influences of Christianity and civilization. Now I do not propose to discuss that proposition, it is too absurd for serious discussion, but I refer to it to commend to his enlightened wisdom and philanthropy the consideration of the disposition to be made of that people who so recently, in a locality with which he is so familiar, a locality claiming and possessing a high degree of Christianity and civilization, enacted scenes of cruelty and barbarism upon a civilized Christian people that rivaled anything he can find in stories of African travel.
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[Mr. Patterson supported the 13th Amendment]
Mr. PATTERSON. Mr. Speaker, …. If our Government were purely national, a majority of the people could amend the Constitution; if purely federal, it would require a concurrence of each State of the Union; but being a combination of both, a majority of the votes of the Legislatures or conventions of three fourths of the States was fixed upon by the framers of the Government as a compromise method of amendment. Here, I apprehend, is the cause of our divergence upon this overshadowing question. We take the one side or the other according as our reading and habits of thought have led us to give prominence to the federal or national element. [snip]
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Sir, there is but one conclusion which can be logically reached on this question. If our Government were purely confederate, the consent of each party to the contract would be necessary to an amendment of the Constitution. If it were purely national, a major vote of the whole people would make it binding upon all, though the unanimous vote of entire sections were against it, for the organic law is their legislation. But being a mixture of both, the people have made it the law that the major votes of three fourths of the States, however given to any amendment, shall be binding upon all. That is the Constitution, and New Hampshire, and Kentucky, and every other State must be bound by an amendment so ratified, though the unanimous votes of the State should be cast against it. And the right of Congress to recommend amendments by prescribed methods is as broad as the right of amendment itself. I do not deny that a State, under these circumstances, may repudiate the plighted faith of the fathers, and elect a revolution rather than submission. But, sir, when any one of the old sisterhood of thirteen, or any daughter since born into the family of States and reared into a vigorous and prosperous maturity by the fostering care of the Government, shall thus prove recreant to the original bond, let her not complain if she is forced to drink the cup of blood and desolation to its very dregs, and let the unhallowed footsteps of no man desecrate these Halls consecrated to liberty who would justify or palliate “the deep damnation of her taking off.”
And now, sir, are there any limitations except those specified in the Constitution to the right of amendment? One gentleman asserts that limitations are “to be found in its intent, and its spirit,
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and its foundation idea.” Another tells us we are to look for limitations in the preamble to the Constitution. But as the preamble is only a general expression of the intent, and spirit, and underlying idea of the instrument itself, the difference between the honorable gentlemen is one of definitions, and not of ideas. Justice, tranquility, defense, the general welfare, and liberty are the ends of government, but the English definition of justice and liberty in the twelfth century is not the definition of the nineteenth. Our interpretation of these terms in the future of our history will vary with education and local prejudices. The means which we should feel authorized to employ for the public defense and general welfare might have been deemed extravagant, and possibly revolutionary in the piping days of peace.
To say that this power is limited by the idea of the Constitution, however or wherever expressed or implied, is as indefinite as to say that extension is limited by space. Who, sir, is to determine the intent of the organic law, and the proper means by which its objects are to be secured, but the people themselves? And will not their ideas advance and change with the progress of civilization? That there are moral limitations to legislation and to popular sovereignty, I should be the last to deny. This constitutes the higher law, which when violated either by legislative assemblies or by popular majorities, justifies, nay sanctifies the exercise of the right of revolution. But our fathers were not guilty of the extreme folly of attempting the impossible task of enumerating all possible applications of the divine law of limitations. [snip]
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The past was not lost upon the men who framed our Government. The right of amendment and the system of representation, by which men familiar with public opinion and the wants and prejudices of the masses are brought to the work of legislation, enables us to mold and adapt our Government and laws by peaceful methods to the progressive changes of society. This was not accident, but a wise provision of political sagacity. Again it is claimed that the passage of this resolution would interfere with the rights of property, and is therefore unconstitutional. I might reply that the municipal act upon which the right to property in man is predicated is in contravention to the law of natural justice, and cannot establish a claim which “white men are bound to respect.” Theft and robbery, though sanctioned by legislative authority, cannot absolve man from his allegiance to that law which is supreme and infallible. The enactment which reduces an accountable being, however humble and degraded, to the condition of a chattel, that subjects him to unrequited toil and hopeless ignorance, that multiplies men for the market, oblivious of domestic ties, and presses the cup of mixed and measureless woe to the lips of helpless women and innocent children without pity and without remorse, has no force as law. I diffidently, but fearlessly, deny, upon this floor, that any assembly of human law-makers ever possessed the power to create a right of property in man which we, as men, or citizens of the Republic, are bound to respect. Why, sir, the humblest daughter of sorrow that ever crouched beneath the lash of the task-master, lifting her fervent prayer to that Judge “that no king can corrupt,” appeals to a tribunal before which the trembling slave stands the peer of her proud master, whose pleasure is the price of her shame, and who eats bread in the sweat of her brow.
But, sir, allowing this claim of property in black men, will it not be pertinent to the argument to call to the remembrance of this House the direct interference of the framers of the Government with this prescriptive right, by laying a constitutional prohibition upon the commerce in men? Will it not be germane to the question to remind gentlemen that the eloquent Henry, in the convention of Virginia, opposed the adoption of the Constitution on the plea that, if made the fundamental law by the adoption of the people, it would give, not to the nation through the right of amendment, but to Congress directly, the power to abolish slavery. Patrick Henry did not stand alone in that interpretation. Similar views were entertained in the convention of other States. Now, I claim that the fears of those gentlemen of what they supposed had been done were an admission of what might be done. I have yet to learn that the statesmen of that day argued the incompetency of the people, directly by a constitutional provision or indirectly by an act of Congress based on a grant of power in the Constitution, to abolish what all admitted to be a moral wrong and a political evil. Their opposition was based on the plea of political policy and social necessity, both of which have been reversed in this grander revolution of our time. … [snip]
In seeking to purge our institutions of the mortal taint of slavery, in seeking to rescue our liberties by an organic change from the fatal imperium in imperio, it is not necessary to fix the ethnological position of the African or to prove his equality with the white races. Remembering that the descendants of the sons of Israel are now a by-word and a hissing among the Gentiles; that the barbarian whom the proud old Greek despised has become his master in all the arts and virtues of a Christian civilization; that the offspring of the half-civilized and bloody men whom the Roman historian located in the forests of Germany and Britain are now giving literature and science, liberty and law, to the nations, let us deferentially leave to the African, who since the building of the monuments of Egypt has borne the burdens of the world, to solve the vexed problem, and, under Providence, to determine for himself his appointed place in the social scale. If the poets and orators of the sable race, whose light has fallen upon our horizon, are the morning stars of a brighter day that is to dawn upon that benighted family of men, let not us who have grown rich upon their docile labor and long-suffering, be found fighting against the counsels of Him who should “work within us both to will and to do of His own good pleasure.”
Nor need we be frightened with the horrors of miscegenation which have been drawn with such artistic skill by my learned friend from Ohio. This deadly Upas is only the product of a night, which has grown without roots and lost its promise of political fruits in the rhetoric of flowers. The African, sir, has been driven North by the force of slavery. Let him be free, and he gravitates to the tropics as naturally and as certainly as the winged people of the air migrate at the approach of winter. The laws of nature will not accommodate themselves to the policy of party politics. [snip]
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The amendment of the Constitution by the people, to which the passage of this resolution looks, will effect an immediate good. It will give an easy and ready solution to the difficult questions arising under the proclamation of emancipation and bills of reconstruction.
[Mr. Morris supported the 13th Amendment]
Mr. MORRIS, of New York. Mr. Speaker, I do not propose to make a political speech on this occasion, but only to discuss the question of the power of “the Congress” over amendments to the Constitution of the United States. Whatever power “the Congress” may have in this behalf is derived from article five, section one, of the Constitution, which provides—
“The Congress, whenever two thirds of both Houses shall deem it NECESSARY, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth estates of the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”
If this language is to receive ordinary interpretation I cannot well see how legal minds can differ in its construction. It expressly provides for an amendment of this instrument, and it clearly defines the mode of procedure.
There are but three restrictions upon the action of Congress in the letter of this instrument, one of which relates to the migration of persons prior to the year 1808, and the others to taxation and equal suffrage in the Senate. As far, then, as the question under consideration is concerned, it is precisely the same as if there were not limitations whatever in the Constitution. “The Congress,” thus empowered, as defined by the Constitution, “shall consist of a Senate and House of Representatives.” This body is now in session, and it proposes to exercise of its supposed powers. [snip]
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I conclude, therefore, that “the Congress” has the power under the Constitution to propose amendments thereto when two thirds thereof shall deem it necessary, and that three fourths of the several States may approve of or reject such propositions at will. This being so, the necessity or expediency of the measure remains.
A few words upon these points and I have done. Were it not for certain erroneous adjudications of our State and Federal courts, I apprehend the proposed amendment were wholly unnecessary. I am firm in the faith that the Constitution of the United States, properly interpreted, would tolerate no slave within its jurisdiction. Slavery and our accumulated woes have grown out of an erroneous construction of the provisions of this instrument. There is no law by virtue of which man can be held as property. Were such laws enacted, being in direct conflict with the “foundation idea” of our Constitution, they would be void. In this I am sustained by the honorable gentleman from Ohio, [Mr. PENDLETON,] who says, “Congress can no more make a slave than it can make a king.” His object, however, was to show, if Congress cannot make a slave, therefore it cannot unmake one. But if Congress “cannot make a slave,” pray how can a State? Has Congress as much legislative power as has a State Legislature? Nay; the honorable gentleman is right in his assertion; and I will affirm that no legislative power under the jurisdiction of our Constitution can make a slave. If this is true, the necessity of this amendment arises from the erroneous adjudications of our courts. They, not withstanding the great doctrines of the Constitution, have recognized property in man. Hence the necessity of a provision positively inhibiting slavery in any of the United States. Sir, it is sometimes alleged that the framers of the Constitution entered into a compromise upon the subject of slavery prior to its adoption. This I deny. This compromise was not between freedom and slavery, but it was a compromise solely between the majority and the minority of the people of the United States. Had there been a compromise between freedom and slavery, the representatives of the latter would have demanded the insertion of a clause in the Constitution similar to the amendment proposed by Mr. Crittenden, of Kentucky, in 1861, which the honorable gentleman from Ohio [Mr. PENDLETON] voted for. It reads as follows:
“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere within any State with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”
The majority agreed never to insert any new provision into the organic act unless two thirds of the Congress should deem it necessary, and then three fourths of the States should approve of it before it should be valid. Thus guarded the minority undertook and provided that they would yield obedience to all and any changes thus inaugurated and approved; provided always they did not conflict with the letter or the spirit of this organic act.
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[Mr. Pike supported the 13th Amendment]
Mr. PIKE. Mr. Speaker, I did not expect to take part in this discussion. … And I do not rise now, sir, so much to discuss and argue as to express my gratification at the prospect of the early and final settlement of all questions pertaining to slavery by the entire destruction of the system. [snip]
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But it is said that the organic law intervenes and prevents the infliction of that just punishment; that somehow we have made a bargain that, come what will, we will not be allowed to rid the Government of slavery. If this be so, it is a gross defect in our organization. It makes slavery the “unpardonable sin” which no repentance can avail to rid ourselves of.
But how is this? Slavery is eminently a creature of law. No jurist maintains that it exists ex proprio vigore. No advocate of the system would rest it in anything short of well-defined law. Without the aid of positive enactments it dies. I know that nowhere in this country has it been established in terms. No statute in any State has said that hereafter slavery shall exist here; but it has done what is equivalent. It has gone into the detail of management, sale, conveyance, and descent of property in slaves. It has made a body of laws which have been dependent upon slavery as the central fact. Abolish them, and you abolish slavery. I say, then, slavery is everywhere the creature of positive law.
How is it, then, that the supreme law cannot reach so important a detail in local law?
The States give certain rights to the General Government, and upon this the General Government started as a stock in trade. They stipulated in the original instrument that whatever, upon proper preliminary proceedings, three fourths of their number should agree to a further grant of power, then the General Government should have that power.
But it is said there are limits. Of course there are. But what? Are any to be found in the instrument itself? None.
It is suggested that they are to be found in the preamble. But can anybody examine the preamble and say that practically it has any limits? It says:
“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
But what Government known among Christian nations might not adopt the same preamble, and, with show of reason, from its standpoint, adopt the same declaration?
It is so general as not even to specify the form of government which it intended to be established. Should the people of England, Ireland, and Scotland choose to reduce their constitution to writing, what would prevent the adoption of this preamble?
But the understanding, it is said, among the original contractors should govern. Can this rule prevail against positive enactment? I will not attempt to go into the history of the formation of this instrument. That has already been well done by able gentlemen who have preceded me. But I invoke the well-known rule of construction in ordinary contracts, that when the written agreement is not dubious, all previous debate is merged in it, and must be excluded from consideration in forming a judgment upon it.
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Is the provision for amendment at all doubtful in its import? No one pretends that it is. The language speaks as plainly as language can, that any amendment which shall be made in accordance with its provisions shall become part of the instrument. Here is the provision:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by three fourths of Legislatures of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”
Except, the cases excepted in the provision I have read, and the power of amendment is unlimited in its terms.
And still there is a limit. What is it? It is the limit of all human law. All publicists agree that there is a limit to human law, no matter what may be the form of government. The nations’ religion must necessarily control its written law. The best English writers upon law say this, and we need not their authority or anybody’s authority to establish the proposition. Every man’s religion is his sense of ultimate right. With us the thing goes up in regular gradation. The town is subordinate to the State. The State acknowledges the General Government to be superior. The General Government is inferior in law, as in everything else, to the great Ruler of events.
Higher-law doctrine, I know; but who does not acknowledge it? What man takes the other position, that his highest notions of morality are in the statutes? Would not honest men do well to play shy of such a man? Whoever knew a man who acted in accordance with the rule that he would deal with others no better than the law obliges him to do and did not pronounce him a scoundrel? Have we not all seen such men, and do they not oppress their neighbors by “getting the law of them” as they call it?
Nor is this the fault of the law. Every human law is necessarily imperfect. It cannot provide for all imaginable cases. And ingenious scoundrels will find opportunity to inflict wrong while acting within its provisions.
The gentleman from Ohio [Mr. PENDLETON] who argued this question the other day but specified cases where it was manifest the General Government ought not to interfere with the States. But logically the force of those illustrations was derived from this higher law. In the instances put the General Government should not act, because it would be unjust. Neither he nor any other gentleman has put a case, within the proper limit of human law, which the power of an amended Constitution may not reach. [snip]
Let them be done, and let slavery be destroyed. And hereafter the only contest upon the subject will be who did the most to bring about this consummation so devoutly wished for by all good men. …
And when the genius of history shall write its epitaph on the walls of the great Hereafter, specifying the date of its death, short stay will it make in describing its virtues; but after cataloguing a portion of the great crimes it has committed against mankind, it will add, “Dead, dead not of Lloyd Garrison and Wendell Phillips, but dead of Jefferson Davis and the Montgomery constitution.”
God speed the day of its burial, for with it as the creator ends this war of its creation, and liberty and peace shall come hand in hand and bless the continent with their presence.
Mr. ASHLEY obtained the floor.
And then, on motion of Mr. THAYER, (at three o’clock, p. m.,) the House adjourned. [snip]
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HOUSE OF REPRESENTATIVES
January 31, 1865
ABOLITION OF SLAVERY
The SPEAKER stated the question in order to be the consideration of the motion to reconsider the vote by which the House, on the 14th of last June, rejected Senate joint resolution No. 16, submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States; and that the gentleman from Ohio [Mr. ASHLEY] was entitled to the floor.
Mr. ASHLEY. I yield to the gentleman from Pennsylvania [Mr. McALLISTER] to have read a brief statement.
Mr. McALLISTER sent to the Clerk’s desk and had read the following:
When this subject was before this House on a former occasion I voted against the measure. I have been in favor of exhausting all means of conciliation to restore the Union as our fathers made it. I am for the whole Union, and utterly opposed to secession or dissolution in any shape. The result of all the peace missions, and especially that of Mr. Blair, has satisfied me that nothing short of the recognition of their independence will satisfy the southern confederacy. It must therefore be destroyed; and in voting for the present measure I cast my vote against the corner stone of the southern confederacy, and declare eternal war against the enemies of my country.
[applause from the Republican side of the House.]
Mr. ASHLEY. I now yield to the gentleman from Pennsylvania, [Mr. COFFROTH.]
[Mr. Coffroth, a Democrat who opposed slavery, opposed but later supported the 13th Amendment]
Mr. COFFROTH. Mr. Speaker, I speak not to-day for or against slavery. I am content that this much-agitated question shall be adjudicated at the proper time by the people. It is my purpose to state in all candor the reasons which prompt me to give the vote I shall soon record.
The amending of our Constitution is fraught with so much importance to the American people that before it is accomplished the amendments proposed should be scrutinized with the strictest criticism. No frivolous, vague, or uncertain experiment should be for a moment tolerated. The life and existence of this nation is centered in the observance and faithful execution of the powers conferred by the Constitution upon the servants of the people.
The Joint resolution before us proposes:
That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid, to all intents and purposes, as a part of the said Constitution, namely:
ART. XIII, SEC. 1. 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.
SEC. 2. Congress shall have power to enforce this article by appropriate legislation. [snip]
It is not claimed that Congress itself can engraft this amendment into the Constitution without being ratified by three fourths of the States. Then, sir, under the Constitution, Congress has no power beyond discriminating what shall or ought to be submitted to the people. The members of this House assume no responsibility, they enact no amendment, but as faithful Representatives they submit to the people, the source from whence their power comes, the proposed amendment. “Governments are instituted among men, deriving their just power from the consent of the governed.” All political power is invested in the people. At their will constitutions can be remodeled and laws repealed.
The amending of our Constitution is no new experiment. Already at three different times amendments have been submitted to the Legislatures, and by them adopted. The first amendment was ratified in 1791, the second in 1798, and the third in 1804. It never was intended by the wise men who adopted the Constitution that it should remain unchanged. The growth of the nation, its progress and its advancement, will, as time passes, demand new articles and additional provisions. The people are the guardians of the Constitution, and I am not convinced that any danger is to be anticipated, as presented in the following illustrations of the gentleman from Ohio, [Mr. PENDLETON,] put with such admirable compactness and scholastic force:
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1. “I assert that there is another limitation, stronger even than the letter of the Constitution, and that is to be found in its intent and spirit and its foundation idea. I put the question which has been put before in this debate, can three fourths of the States constitutionally change this Government, and make it an autocracy? It is not prohibited by the Constitution.”
2. “Can three fourths of the States make an amendment to the Constitution of the United States which shall prohibit the State of Ohio from having two Houses in its legislative Assembly? It is not prohibited in the Constitution.”
3. “Sir, can three fourths of the States provide an amendment to the Constitution by which one fourth should bear all the taxes of this Government? It is not prohibited.”
4. “Can three fourths of the States, by an amendment to the Constitution, subvert the State governments of one fourth and divided their territory among the rest? It is not forbidden.”
5. “Can three fourths of the States so amend the Constitution of the States as to make the northern States of this Union slave holding States?”
I do not think there is any power in the Constitution which would permit three fourths of the States to change the form of government. The Constitution provides for a republican form of government, and to establish an autocracy would not be amending the Constitution, but utterly destroying it, and establishing upon its ruins a new form of government of self-derived power.
I would not give one of the new copper two-cent pieces for the insertion into the Constitution of explicit prohibitions against every other supposition brought forward by the gentleman from Ohio, [Mr. PENDLETON:]
“Long before three fourths of the States can become so debauched and demoralized that they would practice such monstrous injustice, they must have lost the sense of honor that would be bound by a compact, and the fear of God that would keep an oath. When these virtues have died out, no matter what safeguards a written constitution might contain, they would be of no more value than so much waste paper. There are certain things which can never be attempted so long as there is public virtue enough not to evade, explain away, or openly violate the Constitution. It is for this reason so little limitation was put upon the amending power.
“The actual limitations on that power operated against natural equity, and hence the necessity for their insertion. One of them restrained Congress from putting an end to the slave trade prior to 1808, and the practical effect of the other is to give New England, which has a smaller population than New York and only a fraction more than Pennsylvania, twelve Senators, while New York and Pennsylvania have each only two. The Constitution presumes that the majority of the people in three fourths of the States cannot be corrupted; or that, if they should, they would not afterward respect paper restraints on their passions. A constitution is no stronger than the sense of the moral obligation of the parties bound by it. It is futile to take men’s engagements against crimes more heinous than breaking an engagement. You might as well swear a man not to commit highway robbery. If he has conscience enough to respect an oath, it would be needless, and if he has not, an idle precaution.” [snip]
Again, it is argued that this amendment is unconstitutional; that the Congress of the United States has no legal authority to propose this amendment, nor have the States in ratifying it the constitutional power to destroy or interfere with the right of property. Learned gentlemen of this House differ on this subject. The Constitution itself provides the remedy by which all these differences of opinion can be legally adjudicated. Section two of article three provides:
“The judicial power shall extend to all cases in law and equity arising under this Constitution.”
In my opinion, if any person is injured by this amendment, he has a judicial remedy before the highest court of the country.
If the States of the South desire to retain slavery, they can do so by refusing to ratify this amendment. There are thirty-five States. In order to adopt this amendment twenty-seven States must ratify it. Eleven States have seceded from the Union. This is more than is required to defeat the amendment. Certainly no one will pretend to argue that this amendment can be adopted without being submitted to the eleven seceded States. If it was, these States would not be considered a part of the Union. In fact it would be, to all intent and purpose, recognizing them as independent States, and not being under the control of the Federal Constitution.
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If this view is taken, then this amendment can do no harm to the people of the States in the Union. In June last my objection to this amendment was that it was taking away the property of the people of the States that remained true to the Union; that the Constitution was made the means to oppress rather than protect the people. Since that time Missouri and Maryland have abolished slavery by their own action, and the Governor of Kentucky in his message recommends to the Legislature of that State gradual emancipation. The same objection which was then urged against this amendment cannot now be urged. [snip]
The South would not remain in the Union under the Constitution as it now is; they demanded stronger guarantees for their institution of slavery. Can any intelligent person believe that after fighting as they have for nearly four years they will accept that which they rejected before the war? If they will not come back under the Constitution, why not abolish slavery; strike from our statute books every enactment which protects it; make our Constitution and our laws free from the subject of slavery? And then, when this unfortunate, inhuman, barbarous, and bloody war has been prolonged until every heart shall turn sick with its carnage and the reports of its wrongs and outrages, and the people demand a cessation of hostilities until it be ascertained if glorious peace cannot be accomplished by compromise and concession, there will be no obstacles in the constitution to defeat the accomplishing of a much desired result. We will be free to give new guarantees or new amendments to protect the rights and property of every person who shelters himself under the American Constitution.
Again, I have voted for every peace resolution offered in this House. My heart yearns for peace. The gentlemen on the other side of this Chamber refused to appoint peace commissioners, but they tell us this amendment will do more to secure peace than any resolution proposed in this House. Although they would not try the remedy we presented, I am willing to try the one they present; and if by my vote this amendment
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is submitted to the States, and it brings this war to a close, I will ever rejoice at the vote I have given; but if I am mistaken, I will remember it is not the first time.
Mr. Speaker, I desire above all things that the Democratic party be again placed in power. The condition of the country needs the wise counsel of the Democracy. The peace and prosperity of this once powerful and happy nation require it to be placed under Democratic rule. The history of the past demonstrates this. The question of slavery has been a fruitful theme for the opponents of the Democracy. It has breathed into existence fanaticism, and feeds it with such meat as to make it ponderous in growth. It must soon be strangled or the nation is lost. I propose to do this by removing from the political arena that which has given it life and strength. As soon as this is done fanaticism “Writhes with pain, And dies among its worshipers.”
Then the rays of truth will be unshaded, and once more our people will rejoice in the salvation of their country, and of the reinstating in power that party which made this country great, and which has done so much to secure to man civil and religious liberty.
Many of the honorable gentlemen of this House with whom I am politically associated may condemn me for my action to-day. I assure them I do that only which my conscience sanctions and my sense of duty to my country demands. I have been a Democrat all the days of my life. I learned my Democracy from that being who gave me birth; it was pure; it came from one who never told me an untruth. All my political life has been spent in defending and supporting the measures which I thought were for the good of the party and the country. My energy, my means, and my time were all given for the success of the Democratic cause. I am no Democrat by mere profession, but I have always been a working one. If by my action to-day I dig my political grave, I will descend into it without a murmur, knowing that I am justified in my action by a conscientious belief I am doing what will ultimately prove to be a service to my country, and knowing there is one dear, devoted, and loved being in this wide world who will not bring tears of bitterness to that grave, but will strew it with beautiful flowers, for it returns me to that domestic circle from whence I have been taken for the greater part of the last two years.
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Knowing my duty I intend to perform it, relying upon the intelligence and honesty of the people I represent to do my justice. If this action shall be condemned by my people I will go back with pleasure to the enjoyment of private life, free from the exciting political arena; but no power on earth will prevent me from quietly depositing my ballot in behalf of the candidates of the Democratic party. I hope I will be granted the pleasure of reading the eloquent speeches made by my Democratic associates, and admire their rise and onward march to distinction. This boon I pray you not to take from me.
If, on the other hand, the course of the Democrats who will vote for this amendment will meet the approbation of the people, and we are greeted with the plaudit of “Well done, good and faithful servants,” it will be the desire of our hearts to open our arms for your reception and shelter you as the hen shelters her brood, satisfied you were honest in your belief but mistaken in your opinions.
Mr. ASHLEY. I now yield the remainder of my time to the gentleman from New York, [Mr. HERRICK.] [snip]
[Mr. Herrick, a Democrat, eventually supported the 13th Amendment]
Mr. HERRICK. Mr. Speaker, the joint resolution now before the House submitting to the Legislatures of the several States an amendment to the Constitution of the United States, comes before us under circumstances widely different from those existing when at the last session of Congress the same resolution failed to receive the requisite two-thirds vote of this body. [snip]
Mr. Speaker, at the last session of Congress I voted against this resolution from a solemn conviction of duty. And as I shall now vote for it from a similar conviction, it becomes me to explain to the House and the country what considerations prompt me to assume a new attitude upon the question before us. Events which will now govern my action have superseded the arguments which influenced the vote I recorded last year. The considerations which then rendered the amendment proposed impolitic, in my view, have ceased to operate, and reasons of great force, which were not then in existence, have arisen to make it now expedient, and to warrant me in reversing my former action.
In my humble judgment the rejection of this measure at that time was demanded by the best interests of the country, which now, on the contrary, seems to call for its adoption. Mr. Speaker, circumstances have changed, and I shall now vote for the resolution, as I formerly voted against it, because I think such action on my part is best calculated to assist in the maintenance of Government, the preservation of the Union, and the perpetuation of the free institutions which we inherited from our fathers. These are the great objects for which the loyal people of this country have struggled during the last four years with a courage and self-devotion to which history affords no parallel, and poured forth their blood and treasure with an unhesitating patriotism that has astonished the world. So long as a Representative seeks these objects, regardless of partisan or political prejudices, he cannot be rightfully charged with inconsistency, no matter how widely the means he may find it necessary to employ at one time or another, to adapt himself to ever-varying circumstances, may differ. I believe this is the only consistency that is truly desirable. It is certainly the only one to which I make any pretensions.[snip]
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Mr. Speaker, I never had any love for the institution of slavery. I always regarded it as a moral, social, and political evil, and a fruitful curse to any community in which it might exist. In this sentiment I believe that I fairly represent the views of the great bulk of the Democratic party of the northern States. That party has never been either pro-slavery or anti-slavery; but it has ever been devoted to the Union and the Constitution, and always consistent in the position that the Federal Government had no right to interfere either for or against the institution, except to fulfill the duty in regard to the return of fugitive slaves imposed upon it by the Constitution. Democrats of the school in which I was educated believed, and believe now, that under the Constitution as it exists, every State has the exclusive control of the subject within its limits, and that the Federal power can neither abolish it in a State nor prohibit it in a Territory. The contrary doctrine we regard as repugnant to the very theory of the Government and inimical to its peace and safety; and Democratic statesmen clearly foresaw and predicted that the ascendency of an anti-slavery party in the North and in the Government would provoke an armed collision between the northern and southern States of the Union. The Democracy cared nothing for slavery. Its preservation or destruction was with them a subordinate consideration in comparison with the stability of the Government, the supremacy of the Constitution, and the integrity of the Union; and they accordingly exerted their utmost power to keep the irritating subject out of party politics, and thus to avoid the terrible catastrophe which its agitation has brought upon the country. As a party they did all they could to prevent the war in which we are now engaged, and no portion of the responsibility for it rests upon the shoulder of the northern Democracy. They warmly supported the “Crittenden compromise,” and were perfectly willing to give to the South any additional constitutional guarantees that might be requisite for the future security of their “peculiar institution.”
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For the sake of the Union the Democratic party of the North would have cheerfully acquiesced in amendments to the Constitution explicitly acknowledging the right of citizens of the slave-holding States to carry their slaves into the Territories and hold them there until the new States, upon their admission to the Union, should declare for themselves whether they would have the institution or not. For the sake of peace and the Union they would gladly have voted for the then proposed amendment providing that the Constitution should never be changed so as to destroy or weaken slavery in the States where it then existed. Had their views prevailed, and governed the action of the Administration, all the blood that has been shed and all the money that has been expended, North and South, during the last four years, would have been saved, and the country would have gone on uninterruptedly in her marvelous career of prosperity and power. But the voice of Democratic wisdom was disregarded; men of extreme opinions controlled both sections, and a civil war ensued, of which the end is not yet—the South fighting for secession, and the North for the Union, and incidentally for the abolition of slavery. [snip]
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[Mr. Brown opposed the 13th Amendment]
Mr. BROWN, of Wisconsin, It is not my intention to discuss the measure now pending before the House, but simply to give a resume of the reasons which must determine my own course. ….
The amendment of the Constitution abolishing slavery can be made effective in the rebellious States only by arms. But the President has already by proclamation declared those slaves free, and asserted his intention to use our armies to enforce it. The President has four years in which to try this experiment, with the unlimited control of the resources of the nation during that period; the amendment could not hasten military operations or take from the power of his master a single slave. It is therefore, for the purpose of abolishing slavery, without practical effect unless the President should recede from his declared intention of enforcing his proclamation. [snip]
But while for the reasons stated I cannot vote for the amendment, I have been extremely doubtful whether I ought to vote against it. … We all know that in the next Congress there is a majority of extreme men. They will, without regard to the effect of this measure upon the country, pass it. And whatever may be the personal wishes of the President, he is so committed to the radicals on this question that he must call a special session of Congress. ….
If, then, there is no hope of great advantage by the mere delay of this measure, it is the duty of those opposed to it not to vote.
But is it not of the greatest consequence to relieve our armies, even for a short time, of this bur-
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den which we are attempting to put upon their shoulders? Grant, Thomas, and Sherman, in despite of both rebels and radicals, may, if we delay this blow at them, succeed in a few months in overthrowing the rebellion. I have stated that, so far as slavery is concerned, I consider this question as one involving simply the difference between a healthful process of emancipation and one injurious alike to the negro and the country. But that is certainly a mere matter of opinion, and gentlemen honestly believing in emancipation may well ask for a security. I have, to avoid this doubt, drawn a substitute of the amendment, which obviates the greater part of the practical objections which I have raised; it leaving only the question of abuse of power. I ask that it may be read, as at the proper time I intend to offer it.
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The amendment was read, as follows:
SEC. 1. Hereafter every sale, transfer, or assignment of the right of one person to the service or labor of another, shall be void; and by the mere fact of the consent of the owner to such sale, assignment, or transfer, the person owing service or labor shall be released from all such obligation and become free.
SEC. 2. All females, such as are usually termed slaves, owing service or labor to others, are hereby released from such obligation, and are and shall be wholly free.
SEC. 3. From and after the 1st day of January, A. D. 1880, slavery, and all involuntary service, except that arising from the relations of parent and child, master and apprentice, guardian and ward, or that imposed as a punishment for crime, are and shall be abolished.
SEC 4. Congress shall by law provide compensation for the actual and direct damage or loss sustained through the operation of this law, by loyal citizens of the United States.
Mr. BROWN, of Wisconsin. It will be perceived that it immediately obviates the worst objections to negro slavery, and yet presents inducements for the rebels to return to their allegiance. It is much better for them than Davis’s proposition to free and arm the slaves, and therefore may defeat that measure.
It prevents an industrial revolution which, destroying the South, will utterly forbid the idea of aid from that quarter in paying the interest on our public debt.
If this substitute is accepted, while I cannot directly vote for it, as being an abuse of power, I shall not vote against it, and I am well assured that there are others on the Democratic side who will either directly or indirectly support it; so that the measure will pass the House. It is for gentlemen on the other side to say whether they urged this in good faith, or as politicians; if in the first view, they will accept the substitute; if in the last, reject it.
[Mr. Kalbfleisch opposed the 13th Amendment]
Mr. KALBFLEISCH. Mr. Speaker, the argument upon the question now before the House has been so ably conducted and so long continued that it is with more or less reluctance I venture to delay the public business by stating even briefly the reasons which induce me to dissent from a majority of my fellow-members, and to cast my vote, as I propose to do, to maintain the Constitution as it is and as it was when our country, governed under it, was marching with proud and stately step to empire and to greatness. …. [snip]
I am told, Mr. Speaker, that if I desire to save the Democratic party I will help to amend the Constitution so as to abolish slavery; I must try to cut it loose, so it is said, from dead issues. Singularly enough, sir, this advice comes from men who have spent their lives in misrepresenting the Democratic party and in vilifying its leaders. These men have become very suddenly solicitous for the welfare of the Democracy. They tell us, sir, there is a great future in store for us, if we Democrats only follow their advice. I am suspicious of this new-born zeal for the interest of the Democratic party coming from such a source. ….
Mr. Speaker, since I entered this House I have endeavored to shape my conduct to the end that no word or act of mine would stand in the way of the restoration of peace and Union to these States. … In my opinion the amendment you now propose to provide for may stand in the way of both peace and Union. Even while this measure is under discussion messengers are passing between Washington and Richmond, and if these men are successful, and if the negotiations they propose to inaugurate result in anything, the very question we now propose to commit ourselves upon will form the chief obstacle in the way of a settlement of our difficulties. Suppose, sir, that the South should be willing, as the basis of peace, to consent to gradual emancipation? Should we place ourselves in a position that would prevent the acceptance of such terms? The amendment you now propose to make will then stand as the only obstacle in the way of peace. …. [snip]
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While I have argued, sir, against this measure as if it were in truth an “amendment” to the Constitution, I regard it as subversive of the entire spirit of that instrument. We have been warned by the “Father of his country” to discountenance irregular opposition to the Constitution, “and at the same time to resist with care the spirit of innovation upon its principles, however specious the pretexts.” One method of assault, he tells us, sir, “may be to effect in the forms of the Constitution alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown.” These, sir, are words of prophetic warning. Under “SPECIOUS PRETEXTS” of amending the Constitution, you desire to make it the instrument of depriving men of vested rights, and to leave behind you a precedent which, if followed, will leave every right, civil or religious, which the minority possesses at the will of the majority. When the constitution went into operation there were twelve slave States and but one free State. It was within the power of the twelve slave States to force slavery on Massachusetts, in the same way that you propose to force abolition on the South. Would Massachusetts, think you, have submitted to so gross a perversion of the compact she had just entered into? Did she fight against England for seven years for the right to manage her own affairs only to transfer that right to another authority against which she had no legal safeguard? …. [snip]
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Mr. Speaker, I am no advocate of slavery. Years ago I was opposed to its extension, so far as I could legally and constitutionally do so, beyond the limits within which it then existed. I believed slavery to be an evil then, and I believe it to be an evil now. I have been charged with inconsistency by some of my Democratic friends, who, when the institution had powerful friends, favored its extension, but who now, when its power has departed, are over-zealous in efforts to exterminate it. Nay, they are not satisfied with its acknowledged death, but are clamorous to be allowed to act as grave diggers at its burial. It is, perhaps, the zeal which we are told ever inspires new converts. For myself I have only to say that I have endeavored to be thoroughly consistent. My opposition to slavery does not permit me to aid in perpetrating gross wrong. I hope that slavery may be abolished, and have ever hoped so, but not through the impulses of a wild fanaticism, surging on reckless of the rights and interests alike of the slave and the slaveholder; not by the exercise of doubtful powers under the excitement of passion and prejudice, but by calm, careful, and considerate action. … It is purely a local question, and Congress might with as much propriety interfere with the system of labor in the large manufacturing establishments in the East, as with slavery in the south, because evils are incidental to both. These have ever been my views, and they are my views now, and I cannot see wherein they are inconsistent.
Among other reasons adduced by my colleague for favoring the proposed amendment, is the alleged effect slavery produces in retarding the growth and prosperity of the States where it exists as compared with those where it does not. This is, in my judgment, jumping at conclusions. …. [snip]
I have briefly stated my reasons, Mr. Speaker, for being opposed to the passage of any resolution having for its object a change in the fundamental law of the land, and shall vote against it. In so doing, I shall act not only as my own convictions prompt me, but I m satisfied in direct conformity with the wishes of those whom I represent.
In conclusion, Mr. Speaker, permit me to add that I have been for thirty years a Democrat. The experience of a long and not uneventful life only lead me to place fuller and firmer faith in the principles of my party. I have seen these principles one by one stricken down, but in their fall I have seen no advantage to my country. I see in this amendment to the Constitution but the consummation of a policy which has led to the bloodiest war in history, and which has placed the fate of the Republic more than once on the hazard of battle. Upon you, gentlemen, upon the other side, the responsibility for this measure must rest. I, for one, cannot and will not aid you. You will soon have full power; exercise it. Take all the credit the act will bring, and assume all the danger it involves. The Democratic party will stand by its old and well tried policy, guided by its old land-marks, under its old banner, and keeping step to the music of the Union. I cannot wish my country better, sir, than that the party opposed to that to which I belong rival the success of the Democracy, and shall emulate its glory. But I am constrained to say the past history of the party in power excites in my breast but little hope for the future. I am weary of the experimental legislation, ending no man can tell in what unforeseen disaster. Of such legislation the proposed amendment is a bad specimen, and I shall vote against it.
Mr. ASHLEY. I call the previous question upon the pending motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States.
Mr. STILES. I move to lay the motion to reconsider on the table; and upon that I demand the yeas and nays.
The yeas and nays were ordered.
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The question was put; and it was decided in the negative—yeas 57, nays 111, not voting 14; … [snip]
The previous question was then seconded, and the main question ordered.
The question being on the motion of Mr. ASHLEY, to reconsider.
Mr. ANCONA called for the yeas and nays.
The yeas and nays were ordered.
The question was put; and it was decided in the affirmative—yeas 112, nays 57, not voting 13; …
So the motion to reconsider was agreed to. The question recurred on the passage of the joint resolution.
Mr. ASHLEY. I demand the previous question.
Mr. MALLORY. I rise to a question of order. My point of order is that a vote to reconsider the vote by which the subject now before the House was disposed of in June last requires two thirds of this body. That two-thirds vote has not been obtained.
The SPEAKER. The Chair overrules the point of order. The rules of the House authorize every bill and joint resolution to pass by a majority vote. The Constitution of the United States, however, declares that no constitutional amendment shall pass except by a two-thirds vote. On the question of the passage of the joint resolution the constitutional provision will operate, and not till that time. All other questions are governed by the rules of the House.
The Chair will state that this has been the uniform usage of the House in regard to bills vetoed by the President. In such cases all votes up to the time of taking the question on the passage of the bill over the President’s veto are decided by a majority vote; but on the final vote a two-thirds vote is necessary. [snip]
Mr. ASHLEY. I cannot yield any further. I desired this morning to be heard on this question, and came into the House intending to close the debate, as under the rules I had a right to do. The time, the subject, and the occasion, all united to make it desirable; but I yielded the time to gentlemen on the other side, until it is not nearly four o’clock, and members on all sides of the House demand a vote. I therefore decline to take up the time of the House, and demand that the main question shall now be put. [snip]
The SPEAKER. No motion to amend would be in order at this state. The joint resolution has passed its third reading, and is now on its passage. [snip]
The previous question was seconded, and the main question ordered; which was on the passage of the joint resolution.
Mr DAWSON called for the yeas and nays.
The yeas and nays were ordered.
The question was taken, and it was decided in the affirmative—yeas 119, nays 56, not voting 8; …
So, the two thirds required by the Constitution of the United States having voted in favor thereof, the joint resolution was passed.
During the roll-call,
On Mr. ENGLISH and Mr. GANSON voting “ay,” there was considerable applause by members on the Republican side of the House.
The SPEAKER called repeatedly to order, and asked that members should set a better example to spectators in the gallery.
Mr. KALBFLEISCH and other democratic members remarked that the applause came, not from the spectators in the gallery, but from members on the floor.
The SPEAKER. Members will take their seats and observe order.
The SPEAKER directed the Clerk to call his name as a member of the House.
The Clerk called the name of SCHUYLER COLFAX, of Indiana, and Mr. COLFAX voted “ay.”
[This incident was greeted with renewed applause.]
The SPEAKER. The constitutional majority of two thirds having voted in the affirmative, the joint resolution is passed.
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[The announcement was received by the House and by the spectators with an outburst of enthusiasm. The members on the Republican side of the House instantly sprung to their feet, and, regardless of parliamentary rules, applauded with cheers and clapping of hands. The example was followed by the male spectators in the galleries, which were crowded to excess, who waved their hats and cheered loud and long, while the ladies, hundreds of whom were present, rose in their seats and waved their handkerchiefs, participating in and adding to the general excitement and intense interest of the scene. This lasted for several minutes.]
Mr. INGERSOLL. Mr. Speaker, in honor of this immortal and sublime event I move that the House do now adjourn.
The SPEAKER declared the motion carried, and again the cheering and demonstrations of applause were renewed.
Mr. HARRIS, of Maryland. I demand the yeas and nays on the motion to adjourn.
The yeas and nays were ordered.
The question was taken; and it was decided in the affirmative—yeas 121, nays 24, not voting 37; … [snip]
The House thereupon (at twenty minutes past four o’clock, p. m.,) adjourned.
[End of debates about the 1865 Thirteenth Amendment – freedom.]
Proposed: January 31, 1865 – Ratified: December 6, 1865
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IN SENATE
February 1, 1865
ABOLITION OF SLAVERY
A message from the House of Representatives, by Mr. McPHERSON, its Clerk, announced that the House had passed without amendment the joint resolution (S. R. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States. A subsequent message announced that the resolution had been enrolled, and that the enrolled resolution had received the signature of the Speaker of the House. It was then signed by the Vice President, and transmitted to the President of the United States, who, by his Secretary, Mr. NICOLAY, soon announced that it had been approved and signed by him. [snip]
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IN SENATE
February 4, 1865
CONSTITUTIONAL AMENDMENTS
Mr. TRUMBULL. I offer the following resolution of instruction to the Secretary, which ought to be acted upon at once:
Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States respecting the extinction of slavery therein, having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with the former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives.
If the Senate will allow me to make a statement of the practice, if there shall then be any objection to the consideration of the resolution, it may go over.
The VICE PRESIDENT. Is there any objection to the consideration of this resolution at the present time?
Mr. SHERMAN. I think it had better go over until to-morrow.
Mr. TRUMBULL. Had not the Senator better let a statement from the record be made as to the practice, and then it may go over if he desires.
Mr. SHERMAN. I have no objection to that being done.
The VICE PRESIDENT. Is there any objection to the consideration of the resolution?
Mr. DIXON. I think it had better go over to another day.
Mr. TRUMBULL. Does the Senator from Connecticut object to my statement being made?
Mr. DIXON. The resolution must be received to allow the statement to be made.
Mr. TRUMBULL. I have already stated that I will consent that it shall go over after the statement is made.
Mr. DIXON. If that can be done without the resolution being received, I have no objection; otherwise I have objection.
The VICE PRESIDENT. Is there any objection to the consideration of the resolution?
Mr. DIXON. I think the resolution will give rise to debate, and it had better go over.
The VICE PRESIDENT. Objection being made, it must necessarily go over under the rules.
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THREE-FOURTHS VOTE OF RATIFICATION
Mr. SUMNER. I send to the Chair resolutions which I ask to have read and printed. I shall call them up at a future day.
The resolutions were read, as follows:
Concurrent resolutions declaring the rule in ascertaining the three fourths of the several States required in the ratification of a constitutional amendment:
Whereas Congress, by a vote of two thirds of both Houses, has proposed an amendment to the Constitution prohibiting slavery throughout the United States, which, according to the existing requirement of the constitution, will be valid, to all intents and purposes, as part of the Constitution when ratified by the legislatures of three fourths of the several States; and whereas in the present condition of the country, with certain States in arms against the national Government, it becomes necessary to determine what number of States constitutes the three fourths required by the Constitution: Therefore,
Resolved by the Senate, (the House of Representatives concurring,) That the rule followed in ascertaining the two thirds of both Houses proposing the amendment to the Constitution should be followed in ascertaining the three fourths of the several States ratifying the amendment; that, as in the first case, the two thirds are founded on the simple fact of representation in the two Houses, so in the second case the three fourths must be founded on the simple fact of representation in the Government of the country and the support thereof; and that any other rule establishes one basis for the proposition of the amendment and another for its ratification, placing one on a simple fact and the other on a claim of right, while it also recognizes the power of rebels in arms to interpose a veto upon the national Government in one of its highest functions.
Resolve, That all acts, executive and legislative, in pursuance of the Constitution, and all treaties made under the authority of the United States, are valid to all intents and purposes throughout the United States, although certain rebel States fail to participate therein, and that the same rule is equally applicable to an amendment of the Constitution.
Resolved, That the amendment of the Constitution, prohibiting slavery throughout the United States will be valid to all intents and purposes as part of the Constitution, whenever ratified by three fourths of the States, de facto, exercising the powers and prerogatives of the United States under the Constitution thereof.
Resolved, That any other rule requiring the participation of the rebel States, while illogical and unreasonable, is dangerous in its consequences, inasmuch as all recent presidential proclamations, including that of emancipation, also all the recent acts of Congress, including those creating the national debt and establishing a national currency, and also recent treaties, including the treaty with Great Britain for the extinction of the slave trade, have been made, enacted, or ratified, respectively, without any participation of the rebel States.
Resolved, That any other rule must tend to postpone the great day when the prohibition of slavery will be valid to all intents and purposes as part of the Constitution of the United States; but the rule herewith declared will assure the immediate ratification of the prohibition, and the consummation of the national desires.
The resolutions were ordered to be printed.
Mr. DOOLITTLE. I move that the resolutions be referred to the Committee on the Judiciary.
Mr. SUMNER. I ask that they now lie on the table. I propose to call them up and make a motion in regard to them at a future day. [snip]
The VICE PRESIDENT. The motion to lay on the table takes precedence of that to commit.
The resolutions were ordered to lie on the table. [snip]
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(2)
39th CONGRESS 1st SESSION
December 4, 1865 to July 28, 1866
IN SENATE
December 4, 1865
This being the day prescribed by the Constitution of the United States for the meeting of Congress, the Senate assembled in the Senate Chamber, in the Capitol, at the city of Washington. [snip]
ANTI-SLAVERY AMENDMENT
Mr. SUMNER submitted the following concurrent resolution declaratory of the adoption of the constitutional amendment abolishing slavery; which was ordered to lie on the table and be printed:
Whereas the Congress, by a vote of two thirds of both Houses, did heretofore propose to the Legislatures of the several States, for ratification, an amendment to the Constitution in the following words, to wit:
ARTICLE XIII
SEC. 1. 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.
SEC. 2. Congress shall have power to enforce this article by appropriate legislation.
And whereas, at the time when such amendment was submitted as well as since, there were sundry States which, by reason of rebellion, were without Legislatures, so that, while the submission was made in due constitutional form, it was not, as it could not be, made to all the States, but to “the Legislatures of the several States,” in obedience both to the letter and spirit of the provision of the Constitution authorizing amendments, there being a less number of Legislatures of States than there were States; and whereas, since the Constitution expressly authorizes amendments to be made, any construction thereof which would render the making of amendments at times impossible, must violate both its letter and its spirit; and whereas, to require the ratification to be by States without Legislatures as well as by “the Legislatures of the States,” in order to be pronounced valid, would put it in the power of a long-continued rebellion to suspend, not only the peace of the nation, but its Constitution also; and whereas, from the terms of the Constitution, and the nature of the case, it belongs to the two Houses of Congress to determine when such ratification is complete; and whereas more than three fourths of the Legislatures to which the proposition was made have ratified such amendments; Now therefore,
Be it resolved by the Senate, (the House of Representatives concurring, That the amendment abolishing slavery has become, and is, a part of the Constitution of the United States.
Resolved, That notwithstanding the foregoing resolution, and considering the great public interest which attaches to this question, the Legislatures which have not ratified the amendment, be permitted to express their concurrence therein by the usual form of ratification to be returned in the usual manner.
Resolved, That no one of the States, to the Legislature of which such amendment could not be submitted, by reason of its being in rebellion against the United States, and having no Legislature, be permitted to resume its relations, and have its Legislature acknowledged, and its Senators and Representatives admitted, until its Legislature shall have first ratified such amendment in recognition of the accomplished fact.
RESTORATION OF REBEL STATES
Mr. SUMNER submitted for consideration the following resolutions; which lie over under the rules:
Resolutions declaratory of the duty of Congress in respect to guarantees of the national security and the national faith in the rebel States.
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Resolved, That, in order to provide proper guarantees for security in the future, so that peace and prosperity shall surely prevail, and the plighted faith of the nation shall be preserved, it is the first duty of Congress to take care that no State declared to be in rebellion shall be allowed to resume its relations to the Union until after the satisfactory performance of five several conditions, which conditions precedent must be submitted to a popular vote, and be sanctioned by a majority of the people of each State respectively, as follows:
(1) The Complete reestablishment of loyalty, as shown by an honest recognition of the unity of the Republic, and the duty of allegiance to it at all times, without mental reservation or equivocation of any kind.
(2) The complete suppression of all oligarchical pretensions, and the complete enfranchisement of all citizens, so that there shall be no denial of rights on account of color or race; but justice shall be impartial, and all shall be equal before the law.
(3) The rejection of the rebel debt, and at the same time the adoption, in just proportion, of the national debt and the national obligations to Union soldiers, with solemn pledges never to join in any measure, direct or indirect, for their repudiation, or in any way tending to impair the national credit.
(4) The organization of an educational system for the equal benefit of all without distinction of color or race.
(5) The choice of citizens for office, whether State or national, of constant and undoubted loyalty, whose conduct and conversation shall give assurance of peace and reconciliation.
Resolved, That in order to provide these essential safeguards, without which the national security and the national faith will be imperiled, States cannot be precipitated back to political power and independence; but they must wait until these conditions are in all respects fulfilled.
CONDITIONS OF RESTORATION
Mr. SUMNER submitted the following resolutions for consideration; which were ordered to be printed:
Resolutions declaratory of the duty of Congress, especially in respect to loyal citizens in rebel States.
Whereas it is provided by the Constitution that “the United States shall guaranty to every State in this Union a republican form of government;” and whereas there are certain States where, by reason of rebellion, there are no State governments recognized by Congress; and whereas, because of the failure of such States respectively to maintain State governments, it has become the duty of Congress, standing in the place of guarantor, where the principal has made a lapse, to provide governments, republican in form, for such States respectively: Now, therefore, in order to declare the duty of Congress,
(1) Resolved, That whenever a convention is called in any of such States for the organization of a government, the following persons have a right to be represented therein, namely, the citizens of the State who have taken no part in the rebellion; especially all those whose exclusion from the ballot enabled the rest to carry the State into the rebellion, and still more especially those who became soldiers in the armies of the Union, and by their valor on the battlefield turned the tide of war and made the Union triumphant; and Congress must refuse to sanction the proceedings of any convention composed of delegates chosen by men recently in arms against the Union, and excluding men who periled their lives in its defense; unless its proceedings have been first approved by those hereby declared to be entitled to participate therein.
(2) Resolved, That the Constitution of the United States being supreme over State laws and State constitutions in respect of these matters upon which it speaks, and the duty being now imposed by it on Congress to legislate for the establishment of government in such States respectively, it is hereby declared that no supposed State law or State constitution can be set up as an impediment to the national power or in the discharge of this duty.
(3) Resolved, That since, also, it has become the duty of Congress to determine what is a republican form of government, it is hereby declared that no government of a State recently in rebellion can be accepted as republican, where large masses of citizens who have been always loyal to the United States are excluded from the elective franchise, and especially where the wounded soldier of the Union, with all his kindred and race, and also the kindred of others whose bones whiten the battle-fields where they died for their country, are thrust away from the polls to give place to the very men by whose hands wound and death were inflicted; more particularly where, as in some of those States, the result would be to disfranchise the majority of the citizens who were always loyal, and give to the oligarchical minority recently engaged in carrying on the rebellion the power to oppress the loyal majority, even to the extent of driving them from their homes and depriving them of all opportunity of livelihood.”
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(4) Resolved, That in all those cases where, by reason of rebellion, there is a lapse in the State government, and it becomes the duty of Congress to provide a government for the State, no government can be accepted as “a republican form of government” where a large proportion of native-born citizens, charged with no crime and no failure of duty, is left wholly unrepresented, although compelled to pay taxes; and especially where a particular race is singled out and denied all representation, although compelled to pay taxes; more especially where such race constitutes the majority of the citizens, and where the enfranchised minority has forfeited its rights by rebellion; and more especially still where, by such exclusion, the oligarchical enemies of the Republic can practically compel it to break faith with national soldiers and national creditors to whose generosity it was indebted during a period of peril.
(6)
HOUSE OF REPRESENTATIVES
December 4, 1865
RECONSTRUCTION
Mr. STEVENS. I offer the following resolution, and call the previous question upon it:
Resolved by the Senate and House of Representatives in Congress assembled, That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-called confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report at any time by bill or otherwise; and until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-called confederate States; and all papers relating to the representation of the said States shall be referred to the said committee without debate. [snip]
So, (two thirds voting in favor thereof,) the resolution was received.
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Mr. NIBLACK. I ask consent to submit the following resolution:
Resolved, That pending the question as to the admission of persons claiming to have been elected Representatives to the present Congress from the States lately in rebellion against the United States Government, such persons shall be entitled to the privileges of the floor of the House. [snip]
Mr. STEVENS moved that the House adjourn.
The question was taken’ and there were—ayes 85, noes 68.
So (at ten minutes to three o’clock p. m.) the House adjourned.
IN SENATE
December 5, 1865
JOINT COMMITTEE ON RECONSTRUCTION
The PRESIDENT pro tempore. The resolution from the House of Representatives will now be read.
The Secretary read, as follows:
Resolved by the Senate and House of Representatives in Congress assembled, That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-called confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report at any time by bill or otherwise; and until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-called confederate States; and all papers relating to the representation of the said States shall be referred to the said committee without debate. [snip]
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RECONSTRUCTION OF REBELLIOUS STATES
Mr. FOOT. I offer certain resolutions of the Legislature of the State of Vermont. I ask that they be read, laid on the table, and printed.
The Secretary read them, as follows:
Joint resolutions in relation to the reconstruction of the States recently in rebellion against the United States.
Resolved, That it is the sense of the General Assembly of this State, that in the reconstruction of the governments of the States lately in rebellion against the Government and authority of the United States, the moral power and legal authority vested in the Federal Government should be executed to secure equal rights, without respect to color, to all citizens residing in those States, including herein the right of elective franchise.
Resolved, That the secretary of state is hereby instructed to transmit a copy of these resolutions to the President of the United States, to the Governors of the several States, and also a copy to each one of our Senators and Representatives in Congress, who are hereby requested to present the same to both Houses in Congress.
JOHN W. STEWART,
Speaker of the House of Representatives.
A. B. GARDNER,
President of the Senate.
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HOUSE OF REPRESENTATIVES
December 4, 1865
APPORTIONMENT OF REPRESENTATION
Mr. STEVENS also introduced the following joint resolution; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when the same shall have been appointed:
Resolved by the House of Representatives, (the Senate concurring,) That the following amendment to the Constitution of the United States shall be proposed to the several States, and when ratified by the Legislatures of three fourths of the States shall be valid to all intents and purposes as part of the Constitution of the United States:
Representatives shall be apportioned among the States which may be within the Union according to their respective legal voter; and for this purpose none shall be named as legal voters who are not either natural-born citizens or naturalized foreigners. Congress shall provide for ascertaining the number of said voters. A true census of the legal voters shall be taken at the same time with the regular census.
EQUALITY BEFORE THE LAW
Mr. STEVENS also introduced the following joint resolution; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when the same shall have been appointed:
Resolved by the Senate and House of Representatives in Congress assembled, That the following amendment to the Constitution of the United States shall be proposed, and when ratified by the Legislatures of three fourths of the States shall be valid to all intents and purpose as part of the Constitution of the United States:
ARTICLE XIII. All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.
Mr. STEVENS moved that the several joint resolutions just introduced by hi be printed.
The motion was agreed to.
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DECEASE OF PRESIDENT LINCOLN
Mr. WASHBURNE, of Illinois. I ask unanimous consent to offer the following resolution, which is in accordance with the precedents in cases of similar melancholy character:
Resolved, That a committee of one member from each State represented in this House be appointed on the part of this House to join such committee as may be appointed on the part of the Senate, to consider and report by what token of respect and affection it may be proper for the Congress of the United States to express the deep sensibility of the nation to the event of the decease of their late President, Abraham Lincoln, and that so much of the message of the President as refers to that melancholy event be referred to said committee.
There being no objection, the resolution was considered and agreed to.
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HOUSE OF REPRESENTATIVES
December 6, 1865
EQUALITY BEFORE THE LAW
Mr. BINGHAM also introduced a joint resolution to amend the Constitution of the United States so as to empower Congress to pass all necessary proper laws to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when appointed, and to be printed.
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AMENDMENT TO THE CONSTITUTION
Mr. FARNSWORTH introduced a joint resolution to amend the Constitution of the United States; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when appointed.
EQUALITY BEFORE THE LAW
Mr. FARNSWORTH introduced the following resolutions, on which he demanded the previous question:
Resolved, (as the sense of this House,) That, as all just powers of government are derived from the consent of the governed, that cannot be regarded as a just Government which denies to a large portion of its citizens, who share both its pecuniary and military burdens, the right to express either their consent or dissent to the laws which subject them to taxation and to military duty, and which refuses them full protection in the enjoyment of their inalienable rights.
Resolved, That in imposing taxes upon the people of the United States, none are excepted therefrom on account of color; so, too, in the laws enacted by congress for enrolling and drafting into the military service of the Government those liable to military duty, no exemption because of color has been allowed; and while we have rewarded the foreigner, who is ignorant of our language and institutions, and who has but just landed upon our shores, with the right of citizenship for a brief service in the armies of the United States, good faith, as well as impartial justice, demands of this Government that it secure to the colored soldiers of the Union their equal rights and privileges as citizens of the United States.
Resolved, That we agree with the President of the United States that “mercy without justice is a crime;” and the admitting of rebels and traitors upon whose hands the blood of slain patriots has scarcely dried, and upon whose hearts is the damning crime of starving to death loyal men taken as prisoners in battle, to the rights of citizenship and of suffrage, while we deny those rights to the loyal black man, who fought for the Union, and who fed and protected our starving soldiers, is a fit illustration of that truism. [snip]
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HONOR TO THE LATE PRESIDENT
Mr. INGERSOLL submitted the following resolution, and demanded the previous question on its adoption:
Resolved, That the committee to be appointed under the resolution providing for the appointment of a joint committee of one from each State to take into consideration what token of respect and affection it may be proper for the Congress of the United States to express concerning the event of the decease of the late President, Abraham Lincoln, be directed to take into consideration the expediency of providing for the completion of the Washington monument, with a view to the dedication of said monument to the commemoration of the virtues and patriotism of those great and good men, George Washington and Abraham Lincoln. [snip]
Mr. INGERSOLL withdrew the demand for the previous question.
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IN SENATE
December 12, 1865
JOINT COMMITTEE ON RECONSTRUCTION
Mr. ANTHONY. I move that the Senate take up the resolution from the House of Representatives, appointing a committee to inquire into the condition of the States which formed the so-called confederate States of America.
The motion was agreed to; and the Senate proceeded to consider the following resolution from the House of Representatives:
Resolved by the Senate and House of Representatives in Congress assembled, That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-called confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report at any time by bill or otherwise; and until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-called confederate States; and all papers relating to the representation of the said States shall be referred to the said committee without debate. [snip]
The PRESIDENT pro tempore. The question is on the amendment to the form of the resolution, changing it from a joint to a concurrent resolution.
The amendment was agreed to.
Mr. ANTHONY. I move further to amend the resolution by striking out all after the word “otherwise.”
The words proposed to be stricken out were read, as follows:
“And until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-called confederate States; and all papers relating to the representation of the said States shall be referred to the said committee without debate.”
Mr. HOWARD. Mr. President, I cannot vote for that amendment. I prefer the resolution as it came from the House of Representatives, because, whether the concurrent resolution has or has not the effect of law, it certainly contains within itself a pledge on the part of the two Houses, given the one to the other, that until the report of this important committee shall have been presented, we will not readmit any of the rebel States either by the recognition of their Senators or of their Representatives [snip]
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HOUSE OF REPRESENTATIVES
December 18, 1865
RECONSTRUCTION
Mr. STEVENS. A candid examination of the power and proper principles of reconstruction can be offensive to no one, and may possibly be profitable by exciting inquiry. One of the suggestions of the message which we are now considering has special reference to this. Perhaps it is the principle most interesting to the people at this time. The president assumes, what no one doubts, that the late rebel States have lost their constitutional relations to the Union, and are incapable of representation in Congress, except by permission of the Government. It matters but little, with this admission whether you call them States out of the Union, and now conquered territories, or assert that because the Constitution forbids them to do what they did do, that they are therefore only dead as to all national and political action, and will remain so until the Government shall breathe into them the breath of life anew and permit them to occupy their former position. In other words, that they are not out of the Union, but are only dead carcasses lying within the Union. In either case, it is very plain that it requires the action of Congress to enable them to form a State government and send representatives to Congress. Nobody, I believe, pretends that with their old constitutions and frames of government they can be permitted to claim their old rights under the Constitution. They have torn their constitutional
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States into atoms, and built on their foundations fabrics of a totally different character, Dead men cannot raise themselves. Dead States cannot restore their own existence “as it was.” Whose especial duty is it to do it? In whom does the Constitution place the Power? Not in the judicial branch of Government, for it only adjudicates and does not prescribe laws. Not in the Executive, for he only executes and cannot make laws. Not in the Commander-in-Chief of the armies, for he can only hold them under military rule until the sovereign legislative power of the conqueror shall give them law.
There is fortunately no difficulty in solving the question. There are two provisions in the Constitution, under one of which the case must fall. The fourth article says:
“New States may be admitted by the Congress into this Union.”
In my judgment this is the controlling provision in this case. Unless the law of nations is a dead letter, the late war between two acknowledged belligerents severed their original compacts, and broke all the ties that bound them together. The future condition of the conquered power depends on the will of the conqueror. They must come in as new States or remain as conquered provinces. Congress—the Senate and House of Representatives, with the concurrence of the President—is the only power that can act in the matter. But suppose, as some dreaming theorists imagine, that these States have never been out of the Union, but have only destroyed their State governments so as to be incapable of political action; then the fourth section of the fourth article applies, which says:
“The United States shall guaranty to every State in this Union a republican form of government.”
Who is the United States? Not the judiciary; not the President; but the sovereign power of the people, exercised through their representatives in Congress, with the concurrence of the Executive. It means the political Government—the concurrent action of both branches of Congress and the Executive. The separate action of each amounts to nothing either in admitting new States or guarantying republican governments to lapsed or outlawed States. Whence springs the preposterous idea that either the President, or the Senate, or the House of Representatives, acting separately, can determine the right of States to send members or Senators to the Congress of the Union?
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To prove that they are and for four years have been out of the Union for all legal purposes, and being now conquered, subject to the absolute disposal of Congress, I will suggest a few ideas and adduce a few authorities. If the so-called “confederate States of America” were an independent belligerent, and were so acknowledged by the United Sstates and by Europe, or had assumed and maintained an attitude which entitled them to be considered and treated as a belligerent, then, during such time, they were precisely in the condition of a foreign nation with whom we were at war; nor need their independence as a nation be acknowledged by us to produce that effect. In the able opinion delivered by that accomplished and loyal jurist, Mr. Justice Grier, in the prize cases, all the law on these points is collected and clearly stated. (2 Black, page 66.) Speaking of civil wars, and following Vattel, he says:
“When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.”
And
“The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or foreign states. A war may exist where one of the belligerents claims sovereign rights as against the other.”
The idea that the States could not and did not make war because the Constitution forbids it, and that this must be treated as a war of individuals, is a very injurious and groundless fallacy. Individuals cannot make war. They may commit murder[*], but that is no war. Communities, societies, States, make War. Phillimore says, (volume three, page 68:)
“War between private individuals who are members of a society cannot exist. The use of force in such a case is trespass and not war.”
But why appeal to reason to prove that the seceded States made war as States, when the conclusive opinion of the Supreme Court is at hand? In the prize cases already cited, the Supreme Court say:
“Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies’ territory, because it is claimed and held in possession by an organized hostile and belligerent power.”
Again, the court say, what I have been astonished that any one should doubt:
“The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed.”
Now, what was the legal result of such war?
“The conventions, the treaties, made with a nation are broken or annulled by a war arising between the contracting parties.”__Vattel, 372; Halleck, 371, section 23.
If gentlemen suppose that this doctrine applies only to national and not to civil wars, I beg leave to refer them to Vattel, page 423. He says:
“A civil war breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who considered each other as enemies, and acknowledge no common judge. These two parties must therefore be considered as thenceforward constituting, at least for a time, two separate bodies; two distinct societies. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and being unable to come to an agreement, have recourse to arms.”
At page 427:
“And when a nation becomes divided into two parties absolutely independent, and no longer acknowledge a common superior, the State is dissolved, and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations.”
But must the belligerent be acknowledged as an independent nation, as some contend? That is answered in the case referred to in 2 Black, as follows:
“It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war, according to the law of nations.”
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This doctrine, so clearly established by publicists, and so distinctly stated by Mr. Justice Grier, has been frequently reiterated since by the Supreme Court of the United States. In Mr. Alexander’s case (2 Wallace, 419) the present able Chief Justice, delivering the opinion of the court, says:
“We must be governed by the principle of public law so often announced from this bench as applicable to civil and international wars, that all the people of each State or district in insurrection against the United States must be regarded as enemies until by the action of the Legislature and Executive, or otherwise, that relation is thoroughly and permanently changed.”
After such clear and repeated decisions it is something worse than ridiculous to hear men of respectable standing attempting to nullify the law of nations, and declare the Supreme Court of the United States in error, because, as the Constitution forbids it, the States could not go out of the Union in fact. A respectable gentleman was lately reciting this argument, when he suddenly stopped and said, “Did you hear of that atrocious murder committed in our town? A rebel deliberately murdered a Government official.” The person addressed said, “I think you are mistaken.” “How so, I saw it myself. “You are wrong, no murder was or could be committed, for the law forbids it.”
The theory that the rebel States, for four years a separate power and without representation in Congress, were all the time here in the Union, is a good deal less ingenious and respectable than the metaphysics of Berkeley, which proved that neither the world nor any human being was in existence. If this theory were simply ridiculous it could be forgiven; but its effect is deeply injurious to the stability of the nation. I cannot doubt that the late confederate States are out of the Union to all intents and purposes for which the conqueror may choose so to consider them.
But on the ground of estoppel, the United States have the clear right to elect to adjudge them out of the Union. They are estopped both by matter of record and matter in pais. One of the first resolutions passed by seceded South Carolina in January, 1861, is as follows:
“Resolved, unanimously, That the separation of South Carolina from the Federal Union is final, and she has no further interest in the Constitution of the United States; and that the only appropriate negotiations between her and the Federal Government are as to their mutual relations as foreign States.”
Similar resolutions appear upon all their State and confederate government records. The speeches of their members of congress, their generals and executive officers, and the answers of their government to our shameful sueings for peace, went upon the defiant ground that no terms would be offered or received except upon the prior acknowledgment of the entire ad permanent independence of the confederate States. After this, to deny that we have a right to treat them as a conquered belligerent, severed from the Union in fact, is not argument but mockery. Whether it be our interest to do so is the only question hereafter and more deliberately to be considered.
But suppose these powerful but now subdued belligerents, instead of being out of the Union, are merely destroyed, and are now lying about, a dead corpse, or with animation so suspended as to be incapable of action, and wholly unable to heal themselves by any unaided movements of their own. Then they may fall under the provision of the Constitution which says “the United State shall guaranty to every State in the Union a republican form of government.” Under that power can the judiciary, or the President, or the Commander-in-Chief of the Army, or the Senate or House of Representatives, acting separately, restore them to life and readmit them into the Union? I insist that if each acted separately, though the action of each was identical with all the others, it would amount to nothing. Nothing but the joint action of the two Houses of Congress and the concurrence of the President could do it. If the Senate admitted their Senators, and the House their members, it would have no effect on the future action of Congress. The Fortieth Congress might reject both. Such is the ragged record of Congress for the last four years.
In Luther vs. Borden (7 Howard, 1-42) the Supreme Court say:
“Under this article of the Constitution [the one above cited] it rests with Congress to decide what government is the established one in a State. For as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.”
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Congress alone can do it. But Congress does not mean the Senate, or the House of Representatives, and President, all acting severally. Their joint action constitutes Congress. Hence a law of Congress must be passed before any new State can be admitted; or any dead ones revived. Until then no member can be lawfully admitted into either House. Hence it appears with how little knowledge of constitutional law each branch is urged to admit members separately from these destroyed States. The provision that “each House shall be the judge of the elections, returns, and qualifications of its own members,” has not the most distant bearing on this question. Congress must create States and declare when they are entitled to be represented. Then each House must judge whether the members presenting themselves for a recog-
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nized States possess the requisite qualifications of age, residence, and citizenship; and whether the election and returns are according to law. The Houses, separately, can judge of nothing else. It seems amazing that any man of legal education could give it any larger meaning.
It is obvious from all this that the first duty of Congress is to pass a law declaring the condition of these outside or defunct States, and providing proper civil governments for them. Since the conquest they have been governed by martial law. Military rule is necessarily despotic, and ought not to exist longer than is absolutely necessary. As there are no symptoms that the people of these provinces will be prepared to participate in constitutional government for some years, I know of no arrangement so proper for them as territorial governments. There they can learn the principles of freedom and eat the fruit of foul rebellion. Under such governments, while electing members to the Territorial Legislatures, they will necessarily mingle with those to whom Congress shall extend the right of suffrage. In Territories Congress fixes the qualifications of electors; and I know of no better place nor better occasion for the conquered rebels and the conqueror to practice justice to all men, and accustom themselves to make and to obey equal laws.
As these fallen rebels cannot at their option reenter the heaven which they have disturbed, the garden of Eden which they have deserted, and flaming swords are set at the gates to secure their exclusion, it becomes important to the welfare of the nation to inquire when the doors shall be reopened for their admission.
According to my judgment they ought never to be recognized as capable of acting in the Union, or of being counted as valid States, until the Constitution shall have been so amended as to make it what its framers intended; and so as to secure perpetual ascendency to the party of the Union; and so as to render our republican Government firm and stable forever. The first of those amendments is to change the basis of representation among the States from Federal numbers to actual voters. Now all the colored freemen in the slave States, and three fifths of the slaves, are represented, though none of them have votes. The States have nineteen representatives of colored slaves. If the slaves are now free then they can add, for the other two fifths, thirteen more, making the slave representation thirty-two. I suppose the free blacks in those States will give at least five more, making the representation of non-voting people of color about thirty-seven. The whole number of representatives now from the slave States is seventy. Add the other two fifths and it will be eighty-three.
If the amendment prevails, and those States withhold the right of suffrage from persons of color, it will deduct about thirty-seven, leaving them but forty-six. With the basis unchanged, the eighty-three southern members, with the Democrats that will in the best times be elected from the North, will always give them a majority in Congress and in the Electoral College. They will at the very first election take possession of the White House and the halls of Congress. I need not depict the ruin that would follow. Assumption of the rebel debt or repudiation of the Federal debt would be sure to follow. The oppression of the freedmen; the reamendment of their State constitutions, and the reestablishment of slavery would be the inevitable result. That they would scorn and disregard their present constitutions, forced upon them in the midst of martial law, would be both natural and just. No one who has any regard for freedom of elections can look upon those governments, forced upon them in duress, with any favor. If they should grant the right of suffrage to persons of color, I think there would always be Union white men enough in the South, aided by the blacks, to divide the representation, and thus continue the Republican ascendancy. If they should refuse to thus alter their election laws it would reduce the representatives of the late slave States to about forty-five and render them powerless for evil.
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It is plain that this amendment must be consummated before the defunct States are admitted to be capable of State action, or it never can be.
The proposed amendment to allow Congress to lay a duty on exports is precisely in the same situation. Its importance cannot well be overstated. It is very obvious that for many years the South will not pay much under our internal revenue laws. The only article on which we can raise any considerable amount is cotton. It will be grown largely at once. With ten cents a pound export duty it would be furnished cheaper to foreign markets than they could obtain it from any other part of the world. The late war has shown that. Two million bales exported, at five hundred pounds to the bale, would yield $100,000,000. This seems to be the chief revenue we shall ever derive from the South. Besides, it would be a protection to that amount to our domestic manufactures. Other proposed amendments—to make all laws uniform; to prohibit the assumption of the rebel debt—are of vital importance, and the only thing that can prevent the combined forces of copperheads and secessionists from legislating against the interests of the Union whenever they may obtain an accidental majority.
But this is not all that we ought to do before these inveterate rebels are invited to participate in our legislation. We have turned, or are about to turn, loose four million slaves without a hut to shelter them or a cent in their pockets. Th infernal laws of slavery have prevented them from acquiring an education, understanding the commonest laws of contract, or of managing the ordinary business of life. This Congress is bound to provide for them until they can take care of themselves. If we do not furnish them with homesteads, and hedge them around with protective laws; if we leave them to the legislation of their late masters, we had better have left them in bondage. Their condition would be worse than that of our prisoners at Andersonville. If we fail in this great duty now, when we have the power, we shall deserve and receive the execration of history and of all future ages.
Two things are of vital importance.
1. So to establish a principle that none of the rebel States shall be counted in any of the amendments of the Constitution until they are duly admitted into the family of States by the law-making power of their conqueror. For more than six months the amendment of the Constitution abolishing slavery has been ratified by the Legislatures of three fourths of the States that acted on its passage by Congress, and which had Legislatures, or which were States capable of acting, or required to act, on the question.
I take no account of the aggregation of white-washed rebels, who without any legal authority have assembled in the capitals of the late rebel States and simulated legislative bodies. Nor do I regard with any respect the cunning by-play into which they deluded the Secretary of State by frequent telegraphic announcements that “South Carolina had adopted the amendment;” “Alabama has adopted the amendment, being the twenty-seventh State,” &c. This was intended to delude the people, and accustom Congress to hear repeated the names of these extinct States as if they were alive; when, in truth, they have now no more existence than the revolted cities of Latium, two thirds of whose people were colonized and their property confiscated, and their right of citizenship withdrawn by conquering and avenging Rome.
2. It is equally important to the stability of this Republic that it should now be solemnly decided what power can revive, recreate, and reinstate these provinces into the family of States, and invest them with the rights of American citizens. It is time that Congress should assert its sovereignty, and assume something of the dignity of a Roman senate. It is fortunate that the President invites Congress to take this manly attitude. After stating with frankness in his able message his theory, which, however, is found to be impracticable, and which I believe very few now consider tenable, he refers the whole matter to the judgment of Congress. If Congress should fail firmly and wisely to discharge that high duty it is not the fault of the President.
This Congress owes it to its own character to set the seal of reprobation upon a doctrine which is becoming too fashionable, and unless rebuked will be the recognized principle of our Government. Governor Perry and other provisional governors and orators proclaim that “this is the white man’s Government.” The whole copperhead party, pandering to the lowest prejudices of the ignorant, repeat the cuckoo cry, “This is the white man’s Government.” Demagogues of all parties, even some high in authority, gravely shout, “This is the white man’s Government.” What is implied by this? That one race of men are to have the exclusive right forever to rule this nation, and to exercise all acts of sovereignty, while all other races and nations and colors are to be their subjects, and have no voice in making the laws and choosing the rulers by whom they are to be governed. Wherein does this differ from slavery except in degree? Does not this contradict all the distinctive principles of the Declaration of Independence? When the great and good men promulgated that instrument, and pledged their lives and sacred honors to defend it, it was supposed to form an epoch in civil government. Before that time it was held that the right to rule was vested in families, dynasties, or races, not because of superior intelligence or virtue, but because of a divine right to enjoy exclusive privileges.
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Our fathers repudiated the whole doctrine of the legal superiority of families or races, and proclaimed the equality of men before the law. Upon that they created a revolution and built the Republic. They were prevented by slavery from perfecting the superstructure whose foundation they had thus broadly laid. For the sake of the Union they consented to wait, but never relinquished the idea of its final completion. The time to which they looked forward with anxiety has come. It is our duty to complete their work. If this Republic is not now made to stand on their great principles, it has no honest foundation, and the Father of all men will still shake it to its center. If we have not yet been sufficiently scourged for our national sin to teach us to do justice to all God’s creatures, without distinction of race or color, we must expect the still ore heavy vengeance of an offended Father, still increasing his inflictions as he increased the severity of the plagues of Egypt until the tyrant consented to do justice. And when that tyrant repented of his reluctant consent, and attempted to reenslave the people, as our southern tyrants are attempting to do now, he filled the Red sea with broken chariots and drowned horses, and strewed the shores with dead carcasses.
Mr. Chairman, I trust the Republican party will not be alarmed at what I am saying. I do not profess to speak their sentiments, nor must they be held responsible for them. I speak for myself, and take the responsibility, and will settle with my intelligent constituents.
This is not a “white man’s Government,” in the exclusive sense in which it is used. To say so is political blasphemy, for it violates the fundamental principles of our gospel of liberty. This is man’s Government; the Government of all men alike; not that all men will have equal power and sway within it. Accidental circumstances, natural and acquired endowment and ability, will vary their fortunes. But equal rights to all the privileges of the Government is innate in every mortal being, no matter what the shape or color of the tabernacle which it inhabits.
If equal privileges were granted to all, I should not expect any but white men to be elected to office for long ages to come. The prejudice engendered by slavery would not soon permit merit to be preferred to color. But it would still be beneficial to the weaker races. In a country where political divisions will always exist, their power, joined with just white men,
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would greatly modify, if it did not entirely prevent, the injustice of majorities. Without the right of suffrage in the late slave States, (I do not speak of the free States,) I believe the slaves had far better been left in bondage. I see it stated that very distinguished advocates of the right of suffrage lately declared in this city that they do not expect to obtain it by congressional legislation, but only by administrative action, because, as one gallant gentleman said, the States had not been out of the Union. Then they will never get it. The President is far sounder than they. He sees that administrative action has nothing to do with it. If it ever is to come, it must be constitutional amendments or congressional action in the Territories, and in enabling acts.
How shameful that men of influence should mislead and miseducate the public mind! They proclaim, “This is the white man’s Government,” and the whole coil of copperheads echo the same sentiment, and upstart, jealous Republicans join the cry. It is any wonder ignorant foreigners and illiterate native should learn this doctrine, and be led to despise and maltreat a whole race of their fellow-men?
Sir, this doctrine of a white man’s Government is as atrocious as the infamous sentiment that damned the late Chief Justice to everlasting fame; and, I fear, to everlasting fire.
Mr. FINCK moved that the committee do now rise.
The motion was agreed to.
So the committee rose; and the Speaker having resumed the chair, Mr. WASHBURNE, of Illinois, reported that the Committee of the Whole on the state of the Union had under consideration the Union generally, and generally, and particularly the annual message of the President of the United States, and had come to no resolution thereon. [snip]
Mr. ALLEY. I now demand the previous question upon agreeing to the resolution. [snip]
The question recurred upon agreeing to the resolution of Mr. ALLEY, upon which the yeas and nays had been ordered. [snip]
So the resolution was agreed to.
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RECONSTRUCTION
Mr. ASHLEY, of Ohio, by unanimous consent, introduced a bill to enable the loyal citizens of the United
States residing in States whose constitutional governments were usurped or overthrown by the recent rebellion, after accepting certain conditions prescribed by the United States in Congress assembled, to form a constitution and State government for each of said States preparatory to resuming as States their constitutional relations to the national Government; which was read a first and second time, and referred to the joint committee on reconstruction, and ordered to be printed.
Mr. ASHLEY also presented a memorial from sundry citizens of the United States, in relation to reconstruction; which was referred to the joint committee on reconstruction. [snip]
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IN SENATE
December 19, 1865
CONDITION OF SOUTHERN STATES
Mr. COWAN. I understand that the reply of the President of the United States to a resolution of this body passed on the 12th instant, is now on the table. I ask that it be read. [snip]
The PRESIDENT pro tempore. The Chair lays before the Senate the message referred to; and it will be read.
The Secretary read the message, as follows:
To the Senate of the United States:
In reply to the resolution adopted by the Senate on the 12th instant, I have the honor to state that the rebellion waged by a portion of the people against the properly-constituted authorities of the Government of the United States has been suppressed; [snip]
The report of Carl Schurz is herewith transmitted, as requested by the Senate. No reports from Hon. John Covode have been received by the President. The attention of the Senate is invited to the accompanying report of Lieutenant General Grant, who recently made a tour of inspection through several of the States whose inhabitants participated in the rebellion.
ANDREW JOHNSON. WASHINGTON, D. C., December 18, 1865.
Mr. COWAN. I ask that the report of General Grant be read.
The PRESIDENT pro tempore. If there be no objection that report will be read.
The Secretary read, as follows:
HEADQUARTERS ARMIES OF THE UNITED STATES
WASHINGTON, D. C., December 18, 1865
SIR: In reply to your note of the 16th instant, requesting a report from me giving such information as I may be possessed of, coming within the scope of the inquiries made by the Senate of the United Sstates in their resolution of the 12th instant, I have the honor to submit the following:
With your approval, and also that of the honorable Secretary of War, I left Washington city on the 27th of last month for the purpose of making a tour of inspection through some of the southern States, or States lately in rebellion, and to see what changes were necessary to be made in the disposition of the military forces of the country; how these forces could be reduced and expenses curtailed, &c., and to learn as far as possible, the feelings and intentions of the citizens of those States toward the General Government. [snip]
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I did not give the operations of the Freedmen’s Bureau that attention I would have done if more time had been at my disposal. Conversations on the subject, however, with officers connected with the bureau lead me to think that in some of the States its affairs have not been conducted with good judgment or economy, and that the belief, widely spread among the freedmen of the southern States, that the lands of their former owners will, at least in part, be divided among them, has come from the agents of this bureau. This belief is seriously interfering with the willingness of the freedmen to make contracts for the coming year. In some form the Freedmen’s Bureau is an absolute necessity until civil law is established and enforced, securing to the freedmen their rights and full protection. At present, however, it is independent of the military establishment of the country, and seems to be operated by the different agents of the bureau according to their individual notions. Everywhere General Howard, the able head of the bureau, made friends by the just and fair instructions and advice he gave; but the complaint in South Carolina was that when he left, things went on as before. Many, perhaps the majority, of the agents of the Freedmen’s Bureau advise the freedmen that by their own industry they must expect to live. To this end they endeavor to secure employment for them, and to see that both contracting parties comply with their engagements. In some instances, I am sorry to say, the freedman’s mind does not seem to be disabused of the idea that a freedman has the right to live without care or provision for the future. The effect of the belief in division of lands is idleness and accumulation in camps, towns, and cities. In such cases I think it will be found that vice and disease will tend to the extermination, or great reduction of the colored race. It cannot be expected that the opinions held by men at the South for years can be changed in a day, and therefore the freedmen require for a few years not only laws to protect them, but the fostering care of those who will give them good counsel and in whom they can rely.
The Freedmen’s Bureau, being separated from the military establishment of the country, requires all the expense of a separate organization. [snip]
I have the honor to be, very respectfully, your obedient servant,
U. S. GRANT,
Lieutenant General.
His Excellency A. Johnson,
President of the United States.
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HOUSE OF REPRESENTATIVES
December 19, 1865
ABOLITION OF SLAVERY
Mr. SHELLABARGER, by unanimous consent, offered the following resolution; which was read, considered, and agreed to:
Resolved, That the Committee on the Judiciary be directed to inquire and report to this House, as soon as practicable, by bill or otherwise, what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States under the joint resolution of Congress of March 3, 1865, and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery.
Mr. SHELLABARGER moved to reconsider the vote by which the resolution was agreed to; and also moved that the motion to reconsider be laid on the table. The latter motion was agreed to.
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IN SENATE
December 20, 1865
PROTECTION OF FREEDMEN
On motion of Mr. WILSON, the Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 9) to maintain the freedom of the inhabitants in the States declared in insurrection and rebellion by the proclamation of the President of the 1st of July, 1862.
Mr. SUMNER. When I think of what occurred yesterday in this Chamber; when I call to mind the attempt to whitewash the unhappy condition of the rebel States, and to throw the mantle of official oblivion over sickening and heart-rending outrages, where Human Rights are
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sacrificed and rebel Barbarism receives a new letter of license, I feel that I ought to speak of nothing else. I stood here years ago, in the days of Kansas, when a small community was surrendered to the machinations of slave-masters. I now stand here again, when, alas ! an immense region, with millions of people, has been surrendered to the machinations of slave-masters. Sir, it is the duty of Congress to arrest this fatal fury. Congress must dare to be brave; it must dare to be just. But I shall not be diverted from the question before the Senate, although, in unfolding the necessity of present legislation for the protection of the freedmen, I shall be led necessarily and logically to speak of the condition of the rebel States.
The PRESIDENT pro tempore. The Chair will suggest that the question before the Senate is on the motion of the Senator from Pennsylvania [Mr. COWAN] to refer this bill to the Committee on the Judiciary, and by the rule of the Senate, a motion of that sort does not open the general merits of the question.
Mr. SUMNER. I have always understood in this body that on a general question of reference the whole subject as open. If the question is put as between two committees, then I certainly accept the decision of the Chair; but if the question is one of general reference, I submit that the whole subject is open.
The PRESIDENT pro tempore. The question is on the motion to refer the bill to the Committee on the Judiciary, which is a motion concerning the order of Business. That motion, as the Chair understands the rules, does not open the general merits of the question, but remarks upon that question should be confined to the reasons why it should or should not be referred to the particular committee named.
Mr TRUMBULL. I move that the Senator from Massachusetts be permitted to proceed in his own way on this subject. There is nothing pressing upon the Senate to-day.
The PRESIDENT pro tempore. The Chair did not interrupt the Senator except to state what the question was.
Mr. TRUMBULL. I hope there will be no objection to his proceeding.
Mr. SUMNER. I come, then, to the precise question.
All must admit that the bill of my colleague is excellent in purpose. It proposes nothing less than to establish Equality before the Law, at least so far as civil rights are concerned, in the rebel States. This is done simply to carry out and maintain the Proclamation of Emancipation, by which this Republic is solemnly pledged to maintain the emancipated slave in his freedom. Such is our pledge: “and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons.” This pledge is without any limitation in space or time. It is as extended and as immortal as the Republic itself. Does anybody call it vain words? I trust not. To that pledge we are solemnly bound. Wherever our flag floats as long as time endures we must see that it is sacredly observed.
But the performance of that pledge cannot be intrusted to another; least of all, can it be intrusted to the old slave-masters, embittered against their slaves. It must be performed by the national Government. The power that gave freedom must see that this freedom is maintained. Ths is according to reason. It is also according to the examples of history. In the British West Indies we find this teaching. Three of England’s greatest orators and statesmen, Burke, Canning, and Brougham, at successive periods united in declaring, from the experience in the British West Indies, that whatever the slave-masters undertook to do for their slaves was always “arrant trifling,” and that, whatever might be its plausible form, it always wanted “the executive principle.” More recently the Emperor of Russia, when ordering Emancipation, declared that all efforts of his predecessors in this direction had failed because they had been left to “the spontaneous initiative of the proprietors.” I might say much more on this head, but this is enough. I assume that no such blunder will be made on our part that we shall not leave to the old proprietors the maintenance of that freedom to which we are pledged, and thus break our own promises and sacrifice a race.
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I have already alluded to Emancipation in Russia. But this example is worthy our deepest study, unless we purposely reject history. All know that in 1861 the Emperor, by solemn Proclamation, gave freedom to upward of twenty-three million serfs; but it is not generally known by what supplementary provisions this freedom was secured.
I have in my hands an official copy of this great act, published at St. Petersburg, by which it is declared that the serfs, after an interval of two years, are “entirely enfranchised.” Under this Proclamation, a new set of local magistrates was constituted, with “special court” and “justices of the peace” in each district, to superintend the working of the Proclamation and to examine on the spot all questions arising from Emancipation. This provision was not unlike our Bureau of Freedmen, which is thus vindicated by this example.
But the good work did not stop here. The Emperor did not leave the freedmen without protection, handed over to the tender mercies of their former owners. By a careful series of “regulations” accompanying the Proclamation; prepared with infinite care, and divided into chapters and sections, the rights of the freedmen are secured beyond question. I hold a copy of this remarkable document in my hand. Here it is, a model for our imitation.
These “regulations” begin with the formal declaration that the freedmen, by the act of Emancipation, “acquire the rights belonging to free farmers.” The language is general. It is “the rights of free farmers,” not in certain particulars, but in all particulars; not merely in exemption from the authority of their masters, but in complete enfranchisement. Surely here is an example for us.
The “regulations” then proceed in formal words to fix and assure these rights civil and political. These rights are not left to inference or to future discussion; but they are positively declared with all possible detail.
By one section the freedman is secured in all his rights of family and rights of contract, as follows:
“The articles of the Civil Code on the rights and obligations of the family are extended to the freedmen; consequently they acquire the right, without the authorization of the proprietor, to contract marriage, and to make any arrangement whatever concerning their family affairs; they can equally enter into all agreements and obligations authorized by the laws, as well with the State as with individuals, on the conditions established for free farmers; they can inscribe themselves in the guilds, and exercise their trades in the villages; and they can found and conduct factories and establishments of commerce.”
By another section the freedman is secured in rights of property. He may acquire and alienate property of all kinds, according to the general law; and, besides, “the possession of the homestead” on which he has lived is guarantied to him on certain conditions. Surely here is an example for us.
By another section the freedman is secured complete Equality in the courts, as follows:
“He shall have the right of action whether civilly or criminally, to commence process, and to answer personally or by attorney; to make complaint, and to defend his rights by all the means known to the law, and to appear as witness and as bail conformably to the common law.”
Mark these words. He may appear “as witness and as bail.” Surely here is an example for us.
By other sections the freedman is secured Equality in political rights, according to the measure of such rights in Russia, thus:
“On the organization of the towns, he shall be entitled to take part in the meetings and elections for the
towns, and to vote on town affairs, and to exercise divers functions; and he shall also take part in the assemblies for the district, and shall vote on district affairs, and choose the chairman.”
From all the provisions on this head, it appears that the freedman enjoys rights to choose the local officers, and to be chosen in turn. Surely here is an example for us.
By still another section the freedman is secured Equality at schools and in Education; thus:
“He may place his children in the establishments for public education, to embrace the career of instruction, or the scientific career, or to take service in the corps of surveyors.”
Surely here again is an example for us.
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Then, again, for the general protection of freedman it is provided that he “cannot lose his rights or be restrained in their exercise, except after the judgment of the town according to fixed rules;” and still further, that he “cannot be subjected to any punishment, otherwise than by notice of a judgment, or according to the legal decision of the town to which he belongs.” Surely here again is an example to us.
Thus does Russia by careful provisions, supplementary to the act of Emancipation, secure her freedmen in all their rights; first, in the right of family and the right of contract; secondly, in the right of property, including a homestead; thirdly, in complete Equality in the courts; fourthly, in Equality in political rights; fifthly, in Equality at schools and in Education; and, finally, all these safeguards are crowned by declaring that they cannot lose their rights or be punished except after judgment according to fixed rules; thus completely fulfilling that requirement of our fathers, that “government should be a government of laws and not of men.”
I trust that this example is none the less worthy of imitation because it is that of an empire, which is not supposed to sympathize with liberal ideas. Surely a republic cannot in this respect lag behind an empire. Besides, all that we hear shows that the experiment has been successful. Clearly an experiment inspired so completely by the spirit of justice cannot fail.
My colleague is clearly right in introducing his bill and pressing it to a vote. The argument for it is irresistible. It is essential to complete Emancipation. Without it Emancipation will be only half done. It is our duty to see that it is wholly done. Slavery must be abolished not in form only, but in substance, so that there shall be no Black Code; but all shall be Equal before the Law.
As to the power of Congress over this question I cannot doubt it. My colleague assumes the power without professing to trace it to any particular source. It may be a military power precisely as the Proclamation of Emancipation, and here the authority is as clear and absolute as in the District of Columbia, or it may be in pursuance of the Constitutional Amendment, which provides that Congress may “enforce the amendment by appropriate legislation;” or it may be to carry out the guarantee of a republican form of government.
There are measures of my own, already introduced by me, now on your table, looking to the same result as the pending bill, which proceed specifically on the two latter grounds.
One of these is entitled “A bill supplying appropriate legislation to enforce the amendment of the Constitution.” From this bill I read two sections:
SEC. 3. And be it further enacted, That in further enforcement of the provision of the Constitution prohibiting slavery, and in order to remove all relics of this wrong from the States where this constitutional prohibition takes effect, it is hereby declared that all laws or customs in such States establishing any oligarchical privileges and any distinction of rights on account of color or race are hereby annulled, and all persons in such States are recognized as equal before the law; and the penalties provided in the last section are hereby made applicable to any violation of this provision which is made in pursuance of the Constitution of the United States.
SEC. 4. And be it further enacted, That in further enforcement of the provision of the Constitution aforesaid, the courts of the United States in the States aforesaid shall have exclusive jurisdiction of all offenses committed by persons not of African descent upon persons of African descent; also of all offenses committed by persons of African descent; and also of all causes, suits, and demands to which any person of African descent shall be a party; and it is hereby declared that all such cases are to be treated as cases arising under the Constitution of the United States.
This bill, of course, proceeds on the idea that the amendment is now a part of the Constitution
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to all intents and purposes. And who can doubt this conclusion? It has been already adopted by “the Legislatures of three fourths of the States,” in other words by three fourths of the States having Legislatures. The States having no Legislatures at the time of its proposition by Congress are not counted. Of what value can be the enforced consent of the disloyal and barbarous bodies that have pretended to act for certain States at the dictation of military power? Military power may govern during the war, but it is impotent to make a republican State or to give assent to an amendment of the Constitution.
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Another bill introduced by me, and now on the table is founded on the guarantee clause. It is brief, and will explain itself:
A Bill in part execution of the guarantee of a republican form of government in the Constitution of the United States.
Whereas it is declared in the Constitution that the United States shall guaranty to every State in this Union a republican form of government; and whereas certain States have allowed their governments to be subverted by rebellion, so that the duty is now cast upon Congress of executing this guarantee: Now, therefore,
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assemble, That in all States lately declared to be in rebellion there shall be no oligarchy, invested with peculiar privileges and powers, and there shall be no denial of rights, civil or political, on account of color or race; but all persons shall be equal before the law, whether in the court-room or at the ballot-box. And this statute, made in pursuance of the Constitution, shall be the supreme law of the land, anything in the constitution or laws of any such State to the contrary notwithstanding.
Both these bills are broader even than that of my colleague; for they point to the absolute obliteration of all legal discriminations founded on color whether it the court-room or at the ballot-box, and to this conclusion we must come at last. But I confess that I feel the dignity, the grandeur, and the substantial value, which would be found in a declaration of Congress that an oligarchical government, which denied rights to a whole race; which undertook to tax without representation; and which discarded the “consent of the governed” as its just foundation, cannot be a “republican form of government.”
The most explicit, the most positive, the most mandatory words in the Constitution are, “the United States shall guaranty to every State in the Union a republican form of government.” This great duty is thrown not upon any individual branch of the Government, but upon the United States. It is a duty “to guaranty”—which in itself is a strong term—what? A republican form of government. Now, by the lapse of State governments in the rebel States, this duty is cast upon the United States. But the United States are represented in Congress, or rather by an act of Congress, which in itself is the embodied will of both Houses of Congress, and of the President of the United States. Congress must, therefore, determine, what is a republican form of government? Into this question I do not now enter. At the proper time I hope to consider it. I content myself now by saying, that it is absurd to say that a community, which is founded on oligarchical pretensions, and which excludes from all participation in the government any considerable proportion of its tax-paying citizens, and ignores the consent of the governed, can be considered a republican form of government. On this proposition I hope to be heard at an early day. Here is one of the greatest questions of our history.
And now after this brief review of the object proposed to be accomplished, I am brought to consider the practical necessity of such legislation; and here it is my duty to expose the actual condition of the rebel States, especially as regards loyalty and the treatment of the freedmen. On this head I shall adduce evidence in my possession. In the endeavor to bring what I say within reasonable proportions, I shall adduce only a small part of what has passed under my eye; but it will be more than enough. In bringing it forward the difficulty is of selection and abridgment.
I shall begin with something relating to the condition of the rebel States generally, and shall then proceed to consider the different States successively.
And now, first, as to the rebel States generally. I know no testimony which has found its way to the public, with regard to the general condition of the South, which will compare in value with a series of letters by A. Warren Kelsey, a cotton agent of character and intelligence above question, who has traveled through the rebel States. His communications with his employers show singular powers of observation, and are expressed with great clearness. Of course I can only give a few extracts:
“In traveling about as I have, from one section of the country to the other, I have been able to compare opinions, and, as you know, I have had peculiar and favorable opportunities for ascertaining the views they have in common. I have endeavored to trace the motives from which they have acted and which now animate them, and their real purpose for the future, if they have one. In giving you my opinion now, it is proper to say that I have taken no one individual as a criterion of the whole, and have judged them only by the opinions I find they are generally agreed upon; neither have I and one’s statement for their thoughts and actions. My opinions, deductions, and conclusions are derived from my own experience and observation among them, and whether they shall be confirmed or denied by others, are, notwithstanding, my honest and sincere convictions.”
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“While I am able to say that they have made up their minds that emancipation is a fact, and not to be avoided, I am obliged to state my earnest opinion that so far as secession is concerned, that is, the doctrine of State rights, it is more deeply rooted than ever among them. They are perfectly united in the belief that the division of this country is both right from a moral stand-point, and politic as a measure of expediency. They have simply changed their base from the battle-field to the ballot-box, believing, as they very frankly admit, that greater triumphs await them there than they could ever hope for in the field. In almost every house hangs the old, worn confederate uniform, which is displayed with pride and satisfaction to all comers. So far from repenting of the stand they took, they glory in it. They regret the result, and their non-success, it is true, but not one in a thousand will admit they were in the wrong.”
* * * * * * *
“They argue that at least ninety-five in every two hundred votes at the North are sure to be thrown in their favor, and they can now rule the Union by giving up, which is cheaper than to persist in their idea of a separate Government. That idea, however, is only laid aside for a time. Every boy at the South is being educated in the belief that the relations the South to-day sustains toward the North, are the same as those of Hungary or Venetia toward Austria, or of Poland to Russia. They bide their time. They have adopted for their motto ‘Patience, and shuffle the cards.’ The snake, so far from being killed, is barely ‘scotched.’ Meantime, they deem it better to rule in the Union than to serve in the confederate army.
“As to their affection for their military leaders, you will find proof in the elections at Richmond and in South Carolina. No man has a better claim to their sympathy, and none stand a better chance of election, than those who were the last to give up. Motives of policy may induce them to nominate others, but the fact remains as I have stated. I repeat, that General Lee and Wade Hampton are the two most popular and best-loved men in the South to-day. I have heard but one disparaging remark made of General Lee since I was at the South, and that was in this connection: I was riding one night in a hack across the gap in a railway, made by Wilson, and, as usual, the conversation turned on political affairs and the condition and prospects of the southern people. One man said that General Lee stood the best chance for the next Presidency—by the way, that is a very prevalent idea here at the South—when another remarked that he would rather have Andrew Johnson. I was curious to know why, and inquired. He replied, that ‘he had but little confidence in Lee since he favored negro soldiers, and in his opinion he was not much better than a Black Republican.;
“At present every one at the South is occupied in his personal and family interests. There are no political parties; very little coherence of opinion as to the policy best to be pursued. But I find among the knowing ones, particularly those who have been on to the North, and remained some time in New York or Washington, a sanguine belief that they can easily resume the reins of office, and these men are the only Unionists in the South to-day. You can depend upon it, that the southern States in the future will present one solid, unanimous front; their leaders have them well in hand. And this is precisely what ninety-nine in every hundred of the men, women, and children believe sincerely as to the situation to-day: first, that the South of right possess and always possessed the right of secession; secondly, that the war only proved that the North was the strongest; thirdly, that negro slavery was and is right, but has been abolished by the war. The southerners are too smart not to see that slavery is dead, but many of them hope as long as the black race exists here to be able to hold it in a condition of practical serfdom. All expect the negro will be killed in one way or another by emancipation. The policy of those who will eventually become the leaders here at the South, is, for the present, to accept the best they can get, to acquiesce in anything and everything, but to strain every nerve to regain the political power and ascendency they held under Buchanan. This they believe cannot be postponed longer than up to the next presidential election. They will do all in their power to resist negro suffrage, and to reduce taxation and expenditures, and would attack the national debt if they saw any reason to believe repudiation possible. They will continue to assert the inferiority of the African, and they would to-day, if possible, precipitate the United States into a foreign war, believing they could then reassert and obtain their independence. They will, most of them, take any oaths you may cause to be adopted, and break them immediately, and without scruple. In one word, this people have placed themselves in resolute antagonism to the North, and this generation, at least, will always hate the northern people, while the boys are being educated to the same idea.”
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“On the whole, looking at the affair from all sides, it amounts to just this: if the northern people are content to be ruled over by the southerners they will continue in the Union; if not, the first chance they get they will rise again. I venture the prediction that within five years they will either be in power, or will be fighting us again. If the first, God help New England!”
Other testimony is in harmony. For instance a trustworthy traveler who has recently traversed the Gulf States, thus writes in a private letter to myself:
“The former masters exhibit a most cruel, remorseless, and vindictive spirit toward the colored people. In parts where there are no Union soldiers, I saw colored women treated in the most outrageous manner. They have no rights that are respected. They are killed, and their bodies thrown into ponds or mud holes. They are mutilated by having ears and noses cut off.”
Of course such a people already talk of repudiating the national debt. To the question, “Would it be safe to trust white men at the South with the power to repudiate the national debt?” a person in gray uniform at once replied, “Repudiate! I should hope they would. I’m whipped, and I’ll own it; but I’m not so fond of a whipping that I’m going to pay a man’s expenses while he gives it to me. Of course there are not ten men in the whole South that wouldn’t repudiate!” Such is the spirit of these States. But a candidate for Congress in Virginia undertook to speak for the rebel States, as follows:
“I am opposed to the southern States being taxed at all for the redemption of this debt, either directly or indirectly; and, if elected to Congress, I will oppose all such measures, and I will vote to repeal all laws that have heretofore been passed for that purpose; and, in doing so, I do not consider that I violate any obligations to which the South was a party. We have never plighted our faith for the redemption of the war debt. The people will be borne down with taxes for years to come, even if the war debt is repudiated. It will be the duty of the Government to support the maimed and disabled soldiers, and this will be a great expense; and if the United States Government requires the South to be taxed for the support of Union soldiers, we should insist that all disabled soldiers should be maintained by the United States Government, without regard to the side they had taken in the war.”
A late writer, who within a few days has returned from an extensive tour in North Carolina, South Carolina, and Georgia, and who now enjoys a seat in your reporters’ gallery, thus testifies with regard to the national debt:
“The national debt doubtless seems to you beyond the reach of any hand. Yet I regard it as very probable that one or two or all of three things will be attempted within three years after the southern members of Congress are admitted to seats—the repudiation of the national debt, the assumption of the confederate debt, or the payment of several hundred million dollars to the South for property destroyed and slaves emancipated. I met several shrewd and intelligent men who expressed the belief that confederate bonds will be worth something in two or three years. One told me that large amounts were held in New York and England, and he expected steps would be taken within five years toward paying them from the national Treasury. I heard no man openly advocate the repudiation of the national debt, but scores argued to me that it would not be fair to make the South pay any part of it; and one man said he believed, if the case were only carried up, that the Supreme Court would so decide. The idea that the nation will pay the South for her slaves extensively prevails both in Georgia and South Carolina. It is incorporated into the new constitution of Georgia, and is openly advocated by many influential men in South Carolina. Wherefore, I say, the national debt needs watching.”
Let the Secretary of the Treasury take notice, and not expose the national finances to the peril which menaces them. [snip]
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Mr. President, I bring this plain story to a close. … Pass the bill now under consideration; pass any bill; but do not let this crying injustice rage any longer. An avenging God cannot sleep while such things find countenance. If you are not ready to be the Moses of an oppressed people, do not become its Pharaoh.
Mr. SAULSBURY. Mr. President, the proposition before the Senate, I believe, is to refer this bill to the Committee on the Judiciary. I shall not be guilty of the impropriety of violating the usage of the Senate by entering into a general discussion of the merits of the bill upon a motion of that character; nor shall I attempt to reply whatever to the remarks that have just been made. Private letters and correspondence are not to be supposed to have much weight with the Senate of the United States. I shall detain the Senate but a very short time, as I understand there is a desire on the part of the body to adjourn presently in order to attend the funeral of the late Mr. Corwin. There is one remark, however, that I wish to make before the adjournment, as perhaps after to-morrow the Senate will not be in session for some days.
There seems to be an apprehension in some quarters, (judging from the debates that have already occurred in this body and at the other end of the Capitol,) that the Democratic party is again to come into power, and that it is to come into power through the agency of the
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present Executive of the United States. The fact can be no longer disguised that there is in the party which elected the President an opposition party to him. Nothing can be more antagonistic than the suggestions contained in his message and the speeches that have already been made in the other end of the Capitol and in this Chamber. We of the minority here have listened, and listened patiently, without saying one word as to what will be our policy when this fight shall come. I am prepared to speak for no one but myself; but if the voice of one so humble could reach presidential ears, it would be this: “Stand firm to the constitutional principles that you have avowed; and, though the attack may be fierce and the war upon your administration bitter, if you will continue to recognize in the future as your policy thus far as developed indicates that the States lately in revolt are still States of this Union, and entitled to all the privileges of States in the Union; if you will be true and faithful to your high mission and to the principles which you have foreshadowed, there are—and it may as well be known now as hereafter—two million faithful men in the States which have never been in revolt that will hold up your hands, although they did not support you for the present high office which you hold; while you shall be faithful to the Constitution of your country they will be your friends, and when the battle comes, it matters not how fiercely it may rage, they will welcome the contest and welcome the conflict.
Sir, it becomes not us of the small minority to champion the cause of the President. We do not presume to do so now. But he who has studied the political parties of this country, and gained his lessons from the past, well knows that Andrew Johnson, President of the United States, is not going to be put down in his efforts to support and sustain the constitutional rights of the people, if Andrew Johnson chooses not to be put down.
Perhaps I have said enough upon this subject. I could not say less in view of the fact that almost every day something is said in this Chamber or elsewhere expressing apprehensions of the return of the Democratic party to power; and this, too, though we have long heard from the same source that the Democratic party was dead. If indeed it was dead, well might it be said—
“Had it but lived, though reft of power,
A watchman on the lonely tower,
Its mighty voice had shook the landmarks
When fraud or danger were at hand.”
But, Mr. President, for the reason I have already stated, I shall detain the Senate no longer. I shall, at an early day, take occasion to consider the questions involved in the problem of “reconstruction” as it is called, a term that I [Sen. Saulsbury] do not use.
Mr. COWAN. Mr. President I am not disposed to allow the speech of the honorable Senator from Massachusetts [Mr. SUMNER] to go to the country without a very brief reply. If that speech be true, and if it be a correct picture of the South, then God help us; then this Republic, this Union is at an end; then the great war which we waged for the Union was a folly; then all the blood and treasure which we have expended in that war in order to restore ourselves to companionship with the people of the South have been equally follies. But, Mr. President, is it true? Or is not this a series of ex parte statements made up by anonymous letter-writers, people who are down there more than likely stealing cotton, people who are down there in the enjoyment of place and power, people who are interested that the disturbed condition of things which exists there now shall always continue because they make profit of it? Is there any man who has had any experience in the trial of causes, any man who knows anything about the nature of evidence, who does not know that the honorable Senator could have sent his emissaries into any one country in the lately rebellious States and gathered up from the expressions of knaves and fools and discontented, single-idea people, far more than he has given us in this speech? [snip]
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What, then, are we to do? … Everybody admits that the negro ought to have his natural rights secured to him. I believe all the moderate, conservative men of this Chamber are fully agreed that every man should have his natural rights secured—the right to life, liberty, and the pursuit of happiness; the protection of property, limbs, and reputation; that he should have the right to sue and be sued, and to testify in courts of justice. The negro has not hitherto been allowed in the southern States to testify in courts of Justice, and why? Because he was a slave, and if I had been a citizen of the southern States when slavery prevailed there, I would have resisted to testify in courts. A witness like a voter ought to be a free man; he should not belong to another man. What chance would a litigant have against the master of slaves if the slaves could testify? It seems to me that the slave ought not to testify for the same reason that the wife ought not to testify either for or against the husband. Would you ask a negro to testify against his master, to go back to that master and be subjected to his will because of his testimony? Would you allow him to testify for the master as against a party on the other side? Certainly not. But now this state of things has passed away. Now the people of the southern States themselves, so far as I understand them, are in favor of opening the courts to all these classes of people. And, sir, they must open them for their own security. I am willing to leave that to themselves; their own interest will compel them to allow all people to testify unless they are excluded by those disabilities that have heretofore excluded witnesses from testifying. [snip]
Mr. President, let us look at this testimony. The honorable Senator, as I said before, reads from anonymous letter-writers, from cotton agents, and people of that kind. Now, it does so happen that we have some testimony upon this subject; we have the testimony of the President of the United States, not a summer soldier or sunshine patriot—
Mr. SUMNER. I have not read anonymous letters.
Mr. COWAN. They are anonymous so far as we are concerned; and I commend the Senator’s prudence in keeping the names of their writers from the public, because I have no doubt that if their names were known they would not be considered of much importance. I very much doubt whether there is a single man among them who has ever wielded anything more than a pen during this rebellion. But I say that we have the testimony of men of unexceptionable veracity; we have the testimony of the President of the United States, who was a Union man, and who was in favor of the Union at a time and in a place where there was some merit it it. I do not suppose there was any great merit in being a Union man in Massachusetts. I suspect a man would have been very likely to get a lamp-post if he had been anything else there; but the President of the United States was a Union man in the very thick and storm of the battle. He was driven from his home; he was waylaid hither in order to attend to his official duties in this body. He has stood by the Constitution, by the Union, all the way through, steadily and firmly, and as a compliment to him the great party to which I belong, and to which he did not belong, and never pretended to belong, conferred upon him office which, in the providence of God, has made him President of the United States.
Now, sir, you are told here that this man in his official communication to the Senate of the United States whitewashes the condition of things down below. Yes, sir, “whitewash” is the word. The honorable Senator says that he will not accept the definition of “whitewash” given by the Senator from Connecticut or the Senator from Wisconsin, but he has not told us what he means by the word “whitewash.” It is not necessary that he should say what he means by that word. Everybody understands it. I suppose even his colored friends, in whom he takes so much interest, would know what the meaning of the word “whitewash” was [Laughter.] He says that this man, who stood firm when everybody else faltered, this man who stood almost alone in the midst of an enraged population, and in the very storm and
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strife of the worst civil war perhaps the world has ever seen, comes here to “whitewash.” What does he mean except that the President of the United States in an official communication to this body comes here to lie; that is the plain English of it; comes here either to suppress the truth or to suggest a falsehood.
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What does the President say? I will read what he says as a sufficient answer to what all these people down South report of the state of affairs there, and I do not find it necessary to deny thousands of instances of exceedingly heretical talk may have taken place there, and of treasonable talk if you please; and I have no doubt that in a state of things unparalleled in the history of the world heretofore wrongs and outrages innumerable happens there; but that is not the question. The question is, what is the condition of the mass of the people in the South, what is their disposition and tendency, not to love the North, not to love the honorable Senator from Massachusetts—because I very much fear that that will not be brought about soon unless there is a change in the temper of both parties—not to have hearts overflowing with love and gratitude to those who they think persecute and hunt them in their submission, who kick and strike at them after they are down, after they have cried “enough”—but the question is, what is their disposition to obey the laws? What do we care about their hearts or their dispositions if they are obedient to the laws, and submit to the laws? Now they have submitted to laws which impose the heaviest penalty, for if they are traitors the law imposes the penalty of death and confiscation of estates by means of fine. I will read what the President says now of the condition of that people from the information he has received:
“In that portion of the Union lately in rebellion the aspect of affairs is more promising than in view of all the circumstances could well have been expected.”
I think there is no candid man who will not indorse that sentiment.
“The people throughout the entire South evince a laudable desire to renew their allegiance to the Government, and to repair the devastations of war by a prompt and cheerful return to peaceful pursuits.”
Why should they not? To suppose anything else is to suppose that they are demented, that they have no kind of common sense left, that four years of the most terrible war and the most terrible punishments ever inflicted upon a people have been without their lessons. It cannot be, Mr. President; it is not in the nature of things that it should be.
“An abiding faith”—on the part of this man who suffered from these people, who suffered from this war and the doctrine of secession and the attempt to break the Union—he says:
“An abiding faith is entertained that their actions will conform to their professions, and that in acknowledging the supremacy of the Constitution and the laws of the United States, their loyalty will be unreservedly given to the Government, whose leniency they cannot fail to appreciate, and whose fostering care will soon restore them to a condition of prosperity.”
And here, Mr. President, allow me to ask when in the history of this world or of the human family has it happened that severity, cruelty, persecution, refusal to recognize common rights, has reconciled a people and pacified a distracted country; and when has it happened that clemency, leniency, as the President expresses it, has failed to produce beneficial results? It is not necessary to go very far back for instances to show this. Look at the treatment of England toward Ireland. What has been the result there of her holding that people in a species of vassalage? A Fenian insurrection upon her hands now after hundreds of years of attempt to dominate over that people. Look at Poland; look everywhere. And if it be necessary to see what clemency, what leniency and justice and trust and confidence can do to restore a people once in revolution, take the conduct of Hoche in La Vendee. There by the genius of one man, high enough to be above vulgar passion, statesman enough to look to the future, La Vendee as restored to France, and is there now part and parcel of it, with every recollection of the revolution effaced.
“Says the President,
“It is true that in some of the States the demoralizing effects of war are to be seen in occasional disorders”—
These effects are to be seen in the North as well as in the South—
“but these are local in character, not frequent in occurrence and are rapidly disappearing as the authority of civil law is extended and sustained. Perplexing questions were naturally to be expected from the great and sudden change in the relations between the two races; but systems are gradually developing themselves under which the freedman will receive the protection to which he is justly entitled, and by means of his labor make himself a useful and independent member of the community in which he has his home. From all the information in my possession, and from that which I have recently derived from the most reliable authority, I am induced to cherish the belief that sectional animosity is surely and rapidly merging itself into a spirit of nationality, and that representation, connected with a properly adjusted system of taxation, will result in a harmonious restoration of the relations of the States to the national Union.”
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There is a little more testimony yet, Mr. President; and it is worthwhile to consider, while we are here to take counsel and to know what we ought to do in the extraordinary situation in which we find ourselves, from whom will we take that counsel. Are we to take it from men, the purpose of whose whole life seems to be to wage war upon these people and their institutions? Shall we take it from men whom they hate personally and by name, and to whom it is almost impossible to suppose they ever will be reconciled, or, in the nature of things, can be reconciled? Or are we to take it from the men who have not made this a personal war; who have treated it as a national war, and who, in their conduct of it, have won the applause of both sections? The President says that part of his information has been received from General Grant. Who is General Grant? Who is to be put in the scale with that scarred soldier, and whose testimony is to weigh down his? Is he “whitewashing” here too? Has he forgotten the position he occupies before the American people? With the highest military character of any man to-day upon the earth, has he condescended to come here to deceive the Senate of his country, and to lie about the condition of affairs in the South, which he has recently visited? Let us hear what he says, and listen with patient reverence to the utterance of a man of sense, a patriot, and a prudent man, who desires not to embroil, not to embitter, not to widen the gap that already exists between two people who ought to be fraternally united, but a man who desires to heal and to pacify; a man imbued with the spirit of Hoche when he went to La Vendee, and where he succeeded when others had failed. What does he say? It is not the tone or manner of the letter-writer, but it is in the manner of a man and a soldier.
“I am satisfied”—says he; and when he is satisfied who dares say he is not satisfied upon the score of honesty and good intent toward this Republic?—
“I am satisfied that the mass of thinking men in the South accept the present situation of affairs in good faith.”
That is what General Grant says. Is that “whitewashing?”
“The questions which have heretofore divided the sentiments of the people of the two sections—slavery and State rights, or the right of a State to secede from the Union—they regard as having been settled forever by the highest tribunal, arms, that man can resort to.”
It is now said that they do not think so; that they are only pretending, and have a covert purpose of doing something hereafter about this thing, nobody can tell exactly what. Perhaps we will be told they will not abide the result:
“I was pleased to learn from the leading men whom I met, that they not only accepted the decision arrived at as final, but they now, when the smoke of battle has cleared away and times has been given for reflection, this decision has been a fortunate one for the whole country, they receiving like benefits from it with those who opposed them in the field and in council.”
Why, Mr. President, the common sense of that last utterance is worth more as testimony than that of a thousand scribblers who merely look at detached points of this great field. They have resolved to accept the decisions as final; and, what we ought all to be glad to know, they have found that it is for their benefit. They have found, too, after the smoke has cleared away, that they are really in a better condition than they were before, that they have been relieved from the incubus which has oppressed them for so long a time, and they are ready now to take their places in the Union, and alongside of the northern States who have made liberty their great principle rather than slavery. Why should they not? If any man can give a reason why they should desire to keep up this strife longer, with their devastated fields, with their treasuries empty, with their society disorganized, I should like to hear it.
I therefore hope, Mr. President, that we may meet them in a different spirit; that we may show to them that we made this war, not to make them eternal enemies of ours, not humiliate them, but to rescue them; that we made this war to go and get them out of the clutches of the bad men who had misled them into the gloomy realm of secession and disunion; and that we intend, after the great military victory which we have achieved, to achieve another by magnanimity and clemency in our conduct toward them; that we will win them back to be as they were before, our friends and our brothers, of the same race and of the same lineage. I hope too that this angry, irritating, and exciting mode of treating this subject, which is calculated to make us anything else than friends, will be discarded hereafter, and that we shall cooly and calmly and in the spirit of the nation, (because that is the spirit of the nation,) examine this question and do with it that which will be calculated to restore the old harmony and peace and the old Union again.
The PRESIDENT pro tempore. Is the Senate ready for the question on the motion to refer this bill to the Committee on the Judiciary? [snip]
The PRESIDENT pro tempore. The motion now made is to adjourn.
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IN SENATE
December 21, 1865
PROTECTION OF FREEDMEN
Mr. STEWART. I move to take up Senate bill No. 9, on which I desire to make a few remarks.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 9) to maintain the freedom of the inhabitants in the States declared in insurrection and rebellion by the proclamation of the President of the 1st of July, 1862, the question pending being on Mr. COWAN’S motion to refer the bill to the Committee on the Judiciary. [snip]
Mr. STEWART. Mr. President, sentiments having been announced on the motion to refer this bill which I cannot indorse, I am compelled by a sense of duty to make a few observations. I ask the indulgence of the Senate in digressing from the real question at issue for the purpose of entering my protest against the attack made by the honorable Senator from Massachusetts [Mr. SUMNER] upon the message of the President and the report of the Lieutenant General, and to condemn the kind of testimony used in support of that attack. But before I enter into a discussion of this evidence, I desire to make a few remarks upon the great questions which have become involved in this debate. Sir, if the Senator from Massachusetts is right, and the evidence adduced by him establishes that the great mass of the people of the South are capable of the atrocities imputed to them by the anonymous witnesses paraded before this Senate, then a union of these States is impossible, then hundreds of thousands of the bravest and best of our land have fallen to no purpose, then every house from the Gulf to the lakes is draped in mourning without an object, then three thousand millions of indebtedness hangs like a pall upon the pride and prosperity of the people only to admonish us that the war was wicked, useless, and cruel. But we are told that although we cannot have union, although we cannot extend the blessings of the Constitution to seven millions of our fellow-citizens who reside in the late rebel States, yet we have conquest and territorial dominion which we should perpetuate regardless of ourselves and our posterity. Senators complaining of the growing power of the Executive, and at the same time seek through him to govern near half the territory of the United States by the military, which all must see will make it the overshadowing power in the land.
Mr. President, have conquest and dominion been the mottoes under which millions of the loyal men of the United States have rallied round the flag of their country? On the contrary, have not union, freedom, and equality before the law been the words of inspiration to the soldier, who poured out his blood as water, and to the nation, which expended its treasure as dross? Now that these sacrifices have been made and the victory won, are we not bound by every obligation which reference for the dead, regard for the living, and fear of God can inspire, to preserve, not destroy, the Constitution of the United States? Thus far there are two plans presented to the country for the reorganization of the South. The one which finds favor in Congress—if we were to judge of the sentiment of that body from those who talk most—is to govern eleven States as conquered provinces by an exercise of power unwarranted by the Constitution, which must inevitably derange, if not destroy, that charter of our liberties. This plan trusts all to force, nothing to conciliation; all to revenge, nothing to charity. It treats with equal contempt the good opinion or hatred of seven millions of American citizens. It disregards the example of Ireland, where the oppression of Great Britain has produced millions of enemies, breathing vengeance from every part of the civilized world, before whom crowned heads now tremble. The vast armies which devour the substance of Europe and oppress and burden the downtrodden masses with ruinous taxation to hold subjugated provinces subservient to despotic will, have no warning for the advocates of this scheme. But what is the evidence used to induce the Senate to believe that the exercise of this despotic power is necessary? In judging of testimony upon ordinary subjects we take into consideration not only the facts stated, but the character and standing of the witness, his means of information, and alas, but not least his appearance upon the stand.
In this great cause the Senate properly called upon the chief Executive of the nation for information. Was he a witness whose character and standing before the country would entitle his testimony to consideration? Let the voice of a great people who have indorsed his patriotism and his administration answer. Were his means of information such as to entitle him to speak advisedly upon this subject? Let the machinery of Government, that collects facts from every department, civil and military, upon the table of Executive, answer. Was not his appearance before the public in communicating this testimony to the Senate and the country such as to remove all grounds of suspicion? Let the exalted tone, bold and fearless statement, pure and patriotic spirit of both his messages be his best vindication. In the first he says:
“I found the States suffering from the effects of a civil war. Resistance to the General Government appeared to have exhausted itself. The United States had recovered possession of their forts and arsenals; and their armies were in the occupation of every State which had attempted to secede. Whether the territory within the limits of those States should be held as conquered territory, under military authority, emanating from the President as the head of the Army, was the first question that presented itself for decision.
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“Now, military governments, established for an indefinite period, would have offered no security for the early suppression of discontent; would have divided the people into the vanquishers and the vanquished; and would have envenomed hatred rather than have restored affection. Once established, no precise limit to their continuance was conceivable. They would have occasioned an incalculable and exhausting expense. Peaceful emigration to and from that portion of the country is one of the best means that can be thought of for the restoration of harmony; for what emigrant from abroad, what industrious citizen at home, would place himself willingly under military rule? The chief persons who would have followed in the train of the Army would have been dependents on the General Government, or men who expected profit from the miseries of their erring fellow-citizens. The powers of patronage and rule which would have been exercised, under the President, over a vast and populous and naturally wealthy region, are greater than, unless under extreme necessity, I should be willing to intrust to any one man; they are such as, for myself, I could never, unless on occasions of great emergency, consent to exercise. The willful use of such powers, if continued through a period of years, would have endangered the purity of the general administration and the liberties of the States which remained loyal.”
How plainly he here states the dangers of the plans proposed by those who would reduce the South to conquered provinces, and hold them under military rule, subjugated and degraded Territories, denied all the rights and privileges of the Constitution and the Union. How modestly and patriotically he declines to assume such enormous responsibilities. Does not the passage just read place him before the world a disinterested and competent witness upon these great questions?
He continues:
“Besides, the policy of military rule over a conquered territory would have implied that the States whose inhabitants may have taken part in the rebellion had, by the act of those inhabitants, ceased to exist. But the true theory is, that all pretended acts of secession were, from the beginning, null and void. The States cannot commit treason, nor screen the individual citizens who may have committed treason, any more than they can make valid treaties or engage in lawful commerce with any foreign Power. The States attempting to secede placed themselves in a condition where their vitality was impaired, but not extinguished; their functions suspended, but not destroyed.
“But if any State neglects or refuses to perform its offices there is the more need that the General Government should maintain all its authority, and as soon as practicable resume the exercise of all its functions. On this principle I have acted, and have gradually and quietly, and by almost imperceptible steps, sought to restore the rightful energy of the General Government and of the States. To that end, provisional governors have been appointed for the States, conventions called, Governors elected, Legislatures as-
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sembled, and Senators and Representatives chosen to the Congress of the United States. At the same time the courts of the United States, as far as could be done, have been reopened, so that the laws of the United States may be enforced through their agency. The blockade has been removed, and the custom-houses reestablished in ports of entry, to that the revenue of the United States may be collected. The Post Office Department renews its ceaseless activity, and the General Government is thereby enabled to communicate promptly with its officers and agents. The courts bring security to persons and property; the opening of the ports invites the restoration of industry and commerce; the post office renews the facilities of social intercourse and of business. And is it not happy for us all, that the restoration of each one of these functions of the General Government brings with it a blessing to the States over which they extended? Is it not a sure promise of harmony and renewed attachment to the Union that, after all that has happened, the return of the General Government is known only as a beneficence?”
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There again he maintains a perfect consistency with the theory of this war, that it was prosecuted for the preservation of the Union, not for its destruction, or the annihilation of its component parts. But he frankly admits the difficulties which all have felt and which all still feel. He says:
“I know very well that this policy is attended with some risk; that for its success it requires at least the acquiescence of the States which it concerns; that it implies an invitation to those States, by renewing their allegiance to the United States, to resume their functions as States of the Union. But it is a risk that must be taken; in the choice of difficulties, it is the smallest risk; and to diminish and, if possible, to remove all danger, I have felt it incumbent on me to assert one other power of the General Government—the power of pardon. As no State can throw a defense over the crime of treason, the power of pardon is exclusively vested in the executive government of the United States. In exercising that power, I have taken every precaution to connect it with the clearest recognition of the binding force of the laws of the United States, and an unqualified acknowledgment of the great social change of condition in regard to slavery which has grown out of the war.”
Upon the subject of the amendment of the Constitution abolishing slavery, the President uses the following language:
“The next step which I have taken to restore the constitutional relations of the States has been an invitation to them to participate in the high office of amending the Constitution. Every patriot must wish for a general amnesty at the earliest epoch consistent with the public safety. For this great end there is need of a concurrence of all opinions, and the spirit of mutual conciliation. All parties in the late terrible conflict must work together in harmony. It is not too much to ask, in the name of the whole people, that, on the one side, the plan of restoration shall proceed in conformity with a willingness to cast the disorders of the past into oblivion; and that, on the other, the evidence of sincerity in the future maintenance of the Union shall be put beyond and doubt by the ratification of the proposed amendment to the Constitution, which provides for the abolition of slavery forever within the limits of our country. So long as the adoption of this amendment is delayed, so long will doubt and jealousy and uncertainty prevail. This is the measure which will efface the sad memory of the past; this is the measure which will most certainly call population and capital and security to those parts of the Union that need them most. Indeed, it is not too much to ask of the States which are now resuming their places in the family of the Union to give this pledge of perpetual loyalty and peace. Until it is done, the past, however much we may desire it, will not be forgotten. The adoption of the amendment reunites us beyond all power of disruption It heals the would that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support.
“The amendment to the Constitution being adopted, it would remain for the States, whose powers have been so long in abeyance, to resume their places in the two branches of the national Legislature, and thereby complete the work of restoration. Here it is for you, fellow-citizens of the Senate, and for you, fellow-citizens of the House of Representatives, to judge, each of you for yourselves, of the elections, returns, and qualifications of your own members.”
This amendment of the Secretary of State, as provided by law, has proclaimed to the world is now a part of the Constitution, and that, too, by the concurrence of several of the lately rebellious States, eight of those States being required to constitute the requisite majority. By this proclamation the honorable Secretary, whose age, learning, and eminent public services command respect both at home and abroad, has unmistakably pronounced his solemn opinion that North and South Carolina, Georgia, Alabama, Louisiana, Arkansas, Tennessee, and Virginia are States in the Union. But suppose he is wrong, and they are not States in the Union, no one doubts the power of Congress to make them such by recognizing them as States; and in either event we have this constitutional amendment the supreme law of the land. By it four million slaves are set free, and slavery forever made impossible within the limits of the United States. But what makes this constitutional amendment a practical, living thing, is the power given to Congress to enforce it by appropriate legislation. It is to be hoped the exercise of this power will be rendered unnecessary by the conduct of the States concerned. [snip]
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Gentlemen say they wish security for the future. What security can we have that they will obey the laws more than the assurance of the chief Executive and the Lieutenant General that order and civil authority are being rapidly restored? What stronger proof can we have of their repudiation of secession than the fat that their Senators and Representatives are now knocking for admission into the Halls of Congress? What stronger guarantee of the effectual abolition of slavery and the restoration to civil rights of the freedmen can be given than the pledge recorded in the supreme law of the land proclaiming their liberty, and authorizing Congress to provide for its maintenance? For, whatever course may be pursued, it must for years be the effective power of Congress, cooperating with the Executive, that will protect the freedmen from oppression; and while Congress retains this power no necessity exists for treating the late rebel States as conquered provinces. But it may be, and from the extraordinary course of this debate it would seem, that something more is contemplated than the restoration of the Union, the punishment of treason, the abolition of slavery, and the protection of the freedmen. If this were all, it could be accomplished during the present session of Congress by a cordial cooperation of the various departments of Government. I for one am content with this. I am anxious at once to secure the benefits of our glorious victory. I am anxious to restore the Union and the Constitution, and to repudiate slavery and secession. These are greater reforms than any other age has produced; this is more progress than has been achieved since the formation of the Government. I am anxious to secure this before we attempt more
But another step is proposed, an advanced position is assumed before those already taken are secured, and that is a proposition for universal suffrage without regard to color to be enforced by the central Government without regard to law. Whether this be a white man’s Government or not is not the real question before the country; but the true question is, shall the General Government interfere with the right of suffrage in the States? When this is attempted we are not only met by the prejudices, whether just or unjust, of a large majority of the white inhabitants of the United States, but by the conscientious opinions of the Chief Executive of the nation, sustained by many of the wisest and best statesmen and jurists of the country, that the Constitution has place the question of suffrage exclusively within the State jurisdiction. I do not propose to argue at length either the prejudices of the former or the constitutional objections of the latter. But we must remember that prejudice is often more powerful than reason, and that it often happens that prejudice itself is founded in reason. If this is not a white man’s Government, one thing is certain, that neither the black manor the red man has ever reared such a Government. It must also be remembered that this Government is still regarded by other nations as an experiment, and its failure is confidently predicted for the reason that history furnishes no adequate proof of the capacity of man for self-government. They are not so much mistaken in their general reading as in the facts which lie at the foundation of our institutions. They forget that we are a race descended from the original Anglo-Saxon stock, and that our ancestors learned the lessons of liberty through generations of martyrdom, and have practiced those lessons for three hundred years in this distant land comparatively free from the degrading influences of arbitrary power; that superior natural endowments, universal education, and a vast and productive country have enabled us, alone, among all the nations of the earth, to sustain free government.
It may not be unjust for a people whose liberties can only be sustained by intelligence and virtue, to pause and hesitate before they intrust those liberties in the hands of four millions of unfortunate persons just emerged from the most degrading slavery before they shall have had an opportunity to learn the principles of that Government whose functions they are called upon to administer.
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This prejudice is not necessarily selfish or cruel, but it may arise from an honest desire for the preservation of our own liberties and the liberties of the race which the war has made free. However this may be, the fact still exists, that few States in the North have yet granted the right of suffrage in any form to the colored men within their borders, although those colored men are often educated, frequently more enlightened than some white men among whom they reside. And while the States we represent deem it inexpedient to confer the right of suffrage upon the colored men within their borders, are we justified as their representatives in compelling the late rebellious States to confer that right upon the mass of unfortunate blacks who have yet to learn the first principles of their duties and responsibilities as citizens? But this is not all. If we are disposed to disregard the sentiments of our constituents and the action of our State governments, shall we trample upon the constitutional right of the States to regulate the question of suffrage, without first amending the Constitution as provided in that instrument? This is dangerous ground and a fearful responsibility. There is no question of necessity to justify it. The Union can be restored without it. The freedmen can be protected without it. The honor of the nation can be vindicated without it. But in attempting it, all may be lost, and we may have despotism and anarchy, or rather anarchy and then despotism, in the place of our once glorious and prosperous Union. But before I conclude, let me once again refer to the testimony of the President and the Lieutenant General to the bright prospect that is before us. The former says:
“From all the information in my possession, and from that which I have recently derived from the most reliable authority, I am induced to cherish the belief that sectional animosity is surely and rapidly merging itself into a spirit of nationality, and that repre-
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sentation, connected with a properly adjusted system of taxation, will result in a harmonious restoration of the relations of the States to the national Union.”
General Grant, whose means of information are second to none, except perhaps the President, being in immediate communication with the military authorities throughout the South, says:
“My observations lead me to the conclusion that the citizens of the southern States are anxious to return to self-government within the Union as soon as possible; that while reconstructing, they want and require protection from the Government; that they are in earnest in wishing to do what they think is required by the Government—not humiliating to them as citizens—and that if such a course was pointed out, they would pursue it in good faith. It is to be regretted that there cannot be a greater commingling at this time between the citizens of the two sections, and particularly of those intrusted with the law-making power.”
Against this we have statements, extracted from letters written by persons unknown to the country or to the Senate. We have no means of judging of their character for truth and veracity, or what information they really possess, and above all of what motives induced them to write.
We are not surprised at these stories, whether true or false. We expected, in the present disorganized condition of society, that crimes would be committed in the South. We know that crimes are committed, and men talk nonsense and folly in all Countries. Even in the great Commonwealth of Massachusetts, with all her public virtues—and they are many—there are records of crime and misery. And it would have been strange if in the South, with all the mad passions of the people excited by this terrible civil war, no scenes of horror should have been witnessed since the fall of the rebellion. But it is said in some of the letter extracts read to the Senate that men in the South threaten to fight us through the ballot-box. Do we object to that? Are we not willing to submit all questions to the voice of the people? Are we not willing to be governed by the majority? Did we not fight them with the sword because they repudiated the decision of a constitutional majority? Are we willing to prolong the restoration of the Union and risk the experiment of taxation without representation [*] for fear that the application of the rule, that the voice of the majority is law, shall drive us from power? Shall we not rather seek the perpetuation of the Union partly by the accomplishment of the objects for which it was organized? Nothing but our own folly can deprive us of the rewards due to the services which that organization has rendered to the country and to the cause of liberty and humanity. The preservation of the Union, the repudiation of secession, and the abolition of slavery, the parent of secession, are great deeds; and the party that has achieved them so long as it adheres to the principles it has vindicated, will be remembered and sustained by a generous and patriotic people.
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Mr. WILSON. Mr. President, I introduced the bill now under consideration to meet a pressing need. It was introduced in the interest of humanity and justice. I have examined many and many pages of official records, records connected with the Freedman’s Bureau, records of military officers, and letters written by some of he foremost officers of our armies, men who have made their names immortal in the history of the country. The evidence conclusively shows that great atrocities and cruelties are perpetrated upon the freedmen in various sections of the country; that the poor, dumb, toiling millions who look to us for protection are inhumanly outraged. … No one questions the intelligence and judgment of General Grant—he is in communication with the officers of his Army; but I say here, and say what I know, when I declare that nearly every general commanding in the rebel States has written the strongest letters in regard to the tone, temper, and disposition of the people and the condition of that country. Some of them go further than my colleague went yesterday. There are letters in the Senate Chamber to-day, written by commanders in States and in whole sections of country—men whose name and fame are world-wide—which, if read by the Senator, would more than convince him of the truth of the testimony adduced. It makes the heart sick to dwell on such records of crime and wanton brutality.
Mr. STEWARD. Will the Senator allow me a word?
Mr. WILSON. Certainly.
Mr. STEWART. I wish to be distinctly understood as not opposing the passage of the bill. I am in favor of legislation on this subject, and such legislation as shall secure the freedom of those who were formerly slaves, and their equality before the law; and I maintain that it can be fully secured without holding the southern States in territorial subjugation. Whether or not instances of individual cruelty exist is quite immaterial to the point, for I believe they can be remedied quite as well if we regard those States as States in the Union as if we regard them as Territories. All that is necessary is for us to exercise the power we have under the Constitution.
Mr. WILSON. I think the moments consumed in the dispute whether those States are in the Union or out of the Union is lost time. I do not choose to discuss that question, or to raise it; I believe our powers are full, ample, complete, to bring back those States, and restore them, and preserve, also, the rights and the liberties there of all that breathe God’s air. I do not want to degrade a single man in the rebel States. I do not want them to degrade others, and I do not mean that they shall do it. I do not believe the Senator is opposed to this bill; I do not think he can oppose it. I do not believe the Senator is in favor of that kind of freedom that turns the emancipated workingman out into the highway, then takes him up as a vagrant and makes a slave of him because he cannot get a home when they do not allow him to lease land or buy a humble home. They have enacted a law in the State of Mississippi that will not allow the black man to lease lands or to buy lands outside of the cities. Where in God’s name is he to go? Into the public highway? Then he is a vagrant; then he is taken up under the vagrant laws and sold into bondage. They have enacted a law in the State of Louisiana that he must get a home in twenty days, and they will not sell him land or allow him to lease land.
We must annul this; we must see to it that the man made free by the Constitution of the United States, sanctioned by the voice of the American people, is a free man indeed; that he can go where he pleases, work when and for whom he pleases; that he can sue and be sued; that he can lease and buy and sell and own property, real and personal; that he can go into the schools and educate himself and his children; that the rights and guarantees of the good old common law are his, and that he walks the earth, proud and erect in the conscious dignity of a free man, who knows that his cabin, however humble, is protected by the just and equal laws of his country. I am sure the Senator from Nevada is in favor of that policy of emancipation that carries with it equality of civil rights and immunities, rather than that other policy that makes the enfranchised bondman a serf or peon, the slave of society, its soulless law and customs.
Having read hundreds of pages of records and of testimony, enough to make the heart and the soul sick, I proposed this bill as a measure of humanity. I desired, before we entered on the great questions of public policy, that we should pass a simple bill annulling these cruel laws; that we should do it clearly, and then proceed calmly with our legislation. That was my motive for bringing this bill into the Senate so early in the session. Many of the difficulties occurring in the rebel States between white men and black men, between the old masters and the freedmen, grow out of these laws. They are executed in various parts of the States; the military arrest their execution frequently, and the agents of the Freedmen’s Bureau set them aside; and this keeps up a continual conflict. [snip]
But, sir, it is apparent now that the bill is not to pass at present, that it must go over for the holidays at any rate. The constitutional amendment has been adopted, and I have introduced a bill this morning based upon that amendment, which has been referred to the committee of which the Senator from Illinois [Mr. TRUMBULL] is chairman. This bill will go over; possibly it will not be acted upon at all. We shall probably enter on the discussion of the broader question of annulling all the black laws in the country and putting these people under the protection of humane, equal, and just laws. [snip]
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Sir, this measure will not pass at present as I hoped it would; but the ideas embodied in this bill are to go upon the statute book of the nation; they are to be enforced—enforced by the President, enforced by the judiciary, enforced by the Army, and enforced by the voice of the regenerated nation. … These freedmen, ground and degraded by two centuries of slavery, will in all respects be free; they will go on with us and of us in the career of elevation and improvement; and we of the North and they of the South, of every race, will contribute to develop and elevate and make immortal our great Continental Republic.
Mr. SAULSBURY. Mr. President, the reference of the honorable Senator from Massachusetts to a remark which I made yesterday constitutes my apology for trespassing for a moment, and only for a moment, upon the attention of the Senate. [snip]
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I hold that when armed resistance to Federal authority ceased in the southern States, and the Federal authority was acknowledged, those States never having been out of the Union, but always in it, their ordinances of secession being absolute nullities, the people of those States had a right to assemble as citizens of the United States, elect their own State Legislatures, elect their own Governors, and put into operation the machinery of government, without the intervention of the President or Congress or anybody else. [snip]
But, sir, that mode of settlement was not adopted. The President of the United States acting, as I have said I have no doubt, patriotically, adopted his mode of restoration of the relations of those States to the Federal Government; and I am glad that he does not use the word “reconstruction.” The people of the southern States have themselves acquiesced in that mode of restoring their relations to the Federal Government. [snip]
One word more, sir; and it may as well be said now as at any other time. We are told by the honorable Senator from Massachusetts and others of like opinions with himself, that the second section of the amendment to the Constitution, as it is called, but which I call the unconstitutional pretended constitutional amendment to the Constitution of the United States, confers ample power upon the Congress of the United States not only to go into the southern States, but into any State of this Union, and to legislate in reference to the condition of what are termed the freedmen. I have never had but one opinion in reference to that amendment. I acknowledge that as a matter of fact slavery does not exist in this country. Other things have brought about the abolition of slavery. It has been abolished by the military power of the country. I think the honorable Senator and others are greatly at fault when they suppose that there is any great desire to restore slavery in this country. Still, sir, as I call it an unconstitutional pretended constitutional amendment, I will say that I do not believe the Congress of the United States had a right to pass it. Three fourths of the States have no right to say whether slavery shall exist in my State or not. It is a matter foreign to the objects of the Government when formed, a matter never intended by the parties to the compact, as there are a hundred other things which were never intended to be intrusted to the decision of three fourths of the States. It was no more intended by them that it was intended that three fourths of the States should decide whether there should be slavery in Massachusetts or not.
But, sir, what is the meaning of the phrase “appropriate legislation?” The honorable Senator from Illinois {Mr. TRUMBULL] the other day asked me what it did mean. Having had nothing to do with in it passage, I remarked that I did not know what it did mean; but I think I can judge of the meaning of language. The amendment itself was an amendment to abolish slavery. What is slavery? That is the subject-matter of the amendment. Slavery is a status, a condition; it is a state or situation where one man belongs to another and is subject to his absolute control. The slave can own no property of his own; he cannot work for himself, but he is subject to the command of his owner. Cannot that status or condition be abolished without attempting to confer on all former slaves all the civil or political rights that white people have? Certainly. Your “appropriate legislation” is confined to the subject-matter of your amendment, and extends to nothing else. “Congress shall have power by appropriate legislation to carry this amendment into effect.” What amendment? The amendment abolishing slavery, abolishing the status, the condition of slavery; but there is nothing in your amendment which gives Congress the power to enter my State and undertake to regulate the relations existing between classes and different conditions in life. When the passions of the maddened hour shall die away and reason shall resume its throne, and the clear-headed jurists of the land shall sit in judgment upon such a question as this, I have no doubt as to what the decision will be. [snip]
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Mr. President, slavery is abolished, and that I think ought to be sufficient for the lovers of freedom in this country, and especially for my friend from Massachusetts. I hope what I say will be taken in good part; but what does that honorable Senator know about the condition of the negro race? [snip]
Mr. WILSON. Mr. President, I think the men who landed at Plymouth rock and founded the first Christian and democratic commonwealth in America were radicals, not conservatives; that they ran away from conservatism and became radicals in America. The men who promulgated the Declaration of Independence were denounced in their day and generation as radicals, as nobodies; they made themselves somebodies, however, by being radicals. The men who made the Constitution were those same radicals who had carried us through the fire and blood of the Revolution and founded a nation. Those men were radical enough to provide that the men of other generations could amend the work of their hands; and we, like our radical fathers, accept the living truths of the present, and we incorporate into the fundamental law of the land what is necessary to make the country what its founders intended it should be—that is all. The Senator thinks there will be more Democrats here if we amend the Constitution, as the other House yesterday proposed to us to do, by providing that the debts incurred to destroy the country shall not be paid. I hardly think any Democrat will ever enter this Chamber upon that issue. But, sir, I shall detain the Senate no longer.
Mr. WADE. I move that the Senate do now adjourn.
Mr. TRUMBULL. We ought to have an executive session; there are executive papers on the table that ought to be referred.
Mr. WADE. I withdraw my motion.
EXECUTIVE SESSION
On the motion of Mr. TRUMBULL, the Senate proceeded to the consideration of executive business. After some time spent in executive session, the Senate adjourned. Under the resolution of the two Houses, the adjournment is until Friday the 5th of January, 1866.
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Mr. SPALDING moved a call of the House.
The motion was not agreed to.
The motion of Mr. BALDWIN was agreed to.
So the rules were suspended, and the House accordingly resolved itself into the Committee of the Whole on the state of the Union, (Mr. BOUTWELL in the chair,) and proceeded to the consideration of the President’s annual message, upon which Mr. FINCK was entitled to the floor.
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RECONSTRUCTION
Mr. FINCK. Mr. Chairman, when the Thirty-Eighth Congress adjourned, large armies were in the field resisting the authority and jurisdiction of the United States. We were then in the midst of the most terrible civil war that has ever afflicted any people. Sir, I congratulate you, and I congratulate the country, on the fact that this war has terminated successfully to the arms of the Federal Government, and that to-day there is not a single arm raised to resist the authority of the United States, within the limits of the Republic. Peace once more blesses the American people. But, sir, allow me to inquire why it is that the States which have not been represented here for the last four years, still continue unrepresented on this floor? Is it possible that, having failed successfully to resist the jurisdiction of the United States, and break up the Union, that they now stubbornly refuse to send representatives to the national Legislature, and to return to their duties and obligations to the Federal Government? No, sir; such is not the case. The people of these States, having failed in the mad schemes organized by their leaders, have wisely and really abandoned all further resistance, and have, with a unanimity and frankness worthy of the highest commendation, determined to yield a cheerful obedience to the Constitution and laws of the United States, and to discharge their duties and obligations as loyal citizens. Why, then, sir, are they not represented on this floor?
Sir, during the continuance of the late terrible struggle, I looked forward with the most hopeful expectations to the period when the war should cease by the complete vindication of the national authority, and all the States be represented once more in this Hall. We have, by the blessing of Heaven, lived to see the termination of the war, but we meet in a time of profound peace, and find that eleven of the States of this Union have no Representatives on this Floor. Sir, allow me again to inquire why this is so?
Mr. Chairman, it is because there exists within this Union a body of men who are today, as they have always been, opposed to the Union, unless they can mold and shape its policy to suit their peculiar views. Can it be possible, sir, that after a struggle of four years, after the sacrifice of half a million of brave and heroic men, and the expenditure of four thousand millions of treasure, after the war has been brought to successful termination, and the flag of the Union, and none other, floats from the capitol of every State, still nearly one third of the States are to be deprived of representation in the national councils?
Sir, I protest against this attempt to subvert the true principles of this Government, and thus seek to separate States from it which belong to it, and to preserve which, a four years’ war has been waged. What was the avowed and proclaimed object of the war? For what did our brave and gallant men fight and die? It was, sir, to preserve this glorious Union, to maintain and vindicate the jurisdiction of the United States. This was distinctly and plainly announced in the resolution passed, by almost entire unanimity at the extra session of Congress in 1861, in these patriotic words:
“That in this national emergency, Congress will forget all feelings of mere passion or resentment, and will recollect only its duty to the country; that the war is not waged on our part in any spirit of oppression, nor in any spirit of conquest or subjugation, nor for the purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and preserve the Union with all the dignity, equality, and rights of the several States unimpaired; and as soon as these objections are attained the war ought to cease.”
The great issue submitted to the settlement of the sword was that of the Union. The insurgents sought to break it up, and the United States sought to preserve and maintain it. Our arms triumphed, and our purpose was accomplished, namely, the preservation of the Union.
The States which passed ordinances of secession, and attempted to withdraw from the Union, have failed in their purposes. They have never been out of the Union, but have always continued to be, and are to-day, States within the Union.
This doctrine I understand the distinguished gentleman from Pennsylvania [Mr. STEVENS] controverts; and in his speech delivered on last Monday, takes the same ground which announced in his speech, delivered in this House two years ago, namely, that the insurgent States, by their acts of secession and organized rebellion, became a separate government; that they were outside of the Union; and their armies having been defeated and conquered, we now hold these States as conquered territories, and that this Government has the right, by the law of nations, to treat the people of these States as a subjugated people; and that before they can resume their former relations with the General Government, these States must be readmitted into the Union as new States.
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Sir, the distinguished gentleman by his argument has admitted that secession was an accomplished fact, and has added another example to the common saying, that extremes meet; for his views on this point coincide with those of the most rabid secessionists.
The gentleman has recognized by his argument, that most dangerous of the political heresies, the right of secession, which is at war with the safety and perpetuity of the union of these States. I deny, sir that these States, or either of them, were ever out of the Union. The Union has never been, and I most earnestly trust never will be dissolved. The ordinances of secession were invalid and unconstitutional, and no force which was brought by those in rebellion to sustain these acts could give them legality.
The gentleman has quoted from writers on the law of nations, to show that a war between two nations annuls and abrogates the treaties which had existed between the belligerents. Sir, these States were not held together by the force of treaties, but by a Constitution adopted, and assented to, by each of them, and by their people through their conventions.
It is however true, that when a civil war breaks out between different members of the same Government, the contending parties are each entitled while the war continues to the rights and usages of war, as against each other. This, sir, is a rule of necessity, and is dictated by the soundest principles of humanity and Christian civilization. The doctrine is thus laid down by Mr. Wheaton in his learned work on International Law, page 520:
“A civil war between different members of the same society, is what Grotius calls a mixed war; it is according to him public on the side of the established Government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations.”
But I deny that there is anything in this sound and necessary principle of public law which implies in a case like ours, that the late insurgent States were outside of the Union, or constituted a distinct or foreign nation. In all our cartels for the exchange of prisoners, we were governed by the principles laid down in Wheaton.
But the gentleman would have us to believe that it was just as absurd to say that the States could not go out of the Union, because the Constitution forbids it, as it would be to say, in a case of deliberate murder, that no murder was committed, because the law forbids that crime.
Sir, I most respectfully submit that the cases are not at all similar; and the illustration does not in the least aid the gentleman’s argument. In the case of murder which he puts, the crime was actually committed, and the murder had taken place. If it had been a mere assault with intent to commit murder, and the person assaulted was not killed, it would not have constituted the crime of murder. So in relation to these States. It was on their part an attempt to withdraw from the Union, which was resisted and prevented; and the act of secession was not, and could not, be consummated, except by the success of the rebellion, but that having been defeated, the secession of these States was thus prevented from becoming a consummated act.
But when the gentleman further argues that we have conquered the people of the late insurgent States, and have the right by the law of nations to impose upon them such conditions as may be imposed by the conqueror on a subjugated people, he forgets the real character of the late struggle. It was not a war with a foreign nation. It was a struggle to preserve the just power and jurisdiction of the United States, and maintain the Union. Our jurisdiction had been ousted over a portion of the Republic by an armed and organized force; and we exerted force to remove this resistance, and the reassert our rightful jurisdiction, which had thus been invaded. We have successfully overcome that resistance, and can now enforce the laws of the United States in every portion of the Union. We have not by the war gained a particle more jurisdiction or power than we enjoyed and exercised before the war commenced. We have merely vindicated the right to exercise that jurisdiction and authority which we asserted before secession was attempted. It is not at all similar to a war with a foreign Power, in
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which we have conquered territory from the enemy. In such a case we would have obtained power and jurisdiction over a territory and its inhabitants, which we did not have at the commencement of the war; but in our late struggle we have acquired no new power or jurisdiction, but simply have regained firmly the power and jurisdiction of which the insurgents sought by the rebellion to deprive us.
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While the war lasted, it became necessary, in the true interests of humanity, that it should be conducted according to the rules of enlightened Christian nations; but now that the war has ended, and the people of these States have submitted to the rightful jurisdiction of the United States, and returned to their duty, the rules of war no longer are to be invoked; but we are to look to the more appropriate and peaceful remedies, for all that remains yet to be done, to the Constitution of the United States. Sir, we do not hold these States as conquered territories, because they have always been, and continue still to be, States within the Union.
While I must admire the boldness and consistency of the gentleman from Pennsylvania in adhering to his cherished doctrine, that these States were out of the Union, yet I would fail in my duty to myself and my constituents, if I did not denounce it, as most dangerous to the prosperity and harmony of this Union.
After the war commenced, and after the several States had passed their ordinances of secession, repeated acts of Congress were passed based on the principle that all the States were in the Union.
Allow me to refer to the act approved March 4, 1862, fixing the number of members for the House of Representatives from and after the 3d day of March, 1863:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the 3d day of March, 1863, the number of members of the House of Representatives of the Congress of the United States shall be two hundred and forty-one; and the eight additional members shall be assigned one each to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont, and Rhode Island.”
Let me inquire how this number of two hundred and forty-one is made up? We have not two hundred and forty-one members in this House. Sir, it was by allowing Virginia eight, Tennessee eight, Georgia seven, North Carolina seven, South Carolina four, Arkansas three, Louisiana five, Mississippi five, Alabama six, Florida one, and Texas four. This act was passed while the rebellion existed, and is the law of the land to-day. Was this law constitutional, and did these eleven States, on the 4th day of March, 1862, compose a part of the Union? Other States are to-day represented on this floor under the provisions of this act of the Thirty-Seventh Congress.
But again, section three, article four, of the Constitution of the United States, provides that—
“No new State, shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.”
Let me ask how, under this provision of the Constitution, the act admitting West Virginia was passed? If by the act of secession the State of Virginia ceased to be a State within the Union, how could the consent of the Legislature of that State be obtained for the creation of West Virginia? But we find by the act admitting West Virginia that it is recited in its preamble that—
“The Legislature of Virginia by an act passed on the 13th of May, 1862, did give its consent to the formation of a new State within the jurisdiction of said State of Virginia.”
There was, then, at that time, such a State as Virginia recognized, and if I am not mistaken the distinguished gentleman from Pennsylvania voted for the act admitting West Virginia. I do not say that Virginia did give her consent to the formation of a new State within her boundary. I only refer to these transactions of the past to show that these States, after the acts of secession were passed, and during the continuance of the war, were regarded as within the Union.
But it is unnecessary to cite further instances of legislation to prove the position of the honorable gentleman to be wholly untenable.
There is, however, one instance in our history plain to the American people, and recognized by the whole civilized world, which seems to me to settle the status of these States beyond controversy, and that is, sir, the fact that Andrew Johnson, a citizen of Tennessee, is the President of the United States, and is so recognized by every department of the State and Federal Governments, and by the nations of the world.
Sir, if the doctrine maintained and advocated by the distinguished gentleman from Pennsylvania be sound, then there is no such State as Tennessee within this Union, and Andrew Johnson is not constitutionally President of the United States. Are gentlemen on the other side willing to sanction doctrines which lead to this result? The Constitution provides, article two, section one that—
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“No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the United States.”
At the time of the election of Andrew Johnson as Vice President, he was a citizen of the State of Tennessee, but if the State of Tennessee was not a State within this Union, as the learned gentleman insists, then Andrew Johnson was not a citizen of the United States, and not eligible to the office which he holds.
But what follows if the doctrine contended for by the honorable gentleman is erroneous? Why, that the Union has never been dissolved; that the attempt to break it up has failed; that the sacrifices of our brave and heroic Army have preserved to us this glorious heritage of our fathers; that not a single star has been blotted out, and that the flag which floats over this Capitol of the people of all the States, with every star still blazoned on its ample folds, still continues to be the true emblem of the union all of the States.
Sir, more than this; if these States are in the Union, if they have never been out of it, as I contend, then, sir, they are in the Union as equal States, with all the rights and privileges which belong to States in this Union, and are entitled to be represented on this floor by the same authority as the States of Pennsylvania and Ohio. Sir, there was much in the able speech of the gentleman from Pennsylvania which seemed to me not equal to the dignity of the great question which he discussed. His allusion to “copperheads,” and the imputation of purposes of bad faith in regard to the public debt, could lend no weight to his argument, and were only calculated to arouse feelings of bitterness and recrimination, which are not calculated to aid in the elucidation of great constitutional questions, or to develop wise and healthy legislation. The allusion of the distinguished gentleman to the late Chief Justice, filled me with pain and surprise. No purer name or more upright and honest jurist adorns the long list of the great men of America, of whom we are so justly proud. With a character unsullied, and a conscientious devotion to duty, he discharged every trust with the strictest fidelity. His eminent learning and services will be remembered and cherished by the good and virtuous as long as our history and American jurisprudence shall be studied.
I am, sir, in favor of the admission of members from the States now unrepresented on this floor. The people of these States, it seems to me, have acquiesced with great unanimity and with sincerity in the condition of things which the war has brought upon them. They have abandoned slavery and surrendered it up as one of the things of the past, never, never again to be reestablished. They have abandoned the claim to any right, or pretense of any right of secession, and with entire unanimity acknowledged the supreme jurisdiction of the General Government in all matters which have been vested in it by the Constitution of the United States. They have resolved for the future to be true citizens of the Union. [snip]
Sir, slavery is out of the way; pray let us not quarrel about what policy the States may see fit to adopt in regard to the question of suffrage. I have never been the friend or advocate of slavery. I have always regarded it as an evil, but an evil which, in my opinion, the States alone could remove; but it has ceased to exist, and certainly no man who could in the least influence the public mind will be found wild enough to advocate its reestablishment. The discussion of the question of slavery which has for so many years disturbed the deliberations of the American Congress, and which has been the parent of so much excitement and sectional bitterness, should no longer disturb our deliberations.
Sir, no one will be more gratified than myself to witness an advancement in the conduct, intelligence, and virtue of the emancipated race, equal to the most sanguine anticipations of those who have so long demanded their freedom. Whether the colored race, by their industry, morality, and good conduct, shall show themselves worthy to be admitted to the exercise and enjoyment of more political privileges than they now enjoy, is a question which must be left to the exclusive judgment of the States in which they reside. For myself, as a Representative from the State of Ohio, I disclaim any right whatever to interfere in these questions in any of the States; and as a citizen of that State, I am free to say, while I have no ill feeling toward the negro, I shall ever oppose conferring upon him the right of suffrage in Ohio.
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But, sir, I repeat it, these are questions which must be left to the exclusive determination of the several States; and the attempt to deprive certain States from being represented on this floor because the negro is not allowed to vote within such States is a bold conspiracy to subvert one of the plainest rights which belong to the States. If you do not intend that these States shall be represented in this Congress, pray, sir, tell me in what Congress they are to be represented? What do you propose to do with them in the mean time? Are they to be held as Poland is held by Russia, as Hungary is held by Austria, or as Ireland is held by Great Britain? Are the principles of the old Constitution to be abandoned, and the whole character of our systems of government changed, in order that the white men of eleven States may be disfranchised, and the negro clothed with political rights? Is it possible, sir, that within the limits of our Republic white men will combine to degrade their own race and kindred in order to confer political power into the hands of black men?
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Sir, I deny the right of this Congress, or of the Federal Government, either directly or indirectly, to regulate the right of the elective franchise within the several States. No such power has been conferred upon it. We must, if we expect to continue our free system of Government, agree, like frank and candid men, that there is no difference in the rights of the several States of this Union; that each State is the equal of the other, and has the same rights and privileges; and if you can interfere by the General Government, to regulate the question of the elective franchise in North Carolina, you may by the same power regulate the same question in Massachusetts and Ohio.
The Federal Government cannot dictate to the States in this matter of suffrage. The Constitution of the United States, second section of article one, declares that—
“The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most
numerous branch of the State Legislatures.”
The qualifications of electors of members of the Legislatures of the States have been fixed and regulated from the earliest period of the adoption of government by the American people, by each State for itself, and the section already quoted expressly recognizes this right as belonging exclusively to the States.
Sir, the claim to regulate the elective franchise in the States unrepresented on this floor cannot be sustained upon any other theory than that advocated by the gentleman from Pennsylvania, namely, that these States, whose people were lately in revolt, were actually out of the Union; that the Union was broken up and dismembered, and that we have conquered these states, and reduced them to Territories. But again, we have been told that the people of these States must remain unrepresented until they exhibit signs of true loyalty. How long; five, ten, or thirty years?
Charles Sumner tells us that time is necessary. He says in his speech of September 14, 1865, before the Republican State convention of Massachusetts, that—
“For thirty years and more this wickedness was maturing. Who can say that the same time will not be needed now to mature conditions of permanent peace? Who can say that a generation must not elapse before these rebel communities have been so far changed as to become safe associates in a common Government?”
And again, in the same speech, he says:
“As those who have fought against us should be disfranchised, so those who fought for us should be enfranchised.” * * * * “For awhile the freedman will take the place of the master, thus verifying the saying that the last shall be first and the first shall be last.”
Another distinguished citizen of the same State, General Butler, has told us in a speech which he has made somewhere in Massachusetts, that we have full power in our own hands, and that we can refuse to let a State be represented until the State shall permit the colored man to vote. And this seems to be the scheme of the radicals, who are seeking to defeat the policy of a patriotic Executive to heal up the wounds of the country, and bring all the States together again in this House of the people’s Representatives. I trust that conservative gentlemen on the other side will not be overawed by the Senator from Massachusetts and the distinguished gentleman from Pennsylvania.
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Sir, the southern people have erred deeply and terribly, but have they not also most grievously suffered? No brave or gallant man would at a time like this cry out for more punishment upon this people. A magnanimous people, and a great and magnanimous Government will not allow it. Now, that the war has ended, every honest effort should be made by all true citizens to restore friendly relations between the different sections, and cement more firmly than ever the bonds of the Union. All further effort to punish this people by the forfeiture of their political rights should end, except in so far as the public interests may imperatively demand punishment; and then let it be in accordance with the Constitution and laws of the land. If indeed we have peace, let it be a peace in reality. Let our conduct be such as will be approved by that calm, deliberate, and thoughtful public opinion of the Christian and civilized world, which will most assuredly pass its judgment on the conduct of our Government. [snip]
It is a well-settled principle of public law that protection and allegiance are reciprocal duties; and that Government which claims allegiance, must afford protection. The majority of the people of the South were opposed to secession. On the direct issue made in Virginia in 1861, there was an overwhelming majority against it, and a fair vote in the other States would have exhibited clear majorities against secession, unless we should except South Carolina. And I ask would it not be monstrous for this Government which failed to protect the great masses of the people of the southern States from the usurpation of those who conspired to break up the Union, now to punish this same people with the most severe and grave penalties, namely, the forfeiture of high political rights, because they submitted to the usurped power which they were unable to resist?
Sir, the great principle of justice, as applied by the common sanction of the civilized world is, that principle already named, that allegiance and protection are reciprocal duties, and the Government which has failed to protect any portion of its citizens from the usurpation of any other power, foreign or internal, cannot, when such power has been over thrown punish the unfortunate people who for the time being were subjected to such usurped power for yielding it obedience. This doctrine is well settled in England, and clearly laid down by many of her eminent law writers. And has also been solemnly recognized and applied by the Supreme Court of the United States in the case of the United States vs. Rice, in 4 Wheaton’s Reports, page 246.
Why longer delay the admission of the Representatives from these States? Will it make their people better citizens, and inspire them with more love and devotion to the Government? [snip]
But, sir, much of this attempt to disfranchise the white men of eleven States unless they consent to give the ballot to the negro, (and I say it without intending the least disrespect to the able and distinguished delegation from that section,) comes from New England, and finds a zealous and able advocate in the gentleman from Pennsylvania. [snip]
Sir, there is much in the history of New England which I admire; … If New England, and New England policy, can regulate and control the question of suffrage in these eleven States, she believes that she may be able to control the financial legislation of this country, and kindly fix the amount of our tariffs, and internal taxes, for the next fifty years to come. Sir, it is a bold attempt and well worth all the effort that her Sumners and Phillipses can exert to accomplish: but it will fail, as it should fail, for if it could succeed, the great principles of our system of government would be overthrown. It is an attempt to disfranchise our own race and kindred, and transfer their political power into the hands of another race. Can it be possible that the prejudices, passions, and supposed interests of one portion of the white men of this Union, shall lead them so far as to attempt to strip their own race of political rights, in order to confer them upon the negro?
Sir, let us endeavor to be equal to the great work before us. Instead of postponing the admission of the members from these States now asking admission, let us generously welcome their return to representation in this common sisterhood of States, and in place of attempting to confer on the negro the right of
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suffrage let us exert ourselves industriously to heal up all past differences, and labor to ascertain how we may best curtail the enormous expenditures of the Government, and reduce the heavy burdens of taxation, which now press upon the people. Let us recur back to those wise and pure lessons of patriotism and duty taught us by Jefferson in his first inaugural when he declared the principles which he deemed essential to the Government:
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“Equal and exact justice to all men of whatever State or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none; the support of the State governments in all their rights as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies; the preservation of the General Government in its whole constitutional vigor is the sheet-anchor of our peace at home and safety abroad; a jealous care of the right of election by the people, a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of republics, from which there is no appeal but to force, the vital principle and the immediate parent of despotism; a well-disciplined militia our best reliance in peace, and for the first moments of war till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense; that labor may be lightly burdened; the honest payment of our debts; and sacred preservation of the public faith; encouragement of agriculture and of commerce as its handmaid; the diffusion of information and arraignment of all abuses at the bar of public reason; freedom of religion; freedom of the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected.”
If these wise principles shall guide us, we may look with confidence for a favorable solution of all the questions submitted to our deliberations; … I believe this Government can be conducted successfully under our present Constitution, with a faithful observance and respect for the just powers and rights of the States; … I will also, with the same determination, oppose all attempts at the centralization and consolidation of powers in the Federal Government, which have not been granted to it, and labor to support “the State governments in all their rights, as the most competent administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies.”
MESSAGE FROM THE SENATE
The Committee of the Whole rose informally, and the Speaker resumed the chair, when a message was received from the Senate, by Mr. FORNEY, it Secretary, announcing that the President pro tempore of the Senate had appointed the following-named Senators as members, on the part of the Senate, of the joint committee on reconstruction: Messers. FESSENDEN, GRIMES, HARRIS, HOWARD, JOHNSON, and WILLIAMS.
RECONSTRUCTION—AGAIN
The Committee of the Whole on the state of the Union resumed its session.
Mr. RAYMOND. Mr. Chairman, I should be glad, if it meet the sense of those members who are present, to make some remarks upon the general question now before the House, …. [snip]
Now, sir, in devising those ways and means to accomplish that great result, the first thing we have to do is to know the point from which we start, to understand the nature of the material with which we have to work—the condition of the territory and the States with which we are concerned. … But, sir, I must say that I was glad when I perceived the distinguished gentleman from Pennsylvania, [Mr. STEVENS,] himself the chairman on the part of this House of that great committee on reconstruction, … I feel constrained to say, sir—and I do it without the slightest disposition to create or to exaggerate differences—that there were features in his exposition of the condition of the country with which I cannot concur. I cannot for myself start from precisely the point which he assumes.
In his remarks on that occasion he assumed that the States lately in rebellion were and are out of the Union. Throughout his speech—I will not trouble you with reading passages from it—I find him speaking of those States as “outside of the Union,” as “dead States,” as having forfeited all their rights and terminated their State existence. I find expressions still more definite and distinct; I find him stating that they are and for four years have been out of the Union for all legal purposes;” as having been for four years a “separate power,” and “a separate nation.”
His position therefore is that these States, having been in rebellion are now out of the Union, and are simply within the jurisdiction of the Constitution of the United States as so much territory to be dealt with precisely as the will of the conqueror, to use his own language, may dictate. Now, sir, if that position is correct, it prescribes for us one line of policy to be pursued very different from the one that will be proper if it is not correct. His belief is that what we have to do is to create new States out of this territory at the proper time—many years distant—retaining them meantime in a territorial condition, and subjecting them to precisely such a state of discipline and tutelage as Congress or the Government of the United States may see fit to prescribe. If I believed in the premises which he assumes, possibly, though I do not think probably, I might agree with the conclusion he has reached.
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But, sir, I cannot believe that this is our condition. I cannot believe that these States have ever been out of the Union, or that they are now out of the Union. I cannot believe that they ever have been, or are now, in any sense a separate Power. If they were, sir, how and when did they become so? They were once States of this Union—that every one concedes; bound to the Union and made members of the Union by the Constitution of the United States. If they ever went out of the Union it was at some specific time and by some specific act. … Was it by the ordinance of secession? I think we all agree that an ordinance of secession passed by any State of this Union is simply a nullity, because it encounters in its practical operation the Constitution of the United States, which is the supreme law of the land. It could have no legal, actual force or validity. It could not operate to effect any actual change in the relations of the State adopting it to the national Government, still less to accomplish the removal of that State from the sovereign jurisdiction of the Constitution of the United States.
Well, sir, did the resolutions of these States, the declarations of their officials, the speeches of members of their Legislatures, or the utterances of their press accomplish the result? Certainly not. … After declaring that intention, they proceeded to carry it into effect. How? By war. … This, then, is simply a question of fact, and we all know what the fact is. They did not succeed. They failed to maintain their ground by force of arms—in other words, they failed to secede.
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Mr. RAYMOND. I am very much surprised to find myself involved in such a controversy. I did not rise to create or provoke controversy with any one upon this floor. I rose to express my own dissent from the views propounded here by the gentleman from Pennsylvania, … I cannot assent to the intimations thrown out by the gentleman from Pennsylvania, [Mr. STEVENS,] that the President concurred in the views he had expressed, or that he had handed the whole subject of pacifying the States lately in rebellion, and of restoring the States to the practical exercise of their functions as members of the Union, to the hands of Congress. I can find no warrant in his message for believing that he designs thus to abandon duties which are evidently, in his judgment, devolved upon him as the Executive in the Government, and as Commander-in-Chief of the armies of the United States. On the contrary, I find him rehearsing, in clear and explicit language, the steps he has taken to restore the rightful energy of the General Government and the States. “To that end,” he says,
“Provisional governors have been appointed for the States, conventions called, Governors elected, Legislatures assembled, and Senators and Representatives chosen to the Congress of the United States. At the same time the courts of the United States, as far as could be done, have been reopened, so that the laws of the United States may be enforced through their agency. The blockade has been removed, and the custom-houses reestablished in ports of entry, so that the revenue of the United States may be collected. The Post Office Department renews its ceaseless activity, and the General Government is thereby enabled to communicate promptly with its officers and agents. The courts bring security to persons and property; the opening of the ports invites the restoration of industry and commerce; the post office renews the facilities of social intercourse and of business.
He has exercised his power of pardon; he has invited the States lately in rebellion to participate in the ratification of the constitutional amendment securing the perpetual prohibition of slavery. “This done,” he says,
“It will remain for the States, whose powers have been so long in abeyance, to resume their places in the two branches of the national Legislature, and thereby complete the work of restoration. Here it is for you, fellow-citizens of the Senate, and for you, fellow-citizens of the House of Representatives, to judge, each of you for yourselves, of the elections, returns, and qualifications of your own members.”
All but this has been done in the exercise of his functions an in the performance of his duties, as President of the United States, and as Commander-in-Chief of their armies. The admission of members of Congress, and the restoration of the judicial branch of the civil authority of the Government, are necessarily referred to the deliberations and action of Congress. [snip]
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I see no reason in this view to discriminate between the argument of the gentleman from Pennsylvania and the argument of the gentleman from Ohio and the argument of the gentleman from New York. … When the time to vote comes, when business is in hand, then we may speak and bind ourselves. I think that no one here can speak for a party, and that no one is bound by what has been said by the gentlemen who have spoken. And then the gentleman from New York says, looking at the question of reconstruction, that there resides in the Executive power to impose conditions upon the resumption of the rights of the States which have been in rebellion, I ask him where he finds that power—in the Constitution of the United States or in the public law, the law of war, the law of nations which overrides when it is once called into existence? Is it the power of carrying on foreign war or suppressing domestic insurrection? [snip]
[Start of a few debates about the 1866 Civil Rights Act – inclusion]
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IN SENATE
January 5, 1866
Mr. TRUMBULL, in pursuance of previous notice, asked and obtained leave to introduce a bill (S. No. 61) to protect all persons in the United States in their civil rights and furnish the means of their vindication; which was read twice by its title, ordered to be printed, and referred to the Committee on the Judiciary.
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HOUSE OF REPRESENTATIVES
January 5, 1866
ABOLITION OF SLAVERY
Mr. COOK. I ask unanimous consent to introduce the following resolution:
Resolved, That it is the sense of this House that the terms of the second section of the article proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, by joint resolution approved February 1, 1865, confer upon Congress the power, by appropriate legislation, to secure to the people of the United States, of whatever race or color, the enjoyment of the rights of freemen, and to protect them from involuntary servitude, (except as a punishment for crime,) under whatever pretext such involuntary servitude may be imposed, and no Legislature of any State, in ratifying said amendment, can attach any condition to such ratification which will in any manner restrict or modify the effect of said section.
Mr. STEVENS. I do not know whether I shall object to that resolution. I dislike to. But I rather think it is in conflict with the opinion of the Secretary of State. We all know that the second section is restraining.
Mr. VOORHEES. As I see the gentleman from Pennsylvania [Mr. STEVENS] wants it objected to, I will object.
ORDER OF BUSINESS
Mr. STEVENS. I move that the rules be suspended, and that the House now resolve itself into the Committee of the Whole on the state of the Union.
Mr. HOGAN. I ask the gentleman to allow me to offer a resolution.
Mr. STEVENS. The gentleman will have an opportunity hereafter. I must insist on my motion.
The motion was agreed to.
So the rules were suspended; and the House accordingly resolved itself into the Committee of the Whole on the state of the Union, (Mr. WASHBURNE, of Illinois, in the chair,) and proceeded to the consideration of the President’s annual message, upon which Mr. SPALDING was entitled to the Floor.
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RECONSTRUCTION
Mr. SPALDING. Mr. Chairman: Our republican Government, after being exposed for three fourths of a century to the derisive doubts of carping critics abroad, and to the more insidious and cruel assaults of ambitious men at home, has, at length, “by wager of battle,” vindicated its claim to be ranked as first among the nations in all the elements of stability and power.
This proud stand-point has not been reached without unparalleled sacrifices of blood and treasure on the part of our loyal fellow-citizens, but as the recuperative energies of the American people are known to be adequate to any probable exigencies, it is not so important that we dwell upon the havoc and cost of the war, from which we have so recently emerged, as that we try to profit by the injunction of Roman patriotism, and “take care that the Republic receive no detriment” therefrom.
To the end that we may approach the discharge of this duty with a just appreciation of the character of that Government which originated in the wisdom of our fathers, and is now sanctified by the blood of their sons, I propose to examine, in a somewhat cursory manner, that dogma of Mr. Calhoun which has been the prolific source of much of our intestine troubles—“that the Government of the United States is the Government of a community of States, and not the Government of a nation.” Upon this political heresy hangs the whole claim of the “nullifier” and the “secessionist,” which has plagued our country more than thirty
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years, and finally resulted in the most devastating war known to the history of mankind.
I am not wanting in respect for the transcendent abilities of the “great Carolinian,” but it is painful to notice how
“Wild ambition loves to slide, not stand,
And Fortune’s ice prefers to Virtue’s land.”
I propose to bring this notion of a copartnership of States to the touch-stone of the Constitution itself, as well as its contemporaneous history, and then leave to impartial minds the just conclusion.
As early as the 8th of April, 1787, James Madison, then a member of the Congress of the Confederation, sitting in New York, wrote to Governor Randolph, of Virginia, and thus succinctly gave his views in regard to the proper action to be taken by the Convention about to assemble in Philadelphia to revise the Articles of Confederation:
“I hold it for a fundamental point that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the States into one simple republic is not less unattainable than it would be inexpedient.
“Let it be tried, then, whether any middle ground can be taken which will at once support a due supremacy of the national authority and leave in force the local authorities, so far as they can be subordinately useful.”
This letter of Mr. Madison very truly depicts the constitutional Government which he afterward assisted to frame, and which he administered for eight years as the immediate successor of Thomas Jefferson in the presidential chair.
The Constitutional Convention was organized at Philadelphia on Friday, the 25th day of May, 1787. On Wednesday, May 30, the Convention, while in Committee of the Whole on the state of the Union, adopted the following significant resolution with but one State (Connecticut) voting in the negative:
“Resolved, That it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, judiciary, and executive.”
This was the first resolution adopted by the Convention, and its author was Edmund Randolph, the gentleman to whom Mr. Madison had written the letter of the 8th of April to which allusion has been made.
It forms the first of a series of resolutions which were subsequently placed on file in the Department of State by President Washington.
The distinguished lawyer, Luther Martin, of Maryland, who was a member of the Convention, and who was strongly opposed to the adoption of the Constitution by the people, thus speaks of this resolution in his address to the Legislature of his own State:
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“Nay, so far were the friends of the system from pretending that they meant it or considered it as a Federal system, that, on the question being proposed ‘that a union of the States, merely Federal, out to be the sole object of the exercise of the powers vested in the Convention,’ it was negatived by a majority of the members, and it was resolved, ‘that a national Government ought to be formed.’ “
Chief Justice Yates, of New York, in his notes of the secret debates of the Federal Convention, says, under date of Tuesday, May 20, 1787:
“His Excellency, Governor Randolph, a member from Virginia, got up, and in a long and elaborate speech showed the defects in the system of the present Federal Government as totally inadequate to the peace, safety, and security of the Confederation, and the absolute necessity of a more energetic Government.
“He closed these remarks with a set of resolutions, fifteen in number, which he proposed to the Convention for their adoption and as leading principles whereon to form a new Government. He candidly confessed that they were not intended for a Federal Government. He meant a strong, consolidated Union, in which the idea of States should be nearly annihilated.”
On the following day, and when said resolution in respect to a national Government was under consideration, in Committee of the Whole, “it was asked,” says Justice Yates, “whether it was intended to annihilate State governments?” It was answered, “only so far as the powers intended to be granted to the new Government should clash with the States, when the latter were to yield.”
Hon. Elbridge Gerry, in a letter to the Legislature of Massachusetts, assigning reasons for withholding his signature from the Constitution, says:
“It has few, if any, Federal features, but is rather a system of national Government."
Hon. John Jay, in an address to the people of the State of New York, urging the adoption of the Constitution, uses this remarkable language:
“The Convention concurred in opinion with the people, that a national Government, competent to every national object, was indispensably necessary.”
I could multiply the declarations of eminent men who were upon the stage of action at the time the Constitution was framed and adopted, all to the same purport, but I feel the necessity of appropriating some portion of the hour allotted to me to the consideration of the evidence furnished by that instrument itself. It purports, on its face, to be a transfer of governmental power directly from the people to certain constituted authorities, involving the exercise of the higher attributes of sovereignty. It gives “Congress” power “to make war and to make peace; to raise and support armies and navies; to coin money and regulate the value thereof; to regulate commerce with foreign nations and among the several States; to lay and collect taxes, duties, imposts, and excises.” On the other hand, it effectually interdicts the exercise of powers, by the States respectively, that shall in anywise interfere with these and other high prerogatives of Congress.
For that purpose, it provides that—
“No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; omit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
Moreover, it provides that—
“No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.”
Also, that—
“No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign Power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”
And, as if to make “assurance doubly sure,” the second clause of the sixth article of the Constitution speaks this language perpetually:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”
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Here I pause, and hail with respectful gratitude the enunciation made by the President in his annual message:
“ ‘The sovereignty of the States’ is the language of the Confederacy, and not the language of the Constitution.”
Thus far I have attempted to show that the framers of the Constitution contemplated the creation, “by the people of the United States,” of a national Government, and not a Confederacy of States.
This national Government was approved and ratified by the people, assembled for the express purpose of considering it, in their respective State conventions.
I have next attempted to show that the national Government is invested with the exercise of many of the high powers incident to sovereignty, while the exercise of similar powers is expressly denied to the States.
It is doubtless true that both governments exercise important functions, and, in their respective spheres of action, each is independent of the other. But both are limited, and neither is “sovereign.” If I be asked, “Where, then, may sovereignty, in our country, be found to reside?” I answer, unhesitatingly, IN THE PEOPLE. Look where you will, throughout all the ramifications of Government, State and National, and you will find it, happily, so ordered that all power, executive, legislative, and judicial, returns, periodically, to its only true source — THE PEOPLE.
The President of the United States, whose official position is infinitely more dignified than that of any potentate in Europe, is only an agent of the people for a term of years. And so of the Senators and Representatives in Congress; while the Justices of the Supreme Court are all the time “on their good behavior.” I am made strong in this position by calling to my support the highest authority. Chief Justice Jay says in the address to which I have once alluded, as an argument for the adoption of the Constitution:
“The proposed Government is to be the Government of the people; all its officers are to be their officers, and to exercise no rights but such as the people commit to them. The Constitution only serves to point out that part of the people’s business which they think proper, by it, to refer to the management of the persons therein designated. Those persons are to receive that business to manage, not for themselves and as their own, but as agents and overseers for the people, to whom they are constantly responsible, and by whom only they are to be appointed.”
Hon. James Wilson, of Pennsylvania, too, in addressing the convention of his own State, assembled to deliberate on the propriety of adopting that Constitution, to the excellence of which, he had, by his consummate wisdom and virtue, contributed so largely, thus expatiated upon this branch of my subject:
“There necessarily exists in every Government a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside?
“Perhaps some politician who has not considered with sufficient accuracy our political systems, would answer that in our governments the supreme power was vested in the constitution. This opinion approaches near to the truth, but does not reach it. The truth is that in our governments that supreme, absolute, and uncontrollable power remains in the people.
“As our constitutions are superior to our Legislatures, so the people are superior to our constitutions. Indeed, the superiority in this last instance is much greater, for the people possess over our constitutions control in act as well as right. In this Constitution, all authority is derived from the people.”
And so the President very justly declares in his message:
“Our Government springs from and was made for the people; not the people for the Government. To them it owes allegiance; from them it must derive its courage, strength, and wisdom.”
It is been claimed, however, that notwithstanding the General Government, in all national matters, is supreme in its authority, and although the individual States have not the shadow of a right to secede peaceably from the Union, yet, if any one or more States resort to armed force to accomplish that purpose, the strong arm of the national Executive is paralyzed; and for the reason that “the Constitution nowhere delegates to the General Government the power to declare and make war against a State.”
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I hold this objection to be puerile in the lowest degree. As well may the citizen of a State, when arraigned at the bar of the court of his county for the commission of a crime, demand an exhibition of the war power, on the page of the State constitution, before he can be subjected to punishment for the offense. The nation does not declare war against its dependencies; it, nevertheless, exerts sufficient force to restrain them, when they madly attempt to revolutionize the Government.
The true theory, however, is that the General Government, like the State government, acts upon the individual citizen, and it may always use the degree of force necessary to secure obedience to law, whether resistance be offered by one citizen, or all the citizens of a State, or the citizens of a dozen States combined.
It is often said, by the friends of the doctrine of “secession,” that the Convention refused to insert in the Constitution a clause authorizing the exertion of “the force of the Union against any member of the same, failing to fulfill its duty under the articles thereof.” It is doubtless true that such a resolution was offered in Convention and that the same was, for wise reasons, indefinitely postponed. It is equally true that a proviso was offered, in convention, to the third section of the third article of the Constitution, which defines the crime of treason. It was in these words:
“Provided, That no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States, under the authority of one or more of the said States, shall be deemed trea-
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son or punished as such; but in case of war being levied by one or more of the States against the United States, the conduct of each party toward the other, and their adherents respectively, shall be regulated by the laws of war and of nations.”
This provision “was not adopted,” says Mr. Martin, “and the consequence is that the State, and every one of its citizens who acts under its authority (in making war upon the Government of the nation) are guilty of a direct act of treason.” (Elliot’s Debates, vol. 1, page 382.)
I receive this construction of Mr. Martin as a correct exposition of the constitutional provision in respect to treason, with the understanding that the word State is used by him as synonymous with the words “all the citizens of a State,” which is really the only true signification of that term when used in connection with moral responsibility.
This national Government, which it has been my endeavor to elucidate, was in operation seventy-two years, bringing “order out of chaos,” and changing an impotent “Confederacy” into a great republican empire whose banner, illustrative of unity—“E pluribus unum”—floated in every breeze, and afforded protection to every citizen in every land. Under its benign influence, the bounds of dominion had been extended to the Pacific ocean, and the country had increased in wealth and population to an extent unparalleled in the annals of nations.
Over the heads of its citizens it had shed the blessings of peace and personal security; and overflowing prosperity was seen everywhere to abound.
“I look upon this country, with our institutions,” said Mr. Stephens, of Georgia, in November, 1860, “as the Eden of the world—the Paradise of the universe.” It was to break down and destroy this beneficent Government, to blight this earthly paradise, that the serpent of secession entered into the garden of our national prosperity.
On the 20th of December, 1860, an ordinance of secession was adopted by the delegates of the people of South Carolina, declaring that the Union then subsisting between that and other States, under the name of the United States of America, was thereby dissolved; and one of the distinguished actors in the treasonable work, had the impudence to exclaim:
“We have now pulled a temple down that has been built three quarters of a century. We must clear the rubbish away to reconstruct another.”
In quick succession five other States followed the example of South Carolina; and in February, 1861, the much-vaunted southern confederacy was formed at Montgomery, in Alabama.
On the morning of the 12th of April, under orders from L. P. Walker, confederate secretary of war, the rebels at Charleston opened fire upon Fort Sumter, and thus inaugurated a civil war which, in four years, cost the nation half a million lives, and an amount of wealth beyond the measure of reasonable computation.
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The people of eleven States had formally absolved themselves from all allegiance to the Government of the United Sstates, and had made use of all their material resources to effect its full and final overthrow. They had marshaled mighty armies in the field. They had sent armed ships to prey upon the commerce of the country in distant seas. They had sent their emissaries, with torches, to burn the dwellings of loyal citizens, and with the seeds of pestilence to destroy their lives. They had resorted to starvation to thin the ranks of captive soldiers. In fine, they had used every means, practiced by civilized or barbarous nations, to break down and destroy the constitutional Government of the United States, and were only prevented from accomplishing their work by the heroic endurance and patriotic valor of our citizen soldiers. They had refused terms of pacification unless accompanied by what they claimed as a sine qua non—the acknowledged independence of the southern confederacy.
At length their armies were discomfited in the field and compelled to surrender. Their chief executive was captured and thrown into prison; and the “confederacy” was dissipated “like the baseless fabric of a vision.” The fragmentary population of eleven revolted States, acknowledging their defeat in the ordeal of battle, but showing no signs of regret for their gigantic treason against the best rights of man, now unblushingly claim an immediate restoration to a full participation in the councils of the Republic. Their advocates insist that their ordinances of secession were nullities, and, consequently, “they were never out of the Union.” Hence, their Senators and Representatives are entitled to seats in Congress, in an equal degree with those from States whose sons gave their lives to save the nation.
Another class of politicians claim that the rebellious communities of the South voluntarily abjured all allegiance to the United States, and, having set up and fought to maintain another and distinct government, they had ceased to exist as States in the American Union. Perhaps a middle ground may be entered upon, that will reconcile these extreme views without doing especial violence to either. There is obviously in our complex system of government a power that governs and a subordinate power that is the subject of government. The States, when in harmony with the Constitution and represented in Congress, may properly be called the governing power of the nation. The Territories and the District of Columbia are no less in “the Union” than the States just mentioned, but they form no part of the governing power of the nation; they are governed by the Congress. A community may be in the Union in one sense of the word and not in the Union in another and different sense. A State may be in the Union as the subject of government, when, by reason of its misconduct, it has forfeited its privileges as a part of the governing power. In this last sense it is not in the Union. I know not but the President means the same thing when he says—
“The States attempting to secede placed themselves in a condition where their vitality was impaired but not extinguished; their functions suspended, but not destroyed.”
Indeed, it would be shocking to our sensibilities, to hear it soberly claimed that the rebel States, after abjuring all allegiance to the Government of the nation, and carrying on a furious war for its overthrow, had a constitutional right to appear in its halls of legislation, and take part in the enactment of its laws, by simply acknowledging their inability to contend with it in arms.
If a State once in the Union is always in the Union, as a branch of the governing power, how would it have operated if, while the Thirty-Eighth Congress was striving, in the face of a formidable opposition in its own body, to raise the necessary supplies to enable General Grant and his patriotic braves to “fight it out on the line” from the Rapidan to Richmond, Senators and Representatives had appeared from enough of the rebel States to overcome, by their votes, the patriotic majority in Congress? The bare statement of the question shows the utter absurdity of the proposition.
I now assume, for the sake of argument, that the President is correct when he takes the ground that “the vitality” of the rebellious States “is impaired, but not extinguished; their functions suspended, but not destroyed.” Where does the Constitution of the United States lodge the power to prescribe an effective remedy for this impaired vitality, and to restore to healthy action these suspended functions? My learned friend from New York [Mr. RAYMOND] thinks it is lodged in the hands of the “President as Commander-in-Chief of the Army and Navy of the United States.” I maintain that it is given to the Congress of the United States by force of the last clause in the eighth section of the first article of the Constitution, which provides that Congress shall have power—
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers those already granted and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”
This clause vests the instrumentality by which all “implied powers” are called into action expressly in Congress, even such as may be necessary to carry into effect those expressly delegated to the President. In time of war, and when the life of the Republic was in danger, this high officer of the Government was, at times, necessarily in the exercise of dictatorial power. In time of peace, he can rightfully exercise no power unless it be expressly vested in him by the Constitution, or by act of Congress. Of this there can be no reasonable doubt. The discretionary powers of the Government were intended to be lodged in the members of Congress, who are responsible to the people of their respective States and districts, and to them alone, for the manner in which they discharge the solemn trust.
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It is high time, Mr. Chairman, that the people of the United States should insist that the “ship of State” be overhauled and put in constitutional trim. She has been exposed to tempestuous gales and angry billows; but now, having weathered the storm of secession and strife, and being brought, by skillful pilots and a gallant crew, into a peaceful haven, it will be no more than an ordinary precaution to “sound the pumps.”
I have great confidence in that self-taught statesman who now, to a great extent, wields the destinies of the American Republic; and I here make my humble protestation against the attempts of any man or set of men, in Congress or out of Congress, to place the majority of this House, with whom I feel it an honor to act, in an attitude of hostility to the President so long as he confines himself to the exercise of his own just prerogatives. Shall we, for slight causes, distrust him who, not unlike the seraph portrayed by Milton—
“Faithful found,
Among the faithless, faithful only he’
Among innumerable false, unmoved,
His loyalty he kept, his love, his zeal?”
Thus far I do believe he has most conscientiously followed in the footsteps of his martyred predecessor. Although I am decidedly of opinion that it would have been right and proper in calling the first legislative bodies into action, in the rebel States, to have used the suffrages of all loyal freemen, without respect to color, and to have rejected the votes of all who had participated in the war against the Government, I do not see but that a contrary precedent was established by Mr. Lincoln in his amnesty proclamation of December, 1863. So, also, the reconstruction bill passed by Congress in 1864, provided for the enrollment of “white male citizens” only, as voters.
In the matter of appointing provisional governors, and in advising the conventions of delegates, by them assembled, to abjure slavery and the rebel debt, I find no good cause for complaint. As to the ratification of the amendment to the United States Constitution, I am disposed to hold that the action of the so-called Legislatures of the rebel States, did “neither good nor harm.” The amendment was fully ratified by three fourths of all the States represented in Congress, and acting in harmony with the Government, at the time the two-thirds vote was given in that body, and no additional sanctions were wanted, as none in fact could be given by assemblies of men having no share in the governing power of the nation. I regret exceedingly that the President did not wait for the action of Congress, which was being matured with all due respect to his high privileges as a coordinate branch of the Government, before he dismissed his provisional governors and turned over to men, lately dyed in the blood of our sons, the executive duties of the rebel States. But that is a matter of no vital importance so long as a portion of our Army remains to guard the lives of Union men.
It remains to be seen whether now, when confessedly the time has arrived when the war power is to be laid aside and the civil power is to resume its functions, the Congress of the United States is to be respected as the depositary of “all legislative powers” granted by the people in the Constitution we have sworn to uphold. It is not only the privilege but the constitutional
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duty of the President “to give to the Congress information of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient, from time to time.” But the power “to admit new States into this Union;” “to guaranty to every State in this Union a republican form of Government, and to protect each of them against invasion and domestic violence;” “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;” “to exercise exclusive legislation in all cases whatsoever over” the District of Columbia; “to make rules concerning captures on land and water;” these, and all similar powers, express or implied, belong to the Congress exclusively.
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It has been strangely enough suggested that the President would seek to control the action of Congress in this great matter of restoring the revolted States to their original status in the Union, by withholding executive patronage from such Senators and Representatives as could not conscientiously fall in with his favorite policy. I respectfully beg pardon of the President and of the public for stating so scandalous a rumor upon this floor. I pronounce it as false as “secession” itself, and I find for the scandal no tangible authority except the following article, which I cut from the Newbern (North Carolina) Times of December 16, 1865:
“FUTURE HOPES.—The hope is expressed with all diffidence, still there is ground for hope, that our future prospects for admission into full fellowship with the heretofore loyal States are growing brighter. The stand taken by President Johnson in reference to reconstruction is being fully maintained by that patriotic officer, and not even all the combined forces of radicalism have been able as yet to move him. Like a great rock he has withstood the shock of the angry waves of opposition, and he stands proudly erect to meet them again.
“There is evidence that the enemies of the conquered South are getting a little shaky. A sort of ‘Stephen Hopkins’ tremor is coming over them, for they have counted more upon their own strength than that of the national Executive. They are beginning to remember once more that the President of the United States has the appointing right as well as the veto power, and that the warmest friend of a radical Congressman may lose his little sinecure of an office whenever the President so wills. Patronage is a big thing—a fact fully recognized by the ultraists—but in their greed for the full control of it they have overlooked some of the little particles which have a great deal to do with the grand aggregate.
“We repeat there are brighter prospects ahead than events of the past had permitted the South to hope for. It is even possible that conservative influences will so far prevail as to bring about total reconstruction before the final adjournment of this Congress.”
Thus the southern traitors, not content with ascribing to the President such base motives to action as would bring him beneath the contempt of the loyal masses who elected him, most impudently and arrogantly attempt to appropriate him to their own vile purposes—
“Like gypsies, lest the stolen brat be known,
Defacing first, then claiming for his own.”
I know not if the President has any fixed policy in regard to the guarantees which the loyal people of this country may exact before the States in revolt shall be restored to all the functions of governing States in the Union. Sure I am, he can have no desire to throw obstacles in the way of the deliberate and well-matured action of Congress, which may well be presumed to reflect the wishes of a great majority of the people. I have, at this time, no means of determining for myself what course will be taken by Congress, but I will venture to say that the substance of the following propositions, if adopted, will be satisfactory to the bulk of my constituents in Ohio:
1. Extend a qualified right of suffrage to the freedmen in the District of Columbia.
2. Amend the Constitution of the United States in respect to the apportionment of Representatives and direct taxes among the several States of the Union, in such manner, that “people of color” shall not be counted with the population making up the ratio, except it be in States where they are permitted to exercise the elective franchise.
3. Insert a provision in the Constitution prohibiting “nullification” and “secession.”
4. Insert a provision in the Constitution prohibiting the repudiation of the national debt, and also prohibiting the assumption by Congress of the rebel debt.
5. Provide in the Constitution that no person, who has, at any time, taken up arms against the United States, shall ever be admitted to a seat in the Senate or House of Representatives in Congress.
Let these guarantees be given to loyalty, and I will try to forgive—I can never forget—the injuries received by my country from TRAITORS.
Mr. STEVENS moved that the committee do now rise.
Th motion was agreed to.
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So the committee rose; and the Speaker having resumed the Chair, Mr. WASHBURNE, of Illinois, reported that the Committee of the Whole on the state of the Union had had the Union generally under consideration, and particularly the annual message of the President of the United States, and had come to no conclusion thereon.
And then, on motion of Mr. STEVENS, (at twenty-five minutes after one o’clock p. m.,) the House adjourned until Monday next.
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HOUSE OF REPRESENTATIVES
January 8, 1866
RECONSTRUCTION
Mr. STEVENS moved that the rules be suspended, and the House resolve itself into the committee of the Whole on the state of the Union.
The motion was agreed to.
So the rules were suspended; and the House resolved itself into the Committee of the Whole on the state of the Union, (Mr. WASHBURNE, of Illinois, in the chair,) and proceeded to consider the President’s message, on which the gentleman from Pennsylvania, [Mr. STEVENS,] was entitled to the floor.
Mr. STEVENS. If there be no objection, I will yield the floor to the gentleman from West Virginia, [Mr. LATHAM,] who desires to proceed to-day.
There was no objection.
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Mr. LATHAM. Mr. Chairman, in the discussion of the important issues now under consideration, it may be well for us to recur briefly to first principles; and I feel gratified that the honorable and learned gentleman from Ohio has given us so lucid and able an exposition of the polity of our Government. The people of the United States constitute a nationality; the Government the machinery by which or through which they exercise the powers of the national sovereignty. The operations of this sovereignty are not affected by State lines—no State Legislature, Executive, or convention, having the right to alter, annul, repeal, or hinder the execution of any constitutional law of Congress, or to change the practical relations of the citizens within its limits to the national Government.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c.,” * * * * “shall be the supreme law of the land,” * * * * “anything in the constitution or laws of any State to the contrary notwithstanding.”—Constitution of the United States, Article 6.
The so-called ordinances of secession adopted by the people of some of the southern States are of no more legal effect by way of dissolving their allegiance to the General or national Government than the blank paper upon which they are written; otherwise they might be plead in bar of a prosecution by the Government for treason against any citizen who had his residence within the limits of such State—a defense which I presume even the chief of secessionists would not now gravely offer. No citizen can expatriate himself and yet remain within the territorial limits of the Government to which he owes allegiance. An individual becomes or is a citizen of the United States by virtue of his relations to the national Government, and not by virtue of his being a citizen of one of the United States. The Union is the nation, and to the Government of the Union within its constitutional scope and authority is our allegiance due. It is, nevertheless, true that we owe an allegiance to our State governments acting within their limits as prescribed by the Constitution of the United States.
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These principles being true, it follows that the rebellion was never limited by State lines. Its limits were never defined by legislation, but its authority was extended as far as its power could carry it, whether over entire States or parts of States, or whether the people of those States had ever adopted the farce of an ordinance of secession or not. The right of separate State secession we never recognized. It never did and does not exist in our form of Government. No Government ever did, ever will, or ever can vest anywhere the power to destroy itself, for the mere vesting of such power would be it destruction. We were compelled, however, for four long and dark years, to accord a respect, however reluctant, to the power of the rebellion. There is a disposition, with some, to attach to these ordinances of secession a legal importance to which they are by no means entitled. The President in his restoration policy takes up the several State governments which were overthrown by the rebellion as they stood immediately prior to the adoption of these several ordinances, confirming all that was done by them prior to this time, and repudiating all that was done subsequently. This may not be positively objectionable, provided we are not misled by it into an undue respect for those ordinances, considering them as only the starting points, the acts of rebellion, by which the several State governments were overthrown or perverted from their proper relations to the national Government. This is a convenient prominent act from which to date the rebellion in the several States in which such ordinances were adopted, but is not sustained by the facts as the first act, in any such State, of organized rebellion and treason.
The organizing of a military force hostile to the United States, and appropriations for their payment, the seizure of United States forts and other public property, and other acts of violence in all the States comprising the late so-called confederate States of America, preceded the adoption of the ordinances of secession. Thus Georgia State troops seized Forts Pulaski and Jackson, and the United States arsenal at Savannah, January 2, 1861, though the ordinance of secession was not passed until January 19, 1861. In Alabama, Fort Morgan and the United States arsenal at Mobile were seized January, and the ordinance of secession adopted on the 11th. The Louisiana forts and arsenal were seized by State troops on the 11th of January, though the ordinance of secession was not adopted until the 26th. And so on throughout the entire catalogue. The act was not an original act of or attempt at secession, but was originally an act of rebellion and secession, and was subsequently brought to its aid as one means of giving it strength by uniting the people in its support, just as the military despotism, the reign of terror, inaugurated by the leaders, was another means, looking to the same end.
These ordinances could not bind the conscience nor determine the allegiance of individuals, nor extend the authority of the rebellion to State lines, when the power of the rebellion was not sufficient to maintain it there; and individuals are none the more or less traitors, and the people were none the more or less in rebellion because such ordinances were or were not adopted in their States. The people of the State of Virginia adopted an ordinance of secession; the people of the States of Kentucky, Missouri, and Maryland did not, yet the northwestern portion of Virginia, was more truly loyal, maintained its relations to the national Government better, and rendered to it a more cheerful support in its measures and policy for crushing the rebellion, than certain districts in each of the other three States mentioned. The people of Virginia adopted an ordinance of secession, but those of northwestern Virginia never rebelled. The people of Maryland, Kentucky, and Missouri never adopted such ordinances, but those of portions of each joined the rebellion; and it is certainly attaching a legal importance to these ordinances not justified by the principles and polity of our Government to subject the people of loyal West Virginia to pains and penalties from which those of the disloyal and rebellious portions of those other States are exempt, as was done in the case of returning rebels, after the surrender; and for no reason except that the people of Virginia adopted an ordinance of secession.
Certain of the State governments were overthrown by the rebellion just as was the national Government wherever the power of the rebellion extended. The States were not, and could not, be parties to the rebellion, because they are not subjects of the national Government. Individuals, citizens, you and I, are subjects of the Governments, both State and national. We may commit treason against either or both, and may overthrow either or both by different or the same overt act, by which we subject ourselves to the pains and penalties of treason, and forfeit the rights of citizenship—ay, the right to life itself—under either or both; but the rights and powers of the Government are in no way affected by our treason, except so far as they may be paralyzed for a time by the blow we strike at their life; and the doctrine that the States have committed felo de se, or self-murder, is not only monstrous within itself, but subversive of the vital principles of our Government, and fraught with many dangers. We must preserve the ancient landmarks for our own security and protection, for we know not how soon we may need to use them in our own defense. We know not in what form, or in what direction, the next attack may come, if come it ever shall, which Heaven forbid. But I warn you that this doctrine is too near of kin to secession for us to take it to our bosoms; and that self-interest and personal aggrandizement are more potent influences with ambitious and unprincipled men than climate, soil, or latitude.
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As before stated, the authority of the rebellion was extended wherever its power could carry it; and I here protest against the use of the expression, so common, that States were in rebellion. A certain disaffected portion of the people of the United States, extending over a large section of its territory, go into a rebellion, under the auspices and power of which they inaugurate a government in lieu of that of the United States, and subvert the State governments within the extent of their usurped jurisdiction, and make them subservient to their purposes. The states (as such) of Virginia, Tennessee, and Arkansas, were no more in rebellion, when overrun by rebel hordes, that were those of Maryland, Kentucky, Missouri, and of Pennsylvania, under similar circumstances; and if the constitutional and legal rights of loyal citizens of the United States in the States and districts in which a majority of the resident population joined the rebellion, differ in any wise from those where all were loyal, (if such could be found,) but overrun for a time, I confess the distinction is too refined and metaphysical for my comprehension. The governments of Maryland and Pennsylvania were never absolutely under rebel control, but the people of certain districts within those States know what it is to obey rebel orders; their local municipal regulations, both State and national, were for a time overthrown, but immediately upon regaining the power they were “restored,” and who questioned the authority of the loyal people to restore them? The governments of Kentucky and Missouri were overthrown, were in the possession and under the control of those engaged in the rebellion—at least they had, for a time, possession of the capitals of those States, and among them those whom they recognized as the Governors of these States with their Legislatures—and they never had any government anywhere recognized by any power on earth except themselves. And if I am not mistaken, these States were, at some time, by some one and in some way, annexed to the confederacy. At least I well remember, that when campaigning down South, the rebel ladies, in singing “the Bonnie Blue Flag,” did most emphatically claim that the constellation had grown from one to thirteen stars; and that to make these they did count Kentucky and Missouri; and my impression is and always was, that “the Bonnie Blue Flag,” asserted by such authority, was and is as binding upon the citizens of Kentucky and Missouri as ever were the so-called ordinances of secession upon those of Virginia, South Carolina, or Texas; and that they all deserve to be subjected to equal disabilities. And then, you know, they raised a terrible wail for “Maryland, my Maryland,” to such an extent that, if I remember correctly, General Lee did annex it, by proclamation, during one of his raids. I have no information as to whether John Morgan and the St. Albans raiders annexed Indiana, Ohio, and Vermont to the confederacy or not, but if they did not they were certainly very forgetful of their duty as conquerors; but whether they did or not, I conceive, does “neither good nor harm.”
But who questioned the right of the loyal people of these States to reestablish their governments in their respective capitals when they recovered the power to do so? And where is the difference in the principle involved in the condition of these States and of those yet unrepresented upon this floor? Those yet unrepresented were for a while wholly instead of partially overrun, and were longer under rebel control; but are the rights of loyal citizens destroyed by “the law’s delay,” or by the inability of the Government to which they bear allegiance to extend to them, for a time, its protection and support? In what, then, consists the difference in principle, except it be in the single fact that in the one class ordinances of secession (so called) were adopted, and in the other were not?
Sir, those who accord to those ordinances an importance so essential and vital as this, are, in my humble opinion, not one whit less disunionists in theory and principle than those who adopted them. But we are seriously told upon the floor of this House, by those claiming to be par excellence the friends of the Union, that
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these States are out of the Union! Look, sir, and count the stars and stripes upon that flag. Does this House indorse a flaunting like in its presence every day, hour, and minute of its sitting? Why floats in the breeze that banner untorn from the top of this Hall, attracting the gaze of admiring multitudes for miles around, if eleven of the States represented thereon have ceased to be States, and are no longer members of this Union? Is it to deceive foreign nations through their representatives at your Government? Go, sir, and ask the honest tar in your navy yard, or upon the wide ocean, or in a foreign port, if the flag floating from his mast-head flaunts a lie—is a deception and a cheat! Ask the returning veteran, scarred and maimed, who risked his life and shed his blood to save and perpetuate the Union, if “the war has been a failure,” and if the flag he bears so proudly homeward is all that is saved from the wreck of his dismembered country! Sir, I leave the reply to your imagination; and I would not envy the gentleman who champions this doctrine the pleasure of a tour over this country, charged with the duty of cutting the representatives of eleven States from that flag which has become a household god in every family throughout the land.
To restore these State governments, then, is, in my opinion, to reinstate them as they existed when overthrown by the rebellion, subject only to such changes as are necessary to conform them to the present status of the national Government. During the suspension of the proper practical relations between the people of these States and the national Government, the institution of African slavery has been abolished, and upon resuming these relations, they are now required to conform their organic law to this very important change, not because their State constitutions are not republican in form without this change, but because the Constitution and laws of the United States are supreme, and those of the several States must conform to them.
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I need not stop here to discuss the operation and effect of the emancipation proclamation in the absence of further sanction; for though important in the day of its active operation, it is now superseded, or rather confirmed, by the constitutional amendment abolishing slavery, which is now a part of the supreme law of the land. This amendment gives Congress the power and makes it its duty to guaranty the freedom given. This power I feel assured Congress will exercise, and in the same manner and to the same extent, subsequent to the admission of the representatives of these States as prior to such admission. It is a power to be exercised by Congress, not on or through the agency of the several State governments, but, as in the exercise of all its other powers, directly upon the subject. No issue then, even with the aid of special pleading, can be made up here on this question. We hear a great deal, however, said with reference to compelling the people of these States to adopt this measure or that measure as a condition precedent to the admission of their representatives into Congress. Sir, if they are States, Congress has no more right to compel them to adopt any measure than it has to adopt it for them and transfer it to their code. If they are not States they have no right to act upon these questions, and their action is consequently without significance or the sanction of public law. But in either event, admitting the power of Congress to require such action, and the right of the States to act upon these questions, what respect would the gentlemen now contending for such action give to it, thus wrung from them under duress? Or what evidence would it give to any one upon which to base an opinion as to the actual condition or prevailing sentiment of these people? The convention in one State declines to repudiate the rebel debt; the President tells them they must do it before they can hope for representation in Congress; they then reconsider and reverse their former decision! Now, what importance can be attached to this action? The honorable gentleman from Ohio remarked with significance, that in his opinion it did neither “good nor harm;” and I am confirmed in the opinion that if it does no harm, it at least does no good. The policy to be pursued respecting the qualifications of electors in these States, during reorganization, is, I presume, so far determined and conceded as to be no longer involved in the direct issues now affecting this question. Then I come to the all-important question of guarantees.
We have now waiting action by Congress possibly less than twenty guarantees proposed as amendments to the Constitution of the United States. I do not propose now to discuss the merits of these several propositions, and do not know with sufficient certainty what they are to enter upon such discussion, but suppose there will be an opportunity to investigate them, unless they should be acted upon under the operation of “the previous question,” and without being printed. I will say, however, that I doubt the necessity of so much constitutional amendment, and that if it is really necessary, we had best have a convention at once; for to give to so many questions, of such importance as we are told these are, the consideration they deserve when becoming part of the organic law of the land, would require the time of an ordinary session of Congress, and I thin we should not form the habit of changing that sacred instrument for slight causes or with too much facility. Gentlemen manifest more fear now for the safety of the Constitution and the Union than when there were five hundred thousand rebels arrayed in arms against it. I confess I am unmoved by such fears. Some of the proposed amendments, so far as I understand them, seem unobjectionable, and when brought to a vote I now see no reason for not voting for them. If you can frame an article which more positively refutes the dogmas of nullification and secession than the second clause of the sixth article, before quoted, the fifteenth clause of the eighth section of the first article, which provides “for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” and the first clause of the third section of the third article defining treason, I will vote for it; but I can conceive of nothing plainer upon this point than the Constitution as its framers made it. And I know of no such verification of, or commentary upon, the Government under it, as is found in the legislation of Congress, and the action of the Executive, during the rebellion. But if you can frame an article which will give more than “the last man,” and mortgage more than “the last dollar: to save the Union, I will vote for it. The proposed amendment concerning the national and the rebel debt, as I heard it read once from the Clerk’s desk appeared unobjectionable, and has passed this House. But what I do object to, and most solemnly protest against at this point, is the determination, upon the part of some, to refuse representation to the people of these States, regardless of their condition, until these amendments are secured. And why? Because, say they, their adoption is necessary in order to secure the permanent ascendancy of the present dominant party, and if the people of these States are admitted to participation in the ratification of these amendments they will be defeated.
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Sir, I wish as much as any one that the present dominant party may long control the administration of affairs in this country; they deserve to do so, and will do so if in their administration they act wisely and justly; but if the principle just indicated is persisted in and prevails, I ask you, what is your written Constitution worth, what the value of any guarantees that my or can be incorporated into it beyond their subserviency to party purposes? If the dominant party can keep the minority from participation in the affairs of the Government until the Constitution can be amended to their prejudice from the day this principle becomes incorporated into the polity of our Government, the Constitution, instead of the chart of our liberties, becomes only an instrument of oppression, with which to bind more firmly the tyrannical will of a popular majority, by which the rights of minorities are unknown or unrespected, and to be changed with each revolution of popular sentiment. Better, far better, abolish it at once, and let us look to the law, to custom, and to necessity for the landmarks to our liberties, than that it be prostituted to such base purposes. Besides, sir, without pretending to prophetic wisdom, the people of this country will never make a Constitution looking only to the interests of any party. They are loyal and yet national; looking to the interests of the country, and of the whole country, jealous of the rights of minorities and the provisions for their protection; remembering, from personal experience, that political or party ascendency is among the uncertainties of this world. In a word, sir, the people are just, and will repudiate any party which attempts to trample upon these principles.
I have said that to restore the State governments which were overthrown by the rebellion was to reinstate them as they existed before overthrown, and in harmony with the constitutional amendment abolishing slavery. Acting upon this policy, let us see what guarantees can and would be required.
1. The applicant claiming a seat upon this floor must be loyal; and I would not accept whitewashed loyalty[*], or loyalty of a recent growth; he must have been loyal all the time—all the way through. He must be able to take, and must take, what is popularly known as “the test oath;” and I would not even accept that as conclusive, as barring further investigation, which might contradict the presumption raised by it. And I care not, so far as this question is concerned, whether the test oath be decided constitutional or unconstitutional; while it is a part of the law of the land, I would use it as a means of arriving at a knowledge of facts upon which the claims of the applicant should be decided. If it should cease to be law, I would arrive at a knowledge of facts upon which the claims of the applicant should be decided. If it should cease to be law, I would arrive at a knowledge of the same facts by other means, and the result should be the same. No man, after the commission of treason against the United States, was ever admitted to a seat upon the floor of Congress; and no such one, with my sanction, ever shall be. And Congress has expelled members, after admission, for disloyalty, in the absence of overt acts which would support a prosecution for treason; and under similar circumstances, for the same cause, I would sanction such action again.
2. I must know that the constituency from which the applicant comes is of sufficient loyalty to preserve or maintain as against home disaffection, a republican State government in harmony with that of the United States, without the support of the military power of the country, and that his credentials are signed by a Governor constitutionally elected and administering such State government, which must no more recognize, as legal or binding, anything done in aid of the rebellion, than it did before the rebellion was inaugurated. Then each several application must stand upon its own individual merits.
[My comment about “loyalty” and “the test oath”]
In 1866 when a “test oath” of adults was mentioned by West Virginia Representative Latham in the House, before the 1868 Fourteenth Amendment was passed by the bicameral Congress and ratified by the Legislatures of the “several States”, what was definitely not implied, assumed, suggested, etc., by the amendment was Article I naturalization by the Article III 1898 Supreme Court by fiat (‘because we said so’) ‘opinion’, and the incoherent conclusion since 1898 that the ‘fiat...opinion’ included perpetual ‘birthright citizenship’ of ‘anchor babies’ simply because the legal or illegal alien parents would ‘plop’ on to U. S. soil to ‘drop’ their babies on U. S. soil. That is 1866-1868-2000s common sense, right? [End of comment]
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Judging of the people of these States by this rule, from what is publicly or officially known of their condition, I should determine that it is not such as to entitle them, at present, to representation. They have been declared by proclamation of the Executive in rebellion—as waging war against the United States; and I am yet notified of no proclamation of peace, or that martial law has been superseded by civil in any or either of them. From what is known privately and unofficially of them I am of the opinion that some of them are in a condition to entitle them to representation; and that if an investigation of the facts proves their condition to be such as before indicated their loyal representatives should be permitted to qualify at the earliest day possible. I need not tell you that the condition of our country, especially with regard to our finances and in view of our foreign relations, demands that we be united at the earliest day practicable consistent with the public safety, which is always a paramount necessity. With regard, however, to the people of most of these States, I am free to say, that so far as I
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am able to judge of their condition and of public sentiment in them, from the tone of their press, and the general character and antecedents of those recently elected to offices of honor and trust, they are far, very far indeed, from being what they were before the rebellion—of filling what I should consider prerequisites for the admission of their representatives; and until these prerequisites are met and satisfied, whether it be one year or ten years, or more, I would govern them by martial law and without representation; and if necessary to preserve the territory in the interest of loyalty—if the present population should prove incorrigible—I would sweep their landed estates from them by confiscation, and recolonize the country with loyal citizens. I am happy, however, to say that, in my opinion, a resort to such extreme measures will not be necessary; but at the same time I must say that restoration has been retarded, and the questions involved in it complicated, by permitting power to get too soon into the hands of whitewashed rebels, instead of placing it exclusively in the hands of Union men, and organizing upon them as a nucleus; the consequence of which is that they (the Union men) are now as much proscribed, if not actively persecuted, throughout the great portion of the South as they were during the rebellion. I would love just here to enter a plea for the Union men of the South, but must forego that pleasure for the present.
But I hear it said that we must reconstruct upon a basis which will forever preclude the possibility of another rebellion. I confess, however, my astonishment at the serious entertainment of such an idea. Why, sir, the Almighty himself cannot organize a Government with provisions or guarantees which shall preclude the possibility of a rebellion against it. The only guarantees against rebellion of which I am aware are—
1. To lodge within the Government the right to use all its resources to crush rebellion, which is an essential prerequisite, expressed or implied in every Government; and
2. A wise, just, and equitable administration of the Government by the party in power, by which the affections of the people are confirmed in favor of its preservation. Let it be administered in an oppressive and tyrannical manner, and so soon as sufficient numbers become estranged toward it in their affections, and fail of redress or justice through peaceable measures, so soon will they appeal to the God of battles; and guarantees—I care not what they are—will be thrown to the winds. I appeal to the history of the world, and of the Government of the universe, moral and political, in verification of the truth of this doctrine. All history proclaims it, and all men who have read intelligently know it.
I trust, sir, that the administration of this Government by “the party of the Union” will be so wise and so just as, first, to give the party favor with the people and thus long continue the administration of affairs in their hands, and second, to seal the affections of the people to the Government, by which, together with a little time and the social friction incident to American society, we may confidently hope and expect soon again to see the people of this great country united, not only in theory and by law, but in feeling, in sympathy, and in the great work of civil and religious liberty, of human progress in all its material interests, and of freedom, looking with increased veneration to the Constitution and Government of our fathers as the common guardian, and to the old flag as the emblem of all, and rejoicing again in the proud title of AMERICAN CITIZEN.
Mr. DEMING moved that the committee rise.
Mr. BLAINE. I ask the gentleman to withdraw it. I will occupy only ten minutes.
Mr. DEMING. I withdraw it.
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BASIS OF REPRESENTATION
Mr. BLAINE. Since the beginning of the present session, Mr. Chairman, we have had several propositions to amend the Federal Constitution with respect to the basis of representation in Congress. These propositions have differed somewhat in phrase, but they all embrace substantially the one idea of making suffrage instead of population the basis of apportioning Representatives; or in other words, to give to the States in future a representation proportioned to their voters instead of the inhabitants.
The effect contemplated and intended by this change is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that population shall be denied political rights by the legislation of those States. The proposed constitutional amendment would simply say to those States, while you refuse to enfranchise your black population you shall have no representation based on their numbers; but admit them to civil and political rights and they shall at once be counted to your advantage in the apportionment of Representatives.
The direct object thus aimed at, as it respects the rebellious States, has been so generally approved that little thought seems to have been given to the incidental evils which the proposed constitutional amendment would inflict on a large portion of the loyal States—evils, in my judgment, so serious and alarming as to lead me to oppose the amendment in any form in which it has yet been presented. As an abstract proposition no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot. Indeed, the very amendment we are discussing implies that population is the true basis, inasmuch as the exclusion of the black people of the South from political rights has suggested this indirectly coercive mode of securing them those rights. Were the negroes to be enfranchised throughout the South to-day, no one would insist on the adoption of this amendment; and yet if the amendment shall be incorporated in the Federal Constitution its incidental evils will abide in the loyal States long after the direct evil which it aims to cure may have been eradicated in the southern States.
If voters instead of population shall be made the basis of representation certain results will follow, not fully appreciated perhaps by some who are now urgent for the change. I will confine my examination of these results to the nineteen free States whose statistics are presented in the census of 1860; and the very radical change which the new basis of representation would produce among and between those States forms the ground of my opposition to it. The ratio of voters to population differs very widely in different sections, varying in the States referred to from a minimum of nineteen percent. to a maximum of fifty-eight percent., and the changes which this fact would work in the relative representation of certain States would be monstrous. For example, California has a population of 358,110, and Vermont 314,369, and each has three Representatives on this floor to-day. But California has 207,000 voters and Vermont has 87,000. Assuming voters as the basis of apportionment, and allowing to Vermont three Representatives, California would be entitled to eight. The great State of Ohio, with nearly seven times the population of California, would have but little more than two and a half time the number of Representatives; and New York, with quite eleven times the population of California, would have in the new style of apportionment less than five times as many members of this House. California it may be said presents an extreme case, but no more so than will continually recur for the next century under the stimulus to the emigration of young voters from the older States to the inviting fields of the Mississippi valley and the Pacific slope.
But cases less extreme than California will present quite as clearly the injurious working of the proposed change. Take two States—one in the East and one in the West—not greatly differing in aggregate population, for example, Massachusetts has to-day ten Representatives on this floor and Indiana has eleven, and exactly fair apportionment. But Massachusetts has only 227,429 voters, while Indiana has 316,824, and therefore on the new basis, if Massachusetts should retain her ten Representatives Indiana would be allowed about fifteen, and if Indiana should be confined to her eleven, Massachusetts would be reduced to seven. An I might adduce many other instances showing the gross inequalities of representation to which the proposed amendment would subject the loyal States.
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Mr. STEVENS. Will the gentleman allow me to ask him a question?
Mr. BLAINE. Certainly.
Mr. STEVENS. What is the cause of this disparity of men and women in Massachusetts and in the New England States? Is it not that the men go to the western States as emigrants?
Mr. BLAINE. I suppose it is.
Mr. STEVENS. Very well; is not Massachusetts represented there, then?
Mr. BLAINE. Not according to some harangues we hear in this House from gentlemen representing that section on the tariff, as my distinguished friend on the Committee of Ways and Means knows very well. They go there, become identified with what they term western interests, and, I am sorry to say, attack New England and New England interests.
Mr. GRINNELL. Not all of them.
Mr. BLAINE. And there are other objections, Mr. Chairman, to the proposed constitutional amendment. Basing representation on voters—unless Congress should be empowered to define their qualifications—would tend to cheapen suffrage everywhere. There would be an unseemly scramble in all the States during each decade to increase by every means the number of voters, and all conservative restrictions, such as the requirement of reading and writing now enforced in some of the States, would be stricken down in a rash and reckless effort to procure an enlarged representation in the national councils. Foreigners would be invited to vote on a mere preliminary “declaration of intention,” and the ballot, which cannot be to sacredly guarded, and which is the great and inestimable privilege of the American citizen, would be demoralized and disgraced everywhere.
And the worst feature of all is, that there is no need whatever of precipitating the evils I have referred to. The great end of depriving the South of the representation which is based on the colored population until that population is enfranchised, can be very readily secured without accompanying it with these offensive inequalities of representation among the loyal States. The Constitution may be amended so as to prevent the one evil without involving others of greater magnitude, and I venture to express the belief that the proposition submitted by me this morning, and on my motion referred to the committee on reconstruction, will, if adopted, secure the desired result. Let me briefly explain that proposition.
The Constitution of the United States, article one, section two, clause three, reads as follows to the first period:
“Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by (adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.)”
The portion which I have included in parentheses has become meaningless and nugatory by the adoption of the constitutional amendment, which abolished the distinction between “free persons” and “all other persons,” and being thus a dead letter might as well be formally struck out; and in its stead I propose to insert the words following included in parentheses, so that the clause as amended will read thus:
“Representatives and direct taxes shall be apportioned among the several States which may be in-
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cluded within this Union according to their respective numbers, which shall be determined by (taking the whole number of persons except those to whom civil or political rights or privileges are denied or abridged by the constitution or laws of any State on account of race or color.)”
This is a very simple and very direct way, it seems to me, of reaching the result aimed at without embarrassment to any other question of interest. It leaves population as heretofore the basis of representation, does not disturb in any manner the harmonious relations of the loyal States, and it conclusively deprives the southern States of all representation in Congress on account of the colored population so long as those States may choose to abridge or deny to that population the political rights and privileges accorded to others. The adoption of this amendment as a part of the Federal Constitution would, I venture to predict, secure the right of suffrage to the colored population throughout the South in a very few years. And I doubt if in any other mode that right can be secured so speedily, so certainly, and so enduringly.
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RECONSTRUCTION
Mr. SHELLARBARGER. Mr. Chairman, I Shall inquire whether the Constitution deals with States. I shall discuss the question whether an organized rebellion against a Government is an organized “State” in that Government; whether that which cannot become a “State” until all its officers have sworn to support the Constitution, remains a State after they have all sworn to overthrow that Constitution; and if I find it does continue to be a State after that, then I shall strive to ascertain whether it will so continue to be a government, a State, after, by means of universal treason, it has ceased to have any constitution, laws, Legislature, courts, or citizens in it.
If in debating these questions I debate axioms, my apology is that there are no other questions to debate in “reconstruction.” If in the discussion I make self-evident things obscure or incomprehensible, my defense shall be that I am conforming to the usages of Congress.
I will not inquire whether any subject of this Government, by reason of the revolt, pass from under its sovereignty or ceased to owe it allegiance, nor whether any territory passed from under its sovereignty or ceased to owe it allegiance, nor whether any territory passed from under that jurisdiction, because I know of no one who thinks that any of these things did occur. I shall not consider whether, by the rebellion, any State lost its territorial character or defined boundaries or subdivisions, for I know of no one who would obliterate these geographical qualities of the States.
WHAT IS BEFORE CONGRESS
What is before this Congress—by far the most momentous constitutional question ever here considered—I at once condense and affirm in a single sentence.
It is under our Constitution possible to, and the late rebellion did in fact so, overthrow and usurp in the insurrectionary States the loyal State governments as that, during such usurpation, such States and their people ceased to have any of the rights or powers of government as States of this Union; and this loss of the rights and powers of government was such that the United States may and ought to assume and exercise local powers of the lost State governments, and may control the readmission of such States to their powers of government in this Union subject to and in accordance with the obligation to “guaranty to each State a republican form of government.” This great question I proceed to consider.
WHAT, BY THE LAW OF NATIONS, IS A STATE?
At the very foundation of this discussion lies the question, what make up the necessary elements of every State in this Union? What properties are they which, if any one be lost by a State, it ceases to be entitled to exercise the powers and demand the rights of a political and governing member of that Union?
The argument I now derive from “public law” is really identical with the one I shall next adduce, and shall base upon the express terms of the Constitution. In this argument—assuming, as I do, two axioms of our law; first, that the law of nations is part of your Constitution, (Const, art. 1, sec. 8, clause 10,) and second, that such Constitution is to its States, at least, as much “supreme law” as the international code is law to the civilized States which are under its sway—I here only show that these law-defying communities in rebellion cannot be “States,” unless our Union has lowered and debased the world’s “legal idea” of a “state.”
What, then, is required to constitute a State by the law of nations?
We answer:
1. “A fixed abode and definite territory belonging to the people who occupy it.” (Wheaton, 33.)
2. “A society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength.” (Ib. 32.)
3. “The legal idea of a State, necessarily implies that of habitual obedience of its members to those in whom the superiority is vested.” (Ib. 33.)
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This third necessary element of a State is the only important one in this discussion. Hence, I add the following high authorities:
Grotius, (book 3, chapter 3, section 2,) says:
“The law, especially that of nations, is in the State as the shoulder is in that of the human body, for that being taken away it ceases to be a State.”
Burlamaqui, (volume 2, page 25,) in defining a State says:
“It is a multitude of people united together by a common interest and common laws, to which they submit with one accord.”
I might add to these all the writers on public law for centuries, in confirmation of what is self-evident without proof, that there can be no State where the people do not habitually obey the laws. For four hundred years the unanimous conscience and common sense of the civilized world has refused to recognize the existence of a people who were habitually disobedient to their own laws, or the law of nations. Such a people is blotted out.
Now, surely, if habitual obedience to law “was necessary to the legal idea of a State,” even under the vague and general precepts of the international code, it will not be insisted that habitual, persistent, and universal disobedience will be tolerated by the well-defined, express, and rigorous provisions of the American Constitution in the citizens of one of its States.
Shall that position be tolerated which admits that the law of nations will expel from its union and blot from existence an habitually lawless people, and yet the law of our Union permit such a State to govern it? Shall a Union, permit such a State to govern it? Shall a Union, whose Constitution and laws in every single great attribute of national sovereignty are the supreme law of these States and their people, recognize and be ruled by a people who unanimously, habitually, persistently, and for years disobey and defy these laws?
Can it be that for four centuries the united conscience and judgment of the civilized world shall prohibit the existence upon the earth of such a monster as a State whose people are habitually lawless, and then shall it be left for our “more perfect Union” to establish “States” which although they cannot commence their existence until every officer and minister of that State shall swear to support the Constitution of the United States, as the supreme law of the land, yet shall continue to be States after every officer of such State had discarded such oath, and every inhabitant had, for years, defied and discarded these “supreme laws?”
In the lights of the public law of the world let this Congress answer the startling question, whether an organized rebellion has come to be an organized “State;” whether “habitual” treason has come to be “habitual obedience to law;” and whether the legal “idea of a State” has come to be a synonym for chaos, in which are commingled, in unalleviated political ruin, the absolute overthrow of all its “supreme laws,” the wreck of all loyal constitutions, laws, and forms of government, and the death or exile of every inhabitant who admitted the existence of such loyal State!
Surely, Mr. Chairman, it is not too much to say that even under the settled precepts of public law those eleven districts, called “confederate States,” ceased to be States. In them, during so many dark years, there was no obedience to law except the law which compelled the defiance of all “supreme laws;” there was no government except that one which consisted in enforcing disloyalty to Government; there was no observance of the “law of nations,” unless that is to be found in indiscriminate and remorseless assassination or murder of every loyal man whom their treason could reach either by means of the dagger, the torpedo, the poisoned food, the bandit, the violations of truce, or the systematized destruction of prisoners of war. Their body-politic was one gigantic treason, made up of eleven organized rebellious, combined into one by the force of a relentless military despotism.
But, sir, the unexampled magnitude of these interests involved impel me on to what are, if possible, more conclusive arguments. I go from the public law to the Constitution.
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WHAT IS A STATE OF THIS UNION?
Now we proceed to inquire what, if anything more, is required to make a State of this Union than is requisite to constitute a State under the law of nations. Brazil is a State, but is not a State of this Union. That which is required to be added to the properties which belong to every State, in the sense of the international law, in order to constitute a State of our Union, is—
1. Its citizens muse owe, acknowledge, and render supreme and habitual allegiance and obedience to the Constitution, laws, and treaties of the United States in all Federal matters, these being the supreme laws to the States and their citizens. (Constitution, article 6.)
2. All “the members of the State Legislatures, and its executive and judicial officers, shall be bound by oath or affirmation to support the Constitution” of the United States. (Article 6.)
3. That the United States shall have so “admitted it into this Union” (article 5, section 3) as to have assumed “to guaranty to it a republican form of government, and to protect it against invasion, and,” on application, “against domestic violence.”
4. And by such recognition and “admission into this Union” to have secured to it, as a body-politic, or “State,” certain rights of participation in the control of the Federal Government; which rights I shall name hereafter. (See also 1 Bishop on Criminal Law, sections 128 to 137, inclusive.)
No one who can read the Constitution will deny that each State in this Union must have every one of these properties before it can commence to exist in the Union; because the Constitution so declares. Now the question I consider is, whether it shall continue to be a State, in the sense that it holds the powers and rights of a State, after it has lost every property which it must have before it could commence to exist in the Union.
DOES THE CONSTITUTION DEAL WITH STATES?
The gentleman from New York [Mr. RAYMOND] says:
“The Constitution does not deal with States except in one or two instances, as the election of members of Congress and the election of electors of President and Vice President.”
This statement involves an error both of fact and law which, considering its highly intelligent and patriotic source, is amazing. Now, sir, reading English will correct this error. Turn to the Constitution. It deals with States, in the way of imposing restraints and obligations upon them as States, in the following matters: regulating commerce among the States; requiring Representatives, also United States Senators, to reside in their respective States; prohibiting States from entering into any treaty, alliance, or confederation, coining money, emitting bills of credit, making anything but gold and silver coin a tender for debt; passing any bill of at-
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tainder, ex post facto law, or law impairing the obligation of contracts; from taxing imports or exports without consent of Congress; from laying tonnage duty; from keeping troops or ships of war in time of peace; from entering into any compact with another State or foreign Power; from engaging in war unless invaded or in imminent danger thereof; from refusing to give full faith to records, &c., of other States; from refusing to surrender fugitives from justice or labor; in requiring States to be tried in the courts of the United States; requiring all their officers to take an oath to support the Constitution; requiring them to pay State’s proportion of direct taxes; in prohibiting “either” State from conferring any other emolument upon the President than his salary; in requiring them to furnish, at command of the President, their militia; and in subordinating their “judges,” “constitutions,” and “laws” to the Constitution, laws, and treaties of the United States as “the supreme law of the land.”
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It secures rights and confers powers upon the States as States in each of the following respects. It secures to each the right to elect at least one Representative, to elect two Senators, to cast one vote in ratifying constitutional amendments, and in calling a convention to make such amendments; to cast one vote in electing a President in the House, to appoint in such manner as the Legislature thereof may direct electors to elect a President and Vice President, to fill by appointment vacancies in Congress, to demand that “in the regulation of commerce no preference shall be given to the ports of one State over those of another,” in securing equal immunities to their respective citizens, in having guarantied to them republican governments, in being protected against insurrection and domestic violence, in securing them from being divided, &c., and in enabling them to define the qualification of electors for United States officers by fixing that of the most numerous branch of the State Legislatures.
My object, Mr. Chairman, in reciting these fifty or more supremely important provisions of the Constitution, in every one of which it is evident, both by the nature and express terms of the provisions themselves, and by the innumerable adjudications of the courts, that the Constitution “deals with” the States, as such, was not the frivolous one of showing that there were more than “one or two” of these. My purpose was the higher one of showing how baseless that argument was which was based upon the assertion that the Constitution did not deal with States but individuals only, and that, therefore, not the States, but only individuals could lose their rights under such Constitution. I wanted not only to show the argument baseless but that its precise opposite is the exact truth. I wanted to show that the very body, soul, life, and essence of the Constitution is penetrated, pervaded, and characterized by and with this recognition of the States, and of their high powers as such. I wanted to bring into view the momentous and controlling fact which disposes of this high constitutional question, that the States are not only “dealt with” by the Constitution, but that their powers as States in our Government are absolutely vital. An I separated the obligations and restraints imposed upon the States and their officers from the conferments of rights and powers upon them, that it might appear to all men and to the very children who can read their Constitution, that, in this marvelous great scheme of Government, as well as in God’s, the enforcements of obligation are coupled with and inseparable from the enjoyment of rights; that prescribed qualifications for the attainment of power must be possessed and proceed, and are inseparable, from the exercise of power. I wanted to show that there could be, under the Constitution, none of the rights or powers of a State where there were recognized none of the obligations or duties of a State.
Sir, how long may this nation survive with a Senate elected by rebel Legislatures; or with treaties made by Senators chosen by rebel States; or with a President selected by electors chosen by the Legislature of South Carolina; or with a President elected in a House of Representatives where each rebel State casts one vote; or with a House of Representatives elected by electors whom a rebel legislature would authorize to vote; or with officers over United States forces appointed by rebel governors; or with such constitutional amendments as would b ratified by rebel legislatures; or with a traitor for President whom you could only remove by the impeachment of a Senate elected by rebel legislatures; or with such foreign ministers and other officers of the United States as such a Senate would confirm; or with a prohibition upon your closing the ports of the eleven rebel States to a commerce supplying them with all the supplies of war, unless you also closed all the ports of the other States?
Sir, if the recital of these powers which the States, as such, hold in governing this Union, does not prove that a State in rebellion, and whose government and the people are in actual hostility to the United States, is not a component part of this Union, during the continuance of such rebellion, for the purpose of exercising any power, then such recital does prove other things. It proves that “Independence Hall” was a mad-house from the 14th of May to the 17th of September, 1787; and that the madmen there succeeded in devising a framework of Government embodying it it a larger number of separate and fatal instruments of self-slaughter that was ever combined in a Government before, or than was ever dreamed by men who make Utopias, or by them who form governments in Bedlam.
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CONGRESS HAS ASSUMED THAT REBEL STATES HAD NO RIGHTS AS STATES
I admit that the action of this Government was not, at all times during the war, harmonious nor consistent upon the matter of according rights to rebel districts. It would have been strange, indeed, if all such action, done, as it was, in the midst of the awful events of such wars, revolutions, and breakings up of the systems of governments, had been consistent upon any subject. Besides, as mere measures of war, there was constant temptation to err, if at all, in the direction of according to loyalty in the insurrectionary districts every possible protection and power, to the end that it might be developed into support of a Government staggering to its fall under the blows of treason.
But still the most solemn and deliberate action of your Government in all its departments, and recently all its actions, proceeds upon the assumption that these rebel States had lost all the rights of States.
Among these acts may be mentioned those of July 13, 1861, and 30th of same month. These have been held to be acts “regulating commerce,” (11 American Law Register, 419,) and they close the ports of the rebel States to all commerce and capture their ships upon the seas. And yet if these southern ports were ports of States having the rights of States, you could not only not close them “in regulating commerce,” but you could give no port any preference over them. Again, in every revenue and tariff act which you passed in regulating commerce and the revenue since the war began, you have not only “given preferences” against the southern ports, but you have provided for their being totally shut to all commerce. Could you provide in a tariff bill that the ports of New York shall be open, and those of Massachusetts closed?
These are only examples.
POSITION OF THE PRESIDENT
The President has assumed that the rebel States ceased to be States in the sense I am considering.
Jefferson Davis was captured May 9, 1865; and the last army of the rebellion was surrendered by Kirby Smith to General Canby, 26th of May, 1865. Then the military power of the rebellion was extinct, and actual war was ended, and the necessity for resort to mere war powers and expedients ceased. Then, too, the laws and constitutions and powers of State governments of these States sprang into life and force if they were only put into abeyance by the war and could all come back into life and force when the war was gone.
On the 29th of May, 1865, these old State constitutions had either come to be in force or they had not. If they were in force at all, then all their provisions were in force and binding, just as much as New York’s constitution was; and could only be changed in the mode prescribed by themselves. Is it competent for the United States to order New York to call a convention and change her constitution? Is it competent for the United States to order it changed in a way in total disregard to the modes of amendment which it prescribes as the only ones by which it can be amended?
Now what has happened in these rebel States? Take one example as a specimen of all. On the 29th of May, 1865, President Johnson issued a proclamation appointing Holden provisional governor of North Carolina, and ordered him, under prescribed rules, to call a convention for “altering or amending the constitution of North Carolina,” &c. But then that constitution of North Carolina prescribes how alone it can be altered. This mode is by bill read three times and voted for by three fifths of the members of each branch of the Legislature; then this bill must be published for six months before the election of the next Legislature; then the next Legislature, by a two-thirds vote in both Houses, must again approve the amendment; and then it must be approved by a majority of the voters of the State; and then it is part of the constitution. The convention ordered by the President is wholly unknown to and in violation of the old Constitution; and if it was in force at all on the 29th of May, it could no more be altered in that way than the constitution of England could. He ordered a convention, he directed who should vote, who should be eligible to sit in the convention, and what oath they should take; every one of which orders would have been in flagrant disregard of the constitution and laws of North Carolina, if, on that day, she had any.
Precisely the same thing, in principle, has occurred in every rebel State except, perhaps, three. By presidential proclamations new governments have been professedly called into existence since the war was ended, and since the old constitutions and laws were revived out of abeyance, if they did revive. In every one the new constitutions and governments have been formed in almost total disregard of the provisions of the constitutions which they profess to amend. Now, it is exactly impossible to comprehend the action of the Executives except upon the assumption that these State constitutions and their governments had not revived so as to control the methods of their own amendment.
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No, no, Mr. Chairman, the President himself tells the country, in the notable words of his proclamation, where it is that he deems that he gets this power to order States into existence. His words are, “Whereas the fourth section of the fourth article of the Constitution of the United States declares that the United States shall guaranty to every State in the Union a republican form of government, I, Andrew Johnson, President and Commander-in-Chief,” &c. Sir, here is an unmistakable avowal of the source of his power and of the cause that called that power forth. If the old government and constitution of North Carolina had in fact come back to her out of the suspended animation which the rebellion had caused, then she on this 29th day of May already had a republican constitution, and it needed no alterations to make it republican nor to guaranty one to her.
Sir, let be not be misunderstood. I am not point to these acts of the President as wrong, but to show that the President has dealt with this great question precisely in the view I maintain, to wit, that these old State governments were so effectually overthrown that they do not come into force at the end of the war so as to
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furnish the basis of republican governments to these States; and that it has become the business of the United States to guaranty such governments to them. They attack the President who hold that in these acts of the Executive, in creating new constitutions, he did so in violation and disregard of living constitutions and republican governments already there. I do not attack him. If, indeed, these old State constitutions had, on the 29th of May, 1865, resumed their sway over these States, as the new champions of the President in this House allege, then indeed has the man they champion, in disregarding and superseding these constitutions, become usurper. Well may the patriotic executive head of this nation repent once more the chronic prayer which, in all ages, weak adulation has extorted from men in power, “Deliver me from my friends.”
SUPREME COURT’S POSITION
But I go on. I now show that the third or judicial branch of the Government is, by solemn and unanimous judgments, twice repeated, committed, in principle, to the same exact conclusions.
But in presenting these high arguments—the judgments of the Supreme Court—let me make them at once serve the double end of making utterly conclusive and complete the position that a State may cease to have the governing rights of States by reason of rebellion, and of also answering what is urged so much as to the logical and practical consequences of that position.
An able statement of these objections has been laid on our table. Their effect is—
1. That it admits that a State may secede
2. That, as a consequence of this, Jefferson Davis cannot be punished for treason any more than the Governor of Canada could be.
3. That if we admit the rebels “were to be regarded as belligerents,” then when we take them back we become liable for their debts.
4. That individuals and not the States forfeit their rights by treason.
In enforcing these objections my friend from New York [Mr. RAYMOND] says:
“If they were out of the Union, when did they become so? They were once States in the Union. If they went out of the Union it was at some specific time and by some specific act.”
Before the Supreme Court shall be made to answer, as it will, each one of these objections, permit me, Mr. Chairman, to allude to them; and first to this question about the “specific act,’ which the gentleman from New York [Mr. RAYMOND] asks. In respectfully answering his let me ask and answer some questions of similar legal aspect.
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I ask when and by what specific act does “tumult” become “war” in law? I answer, in the language of Chief Justice Marshall, when it, in fact, assumes “warlike array and strength.” What in a civil war is the specific act and time which changes, in law, an “insurrectionary party” into a “belligerent?” I answer, in the language of the Supreme Court, when in fact “the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open.” When, in law, does a revolt become civil war? I answer, in the language of Wheaton, when “the insurrection becomes, in fact, so strong as no longer to obey the sovereign, and to be able by war to make head against him.” When, in law, and by what specific act, did the entire population of Virginia, including the loyal men, cease to be “friends,” and become “enemies of the United States?” I answer, when, in fact, they became “belligerents.”
If these answers by the highest authorities in the world do not still answer what “specific act” deprived South Carolina of every right and power of a State, then I further answer him that it was that specific act which turned her citizens into traitors, took from her the loyal courts, statutes, Constitution, tribunals, officers, and Legislature, and which filled their places with treason and kept it there. And if the gentleman still desires to know the specific time when this happened, it will answer all the purposes of my argument to reply that it happened about four years before the time when he has told us it did, to wit, before she “surrendered.” The destruction and supersedure of all loyal government and law in South Carolina was a fact, not a law. It was this fearful “fact” which made her cease to be a State governing this Union, and not any ordinance of secession.
The distinguished gentleman to whom I have alluded states the fourth objection which I have named in these words:
“The people of a State may, by treason, forfeit their rights, but in a legal point of view they have no power to affect the condition of a State in the Union.”
That is, turned out of metaphysics into English, every inhabitant of a State may, by treason, come to have no political rights or powers whatever as individuals except the right to be hung; but the same individuals, put into a bundle and called a body-politic or State, have all political rights and powers, and can govern this Union! Now, a plain man would have difficulty in being able to see a living, acting, ruling State where there was no constitution, court, or law, and where there were no inhabitants, all these having been hung for treason. Such a man would be dull enough to conclude that if you hung for treason all the people required to make up the body-politic called a State the State would at least be in affliction.
But, Mr. Chairman, it was unfortunate for this distinction between the political State and its people that it has repeatedly encountered the ordeal of the Supreme Court and has been utterly discarded by it.
In 3 Dallas, 93, that court says:
“A distinction is taken at bar between a State and the people of a State. It is a distinction I am not capable of comprehending. By a State forming a republic, (speaking of it as a moral person,) I do not mean the Legislature of the State, the Executive of the State, or the judiciary, but all the citizens which compose the State, and are, if I may so express myself, integral parts of it, all together forming a body-politic.”
The same repudiation of a distinction between a body-politic and its individual members is in the “Prize Cases” hereafter cited.
Two years before the objections I have quoted were so ably uttered, they had been pressed, with learning, zeal, and ability equal to his, upon the consideration of the Supreme Court in these “Prize Cases,” (2 Black, 635,) and had been discarded unanimously by that court, nine judges sitting, including Taney. I say it was unanimous because all the court agree that after the passage of the act of Congress of 13th July, 1861, recognizing the existence of the war, every inhabitant of the rebel States became “enemies” of the United States and “belligerents.”
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I affirm that the reasoning and judgment of this case settle and establish each one of the following propositions:
1. From the seventh paragraph of the Syllabus (page 636) I quote and affirm that the late “civil war between the United States and the so-called confederate States,” had “such character and magnitude as to give the United States the same rights and powers which they might exercise in the case of a foreign war.”
2. From the ninth paragraph of the same Syllabus I quote and affirm that “all persons residing within the territory occupied by the hostile (rebel) party in this contest were liable to be treated as enemies though not foreigners.”
3. I affirm again, quoting from the opinion of the court (page 673) that “it is a proposition never doubted that the belligerent party who claims to be sovereign may exercise BOTH belligerent and sovereign rights.”
4. I affirm that precisely the same objection was urged in this case as those I have quoted; and were stated by the court in these words, “that insurrection is the act of individuals and not of the government or sovereignty,” and “that the individuals engaged are the subjects of law,” and “that secession ordinances are nullities and ineffectual to release any citizen from his allegiance.”
To these objections the Supreme Court replies:
“This argument rests on the assumption of two propositions, each of which is without foundation upon the established law of nations. It assumes that where a civil war exists the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, though the revolutionary party may.”
Again the court replies to those objections in the following words, the court italicising the words:
“In organizing this rebellion they have acted as States claiming to be sovereign over all persons and property.”
In December, 1865, the ten judges (2 Wallace, 404) unanimously decided the same thing; that all the inhabitants, guilty and innocent, became belligerents and “enemies” of these United States.
The results of these two decisions are that these rebel States,
1. Acted as States in organizing the rebellion.
2. That all their citizens, innocent and guilty, were thereby made “enemies of the United States.”
3. That though they became “enemies” that did not make them “foreign” States so as that when we take them back we must pay their debts.
4. That, as the court decides that the United States may exercise over these people both “belligerent” and “sovereign” rights, therefore we may, as sovereign, try Davis for treason, although we did treat and hold these States as an “enemy’s” country.
5. As these States became “enemies’ ” territory, and all persons residing within it became “enemies of the United States,” they cannot at the same time have been a people having any political rights to govern in this Union, unless indeed this Union can be governed by a body of people, every one of whom are held by its law to be the “public enemies of the United States.”
Mr. DEMING. I would respectfully ask my friend from Ohio if he has any authorities on his minutes for the purpose of vindicating the position that the sovereign in a civil war may exercise both sovereign and belligerent rights?
Mr. SHELLABARGER. If I understand the exact legal purport of the question asked by the distinguished gentleman, (and in reference to pure legal questions he knows as a lawyer right well that he who speaks on legal questions must talk well or not talk at all,) I answer that I find authority in the prize cases to which I allude, that a sovereign may exercise both belligerent and sovereign rights.
Mr. DEMING. I recognize the force of the decisions in the prize cases, but I appeal to my friend for the purpose of ascertaining whether he has fortified that opinion which he expresses, that in a civil war the sovereign may exercise sovereign as well as belligerent rights, outside of the authorities quoted in the prize cases.
Mr. SHELLABARGER. I now apprehend the question of the gentleman, and I thank him for asking it, for it furnishes me an opportunity of saying that I have looked through the authorities on this subject, and in the modern and respectable authorities of the world I find no dissenting voice. The doctrine will be found not only in the text and notes of Wheaton, but in Vattel, in Ward, in Halleck, and Bello.
Mr. DEMING. I would ask my friend if he has looked over the notes in Lawrence’s Wheaton for the purpose of seeing the conflicting authorities which Lawrence there quotes on this specific point; that is to say, in a civil war it is incompetent for the sovereign to exercise both civil and belligerent rights.
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Mr. SHELLABARGER. I answer the gentleman that I have looked through those notes carefully and thoroughly, and that while, if my memory is not now at fault, I find some unimportant conflict of authority, I do not find any conflict that at all impairs the force of settled law as established in the prize cases.
Sir, it is a weak and inadequate statement of the truth to say that he mocks the law, offends the loyal sense of the people, and insults their common sense who affirms that that people or those States had any rights of government in this Union, every man, woman, and child of whom have been pronounced by two unanimous judgments of the Supreme Court of the Republic to be, in contemplation of the supreme law
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of that Republic and of the law of nations, the public enemies of the United States.
Does the gentleman yet ask for “the specific act” that deprived these States of all the rights of States, and made them “enemies?” I once more answer him in the words of the Supreme Court that the specific acts were, they causelessly waged against their own Government a “war which all the world acknowledge to have been the greatest civil war known in the history of the human race.” That war was waged by these people “as States,” and it went through long, dreary years. In it they threw off and defied the authority of your Constitution, laws, and Government; they obliterated from their State constitutions and laws every vestige of recognition of your Government; they discarded all official oaths, and took in their places oaths to support your enemy’s government. They seized, in their States, ass the nation’s property; their Senators and Representatives in your Congress insulted, bantered, defied, and then left you; they expelled from their land or assassinated every inhabitant of known loyalty; they betrayed and surrendered your armies; they passed sequestration and other acts in flagitious violation of the law of nations, making every citizen of the United States an alien enemy, and placing in the treasury of their rebellion all money and property due such citizens. They framed iniquity and universal murder into law. They besieged, for years, your capital, and sent your bleeding armies, in rout, back here upon the very sanctuaries of your national power. Their pirates burned your unarmed commerce upon every sea. They carved the bones of your unburied heroes into ornaments, and drank from goblets made out of the skulls. They poisoned your fountains, put mines under your soldiers’ prisons; organized bands whose leaders were concealed in your homes, and who commissions ordered the torch and yellow fever to be carried to your cities, and to your women and children. They planned one universal bonfire of the North from Lake Ontario to the Missouri. They murdered by systems of starvation and exposure sixty thousand of your sons, as brave and heroic as ever martyrs were. They destroyed in the five years of horrid war another army so large that it would reach almost around the globe in marching columns; and then to give to the infernal drama a fitting close, and to concentrate into one crime all that is criminal in crime, and all that is detestable in barbarism, they killed the President of the United States.
Mr. Chairman, I allude to these horrid events of the recent past not to revive frightful memories, or to bring back the impulses toward the perpetual severance of this people which they provoke. I allude to them to remind us how utter was the overthrow and obliteration of all government, divine and human; how total was the wreck of all constitutions and laws, political, civil, and international. I allude to them to condense their monstrous enormities of guild into one crime, and to point the gentleman from New York [Mr. RAYMOND] to it, and to tell him that was “the specific act.”
Now, Mr. Chairman, if the combined forces of the Constitution and the Public Law, the obvious dictates of reason, justice, and common sense, and these enforced by the approval of repeated and unanimous judgments of the Supreme Court can settle for our own Government any principle of its law, then it is established that organized rebellions are not “States,” and these eleven distinct political treasons, which they organized into one, and called it “the confederate States,” had no powers or rights as States of the Union, nor had the people thereof.
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RESTORATION OF THE STATES
If these States lost their powers and rights as States, by what authority and means are they restored? Is it accomplished by mere cessation of war and the determination of the rebel inhabitants to resume the powers of States; or is this Government entitled to take jurisdiction over the time and manner of their return?
I hold that the latter is the obvious truth.
Let it be admitted that these rebel districts may, without the assent of the United States, and without regard to the state of their loyalty, resume, at pleasure, all the powers of States—this Government having no jurisdiction to determine upon the question of their loyalty or the republican character of the new State governments—then we have this result.
There were, during the first years of the war, twenty-three rebel Senators, including Breckinridge and another. That was more than one third of the Senate. These twenty-three in the Senate are enough to deprive the United Sstates of all power ever to make a treaty, or to expel a member from the Senate, or to remove from office by impeachment a rebel Secretary of War like Floyd, or a rebel Secretary of the Treasury like Cobb, or a rebel United States judge like Humphreys, or an imbecile President who thought secession unconstitutional, and its prevention equally unconstitutional, like Buchanan. How long, sir, could your Government survive with a Senate, one third rebel? How long can you live deprived of these posers vital to every Government? Not a week, sir.
But, Mr. Chairman, this is precisely what might have occurred at any day during this rebellion if cessation of war entitles the revolted States to resume the powers of States in defiance of the will of this Government; and it is precisely what may occur to-day if these States be indeed disloyal yet at heart. If, after exhausting “all the resources of war” for the overthrow of the Government, and failing, it is indeed competent for them to abandon these resources, and resort to “the resources of statesmanship, and resume at once the high powers of States in the Union, without the assent of such Government, then there has not been an hour since the rebellion began, and the hour is not now, in which this Government has not literally been in the power and at the mercy of the rebellion.
Is it replied to what has been said in regard to the power for mischief of disloyal Senators in the case which I have stated, expel them? The reply is vain, because the same twenty-three who can prevent any impeachment or the formation of any treaty are also enough to prevent any expulsion under the Constitution.
Is it again replied, exclude these rebels from the Senate under the clause making each House the judge of the elections and qualifications of its members? The reply is obviously frivolous.
[Here the hammer fell.]
Mr. LE BLOND moved that the time be extended.
The motion was agreed to.
Mr. SHELLABARGER. Permit me to express my profound gratitude for this indulgence, on which I will not long trespass.
1. If under this clause you may exclude a Senator duly elected and qualified in every other respect and sense than that he comes from and is elected by disloyal States, then you yield the whole argument, and accord to this Government all the powers of self-preservation which I am insisting upon. The difference is that you find the power of self-protection under a clause by which each House is compelled to judge separately of the election and qualification of its members; and hence you occupy a position where you may have twenty-four States in the Union, in the Senate; thirty-four in the Union, in the House; and Heaven knows how many in the Union for electing a President.
2. If you reply, I will reject these twenty-three rebel Senators, not because their States can elect none, but because they are “rebels,” in the case you put; the reply is vain. When Mason, Slidell, Davis, and Breckinridge last took their seats in your Senate, who knew, or could have proved, that they came there to embarrass and destroy your Government? Could either have been excluded from any known or ascertainable personal disqualification?
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No, Mr. Chairman, there is no escape. If the United States has no power to decide, as a great and sovereign people acting through their Government, what shall be a “State” in her high Union, and cannot determine when, out of the wreck and ruin of old States, have been formed new republican States, based upon the only foundations upon which a republican State of this Union can be built, that of the general consent and loyalty of its people, then indeed is your Government not so much as “a rope of sand.” It is a monster compelled by the organic law of its life to terminate that life by self-slaughter.
But, sir, such is not the law of its life. I have already shown that the President has discarded such conclusions. I now invoke the authority of the highest court of the Republic, and by that I show that it has decided this question also.
I state the effect of this decision in the language of a distinguished law author (see 1 Bishop, Crim. Law, sec. 133.) He says:
“It has been settled by adjudication that it is for the President and the two Houses of Congress to decide whether a particular government within a State is republican or not; and to recognize it if it is, and to refuse to recognize it if it is not, and the adjudication of the matter by them is conclusive and binds the courts and the nation. It is not therefore for any class of persons in a State which has ceased to have a government to set up a government of their own.”
The language of the court is, (7 Howard, 42 and 43:)
“Under this article of the Constitution it rests with Congress to decide which government” of the two set up in Rhode Island “is the established one, for as the United States guaranties to each State a republican government, Congress must necessarily determine what government is established in a State before it can decide whether it is republican or not. When the Senators and Representatives of a State are admitted into the councils of the Union the authority of the government under which they are appointed is recognized by the proper constitutional authority. And its decision is binding on every other department of the Government.” * * * * * “Undoubtedly a military government established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it.”
Mr. Chairman, here I must close.
If it is asked me now, granting your position that these States in revolt ceased to have any powers of government in the Union, still have not new ones been reorganized safe and fit to resume these high powers? I answer, sir, the question, “is it safe, and are they fit,” are the stupendous facts now on trial by the American Congress. It was the whole end of the feeble argument which I have concluded to vindicate my Government’s power to take jurisdiction of this inquest and hold this trial.
But if I am demanded by what standard of fitness, and what guarantees for safety, Congress shall decide these great facts now on trial, it will serve all the purposes of this argument and this hour to reply that in the true and high sense and spirit of the memorable words of the President of the United States I find a fitting answer. He says:
“No State can be regarded as thoroughly organized which has not adopted irreversible guarantees for the right of the freedmen.”
Mr. Chairman, let this noble utterance—“irreversible guarantees for the rights” of American citizens of every race and condition—be written with pen of iron and point of diamond in your Constitution. Let it thus be made “irreversible” indeed, by the action of the State, in the only way it can be made irreversible; and then, to establish this and every other guarantee of the Constitution upon the only sure foundation of a free republic—the equality of the people and of the States—make, by the same organic law, every elector in the Union absolutely equal in his right of representation in that renovated Union, and I am content.
Let the revolted States base their republican State governments upon a general and sincere loyalty of the people and come to us under the guarantees of this renewed Union, and we hail their coming and the hour that brings them.
If you ask again, “Suppose such general loyalty should never reappear, shall they be dependencies forever?”
Sir, convince me that the case is supposable, then with deepest sorrow I answer—FOREVER!
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Mr. DEMING obtained the floor, and moved that the committee arise.
The motion was agreed to.
So the committee rose; and the Speaker having resumed the chair, Mr. WASHBURNE, of Illinois, reported that the Committee of the Whole on the state of the Union had had the Union generally under consideration, and particularly the annual message of the President of the United States, and had come to no conclusion thereon.
And then, on motion of Mr. DEMING, (at four o’clock p. m.,) the House adjourned.
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HOUSE OF REPRESENTATIVES
January 9, 1866
RECONSTRUCTION
Mr. BROOMALL. I submit the following resolution, and call for the previous question upon its adoption:
Resolved,
1. That the termination of the recent civil war has left the inhabitants of the territory reclaimed from the late usurpation in the condition of a conquered people, and without political rights.
2. That as a legitimate consequence the relation of master and slave among them is destroyed, and that it is not within the province of civil law ever to revive it.
3. That the future political condition of these people must be fixed by the supreme power of the conqueror; and that the effect of amnesty proclamations and pardons is to relieve individuals from punishment for crime, not to confer upon them political rights.
4. That it is not the interest of the Government that these people shall remain in their present unorganized condition longer that is necessary for their own good and the good of the country.
5. That Congress should confer upon them the necessary power to form their own State governments and local institutions, but that this cannot be done until the rights of those among them, of whatever caste or color, who remained always true to their allegiance, are effectually protected and guarantied.
6. That it is the paramount duty of the Government to guard the interests of all within the conquered territory who rendered no willing aid or comfort to the public enemy; and if this cannot otherwise be done, Congress should organize State governments composed of these alone, and forever exclude from all political power the active and willing participants in the late usurpation.
Mr. CONKLING. I rise to a point of order. My point is that the subject embraced in this resolution relates to the question of reconstruction, and it should therefore be referred without debate to the joint committee upon that subject.
Mr. GRINNELL. I would suggest to the gentleman from Pennsylvania [Mr. BROOMALL] to permit this resolution to be referred to the joint committee on reconstruction. It embraces different propositions which, I think, should be considered by that committee.
Mr. SCOFIELD. I would inquire of the Chair whether, should the previous question be seconded, a division of the question can be demanded, in order to have a separate vote on each branch of the resolution.
The SPEAKER. It can be divided. But the Chair will state that he sustains the point of order raised by the gentleman from New York,[Mr. CONKLING.] This resolution relates so evidently to the subject of representation, that it will be referred, under the rule, to the joint committee on reconstruction with debate.
Mr. ASHLEY, of Ohio, moved that the resolution be printed.
The motion was agreed to. [snip]
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POLICY OF THE PRESIDENT
Mr. VOORHEES. As the morning hour has expired, I call up the resolutions submitted by me before the recess, and postponed to this day after the morning hour.
The resolutions were read as follows:
Resolved, That the message of the President of the United States, delivered at the opening of the present Congress, is regarded by this body as an able, judicious, and patriotic State paper.
Resolved, That the principles therein advocated for the restoration of the Union are the safest and most practicable that can now be applied to our disordered domestic affairs.
Resolved, That no States or number of States confederated together can in any manner sunder their connection with the Federal Union, except by a total subversion of our present system of government; and that the President in enunciating this doctrine in his late message has but given expression to the sentiments of all those who deny the right or power of a State to secede.
Resolved, That the President is entitled to the thanks of Congress and the country for his faithful, wise, and successful efforts to restore civil government, law, and order to those States whose citizens were lately in insurrection against the Federal authority; and we hereby pledge ourselves to aid, assist, and uphold him in his policy which he has adopted to give harmony, peace, and union to the country.
Mr. STEVENS. I raise the point of order that these resolutions relate to reconstruction, and therefore must go to the joint committee on that subject without debate.
The SPEAKER. The point is taken entirely too late, in the opinion of the Chair. These resolutions were introduced before the late recess, were considered by the House, and then were postponed without objection to this day, after the morning hour.
Mr. VOORHEES. Mr. Speaker, I arise to-day to discuss the annual message of the President. In doing so, I am aware that to the majority on this floor I may appear as a meddler in a family concern. It would seem from the remarks of members here, and the comments of the press in various quarters, that the right to approve or disapprove the policy of the Executive is the exclusive monopoly of the two new belligerent wings of the dominant party. Indeed, I believe it is a new and very dangerous phase of disloyalty for one of the minority to have any opinion at all on the subject. I cannot, however, accept this position of silence and inactivity. Not that I wish to bring any reenforcements which are not sought to the aid of either of the jarring factions on the opposite side of the Chamber, but as a citizen loving my country, and as the Representative of a large and enlightened constituency, it is my duty and my right here to advocate what in my sight seems best as a remedy for the evils which surround us. And if this sense of public duty leads me to adopt and defend the policy of the Executive, what offense can it be to his real or pretended friends in this body? How indignant we were in the days of our childhood over that dog in the manger, who would neither enjoy the comforts and blessings of life himself, nor let anybody else do so! And here in our mature manhood we behold the same principle of action adopted by a great party. It refuses to indorse the President of its own election, and
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growls and fiercely shows its teeth if any one else proposes to perform that neglected duty. [snip]
And now, Mr. Speaker, what are the issues which are submitted to the country by the policy of the Executive as declared in his annual message? [snip]
Sir, history tells a melancholy story of usurpations at such periods. They are the opportunity of tyrants and mad, impracticable innovators. He who wishes to mount to imperial power on the ruins of civil liberty, or by a change in the form of the Government to carry out schemes of private hate or Utopian speculation, would embrace the month of April, 1865, in American history as the point from which to deal destruction. But starting from that point, what direction did the President pursue? There are many matters of minor detail for which subordinate officials are mainly responsible, which I might wish widely different, but I am now dealing with the main question of restoration. Upon his first utterance he gave notice of the doctrine, then as now, that the American Union had never been broken, and that its States had never ceased to exist. This gave assurance to the country at once that he was a conservative and not a destructive, a restorer of an ancient order of things and not a destroyer in the name of progress and reform. How can I fail to support him in this position, when my own language, March 9, 1764, in the midst of the sound of arms, was as follows? I quote from a speech delivered by me in this House:
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“The great leader of the Administration on this floor, the gentleman from Pennsylvania, [Mr. STEVENS,] has deliberately here announced, after all our sacrifices, sorrow, and loss, that the Union of our fathers is dead, and that he who attempts its resurrection is a criminal instead of a patriot. He goes further, and admits all the seceded States have ever claimed—their nationality. They have sought in vain in all the four quarters of the earth for recognition. They find it at last at the hands of those who speak for the Administration on this floor.
“Sir, I deny this doctrine. I plant myself on the Constitution, which recognizes an unbroken Union. I shall stand there in every vicissitude of fortune, and if I fall it will be when the people themselves abandon their own Constitution. By the principles of this mighty instrument I expect finally a restoration of the union of the States. Every hour which the party in power prolongs its control of affairs postpones the auspicious day; but as I behold the future it will assuredly come. Material and indestructible interests unite every section except that which prospers on fanaticism. And I here to-day, in the spirit of one who expects and desires his posterity and theirs to live together in the ancient and honorable friendship of their fathers, warn the southern people not to look forward to separation and independence, but to embrace every opportunity for cooperation with the conservative men of the North, who will aid with their lives, if need be, to secure them all their rights and institutions as free and equal citizens of the United States.”
This doctrine is the chief corner-stone of the message, and has invited the attack of theoretical reform, but practical disunion. Shall I stop at this day and hour of American history to discuss the right or power of a State to secede? I never entertained such a principle, nor did even many of the principal leaders of the late attempt to establish the confederacy of the South. They asserted the right of revolution and used the organizations of State governments in aid of that movement. But who now requires an argument on this point? Do we not all understand and know that this theory of dead States is now proclaimed simply because its adoption would give better scope to ulterior designs of vengeance and revolutionary destruction? … The dead can make no protest when the mutilating knife is applied. … This is the highwayman’s doctrine of convenience, introduced here now as a party platform. It is more and worse. It is an assertion that the American Union itself is dead.
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While it claims that the southern States have destroyed themselves, yet it admits that, like blind Samson of old, in their dying agonies they seized hold of the pillars and tore the temple in ruins to its very foundations, and that they in their desolation to-day are only a portion of the general wreck. It is notice to the world that the war to restore the Union was an utter failure—that the war is over and yet the Union is rent in twain. [snip]
But, Mr. Speaker, allow me to inquire whether this opposition to the Executive is not a new discovery, an afterthought, manufactured for a special purpose on the part of those who adhered to and upheld the late Administration of Mr. Lincoln in regard to the continued existence and vitality of the southern States during the late rebellion. Are they not estopped from this assault, as the gentleman from Pennsylvania [Mr. STEVENS] says, “both by matter of record and matter in pais?” In more than a hundred ways and forms, by military orders, in his annual messages, instructions to our foreign ministers, in letters and speeches to his own countrymen, and especially by his numerous proclamations, the late Executive always and at all times recognized the enduring existence of all the States over which the American flag had ever floated. I quote a single passage from the proclamation of emancipation, which, in my judgment, was a usurpation of power, but had at least the merit of not attempting to abolish States:
“That on the 1st day of January, in the year of our Lord 1863, all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
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“That the Executive will, on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”
This was written and promulgated after the passage of every ordinance of secession; when the party in rebellion occupied and held in a hostile manner a certain portion of territory; and declared their independence; had cast off their allegiance; had organized armies; had commenced hostilities against their former sovereign; and yet the gentleman from Pennsylvania and his present followers uttered no dissent to its doctrines. … The late chief of the great party of the North dealt with American States, the people whereof were in rebellion, and not with a foreign Power subject to conquest; and if his memory is sacred to his followers, they should not insult it by pronouncing his policy a delusion and a mockery ere his untimely tomb is fairly closed. [snip]
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Mr. BINGHAM. I am glad the gentleman has made his explanation, for it only makes clearer the position he assumes in regard to that question. The gentleman in his speech has notified the House and the country, assuming the position which he attributes to himself, in the first place, “once a State, always a State” for all purposes; that the rebel States, had always, and have now, a right of representation, and you have no right to exclude them. …. [snip]
Mr. Speaker, everybody at all conversant with the history of the country knows that in the Congress of 1778, upon the adoption of the Articles of Confederation as articles of perpetual union between the States, a motion was made then and there to limit citizenship by the insertion in one of the articles of the word “white,” so that it should read, “All white freemen of every State, excluding paupers, vagabonds, and so forth, shall be citizens of the United States.” There was a vote taken upon it, for our instruction, I suppose, and four fifths of all the people represented in that Congress rejected with scorn the proposition and excluded it from their fundamental law; and from that day to this it has found no place in the Constitution and laws of the United States, and colored men as well as white men have been and are citizens of the United States.
I say, then, to return to the question, having adopted one measure of security for the future, we might as well adopt another, and act upon the suggestion of the President, that hereafter the true intent of the Constitution, which is to secure equal and exact justice to all men, may be carried into effect.
Why, sir, it is a maxim that has come down to us from the infant days of the world that injustice in States is the source of turbulence and resistance to the laws; injustice is the parent of strife and conflict. Oppression makes even a wise man mad. It is a maxim as old as civilization, “for those who do injustice there will be a day of retribution.” I thank the President for reminding Congress of this watchword, “equal and exact justice to all men,” which was familiar to the people in the purer and better days of the Republic. The spirit, the intent, the purpose of our Constitution is to secure equal and exact justice to all men. That has not been done. It has failed to be done in the past. It has failed in respect of white men as well as black men. ….
To be sure, it was not because the Constitution of the United States sanctioned any infringement of his rights in that behalf, but
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because in defiance of the Constitution its very guarantees were disregarded. ….
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When you come to weigh these words, “equal and exact justice to all men,” go read, if you please, the words of the Constitution itself: “The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States. This guarantee of your Constitution supplies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that great instrument. It was utterly disregarded in the past by South Carolina when she drove with indignity and contempt and scorn from her limits the honored representative of Massachusetts, who went thither upon the peaceful mission of asserting in the tribunals of South Carolina the rights of American citizens.
I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State.
Having said this much touching security for the future, allow me to add that I repel with scorn, come from what source it may, the suggestion that I cooperate with any party that proposes to impose an unequal or unjust burden upon any State in this Republic. I know, and, sir, know, and every loyal citizen of this Republic has come to know, that the divinest feature of your Constitution is the recognition of the absolute equality before the law of all persons, whether citizens or strangers; and the equality of every State within the limits of this Republic, subject only to the exception made by reason of slavery, now happily abolished. The President, therefore, might well say, as he does say in his message, that “the American system rests on the assertion of the equal right of EVERY MAN to life, liberty, and the pursuit of happiness; to freedom of conscience, to the culture and exercise of all his faculties.”
I propose, then, sir, by amending the Constitution, to provide for the efficient enforcement, by law, of these “equal rights of every man,” and upon the assertion of which, we are told by the President, the american system rests. In doing this I would impose no restraint upon South Carolina that shall not rest with equal weight upon the State of Ohio. I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction. Who makes objection to that, or who can justly object to it?
These then, are some of the matters that are before this House for consideration. And it strikes me that they pertain quite as much to the House as to the Executive. I undertake to say that the President of the United States will be found cooperating with the representatives of the people in their endeavor to introduce into the Constitution not that which will mar it, but that which will perfect it and enable the people hereafter to secure and reap for themselves and for their posterity forever the great ends for which that Constitution was ordained.
It was ordained to form a more perfect union, but only as a means to the attainment of all its declared purposes. It is a declared purpose of the Constitution “to insure domestic tranquility.” How? By affording protection by law to the rights of all, in every State of the Union, and upon every sea the world over wherever your flag floats. Not merely “to establish a more perfect Union;” not merely to insure domestic tranquility; not merely “to provide for the common defense,” was the Constitution ordained; but also to “establish justice.” It stands written, sir, on the forefront of that imperishable instrument that “in order to establish justice, we, the people of the United States, do ordain this Constitution.” Well might the President demand, as he does demand in his message, “equal and exact justice to all men.” That is precisely what is proposed to be accomplished. [snip]
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With the explanation I have given his words I see no occasion to take issue with the President upon the status of the States in rebellion, but admit that these States remained States through the conflict for Federal purposes; that means that the State lines remained, that the judicial districts remained intact, so that when the war ceased in those States the Government of the United States could administer justice in every one of those States, and try therein all persons for crimes against the United States therein committed. I do not feel disposed to admit, if a citizen of South Carolina were to-day to commit treason against the United States at Charleston, that he could not be there tried for his crime; nor if he committed his crime there last year that he could escape trial when arraigned, on the plea that the district of South Carolina, previously prescribed by the law of the United States, had ceased, either by his treason or by the treason of others, to be a judicial district within a State.
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I never was of that class of persons who believed or assented to the position for a moment, and I do not know if there is any one here who does, that all the people within the limits of that confederacy were alien enemies. According to the Constitution and laws of the United States Government, every man is responsible for his own crime, and not for the crimes of others. So that when the sovereignty of the country comes to be restored—in Virginia and the Carolinas, the judiciary of the United States are bound by their oaths to discriminate between those who contributed by the compulsion of the bayonet to the support of the rebellion, and those who originated it and are the guilty perpetrators of the great wrong. There is a wide difference between Jefferson Davis, the leader of the revolt against the Union, who, to enter upon it, voluntarily broke his oath to support the Constitution of his country, and that poor, poverty-stricken conscript who served the confederacy of traitors only because of compulsion, or to secure thereby his daily bread
I have said enough, I think, on this subject to satisfy gentlemen that the President stands by the great body of this House touching the status of the States. They need reconstruction. Their functions are suspended. Something must be done to give them an equal place in the Union. That is what the President says and what the House says. Who shall judge whether that which it was essential to do has been done at all, and if done, whether it has been done rightly? Who is to decide it? I say it, without waiting to quote authorities, that the loyal people of the loyal States, who saved the Union, and are represented on this floor, are the final judges upon that question, and from their decision there lies no appeal.
Now, Mr. Speaker, having said this much, and a great deal more than I intended to say with I rose, without the slightest preparation, to reply to the carefully elaborated speech of the gentleman from Indiana, I propose to bring this whole question to an issue before the House by offering the following as a substitute for the gentleman’s resolutions:
Strike out all after “resolved,” and insert:
Resolved, That this House has an abiding confidence in the President, and that in the future, as in the past, he will cooperate with Congress in restoring to equal position and rights with the other States in the Union all the States lately in insurrection.
And on that I demand the previous question.
Mr STEVENS. I ask the gentleman from Ohio [Mr. BINGHAM] to consent that this whole subject be referred to the joint committee on reconstruction.
Mr. BINGHAM. Very well, I will withdraw the call for the previous question, and will move that the resolution with my substitute be referred to the joint committee on reconstruction. And upon that motion I demand the previous question.
The previous question was seconded, and the main question was ordered.
Mr. VOORHEES. I call for the yeas and nays upon the motion to refer. [snip]
So the resolutions and substitute were referred to the joint committee on reconstruction.
Mr. CONKLING moved to reconsider the vote by which the House agreed to the motion to refer; and also moved that the motion to reconsider be laid on the table. [snip]
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HOUSE OF REPRESENTATIVES
January 10, 1866
SUFFRAGE IN THE DISTRICT OF COLUMBIA
The House then proceeded to the consideration of the special order, being the bill reported from the Committee on the Judiciary (H. R. No. 1) extending the right of suffrage in the District of Columbia.
The bill was read. It provides that from all laws and parts of laws prescribing the qualifications of electors for any office in the District of Columbia the word “white” be, and the same is hereby, stricken out, and that from and after the passage of this act no person shall be disqualified from voting at any election held in the said District on account of color; and that all acts of Congress and all laws of the State of Maryland in force in said District, and all ordinances of the cities of Washington and Georgetown inconsistent with the provisions of this act, are hereby repealed and annulled.
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Mr. WILSON, of Iowa. I desire to enter a motion to recommit this bill to the Committee on the Judiciary. I do not ask action upon it now.
The jurisdiction of Congress over the subject-matter of this bill is unquestionable. It is the right of Congress
“To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States.”—Constitution, Art. 1, sec. 8.
“Exclusive legislation, in all cases whatsoever,” is the language of the broad and comprehensive grant of power upon which the right of Congress to pass this bill rests. This is too plain a proposition to admit of debate, and I leave the question of power to give my attention to some other considerations connected with this bill which it may not be unprofitable to discuss.
The Constitution not only confers the indisputable power to which I have referred, but it seems also to invite the identical legislation which the pending measure provides. Nowhere in the Constitution do we find class distinctions applied to citizens of the United States. Its ample folds envelop all citizens alike. It in no way develops color of skin as a tenure to the rights and privileges of citizenship. The citizen, be he high or low, rich or poor, white or black, finds the Constitution of his country as full of justice to him as it is to any other. Looking into its bright face as into a mirror, he sees himself reflected a citizen; and of this there is never a failure. This is the crowning glory of our Constitution. The whitest face can draw nothing from that mirror but the image of a citizen, and the same return is given to the appeal of the black face. If ever aught else appears, be sure you are not looking into the broad, bright surface of the real Constitution, for it never varies, never lies. [snip]
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Mr. KELLY obtained the floor. [snip]
Mr. KELLY. What I have to say is unwritten, and I prefer to go on while the glow is on me. Mr. Speaker, in asking the consideration of the House to the bill now before it, I was actuated by no temporary impulse, no gust of passion. I did it in view of the responsibility that rests upon this Congress, and in view of the gravity of the questions which mark the era in which we live.
In preparing to begin the work of reconstructing the grandest of human Governments, shattered for a time by treason, and in endeavoring to ascertain what we should do and how and when it should be done. …. [snip]
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Sir, I am trespassing, perhaps, at too great length, but I am a proud man as an American citizen, whatever I may be personally. I boast of the resources, the powers, the extent of my country, and the enduring character of its institutions, and of the fair and generous character of my countrymen. I cannot bear to be goaded and taunted by those whom I treat as inferiors, with the assertion that in the hour of my danger, when I refused or was unable to fight, they took up my battle and healed my wounded honor. The negroes fought for me, and God forbid that they should ever taunt me, or my descendants with the fact that I was an ingrate to the soldiers of the Republic.
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I hold in my hand a little verse inscribed.
AFRICA TO AMERICA.
In the day of thy need I have battled for thee;
At the hour of thy triumph thou knowest not me.
My blood fed thy rivers, it crimsoned thy sea;
Yet an outcast am I in the “land of the Free.”
The hand that the sword sped the pen may not hold’
Benummbed is the tongue which the war march controlled’
And the foot that stood firm when the cannon ball rolled,
Must flee from the spot where the ballot is polled.
Thy friend was my friend, and thy foe was my foe;
Yet to-day not a friend in thy councils I know.
To the grave marched my slain with a tread not as slow
As the course of the justice thy servants bestow.
The life which ’twixt thy life and treason’s dart flew,
Is felled ’neath thy flag by the traitorous crew,
To the soul that no love but its country’s love knew,
Nor statute, nor scripture, nor conscience is true.
Sir, I cannot bear the thought that that poem should be repeated by African lips in my hearing with truth; or at least that I shall not be able to respond, “That disgrace attaches only to the vulgarly arrogant or ignorantly debased people of our country; the good, wise, and true are all laboring to obliterate and efface it”
Can one reason be suggested for withholding from the Africo-American citizens of this District the right of suffrage essential to republican institutions, to the maintenance of “fundamental principles of the Revolution,” and “dangerous,” as Jefferson said, “to only tyrants?” No. And, sir, the Republican members of Congress are not the only legislators who are pleading for the enfranchisement of the laboring man., Our contest is broader than our continent. We are fighting for and the Democratic party against the enfranchisement of the laboring men of Great Britain. [snip]
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HOUSE OF REPRESENTATIVES
January 11, 1866
Mr. FARNSWORTH. I did not expect, Mr. Speaker, when I came in the House to-day to trouble the House with any remarks at the present time. [snip]
It has been said that the right to vote is not a natural right. I confess that I cannot see why it is not. It is truly said that the right of self-defense is the first law of nature. The right to vote, the ballot, is the freeman’s defense; and if his right to freedom is an inalienable and natural right, then too, is the right to protect that freedom an inalienable and natural right.
The gentleman from New Jersey says that at the time of the organization of this Government and the adoption of the Federal Constitution black men were not regarded as citizens; that this is a white man’s Government and that the fathers who established it had no intention of making a Government for black men. I take issue with the gentleman there. I say that our fathers made this Government for men; not for black men or white men, not for Anglo-Saxons, not for Irishmen, or Germans, or Americans merely, but they made it for men. I take issue with him, too, in his assertion that blacks were not regarded at that time as citizens, and had no part nor lot in the declaration of Independence. Upon this subject of the Declaration of Independence and the understanding and design of the fathers who framed it, I want to call the attention of the House to what Thomas Jefferson said on this subject. It will be recollected, I have no doubt, by most of the members of the House, if not by all, that shortly after the revolutionary war Mr. Jefferson used this language:
“Let it ever be the boast of America that the rights for which she has contended are the rights of human nature.”
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What did he mean by “the rights of human nature?” I suppose the gentleman from New Jersey would say he meant white human nature, the nature of men with fair skins and blue eyes. But we are not left in the dark as to the meaning of Mr. Jefferson in using this phrase. I find in Jefferson’s works, volume one, page 135, this language used by him in reference to slavery:
“But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this by prohibition and by imposing duties which might amount to prohibition have been hitherto defeated by his majesty’s negative, thus preferring the immediate advantage of a few British corsairs to the lasting interests of the American States and to the rights of human nature.”
Again, in speaking of the action of the Legislature of the State of Virginia on the subject of slavery, he used similar language. He says:
“In the very first session held under republican government the Assembly passed a law of perpetual prohibition of the importation of slaves. This will in some measure stop the increase of this great political and moral evil, while the minds of our citizens may be ripening for the complete emancipation of human nature.”
Then Mr. Jefferson meant by “human nature” the nature of man, whether with a black skin or a white skin, whether a slave or a free man. The boast of this country, he said, should be that the rights for which she fought were the rights of man, no matter what his color or clime or condition.
Why, sir, it was not until a few years ago that our Government refused to issue passports to colored American citizens traveling abroad describing them as citizens of the United States. I well recollect to have seen an original passport issued to the servant of John Randolph when traveling abroad, describing him as a “citizen of the United States.” It was not until we had taken our departure from the doctrines of the fathers, long and long after the Constitution was made, that the infamous doctrine crept in that the black man had no “human nature,” had “no rights which white men were bound to respect,” and that none but white men could be citizens of the United States. It is an infamous, a mean, a narrow, a devilish doctrine.
Mr. Speaker, there are some things said by gentlemen upon the other side of the House which deserve only to be answered by ridicule, for they are ridiculous. Among them is this everlasting cry of negro equality and amalgamation. The gentleman from New Jersey spoke of it, and denounced this bill now under consideration as an attempt to place the negro upon a social equality with the whites.
He says this is a white man’s Government. “A white man’s Government!” Why, sir, did not the Congress of the United States pass a law for enrolling into the service of the United States the black man as well as the white man? Did now we tax the black man as well as the white man? Does he not contribute his money as well as his blood for the protection and defense of the Government? Oh, yes; and now, when the black man comes hobbling home upon his crutches and his wooden limbs, maimed for life, bleeding, crushed, wounded, is he to be told by the people who called him into the service of the Government, “This is a white man’s Government; you have nothing to do with it?” Shame! I say, eternal shame! upon such a doctrine, and upon the men who advocate it!
But “negro equality” is the bugbear which frightens gentlemen. The gentleman from New Jersey says that if we give the blacks of this District the right to vote, the first thing we will know will be that a black man will be elected mayor. Well, sir, if it be true, as the other side of the House contend, that it is necessary to have discriminating laws to oppress the black man in order to prevent his rising to an equality with the white, then it is rather a confession of his superiority than of his inferiority. If you are afraid he will rise, should he have a fair chance, to an equality with the white man, and beat him in the competition for office under as free a Government as ours, and therefore you must oppress him still more by discriminating legislation in order to prevent that, then he is superior to the white man and not his inferior.
I am inclined to think it is true that if we confer upon the black man the right to vote and the right to hold office, we will be more likely to have other men sent to Congress than some who have held seats here. And even if it were true that they would send one of their own race here, I would still vote for it. For on the whole, however my reputation for good taste might be called in question by some, I would prefer to sit by the side of Fred. Douglass in this Hall rather than by the side of Fernando Wood, for instance. [Laughter.] I believe it is not out of order to call names in this case, and if there is any offense I will answer for it to Fred. Douglass.
“Negro equality” is the everlasting skeleton which frightens some people. There is a class of men, and they mostly vote the Democratic ticket, who are afraid, if we confer upon the negro equal rights and privileges with themselves, there will no longer be left and race or class of men in the United States who will be their inferiors, and I think they are right about that. It is very natural for men to look down upon some one; almost every man prefers himself to others, and thinks at least that he is superior to some other man in many respects. That is a natural element in a man’s nature, that of self-love. Men are very fond of considering themselves a little elevated above somebody else, and if we confer upon the black race the right to vote and hold office equally with these men there will be nobody left for them to look down upon and say “You are beneath me.”
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And the gentleman from New Jersey [Mr. ROGERS] refers to another bugbear with which to scare ignorant people, that of amalgamation. He recites the statutes of various States against the intermarriage of blacks and whites. Well, sir, while I regard that as altogether a matter of taste, and neither myself nor my friends require any restraining laws to prevent us from committing any error in that direction, still, if my friend from New Jersey and his friends are fearful that they will be betrayed into forming any connection of that sort, I will very cheerfully join with him in voting the restraining influence of a penal statute. I will vote to pun-
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ish it by confinement in the State prison, or, if he pleases, by hanging—anything rather than they should be betrayed into or induced to form any such unnatural relations. As for my own side of the House, we have no fears of that kind. Amalgamation is an outgrowth of slavery. It is where slavery has existed that you find it, not where the negro is free and has the right of self-protection.
Prejudice against the black man depends very much upon the status of the black man. It is singular phase of character in reference to this subject of prejudice, that the prejudice is tenfold stronger against the free black man than it is against the slave. If the black man is only a slave, and in what the gentleman from New Jersey [Mr. ROGERS] denominates his proper condition, then he has no prejudice against him. You will find no prejudice in the minds of the people South against riding in the same coach or car with the black man, if only he is a slave and traveling with his master. But knock the shackles off his limbs, clothe him well, and give him the rights of a free man, and at once these people will turn up their noses and say, “Humph! niggers in the cars; I won’t ride with niggers.” I recollect, some years ago, before we had horse railroads, I used to see, in this very city, a white lady riding in an omnibus, with a poor ragged slave girl carrying her child, sitting by her side. The poor slave girl was ragged and dirty, but she was a slave. The other day I saw that same woman get up in high dudgeon and flaunt out of a street car because a respectable, tidy, well-dressed, free colored woman came into the car to ride.
Prejudice, after all, is not so much against color as condition. People have no objection to riding in a carriage with a black man, if he sits forward and drives the horses. In that case he is considered as in his proper position, and there is no prejudice against associating with him; he has no bad smell. But the moment he takes a back seat, the olfactories of some people are greatly offended. This prejudice, too, has all grown out of slavery. There is no natural prejudice against color. Little children have none of it until they are told frightful stories of “horrid black men” by their nurses, to frighten them. Oppress and degrade any class of people for a long series of years, by unjust and unequal laws, and you will array against them the same prejudice.
What should be the test as to the right to exercise the elective franchise? I contend that the only question to be asked should be, “Is he a man?” The test should be that of manhood, not that of color or race or class. Is he endowed with conscience and reason? Is he an immortal being? If these questions are answered in the affirmative, then he has all those essential attributes of manhood that are possessed by the gentleman from New Jersey, or any other man; and he has the same right to protection that we all enjoy.
I am in favor, Mr. Speaker, of making suffrage equal and universal. I believe that the greatest wisdom is concentrated in the decisions of the ballot-box when all citizens of a certain age vote than when only a part vote. If you apply a test founded on education or intelligence, where will you stop? One man will say that the voter should be able to read the Constitution and to write his name; another, that he should be acquainted with the history of the United States; another will demand a still higher degree of education and intelligence; until you will establish an aristocracy of wisdom, which is one of the worst kinds of aristocracy. Sir, the men who formed this Government, who believed in the rights of human nature, and designed the Government to protect them, believed, I think, as I do, that when suffrage is made universal you concentrate in the ballot-box a larger amount of wisdom than when you exclude a portion of the citizens from the right of suffrage. While it is true that we have had in this country, at some times, in some localities, and at some elections, a class of men who are very dangerous on account of their ignorance and their passions, yet, on the whole, I think it is safer for our institutions and safer for ourselves to allow all men to vote than to establish any arbitrary tests which would exclude a part from the ballot-box.
I have never heard from the other side of the House any objection to the exercise of the right of suffrage by white men on account of their ignorance. When Congress passed a law by which the foreigner, ignorant as he might be of our language and our institutions, should be admitted to the rights of citizenship as a reward for one year’s service in the Army of the United States, that measure had my hearty approval; and I believe that it received the approval of gentlemen on the other side of the House. The ignorance of that class was not at that time urged as an objection to conferring the franchise upon them. Now, sir, if a foreigner, totally ignorant of our institutions and language, is qualified, after a year’s service in the Army, to exercise the right of suffrage, I ask, in God’s name, whether the negro, a native of this country, who has been fighting for four years, is not equally qualified to exercise that right?
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Mr. FARNSWORTH. It is useless, Mr. Speaker, to cite the acts of State Legislatures heretofore passed upon this subject. That is only begging the question. Suffrage has been withheld from the black man up to the present time. If that is any reason why it should longer be withheld from him, then that is a kind of logic which I do not appreciate. Therefore, these citations by gentlemen from the provisions of State constitutions and State laws bearing on this subject have, it seems to me, no pertinence to the questioned
I was remarking, Mr. Speaker, that, in my opinion, this Government would be criminally recreant to its high trust if it does not, while it has the power, profit by the lessons of the past—the experience acquired in the last four years in the fiery ordeal of war. We shall be false to our duty if we do not obtain security for the future—not only security against further secession and war, but security for the protection of the rights of men—men of all classes and conditions. Why, sir, I am in almost daily receipt of letters from the South, written by members of State Legislatures, by officers of the Army, by merchants doing business there; and all these men bear the same testimony—that the people of the South are not yet fit to resume their functions in the Union and their relations to the General Government; that to restore the States lately in insurrection to the status which they enjoyed as States before the war would only be putting power into the hands of rebels and traitors, whose hatred of the Union and of Union men has become intensified rather than mollified since the termination of the war; that no Union man, whether white or black, would be able to live in those States one moment after the withdrawal of the troops that now protect them and preserve order. This is the universal testimony.
Only a few days ago, as I am credibly informed, General Grant sent from this city an escort of cavalry and a train of wagons into Virginia—not fifty miles, I believe, from this capital—to remove to the city of Washington a loyal family, consisting of a widow and her children, because they could not live in their home in safety. The husband of this woman, formerly a paymaster in the United States Army, was, since the close of the war, ruthlessly shot down by a returned rebel in the streets of Alexandria. His family, returning to their residence in Virginia, had their house on fire in the night, with the fiendish expectation and design of burning to death its inmates. General Grant, in accordance with the petition of that widow, sent an escort of cavalry, as I have remarked, to insure the safe transit of herself and her children to the city of Washington. This is the condition of things almost under the very shadow of this Capitol. The men from whom this poor woman and her children have been obliged to flee for their lives are the sort of men whom the gentleman from New Jersey desires to clothe with all the rights of citizenship and sovereignty. These are the men whom he would allow to control the destinies of Virginia and other southern States lately arrayed in arms against the Government, and to take seats upon this floor to control the destinies of this great nation.
I grant, sir, that many of the colored men whom I would enfranchise are poor and ignorant; but we have made them so. We have oppressed them by our laws. We have stolen them from their cradles, and consigned them to helpless slavery. The shackles are now knocked from their limbs, and they emerge from the house of bondage and stand forth as men. Let us now take the next grand step, a step which must commend itself to our judgment and consciences. Let us clothe these men with the rights of freemen and give them the power to protect their rights.
Sir, as I have already remarked, we have passed through a fiery ordeal. There are but few homes within our land that are not made desolate by the loss of a son or father. The widow and the orphan meet us wherever we turn. The maimed and crippled soldiers of the Republic are everywhere seen. Many fair fields have become cemeteries where molder the remains of the noble men who have laid down their lives in defense of our Government. We thought that we had attained the crisis or our troubles during the progress of the war. But it has been said that the ground-swell of the ocean after the storm is often more dangerous to the mariner than the tempest itself; and I am inclined to think that this is true in reference to the present posture of our national affairs. The storm has apparently subsided; but, sir, if we fail to do our duty now as a nation—and that duty is so simple that a child can understand it; no elaborate argument need enforce it, as no sophistry can conceal it; it is simply to give to one man the same rights that we give to another—if we fail now in this our plain duty as a nation, then the ship of state is in more peril from this ground-swell on which we are riding than it was during the fierce tempest of war. I trust that this Congress will have the firmness and wisdom to guide the old ship safely into the haven of peace and security. This we can do by fixing our eyes upon the guiding star of our fathers—the equal rights of all men.
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IN SENATE
January 12, 1866
PROTECTION OF CIVIL RIGHTS
Mr. TRUMBULL. I move that the Senate now proceed to the consideration of Senate bill No. 61, to protect all persons in the United States in their civil rights, and furnish the means of their vindication. I will state that in calling up this bill it is not my intention to press it to a vote or to any definite action upon it further than to have the amendments reported by the Judiciary Committee, which are entirely a verbal character, acted upon, and then shall be willing that the bill be postponed to a future day. I should like to have the bill read, and those amendments which are entirely verbal disposed of, and then let the bill be postponed.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill.
It declares that there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. Andy person who under cover of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant of any State or Territory to the deprivation of any right secured or protected by the act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, is to be deemed guilty of a misdemeanor, and on conviction to be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.
The district courts of the United States, within their respective districts, are to have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of the act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot 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 act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any such person, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act, or the act to “enlarge the powers of the Freedmen’s Bureau,” such defendant is to have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the “Act relating to habeas corpus and regulating judicial proceedings in certain cases,” approved March 3, 1863. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States is to be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry it into effect: but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern these courts in the trial and disposition of such cause, and if of a criminal nature, in the infliction of punishment on the party found guilty.
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The district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers and agents of the Freedmens’ Bureau, and every other officer who may be specially empowered by the President of the United States, are by the act specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate its provisions, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as by the act has cognizance of the offense. With a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, and to the prompt discharge of the duties of the act, it is to be the duty of the circuit courts of the United States and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of the act. These commissioners shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, and the judges of the superior courts of the Territories, severally and collectively, in term time and vacation, upon satisfactory proof being made, to issue warrants and precepts for arresting and bringing before them all offenders against the provisions of the act, and on examination to discharge, admit to bail, or commit them for trial, as the facts may warrant.
It is to be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of the act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he is on conviction to be fined in the sum of $1,000, to the use of the person upon whom the accused is alleged to have committed the offense, on the motion of such person, by the circuit or district court for the district of such marshal. And the better to enable the commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of the act, they are empowered, within their counties, respectively, to appoint in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process are to have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or 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, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of the act; and these warrants are to run and be executed by those officers anywhere in the State within which they are issued.
Any person who shall knowingly and willfully obstruct, hinder, or prevent any officer, or other person charged with the execution of any such warrant or process, or any person or persona lawfully assisting him or them, from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer, other person or persons, or those lawfully assisting, when so arrested pursuant to the authority herein given, or shall aid, abet, or assist any person so arrested, directly or indirectly, to escape from the custody of the officer or other person legally authorized, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, is, for either of these offenses, to be subject to a fine not exceeding $1,000, and imprisonment not exceeding six months, by indictment and conviction in the district court of the United States in which the offense may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and in case of the escape of the person for whose arrest such warrant or process was issued, is moreover to forfeit and pay, by way of civil damages, to the party claiming to have been grieved by this act, the sum of $1,000, to be recovered by action of debt, in any of the courts within whose jurisdiction the offense may have been committed.
The district attorneys, the marshals, their deputies, and the clerks of the district and territorial courts, are to be paid for their services the like fees as may be allowed to them for similar services in other cases; and in all cases where the proceedings are before a commission
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he is to be entitled to a fee of ten dollars in full for his services in each case, inclusive of all services incident to the arrest and examination. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of the act are to be entitled to a fee of five dollars for each person he or they may arrest and take before the commissioner, with such other fees as may be deemed reasonable by the commissioner for such other additional services as may be necessarily performed by him or them, such as attending to the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention, and until the final determination of the commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid out of the Treasury of the United States, on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction.
Whenever the President of the United States shall have reason to believe that offenses have been or are likely to be committed against the provisions of the act within any judicial district, he may, in his discretion, directly the judge, marshal, and district attorney, of the district, to attend at such place, within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of the act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated.
And the President of the United States, or such person as he may empower for that purpose, is to have authority to empower for that purpose, is to have authority to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary, to prevent the violation and enforce the due execution of the act.
The first amendment of the Committee on the Judiciary was in section two, line two, to strike out the word “cover” and to insert the word “color.”
The amendment was agreed to.[snip]
Mr. TRUMBULL. I now move that the further consideration of this bill be postponed until to-morrow.
The motion was agreed to.
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HOUSE OF REPRESENTATIVES
January 12, 1866
NEGRO SUFFRAGE IN THE DISTRICT OF COLUMBIA
Mr. CHANDLER. Mr. Speaker, the following language of Alexander Hamilton, in one of his essays (No. 5) in the Federalist, seems most appropriate at this time and to this subject:
“It is of great importance in a republic not only to guard society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.
“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.
“In a society in which the stronger faction can readily unite to oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”
A fierce and bloody civil war has just ended in the complete triumph of this Government over a rebellion which threatened to destroy it.
An amnesty proclamation has restored the people who were in that rebellion to their rights as citizens of the United States. Peace is reestablished, and every function of Government is rapidly being put into practical operation throughout the South. The party in the majority in the Government has introduced this proposed amendment to the laws of Congress regulating this District, and urge its passage—
1. On the ground of justice to the negro.
2. On the ground of safety to the Union.
3. As a necessity.
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I do not wish to use the word faction in any other sense than that used by the illustrious Hamilton. But it does seem to me, sir, that if this measure passes into a law we will resemble “a society in which the stronger faction readily unite to oppress the weaker,” and “anarchy,” for awhile at least, may be looked for as the political consequent of our action. Actuated by a sincere wish to do full justice to all classes and races of men; resolved at all hazards to secure the safety and perpetuity of this Union; and after a fair examination of the necessity of the proposed amendment, I am convinced this measure should not pass.
NEGRO SUFFRAGE IN THE DISTRICT OF COLUMBIA
In my opinion, the powers vested in Congress over the District of Columbia, although absolute and exclusive, do not include the right to establish a principle which in itself, ab initio, is fatal to the full and just exercise of the will of the majority of the people of this District or of any State of this Union, and, a fortiori, if it be hostile to the will of a majority of the people of this Union. A majority of the inhabitants of the southern States are negroes, who do not constitute the people, neither in those States nor in the United States. The negro inhabitant is in a minority in every other State except the southern States, and whether he vote or not in the States in which he forms a minority of the inhabitants cannot affect the sovereignty of the people of the United States by overthrowing the supremacy of the white race, through the legal and peaceful medium of the ballot, in any one State. But by the principle of negro suffrage, if once established by the national Congress, the term “the people” will be made to include the negro race throughout the Union, and thereby pervert the intention of the framers of the Constitution as declared in the preamble:
“We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
To secure the right of and preserve the dominion to their posterity the same framers of the Constitution enacted:
“The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”—Art. 1, sec. 4.
“Congress shall have power to regulate commerce with the Indian tribes.”—Art. 1, sec. 8.
“The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person.’’—Art. 1, sec. 9.
“To establish a uniform rule of naturalization, to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States.”—Art. 1, sec. 8.
These sections plainly fix the intent of the framers of the Constitution on three points: first, the existence of three distinct races: 1. that of the framers of the Constitution; 2, the Indian race; 3, the slave race or negroes. Second, the dominion of the race who formed the Constitution to be perpetual. Third, homogeneity of the emigrant of that day with the race that formed the Constitution. Fourth, the seat of their dominion to be under the exclusive control of the Government founded by that race. I consider the logic of these sections to be conclusive on the question, “Is this a white man’s Government?” Curtis, in his admirable work on the Constitution, sustains this view. He says, (volume two, chapter nine, page 195, also chapter ten, page 286:)
“But who were to be regarded as the people of a State for this purpose [in fixing the right of suffrage] was a question of great magnitude now to be considered. The situation of the country in reference to this, as well as to many other important questions, was peculiar. The streams of immigration which began to flow into it from Europe at the first settlement of the different colonies had been interrupted only by the war of the Revolution. On the return of peace the tide of emigration began again to set toward the new States which had risen into existence on the western shores of the Atlantic.” * * * * * *
“It appeared quite certain that great accessions of population would follow the establishment of free institutions in America, if they should be framed in a liberal and comprehensive spirit.” * * * * * *
“The States which had encouraged most such immigration had advanced most rapidly in population, in agriculture, and the arts. There were, too, already in the country many persons of foreign birth who had thoroughly identified themselves with its interests and its fate, who had fought in its battles, or contributed of their means to the cause of its freedom; and some of these men were at this very period high in the councils of the nation, and even occupied places of great importance in the Convention [which framed the Constitution] itself. They had been made citizens of the States in which they resided by the State power of naturalization, and they were in every important sense Americans.”
“The people,” therefore, who framed the Constitution of the United States were of the white race exclusively, their only point of difference being the period of time at which they had emigrated from Europe. No other race is
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mentioned in the Convention. The only consideration given to the negro was as a slave in those sections regulating the slave trade and establishing the three-fifths rule of representation. To claim for the negro the position of a citizen of the United States is to violate the whole spirit of the preamble to the Constitution which made the United States a nation.
NEGRO VOTE A NEW QUESTION
To amend the laws of this District and of the State of Maryland so as to admit the negro race to the exercise of sovereignty with the people of this Union is a new question, and one which demands the gravest consideration in face of the history of this country, where the negro has been an inhabitant for as long a period as the ruling white race—an inhabitant, but not a citizen of this Union. The negro should never be allowed to vote in this District until the majority of the whole people of this Union shall have passed their judgment upon his fitness to hold so great a power at the seat of Government. [snip]
PLEA OF NECESSITY
The necessity must be absolute and imperative which forces a representative democracy to change the established law and custom regulating the right to vote. None of the arguments presented by the advocates of this measure establish any such necessity. The power of the Government never was greater, never so safe, never so honored at home so respected abroad. … Every class and color of men are secure of equality before the law, and no danger threatens the full and harmonious enjoyment of civil and religious liberty throughout the Union. The slave is free, and the freed man fully protected. …. [snip]
SAFETY
The advocates of this amendment in regard to the colored vote in this District urge that the safety of the Union demands the extension of the franchise to the negro.
Hon. Michael Hahn, of Louisiana, in a speech delivered before the National Equal Suffrage Association in Washington, on Friday, November 17, 1865 says:
“Fellow-citizens, while we strive to secure the object we have in view—the right of suffrage to all American citizens, regardless of color—we must overcome obstacles and difficulties of a serious character which still beset us, and the continued existence of which may threaten to prevent our immediate success. It is necessary, in beginning our work, to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom, and in all the advantages and privileges inseparable from the condition of freedom. It is a mistaken idea to suppose that slavery is already abolished. The national authority has declared emancipation. The national arms, in a bloody contest against slavery, have triumphed. The legislation and literature of the country treat slavery as abolished. But I, who come from the South, and have seen the working of the institution for over a quarter of a century, tell you—and I do it regrettingly—that slavery in practice and substance still exists.”
And again:
“ ‘The right of the people to keep and bear arms’ must be so understood as not to exclude the colored man from the term ‘people.’ “
And again:
“The only question which now seriously divides the country is that of suffrage. Let us, in healing up old sores and putting our house to order, be generous, just, and patriotic, and now, for all time to come, dispose of this question in accordance with the principles of humanity and true republican government. The glorious character of the results to be accomplished, the future harmony of all sections of the country and classes of the people, should induce us to enter the contest for this principle cheerfully, energetically, and boldly. As long as this right is denied there is no peace in the land.”
And Hon. B. Gratz Brown, in an address delivered at Turner Hall, St. Louis, Missouri, September 22, 1865, on universal suffrage says:
“Safety was destined to spring from the people.”
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Again, he says in the same speech:
“Subjection of one race to another, a homogeneity of institutions, can only come of equal rights to all classes, and until there is a homogeneity there will be discord between the sections, threatening renewed civil strife.”
Again he says, page 10 of the same speech, speaking in behalf of universal suffrage:
“Have I not the right to invoke in the cause of universal suffrage all the heroism which this war of liberation has called forth, and all the stern resolve that such noble sacrifice and so great suffering has put into the heart of the people? An equal freedom is the only refuge from an antecedent slavery, universal suffrage the only remedy for disasters that follow from subordinating and disfranchising a race and incorporating it in a free community.
“A new era has come that disconnects us from the traditions of that condemned policy. Let us avail ourselves of it by insisting that universal suffrage shall be the monument of universal freedom in all the after time.”
Hon. Charles Sumner, in a speech delivered before the Republican State convention in Worcester, Massachusetts, September 14, 1865, “on the national security and the national faith,” says:
“Neither the rebellion nor slavery is yet ended. The rebellion has been disarmed, but that is all. Slavery has been abolished in name; but that is all.”
NATIONAL SECURITY
And again:
“Indemnity we renounce; but security we will have. This is the one thing needful.
And again:
“As the national peace and tranquility depend essentially upon the overthrow of monopoly and tyranny, here is another occasion for a special guarantee against the whole pretension of color,” * * * “It is only impartial suffrage that I now claim, without distinction of color, so that there shall be one equal rule for all men. And this, too, must be placed under the safeguard of constitutional law.”
And lastly the secret of all this fear is given as follows:
“Another speaker, less frank, thought it policy to accept the present condition of affairs, until the control of the State is restored into the hands of its people and ‘to submit for a time to evils which cannot be remedied.’ And still another, much more wily, when urging a seeming acceptance of the Union, thus lured his brother conspirators: ‘If we act wisely we shall be joined by what is called the Copperhead party, and even by many of the Black Republicans.’ Such is the plot, and such is the disastrous alliance plainly foreshadowed. But, thank God, in encouraging his comrades, the conspirator has warned us. Forewarned is forearmed.”
The claim to all the privileges of an American citizen was easily to be foreseen as a consequence of the policy which made the negro a soldier during the war against rebellion. The right to secede involved our destruction and forced this Government to destroy secession by abolishing slavery. The rebels, in plotting treason, exposed themselves to the counter-plot of abolition, whereby the Union counter-mined the confederacy and blew up their whole work in a ruin even greater far than they had prepared for us. How far the arming of the slave against his master may be justified ceases to be a question of debate while civil war inaugurated by the master threatens the existence of this Union. But the enlisting the slave as a soldier in the armies of the Union was, in my opinion, unnecessary and unwise. It was a step beyond what was consistent with our system of government. Taking a step further and more hostile to society and government, the advocates of negro equality urge now that the rank of soldier invited the hope, if it did not imply the promise, of equality as a citizen in just reward for sharing the dangers of war. I have always opposed the enlistment of negroes or their race in the armies of the Union on an equality with the white man. But it does not follow that the negro is entitled to a vote as an inalienable right, nor does it follow of right because the Administration, during a civil war of great magnitude, under the plea of military and political necessity, employed him in her armies as an instrument to win his own freedom.
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It seems to me sir, that freedom from slavery and equality before the law are as full a reward as we can justly grant the negro for his recent service in arms. The right to vote carries with it too many and too weighty responsibilities to be ranked in the same class with pensions and bounty money, the only reward of a large class of white Union troops. The black laborer in the recent field of blood is undoubtedly worthy of his hire; but he is not entitled to become the equal of his recent white master in the loyal States, nor to receive a greater reward than his white fellow-soldiers in the Union armies. Nor do I think the equality of the negro has ever been fully and fairly admitted even by the Administration which made use of him during the late struggle. The organization of the colored troops in the Army of the United States was as laborers, and not as soldiers. The course pursued by the late President was evidently intended to avoid the responsibility of pledging equality in peace to negroes who had shared the dangers of war.
I deny that any obligation rests against this Government to do anything more for the negro than has already been done. On what meats doth this Caesar feed that he has grown so great? The white soldier did as much work as he fought as well, died as bravely, suffered in hospitals and in the field as well as he. More than this, the white soldier fought to liberate the slave, and did do it. The white soldier did more: he fought to preserve institutions and rights endeared to him by every hallowed association; to overthrow the rebellion of his brother against their Commonwealth and glorious Union; to preserve the sovereignty of the people against the conspiracy of a slave aristocracy, if you will; to maintain the fabric of the Government built by their fathers for them and their race in every country of kindred men who, down-trodden and disenfranchised, look to this country as a sure refuge. The white soldier fought as a volunteer, as a responsible, free, and
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resolute citizen, knowing for what he fought, and generously letting the slave share with him the honor, and bestowing on him more than his share of the profits of the white man’s victory over his equal and the negro’s master.
FACTS—WHAT HAS BEEN DONE BY THE WAR
This naturally brings us to a statement of facts as to what has been done by this white man’s civil war.
1. Slavery and abolition, twin curses to our peace, have been abolished.
2. Rebellion has been put down, and secession made impossible hereafter.
3. The State governments reorganized in the seceding States.
4. Equality before the law secured to the negro by the conventions of those States.
5. Union of the thirty-six existing States and Territories made perpetual by victory.
BENEFITS
All the benefits resulting from this state of facts accrue to the black and white man alike in everything except the right to vote, which is not a result of, and never was involved in, the contest which has just been decided between the seceding States and this Government. The dominion over the different races on this continent belongs to the white man by right of conquest, and he will only surrender it to a superior in arms. That dominion is secured to us by the elective franchise, which we have granted to foreigners of our own race, as the highest privilege within our gift, as a return to them in sharing with us the task of subduing the savage and establishing civilization in America. [snip]
AMERICAN CIVILIZATION
American civilization, of which universal suffrage is the corner-stone, is not, as some seem to think, a plan to overthrow European civilization, but on the contrary to secure the blessings of the highest civilization to the humblest emigrant from Europe in this Union. …. [snip]
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CONFLICT OF RACES
The conflict of the different races may never take place in the same form in which it showed itself at the beginning, but the conflict is inevitable whenever the white race is roused by anger or suspicion. One of the most certain methods of inducing a conflict will be, it seems to me, by establishing equality, social and public, as the negro suffrage proposes.
Were I an enemy of the negro I would do everything to hasten the period when the white laboring classes of this country would feel their instinct for self-preservation stronger than any law, and unite their strength to drive the black as they drove the red man out of their midst as a pestilent and turbulent fellow, disorganizing society and delaying the white man’s progress. I claim, sir, that this is a white mans Government, founded by white men to preserve and perpetuate the laws and customs of their race, and to extend the blessing of their civilization to the humblest creature. It is the glory of our tolerant freedom that the benefits to be derived from those laws are shared by all the races and colors of men. The negro race has been civilized, slave though he was, by the benign character of those laws. The Indian to-day is the beneficiary and stipendiary of this white man’s Government. The stranger from all lands is welcome here to seek happiness, wealth, and liberty. California is the chosen home of thousands of Chinamen. New England is rapidly becoming populated by negoes and their descendants. While her white sons and daughters seek more genial sections they invite the docile negro to the hospitalities of a rugged soil and severe climate. Kansas and the far western States shelter the industrious tribes of the red men by humane and wise laws. Yet, sir, I maintain that this is, nevertheless, a white man’s Government; the dominion is his own, in emulation of the models reared by our race, to mark their progress and prompt a noble imitation, found strewn along the highway of history, like the monuments Roman heroes left along the Latin way to rouse their countrymen to deeds of daring conquest; models for which we will look in vain in the fetish worship of the African, or in the bloody rites of the King of Dahomey and his brutish Amazons, or in the inhuman practices of the Aztec, or in the merciless aristocracy of the Peruvian, or in the crude code of the cruel Iroquois or of the wandering Comanche. Although the enjoyment of the benefits of our institutions may be open to all men, still the dominion belongs to the white man alone. It is his Government, to be preserved for his posterity in its purity, and administered with toleration and justice to all races of men who may find a home among us. There is no obligation upon us to surrender the Government into other hands, nor is there any call upon us to share the honors of government with any other race whom we may, from motives of policy, philanthropy, or justice, befriend, protect, or release from slavery.
What disgrace attaches to those refused, and what injustice is done by those who refuse them the right to vote?
DISGRACE AND INJUSTICE
If the ruling race hold dominion by just, constitutional law, they commit no injustice toward those who by that law are excluded from the right to vote. As “the people” of the United States in the words of the Constitution, the white race and their representatives in Congress, merely execute the established law as handed down to them by the first settlers of this continent, and by those who founded the Government in the spirit and name of independence, the white race fixes no disgrace on the excluded negro or Indian by refusing to give what they received in trust for themselves and their posterity. [snip]
Nor can the man who reads English vote any more understandingly as to his political rights than the man … conversing only by signs and reading by raised letters. If he be of age, sound mind, of good name, he needs no higher merit than being a male white citizen. … But why limit the right to vote to male white citizens? Because this is a white man’s Government. Because the majority of the people of the United States have so established by law. The sovereign will of “the people” has so decreed in the Constitution. This bill proposes to change that decree.
RULING RACE
The fact that all but the white male citizens are excluded from voting in the municipal affairs of this District, the seat of Government, is a crowning proof, first that this is a white man’s Government, and second, that there is a ruling race recognized in the practice of that Government. The history of the civilization now established in this country, which has its center here, proclaims the proof. The language and customs of our people proclaim it. The laws written and unwritten proclaim it. The organization of our Government proclaim it. The admission of foreign immigrants of the same race to the same rights as those of the original settlers in the different sections of the continent, and excluding the negro and the Indian from voting in many of the States of the Union, proclaim it. ….
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THE WHITE MAN’S GOVERNMENT
This brings us to the merits of this bill introduced by the chairman of the Judiciary Committee. … This is not a question of class, of caste, of rank, of language, or of color. It is purely a question of race—the dominion which a superior race of men has established for itself over all surrounding or hostile races. ….
Sir, I uphold that this is a Government made and maintained by and for the white working man, the white masses of this country. If any doubt exists as to the white democratic original character of this Government this certainly is a proper place and time to remove it:
DEMOCRACY OF THE REVOLUTION OF 1776
“The social condition of the Americans is eminently democratic. This was its character at the foundation of the colonies, and is still more marked at the present day.”—De Tocqueville, vol. 1, p. 37.
“Still, the great proprietors south of the Hudson constituted a superior class, having ideas and tastes of its own, and forming the center of political action. This kind of aristocracy sympathized with the body of the people, whose passions and interests it easily embraced; but it was too weak ad too short-lived to excite either love or hatred for itself. This was the class which headed the insurrection in the South in 1776, and furnished the best leaders in the American Revolution.
“At the period of which we are now speaking society was shaken to its center. The people in whose name the struggle had taken place conceived the desire of exercising the authority which it had acquired; its democratic tendencies were awakened; and, having thrown off the yoke of the mother country, it aspired to independence of every kind. The influence of individuals gradually ceased to be felt, and custom and law united together to produce the same result.” —Ib., vol. 1, p. 38.
“The American institutions are democratic not only in their principles but in their consequences.” * * * * “The people, therefore, is the real directing power, and, although the form of government is representative, it is evident that the opinions, the prejudices, the interests, and even the passions of the community are hindered by no durable obstacles from exercising a perpetual influence on society. In the United States the majority governs in the name of the people, as is the case in all the countries in which the people is supreme.” Ib., vol. 1, p. 193. [snip]
Mr. Speaker, the statesmen of the revolutionary era were not philanthropists, abolitionists, or negro-suffrage men. They were practical representatives of the white democracy which fought out the seven years’ war by themselves and for themselves, to establish a white man’s democratic representative Government to be perpetuated in this Union. … All their wit and wisdom and skill united to devise the laws regulating suffrage. Those laws exclude the negro and recognize him as a slave. Yet the negro had fought under the eye of Washington, beside the heroes whose blood was shed for the common weal of white and black men in the struggle for independence.
INALIENABLE RIGHT
The Declaration of Independence asserts the inalienable right of every man to life, liberty, and the pursuit of happiness. … Yet the negro had all the inalienable rights then as he has to-day. The inalienable right of the negro does not entitle him to vote in this District. An inalienable right is one common to all creatures and derived directly from the Creator; it may be taken away by force, fraud, or accident, yet never is lost; and may be claimed at any time with reason and justice, and is specially valuable to man, in his relations with his fellow-man, as a barrier against injustice and a power for revolution. Justice fixes the relations of all conflicting rights in human affairs, reason established their existence, force controls their exercise. [snip]
RIGHT TO VOTE
The right to vote is not an inalienable right. It is merely a manner of exercising the right to be free, and belongs to a peculiar set and form of government; has its origin in and is liable to the limitations of civil law. It is not a natural right at all, and is in this country made subordinate to the will of the majority, so that women, minors, and aliens are excluded from its exercise. Yet no disgrace attaches to them in being deprived of the privilege to vote, nor is any injustice committed on them. If the right to vote be, as asserted by some, an inalienable right, it naturally belongs to every human creature who lands on our shores, and should be granted to them without limitation of time or distinction of sex. This is denied by the friends of negro suffrage.
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Hon. B. Gratz Brown, in a speech delivered at St. Louis, September 22, 1865, says:
“There are those who seek to escape this conclusion, and put the blush on all free government, by affirming that the right of franchise is a purely political right, neither inherent or inalienable, and may be divested by the citizen or State at will. The consideration be-
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fore mentioned—that the right of franchise is neither more nor less than the right of self-government, as exercised through a participation in the common government of all—shows that if it be not a natural right, it will be difficult to say in what a natural right consists. Indeed, it is perhaps, the most natural of any of our rights, inasmuch as it is the denial of all right to personal liberty; for how can such a right exist when the right to maintain it among men and the societies of men is denied? Again, if the right to share in the government over us is not inherent, from whence does it come? Who can give the right to govern another? And how can any give what he has not got? Society is but the aggregate of individuals, and in its authority represents only the conceded limitations on all—not any reservoir of human rights; otherwise it would vary with every changing association. Still, again, if the right of a man, as regards government, can be divested, either by himself or government at will, then government has no limit to its rightful tyranny. It may divest not only one man, but a hundred or a thousand; indeed, why not all but the chosen few or the imperial one, thus arriving logically at oligarchic or despotic rule?”
“Now, a franchise is a political grant of a right, and not a natural right. I repeat it in face of the above avowal to the contrary. The right to vote is a right to will a certain thing. What is that thing? A political duty, a political right, if you prefer the term, if the will is exercised on political subjects; fixed by law in some States, done in a different way in a different State. … Voting is as old as the history of man. Representation in government is a modern system, and was never known in any Greek republic; not even in Athens, which was a pure democracy. It was unknown in Rome. The right to vote is therefore simply a political or civil right. A vote is a form of expression whereby men give utterance to their will. …. [snip]
WHITE DEMOCRACY
White democracy does not mean man worship, hero worship, centralization of power, imperial one-man power. It is the very opposite of all this. The individual is absorbed in the mass, and finds safety in the commonwealth. White democracy denies to one man any hereditary right to dominion, and asserts the exclusive sovereignty and instructive wisdom of the masses. White democracy uses its heroes for the people.
White representative democracy founded, in 1776, cemented union for the people with its blood in solemn compact against the hereditary, usurping aristocracy of the white race in all the world, because it was resolved no longer to be ruled by that aristocracy of their own race, and feared no other race. White democracy declares this Union to be made for the people, not the people for the Union. White democracy makes war on every class, caste, and race which assails its sovereignty or would undermine the mastery of the white working man, be he ignorant or learned, strong or weak. Black democracy does not exist. The black race have never asserted and maintained their inalienable right to be a people, anywhere, or at any time. … They have made successful imitations of revolutions in Hayti, and having once begun a revolution they have been revolving in space around a central despotism, a chaotic mass, ever since. … The proof the blacks of Hayti and the West Indies generally furnish of their capacity for self-government sees to be this: they have learned how to make revolutions. [snip]
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WHITE DEMOCRACY A HOMOGENEOUS RACE
It is not a thing of to-day, nor of yesterday, but belongs to the history of our race, not only on this continent, but throughout the world, long before. … The history of this country is the history of our race—the white race. The principles of our Government are peculiar to that race in contradistinction to the African, the Asiatic, and the Aboriginal American. Sir, if you doubt this to be a white man’s Government, traverse once more the prairies and staked plains across the continent to the Pacific shore, from Oregon to Utah; and if still in doubt, travel on to the shore of Australasia and ask there if the dominion of sea and land is not claimed and held by the white race against all the other sons of Adam.
DOMESTIC EQUALITY ANTECEDENT TO POLITICAL
If any one denies these propositions, let him seek to establish social equality in his family between the black and white race. The result might prove a success, and may meet with final cooperation from the fair sex and the democracy of the nursery. But I doubt it. ….
PREJUDICE
The advantage to the advocates of this amendment, which would follow the experiment of domestic social equality between the black and white races is incalculable. The first victim to the experiment would be prejudice, …. Prejudice is stronger than opinion, because very few think. There are more prejudiced people than reasonable people. This is practical and plain. Human nature in politics is no way different from human nature in every-day life. [snip]
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AMERICAN SOVEREIGN
The only true king possible among us is the white working man. … But the American sovereign is the white working man—on the farm, in the shop, in the store, in the mine, on land, and at sea. … Now, until the negro is at least equal to the Indian, we should refuse him the highest privilege a democracy can grant—the right to vote, and with it the right to be voted for. This may prejudice, but it looks to be very reasonable.
A FEW PERTINENT QUESTIONS
In conclusion, this bill seems to me premature. … What gain would the people of the United States experience by extending the voting franchise to the negro race here or elsewhere? … What will be the effect of negro suffrage in the southern States, first, on the white race; second, on the negro; third, on agriculture, commerce, manufactures, and the progress of civilization? ….
Does negro suffrage if granted give the control of this city to the negro? …. What have we to hope from the black race if allowed to vote? Will any law of Congress passed at this time remove the future or the existing difficulty which surrounds this question of race?
THE BALLOT AND BANNER AND THE ‘UNION,’ EMBLEMS OF OUR RACE
[snip] The legend of the Saracen exile tells the story of penitence and shame; and to the last moment of his sad life he sighs in the sultry desert for the fair home of his ancestors, the gorgeous Alhambra. We, too, are descended from a race of conquerors, who crossed the ocean to establish the glory of civil and religious liberty and secure freedom to themselves and their posterity. To-day we are assembled in the Alhambra of America; here is our citadel; here our courts of highest resort; around these Halls cluster the proudest associations of the American people; they seem almost sacred in their eyes. No hostile foot of foreign foe or domestic traitor has trodden them in triumph. Above it floats the flag, the emblem of our Union. That Union is the emblem of the triumphs of the white race. That race rules by the ballot. Shall we surrender the ballot, the emblem of our sovereignty; the flag, the emblem of our Union; the Union, the emblem of our national glory, that they may become the badges of our weakness and the trophies of another race? Never, sir! never, never!
Shall the white laborer bow his free, independent, and honored brow to the level of the negro just set free from slavery, and by yielding the entrance to this great citadel of our nation surrender the mastery of his race over the Representatives of the people, the Senate, and Supreme Court of this Union? Then, sir, the white working man’s sovereignty would begin to cease to be. That would be the beginning of the end—
Mr. WARD. I ask unanimous consent that my colleague’s time may be extended, so as to enable him to conclude his speech.
No objection was made.
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Mr. CHANLER. Then the most democratic majesty of American liberty could be humbled in the little dust which was lately raised by a brief campaign of two hundred thousand negro troops, and even they led by white officers; while millions of white soldiers held the field in victory by their own strength and valor. Deny it if ye dare! Sir, I know that this is a white man’s Government, and I believe the white working man has the manhood which shall preserve it to his latest posterity, pure and strong in “justice tempered with mercy.”
There may be a legend hereafter telling of the exile of Representatives now on this floor, who, in the hour of party spite, betrayed the dominion of their race here, and the stronghold of their people’s liberty, to a servile and foreign race.
PARTISAN MAJORITY
A great deal has been said here about injustice. Injustice to whom? Why, sir, the white population of this District are a part of the people of the United States. They have rights which you should respect and protect. They look to you for justice but not abuse, such as has been poured out on them by the advocates of this measure. … The Declaration of Independence asserts the prerogative of the governed in face of the tyranny of the Government.
You to-day are nullifying the express will of the people of this District in regard to the question of negro suffrage. … This is not a question whether one or several black men shall vote, brave, virtuous, or learned through they be; but it is whether by giving the elective franchise to a whole race you shall deprive a city of the United States, and that, too, the capital of the Union, of its franchise under the Constitution, and subject the
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majority of the people of this whole District to congressional dictation as to who shall govern them in municipal affairs, after the people have declared under the guarantees of the Declaration of Independence, the Constitution of the United States, and the sovereignty of the people of the Union, that the white and only true citizens of this District wish to govern themselves in their own way, according to established law, without interference from the national Government, and without complication with political parties. The consent of the governed is not only not respected, but the avowed will of this people is disregarded.
The friends of negro suffrage abstained from voting! What a farce! What sophistry! Do we not all know that by abstaining they forfeit their right to be considered in the matter? [snip]
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IN SENATE
January 15, 1866
DISTRICT OF COLUMBIA SUFFRAGE
The Senate accordingly, as in Committee of the Whole, resumed the consideration of the bill (S. No. 1) to regulate the elective franchise in the District of Columbia. When the bill was last under consideration it was recommitted to the Committee on the District of Columbia, and on Friday last was reported back by the committee, with an amendment to strike out all of the original bill after the enacting clause, and to insert the following in lieu thereof:
“That, from and after the passage of this act, each and every male person, excepting paupers and persons under guardianship, of the age of twenty-one years and upwards, who has not been convicted of any infamous crime or offense, and who is a citizen of the United States, and who shall have resided in the said District for the period of six months previous to any election therein, shall be entitled to the elective franchise, and shall be deemed an elector and entitled to vote at any election in said District, without any distinction on account of color or race. [snip]
SEC. 8. And be it further enacted, That the officers presiding at any election shall keep and use the checklist herein required at the polls during the election of all officers, and no vote shall be received unless delivered by the voter in person, and not until the presiding officer has had opportunity to be satisfied of his identity, and shall find his name on the list, and mark it, and ascertain that his vote is single.
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IN SENATE
January 16, 1866
DISTRICT OF COLUMBIA SUFFRAGE
The Senate, as in Committee of the Whole, accordingly resumed the consideration of the bill (S. No. 1) to regulate the elective franchise in the District of Columbia; the pending question being on the amendment reported by the Committee on the District of Columbia, as a substitute for the bill. [snip]
How many States allow negro suffrage? Massachusetts, Vermont, Rhode Island, and New Your. All the others forbid it; and, notwithstanding the extreme acme to which the negro-mania has risen in the free States since the rebellion broke out, Connecticut, Wisconsin, Minnesota, Nevada, and Colorado have voted against negro suffrage. The States that have passed upon the question, except Iowa, have voted it down by their white people, with light majorities it is true, except Colorado; and if the white race of those States respectively, by meager majorities, can vote down negro suffrage in them, why should not the white race of this District, voting about two hundred to one, exercise the similar right? …. [snip]
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HOUSE OF REPRESENTATIVES
January 16, 1866
SUFFRAGE IN THE DISTRICT OF COLUMBIA
The morning hour having expired, the House, agreeable to order, resumed the consideration of the bill (H. R. No. 1) extending the right of suffrage in the District of Columbia; on which Mr. JULIAN was entitled to the floor.
Mr. JULIAN. Mr. Speaker, whatever doubts may arise as to the authority of Congress to regulate the right of suffrage in the districts lately in revolt, none can exist as to such authority within the District of Columbia. By the express words of the Constitution, Congress here has “exclusive power of legislation;” and that power, of course, extends to all the legitimate subjects of legislation, of which the ballot is unquestionably one. Shall it be conferred irrespective of color, or granted only to white men? ….
Mr. Speaker, I demand the ballot for the colored men of this District on the broad ground of absolute right. I repudiate the political philosophy which treats the right of suffrage as merely conventional. The right of a man to a voice in the Government which deals with his liberty, his property, and his life is as natural, as inborn as any one of those enumerated by our fathers. It is said, I know, that natural rights are only those universal ones which exist in a state of nature, in which every man takes his defense and protection into his own hands; but I answer that there is no such state of nature, save in the dreams of speculative writers. The natural state of man is a state of society, which
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demands law, government, as the condition of life. By the right of suffrage I mean the right to a share in the governing power; and while the peculiar manner and circumstances of its exercise may fairly be regarded as conventional, the right is natural. If not, then there are no natural rights, since none could be enjoyed except by the favor or grace of the Government, which must decide for itself who shall be permitted to share in its exercise. You may, if you choose, call the right of suffrage a natural social right; but whatever adjectives you employ in your definition, the right, I insist, is natural. Most certainly it is so in its primary sense. My friend from Iowa [Mr. WILSON] substantially agrees with me, for he speaks of suffrage, not as a privilege, but as a right, equally sacred with those acknowledged to be natural, and which Government cannot take away. Sir, without the ballot no man is really free, because if he enjoys freedom it is by the permission of those who govern, and not in virtue of his own recognized manhood. We talk about the natural right of all men to life, to liberty, and to the pursuit of happiness; but if one race of men can rightfully disfranchise another, and govern them at will, what becomes of their natural rights? The moment you admit such a principle the very idea of democracy is renounced, and absolutism, must own you as its disciple. The fact that society, through Government as its agent, regulates the right, and withholds it in certain instances, as in the case of infants and idiots, and makes the withdrawal of it a punishment for crime in others, does not at all contravene the ground I assume. Society, for its own protection, takes away all natural rights, or rather, it declares them forfeited on certain prescribed conditions. Christianity and civilization place their brand upon slavery as a violation of the natural rights of men. But that system of personal servitude from which we have finally been delivered is only one type of slavery. Serfdom is another. That unnatural ownership of labor by capital which grinds the toiling millions of the Old World, and renders life itself a curse, is not less at war with natural rights than negro slavery. The degrees of slavery may vary, but the real test of freedom is the right to a share in the governing power. Judge Humphrey, speaking of the freedmen, says “there is really no difference, in my opinion, whether we hold them as absolute slaves or obtain their labor by some other method.” The old slaveholders understand this perfectly. An intelligent human being, absolutely subject to the Government under which he lives, answerable to it in his person and property for disobedience, and yet denied any political rights whatever, is a slave. He may not wear the collar of any single owner, but he will be what Carl Schurz aptly calls “the slave of society,” which is often a less merciful tyrant! He will owe to the mere grace of the Government the right to marry and rear a family; the right to sue for any grievance; the right to own a home in the wide world; the right to the means of acquiring knowledge; the right of free locomotion and to pursue his own happiness; the right to a fair day’s wages for a fair day’s work; the right to life itself, save on conditions to be fixed without his consent, and which may render him an alien and an outcast among men. So abject and humiliating is such a condition, and so perfectly does the world understand the sacredness of the rights of the citizen, that in all free Governments his disfranchisement is appropriately made a part of the punishment for high crimes. Sir, I repeat it, there is no freedom, no security against wrong and outrage, save in the ballot; and Governor Brownlow is therefore thoroughly right in principle, in contending that the constitutional amendment abolishing slavery, and giving Congress the power, by appropriate legislation, to enforce this abolition, authorizes us to secure the ballot to all men in the revolted districts, irrespective of color. It is not slavery in form, but in fact, and under whatever name, that the people of the United States intend to have abolished forever.
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If I am right in this view, color has nothing whatever to do with the question of suffrage, as the gentleman from Iowa [Mr. KASSON] will see. The negro should not be disfranchised because he is black, nor the white man allowed to vote because he is white. Both should have the ballot because they are men and citizens, and require it for their protection. Are you willing to rest your right to the ballot on the purely contingent fact of your color? Your manhood tells you instantly that that is not the foundation. You are a man, endowed with all the rights of a man, and therefore you demand a voice in the Government; but when you say this you assert the equal rights of the negro. Neither color, nor race, nor a certain amount of property, nor any other mere accident of humanity, can justify one portion of the people in stripping another portion of their equal rights before the law, the common master over all. Government, in fact, in its proper, American sense, is simply the agent and representative of the governed, in taking care of their interest and guarding their rights. [snip]
Mr. Speaker, this view of suffrage as a natural right greatly simplifies the whole subject. The sole question is, as already stated, whether our democratic theory of Government shall be maintained in practically recognizing the inherent rights of all men as the source and basis of political power? To ask this question, in the United States, is to answer it. [snip]
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Mr. Speaker, if it shall be objected that the negroes of this District are not fit to vote; that they are too ignorant and degraded to be intrusted with power, I have several replies to make.
In the first place the negroes of this District are not all ignorant, as I have already shown by facts. Many of them are educated and quite intelligent. The larger class who are not so will not suffer by a comparison with the very large class of their ignorant white neighbors. ….
In the next place, fitness is a relative term. Nobody is perfectly fit to vote, because nobody is perfectly informed as to all the subjects of our legislation and policy. … The political opinions and actions of the generality of men, who in a free country govern, are not guided by logic, or any exact knowledge, but by habit and tradition, by their social relations, and by their natural trust in those whom they think wiser than themselves. On this subject the highest authority of which I have any knowledge is John Stuart Mill. He says:
“It is not necessary that the many should, in themselves, be perfectly wise; it is sufficient if they be duly sensible of the value of superior wisdom. It is sufficient if they be aware that the majority of political questions turn upon considerations of which they and all other persons not trained for the purpose must necessarily be very imperfect judges, and that their judgment must, in general, be exercised upon the characters and talents of the persons whom they appoint to decide those questions for them, rather than upon the questions themselves. This implies no greater wisdom in the people than the very ordinary wisdom of knowing what things they are and are not sufficient judges of. If the bulk of any people possess a fair share of this wisdom, the argument for universal suffrage, so far as respects that people, is irresistible.”
Sir, by this standard I am willing to have the colored people of this District tried; and I demand the same trial for the white men who are loudest in their protest against negro ballots. [snip]
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Mr. Speaker, I hope I need not reply to the argument often urged, that negro voting will lead to the amalgamation of races, or social equality, which now seems to mean the same thing. On this subject there is nothing left to conjecture, and no ground for alarm. Negro suffrage has been very extensively tried in this country, and we are able to appeal to facts. Negroes had the right to vote in all the Colonies save one, under the Articles of Confederation. They voted, I believe, generally, on the question of adopting the Constitution of the United States. They have voted ever since in New York and the New England States, save Connecticut, in which the practice was discontinued in 1818. They voted in New Jersey till the year 1840; in Virginia and Maryland till 1833; in Pennsylvania till 1838; in Delaware till 1831; and in North Carolina and Tennessee till 1836. I have never understood that in all this experience of negro suffrage the amalgamation of the races was the result. I think these evils are not at all complained of to this day in New England and New York, where negro suffrage is still practiced and recognized by law. Indeed, the fact is notorious, that amalgamation is almost totally unknown, except in a state of slavery, which obliterates the ties of life, and subjects the negro woman to the unbridled power of the master race. Sir, give the colored man the ballot, so that he may maintain the liberty already nominally conferred, and the best possible step will have been taken to regulate and purify the relations heretofore existing between the races. Should the copperheads and rebels of this District feel in danger of matrimony with their African fellow-citizens in consequence of negro suffrage, I would have Congress pass a law for their protection; but I would not withhold the ballot from the colored people for a reason so contingent and so uncomplimentary to their character and taste.
Nor do I deem it necessary, Mr. Speaker, to dwell on the argument that negro voting will lead to negro office-holding, negro domination, and ultimately to a war of races. Such an argument, current as it is in certain quarters, finds no shadow of support in any known facts. [snip]
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HOUSE OF REPRESENTATIVES
January 23, 1866
BASIS OF REPRESENTATION
The SPEAKER stated the regular order of business to be on the following joint resolution:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as art of said Constitution, namely:
ARTICLE—. Representatives and direct taxes shall be apportioned among the several States which be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.
Mr. STEVENS. I move to insert the word “therein,” so that it will read as follows:
Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.
I now demand the previous question.
Mr. JENCKES. I ask the gentleman a question concerning the construction of the proposed amendment to the Constitution. … The proviso is, that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.
It says nothing about the qualifications of property. …. [snip]
If any of the States should establish property qualification based upon lands, then the same oligarchy would be enthroned on the whole basis of representation, entitled to a larger number of Representatives than now in this House, and elected by a slightly enlarged number of qualified electors, giving power more firmly to that very aristocracy we have sought to overthrow.
Mr. STEVENS. All I can say is that if the law applies impartially to all, then no matter whether it cuts out white or black.
Mr. FARNSWORTH. Suppose the State of South Carolina should provide by law that no negro should hold real estate.
Mr. STEVENS. Then the amendment operates. I demand the previous question.
Mr. BROOKS. Let me put a question. The proviso reads that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation. There are in California and Oregon something like one hundred thousand coolies. They are increasing and going into the western States to build railroads. Are they included?
Mr. STEVENS. I understand that if they are excluded by the laws of California because they are Chinese, this amendment operates upon them because they are excluded on account of race.
Mr. BROOKS. They will not be counted in the basis of representation?
Mr. STEVENS. Not at all; it was so intended; the word “race” was inserted for that purpose.
Mr. BROOKS. One other question. Why exclude the Indian? Is he not a man and a brother?
A member. The The Constitution now excludes him.
Mr. STEVENS. “Excluding Indians not taxed.”
Mr. BROOKS. We exclude them at this time, but are not Indians our brethren?
Mr. STEVENS. The Constitution of the United States has always excluded them.
Mr. BROOKS. Why not, as we are amending the Constitution, embrace the Indian as a man and a brother?
Mr. STEVENS. Because they are a tribal race, have their own separate governments, and, as a general rule, are not citizens. [snip]
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Mr. BROOKS. Mr. Speaker, I do not rise, of course, to debate this resolution in the few minutes allowed me by my colleague, nor, in my judgment, does the resolution need any discussion unless it may be for the mere purpose of agitation. … If the honorable gentleman from Pennsylvania [Mr. STEVENS] had been quite confident of adopting this amendment he would at the start have named what are States of this Union.
The opinion of the honorable gentleman himself, that there are no States in this Union but those that are now represented upon this floor, I know full well, but he knows as well that the President of the United States recognizes thirty-six States of this Union, and that it is necessary to obtain the consent of three fourths of those thirty-six States, which number it is not possible to obtain. He knows very well that if his amendment should be adopted by the Legislatures of States enough, in his judgment, to carry it, before it could pass the tribunal of the executive chamber it would be obliged to receive the assent of twenty-seven States in order to become an amendment to the Constitution. The whole resolution, therefore, is for the purpose of mere agitation. It is an appeal from this House to the outside constituencies that we know by the name of Buncombe. Here it was born, and here, after its agitation in the States, it will die. Hence I asked the gentleman for Pennsylvania this morning to be consistent in his proposition. In one thing he is consistent, and that is in admitting the whole of the Asiatic immigration, which by the connection of our steamers with China and Japan and the East Indies, is about to pour forth in mighty masses upon the Pacific coast to the overwhelming even of the white population there.
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Mr. STEVENS. I wish to correct the gentleman. I said it excluded the Chinese.
Mr. BROOKS. How exclude them, when the Chinese are to be included in the basis of representation?
Mr. STEVENS. I say it excludes them.
Mr. BROOKS. How excludes them?
Mr. STEVENS. They are not included in the basis of representation.
Mr. BROOKS. Yes, if the States exclude them from the elective franchise; and the States of California and Oregon and Nevada are to be deprived of representation according to their population upon the floor of this House by the introduction of this amendment.
I asked him also if the Indian was not a man and a brother, and I obtained no satisfactory answer from the honorable gentleman. I speak now, in order to make his resolution consistent, for no one hundred thousand coolies or wild savages, but I raise my voice here in behalf of fifteen million of our countrywomen, the fairest, brightest portion of creation, and I ask why they are not permitted to be represented under this resolution?
Mr. CONKLING. They are.
Mr. BROOKS. Persons are.
Mr. CONKLING. I thought they were persons.
Mr. BROOKS. And so they are, but they are excluded from all voting. Why, in organizing a system of liberality and justice, not recognize in the case of free women as well as free negroes the right of representation?
Mr. STEVENS. The gentleman will allow me to say that this bill does not exclude them. It does not say who shall vote.
Mr. BROOKS. I comprehend all that; but the whole object of this amendment is to obtain
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votes for the negroes. That is its purport, tendency, and meaning; and it punishes those who will not give a vote to the negro in the southern States of our Union. That is the object of the resolution, and the ground upon which it is presented to this House and to the country. This is a new era; this is an age of progress. Indians are only Indians, but negroes are men and brothers; and why not, in a resolution like this, include the fair sex too, and give them the right to representation? Will it be said that this sex does not claim a right to representation? Many members here have petitions from these fifteen million women, or a large portion of them, for representation, and for the right to vote, an equal right with the stronger sex, who they say are now depriving them of it. To show that such is their wish and desire, I will send to the Clerk’s desk to be read certain documents, to which I ask the attention of the honorable gentleman from Pennsylvania, [Mr. STEVENS,] for in one of them he will find he is somewhat interested.
The Clerk read, as follows:
Standard Office, 48 Beekman Street, New York, January 20, 1866
DEAR SIR: I send you the inclosed copy of petition and signatures sent to THADDEUS STEVENS last week. I then urged Mr. STEVENS, if their committee of fifteen could not report favorably to our petition, they would, at least, not interpose any new barrier against woman’s right to the ballot.
Mrs. Stanton sent you a petition; I trust you will present that at your earliest convenience. The Democrats are now in minority. May they drive the Republicans to do good works—not merely to hold the rebel States in check until negro men shall be guarantied their right to a voice in their governments, but to hold the party to a logical consistency that shall give every responsible citizen in every State equal right to the ballot.
Will you, sir, please send me whatever is said or done with our petitions? Will you also give me names of members whom you think would present petitions for us?
Respectfully yours, SUSAN B. ANTHONY. Hon. James Brooks.
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A PETITION FOR UNIVERSAL SUFFRAGE
To the Senate and House of Representatives:
The undersigned, women of the United States, respectfully ask an amendment of the Constitution that shall prohibit the several States from disfranchising any of their citizens on the ground of sex.
In making our demand for suffrage, we would call your attention to the fact that we represent fifteen million people—one half the entire population of the country—intelligent, virtuous, native-born American citizens; and yet stand outside the pale of political recognition.
The Constitution classes us as “free people,” and counts us whole persons in the basis of representation, and yet are we governed without our consent, compelled to pay taxes without appeal, and punished for violations of law without choice of judge or juror.
The experience of all ages, the declarations of the fathers, the statute laws of our own day, and the fearful revolution through which we have just passed, all prove the uncertain tenure of life, liberty, and property so long as the ballot, the only weapon of self-protection, is not in the hand of every citizen.
Therefore, as you are now amending the Constitution, and, in harmony with advancing civilization, placing new safeguards round the individual rights of four million emancipated slaves, we ask that you extend the right of suffrage to women, the only remaining class of disfranchised citizens, and thus fulfill your constitutional obligation “to guaranty to every State in the Union a republican form of government.”
As all partial application of republican principles must ever breed a complicated legislation as well as a discontented people, we would pray your honorable body, in order to simplify the machinery of Government and insure domestic tranquility, that you legislate hereafter for persons, citizens, tax-payers, and not for class or caste.
For justice and equality your petitioners will ever pray.
E. Cady Stanton, New York.
Susan B. Anthony, Rochester, New York.
Antoinette Brown Blackwell, New York.
Lucy Stone, Newark, New Jersey.
Ernestine L. Rose, New York.
Joanna S. Morse, 48 Livingston Street, Brooklyn.
Elizabeth R Tilton, 48 Livingston Street, Brooklyn.
Ellen M. Squier, 34 St. Felix Street, Brooklyn.
Mary Fowler Gilbert, 294 West Nineteenth Street, New York.
Mary E. Gilbert, 294 West Nineteenth Street, New York.
Mattie Griffith, New York.
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The SPEAKER. The ten minutes of the gentleman from New York [Mr. BROOKS] have expired.
Mr. BROOKS. I will only say that at the proper time I will move to amend—or if I do not I would suggest to some gentleman on the other side to move it—this proposed amendment by inserting the words “or sex” after the word “color,” so that it will read:
Provided, that whenever the elective franchise shall be denied or abridged in any State on account of race or color or sex, all persons of such race or color or sex shall be excluded from the basis of representation.
Mr. STEVENS. Is the gentleman from New Your [Mr. BROOKS] in favor of that amendment?
Mr. BROOKS. I am if negroes are permitted to vote.
Mr. STEVENS. That does not answer my question. Is the gentleman in favor of the amendment he has indicated?
Mr. BROOKS. I suggested that I would move it at a convenient time.
Mr. STEVENS. Is the gentleman in favor of his own amendment?
Mr. BROOKS. I am in favor of my own color in preference to any other color, and I prefer the white women of my country to the negro. [Applause on the floor and in the galleries promptly checked by the Speaker.]
The SPEAKER. The Chair saw a large number of persons in the galleries publicly applauding by clapping their hands. He must, in conformity with the vote of the members of this House by which he was placed in the Chair, endeavor to the full extent of his ability, hoping to be supported by the House, but whether supported or not, to have this body act like a deliberative assembly. Applause is as much out of order as manifestations of disapprobation. Hissing is not more out of order than the clapping of hands. And if clapping of hands is indulged in by members upon the floor the Chair will find it far more difficult to repress similar manifestations in the galleries. The Chair must again appeal to gentlemen on this floor to set a proper example, and he will attempt to enforce order in the galleries, and persons sitting in the galleries must respect the decorum of debate. [snip]
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HOUSE OF REPRESENTATIVES
January 27, 1866
The SPEAKER pro tempore announced that the House was in session for the purpose of hearing speeches, to be delivered as in Committee of the Whole on the state of the Union, upon the President’s message, and that no other business would be in order, except the reception of messages from the Senate and motions to adjourn. [snip]
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RECONSTRUCTION
Mr. BAKER. Mr. Chairman, I rise to the question of reconstruction. …. [snip]
The very truth is, sir that the putting down the rebellion and the final restoration of a normal order called for the exhibition of two great agencies, essentially different in their character—the powers of war to crush the rebel forces in the field and on the sea, and after that, a civil policy prescribing a secure basis of pacification for the country. … [snip]
But, sir, to place this matter beyond all controversy, at least in the forum of reason and law, let us inquire with more particularity what are and ought to be the elements of that civil policy which should go before and inaugurate such return of the late rebel States to power. There first is the required constitutional amendment abolishing slavery throughout the jurisdiction of the Republic, and giving Congress power to make the same effectual by law. … The Constitution expressly confers on Congress by a two-thirds majority the power to propose, and on the States by a three-fourths majority the power to ratify, all constitutional amendments. Here, then, in this great part of the pacifying policy, the Executive nowhere appears, but only Congress and the States.
Again, another precedent condition is that the revolted States should each present a government republican in form, and of this Congress is the exclusive judge. In the great Rhode Island case, (Luther vs. Borden and others,) decided in 1849, the Supreme Court of the United States—considering of that section of the Constitution which provides for the guarantee of a republican form of government—uses the following language:
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“Under this article of the Constitution it rests with Congress to decide what government is the existing one in a State. For as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority, and its decision is binding on every other department of the Government.”
Thus the opinion of the court is that the Con-
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stitution devolves it upon Congress to look at the government of a State and “determine whether it is republican or not;” and further, that the decision of Congress upon the point “is binding upon every other department of the Government.” But aside from what the court has said, it is apparent from the very nature of the thing, that the great civil and political question—big with the rights of the southern people, white and black—involved in the determination of what is or is not a republican State, belongs essentially to the legislative branch of the Government. Of course, in the execution of this guarantee affirmative legislation by Congress would, as in other cases, have to be accompanied by the sanction of the President. [snip]
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The exact practical condition of the case, affirmatively stated, appears to me substantially as follows: the word “union” involves a complex, and not a simple idea. As applied to the Territories, this District, the forts, arsenals, and navy-yards of the Government, all of which are said to be in the Union, it includes, first, the sovereign right of eminent domain in the United States over the geographical surfaces of these several objects; and secondly, the right of sovereignty in the United States over all its citizens living on these geographical surfaces. As applied to the States, the term “union” includes not only the two ideas that the General Government has the sovereign right of eminent domain over their entire geographical surface, and the sovereign right of jurisdiction over all its citizens residing on that surface, but also the third idea, that the people of the States, properly constituted as such, have a right to participate in the government of the Union, by sending Representatives and Senators to Congress. Now, to be noted—for the point is vitally important, if we would really understand this vexed imbroglio—be it noted, that of these three cords of relation between the Government on the one hand, and the whole people and terra firma of the Union on the other, the first two are cords of obligation to the United States, while the third is a cord or privilege to the States respectively. The right of eminent domain, and the right of jurisdiction being cords of obligation to the United States, were not snapped by the rebellion. But the right to participate in the government of the Union, being a cord of privilege to the States respectively, was indisputably forfeited and snapped by plunging into open, flagrant war against the Union This conclusion cannot be denied without abandoning all reason and all principle—without maintaining that at the very time rebel cannon were planted upon the banks of the Potomac, and rebel legions were thundering at the gates of the capital, it was the right of rebel emissaries, masked as legislation of the Union, to step in here and help finish the work of ruin! This no one has been hardy enough and foolish enough to assert. So that this third cord of relation, this privilege of taking part in the government of the Union, was demonstrably snapped by the rebellion. Yet it does not follow that it should remain always, or even for a great while, severed, but only so long as may be necessary to take safe securities for the future, or, as I have said, to put the national house in proper order, before welcoming back those offending communities to the high privilege of again helping to rule a country, which, after doing their very best, they have been unable to destroy. The gentleman from Indiana [Mr. VOORHEES] wishes to know what clause of the Constitution can be cited justifying this postponement for guarantees. Why, sir, you can scarcely go amiss for them. The clause guarantying are republican government is one. The revolting States, as I have stated and proved, having voluntarily severed the cord of their governing connection with the Union, Congress can, under this clause, look at their existing organizations, and require them to be republican in form; in other words, require them to conform to the Constitution of the Union, before permitting them to resume their cast-off governing relation in the Union. What can possibly be plainer than this? Again, the power which authorizes the suppression of an insurrection carries with it, by necessary implication, the power to restore and to require a safe civil order after the insurrection is suppressed. Is not this intuitively seen to be true? Again, the Constitution authorizes Congress to provide for “the general welfare of the United States;” and what can be more fatally necessary to that welfare than the taking of all proper precautions before again admitting to power those who have so nearly destroyed the very life of the nation? This is not all, but it is enough to show conclusively, that the requirement of these preliminary securities has as strong a foundation in
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legal right as in common sense and true patriotism.
So far, then, it is entirely certain that by rebelling against the United States the rebel States became detached from their governing position in the Union, and may now be held so until proper measures of future safety can be provided. But did they cease to be States in every sense? In my opinion they clearly did not; and I think we only incumber ourselves with useless dead weight by assuming they did. An argument has been derived from the law of nations, and from other sources, by which it is undertaken to be shown that, inasmuch as these States cast off the superior authority of the United States, they thereby lost a vital requisite of State existence, and hence ceased to be States; not in proper relation to the Union, mark you, but ceased to be States absolutely. I will ask whether those thirteen communities, called in our Declaration “the United States of America,” ceased to be States by the act of throwing off the superior authority of the mother country? And did the States of Holland cease to be States by the act of repudiating the superior authority of Spain? And did the seven cantons of the Sonderbund cease to be cantons by their reactionary revolt against the Swiss confederacy, similar in so many respects to the late reactionary revolt against this Republic? I will venture to affirm that the proposition that any State whatever, whether in this Union or elsewhere on earth, ceases totally to be a State by the act of forcibly asserting its allegiance to a new superior authority, has no foundation in public law. Here again, as with the “Union,” it is only necessary to define accurately in order to walk with sure footing. Mr. Justice Story says:
“The word ‘State’ is used in various senses. In its most enlarged sense it means the people composing a particular nation or community” * * * * “But there is a more limited sense in which the word is often used, where it expresses the positive actual organization of the legislative, executive, or judicial powers.”
Now, it is palpable the revolting States did not cease to be States in the first and larger sense of the word. Their people did not become extinct. Neither did they, by the act of revolting and making war, cease substantively to be States in the more limited sense of the word; for each of them retained a powerful and efficient organization de facto for itself, constituting each of them a State de facto for the time. And that there is such a being as a State de facto known to the language of the law any one may learn by consulting Story. The decision of the Supreme Court in the prize cases, so often cited, gives no countenance to the notion that the whole idea of State was expunged by the rebellion, but expressly recognizes that that idea in some sense must be retained. The court says that “in organizing this rebellion they have acted as States;” that “several of these States have combined to form a confederacy;” that “the ports and territories of each of these States are held in hostility to the General Government.” How could the ports and territories of a State be held in hostility when there was not so much as the ghost of a State in the case?
But there is a third definition of a State. It is that complex political being which constitutes a member in proper relations to this Union. And here the integrity of the idea is invaded in the case of the revolted States. The fullness of the idea of a State in this sense involves, first, the performance of all things enjoined by the Constitution; secondly, the abstinence from all things forbidden by the Constitution; and thirdly, the right to participate in the Government of the Union under the Constitution. These States having angrily thrust from them the privilege of helping to govern the Union; having refused to do everything enjoined by the Constitution; and having done everything forbidden by it, even to the waging of a four years’ war for the subversion of the Republic, it not only results with crushing conclusiveness, as already stated, that they should not resume governing power until such resumption shall be safe for the country, but it also follows, with equal certainty, that inasmuch as their hostile organizations de facto, State and confederate, have been overthrown by the successful arms of the Republic, this righteous catastrophe left them in the condition of disorganized States. I say, emphatically, disorganized States in the Union and not out of it. … These disorganized States, though in the Union, can of course have no political power in the Government until they are properly organized as republican States with proper guarantees of public safety. ….
In my judgment, all the revolted States—Tennessee, in common with the rest—should be kept out of the governing power, which they thrust from them in exchange for treason and the sword, until the guarantees I have named shall be ratified by the voice of the nation and conformed to by each of the seceding States. [snip]
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Sir, let us act from no personal considerations and be governed by no surface views. Let us rise to the height of this argument, both by intellectual conception and by practical execution. We do not want a reconstruction, “deformed, unfinished,” “scarce half made up,” and “sent before its time” to curse instead of blessing the country! After the close of our seven years’ Revolution, it took eight years to span the chasm to the new order and adopt the present Constitution. Why shall we not now have a little hiatus of eighteen or twenty-four months between the suppression of this tremendous rebellion and that definite Civil Order upon which the Republic is to to be launched for the long future? That great amendment abolishing slavery has traversed in ten months’ time three fourths of the Legislatures and constituted bodies of the States. In like time, it may be, the additional constitutional guarantees we need can receive a like sanction.
Then, sir, we shall have built our house upon a rock, and not upon moving quicksand. Then the blood that has flowed and the hearts that have broken and died in this terrible war for liberty and nationality shall come forth from the ground and the grave and bless the hand of the builder! …. [snip]
Mr. BROOMALL. Mr. Chairman, the great political problem of the day, the problem on the right solution of which will depend the well-being of our country for ages is, what shall we do with the people lately in rebellion? The embarrassments which attend this question are not all embraced within its language, since one of the most serious of them is, who shall decide it; whether Congress, the courts, or the Executive, or some or all of them?
If there are no rights to be conferred, if the whole matter depends upon the existing rights of these people, then certainly Congress has nothing to do with it. The mere deciding upon the legality of the elections of claimants to seats, so far from being the solving of the great problem, is indeed no part of it. If, on the other hand, the business is not the mere ascertainment of rights, but the creating and conferring of them; and especially if there are no existing rights that interfere with such solution of the question as will be for the best interests of the rebels as well as ourselves, then the question is to be answered and the remedy applied, not by the Executive, not by the courts, but by the law-making power of the Government. I propose, therefor, to consider what is the legal status of these people, and whether they have any rights which will prevent our treating the question as one solely of policy.
If the late disturbance of the public peace was mere insurrection, now suppressed, it is clear that the rights of the people of the South as a people are in no way affected by the result, and the whole business consists in ascertaining these rights and remitting the respective southern communities to them. But to call that insurrection that resisted the military forces of the country for four years with success; that destroyed the lives of half a million of its citizens and brought mourning to one sixth of all the homes in the land; that cost on both sides twice the national debt of England, the product of a century of gigantic wars; that seized and held by force half the domain of the country; that swept our commerce from the ocean and had its flag respected, not only in foreign ports, but in the courts of our own country, and that was only suppressed by a series of military achievements such as the world never saw; to call that insurrection is a strange abuse of language. No! the conflict was war, terrible, bloody war, in which the defeated resisted to the last with a valor that commanded the wonder of the world, and then surrendered without conditions. The inquiry now is, what are the legal consequences of such a struggle with such a termination?
If the States were sovereign, they had the right to make war and accept its consequences; and a sovereign State vanquished in war ceases to exist, or exists only at the will of the Conqueror. The advocates of the old theory of State sovereignty, therefore, can set up no claim for the vanquished to interfere with our considering as one of policy, unembarrassed by the rights of defeated rebels.
But assume the opposite hypothesis, that the States are component parts of a single sovereignty, resembling counties, cities, and other such municipalities, how does this alter the result? Because they had less rights than sovereignty before the war shall we concede them greater rights than those of vanquished sovereignty now? Because they inaugurated war wrongfully and traitorously, not being sovereign, is this crime to be accounted in their favor in the construction of their surviving rights?
In this point of view, the conflict was civil war, differing from international war only in the fact that in the former one of the belligerents claims, has exercised, and is trying to en-
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force sovereign rights over the other. A logical consequence of this condition of things is that if the claimant of sovereign rights to be the victor, it may elect to treat the vanquished either as traitors or prisoners of war. It may enforce upon them either the civil law or the rights of conquest. The vanquished, having failed to throw off their allegiance, cannot deny being citizens to avoid the punishment of treason. On the other hand, having forsworn their allegiance, having set up an independent government and waged war as a nation, they are estopped from pleading the rights of citizenship to defeat the rights of conquest. All this is in accordance with common reason. It is fully sustained by writers on the law of nations, and is laid down as applicable to the late rebellion by the Supreme Court in the prize cases. [snip]
But it is said that States cannot rebel, that the late war was waged by individuals only, and therefore that the States have been in no way affected by its progress or termination. This is strange argument from the lips of those who believe in the sovereignty of the States, since one essential element of sovereignty is the power to make war. But without this attribute why cannot States rebel? Why may they not inaugurate civil war? To make war, combinations of men are necessary, quasi corporations for belligerent purposes. One man cannot make war; ten thousand cannot, acting without concert. The organized body that wages war may be one formed for the purpose, or it may be a preexisting one formed for some other purpose and wrongfully or rightfully perverted. If the organized body that wages war is the State, if the State employs soldiers and pays them, appoints and commissions officers, provided arms and munitions of war, establishes courts-martial, and if with all this war really exists, can it be said that the State does not make war? If the war is civil war, beginning on that side by rebellion, can it be said that the State does not rebel?
I can well understand that a rebellion may exist without being participated in by a State. If the combination of men that wages war is not the combination that forms the State, as in the cases of the Dorr rebellion and the whisky insurrection, then the State is not in rebellion. But if the Governor of Pennsylvania, the Legislature, the courts, the entire municipal machinery, had been turned over to the purposes of the whisky insurrection, history would have truly said that the State of Pennsylvania rebelled.
Now, what State of the entire eleven not now represented in the Government of the country did not turn its entire organization over to the purposes of the late rebellion? What Governors, what legislators, the judges of what courts, did not unite in the blasphemous oath to subvert the Government of their country? What functions of Government, executive, legislative, or judicial, in any of those States were not used for the single purpose of waging war against the United States? [snip]
Now, according to the strict law of nations, as always enforced in ancient times, and always now unless restrained by respect to public opinion, a conquered people have no rights, either civil or political. With all the restraints which modern civilization has imposed upon the will of the conqueror, he may still exact all the guarantees necessary to prevent a recurrence of hostilities, and he is the sole and irresponsible judge of those guarantees. His power is therefore absolute, and if he abuses it the law of nations knows no remedy. [snip]
Now, according to the strict law of nations, as always enforced in ancient times, and always now unless restrained by respect to public opinion, a conquered people have no rights, either civil or political. With all the restraints which modern civilization has imposed upon the will of the conqueror, he may still exact all the guarantees necessary to prevent a recurrence of hostilities, and he is the sole and irresponsible judge of those guarantees. His power is therefore absolute, and if he abuses it the law of nations knows no remedy.
Mr. NIBLACK. Will the gentleman allow me to interrupt him for a moment?
Mr. BROOMALL. I will yield for a question.
Mr. NIBLACK. I would like to inquire of the gentleman if he wishes us to understand him as asserting that those people may be reduced to absolute despotism if the conquering power sees fit to exercise that power over them?
Mr. BROOMALL. I have said that if the power of the conqueror in war is abused the law of nations knows no remedy. I hope the gentleman’s question is answered. I am not for using this absolute power for the purpose of abusing it, or of abusing any of the people of the United States, North or South; but I am maintaining the right of the conqueror always in international wars to treat the conquered as it pleases, without responsibility to anybody but the Almighty; and in civil wars, in rebellions, it may treat the conquered and revolted subjects or citizens either as traitors or as prisoners of war; and if it elects to treat them as prisoners of war, then it does away with the distinction between international and civil war.
Mr. NIBLACK. I want to understand the gentleman’s position. Does he claim this as a moral right, or as a right of force merely? If the power is abused in this respect, he says there is no remedy. Do I understand him as holding that it would not be a case in which other nations might interfere?
Mr. BROOMALL. Not according to the laws of nations. Other nations may remonstrate, but they can do nothing more. [snip]
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The position taken by the late rebels who are now claiming as a right the restoration of all they have forfeited, the position so forcibly laid down by the gentleman from New York, [Mr. RAYMOND,] as well as by his fellow-laborers, the gentlemen from New Jersey [Mr. ROGERS] and the gentleman from Indiana, [Mr. VOORHEES,] is in substance this: though he people of those eleven States became first traitors, then belligerents, and finally suppressed rebels, yet this had no effect upon the States themselves. The States being either sovereign, or component parts of a larger sovereignty, could not be destroyed or in any manner affected by the acts of the people.
According to this theory, there was no time during the last five years when these States had not a right to representation in Congress. In the darkest days of that eventful period the Representatives of South Carolina had a right to seats in this Hall, a right to vote on all questions of supplies to the Army, on all loan bills, on measures touching the punishment of guerrillas and the confiscation of rebel property.
That the Democrats of this body should maintain such a doctrine is not to be wondered at, since, during all that period, the most malignant traitor in the entire South would have voted with them upon all these questions. But it is matter of some surprise that these few but adroit men have managed to convert the gentleman from New York to their political persuasion.
Imagine the Representatives and Senators from these eleven States voting down, by the aid of their northern friends, the bill providing for drafting men to fill the depleted ranks of the Army after the retreat from Richmond; voting down the bill authorizing the issuing of legal tenders, when money could not be borrowed at twelve per cent, per annum; voting down the
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bill providing for the enlistment of negroes with the drain upon the white men of the country had begun to be oppressive. [snip]
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In short, the Government of the United States above all other duties owes it to itself and to humanity to guard the rights of those who, in the midst of rebellion, periled their lives and fortunes for its honor, of whatever caste or lineage they be. These people have common cause. In the darkest day of our country’s trial, when treason within and treason without waited only to shake hands over the grave of the Republic, the loyal men of the North demanded the aid of the negro as a soldier. He came amid the sneers of polished disloyalty and the curses of unpolished. They shared the danger and the victory. Now the loyal men of our own lineage in the South are asking the aid of the negro to confront pardoned but unrepentant traitors at the ballot-box. Again the sneers and curses of polished and unpolished disloyalty are brought into requisition. But shall the request be denied? It is within the possible future that the loyal white men and the loyal black men, working side by side, will yet reconstruct the South on the basis of equal rights to all men, not only before the law, but in that which makes the law, thrusting out of the way those abortions assuming to be States, the hybrid products of the most corrupt elements of northern and southern society. [snip]
During this experiment these people will be taxed by the United States without their consent; but this is a small punishment for so enormous a crime as that which brought upon them this state of things. They taxed us without our consent, both in blood and money, for four long years.
In the mean time let the Constitution be so amended that a representative from South Carolina will not be elected by a fourth of the number of electors required for one from Pennsylvania; so that if the negro of the South must be counted as a political element in the Union he shall cast his own vote, and not have it cast by his antagonistic and probably disloyal neighbor.
If the experiment shall result in favor of these organizations, I propose that they be constituted States of the Union by act of Congress. If, as is much more likely, they shall prove unable or unwilling to protect the interests of all classes, and especially of those who never voluntarily rendered aid or comfort to the rebellion, then Congress should thrust them aside as the President did their predecessors, and create new States by the votes and voices of the loyal men of the South only, forever excluding the active and willing traitors. But under no circumstances will I consent to erect any such community into a State of the Union as long as standing armies are needed in that community to preserve the public peace and collect the public revenue. [snip]
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IN SENATE
January 29, 1866
PROTECTION OF CIVIL RIGHTS
The PRESIDENT pro tempore. The morning hour having expired, it becomes the duty of the Chair to call up the unfinished business of Friday, which is the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication, which is now before the Senate as in Committee of the Whole.
Mr. TRUMBULL. Before proceeding with the bill under consideration, I desire to offer an amendment, to insert after word “that,” in the third line of the first section, the words, “all persons of African descent born in the United States are hereby declared to be citizens of the United States and;” so that the section will read:
That all persons of African descent born in the United States are hereby declared to be citizens of the United States, and there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery, &c.
Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. Of what avail was the immortal declaration “that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness,” and “that to secure these rights Governments are instituted among men,” to the millions of the African race in this country who were ground down and degraded and subjected to a slavery more intolerable and cruel than the world ever before knew? Of what avail was it to the citizen of Massachusetts, who, a few years ago, went to South Carolina to enforce a constitutional right in court, that the Constitution of the United States declared that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? And of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist, if in the late slave holding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to free men?
It is the intention of this bill to secure those rights. The laws in the slave holding States have made a distinction against persons of African descent on account of their color, whether free or slave. I have before me the statutes of Mississippi. They provide that if any colored person, any free negro or mulatto, shall come into that State for the purpose of residing there, he shall be sold into slavery for life. If any person of African descent residing in that State travels from one county to another without having a pass or a certificate of his freedom, he is liable to be committed to jail and to be dealt with as a person who is in the State without authority. Other provisions of the statute prohibit any negro or mulatto from having fire-arms; and one provision of the statute declares that for “exercising the functions of a minister of the Gospel free negroes and mulattoes, on conviction may be punished by any number of lashes not exceeding thirty-nine on the bare back, and shall pay the costs.” Other provisions of the statute of Mississippi prohibit a free negro or mulatto from keeping a house of entertainment, and subject him to trial before two justices of the peace and five slaveholders for violating the provisions of this law. The statutes of South Carolina make it a highly penal offense for any person, white or colored, to teach slaves; and similar provisions are to be found running through all the statutes of the late slave holding States.
When the constitutional amendment was adopted and slavery abolished, all these statutes became null and void, because they were all passed in aid of slavery, for the purpose of maintaining and supporting it. Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment. The first section of the bill, as it is now proposed to be amended, declares that all persons of African descent shall be citizens of the United States, and—
That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceeding for the security of person and property, and shall be subject to punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.
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This section is the basis of the whole bill. The other provisions of the bill contain the necessary machinery to give effect to what are declared to be the rights of all persons in the first section, and the question will arise, has Congress authority to pass such a bill? Has Congress authority to give practical effect to the great declaration that slavery shall not exist in the United States? If it has not, then nothing has been accomplished by the adoption of the constitutional amendment. In my judgment, Congress has this authority. It is difficult, perhaps, to define accurately what slavery is and what liberty is. Liberty and slavery are opposite terms; one is opposed to the other. We know that in a civil government, in organized society, no such thing can exist as natural or absolute liberty. Natural liberty is defined to be the—
“Power of acting as one thinks fit, without any restraint or control, unless by the law of nature, being a right inherent in us by birth, and one of the gifts of God to man in his creation, when he imbued him with the faculty of will.”
But every man who enters society gives up a part of this natural liberty, which is the liberty of the savage, the liberty which the wild beast has, for the advantages he obtains in the protection which civil government gives him. Civil liberty, or the liberty which a person enjoys in society, is thus defined by Blackstone:
“Civil liberty is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public.”
That is the liberty to which every citizen is entitled; that is the liberty which was intended to be secured by the Declaration of Independence and the Constitution of the United States originally, and more especially by the amendment which has recently been adopted; and in a note to Blackstone’s Commentaries it is stated that—
“In this definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit.”
Then, sir, I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited. We may, perhaps, arrive at a more correct definition of the “citizen of the United States” by referring to that clause of the Constitution which I have already quoted, and which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” What rights are secured to the citizens of each State under that provision? Such fundamental rights as belong to every free person. Story, in his Commentaries, in commenting upon this clause of the Constitution of the United States, says:
“The intention of this clause was to confer on citizens, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.”
There have been several decisions of courts upon this clause of the Constitution. It was decided by the general court of the State of Maryland (Chase and Duval, justices) that this section meant that the citizens of all the States should have the peculiar advantage of acquiring and holding real as well as personal property, and that such property should be protected and secured by the laws of the State in the same manner as the property of the citizens of the State is protected. It meant that such property shall not be liable to any tax or burdens which the property of the citizen is not subject to. It may also mean that, as creditors, they shall be on the same footing with the State creditor in the payment of the debts of a deceased debtor. It secures and protects personal rights. (Campbell vs. Morris, 3 Harris and McHenry, 535.)
This clause of the Constitution, according to the decision of the Indiana court made in 1797, “secures and protects personal rights” and gives to every person who is a citizen of one State the same rights to hold property, the same personal rights, that the citizen of that State has.
A decision by the supreme court of Massachusetts upon this clause of the Constitution declares that—
“The privileges and immunities secured to the people of each State in every other State can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens; that is, they shall not be deemed aliens, but may take and hold real estate; and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized.”—6 Pickering, 92, Abbott vs. Bayley.
But, sir, the decision most elaborate upon this clause of the Constitution is to be found in Washington’s Circuit Court Reports, in a case which was reserved for consideration after argument. I will read several sentences from the opinion of the circuit judge, because it will be
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seen that he enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of this bill. He says:
“The next question is, whether this act infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’
“The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind; and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions that are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to the fundamental; to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised.”—Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, page 380.
This judge goes further than the bill under consideration, and he lays it down as his opinion that under this clause of the Constitution, securing to the citizen of each State all the privileges and immunities of citizens of the several States of the United States, a person who is a citizen in one State and goes to another is even entitled to the elective franchise; but at all events he is entitled to the great fundamental rights of life, liberty, and the pursuit of happiness, and the right to travel, to go where he pleases. This is a right which belongs to the citizen of each State.
Now, sir, if that be so, this being the construction as settled by judicial decisions to be put upon the clause of the Constitution to which I have adverted, how much more are the native-born citizens of the State itself entitled to these rights! In my judgment, persons of African descent, born in the United States, are as much citizens as white persons who are born in the country. I know that in the slave holding States a different opinion has obtained. The people of those States have not regarded the colored race as citizens, and on that principle many of their laws making discriminations between the whites and the colored people are based; but it is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do Then they will be entitled to the rights of citizens. And what are they? The great fundamental rights set forth in this bill: the right to acquire property, the right to go and come at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property. These are the rights that are set forth in this bill as appertaining to every freeman.
Mr. VAN WINKLE. If the gentleman will permit me, before he passes from this subject I should like him to explain, if these Africans are not now citizens of the United States, where is the authority by law of Congress to make them citizens?
Mr. TRUMBULL. The Constitution of the United States confers upon Congress the right to provide uniform rules of naturalization.
Mr. VAN WINKLE. For the admission of foreigners.
Mr. TRUMBULL. Not necessarily of foreigners.
Mr. VAN WINKLE. For the naturalization of foreigners, if I recollect the language.
Mr. TRUMBULL. If the Senator from West Virginia will look into the statutes, he will find that it has happened in the history of the Government more than once that Congress by general act has naturalized a whole people. I think there was an act of that kind in reference to the Stockbridge Indians, an act of that character making citizens of the United States of the people of Texas and the people of Florida I think. There have been several general laws of that character; and the authority under the Constitution of the United States to declare who shall be citizens of the United States is, as I understand, vested in Congress and nowhere else. My friend from Massachusetts [Mr. SUMNER] has handed me the constitutional clause on this subject, which declares that Congress shall have power “to establish a uniform rule of naturalization.” Nothing is said about foreigners.
Mr. VAN WINKLE. I perceived my mistake before the gentleman read the clause.
Mr. TRUMBULL. So, sir, I take it that it is competent for Congress to declare these persons to be citizens. They being now free and citizens of the United States, as citizens they are entitled, as I have undertaken to show, to the great fundamental rights belonging to free citizens, and we have a right to protect them in the enjoyment of them. [snip]
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Then, under the constitutional amendment which we have now adopted, and which declares that slavery shall no longer exist, and which authorizes Congress by appropriate legislation to carry this provision into effect, I hold that we have a right to pass any law which, in our judgment, is deemed appropriate, and which will accomplish the end in view, secure freedom to all people in the United States. The various State laws to which I have referred—and there are many others—although they do not make a man an absolute slave, yet deprive him of the rights of a free man; and it is perhaps difficult to draw the precise line, to say where freedom ceases and slavery begins, but a law that does not allow a colored person to go from one county to another is certainly a law in derogation of the rights of a free man. A law that does not allow a colored person to hold property, does not allow him to teach, does not allow him to preach, is certainly a law in violation of the rights of a freeman, and being so may properly be declared void. [snip]
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Mr. TRUMBULL. This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man.
Having stated this much in regard to the object of the bill and its main features, I submit it to the Senate, and shall not further occupy its attention at the present time, and perhaps not at all unless it should be to reply to suggestions which may be made by others.
Mr. SAULSBURY. Mr. President, I regard this bill as one of the most dangerous that was ever introduced into the Senate of the United States, or to which the attention of the American people was ever invited. During the last for or five years I have sat in this Chamber and witness the introduction of the bills into this body which I thought obnoxious to many very grave and serious constitutional objections; but I have never since I have been a member of the body seen a bill so fraught with danger, so full of mischief, as the bill now under consideration. Deeming it to be of this character, duty to my country, duty to my State, duty to myself as a man, as a citizen, and as a legislator, duty to my children, and duty to my fellow-citizens everywhere, demands that I should utter my protest against its enactment into a law. Before, however, I proceed to consider it in the light of the Constitution as it existed previous to the recent amendment, let me notice the basis of authority for it as claimed by the honorable Senator from Illinois.
I presume that honorable Senator would not contend that, independently of the constitutional amendment, Congress had a right to enact this law, although I know that many have claimed powers equally extensive. But from the argument of the honorable Senator, I infer that the sole basis of authority in his judgment for passing the bill is the amendment to the Constitution of the United States abolishing slavery. If that be so, it is admitted that before the adoption of that amendment Congress had not the right to enact such a law as this. Let us consider then for one moment whether the adoption of that amendment have to Congress such as authority.
What was that amendment? That neither slavery nor involuntary servitude should exist in the United States, except as a punishment for crime whereof the party should have been duly convicted. Now, here is a complete answer, in my judgment, to the argument of the honorable Senator, based upon the authority conferred by that amendment. Before and at the time of the adoption of that amendment the people of the United States were composed of persons of different races, the two main portions of which were white and black; the whites were free; a portion of the black population were free and a portion were slaves. In my own State there were about ten free negroes to one slave. In Kentucky and in most of the slave holding States there were large free negro populations, as we supposed. [snip]
Mr. HOWARD. I wish to put a question to the honorable Senator from Delaware, with his permission; I do not intend to interrupt the tenor of his remarks. My question is whether the amendment of the Constitution does not render persons who were formerly slaves free men, whether that be not the intention and effect in law?
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Mr. SAULSBURY. I answer the honorable Senator with pleasure. The operation, the effect of that amendment is simply to say that a person who heretofore was a slave of another shall be no longer his slave, and it operates no further. It bestows no rights further than to relieve him from the burdens of servitude and slavery. A man may be a free man and not possess the same civil rights as other men. … If you intended to bestow upon the freed slave all the rights of a free citizen, you ought to have gone further in your constitutional amendment, and provided that not only the status and condition of slavery should not exist, but that there should be no inequality in civil rights. [snip]
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In 1778 these separate and independent States united in Articles of Confederation by their separate names, each reserving to itself its own absolute sovereignty, and agreeing upon certain conditions for certain general common purposes and benefits. Thus they continued until the treaty of peace in 1783, when the mother country by that treaty acknowledged them to be what? An independent United States? An independent, united people, Government, or nation? No, sir; but naming each separate State by name, she acknowledged each to be a separate independent State. As separate and independent States they continued until the formation of the Federal Union in 1787. In the Declaration of Independence they declare themselves independent States. The independent colonies united for common purposes of defense by the declaration of their independence of Great Britain, became independent States, united for the common purpose of making that declaration good and effective. The Union of 1787 ordains and establishes the Constitution for the “United States of America.” States in the Declaration of Independence, States in the Articles of Confederation, and States in the Constitution evidence the independent existence and sovereignty of the States respectively. The ratification of the Constitution was by the States, and not by the majority of all the people, nor by a majority of all the States. This ratification was at different times, and by each State acting for itself alone. The words “we, the people of the United States,” employed in the preamble to the Constitution, do not in the least conflict with this proposition. These words mean the same and no more, as we, the people of Delaware; we, the people of Maryland; we, the people of Pennsylvania, and we, the people of the other States respectively; and the meaning is the same as if the names of the several States had been inserted in that preamble; and this is evidenced by the several and separate ratifications of the Constitution and the form of such ratification. The style or title of United States was proper to describe a consideration or union of independent States, but improper to describe a consolidated nation. No nation or State of America existed; but States did exist. The Constitution was made by and for them, and not by or for the nation or State of America. The people of each State, or each State constituted by a people, conveyed to a Federal authority, organized by States, a portion of State sovereign powers, and retained all other State sovereign powers. If the powers ceded or granted were sovereign, so the powers retained were sovereign. The mode of amending the Constitution sustains the correctness of the general proposition I have announced. Such amendments must be proposed to each separate State, and receive the ratification of each separately.
If the power to pass such an act as this exists anywhere, it must exist in the Constitution as originally framed. Sir, was it ever pretended by any statesman before that that Constitution conferred such a power as this? Look at the powers enumerated in the Constitution and see whether it is possible for the ingenuity of man to arrive at the conclusion that any such power exists; for, Mr. President, the Constitution is the bond of agreement according to the terms of which the States agreed to live together, and all the powers which Congress possesses are found in the eighth section of the first article of the Constitution. They are: “to lay and collect taxes, duties, imposts,” &c., to “borrow money,” to “establish uniform rules of naturalization,” to “coin money,” to “provide for the punishment of counterfeiting,” to “establish post offices,” to “promote the progress of science and arts,” to “constitute tribunals” of justice, to “define and punish piracy,” &c., to “declare war,” to “raise and support armies,” to “provide a Navy,” to “make rules for the government and regulation of the land and naval forces,” to “provide for calling forth the militia,” &c., to “provide for organizing, arming, and disciplining the militia,” &c., to “exercise exclusive legislation in all cases” over this District, or such district as should be established as the seat of Government, and to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”
That is the sole, almost the entire, authority given under the Constitution to this Federal Government. Under any of these powers granted by the States to the Federal Government does any such power as that now claimed exist, for, mark you, all powers not granted by that instrument are reserved to the States respectively or to the people?
I propose now to examine this bill to see that its provisions are such that it cannot come within the power of Congress, either under the Constitution before it was amended, or under the Constitution as recently amended abolishing slavery in the United States.
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The honorable Senator from Illinois has avowed that he does not propose by this bill to confer any political power. I have no doubt the Senator is perfectly honest in that declaration, and that he personally does not mean to give any political power, for instance the right of voting, not only to the free men, but to the whole race of negroes; but the intention of the Senator in framing this bill will not govern its construction, and I have not the least doubt that should it be enacted and become a law, it will receive very generally, if not universally, the construction that it does confer a right of voting in the States; and why do I say so? Says the Senator, “It confers no political power; I do not mean that.” The question is not what the Senator means, but what is the legitimate meaning and import of the terms employed in the bill. It words are, “That there shall be no discrimination in civil rights or immunities.” What are civil rights? What are the rights which you, I, or any citizen of this country enjoy? What is the basis, the foundation of them all? They are divisible into but two classes; one, those rights which we derive from nature, and the other those rights which we derive from government. I will admit that you may divide and subdivide the rights which you derive from government into different classifications; you may call some, for the sake of convenience and more definiteness of meaning, political; you may call others civil.
But here you use a generic term which in its most comprehensive signification includes every species of right that man can enjoy other than those the foundation of which rests exclusively in nature and in the law of nature. Now, I ask the honorable Senator to show me, if he can, any origin of a right he has or can have that is not derived either from nature or from government. I shall enter into no discussion or argument in reference to what are the rights man has by nature; they are familiar to the legal mind and to the thoughtful student. The rights which a man has under government are defined in the fundamental or other law of the Government under which he lives. How do I possess the right of voting in the State of Delaware? Is that a civil right? A civil right I define to be a right belonging to the citizen, and which he possesses only by virtue of cit-
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izenship. I know of no clearer definition of civil rights than that; the rights which I have by reason of the law of the State under which I live, whether they be rights secured by the fundamental law, the constitution of the State, or be secured by enactments of the Legislature.
The right to vote is not a natural right; I did not possess it by nature, I only possess it by virtue of law. The constitution of the State, which is the fundamental law, bestows it; it says when I arrive at the age of twenty-one years, and have resided in that State for one year, I shall have the right of voting. I possess it in no other manner. I hold it by no other tenure. It is conferred upon me by law. It is a right derived from law, and it pertains to me as a citizen of my State; and pertaining to me as a citizen of my State, it is a civil right, and is a right of no other class or character. [snip]
But, sir, let me call your attention for a moment to what are the powers of the States under the Federal Constitution, and what it is they do not and never did intend to surrender to the Federal Government.
The Federalist speaking on this subject says:
“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
I cite that to show that in the judgment of the men who made the Constitution all these powers embraced in your bill are reserved to the States and to the States exclusively, because certainly they concern the lives, liberties, and properties of the people. ….
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Sir, was I wrong in my opening remarks when I said that this was one of the most dangerous bills, as well as one of the most unconstitutional bills, that could engage the attention of the Senate of the United States. Go sweep the whole field of legislation in any country in which a legislative body has ever sat, and drag from the pigeon-holes where moulder and rot its records, and show me, if you can, and enactment so flagrantly unjust, so oppressive in its character, so violative of all rights of the citizen, as this.
Mr. President, I know that any appeal that we can make will be in vain, or at least I have no reason to suppose that any we can make will be effective for good. The passage of this bill, if it shall become a law by the approval of the President, and shall go into practical effect, is the last act to convert a Federal Government with limited and well-defined powers into and absolute, consolidated despotism. [snip]
I have seen how under this Union we had become great in the eyes of all nations; and I see now, notwithstanding the horrible afflictions of war, if we can have wisdom in council and sincere purpose to subserve the good of the whole people of the United States, though much that was dear to us has been blasted as by the pestilence that walketh in darkness and the destruction that wasteth at noon-day, how we might in the providence of God resume our former position among the nations of the earth, and command the respect of the whole civilized world. But, sir, to-day, in viewing and in considering this bill the thought has occurred to me, how happy were the founders of our Federal system of government that they had been taken from the council chambers of this nation and from among their fellow-men before bills of this character were seriously presented for legislative consideration. Happily for them, they sleep their last sleep, and—
“How sleep the brave who sink to rest
By all their country’s wishes blest!
When Spring with dewy fingers cold
Returns to deck their hallowed mould,
She there shall dress a sweeter sod
Than Fancy’s feet have ever trod.
By fairy hands their knell is rung;
By forms unseen their dirge is sung’
There Honor comes, a pilgrim gray,
To bless the turf that wraps their clay;
And Freedom shall henceforth repair
And dwell a weeping hermit there.”
Mr. SUMNER. I move that the Senate proceed to the consideration of executive business.
The motion was agreed to; and after some time spent in executive session, the doors were reopened, and the Senate adjourned. [snip]
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IN SENATE
January 30, 1866
PROTECTION OF CIVIL RIGHTS
The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication; the pending question being on the amendment of Mr. Trumbull to the first section of the bill.
Mr. SAULSBURY. I ask for the yeas and nays on that amendment.
The yeas and nays were ordered.
Mr. COWAN. I should like to have the amendment read.
The Secretary read the amendment, which was in section one, line three, after the word “that” to insert “all persons of African descent born in the United States are hereby declared to be citizens of the United States, and;” so that will read:
Be it enacted, &c., That all persons of African descent born in the United States are hereby declared to be citizens of the United States, and there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery, &c.
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Mr. VAN WINKLE. Mr. President, when I interrupted the Chairman of the Committee on the Judiciary yesterday to make an inquiry, I made it in entire good faith, and for the purpose of eliciting information on the subject in order that I might know how to vote on this amendment. I had believed, and had avowed that belief on this floor in April, 1864, that persons of African descent in this country were not citizens of the United States; and with the permission of the Senate I will read an extract from my speech at that time as giving the reasons for that opinion. I said then:
“I ask, first, whether persons of the negro race are, or indeed can be, citizens of the United States without a constitutional amendment? Most certainly they were not counted among ‘we the people’ who established the national Constitution, nor were they at that time, so far as I am informed, admitted to exercise the rights and privileges of citizenship in any State. From the foundation of the Government, they could not obtain passports to foreign countries from the State Department. These are contemporaneous interpretations of the Constitution which cannot be disregarded. At various periods since and in many instances the courts of the States, and of the United States, have decided that they are not citizens. The constitution of Indiana, and the laws of several States, forbid them to come within their borders for permanent residence, which prohibitions would be of no effect if they are citizens. Whatever privileges individual States may accord to them they cannot make them citizens of the United States, so as to be ‘entitled to all privileges and immunities of citizens in the several States.’ They are not citizens by birth, for the common law of England is not of force under the National Constitution. That they cannot be made citizens by incidentally calling them such in an act of Congress is palpable. Whether that body can make them citizens by an act passed for the purpose is, perhaps, doubtful. Their position is certainly anomalous, but there is no more perfect right possessed by communities and societies of every kind than that of excluding from citizenship or membership such persons as they deem proper.”
That I may not be mistaken in regard to what I mean by a citizen, I will say that I mean by that term one who is an integer of the body-politic or community. By that it will be perceived I include only those who go to make up the nation. There may be residing among any people those who, under the English law, are called denizens, or there may be aliens not naturalized, or aliens who are there for temporary purposes; or, taking the first two classes, aliens who have come here with a determination to remain here, or those who are entitled to the claim of denizens, although they go to make up the body of the people, yet they are not citizens of the State or country. I am confirmed in the belief which I have entertained on this subject by the fact that in another part of this Capitol within two weeks past two bills have been introduced proposing to declare these people citizens of the United States; and now that the chairman of the Judiciary Committee, with, I presume, the approbation of that committee, has made a similar proposition in this body, it certainly yields the point that they are not citizens, and my doubts on the subject, so far as I entertained them, have been removed.
I think sir, that we have now at last got to the beginning of all these questions in reference to the negro race. I think it needs a constitutional amendment to make these people citizens of the United States. I am not satisfied with the reasons given by the Senator from Illinois yesterday for doing it under the clause of the Constitution authorizing Congress to pass uniform laws of naturalization. I think it is one of the gravest subjects that ever could be submitted to the people of the United States, and it involves not only the negro race, but other inferior races that are now settling on our Pacific coast, and perhaps involves a future immigration to this country of which we have no conception, for a bill has been introduced at the other end of the Capitol to strike out the word “white” from the naturalization laws, so that we may expect to have an influx here of all sorts of people from all countries. I need not pause to say that this would be detrimental to the best interests of our country. I am willing to receive among us, and always have been, those from other countries who are calculated to make good citizens. I am not and never have been willing to receive, if the discrimination could be made, those whose mixture with our race, whether they are white or black, could only tend to the deterioration of the mass; and I avow myself now as opposed to the amendment which is now before the Senate for the reasons that I have already stated.
Here let me say before proceeding further, that if by authoritative action of the people of the United States, by the deliberate expression of those who may be properly charged to express their voice in relation to this matter, it should be declared that these persons of African descent or of foreign races are citizens of the United States, I should feel very different about the vote that I might give in relation to the subject in my own State. I believe there are certain fundamental and eternal principles that lie at the foundation of society; and if you make these people citizens of the United States, I should feel that they were entitled to the right of suffrage. Of course, this must be governed by circumstances of various kinds, so that some restrictions may be placed upon them as we place restrictions upon others. [snip]
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But I must say that, in my opinion, notwithstanding the remarks made by the chairman of the Committee on the Judiciary yesterday, the mode in which it is proposed to effect this object is neither constitutional nor legal. I do not think that the clause that is proposed to be introduced into this bill, providing that persons of African descent are and shall be hereafter citizens of this country, is sufficient to do it. If they are not, as seems to be admitted on all hands, at this time citizens of the United States, they must be got in under some authority of the Constitution. The gentleman points us to the clause authorizing naturalization. I was mistaken yesterday in saying that the language of the Constitution expressly applied to the naturalization of foreigners; but I apprehend from the term used that I was not wrong in the conclusion that that clause was intended to apply to foreigners only. Be that as it may, however, the clause of the Constitution is that there shall be a uniform rule on the subject of naturalization. I cannot say that I know of any decision as to the force of that word “uniform.” Taking it, however, in its ordinary acceptation, it would seem to mean this at least, with other things, perhaps, that the laws in reference to the naturalization of all persons should be uniform. We have laws in force for the naturalization of foreigners; and I would remind the chairman of the committee that the case he cited of Stockbridge Indians was also the naturalization of foreigners; for we hold Indian tribes to be quasi foreign nations; we, at least, make treaties with them, which are confirmed by this body. The laws of naturalization as they stand require a notice to be given and a renunciation of the allegiance to all foreign Powers, and require that notice to be given, I believe, two years before the application is made; but there is no provision of that sort in this proposition. …. [snip]
Mr. TRUMBULL. I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.
[My comment about Sen. Trumbull’s ‘understanding’: “…under the naturalization laws the children…born here of parents...not...naturalized are citizens”.]
Senator Trumbull was correct about the naturalization laws of the individual states, before and after September 17, 1787 when the Constitution was adopted. Before and after 1787 (until the 1868 Fourteenth Amendment) children were considered to be citizens of the individual state if the state allowed citizenship if they were born to parents who were not naturalized citizens of that state. That is why some states did consider children to be U. S. citizens if born on U. S. soil to German parents who were not naturalized U. S. citizens, and until 1868 did not consider negroes, gypsies, Chinese, Australians, Hottentots, etc., to be a state citizen.
Sen. Trumbull’s January, 1866 words “are citizens” did not pertain to the entire nation whereas the words of the 1868 Fourteenth Amendment (“are citizens of the United States”) did pertain to the entire nation. Why the difference? Because three fourths of the Legislatures of the “several States” (Article V) ratified the language of the Constitution. The 1866 Civil Rights Act of Congress did not take precedence over the rights of states to enact their own civil rights laws which excluded negroes, gypsies, Chinese, etc. That was the reason for the debate about the need of a civil rights bill.
This Trumbull and Cowan discussion about citizenship which is “declared” by the U. S. Congress pertains only to the soon to be enacted 1866 Civil Rights Act which would include explicit language about “… all persons born in the United States and not subject to any foreign power … are hereby declared to be citizens of the United States”, and would not include explicit or implicit references to being a “natural born Citizen” and eligibility to be president.
The Trumbull and Cowan discussion did not pertain to the future 1868 Fourteenth Amendment to the Constitution which would also have language which would make children born in any state a citizen of their birth state and a citizen of the entire nation at birth when born “subject to the jurisdiction” of the United States. How? By birth alone to married parents who both are U. S. citizens before a child is born on U. S. soil.
In the 1868 amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside….”) born “subject to the jurisdiction” meant (and still means today in the 2000s) subject to the jurisdiction of the nation to which the U. S. citizen parents are subject, and so, acquiring U. S. citizenship by birth alone to U. S. citizens.
A child, if born to U. S. citizens married only to each other, was recognized to be an Article II “natural born Citizen” by birth alone and also eligible to be president. Neither Article I naturalization by a civil rights act of Congress nor Article III naturalization by Supreme Court fiat can generate (a natural law word) a child eligible (a law of people word) to be president.
From the 1700s to the 2000s, a child born to a female U. S. citizen who was not married, a positive law “legal” word, (even if she knew who the birth male was it did not matter if the male was a U. S. citizen or an alien), the child was considered under the Article I immigration and naturalization authority of the Congress, to be a “citizen” of the United States. The child was not considered, not declared, not recognized (pick a word) an Article II “natural born Citizen”, and so not eligible to be president. [End of comment]
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Mr. COWAN. The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.
Mr. TRUMBULL. If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European. [snip]
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Mr. COWAN. Mr. President, I am asked, with quite an air of certainty on the part of the chairman of the Judiciary Committee, whether the children of persons of barbarian races, born in this country, are not from that very fact citizens of this country. I am not prepared upon the moment to furnish authorities upon this point; but I am certainly very clear that in Pennsylvania that is not the law, and never has been the law; and to assert that it is the law, in my judgment, is to betray an utter want of comprehension, an utter inappreciation of the fundamental principles which underlie the whole of our system. Who was it that established this Government? They were people who brought here the charter of their liberties with them; they were the free men who emigrated to this country and established these governments, and they established them under the charters legally granted them by the Crown of Great Britain originally. By the terms of the charters they were the actual possessors of the political power of the colonies, and they alone had the right to say whom they would admit to a coenjoyment of that power with them. It is true that the colonists of this country, when they came here and established their governments, did open the door of these privileges wide to men of their own race from Europe. They opened it to the Irishman, they opened it to the German, they opened it to the Scandinavian races of the North. But where did they open it to the barbarian races of Asia or of Africa? Nowhere. There may be no positive prohibition; but the courts always administered the law upon the basis that it was only the free men who established this Government and those whom the free men admitted with them to an enjoyment of political power that were entitled to it.
The identical question came up in my State—the question whether the negro was a citizen, and whether he possessed political power in that State—and it was there decided that he was not one of the original corporators, that he was not one of the free men who originally possessed political power, and that they had never, by any enactment or by any act of theirs, admitted him into a participation of that power, except so far as to tax him for the support of government. And, Mr. President, I think it a most important question, and particularly a most important question for the Pacific coast, and those States which lie upon it, as to whether this door shall now be thrown open to the Asiatic population. If it be, there is an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding it or of carrying it out; and I cannot consent to say that California, or Oregon, or Colorado, or Nevada, or any of those States shall be given over to an irruption of Chinese. I for my part, protest against it.
I may say, while I am up, that I am entirely opposed to the whole of this first section; and, in my judgment, it has not a particle of constitutional warrant. As I understand the chairman of the Committee on the Judiciary, he takes his ground upon an amendment to the Constitution of the United States recently passed. The first section of that amendment is in these words:
“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.”
Now, Mr. President and gentlemen of the Senate, in all good faith, what was the meaning of that? What was its intent? Can there be any doubt of it? Is there a sane man within the sound of my voice who does not know precisely what was intended by the American people in adopting that amendment to the Constitution? I may say there is no shirking this thing; there is no way of dodging it or avoiding it. We must meet it, and if we are men we will meet it, and we will meet it in the spirit in which it was made. That amendment, everybody knows and nobody dare deny, was simply made to liberate the negro slave from his master. That is all there is of it. Will the chairman of the Committee on the Judiciary or anybody else undertake to say that that was to prevent the involuntary servitude of my child to me, of my apprentice to me, or the quasi servitude which the wife to some extent owes to her husband? Certainly not. Nobody pretends that it was to be wider in its operation than to cover the relation which existed between the master and his negro African slave.
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Now, mark it, that particular relation and the breaking of it up, is the subject of that first clause of the amendment, and it does not extend any further, …. That was followed by another clause …. That other clause was this:
“Congress shall have power to enforce this article by appropriate legislation.”
Enforce what? The breaking of the bond by which the negro slave was held to his master; that is all. It was not intended to overturn this Government and to revolutionize all the laws of the various States everywhere. It was intended, in other words, and a lawyer would have so construed it, to give to the negro the privilege of the habeas corpus; that is, if anybody persisted in the face of the constitutional amendment in holding him as a slave, that he should have an appropriate remedy to be delivered. That is all.
Now, let us see what is made out of that simple provision. … “Previous condition of slavery,” I agree, is a certain enough phrase in the law; but I should like the honorable Senator from Illinois or any other Senator to tell me what is meant by the word “race,” and where it is settled that there two races of more, how many. Where is the line to be drawn? What constitute the distinctive characteristics and marks which limit and bound these races? If a State did not desire to make a distinction on account of race, I suppose it might lawfully make a distinction on account of hair.. ….
Then “color” is another word upon which nobody is very well advised just at present. Men are of all shades of color, and the races of men differ from the deepest jet up to the fairest of lily white all over the world. But I am not disposed to quarrel with that part of the bill, and I only notice it as an indication of the loose manner in which we legislate about these subjects. I go on a little further:
But the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts—
And I beg gentlemen who represent great States here to listen—the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.
Why, Mr. President, if under color of this constitutional amendment we have a right to pass such a law as this, we have a right to overturn the States themselves completely; and will you be surprised when I tell you this repeals statutes of Pennsylvania, which I have under my fingers; and not only repeals them but by the provisions of this bill the judges and other officers of Pennsylvania who should undertake to enforce her own laws would be subject, not to revision in a court of error, but subject to a criminal prosecution in courts where the jury are the judges not only of the fact, but of the law as well, under our system?
I suppose if there is any one thing more than another which a State prizes it is that she has the right to regulate the descent of estates. … But there is a provision in our statutes which will be repealed by this bill if it
becomes a law. Let me read it:
“It shall and may be lawful for any alien or aliens actually resident within this Commonwealth, and not being the subject or subjects of some sovereign State or Power, which is or shall be at the time or times of such purchase or purchases, at war with the United States of America, to purchase lands, tenements, and hereditaments within this Commonwealth, and to have and to hold the same in fee simple or for any lesser estate, as fully, to all intents and purposes, as any natural-born citizen or citizens[*] may or can do: Provided always, That such alien or aliens shall, previously to such purchase or purchases, declare his or their intention to become a citizen or citizens of the United States, agreeably to any law of the United States at that time in force upon that subject: And provided also, That no such alien or aliens shall be competent to purchase and hold more than five hundred acres until he or they shall have actually become a citizen or citizens of the United States.”
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[My comment about “natural-born citizen or citizens”]
Mr. Cowan, Senator from Pennsylvania, made a passing reference to a (singular) “natural-born citizen” and (plural) “citizens”. What implicit conclusion can we draw from the singular and plural references?
One obvious conclusion is that “natural-born citizen” and “citizens” are different kinds of citizens, not the same kind of citizen, right? If they do not refer to two different kinds of “citizens”, what is the purpose of two designations?
Is it because the designations can, in the context of the sentence, both references, “natural-born citizen” and “citizen”, can credibly, coherently, under either natural law or positive law, refer to either the same kind of “citizen” or to a different kind of citizen? Either / or? That does not make sense.
If both designations refer to the same kind of “citizen”, would it be a clarification to refer to a “natural-born citizen” as “or citizens” when the “natural-born citizen” has already been designated a “natural-born citizen”? It would not be a clarification, right?
A conclusion we can draw is that Senator Cowan, by using the phrase “natural-born citizen”, is implicitly referring to an Article II “natural born Citizen” (whom he probably knows is the only kind of “citizen” eligible to be president), and he is also implicitly referring to an Article I immigration and naturalization act of Congress “citizen” who is a citizen either by naturalization oath on U. S. soil or by birth on U. S. soil to a U. S. citizen male who may have fathered the child before marriage to a female U. S. citizen or foreign citizen. Until the 1922 Cable Act gave females the option of retaining at marriage their original citizenship status or to naturalize by oath before or after marriage as U. S. citizens, females (from the 1700s to the 1900s) acquired by marriage the U. S. citizen status of the U. S. citizen male or the foreign citizen status of a foreign citizen male. [End of comment]
Now, it will be observed that the provisions of this bill override and contravene that law of ours. What I mean to say is that nobody can pretend, nobody can believe that it was intended by this clause of the Constitution to confer any such authority as that upon this Government. [snip]
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PROTECTION OF CIVIL RIGHTS
The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication.
The PRESIDING OFFICER. The pending question is on the amendment of the Senator from Kansas [Mr. LANE] to the amendment of the Senator from Illinois [Mr. TRUMBULL] to the first section of the bill, and upon that question the Senator from Kentucky [Mr. DAVIS] is entitled the floor. [snip]
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Mr. DAVIS. Mr. President, the honorable chairman of the Committee on the Judiciary who reported this bill pronounced it to be probably the most important bill that has been before Congress since the adoption of the amendment to the Constitution at the last session. I agree with him entirely in his estimate of the importance of this measure. Indeed, I doubt whether a measure of more importance has at any time been presented to the consideration of Congress. The honorable Senator introduced two measures which he himself considered, and which have generally been treated, as parts of the same system—the bill to enlarge the powers of the Freedmen’s Bureau, and the bill now under consideration, “to protect all persons in the United States in their civil rights and furnish the means of their vindication.” [snip]
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The amendment now before the Senate proposes to declare all the negroes in the United States citizens of the United States. The honorable Senator from Illinois plays for three pockets in this bill. The first is, the bill itself, and the first and second sections, essentially, upon which he relies to confer upon the free negroes all the civil rights that under our Government appertain and belong to white citizens. The second pocket for which he is playing is this amendment, which simply proposes in a few summary words to enact that all free negroes born in the United States shall be held to be citizens, and consequently that they shall have all the rights and privileges of citizens. But the honorable Senator has still another pocket in reserve, which he announced the day before yesterday, and it is this: that these negroes, having been born in the United States of America, by that fact and by the operation of our Constitution, would thereby be American citizens. If the latter proposition be true, I ask the honorable Senator, where is the necessity of troubling this Senate with the consideration and the decision of either of these other propositions? But I suppose gentlemen are admonished by experience, and they intend to use the same providence and throw wide their net in relation to the objects of this bill as they did in relation to the subject of negro slavery generally. They first had the proclamation of the President of the United States declaring that all slaves in the rebel States were made free. They then had the act of Congress liberating the wives and children of all negro soldiers; and, eventually, they had the amendment to the Constitution. I did not deem either of the first measures of the least importance, because I held that they were legally and constitutionally invalid; but when it came to an amendment to the Constitution of the United States which abolished slavery in the whole United States, I was disposed to concede its validity.
I shall now proceed to make a few remarks upon the amendment that is now under consideration, offered by the honorable chairman of the Committee on the Judiciary. It involves the subject of naturalization under the Government and laws of the United States. There are, in my opinion, three modes by which naturalization may take place: one is by birth, not by the birth of negroes, but by the birth of white people; another is by being naturalized according to a uniform rule to be prescribed by Congress in conformity to the power vested in Congress by the Constitution of the United States; and the third is by treaty. …. It simply amounts to this: that where the treaty making power brings in a portion of foreign territory, all the inhabitants who come in with that territory are, by the treaty-making power, made citizens. … The matter of citizenship is imported in the power and in its exercise just as any other appendage of the treaty would also be imported by the treaty-making power.
There is then but one other mode, according to my understanding of the Constitution, in which a citizen can be made by law or by artificial means; and that is in conformity to a uniform rule of naturalization established by Congress. ….
That leads me step by step to the consideration of the main matter in this question: upon what description of persons does the power of Congress to make citizens operate? Who are the people who, by the exercise of the power of Congress, either in declaring a uniform rule of naturalization, or, if you please, by the passage of a special act, are to be admitted into citizenship? I deny that a negro or any white person born in the United States can be admitted to citizenship in that mode. It is not upon the native-born, black or white, that the power of naturalization under this Government operates. It operates upon foreigners; it operates upon people who are either born out of the United States or who have gone out of the United States, and have assumed the relationship of obedience and fealty to a foreign Government or a foreign potentate. What powers exercised the right to make citizens before the present Constitution was adopted? Each State for itself. Whom did they make citizens of? Not of any native-born of the country, but invariably of foreigners, and nobody else but foreigners. I challenge the honorable chairman of the Committee on the Judiciary to show me an instance from our history where a native-born person of the United States was ever admitted to citizenship by any of the States before the adoption of the present Constitution unless that native-born person went to a foreign country and there assumed the relation of subject or citizen to that foreign country.
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I state this further proposition: there never was a colony before the Declaration of Independence and there never was a State after the Declaration of Independence up to the time of the adoption of the Constitution, so far as I have been able to learn by the slight historical examination which I have given to the subject, that ever made or attempted to make any other person than a person who belonged to one of the nationalities of Europe a citizen. I invoke the chairman of the committee to give me an instance, to point to any history or any memento, where a negro, although that negro was born in America, was ever made a citizen of either of the States of the United States before the adoption of this Constitution. The whole material out of which citizens were made previous to the adoption of the present Constitution was from the European nationalities, from the Caucasian race, if I may use the term. I deny that a single citizen was ever made by one of the States out of the negro race. I deny that a single citizen was ever made by one of the States out of the Mongolian race. I controvert that a single citizen was ever made by one of the States out of the Chinese race, out of the Hindoos, or out of any other race of people but the Caucasian race of Europe.
I come, then, to this position: that whenever the State, after the Declaration of Independence and before the present Constitution was adopted, legislated in relation to citizenship or acted in their governments in relation to citizenship, the subject of that legislation or that action was the Caucasian race of Europe; that one of the inferior races of any kind were intended to be embraced or were embraced by this work of government in manufacturing citizens. I am not disposed to labor that proposition strenuously and elaborately, but I lay it down as a proposition that cannot be refuted, that whenever the different States of the Union were making citizens before the adoption of the present Constitution, all their purposes, all their intentions, and all their powers upon that subject were simply to make foreigners of the European family of nations citizens of the United States.
Now, sir, what is the rule of construction of our Constitution as laid down so frequently by the Supreme Court, and of the construction of every constitution and every instrument of writing? It is this, and the honorable Senator from Illinois will not controvert it: that the parties who frame an instrument give their own meaning, according to their understanding of the terms and language which they use, to that instrument, and that, therefore, in construing the Constitution of the United States, all we have to do is to read the language, and to ascertain from contemporaneous expositions, as well as from the force of the terms themselves, what particular meaning the framers of the Constitution intended their language to import. Whatever meaning they intended to attach to the language of that instrument or to any of its phrases, by that light and by that rule is the Constitution to be construed and interpreted.
I take an example. The Constitution defines treason. What has been the construction of all
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of our courts in relation to the term “treason?” That the framers of the Constitution used that term precisely in the sense in which it was used in 23 Edward III, and as that term had been expounded by the courts at Westminster. By time and by the modifications of language the ideas and meaning, living and current, of the term “treason” might vary; but in the construction of the Constitution and in the definition of treason there would be no such variation. An enlightened and honest and able judge, called upon to define what treason was to a jury under the Constitution of the United States, would recur back to the meaning of that term as generally understood at the time the Constitution was adopted and as the framers of that Constitution intended it would be understood; and whenever the sense had thus been obtained the matter would be rendered clear and explicit, and the idea which the term imported at that day, and which those who made the Constitution and used this term intended to imply by it, would be accepted as the true construction of the Constitution.
I give one other example: the Constitution interdicts ex post facto laws; it declares that no ex post facto law shall be passed. That is a technical term; it is a term of art; and it has a specific meaning When that clause of the Constitution is in court for construction, we do not resort to the ordinary acceptation and understanding of the term ex post facto. We hunt for its legal definition at the time the Constitution was adopted, how learned judges and learned lawyers in the profession understood the term, and through all future time, as long as that Constitution is respected, until it is changed in the mode prescribed by the instrument itself, will the meaning, as they understood it and intended to use it, be adopted by the courts.
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Mr. TRUMBULL. Will the Senator from Kentucky allow me to ask him if he means to assert that negroes were not citizens of any of these colonies before the adoption of the Constitution?
Mr. DAVIS. I will come to that presently.
Mr. TRUMBULL. I understood him to assert that they were not citizens when the Constitution was adopted in any of these colonies before the adoption of the Constitution?
Mr. DAVIS. I will come to that presently.
Mr. TRUMBULL. I understood him to assert that they were not citizens when the Constitution was adopted in any of the States, and to challenge contradiction.
Mr. DAVIS. I say they were not.
Mr. TRUMBULL. Does the Senator wish any authority to show that they were? If he does, I will state to him that I have before me—
Mr. DAVIS. When I get through you can answer me.
Mr. TRUMBULL. I understood the Senator to challenge me to produce any proof on that point, and I thought he would like to have it in his speech. I can assert to him that by a solemn decision of the supreme court of North Carolina they were citizens before the adoption of the Constitution.
Mr. DAVIS. If the honorable Senator will allow me, I will get along with my remarks.
Mr. TRUMBULL. I think you will get along better by not being exposed in your statements.
Mr. DAVIS. The honorable Senator …. That is not the main point that I am coming to. ….
I was speaking of the manner in which the Constitution is to be interpreted. … I say now—and I made use of that argument to fortify this position—that when the term “naturalization” was introduced into the Federal Constitution, it was introduced with precisely the same meaning and understanding in which it had been understood and executed in the different States. By the old Articles of Confederation Congress had no power to naturalize a foreigner. The old Articles of Confederation had no power to naturalize a foreigner. Each State naturalized foreigners for itself, and the States had various and discrepant systems. … The various systems of naturalization by the different States introduced confusion and disorder and inconvenience. It was with a view to prevent these inconveniences, by having a uniform system, that in the Convention of 1787 the whole subject of naturalization was given up to Congress. Each State yielded it for itself; it yielded it to the General Government. It yielded it in two forms only. The first form was as an incident of the treaty-making power. They yielded it in this other form by naturalization. … Congress[*] shall have power to establish a uniform rule[*] of naturalization. That is the language. Now, sir, my position is, that anything which does not amount to a uniform rule of naturalization does not fulfill the requirement of the Constitution, and is invalid. … The naturalization spoken of here is the admission of a foreigner to the rights of citizenship. … There are but two modes in which a foreigner can be admitted to become a citizen of the United States. One is in case he shall have been an inhabitant of country acquired by the treaty-making power by the United States; and if he does not come up to that rule, the other is that he can only be admitted by a law of Congress establishing a uniform rule of naturalization. I therefore might say to the honorable Senator—but I have a stronger position behind yet—that his amendment not establishing a uniform rule, but being different, discrepant from the uniform rule of naturalization prescribed by the law of Congress, and Congress having only power to establish a uniform rule, his amendment is unconstitutional, because it does not come up to the criterion that is furnished by the Constitution.
[My comment about “Congress … uniform rule”]
The explicit point is that only the bicameral Congress (before and after 1866) had “power to establish a uniform rule of naturalization”, not state or federal courts. The implicit point is that it was not anticipated that a Supreme Court would “rule” as the 1898 Supreme Court “ruled” in the United States v Wong Kim Ark fiat (‘because we said so’ ) opinion, that a child born on U. S. soil to one or two parents who were not U. S. citizens by birth or naturalization, that child would be a U. S. citizen, and, as some 2000s neobirthers assert, that child would be eligible to be president of the United States. [End of comment]
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But, Mr. President, my main position is that no native-born person of the United States of any race or any color can be admitted a citizen of the United States by Congress under the power conferred in relation to naturalization by the Constitution upon Congress. It is preposterous and absurd to pretend to make you, sir, or any gentleman born in the United States, a citizen of the United States under the power of Congress to pass a uniform rule of naturalization. Why? Because you are not a foreigner. This is the truth about it; it is a historical truth, and it established the principle, too, that all the action and operation of the State governments before the Constitution was formed, and the provision of the Constitution itself in relation to naturalization and investing Congress with that whole subject under the authority to establish a uniform rule of naturalization, refers exclusively to foreigners. You being born here might become the subject of this naturalization law and system; but what would be necessary before you could be placed in such a condition? You would have to go to some foreign country and sever your tie of allegiance to the Government of the United States, and assume that tie toward some foreign Government or foreign potentate before you could be the subject of naturalization here.
Now, sir, I will read from one or two authorities on this subject. Let me state the position which I want the learned and able Senator and jurist from Illinois to assail if he can. I lay down the proposition that no man but a foreigner can be admitted a citizen of the United States under our naturalization laws or under any power which Congress has to naturalize. I read first from Story’s Commentaries upon the Constitution, sections 1097, 1098, and 1099: [snip]
Wherever there is a reference to the making of a citizen by naturalization it invariably applies to aliens. It does in all the debates and proceedings of the Convention. It does in every adjudication of every court in America upon the subject of naturalization. It has references all the time and exclusively to aliens.
“If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single State, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.
“SEC. 1099. It follows, from the very nature of the power, that to be useful it must be exclusive.”
I read these passages for the purpose of showing that it was the purpose and the only purpose of the framers of the Constitution that this power to make citizens of people who were not born in the country should apply to foreigners and to foreigners alone. Upon that point I will read another authority. I have a good deal of it here with which I shall not trouble the Senate. I have before me the work of Mr. Woolsey on international law, a Connecticut writer of very great learning and ability. I read from his work, page 180, section sixty-six”:
“Foreign residents in most Christian countries can sustain, in the course of time, a closer or more distant connection with the body-politic. They can acquire nationality, or in other words become naturalized, or they may remain in the territory as domiciliated strangers.”
He says expressly that foreigners (not native-born subjects or citizens) can become naturalized; and then comes this language, to which I ask the attention of the honorable Senator from Maryland:
“Naturalization implies the renunciation of a former nationality, and the fact of entrance into a similar relation toward a new body-politic.”
There is the definition, and the whole of it. Naturalization implies the renunciation of a former nationality, and the entering into a new
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obligation of allegiance to another Power. Why, sir, in all the civil history of naturalization by the States or by the United States the gentleman cannot find an instance, nor a principle, nor a dictum where this change in the relationship of a person toward this Government was ever attempted to be made in relation to any individual whatever, unless that individual owed allegiance to another Government. [snip]
So it is, Mr. President, wherever you can trace naturalization by Constitution, State or Federal, by laws, State or Federal, because even after the adoption of the present Constitution some of the States still claimed the right to have a concurrent power of naturalization … It is not necessary to look to lexicographers for the definition of “foreigner.” We all know that a foreigner is one who owes allegiance to another Government. Can the negro here, born within the United States, be said to be a foreigner? Does he owe any allegiance to another Government? Is he an alien and a stranger to our country and our laws and our Government? Not at all.
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Does the honorable Senator from Illinois mean to assume the position that he declared with so much distinctness and emphasis a day or two ago, that everybody born in the United States is a citizen? What became of your slave negroes that were born in the United States? What became of your free negroes that were born in the United States? Sir, [Mr. FOOT in the chair,] your State abolished slavery a great many years ago. I believe that eight of the original states abolished slavery many years ago. The five New England States (Massachusetts having abolished slavery while Maine was a part of that State,) New York, New Jersey, and Pennsylvania are the eight States to which I allude. They all abolished slavery, and in all of those States doubtless negroes and a good many negroes have been born of negro parents who were free. Does the honorable Senator intend to say that all the posterity of those freed negroes were citizens? A State now has no power to make a citizen. The States did have that power before the Constitution was formed; and just as the process and business of making citizens by naturalization was understood and practiced and intended by the States before the Constitution was formed, just in that sense, and to that extent, and with that scope of power, and no further, was the authority taken from the States and vested in Congress to pass naturalization laws.
Now, sir, to throw myself back upon the principle of construction which I stated at the start, naturalization and citizenship must be understood in the sense and with the same import which were attached to those phrases by the framers of the Constitution; and where we can reach upon any controverted point to a reasonable degree of certainty what they did mean, that meaning we are bound to adopt in a faithful and just construction of the Constitution. What would have been the fate of such a proposition as this in the Convention of 1787? There were then free negroes in most of the States, and there were slaves in all the States; even slaves were held in Massachusetts. Nothwithstanding Massachusetts contends that by her constitution of 1776 slavery was abolished, she held slaves many years afterward. But suppose in that Convention the proposition had been made which the honorable Senator now contends for, and it had been proposed to incorporate as one of the provisions of the Constitution that “all children of free negroes born hereafter shall be citizens of the United States,” will the honorable Senator say that he believes such a provision as that would have been accepted by the southern men who were in that Convention? Will he say that it would have been practicable or possible to incorporate such a provision as that in the Constitution? Certainly not. When gentlemen concede that such a proposition could not have been incorporated in the Constitution, and that sooner than have accepted it the southern members would have broken up that body, and would have dispersed without making a Government at all, how can they in candor and in truth say that it comes within the scope and operation and meaning of the Constitution, as they who framed it intended it should read and mean and operate, that the children of negroes that were free should be citizens of the United States? [snip]
Mr. President, we have had some able lexicographers in this country, and among them was Mr. Noah Webster. In this great and immortal vocabulary will be found the words “naturalize” and “naturalization,” and the meaning which he appends to them. How has that great philologist and that great lexicographer reached the meaning of these terms? He has read our history, civil and political; he has seen all the important transactions in which these terms have been used—legislation, Constitution, judicial decision; he has seen the rendition of these terms by the men in America who best understood and who were most competent to give them a clear, a truthful, and a just rendition. After thus preparing himself to give his immortal exposition of the English language, he thus defines these terms:
“Naturalization. The act of investing an alien with the rights and privileges of native subject or citizen.
“Naturalize. 1. To confer on an alien the rights and privileges of a native subject or citizen; to adopt foreigners into a nation or State, and place them in the condition of natural-born subjects.
“2. To make natural; to render easy and familiar by custom and habit.
“3. To adopt; to make suitable; to acclimate; as to naturalize one to a climate.
“4. To receive or adopt as native; natural or vernacular; to make our own, as to naturalize foreign words; to accustom; to habituate, as to naturalize the vine to a cold climate.”
Could anything be more precise than these definitions? If men are searching for truth and principle, do they not find it here, and in the authorities which I have already read? To naturalize is to bring in an exotic. When applied to a man, it is to bring in a foreigner who owes allegiance and obedience to another State or Government; and nobody else is or can be the subject of this provision of our Constitution or of any legislation of Congress under it, and nobody else ever was. Then, how can the honorable Senator apply his amendment to negroes born in the United States? It is impossible.
I will say no more upon the subject of this amendment. When the honorable Senator’s bill is before the Senate upon its merits, I intend to hit a lick at the thing generally. I only wish that I could hit it at all in proportion to its enormous demerits.
The PRESIDING OFFICER, (Mr. FOOT.) The question is on the amendment moved by the Senator from Kansas [Mr. LANE] to the amendment moved by the Senator from Illinois, [Mr. TRUMBULL.] [snip]
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Mr. DAVIS. I will say a word or two in reference to what the Senator from Illinois has said. I assumed that the gentleman’s proposition of amendment could not be entertained. First, I denied the proposition which he made in his speech of the day before yesterday that a negro was a citizen. I assumed the other proposition that whether a negro was a citizen or not, he was not a foreigner; and not being a foreigner he cannot be naturalized by any act of Congress, special or general; that nobody but a foreigner can be naturalized.
Now, by way of repelling the first position, the honorable Senator introduces a decision of one of the North Carolina courts that a negro was a citizen in North Carolina. When was he made a citizen in North Carolina if he was a citizen there? It was before the Constitution was formed. He had the right to vote in North Carolina. Will the honorable Senator say that if that negro, having the right to vote in North Carolina, had gone over to Virginia, or South Carolina, or Georgia, he would have been a citizen there and entitled to the privileges of citizenship? He might have claimed them, but they never would have been accorded to him.
The mere right to vote does not amount to citizenship. Citizenship, under the Constitution, is something different from what it was before the Constitution was formed. Before the Constitution was formed every State made its own citizens; every State coined its own money. Since the formation of the Constitution, there is but one power to coin money, there is but one power to make citizens, and that is the Government of the United States. The State of Illinois admitted unnaturalized foreigners who had been resident in that State six months to vote. Did the fact that Illinois permitted an unnaturalized foreigner who had been resident there six months to take part in her government make him a citizen of the United States? Not at all.
My position is that this is a white man’s Government. It was made so at the beginning. The charters that were granted by the different sovereigns of England to the various colonies were granted to white men and included nobody but white men. They did not include Indians. They did not include negroes. When the troubles with the mother country commenced in 1764, and culminated in revolution and a Declaration of Independence in 1776, all of that protracted and important transaction was by white men, and by white men alone. The negro had nothing to do with it, no more than the Indian; he was no party to it. It was not for his grievances that that struggle was made; it was not to reform his wrongs that that bloody war was waged; it was not to establish a Government in which he was to be a party or a power that the Declaration of Independence was enunciated to the world and the Old Articles of Confederation formed; it was not to make him a party to our present Government that the Constitution was formed. He was no party in the Convention; he was not represented in the Convention which framed the present Constitution. It is a white man’s Government. I say that the negro is not a citizen. He may be made a citizen by power, but it will be in disregard, I think, of principle. I deny that this is a Government of amalgamation. I deny that the governing population, the population that is clothed with political power and political sovereignty, is the result of miscegenation. It is a white population, and not a negro population or an Indian or a mixed population. That is the truth of history. It is the truth of principle. Power and numbers may trample that truth under foot and disregard it; but if Marshall and Story and Washington and their compeers upon the supreme bench were here to rule this principle, they would rule it as our fathers understood it, in my judgment.
I still then reiterate the position that the negro is not a citizen here according to the essential fundamental principles of our system; but whether he be a citizen or not, he is not a foreigner, and no man, white or black or red or mixed, can be made a citizen by naturalization unless he is a foreigner. You cannot make a citizen in that way of a native. You cannot make a citizen of anybody that is not a foreigner. You cannot transmute into a citizen any man but one who owes allegiance to a foreign Government or a foreign potentate.
If the honorable gentleman is so confident in his positions and so strongly intrenched and fortified in them as he appears to be, let him bring up and examine a principle, a dictum, where anybody but a foreigner was ever admitted to be naturalized in the States or in the United States. Let him bring up a solitary example where a native of the country, who had never become denationalized by leaving it, and who owed no allegiance and no obedience to a foreign Government or a foreign potentate, was ever admitted by any process whatever to American citizenship.
Mr. CLARK. I wish the Senator from Kentucky would tell us what constitutes a citizen under the Constitution.
Mr. DAVIS. No foreigner is a citizen in the fullest sense of the word at all.
Mr. CLARK. The Senator is now telling us who is not a citizen, but my question is what constitutes a citizen?
Mr. DAVIS. I leave that to the exercise of your own ingenuity by to-morrow. [Laughter.]
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Mr. CLARK. That is it. Washington is dead; Marshall is dead; Story is dead; I hoped the Senator from Kentucky would have enlightened us. He says a negro is not a citizen, and a negro is not a foreigner and cannot be made a citizen. He says that a person who might be and was a citizen before the Constitution, is not a citizen since the Constitution was adopted. What right was taken away from him by the Constitution that disqualifies him from being a citizen? The free negroes in my State, before the Constitution was adopted, were citizens.
Mr. DAVIS. Will the honorable Senator allow me to ask him a question?
Mr. CLARK. Certainly, because I asked the Senator to define what a citizen was.
Mr. DAVIS. Was a free negro in New Hampshire before the Constitution a citizen of the United States?
Mr. CLARK. He was a citizen of my State.
Mr. DAVIS. That being admitted, was he a citizen of the United States?
Mr. CLARK. He was in my judgment a citizen of the United States.
Mr. DAVIS. If he went to Virginia or South Carolina, would he have been entitled to citizenship there?
Mr. CLARK. I think he would; I have not any doubt about it.
Mr. DAVIS. Neither have I any that he would not.
Mr. CLARK. I think he would, because the Constitution has provided that a citizen of one State shall have the rights and privileges of citizens in the several States.
Mr. DAVIS. But the Senator from Kentucky asks how it was before the Constitution.
Mr. CLARK. He was a citizen before the Constitution made that provision.
Mr. JOHNSON. That was the question put by the Senator from Kentucky.
Mr. CLARK. When the Senator from Kentucky says he was not represented in the Convention that formed the Constitution, he says what was not true in fact.
Mr. DAVIS. Will the Senator allow me to ask a question?
Mr. CLARK. Certainly.
Mr. DAVIS. The State of New Hampshire had or might have had her separate State coin, her separate coined money, before the Constitution was adopted. Is not that true, that she either had or might have had her own coin? I pause for a reply.
Mr. CLARK. Oh, certainly, sir. I did not suppose the Senator was waiting.
Mr. DAVIS. If she had her own coin emitted and circulated before the Constitution was formed, would the adoption of the Constitution have made that coin of the United States? She had her own citizenship according to her own laws; and because she had her own citizenship before the Constitution was adopted, the Constitution of the United States did not on its ratification adopt her citizenship and her citizens as citizenship and citizens of the United States.
Mr. CLARK. I do not propose to discuss the question of coinage; it is the question of citizenship that I am after. Before the Constitution was adopted the free black man in my State was just as much a citizen as the white man; and when delegates were chosen to the Convention which adopted the Constitution he had a right to vote, and undoubtedly did vote, as well as the white man. They formed that Constitution. In that Constitution there is nothing declaring that a negro shall be a citizen of the United States, and there is nothing declaring that a white man shall be. They stand on the same foundation. There is nothing declaring that the black man shall not be a citizen, nothing declaring any distinction between them; and it is a distinction which the Constitution does not recognize when the Senator from Kentucky undertakes to say that it excluded the black man and does not exclude the white man.
Mr. DAVIS. The honorable senator will permit me to explain that I did not say it excluded the black man. I say it ignored the black man; it paid no attention to him; it was made by a different race of beings; it did not comprehend him; he had nothing to do with it any more than the Indian of the forest had, any more than the Chinaman in California had in the formation of the constitution of that State.
Mr. CLARK. I do not admit what the Senator says: I do not admit that it ignored him; that would be the same thing as to deny him citizenship; but I do not assert that the free black man was a part of the people of the United States, and “we, the people,” formed that Constitution, and therefore are entitled to the rights of it. I say the free black man is a citizen under the Constitution, because he held that right before, and if the Senator wants to know when he became a citizen of this country I will tell him: he became so when he helped to achieve the independence of the country equally with the white man; and as the Constitution did not exclude
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him he held his rights under the Constitution. He assisted in my State in electing delegates to that Convention, and so in other States.
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I desire to say further, and I will say now, Mr. President, though not exactly germane to this point, that in my State there is not a single disqualification or discrimination between the white man and the black man, and there is not to be found on the statute-book any act making him free, for he never was a slave there. He may, in some cases, have been held in duress; he was always a free man legally. [snip]
Mr. JOHNSON. Mr. President, but for the decision in the Dred Scott case, to which allusion has been made, perhaps the question would be free from all difficulty; but, as the Senate are already informed, the decision in that case was that, because of the particular condition of the African, neither he nor any of his descendants were citizens. …. [snip]
Mr. DAVIS. The honorable Senator does not apprehend me exactly as I intended to express myself. I mean that no person can be naturalized as a citizen of the United States unless that person be a foreigner.
Mr. JOHNSON. That I understand to have been the proposition of the honorable member, and now I concede it under that clause. I admit that the honorable member is right in saying that that clause was intended to apply only to foreigners who might come to the United States and desire to take upon themselves the character of citizens. Under your naturalization laws, therefore, passed in pursuance of that authority, there is no power to make citizens of
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the United States under that clause other than those who are foreigners, and subject, therefore, to the Government from which they come. I have no doubt that is true; but does it follow from that that these negroes cannot be made citizens? That would be an extraordinary condition for the country to be in. Here are four million negroes. They are not foreigners, because they were born in the United States. They have no foreign allegiance. Their allegiance, whatever it was, was an allegiance to the Government of the United States alone. They cannot come, therefore, under the naturalizing clause; they cannot come, of course, under the statutes passed in pursuance of the power conferred upon Congress by that clause; but does it follow from that that you cannot make them citizens; that the Congress of the United States, vested with the whole legislative power belonging to the Government, having within the limits of the United States four million people anxious to become citizens, and when you are anxious to make them citizens, have no power to make them citizens? It seems to me that to state the question is to answer it.
Mr. DAVIS. Will the honorable Senator allow me a moment?
Mr. JOHNSON. With pleasure.
Mr. DAVIS. I admitted in the commencement of my remarks that there were two modes of making citizens of foreigners under the Constitution of the United States. The first was a uniform rule of naturalization to be prescribed by Congress; the second was that where a treaty was negotiated between the United States and a foreign Government by which we acquired territory that contained inhabitants, those inhabitants, by necessary implication, were admitted to citizenship. Now, I put this question in the form of a principle to the Senator: when there are two modes expressed in the Constitution by which this thing may be done, one by express provision and the other by necessary implication, does, or does not, the enumeration of these two modes exclude all other modes?
Mr. JOHNSON. Certainly, so far as the particular persons who would be embraced by the particular modes are involved. But suppose there had been no power given in the Constitution to Congress to naturalize.
Mr. DAVIS. Then we should have had no power to naturalize.
Mr. JOHNSON. That would be a Government of an extraordinary kind.
Mr. DAVIS. No power having been given by the Constitution to the General Government to naturalize a negro, a negro cannot be naturalized.
Mr. JOHNSON. I am not speaking of the negro; I am speaking of anybody.
Mr. DAVIS. I answered your proposition and I put you mine. I deny the power in the case you state.
Mr. JOHNSON. Why is there not a power given to naturalize the negro? Suppose a negro came from Africa now, could he not be naturalized?
Mr. DAVIS. I say not.
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Mr. JOHNSON. Why not? Only because the term “white” is contained in our naturalization laws. But I am speaking of the clause of the Constitution in reference to naturalization. The constitutional clause does not use the term “white.” Congress might pass a naturalization act that would embrace the negro immigrant as well as the white immigrant. There can be no doubt about that. Then it is not because of their color that the fundamental objection supposed to exist in the mind of the honorable Senator from Kentucky applies.
Mr. DAVIS. Will the honorable Senator permit me to explain?
Mr. JOHNSON. With pleasure.
Mr. DAVIS. This is a Government and a political organization by white people. It is a principle of that Government and that organization before and below the Constitution, that nobody but white people are or can be parties to it.
Mr. JOHNSON. I do not think that is an answer to my question. But let me ask the honorable Senator why it was that Congress, when it passed the naturalization act, put in the word “white,” and what would have been the effect of the law of that word “white” had not been inserted? Suppose they had provided for the naturalization of all foreigners, would not the black men have been included?
Mr. DAVIS. I say not.
Mr. JOHNSON. So far as the Constitution is concerned, why not? The honorable member reads the Constitution as if it said that none but white men should become citizens of the United States; but it says no such thing, and never intended, in my judgment, to say any such thing. If it had designed to exclude from all participation in the rights of citizenship certain men on account of color, and to have confined, at all times thereafter, citizenship to the white race, it is but fair to presume, looking to the character of the men who framed the Constitution, that they would have put that object beyond all possible doubt; they would have said that no man should be a citizen of the United States except a white man, or rather would have negatived the right of the negro to become a citizen by saying that Congress might pass uniform rules upon the subject of the naturalization of white immigrants and nobody else; but that they did not do. They left it to Congress. Congress, in the exercise of their discretion, have thought proper to insert the term “white” in the naturalization act; but they may strike it out, and if it should be stricken out, I do not think any lawyer, except my friend from Kentucky, would deny that a black man could be naturalized, and by naturalization become a citizen of the United States.
But to go back to the point from which the questions of my honorable friend from Kentucky caused me to digress, we have now within the United States four million colored people, the descendants of Africans, whose ancestors were brought into the United States as chattels. It was because of that condition that they were considered as not entitled to the rights of citizenship. We have put an end to that condition. We have said that at all times hereafter men of any color that nature may think proper to impress upon the human frame, shall, if within the United State, be free, and not property. Then we have four million colored people who are now as free as we are; and the only question is, whether, being free, they cannot be clothed with the rights of citizenship. The honorable member from Kentucky says no, because the naturalization clause does not include them. I have attempted to answer that. He says no, because the act passed in pursuance of that clause does not include them. I have answered that by saying that that act in that particular may be changed.
Mr. DAVIS. Will the honorable Senator permit me to ask him a question?
Mr. JOHNSON. Certainly.
Mr. DAVIS. Has the Government of the United States any power that is not conferred upon it by the Constitution?
Mr. JOHNSON. Certainly not.
Mr. DAVIS. Where is the power in the Constitution, or the provision in the Constitution, that gives the right to the Government of the United States to make a citizen of a native-born negro?
Mr. JOHNSON. I do not know that there is any particular clause that says the child of a native-born negro is to be a citizen, but it would be an extraordinary thing if under the judiciary clause it were not in the power of Congress to authorize a native-born negro, to use the language of my friend from Kentucky, to sue.
Mr. DAVIS. I reckon the language is good.
Mr. JOHNSON. I am not saying it is not good. I used it because I was sure it was good, as you used it. I would not have used it except upon your authority. [Laughter.]
Mr. DAVIS. You are getting modest.
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Mr. JOHNSON. Now, Mr. President, if we can, by legislation, authorize the negro to sue, we are authorized to go one step at least toward making him a citizen. If we can authorize him to contract we take another step. If we authorize him to testify we take another step; and so to go on by assuming that we authorize him to do every other act that a white man can do, short of the right of voting, what is there in the Constitution which denies us the power to stop when we come to the exercise of that right? I can find nothing in the Constitution which leads to that result. If I am right in the opinion which I entertain, that we can authorize them to sue, authorize them to contract, authorize them to do everything short of voting, it is not because there is anything in the Constitution of the United States that confers the authority to give to a negro the right to contract, but it is because it is a necessary, incidental function of a Government that it should have authority to provide that the rights of everybody within its limits shall be protected, and protected alike. It would have been a disgrace to the members of the Convention, in my judgment, if they had looked to the condition of things which now exists; or, without looking to that condition of things, if they had looked to the contingency sure to happen, and which was rapidly occurring at the time when the question became a matter of political agitation, that slavery would sooner or later be abolished by State legislation or State action, and had denied to the Congress of the United States the authority to pass laws for the protection of all the rights incident to the condition of a free man.
I rose, Mr. President, with no view except to state the particular observations that I have stated, and will therefore say nothing further.
Mr. DAVIS. I differ toto coelo from the honorable Senator from Maryland upon this proposition. My opinion is that the Constitution of the United States never intended to place free negroes or slave negroes under the jurisdiction of the General Government at all; that the whole subject of free negroes and of slave negroes is left by the federal Constitution, and was intended to be left by the Constitution, under the jurisdiction and exclusive control of the several States.
Mr. STEWART. Will the gentleman allow me to ask him a question?
Mr. DAVIS. Yes, sir.
Mr. STEWART. Have we not a provision which is now a part of the Constitution, which expressly provides that we may legislate on this subject?
Mr. DAVIS. If the honorable Senator wants my opinion, I say that that provision is revolutionary. Have Congress and the Legislatures of the States the right to change our form of Government? Have they a right to establish a monarchy? Have they a right to establish a Presidency for life? Have they a right to establish a Senate for lifetime, or a Senate that would transmit its honors and its offices to their posterity? Sir, the power to change the Constitution is a power simply to amend; it is not a power to revolutionize; it is not a power to subvert; it is not a power to change our form of Government. Nothwithstanding the high authority of the Senator from Maryland, and also of the Senator from Nevada, my position is—I may be overruled and expect to be overruled in it, but still it is my opinion—that under the power simply to amend the Constitution of the United States there is no power to revolutionize it, to subvert it, or to change it from a republic to a monarchy, and these acts cannot be effected by any power except the power of revolution.
Mr. MORRILL. I desire to make some observations upon this bill. I do not know whether it is the purpose of the chairman of the Committee on the Judiciary to bring it to a vote to-night—
Mr. CLARK. If the Senator will give way, I will move to adjournment.
Mr. MORRILL. I yield for that purpose.
Mr. CLARK. I move that the Senate do now adjourn.
The motion was agreed to; and the Senate adjourned.
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HOUSE OF REPRESENTATIVES
January 31, 1866
BASIS OF REPRESENTATION
Mr. STEVENS. The joint committee on reconstruction, to which was recommitted joint resolution No. 51, proposing an amendment to the Constitution of the United States in relation to the basis of representation, together with all propositions submitted in this House in relation to that subject, have directed me to report the joint resolution back, modified to read as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of said Constitution, namely:
ARTICLE—. Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.
I now move the previous question.
Mr. SCHENCK. I ask the gentleman from Pennsylvania to yield to me for a few moments to allow me to offer a substitute for his resolution.
Mr. STEVENS. I withdraw the demand for the previous question to enable the gentleman to offer his proposition, so that we may have a direct vote upon it.
Mr. SCHENCK. I offer the following as a substitute for the proposition reported by the gentleman from Pennsylvania from the joint committee on reconstruction:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of said Constitution, namely:
ARTICLE—. Representatives shall be apportioned among the several States which may be included within this Union according to the number of male citizens of the United States over twenty-one years of age having the qualifications requisite for the electors of the most numerous branch of the State Legislature. The Congress, at their first session after the ratification of this amendment by the required number of States, shall provide by law for the actual enumeration of such voters; and such actual enumeration shall be separately made in a general census of the population of all the States within every subsequent term of ten years, in such manner as the Congress may by law direct. The number of Representatives shall not exceed one for every one hundred and twenty-five thousand of actual population, but each State shall have at least one Representative. [snip]
Mr. STEVENS. I will yield to the gentleman from Ohio [Mr. SCHENCK] five minutes of my time, as he desires to make some explanation of his amendment.
Mr. SCHENCK. Mr. Speaker, … I cannot, … go into a prolonged explanation of the proposition. …. [snip]
I desire to submit to the several States an amendment to the Constitution which shall base representation upon suffrage, that right of suffrage to be exercised by male citizens of the United States over the age of twenty-one years, having the requisite qualifications of electors of the most numerous branch of the Legislature of the State in which they respectively reside. It is a plain, practical proposition. It leaves to the census-takers to ascertain, when visiting the domiciles of the citizens, how many of them are voters within the terms of this description. …. [snip]
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Mr. STEVENS. I refer not only to the gentleman from New York, but to what I take to be an authorized utterance of one at the other end of the avenue. I am glad the gentleman has explained it in that way. [snip]
Now, sir, let me consider what is the meaning of the proposition made by the committee; how far it ought to be affected by any modifications. … The committee have reported back the simple proposition that representation shall be apportioned among the States in proportion to their members, provided that when the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.
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But some of our friends are apprehensive that this is an implied permission to the States to regulate the elective franchise within the States. Now, sir, I venture to say that there is no good philologist who, upon reading this proposed amendment, will for a single moment pretend that it either grants a privilege or takes away a privilege from any State on that subject. It does, however punish the abuse of that privilege if it exists. Now, I hold that the States have the right, and always have had it, to fix the elective franchise within their own states. And I hold that this does not take it from them. …. [snip]
Now, sir, I say no more strong inducement could ever be held out to them, no more severe punishment could ever be inflicted upon them as States. If they exclude the colored population they will lose at least thirty-five Representatives in this Hall. If they adopt it they will have eighty-three votes. Take it away from them and they will have all the copperhead assistance they can get, and liberty will still be triumphant. Now, I prefer that to an immediate declaration that all shall be represented; for if you make them all voters and let them into this Hall, not one beneficial act for the benefit of the freedmen or for the benefit of the country could ever be passed. Their eighty-three votes, with the Representatives of the Five Points and other dark corners, would be sufficient to overrule the friends of progress here, and this nation would be in the hands of secessionists at the very next congressional election and at the very next presidential election. I do not, therefore, want to grant them this privilege at least for some years. I want, in the mean time, that our Christian men shall go among the freedmen and teach them what their duties are as citizens; they know them now much better than their masters, and I hope their masters will take notice of what they learn. I say I want our Christian men to go among them, the philanthropists of the North, the honest Methodists, my friends, the Hardshell Baptists, and all others; and then, four or five years hence, when these freedmen shall have been made free indeed, when they shall have become intelligent enough, and there are sufficient loyal men there to control the representation from those States, I shall be glad to see them admitted here. But I do not want them to have representation—I say it plainly—I do not want them to have the right of suffrage before this Congress has done the great work of regenerating the Constitution and laws of this country according to the principles of the Declaration of Independence.
Hence I object to the amendment of my friend from Ohio, [Mr. SCHENCK.] He says that if we allow these people representation in proportion as they extend the suffrage we shall encourage them to extend it to the colored race. Well, that is the very objection. They will give the suffrage to their menials, their house servants, those they can control, and elect whom they please to make our laws. That is not the kind of increase of suffrage I want. I want all such men cut off from it. But when they have said to all the freedmen, to the former slaves, “You are men and you shall be represented,” then let them come here. I shall not be here to see them, as I did their masters, who a few years since drew pistols and daggers upon me when I was making such a speech as this, yet a free people will be here represented, and they will take care of themselves.
But I have another objection to the amendment of my friend from Ohio. His proposition is to apportion representation according to the male citizens of the States. Why has he put in that word “male?” It was never in the Constitution of the United States before. Why make a crusade against women in the Constitution of the nation? [Laughter.] Is my friend as much afraid of their rivalry as the gentlemen
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on the other side of the House are afraid of the rivalry of the negro? [Laughter.] I do not think we ought to disfigure the Constitution with such a provision. I find that every unmarried man is opposed to the proposition. Whether married men have particular reason for dreading interference from that quarter I know not. [Laughter.] I certainly shall never vote to insert the word “male” or the word “white” in the national Constitution. Let these things be attended to by the States.
Now, sir, there is another fatal objection to the proposition of my friend from Ohio. If I have been rightly informed as to the number, there are from fifteen to twenty Representatives in the northern States founded upon those who are not citizens of the United States. In New York I think there are three or four Representatives founded upon the foreign population, three certainly. And so it is in Wisconsin, Iowa, and other northern States. There are fifteen or twenty northern Representatives that would be lost by that amendment and given to the South whenever they grant the elective franchise to the negro.
Now, Sir, while I have not any particular regard for any foreigner who goes against me, yet I do not think it would be wise to put into the Constitution or send to the people a proposition to amend the Constitution which would take such Representatives from those States, and which therefore they will never adopt. I have no hope that any such proposition would ever be adopted. Let us try to be practical. On the 5th day of December last I introduced a proposition to amend the Constitution founding representation upon the voting basis and excluding the foreign population, as the proposition of my friend from Ohio does. It was dear to my heart for I had been gestating it for three months. [Laughter.] But when I came to consult the committee of fifteen and found that the States would not adopt it, I surrendered it. Now, cannot my friend from Ohio give up his darling, too? [Laughter]
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I had another proposition, which I hope may again be brought forward. It is this:
All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color.
There is the genuine proposition; that is the one I love; that is the one which I hope, before we separate, we shall have educated ourselves up to the idea of adopting, and that we shall have educated our people up to the point of ratification. …. [snip]
Some gentlemen say this principle of adopted will be abused. … It is said that this principle might be evaded by saying that no man who had ever been a slave shall vote, and that that would not be a disfranchisement on account of race or color. Allow me to say that that suggestion must have been made hastily and not with that well-considered judgment which generally characterizes those gentlemen. Sir, no man in America ever was or ever could be a slave if he was a white man. I know white men have been held in bondage contrary to law. But there never was a court in the United States, in a slave State or a free State, that has not admitted that if one held as a slave could prove himself to be white he was that instant free. And therefore such an exclusion, on account of previous condition of slavery, must be an exclusion on account of race or color. Therefore that objection falls to the ground.
Now, the question is narrowed down to the sole question of a choice between the proposition of the committee and the proposition of the gentleman from Ohio, [Mr. SCHENCK.] … All I want is that two thirds of each branch of this Congress shall vote affirmatively on this question. And while I should take pleasure in having the President approve of our conduct, hey he has nothing to say about it on this question. We do not send it to him and ask his opinion about it, and therefore it was all the more kind in him to send us his opinion without being asked for it.
Mr. SMITH. I would ask the gentleman from Pennsylvania [Mr. STEVENS] to permit to be read the paper which has called forth his remarks, so that we may understand to what he alludes when he speaks of the President undertaking to dictate to Congress.
Mr. STEVENS. I have no objection to having it read, except that it will take more time than its importance warrants.
Several MEMBERS. Let it be read.
The Clerk read, as follows:
“The following is the substance of a conversation which took place yesterday between the President and a distinguished Senator as telegraphed North by the agent of the Associated Press:
“The President said that he doubted the propriety at this time of making further amendments to the Constitution. One great amendment had already been made, by which slavery had forever been abolished within the limits of the United States, and a national guarantee thus given that the institution should never exist in the land. Propositions to amend the Constitution were becoming as numerous as preambles and resolutions at town meetings called to consider the most ordinary questions connected with the administration of local affairs. All this, in his opinion, had a tendency to diminish the dignity and prestige attached to the Constitution of the country, and then lessen the respect and confidence of the people in their great character of freedom. If, however, amendments are to be made to the Constitution, changing the basis of representation and taxation, (and he did not deem them at all necessary at the present time,) he knew of none better than a simple proposition, embraced in a few lines, making in each State the number of qualified voters the basis of representation, and the value of property the basis of direct taxation. Such a proposition could be embraced in the following terms:
“ ‘Representatives shall be apportioned among the several States which may be included within this Union according to the number of qualified voters in each State.
“ ‘Direct taxes shall be apportioned among the several States which may be included within this Union according to the value of all taxable property in each State.’
“An amendment of this kind would, in his opinion, place the basis of representation and direct taxation upon correct principles. The qualified voters were, for the most part, men who were subject to draft and enlistment when it was necessary to repel invasion, suppress rebellion, and quell domestic violence and insurrection. They risk their lives, shed their blood, and peril their all to uphold the Government and give protection, security, and value to property. It seemed but just that property should compensate for the benefits thus conferred by defraying the expenses incident to its protection and enjoyment.
“Such an amendment, the President also suggested, would remove from Congress all issues in reference to the political equality of the races. It would leave the States to determine absolutely the qualifications of their own voters with regard to color; and thus the number of Representatives to which they would b entitled in Congress would depend upon the number upon whom they conferred the right of suffrage.
“The president, in this connection, expressed the opinion that the agitation of the negro-franchise question in the District of Columbia at this time was the mere entering-wedge to the agitation of the question throughout the States, and was ill-timed, uncalled for, and calculated to do great harm. He believed that it would engender enmity, contention, and strife between the two races, and lead to a war between them which would result in great injury to both, and the certain extermination of the negro population. Precedence, he thought, should be given to more important and urgent matters, legislation upon which was essential for the restoration of the Union, the peace of the country, and the prosperity of the people.”
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Mr. STEVENS. I am rather glad the gentleman from Kentucky [Mr. SMITH] called for the reading of that paper, because it shows that the President and I agree exactly, on one point at least; for he leaves out the word “male” in condemnation of the gentleman from Ohio, [Mr. SCHENCK.] I am very glad he called for the reading of the paper.
Mr. INGERSOLL. I would like to ask a question of the gentleman from Pennsylvania, [Mr. STEVENS.]
Mr. STEVENS. Very well.
Mr. INGERSOLL. I would like to ask the gentleman by what authority does he claim that the paper just read expresses the views of the President?
Mr. STEVENS. I think I have good reasons for saying that it emanated from the President.
Mr. INGERSOLL. Has the gentleman any objection to stating what those reasons are?
Mr. STEVENS. I have no right to tell the secrets of the Executive. [Laughter.]
But we know perfectly well that the President has nothing to do with this matter. The passage of this amendment by a two-thirds vote of both Houses of Congress will carry it before the State Legislatures for ratification without regard to the approval or disapproval of the President. It is true that the constitutional amendment for the abolition of slavery was, after its passage by both Houses of Congress, sent inadvertently to President Lincoln for his signature. But although he signed it because he approved it, yet, acting with the sagacity and the modesty which were so characteristic of him, he sent to Congress a message stating that that body, in sending him that joint resolution for approval, had done what the Constitution did not require. We shall not trouble President Johnson by sending him this amendment if it should be passed by Congress, because it is not necessary to submit it to him for his approval.
As I said before, I do not intend to refer particularly to the able, elaborate, and eloquent speech of my friend from New York, [Mr. RAYMOND.] because that speech had, to a great extent, no connection whatever with this question, except, possibly, so far as the status of the States may be affected by this amendment. He still persists in saying that the seceded States are, and always have been in the Union; that the Constitution would not allow them to go out. He took the same ground before. I had undertaken to prove that they were out of the Union, not by our consent, but by operation of law. I had stated that they formed the confederate government as States; that they had raised large armies; that they had done what the State could constitutionally do, issued letters of marque which were recognized by us and the civilized world. There is not doubt, sir, that for three years we acknowledged that rebel government as a belligerent, as did the whole civilized world. But whether we so acknowledged the rebels or not, the law of nations declares that when they had established a government, and maintained themselves for a sufficient length of time to rise above the position of mere murderers or insurrectionists, they became belligerents; and it does not make a particle of difference whether the parent Government recognizes them as belligerents. In this case, however, the acknowledgment of our own Government and the well-settled doctrine of the law of nations combined in conceding to the States in rebellion this position.
The gentleman cannot deny this state of facts; and yet he reiterates the doctrine, “once a State always a State.” May I be pardoned for reading a paragraph from Vattel?
“When a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the State is dissolved, and the war between the two parties stands on the same ground in every respect as a public war between two different nations”
And again, I read:
“The conventions, the treaties, made with a nation are broken or annulled by a war arising between the contracting parties.”
This is the doctrine of Vattel, as well as of Grotius and Rutherford and Puffendorf. …. [snip]
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The close of the war, then, finds us surrounded with a set of questions of the highest importance. The true theory of our Government often announced, and often, alas! lost sight of, must be perseveringly reasserted and maintained. … The Union must be restored upon the constitutional basis of absolute and perfect equality of the States. The restoration should be immediate and the reunion cordial. The dignity of the country, as well as its safety, must further be supported by the unqualified reassertion of the Monroe doctrine.
It would be a fatal error to suppose that now that the war has been concluded under a Republican Administration the popular seal has been set upon the Federal theory of consolidation. Those who entertain this idea must remember that the popular support of the war was prompted by the determination to preserve the integrity of the Union. No sanction was thereby intended of any change in the Constitution, either in letter or by construction.
I maintain, sir, and it has ever been maintained by the Democratic party, that the State-rights doctrines, properly stated, present the true theory of the Government. The question arose in the contest between Jefferson and Adams in1801, and the election of Mr. Jefferson was a popular vindication of these doctrines as against the Hamiltonian theory of centralization supported by Mr. Adams.
The Federal idea, which it was attempted to realize by a latitudinarian construction of the Constitution, was that of a consolidated system of government, in which the undelegated powers of the States were to be absorbed, and the spirit of monarchy to be thus infused into our democratic forms. …. [snip]
The views of the extreme State-sovereignty men, as reduced to practice in the act of secession, have been suppressed by physical force, and the just authority of the Government has been successfully and rightfully reestablished. But the doctrine of State rights is in nowise affected by the result. It remains the only true and stable foundation of our republican system. State rights comprehend that portion of the State sovereignty not delegated by the Constitution to the Federal Government, and the two expressions are of coextensive and identical import. That the States are sovereign in this sense; that is as possessing all the undelegated powers of sovereignty, it is late in the day to question. The Union was thus the result of mutual concession; and from the testimony of its founders could not have been formed in any other way. [snip]
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I adhere, Mr. Speaker, to the declaration which I have made here before, that the late terrible war could have been avoided. But a President had been elected upon a revolutionary platform; and the radical element in the North, stimulated by an unchristian tirade or appeal from the pulpit, united with an unbridled and arrogant element from the South, did the work of desolation and death; and over the sad struggle the tears of humanity must continually flow. ….
The meddling of one-idea politicians with State institutions and property brought on the war; and now that it is concluded, they continue their agitations in the same mischievous spirit. In obedience to the teachings of the “higher-law” doctrines, they postpone all considerations to the realization of a legalized equality of races. Time was when the highest law which the good citizen could recognize involved obedience to the paramount law of his country. But with the class of politicians under notice that notion has long been discarded as an antiquated error.
It matters not that their principles were repudiated by all statesmen of both parties in the country. It matters not that this Government was made by and for the white race; that the States reserved the right of making their local laws; and that the Union could not otherwise have been formed. It matters not that a million of lives have been sacrificed in the effort to reduce their pernicious theories to practice. Still they falter not in the contest; still they hug to their bosoms the phantom of negro equality; still they claim for one section the right to control the local affairs of others. They hold that the white and black race are equal. This they maintain involves and demands social equality; that negroes should be received on an equality in white families, should be admitted to the same tables at hotels, should be permitted to occupy the same seats in railroad cars and the same pews in churches; that they should be allowed to hold offices, to sit on juries, to vote, to be eligible to seats in the State and national Legislatures, and to be judges, or to make and expound laws for the government of white men. Their children are to attend the same schools with white children, and to sit side by side with them. Following close upon this will, of course, be marriages between the races, when, according to these philanthropic theorists, the prejudices of caste will at length have been overcome, and the negro, with the privilege of free miscegenation accorded him, will be in the enjoyment of his true status.
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To future generations it will be a marvel in the history of our times, that a party whose tenets were such wild ravings and frightful dreams as these should be permitted, in their support, to urge the country into the hugest and most destructive of civil wars, and should, when war was inaugurated, be permitted to shape its policy in furtherance of their peculiar ends. For the full realization of their plans, they are ready to sacrifice not only our priceless system of government, but even our social superiority itself.
We have to remember, on the other hand, that negro equality does not exist in nature. The African is without a history. He has never shown himself capable of self-government by the creation of a single independent State possessing the attributes which challenge the respect of others. The past is silent of any negro people who possessed military and civil organization, who cultivated the arts at home, or conducted a regular commerce with their neighbors. No African general has marched south of the desert, from the waters of the Nile to the Niger and Senegal, to unite by conquest the scattered territories of barbarous tribes into one great and homogenous kingdom. No Moses, Solou, Lycurgus, or Alfred, has left them a code of wise and salutary laws. They have had no builder of cities; they have no representatives in the arts, in science, or in literature; they have been without even a monument, an alphabet, or a hieroglyphic.
Civilization among the whites has, indeed, been a thing of progress; but that progress has been steady and sure. …. [snip]
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We have, then, to insist upon it that this Government was made for the white race. It is our mission to maintain it. Negro suffrage and equality are incompatible with that mission. We must make our own laws and shape our own destiny. Negro suffrage will, in its tendency, force down the Anglo-Saxon to the negro level, and result inevitably in amalgamation and deterioration of our race. The proud spirit of our people will revolt at such certain degradation, while American women, the models of beauty and superiority, will indignantly execrate the men who advise and dictate the policy. [snip]
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IN SENATE
February 1, 1866
PROTECTION OF CIVIL RIGHTS
The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication, the pending question being on the amendment of Mr. TRUMBULL, to insert after the word “that” in the third line of the first section the words:
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, and ….
[My comment about the two words “born” and “declared”]
The positive law (law of people) word “declared” is dependent on natural law (law of nature) “born”. Since these two words are about the future 1866 civil rights bill which is being debated, it is not a constitutional statement about a “natural born Citizen” with Article II eligibility to be president. The naturalization word “declared” is about the Article I authority of the Legislature to enact immigration and naturalization law to “declare” how, when, and who is a “citizen” and inclusion in the Union as “We the People”, not a declaration about how, when, and who is a “natural born Citizen” eligible to be president. [End of comment]
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Mr. MORRILL. Mr. President, it is not my purpose to enter upon any general discussion of the character of this bill or the measure at large. … This amendment is important or unimportant as we understand the principles of public law applicable to the general subject. It is important as a declaration of American law I concede. It is important moreover as a definition.
If there is anything with which the American people are troubled, and if there is anything with which the American statesman is perplexed and vexed, it is what to do with the negro, how to define him, what he is in American law, and to what rights he is entitled. What shall we do with the everlasting, inevitable negro? is the question which puzzles all brains and vexes all statesmanship. Now, as a definition, this amendment settles it. Hitherto we have said that that he was a nondescript in our statutes; he had no status; he was ubiquitous; he was both man and thing; he was three fifths of a person for representation and he was a thing of commerce and for use. In the highest sense, then, in which any definition can ever be held, this bill is important as a definition. It defines him to be a man and only a man in American politics and in American law’ it puts him on the plane of manhood; it brings him within the pale of the Constitution. That is all it does as a definition, and there it leaves him. [snip]
As matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by virtue of his birth alone? The honorable Senator from Kentucky has vexed himself somewhat I think with the problem of the naturalization of American citizens. As he reads it, only foreigners can be naturalized, or, in other words, can become citizens; and upon his assumption, four million men and women in this country are outside not only of naturalization, not only of citizenship, but outside the possibility of citizenship. Sir, he has forgotten the grand principle both of nature and nations both of law and politics, that birth gives citizenship of itself. This is the fundamental principle running through all modern politics both in this country and in Europe. Everywhere where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship. Therefore the founders of this Government made no provision—of course they made none—for the naturalization of natural-born citizens. The Constitution speaks of “natural born” and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment [i.e., “amendment” to the 1866 civil rights “bill”, the potential “enactment” which is being debated], although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.
The honorable Senator from Kentucky, when he criticises the methods of naturalization, and rules out, for want of power, four million people, forgets this general process of nations and of nature by which every man, by his birth, is entitled to citizenship, and that upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection. That is the foundation, as I understand it, of all citizenship, and these are the essential elements of citizenship, allegiance on the one side and protection on the other.
But, sir, this amendment to which I address myself is important in another respect. It marks an epoch in the history of this country, and from this time forward the legislation takes a fresh and a new departure. Sir, to-day is the only hour since this Government began when it was possible to have enacted it. Such has been the situation of politics in this country, nay, sir, such have been the provisions of the fundamental law of this country, that such legislation, hitherto, has never been possible. There has been no time since the foundation of the Government when an American Congress could by possibility have enacted such a law, or with propriety have made such a declaration. What is this declaration? All persons born in this country are citizens[*]. That never was so before. Although I have said that by the fundamental principles of American law all persons were entitled to be citizens by birth, we all know that there was an exceptional condition in the government of the country which provided for an exception to this general rule. Here were four million slaves in this country that were not citizens, not citizens by the general policy of the country, not citizens on account of their condition of servitude; up to this hour they could not have been treated by us as citizens; so long as that provision in the Constitution which recognized this exceptional condition remained the fundamental law of the country, such a declaration as this would not have been legal, could not have been enacted by Congress. I hail it, therefore, as a declaration which typifies a grand fundamental change in the politics of the country, and which change justifies the declaration now.
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[My comment about “All persons born in this country are citizens”]
In 1866 Congress had Article 1 authority to naturalize citizens, not to declare that children born on U. S. soil are citizens who are “subject” to U. S. “jurisdiction” if they are born to legal or illegal aliens.
The language of the future 1868 Fourteenth Amendment would not explicitly say that children born on U. S. soil to legal or illegal aliens are citizens “subject to the jurisdiction” of the United States. The language can not be misconstrued to imply that children born on U. S. soil are citizens “subject to the jurisdiction” of the United States when their alien parents, legal or illegal, are not subject to U. S. jurisdiction although, by common sense, they are subject to the laws of the nation, laws which would protect them from fraud committed against them, and also prosecute them if they committed fraud against others, aliens or U. S. citizens.
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So, where in the original seven articles of the Constitution, the fourteenth or any other amendments, does it say that children of ‘plop and drop’ illegal aliens (they plop onto U. S. soil and drop a baby) automatically acquire ‘birthright citizenship’ because they are, by ‘birth’ alone, U. S. citizens with dual citizenship and allegiance, while adults who want to become U. S. citizens must, by immigration and naturalization law, must read citizenship literature and raise their hands in front of a judge and speak audible words about acquiring only singular U. S. citizenship by pledging allegiance only to the United States by ‘oath’ alone and also renouncing their foreign citizenship and allegiance?
So, consider this: the adult has to speak words of allegiance under oath with hand raised to become a U. S. citizen, but the baby does not have to speak at all and it becomes a U. S. citizen (by ‘birth’ and ‘crying’ alone) even though the legal or illegal alien parents are not U. S. citizens? That does not make sense. Right?
So, the naturalized “citizen” is forever not eligible to be president but the child, naturalized by the fiat (‘because we said so’) ‘opinion’ of the 1898 Supreme Court in United States v. Wong Kim Ark, automatically is eligible to be president at age 35 with 14 years residence on U. S. soil? Really? Huh? That’s nonsense.
Three examples from the 2016 presidential primary of Republicans who thought they were eligible to be president (even though they were born on U. S. soil to parents who had not naturalized before the birth of their children) are Florida Senator Marco Rubio (both parents from Cuba), Louisiana Governor Bobby Jindal (both parents from India), South Carolina Governor Nikki Haley (both parents from India). In the 2020 presidential primary and general election, Democrat California Senator Kamala Harris (born in California, USA – mother from India, father from Jamaica) was elected vice president.
These four people are not eligible to be president or vice president because they do not have only singular U. S. citizenship only by birth alone only on U. S. soil only to two U. S. citizens only married only to each other only before their children were born.
So, where? Nowhere in the constitution does it say that “all persons born in this country are citizen” as recorded in the Congressional Record debate about the future amendment to the constitution with the implicit understanding in 1868 that the borders of the United States would forever be open to “all persons born” to legal or illegal alien/foreign parents who had not naturalized before the birth of their child.
It is obvious that the word “all” in the amendment ratified by the ‘several States’ was not a reference to children born to legal or illegal aliens/foreigners, even if some Representatives and Senators thought that it was implied in “all persons born in this country are citizen” as recorded in the 1868 Congressional Record debate and suggested in the 1898 Supreme Court fiat (‘because we said so’) ‘opinion’.
Compare the two sentences: #1 “All persons born in this country are citizens”; #2 “All persons born or naturalized … and subject … jurisdiction … are citizens…”.
Nowhere in the constitution are the (#1) debate words referenced, explicitly or implicitly, or the (#2 ratified fourteenth amendment). If #1 “all” implied children born to legal or illegal aliens, and children born to only one unmarried alien female or one unmarried U. S. citizen female, the drafters could have inserted explicit clarifying words such as:
‘All persons born [to unmarried U. S. citizen females or married or unmarried foreign females] or naturalized in the United States and subject … jurisdiction … are citizens’.
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Since the clarifying words were not explicitly written into the amendment by the framers and ratified by the states, they are also not implicitly there. Right?
Under the common law of the 1700s to the 2000s, and specifically 1868, all persons are subject to the jurisdiction of the state in which they reside and the jurisdiction of the United States. That means that (under the 1800s common law and also today in the 2000s) being subject to jurisdiction means that even legal and illegal alien visitors could expect to be protected by the laws of the several States and of the United States against, for example, burglary or robbery, by reporting to the police authorities of the state governments and the national government, and they could also expect to be prosecuted for burglary or robbery by the state and national governments. However, legal or illegal alien visitors in the 1800s could not (and can not in the 2000s) be tried for treason. Why not? Well, only a ‘citizen’ can be tried and convicted of treason. Right? That is the legal reason why a “plop and drop” child born on U. S. soil to legal or illegal aliens, should NOT be recognized as a “citizen” of the United States with birthright citizenship and eligibility to vote or be elected president of the United States. That is nonsense. That means that the parents could not be tried and convicted of treason but the adult child of the alien parents could be convicted of treason against the United States.
That is the obvious logical reason why, under the common law of the 1800s, the framers and ratifiers of the 1868 Fourteenth Amendment could not possibly have implied (even though the debate language (not by a statute) has been misconstrued to imply) that a baby born on U. S. soil to legal or illegal aliens was a U. S. ‘citizen’ naturalized with ‘birthright citizenship’ with eligibility to vote in state or federal elections, and, as some people continue to misconstrue the 1868 Fourteenth Amendment and assert in the 2000s contrary to Article II since the last “...or a Citizen of…” died in the 1800s, also eligible at age 35 to be president even though a naturalized U. S. ‘citizen’ is not eligible to be president. Common sense, right? [End of comment]
The Senator from Kentucky denounces as a usurpation this measure, and particularly this amendment, this declaration. He says it is not within the principles of the Constitution. That it is extraordinary I admit. That the measure is not ordinary is most clear. There is no parallel, I have already said, for in the history of this country; there is no parallel for it in the history of any country. No nation from the foundation of government has ever undertaken to make a legislative declaration so broad. Why? Because no nation hitherto has ever cherished a liberty so universal. The ancient republics were all exceptional in their liberty; they all had excepted classes, subjected classes, which were not the subject of government; and therefore they could not so legislate. That it is extraordinary and without a parallel in the history of this Government or of any other does not affect the character of the declaration itself.
The Senator from Kentucky tells us that the proposition is revolutionary, and he thinks that is an objection. I freely concede that it is revolutionary. I admit that this species of legislation is absolutely revolutionary. But are we not in the midst of revolution? Is the Senator from Kentucky utterly oblivious to the grand results of four years of war? Are we not in the midst of a civil and political revolution which has changed the fundamental principles of our Government in some respects? Sir, is it no revolution that you have changed the entire system of servitude in this country? Is it no revolution that now you can no longer talk of two systems of civilization in this country? Four short years back I remember to have listened to eloquent speeches in this Chamber, in which we were told that there was a grand antagonism in our institutions; that there were two civilizations; that there was a civilization based on servitude, and that it was antagonistic to the free institutions of the country. Where is that? Gone forever. That result is a revolution grander and sublimer in its consequences than the world has witnessed hitherto.
I accept, then, what the Senator from Kentucky thinks so obnoxious. We are in the midst of revolution. We have revolutionized this Constitution of ours to that extent; and every substantial change in the fundamental constitution of a country is a revolution. Why, sir, the Constitution even provides for revolutionizing itself. Nay, more, it contemplates it; contemplates that in the changing phases of life, civil and political, changes in the fundamental law will be come necessary; and is it needful for me to advert to the facts and events of the last four or five years to justify the declaration that revolution here is not only radical and thorough, but the result of the events of the last four years? ….
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But the honorable Senator from Kentucky insists that it is a usurpation. Not so, sir. Although it is a revolution radical, as I contend, it was not a usurpation. It was not a usurpation, because it took place with the provisions contemplated in the Constitution. More that that, it was a change precisely in harmony with the general principles of the Government. The change which has been made has destroyed that which was exceptional in our institutions; and the action of the Government in regard to it was provoked by the enemies of the Government. The opportunity was afforded, and the change which has been wrought was in harmony with the fundamental principles of the Government.
But, Mr. President, it is said that this amendment raises the general question of the antagonism of the races, which we are told is a well-established fact. It is said that no rational man, no intelligent legislator or statesman should ever act without reference to that grand historical fact; and the Senator from Pennsylvania [Mr. COWAN] on a former occasion asserted that this Government, that American society, had been established hereupon the principle of the exclusion, as he termed it, of the inferior and the barbarian races. Mr. President, I deny that proposition as a historical fact. There is nothing more inaccurate. To proposition could possibly be made here or anywhere else more inaccurate than to say that American society, either civil or political, was formed in the interest of any race or class. Sir, the history of the country does not bear out the statement of the honorable Senator from Pennsylvania. Was not America said to be the land of refuge? Has it not been since the earliest period held up as and asylum for the oppressed of all nations? Hither, allow me to ask, have not all the peoples of the nations of the earth come for an asylum and for refuge? All the nations of the earth and all the varieties of the races of the nations of the earth have gathered here. In the early settlements of the country, the Irish, the French, the Swede, the Turk, the Italian, the Moor, and so I might enumerate all the races and all the variety of races, came here, and it is a fundamental mistake to suppose that settlement was begun here in the interests of any class or condition or race or interest. This western continent was looked to as an asylum for the oppressed of all nations and all races. Hither all nations and all races have come. Here, sir, upon the grand plane of republican democratic liberty, they have undertaken to work out the great problem of man’s capacity for self-government without stint or limit.
Then the honorable Senator advances one step further, and contends that not only was society formed in the interests of a race—the superior race as he is pleased to call it—but that Government here was organized in the interest of a race. I deny it utterly. I deny that Government was organized in the interest of any race or color, and there is neither “race”
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nor “color” in our history politically or civilly—not a bit of it. Is there any “color” or “race” in the Declaration of Independence, allow me to ask? “All men are created equal” excludes the idea of race or color or caste. There never was in the history of this country any other distinction than that of condition, and it was all founded on condition.
We have been told, Mr. President, that this question of race was clearly recognized and settled in a case that was before the Supreme Court some years ago—the Dred Scott case so called. I will read from that case. I read first from the syllabus of it:
“A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States,” not on account of his race or on account of his color, but on account of his condition. The point of the decision is that an African who was brought into this country and sold as a slave was not an American citizen. The Chief Justice in delivering the opinion of the court in that case, after quoting the language of the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal,” &c., proceeds to say:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included.”
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Not the colored man, not the African as a race, but “the enslaved African race,” he says, “were not intended to be included, and formed no part of the people who framed and adopted this Declaration.” On what ground? Simply, I repeat, on the ground of their condition, because they were not in a condition to take part in the Government of the country. Further on the same idea is repeated in this language:
“No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free.”
Further on the same sentiment is repeated again:
“Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.”
Why? On account of their condition, not on account of their race.
Mr. President, although to repeat what I said in the beginning, I attach no importance to the declaration of this
amendment as a matter law, as a matter of enactment, giving legislative force or legislative sanction to this bill, I do hail it as the grandest declaration in all time as a legislative act, and I congratulate the chairman of the Committee on the Judiciary that it has fallen to his good fortune to be the instrument for the introduction of such a declaration.
The PRESIDING OFFICER, (Mr. DOOLITTLE in the chair.) The question is on agreeing to the amendment of the Senator from Illinois, upon which the yeas and nays have been ordered.
Mr. TRUMBULL. I ask for the reading of the amendment.
The Secretary read the amendment.
Mr. HENDERSON. The Senator from Minnesota and the Senator from California yesterday made some objections to regarding as citizens of the United States Indians who owed no allegiance whatever to their tribes, who were not connected with the tribes. I should like very much to hear the reason of the objection. The State, as I understand, can exclude them from the ballot-box just as well after we declare them to be citizens of the United States as it could before. The State will not be compelled thereby to admit them to the ballot-box. What objection can the Senators have to declaring Indians living in the country, although they not be taxed, to be citizens of the United States?
Mr. RAMSEY. Our objection has been overcome by the modification of the amendment. The objection was addressed to the amendment as it then stood, but that amendment has now been modified.
Mr. HENDERSON. The Senator will understand me as objecting to the amendment as it now stands. An individual of the Caucasian race, whether he pays a tax in a State or not, is undoubtedly regarded as a citizen of the United States. Why make it obligatory upon the Indian, owing no allegiance to any tribal authority, to pay a tax before he can be regarded as a citizen of the United States? As the Senator from Indiana [Mr. HENDRICKS] very properly remarked, the United States citizenship in that case is dependent upon nothing except the possession of property upon which a tax is actually paid. I suppose that according to the rule adopted in the amendment, a State ought to be permitted to exclude any white man from taxation, and by so doing to deny him the rights of citizenship. Why not?
My point is that the Indian, if he is connected with no tribe, whether he is taxed or not, ought to be a citizen of the United States. What harm can there be in declaring that fact? What injury can it do? I ask the Senator from Minnesota. The State need not admit him to the franchise. He may be a citizen of the United States, and yet not have all the privileges and all the immunities of a citizen of the State in which he may be. The State may deny him any of them that it chooses to deny. But why not declare him a citizen of the United States? What harm can there be in that? It will enable him to sue in the courts of the United States to enforce his rights there, and I cannot see for my part what else it will do. As the Constitution now stands, of course the State cannot be injured in any of its reserved powers.
It can certainly do none of the States any harm to declare that the Indian himself, owing no allegiance to any tribe, and thereby not falling within the exception of the amendment as owing allegiance quasi to a foreign power, (regarding the Indian tribes as foreign Powers,) separated from the tribe, shall be regarded as a citizen of the United States. I have heard no reason yet, and I desire to hear it if there be any, I am opposed to the amendment as it now stands, for the reason that it does make an exception. Now that we are fixing the law on the subject, why not declare every man born in the United States to be a citizen of the United States, irrespective of race or previous condition? Is there any objection to it?
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You may declare him a citizen of the United States without doing any harm, as I before stated, and why not do it? Why not make the rule general? You propose to declare that all the negroes are citizens. I say that is perfectly right, though I do not deem it necessary so to declare by this amendment, because I think that is the case already. I do not choose, however, to enter into any argument on that point. I hold that every man born within the United States, and who has been liberated by the constitutional amendment, is a citizen of the United States. I shall not go into an argument in regard to the powers of the States, to consider whether the States may not deny all the privileges and rights of State citizenship to the negro. I am speaking only of this privilege of each individual as I hold, to be a citizen of the United States; and I can see no reason operating against the Indian. The negro of Georgia to-day, whether he pays a tax or not, is declared to be a citizen of the United States. Why not? He may pay no tax to the State of Georgia; but should that fact deprive him of the privilege of being a citizen of the United States? Was he not born here? Does he owe any allegiance to a foreign Power? Is he not bound to bear arms in defense of his country? Certainly he is. Cannot the State of California or Minnesota, where the Indian is living among the whites, owing no tribal allegiance, compel him to bear arms in defense of the State and the United States? Unquestionably so. Why not, then, make him a citizen of the United States?
Shall Georgia, or Florida, or Virginia; or any other State, have the power to say, ought it be allowed to say, “We will not tax the negroes, and thereby nullify the declaration of the United States Congress that they are citizens of the United States?” If the mere fact of paying a tax in the respective States shall confer citizenship, why not make that applicable to the negro as well as the Indian? Is there any reason for the discrimination? Why discriminate when laying down a great and broad principle? Why not make it general and universal? There is no reason in the world why it should not be so. We give these Indians in the States no rights that the States may choose to deny to them by simply declaring the universal fact. Let us make it universal.
The original proposition of the Senator from Illinois was correct. What do you mean by “Indians not taxed?” Do you mean not taxed by State authority, or not taxed by Federal authority? If one of these Indians in Minnesota owns property, whether the State taxes him or not, are you not going to tax him by Federal authority? If he executes an instrument there, must he not procure a revenue stamp and use it just as anybody else? If he has an income, does not the United States assessor assess the income of that Indian in Minnesota just exactly as he assesses the income of the white man? Why then not give him the rights of United States citizenship if he is not connected with a tribe and thereby quasi a foreigner owing allegiance to a quasi foreign Power? I do not understand that this discrimination can be rightfully or properly made, and therefore I am opposed to it unless I can hear some better reason given for it than I have here heretofore. I do not see any good reason for it.
Mr. DOOLITTLE. I desire to say a single word on this subject by way of reply to my friend from Missouri. From time immemorial, indeed in the Constitution itself, this very distinction between Indians taxed and Indians not taxed has been a fundamental distinction. In the enumeration of the people of the United States who are made the basis of representation and taxation, Indians not taxed were expressly excluded.
Mr. HENDERSON. So were negroes excluded.
Mr. DOOLITTLE. Two fifths were excluded and three fifths were counted; but that referred undoubtedly to Africans in a state of slavery.
Mr. HENDERSON. I am talking about citizenship. Slaves were not then citizens at all; now they are.
Mr. DOOLITTLE. Indians not taxed were excluded because they were not regarded as a portion of the population of the United States. They are subject to the tribes to which they belong, and those tribes are always spoken of in the Constitution as if they were independent nations, to some extent, existing in our midst but not constituting a part of our population, and with whom we make treaties.
There is another reason why the Indians not taxed ought not to be included in this grant of citizenship. If you make them citizens, of course they will not only have the privileges of citizens, but they will be subjected to the duties of citizens. They will not only have the right to sue, but they will be liable to be sued. They will not only have the right to make contracts, but they will be bound by their contracts; and that is a policy which the Government has resisted from the beginning in its dealings with the Indians, except with those Indians who have become citizens and are liable to be taxed. Then they are regarded as citizens of the United States. Without going into the argument at length, I am decidedly of the opinion that if by declaring the Indians to be citizens you are going to bind them by their contracts and permit them to be sued as other citizens are in the courts of the United States, the Indians are not yet prepared for citizenship.
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Another answer to my friend is, that so far as relates to the Indian population they can be provided for specially by other acts of Congress
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when the question shall arise. It is not necessary to provide for it in this bill, for if you do, it will give rise to difficulty. If you undertake to provide in this proposition that every Indian born in the United States who may be for the time being incorporated in any tribe shall be a citizen of the United States you may compel some of us to vote against the amendment altogether. Although some of these Indians may be disconnected from their tribes, and may be wandering in bands and in families, as there are some in the State of Wisconsin and in other States, I do not think they are yet in a condition to be incorporated as part of the citizens of the United States and made liable to be bound by the contracts which they may make and to be sued upon their contracts.
Mr. RAMSEY. The Senator from Missouri seems to base his position upon the mistaken theory that all Indians who are no longer connected with their tribes or under a tribal government are civilized Indians, living as farmers, or in some other way earning a livelihood in the white settlements. That is an entire mistake. Where that happens to be the case, they are probably civilized Indians, holding property, and taxed in that way. But in all the border States there are large numbers of wild, savage Indians, as uncivilized and as untamed as any on the plains, who have no tribal government, who are outlaws from their tribes and their nations. It certainly is not the intention of the Senator or the intention of the Senate to admit Indians of that class of citizenship. It has been the policy of the Government from its foundation not to consider them as citizens. There are large numbers of Indians who acknowledge no tribal government at all, who have no connection with any tribes, and who, unless some modification of this amendment is made, would be admitted to citizenship under it, which certainly cannot be the intention of the Senate or the Government.
Mr. TRUMBULL. The Senator from Missouri assumes that here is a sort of property qualification to citizenship. Such is not the meaning of the provision. The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance[*] to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident[*] in it whom we would have no right to make citizens, and that that form would not answer.
[* My comment about “owe allegiance” and “temporarily resident”]
The babies “owe allegiance” to their own foreign citizenship through their foreign citizenship parents. Babies do NOT “owe” anything to the U. S. Constitution or to the soil on which they landed, other than implicit, tacit gratefulness with a loud cry of life for a safe landing.
The “temporarily resident” also applies to legal and illegal aliens/foreigners, not only to diplomats and their children. If “temporarily resident” can be applied to diplomats and their children, “temporarily resident” also applies to legal and illegal alien/foreign visitors and their children born on U. S. soil. [End of comment]
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Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign Power or tribal authority[**]. The objection to that was, that there were Indians not subject to tribal authority who yet were wild and untamed in their habits, who had by some means or other become separated from their tribes and were not under the laws of any civilized community, and of whom the authorities of the United States took no jurisdiction. The Senator from California [Mr. CONNERS] told us that there were in his State Indians who had been placed upon reservations under charge of Indian superintendents who had been separated from their tribes and were not under any tribal authority, but they were there under the regulations of treaties which had been made with them, and were supplied and looked after by our Indian agents the same as other Indians who were perfectly wild, not submitting at all to the usages of civilized life, and it could not be intended to make that class of persons citizens.
[** My comment about “tribal authority”]
If the Indians were not citizens because they were residents of their tribe (essentially Indian ‘jurisdiction’ on ‘foreign’ U. S. soil, similar to U. S. embassy jurisdiction on foreign soil), an Indian child born on U. S. soil would not automatically become a ‘citizen’ of the U. S. [End of comment]
Then it was proposed to adopt the amendment as it ow stands, that all persons born in the United States not subject to any foreign Power, excluding Indians not taxed, shall be citizens. What does that phrase “excluding Indians not taxed” mean? The Senator from Missouri understands it to be a property qualification to become a citizen. Not at all. It is a constitutional term used by the men who made the Constitution itself to designate, what? To designate a class of persons who were not a part of our population. That is what it means. They are not counted in the census. They are not regarded as a part of our people. The term “Indians not taxed” means Indians not counted in our enumeration of the people of the United States.
Mr. JOHNSON. Considered virtually as foreigners.
Mr. TRUMBULL. Considered virtually as foreigners, as a description of persons connected with those tribes with whom we make treaties. That is what the phrase means. Whenever they are separated from those tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States. It is not intended as a property qualification. That is not the meaning of it. The Senator wants to know why, if an Indian cannot be a citizen without being taxed, should a white man or a negro be a citizen without being taxed. If the negro or white man belonged to a foreign Government he would not be a citizen; we do not propose that he should be; and that is all that the words “Indians not taxed,” in that connection, mean.
Mr. HENDERSON. “Not taxed” by whom? By Federal authority or by State authority?
Mr. TRUMBULL. By anybody. The term here is meant to embrace those persons who yet belong to the Indian tribes, foreign Governments. “Indians not taxed” is a term used to designate those Indians yet belonging to a foreign Government, and not connected as a part of our people. [snip]
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Mr. HENDERSON. Will the Senator allow me to ask him a question?
Mr. WILLIAMS. Certainly?
Mr. HENDERSON. I ask him if he is not in favor of now making all the negroes in the southern States citizens of the United States?
Mr. WILLIAMS. Certainly.
Mr. HENDERSON. He is now objecting to making the Indians citizens on the ground that the Government of the United States is taking care of them. …. [snip]
Mr. WILLIAMS. I am simply describing the condition of these Indians. … Thousands of these Indians in the State that I have the honor to represent are collected upon reservations; they are not subject to tribal authority; their tribes are broken up and destroyed; they consist of the fragments and remnants of tribes gathered together upon these reservations; but they are no more competent or qualified to vote than they were when they existed as original tribes.
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Mr. HENDERSON. We do not make them voters.
Mr. WILLIAMS. They are to be made citizens, and I say they are no more qualified to become citizens than when they existed as original tribes. ….
Mr. HENDERSON. Will the Senator permit me to ask him, if citizenship be conferred upon the Indian, what right will be conferred that he objects to? The Indian, like the negro, was born upon our soil, and I say let him be declared a citizen also, unless some right will be thereby conferred upon him that will conflict with the general interests of the States. ….
Mr. WILLIAMS. Much of the legislation of a State proceeds upon the assumption that certain persons have rights as citizens. They are described in the legislation of the States as citizens, and the Constitution of the United States describes certain persons as citizens of the United States. The Constitution of the United States provides that no person but a native-born citizen[*] of the United States, with other qualifications as to age and residence, shall be President of the United States; that no person not possessing the qualifications prescribed in it shall be a Senator or Representative. If this bill makes these persons citizens within the meaning of the Constitution of the United States, I ask if they do not become eligible to these different offices? Is not any man in the United States, who is a citizen of the United States, within the meaning of the Constitution, eligible[*] to the office of President or Senator or Representative[*]? Is the Congress of the United States prepared at this time to adopt a proposition that negroes and Indians and Chinese and all persons of that description shall be eligible to the office of President of the United States, Senator, or Representative in Congress, before they are allowed to vote? I might refer, I think, to other instances to show that rights might follow if these persons are declared to be citizens of the United States.
[My comment about “native-born citizen”, “eligible”, “President or Senator or Representative”]
As you will see in reading these selected debates, the words “native-born” with the hyphen are generic words referring simply to persons born on U. S. soil without implying eligibility to be president. An example is this sentence found in (3217)[**]: “What I do insist on is, that Congress under the pretense of naturalization cannot confer citizenship on native-born persons of an inferior race of people not recognized as citizens by the Constitution.”
So, absolutely no to “eligible” to be elected President (see Article II Section 1 clause 5 “...or a Citizen of…”, which was applicable only until the last “or” died in the middle to late 1800s), but yes to “eligible” to be federal Senator or federal Representative (see Article I). Persons naturalized by statute (an act of Congress) or, in this one case, a so-called “inferior race of people” naturalized by amendment to the constitution.
** Use the “find bar” to see these “native-born” references in context:
IN SENATE April 4, 1866 (1756)
HOUSE OF REPRESENTATIVES April 9, 1866 (1858)
HOUSE OF REPRESENTATIVES June 16, 1866 (3217) [End of comment] [snip]
The PRESIDING OFFICER, [Mr. DOOLITTLE.] The question before the Senate is on the adoption of the amendment of the Senator from Illinois, [Mr. TRUMBULL,] upon which the yeas and nays have been ordered.
Mr. JOHNSON. I suggest to the honorable chairman of the committee—certainly not with a view to defeat his proposition, but with a view of making it to me more acceptable—whether it is not advisable to strike out the latter part of the amendment. The amendment as it stands is that all persons born in the United States, and not subject to a foreign Power, shall, by virtue of birth, be citizens. To that I am willing to consent; and that comprehends all persons, without any reference to race or color, who may be born. That being so, why is it necessary to add the amendment the words “without distinction of color?” I think it very advisable that all questions of that sort, all questions involving the rights which may be supposed to exist in one race and not to exist in the other, should be done away with as soon as possible; and the striking out of the words to which I have alluded, the latter words of the amendment, will leave the amendment just as operative as it will be if the words are retained. I should hope the honorable member and the Senate would have no objection to striking out those words. If the chair will permit me, I will ask to have the amendment read.
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The Secretary read the amendment, to insert after the word “that,” in the third line of the first section, the words:
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, and.
Mr. JOHNSON. Strike out the latter words, “without distinction of color,” and it would be very clear that everybody born in the United States would be a citizen, and, unless it be true—and I, certainly, am not the person to admit that it is true for a moment—that a black man is not a person, all black persons born in the United States, who are not subject to any foreign Power, would become citizens by virtue of birth.
Mr. TRUMBULL. I agree with the object which the Senator of Maryland has in view, and, in my opinion, it would not make any difference if those words, “without distinction of color,” were stricken out; but it is desirable to make the bill specific and to have no misunderstanding about it. It is contended and gravely argued here in the Senate that this is a white man’s Government, made by white men, and for white men, and that the negro is not included in the Government. The Declaration of Independence declares that “all men are created equal.” I suppose that means the colored man as much as the white man.
Mr. JOHNSON. Undoubtedly.
Mr. TRUMBULL. The Senator from Maryland thinks it does. It declares that “they are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; that to maintain these ends Governments are instituted among men.” I thing that declaration, that “all men are created equal,” applied as much to the black as to the white man; but the Senator from Kentucky [Mr. DAVIS] will not admit that. I think it is best, therefore when we are
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enacting a statute on this subject declaratory of what the law is, (for that is all this bill amounts to,) to put it beyond question.
The Senator from Oregon asked if these persons were not citizens without this declaration. In my judgment they are; in my judgment, persons born in the United States and owing no allegiance to any foreign Power are citizens without regard to color; but it is desirable to place this matter beyond question, and therefore we are passing a law declaratory of what, in my judgment, the law now is, in order to remove any doubts that anybody may have about it; and for that reason I think it better to retain the words without “distinction of color” that there may be no dispute that the word “persons” means everybody. If the Declaration had said, “all men are created equal without distinction of color,” it seems to me it would not have been possible even for the Senator from Kentucky to contend that negroes were not embraced; but he does now so contend. Therefore, I think we had better retain the words “without distinction of color.”
Various suggestions in regard to amendments have been made to which I, individually, would have no objection, but I see that the moment we yield to an amendment in order to satisfy one member of the Senate, we get into a difficulty with some other member. We have that difficulty now in regard to the Indians. I wish this whole Indian question was out of the way. It is not the great object of the bill. I was satisfied with the proposition as we first had it; but in order to remove the objections of others we have changed its phraseology until now it stands in the form in which it has just been read from the desk; and that, upon the whole, I think, is the best form in which we can put it, and I trust the Senate will adhere to it as it is. [snip]
Mr. JOHNSON. What I suggested was—and I submit that there is some degree of force in the objection—that it is very desirable that we should cease to consider for a moment that, in relation to citizenship and rights, there is, as far as the Constitution of the United States is concerned, any difference on account of color. The honorable member admits that the omission of the words which I have suggested should be stricken out will leave the provision precisely the same. His objection to striking them out is, that there may be persons in the United States who will hold that the provision, if it is so changed, would not comprehend the negro. It is impossible to provide against every possible doubt that may be suggested by any one man or any dozen men in the United States. There are all sorts of notions, having no foundation in fact or in law, broached from time to time by individuals or classes of individuals; but I suppose that if the Constitution declared that all persons born in the United States should be citizens, nobody would be able to raise a reasonable doubt that it included the black man.
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The idea to which the honorable Senator alluded, which has operated upon the mind of my friend from Kentucky, and operated upon the minds of the Supreme Court, as a reason why the general phraseology to be found in the declaration of rights was not comprehensive of the negro, was founded upon what was supposed to have been the condition of the United States at the time, with reference to the black race. They were all then slaves. In the judgment of many, being slaves, they were not persons within the meaning of the phrase used in the declaration of rights; and I am sure the honorable member will recollect that the Chief Justice, in giving the opinion of the Supreme Court in the case to which reference has been frequently made, concedes that if the words that are found in the Declaration of Independence were used now, or if at the time they were used there was no such thing as the slavery of Africans, and the same number of Africans had been in the United States, they would have been included within the general phraseology of persons entitled to certain inalienable rights; and I suppose no man in his senses could doubt that the use of those words would comprehend black as well as white, provided black as well as white were free men. It is idle to deny that a negro is not a man. It is idle to deny, therefore, that a negro is not a person. They are endowed certainly with some of the qualities of the white man. Whether they are endowed with all the intellectual capacity of the white man is a question about which differences of opinion have prevailed and may continue to prevail; but they have the same faculties, are subject to the same diseases, cured by the same medicines, endowed with the same affections. Nobody that knows the race can doubt that. Whether they are in cases as keen in their affections as the white man may depend upon their cultivation, intellectually and morally; but that they are capable of a cultivation, intellectual and moral, that will make them regard the marriage relations just as absolutely and as affectionately as the white man, and regard their children with the same affection that the white man regards his children, I suppose nobody will doubt. Subject to the same complaints, cured by the same medicines, sustained by the same food, who could deny for a moment that the black man is a man and a human being; and if he be a man and a human being, who can doubt for a moment that he is a “person?”
I conclude, therefore, with what I said in the beginning, that it seems to me very desirable that we should upon the very first occasion that arises, and upon every occasion, if any future occasion should arise, say at once, virtually, by ceasing to use the term “distinction of color,” that in the judgment of the American Senate and of the people of the United States there is no such distinction. If the Senator objects to the amendment that I suggest, I do not insist upon it. [snip]
Mr. HENDERSON. I ask if it is in order to amend the amendment.
The PRESIDING OFFICER. It is in order.
Mr. HENDERSON. Than I move to amend the amendment by striking out the words “not taxed” and inserting the words “not subject to tribal authority.”
Mr. TRUMBULL. That is the way it was before.
Mr. HENDERSON. I would rather have it in that way; but I am not particular about it. I ask that the amendment may be read as I propose to amend it.
The SECRETARY. In the third line of the amendment it is proposed to strike out the words “not taxed” and to insert “not subject to tribal authority;” so that the amendment will read:
All persons born in the United States and not subject to any foreign Power, excluding Indians not subject to tribal authority, are hereby declared to be citizens of the United States. [snip]
Mr. TRUMBULL. As there is so much difficulty about this matter, and as it seems impossible to satisfy all gentlemen as to this phraseology, I think we had better stand by the constitutional phrase “excluding Indians not taxed.” That means Indians not counted as a part of our population. It is not a property qualification at all. The people will not so understand it, and we do not so understand it. I hope the amendment suggested by the Senator from Missouri will not be adopted. Let us vote upon the proposition as we have it. I think it is in the best form in which we can place it.
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Mr. DAVIS. Mr. President, I will state the various points which I made yesterday in the course of the desultory and running conversation between various Senators and myself, and shall then proceed to express my views in opposition to the bill. I hold:
1. Two centuries ago, and upward, the continent of North America was settled and taken possession of by the Governments and people of Europe, English, Irish, Scotch, French, Netherlanders, Germans, Swedes, Danes, Norwegians, Italians, Spanish, and Portuguese, all of the white race.
2. The negro, or any other race, had no ownership, proprietory power or government in their respective settlements—all was exclusively with the particular European nationality that had made the settlement.
3. All these settlements within the boundary of the original thirteen States had become, many years before the Declaration of Independence, possessions and colonies of the British empire, each one being a slave holding community, and owning negroes of African birth and descent as property and chattels.
4. While all the colonies were thus slave holding, the troubles between them and England began, to redress no wrongs or oppressions of the negroes, free or slave, in all or any of the colonies; but to redress the wrongs and oppressions of the white people alone inflicted by the Government of England.
5. This long and obstinate struggle was undertaken, managed, and adjusted by the white people exclusively, as their own quarrel and for their own benefit; and in this great and complex transaction the negro and Indian were ignored—they were not parties to it. If a few hundred of both those races appeared occasionally in the battle-fields on the side of the colonies it was as their slaves and allies, and not as coparties.
6. The first or revolutionary Confederation among the colonies, then their Articles of Confederation, then their Declaration of Independence, and then the present Constitution of the United States, were all acts of the white people of the colonies, undertaken and performed by them exclusively for no object or benefit but their own. The negroes or Indians were not parties to them or either of them; and they were intended to be and were not affected or reached by them. But they were undertaken, done, and performed, and produced precisely then the same results as though the negro and the Indian had not been in being; and those results were intended to be and were limited to the white people alone.
7. No slave negro was made free, or had any addition whatever to his privileges by the Articles of Confederation, or the Declaration of Independence, or the Constitution of the United States: nor were the rights or liberties of any free negro added to by either of those instruments. The condition of both slave and free negro, in every State, continued precisely the same after the Articles of Confederation, the Declaration of Independence, and the Constitution that it had been before.
8. Naturalization is the admission by Government of a foreigner to the privileges, or a portion of the privileges, of a citizen. Before the present Constitution this power was exercised by each State for itself, which produced diverse and discordant systems. For the purposes of uniformity the power of naturalization was by the States surrendered to the Government of the United States by the Constitution. That the power was delegated and reserved to the extent that the States had exercised. That they had exercised it only to naturalize foreigners, and foreigners of the European nationalities; and the United States receiving from them this power as they had always exercised it were also limited to foreigners of the European branches of the Caucasian race of men.
9. That the fundamental, original, and universal principle upon which our system of governments rests, is that it was founded by and for white men; that it has always belonged to and been managed by white men; and that to preserve and administer it now and forever is the right and mission of the white man. When a negro or Chinaman is attempted to be obtruded into it, the sufficient cause to repel him is that he is a negro or Chinaman. [snip]
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IN SENATE
February 2, 1866
PROTECTION OF CIVIL RIGHTS
The PRESIDENT pro tempore. The unfinished business of yesterday is now before the Senate as in Committee of the Whole, being the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication; upon which the Senator from Kentucky [Mr. DAVIS] is entitled to the floor. [snip]
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Mr. TRUMBULL. Mr. President, I will occupy a very few moments of the attention of the Senate after this long harangue of the Senator from Kentucky, …. He denounces this bill as “outrageous,” “most monstrous,” “abominable,” “oppressive,” “iniquitous,” “unconstitutional,” “void.”
Now, what is this bill that is obnoxious to such terrible epithets? It is a bill providing that all people shall have equal rights. Is not that abominable? Is not that iniquitous? Is not that most monstrous? Is not that terrible on white men? When was such legislation as this ever thought of for white men?
Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?
Now, sir, what becomes of all the Senator’s denunciation? The bill is is applicable exclusively to civil rights. It does not propose to regulate the political rights of individuals; it has nothing to do with the right of suffrage, or any other political right; but is simply intended to carry out a constitutional provision, and guaranty to every person of every color the same civil rights. That is all there is to it. That is
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the only feature of the bill, and all its provisions are aimed at the accomplishment of that one object.
But, says the Senator, it breaks down the local legislation of all the States; it consolidates the power of the States in the Federal Government. Why, sir, if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky. Are all the rights of the people of Kentucky gone because they cannot discriminate and punish another man for doing? The bill draws to the Federal Government no power whatever if the States will perform their constitutional obligations.
But the Senator occupies an hour of his speech to show that certain cases which I thought proper to refer to in a few remarks, the other day, in order to ascertain what was meant by the term “citizen of the United States,” have no application to the rights of a citizen in a State. Those cases, he says, were based upon that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and they relate entirely to the rights which a citizen in one State has on going into another State, and not the rights of the citizens belonging to the State. I never denied that. I would have told the Senator in one moment that the cases were not introduced for any such purpose as he supposes, but they were introduced for the purpose of ascertaining, if we could, by judicial decision what was meant by the term “citizen of the United States;” and inasmuch as there had been judicial decisions upon this clause of the Constitution, in which it had been held that the rights of a citizen of the United States were certain great fundamental rights, such as the right to life, to liberty, and to avail one’s self of all the laws passed for the benefit of the citizen to enable him to enforce his rights; inasmuch as this was the definition given to the term as applied in that part of the Constitution, I reasoned from that, that when the Constitution had been amended and slavery abolished, and we were about to pass a law declaring every person, no matter of what color, born in the United States a citizen of the United States, the same rights would then appertain to all persons who were clothed with American citizenship. That was the object for which those cases were introduced. The Senator seemed to suppose, and argued to show what no one would controvert, that they were not cases deciding upon the rights of the citizen in the States in which he resided.
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But the Senator goes on to say that there is no such thing as naturalizing a person except he be a foreigner; that there’s no authority in the Congress of the United States to declare a person a citizen except it be by way of naturalizing a foreigner. I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself. But, sir, this is not the first time that this has been done. If the Senator from Kentucky had read the statutes of his country he would have ascertained that persons had been made citizens by act of Congress three score years and more ago. As long ago as 1802 the Congress of the United States declared that the children of persons naturalized in this country, if the children were under age, should become citizens of the United States. Without going through any process of naturalization at all, they were declared by act of Congress to be citizens of the country
Again, sir, in 1843, Congress declared:
“That the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be, and are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States.”
That was in 1843. These Stockbridge Indians were born within the United States, and Congress declared by an act that without going through any process naturalization they were and should be citizens of the United States, with all the rights pertaining to citizens.
This, sir, I believe answers the whole speech of the Senator. I think it was made up of statements that there was no precedent for an act of this kind, which is contradicted by a reference to the laws, of denunciations—
Mr. DAVIS. I did not say that there was no precedent for it. I said expressly yesterday that in my opinion the precedents were inadvertently passed, and that at any rate they were outside of the power of Congress.
Mr. TRUMBULL. The Senator chooses to regard everything to be outside of the power of Congress by denouncing it as such. As I said, his speech is made up of these denunciations, piling up adjectives, and denouncing as outrageous a bill which contains but one single principle, and that to establish equality in the civil rights of citizens of the country, and in reading from decisions to controvert a point which nobody had made before the Senate.
He also brings up again the question of marriage between whites and negroes. He is troubled about amalgamation, and becomes excited and vehement in talking about it. I should have supposed that at his time of life he would feel protected against it without any law to put him in the penitentiary if he should commit it. [Laughter.] Sir, we need no law of the kind where there is no disposition for this amalgamation. I apprehend that if the States prefer to pass laws on that subject—and I have answered that question two or three times—[snip]
Mr. GUTHRIE. Mr. President, I have a very distinct conviction in my mind that this bill is not warranted by the Constitution and is not warranted by good policy and sound statesmanship; ….
It is now nine months since the war has ceased. The rebellion has been crushed. The adoption of the amendment to the Constitution by the requisite number of States has been announced by the only authority that had the right to announce it, the Secretary of State. But before it was announced this bill was concocted, not exactly in its present form, and it has been progressive, changing like the chameleon.
Now, what is the pretense for the passage of the bill? It is found in the constitutional amendment abolishing slavery, in these words:
“Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or in any place subject to their jurisdiction.”
The nation has accepted that amendment; it is the language of the nation. My doctrine is that slavery exists no longer in this country; that it is impossible to exist in the face of that provision; and with slavery fell the laws of all the States providing for slavery—every one of them. I do not see what benefit can arise from repealing them by this bill, because if they are not repealed by the Constitution as amended, this bill could not repeal them. I hope that all the States in which slavery formerly existed will accept that constitutional provision in good faith. I myself accept it in good faith. Believing that all the laws authorizing slavery have fallen, I have advised the people of Kentucky, and I would advise all the States, to put these Africans upon the same footing that the whites are in relation to civil rights. They have all the rights that were formerly accorded to the free colored population in all the States just as fully this day as they will have after this bill has passed, and they will continue to have them. [snip]
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HOUSE OF REPRESENTATIVES
February 5, 1866
EVENING SESSION
The House reassembled at seven o’clock and thirty minutes p. m., [Mr. HIGBY in the Chair as Speaker pro tempore,] and resumed, as in the committee of the Whole, the consideration of the President’s annual message, on which Mr. HUBBELL, of Ohio, was entitled to the floor.
RECONSTRUCTION
Mr. HUBELL, of Ohio. Mr. Chairman, history is said to be philosophy teaching by example. In the annals of the human race the past five years of our own country will contain greater and sublimer lessons for the instruction of mankind than will be found in any other period of the same duration since the time when history commenced its record. … In this war, dark, bloody, and fratricidal, countless millions of treasure and thousands of the most valuable lives, mostly among the middle-aged and young, have been cruelly and wantonly sacrificed. Surely our losses have been great, but how incalculably greater have been our compensations. For every sorrow there is a consolation, and for every grief there is a joy. As at Marathon, Yorktown, and Waterloo, in this terrible conflict of arms, the cause of justice, humanity, and liberty has been successful. In this sea of blood, wantonly shed, from the nation’s escutcheon the dark stain of slavery has been washed away forever. A race of four million people, downtrodden and oppressed, the victims of the most unrelenting despotism, have been made free and restored to the rights of manhood. Upon the accession to the Presidency of the late President Lincoln there was no disposition on the part of any considerable portion of those mainly instrumental in his election to interfere with the peculiar institution in the States where it existed. Their only purpose was to arrest its further extension; and but for the rebellion this institution might have continued for a hundred years, or for an indefinite period of time. In all human probability, within the short period of fifty years the aggregate amount of human happiness will be much greater than it would have been if the war had not occurred. Indeed, mysterious and past finding out are the ways of Providence. In the face of rapine, murder, and civil war, we dare not approve the events through which our country has just passed. In the face of emancipation and universal freedom to all men and all races we dare not condemn. So interwoven are the providences of God in the affairs of men that there are actions in human conduct of which human tribunals are incompetent to judge. When we look back at the condition of those before the war whose wicked counsel originated and whose mad ambition led the people of the so-called confederate States into the whirlpool of rebellion and civil war, and when we reflect how frantic with fury and madness they were, both those who led and those who followed, we can only account for their strange and suicidal conduct upon the supposition that communities and nations, like individuals, have their paroxysms of passion and insanity. How terrible have been their sufferings, how unprovoked was the rebellion, and how awfully sublime has been the retribution!
Prior to the war, for thirty years, with the exception of short intervals, the political power of the Government was controlled by that section that attempted to establish the so-called “confederate States of America.” The leaders of the rebellion were the great barons and constituted the aristocracy of our country. They monopolized in the Senate, in the Cabinet, and in the field every place of honor and emolument. In all sectional and political controversies they were successful. Their treason, in the vain attempt to destroy our Government, has converted their opulence into poverty; their States have been desolated by war; their families and kindred have been slain in battle, and the peculiar institution whose area and power it was their purpose to enlarge and strengthen has been utterly and forever destroyed. Executive clemency alone can save them from exile, the prison, and the scaffold. In view of their treason and horrid crimes, who can say that this terrible retribution is not just, or that this punishment is not merited?
In the treatment of a conquered enemy or a fallen foe, sound philosophy and the principles of the Christian religion alike inculcate magnanimity as a duty on the part of the victors as well as a cardinal virtue.
Mr. Chairman, I now proceed to the discussion of the subject more immediately under consideration. The discussion of the President’s message has assumed a wide range. It is impossible that it should have been otherwise; for the message embraces subjects the most momentous that ever occupied the thoughts of a deliberative body of men.
While the policy of of the Administration in its efforts to reorganize civil Governments in the so-called “confederate States of America” is indorsed by the country, and cordially and earnestly approved by the loyal Union men, there are those who misapprehend, in my judgement, its principles and doubt its wisdom.
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Mr. Chairman, we are now enjoying the light of what may be considered the bright day of the Republic; the military power of the rebellion has been broken; the resources of the confederate States have been exhausted; among the masses the spirit of insurrection has been subdued, and the leaders are either in exile or captivity or at the feet of the Executive, supplicants for mercy.
That we may the better understand the path of duty, as well as the policy, justice, and wisdom may indicate, it might not be unprofitable for us to go back in our history to what may be considered the dark day of the Republic. On the first Monday of December, 1863, the Thirty-Eighth Congress convened in this Capitol. Upon its immediate organization a powerful minority party appeared in the House of Representatives hostile to the national Administration, more or less in sympathy with the rebellion, and representing a constituency extending throughout the loyal States with sentiments and views in harmony with their own. Every measure proposed by the Administration party to strengthen the financial or military condition of the country was denounced and assailed by this party as unconstitutional and oppressive. The rebels, elated by their victories, were confident of success, and everywhere the war for the preservation of the Union and the suppression of the rebellion was pronounced a failure. The perils of our situation were greatly enhanced by differences of opinion among Union men upon the presidential question. In the then alarming and perilous condition of the country President Lincoln, on the 8th day of December of that year, issued his proclamation of amnesty and pardon, and proposed his plan for the reconstruction of order and civil government in the rebel States. The purpose of the President in his proffered pardon was to weaken the power of the rebellion by inducing the insurgents to abandon the bogus government of the so-called “southern confederacy” and return to their proper allegiance to the Government. Good faith on the part of those in authority, and especially the Chief Magistrate of a great nation, is always required. This proclamation of proffered mercy was unrescinded and in full force on the 14th of April, 1865, the day of his assassination.
I now propose to call the attention of the committee to some of the principal features of the amnesty proclamation of President Lincoln. The preamble recites the provision of the Constitution of the United States declaring that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” makes a brief allusion to the laws of Congress, “declaring forfeitures and confiscation of property and liberation of slaves, all upon terms and conditions therein stated, and also declaring that the President was thereby authorized at any time thereafter by proclamation to extend to persons who may have participated in the existing rebellion, in any State or part thereof, pardon and amnesty, with such exceptions, and at such times, and on such conditions as he may deem expedient for the public welfare.” The preamble then concludes with this important averment:
“Whereas it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the United States and reinaugurate loyal State governments within and for their respective States.”
By reference to this part of the preamble it is plain to be seen that the President had in view two objects to accomplish: first, to weaken
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the rebellion by proffering amnesty and pardon to those who desired to resume their allegiance to the United States; and second to “reinaugurate loyal State governments.”
I will now, Mr. Chairman, by the indulgence of the committee, read those parts of the proclamation I deem the most essential to a proper understanding of its import and purpose:
“I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known to all persons who have directly, or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is hereby granted to them and each of them, with restoration of all rights of property, except as to slaves, and in proper cases where rights of third parties shall have intervened, and upon the condition that every such person shall take and subscribe an oath, and thenceforward keep and maintain such oath inviolate; and which oath shall be registered for permanent preservation, and shall be of the tenor and effect following, to wit:
“I do solemnly swear, in the presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States and the Union of the States thereunder; and that I will in like manner abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified, or held void by Congress, or by decision of the Supreme Court; and that I will in like manner abide by and faithfully support all proclamations of the President made during the existing rebellion, so long and so far as not modified or declared void by the decision of the Supreme Court. So help me God.”
The persons excepted from the benefits of the foregoing provisions are:
“1. All who are, or shall have been, pretended civil or diplomatic officers or otherwise, or domestic or foreign agents of the pretended confederate government.
“2. All who left judicial stations under the United States to aid the rebellion.
“3. All who shall have been military or naval officers of said pretended confederate government, above the rank of colonel in the army, or lieutenant in the navy.
“4. All who left seats in the Congress of the United States to aid the rebellion.
“5. All who resigned or tendered resignations of their commissions in the Army and Navy of the United States, to evade their duty in resisting the rebellion.’
“6. All who have engaged in any way in treating otherwise than lawfully as prisoners of war persons found in the United States service, as officers, soldiers, seamen, or in any other capacity.”
President Lincoln further declared:
“And I do further proclaim, declare, and make known, that whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the presidential election of the year of our Lord 1860, each having taken the oath aforesaid and not having since violated it, and being a qualified voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall be republican, and in nowise contravening said oath, such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that ‘the United States shall guaranty to every State in this Union a republican form of Government, and shall protect each of them against invasion: and, on application of the Legislature, or the Executive, (when the Legislature cannot be convened,) against domestic violence.’ “
It will be seen by this proclamation that President Lincoln looked forward to a “re-inauguration,” to use his own language, of “loyal State governments” in the rebel States at the earliest possible moment. His plan proposed that whenever it could be ascertained that one tenth in number of the votes cast in any one of the so-called confederate States at the presidential election in 1860, each having taken the oath prescribed, and being a qualified voter by the election law in force immediately before the so-called act of secession, and excluding all others, those persons should have the privilege of reestablishing a State government which was required to be republican in form; and when established it was to be recognized as the true government of such State. For the purpose of my argument, I am not called upon to argue the question whether this plan was a wise or a foolish one. It is a fact well understood that President Lincoln consistently and pertinaciously adhered to this plan for the reorganization of civil governments in the rebel States until the day of his death. In subsequent messages to Congress, in official proclamations, in private conversations, and by public address, he reiterated and reaffirmed his adherence to this plan. In his last public address, on the evening of the 11th of April, he used the following language:
“In my annual message of December, 1863, and accompanying the proclamation, I presented a plan of reconstruction, as the phrase goes, which I promised, if adopted by any State, would be acceptable and sustained by the Executive Government of the nation. I distinctly stated that it was a plan which might possibly be acceptable, and also distinctly protested that the Executive claimed no right to say when or whether members should be admitted to seats in Congress from such States.
“The plan was, in advance, submitted to the Cabinet, and approved by every member of it. One of them suggested that I should then apply the emancipation proclamation thereto, except in parts of Virginia and Louisiana, and that I should drop the suggestion about apprenticeship for freed people, and that I should omit the protest against my own power in regard to admission of members of Congress; but even he approved every part and parcel of the plan which has since been employed or touched by the action of Louisiana.”
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It was in this speech he gave in his quaint and happy style his solution of the question as to the political status of the rebel States, “that they were not in their proper relation to the General Government.” It is a fact well understood, that no measure of Mr. Lincoln’s administration, except the emancipation proclamation, was more thoroughly discussed and better understood by the people than this. At the time it was proposed, political parties were directing their attention to the approaching presidential election, and Mr. Lincoln was a candidate for reelection. This measure became the subject, among both political friends and foes, of discussion and criticism, in oral controversy, and by the press. The feeble opposition to Mr. Lincoln among his political friends was hushed into silence by the unmistakable public voice demanding his renomination and reelection. The national Union convention on the 7th of June following, by a unanimous vote placed Mr. Lincoln before the public for a reelection. Subsequent to his nomination Congress passed a bill which was sent to the President for his approval, making provision for the reorganization of civil governments in the rebel States, essentially different in its provisions from the plan proposed by the President. Either for want of time, or disapproval of its provisions, or both, the President omitted to return the bill with his approval. On the 7th of August immediately following, two distinguished gentlemen occupying high official positions, one a member of the Senate and the other of the House of Representatives in the Thirty-Eighth Congress, arraigned the President in a paper published in the New York Tribune called the “Protest” with a bitterness that attracted the attention of the whole country. I have no disposition to reflect upon the honor or patriotism of the living or the memory of the dead; but I feel authorized by the facts in saying, in vindication of the truth of history, that upon the issue raised by those gentlemen with President Lincoln the loyal Union men of the country almost unanimously sustained the Executive. Upon this and other issues Mr. Lincoln was reelected President by an overwhelming and unprecedented majority; and there was no time during his Administration when the American people had more confidence in the wisdom and patriotism of his Administration than they had on the day he was stricken down by the assassin. I may have occasion, if my brief hour permits, again to allude to this congressional plan.
If I were called upon, Mr. Chairman, to explain the key to Abraham Lincoln’s wonderful popularity, and his hold upon the ears of his countrymen, my answer would be, “He possessed a soul free from all narrow mindedness and prejudice.” In him what a striking exemplification of the lesson inculcated by the renowned philosopher of poetry:
“The quality of mercy is not strained;”
* * * * * * * * * * *
“it is twice blessed;
It blesseth him that gives and him that takes.”
In his second inaugural address, from the fullness of a magnanimous soul, Abraham Lincoln gave utterance to a sentiment that will place his name in the list of the very few whose memory will never die:
“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds, to care for him who shall have borne the battle, for his widow and his orphan, to do all which may achieve and cherish a just and a lasting peace among ourselves and with all nations.”
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Upon the accession of Andrew Johnson to the Presidency the path of duty was plain. A wise and harmonious Cabinet, enjoying the confidence of their countrymen, by the blessings of divine Providence, survived the assassination of President Lincoln. He had been the successful candidate for the second office on the same ticket, supported by the same party, and was supposed to entertain the same sentiments and views. On entering upon the discharge of the responsible duties of Chief Magistrate of the nation, Mr. Johnson found a policy inaugurated by his illustrious predecessor that had received the sanction of the American people in the most authoritative manner. Any departure on his part from that policy, in the absence of newly developed lights, would have been a betrayal of public confidence, and subjected him justly to the charge of perfidy to his party and the country. On entering upon the discharge of his duties, Mr. Johnson found the rebellion substantially suppressed. The amnesty proclamation issued by President Lincoln on the 8th of December, 1863, was still in full force, but it was thought by some pardon and amnesty could only be obtained under that proclamation for offenses committed prior to that date; and that a new amnesty proclamation might be required for those whose offenses were of a subsequent date. On the 29th day of May, 1865, President Johnson issued his proclamation of amnesty. The oath prescribed by Mr. Johnson I will now, by the indulgence of the committee, read:
“I do solemnly swear or affirm, in the presence of Almighty God, that I will henceforth faithfully defend the Constitution of the United States, and the Union of the States thereunder; and that I will in like manner abide by and faithfully support all the laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God.”
It will be seen this oath is precisely the same as that prescribed by President Lincoln, with this clause omitted:
“So long and so far as not modified or declared void by the decision of the Supreme Court.”
I invite the examination of the committee to this proclamation It will be seen that both reserved to themselves the privilege, upon special application, to grant special pardons, and both made exceptions. President Johnson’s exceptions embraced the same as President Lincoln’s, and in addition eight other classes which I will now read:
“7. All persons who have been or are absentees from the United States for the purpose of aiding the rebellion.
“8. All military or naval officers in the rebel service who were educated by the Government in the Military Academy at West Point, or at the United States Naval Academy.
“9. All persons who held the pretended offices of Governors of States in insurrection against the United States.
“10. All persons who left their homes within the jurisdiction and protection of the United States, and passed beyond the Federal military lines into the so-called confederate States, for the purpose of aiding the rebellion.
“11. All persons who have engaged in the destruction of the commerce of the United States upon the high seas, and all persons who have made raids into the United States from Canada, or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British Provinces from the United States.
“12. All persons who, at the time when they seek to obtain the benefit thereof, by taking the oath herein prescribed, are in military or civil confinement or custody, or under bond of the military or naval authorities or agents of the United States, as prisoners of war, or persons detained for offenses of any kind, either before or after their conviction.
“13. All persons who have voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars.
“14. All persons who have taken the oath of amnesty, as prescribed in the President’s proclamation of December 28, or the oath of allegiance to the Government of the United States, since the date of said proclamation, and who have not the thenceforward kept and maintained the same inviolate; provided, that
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special application may be made to the President for pardon, by any person belonging to the excepted classes, and such leniency will be liberally extended as may be consistent with the facts and the peace and dignity of the United States.”
I ought, perhaps, to call the attention of the committee in this connection to the act of Congress, approved July 17, 1862, entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.”
The provision to which I call your attention reads as follows:
“SEC. 13. And be it further enacted, That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State, or part thereof, pardon and amnesty, with such exceptions, and at such time, and on such conditions, as he may deem expedient for the public welfare.”
This law is now in full force. [snip]
I have now done with this branch of my subject. It will be remembered President Lincoln, in his speech at the Executive Mansion, after
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the surrender of Lee, from which I have already made quotations, said expressly with reference to the plan of reconstruction he proposed, “if adopted by any State would be acceptable and be sustained by the Executive Government of the nation.” In the same speech, and almost in the same breath, he made the following emphatic declaration:
“I distinctly stated that it was a plan which might possibly be acceptable, and also distinctly protested that the Executive claimed no right to say when or whether members should be admitted to seats in Congress from such States.”
It will be observed from the careful and cautious language of President Lincoln there was another branch of the Government to which those States, when their civil governments were restored, would have to look for recognition. He said “it was a plan which might possible be acceptable.” Acceptable to whom? My answer is, acceptable to Congress, in whom is vested by the Constitution the supreme legislative power of the nation, subject only to its own limitations and restrictions. In the message we are now considering, President Johnson uses the following language, which may be considered the counterpart to the speech of President Lincoln which I have just quoted:
“Here it is for you, fellow-citizens of the Senate, and for you, fellow-citizens of the House of Representatives, to judge, each of you for yourselves, of the elections, returns, and qualifications of your own members.”
The brief hour allotted will not permit me to discuss at this time the question of the political status of the so-called “confederate States.” Upon the suppression of the rebellion they could not be considered States in political parlance, either in or out of the Union. The term “States” implies a political commonwealth, with executive, legislative, and judiciary departments. In those States, these, with all the machinery of civil government, were destroyed by the war. In the absence of civil governments and from the necessity of the case, the President established military governments, which have been superseded by civil governments, established under the military orders of the President in the manner I have already narrated. These civil governments, thus organized, are in the nature of military governments, being the agencies of the Commander-in-Chief, for those States whose rightful civil governments had been destroyed by the rebellion.
I therefore, Mr. Chairman, not only claim the right and power of Congress to review what has been done in the restoration of civil governments in the rebel States, but maintain that it is the duty of Congress, by appropriate legislation, to legalize their validity and restore those States to their proper relation to the General Government. Before this is done, Mr. Chairman, and members from those States are admitted to their seats in this House, I desire to see an amendment made to the Constitution changing the basis of representation from population to voters, or is equivalent, so as to conform to the new order of things created by the war. Ample and complete protection to the freedmen in all their rights of persons and of property to the full extent enjoyed by all non-voting classes is demanded alike by every consideration of humanity, as well as by the unmistakable voice of their grateful countrymen. In the darkest hour of our country’s peril, by their fidelity to the cause of the Union they not only earned their freedom but that protection from the Government which the great and the good of all conditions of society demand for them.
As soon as these objects can be attained, and they elect loyal men who can take the oath, I am in favor of a restoration of all the States to their proper relations to the General Government.
I heartily approve of what has been done by the President. He has acted wisely, in good faith, and in obedience to the will of the nation. With malice toward none, with charity for all, his policy has been wise, magnanimous, and conciliatory.
In our deliberations it seems to me our aim should be to heal and not to irritate, to bind up the nation’s wounds, and so conduct our legislation to restore to all parts of our heretofore unhappy and distracted country concord and harmony.
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ADMISSION OF THE SOUTHERN STATES, ETC.
Mr. RANDALL, of Pennsylvania. Mr. Chairman, the subject now agitating the public mind is the reconstruction of the late rebel States governments. In considering it, we are met at the threshold with the question, have these States, by reason of the conduct and acts of a portion of their citizens, been thereby placed without the Union? And are they now in a territorial condition, and in consequence under the control of Congress, as in the case of Territories not formed into States? It is proper, in examining this matter, that we lay aside all bitterness of spirit, and seek to do that which is best for the good of the country. There is no occasion to dwell upon or reproduce the sorrows of the past.
If, as is contended, these States are out of the Union, then they have become a nondescript community, without law or order. I affirm that these States have never been out of the Union. To say they have is to admit the doctrine of the right of secession, and assert that we now hold them by force of arms. We have been fighting for nothing except to deny and prevent the exercise of the right of secession. This right could only be allowed by the consent of the States in the Union; and if not agreed to, then it must be obtained by force, which, until successful, is rebellion, being while in doubt by one side held to be rebellion, and by the other revolution; but failing in success, the rights and positions remain as before the war commenced. The fact that a majority of the people was in a state of insurrection does not carry with it a forfeiture of the State privileges and immunities, which are the right of those who remain loyal.
President Johnson has stated this doctrine in the most simple and conclusive manner, when he asserted in his message that a State cannot commit treason, but that individuals can commit treason and subject themselves to punishment, but cannot entail punishment upon those who have remained loyal and innocent. No one ever heard of an indictment against a State, city, or even a corporation for treason, murder, felony, or any other similar offense.
“Shay’s insurrection” in Massachusetts occurred under the Articles of Confederation, and before the adoption of the Federal Constitution. And we have in our history but one analogous case, to wit, “the western insurrection” in the year 1794, which was organized by citizens of the western counties of Pennsylvania, the western part of Virginia, (now a part of West Virginia,) and the Northwestern Territory (now the State of Ohio.) They were in rebellion. General Washington proceeded against them, and when they submitted, the soil was again placed under their control, and their people were restored to all their civil rights. The late rebellion and the western insurrection do not differ one jot except in the magnitude of the numbers engaged.
I do not rely alone upon this precedent. I propose to show that the Republican party, who now claim to have the entire control of the terms of the readjustment of these vexed questions between the several State authorities and the Federal Government, have by their own acts and the legislation they have adopted deliberately established that these States have never been out of the Union, and they have been permitted to exercise the highest powers granted in the Constitution, on the assumption that they were part of the Union.
Let us examine the record of Tennessee. A majority of the people of that State voted to approve the act of secession. Notwithstanding, Andrew Johnson remained in the Senate of the United States as a Senator from that State for a long period of time after the secession ordinance was approved by the people, and yet no one in or out of the Senate ever called in question his right to a seat in that body, thereby admitting that Tennessee was a State in the Union and had a right of representation in Congress.
Article two, section one, clause four, of the Constitution declares that—
“No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.”
Article twelve of the amendments adopted September 25, 1804, provides that—
“No person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”
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The Republican national convention convened to nominate candidates for President and Vice President was held in the city of Baltimore in June, 1864. Every delegate in that convention who voted to place Andrew Johnson in nomination as the Republican candidate for Vice President recognized and solemnly declared that Tennessee was a State in the Union, that Andrew Johnson was a citizen[*] of that State, and by virtue of that political right and that alone was eligible to the office of Vice President of the United States. That convention, after argument and deliberation, determined by a decided vote to admit delegates from the States of Tennessee, Louisiana, and Arkansas, with all the privileges as equals in every respect with other delegates, and the delegates from those States voted and assisted in the nomination of candidates and the settlement of the platform of principles; and thus the convention clearly acknowledged that those States were then a portion of the Union. This was done in full response to the requirement embraced in the terms of the Constitution heretofore quoted.
Every State convention which ratified that nomination made the same declaration to the world.
Every qualified voter throughout the United States who voted the Lincoln and Johnson electoral ticket in his respective State reaffirmed this fact.
[My comment about Andrew Johnson recognized as a “citizen”]
“Every delegate … recognized … Tennessee … State … Andrew Johnson … citizen ….”
Andrew Johnson’s father Jacob Johnson was born in April 17, 1778 (d. January 4, 1812 – age 34), and his mother Mary McDonough was born July 17, 1783 (d. February 13, 1856 – age 73 – married Turner Daugherty May 6, 1812). Both of Andrew Johnson’s parents were British “subjects”, born in British America after July 4, 1776, the accepted date of the declaration of independence from England, and born before September 17, 1787, the date the positive law (law of people) ‘written’ Constitution was adopted by the convention.
Andrew Johnson was born a “citizen” on December 29, 1808, twenty-one years after 1787. He was eligible to be president because he was an Article II “natural born Citizen” for two natural law birth reasons. (1) He was a “citizen” (a positive law word) by birth (a natural law word) to parents who were recognized as naturalized “citizens” (both positive law words) by being residents of one of the thirteen colonies during the 1776-1783 war of independence from England. (2) He was a “natural born Citizen” by birth alone after the September 17, 1787 U. S. Constitution was adopted. It was not legally possible for him or anybody else to be recognized as a 1787 “natural born Citizen” before September 17, the date when the words “natural born Citizen” were written and adopted by the convention delegates, and became the law about eligibility to be president. If he had been born before 1787 he would have been an “… or a Citizen of …” as expressed in Article II Section 1 clause 5:
“No person except a natural born Citizen,
or a Citizen of the United States,
at the time of the Adoption of this Constitution,
shall be eligible to the Office of President; ….”
If Andrew Johnson’s parents had been born one day after September 17, 1787, he would have been an Article II “natural born Citizen” and eligible to be president by birth alone on U. S. soil to two U. S. citizens who both would also have been natural born citizens by birth alone instead of “citizens” by naturalization.
Also, after the last “… or a Citizen of …” died some time in the middle to late 1800s only a “natural born Citizen” is still eligible to be president in the 2000s. [End of comment]
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On the 7th day of December, 1864, the day on which the electors voted in the respective States, Andrew Johnson was a citizen of Tennessee and of no other State. It follows, then, that if Tennessee was not a State in the Union on that day, that Andrew Johnson was not a citizen of the United States, and not eligible to the office to which he was subsequently elected. This is one of the many absurdities to which gentlemen are driven who maintain that the rebel States are no portion of the Union.
On the 18th day of February, 1865, a joint convention of the two Houses of Congress was held “for the purpose of opening, determining, and declaring the votes for the offices of President and Vice President of the United States for the term of four years, commencing on the 4th of March next ensuing.” And after opening and counting the votes, Vice President Hamlin, in the most solemn discharge of his duty, and without objection from any, said;
“Wherefore, I do declare that Abraham Lincoln, of the State of Illinois, having received a majority of the whole number of electoral votes is duly elected President of the United States for four years, commencing on the 4th of March, 1865 And that Andrew Johnson, of the State of Tennessee, having received a majority of the whole number of electoral votes for Vice President of the United States, is duly elected Vice President of the United States for four years, commencing on the 4th of March, 1865.”
Thus, declaring Tennessee to be a State in the Union.
Further, on the 4th day of March, 1865, Andrew Johnson was inaugurated Vice President of the United States, claiming to be and was declared to be a citizen of the State of Tennessee.
The ratification of the ordinance of secession of Tennessee by a majority of the voters of that State was announced by Governor Harris on the 24th of June, 1861. On the 2nd day of December, 1861, Horace Maynard presented himself at the bar of the Thirty-Seventh Congress as a member from the State of Tennessee, was
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qualified and took his seat. On the 23rd of January, 1862, Mr. Clements was qualified; and on the 25th of January, 1863, Mr. Bridges appeared and was qualified. All these from the State of Tennessee. These gentlemen remained as sitting members until the expiration of the Thirty-Seventh Congress March 4, 1863. I would like to know the difference in the condition and the status of Tennessee at the dates I have named (all after the date of the secession ordinance,) and Tennessee, as we find her to-day. There are none, and none can be stated.
As if to make the position of the Republican party more glaring and bare in its inconsistency, the same gentleman, (Mr. Maynard,) who was qualified in December, 1861, and held his seat until March, 1863, now presents himself with similar credentials from the same district and people, and is at this time refused admission by this House. [snip]
The Thirty-Eighth Congress passed an act, which was approved and signed by President Lincoln, entitled “An act to change the place of holding the circuit and district courts of the United States for the district of West Tennessee, and for other purposes.” This law was to keep alive the powers of the United States court in the State of Tennessee, and for its removal to Memphis. The existence of Tennessee as a State was thereby fully acknowledged.
The most important and conclusive proof of the soundness of the doctrine I have stated is to be found in the recognition of West Virginia as a newly erected State in the Union. Before I proceed to examine the provisions of the Federal Constitution upon the subject of the admission of new States and the admission of West Virginia as an independent State in the Union, I will recapitulate some of the antecedents of that act. A convention, professing to represent the whole State of old Virginia, in April, 1861, determined to secede from the Union, and submitted their decision to a vote of the people of the State. The State authorities decided that a majority of the people had affirmed the act of secession. I do not enter into the accuracy of that vote, although I believe a majority of the people of Virginia was at that time opposed to secession.
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The people of the western counties of Virginia were with great unanimity loyal and opposed to secession. A portion of what may be called East Virginia agreed in sentiment with the people of West Virginia. These people very properly determined to treat this act of secession as a nullity, elected a Governor and a Legislature. They organized and constituted what is called the “Pierpoint government” of Virginia. It has been held that the “Pierpoint government” was legally constituted, and I believe does not depend upon whether they had the allegiance of a majority of the people or not. They were the only loyal people in the State, and if the rest chose to disfranchise themselves, they could not expatriate that portion of the people who were true in their fidelity to the Constitution of the Federal Government. This principle is illustrated every day; the legality of an election never can depend upon the number of votes, cast, and if a majority refuse to vote it does not impugn the validity of an election.
The people of West Virginia, in June, 1861, petitioned the Pierpoint Legislature to be formed and erected into a new and independent State. That Legislature, in August, 1861, granted the petition, and the Congress of the United States, and Abraham Lincoln, President of the United States, approved of and ratified these proceedings, and erected the western part of Virginia into a new State called West Virginia, which was thus organized. All the Federal officers were duly appointed by the President and confirmed by the Senate. She sent her three Representatives to this House, and they or their successors now occupy seats without cavil or doubt. The Senators duly elected by the Legislature of West Virginia were admitted into the Senate of the United States, and they or their successors also occupy seats.
Before I proceed to take the constitutional view of the subject I beg leave to state a fact antecedent in date but important to the question I have under consideration.
The State of Virginia, before the erection of the new State of West Virginia, and after the so-called secession of Virginia, sent Representatives to this House. Messrs. Segar, Upton, Carlile, Brown, and Waley, who were admitted to seats on this floor. The two former came from the eastern part of Virginia. The Pierpoint Legislature elected two Senators, Messers. Willey and Carlile, in place of Messrs. Mason and Hunter. They appeared, were qualified, and occupied their seats to the end of their respective terms of office. The same action was had during 1861, 1862, and 1863 in reference to Representatives from the States of Tennessee and Louisiana.
The Constitution of the United States provides in the fourth article, section three, as follows:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States without the consent of the Legislature of the States concerned, as well as of the Congress.”
This is the most potential power vested in Congress which relates to the internal concerns of the Union.
The erection of Vermont into a new State out of New Hampshire, Kentucky out of Virginia, Tennessee out of North Carolina, Mississippi and Alabama out of South Carolina and Georgia, and Maine out of Massachusetts, show that it is a power which has always been exercised with great care and after the most mature deliberation.
Apply these self-evident principles to the formation of West Virginia, and it establishes that Virginia after the vote of secession remained what Virginia was before the act, a free and independent State in the Union, competent to cede a portion of her territory to be erected into a new State; that congress, when they confirmed the erection of West Virginia, recognized without limitation the power of Virginia to cede and the power of West Virginia to become a new State; that West Virginia stands at this day in the Union upon the same basis that Vermont, Kentucky, Tennessee, Mississippi, Alabama, and Maine occupy, and if you deny the right of old Virginia to grant the territory and of West Virginia to become a free and independent State, you must deny the right of all the others which have been formed out of the thirteen colonial States. The process of formation has been literally the same in each of the cases.
The constitutional principles I have asserted are fully sustained by a report of the Judiciary Committee of this House, upon the transfer of Jefferson and Berkeley counties from Virginia to West Virginia.
The report is based upon the constitutional declarations, that Virginia was a State in the Union at the time of the act of secession, has been so during the period of the late rebellion, is so now, and that there is no power in the Government to deprive it of its sovereignty as a State in the Union.
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On page 7 of that report the committee state:
“It is perfectly clear to your committee that Congress has no power to institute any measures or proceedings to change the boundaries of adjacent States, or to transfer territory from one to another. The States alone can make any changes in their boundaries or transfer territory from one to another, and Congress has no power over the subject except to ratify what they may do and certainly, the power to ratify implies the power to refuse to ratify.”
I ask the members of this House to be guided by the report of the Judiciary Committee; be consistent, and when Virginia or any other former rebel State seeks representation in this Congress by loyal men to grant such representation.
I know of no higher law in the country than the exposition of the Constitution by the Supreme Court of the United States. A reference to the decisions of that court settles beyond all controversy the doctrine which I am now endeavoring to support. In volume second of the decisions of that court, reported by J. W. Wallace, is to be found the case of the Circassian. This case was an appeal from the decision of the district court of the southern district of Florida. Its merits depended upon a proclamation of Mr. Lincoln, issued April 19, 1861, and all the facts of the case occurred subsequent to the act of secession by the State of Florida. The court entertained jurisdiction of the case, and thus declared that Florida remained a part of and was in fact within the Union. This is the deliberate judgment of Chief Justice Chase and his associate judges.
The same principle was again recognized as to the State of Florida in the cases of the Andromeda, the Venice, and the Beagorry.
Again, this principle was held in the case of Harvey vs. Tyler, which is an appeal from the district court of the United States for the western district of Virginia. Justice Miller delivered the opinion of the court and fully recognized the code of Virginia as in force, and thus established that Virginia was in the Union and had always been during the pendency of the case, which embraces the entire period of the rebellion. This is one of the most important opinions ever delivered on the subject of titles to lands by that court, the facts and merits of which are well known to the member on this floor from the State of West Virginia. The judgment is not founded upon any fabulous case, but where large interests were actually at stake. The opinions of individuals are brought here to overturn the solemn and deliberate decision of the supreme judicial authority of this land. It is left to this House to determine which shall have the most weight.
I have selected the cases specified from the last volume of the decisions of that court. Many others could be cited upon the same point, but time and labor prevent.
Mr. Lincoln before his death made all the appropriate appointments of Federal and district judges, marshals, assessors, and collectors of revenue and other officers in the States of Tennessee, Virginia, Arkansas, Louisiana, North Carolina, and other rebel States where ever the authority of the Government of the United States could be reestablished within them. Mr. Johnson since his accession to the Presidency has done the same. And the Senate of the United States have confirmed these appointments. The Supreme Court of the United States have recognized all these appointments and acts whenever they have come under their judicial notice.
The Government of the United States is divided into three distinct departments, each independent of the other—the executive, the legislative, and the judicial. I have established by the record that each branch have in various ways and at different times affirmed that the rebel States have been without interruption and still are an integral part of the Union.
Throughout the whole period of Mr. Lincoln’s administration, he uniformly promulgated one settled plan, that whenever the South should lay down their arms and surrender to the Government they would be received back; and almost the last public act of his, prior to his atrocious and fiend-like assassination, was to offer terms of peace, which, if they had been accepted, would now find these States fully represented in this House.
The act of Congress of March 12, 1863, protects the property of loyal citizens in the rebel States who have not given aid and comfort to the rebellion, and allows them two years after the suppression of the rebellion to recover their property. It is impossible to suppose that Congress would pass an act to protect the property of loyal citizens, and at the same time deprive them of their dearest political rights, one of which is representation in this House.
Mr. Lincoln, in his third annual message,
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December 8, 1863, in discussing the reconstruction of the Union, expressed himself in the following words:
“In some States the elements for resumption seem ready for action, but remain inactive apparently for want of a rallying point, a plan of action. Why shall A adopt the plan of B rather than B that of A? And if A and B should agree, how shall they know but the General Government here will reject their plan? By the proclamation a plan is presented which may be accepted by them as a rallying point, and which they are assured in advance will not be rejected here.”
The proclamation alluded to accompanied the message and is known as the “amnesty proclamation,” and bears even date with the message quoted from. In this paper President Lincoln made a clear distinction between the States, as States, and the individuals within those States who had committed treason against the United States. These individuals he proposed to pardon upon certain conditions with a limitation, however, as to certain other persons therein described. I quote:
“Therefore I Abraham Lincoln, President of the United States, do proclaim, declare, and make known to all persons who have directly, or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is thereby granted them them and to each of them, with restoration of all rights of property.”
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Then follow the conditions of such pardon, when he sets further forth—
“And I do further proclaim, declare, and make known, that whenever in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Virginia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the presidential election, A. D. 1860, each having taken the oath aforesaid and not having since violated it, and bring a qualified voter by the election laws of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall be republican and in nowise contravening said oath, such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that ‘the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the Legislature, or the Executive, (when the Legislature cannot be convened) against domestic violence.’ ”
Under the provisions of this proclamation the State governments of Louisiana and Arkansas were reestablished, and have continued ever since. The difference now and then being, that at the time specified Mr. Lincoln held that one tenth was sufficient, if loyal and oath bound. And now the entire population are in like manner loyal and ready to subscribe to such oath.
Mr. Lincoln ever continued to treat two of these States as in the Union, and so declared in his proclamation of the 8th day of July, 1864, giving his reasons for failing to sign an act entitled “An act to guaranty to certain States whose governments have been usurped or overthrown a republican form of government,” passed July 2, 1864; with this further declaration, that he should recognize the others in like manner as soon as they laid down their arms and conformed with the terms of his proclamation of that date.
I give the words of his proclamation of July 8, 1864:
“Now, therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known, that, while I am (as I was in December last, when by proclamation I propounded a plan for restoration) unprepared, by a formal approval of this bill, to be inflexibly committed to any single plan of restoration; and while I am also unprepared to declare that the free State constitutions and governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for naught, thereby repelling and discouraging the loyal citizens who have set up the same as to further effort, or to declare a constitutional competency in Congress to abolish slavery in States, but am at the same time sincerely hoping and expecting that a constitutional amendment abolishing slavery throughout the nation may be adopted, nevertheless I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any State choosing to adopt it, and that I am, and at all times shall be, prepared to give the executive aid and assistance to any such people so soon as the military resistance to the United States shall have been suppressed in any such State, and the people thereof shall have sufficiently returned to their obedience to the Constitution and laws of the United States, in which cases military governors will be appointed with directions to proceed according to the bill.”
The gentleman from Ohio [Mr. SPALDING] during the present session, in an elaborate speech, said:
“Now, a State may be in the Union as a subject of government, but may by misconduct forfeit its right as a part of the governing power.”
The gentleman differs from my colleague from Pennsylvania, [Mr. STEVENS,] who is more consistent in his doctrine when he maintained that the southern States are a conquered people, and without a status as States in the Union. The doctrine of the learned gentleman from Ohio [Mr. SPALDING] amounts to this, that the eleven rebel States are in or out of the Union just as we please, and according as it suits our whim and caprice. His doctrine has not, as might appear, the merit of novelty. It is a paraphrase of the odious doctrine of nullification as adopted by the convention of South Carolina in 1862, which declared that South Carolina had the right to be in the Union or out of the Union, just as she pleased, and that she could declare that she was bound or not by the laws of the United States as she might determine. [snip]
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Without fear of successful contradiction I assert:
1. That the Constitution of the United States was for a perpetual Union without limitation as to time; and that the eleven rebel States had no right to secede from and deny their allegiance to that Constitution and Union.
2. That the conventions of the States which adopted the acts of secession respectively exercised powers which they had voluntarily surrendered to the General Government, and are consequently null and void.
3. That the individuals who thus seceded, and those who aided and abetted them by force in this secession, are in their own proper persons liable for the acts and offenses they have thus committed against the Constitution of the United States and the laws thereunder; that these individuals are liable to the executive and judicial departments of the Government where the exclusive power rests to pardon or to punish.
4. That the citizens and inhabitants of the revel States who remained faithful to the Union retain their rights and privileges in the same manner as though they had not been interfered with. They cannot be impaired nor taken from them by any power, and therefore those States remained as they were at the beginning and during the rebellion, in the Union. There is no distinction as to the rebel States. All of them stand upon the same footing in their relations to the Union. They differ only as to the order of dates in their respective acts of secession. [snip]
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HOUSE OF REPRESENTATIVES
February 7, 1866
RECONSTRUCTION
Mr. KELSO. In the consideration of this subject, our first duty is to ascertain the present status of the rebel States, to determine which seems to be a difficult matter even with some of our greatest statesman.
No reasonable and loyal man, I think, will now contend, as did the rebels five years ago, that those States, by the mere act of secession, became foreign and independent governments. Those who advocate that doctrine now are five
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years behind the rebels themselves, who now contend that those States are in the Union and have been all the time. I shall, therefore, regard it as a conceded fact that those so-called States have all the time de jure composed a geographical and political part of the United States, and now de facto constitute such a part. The only question, therefore, to be determined is, whether they are de facto States—governing partners in the Union—or merely United States Territories subject to the disposition of Congress. This leads us to consider, what is a State?
Politically speaking, a State is a body of people united for the purpose of government, and occupying a portion of country comprised within certain described limits. The land alone does not constitute the State; neither do the people alone, nor do both together, unless the people are united for governmental purposes. A State is a unit, and isolated inhabitants acting independently of each other cannot form such a unit. [snip]
Every vestige of the Union might thus be destroyed, and yet, according to this theory, the Union would still be unimpaired; and I again ask, where would that Union be and what would it be? If under such circumstances it would be merely in a catalepsy, I fear the attack would be a very serious one. [snip]
At the very threshold of this subject, we are met by two questions of vast importance, neither of which have yet been answered: 1. What shall be done with the rebels? 2. What shall be done with the negroes?
The first of these questions would be easily answered if we had a hell to put our rebels in, as the Almighty had for His rebels; but as we lack that one little convenience, we should take that course which will best secure justice to them and safety to the nation.
Strict justice, according to the laws of all nations, would require that the rebels all suffer an ignominious death; but since the President of the United States has granted them their lives and the liberty of their persons, I will not now question their right to enjoy what has thus been given them. To grant them more than these, however, would at present be inconsistent with the safety of the loyal people of the South, and indeed of the whole nation, and I deny that the President or any one else has the right to authority to favor rebels at the expense of loyal people.
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By the laws of nations, the rebels have forfeited every vestige of right and title to their
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property, which is now, to all intents and purposes, vested in the United States; and once so vested I do not think that it can be divested, except by the people themselves, or by their Representatives in Congress. [snip]
When the rebels inaugurated an unjust war against us, they knew what they were doing and what they were risking; and with their eyes open, they staked their lives and their fortunes upon the result. They expected to gain all or lose all. …. [snip]
But what shall be done with the negroes? I have sufficiently answered this question already by including them among the citizens of the Territories, concerning which I have been speaking. Of course all the loyal citizens should have a voice in the formation of the new State constitution; and if they were so unwise as to insert the word white in those constitutions I would nothing more to say; while if none but whites were allowed a voice in framing those constitutions, I would not consider them republican in form if the ostracized any citizen on account of race or color. If none but blacks were allowed a voice in the framing of those constitutions and they should ostracize any citizen on account of race or color I would also reject their constitutions as not republican in form.
I am prepared to be met here by the thousand and one hackneyed objections to negro suffrage. These objections have been often and ably refuted in this House, and by the loyal press throughout the nation; and I do not now propose to notice them in detail. The only one, indeed, which is worth of notice is the want of intelligence among the negroes. This is a reasonable, but by no means an insurmountable objection. The same objection could, with equal justice, be urged against four fifths of the whites of the South. Some evils would, no doubt, attend the enfranchisement of four million ignorant blacks and half a million equally ignorant whites, none of whom have ever been accustomed to think or act for themselves; yet those evils would be comparatively unimportant, and would soon disappear when those masses become more enlightened.
The experience of the past proves that the dangers we have to fear arise more from the corrupt principles of those who are intelligent than from the ignorance of those who are not. The most intelligent classes of the South were the most uniformly disloyal. Intelligence among the people is of vast importance, but dearly have we learned that pure and unswerving loyalty is of a thousand times more importance. The Union did not save the southern whites through their intelligence, nor did it lose the blacks their ignorance. The whites with all their intelligence were traitors, the black with all their ignorance were loyal; and thus we have at least one instance in which the negroes, with all their disadvantages, have shown themselves worthy of trust; and I for one, am willing to trust them again. They have shown themselves sufficiently intelligent to be, as a class, sober, honest, industrious, loyal, and brave; and this, among American citizens, is the most important kind of intelligence. They know enough to cast bullets with judgment, and I have no doubt but that they would soon learn to cast ballots with equal judgment. A very little intelligence is sufficient to distinguish between right and wrong, loyalty and treason, and whoever knows enough to do that is intelligent enough to fight and to vote. The philosopher who can explain the composition of gunpowder and the chemical and mechanical powers brought into action in the use of fire-arms, is very little superior in battle to the loyal and brave, but unlettered rustic who merely knows enough to clap one eye shut, take deliberate aim, and kill his rebel. The philosopher who has ransacked whole libraries only knows enough to cast his vote for the right; the rustic, guided only by the prompting of an honest and loyal heart, knows enough to do the same.
Somebody must vote in the South, and for my part I would rather it should be the loyal party, though they are mostly ignorant and black.
Of course they would commit some blunders at first, but they would soon learn. Practice in voting, as in all other things, makes perfect, and there can be no perfection without practice. If you wish them to learn the art of swimming will you forbid them the use of water until they have become expert swimmers? Will you refuse them the use of pens until they have become good writers? Will you refuse them the use of instruments until they have become good musicians? And can you, with any more reason, refuse them the use of the ballot until they have become good voters? How can you expect them or anybody else to learn when you withhold from them the only means by which they could learn?
If, however, you must have a suffrage qualified by intelligence, fix your standard, apply it impartially to all without regard to race or color, and I will not so seriously object, though it would, at this time, cut off nineteen twentieths of the loyal people of the South, both black and white.
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I have thus far considered the subject of impartial suffrage in the southern territories merely with reference to its practicability. I shall now proceed to consider it with reference to its justness and its necessity.
In the first place, then, though we may deny that the loyal blacks have any right to the elective franchise, we must nevertheless grant it to them in order thus to protect the loyal whites, when all admit we are bound to protect. From the best accounts I can obtain, the loyal whites constitute less than one twentieth part of the entire population of these territories, and less than one twelfth of the white population. If, then, we disfranchise the loyal blacks, what hope will remain to the loyal whites after the Federal troops are withdrawn and the rebels restored to power? I venture the prediction that at the end of one year, there would not be a hundred thorough Union men in the South that would dare
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to own their principles. They would be killed, driven out, or forced to succumb to the overwhelming tide of treason. This is the opinion of all my Union friends in the South with whom I am corresponding; it is the opinion of my old friend, the Delegate from Louisiana; it is the opinion of my colleagues here, and it is the opinion of all who know the real spirit of the rebels. [snip]
Thus we see that necessity compels us to give the elective franchise to the loyal blacks; and we will now consider whether the eternal laws of liberty and justice do not require the same.
If the negroes are men, they are entitled to the rights of men. If it be true that “all men” in regard to their rights “are born equal,” then whatever is the inalienable right of one man or one race of men is undeniably the inalienable right of all men and all races. If it be true that we should do unto others as we would that they should do unto us, and if we would not that the African race should deprive us of any of our inalienable rights, how dare we, as a Christian people, do so unto them? And how can we hope for God’s blessing while we continue to violate this His solemn commandment? Have not the judgments of the last five years been sufficient to teach us wisdom, coming upon us, as all admit they have, in direct consequence of the terrible crime of slavery? For my part, I am satisfied with our punishments, and am willing to do justice to all men, even to the despised negroes, though in so doing I must do violence to prejudices, old almost as my life, and strong as my innate passions.
Though I never was a pro-slavery man, yet reared up in a slave State, and by ultra pro-slavery parents, I unconsciously imbibed many of the prejudices.
Besides the arguments already advanced, the gratitude, the plighted faith of our nation binds us to bestow upon the loyal blacks all the rights of free men. In the darkest hour of our country’s need they never faltered, though their fidelity to us subjected them to unheard of outrages and to death in a thousand terrible forms. Our poor starved prisoners, escaping from the rebel slaughter-pens, found no friend but the poor, despised negro. He shared with them his own scant fare, and in the darkness of the night let them through swamps and over mountains to the camps of their friends. When the war hung in even balance, we called upon these poor slaves to help us, and promised in return to make them free. No danger, no obstacle daunted them. By tens of thousands they poured into our ranks, and soon a hundred thousand threw themselves upon the foe. The scale soon turned in our favor. Fort Wagner, Fort Pillow, Port Hudson, Petersburg, a score of battle-fields the most bloody and the most glorious, all speak of their valor. As rushes the mighty avalanche from the Alpine heights, so rushed they amid the hot smoke and the thunders of the battle upon the traitor foe. On, on, through trenches, over ramparts, up to the very mouths of the cannons that mowed them down, they bore our flag to victory, while thousands, from whose bosoms the hot blood was rushing, turned their glaring eyes upward to that “brave old flag,” and poured out their last breath in cheers for victory and liberty. Poor, brave, deluded men! They thought they were free. Our country had promised them freedom, and even in dying they were happy because they thought it was true. They did not know that the very people for whom they were dying would have shamelessly violated their solemn promise and turned them over helpless into the hands of their enraged and cruel masters. It would have been better had they all died. Alas for those who still live! They come home war-worn and weary to find that their fond hope of liberty was only a delusive dream.
They are greeted with, “We are done with you niggers; now lay down your arms and either leave the country, or go to work for your old rebel masters. This is a white man’s country, and you have no rights here which a white man is bound to respect. We promised you freedom, it is true, and we have bargained with your old masters not to call you slaves in the future; but excepting the name, your condition is not likely to be any better. Your old masters are enraged and will wreak their vengeance upon your defenseless heads, but then you are black.” Oh, God! if it be such a crime to be black, why hast thou made them thus?
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Slavery is said to be abolished. In name it is, but not in reality. Of right the negroes always were free; but what good did the right do them when freedom itself was withheld? So with the name of freedom now, what good will that do them if the substance is withheld? They have been proclaimed free, but has that made them so? Were I to see you drowning, and were to proclaim you free from that danger, and then leave you without help, what good would my proclamation do you? Were I to find you hungry and cold, and were merely to proclaim that you were clothed and fed, would that proclamation be real food and clothing?
It would certainly be as real as the liberty which we have bestowed upon the slaves. We have only deprived them of the protection of their owners, who had the same interest in their safety that they had in the safety of their horses or oxen. Now they have the protection of no one, and are the slaves of all their enemies. When the negro was an ox, he had the protection of an ox. Now that he is is half man and half ox, he is regarded as a monster, and receives no protection at all. Does not every southern breeze still bring to our ears the should of the lash, the baying of the bloodhound, the cries of the slave, and the screams of murder? And will not this condition of things continue until the negroes are either annihilated or driven to terrible deeds of desperation? It certainly will, unless we put them in a condition to defend their own rights by giving them the elective franchise. Let us then by a solemn act of Congress declare the so-called rebel States to be mere Territories. Let us then call upon all the loyal people of those Territories, and none but the loyal, to form constitutions, republican in form, and apply for admission as States of this Union. The power being thus established in the hands of the loyal people, they would be able to keep the rebels in subjection, and we could recall our armies. Emigration, sure of protection, would pour into those States, and soon the element of treason would be swallowed up and lost.
In conclusion, I will say that I hope all the loyal States will soon erase from their statutes those disgraceful distinctions which many of them still make among their citizens on account of color. Of my own State I am truly proud. She is coming forth as a giant from the thunder clouds of war, and is free. She is educating her freedmen with reference to giving them the elective franchise at no distant day. I hope the other States will do likewise, and that we may all live to see our redeemed country glorious among the nations, as indeed—
“The land of the free and the home of the brave.” [Applause in the galleries.]
And then, on motion of Mr. ECKLEY, (at twenty minutes to ten o’clock p. m.,) the House adjourned.
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IN SENATE
February 8, 1866
APPORTIONMENT OF REPRESENTATION
The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 51) proposing to amend the Constitution of the United States, the pending question being on the amendment of Mr. HENDERSON to the amendment proposed by Mr. SUMNER.
Mr. LANE, of Indiana. Mr. President, I need not assure you that I approach the investigation of the grave subjects now before the Senate with constraint and embarrassment. No graver subjects have ever been submitted for your deliberation. I have not been able to make that thorough preparation which the importance of the subject demands, and which my profound respect for this high body under other circumstances would have prompted. I shall not be able to rise to the height of this great argument, yet I hope I feel and appreciate its dignity and importance. We approach the Constitution of the United States upon a proposed amendment, and I feel the full force of the injunction of the Hebrew prophet, “Take the sandals from off thy feet, for the ground on which thou treadest is holy ground.” I hope that on this occasion I shall be enabled to merge the partisan in the patriot. This Chamber is no fit arena for political gladiatorship. The great questions to which we now address ourselves invoke our most calm and careful consideration and deliberation. An Athenian orator was wont to invoke the heathen gods, before he addressed the people of Athens, to enable him to say nothing but what the people of Athens desired to hear. My most humble and fervent prayer upon this occasion is to the Christian’s God that I may say nothing which shall be unbecoming in a Senator of the United States to speak to his fellow-Senators and to the people of the United States.
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What, then, are the grave considerations to which our attention is invited? I shall speak, in its order, of the present proposed constitutional amendment and of each of the pending modifications and amendments now before the body as a series of measures which form the congressional plan of restoration and reconstruction. ….
It seems to me that counsel has been darkened on this subject in the statement of the question. A portion of the people and of the Senate believe that these States are yet in the Union; another portion believe that they are yet out of the Union; and the difficulty of dealing with that question is that both are right and both are wrong. Territorially these States are in the Union; the communities in these rebel States are in the Union; their citizens are citizens of these United States. ….
But we are told that the action of the executive department has from the beginning recognized them as States, and that Congress has by various acts recognized their existence as States. …. [snip]
What steps have heretofore been taken by the United States for the purpose of restoring these States to their constitutional relations to the General Government? Mr. Lincoln, in 1863, issued his proclamation for the organization of the States of Louisiana and Arkansas, stating that where loyal citizens to the number of one tenth of the loyal voters of the States, who had taken the amnesty oath prescribed by him, should get together and form a State government, so far as the Executive was concerned he should recognize such organizations as the States of Louisiana and Arkansas. … So the question was left when the present Chief Magistrate of the United States became President. He, by his proclamation, issued first, I believe, in the case of North Carolina, directed that provisional governments should be instituted in these rebel States. ….
Upon the subject of the President’s plan of restoration I have only this to say: that upon the death of Mr. Lincoln, and the suppression of the rebellion, he found these rebel States without the benefit of civil law, in a state of anarchy and confusion. The confederacy having been overthrown and no constitutional authority having taken its place, it was temporarily his duty to preserve the peace and protect the Union men in those States; and I have no fault to find with the manner in which he has sought to execute this high duty. …. [snip]
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Mr. LANE, of Indiana. But, Mr. President, it has been said that we are already precluded, that our hands are tied, that Congress has already recognized the existence of these States. Let us, if you please, look for a moment at that position. I have already shown you that Presidents Lincoln and Johnson in their proclamations recognized the fact that these States are dead, dead de jure, dead de facto, and that they have no rights under the Constitution. They have no rights under their present organization—otherwise President Johnson would not have appointed provisional governors for them; …. It is of the very essence of a republican form of government that it shall have the approval of those to be governed by it. [snip]
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Then there should be another constitutional amendment passed requiring and empowering its express terms the Congress of the United States to carry out and give effect to every guarantee of the Constitution. Heretofore the guarantee of a republican form of government has been a dead letter. I wish Congress, by a constitutional amendment, to furnish power to carry out every single guarantee of the Constitution, most especially that provision of the Constitution guarantying a republican form of government to every State. The framers of the Constitution, the founders of the Republic, themselves recognized the existence of the separate States with these unrepublican provisions in their constitutions; but we are required now to begin anew. …. Can any man in his sober senses, reared in the light of free institutions, in the middle of the nineteenth century; can any free American citizen, with one single impulse or aspiration of liberty warning his heart, say that that State government is republican in form which disfranchises a majority of citizens? It is not republican in form according to any American definition of republicanism. The freedmen are citizens of the United States; not citizens under the naturalization law, not citizens by virtue of any treaty, but citizens because they are born natives to the soil. That makes them citizens. To fortify this conclusion, let me read from Mr. Justice Story’s Commentaries on the Constitution:
“It has always been well understood among jurists in this country that the citizens of each State constitute the body-politic of each community, called ‘the people of the States;’ and that the citizens of each State in the Union are ipso facto citizens of the United States.”—3 Story, p. 565.
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Colored men have been for long years citizens in many of the States, and are ipso facto citizens of any State of the United States into which they may choose to go. Let be read another authority:
“The citizens of each State constituted the citizens of the United States when the Constitution was adopted. The rights which appertain to them as citizens of those respective Commonwealths accompanied them in the formation of the great compound Commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former; and he who was subsequently born a citizen of a State became at the moment of his birth a citizen of the United States.”—Rawle on the Constitution, p. 86.
Chancellor Kent is still more explicit on the present point, for he says distinctly”
“If a slave born in the United States be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States, and born free, he becomes thenceforward a citizen.” 2 Kent’s Commentaries, fourth edition, p. 257, note.
There is the direct declaration of Chancellor Kent that the moment the slaves are manumitted they become citizens of the United States. Before manumission they were held as slaves and treated as chattels; the moment they are manumitted they become citizens to all intents and purposes. I doubt not then, that, this construction of the Constitution is true. [snip]
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IN SENATE
February 12, 1866
The PRESIDENT pro tempore. In pursuance of previous arrangement, the Senate will now proceed to the Hall of the House of Representatives to join in the services which have been assigned for this day.
The Senate, headed by the President pro tempore and the Chief Clerk, and preceded by the Sergeant-at-Arms, proceeded to the Hall of the House of Representatives. At the conclusion of the services there, the Senate returned to its Chamber.
PRINTING OF MR. BANCROFT’S ADDRESS
Mr. FOOT. I suggest to Senators—I suppose there is no business to detain us—that in a few moments a concurrent resolution be received from the House of Representatives, and I trust Senators will remain until that resolution shall arrive; it will require our action in its concurrence. Meanwhile I move—the Secretary can put it in the proper form of a resolution—that ten thousand copies of Mr. Bancroft’s memorial address on the life and character of President Lincoln be printed for the use of the Senate. That resolution will go, under the rules, to the Committee on Printing. [snip]
The PRESIDENT pro tempore. Under the rule it is required that such a resolution should go to the Committee on Printing; but by the common consent of the Senate the Chair will put the question to the Senate.
The resolution was agreed to unanimously, as follows:
Resolved, That ten thousand copies of the memorial address on the life and character of Abraham Lincoln, delivered at the request of both Houses of Congress, by Hon. George Bancroft, be printed for the use of the Senate. [snip]
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MR. BANCROFT’S ADDRESS
The following message was received from the House of Representatives, by Mr. McPHERSON, its Clerk:
Mr. President, I am directed by the House of Representatives to communicate to the Senate a concurrent resolution presenting the thanks of Congress to Hon. George Bancroft for the appropriate memorial address delivered by him on the life and services of Abraham Lincoln, and requesting a copy for publication.
Mr. FOOT. I ask the unanimous consent of the Senate to consider that resolution at the present time, and move the concurrence of the Senate in it.
The resolution was considered by unanimous consent. It is as follows:
Resolved, (the Senate concurring,) That the thanks of Congress be presented to Hon. George Bancroft for the appropriate memorial address delivered by him on the life and services of Abraham Lincoln, late President of the United States, in the Representatives’ Hall, before both Houses of Congress and their invited guests, on the 12th day of February, 1866, and that he be requested to furnish a copy for publication.
Resolved, That the chairmen of the joint committee appointed to make the necessary arrangements to carry into effect the resolution of this Congress in relation to the memorial exercises of Abraham Lincoln, be requested to communicate to Mr. Bancroft the aforegoing resolution, receive his answer thereto, and present the same to both Houses of Congress.
The resolutions were concurred in.
Mr. FOOT. I move that the Senate do now adjourn.
The motion was agreed to; and the Senate adjourned.
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HOUSE OF REPRESENTATIVES
February 12, 1866
The House met at twelve o’clock m. Prayer by the Chaplain, Rev. C. B. BOYNTON, as follows:
Our Father who art in heaven, hallowed be Thy name. We thank Thee that once more through the night watches we were safely guarded by Thee, and that our eyes have been opened in peace through Thy love to behold the coming of this gladly solemn day. And now that we are to be called away from the usual public duties of the positions that are occupied here to hold converse awhile with death and with the memories of one whom we all honored and loved so much, we beseech Thee, O God, that in Thine infinite mercy Thou wilt grant us all grace to profit as we should by the occasion. We turn away from all relations of a public nature, to country and to time, to think of those more solemn ones that we bear to eternity and to God. May every one be induced by Thy Holy Spirit to consider to-day what the tendency of life is—whether through faith in Jesus Christ it will end in everlasting life. O Lord, prepare all for the proper observance of this solemn day. May every one interested, and all who may participate in this service, be guided of God, so that all being done decently and in order, this magnificent and solemn testimonial of the nation to the worth of our departed and murdered President may make a due impression on the national heart.
And when all is over here, when all the pomp and the pride and the pageantries of earth have passed away, may we all be received into Thy heavenly kingdom, through Jesus Christ our Lord. Amen.
CHRISTIAN COMMISSION
The SPEAKER. The Chair is requested by the president and officers of the Christian Commission to tender their thanks to this House for the use of this Hall on their four anniversary occasions.
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MEMORIAL OF ABRAHAM LINCOLN
To-day had been selected for services to commemorate the life and death of Abraham Lincoln, late President of the United States, in accordance with the following concurrent resolutions reported from the select joint committee appointed to consider and report by what token of respect and affection it may be proper for the Congress of the United States to express the deep sensibility of the nation to the event of the decease of their late President, Abraham Lincoln, and adopted unanimously by the two Houses of Congress:
Whereas the melancholy event of the violent and tragic death of Abraham Lincoln, late President of the United States, having occurred during the recess of Congress, and the two Houses sharing in the gen
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eral grief and desiring to manifest their sensibility upon the occasion of the public bereavement: Therefore,
Be it resolved by the Senate, (the House of Representatives concurring,) That the two Houses of Congress will assemble in the Hall of the House of Representatives, on Monday, the 12th day of February next, that being his anniversary birthday, at the hour of twelve meridian, and that, in the presence of the two Houses there assembled, an address upon the life and character of Abraham Lincoln, late President of the United States, be pronounced by Hon. Edwin M. Stanton[*], and that the President of the Senate pro tempore and the Speaker of the House of Representatives be requested to invite the President of the United States, the heads of the several Departments, the Judges of the Supreme Court, the representatives of foreign Governments near this Government, and such officers of the Army and Navy as have received the thanks of Congress who may then be at the seat of Government, to be present on the occasion.
And be it further resolved, That the President of the United States be requested to transmit a copy of these resolutions to Mrs. Lincoln, and to assure her of the profound sympathy of the two Houses of Congress for her deep personal affliction, and of their sincere condolence for the late national bereavement.
*Mr. Stanton having declined, the committee selected Hon. George Bancroft to pronounce the address.
The Speaker’s desk, and the desk of the Clerk of the House, which was to be occupied by the orator of the day, were draped in mourning.
The SPEAKER laid before the House the following letter from the Secretary of State:
DEPARTMENT OF STATE
Washington, February 12, 1866
SIR: I make my acknowledgment for the honor of the invitation which, in execution of a concurrent resolution of the Senate and House of Representatives, you have transmitted me to attend the exercises in honor of the memory of the late President of the United States, Abraham Lincoln.
It is with sincere regret that I find the state of my heath is such as to forbid my attendance upon those very interesting national ceremonies.
I have the honor to be, sir, your very obedient servant,
WILLIAM H. SEWARD.
HON. SCHUYLER COLFAX,
Speaker of the House of Representatives.
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At twelve o’clock and ten minutes p. m., the members of the Senate, following their President pro tempore and their Secretary, and preceded by their House of Representatives and occupied the seats reserved for them on the right and left of the main aisle.
The President pro tempore occupied the Speaker’s chair, the Speaker of the House sitting at his left. The Chaplains of the Senate and of the House were seated on the right and left of the Presiding Officers of their respective Houses.
Shortly afterward the President of the United States, with the members of his Cabinet, entered the Hall and occupied seats, the President in front of the Speaker’s table, and his Cabinet immediately on his right.
Immediately after the entrance of the President, the Chief Justice and the Associate Justices of the Supreme Court of the United States entered the Hall and occupied seats next to the President, on the right of the Speaker’s table.
Officers of the Army and Navy, who, by name, have received the thanks of Congress, next to the Supreme Court, on the right of the Speaker’s table;
Assistant Heads of Departments, Governors of States and Territories, and the Mayors of Washington and Georgetown, directly in the rear of the Heads of Departments;
The Chief Justice and Judges of the Court of Claims, and the Chief Justice and Associate Justices of the Supreme Court of the District of Columbia, directly in the rear of the Supreme Court;
The Heads of Bureaus in the Departments, directly in the rear of the officers of the Army and Navy;
Representatives on either side of the Hall, in the rear of those invited, four rows of seats on either side of the main aisles being reserved for Senators;
The Orator of the day, Hon. George Bancroft, at the table of the Clerk of the House;
The Chairmen of the Joint Committee of arrangements, at the right and left of the orator, and next to them the Secretary of the Senate and the Clerk of the House;
The other officers of the Senate and of the House, on the floor at the right and the left of the Speaker’s platform.
When order was restored, at twelve o’clock and twenty minutes p. m., the Marine band, stationed in the vestibule, played appropriate dirges.
At twelve o’clock and thirty minutes the two Houses were called to order by the President pro tempore of the Senate.
Rev. Dr. BOYNTON, Chaplain of the House of Representatives, offered the following prayer:
Almighty God, Thou who dost inhabit eternity, while we appear but for a little moment and then vanish away, we adore Thy eternal name. Almighty God, wonderful in power, full of majesty art Thou, and before Thee all earthly distinctions vanish into nothing. We come into Thy presence to-day, O God, simply as men, fallen men, condemned alike by Thy law, and rightfully cut off through sin from all communion with God. But through Thy infinite goodness a new and living way of access has been opened through Thy Son, consecrated by His blood. We present ourselves in that better name, and plead Thy promises of pardon and acceptance, through faith in Him.
We are reminded, O God, by the imposing solemnities of this scene, of that hour when the nation heard, and shuddered at the hearing of it, that Abraham Lincoln was dead—was murdered. And we bow afresh submissively unto Him who ordered for the nation that solemn hour; we bow ourselves unto the blow that fell on this whole people in the very hour of their triumph and hushed all their shouts of victory to the voiceless silence of woe. O God, we feel that the shadow of that death has not passed away from the national heart, as this solemn gathering testifies full well. Yet we know that the gloom that falls on our hearts from this drapery of woe is gilded by the glory of a great triumph, and by the light of the memory of the illustrious dead. Still, O God, may we all of us learn the solemn lesson which Thou dost intend to convey unto us. “Be ye also ready, for ye know not the day nor the hour when the Son of Man cometh.” “The Lord gave, and the Lord hath taken away, blessed be the name of the Lord.”
We worship Thee as the God of our fathers. Thou didst mark out a path for them over the trackless seas, and didst bring them to these shores, bearing with them the seeds of a great dominion. We thank Thee that Thou didst so protect it and cherish it that it spread itself rapidly outward and over the breadth of a continent, hearing with it Christian freedom, churches, schools, intelligence, and all the blessings of a Christian civilization. We thank Thee, O God, that the power of Thy love in its unfolding was a resistless one, because backed by Thy eternal counsels and by Thy Almighty power. And because the might of God was in it we have seen it in its progress sweeping all obstacles away, crushing great systems and great parties, reforming public opinion, and advancing to the control of a continent.
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And we bless Thee, O God, that in every hour of its peril heretofore Thou has raised up for it heroic defenders. We thank Thee, O defender of Israel, that when treason was hatching its plot and massing its armies, then, O God of our fathers, Thou who didst of old bring David from the sheepfolds didst also bring one from the humble cabin of the pioneer to become the chieftain of this great people in their hour of danger, to shield them from disaster, and lead them to final triumph. We thank Thee that Thou didst give us an honest man; a man simple-hearted, loving as a child, and yet of rugged strength, who wanted only culture and discipline; and that discipline Thou didst grant unto him through stern public trial, through bitter domestic sorrow, through the wonderful leadings of Thy providence, until the mere politician was overshadowed by the nobler growth of his moral and spiritual nature; until he came, as we believe, into communion with Christ; until he saw that our cause would prosper only by justice; and the, inspired by Thee, he uttered those words of power that changed three million slaves into men—the one act that has made his name illustrious forever.
We thank Thee, O God, that he did not die until he was assured of victory, until he had received all honor that earth could bestow; and then we believe Thou didst give him a martyr’s crown. We thank Thee, O God, that we have this hope for our illustrious dead. We have great reason to bless Thee that the enduring strength of our institutions was such that they suffered no perceptible shock, even by the death of such a man, and at such a time.
And we thank Thee that Thou didst provide for us in that hour one who was strong enough to receive, and to bear steadily, the weight of Government. And we beseech Thee, O God, to give him strength and wisdom, so that he may work out this great problem to its solemn solution, and by universal freedom and equal right and equal law bind this whole people into one inseparable nation.
We thank Thee, O God, that the representatives of the nation have seen fit to come together to-day, and sit for awhile in the shadow of Abraham Lincoln’s grave. O God, may they reconsecrate themselves to the principles and to the work which have caused him to be remembered and honored thus. And then, when that great work is accomplished, a disinthralled and regenerated land will be the fitting monument both for him and for them.
We beseech Thee, O God, to remember with a special mercy the President of the United States, and to grant him the wisdom and strength which he needs for the solemn responsibilities of his position. God grant that he may so live that a nation’s sorrow shall be expressed when God shall call him, as he will all of us, home.
We pray Thee to bless all his Cabinet advisers. Bless, we beseech Thee, the legislators of the land. Remember the officers of the Army and of the Navy, illustrious as Thou hast made them, through whose courage and skill the great triumph was won. Remember our soldiers and sailors. Bless the whole people. Bless those who are struggling yet onward to a perfect manhood.
Remember those eminent men, the honored representatives of foreign Powers, who have come here to testify with us their respect for one who was honored abroad as well as at home. Remember their sovereigns, and the Governments that they represent. We thank Thee, O God, that they and we are all at peace. May that peace continue until the nations shall learn war no more.
And remember, O God, that bereaved woman, sitting in the desolation of her widowhood to-day. And bless the family in its sore bereavement; may they all be comforted by the thought how much the husband and the father is loved and honored still.
Remember, O God, the distinguished orator on this occasion. We pray Thee that Thou will give him to utter words of power and truth to-day, that shall make a deep and due impression on the heart and the mind of the nation.
May we, O God, all of us so live that when we have finished our course here, it may be with exceeding joy, through Jesus Christ, our Lord; to whom, with the Father, and the Holy Spirit, we ascribe all praise and honor, now and forever. Amen.
The PRESIDENT pro tempore of the Senate, in introducing the orator of the day, said:
No ordinary occasion could have convened this august assemblage. For four weary years the storm of war, of civil war, raged fiercely over our country. The blood of the best and bravest of her sons was freely shed to preserve her name and place among the nations of the earth. In April last the dark clouds which had so long hung heavily and gloomily over our heads were all dispersed, and the light of peace, more welcome even than the vernal sunshine, gladdened the eyes and the hearts of our people. Shouts of joy and songs of triumph echoed through the
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land. The hearts of the devout poured themselves in orisons [prayers] and thanksgivings to the God of battles and of nations that the most wicked and most formidable rebellion ever known in human history had been effectually crushed and our country saved.
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In the midst of all this abounding joy, suddenly and swiftly as the lighting’s flash, came the fearful tidings that the Chief Magistrate of the Republic, our President, loved and honored as few men ever were, so honest, so faithful, so true to his duty and his country; had been folly murdered, had fallen by the bullet of an assassin. All hearts were stricken with horror. The transition from extreme joy to profound sorrow was never more sudden and universal. Had it been possible for a stranger, ignorant of the truth, to look over our land, he would have supposed that there had come upon us some visitation of the Almighty not less dreadful than that which once fell on ancient Egypt on that fearful night when there was not a house where there was not one dead. The nation wept for him.
After being gazed upon by myriads of loving eyes, under the dome of this magnificent Capitol, the remains of our President were borne in solemn procession through our cities, towns, and villages, all draped in the habiliments of sorrow, the symbols and tokens of profound and heartfelt grief, to their final resting place in the capital of his own State. There he sleeps, peacefully embalmed in the tears of countrymen.
The Senate and House of Representatives of the United States have deemed it proper to commemorate this tragic event by appropriate services. This day, the birthday of him whom we mourn, has properly been selected. An eminent citizen, distinguished by his labors and services in high and responsible public positions at home and abroad—whose pen has instructed the present age in the history of his country, and done much to transmit the fame and renown of that country to future ages—Hon. George Bancroft—will now deliver a discourse.
Mr. BANCROFT (who, on coming forward, was greeted with warm demonstrations of applause) then proceeded to deliver the following
ORATION
Senators, Representatives, of America:
That God rules in the affairs of men is as certain as any truth of physical science. On the great moving Power which is from the beginning hangs the world of the senses and the world of thought and action. Eternal wisdom marshals the great procession of the nations, working in patient continuity through the ages, never halting and never abrupt, encompassing all events in its oversight, and ever effecting its will, though mortals may slumber in apathy or oppose with madness. Kings are lifted up or thrown down, nations come and go, republics flourish and wither, dynasties pass away like a tale that is told; but nothing is by chance, though men and their ignorance of causes may think so. The deeds of time are governed, as well as judged, by the decrees of eternity. The caprice of fleeting existences bends to the immovable Omnipotence, which plants its foot on all the centuries and has neither change of purpose nor repose. Sometimes, like a messenger through the thick darkness of night, it steps along mysterious ways; but when the hour strikes for a people, or for mankind, to pass into a new form of being, unseen hands draw the bolts from the gates of futurity; and all-subduing influence prepares the minds of men for the coming revolution; those who plan resistance find themselves in conflict with the will of Providence, rather than with human devices; and all hearts and all understandings, most of all the opinions and influences of the unwilling, are wonderfully attracted and compelled to bear forward the change which becomes more an obedience to the law of universal nature than submission to the arbitrament of man.
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GROWTH OF THE AMERICAN REPUBLIC
In the fullness of time a republic rose up in the wilderness of America. Thousands of years had passed away before this child of the ages could be born. From whatever there was of good in the systems of former centuries she drew her nourishment; the wrecks of the past were her warnings. With the deepest sentiment of faith fixed in her inmost nature, she disinthralled religion from bondage to temporal power, that her worship might be worship only in spirit and in truth. The wisdom which had passed from India through Greece, with what Greece had added of her own; the jurisprudence of Rome; the medieval municipalities; the Teutonic method of representation; the political experience of England; the benignant wisdom of the expositors of the law of nature and of nations in France and Holland, all shed on her their selectest influence. She washed the gold of political wisdom from the sands wherever it was found; she cleft it from the rocks; she gleaned it among ruins. Out of all the discoveries of statesmen and sages, out of all the experience of past human life, she compiled a perennial political philosophy, the primordial principles of national ethics. The wise men of Europe sought the best Government in a mixture of monarchy, aristocracy, and democracy; and America went behind these names to extract from them the vital elements of social forms, and blend them harmoniously in the free commonwealth, which comes nearest to the illustration of the natural equality of all men. She intrusted the guardianship of established rights to law; the movements of reform to the spirit of the people, and draw her force from the happy reconciliation of both.
TERRITORIAL EXTENT OF THE REPUBLIC
Republics had heretofore been limited to small cantons or cities and their dependencies; America, doing that of which the like had not before been known upon the earth, or believed by kings and statesmen to be possible, extended her republic across a continent. Under her auspices the vine of liberty took deep root and filled the land; the hills were covered with its shadow; its boughs were like the goodly cedars, and reached unto both oceans. The fame of this only daughter of freedom went out into all the lands of the earth; from her the human race drew hope.
PROPHECIES ON THE CONSEQUENCES OF SLAVERY
Neither hereditary monarchy nor hereditary aristocracy planted itself on our soil; the only hereditary condition that fastened itself upon us was servitude. Nature works in sincerity, and is ever true to its law. The bee hives honey, the viper distills poison; the vine stores its juices, and so do the poppy and upas. In like manner, every thought and every action ripens its seed, each in its kind. In the individual man, and still more in a nation, a just idea gives life and progress and glory; a false conception portends disaster, shame, and death. A hundred and twenty years ago, a West Hersey Quaker wrote; “This trade of importing slaves is dark gloominess hanging over the land; the consequences will be grievous to posterity.” At the North the growth of slavery was arrested by natural causes; in the region nearest the tropics it throve rankly, and worked itself into the organism of the rising States. Virginia stood between the two; with soil and climate, and resources demanding free labor, yet capable of the profitable employment of the slave. She was the land of great statesmen; and they saw the danger of her being whelmed under the rising flood in time to struggle against the delusions of avarice and pride. Ninety-four years ago the Legislature of Virginia addressed the British king, saying that the trade in slaves was “of great inhumanity,” was opposed to the “security and happiness” of their constituents, “would in time have the most destructive influence,” and “endanger their very existence.” And the king answered them, that “upon pain of his highest displeasure, the importation of slaves should not be in any respect obstructed.” “Pharisaical Britain,” wrote Franklin in behalf of Virginia, “to pride thyself in setting free a single slave that happened to land on thy coasts, while thy laws continue a traffic whereby so many hundreds of thousands are dragged into a slavery that is entailed on their posterity.” “A serious view of this subject,” said Patrick Henry in 1773, “gives a gloomy prospect to future times.” In the same year George Mason wrote to the Legislature of Virginia, “The laws of impartial Providence may avenge our injustice upon our posterity.” Conforming his conduct to his convictions, in Virginia, and in the Continental Congress, Jefferson, with the approval of Edmund Pendleton, branded the slave trade as piracy; and he fixed in the Declaration of Independence as the corner-stone of America, “All men are created equal, with an unalienable right to liberty.” On the first organization of temporary governments for the continental domain, Jefferson, but for the default of New Jersey, would, in 1784, have consecrated every part of the territory to freedom. In the formation of the national Constitution Virginia, opposed by a part of New England, vainly struggled to abolish the slave trade at once and forever; and when the Ordinance of 1787 was introduced by Nathan Dane, without the clause prohibiting slavery, it was through the favorable disposition of Virginia and the South that the clause of Jefferson was restored, and the whole northwestern territory—all the territory that then belonged to the nation—was reserved for the labor of freemen.
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DESPAIR OF THE MEN OF THE REVOLUTION
The hope prevailed in Virginia that the abolition of the slave trade would bring with it the gradual abolition of slavery; but the expectation was doomed to disappointment. In supporting incipient measures for emancipation, Jefferson encountered difficulties greater than he could overcome; and after vain wrestlings, the words that broke from him, “I tremble for my country when I reflect that God is just, that His justice cannot sleep forever,” were words of despair. It was the desire of Washington’s heart that Virginia should remove slavery by a public act; and as the prospects of a general emancipation grew more and more dim he, in utter hopelessness of the action of the State, did all that he could by bequeathing freedom to his own slaves. Good and true men had, from the days of 1776, proposed to colonize the negro in the home of his ancestors. But the idea of colonization was thought to increase the difficulty of emancipation; and in spite of strong support, while it accomplished much good for Africa, it proved impracticable as a remedy at home. Madison, who in early life disliked slavery so much that he wished “to depend as little as possible on the labor of slaves;” Madison, who held that where slavery exists “the republican theory becomes fallacious;” Madison, who in the last years of his life would not consent to the annexation of Texas, lest his countrymen should fill it with slaves; Madison, who said “slavery is the greatest evil under which the nation labors, a portentous evil—and evil, moral, political, and economical—a blot on our free country,” went mournfully into old age with the cheerless words, “No satisfactory plan has yet been devised for taking out the stain.”
NEW VIEWS OF SLAVERY
The men of the Revolution passed away. A new generation sprang up, impatient that an institution to which they clung should be condemned as inhuman, unwise, and unjust; in the throes of discontent at the self-reproach of their fathers, and blinded by the luster of wealth to be acquired by the culture of a new staple, they devised the theory that slavery, which they would not abolish, was not evil, but good. They turned on the friends of colonization, and confidently demanded, “Why take black men from a civilized and Christian country, where their labor is a source of immense gain, and a power to country the markets of the world, and send them to a land of ignorance, idolatry, and indolence, which was the home of their forefathers, but not theirs? Slavery is a blessing. Were they not in their ancestral land naked, scarcely lifted above brutes, ignorant of the
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course of the sun, controlled by nature? And in their new abode have they not been taught to know the difference of the seasons, to plow and plant and reap, to drive oxen, to tame the horse, to exchange their scanty dialect for the richest of all the languages among men, and the stupid adoration of follies for the purest religion? And since slavery is good for the blacks, it is good for their masters, bringing opulence and the opportunity of educating a race. The slavery of the black is good in itself; he shall serve the white man forever.” And nature, which better understood the equality of fleeting interest and passion, laughed, as it caught the echo, “man” and “forever!”
SLAVERY AT HOME
A regular development of pretensions followed the new declaration with logical consistency. Under the old declaration every one of the States had retained, each for itself, the right of manumitting all slaves by an ordinary act of legislation; now, the power of the people over servitude through their Legislatures was curtailed, and the privileged class was swift in imposing legal and constitutional obstructions on the people themselves. The power of emancipation was narrowed or taken away. The slave might not be disquieted by education. There remained an unconfessed consciousness that the system of bondage was wrong, and a restless memory that it was at variance with the true American tradition; its safety was therefore to be secured by political organization. The generation that made the Constitution took care for the predominance of freedom in Congress, by the Ordinance of Jefferson; the new school aspired to secure for slavery an equality of votes in the Senate; and while it hinted at an organic act that should concede to the collective South a veto power on national legislation, it assumed that each State separately had the right to revise and nullify laws of the United States, according to the discretion of its judgment.
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SLAVERY AND FOREIGN RELATIONS
The new theory hung as a bias on the foreign relations of the country; there could be no recognition of Hayti, nor even of the American colony of Liberia; and the world was given to understand that the establishment of free labor in Cuba would be a reason for wresting that island from Spain. Territories were annexed—Louisiana, Florida, Texas, half of Mexico; slavery must have its share in them all, and it accepted for a time a dividing line between the unquestioned domain of free labor and that in which involuntary labor was to be tolerated. A few years passed away, and the new school, strong and arrogant, demanded and received an apology for applying the Jefferson proviso to Oregon.
SQUATTER SOVEREIGNTY
The application of that proviso was interrupted for three Administrations; but justice moved steadily onward. In the news that the men of California had chosen freedom, Calhoun heard the knell of parting slavery; and on his death-bed he counseled secession. Washington and Jefferson and Madison had died despairing of the abolition of slavery: Calhoun died in despair at the growth of freedom. His system rushed irresistibly to its natural development. The death-struggle for California was followed by a short truce; but the new school of politicians who said that slavery was not evil, but good, soon sought to recover the ground they had lost, and confident of securing Kansas, they demanded that the established line in the Territories between freedom and slavery should be blotted out. The country, believing in the strength and enterprise and expansive energy of freedom, made answer, though reluctantly, “Be it so; let there be no strife between brethren; let freedom and slavery compete for the Territories on equal terms, in a fair field under an impartial administration;” and on this theory, if on any, the contest might have been left to the decision of time.
DRED SCOTT DECISION
The South started back in appallment from its victory; for it knew that a fair competition foreboded its defeat. But where could it now find an ally to save it from its own mistake? What I have next to say is spoken with no emotion but regret. Our meeting to-day is, as it were at the grave, in the presence of Eternity, and the truth must be uttered in soberness and sincerity. In a great republic, as was observed more than two thousand years ago, any attempt to overturn the State owes its strength to aid from some branch of the Government. The Chief Justice of the United States, without any necessity or occasion, volunteered to come to the rescue of the theory of slavery. And from his court there lay no appeal but to the bar of humanity and history. Against the Constitution, against the memory of the nation, against a previous decision, against a series of enactments, he decided that the slave is property, that slave property is entitled to no less protection than any other property, that the Constitution upholds it in every Territory against any act of a local Legislature, and even against Congress itself; or, as the President of the time tersely promulgated the saying, “Kansas is as much a slave State as South Carolina or Georgia; slavery, by virtue of the Constitution, exists in every Territory,” The municipal character of slavery being thus taken away, and slave property decreed to be “sacred,” the authority of the courts was invoked to introduce it by the comity of law into States where slavery had been abolished; and in one of the courts of the United States a judge pronounced the African slave trade legitimate, and numerous and powerful advocates demanded its restoration.
TANEY AND SLAVE RACES
Moreover, the Chief Justice, in his elaborate opinion, announced what had never been heard from any magistrate of Greece or Rome—what was unknown to civil law and canon law and feudal law and common law and constitutional law; unknown to Jay, to Rutledge, Ellsworth, and Marshall—that there are “slave races.” The spirit of evil is intensely logical. Having the authority of this decision, five States swiftly followed the earlier example of a sixth, and opened the way for reducing the free negro to bondage; the migrating free negro became a slave if he but entered the jurisdiction of a seventh; and an eighth, from its extent and soil and mineral resources, destined to incalculable greatness, closed its eyes on its coming prosperity, and enacted—as by Taney’s decision it had the right to do—that every free black man who would live within its limits must accept the condition of slavery for himself and his posterity.
SECESSION RESOLVED ON
Only one step more remained to be taken. Jefferson and the leading statesmen of his day held fast to the idea that the enslavement of the African was socially, morally, and politically wrong. The new school was founded exactly upon the opposite idea; and they resolved first to distract the Democratic party, for which the Supreme Court had now furnished the means, and then to establish a new government, with negro slavery for its corner-stone, as socially, morally, and politically right.
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THE ELECTION
As the presidential election drew on, one of the old traditional parties did not make its appearance; the other reeled as it sought to preserve its old position; and the candidate who most nearly represented its best opinion, driven by patriotic zeal, roamed the country from end to end to speak for union, eager at least to confront its enemies, yet not having hope that it would find its deliverance through him. The storm rose to a whirlwind; who should allay its wrath? The most experienced statesmen of the country had failed; there was no hope from those who were great after the flesh; could relief come from one whose wisdom was like the wisdom of little children?
EARLY LIFE OF ABRAHAM LINCOLN
The choice of America fell on a man born west of the Alleghanies, in the cabin of poor people of Hardin county, Kentucky—Abraham Lincoln.
His mother could read but not write; his father could do neither; but his parents sent him, with an old spelling-book, to school, and he learned in his childhood to do both.
When eight years old he floated down the Ohio with his father on a raft which bore the family and all their possessions to the shore of Indiana; and, child as he was, he gave help as they toiled through dense forests to the interior of Spencer county. There, in the land of free labor, he grew up in a log cabin, with the solemn solitude for his teacher in his meditative hours. Of Asiatic literature he knew only the Bible; of Greek, Latin, and medieval, no more than the translation of Aesop’s Fables; of English, John Bunyan’s Pilgrim’s Progress. The traditions of George Fox and William Penn passed to him dimly along the lines of two centuries through his ancestors, who were Quakers.
HIS EDUCATION
Otherwise is education was altogether American. The Declaration of Independence was his compendium of political wisdom, the Life of Washington his constant study, and something of Jefferson and Madison reached him through Henry Clay, whom he honored from boyhood. For the rest, from day to day, he lived the life of the American people; walked in its light; reasoned with its reason; thought with its power of thought; felt the beatings of its mighty heart; and so was in every way a child of nature—a child of the West—a child of America.
HIS PROGRESS IN LIFE
At nineteen, feeling impulses of ambition to get on in the world, he engaged himself to go down the Mississippi in a flat-boat, receiving ten dollars a month for his wages, and afterward he made the trip once more. At twenty-one he drove his father’s cattle as the family migrated to Illinois, and split rails to fence in the new homestead in the wild. At twenty-three he was a captain of volunteers in the Black Hawk war. He kept a shop; he learned something of surveying; but of English literature he added to Bunyan nothing but Shakespeare’s plays. At twenty-five he was elected to the Legislature of Illinois, where he served eight years. At twenty-seven he was admitted to the bar. In 1837 he chose his home at Springfield, the beautiful center of the richest land in the State. In 1847 he was a member of the national Congress, where he voted about forty times in favor of the principle of the Jefferson proviso. In 1854 he gave his influence to elect from Illinois to the American Senate a Democrat who would certainly do justice to Kansas. In 1858, as the rival of Douglas, he went before the people of the mighty Prairie State saying,
“This Union cannot permanently endure, half slave and half free; the Union will not be dissolved, but the house will cease to be divided;” and now, in 1861, with no experience whatever as an executive officer, while States were madly flying from their orbit, and wise men knew not where to find counsel, this descendant of Quakers, this pupil of Bunyan, this child of the great West, was elected President of America.
He measured the difficulty of the duty that devolved on him, and was resolved to fulfill it.
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HE GOES TO WASHINGTON
As on the 11th of February, 1861, he left Springfield, which for a quarter of a century had been his happy home to the crowd of his friends and neighbors whom he was never more to meet, he spoke a solemn farewell:
“I know not how soon I shall see you again. A duty has devolved upon me greater than that which has devolved upon any other man since Washington. He never would have succeeded except for the aid of divine Providence, upon which he at all times relied. On the same Almighty Being I place my reliance. Pray that I may receive that divine assistance, without which I cannot succeed, but with which success is certain.”
To the men of Indiana he said, “I am but an accidental, temporary instrument; it is
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your business to rise up and preserve the Union and liberty.”
At the capital of Ohio he said,
“Without a name, without a reason why I should have a name, there has fallen upon me a task such as did not rest even upon the Father of his Country.”
At various places in New York, especially at Albany before the Legislature, which tendered him the united support of the great Empire State, he said,
“While I hold myself the humblest of all the individuals who have ever been elevated to the Presidency, I have a more difficult task to perform than any of them. I bring a true heart to the work. I must rely upon the people of the whole country for support; and with their sustaining aid, even I humble as I am, cannot fail to carry the ship of state safely through the storm.”
To the Assembly of New Jersey, at Trenton, he explained,
“I shall take the ground I deem most just to the North, the East, the West, the South, and the whole country, in good temper, certainly with no malice to any section. I am devoted to peace, but it may be necessary to put the foot down firmly.”
In the old Independence Hall of Philadelphia he said,
“I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence, which gave liberty, not alone to the people of this country, but to the world in all future time. If the country cannot be saved without giving up that principle, I would rather be assassinated on the spot than surrender it. I have said nothing but what I am willing to live and die by.”
IN WHAT STATE HE FOUND THE COUNTRY
Traveling in the dead of night to escape assassination, Lincoln arrived at Washington nine days before his inauguration. The outgoing President, at the opening of the session of Congress had still kept as the majority of his advisers men engaged in treason; had declared that in case of even an “imaginary” apprehension of danger from notions of freedom among the slaves, “disunion would become inevitable.” Lincoln and others had questioned the opinion of Taney; such impugning he ascribed to the “factious temper of the times.” The favorite doctrine of the majority of the Democratic party on the power of a Territorial Legislature over slavery he condemned as an attack on “the sacred rights of property.” The State Legislatures, he insisted, must repeal what he called “their unconstitutional and obnoxious enactment,” and which, if such, were “null and void,” or “it would be impossible for any human power to save the Union.” Nay, if these unimportant acts were not repealed, “the injured States would be justified in revolutionary resistance to the Government of the Union.” He maintained that no State might secede at its sovereign will and pleasure; that the Union was meant for perpetuity; and that Congress might attempt to preserve it, but only by conciliation; that “the sword was not placed in their hands to preserve it by force;” that “the last desperate remedy of a despairing people” would be “an explanatory amendment recognizing the decision of the Supreme Court of the United States.” The American Union he calls “a confederacy” of States, and he thought it a duty to make the appeal for the amendment “before any of these States should separate themselves from the Union.” The views of the Lieutenant General, containing some patriotic advice, “conceded the right of secession,” pronounced a quadruple rupture of the Union “a smaller civil than the reuniting of the fragments by the sword,” and “eschewed the idea of invading a seceded State.” After changes in the Cabinet, the President informed Congress that “matters were still worse;” that “the South suffered serious grievances,” which should be redressed “in peace.”
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The day after this message the flag of the Union was fired upon from Fort Morris, and the insult was not revenged or noticed. Senators in Congress telegraphed to their constituents to seize the national forts, and they were not arrested. The finances of the country were grievously embarrassed. Its little army was not within reach—the part of it in Texas, with all its stores, was made over by its commander to the seceding insurgents. One State after another voted in convention to secede. A peace congress, so called, met at the request of Virginia to concert the terms of a capitulation for the continuance of the Union. Congress in both branches sought to devise conciliatory expedients; the Territories of the country were organized in a manner not to conflict with any pretensions of the South, or any decision of the Supreme Court; and, nevertheless, the seceding States formed at Montgomery a provisional government, and pursued their relentless purpose with such success that the Lieutenant General feared the city of Washington might find itself “included in a foreign country,” and proposed, among the options for the consideration of Lincoln, to bid the seceded States “depart in peace.” The great Republic seemed to have its emblem in the vast unfinished Capitol, at that moment surrounded by masses of stone and prostrate columns never yet lifted into their places; seemingly the monument of high but delusive aspirations, the confused wreck of inchoate magnificence, sadder than any ruin of Egyptian Thebes, or Athens.
HIS INAUGURATION
The 4th of March came. With instinctive wisdom, the new President, speaking to the people on taking the oath of office, put aside every question that divided the country, and gained a right to universal support by planting himself on the single idea of the Union. That Union he declared to be unbroken and perpetual; and he announced his determination to fulfill “the simple duty of taking care that the laws be faithfully executed in all the States.” Seven days later, the convention of confederate States unanimously adopted a constitution of their own; and the new government was authoritatively announced to be founded on the idea that slavery is the natural and normal condition of the negro race. The issue was made up whether the great Republic was to maintain its providential place in the history of mankind, or a rebellion founded on negro slavery gain a recognition of its principle throughout the civilized world. To the disaffected Lincoln had said, “You can have no conflict without being yourselves the aggressors.” To fire the passions of the southern portion of the people, the confederate government chose to become aggressors; and on the morning of the 12th of April began the bombardment of Fort Sumter, and compelled its evacuation.
UPRISING OF THE PEOPLE
It is the glory of the late President that he had perfect faith in the perpetuity of the Union. Supported in advance by Douglas, who spoke as with the voice of a million, he instantly called a meeting of Congress, and summoned the people to come up and repossess the forts, places, and property which had been seized from the Union. The men of the north were trained in schools; industrious and frugal; many of them delicately bred, their minds teeming with ideas and fertile in plans of enterprise; given to the culture of the arts; eager in the pursuit of wealth, yet employing wealth less for ostentation than for developing the resources of their country; seeking happiness in the calm of domestic life; and such lovers of peace that for generations they had been reputed unwarlike. Now, at the cry of their country in its distress, they rose up with unappeasable patriotism; not hirelings—the purest and of the best blood in the land; sons of a pious ancestry, with a clear perception of duty, unclouded faith, and fixed resolve to succeed, they thronged round the President to support the wronged, the beautiful flag of the nation. The halls of theological seminaries sent forth their young men, whose lips were touched with eloquence whose hearts kindled with devotion to serve in the ranks, and make their way to command only as they learned the art of war. Striplings in the colleges, as well the most gentle and the most studious; those of sweetest temper and loveliest character and brightest genius passed from their classes to the camp. The lumbermen from the forests; the mechanics from their benches, where they had been trained by the exercise of political rights to share the life and hope of the Republic, to feel their responsibility to their forefathers, their posterity, and mankind, went forth resolved that their dignity as a constituent part of this Republic should not be impaired. Farmers and sons of farmers left the land but half plowed, the grain but half planted, and, taking up the musket, learned to face without fear the presence of peril and the coming of death in the shocks of war, while their hearts were still attracted to their herds and fields and all the tender affections of home. Whatever there was of truth and faith and public love in the common heart broke out with one expression. The mighty winds blew from every quarter to fan the flame of the sacred and unquenchable fire.
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THE WAR A WORLD-WIDE WAR
For a time the war was thought to be confined to our own domestic affairs; but it was soon seen that it involved the destinies of mankind; its principles and causes shook the politics of Europe to the center, and from Lisbon to Peking divided the Governments of the world.
GREAT BRITAIN
There was a kingdom whose people had in an eminent degree attained to freedom of industry and the security of person and property. Its middle class rose to greatness. Out of that class sprung the noblest poets and philosophers, whose words built up the intellect of its people; skillful navigators, to find out the many paths of the oceans; discoverers in natural science, whose inventions guided its industry to wealth, till it equaled any nation of the world in letters, and excelled all in trade and commerce. But its Government was become a Government of land, and not of men; every blade of grass was represented, but only a small minority of the people. In the transition from the feudal forms, the heads of the social organization freed themselves from the military services which were the conditions of their tenure, and, throwing the burden on the industrial classes, kept all the soil to themselves. Vast estates that had been managed by monasteries as endowments for religion and charity were impropriated to swell the wealth of courtiers and favorites; and the commons, where the poor man once had his right of pasture, were taken away, and, under forms of law, inclosed distributively within the domains of the adjacent landholders. Although no law forbade an inhabitant from purchasing land, the costliness of the transfer constituted a prohibition; so that it was the rule of that country that the plow should not be in the hands of its owner. The church rested on a contradiction, claiming to be an embodiment of absolute truth, and yet was a creature of the statute-book.
HER SENTIMENTS
The progress of time increased the terrible contrast between wealth and poverty; in their years of strength, the laboring people, cut off from all share in governing the State, derived a scanty support from the severest toil, and had no hope for old age but in public charity or death. A grasping ambition had dotted the world with military posts, kept watch over our borders on the northeast, as the Bermudas, in the West Indies, held the gates of the Pacific, of the Southern and of the Indian ocean, hovered on our northwest at Vancouver, appropriated the whole of the newest continent, and the entrances to the old Mediterranean and Red sea; and garrisoned forts all the way from Madras to China. That aristocracy had gazed with terror on the growth of a commonwealth where freeholds existed by the million, and religion was not in bondage to the State; and now they could not repress their joy at its perils. They had not one word of sympathy for the kind-hearted poor man’s son whom America had chosen for her chief; they jeered at his large hands and long feet and ungainly statute; and the British Secretary of State for Foreign Affairs made haste to send word through the palaces of Europe that the great Republic was in its agony, that the Republic was no more, that a head-stone was all that remained
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due by the law of nations to “the late Union.” But it is written, “Let the dead bury their dead;” they may not bury the living. Let the dead bury their dead; let a bill of reform remove the worn-out government of a class, and infuse new life into the British constitution by confiding rightful power to the people. [Applause.]
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HER POLICY
But while the vitality of America is indestructible, the British Government hurried to do what never before had been done by Christian Powers, what was in direct conflict with its own exposition of public law in the time of our struggle for independence. Though the insurgent States had not a ship in an open harbor, it invested them with all the rights of a belligerent, even on the ocean; and this, too, when the rebellion was not only directed against the gentlest and most beneficent Government on earth, without a shadow of justifiable cause, but against human nature of justifiable cause, but against human nature itself for the perpetual enslavement of a race. And the effect of this recognition was that acts in themselves piratical found shelter in British courts of law. The resources of British capitalists, their workshops, their armories, their private arsenals, their shipyards, were in league with the insurgents, and every British harbor in the wide world became a safe port for British ships, manned by British sailors, and armed with British guns, to prey on our peaceful commerce; even on our ships coming from British ports, freighted with British products, or that had carried gifts of grain to the English poor. The Prime Minister in the House of Commons, sustained by cheers, scoffed at the thought that their laws could be amended at our request so as to preserve real neutrality; and to remonstrances now owned to have been just, their Secretary answered that they could not change their laws ad infinitum.
RELATIONS WITH ENGLAND
The people of America then wished, as they always have wished, as they still wish, friendly relations with England; and no man in England or America can desire it more strongly than I. This country has always yearned for good relations with England. Thrice only in all its history has that yearning been fairly met: in the days of Hampden and Cromwell, again in the first ministry of the elder Pitt, and once again in the ministry of Shelburne. Not that there have not at all times been just men among the peers of Britain—like Halifax, in the days of James II, or a Granville, an Argyll, or a Houghton in ours, [great applause]; and we cannot be indifferent to a country that produces statesmen like Cobden and Bright, [tremendous applause that lasted several minutes]; but the best bower anchor of peace was the working class of England, [renewed applause that could not be repressed,] who suffered most from our civil war, but who, while they broke their diminished bread in sorrow, always encouraged us to persevere. [Great and long-continued applause.]
FRANCE AND THE MONROE DOCTRINE
The act of recognizing the rebel belligerents was concerted with France; France, so beloved in America, on which she had conferred the greatest benefits that one people ever conferred on another; France, which stands foremost on the continent of Europe for the solidity of her culture, as well as for the bravery and generous impulses of her sons; France, which for centuries had been moving steadily in her own way toward intellectual and political freedom. The policy regarding further colonization of America by European Powers, known commonly as the doctrine of Monroe, had its origin in France; and, if it takes any man’s name, should hear the name of Turgot. It was adopted by Louis XVI, in the cabinet of which Vergennes was the most important member. It is emphatically the policy of France; to which, with transient deviations, the Bourbons, the first Napoleon, the house of Orleans have ever adhered.
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THE EMPEROR NAPOLEON AND MEXICO
The late President was perpetually harassed by rumors that the Emperor Napoleon III desired formally to recognize the States in rebellion as an independent Power, and that England held him back by her reluctance, or France by her traditions of freedom, or he himself by his own better judgment and clear perception of events. But the republic of Mexico, on our borders, was, like ourselves, distracted by a rebellion, and from a similar cause. The monarchy of England had fastened upon us slavery which did not disappear with independence; in like manner, the ecclesiastical policy established by the Spanish Council of the Indies, in the days of Charles V and Philip II, retained its vigor in the Mexican republic. The fifty years of civil war under which she had languished was due to the bigoted system which was the legacy of monarchy, just as here the inheritance of slavery kept alive political strife, and culminated in civil war. As with us there could be no quiet but through the end of slavery, so in Mexico there could be no prosperity until the crushing tyranny of intolerance should cease. The party of slavery in the United States sent their emissaries to Europe to solicit aid; and so did the party of the church in Mexico, as organized by the old Spanish Council of the Indies, but with a different result. Just as the Republican party had made an end of the rebellion, and was establishing the best government ever known in that region, and giving promise to the nation of order, peace, and prosperity, word was brought us, in the moment of our deepest affliction, that the French emperor, moved by a desire to erect in North America a buttress for imperialism, would transform the republic of Mexico into a secundo-geniture for the house of Hapsburg. America might complain; she could not then interpose, and delay seemed justifiable. It was seen that Mexico could not, with all its wealth of land, compete in cereal products with our Northwest, nor, in tropical products, with Cuba; nor could it, under a disputed dynasty, attract capital, or create public works, or develop mines, or borrow money; so that the imperial system of Mexico, which was forced at once to recognize the wisdom of the policy of the republic by adopting it, could prove only an unremunerating drain on the French treasury for the support of an Austrian adventurer.
THE PERPETUITY OF REPUBLICAN INSTITUTIONS
Meantime, a new series of momentous questions grows up, and forces themselves on the consideration of the thoughtful. Republicanism has learned how to introduce into its constitution every element of order, as well as every element of freedom; but thus far the continuity of its government has secured to depend on the continuity of elections. It is now to be considered how perpetuity is to be secured against foreign occupation. The successor of Charles I of England dated his reign from the death of his father; the Bourbons coming back, after a long series of revolutions, claimed that the Louis who became king was the eighteenth of that name. The present Emperor of the French, disdaining a title from election alone, is called the third Napoleon. Shall a republic have less power of continuance when invading armies prevent a peaceful resort to the ballot-box? What force shall it attach to intervening legislation? What validity to debts contracted for its overthrow? These momentous questions are, by the invasion of Mexico, thrown up for solution. A free State once truly constituted should be as undying as its people; the republic of Mexico must rise again. [Loud applause.]
THE POPE OF ROME AND THE REBELLION
It was the condition of affairs in Mexico that involved the Pope of Rome in our difficulties so far that he alone among temporal sovereigns recognized the chief of the confederate States as a president, and his supporters as a people; and in letters to two great prelates of the Catholic church in the United States gave counsels for peace at a time when peace meant the victory of secession. Yet events move as they are ordered. The blessing of the Pope of Rome on the head of Duke Maximilian could not revive in the nineteenth century the ecclesiastical policy of the sixteenth; and the result is only a new proof that there can be no prosperity in the State without religious freedom.
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THE PEOPLE OF AMERICA
When it came home to the consciousness of the Americans that the war which they were waging was a war for the liberty of all the nations of the world, for freedom itself, they thanked God for giving them resignation to the severity of the trial to which He put their sincerity, and nerved themselves for their duty with an inexorable will. The President was led along by the greatness of their self-sacrificing example; and as a child, in a dark night on a rugged way, catches hold of the hand of its father for guidance and support, he clung fast to the hand of the people, and moved calmly through the gloom. While the statesmanship of Europe was scoffing at the hopeless vanity of their efforts, they put forth such miracles of energy as the history of the world had never known. The Navy of the United States, drawing into the public service the willing militia of the seas, doubled its tonnage in eight months, and established an actual blockade from Cape Hatteras to the Rio Grande; in the course of the war it was increased five-fold in man and in tonnage, while the inventive genius of the country devised more effective kinds of ordnance, and new forms of naval architecture in wood and iron. There went into the field for various terms of service about two million men; and in March last the men in service exceeded a million; that is to say, making allowance for two hundred thousand black troops, chiefly from the South, nine of every twenty able-bodied men took some part in the war; and at one time every fifth able-bodied man was in the field In one single month, one hundred and sixty-five thousand were recruited into service. Once, within four weeks, Ohio organized and placed in the field forty-two regiments of infantry—nearly thirty-six thousand men; and Ohio was like other States in the East and in the West. The well-mounted cavalry numbered eighty-four thousand; of horses there were bought, first and last, two thirds of a million. In the movements of troops science came in aid of patriotism; so that to choose a single instance out of many, an army twenty-three thousand strong, with its artillery, trains, baggage, and animals, were moved by rail from the Potomac to the Tennessee, twelve hundred miles, in seven days. In the long marches, wonders of military construction bridged the rivers; and wherever an army halted ample supplies awaited them at their ever-changing base. The vile thought that life is the greatest of blessings did not rise up. In six hundred and twenty-five battles and severe skirmishes blood flowed like water. It streamed over the grassy plains; it stained the rocks; the undergrowth of the forests was red with it; and the armies marched on with majestic courage from one conflict to another, knowing that they were fighting for God and liberty. The organization of the medical department met its infinitely multiplied duties with exactness and dispatch. At the news of a battle, the best surgeons of our cities hastened to the field to offer the zealous aid of the greatest experience and skill. The gentlest and most refined of women left homes of luxury and ease to build hospital tents near the armies and serve as nurses to the sick and dying. Beside the large supply of religious teachers by the public, the congregations spared to their brothers in the field and the ablest ministers. The Christian Commission, which expended $5,500,000, sent four thousand clergymen chosen out of the best to keep unsoiled the religious character of the men, and made gifts of clothes and food and medicine. The organization of private charity assumed unheard-of dimensions. The Sanitary Commission, which had seven thousand societies, distributed, under the direction of an unpaid board, spontaneous contributions to the amount of $15,000,000 in supplies or money—$1,5000,000 from California alone—and dotted the scene of war from Paducah to Port Royal, from Belle Plain, Virginia, to Brownsville, Texas, with homes and lodges.
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THE EMANCIPATION PROCLAMATION
The country had for its allies the Mississippi, which would not be divided, and the range of mountains which carried the strong hold of the free through Western Virginia and Kentucky and Tennessee to the highlands of Alabama. But it invoked the still higher power of immortal justice. In ancient Greece, where servitude was the universal custom, it was held that if a child were to strike its parent, the slave should defend the parent, and by that act recover his freedom. After vain resistance, Lincoln, who had tried to solve the question by gradual emancipation, by colonization, and by compensation, at last saw that slavery must be abolished or the Republic must die; and on the 1st day of January, 1862, he wrote liberty on the banners of the armies. When his proclamation, which struck the fetters from three million slaves, reached Europe, Lord Russell, a countryman of Milton and Wilberforce, eagerly put himself forward to speak of it in the name of mankind, saying, “It is of a very strange nature;” “a measure of war of a very questionable kind;” an act “of vengeance on the slave-owner,” that does no more than “profess to emancipate slaves where the United States authorities cannot make emancipation a reality.” Now, there was no part of the country embraced in the proclamation where the United States could not and did not make emancipation a reality. Those who saw Lincoln most frequently had never before heard him speak with bitterness of any human being; but he did not conceal how keenly he felt that he had been wronged by Lord Russell. And he wrote, in reply to another caviler,
“The emancipation policy, and the use of colored troops were the greatest blows yet dealt to the rebellion. The job was a great national one; and let none be slighted who bore an honorable part in it. I hope peace will come soon, and come to stay; then will there be some black men who can remember that they have helped mankind to this great consummation.” [Applause.]
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RUSSIA AND CHINA
The proclamation accomplished its end, for during the war our armies came into military possession of every State in rebellion. Then, too, was called forth the new power that comes from the simultaneous diffusion of thought and feeling among the nations of mankind. The mysterious sympathy of the millions throughout the world was given spontaneously. The best writers of Europe waked the conscience of the thoughtful till the intelligent moral sentiment of the Old World was drawn to the side of the unlettered statesman of the West. Russia, whose emperor had just accomplished on of the grandest acts [here the orator was interrupted by the longest and loudest applause] in the course of time by raising twenty million [applause renewed at the mention of the number] bondmen into freeholders, [great and long-continued applause,] and thus assuring the growth and culture of a Russian people, remained our unwavering friend. [Another burst of applause.] From the oldest abode of civilization, which gave the first example of an imperial government with equality among the people, Prince Kung, the Secretary of State for Foreign Affairs, remembered the saying of Confucius, that we should not do to others what we would not that others should do to us, and in the name of the Emperor of China closed its ports against the war ships and privateers of “the seditious.” [Very long and loud applause.]
CONTINUANCE OF THE WAR
The war continued, with all the peoples of the world for anxious spectators. Its cares weighed heavily on Lincoln, and his face was plowed with the furrows of thought and sadness. With malice toward none, free from the spirit of revenge, victory made him importunate for peace; and his enemies never doubted his word or despaired of his abounding clemency. He longed to utter pardon as the word for all, but not unless the freedom of the negro should be assured. The grand battles of Mill Spring, which gave us Nashville, of Fort Donelson, Malvern Hill, Antietam, Gettysburg, the Wilderness of Virginia, Winchester, Nashville, the capture of New Orleans, Vicksburg, Mobile, Fort Fisher, the march from Atlanta, and the capture of Savannah and Charleston, all foretold the issue. Still more, the self-regeneration of Missouri, the heart of the continent; of Maryland, whose sons never heard the midnight bells chime so sweetly as when they rang out to earth and heaven that by the voice of her own people she took her place among the free; of Tennessee, which passed through fire and blood, through sorrows and the shadow of death, to work out her own deliverance, and by the faithfulness of her own sons to renew her youth like the eagle—proved that victory was deserved and would be worth all that it cost. If words of mercy, uttered as they were by Lincoln on the waters of Virginia, were defiantly repelled, the armies of the country, moving with one will, went as the arrow to its mark, and without a feeling of revenge struck a death-blow at rebellion.
LINCOLN’S ASSASSINATION
Where, in the history of nations, had a Chief Magistrate possessed more sources of consolation and joy than Lincoln? His countrymen had shown their love by choosing him to a second term of service. The raging war that had divided the country had lulled; and private grief was hushed by the grandeur of its results. The nation had its new birth of freedom, soon to be secured forever by an amendment of the Constitution. His persistent gentleness had conquered for him a kindlier feeling on the part of the South. His scoffers among the grandees of Europe began to do him honor. The laboring classes everywhere saw in his advancement their own. All peoples sent him their benedictions. And at the moment of the height of his fame, to which his humility and modesty added charms, he fell by the hand of the assassin; and the only triumph awarded him was the march to the grave.
THE GREATNESS OF MAN
This is no time to say that human glory is but dust and ashes, that we mortals are no more than shadows in pursuit of shadows. How mean a thing were man, if there were not that within him which is higher than himself; if he could not master the illusions of sense, and discern the connections of events by a superior light which comes from God. He so shares the divine impulses that he has power to subject interested passions to love of country, and personal ambition to the ennoblement of his kind. Not in vain has Lincoln lived, for he has helped to make this Republic an example of justice, with no caste but the caste of humanity. The heroes who led our armies and ships into battle—Lyon, McPherson, Reynolds, Sedgwick, Wadsworth, Foote, Ward, with their compeers—and fell in the service, did not die in vain; they and the myriads of nameless martyrs, and he, the chief martyr, died willingly “that government of the people, by the people, and for the people, shall not perish from the earth.” [Loud applause.]
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THE JUST DIED FOR THE UNJUST
The assassination of Lincoln, who was so free from malice, has by some mysterious influence struck the country with solemn awe, and hushed, instead of exciting, the passion for revenge. It seems as if the just had died for the unjust. When I think of the friends I have lost in this war—and every one who hears me has, like myself, lost some of those whom he most loved—there is no consolation to be derived from victims on the scaffold, or from anything but the established union of the regenerated nation. [Applause.]
CHARACTER OF LINCOLN
In his character, Lincoln was through and through an American. He is the first native of the region west of the Alleghanies to attain to the highest station; and how happy it is that the man who was brought forward as the natural outgrowth and first fruits of that region should have been of unblemished purity in private life, a good son, a kind husband, a most affectionate father, and, as a man, so gentle to all. As to integrity, Douglas, his rival, said of him, “Lincoln is the honestest man I ever knew.”
The habits of his mind were those of meditation and inward thought, rather than of action. He excelled in logical statement more than in executive ability. He reasoned clearly, his reflective judgment was good, and his purposes were fixed; but, like the Hamlet of his only poet, his will was tardy in action; and for this reason, and not from humility or tenderness of feeling, he sometimes deplored that the duty which devolved on him had not fallen to the lot of another. He was skillful in analysis; discerned with precision the central idea on which a question turned, and new how to disengage it and present it by itself in a few homely, strong old English words that would be intelligible to all. He delighted to express his opinion by an apothegm, illustrate them by a parable, or drive them home by a story.
Lincoln gained a name by discussing questions which, of all others, most easily lead to fanaticism; but he was never carried away by enthusiastic zeal, never indulged in extravagant language, never hurried to support extreme measures, never allowed himself to be controlled by sudden impulses. During the progress of the election at which he was chosen President, he expressed no opinion that went beyond the Jefferson proviso of 1784. Like Jefferson and La Fayette, he had faith in the intuitions of the people, and read those intuitions with rare sagacity. He new how to bide his time, and was less apt to run ahead of opinion than to lag behind. He never sought to electrify the public by taking an advanced position with a banner of a section; but rather studied to move forward compactly, exposing no detachment in front or rear; so that the course of his Administration might have been explained as the calculating policy of a shrewd and watchful politician, had there not been seen behind it a fixedness of principle which from the first determined his purpose and grew more intense with every year, consuming his life by its energy. Yet his sensibilities were not acute, he had no vividness of imagination to picture to his mind the horrors of the battle-field or the sufferings in hospitals; his conscience was more tender than his feelings.
Lincoln was one of the most unassuming of men. In time of success, he gave credit for it to those whom he employed, to the people, and to the providence of God. He did not know what ostentation is; when he became President he was rather saddened than elated, and his conduct and manners showed more than ever his belief that all men are born equal. He was not respecter of persons; and neither rank, nor reputation, nor services overawed him. In judging of character he failed in discrimination, and his appointments were sometimes bad; but he readily deferred to public opinion, and in appointing the head of the armies he followed the manifest preferences of Congress. [Applause.]
A good President will secure unity to his administration by his own supervision of the various departments. Lincoln, who accepted advice readily, was never governed by any member of his Cabinet, and could not be moved from a purpose deliberately formed; but his supervision of affairs was unsteady and incomplete; and sometimes, by a sudden interference transcending the usual forms, he rather confused than advanced the public business. If he ever failed in the scrupulous regard due to the relative rights of Congress, it was so evidently without design that no conflict could ensue, or evil precedent be established. Truth he would receive from any one; but, when impressed by others, he did not use their opinions till by reflection he had made them thoroughly his own.
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It was the nature of Lincoln to forgive. When hostilities ceased, he who had always sent forth the flag with every one of its stars in the field, was eager to receive back his returning countrymen, and meditated “some new announcement to the South.” The amendment of the Constitution abolishing slavery had his most
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earnest and unwearied support. During the rage of war we get a glimpse into his soul from his privately suggesting to Louisiana that “in defining the franchise some of the colored people might be let in,” saying, “They would probably help, in some trying time to come, to keep the jewel of liberty in the family of freedom.” [Long-continued and enthusiastic demonstrations of applause] In 1857 he avowed himself “not in favor of what he improperly called “negro citizenship;” for the Constitution discriminates between citizens and electors. Three days before his death he declared his preference that “the elective franchise were now conferred on the very intelligent of the colored men and on those of them who served our cause as soldiers;” but he wished it done by the States themselves, and he never harbored the thought of exacting it from a new government as a condition of its recognition. [Applause.]
The last day of his life beamed with sunshine, as he sent by the Speaker of this House his friendly greetings to the men of the Rocky mountains and the Pacific slope; as he contemplated the return of hundreds of thousands of soldiers to fruitful industry; as he welcomed in advance hundreds of thousands of emigrants from Europe; as his eye kindled with enthusiasm at the coming wealth of the nation. And so, with these thoughts for his country, he was removed from the toils and temptations of this life and was at peace.
PALMERSTON AND LINCOLN
Hardly had the late President been consigned to the grave when the Prime Minister of England died, full of years and honors.
Palmerston traced his lineage to the time of the Conqueror;
Lincoln went back only to his grandfather.
Palmerston received his education from the best scholars of Harrow, Edinburg, and Cambridge;
Lincoln’s early teachers were the silent forest, the prairie, the river, and the stars.
Palmerston was in public life for sixty years;
Lincoln for but a tenth of that time.
Palmerston was a skillful guide of an established aristocracy;
Lincoln a leader or rather a companion of the people.
Palmerston was exclusively an Englishman, and made his boast in the House of Commons that the interest of England was his shibboleth;
Lincoln thought always of mankind as well as of his own country, and served human nature itself.
Palmerston from his narrowness as an Englishman did not endear his country to any one court or to any one people, but rather caused uneasiness and dislike;
Lincoln left America more beloved than ever by all the peoples of Europe.
Palmerston was self-possessed and adroit in reconciling the claims of the factions of the aristocracy;
Lincoln, frank and ingenuous, knew how to poise himself on the conflicting opinions of the people.
Palmerston was capable of insolence toward the weak, quick to the sense of honor, not heedful of right;
Lincoln rejected counsel given only as a matter of policy, and was not capable of being willfully unjust.
Palmerston, essentially superficial, delighted in banter and knew how to divert grave opposition by playful levity;
Lincoln was a man of infinite jest on his lips, with saddest earnestness at his heart.
Palmerston was a fair representative of the aristocratic liberality of the day, choosing for his tribunal, not the conscience of humanity, but the House of Commons;
Lincoln took to heart the eternal truths of liberty, obeyed them as the commands of Providence, and accepted the human race as the judge of his fidelity.
Palmerston did nothing that will endure; his great achievement, the separation of Belgium, placed that little kingdom where it must gravitate to France;
Lincoln finished a work which all time cannot overthrow.
Palmerston is a shining example of the ablest of a cultivated aristocracy;
Lincoln is the genuine fruit of institutions where the laboring man shares and assists to form the great ideas and designs of his country.
Palmerston was buried in Westminster Abbey by the order of the Queen, and was followed by the British aristocracy to his grave, which after a few years will hardly be noticed by the side of the graves of Fox and Chatham;
Lincoln was followed by the sorrow of his country across the continent to his resting-place in the heart of the Mississippi valley, to be remembered through all time by his countrymen, and by all the peoples of the world. [Long-continued applause.]
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CONCLUSION
As the sum of all, the hand of Lincoln raised the flag; the American people was the hero of the war; and therefore the result is a new era of republicanism. The disturbances in the country grew not out of anything republican but out of slavery, which is a part of the system of hereditary wrong; and the expulsion of this domestic anomaly opens to the renovated nation a career of unthought-of dignity and glory. Henceforth our country has a moral unity as the land of free labor. The party for slavery and the party against slavery are no more, and are merged in the party of union and freedom. The States which would have left us are not brought back as conquered States, for then we should hold them only so long as that conquest could be maintained; they come to their rightful place under the Constitution as original, necessary, and inseparable members of the Union. [Applause.]
We build monuments to the dead, but no monuments of victory. We respect the example of the Romans, who never, even in conquered lands, raised emblems of triumph. And our generals are not to be classed in the herd of vulgar conquerors, but are of the school of Timoleon and William of Orange and Washington. They have used the sword only to give peace to their country and restore her to her place in the great assembly of the nations.
Senators and Representatives, as I bid you farewell, my last word shall be a word of hope; for now there is a nation which for the first time in the world is ready to live according to the laws of reason and true republicanism is intrenched in a regenerated continent.
[The orator, on concluding, was greeted with an outburst of the heartiest applause, in which the whole audience joined.]
The exercises of the occasion were closed (at three o’clock and twenty-five minutes p. m.) by the following benediction by Rev. Dr. GRAY, Chaplain of the Senate:
God of a bereaved nation, from Thy high and holy habitation look down upon us and suitably impress us to-day with a sense that only God is great. Kings and Presidents die; but Thou, the universal Ruler, lives to rule undisturbed on Thine everlasting throne. A wail has gone up from the heart of the nation to heaven—O, hear, and pity, and save. We pray that Thou wilt command Thy blessing now upon the family of the President dead; upon the President living; upon the ministers of state; upon the United Houses of Congress; upon the broken families and desolated homes all over the land; and upon the nation. And grant that grace and peace and mercy from the Lord Jesus Christ, and the love of God the Father, and the fellowship of God the Spirit, may rest upon and abide with us all, forever and ever. Amen.
The members of the Senate, preceded by the President pro tempore, then retired from the Hall.
The SPEAKER called the House of Representatives to order.
THANKS TO HON. GEORGE BANCROFT
Mr. WASHBURNE, of Illinois, by unanimous consent, introduced the following concurrent resolutions; which were read, considered, and agreed to:
Resolved, (the Senate concurring,) That the thanks of Congress be presented to Hon. George Bancroft for the appropriate memorial address delivered by him on the life and services of Abraham Lincoln, late President of the United States, in the Representatives’ Hall, before both Houses of Congress and their invited guests, on the 12th day of February, 1865, and that he requested to furnish a copy for publication.
Resolved, That the chairmen of the joint committee appointed to make the necessary arrangements to carry into effect the resolution of this Congress in relation to the memorial exercises in honor of Abraham Lincoln be requested to communicate to Mr. Bancroft the a foregoing resolution, receive his answer thereto, and present the same to both Houses of Congress.
And then, on motion of Mr. WASHBURNE, of Illinois, (at three o’clock and thirty-five minutes p. m.,) the House adjourned.
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HOUSE OF REPRESENTATIVES
February 27, 1866
The SPEAKER. The first business in order is the consideration of the proposed amendment to the Constitution, reported on yesterday from the joint committee on reconstruction, and which was postponed until this morning, immediately after the reading of the Journal. [snip]
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RIGHTS OF CITIZENS
The House then resumed the consideration of the following joint resolution (H. R. No. 63) proposing an amendment to the Constitution of the United States:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely:
ARTICLE—. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in several States equal protection in the rights of life, liberty, and property. [snip]
Mr. HIGBY. Mr. Speaker, I differ from a great many members of this House, and I presume that I shall differ from a great many in authority as to the question of amending the Constitution of the United States. I do not believe in making any amendments as will occasion a division in the public mind as to whether any improvement has been made or not. But an amendment that will give strength to the Government of the United States, an increased strength over what it may have now under the present Constitution, will meet with my hearty concurrence [snip]
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HOUSE OF REPRESENTATIVES
February 28, 1866
The SPEAKER announced as the first business in order the consideration of the joint resolution H. R. No. 63, proposing an amendment to the Constitution of the United States, on which Mr. Davis was entitled to the floor. [snip]
RIGHTS OF CITIZENS
The House then resumed the consideration of the following joint resolution (H. R. No. 63) proposing an amendment to the Constitution of the United States:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the Uni ted States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely:
ARTICLE—. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in several States equal protection in the rights of life, liberty, and property.
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Mr. DAVIS. Mr. Speaker, an amendment of the Constitution of the United States, whatever it may be in its character, should be approached by this Congress with grave consideration. We have been taught in the past generations of our history to regard that Constitution as embodying perhaps more of human wisdom and human sagacity that was ever embodied in one instrument for civil government. We are told by those who framed it that we should be careful hereafter in changing its provisions or invading its spirit. [snip]
I am unwilling, after this Constitution has been tested in peace, and in foreign war, for nearly eighty years, and when, during the last four years, it has been to us as a cloud by day and a pillar of fire by night, pointing out a safe pathway to the nation through the Red Sea of civil war, and has led us to final triumph, and while the passions excited by the civil strife remain active and unsubdued, and wounds received are still open and bleeding, to amend or alter the organic law of the nation in any particular where a supreme necessity does not demand it. I am, moreover, especially opposed to any amendment which may prove subversive of the principles on which the Government is founded. We are the Representatives of States in this Union, and as such are under solemn obligations to see that while the national sovereignty of the Union is preserved, no infringement on the reserved rights of the States shall be permitted. [snip]
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HOUSE OF REPRESENTATIVES
March 1, 1866
RIGHTS OF CITIZENS
Mr. WILSON, of Iowa. I now call up the motion I made a few days since to reconsider the vote of the House, referring to the Committee on the Judiciary Senate bill No. 61, to protect all persons in the United States in their vindication; and upon that motion I call the previous question.
The previous question was seconded, and the main question ordered; and under the operation thereof the motion to reconsider was agreed to.
The question recurred upon the motion to refer the bill to the Committee on the Judiciary.
Mr. WILSON, of Iowa. I now withdraw that motion.
The House proceeded to the consideration of the bill.
Mr. WILSON, of Iowa. The bill has been considered by the Committee on the Judiciary, and I have been instructed by that committee to offer several amendments to it. The first amendment is in the seventh line of the first section, to strike out the words “inhabitants of” and insert the words “citizens of the United States in;” so that the portion will read:
There shall be no discrimination in civil rights or immunities among the citizens of the United States in any State or Territory, &c.
This amendment is intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens. [snip]
Mr. WILSON, of Iowa. I move further to amend, as follows:
In line nine, strike out the words “but the inhabitants,” and insert in lieu thereof the words “and such citizens;” so that the clause will read, “and such citizens of every race and color.”
The amendment was agreed to.
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Mr. WILSON, of Iowa. I offer the following amendment, not as coming from the committee, but because it is necessary to perfect the amendment already offered:
Insert after the word “property,” in line fifteen of the first section, the words “as is enjoyed by white citizens;” so that the clause will read:
Shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, as is enjoyed by white citizens.
The amendment was agreed to.
Mr. WILSON, of Iowa. I move further to amend as follows:
On page 3, in lines fifteen and sixteen, strike out the words “enlarge the powers of the Freedmen’s Bureau,” and insert in lieu thereof the words “establishing a Bureau for the Relief of Freedmen and Refuges, and all acts amendatory thereof.”
The amendment was agreed to.
Mr. WILSON, of Iowa. I now desire, Mr. Speaker, to enter a motion to recommit the bill. [snip]
Mr. BINGHAM. I only want to know whether the gentleman makes that motion for the purpose of cutting off further amendments?
Mr. WILSON, of Iowa. The motion does have that effect for the present. [snip]
Some of the questions presented by this bill are not entirely free from difficulties. Precedents, both judicial and legislative, are found in sharp conflict concerning them. The line which divides these precedents is generally found to be the same which separates the early from the later days of the Republic. The further the Government drifted from the old moorings of equality and human rights, the more numerous became judicial and legislative utterances in conflict with some of the leading features of this bill.
The Committee on the Judiciary bestowed on this subject a degree of careful examination which we believe will enable us to maintain successfully our conclusions both as to the propriety and constitutionality of this measure.
The first section of the bill contains the following declaration concerning citizenship:
That 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.
This provision, I maintain, is merely declaratory of what the law now is. This, I presume, would not be disputed if the language were qualified by the presence of the word “white.” In the absence of this word, I am sure that my proposition will be disputed by every member of this House who believes that this Government is exclusively a “white man’s Government.” I think this question of sufficient im-
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portance to justify me in giving it something more than a mere passing notice.
Blackstone says:
“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects[*] are such as are born within the dominions of the Crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the king; and aliens are such as are born out of it.”—Sharwood’s Blackstone, vol. 1, p. 304.
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The principle here laid down applies to this country as well as to England. It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, “founded in reason and the nature of government.”
The English law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects; nor does it do so in regard to naturalization. This law bound the colonies before the Revolution, and was not changed afterward[*].
[* My comment about “Blackstone says: … aliens … natural-born subjects” and Mr. Wilson’s comment “This law bound the colonies before the Revolution, and was not changed afterward”.]
Yes “English law” was “not changed afterward”. For eligibility to be president this was implied by John Jay (founder, New York state ratifier of the new U. S. Constitution, and first Supreme Court Chief Justice) by underlining the word “born” in “natural born Citizen” in his July 25, 1787 friendly note to his friend General George Washington when Washington was presiding over the constitutional convention which adopted Article II Section 1 clause 5 on September 17, 1787 and sent to the states for ratification as written:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the Office of President; …”.
The word “born” in 1787 certainly did imply that “The law [about English “subject”] … was not changed afterward”. Article I explicitly articulates that a foreigner naturalized by “oath” is only a “citizen”, and nowhere in the U. S. Constitution when it was written in 1787 or today in the 2000s does it say that a child born on U. S. soil to a foreign couple is—by birth alone—a naturalized citizen. That language is not in Article I where it talks about naturalization of foreigners and their eligibility to hold federal elected office (state elected office was reserved to the several states, and that still applies today). Right?
The single word “born”, underlined by Jay for original genesis emphasis, certainly, obviously, did not in 1787 imply that British “natural-born subjects” who would come to visit relatives in the United States of America after the war of independence and, either intentionally or not, gave birth to a child, nowhere in the black ink text of the Constitution is it articulated explicitly that the child would automatically have U. S. “birthright citizenship” and be considered as having dual allegiance as a U. S. “citizen” and a “subject” of a foreign power (England), and so be eligible to vote,eligible to hold state and/or federal government elected offices, and, as some people in the 2000s assert, also be eligible to be president.
Examples of the myth of eligibility to be president by birth on either U. S. or foreign soil to either one or two parents who were not born or naturalized U. S. citizens are (1) Illinois Sen. Barack Obama — US/Kenya — naturalized at birth; (2) Florida Sen. Marco Rubio — US/Cuba — naturalized at birth; (3) Louisiana Gov. Bobby Jindal — US/India — naturalized at birth; (4) South Carolina Gov./U. N. Ambassador Nikki Haley — US/India — naturalized at birth; (5) California Sen. Kamala Harris — US/India/Jamaica — naturalized at birth; (6) Ohio businessman Vivek Ramaswamy — US/India — naturalized at birth; (7) Massachusetts businessman Shiva Ayyadurai — India — naturalized by oath, not at birth.
It is obvious that “birthright citizenship” was not John Jay’s implicit original genesis intent when he underlined the word “born” in 1787, about four years after the Treaty of Paris ended the war of independence from England, a foreign power.
The “English law” was “not changed afterward” assertion in 1866 by Representative Wilson was an opinion which he shared with others then, and it is also our 2000s common sense common law opinion that the “English law” was “not changed afterward” and, concerning eligibility to be president, “not” is consistent with allegiance (i.e., acquiring only singular U. S. citizenship from two U. S. citizenship parents by birth alone) which was definitely implied by John Jay when he underlined the word “born” in “natural born Citizen”. What was definitely not implied in 1787 and 1866 was acquiring singular U. S. citizenship from foreigners, aliens, legal or illegal, whether both are foreigners with only singular foreign citizenship, or dual citizenship when one parent is a U. S. citizen and one is a foreign citizen. That makes sense, right?
The opinion words “law … not changed afterward” imply two things. 1) A child born on U. S. soil to aliens is not automatically an Article I U. S. naturalized citizen with “birthright citizenship” privileges such as eligibility to be president by birth alone while an adult foreigner is an Article I naturalized citizen by oath alone and not eligible to be president, and, 2) “not” also does not imply dual allegiance as a U. S. “citizen” and a British “subject”.
The words “not changed afterward” imply only singular U. S. citizen only by birth only to two U. S. citizens:
1. Only singular U. S. citizenship
2. Only by birth alone
3. Only on U. S. soil
4. Only to two U. S. citizens
5. Only married
6. Only to each other
7. Only before a child is born [End of comment]
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The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone—natural-born and naturalized citizens. It speaks of “natural-born” citizens, and also provides for the establishment of “a uniform rule of naturalization” by Congress. But in neither case does it apply race or color as a limitation on citizenship; and Congress, when it came to establish a uniform rule of naturalization, recognized by implication the citizenship of the native-born negro by providing “that any alien, being a free white person, may be admitted to become a citizen of the United States,” &c. Why use the word “white” in this way if a negro cannot be a citizen of the United States? If he is excluded from citizenship because of his race or color, though born within our jurisdiction and on our own soil, could Congress make him a citizen by naturalization? If he could not be born a citizen could he be legislated into one? No one, I presume to say, will assume the affirmative of this question. But unless some one will affirm this absurdity we have in the naturalization act of April 14, 1802, that which amounts to an unqualified declaration that a negro may be a citizen of the United States: for in the first section of that act it is provided:
“That any alien who was residing within the limits, and under the jurisdiction of the United States, before the 29th day of January, 1795, may be admitted to become a citizen on due proof made to some one of the courts aforesaid; that he has resided two years at least within and under the jurisdiction of the United States, and one year at least immediately preceding his application within the State or Territory where such court is at the time held.”
No one can doubt that an African could be naturalized under this part of the act of 1802, who was residing in the United States prior to the 29th day of January, 1795. Well, if Africans naturalized under this law should have had children born to them, will any person say that such children would be less citizens than their parents? The parents being citizens of the United States by naturalization, would it not follow that children born to them would be citizens by birth? I apprehend that it will not be claimed by any one that the children of naturalized citizens of the United States do not partake of the citizenship of their parents.
The act of February 28, 1803, provides that:
“No master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State which by law has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color.”—Brightly’s Digest, p. 487.
This is a very direct admission by the law-making power of the Government that a negro may be a citizen of the United States. Ship-masters are prohibited from bringing into any State described in the section of the act quoted any negro who is not either a native or a citizen of the United States. If no negro could be a citizen, why use this language? Why use the term citizen as a descriptive term if the persons described cannot be citizens of the United States? Let him answer who can.
Section ten of the act of September 4, 1841, says:
“That from and after the passage of this act, every person being the head of a family, or widow, or single man, over the age of twenty-one years, and being a citizen of the United States, or having filed his intention to become a citizen, as required by the naturalization laws, who since the 1st day of June, A. D. 1840, has made or shall hereafter make a settlement in person on the public lands to which the Indian title had been at the time of such settlement extinguished, and which has been or shall have been surveyed prior thereto, and who shall inhabit and improve the same; and who has or shall erect a dwelling thereon, shall be, and is hereby, authorized to enter with the register of the land office of the district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land,” &c.—United States Statutes-at-Large, vol. 5, p. 455.
Under this section a colored man made application to preempt land in the State of Illinois. The Secretary of the Treasury, Hon. John C. Spencer, submitted to the Attorney General of the United States, for his opinion, the question, can a free man of color be admitted to the privileges of a preemptioner under the act of 4th September, 1841? On March 15, 1843, Mr. H. S. Legare, the then Attorney General, gave his opinion in writing, from which I quote the following:
“I have delayed giving an opinion on the subject, because I was desirous of bestowing upon it every deliberate consideration. The result is, that I am of opinion that a free man of color, a native of this country, may be admitted to the privileges of a preemptioner under the tenth section of the act of 4th September, 1841.”—Opinions of Attorneys General, vol. 4, p. 147.
I am aware that the Attorney General tried to soften this opinion down by speaking of “denizens.” But the statute says citizens. The law officer of the Government tells us that his opinion was given after “very deliberate consideration,” and the law shows us that the limitation of citizenship was acting upon his deliberation. He gave in his opinion what every man must admit to be true, that a negro can be a citizen of the United States, and as such enjoy the privileges of a preemptioner under the act of 1841. Besides this, Mr. Legare was well aware that
“A denizen is an alien born who has obtained ex domatione legis letters patent to make him an English subject, and that in the United States there is no such civil condition.”—Bouvier’s Law Dictionary, vol. 1, title Denizen.
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And further, that—
“Citizens, under our Constitution and laws, mean free inhabitants, born within the United States or naturalized under the law of Congress.”—Kent’s Commentaries, vol. 2, p. 278, note.
Hence the free negro upon whose case the opinion was given became a preemptioner because he was a native-born citizen of the United States.
On this question of citizenship, Mr. Marcy, while he was Secretary of State, in a note dated March 6, 1854, expressed himself as follows:
“Although in general it is not the duty of the Secretary of State to express opinions of law, and doubts may be entertained of the expediency of making an answer to your inquiries an exception to this rule, yet I am under the impression[*] that every person born in the United States must be considered a citizen of the United States, notwithstanding one or[*] both of his parents may have been alien at the time of his birth.”
[* My comment about “impression” … “citizen” … “one or both” … “parents” … “alien” … “birth”]
An opinion is simply and opinion, it could be right or it could be wrong if it is not based on explicit positive law (law of people) such as an act of Congress or an amendment to the Constitution. As former Secretary of State Mr. Marcy said in 1854, his “impression” is that every person is a citizen even if “one or both” parents” may be alien. The word “impression” implies that Mr. Marcy was not sure if his impression was accurate concerning either “one or both … alien”. Right? Since he mentions “citizen” and does not reference “natural born Citizen” and eligibility to be president for a person with dual citizenship at birth (only one parent is a U. S. citizen) or singular foreign citizenship at birth (because both parents are foreign citizens), a possible conclusion is that he obviously meant only one thing. He “thought” that a person born on U. S. soil to alien parents is only a naturalized citizen at birth, and is in the same category as an adult naturalized citizen by oath, and neither is eligible to be president. Possible, right? [End of comment]
I quote this not to claim that it was written concerning a colored person, but for the purpose of showing how broad the rule is which Mr. Marcy affirmed. Every person born in the United States must include negroes, for they are persons and are born in the United States; and I submit that, under the rule thus laid down, all such persons “must be considered citizens of the United States.”
I know, Mr. Speaker, that Mr. Marcy subsequently modified this opinion, at least a letter written by his Assistant Secretary, Mr. Thomas, to Mr. Rice, of New York, of date November 4, 1856, substantially affirms that negroes “are not citizens of the United States.” This change of opinion may not be without a solution. The first letter is dated March 6, 1854, the second November 4, 1856; between these two dates an important political event occurred. The Kansas-Nebraska bill passed Congress in May, 1854, receiving the approval of President Pierce on the 30th day of that month. This act was full of trouble to the Democratic party; and the leaders of that organization became very anxious to have the question of slavery, so far as it related to the Territories and the status of negroes, adjudged and “settled” by the Supreme Court of the United States. The case of Dred Scott vs. Sanford found its way to the docket of that court, and was argued the first time at the December term, 1855, and ordered to be reargued at the December term, 1856. It was not safe to cast the monstrosities of that decision into the presidential campaign of 1856. The Democratic party had all it could carry without the abominations which the end of that case was destined to disclose. The case was held over, Buchanan was elected, and then the leaders of the party were ready to let slip the pestilent doctrines of the Dred Scott case.
No one now doubts that the leaders of the Democratic party knew what was to come out of that case in the form of aid and comfort to them. Buchanan doubtless knew what it would be, for in his inaugural address, delivered March 4, 1857, in speaking of the slavery question, he says”
“This is, happily, a matter of but little practical importance. Besides, it is a judicial question which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit.”—Senate Journal, 1856-57, p. 378.
The opinion of the court was soon after given to the country, but instead of becoming a triumphant platform for the Democratic party, it proved to be the scaffold on which the party was executed. These facts, taken in their proper relation to each other, may explain the change which transpired in the Department of State between the 6th day of March, 1854, and the 4th day of November, 1856. The first opinion was an honest and true statement of the law, the latter a mere partisan subterfuge.
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The ablest and most exhaustive opinion ever given on the subject of negro citizenship by any law officer of the Government is that of Attorney General Bates, of date November 29, 1862. This opinion was called for by the Secretary of the Treasury, Hon. S. P. Chase, by a letter from which the following extract is taken:
“The schooner Elizabeth and Margaret, of New Brunswick, is detained by the revenue cutter Tiger at South Amboy, New Jersey, because commanded by a ‘colored man,’ and so by a person not a citizen of the United States; as colored masters are numerous in our coasting trade. I submit for your opinion the question suggested by Captain Martin of the Tiger; are colored men citizens of the United States, and therefore competent to command American vessels?”
No ships or vessel can be deemed a ship or vessel of the United States unless wholly owned by a citizen or by citizens of the United States, nor unless commanded by a citizen of the United States, and no American registry can be granted to any ship or vessel until after the filing with the proper officer of the Government affidavits stating that the entire ownership vests in a citizen or citizens of the United States, and that the commander is a citizen. (Act of December 31, 1792; Brightly’s Digest, page 823.)
From this statement of the law it will be seen that the question propounded by Secretary Chase to the Attorney General was of the highest importance to the shipping and commercial interests of the country. Many vessels engaged in the coasting trade were commanded by colored men; many vessels were owned in whole or in part by colored men, and all such would forfeit their American registry and character if the colored men interested as owners or commanders were not citizens of the United States; for the first section of the act of 1792 expressly provides that they shall not continue to enjoy the benefits and privileges of ships and vessels of the United States “longer than they shall continue to be wholly owned and to be commanded by a citizen or citizens of the said States.” And the fourth section of said act provides as a penalty for a false statement of the facts to be set out in the oath required by said section, among which facts so required is the citizenship of the owner
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and commander, “a forfeiture of the ship or vessel,” &c. Under this law it was held in the case of the Venus “that if two part owners own jointly a commercial house in New York and one of them obtains an American register for a ship by swearing that he, together with his partner, of the city of New York, are the only owners of the vessel for which the register is obtained, when in fact his partner is domiciled in England, the vessel is liable to forfeiture,” and it was forfeited. (3 Cranch R., page 253.)
Attorney General Bates fully appreciated the importance of the question submitted to him for his opinion by the Secretary of the Treasury, and devoted to it a most careful and painstaking examination. This is amply evidenced by the elaborateness of the opinion and by the ability manifested in every one of its twenty-seven pages. I might with profit draw largely from the pages of this opinion in support of the position I maintain, but the time allotted me by the rules of the House constrains me to confine myself to quoting the conclusion arrived at by the author of this able paper. It is in these words:
“And now, upon the whole matter, I give it as my opinion that the free man of color mentioned in your letter, if born in the United States, is a citizen of the United States, and if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.”
Here I might let this branch of the case rest, for it is known to every member of this House that every department of the Government is now following the lead of the doctrine supported by the authorities I have cited; but, sir, I feel unwilling to omit some others that I have examined.
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It is in vain we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural[*]-born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments, are native[*]-born citizens of the United States. Thus it is expressed by a writer on[*] the Constitution of the United States:
“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—Rawle on the Constitution, p. 80.
[* My comment about “natural … native”, and “expressed by a writer on”]
Notice what is “expressed by a writer on” (i.e., ‘about’) the Constitution and not ‘in’ the Constitution. Rawle wrote in the 1800s “on” (i.e., ‘about’) the 1700s Constitution just as this is being written in the 2000s “on” (i.e., ‘about’) the 1700s Constitution.
Rawle’s ‘opinion’ is not accurate “in the sense of the Constitution”. His ‘opinion’ is confused and his conclusion is incoherent because his “natural-born citizen” includes “or aliens”. In contrast to Rawle, the “alien” parents are, as Rep. Wilson of Iowa wrote, “temporary sojourners” and their children are “native-born citizens” of the United States, not “natural-born citizens”.
In other words, the incoherence is obvious by putting Rawle’s and Wilson’s words together: every person (child) is a “natural-born citizen” if the parents are not “sojourners”, and a child is a native-born citizen” if the parents are “sojourners”. In other words, a child is a “natural-born citizen” if both parents are U. S. “citizens” and a child is a “native-born citizen” if the parents are not U. S. “citizens”.
My opinion is simple to state: For eligibility to be president, and extrapolated from the original genesis intent of the words, the implication of the words ‘natural’ and ‘born’ and ‘citizen’ “in the sense of the Constitution” is citizenship by birth alone on U. S. soil to two U. S. citizens. That is why Rawle is not accurate “in the sense of the Constitution”.
What Rawle did not consider was the common law of the 1700s and 1800s (before the 1922 Cable Act which gave females the right to naturalize after marriage to a male U. S. citizen, or not naturalize and keep foreign citizenship) is that a child born on U. S. soil to a male who was a U. S. citizen but was not married was a “citizen” with singular U. S. citizenship but the child was not a “natural born Citizen” with singular U. S. citizenship because the child had only one parent with singular U. S. citizenship. Legal marriage of a male U. S. citizen to a female automatically naturalized the female, whether she was born on U. S. soil or foreign soil. Marriage was the legal basis for establishing the passing on to a child the singular U. S. citizenship of married citizens. If the male was a foreign citizen who had not naturalized as a U. S. citizen and he married a U. S. citizen female, she automatically acquired the foreign citizenship status of the male and the child was considered an alien child with singular foreign citizenship. Rawle does not address that. That is why his ‘opinion’ is confused and not accurate “in the sense of the Constitution” and the common law of that era, and, from our 2000s perspective, before the 1922 Cable Act. [End of comment]
And this writer continues, as if he intended a refutation of the position assumed by some persons at this time, that a negro is neither a citizen nor an alien, but a mere person with no definable national character, and adds:
“It is an error to suppose, as some have done, that a child is born a citizen of no country, and subject of no Government, and that he so continues till the age of discretion, when he is at liberty to put himself under what Government he pleases.”—Pages 80, 81.
No nation, I believe, ever did recognize this absurd doctrine; and the only force it ever had in this country was that given it by the Democratic party which used the negro as a football for partisan games. The growing importance of the colored race in the United States, now that the entire race is free, will soon cause even the Democratic party to abandon the indefensible position it occupies on this question. That we have six million persons in this Government subject to its laws, and liable to perform all the duties and support all the obligations of citizens, and yet who are neither citizens nor aliens, is an absurdity which cannot survive long in the light of these days of progressive civilization.
It will not be denied by any one, I presume, that the English doctrine which claims as a subject every person born within the jurisdiction of the Crown, made negroes born in the colonies out of which the original thirteen States were created, British subjects; nor will it be contended that they were not citizens of the States after the States threw off their allegiance to the mother country, and being citizens of the States that they became, on the establishment of the Government of the United States, citizens of the United States. A very clear statement of this doctrine occurs in the case of the State vs. Manuel, 3 Devereaux & Battle’s N. C. R., page 26, in these words:
“The term ‘citizen’ as understood in our law is purely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before was a ‘subject of the king is now a citizen of the State.’”
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This position is maintained by Rawle on the Constitution, page 80; Kent’s Commentaries, volume two, lecture twenty-five; Lawrence’s Appendix to Wheaton on International Law. I might multiply authorities, but I have referred to enough for my purpose. By our law colored persons are citizens of the United States. Of this there can be no reasonable doubt; and we have been too tenaciously devoted to the doctrine “once a citizen always a citizen” to strike out of our column of citizens six million persons in obedience to any such political irrationality as lies buried in the Dred Scott case.
But, sir, suppose I should admit for the sake of an argument that negroes are not citizens, would that be an objection to the power of Congress to enact the provision of this bill to which I have called the attention of the House? If they are not citizens may we not naturalize them? If this can be done, then in either view of the case the provision of the bill which I am now discussing is proper, and is not obnoxious to the objection that we do not possess the power to pass it.
The Constitution, in article one, section eight, provides that Congress shall have power “to establish a uniform rule of naturalization.” This does not mean that the power of Congress exhausts itself by being once used, nor that there can be but one rule, nor that the rule established must provide that the naturalization shall be by action upon single or individual cases, nor yet that only foreigners can be thus made citizens. The practice of the Government is against all these positions. The rule must be uniform in its operation upon the class affected by it, and must not be confined in terms in its operation to any particular State or district of country, except when it operates only on a particular class of persons who may be occupying a limited district of country. Several statutes, establishing as many different rules, each uniform in itself, have been enacted on this subject. Most of these rules provide for the naturalization by individual cases:
“But a collective naturalization may also take place, of a class of persons, natives of the country or otherwise, and who, without any act on the part of the individuals, may be made citizens.”—Lawrence’s Appendix to Wheaton on International Law; Opinion of Attorney General Cushing, in Opinions of Attorneys General, vol. 7, p. 746.
The power thus to naturalize collectively has been exercised in several instances by the Government. The most striking case is that which is found in the act of March 3, 1843, in which it is provided that the “Stockbridge tribe of Indians, and each and every of them, shall be deemed to be, and from that time declared to be, citizens of the United States.”
Mr. Speaker, these authorities are sufficient upon this point, and I will leave the question of citizenship as presented in the first part of this section, and call the attention of the House to the next proposition of the section as proposed to be amended by the committee. It is in these words:
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; and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to see, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as, is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
This part of the bill will probably excite more opposition and elicit more discussion than any other; and yet to my mind it seems perfectly defensible. It provides for the equality of citizens of the United States in the enjoyment of “civil rights and immunities.” What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government. Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. These are not civil rights or immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as—
“The right of personal security, the right of personal liberty, and their right to acquire and enjoy property.” “Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits of prescribed law.”—Kent’s Commentaries, vol. 1, p. 199.
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To use the language of Attorney General Bates, in the opinion already cited, “The word rights is generic, common, embracing whatever may be lawfully claimed.” The definition given to the term “civil rights” in Bouvier’s Law Dictionary is very concise, and is supported by the best authority. It is this:
“Civil rights are those which have no relation to the establishment, support, or management of government.”
From this it is easy to gather an understanding that civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic.
But what of the term “immunities?” What is an immunity? Simply “freedom or exemption from obligation;” an immunity is “a right of exemption only,” as “an exemption from serving in an office, or performing duties which the law generally requires other citizens to perform.” This is all that is intended by the word “immunities” as used in this bill. It merely secures to citizens of the United States equality in the exemption of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains, and penalties from which other citizens are exempted. Whatever exemptions there may be shall apply to all citizens alike. One race shall not be more favored in this respect than another. One class shall not be required to support alone the burdens which should rest on all classes alike. This is the spirit and scope of the bill, and it goes not one step beyond.
Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment of civil rights and immunities, merely affirms existing law. We are following the Constitution. We are reducing to statute form the spirit of the Constitution. We are establishing no new right, declaring no new principle. It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen. I am aware, sir, that this doctrine is denied in many of the States; but this only proves the necessity for the enactment of the remedial and protective features of this bill. If the States would all observe the rights of our citizens, there would be no need of this bill. If the States would all practice the constitutional declaration, that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” (Article four, section two, Constitution of the United States,) and enforce it, as meaning that the citizen has “The right of protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either
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real or personal; to be exempt from higher taxes or impositions than are paid by the other citizens of the State,” (Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, p. 380.) we might very well refrain from the enactment of this bill into law. If they would recognize that “general citizenship” (Story on the Constitution, volume two, page 604) which under this clause entitles every citizen to security and protection of personal rights, (Campbell vs. Morris, 3 Harris & McHenry, 535,) we might safely withhold action. And if above all, Mr. Speaker, the States should admit, and practice the admission, that a citizen does not surrender these rights because he may happen to be a citizen of the State which would deprive him of them, we might, without doing violence to the duty devolved upon us, leave the whole subject to the several States. But, sir, the practice of the States leaves us no avenue of escape, and we must do our duty by supplying the protection which the States deny.
Mr. Speaker, if all our citizens were of one race and one color we would be relieved of most of the difficulties which surround us. This bill would be almost, if not entirely, unnecessary, and if the States, seeing that we have citizens of different races and colors, would but shut their eyes to these differences and legislate, so far at least as regards civil rights and immunities, as though all citizens were of one race and color, our troubles as a nation would be well-nigh ever. But such is not the case, and we must do as best we can to protect our citizens, from the highest to the lowest, from the whitest to the blackest, in the enjoyment of the great fundamental rights which belong to all men.
It will be observed that the entire structure of this bill rests on the discrimination relative to civil rights and immunities made by the States on “account of race, color, or previous condition of slavery.” That these things should not be is no answer to the fact of their existence. That the result of the recent war, and the enactment of the measures to which the events of the war naturally led us, have intensified the hate of the controlling class in the insurgent States toward our colored citizens is a fact against which we can neither shut our ears nor close our eyes. Laws barbaric and treatment inhuman are the rewards meted out by our white enemies to our colored friends. We should put a stop to this at once and forever. And yet I would not do this in a way which would deprive a white man of a single right to which he is entitled. I would merely enforce justice for all men; and this is lawful, it is right, and it is our bounden duty.
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In order to accomplish this end it is necessary to fortify the declaratory portions of this bill with such sanctions as will render it effective. The first of these is found in the second section, and in these words:
SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of the 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 a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.
Now, sir, unless I am mistaken in all that I have said up to this point, our power to enact this section cannot be questioned. If citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law, we must of necessity be clothed with the power to insure to each and every citizen these things which belong to him as a constituent member of the great national family. But it may be urged that we can exercise only such powers as are delegated by express provision of the Constitution or arise by implication from its express provisions. And following this may come the demand for the express or implied powers to support this and the subsequent sections of this bill.
Well, sir, as to those citizens who may be in danger of being subjected to slavery or involuntary servitude. I answer that the express power supporting this measure may be found in the following provision of the Constitution:
“SEC. 1. Neither slavery nor involuntary servitude, except as punishment of crime whereof the party shall have been duly convicted, shall exist in the United States, or in any place subject to their jurisdiction.
“SEC. 2. Congress shall have power to enforce this article by appropriate legislation.”
Here, certainly, is an express delegation of power. How shall it be exercised? Who shall select the means through which the office of this power shall effect the end designed by the people when they placed this provision in the Constitution? Happily, sir, we are not without light on these questions from the Supreme Court. In the celebrated case of McCulloch vs. The State of Maryland, Chief Justice Marshall, in delivering the opinion of the court, says:
“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”—4 Wheaton’s Reports, p. 420.
Who will say that the means provided by this second section of the bill are not appropriate for the enforcement of the power delegated to Congress by the second section of the amendment abolishing slavery, which I have quoted? The end is legitimate, because it is defined by the Constitution itself. The end is the maintenance of freedom to the citizen. What means more appropriate could be selected than that which punishes a man by commonly inflicted punishments through the ordinary channels of the law and the courts for depriving the citizen of those rights which, while he enjoys them, are his sure defense against efforts to reduce him in slavery? A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. Anything which protects him in the possession of these rights insures him against redaction to slavery. This settles the appropriateness of this measure, and that settles its constitutionality.
Of the necessity of the measure Congress is the sole judge. This is clearly announced in the case just cited, and in this language:
“Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”—Page 423.
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If this bill shall pass both Houses and become a law, that fact of itself determines the question of necessity, and from this decision there is no appeal except to another Congress. This is the doctrine of the constitution, as declared by the highest judicial tribunal known for our laws.
Mr. Speaker, I have endeavored to show that this bill provides means for the execution of the power delegated to us appropriate to the end designed by the Constitution. I may not have succeeded in convincing all that my position is correct, and some may claim that this particular mode of enforcing the power is in some way excepted from the broad field of our choice of means. Sir, the establishment of this exception must be the work of those who suggest it. Nor do I make this assertion without high authority for it. In the same case from which I have quoted the court said:
“The Government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.”—Page 409.
Here, sir, I may safely rest this branch of my justification of this bill. Let those who may claim that this mode of enforcing the power granted to us for effecting the object the people had in view when they placed the abolition amendment in the Constitution, is excepted from our grand range of choice, assume their burden and establish the exception. I am content to leave that branch of the work to them.
The remaining sections of the bill are aids to what has gone before, and I will not spend time in discussing them. Suffice it to say that they are based on the act of September 18, 1850, commonly known as the “fugitive slave law,” the constitutionality of which has been affirmed over and over again by the courts. (Vide 5 McLean, Rep., 469; 2 Paine, C. C. 348; 16 Barbour, 268; 7 Cushing, Mass., 285.) And, sir, I am not willing that all of these precedents, legislative and judicial, which aided slavery so long, shall now be brushed into oblivion when freedom needs their assistance. Let them now work out a proper measure of retributive justice by making freedom as secure as they once made slavery hateful. I cannot yield up the weapons which slavery has placed in our hands now that they may be wielded in the holy cause of liberty and just government. We will turn the artillery of slavery upon itself.
But, sir, this bill may have a broader application than that which would reach the cases of persons designed to be protected by the delegation of power contained in the amendment of the Constitution upon which I have commented. If it does reach beyond these cases, and in its enlarged operation step out of the bounds of this express delegation of power, upon what, in this more extended sphere, must it rely for support?
I have already said, “If citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law, we must of necessity be clothed with the power to insure to each and every citizen these things which belong to him as a consistent member of the great national family.” Whatever these great fundamental rights are, we must be invested with power to legislate for their protection or our Constitution fails in the first and most important office of government.
What are these rights? Certainly? Certainly they must be as comprehensive as those which belong to Englishmen. And what are they? Blackstone classifies them under three articles, as follows:
1. The right of personal security; which, he says,
“Consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”
2. The right of personal liberty; and this, he says,
“Consists in the power of locomotion, of changing situation, or moving one’s person to whatever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”
3. The right of personal property; which he defines to be,
“The free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”—Sharswood’s Blackstone, vol. 1. chap. 1.
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In his lecture on the absolute rights of persons, Chancellor Kent (Kent’s Commentaries, volume one, page 599) says:
“The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and inalienable.”
Thus, sir, we have the English and American doctrine harmonizing. The great fundamental rights are the inalienable possession of both Englishmen and Americans; and I will not admit that the British constitution excels the American Constitution in the amplitude of its provisions for the protection of these rights. Our Constitution is not a mockery; it is the never-failing fountain of power from whence we may draw our justification for the passage of this bill; for there is no right enumerated in it by general terms or by specific designation which is not definitely embodied in one of the rights I have mentioned, or results as an inci-
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dent necessary to complete defense and enjoyment of the specific right.
Now, sir, I reassert that the possession of these rights by the citizen raises by necessary implication the power in Congress to protect them. If a citizen of the United States should go abroad, and while within the jurisdiction of a foreign Power be despoiled of his rights of personal security, personal liberty, or personal property contrary to the due course of law of the nation inflicting the wrong, this Government would espouse his cause and enforce redress even to the extremity of war.
It may be said this case is provided for by the Constitution, when it declares that Congress shall have power “to declare war;” and in a certain sense this is true. But it must be remembered that the Constitution does not provide in detail how the war when once declared shall be carried on. It leaves that to Congress as the law-making power and the President as the executive power of the Government. Through these redresses for wrongs suffered by our citizens at the hands of another nation may be enforced. Well, if all the terrible powers of war may be resorted to for the protection of the rights of our citizens when those rights are disregarded and trampled on beyond our jurisdiction, is it possible that our Constitution is so defective that we have no power under it to protect our citizens within our own jurisdiction through the peaceful means of statutes and courts?
[Here the hammer fell.] [snip]
Mr. WILSON, of Iowa. I prefer at present to conclude my remarks.
Mr. Speaker, I assert that the only office of that clause in the Constitution which says that Congress shall have power to declare war, is to determine what particular department of the Government shall discharge the high duty of determining when the nation shall assert its rights through the terrible engineries [a collection or assembly of engines, machinery, tools] of war; and that if the Constitution said not a word about declaring war, raising armies, and providing a navy, the nation would possess the power to do all these things as completely as it now does. The nation could not live without these powers. They vest in it simultaneously with its organization. They are a part of its being, and depend not upon any phrases in the Constitution. These clauses being in the Constitution prevent conflicts between the several departments of the Government as to which particular department shall exercise these inherent powers of Government. They do this and nothing more. Thus it will be perceived that the delegation of the war power to Congress does not militate against the exercise of the power in the absence of such delegation. The power exists without this delegation, and the Constitution provides a legislative department and an executive department through which it may be fully exercised, and determines no question concerning it other than that which names one of these two departments to fix the time when the power shall be called into action. When we call this power into action we do in pursuance of the laws of war, summarily and by force, those things which in time of peace are done in obedience to civil law as administered by the courts.
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For nearly five years we have been exercising these powers for the preservation of the life of the Republic, the enforcement of our laws, and the protection of the rights of our citizens within our own jurisdiction. We are still exercising them, although armed resistance to our authority has ceased, and in spite of the assertion that the rebel States “still live” as States. Some of the acts which are now being done by virtue of this great power may be gathered from the following orders which are enforced to-day by military direction, namely:
[General Orders, No. 9]
HEADQUARTERS DEPARTMENT OF LOUISIANA
NEW ORLEANS, LOUISIANA, January 28, 1866
The following General Order from the War Department is republished for the information and guidance of all concerned:
[General Orders, No. 3]
WAR DEPARTMENT
ADJUTANT GENERAL’S OFFICE
WASHINGTON, January 12, 1866
To protect persons against improper civil suits and penalties in late rebellious States:
Military division and department commanders, whose commands embrace or are composed of any of the late rebellious States, and who have not already done so, will at once issue and enforce orders protecting from prosecution or suits in the State or municipal courts of such State, all officers and soldiers of the armies of the United States, and all persons thereto attached, or in anywise thereto belonging, subject to military authority, charged with offenses for acts done in their military capacity, or pursuant to orders from proper military authority; and to protect from suit or prosecution all loyal citizens, or persons charged with offenses done against the rebel forces, directly or indirectly, during the existence of the rebellion; and all persons, their agents and employees, charged with the occupancy of abandoned lands or plantations, or the possession or custody of any kind of property whatever, who occupied, used, possessed, or controlled the same pursuant to the order of the President, or any of the civil or military departments of the Government, and to protect them from any penalties or damages that may have been or may be pronounced or adjudged in said courts in any of such cases; and also protecting colored persons from prosecutions in any of said States charged with offenses for which white persons are not prosecuted or punished in the same manner and degree. [snip]
Here we have a practical exemplification of the war power in the accomplishment within our own jurisdiction, for the protection of our citizens, of some of the very things which this bill proposes to secure through the powerful operations of the courts. By these orders, “State laws,” “State courts,” municipal ordinances and courts, are crushed and pushed out of the way to make room for the perfect enjoyment by the citizens of a portion of his rights. [snip]
Before our Constitution was formed, the great fundamental rights which I have mentioned, belonged to every person who became a member of our great national family. No one surrendered a jot or tittle of these rights by consenting to the formation of the Government. The entire machinery of government as organized by the Constitution was designed, among other things, to secure a more perfect enjoyment of these rights. … Any other view of the powers of this Government dwarfs it and renders it a failure in its most important office.
Upon this broad principle I rest my justification of this bill. I assert that we possess the power to do those things which Governments are organized to do; that we may protect a citizen of the United States against a violation of his rights by the law of a single State; that by our laws and our courts we may intervene to maintain the proud character of American citizenship; that this power permeates our whole system, is a part of it, without which the States can run riot over every fundamental right belonging to citizens of the United States; that the right to exercise this power depends upon no express delegation, but runs with the rights it is designed to protect; that we possess the same latitude in respect to the selection of means through which to exercise this power that belongs to us when a power rests upon express delegation; and that the decisions which support the latter maintain the former. And here, sir, I leave the bill to the consideration of the House. [snip]
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Mr. ROGERS. Mr. Speaker, I, as one of the committee from which this bill was reported, deem it my duty, as I have had probably more opportunity to investigate the character of it than some other gentlemen in the House, to expatiate somewhat upon the bill, not only with regard to its constitutionality, but its policy.
Let me say, in the commencement, that there is no person in this House more willing to extend to the negro all the rights of life, liberty, and property than I am. I am willing to treat him in the most kindly and Christian-like manner, and extend to him every privilege that ought to be guarantied to any man in the United States for the protection of his liberty, his life, and his property. But when I took my seat in this body I took a solemn oath, which I implanted deeply in my heart and conscience, that I would support the Constitution of the United States and defend it against its enemies, whether within or without.
Now, sir, it cannot be pretended by any lawyer in this House, whatever his political opinions may be, who will base his integrity upon his professional experience, that there is any authority in the Congress of the United States to enter the domain of a State and interfere with its internal police, statutes, and domestic regulations.
Why, sir, the proposed amendment of the Constitution which has just been discussed in this House and postponed till April next, was offered by the learned gentleman from Ohio [Mr. BINGHAM] for the very purpose of avoiding the difficulty which we are now meeting in the attempt to pass this bill now under consideration. Because the amendment which he reported from the committee of fifteen was intended to confer upon Congress the power “to make laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the right of life, liberty, and property.” There is no protection or law provided for in that constitutional amendment which Congress is authorized to pass by virtue of that constitutional amendment that is not contained in this proposed act of Congress which is now before us. Therefore we have the opinion of the majority of the committee of fifteen, and the opinion of the learned gentleman from Ohio, [Mr. BINGHAM,] that in order to do what this bill proposes, Congress must be empowered by an amendment to the organic law.
I affirm, without the fear of successful contradiction, that by the decision of the highest court of the United States, that august tribunal to whose decisions every honest and patriotic man is bound to bow, it has been expressly and solemnly decided, after the most mature deliberation, by a bench of the most enlightened and learned lawyers that ever sat upon it, that negroes in this country, whether free or slave, are not citizens or people of the United States within the meaning of the words of the Constitution, and that therefore no law of Congress or of any State can extend to the negro race, in the full sense of the term, the status of citizenship. And the organic law, by its letter and spirit, and in view of the contemporaneous circumstances under which it was passed, fully vindicate the authority of this decision of the Supreme Court, declaring that no power within any State much less in the Congress of the United States, can change the status of the negro. That cannot be done until the requisite amendment is made to the Constitution, until some such article has been carried into effect by two thirds of both Houses of Congress and three fourths of the States.
I ask gentlemen on the other side, because I treat them with the same respect that I would treat those who agree with me in political opinion—I know them to be men of judgment and men of sense—to discriminate between the great rights which are vested in the States and the rights and powers delegated by the States to the Federal Government. I am here to-day to vindicate the doctrine of Jefferson, Madison, and Jackson. Those great polar stars of State sovereignty, which State sovereignty has led this country in peace and prosperity for seventy-five years; which has made it what it is among the nations of the earth; that sustained the great elementary principles contained in the organic law, that when Congress undertakes to inflict legislation upon the reserved right of the States it is a usurpation. And it is the duty of every Representative, whatever his politics may be, to prevent any such usurpation, and to maintain and preserve the safeguard and rights of the States unimpaired, as they were intended to be, by the framers of the organic law when they assembled in the old Hall of Independence in 1789.
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Now, sir, no bill has been offered in this House or in the other, the freedmen’s bill not excluded, which proposes to give to Congress such dangerous powers over the liberties of the people as this bill under consideration, and if it can be constitutionally passed by the Congress of the United States, and is no infringement upon the reserved or undelegated powers of the States, then Congress has the right, not only to extend all the rights and privileges to colored men that are enjoyed by white men, but has the right to take away. If Congress has the right to extend the great privileges of citizenship, which heretofore have been controlled by the States to any class of beings, they have the right, by the same authority, to take away from any class of people in any State the same rights that they have the right to extend to another class of persons in the same State. In other words, if the Congress has power under our present organic law to decide what rights and privileges shall be extended to negroes, it has the same power and authority under that organic law to extend its legislation so as to take away the most inestimable and valuable rights of the white men and the white women of this country, and not only take away but destroy every blessing of life, liberty, and property, upon the principle that Congress has unlimited sovereign power over the rights of the States; and whenever, in its judgment, it may see fit, it may carry this power on to an unlimited extent.
Now, sir, is there any member on the other
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side of the House who, on the honor of a man of conscience and integrity, can make himself believe that this Congress has the right to control the privileges and immunities of every citizen of these States, as contemplated in this bill, without a change in the organic law of the land?
Now, not only in the Dred Scott decision has it been expressly decided in the Supreme Court what the true status of the colored race is, but it was decided early in the history of the country, in a free State, the State of Pennsylvania, that although the constitution of the State allowed every free man to vote, using the word “freeman,” which is not to be found in the Constitution of the United States, yet the supreme court of Pennsylvania, then the highest court in that State, most solemnly and unequivocally decided that the negro was not included within the term “freeman,” whether he was free or whether he was a slave, and that under the clauses of the Constitution of the United States speaking of “citizens” and “people” free negroes and slaves were never included within those terms.
I will refer to the case which I have not produced before. I will not now read the Dred Scott decision, because I have read it here, and every one in the House is familiar with it. But I will read from the Pennsylvania case of Hogg vs. Fogg, which is to be found in volume six of Watts’ Reports, page 533.
The judges of election, when a free colored man, not a slave, offered himself to vote in Pennsylvania, under the constitution of the State which allowed every “freeman” to vote, refused to receive his vote, and hence this action was brought on the plea of an invasion of property. The court says:
“In the first section of the third article it is declared that ‘in elections by the citizens every freeman of the age of twenty-one years, having resided in the State two years before the election, and having within that time paid a State or county tax,’ shall enjoy the rights of an elector.
“Now, the argument of those who assert the claim of the colored population is, that the negro is a man; and, when not held to involuntary service, that he is free; consequently that he is a freeman; and if a freeman in the common acceptation of the term, then a freeman in every acceptation of it.
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“This pithy and syllogistic sentence comprises the whole argument, which, however elaborated, perpetually gets back to the point from which it started. The fallacy of it is its assumption that the term freedom signifies nothing but exemption from involuntary service; and that it has not a legal signification more specific. The freedom of a municipal corporation or body-politic, implies fellowship and a participation of corporate rights; but an inhabitant of an incorporated place, who is neither servant nor slave, though bound by its laws, may be no freeman in respect of its government. It has, indeed, been affirmed by text writers, that habitance and paying scot and lot, give an incidental right to corporate freedom; but the courts have refused to acknowledge it, even when the charter seemed to imply it; and, when not derived from proscription or grant, it was deemed a qualification merely and not a title. (Wilcox, chap. 3, p. 456.) Let it not be said that the legal meaning of the word freeman is peculiar to British corporations, and that we have it not in the charters and constitutions of Pennsylvania.” * * * * * *
“But in addition to interpretation from usage, this antecedent legislation furnishes other proofs that no colored race was party to our social compact, as was justly remarked by President Fox, in the matter of the late contested election, our ancestors settled the province as a community of white men; and the blacks were introduced into it as a race of slaves; where an unconquerable prejudice of caste, which has come down to our day, insomuch that a suspicion of taint still has the unjust effect of sinking the subject of it below the common level. Consistently with this prejudice, is it to be credited that parity of rank would be allowed to such a race? Let the question be answered by the statute of 1726, which denominated it an idle and a slothful people; which directed the magistrates to bind out free negroes for laziness or vagrancy; which forbade them to harbor Indian or mulatto negro slaves, on pain of stripes; which annexed to the interdict of marriage with a white the penalty of reduction to slavery; which punished them for tippling, with stripes, and even a white person with servitude for intermarriage with a negro. If freemen, in a political sense, were subjects of these cruel and degrading oppression, what must have been the lot of their brethren in bondage. It is also true, that degrading conditions were sometimes assigned to white men, but never as members of a caste. Insolvent debtors, to indicate the worst of them, were compelled to make satisfaction by servitude; but that was borrowed from a kindred and still less rational principle of the common law. This act of 1726, however, remained in force till it was repealed by the emancipating act of 1780, and it is irrational to believe that the progress of liberal sentiments was so rapid in the next ten years as to produce a determination in the convention of 1790, to raise this depressed race to the level of the white one. If such were its purpose, it is strange that the word chosen to effect it should have been the very one chosen by the convention of 1776, to designate a white elector, ‘every freeman,’ it is said, chapter two, section six, ‘of the full age of twenty-one years, having resided in this State for a space of one whole year before the day of election, and paid taxes during that time, shall enjoy the rights of an elector.’ ” * *
“I have thought it fair to treat the question as it stands affected by our municipal regulations without illustrations from those of other States, where the condition of the race has been still less favored. Yet it is proper to say that the second section of the fourth article of the Federal Constitution, prevents an obstacle of the Federal Constitution, prevents an obstacle to the political freedom of the negro, which seems to be inseparable. It is to be remembered that citizenship as well as freedom is a constitutional qualification; and how it could be conferred so as to overbear the laws imposing countless disabilities on him in other States, is a problem of difficult solution. In this aspect the question becomes one, not of intuition, but the power; and of power so doubtful as to forbid the exercise of it. Every man must lament the necessity of these disabilities; but slavery is to be dealt with by those whose existence depends on the skill with which it is treated. Considerations of mere humanity, however, belong to a class with which, as judges, we have nothing to do, and, interpreting the Constitution in the spirit of our institutions, we are bound to pronounce that men of color are destitute of title to the elective franchise.”
I want this question answered. Has Congress the power to enter the domain of a State, and destroy its police regulations with regard to the punishment inflicted upon negroes? For instance, the State of Kentucky, provides by law that if a negro man commits a rape upon a white woman, he shall be punished by death; but a white man committing a rape upon a white woman is to be punished by imprisonment. And in the State of Indiana, by the organic law of the State, by the solemn enactment of the highest authority of the State of Indiana, it is declared that no negro or mulatto shall come into the State and purchase and hold real or personal property. The laws of nearly all the States prohibit a colored man from marrying a white woman.
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In the State of Pennsylvania there is a discrimination made between the schools for white children and the schools for black. The laws there provide that certain schools shall be set apart for black persons, and certain schools shall be set apart for white persons. Now, if this Congress has a right, by such a bill as this, to enter the sovereign domain of a State and interfere with the statutes and the local regulations of a State, then, by parity of reasoning, it has a right to enter the domain of that State, and inflict upon the people there, without their consent, the right of the negro to enjoy the elective franchise to the same extent that it is accorded to the white men in that State, because there is nothing in the letter of the Constitution which gives this authority to Congress; nor is there anything in the letter of the Constitution which gives authority to Congress to regulate the elective franchise in a State; and as the Constitution is equally silent with respect to each of these great rights, it follows, a fortiori, that if Congress has the right to enter the domain of a State by such a bill as this, it has the right to enter a State for the purpose of extending the elective franchise to colored men, or of restricting the exercise of that right by white men.
Sir, this bill is broad and dangerous in the powers which it proposes to exercise. It is nothing but a relic of the Freedmen’s Bureau bill, which was vetoed by the President of the United States; and it strikes me that the object in attempting now to carry this bill through Congress is merely to compel that high functionary, that noble, honest, Constitution-loving man, the President of the United States, to put his veto upon it because it violates the wisdom of our fathers, and aims a blow at those principles of American liberty for the vindication of which they fought against the tyranny of King George of England.
I am ready to join in the passage of any law for the protection of every citizen of the United States, provided such law comes within the constitutional power and legitimate jurisdiction of the Federal Government. But when an attempt is made to tear down those solid bulwarks of constitutional liberty which were erected by our fathers, I, as a representative of New Jersey, one of the old Thirteen, am here to protest against the consolidation of power in the Federal Government.
Why, sir, let me state a case which may arise under the operations of this bill. Suppose that before a judge in the State of Delaware a negro should offer himself as a witness. The judge is bound to decide that a negro is not a competent witness, because the law of the State of Delaware has expressly excluded the negro from giving testimony. Yet, if that judge should conscientiously believe this bill to be unconstitutional, and should, in accordance with the law of his State, decide that that negro is not entitled to be a witness, he is liable, under this bill, to be prosecuted, and indicted as a criminal, and sentenced to be incarcerated in the State prison, and fined in the sum of $1,000, simply for administering the law of his own State according to his judgment and conscience and oath of office. As a white man is by law authorized to marry a white woman, so does this bill compel the State to grant to the negro the same right of marrying a white woman; and the judge who should declare the marriage void, in pursuance of the law of his State, is liable to be indicted, imprisoned, and fined.
I do not wish to misrepresent any of the provisions of this bill. Let members calmly examine for a moment the second section of the bill, and see whether it is not justly liable to the objections which I urge—whether it is not violative of this great principles which define the boundaries of State jurisdiction and protect it from the encroachments of Federal power. I will read the second section, and in view of its provisions, I ask the House to consider the consequences which must necessarily result from the passage of this bill. That section provides—
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 t of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race—
Here is the trouble—
than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding $1,000, or, imprisonment not exceeding one year, or both, in the discretion of the court.
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I defy gentlemen on the other side of the House to deny the proposition I now lay down. If the statutes of the State of Kentucky provide that the punishment of death shall be inflicted upon a negro who shall commit a rape upon a white woman, which is not imposed upon a white man for the same offense, this bill will prevent the execution of such a law, for the second section of this bill provides 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 persons having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.
I hope the honorable gentlemen on this side of the House will not allow so odious a bill as this to pass without at least raising their voices against it. This act of legislation would destroy the foundations of the Government as they were laid and established by our fathers, who reserved to the States certain privileges and immunities which ought sacredly to be preserved to them.
I go further, and say if we have a constitu-
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tional right to pass it, then Congress is authorized to exercise sovereign power and domain in the States in regard to the elective franchise; and that under it Congress may provide that a negro may go to the ballot-box and exercise the same political right of suffrage as is exercised by white men in all the States of the Union. The bill provides that—
There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
What broader words that privileges and immunities are to be found in the dictionary? What right do we exercise under the Constitution, including that of the right of suffrage, that under this language Congress may not grant to the negro? The right of suffrage is not a natural right. It is a civil right. It is a right derived from the Government and municipal law, as laid down in the organism of a State, and to extend to such persons as it may see fit.
There are only two kinds of right; one is that which a man acquires from the civil municipal laws. There is another right which God gives, us, the right of self-defense, the right to protect our lives from invasion by others. There are no other rights[*] but the rights of nature[*] and the great civil rights[*], the privileges and immunities created and granted to citizens of a country by virtue of the sovereign power under which the citizen lives.
[My comment about “no other rights”, “rights of nature”, “civil rights”]
The “rights of nature” = natural law (law of nature), “civil rights” = positive law (law of people).
Nature does not change and nature does not lie, so civil rights laws which are based on natural law are “right” law. The 1866 words “no other rights” means in the 2000s that a law of people which condones and promotes as a societal good the ‘trans’ formation ideology contrary to the law of nature is promoting a lie about nature and law. Nature does not lie because nature can not lie. [End of comment]
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All the rights that we enjoy, except our natural rights, are derived from Government. Therefore, there are really but two kinds of rights, natural rights [law of nature] and civil rights [law of people]. This bill, then, would prevent a State from refusing negro suffrage under the broad acceptation of the term “civil rights or immunities.” In fact, it has been decided by the circuit court of the United States, in the case of Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, pages 380 and 381, that the elective franchise is included in the words privileges and immunities. The court say:
“The inquiry is, what are the privileges and immunities of citizens in the several States?”
The court then go on to name the particulars, and include the elective franchise among them.
I have another question to put to gentlemen on the other side. I ask the learned chairman of the committee,[Mr. WILSON, of Iowa,] a man for whom I have as high a respect as any man in this House, believing him to be honest and sincere in reference to the positions which he assumes upon this floor, could Congress, before slavery was abolished in the country, have passed a law making all the free negroes of the States citizens with all the rights of white citizens, in defiance of the laws or police regulations of a State? Could Congress twenty years ago have passed an act providing that the negroes in Virginia, in South Carolina, in Delaware, in New Jersey, and in all the other States of this Union, should have all the privileges and immunities of citizens of the several States? Could they have passed a law prohibiting a State from passing laws, as many did, that the testimony of a negro should not be taken against a white man? Could they have passed a law annulling, for instance, the constitution of Indiana, which prohibits a negro from settling or owning property in that State, or the law of Illinois which prohibited a negro from coming within the limits of that State? Could Congress twenty years ago have passed a law annulling all those laws and setting at defiance the jurisdiction and powers of the States? Could it have passed a law repealing the statute of a State which made it penal for a negro to marry a white person? Could it have repealed all the laws of all the States which made a distinction between colored people and white, which existed in the laws of every State twenty years ago? Could it have legislated for free negroes in the States then? If it had no constitutional power then it has none now.
If you had attempted to do it in the days of those who were living at the time the Constitution was made, after the birth of that noble instrument, the spirit of the heroes of the Revolution and the ghosts of the departed who laid down their lives in defense of the liberty of this country and of the rights of the States, would have come forth as witnesses against the deadly infliction and the destruction of the fundamental principle of the sovereignty of the States in violation of the Constitution and the breaking down of the ties that bind the States, and the violation of the rights and liberties of the white men and white women of America. [snip]
Mr. ROGERS. That does not alter the parity of reasoning. I merely instanced the State of Illinois as an illustration of my argument, to show that there is no constitutional authority in the Federal Government to enter the domain of a State for the purpose contemplated in this act.
Now, sir, it will not be denied, or at least it cannot be successfully denied, that negroes are not citizens of this country, for the simple reason that the common law is not in force under the Constitution of the United States. The whole of the principles which govern the action of the Federal Government are contained in the Constitution; and none of the principles of the common law, as laid down by Blackstone or any other author on common law, can have any weight or bearing on the important subject of rights and powers under the Constitution.
I know that one of the chief justices of the king’s bench declared a hundred years ago that no negro could set his foot on British soil without being free by the common law. But our fathers enacted a law for the government of the nation under the power given to it by the States, which is embodied in the Constitution of the United States, which is the only law and sovereign power which can control and regulate the general legislation upon this or any other subject.
Now, sir, if you pass this bill you will allow the negroes of this country to compete for the high office of President of the United States. Because if they are citizens at all, they come within the meaning and letter of the Constitution of the United States, which allows all natural born citizens to become candidates for the Presidency, and to exercise the duties of that office if elected.
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A MEMBER. Are you afraid of that?
Mr. ROGERS. I am afraid of degrading this Government. I am afraid of danger to constitutional liberty. I am alarmed at the stupendous strides which this Congress is trying to initiate. And I appeal in behalf of my country, in behalf of those that are to come after us, of generations yet unborn, as well as those now living, that conservative men on the other side should rally to the standard of sovereign and independent States, and blot out this idea which is inculcating itself here, that all the powers of the States must be taken away and the power of the Czar of Russia or of the Emperor of France must be lodged in the Federal Government.
Sir, where is the civilized country on the face of the earth that gives to the negro the right to hold the highest office within the gift of the sovereign people, or an other office?
Mr. GRINNELL. Liberia.
Mr. ROGERS. That is a nation of barbarians, of heathens, and cannibals, like the nation of Africa. Savages from the coast of Africa were brought here by Englishmen and sold to the colonists for mere speculation. I am sorry that the negro was ever enslaved. I am sorry that they are among us. But since they are here I am not in favor of extending to them more privileges than we are authorized to extend to such people under the Federal Constitution.
Now, sir, there are other decisions to which I will call the attention of the House. In the case of Gibbons vs. Ogden, in the Supreme Court of the United States, (9 Wheaton, page 203,) in speaking of the powers of a State, the court says:
“They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government, all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these subjects is granted to Congress, and consequently they remain subject to State legislation. If the legislative power of the Union can reach them it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.”
Now, the eighth section of the first article of the Federal Constitution defines the powers that the States intended to delegate to the Federal head. If the States had intended to delegate to the Federal head unlimited powers they would not have made any specifications of the particular powers, and nowhere under the powers laid down can you find any authority in the Federal head to control or regulate the internal or domestic affairs of any State.
In the case of Albert vs. Bayley, (6 Pickering, pages 92 and 93,) Chief Justice Parker, in delivering the opinion of the court, in speaking of the clause in the Constitution of the United States which declares the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, says:
“The constitutional provision referred to is necessarily limited and qualified, for it cannot be pretended that a citizen of Rhode Island coming into this State to live is, ipso facto, entitled to the full privileges of a citizen, if any term of residence is prescribed as preliminary to the exercise of political or municipal rights. The several States then remain sovereign to some purposes, and foreign to each other, as before the adoption of the Constitution of the United States, and especially in regard to the administration of justice, and in the regulation of property and estates, the laws of marriage and divorce, and the protection of the persons of those who live under their jurisdiction.”
Who will pretend that there is any authority under the organic law of this country to pass such a law as this in the face of the decision of Chief Justice Parker, of Massachusetts, one of the ablest judges that ever sat on the bench of that State.
Sir, the supreme court of Maryland, in the case of Campbell vs. Morris (3 Harris & McHenry’s Reports, page 554) decide:
“All powers, jurisdiction, and rights of sovereignty not granted by the people by that instrument, or relinquished, are still retained by them in their several States, and in their respective State Legislatures, according to their forms of government. Uniformity of laws in the States is contemplated by the General Government only in two cases—on the subject of bankruptcies and naturalization. The legislative powers of Congress are particularly defined in the eighth section of the first article. Those powers do not interfere with or abridge the power of the States to make laws and regulations, the operation of which is confined to the State.”
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Sir, do not these decisions most clearly sustain the argument which I am making here, and will you not take as authority the law as administered by the sworn judges of the highest courts of the country when they are under the solemn obligations of an oath, and when party strifes had not risen to that high pitch to which they have now gone? I ask you to stand by the law of the country and to regulate these Federal and State systems upon the grand principles upon which they were intended to be regulated, that we may hand down to those who are to come after us this bright jewel of civil liberty unimpaired; and I say that the
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Congress or the men who will strip the people of these rights will be handed down to perdition for allowing this bright and beautiful heritage of civil liberty embodied in the powers and sovereign jurisdiction of the States to pass away from us.
Why, sir, all the arrangements of life with regard to the protection of property and person and the interests of mankind are complete and safe without the interposition of the Federal Government. If the Federal Government had never been established, if it never had been known that the stars were to be emblazoned together on the flag of this country as one common Union, yet the old thirteen States, had they remained as before entering into the Confederation, would have secured to the people of those States and to their children and descendants who were to come after them all those blessings of liberty that the State authorities and the Federal authorities are now authorized to extend to the citizens of any State or any Territory in this Union.
The honorable chairman undertook to establish a theory for this action upon a clause in the amendment to the Constitution abolishing slavery which authorizes Congress to pass appropriate legislation to carry the foregoing clause into effect.
Now, did not Mr. Seward say to some persons in the rebel States, who made objection to indorsing the constitutional amendment because of the second clause, which they feared would be claimed to authorize such legislation as this, that their objection was a mere myth and a mere subterfuge? As slavery was abolished, if any State undertook again to put the bonds of slavery upon those who had been made free, it would then be in the power of the Federal Government to put a veto upon the exercise of any such power, and to say that the shackles and chains of slavery shall not again be placed upon the black race in this land.
Now, the constitutional amendment abolishing slavery provides in the second section that “Congress shall have power to enforce this article by appropriate legislation.” “Appropriate legislation” for what? What is the subject-matter to which the legislation of Congress is to apply? Slavery or involuntary servitude is forever abolished, and this is to enable Congress to compel a State that undertakes, by its legislative power, to inflict the stigma of slavery again upon the escutcheon of this country, to forbear from so doing. It is to enable Congress to lay the hand of Federal power, delegated by the States to the General Government, upon the States to prevent them from reenslaving the blacks which it could not do before the adoption of this amendment to the Constitution.
Slavery is dead, and I have no desire to revive it. I believe that in this Christian age of enlightenment and wisdom, the experience of mankind and the laws of God themselves have implanted the systems of freedom in this country, and that it will be extended to all countries. And while we are extending this principle of freedom to the colored people, do not forget the millions of our brave soldiers, their widows and orphans, the children whose faces bear the impress of destitution and want, whose wails of sorrow pierce the very clouds. Do not forget our wasted fields, our ruined cities, the annihilation of our industry, the countless myriads of freemen from whose bodies limbs have been torn in the great storm of battle, or trampled under the hoofs of cavalry and artillery. Let us remember that we are to legislate for them; for those who achieved the independence of our country; for the brave men who buckled on their armor, and left their little families behind them, while the aristocrats remained at home. Many of those men laid down their lives around the sacred precincts of the tomb of Washington, and their bodies have been laid in the soil of Virginia, so as to perpetuate the liberty which our fathers designed should be extended to the white men and the white women of this country forever and ever.
I wait for an argument based upon constitutional grounds, showing our right to give Congress this awful power to enter into the jurisdiction of the States of this country, and to prostrate and destroy and break down those grand symbols and principles of liberty which lie at the foundation of our Government, and under which we have enjoyed peace and prosperity for more than seventy-five years, in the full protection of life, liberty, and property.
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I am willing to trust brave men, men who have shown as much bravery as those who were engaged on battle-fields against the armed legions of the North; because I believe that even when they were fighting against the armed legions of the North; because I believe that even when they were fighting against the flag of their country, the great mass of those people were moved by high and conscientious convictions of duty. And in the spirit of Christianity, in the spirit which Jesus Christ exercised when He gave up His own life as a propitiation for a fallen world, I would say to those southern men, come here in the Halls of Congress and participate with us in passing laws which, if constitutionally carried into effect, will control the interests and destinies of four million people, mostly living within the limits of your States.
I remember that our forefathers rebelled against the power of Great Britain. Three millions of the downtrodden people buckled on their arms against all the power that the King of England could summon, because the British Parliament attempted to pass laws affecting vital interests of the colonists, while the latter were not allowed representation in the Parliament. Shall we now, in this era of civilization and enlightenment, and as I hope of civil liberty, when the groundworks of our Union have been reestablished on a firm foundation which I trust shall never be shaken or disturbed, enact a law as despotic and tyrannical as was the legislation of the British Parliament when It attempted to enforce upon American colonies “taxation without representation?”
I believe that the eleven States of this Union whose Representatives are at present denied admission to these Halls ought to be represented on this floor; and even if this measure was altogether right and proper in its provisions, yet as it is to affect mainly eight million people who are not allowed to participate in our legislation, I would still be unwilling to give it my sanctions, because I claim to be here, not only as a Representative of my own State, but as a guardian of the interests of the downtrodden millions of the whole country, whether they be within the limits of the southern States, or within the boundaries of the northern States that have always been loyal to the Union.
I want to see this a great and glorious Union, spreading itself over the whole continent. I desire that our legislation shall be animated by the spirit of charity and Christianity which will induce southern men to love our country and love the Union, so that when war shall again invade our borders we may be able to march in solid phalanx as one united people to the halls of the Montezumas, to proclaim ourselves the champion of the rights of downtrodden Ireland and of all the oppressed millions, either of the western or the eastern continent. I am as much in favor of progress as any man; I am as much in favor of the extension of civil liberty as anybody. I am ready to join in such legislation as will place us before the world as a united people, and thus strike terror to the monarchies and despotisms of the Old World.
Mr. THAYER. Will the gentleman permit me to ask him a question?
Mr. ROGERS. Certainly.
Mr. THAYER. The gentleman says he is a progressive man, and a man in favor of the extension of human liberty. I desire the gentleman to state whether he voted for the constitutional amendment abolishing slavery.
Mr. ROGERS. No, sir; and I thank God that I never did. I could not lie down on my bed at night with a clear conscience if I had been guilty of being engaged as a participant in robbing a portion of the people of this country of millions of dollars invested under the Constitution in property in negroes, property which was recognized by our revolutionary fathers, and for the protection of which they fought as much as for anything else.
Mr. NIBLACK. Why did not the gentleman vote against it?
Mr. ROGERS. I did vote against it the first time it was offered, but the second time it came up I was unable to vote against it. If I had been here, I should have voted against it. I had very good reasons for not being here. I am clear in my conscience before God, and I am willing to appear before Him at the judgment seat on the last day to answer for the truth of the assertion which I make now. If I could have been here, I would have cast my vote most unhesitatingly against it. But slavery is dead now, and I am glad it is gone.
[Here the hammer fell.]
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Mr. COOK. Mr. Speaker, in listening to the very eloquent remarks of the gentleman from new Jersey, [Mr. ROGERS,] I have been astonished to find that in his apprehension this bill is designed to deprive somebody in some State of this Union of some right which he has heretofore enjoyed. I am only sorry that he was not specific enough; that he did not inform us what rights are to be taken away. He has denounced this bill as dangerous to liberty, as calculated in its tendency at least to destroy the liberties of this country. I have examined this bill with some care, and so far as I have been able to understand it I have found nothing in any provision of it which tends in any way to take from any man, white or black, a single right he enjoys under the Constitution and law of the United States.
We are told that this bill is destructive of constitutional liberty, but we are not told whose rights are infringed. We are not pointed to one single right now possessed by a single white man in this Government touched or impaired by the provisions of this bill.
I would have been glad if he would have told us in what manner the white men of this country would have been placed in a worse condition than they are now if this becomes the law. This general denunciation and general assault of the bill, without pointing out one single thing which is to deprive one single man of any right he enjoys under the Government, seems to me not entitled to much weight.
What is the situation of affairs for which we are called to legislate for four million human beings who have been set free from chattel slavery by the emancipation proclamation of the President and the amendment to the Constitution of the United States? They have become free. They have become self-dependent. They are in a position where they are required to take care of themselves. Many of these men have been engaged in defense of the country. In the hour of danger they have been called upon by us to aid in defense of the country; and we have succeeded with their aid in suppressing a rebellion which threatened to overthrow the Government of the country. What do we see? In six States of the Union formerly in rebellion laws have been passed by the reconstructed Legislatures of those States which have been so malignant in their spirit toward these freedmen, so subversive of their liberties, that the President of the United States and the commanders acting by his authority have set aside those laws and prevented their execution. General Thomas in Mississippi, General Swayne in Alabama, General Sickles in South Carolina, and General Terry in Virginia have issued positive orders forbidding the execution of the laws which have passed the Legislatures of those States against these black men.
Vagrant laws have been passed; laws which, under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again; and laws which provide for selling these en into slavery in punishment of crimes of the slightest magnitude; laws so abhorrent to the spirit of the Govern-
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ment and the spirit of the age that they have been absolutely set aside by the military power.
The time when these men can be protected by the military power will cease. Gentlemen are insisting that the time has come when these States should be represented in Congress and restored to their original position in the Union; and the last part of the speech of the gentleman from New Jersey [Mr. ROGERS] was devoted to a denunciation of gentlemen on this side of the House because they do not believe the time had fully come. Suppose that proposition is agreed to, and these States are restored to all the rights of sovereign States within this Union, and they carry out the same spirit they have already manifested toward these freedmen. Then the question is, shall we leave the men who have been loyal during this struggle, have fought on our side, and who have aided to carry the banner of the Republic in triumph through this terrible rebellion; shall we leave them to the operation of laws denounced as tyrannical by the military powers and as practically reducing these men to the condition of slavery?
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It is idle to say these men will be protected by the States. The sufficient and conclusive answer to that position I submit is, that those States have already passed laws which would now virtually reenslave them. Is there any answer to that? Does the gentleman tell us when these men are remitted to the action of these States lately in rebellion they mean that they shall be subjected to the operation of vagrant laws which reduce them virtually to the condition of slavery? Do they mean that, when they ask us to admit Representatives from these States upon this floor, and thus to admit these States into relations to the Union? Do they mean we shall surrender these freedmen to the power of their former masters, that we shall surrender these loyal men to the traitors, when we have the example before us which cannot be contradicted, that it will be to surrender them to a condition worse than they were before the proclamation of emancipation was issued?
The gentleman from New Jersey [Mr. ROGERS] commenced his speech by saying that he was in favor of giving civil rights to all men, and that he was a progressive man. He says this bill cannot be passed because it is unconstitutional. The other day when a proposition was made to amend the Constitution in this regard he opposed the amendment to the Constitution. He is for the protection of these men, but he is against every earthly mode that can be devised for protecting them; like the man that I heard of in the State of Maine, who was in favor of the Maine law but was opposed to its enforcement.
Sir, I know of no way by which these men can be protected except it be by the action of Congress, either by passing this bill or by passing a constitutional amendment. And when gentlemen tell me that they are in favor of protecting the people of color, and yet oppose every practicable method of protecting them, I beg leave most respectfully to doubt their judgment in the matter. The question is, shall be leave these men in this condition? It is idle to say we are not leaving them to a system of slavery. If it had not been for the acts of the military commanders, had not the laws which have already been enacted by the Legislatures of the rebel States been set aside, the negroes would all have been slaves now under the operation of their vagrant acts or other laws.
I believe that this bill is a proper remedy for these evils. I believe that we have the constitutional power to pass it, and that it is our duty to pass it. I affirm that we shall be justly chargeable with want of good faith, want of honor and of common honesty, if we abandon these men, who by our invitation have aided us and have thereby made themselves obnoxious to the majority of the white men of the South, and leave them to the tender mercies of our enemies and theirs.
This bill provides that all persons born within the United States, excepting those who do not owe allegiance to the United States Government, as children of ambassadors of foreign Powers, and such as are not subject to our laws [= “do not owe allegiance” … and “not subject” = children born on U. S. to legal or illegal alien parents who are immigrants but who have not naturalized. Why? Because the alien parents are subject to the laws of the nation from which they emigrated], and Indians not taxed who owe a tribal allegiance, shall be citizens of the United States. I think this is the law now. I do not believe that in this Government of ours there is any class of freemen who are not citizens. I do not believe that between the slave, who has no rights which white men are bound to respect, and a citizen there is any class of men provided for in the Constitution of the United States.
But I am not going to discuss this question, because it is apparent to me that the constitutional power of Congress to make any men or class of men citizens must be conceded. If they are not citizens now this act will make them citizens. To the Congress of the United States is given the power to establish a uniform rule of naturalization. This power has been construed, both by Congress and the courts, and we have admitted men to the rights of citizenship in precisely the same manner contemplated in this bill. We admitted the Stockbridge Indians by act of Congress, and vast numbers of Mexicans resident in Texas at the time of the annexation were made citizens by act of Congress. There are men within the sound of my voice who were here when a law was passed admitting large numbers of these men of Texas to citizenship, who would not otherwise have been citizens. This question has been long settled.
Then the question arises if we have power to make them citizens, about which I do not think there can be any reasonable doubt, there certainly cannot be any unless we are willing to go back and reverse all the precedents that have been set since the beginning of the Government. Then the question that remains is simply this: can the Congress of the United States provide that as between citizens of the United States there shall be no discrimination in civil rights or immunities, but they “shall have the same right to make and enforce contracts, to sue, be parties, give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property?” Has Congress the power to so enact that there shall be no discrimination in these things between the citizens of this Government? That is the whole question, so far as relates to the constitutional power.
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To my mind the power is a clear one resting upon the amendment to the Constitution which has lately been adopted. Under that amendment slavery and involuntary servitude are forever prohibited in the United States, and Congress has power to enforce that article of the Constitution by appropriate legislation.
Now, sir, I suppose that chattel slavery could not exist even without this second section of the amendment. Suppose it had never been adopted, no court could hold that any man in any State had a right to hold another as his slave in the sense in which slaves had been held before; but it is apparent that under other names and in other forms a system of involuntary servitude might be perpetuated over this unfortunate race. They might be denied the right of freemen unless there was vested a power in the Congress of the United States to enforce by appropriate legislation their right to freedom.
If that be not the meaning of the second section of this amendment, I see no meaning to it. The first section would have prohibited forever the mere fact of chattel slavery as it existed. When Congress was clothed with power to enforce the provision by appropriate legislation, it meant two things. It meant, first, that Congress shall have power to secure the rights of freemen to those men who had been slaves. It meant, secondly, that Congress should be the judge of what is necessary for the purpose of securing to them those rights. Congress must judge as to what legislation is appropriate and necessary to secure to these men the rights of free men, whether we can do this except by securing to them the right to make and enforce contracts and the other rights which are specified in this bill, and each member of this House must determine for himself, upon his oath, what legislation is appropriate to prevent their being reduced to any servitude which is involuntary.
Now, sir, I am prepared, for myself, to say that when those rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom. If a man can be sold, the man is a slave. If he is nominally freed by the amendment to the Constitution, he has nothing in the world he can call his own; he has simply the labor of his hands on which he can depend. Any combination of men in his neighborhood can prevent him from having any chance to support himself by his labor. They can pass a law that a man not supporting himself by labor shall be deemed a vagrant, and that a vagrant shall be sold. If this is the freedom we gave the men who have been fighting for us and in defense of the Government, if this is all we have secured them, the President had far better never have issued the proclamation of emancipation, and the country had far better never have adopted the great ordinance of freedom.
Take, for instance, the act that was passed in the State of South Carolina, and set aside by General Sickles. What is the condition of the freedman under that act? Is he secured in any right of freedom? Can any member here say that there is any probability, or any possibility, that these States will secure him in those rights? They have already spoken through their Legislatures; we know what they will do: these acts, which have been set aside by the military commanders, are the expressions of their will.
Now, are these men free? If a man can be sold as a vagrant because he does not labor, without any inquiry as to whether he can or cannot procure labor, is he a freeman?
To my mind the conclusion is irresistible that the second section of this amendment of the Constitution which gives us the right to enforce the article of the Constitution which provides against slavery or involuntary servitude, gives us the right to protect these men against precisely such a system of legislation as the one to which I have referred. If it does not it is worth nothing.
General Grant, on the 12th of January last, issued this order:
“Military division and department commanders, whose commands embrace or are composed of the late rebellious States, and who have not already done so, will at once issue and enforce orders protecting colored people from prosecution in any of such States charged with offenses for which white persons are not punished in the same manner and degree.”
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I have a right to assume, and I do assume, that that order was issued under the direction of the President of the United States, that it is his act, and when we provide by legislative action precisely the same thing and nothing more, I do not think that gentlemen upon the other side have the right to assume in advance that we are to encounter the executive veto. If the principle of this bill differs in any respect from the principle which the military authorities have found it necessary to carry out in order to protect these people in the enjoyment of their freedom, I cannot see in what that difference consists.
And one reason assigned most gravely in this House, why we should abandon these people and deliver them up to the operation of just such laws as I have been commenting upon is that if we do not do so a negro may be elected President of the United States; that a majority of the white men of this country will choose to elect a black man as President of the United States. That is the answer that is made to us when we ask whether these people are to be turned over to those men who hate them because they have been loyal to the Union and to the old flag. Objection is made to everything that the wit of man can contrive for their protection.
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It is said that this measure is unconstitutional. Then let us amend the Constitution so as to render such legislation proper. Oh, no, they say, we will not amend the Constitution. Then let us prescribe some conditions to these States that will guaranty the protection of these people. No, they cry; it is tyranny to ask for any guarantee from them the whole scope and meaning of this objection and opposition are that these people are to be abandoned, are to be left without the protection of this Government. They are to be told that notwithstanding the faith of this nation, when we asked them to take up arms in our defense, was pledged to guaranty freedom to them, yet now when we have secured our end by their aid, we will abandon them, and leave them in the hands of men whose hatred against them is intensified by the very part they played at our command.
Does any man in this House believe that these people can be safely left in these States without the aid of Federal legislation or military power? Does any one believe that their freedom can be preserved without this aid? If any man does so believe, he is strangely blind to the history of the past year; strangely blind to the enactments passed by Legislatures touching these freedmen. And I shuddered as I heard the honorable gentleman from New Jersey [Mr. ROGERS] claiming that he was speaking and thinking in the spirit which animated the Saviour of mankind when He made atonement for our race; that it was in that spirit he was acting when he was striving to have these people left utterly defenseless in the hands of men who are proving day by day, month by month, that they desire to oppress them, for they had been made free against their consent. Every act of legislation, every expression of opinion on their part proves that these people would be again enslaved if they were not protected by the military arm of the federal Government; without that they would be slaves to-day. And I submit, with all deference, that it is anything but the spirit which the gentleman claims to have exercised which prompted the argument he has made.
For myself, I trust that this bill will be passed, because I consider it the most appropriate means to secure the end desired; and that these people will be protected. I trust that we will say to them, because upon our call you aided us to suppress this rebellion; because the honor and faith of the nation were pledged for your protection, we will maintain your freedom, and redeem that pledge
Mr. THAYER obtained the floor.
Mr. STEVENS. I move that the further consideration of this subject be postponed for the present. I propose, if this motion be adopted, to move that the House resolve itself into the Committee of the Whole on the state of the Union, and resume the consideration of the deficiency bill.
The motion was agreed to. [snip]
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IN SENATE
March 8, 1866
APPORTIONMENT OF REPRESENTATION
The PRESIDENT pro tempore. The special order assigned for to-day at one o’clock, being the joint resolution (H. R. No. 57) proposing to amend the Constitution of the United States, will now be considered as before the Senate, and upon that question the Senator from Maine [Mr. MORRILL] is entitled to the floor.
Mr. MORRILL addressed the Senate in support of the joint resolution.
Mr. WILSON. Mr. President, there are indications not to be mistaken that this amendment is doomed to defeat. To me this result will be a subject of sincere and profound regret. My heart, my conscience, and my judgment approve of this amendment, and I support it without qualification or reservation. I approve of the purpose for which it is introduced; I approve it because I believe it would sweep the loyal States by an immense majority; that no public man could stand before the people of the loyal States in opposition to it or oppose it with any force whatever. I approve it because I believe if it were put in the Constitution every black man in America, before five years could pass, would be enfranchised and weaponed with the ballot for the protection of life, liberty, and property.
Senators on the other side of the Chamber pronounce this measure unjust to the States recently in rebellion. Some of them tell us that we who are pressing it are willing if we can secure franchise for the black men to let all other races go. We are quite as careful of the rights of other races as are the Senators who reproach us. We are also told that it is immoral and indecent, an offense to reason and to conscience. Sir, this measure came into Congress with the sanction of the committee on reconstruction, composed as it is of men of individual honor and personal character, and as true to the cause of the colored race as any other here or elsewhere. It comes to the Senate by an overwhelming vote of the House of Representatives. It is sustained by ninety-nine out of every hundred of the public journals that brought the present Administration into power, and were it submitted to the American people it would I am quite sure be sustained by men in the loyal States who believe that the soldier who fought the battles of the Republic is the equal of the traitor who fought against the country. It would be a question of manhood, a question whether one rebel in South Carolina shall count as much in the Electoral College and in the House of Representatives as two loyal men of New England, or of the great central States, or of the West.
Fighting the battle before the people on the question of the equality of the basis of representation, it would triumph, go into and become a portion of the Constitution of the country. Being incorporated in the Constitution, the practical effect would be this, and only this: it would raise up a party in every one of these States immediately in favor of the enfranchisement of the colored race. That party might be animated and influenced by the love of power, by pride, and by ambition. These men might begin the contest, for they would not like to yield the power of their States in Congress; they might begin the battle animated by no high and lofty motives; but as soon as the discussion commenced, it would address itself to the reason, to the heart, and to the conscience of the people. The advocates of negro enfranchisement would themselves speedily grow up to believe in the justice, equity, and right of giving the ballot to the black men. There would be discussion on every square mile of the rebel States. Appeals would be made to their pride, to their ambition, to their justice, to their love of fair play, to their equity; all the interests and passions and all the loftier motives that can sway, control, and influence men, would impel them to action. They would cooperate with the friends of freedom throughout the country; would seek their counsel and aid. They would be the left wing of the great army of freedom, of elevation, and improvement in the country. We would give them our influence, our voices, and our aid in fighting the battle of enfranchisement. They would have the support and the prayers of the poor black men of the South; and before five years had passed away, there would not be a rebel State that did not enfranchise the bondman. And when they did triumph, they would have made a public sentiment by which every black man could go to the ballot-box in safety with his friends, vote with his friends and under the protection of his friends, and without “having his head broken.” Force suffrage by positive law upon Virginia or the Carolinas or any of these States to-day, and the negro would go to the ballot-box almost at the peril of his life; but let there be four or five years of discussion by liberal and just men in any of these States, and let them triumph and give the suffrage themselves, and they will make it as easy for the black men to vote without molestation as they vote to-day in the Commonwealth of Massachusetts.
I believe if this amendment were placed in the Constitution it would bring suffrage to the black men of the country within five years; I entertain not the shadow of a doubt about it; and that when suffrage did come under those circumstances, it would come, in the words of Mr. Lincoln, “to stay;” it would be fixed forever in the general policy of the whole country. Believing this, I must give my vote for the proposition. If I were to contribute to the defeat of this great measure, and nothing should be done for the enfranchisement of the men who have fought the battles of this country, and of this race to which the country owes so much, I could not go back to my State and answer the people there or answer my own conscience.
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Senators on the other side of the Chamber have been pleased to talk about these proposed amendments to the Constitution as though we here were “innovators” and “radicals,” for that seems to be a phrase that falls glibly from the lips of gentlemen in our time. Do not Senators know that the framers of the Constitution of the United States, mindful of the imperfections of human institutions, prescribed a mode for the amendment of the work of their hands? Do they not know that the First Congress under the Constitution, guided by men who were in the constitutional convention, proposed twelve amendments to the Constitution, ten of which were incorporated into that instrument? Do they not know that the Third Congress proposed another amendment, and the Seventh Congress another, which were adopted? Do they not remember that eminent statesmen from that time until this have proposed amendments to the Constitution without subjecting themselves to denunciation as “innovators” and “radicals?” Do not these Senators remember that five years ago, when these Halls rang with angry menaces of incipient treason, five amendments to the Constitution were proposed in what is called the Crittenden compromise: an amendment to recognize and establish slavery, and protect it south of 360 30’; an amendment forbidding the nation to prohibit slavery where it possessed exclusive jurisdiction; an amendment forbidding Congress to abolish slavery in the District of Columbia without the consent of Maryland and Virginia; an amendment to allow the slave-masters to take their slaves with them and range all over the loyal States, and hold them manacled and chained in the face of a Christian people; and an amendment to pay for fugitive slaves that had escaped from the United States marshals or were taken from them by any mob that might be raised up in any part of the Country? Do not Senators remember
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that the men who now taunt us with a proposition to amend the Constitution voted to place these inhuman and unchristian amendments in the Constitution of this country? Sir, the propositions embodied in that Crittenden compromise were the wickedest measures that were ever presented to a nation since the morning of creation.
Sir, we have passed through this war. It has tested alike the weakness and the strength of our institutions. By the framers of the Constitution, persons held in bondage numbered three fifths in the basis of representation. That concession to slavery gave the slave holding States undue power and influence in Congress, and was ever a just cause of complaint. By emancipation these persons formerly accounted as slaves are free, thus giving additional Representatives to the late slave holding States. By the Constitution as it is, four and a half million slaves recently emancipated are added to the free population of the country, adding thirteen Representatives to the emancipating States. By the Constitution as it is, the States are clothed with power to prescribe the qualifications of electors. The emancipated slaves that would give to the slave holding States some thirty Representatives in Congress are wholly denied the right of suffrage. By adding to the basis of representation these freedmen, the power of those who deny their rights in the government of the country would be strengthened. By the Constitution as it is, one rebel in South Carolina or Mississippi is equal in power in the House of Representatives and the Electoral College to two loyal men in New England, the great central States, or the States of the West. Such inequality is unjust and wholly indefensible.
When the Constitution of the United States was framed the States controlled this subject of suffrage. We have had quoted to us the opinions of the eminent statesmen of other days. Sir, whatever may have been their utterances, the statesmen of that period were the men who made the State constitutions, and under those State constitutions it is a question whether one half of the men who fought the battles of the American Revolution could vote or not. In the State of Massachusetts, to be a voter under the constitution of the State at the time the Constitution of the United States was framed the voter must be in possession of $300 worth of property. I have no hesitation in saying that when the Constitution was framed fifty percent of the men of Massachusetts who had fought in the ranks during the Revolution did not possess the $300, and could not vote in that State. In Connecticut $200 worth of property was required. In Rhode Island there was a property qualification, and it continued until the Dorr rebellion. In New York there was a property qualification, a freeholder or an annual rent of forty shillings; in New Jersey $350; in Indiana fifty acres of land were required; in Virginia a freeholder; in North Carolina fifty acres of land; and in South Carolina fifty acres of land.
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Do Senators believe that in these States the men who fought the battles of the country during the revolutionary war could vote under those constitutions? If you will look at the number of votes cast in those States at that time you will see that not one fourth of the men who would be entitled to vote, if all persons over twenty-one years of age were allowed to vote, did vote. The men who framed the Constitution of the United States made these State constitutions. They called them republican in form, and inserted a provision in the Constitution of the United States guarantying that they should continue to be republican in form. They also provided in the Constitution that the electors under it should be the electors of the most numerous branch of the State Legislatures, and they well knew what those qualifications were. Every State constitution provides for electors, prescribes the qualifications for suffrage. The laws of the States provide for qualifications of electors. Every State, from the adoption of the State constitutions to this hour, has claimed the authority, and exercised it, to settle the questions pertaining to suffrage. They never supposed that the Federal Government had the power to change it. They never gave that power; they never intended to give that power; and I do not believe that a respectable vote could be obtained in the States to give the Federal Government this power.
Mr. YATES. I desire to propound a question or two to the Senator, not with any view of embarrassing him, but for my own information. I should like to ask the Senator whether every man made free by the first clause of the constitutional amendment is not as free and entitled to the same civil and political rights and privileges as the Senator or myself. In other words, I ask whether he is not one of the people of the United States, one of the citizens of the United States, and entitled to the same rights and privileges as the Senator or myself or any other one of the people of the United States, by force of the constitutional amendment abolishing slavery and emancipating that people, as I contend, into the sovereignty, into the body-politic of the United States?
That proposition being true, as I think he will admit and cannot deny, according to the stand-point from which he and I see things, I will not ask him whether under the Constitution as it now exists the States have jurisdiction over the question of citizenship in the States, but I will ask him whether, when we come to make an organic alteration in the Constitution of the United States, and when we have in view the securing of the rights of all the citizens of the United States without regard to race or color—those words, I believe, according to the opinion of the Senator from Maryland, have no longer any meaning under the Constitution of the United States—we propose to place it in the power of any State in this Union, a rebellious State or any other State, to disfranchise any portion of the American people? And further, I will ask if it is to be submitted to the people of the rebellious States to decide whether the freedmen are to have these rights or not?
Does the Senator from Massachusetts or the Senator from Maine, [Mr. FESSENDEN,] whose opinions are so respected in my own State, or any other Senator pretend to say that under this constitutional amendment the question of representation will be decided by the citizens of these rebellious States, by which I mean not only white citizens, but all citizens, the people who are as free and have the same rights that you and I have to-day? The question is, whether you will permit in a new organic change of the Constitution a portion of the people of the southern States, and rebels and traitors at that, to say who shall be represented by those States upon the Senate floor?
Those are the questions that I desire to propound. I do not put them with any view of embarrassing the Senator, but for my own information for I will say to the Senator that I have not yet decided whether I shall support this amendment or not. I confess these questions have disturbed me to some extent, and I should like to have them answered.
Mr WILSON. I can assure the Senator from Illinois that his questions, which he says were not put to embarrass me, but for information, will certainly not embarrass me, and I shall endeavor, if I can, to answer them fairly and squarely. The constitutional amendment that was proposed by the Senator from Missouri, [Mr. HENDERSON,] and reported by the Senator from Illinois, [Mr. TRUMBULL,] adopted by Congress and ratified by the people, was never understood by any man in the Senate or House of Representatives, by any portion of the public press, or by any Senator or Representative in any State, to confer upon Congress the right to prescribe or regulate the suffrage in any State of this Union. If it had been supposed that it gave that power the amendment would never have passed Congress, never have received the sanction of the States. I will state what power it gave Congress beyond all doubt or question. It clothes Congress with ample powers to protect the civil rights and immunities of every emancipated slave in the country. That emancipated slave is as free as I am; the child emancipated in its cradle to-day is as free and as much a citizen of the United States as the Senator from Illinois or myself. But, sir, citizenship never did carry in this country and does not carry in itself the right of suffrage or the right to hold office. A man may be a citizen and not have the right of suffrage. There are men in Massachusetts, in all the States, who are citizens and who have not the right of suffrage.
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Mr. YATES. Will the Senator allow me to ask him another question?
Mr. WILSON. Certainly.
Mr. YATES. Was it understood at the time of the passage of the amendment to the Constitution that it would confer civil rights?
Mr. WILSON. I suppose so. I have no doubt of it; none whatever. When that amendment was added to the Constitution it gave Congress ample power to make these men free, as free as the non-voting white population of those States, as the women or children, or such persons as were not allowed the privilege of suffrage. The Massachusetts bill of rights declares that “each individual in society has a right to be protected by it in the enjoyment of his life, liberty, and property.” Mr. Webster says that “the right of being protected in life, liberty, and estate is due to all, and cannot be justly denied to any, whatever be their age, property, or residence in the State.” This sacred right to be fully protected in life, liberty, and estate is due to the freedmen, and I believe Congress is clothed with ample authority to secure the emancipated slaves in their civil rights and immunities. But I did not understand then, and I do not believe now, that it gives Congress the power to clothe these men with suffrage or to confer office upon them. Participation in the Government is one thing; the right to be protected in life, liberty, and estate is another thing. Every human being in the country, black or white, man or woman, or little child in the cradle, has a right to be protected in life, in property, and in liberty; that is, civil liberty. The right to hold an office, the right to vote, the right to take part in the governing power of the country is a thing that has been regulated by the State in every State in the Union from the beginning of the Government. It is a thing that may be modified and changed by law. No State has a right to pass a law denying security to life, liberty, or property. In the words of Daniel Webster, the State that does not give protection to the life, liberty, and property of all men violates its duty, because every person has this due him for his allegiance to the Government and his contribution to the support of the country.
Mr. YATES. I do not deny the power of the States to regulate suffrage, to make rules and regulations, and to decide upon the qualifications of those who are electors. It is the duty of the State to preserve and regulate the right, but it cannot destroy the right. I ask the honorable Senator from Massachusetts now, if he believes in the power of the State of Massachusetts or the State of South Carolina, not simply to regulate the right of suffrage, but to deprive a citizen of the right to vote altogether? Can you disfranchise an American citizen?
Mr. WILSON. Well, Mr. President, I answer by saying that, right or wrong, the States do not always enfranchise American citizens. Massachusetts denies suffrage to citizens unless they can read and write.
Mr. YATES. That is not the question. The question is whether she can do it rightfully.
Mr. WILSON. The Senator may say that it is not a thing that ought to be done. I agree to that; and I voted against the amendment in my State requiring reading and writing for that reason. I do not fear universal suffrage. I believe it to be safe in our country.
Mr. YATES. I ask the Senator whether this constitutional amendment will not permit
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that thing to be done. Does it not permit the rebellious States to exclude from the right of voting and to disfranchise entirely the freedmen?
Mr. WILSON. I answer emphatically! In my judgment—and I have tried very hard to think the other way, and have heard and read a good deal on that subject—this amendment permits nothing, nothing whatever. I have never seen or heard or read anything yet that convinces me that the adoption of the constitutional amendment making free these people gave the Congress of the Unites States any power to settle the question of suffrage in Pennsylvania, Ohio, Indiana, or anywhere else.
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Mr. YATES. The honorable Senator does not understand the last question which I put to him; and that is, whether by the constitutional amendment now proposed the State of South Carolina or any other of the rebel States may not disfranchise the freedmen entirely. Does it not give the States the right to say that colored people shall not vote, or that a certain portion of them shall not vote? Is not that the spirit of the pending amendment? Does it not give constitutional sanction to that doctrine?
Mr. WILSON. I will answer the Senator by saying that I think this amendment leaves the matter with the States just precisely as it is now; there is no implication in it, no compromise in it, no surrender by this Government of any power whatever. This amendment does not touch the question of suffrage at all; this “amendment” simply proposes a penalty for denying to freemen the right of suffrage. It proposes that free persons, as now, shall continue to be the basis of representation; but that if any portion of them, on account of color or race, are denied, in any State, the right of suffrage, they shall not be counted in the basis of representation.
If it is true—and who can doubt it—that the States possess the power of prescribing the qualifications of electors, how can it be maintained that by implication this amendment concedes to the States the power of denying the right of suffrage? This amendment concedes nothing whatever. It yields nothing whatever of the powers now possessed by the Federal Government; but it does say to every State, “If you deny suffrage to any man on account of color or race the whole of that class or race shall be excluded from the basis of representation.” There is no compromise in this, no concession, no surrender of any rights now possessed by the Government.
Mr. YATES. Let me state to the Senator the position which I assume. Before the adoption of the constitutional amendment abolishing slavery and giving Congress power to enforce that abolition by appropriate legislation, the States had a right under the Constitution, according to the decisions of the Supreme Court of the United States, to disfranchise the colored people. They were considered a subject race, they were not considered a part of the people, a part of the sovereignty, a part of the citizens of the United States. But by that constitutional amendment they are free, as free as the Senator from Massachusetts this day; and now the question is whether, with this amendment staring us in the face, we shall proceed to insert in the Constitution a new clause by which the States may disfranchise these persons altogether. That is the question—an entirely different question from any that was presented before the adoption of the anti-slavery amendment.
Mr. WILSON. I hold that the amendment neither yields, gives, or surrenders any power. It simply imposes a penalty upon the States for continuing to do what they are now doing. I have in my hands an opinion given by Attorney General Bates, and I think a few paragraphs from it might be advantageous to the Senator from Illinois to hear, and I will read them to him. Mr. Bates says:
“In discussing this subject, it is a misleading error to fail to mark the natural and characteristic distinction between political rights and political powers. The former belong to all citizens alike, and cohere in the very name and nature of citizenship. The latter participation in the powers of government by voting and exercising office does not belong to all citizens alike, nor to any citizen, merely in virtue of citizenship. His power always depends upon extraneous facts and superadded qualifications; which facts and qualifications are common to both citizens and aliens.”
And Mr. Bates says further:
“The Constitution of the United States, as I have said, does not define citizenship; neither does it declare who may vote, nor who may hold office, except in regard to a few of the highest national functionaries. And the several States, as far as I know, in exercising that power act independently and without any controlling authority over them, and hence it follows that there is no limit to their power in that particular but their own prudence and discretion, and therefore we are not surprised to find that these faculties of voting and holding office are not uniform in the different States but are made to depend upon variety of facts purely discretionary[*], such as age, sex, race, color, property, residence in a particular place, and length of residence there.” * * * * *
“And as to voting and holding office, as that privilege is not essential to citizenship, so the deprivation of it by law is not a deprivation of citizenship. No more so in the case of negro than in case of a white woman or child.”
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[My comment about “discretionary”]
The word “discretionary” is a reference to positive law (law of people) which can be changed by statute after debate by legislators. Something which is ‘discretionary’ for voting as itemized by Mr. Bates is, obviously, not a reference to natural law (law of nature) which cannot be changed by legislators.
To use a current example abut what is ‘discretionary’, legislators are getting political pressure from those who are promoting preferred social issues of the 2000s such as ‘homosexual/ism’ or ‘transgender/ism’ or ‘chosen’ pronoun/ism or ‘artificial intelligence/ism’, etc., etc., etc/ism.
Future legislators may get political pressure from a future/ism as expressed by an educated free thinker who said, in expressing the ancient and yet contemporary myth, what I refer to as ‘humans will become god/ism’, he expressed the myth of human and machine hybrids which will be made possible by artificial intelligence and eventually artificial general intelligence. His future/ism myth is: “god does not exist, yet”.
In other words, even though ‘people’ (legislators) can change their opinions about social issues and pass laws without regard to ‘nature’ (the presupposition, the foundation, of all law), ‘nature’ does not change, ‘nature’ does not lie, ‘nature’ can not lie. The law of ‘nature’ as revealed by heterosexual birth is ‘law’ which is ‘revealed’. It is law which is permanent, generation to generation. At physical ‘visible’ birth this law is ‘revealed’. This revealing of law is possible only by heterosexual generation to heterosexual generation, from heterosexual parents to heterosexual children. That means that ‘nature’ is consistent and does not lie to those who have been taught by “trans” formers to ignore their true ‘birth nature’. [End of comment]
Mr. President, if we had the power by legislative action to regulate suffrage in the States I should vote for extending the right of suffrage to the black man with all my heart, soul, and reason. I had hoped to be able to deduce the power from the provisions of the Constitution so that I could vote for it according to my judgment and conscience; but I cannot do so. If the Senator from Illinois or any other Senator has come to the conclusion that he has the power I cannot object to it; and if the Senate and the country arrive at that conclusion I shall not complain. I have labored in public and in private life for thirty years for the emancipation of this race and for their elevation and improvement. I believe that suffrage to them is a weapon of self-protection and that it ought to be granted. If after having called one hundred and eighty thousand men of the colored race, native-born[*] American citizens[*], to fight our battles, after the aid they have given us, after they refused to take the musket for the defense of the confederacy when the confederacy appealed to them to do it, if we refuse to extend to them the suffrage, the weapon of protection, it will bring upon this nation, as slavery brought upon it, the curse of an offended God. I believe in the years to come we shall be punished for it as we have been punished for four weary years with fire and blood and death for two centuries of oppression. I will go as far as he who goes furthest in every practical measure that can bring about negro suffrage. I do not see the power in the Constitution as it now stands; I do not believe that Congress or anybody in Congress thought the power was given when we adopted the anti-slavery amendment; I do not believe the States thought so when they adopted it. I do not find the power there. I abandon, then, all hope of accomplishing the object by legislation of Congress, at any rate for the present. [snip]
[* My comment about “native-born” and “citizens”]
Sometimes the founders of the United Sates and later (as noted above in Mr. Wilson’s comment) sitting Senators and Representatives used the words “native-born citizen” synonymously with “natural-born citizen” or “natural born citizen” (without the hyphen) only as a reference to a “citizen”, or, when not referring to Article II and eligibility to be president, also as a reference to “natural born Citizen” who, in the context of a comment, is also a “citizen”.
John Jay wrote “natural born Citizen” in his July 25, 1787 note to General Washington when he underlined the word “born” with a capital “C”. As a reference to eligibility to be president in Article II Section 1 clause 5 when adopted on September 17, 1787, the words “No person except a natural born Citizen” (“C”) were contrasted with “… or a Citizen of …” (“C”), and the new constitution was ratified by the states without the hyphen and with a capital “C”. The ratifiers in the ‘several States’ obviously knew what “natural” and “born” and “Citizen” implied because the ratifiers accepted the three word phrase as a term of art (i.e., a commonly accepted intent and meaning). John Jay, who was not a delegate to the constitutional convention, certainly knew what he implicitly intended by underlining the word “born”, and his original genesis intent continued when he was a New York ratifier of his own words and of the entire Constitution.
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The “citizen” in “...or a Citizen of …” was a “citizen” who was not born to two U. S. “citizen” parents on U. S. soil because the 1787 Article II “Citizen” was born a British “subject” on British America soil before the “citizen” naturalization date of July 4, 1776, before the war of independence from England to end the sovereignty of King George over “we the people”. After the last “… or a Citizen of …” died in the middle to late 1800s (1775-1850 is 75 years), the only “natural born Citizen” eligible to be president was a “citizen” with only singular U. S. citizenship only by birth alone only on U. S. soil (definitely in 1787) only to two U. S. citizens (in 1787 definitely not unmarried or married to someone else) only married only to each other (definitely not religion authorized multiple wives in 1787) only before a child is born so that the singular U. S. citizen status of the two married parents could be passed (‘devolve’) on to their singular U. S. citizenship child. [End of comment]
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HOUSE OF REPRESENTATIVES
March 8, 1866
RIGHTS OF CITIZENS
The House, agreeably to order, resumed the consideration of the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication;” on which Mr. BROOMALL was entitled to the floor.
Mr. BROOMALL. Mr Speaker, in some remarks which I had the honor to offer in the House a few weeks ago I said that “the Government of the United States above all other duties owes it to itself and to humanity to guard the rights of those who in the midst of rebellion periled their lives and fortunes for its honor, of whatever caste or lineage they be,” and “that no system of reconstruction ought to be considered unless it shall effectually guaranty the rights of the Union men of the South.”
Everything that has transpired since then, from all departments of the Government, satisfies me that these, our southern allies in the war waged to preserve the existence of the nation, have nothing to trust except the integrity and firmness of the Union majority in the two Houses of Congress. That majority, through its appropriate committees, presents the bill under consideration as one of the measures on which it relies to carry out its great and patriotic purpose.
The object of the bill is twofold—to declare who are citizens of the United States, and to secure them the protection which every Government owes to its citizens. It will hardly be said that these are not proper subjects of legislation, and especially the latter one. If the same thing has not been attempted before, it was partly because there never before was the same necessity, and partly because of the long continued and remarkable forbearance of those for whom what necessity there was existed.
The first provision of the bill declares that all persons born in the United States and not subject to any foreign Power are citizens of the United States. As a positive enactment this would hardly seem necessary. Even as a declaration of existing law, a proposition that at most can only be said to embrace the true meaning of the word “citizen” would seem to find its more appropriate place in the elementary treatises upon law rather than upon the statute-books. What is a citizen[*] but a human being who by reason of his being born within the jurisdiction[*] of a Government owes allegiance[*] to that Government?
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[* My comment about “citizen”, “jurisdiction”, “allegiance”]
Notice that Representative Broomall in the last sentence is talking about “a Government” in a general sense. In context of the discussion about the “bill”, the future 1866 civil rights bill, his speech in the House is only about U. S. citizens and U. S. citizenship of children born on U. S. soil to U. S. citizen parents. He is not implying, suggesting, intending, hypothesizing about ‘birthright citizenship’ for children of alien ‘citizens’ of other countries being born on U. S. soil and automatically being ‘declared’ (a positive law—law of people word) a U. S. ‘citizen’ with full ‘civil rights and immunities’ with eligibility to vote and eligibility to be elected to Article I, Article II federal offices and selected by Senate approval to Article III federal office.
A child born on the soil of a country to parents who are born or naturalized citizens of that country owes ‘legal’ allegiance to the parents first and second to the country of the parents. Makes sense, right? That is the natural order of birth (a law of nature word) first and allegiance (a law of people word) second. Not allegiance first and then birth, right? That is not ‘legally’ coherent and does not make sense. How can a child who does not ‘exist’ yet be expected to ‘have’ allegiance, right?
A child born on the soil of a country to parents who are not born or naturalized citizens of that country owes ‘legal’ allegiance to the parents first and second to the country of the parents. Makes sense, right? That is the natural order, birth first and allegiance second.
A child “born within the jurisdiction … owes allegiance …” certainly can only be an implicit reference by Representative Broomall to a child born to parents who are either born or naturalized citizens of the country, and, by birth or naturalization, owe ‘legal’ allegiance to the country. Right?
A child “born within the jurisdiction ... owes allegiance …” certainly can not be an implicit reference by Representative Broomall to only the child owing ‘legal’ allegiance to a country when the parents who have not naturalized still owe ‘legal’ allegiance to another country, not to the country where the child is born. That makes sense, right?
Birth to citizens of a country is the only ‘legal’ way for a child to be under the ‘jurisdiction’ of and owe ‘allegiance’ to the government of the country of the parents.
Birth in country #1 to citizens of country #2 who are under the ‘jurisdiction’ of and who owe ‘allegiance’ to country #2 is the only ‘legal’ way for a child born in country #1 to be under the ‘jurisdiction’ of and owe allegiance to the government of country #1.
WAIT!!! NO!!! That is incoherent and reveals why ‘soil’ alone is NOT able to present as a gift implicit ‘birthright citizenship’ on children born to alien citizen parents and why ‘soil alone’ does not make sense.
What is the natural law ‘legal’ basis for a child born in one country to NOT be under the same ‘jurisdiction’ of and have the same ‘allegiance’ of the parents? For U. S. ‘legal’ citizenship, the ‘jurisdiction’ and ‘allegiance’ of the U. S. citizen parents is passed to the child by birth alone (natural law) on the soil (a natural law word) of the U. S. citizen parents. U. S. citizenship is NOT ‘legally’ passed on by soil alone, or by birth alone on foreign soil. Right? (See ‘citizen’ in the 1795 Naturalization Act which repealed ‘natural born citizen’ in the 1790 Naturalization Act.) Both ‘soil’ and birth’ to married U. S. citizens is the only natural law ‘legal’ way to have only singular U. S. citizenship and promote the common sense intent of the two positive law (law of people) words ‘jurisdiction’ and allegiance’.
Remember, the preceding is only about a U. S. “citizen”, not a U. S. “natural born Citizen”. To be eligible to be president a child requires married U. S. citizens and both birth and soil. A child must have ONLY singular U. S. citizenship which is possible ONLY by birth alone ONLY on U. S. soil ONLY to two U. S. citizens ONLY married ONLY to each other ONLY before a child is born on U. S. soil (or U. S. jurisdiction on foreign soil).
For eligibility to be president, soil (first) and birth (second) to married U. S citizen parents are Article II Section 1 clause 5 implicit natural law physical requirements which define the difference between a ‘citizen’ (either born with dual U. S./foreign citizenship or naturalized with singular U. S. citizenship) and a “natural born Citizen” (born with only singular U. S. citizenship). Not every born U. S. ‘citizen’ is a U. S. “natural born Citizen”. That means that not every ‘citizen’ is eligible to be president. [End of comment]
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But modern Democratic political science discovered and promulgated the dogma that this is the country of the white man, and that no other man has rights here which white man is bound to respect. When, therefore, this peculiar science culminated in an attempt to overthrow the Government, and was itself overthrown, it is as well that a return to the principles of the founders of the Government should be made manifest to future generations by a declaration upon the statute-books.
The objection to this part of the bill is that it calls the negro a citizen. And why should it not? Civilized man must of necessity be a citizen somewhere. He must owe allegiance to some Government. There is some spot upon the earth’s surface upon which it is possible for him to commit treason. Now, the negro in America is civilized. Ask the minister of religion where he finds the most sincere devotion, the school-teacher where he finds the greatest desire to learn. Ask the very southern rebel, whose representatives are most earnest against the bill, where he found the most implicit and unquestioning obedience to law and order under circumstances hardly justifying the hope of obedience to law and order.
The American negro is civilized, and of necessity must owe allegiance somewhere. And until the opponents of this measure can point to the foreign Power to which he is subject, the African potentate to whom after five generations of absence he still owes allegiance, I will assume him to be, what the bill calls him, a citizen[*] of the country[*] in which he was born[*].
[* My comment about “citizen”, “country”, “born”]
Representative Broomall is obviously referring to ‘negro’ children born on the soil of which their parents were already recognized as living in the country to which their great-great-great-grandparents, etc., had been brought as slaves. Being naturalized by an act of congress or by amendment, the living parents and their children would be ‘legal’ ‘citizens’, not “natural born Citizens”. [End of comment]
Let those who say with the air of such omnipotent authority that this is the country of the white man, explain how it happened that the Ruler of the universe suffered it to be occupied by the red man for countless ages of the past. And then let them say, if they know, whether it may not be His purpose to suffer some small portion of it to be occupied by the black man for countless ages of the future. No, our country is the country of its inhabitants. Our Government the Government of the governed.
But there is another class of persons born within the limits of the United States whose status requires fixing by legislation. I allude to those who took upon themselves the responsibilities and duties of allegiance to another power; who forswore their citizenship and allegiance. There is nothing in our form of government, nothing in our institutions that contradicts the right of expatriation. True, that right is not anywhere expressly granted, but our naturalization laws are founded upon the idea that such right is inherent in men, and I believe this is true.
Most certainly if the confederation [i.e., the rebel] had sustained itself its citizens would have ceased to be citizens of the United States, and by a process that would have related back to the very commencement of the rebellion. Now, the fact that it did not sustain itself was the result of no merit of these men. They did all they could to succeed. As far as intention is con-
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cerned the condition of expatriation is complete. [snip]
A question might naturally arise whether we ought again to trust those who have once betrayed us; whether we ought to give them the benefits of a compact they have once repudiated. …. [snip]
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But the election must be made. Some public legislative act is necessary to show the world that those who have forfeited all claims upon the Government are not to be held to the strict rigor of the law of their own invoking, the decision of the tribunal of their own choosing; that they are to be welcomed back as the prodigal son whenever they are ready to return as the prodigal son.
The act under consideration makes that election. Its terms embrace the late rebels, and it gives them the rights, privileges, and immunities of citizens of the United States, though it does not propose to exempt them from punishment for their past crimes.
But it is said by the minority in this body that we have no right under the Constitution to pass the law; that the General Government was never intended to be intrusted with the power to protect individual persons; that that was to be left to the States. What, then, does the preamble mean? An ordinary reader would look there for the object and intent of the document:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
This certainly has the appearance of being designed to protect the rights of individuals within as well as beyond the jurisdiction of the Government. Yet, strange as it may seem, while the Government has been always held competent to protect its meanest citizen within the domain of any European potentate, it has been considered powerless to guard the citizen of Pennsylvania against the illegal arrest, under color of State law, of the most subordinate officer of the most obscure municipality in Virginia. ….
If the Government has not the power, by appropriate legislation, to protect its citizens within as well as without its jurisdiction, I would like to know what the eighth section of the first article of the Constitution means when it empowers Congress to provide for the general welfare of the United States, and when it empowers Congress to pass all laws necessary for that purpose. Does it not pertain to the “general welfare” that “the citizens of each State,” in the language of the second section of the fourth article of that instrument, “shall be entitled to all privileges and immunities of citizens in the several States?”
But throwing aside the letter of the Constitution, there are characteristics of Governments that belong to them as such, without which they would cease to be Governments. The rights and duties of allegiance and protection are corresponding rights and duties. Upon whatever square foot of the earth’s surface I owe allegiance to my country, there it owes me protection, and wherever my Government owes me no protection I owe it no allegiance and can commit no treason. In the very nature of things this position is incapable of being overthrown, and while it stands it demonstrates not only the right but the duty to protect American citizens by appropriate legislation.
An unexpected argument has been adduced by the leader of the Opposition in this body, [Mr. ROGERS,] that this bill will permit the negro to vote in the several States of the Union. It is rather ludicrous than otherwise that the committee having it in charge have agreed to put in a provision to quiet the alarm of the opposite party. I am willing to concede of late that if the Democrats are to be kept above the negroes in the social scale there must be some discriminating legislation in their favor. I used to think the white man a better man than the negro, but an experience of three winters south of Mason and Dixon’s line has partly satisfied me that this depends somewhat upon the white man’s politics.
Does not the gentleman from New Jersey [Mr. ROGERS] know that the Constitution of the United States fixes the qualification of voters among its citizens? Does he not know that without a change of that instrument Congress cannot extend the right of suffrage in the States? The bill declares women and children citizens, yet it did not occur to the gentleman that this might make them electors.
Let me now ask our opponents upon this floor, and in other departments of the Government, how they propose to protect the citizens of the United States within the dominion of the United States. They will surely not deny the duty. They will not say that we have a Government for the purpose of allegiance and for the punishment of treason, but none for the protection of the citizen.
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Will they say that the rights of citizens of the United States can be safely intrusted to the governments of the several States? If this were true it might afford some excuse for neglecting to provide the appropriate legislation, but none for refusing it. But it is not true. For thirty years prior to 1860 everybody knows that the rights and immunities of citizens were habitually and systematically denied in certain States to the citizens of other States: the right of speech, the right of transit, the right of domicil, the right to sue, the writ of habeas corpus, and the right of petition. It will be said that this state of things was owing to the existence of what we politely called “the peculiar institution,” but will it be said that with the disappearance of the peculiar institution this state of things also disappeared?
Within the jurisdiction of the United States there never was a time when more black freemen, citizens of the United States, were enslaved without even the color of law, and denied the right to process of law to test the validity of the claim of those who pretend to own them. There never was a time when more black freemen, citizens of the United States, were kidnapped and sold into other countries against positive law, and yet denied the process of law to enforce the right and to avenge the wrong.
But the opponents of this bill have one answer to all appeals for justice against this species of wrong—an answer furnished from the political speeches of the judges of the Supreme Court of the United States on the occasion of their assembling to celebrate the election of James Buchanan, called in mockery their decision in the Dred Scott case: “A negro has no rights which a white man is bound to respect.”
As my object is to satisfy our political opponents of the necessity of the pending measure, I choose to admit the force of this answer. Yet I might say with truth that American statesmanship could go no further in that direction; that even Democracy could assume no meaner position. But are the evils complained of limited to the black man? While I would blush if I could admit that that fact, if acknowledged, would in any degree lessen the necessity for the passage of this law, I nevertheless maintain and hold myself ready to prove that white men, citizens of the United States, have been, and are now being punished under color of State laws for refusing to commit treason against the United States at the bidding of Democratic candidates for the Presidency; that white men, soldiers of the Republic, have been arraigned in State courts, under State laws, for the crime of shooting down traitors on the field of battle by the command of their military superiors, and only saved from being hanged, on conviction of murder, by the interposition of that branch of the military forces of the Government known as the Freedmen’s Bureau. I maintain further, that white men, citizens of the United States, have been driven from their homes, and have had their lands confiscated in State courts, under State laws, for the crime of loyalty to their country, and that now they are begging in vain for a redress of wrongs in the courts of the reconstructed South.
Our political opponents will not deny these allegations. They are fully conscious of the state of things existing at the South. They know that there loyalty is the crime and treason the virtue; not throughout the entire country, because there are honorable exceptions, but throughout more than half of the eleven States lately in rebellion.
The very fact that the President of the United States, armed with the war power, is now annulling legislative enactments in those States, quashing the decrees of courts, and standing guard over the rights of the loyal people, is conclusive proof, binding upon the entire Democratic party, that citizens of the United States need the protection of the Government in the several States of the Union.
Mr. WRIGHT. I rise to a question of order. I believe that the subject under discussion is, “An act to protect
all persons in the United States in their civil rights, and furnish the means of their vindication.” I have looked over the bill carefully and have failed to find in it one word about either the Democratic party or the Republican party—“copperheads” or “niggerheads”—and the gentleman is talking wide of the mark if he means to apply his epithets to the constituency I have the honor to represent.
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The SPEAKER. The last part of the remarks of the gentleman from New Jersey [Mr. WRIGHT] are certainly not in order. The Chair overrules the point of order. The Chair thanks that the gentleman from Pennsylvania is con-
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fining himself to the bill, which is very wide in its range, proposing to protect all persons in the United States in their civil rights and furnishing the means of their vindication. The Chair thinks the gentleman is not indulging any undue latitude of discussion. [snip]
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Mr. RAYMOND. Mr. Speaker, I have no intention of following the gentleman who has just taken his seat [Mr. BROOMALL,] in his discursive remarks upon the general question of reconstruction, nor have I any purpose of discussing the bill itself at any length, or with any amplification of argument in regard either to its general scope or to its details. …. [snip]
The bill proposes two things: 1. To declare who shall be citizens of the United States, and to declare that all shall be citizens without distinction of race, color, or previous condition of servitude, who are, have been, or shall be born within the limits and jurisdiction of the United States. 2. To provide for that class of persons thus made citizens protection against anticipated inequality of legislation in the several States.
Both of these provisions are of the utmost possible importance. I am thoroughly and heartily in favor of both, and I shall vote for both if I can convince myself or if others can convince me that they fall within the powers conferred upon Congress by the Constitution and are demanded by the emergency of the occasion. I have endeavored to separate the two, and in the substitute which I have offered. I have endeavored to provide thoroughly by the assertion of a great fundamental principle for the attainment of the first of these objects. The substitute which I have offered declares—
That all persons born, or hereafter to be born, within the limits and under the jurisdiction of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States, and entitled to all rights and privileges as such.
That is the enunciation of a great principle which ought, and which under ordinary circumstances, would, secure to every citizen thus introduced into citizenship ample and full protection in all the rights guaranteed to every other citizen. It is not worth while, indeed I have no desire, to conceal the fact that the special object of that substitute, as indeed the special object of the bill, is to introduce into American citizenship the four million persons just emancipated from a condition of slavery. I do not know that any bill is necessary for that purpose. I am inclined to think that none is necessary; that the moment the disabilities imposed upon them by the condition of servitude were removed, that moment they became, by virtue of that act, citizens of the United States, and are to-day entitled to all the rights, privileges, and immunities of citizenship. But we all of us know that this point has been doubted, has been denied in courts, in legislative halls, and in the executive department of the Government. It has been asserted repeatedly, and decisions are on our records to that effect, that they are not citizens because they are of the African race.
Now, sir, the proposition that I have introduced proposes to declare, in behalf of Congress and by exercise of whatever power belongs to Congress to accomplish that purpose, that they are citizens, and shall be regarded as such from this time forward. Some question has been raised as to the power of Congress to pronounce such a decision. It has been said that the only clause in the Constitution that confers upon Congress any power in regard to citizenship is that clause which empowers Congress to establish a uniform rule of naturalization, and the point has been taken here that that means simply to provide for the naturalization of aliens. I confess my mind has not been wholly clear as to the legal scope of that clause. I know that jurists of high repute and courts of great authority have thus restricted the meaning of the term “naturalization.” But, sir, if that be so, and if there be no other power conferred upon Congress to declare who shall be citizens of the United States, it introduces a curious anomaly into our system of government. All the laws which Congress has made in regard to naturalization have in them the word “white.” They are confined in their operations to whites alone. Congress has up to this time passed no law for the naturalization of anybody but free white persons coming from a foreign country.
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Now, I suppose no one doubts that Congress might have left out the word “white” if it had seen fit, and that Congress might today pass a law to naturalize any colored alien coming to our shores. I take it that is universally conceded. Now, if Congress may naturalize a colored alien and cannot naturalize a colored native, we have colored aliens enjoying advantages that native colored persons cannot enjoy; the one class may be made citizens by act of Congress, and the other is absolutely debarred from it. Is it possible that the Constitution ever intended a distinction so invidious? It seems to me not. There is no reason for supposing that the Constitution ever contemplated or intended to confer power upon Congress to do for the alien what it could not do for one of its own native-born citizens.
I am inclined to think, therefore, that the word “naturalization” may very properly, so far as legislative purposes are concerned, be construed in a larger and more liberal sense; that we may fairly regard the power of naturalization conferred on Congress as ample, and as including the power to introduce into citizenship those who are now excluded from it, whether native or alien born.
But not to dwell upon that point—for I am not prepared to argue it in detail—even if that cannot be done by the direct authority of Congress conferred in that clause of the Constitution, I do not see where we get any authority to except these native-born Africans from the general rule of law that all born upon the soil are subjects or citizens of the Government. That is the rule in England, it is the rule in France, it is, and always has been, the rule in this country. There are only two classes of citizens, so far as I can detect, provided for in the Constitution of the United States. In the second article, I think, it is declared that none but a “natural-born citizen” shall be President of the United States. That clause, and the one relating to naturalization, implying that there may be naturalized citizens, are the only two clauses designating the classes of citizens within the contemplation of the Constitution of the United States.
Now, where is the authority to except the native-born African from the application of the general rule of law that every native shall be a citizen of the country on whose soil he is born? Is there anything in the Constitution which excepts him? Is there anything implying or conferring on Congress the power to except him? I cannot find it. I can find no such power conferred, and no such power has ever been exercised. [snip]
Sir, the right of citizenship involves everything else. Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States under the laws and Constitution of the United States. He has the right of free passage from one State to another, any law in any State to the contrary notwithstanding. He has a defined status; he has a country and a home; a right to defend himself and his wife and children; a right to bear arms; a right to testify in the Federal courts; he has all those rights that tend to elevate him and educate him for still higher reaches in the process of elevation. [snip]
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HOUSE OF REPRESENTATIVES
March 9, 1866
RIGHTS OF CITIZENS
The House, agreeably to order, resumed the consideration of the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication;” on which Mr. WILSON, of Iowa, was entitled to the floor.
Mr. WILSON, of Iowa. I yield thirty minutes of my time to the gentleman from Ohio, [Mr. BINGHAM.]
Mr. BINGHAM. Mr. Speaker, it may be said that the objections which I deem it to be my duty to urge against the passage of the bill pending before the House apply to the instructions I have introduced by way of amendment to the pending motion to recommit; …. [snip]
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Mr. Speaker, on that subject I beg leave further to say, that although the objections which I urge against the bill must, in the very nature of the case, apply to the proposed in-
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structions, I venture to say no candid man, no right-minded man, will deny that by amending as proposed the bill will be less oppressive, and therefore less objectionable. Doubting, as I do, the power of Congress to pass the bill, I urge the instructions with a view to take from the bill what seems to me its oppressive and I might say its unjust provisions. [snip]
Having said this much, Mr. Speaker, I proceed to present to the consideration of the House my objections to the bill. … I know that the enforcement of the bill of rights is the want of the Republic. I know if it had been enforced in good faith in every State of the Union the calamities and conflicts and crimes and sacrifices of the past five years would have been impossible.
But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the Republic within every organized State of the Union, is of the reserved powers of the States, to be enforced by State tribunals and by State officials acting under the solemn obligations of an oath imposed upon them by the Constitution of the United States. Who can doubt this conclusion who considers the words of the Constitution: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?” The Constitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizen in the States, nor does it prohibit that power to the States, but leaves it as the reserved power of the States, to be by them exercised. The prohibitions of power by the Constitution to the States are express prohibitions, as that no State shall enter into any treaty, &c., or emit bills of credit, or pass any bill of attainder, &c. The Constitution does not prohibit States from the enactment of laws for the general government of the people within their respective limits.
Mr. Speaker, I would further remark in this connection, I honor the mover of this bill for the purpose he seeks to attain, which is to compel the exercise in good faith by the States of this reserved power. I cast no reflection upon the honorable committee of this House, in seeking to remedy, if possible, the great wrongs that have hitherto been inflicted upon citizens of the United States, I may say in almost every State of the Union, by State authority, and inflicted, too, in the past, without redress. I am with him in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country.
Has the Congress of the United States the power to pass and enforce the bill as it comes to us from the committee? Has the Congress of the United States the power to declare, as this bill does declare, in the words which I propose to strike out, that there shall be no discrimination of civil rights among citizens of the United States in any State of the United States, on account of race, color, or previous condition of slavery.
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born[*] within the jurisdiction[*] of the United States of parents[*] not owing allegiance to any foreign sovereignty[*] is, in the language of your Constitution itself, a natural-born citizen[*]; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him. But while this is admitted, can you declare by congressional enactment as to citizens of the United States within the States that there shall be no discrimination among them of civil rights?
What are civil rights? I know the learning and ability of the honorable chairman of the Judiciary Committee, [Mr. WILSON.] It was my good fortune to be associated with him two years on that important and responsible committee, and I take pleasure in bearing witness to-day to the integrity, fidelity, and ability with which he discharged all his duties. I respectfully submit to that gentleman, that by all authority the term “civil rights” as used in this bill does include and embrace every right that pertains to the citizen as such. [snip]
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[* My comment about born, jurisdiction, United States, parents, foreign sovereignty, natural-born citizen]
Representative Bingham uses the word “declaratory” when referring to “jurisdiction” of the “United States” of “parents” with [only singular] U. S. “allegiance” makes it clear what “natural-born citizen” means in this context of birth on U. S. soil to two citizen parents. Both parents must be U. S. citizens, not “foreign” citizens, before a child is born on U. S. soil. Although the context of Representative Bingham’s conclusion is about the 1868 Fourteenth Amendment and not about the 1787 Article II eligibility to be president and is only about a child born a U. S. ‘citizen’ with two U. S. citizen parents who have only singular U. S. allegiance, his conclusion concurs with John Jay’s implicit original genesis intent for underlining the word “born” in “natural born Citizen” for eligibility to be president in his note to George Washington. A “natural born Citizen” (upper case “C”) with only singular U. S. citizenship by birth alone is the only ‘citizen’ who is eligible to be president.
born → a natural law (law of nature) word
within → a positive law (law of people) word
the jurisdiction → positive law authority word about a nation and its realm – soil – territory
of parents → natural law implies positive law plural
not owing allegiance → positive law word implying the two parents have only singular allegiance
to any foreign sovereignty → “any” is a positive law word implying no, none, never, ever is, in the language of your Constitution itself,
a natural-born citizen → natural law ‘birth’ is the source of positive law ‘citizen’ [End of comment]
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IN SENATE
March 27, 1866
CIVIL RIGHTS—VETO MESSAGE
During the discussion of the case of Mr. Stockton the following message was received from the President of the United States by Mr. W. G. Moore, his Secretary:
Mr. President, I am directed by the President of the United States to return to the Senate, in which House it originated, the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” with his objections thereto in writing. [snip]
Mr. TRUMBULL I move, then, that the Senate proceed to the consideration of the message from the President returning the civil rights bill, with his objections. [snip]
The PRESIDENT pro tempore. The subject is before the Senate, and the message will be read.
The Secretary read the message, as follows:
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 cannot 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.
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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 these persons any 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 [*#1] 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 cannot be necessary to make them such. If, on the other hand [*#2], 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 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.
[* My comment about President Andrew Johnson’s two ‘if’ points: (*#1) “If, as is claimed … all persons … native-born … are ... Constitution, citizens”; (*#2) “If, on the other hand, such persons are not citizens”]
Notice that President Andrew Johnson, in his March 27, 1866 veto of the proposed civil rights act, he uses “if” twice: (#1) If persons are already “native-born” the civil rights act is not necessary; (#2) If it is legally true that the persons are not already recognized as “native-born” then the “proposed legislation” will “make” them citizens.
The first “if, as is claimed...” reveals that, as President of the Union, Andrew Johnson is not opining, he is not affirming or denying that the words “native-born” imply that “Constitution, citizens” is a reference to only singular U. S. citizenship by birth alone to two U. S. citizens, (or even ‘birthright citizenship’), and he is not also affirming or denying that “native-born” applies to children born to one ‘parent’ who is not a U. S. citizen (→ “one” as the 1868 Fourteenth Amendment would eventually be applied 30 years later), or to two ‘parents’ who both are not U. S. citizens (→ “two” as the 1898 Supreme Court would eventually opine and, by fiat – because we said so – opinion, the Court would naturalize Wong Kim Ark, an alien child, and, tacitly, all future children born on U. S. soil to foreign born alien parents).
The second “if, on the other hand” reveals that in 1866 some people who had already been born on U. S. soil are not recognized as being “native-born” by birth alone, and need to be ‘made’ citizens. [End of comment] [snip]
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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 have “full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none 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,
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over the vast field of State jurisdiction covered by these enumerated rights. In no one of these can any State ever exercise any power of discrimination between the different races.
In the exercise of State policy over matters exclusively affecting the people of each State, it has frequently been thought expedient to discriminate between the two races. By the statutes of some of the States, northern as well as southern, it is enacted, for instance, that no white person shall intermarry with a negro or mulatto. Chancellor Kent says, speaking of the blacks, that “marriages between them and the whites are forbidden in some of the States where slavery does not exist, and they are prohibited in all the slave holding 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 cannot, 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 anything but gold and silver a legal tender. But where can we find a Federal prohibition against the power of any State to discriminate, as do most of them, between aliens and citizens, between artificial persons called corporations and natural persons, in the right to hold real estate?
If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal in the same way all State laws discriminating between the two races on the subjects of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally, to vote “in every State and Territory of the United States.” As respects the Territories, they come within the power of Congress, for as to them, the 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.
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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 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 could 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 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 guaranties 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 cannot 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 State judge, who, in the clear exercise of his functions as a judge, not acting ministerially, but judicially, shall decide contrary to this Federal law. In other words, when a State judge, acting upon a question involving a conflict between a State law and a Federal law, and bound, according to his own judgment and responsibility, to give an impartial decision between the two, comes to the conclusion that the State law is valid and the Federal law is invalid, he must not follow the dictates of his own judgment at the peril of fine and imprisonment. The legislative department of the Government of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer, bound to decide according to the will of Congress.
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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 ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming 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,
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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 cannot, 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.”
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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 reasonably 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 had 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 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, toward 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.
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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 cooperate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process under equal and impartial laws, in conformity with the provisions of the Federal Constitution.
I now return the bill to the Senate, and regret that in considering the bills and joint resolutions—forty-two in number—which have been thus far submitted for my approval, I am compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress.
ANDREW JOHNSON
WASHINGTON, D. C., March 27, 1866 [snip]
Mr. HENDRICKS. I move that the Senate adjourn.
The motion was agreed to; and the Senate adjourned.
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IN SENATE
April 4, 1866
REPRESENTATION OF SOUTHERN STATES
Mr. STEWART. I desire to take up Senate joint resolution N. 48, setting forth certain conditions upon which the States, the people of which have been lately in rebellion against the United States, shall be restored to their representation in Congress. I move to discharge the committee of fifteen from its consideration, and to make the resolution the special order for to-morrow at one o’clock.
The PRESIDENT pro tempore. The joint resolution is in the hands of the committee of fifteen. The Senator from Nevada moves that the committee be discharged from the further consideration of that resolution.
Mr. STEWART. I wish to make a few remarks on that motion. The importance of this subject must be my excuse for calling the attention of the Senate to it at this time.
The Senate are aware that I have from time to time since Congress convened alluded to the fact that we were in a false position by reason of having no plan before the country by which the Union might be restored. The country is anxious that Congress shall say what it will
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do. Every person who has taken any pains to understand the public feeling on this question must realize that to the fullest possible extent. There is no avoiding the responsibility, and it has come to a pass where time is the essence of the entire transaction. We must not only have a plan, but we must have a plan speedily, or it will avail nothing.
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I was told constantly when I complained that no person produced a plan, and I was told in rather a derisive manner, “You produce a plan.” I studied for a long time what I conceived to be the sentiment of the country, and without regard to preconceived notions, without regard to my own preferences one way or another, I endeavored to produce a plan which should embody the principles of mercy and justice, and as far as possible reflect the sentiment of the country.
The outside world is not saying that Congress does not intend to adopt this or any other plan; and although I repudiate the charge as without the slightest foundation it is still constantly charged in the public press that there is no sincerity in this matter on the part of Congress; that the only object in pretending to be for some plan of restoration is to use Senators and Representatives for other purposes. This I repudiate; but still I cannot avoid feeling the absolute necessity resting upon me to do all in my power to secure a plan on which we can go before the country. Union men everywhere say to us, “We cannot approve of the President’s plan altogether, but we want some other plan; what is your plan? Is it true that you are seeking a dissolution of the Union? Is it true that you will not consent to any proposition for restoration? Is it true that you will not allow the Union to be restored upon any terms?” Every man who goes out from here to talk to the people has got to pledge his honor that such is not the fact, or they will not hear him. I and other speakers have pledged our honors that congress would act, and that speedily, on this important question.
It is also important that whatever plan be adopted, shall be an entirety and shall cover the whole subject. Isolated propositions will not answer the purpose. In almost every scheme it happens that there is something good which we like, and that there is at the same time something in it that we do not like, but which we vote for in order to get the good the bill contains. Very few bills pass this House or the other where each member approves of all their provisions, but he is willing to take the good with the evil. In order that any plan shall be adopted here, it is necessary that it shall contain every proposition essential to a final settlement, and then it can be sustained not only here but elsewhere.
The proposition which I have presented in the resolution—I speak not of its entire details but of its general sentiments—has been indorsed by every leading Union newspaper throughout the North, except, perhaps, the New York Times, and I do not know that it has taken any ground one way or the other. The great body of the leading Union newspapers of the North have indorsed it because it looks to a final settlement of the question; and I have received, and other members of Congress have received, hundreds of letters urging that this or some kindred plan be adopted which will put an end to our troubles and show the country that we are willing that the Union shall be restored upon some terms. I do not believe that any one single isolated proposition which does not look to a finality can be adopted here or elsewhere; but I believe that any liberal and just plan which concludes all the questions and gives us peace can be adopted and will be satisfactory to the country.
Since this resolution was first introduced the discussion regarding the difficulties that might arise under it has suggested to me some modifications; and after consultation with leading Union men, whom I believe to be sincere in their endeavors to bring about harmony and concord and have a final settlement, I have been led to make some changes, not in the general principles, but in the mode of arriving at the conclusion. I will read the essential portion of the plan. The preamble and the last resolution are unnecessary. The essential portion of the plan is contained in the two sections of my proposed constitutional amendment. The first section reads as follows:
SEC. 1. No discrimination in civil rights and disabilities, nor in the exercise of the elective franchise, shall exist among the population of the United States (Indians not taxed excepted) on account of race, color, or previous condition of servitude; but in case of restrictive qualifications by the States, this provision shall not work disfranchisement of any persons now entitled to vote.
This constitutional amendment places those who are to vote hereafter upon the same footing without regard to color. However man may feel with regard to the abstract question of negro suffrage, all must concur that restrictions may be imposed under this section that will so regulate the question of suffrage that no injury will result to the country. If the States wish to impose an educational test they can educate their young men up to it, and it is a slander upon the white man to say that he cannot compete with the negro under any reasonable test so as to maintain the Government intact. This provision avoids all the great objections that were made to enfranchising the negroes en masse, and provides a chance to all those who are to come after us to rise in the scale of humanity alike.
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The second section of this constitutional amendment reads as follows:
SEC. 2. Obligations and liabilities incurred in aid of insurrection or rebellion, and claims for compensation on account of emancipation of slaves, are void, and shall not be assumed nor paid by any State or the United States.
Some may say that this provision is unnecessary, but it will place a question that has been agitated at rest and benefit our national finances and save future agitation upon the question. Then there is one other section essential to the plan to popularize it, and that is in a joint resolution, not constitutional amendment, in this form:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever any one of the eleven States whose inhabitants were lately in insurrection, through its Legislature, having been first authorized so to do by a popular vote of its present electors, including all who would be qualified to vote under the laws thereof as the existed in 1860, shall have ratified the foregoing amendments to the Constitution of the United States, and shall have modified its constitution and laws in conformity therewith, then, and in that case, such State shall be recognized as having fully and validly resumed its former relations with this Government, and its chosen representatives shall be admitted into the two Houses of the national Legislature, and a general amnesty shall exist in regard to all persons in such State who were in any way connected with armed opposition to the Government of the United States, wholly relieving them from all pains, penalties, or disabilities to which they may have become liable by reason of their connection with said insurrection.
That is all that there is essential in the entire plan. It provides for every question that has been raised. It provides for the question of the representation of the southern States; because, if the suffrage is extended to all, then it is proper that representation shall be based upon the entire population. It therefore disposes of all the questions connected with changing the basis of representation; and I tell you that there is more prejudice against changing the fundamental basis of representation which exists by the compromises of the Constitution, than there is to extending civil and political rights to the blacks, under such terms as shall not inure or impair the efficacy of the Government. Such a proposition will be harder to pass; and when you have done it, what have you accomplished?
The advantage of this plan is that it submits a proposition to the South for their voluntary action; and let me here remark that I am thoroughly satisfied that, whatever we may do to protect the negro, if it is done otherwise than by the voluntary action of the South, unless we can offer them inducements to accomplish it, it must result in one of two things. If you protect the negro by force, in a hostile country, you are inevitably driven to the necessity of destroying his enemies, and that involves the enslavement and final extermination of the whites of the South. There is nothing more certain than that; and in that the best minds of the North concur. If you do not resort to the voluntary action of the South, but leave the negro as he is, then you may be charged, and justly, with having violated your pledges. Force must ultimately result in the extermination of either the blacks or the whites. While I am upon this point, I do not think I can state it as clearly and as forcibly as it has been already stated by an able statesman, John A. Andrew, of Massachusetts; and I desire to read a letter from him on the subject. I will read you, also letters from the South, to show you that the opinion of thinking men is not so far apart but that if we rest upon a just basis we can come together. I must read this letter of Mr. Andrew; it is worthy to be read, and to be preserved, and to become a part of the records of this country, because it is patriotic, short, concise, comprehensive. It emanates from a man who thinks. It is as follows:
Boston, March 20, 1866
MY DEAR SIR: I have read with great satisfaction and interest the resolutions proposed by you last week in the Senate concerning the reorganization of the States lately in rebellion.
If it was convenient to do so at this moment I might, perhaps, take the liberty of writing you a some length, but it is enough for my present purpose to declare my hearty sympathy with the general design and plan they indicate.
I beg you will allow me to call your attention to a copy of a valedictory address delivered to the General Court of Massachusetts on the 4th of January last, in which, with some elaboration, I attempted to discuss the same general subject, and, if I correctly understand the resolutions you offered in the Senate, I think that you and myself are in entire agreement.
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Now comes the important part of the letter, and I call on Senators to reflect upon the axioms that are here laid down.
It seems plain to me that the colored men must be invested with the rights, both political and civil, which pertain to citizenship, according to laws which shall impart political honors according to capacity and desert [‘worthiness, deserving’, i.e., ‘just deserts’], and not according to descent or the accidents of birth, or else they must be exterminated. I think that the former rebels must be reinstated in their political rights, or they must be exterminated. I think, also, that the same body of voters in each State who carried it out into rebellion must bring it back again into loyalty. An other “reconstruction” is dangerous and delusive. I pray you to excuse both the brevity of this note and liberty I take in expressing opinions so explicitly, and believe me, faithfully your friend and servant.
JOHN A. ANDREW.
HON. WILLIAM M. STEWART
United States Senate, Washington, D. C. [snip]
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CIVIL RIGHTS—VETO MESSAGE
The Senate proceeded to reconsider the bill (S. No. 61) to protect all persons in the United States in their civil rights and furnish the means of their vindication, returned by the President of the United States with his objections.
The PRESIDENT pro tempore. This bill having been returned with the objections of the President of the United States, the bill is now to be reconsidered; and the question is, Shall the bill pass, the objections of the President notwithstanding?
Mr. TRUMBULL. Mr. President, I fully share with the President of the United States the regret expressed that he was unable to sign the bill “to protect all persons in the United States in their civil rights, and secure the means of their vindication.” I regret it on my own account, because the just expectations raised when this bill was presented to the President before its introduction into the Senate have been disappointed. I regret it on the President’s account, because it is calculated to alienate him from those who elevated him to power, and would gladly have rallied around his Administration to sustain him in the principles upon which he was elected. But above all, sir, I regret it for liberty’s sake, to secure which to ourselves and our posterity this Government was founded. Yet, if the bill is unconstitutional or unjust to the whole people, I would not have had the President approve it. That its provisions are not unjust to the whole or any portion of the people, not unconsti-
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tutional, I shall endeavor to show by a candid and dispassionate examination of the President’s various objections.
He begins these objections with the very first lines of the bill, which declare that “all persons born in the United States, and not subject to any foreign Power, (excluding Indians not taxed,) are citizens of the United States.” The bill as originally introduced did not contain this provision. It was believed by myself and many others that all native-born persons since the abolition of slavery were citizens of the United States. This was the opinion of Mr. Bates, the Attorney General during Mr. Lincoln’s Administration, the opinion adopted by his Administration and acted upon since by all departments of the Executive Government, including the Secretary of State, who has issued passports to persons of color recognizing them as citizens. It was the opinion expressed by Mr. Marcy when Secretary of State that all persons born in the United States were citizens of the United States, not referring, of course, to slaves, slavery at that time existing in the country. The president does not object to this declaration in the bill as unconstitutional. He does, however, say that—
“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.”
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We all know that no State has authority to make a citizen of the United States. The Constitution of the United States vests in Congress the sole power of naturalization, and it may make a citizen of a foreigner; but 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 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.”
Mr. JOHNSON. From what page does the Senator read?
Mr. TRUMBULL. Sixth Peters, page 762. This was the only point in the case. And, sir, unless this authority is to be disregarded, the President of the United States is mistaken in his law, and it is not true that when a man is made a citizen of the United States he is not also a citizen of any State where he may choose to reside.
The President next tells us that—
“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.”
This 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, and which will show that the President’s facts are as bad as his law. If the Senator from Maryland [Mr. JOHNSON] wishes to take a note of the authorities he will find in Lawrence’s Wheaton on International Law the various statutes of the United States referred to upon this subject. I read from page 897 of that work:
“There have been in the United States several cases of collective naturalization by annexation of territory. By the third article of the first convention of April 30, 1800, with France, for the cession of Louisiana, it is provided that the inhabitants of the ceded territory shall be incorporated into the Union of the United States, and admitted, as soon as possible, according to the principles of the Federal Constitution to the enjoyment of the rights, advantages, and immunities of citizens of the United States. (Statutes-at-Large, vol. 8, p. 202.) A provision to the same effect is to be found in the sixth article of the treaty of 1819, with Spain, for the purchase of the Floridas. (Ib., p. 256.) By the eighth article of the treaty of 1848, with Mexico, those Mexicans who remained in the territories ceded, and who did not declare their intention within one year to continue Mexican citizens were to be deemed citizens of the United States. (Ib., vol. 9, p. 930.) By the annexation of Texas, under a resolution of Congress of March 1, 1845, and its admission into the Union on an equal footing with the original States, December 29, 1845, all the citizens of the former republic became, without any express declaration, citizens of the United States. (Ib., vol. 5, p. 798; vol. 9. p. 108.)”
Again, at page 899:
“A collective naturalization may also take place of a class of persons, natives of the country or otherwise, and who, without any act on the part of the individuals, may be citizens.” * * * * *
“In the United States it is incorrect to suppose that alien, as opposed to citizen, implies foreigner as respects the country. Indians are the subjects of the United States, and therefore are not, in mere right of home birth, citizens of the United States. Nor can they become citizens under the existing naturalization laws, but they may be made citizens by some competent act of the General Government by treaty or otherwise.” * * * * * *
“By the treaty of September 27, 1830, provision is made for such heads of families of the Choctaws as desire to remain and become citizens of the United States. (Statutes-at-Large, vol. 7, p. 335.)
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There is also a provision in the treaty of December 29, 1835, with the Cherokees in reference to such individuals and families as are averse to a removal west of the Mississippi, and are desirous to become citizens of the States where they reside. (Ib., p. 483.)
By the act of March 3, 1843, it is provided that, on the completion of certain arrangements for partitioning the lands of the tribe among its members. ‘the Stockbridge tribe of Indians, and each and every of them, shall be deemed to be, and from that time forth are hereby declared to be citizens of the United States to all intents and purposes, and shall be entitled to all rights, privileges, and immunities of such citizens.’ (See Statutes-at-Large, vol. 5, p. 647.)”
By these various treaties, resolutions, and acts of Congress, it will be observed that Frenchmen and Spaniards, Mexicans and Indians, have at different times been made citizens of the United States; and among them some of the very classes of persons mentioned in this bill; and yet the President tells us that this right of Federal citizenship is now for the first time proposed to be given by law.
“If,” says the President, “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 cannot be necessary to make them such.”
That is true; but is the President to learn now for the first time that rule to be found in the very horn-books of the law, that an act declaring what the law is, is one of the most common of acts passed 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. My opinion is, such was the opinion of the Attorney General, such the opinion of the present Secretary of State, such the opinion of the present Secretary of State, such the opinion of Mr. Lincoln’s Administration in all its departments, such I believe to be the prevailing opinion in the United States, that all native-born persons not subject to a foreign Power are by virtue of their birth citizens of the United States. But some dispute this; and hence for greater certainty it is proper to pass this law, and the fact of its being a declaratory act is now made a reason for disapproving it by a President.
“But if such is not the law,” says the President, “the grave question presents itself, whether, when eleven of the thirty-six States are unrepresented in Congress at the present time, it is sound policy to make our entire colored population and all other excepted classes citizens of the United States?” This is a standing objection in all the veto messages of the President, not urged, it seems, against all bills, for the President tells us in this message that he has signed some forty bills. Why is it made an objection to this bill? The President does not state it as an objection applicable to this particular bill. It is a general objection which he makes applicable alike to all bills; and if there is anything in it, no bill can pass the Congress of the United States till these States are represented here. Sir, whose fault is it that eleven States are not represented? By what fault of there 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.
Within a few days the President has issued a proclamation, not of peace, as the Senator from Nevada [Mr. STEWART] seemed to suppose, not a proclamation declaring that the rebellion is over, but that in certain States it is over. …. [snip]
Sir, States can only be represented through State organizations. The members of this body can only be elected by State Legislatures. Members of the other House can only be elected in pursuance of State laws. Hence, as preliminary to any representation of a State in either House of Congress, it must first be determined whether there is a State government, whether there is a State Legislature having authority to elect Senators, having authority to provide laws under which Representatives may be elected. There certainly was a time when there were no such Legislatures in any of these eleven States. There was a time when the only organized government in either of them was hostile to the United States, when every officer in it had abjured his allegiance to the United States and sworn allegiance to a government hostile thereto. Will anybody pretend that while the State government was in such hands it was entitled to representation in either House of Congress? If not, shall we not inquire whether it has passed out of such hands and into the hands of loyal men? And who but Congress is competent to make this inquiry? Mr. Lincoln, in the last speech he ever made, alluding to his plan of reconstruction, said:
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“I distinctly stated that this was not the only plan which might possibly be acceptable: and I also distinctly protested that the Executive claimed no right to say when or whether members should be admitted to seats in Congress from such States.”
Sir, this proposition that no bill is to be passed because certain States are unrepresented, when their being unrepresented is their own fault, would if sanctioned and acted upon be utterly destructive of the Government.
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
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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?
[* My comment about “bill proposes”, “make”, “citizen”, “born”]
Notice that Senator Trumbull uses the explicit words itemized above about the 1787 Constitution and the common law in America during the debates about civil rights for negroes in 1866 and inclusion of negroes as freeborn citizens in the 1868 Fourteenth Amendment. While not his intention, his explicit words also articulate an implicit understanding about the 1787 Constitution after the 1868 Fourteenth Amendment ratified the words about “born or naturalized … are citizens…”, an implicit understanding which continues today in the 2000s.
What is the “implicit understanding” which still applies in the 2000s?
1 – The words “the bill proposes” imply that something is not in existence… yet, because the “bill” has not been enacted… yet. It is not necessary to ‘propose’ in a “bill” what is already so under common law, or to ‘propose’ a “bill” to codify common law with an act of Congress or by an amendment to the constitution.
2 – The word “make” implies positive law (law of people), legislation language which does not exist… yet.
3 – The words about a “citizen” (a positive law word) who is made (a positive law word) when “born” (a natural law / law of nature word) on U. S. soil, the three words imply that a child has legal U. S. citizenship when born to U. S. citizens married only to each other in the 1787 era, not U. S. citizenship for the child if born to unmarried female U. S. citizens or married or unmarried female aliens.
If unmarried U. S. citizens were implied in 1866 and 1868, what was the common law in the 1700s-1800s, and how was it articulated in national newspapers, books, debates, etc., that a child was a U. S. ‘citizen’ when born to an unmarried U. S. female citizen, and, for that common law reason about a child born to an unmarried U. S. female, it was to be supposed (‘thought’ to be so) under the common law that a child born to married or unmarried female aliens was also a U. S. citizen even though the alien female had not naturalized as a U. S. citizen by marriage to a male U. S. citizen before a child was born on U. S. soil?
See, the common law in the 1700s-1800s was consistent when the positive law was based on natural law which can’t lie and can’t be nullified by either natural law or positive law. A positive law “bill” would not need to be proposed if the common law which was based on natural law was already understood to include that which was being proposed – children born to a married or unmarried U. S. female citizen (or a married or unmarried female alien) was already a citizen when born. Of course, if a child was born to a female U. S. citizen married to a male U. S. citizen, the child was already considered under the common law of that era to be a “natural born Citizen” by birth alone, and for that Article II reason was eligible to be president. However, eligibility to be president was not the point of the proposed 1866 civil rights “bill” or the 1868 amendment.
The natural law which can’t lie as the foundation of positive law which can be repealed, changed with another positive law, means that the word ‘born’ determines the legal status of the word ‘citizen’. The word ‘born’ is a natural law word; the word ‘female’ is a natural law word; the word ‘citizen’ is a positive law word.
To clarify the intent of connecting the words associated with natural law and positive law, consider the words used by Senator Trumbull about what was “suggested” by a Senator sitting behind him. [End of comment]
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[** My comment about “suggested”, “infant”, “citizen”, “before”]
Notice that the Senator sitting behind Senator Trumbull “suggested” something which is not explicitly stated in previous acts of Congress or the debates about the future 1866 civil rights act, and also not in the 1787 Constitution before or after the 1868 Fourteenth Amendment. If what was “suggested” was explicit in the text of previous acts of Congress or in the Constitution, it would not be “suggested” by a Senator. Right? It would be asserted as law, not “suggested” as a reason to continue debate.
Notice also that what the Senator “suggested” implies automatic ‘birthright citizenship’ by birth on U. S. soil to a male alien who has not naturalized. The question is about birth to whom and the marriage and citizenship status of the female. Is she a U. S. citizen or an alien? The positive law (law of people) idea of birth on U. S. soil to parents who are not U. S. citizens is not implicitly or explicitly found in the text of the civil rights act language which is being debated in 1866, not in the Constitution from 1787 to 1866, and is also not discussed in the debate about the future Fourteenth Amendment, proposed on June 13, 1866 and ratified on July 9, 1868 two years and one month later.
Consider this absurdity about recognizing a child to be a citizen if born on U. S. soil to alien parents. First is the quote by Senator Trumbull followed by my clarification of the absurdity.
“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?”
In 1866 the Senators implicitly articulated “birthright citizenship” thirty-two years before the 1898 United States vs. Wong Kim Ark Supreme Court, with a fiat (‘because we said so’) ‘opinion’, ‘naturalized’ a child born to alien parents. Naturalization is not an Article III responsibility, it is an Article I responsibility.
The word “suggested” is not a legal term and is not recognized as authoritative under the common law of the 1700s and 1800s. It is merely a recognition that if one thing is so, then another thing is so; the child by birth is a U. S. citizen before the father is a U. S. citizen by naturalization. The word “suggested” does not imply that the “if … then” implication was recognized under the common law, the common understanding about the status of the child in relation to the father. It was merely an observation of a legal absurdity not based on the common law of the 1700s and 1800s, or positive law, the written text enacted by Congress.
In conclusion, it is an absurdity to “suggest” that a child who is recognized as a legal U. S. citizen merely by being born on U. S. soil with the concomitant legal status of a ‘citizen’ who can vote for state and national offices, and, as neobirthers in the 2000s assert with a straight face, that the child is also eligible to be president of the United States. It is absurd for this common sense reason: this legal absurdity proposes that while the child is eligible to be president, the father who may naturalize after the child is born is not eligible to be president. This is absurd. Neither the father (the Article I naturalized by act of Congress father) nor the child (the Article III naturalized by Court opinion child) is eligible to be president.
This is why the 1898 Supreme Court decision about the citizenship status of Wong Kim Ark must be overturned to terminate ‘plop on to U. S. soil and drop a child’ ‘birthright citizenship’ immediately for children born on U. S. soil to alien parents.
The Senators stated the obvious. We can now see the obvious legal absurdity of “birthright citizenship” as sensibly articulated in 1866 by Senator Trumbull and “suggested” by the Senator sitting behind him. These debate words were recorded 32 years before “birthright citizenship” was inaugurated by the 1898 Supreme Court when, by Article III fiat (‘because we said so’) ‘opinion[, the Court naturalized Wong Kim Ark and all future children born on U. S. soil to parents who were not U. S. citizens before children were born. [End of comment]
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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 years ago, in reply to a message sent to this body by Mr. Buchannan, 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 this 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”
Mr. SUMNER and Mr. JOHNSON. Who was the Senator?
Mr. TRUMBULL. 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 also makes some other allusions in this veto message of a similar character. For instance, he speaks of the impropriety of marriages between whites and blacks, and then he goes on to say, “I do not say that this bill repeals State laws on the subject of marriage between the two races.” Then for what purpose is it introduced into this message? Not surely as an ad captandum argument to excite prejudice—the argument of a demagogue and a politician? Mr. Johnson could not do that, having condemned such “quibbles” in Mr. Buchanan.
The President further says:
“If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal, in the same way, all State laws discriminating between the two races on the subjects of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally, to vote, “in every State and Territory of the United States.’ ”
Perhaps the best answer I could give to this would be the answer of Andrew Johnson himself. He undertook to reorganize State governments in the disloyal States. When he did so, to whom did he extend the right of suffrage? To the blacks? No, sir; but he extended the right of suffrage to those who were authorized to vote under the laws of those States before the rebellion; and when urged to allow loyal blacks to vote, what was his answer? That he had no power; it was unconstitutional; but he has claimed and exercised the power to protect colored persons in their civil rights, and if it be true that protection in civil rights carries with it the right of suffrage, what becomes of the position which he assumed when he extended civil rights to the negroes that he had no constitutional power to extend to them the right to vote; that it was a right vested in the States with which he could not interfere?
But, sir, 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.
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[* My comment about “President … natural-born citizen … Senator or Representative … citizen”]
Notice that Senator Trumbull accurately differentiates between who is eligible to be president and who is not eligible, although that is not his point in the comment about civil rights and the political privilege of suffrage, the right to vote for state and federal office. Every U. S. “natural born Citizen” is a ‘citizen’, but not every ‘citizen” is a “natural born Citizen”. [End of comment]
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. Mr. Marcy, when Secretary of State, held that a citizen in a foreign country was entitled to the same protection that was extended by that Government to its own citizens. These rights belonging to the citizen, and known as natural rights, are defined by Blackstone in his definition of civil liberty to be:
“No other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient to the general advantage of the public. In this definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit.”
“The equality of rights is the basis of a common wealth” is said in a note to Kent, and Kent himself, in speaking of these rights, says:
“The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country to be natural, inherent, and inalienable.”
What are they? “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property;” and these are declared to be inalienable rights, belonging to every citizen of the United States, as such, no matter where he may be. [snip]
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IN SENATE
April 6, 1866
The PRESIDENT pro tempore. The Chair will again state that it is the duty of the Chair to call up the unfinished business of yesterday, which is the message of the President returning to the Senate the bill of the Senate No. 61, and the question is, Shall the bill pass, the objections of the President notwithstanding?
In the absence of any motion to postpone that, it is the duty of the Chair to bring it before the Senate. [snip]
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CIVIL RIGHTS BILL—VETO MESSAGE
The PRESIDENT pro tempore. The bill (S. No. 61) to protect all persons in the United States in their civil rights, and to furnish the means of their vindication, is now before the Senate; and the question is, Shall the bill pass, the objections of the President of the United States to the contrary notwithstanding?
Mr. WADE. I was nearly through the remarks I proposed to make on this sudden outbreak. … Apologists of the President, condescend to tell us what are the constitutions of these reconstructed States of yours. … The President says they are reconstructed States, with all the rights, powers, and immunities of States, and with a right to claim all the rightful relations of all the unseeded States. How does he know it? How do we know it? When a State is to be admitted into this Union, everybody knows the first thing is for that State, after it has been permitted to come in here by Congress, to furnish us with the constitution that the people themselves, unbiased by executive dictation, have adopted as the will of the people, that we may see whether it is republican, whether it squares with the Constitution of the United States, and whether it is proper for us to admit them here. Congress passes judgment upon it. It is not the President that admits States; it is the United States. The United States, says the Constitution of the United States in thundering tones, shall judge of these forms of government; not the President of the United States. It is Congress, the true representative of the sovereignty of this great nation, and it rests and abides nowhere else. The doctrine that yields everything to the Executive and nothing to Congress is the most slavish doctrine that was ever propagated in a Government pretending to be free. You cannot tell us to-day what the constitutions of these reconstructed States are; but you do know that they were not got up by a people free to act precisely as they wanted to act. They were under martial law, as I said before, under executive dictation, under the bayonet, and under the orders of your Executive Chief, promulgated to his subordinate officers to carry into effect. Do you say that an American constitution can be built upon such a foundation as that? [snip]
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The PRESIDENT pro tempore. The question is, Shall the bill pass, the objections of the President of the United States to the contrary notwithstanding? The question must be taken by yeas and nays. As many as are in favor of the passage of the bill will say “yea,” those opposed will say “nay,” as their names are called.
The Secretary proceeded to call the roll.
Mr. MORGAN’S vote in the affirmative was followed by applause in the galleries.
The PRESIDENT pro tempore. Order will be preserved in the galleries. … The call will proceed.
The Secretary concluded the call of the roll; and the result was as follows: [snip]
The PRESIDENT pro tempore. The yeas being 33, and the nays 15, the bill has passed the Senate by the requisite constitutional majority, notwithstanding the objection of the President to the contrary.
On motion by Mr. TRUMBULL, it was
Ordered, That the Secretary communicate the bill (S. No. 61) to protect all persons in the United States in their civil rights and furnish the means of their vindication, with the message of the President returning the same to the Senate with his objection, and the proceedings of the Senate thereon, to the House of Representatives. [snip]
(1832)
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HOUSE OF REPRESENTATIVES
April 7, 1866
CIVIL RIGHTS
Mr. LAWRENCE, of Ohio. Mr. Speaker, the President in his annual message said to us—
“That good faith requires the security of the freedmen in their liberty, their right to labor, and their right to claim the just return of their labor. I cannot too strongly urge a dispassionate treatment of this subject, which should be carefully kept aloof from all party strife.”
In Pursuance of this recommendation, Congress passed a measure known as the “civil rights bill,” the essential purpose of which is declared in these words:
“SEC. 1. That 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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.
This bill has met with the executive veto. When it passed the House I was satisfied to record my vote in its favor without consuming time in discussion, leaving the measure to commend itself to the judgment of the world. It has already been debated somewhat at large. (See speeches of WILSON, and others, March 1, Globe, March 2; of BINGHAM, February 28, Globe, March 1; of BINGHAM and SHELLABARGER, March 9, Globe, March 10; DELANO, March 8, Globe, March 13.)
I will not therefore attempt a full discussion of it now, but content myself with briefly presenting some of the grounds upon which I will again perform the proudest act of my political life in voting to make this bill the law of the Land.
It is scarcely less to the people of this country than Magna Charta was to the people of England.
It declares who are citizens.
It does not affect any political right, as that of suffrage, the right to sit on juries, hold office, &c. This it leaves to the States, to be determined by each for itself. It does not confer any civil right, but so far as there is any power in the States to limit, enlarge, or declare civil rights, all these are left to the States.
But it does provide that as to certain enumerated civil rights every citizen “shall have the same right in every State and Territory.” That is whatever of certain civil rights may be enjoyed by any shall be shared by all citizens in each State, and in the Territories, and these are:
1. To make and enforce contracts.
2. To sue, to be sued, and to be parties.
3. To give evidence.
4. To inherit, purchase, lease, sell, hold, and convey real and personal property.
5. To be entitled to full and equal benefit of all laws and proceedings for the security of person and property.
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The bill does not declare who shall or shall not have the right to sue, give evidence, inherit, purchase, and sell property. These questions are left to the States to determine, subject only to the limitation that there are some inherent and inalienable rights, pertaining to every citizen, which cannot be abolished or abridged by State constitutions or laws.
The first clause of section one provides:
“That 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.”
This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it. This has been sufficiently demonstrated by the distinguished chairman of the Judiciary Committee, (Mr. WILSON’S speech, March 1,) and by the authorities he has cited. (1 Sharswood’s Blackstone, 864; Naturalization Act of April 14, 1802; Act of February 28, 1803; Brightly’s Digest, 478; Section 10 of Act of September 4, 1841; Opinions of Attorneys General, vol. 4, p. 147, (Legare;) 1 Bouvier’s Law Dictionary, title Denizen; 2 Kent Com., 278, note; Marcy, Secretary of State, March 6, 1854; Attorney General Bates, Opinion, November 29, 1862; Rawle on Constitution, 80; State vs. Manuel, 3; Deveraugh & Battle’s N. C. R., 26.)
In the great case of Lynch vs. Clarke, it was conclusively shown that in the absence of all constitutional provision or congressional law “declaring citizenship by birth, it must be regulated by some rule of national law” “coeval with the existence of the Union,” which was and is that all “children born here are citizens without any regard to the political condition or allegiance of their parents.” (1 Sandford’s Ch. R., 583.)
This was the common law of England, and “the statute (25 Edward III, St. 2, De natis ultra mare) was declaratory of the old common law.”
It has also been sufficiently demonstrated that the nation may by solemn act of Congress, or even by treaty, declare that classes of people collectively, shall be citizens. (Louisiana treaty, April 30, 1800; Florida treaty, 1817; Mexican treaty, 1848; Choctaw treaty, September 27, 1830; Resolution March 1, 1845, annexing Texas; Act of December 29, 1848, admitting Texas; Cherokee treaty, December 29, 1855; Act of March 3, 1843, Stockbridge Indians; Opinions of Attorneys General, vol. 7, p. 746, (Cushing;) Lawrence’s Appendix to Wheaton on International Law.)
It is an exercise of authority which belongs to every sovereign Power, and is essentially a subject of national jurisdiction. The whole power over citizenship is intrusted to the national Government, which can make citizens of any foreign people as an exercise of sovereignty, or under the power, “to establish a uniform rule of naturalization.” (Constitution, art. 1, section 7.)
There is, then, a national citizenship. And citizenship implies certain rights which are to be protected, and imposes the duty of allegiance and obedience to the laws.
There is in this country no such thing as “legislative omnipotence.” When it is said in State constitution that “all legislative power is vested in a Senate and House of Representatives,” authority is not thereby conferred to destroy all that is valuable in citizenship. Legislative powers exist in our system to pro-
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tect, not to destroy, the inalienable rights of men. (1 Story Constitution, sec. 207; Taylor vs. Porter, 4 Hill’s Reports, 147; 2 Dallas, 471; People vs. Morris, 13 Wendell, 828.) This has been the common understanding in our whole history, and upon which governments have been created.
The Continental Congress of 1774, composed of delegates from twelve colonies, in their Declaration of Rights, among other things, declared:
“That the inhabitants of the English colonies of North America, by the immutable laws of nature, the principles of the English constitution, and the several charters of compacts, have the following rights:
“Resolved, That they are entitled to life, liberty, and property, and that they have never ceded to any sovereign Power whatever a right to dispose of either without their consent.”—Hurd on Habeas Corpus, chap. 5, p. 107.
The Declaration of Independence affirms—
“That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, Governments are instituted among men.”
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The Constitution was established, as its preamble declares, to—
“Promote the general welfare and secure the blessings of liberty.”
All the law-writers agree that every citizen has certain “absolute rights,” which include—
“The right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered and frequently declared by the people of this country to be natural, inherent, and inalienable.”—1 Kent’s Commentaries, 599; Federalist, No. 84.
In Wilkinson vs. Leland, 2 Pet. 657, Judge Story said:
“The fundamental maxims of a free Government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority.” (See Turrett vs. Taylor, 9 Cranch, 43; People vs. Morris, 13 Wend., 328; Taylor vs. Porter, 4 Hill, 147; Fletcher vs. Peck, 6 Cranch, 87.)
The Bill of rights to the national Constitution declares that:
“No person” * * * * “shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.”
It has never been deemed necessary to enact in any constitution or law that citizens should have the right to life or liberty or the right to acquire property. These rights are recognized by the Constitution as existing anterior to and independently of all laws and all constitutions.
Without further authority I may assume, then, that there are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him. But not only are these rights inherent and indestructible, but the means whereby they may be possessed and enjoyed are equally so.
We learn from Coke that—
“When the law granteth anything to any one that also is granted without which the thing itself cannot be.”—Oath before the Justices, 12 Co., 130; Heard vs. Pierce. 8 Cush. 338-345.
In law the incident always adheres to and accompanies the principle. (Broom’s Legal Maxims,198; 20 Ohio R., 409.)
It is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby alone he can live. It is mockery to say that a citizen may have a right to live, and deny him the right to make a contract to secure the privilege and the rewards of labor. It is worse than mockery to say that men may be clothed by the national authority with the character of citizens, yet may be stripped by State authority of the means by which citizens may exist.
Even Shylock, when the decree of confiscation was pronounced against him, reasoned better; for he said:
“Nay, take my life and all, pardon not that;
You take my house, when you do take the prop
That doth sustain my house; you take my life,
When you do take the means whereby I live.”
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Every citizen, therefore, has the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship. As necessary incidents of these absolute rights, there are others, as the right to make and enforce contracts, to purchase, hold, and enjoy property, and to share the benefit of laws for the security of person and property.
Now, there are two ways in which a State may undertake to deprive citizens of these absolute, inherent, and inalienable rights: either by prohibitory laws, or by a failure to protect any one of them.
If the people of a State should become hostile to a large class of naturalized citizens and should enact laws to prohibit them and no other citizens from making contracts, from suing, from giving evidence, from inheriting, buying, holding, or selling property, or even from coming into the State, that would be prohibitory legislation. If the State should simply enact laws for native-born citizens and provide no law under which naturalized citizens could enjoy any one of these rights, and should deny them all protection by civil process or penal enactments, that would be a denial of justice.
Yet twelve years have not passed since these and other hostile measures against naturalized citizens were gravely discussed in several of the States, and beyond this, it was urged that their political rights should be denied or so abridged as to be useless. History is full of instances where all this has been done or attempted. (Com. vs. York, 9 Metcalf Rep., 116; 2 Bennett & Heard’s Lead. Crim. Cases.)
This bill, in that broad and comprehensive philanthropy which regards all men in their civil rights as equal before the law, is not made for any class or creed, or race or color, but in the great future that awaits us will, if it become a law, protect every citizen, including the millions of people of foreign birth who will flock to our shores to become citizens and to find here a land of liberty and law.
But there is a present necessity for this bill which I find forcibly stated thus:
“The fact that no single southern Legislature has yet recognized the right of blacks to the civil rights accorded to every white alien, suffices to prove the need of such legislation by Congress. We believe no single southern State has yet enabled blacks to sue and be sued, to give testimony and rebut testimony on equal terms with whites. All that they do, under the pressure of necessity, is meanly, grudgingly, shabbily done. What can be more absurd than to provide that a black may testify in cases between blacks and whites, but not when the parties are both white? If he would even swear falsely, would he not be likely to do so in a case between a white and a black? And if his oath can be taken in cases where he will naturally have a bias, why not in cases where he is like to have none?”
“Consider the case of a riotous white attack on a colored school kept by a white woman. A black who witnessed the outrage is called to tell what he knows, and turned off because the schoolma’am was white, like the rowdies; so he is not a competent witness, unless he can swear that the roughs assaulted also a pupil; then he may be. Why is the distinction made but insult and degrade the blacks?
“The Cincinnati Commercial has a letter from a correspondent traveling through Mississippi, who states that the barbarous vagrant law recently passed by the rebel State Legislature is rigidly enforced, and under its provisions the freed slaves are rapidly being reenslaved. No negro is allowed to buy, rent, or lease any real estate; all minors of any value are taken from their parents and bound out to planters; and every freedman who does not contract for a year’s labor is taken up as a vagrant. The officers of the Freedmen’s Bureau are often not accessible, and the freedmen are kept back, by the distance, from complaining. Finally, as the writer estimates, it would take an army of twenty thousand men to compel the planters to do justice to the freedmen.”This bill takes right hold of this matter, and subjects the oppressors to pains and penalties which they will seldom choose to invoke.”
Since this statement of the conditions of southern law, I believe Georgia, by an act of March 17, 1866, has made provision for the enforcement of civil rights.
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It is barbarous, inhuman, infamous, to turn over four million liberated slaves, always loyal to the Government, to the fury of their rebel masters, who deny them the benefit of all laws for the protection of their civil rights. To do so, would make the age of Draco and Nero respectable in comparison with the infamy of this. It is partly because there is no such law that the Freedmen’s Bureau now, by order of the President, interposes military authority to secure the civil rights of the white Union population, and of the freedmen, the wards of the nation, in their new-born liberty. [snip]
(1835)
The question before us now is this:
When the States deny to millions of citizens the means without which life, liberty, and property cannot be enjoyed, is the nation powerless to punish the great crime of denying civil rights constitutionally recognized and affirmed by national authority? That is, if a State, by her laws, says to whole classes of native or naturalized citizens, “You shall not buy a house or a homestead to shelter your children within our borders;” “you shall be deprived of the means whereby life is preserved, whereby liberty is a boon, and whereby property is held sacred;” “you shall have no right to sue in our courts or make contracts”—in such cases, is the nation powerless to intervene in behalf of her own citizens, in behalf of humanity itself, to avert the annihilation of citizenship? Now, when this condition of affairs has been reached, I maintain that Congress may by law secure the citizens of the nation in the enjoyment of their inherent right of life, liberty, and property, and the means essential to that end, by penal enactments to enforce the observance of the provisions of the Constitution, article four, section two, and the equal civil rights which it recognizes or by implication affirms to exist among citizens of the same State.
Congress has the incidental power to enforce and protect the equal enjoyment in the States of civil rights which are inherent in national citizenship. The Constitution declares these civil rights to be inherent in every citizen, and Congress has power to enforce the declaration. If it has not, then the Declaration of Rights is in vain, and we have a Government powerless to secure or protect rights which the Constitution solemnly declares every citizen shall have. And now let us consider these propositions briefly.
The Constitution declares that—
“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
I will concede that the courts have by construction limited the words “all privileges” to mean on “some privileges.”
In a note to this section of the Constitution, in Brightly’s Digest, it is said:
“This is confined to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. They may all be comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purpose of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the States, to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of principles deemed to be fundamental.”—Corfield vs. Coryell, 4 Wash. C. C. R., 380; Conner vs. Elliott, 18 Howard, 591; Murray vs. McCarty, 2 Munf., 393; United States vs. Williamson, 4 American Law Register, 19; People vs. Lemmon, 5 Law Rep., 486; Lawrence’s Wheaton on International Law, 909; Calhoun’s Speech, Senate, April 2, 1836; Sergeant of Constitution, chap. 31, p. 348; chap. 31, p. 393, 2d ed.; 6 Pickering R., 92; 2 Story on Constitution, 605.
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Kent says that if citizens
“Remove from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made.”
That is, distinctions created by nature of sex, age, insanity, &c., are recognized as modifying conditions and privileges, but mere race or color, as among citizens, never can. And this view Kent proceeds to recognize as to fundamental rights citing with approval the case of Corfield vs. Coryell, 4 Wash. C. C., 280, and stating the rule of constitutional law to be—
“That the privileges and immunities conceded by the Constitution of the United States to citizens in the several States were to be confined to those which were in their nature fundamental, and belonged of right to the citizens of free Governments. Such
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are the rights of protection of life and liberty, and to acquire and enjoy property,” &c.—2 Kent, 72.
And Judge Story, in commenting on article four, section two, of the Constitution, says:
“The intention of this clause was to confer on them, [citizens,] if one may so say, a general citizenship; and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.”—Serg. On Constitution, chap. 31, p. 384; chap. 33, p. 393; Livingston vs. Van Ingen, 9 Johns R., 507; Abbott vs. Bagley, 6 Peck, 92.
This clause of the Constitution asserts two things:
1. That there are “privileges and immunities of citizens.”
2. That “the citizens of each State” if they remove from one State to another “shall be entitled to all privileges and immunities of citizens” of the United States “in the” State to which they remove.
The Constitution does not define what these privileges and immunities are; but all privileges and immunities are of two kinds, to wit, those which I have shown to be inherent in every citizen of the United States, and such others as may be conferred by local law and pertain only to the citizen of the State.
But conceding, as the courts have held, that the privileges referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law, then to what extent shall they be enjoyed by a citizen of one State removing into another? Not simply so far as they may be enjoyed by “some portion” or “some description” of citizens, but “all the privileges and immunities of citizens;” that is, all citizens under the like circumstances.
This section does not limit the enjoyment of privileges to such as may be accorded only to citizens of “some class,” or “some race,” or “of the least favored class,” or “of the most favored class,” or of a particular complexion for these distinctions were never contemplated or recognized as possible in fundamental civil rights, which are alike necessary and important to all citizens, and to make inequalities in which is rank injustice.
This clause of the Constitution therefore recognizes but one kind of fundamental civil privileges equal for all citizens. No sophistry can change it, no logic destroy its force. There it stands, the palladium of equal fundamental civil rights for all citizens.
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Any law that invades its fundamental equality is void, and so it has always been understood.
In the great case of Lynch vs. Clarke, 1 Sandford’s Chancery Reports, G45, the court says:
“The Articles of Confederation between the States made no provision for naturalizing aliens. Each State was left to its own legislation on that subject; and the laws of the several States on that behalf prevailed within their own bounds until the 4th of March, 1789, or until the legislation of Congress in1790—when the Constitution took effect; therefore, it found the existing mass of citizens of the United States ascertained and defined. It was not necessary to enact anything further in reference to those citizens than was done in the section which gave them immunities as citizens alike in all the States. But as we have seen, it was necessary to provide for the boundless future. State laws and State legislation could not in the nature of things be longer permitted to define, abridge, or enlarge the important privilege of citizenship in the United States. It was purely a national right and one which must for the future be governed by rules operating alike upon every part of the Union.” [snip]
(1855)
HOUSE OF REPRESENTATIVES
April 9, 1866
TRIAL OF JEFFERSON DAVIS
Mr. RAYMOND submitted the following preamble and resolution:
Whereas the President of the United States has, by proclamation, declared the insurrection in the State of Virginia to be at an end; and whereas the reasons which have hitherto prevented the holding of a court of the United States in said State for the trial of persons charged with treason against the United States.
Resolved, That the President of the United States be requested to take steps for the speedy trial of Jefferson Davis, who has been duly indicted in said State for said crime of treason, unless he shall be, with reasonable dispatch, indicted for said crime, and put on trial in some other district in which he may be legally liable for trial.
Mr. STEVENS. I suggest that the resolution be referred to the Committee on the Judiciary. The same subject has just been referred to it.
Mr. RAYMOND. That relates to the assassination of President Lincoln.
Mr. WILSON, of Iowa. The resolution also covers this matter of trial.
Mr. RAYMOND. I have no objection to the reference. My wish for offering it now, is because there is a rumor of process being commenced to release Jeff. Davis from confinement without trial.
Mr. ROGERS. I object to debate.
Mr. STEVENS moved that the preamble and resolution be referred to the Committee on the Judiciary, and on that motion demanded the previous question.
The previous question was seconded and the main question ordered; and under the operation thereof the preamble and resolution were referred to the Committee on the Judiciary.
Mr. STEVENS moved to reconsider the vote by which the preamble and resolution were referred; and also moved that the motion to reconsider be laid upon the table.
The latter motion was agreed to.
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MESSAGE FROM THE SENATE
A message from the Senate, by Mr. FORNEY, its Secretary, informed the House that the President having returned to that body Senate bill No. 61, to protect all persons in the United States in their civil rights and furnish the means of their vindication, with his objections to the same, and that body having proceeded to reconsider the bill and resolved that it pass, two thirds agreeing thereto, he was directed to communicate the said bill, and the message of the President returning the same with his objections, and the proceedings of the Senate thereon, to the House of Representatives. [snip]
(1857)
CIVIL RIGHTS BILL—VETO MESSAGE
The SPEAKER. The morning hour has expired. [snip]
The SPEAKER accordingly laid before the House the following message from the Senate:
IN THE SENATE OF THE UNITED STATES
April 6, 1866
Ordered, That the Secretary communicate the bill “to protect all persons in the United States in their civil rights and furnish the means of their vindication,” with the message of the President returning the same to the Senate with his objections, and the proceedings of the Senate thereon, to the House of Representatives.
Attest: J. W. FORNEY, Secretary
IN THE SENATE OF THE UNITED STATES
April 6, 1866
The President of the United States having returned to the Senate, in which it originated, the bill entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication,” with his objections thereto, the Senate proceeded, in pursuance of the Constitution, to reconsider the same; and,
Resolved, That the said bill do pass, two thirds of the Senate agreeing to pass the same.
Attest: J. W. FORNEY, Secretary of the Senate.
The Clerk read the bill, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That 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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
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SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.
SEC. 3. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot 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 of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the "Act relating to habeas corpus and regulation judicial proceedings in certain cases," approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause, and, if of a criminal nature, in the infliction of punishment on the party found guilty.
SEC. 4. And be it further enacted, That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers and agents of the Freedmen's Bureau, and every other officer who may be specially empowered by the President of the United States, shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as by this act has cognizance of the offense. And with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of this act; and such commissioners are hereby authorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offenses created by this act, as they are authorized by law to exercise with regard to other offenses against the laws of the United States.
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SEC. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person upon whom the accused is alleged to have committed the offense. And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or 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, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of this act; and said warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued.
SEC. 6. And be it further enacted, That any person who shall knowingly and willfully obstruct, hinder, or prevent any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them, from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer, other person or persons, or those lawfully assisting as aforesaid, when so arrested pursuant to the authority herein given and declared, or shall aid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape from the custody of the officer or other person legally authorized as aforesaid, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued as aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for either of said offenses, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the district court of the United States for the district in which said offense may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States.
SEC. 7. And be it further enacted, That the district attorneys, the marshals, their deputies, and the clerks of the said district and territorial courts shall be paid for their services the like fees as may be allowed to them for similar services in other cases; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, inclusive of all services incident to such arrest and examination. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of this act shall be entitled to a fee of five dollars for each person he or they may arrest and take before any such commissioner as aforesaid, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them, such as attending at the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid out of the Treasury of the United States on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction.
SEC. 8. And be it further enacted, That whenever the President of the United States shall have reason to believe that offenses have been or are likely to be committed against the provisions of this act within any judicial district, it shall be lawful for him, in his discretion, to direct the judge, marshal, and district attorney of such district to attend at such place within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of this act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated.
SEC. 9. And be it further enacted, That it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act.
SEC. 10. And be it further enacted, That upon all questions of law arising in any cause under the provisions of this act a final appeal may be taken to the Supreme Court of the United States.
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The Clerk read the message of the President, as follows:
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 cannot 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
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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 these persons any 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 cannot 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 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.”
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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 have “full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none 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 the whites are forbidden in some of the States where slavery does not exist, and they are prohibited in all the slave holding 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 cannot, 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 anything but gold and silver a legal tender. But where can we find a Federal prohibition against the power of any State to discriminate, as do most of them, between aliens and citizens, between artificial persons called corporations and natural persons, in the right to hold real estate?
If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal in the same way all State laws discriminating between the two races on the subjects of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally, to vote “in every State and Territory of the United States.” As respects the Territories, they come within the power of Congress, for as to them, the 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.
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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 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 could 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 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 guaranties 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 cannot 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 con-
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struction 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 State judge, who, in the clear exercise of his functions as a judge, not acting ministerially, but judicially, shall decide contrary to this Federal law. In other words, when a State judge, acting upon a question involving a conflict between a State law and a Federal law, and bound, according to his own judgment and responsibility, to give an impartial decision between the two, comes to the conclusion that the State law is valid and the Federal law is invalid, he must not follow the dictates of his own judgment at the peril of fine and imprisonment. The legislative department of the Government of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer, bound to decide according to the will of Congress.
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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 ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming 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 cannot, 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.
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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 reasonably 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 had 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 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, toward 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.
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Entertaining these sentiments, it only remains for me to say, that I will cheerfully cooperate with Congress in any measure that may
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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 [snip]
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CIVIL RIGHTS BILL—AGAIN
The question was upon the demand for the previous question. [snip]
The SPEAKER. The call of the roll not having begun, the gentleman from Wisconsin, in the opinion of the Chair, has the right to withdraw the motion.
The question recurring on seconding the demand for the previous question, it was seconded; there being—ayes 102, noes 31. The main question was then ordered.
The SPEAKER. The question is, “Shall this bill pass, notwithstanding the objections of the President?” On this question, the vote, according to the requirement of the Constitution, must be taken by yeas and nays.
The question was taken; and there were—yeas 122, nays 41, not voting 21; …. [snip]
When the call of the roll had been concluded,
The SPEAKER said: The Clerk will call my name as a member of the House.
The Clerk called the name of SCHUYLER COLFAX, of Indiana, and Mr. COLFAX voted “ay.” [Applause.]
The SPEAKER. On the question, “Shall this bill pass notwithstanding the objections of the President?” the yeas are 122 and the nays 41. Two thirds of the House having, upon this reconsideration, agreed to the passage of the bill, and it being certified officially that a similar majority of the Senate, in which the bill originated, also agreed to its passage, I do therefore, by the authority of the Constitution of the United States, declare that this bill, entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication,” has become a law.
[This announcement was received with an outburst of applause, in which members of the House, as well as the throng of spectators, heartily joined, and which did not subside for some moments.]
Mr. SCHENCK. I move that the House adjourn.
The motion was agreed to; and thereupon, (at three o’clock and twenty minutes p. m.,) the House adjourned.
[End of debates about the 1866 Civil Rights Act – inclusion.]
Passed: April 9, 1866
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[Start of a few debates about the 1868 Fourteenth Amendment – citizen.]
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IN SENATE
April 10, 1866
CIVIL RIGHTS—VETO MESSAGE
A message from the House of Representatives, by Mr. LLOYD, its Chief Clerk, announced that the House of Representatives had concurred with the Senate in the passage of the bill (S. No. 61) to protect all persons in the United States in their civil rights and furnish the means of their vindication, notwithstanding the objections of the President, two thirds of the House of Representatives having agreed to pass the same.
Mr. TRUMBULL submitted the following resolution:
Resolved, That the Secretary of the Senate be directed to present the Secretary of State the act entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication,” together with the Certificates of the Secretary of the Senate and Clerk of the House of Representatives, showing that the said act was passed by a vote of two thirds of both Houses of Congress after the same had been returned to the Senate by the President with his objections, and after the reconsideration of act by both Houses of Congress, in accordance with the Constitution. [snip]
Mr. McDOUGALL. I desire now to make a remark simply on this resolution. I differ with the chairman of the Committee on the Judiciary and with the Senator from Ohio, [Mr. SHERMAN,] who originated the proposition formerly in the Senate as to what was a quorum of the body, and I say that the vote on this bill was not a vote of two thirds of the Senate, because the Senate is not fully represented. I desire to make the remark because I am a protestant against the doctrine advanced by the Senator from Ohio when the rule was adopted in the Senate to which I have referred.
The resolution was agreed to.
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HOUSE OF REPRESENTATIVES
April 21, 1866
PRESIDENT’S MESSAGE
The House resumed, as in Committee of the Whole on the state of the Union, the consideration of the President’s annual message, upon which Mr. PERHAM was entitled to the floor.
Mr. PERHAM. I yield for a few moments to the gentleman from Delaware, [Mr. NICHOLSON.]
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RECONSTRUCTION
Mr. NICHOLSON. Mr. Speaker, numerous and various have been the propositions before the House to amend the Constitution of the United States; but more obnoxious than all the rest, and affecting to a greater extent the whole character of our Government, is the following, upon which I propose to submit a few remarks, namely, the joint resolution (H. R. No. 63) proposing an amendment to the Constitution of the United States:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely:
ARTICLE —. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.
So many and able have been the arguments already laid before this House against the adoption, at this time, of this or any other of the proposed amendments to the Constitution, that I might well despair of throwing any new light upon the subject, or increasing by anything I can say the weight of the objections already urged.
I feel additional discouragement in approaching the discussion of this question, from the strong determination evinced by the majority to make this or some other material alteration in our organic law. They seem unrestrained by the ordinary considerations of public policy. They seem insensible to every appeal. They are moved neither by the glorious memories of the past, the wonderful wealth, power, and prosperity we have achieved under the Constitution as it is, nor by the bright prospect that awaits us in the future under a restored Union if we but preserve the “ancient landmarks.” Intoxicated with the sudden possession of power, they chafe at every obstacle interposed between them and the gratification of their desires. Assuming with partisan zeal that a certain object must be accomplished, and finding the Constitution standing in their way, they would lay violent hands upon it, and with one blow destroy the beautiful harmony of our entire system of government.
My love and admiration for this system, which has been our pride and boast, forbid that I should now remain silent and unmoved, but rather urge me to stand up, relying on the justice of my cause, and plead for the Constitution of our fathers.
To appreciate fully the great change that would be wrought in the entire structure of our Government by the adoption of the proposed amendment, it will be necessary to consider the history of its formation and its present character, so far as the same is pertinent to the subject under consideration; and I shall do so with that brevity which so familiar a subject and its heretofore frequent discussion demand.
The States which united in framing our Constitution were originally colonies, separate from and independent of each other. They were settled at different times and by people who differed from each other in their habits and their religious and political opinions. Their local customs and regulations differed accordingly. There was no political connection between them; and one thing alone was common to them all, and that was the allegiance which each owed to the British Crown; and I might add the injustice and oppression which finally drove them to arms. This view of their political condition is sustained by Judge Story in his Commentaries, section one hundred and seventy-seven, which I will quote:
“Though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connection with each other. Each was independent of all the others; each in a limited sense, was sovereign within its own territory. There was neither alliance nor confederacy between them. The Assembly of one Province could not make laws for another; nor confer privileges, which were to be enjoyed or exercised in another, further than they could be in any independent foreign State.” * * * *
“And though their mutual wants and necessities often induced them to associate for common purposes of defense, these confederacies were of a casual and temporary nature, and were allowed as an indulgence rather than a right. They made several efforts to procure the establishment of some general superintending government over them all, but their own differences of opinion, as well as the jealousy of the Crown, made these efforts abortive.”
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Down to the formation of the Constitution this idea of separateness, distinctness, and individuality was maintained. The Continental Congress was simply a deliberative, advisory body, Its acts were in the form of resolutions, and not in the form of laws. It recommended, but did not command. The Declaration of Independence did not change their relation to each other, but changed each of them from a dependent colony to an independent State, with all the attributes of absolute sovereignty. In the earlier treaties with foreign Powers their distinct sovereignty is recognized in their enumeration by name. So in the provisional articles with Great Britain, in 1782, by which our independence was acknowledged, the first article declares that—
“His Britannic Majesty acknowledges the said United States, to wit, New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Del-
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aware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent States; that he treats with them as such,” &c.
And further, from Lawrence’s Wheaton, pages 36 and 37:
“Sovereignty is acquired by a State, either at the origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent.”
Thus the internal sovereignty of the United States of America was complete from the time they declared themselves “free sovereign and independent States,” on the 4th of July, 1776. It was upon this principle that the Supreme Court determined, in 1808—
“That the several States comprising the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British King. The treaty of peace of 1782 contained a recognition of their independence, not a grant of it.”
Now, what are the powers of an independent sovereign State? The very statement of the question suggests its own answer. As to external sovereignty we are not inquiring; but in the exercise of internal sovereignty a State must necessarily find no other limitation upon its power than its own will. I will not stop now to enumerate the great variety of these powers, but as to a single point will read again from Wheaton, page 132:
“Every State, as a distinct moral being, independent of every other, may freely exercise all its sovereign rights in any manner not inconsistent with the equal rights of other States. Among these is that of establishing, altering, or abolishing its own municipal form of government.”
The colonies, then, became “free, sovereign, and independent States,” and formed with each other a “firm league,” by the Articles of Confederation, the second of which reads thus, namely:
“ART. 2. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”
The great variety of interests that were involved, as well as local prejudices and jealousies, notwithstanding the necessity of union for the common defense, made it difficult for the Congress to agree upon these articles, and they were not finally ratified until 1781, four years after they had been agreed upon by the Delegates in Congress.
Upon the establishment of peace and the achievement of their independence, having to longer the motive of a common danger inducing them to continue to acquiesce in the exercise by the Confederation of ungranted power, the defects of their Government became manifest. Then it was that, with hearts bursting with love and trembling with fear for the future safety of that precious boon, liberty and independence, which they had acquired, these unselfish patriots applied themselves to the task of remedying its defects. Their object was to form a Government which should possess all the power and energy necessary to constitute a national Government, and yet reserve to the several States the control of their own municipal affairs. Difficult as this task was, we all know how successfully it was accomplished. We can but imperfectly know how great were the difficulties, how various and conflicting the interests, how strong the jealousies, and how opposing the views of the members of the Convention. In the words of James Madison, Federalist, No. 37:
“The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it the finger of that Almighty Hand which had been so frequently and signally extended to our relief in the critical stage of the Revolution.”
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The result of this deliberation was that Constitution under which we lived so long, and to the peculiar character of which we greatly owe all that we have accomplished as a people and as a nation.
It is not for me to eulogize their work, nor does this House need to be instructed in the nature of our Government. But I desire to present in contrast the Government as our fathers made it, and that Government, as gentlemen would have it could they succeed in the adoption of the proposed amendment, to say nothing of the long series of amendments and legislative enactments of a kindred nature that have been introduced.
Our Constitution having been framed and adopted by “free, sovereign, and independent States,” bears upon its face marks of conciliation, concession, and compromise, without which it would inevitably have failed. The Government created by it is of a mixed character, partly national and partly Federal. Its powers are delegated powers. Being the creature of the States, it possesses, and can rightfully exert no power with which it was not clothed at the time of its creation, or which it has not since lawfully received.
It follows necessarily that all other powers “are reserved to the States respectively, or to the people.” But to exclude any other interpretation, the tenth article of the amendments was adopted. The Government having been formed for national purposes, as the common agent of all the States, received all the power necessary for these purposes, while the States retained the exclusive control of their own municipal affairs. Our Constitution derives its chief excellence, and the Government the more strength, from the spirit of conciliation and compromise which animated its framers. It possesses a power of adaptation to all the various stages of our progress which it could not have had it been framed according to the idea of some rigid theorist instead of being shaped and molded according to the requirements of the several States, until it presented a system of government without a model in the world. It cannot be judged by any technical rule. To illustrate and sustain the views I have expressed, the truth of which I have no doubt is conceded, I will read a few extracts from the Writings of James Madison, volume four, page 61:
“It has been too much the case in expounding the Constitution of the United States that its meaning has been sought, not in its peculiar and unprecedented modifications of power, but by viewing it, some through the medium of a simple Government, others through that of a mere league of Governments. It is neither one nor the other, but essentially different from both. It must, consequently, be its own interpreter. No other Government can furnish a key to its true character. Other Governments present an individual and indivisible sovereignty. The Constitution of the United States divides the sovereignty: the portion surrendered by the States composing the Federal sovereignty over specified subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere.”
The same, page 420:
“The more the political system of the United States is fairly examined the more necessary it will be found to abandon the abstract and technical modes of expounding and designating its character; and to view it as laid down in the character which constitutes it, as a system hitherto without a model, as neither a simple nor a consolidated Government, nor a Government altogether confederate, and therefore not to be explained so as to make it either, but to be explained and designated according to the actual division and distribution of political power on the face of the instrument.
“A just inference from a survey of this political system is, that it is a division and distribution of political power nowhere else to be found; a nondescript, to be tested and explained by itself alone; and that it happily illustrates the diversified modifications of which the representative principle of republicanism is susceptible, with a view to the conditions, opinions, and habits of particular communities.”
And again the same writer in the Federalist, No. 45, says:
“The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
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Thus we possess a system of government, which, to a foreign observer, may appear artificial and complex, but which to us, who are furnished with the key, is simple in extreme. That key is the jealousy which has been apparent through all our history, for the right of each State to control its own domestic affairs, and the firmness with which that right has always been maintained.
From all these various conflicting causes harmony has been evoked; and the most perfect equilibrium is presented to our view in the equal distribution of the Federal powers, in the limitation upon State and Federal power, and the line that is drawn between them; like that huge mass of rock which nature has so nicely poised that a child’s hand can disturb its balance, but a giant’s strength could not move it from its base.
That nicely adjusted balance is now, by this amendment, to be permanently overthrown. The line of demarcation between State and Federal power, which has been already too much obscured by the great latitude of construction given of late to the several grants of power, is now to be entirely obliterated. The barriers erected by the Constitution to protect the States in the absolute control of their municipal affairs are now to be thrown down for the Federal Government to enter this wide domain, to roam at will, and bring prostrate at the feet of Federal power the most inestimable and most fondly cherished of all civil or political rights. That instrument, framed with such affectionate solicitude by the great and good men of the Revolution, who were actuated by nothing but devotion to the common good, is now to be changed to gratify a savage sectional hate and an inordinate lust for power. Its beauty has already been sadly married; and it bears upon its face the recently inflicted blow of sectionalism; but this amendment will completely subvert our present system of Government, and is a long stride toward ultimate consolidation. That I am just in thus characterizing it, a brief examination of its provisions will show. It reads as follows:
ARTICLE –. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. [snip]
But as the case of Abbott vs. Bayley, 6 Pick., 92, 93, expresses so fully all I would say upon this subject, and is always cited as an interpretation of this clause, I will give it somewhat at large:
“The jurisdiction of the several States as such are distinct, and in most respects foreign. The Constitution of the United States makes the people of the United States subjects of one Government quoad everything within the national power and jurisdiction, but leaves them subjects of separate and distinct governments. The privileges and immunities secured to the people of each State in every other State, can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not
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absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens, that is, they shall not be deemed aliens, but may take and hold real estate, and my according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized. The constitutional provision referred to is necessarily limited and qualified, for it cannot be pretended that a citizen of Rhode Island coming into this State to live is ipso facto entitled to the full privileges of a citizen, if any term of residence is prescribed as preliminary to the exercise of political or municipal rights. The several States then remain sovereign to some purposes, and foreign to each other as before the adoption of the Constitution of the United States, and especially in regard to the administration of justice, and in the regulation of property and estates, the laws of marriage and divorce and the protection of the persons of those who live under their jurisdiction.”
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Now, assuming this to be the true meaning of the clause referred to, why make the Constitution repeat itself, or why empower Congress to pass laws in respect to privileges and immunities which have never in the light of this interpretation been denied?
But there can be no mistake in the meaning or intention of the clause. By it Congress is authorized to legislate upon the internal affairs of the several States, and in so doing, the only restraint upon its power will be its own conception of what is “necessary and proper.”
The immediate object to be accomplished by this amendment I will advert to presently; but let us now consider the propriety of thus robbing the States of their right to regulate their own domestic affairs, and putting such vast power in the hands of Congress.
As I have said before, the great excellence of our Constitution consists in the separation between State and Federal power, and the assignment to each of its proper sphere.
While, very properly, the Federal Government possesses all the powers necessary for the legitimate objects of its creation, to the States has been reserved the exclusive control over all those matters which most deeply affect our welfare and happiness as social beings. To the States alone do we look for “protection in the rights of life, liberty, and property.” … We are dependent upon the State government in all the relations we sustain in life.. … From the cradle to the grave there is no right nor privilege essential to our security and happiness which we do not derive from the State government, and which we would not just as well enjoy if the Federal Government were blotted out of existence. It is right that this should be so. It is an axiom, I think, of political science that the nearer government is brought to the people the more conducive it is to the well-being of the governed. So it is much more likely that the people of a State, as a distinct political community, should know better how to advance their own interests than the people of another State or the representatives of other States could know for them, from whom they might differ in many important particulars.
This was originally their right, and they have reserved it in the Constitution, which forms our Union. And what is now proposed? We are seriously asked to pass this amendment, and invite the States to relinquish their freedom and independence and meekly submit to the interference by Congress in their internal order and Government. We are asked to invest Congress with authority to go peeping and prying into all the multitudinous details, which can possibly be embraced under the general term “rights of life, liberty, and property,” and regulate them by such laws as may be deemed “necessary and proper.” We are called upon to erect here the bed of Procrustes, lay the several States upon it, and torture them into conformity to its proportions. While I have the power to resist, I, for one, shall never consent to so dangerous an innovation, so complete a subversion of our present form of Government.
But while the amendment is thus couched in general terms, and is intended to confer this general power, we must not forget that it is urged for a particular purpose.
Gentlemen have declaimed most eloquently on the broad principle of equality, fraternity; but it is nevertheless apparent that negro equality is what is meant. Manhood suffrage is a very pleasant euphemism; but when translated into negro voting it is not quite so captivating. “Equality before the law” is quite a high-sounding phrase, and, as a general principle, is to be admired; but when you come to apply it to all the elements of which our society is composed, the effect is rather startling. Let us substitute the known for the unknown quantity in this article, and then see how it would read.
The Congress shall have power to make all laws which shall be necessary and proper to secure to the free negroes of each State all privileges and immunities of citizens in the several States, and to free negroes in the several States equal protection in the rights of life, liberty, and property.
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I am not only opposed to any limitation upon the power of the States, but that opposition is increased, if possible, by the very object which is sought to be obtained. The very fact that this amendment would authorize such legislation as the “civil rights bill” is an additional reason why it should not be adopted. All the arguments urged against the passage of that bill apply with still greater force to this; though gentlemen have not waited until they could obtain constitutional authority for its passage. I certainly think that the negro should be protected in his life, liberty, and property, and believe that he has always enjoyed this protection, and that at this very moment he stands in no need whatever of those who have constituted themselves his especial friends, and clamor now so loudly for his rights. But I also contend that in giving that protection, in conferring rights and privileges, the several States should continue to exercise, as they do now, the power of declaring what shall be their extent, and by what means they shall be secured.
The object of government is not to benefit the individual, but to secure the welfare of the society over which, by common consent, it is established. The individual must yield to those restraints which a community for its own good sees fit to impose. Likewise, when there is a class which can be made certain and definite, it may be treated as an individual, and, if the peace and good order of society require it, may become subject to the same restraints and disabilities. Now, the negro race in this country constitute such a class which is easily and well defined; and the peace and welfare of a State, especially where they are found in great numbers, demand that the radical difference between them and the white race should be recognized by legislation; and every State should be allowed to remain free and independent in providing punishments for crime, and otherwise regulating their internal affairs, so that they might properly discriminate between them, as their peace and safety might require.
For the negro is not actuated by the same motives as the white man, nor is he deterred from crime except by punishments adapted to the brutal, sensual nature which characterizes him. They are not his true friends who are striving to thrust him up to the same level with the whites, when the inevitable result must be a war of races; not are they true lovers of their country’s weal, who for such an object are willing to strike down the power of the States and consolidate the Government into a centralized despotism.
As it is not likely that such an amendment as this will be adopted by three fourths of all the States, and as it has been reported for our consideration from the committee of fifteen on reconstruction, the suspicion naturally arises that the committee intend that its adoption by the southern States shall be a condition-precedent to their representation in Congress—I will not say restoration, for peace has long since restored them to the Union, but their Representatives are excluded by the mere exercise of arbitrary power on the part of the majority of this House.
Whether I am correct or not in this suspicion, one thing is certainly true, that so far as legislation for the benefit of the negro is concerned, under the authority of this amendment, those States are chiefly to be affected by it. At the risk of being laughed at, I would ask if it is fair and honorable to take such a mean advantage of a fallen foe. They deserve a better fate at our hands. They met our armies in the open field, and resisted with a courage and endurance that compelled our admiration. Their submission has been as complete as unexpected. This is a constitutional Government, however oblivious we may be of the fact. The cause of the war must have been a violation of the Constitution and laws. The power to carry it on must have been derived from the Constitution, or it nowhere existed. Whatever may have been its secret object on our part, in legal contemplation, and according to declarations at the time, it could only be to preserve the Union and enforce obedience to the Constitution and laws. This being the only object known to the Constitution for which the war was prosecuted, and having succeeded upon our part, it follows that the Constitution and laws have been vindicated and the Union preserved; and the Representatives of southern States have as perfect a right to their seats here as any gentleman on this floor. Their exclusion is revolutionary. And I seriously doubt whether this amendment if passed by Congress, as at present constituted, would be constitutionally before the States for their adoption. For it could never have been deemed possible, when power was given to two thirds of both Houses, to propose amendments, that a majority would have the power to exclude or expel a sufficient number to constitute itself two thirds, and then pass measures which it is conceded could not be passed were all the States entitled represented here.
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But these absent States are more immediately interested in this question, by reason of the presence among them of a vast number of that inferior race whose condition has been so recently changed by the abolition of slavery. The negro’s idea of freedom is to do nothing but bask in the sunshine. The negro woman now disdains to pick cotton, and her present ambition is to “send her daughter to boarding-school, and keep a piano.” And they are assisted very much in these mischievous notions by such legislation as the Freedmen’s Bureau and civil rights bill. With these ideas, they must, as a class, become idle and improvident, and a grievous burden upon those States. Already do we hear from many sections of Virginia that farmers despair of raising stock; that their poultry, pigs, and sheep disappear in the most mysterious manner. Now, it would be most destructive, just at this period of transition from one state of society to another, to fetter the power of the States while adapting themselves to this changed condition of things, by appropriate legislation to check their thieving propensities, discountenance vagrancy, and stimulate them to habits of industry. There is no reason why the most ardent philanthropist need fear that this power will be abused. The people of the South are honorable and high-minded. When these creatures were their
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slaves they were treated as part of their household, with kindness and affection; and the exceptions to this treatment were not more numerous than were to be found in the relation of parent and child, or husband and wife. Give them time to adapt themselves to this sudden and complete revolution in their affairs. Give some heed to the following truthful suggestions of President Johnson in his objections to the civil rights bill:
“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.”
But the saddest feature of all this scene is the vindictive spirit which gentlemen manifest in everything that relates to the unhappy South. …. [snip]
Surely the war that is past has been punishment enough for the people of the South. … The work before us requires some of the same spirit that animated our forefathers—the spirit of kindness and conciliation. Let us apply ourselves now to the work of cementing with brotherly love the fragments of a broken Union. While, in the providence of God it may have been necessary that sectional hate and fanaticism should have nerved the arm that struck for victory, they have no office to perform in the duties of the present hour. [snip]
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DISFRANCHISEMENT OF REBELS
Mr. SHELLABARGER. Mr. Speaker, some weeks ago I introduced a resolution, which was adopted by this body, referring to the Judiciary Committee of this House the inquiry whether it is competent, under the American Constitution, for Congress to declare by law the forfeiture of citizenship where that citizenship has been voluntarily abandoned by acts of disloyalty. …. [snip]
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CITIZENSHIP IS A NATIONAL AND NOT A STATE QUALITY AND GIFT
Let it be next thoroughly established and comprehended that in our Government there is, properly speaking, no State citizenship, and that, to adopt the language of the case of Lynch vs. Clark, (1Sanford R., 583,) citizenship is “a national right or condition.”
Chancellor Kent affirms the authority of this case (2 Kent’s Commentaries, s. p. , note) when he says:
“The question [of citizenship as distinguished from alienage] is one of national and not of individual [State] sovereignty.”
“A State,” says Judge McLean, “may authorize a foreigner to hold real estate within its jurisdiction, but it has no power to naturalize foreigners and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States which has no warrant in the Constitution.”—19 Howard, 533.
“Every citizen of the United States is a component member of the nation, with rights and duties under the Constitution and laws of the United States which cannot be abridged by the laws of any particular State.”
“Every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State.”—Opinion of Attorney General Bates, of 29th November, 1862.
By such authorities as these I show this other proposition of my argument, that by the very essence and nature of sovereignty it is and must be the nation, the supreme Government, that determines who shall be members of the nation’s body, its citizens, and whom it will admit to demand its protection and enjoy its powers.
NATURE AND RIGHTS OF CITIZENSHIP
In order that the legal consequences which flow from the fact that the nation bestows and controls citizenship may be completely understood, it is best now to look at the nature of American citizenship.
Although this is a subject of great difficulty in some of its aspects, yet it is in others of the very easiest and most obvious comprehension and statement.
In speaking of what privileges and powers are included in citizenship, Mr. Calhoun says:
“But though we may not be able to say with precision what a citizen is, we may say with the utmost certainty what he is not. He is not an alien. Alien and citizen are correlative terms, and stand in contradistinction to each other. They of course, cannot so exist.”
The principle here alluded to by Mr. Calhoun, that he cannot be held to be a citizen who does not owe, or who does not recognize or render the obligations of a citizen, is more fully expressed by Vattel (s. p. 106) in these words:
“If the body of society or he who represents it [the Government] absolutely fail to discharge their obligations toward the citizen, the latter may without draw himself.”
Now note what follows:
“For, if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfill his, as the contract is reciprocal between society and its members. It is on the same principle also that society may expel a member who violates its laws..” [snip]
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RELATIONS OF CITIZENSHIP TO SUFFRAGE
I now assert another proposition which in principle is identical with and must result from the doctrine that “State laws and State legislation cannot in the nature of things be longer permitted to define, abridge, or enlarge the important privileges of citizenship in the United States.” … In other words, those, whether native or foreign, whom the nation may rightly decline to permit the States to endow with citizenship merely, cannot be endowed by the States except by mere sufferance, as I have said, with the infinitely higher attributes of national sovereignty, which, by the elective franchise, selects all the rulers of the Republic. Judge Curtis (19 Howard R., 581) says truly that though—
“The enjoyment of the elective franchise is not essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American constitution; and the just and constitutional possession of this right is decisive evidence of national citizenship.”
I aver that they to whom the nation has rightly denied the rights of citizenship are thereby denied being deemed a part of the “people of the States” in the sense of the second section of the first article of the Constitution; and no State can make such men the electors and rulers of this nation unless, as is true in a few States, this be permitted by the mere sufferance of the Government. I do not object to this sufferance where loyal men are the recipients of it.
Let us see how this is now by the great lights of the law. I first cite Story, (Constitution, section 1103,) who, with irresistible force of reason, declares that—
“If aliens might be admitted indiscriminately to enjoy all the rights of citizens, at the will of a single State, the Union itself might be endangered by the influx of foreigners hostile to its institutions, ignorant of its forms, and incapable of a due estimation of its privileges.”
Surely, whether the elective franchise be a right of citizenship or not, there is no other right so fatally dangerous to be intrusted, “at the will of a single State,” to men not citizens, and “hostile to our institutions,” as the power of selecting all the officers of the nation—a power which Judge Curtis well declares to be the “chiefest attribute of citizenship.”
Again, sir, Chancellor Kent, (Note c, s. ;. 229, 1 vol. Comm.,) after declaring that in Ohio the right of suffrage is limited to naturalized and natural-born citizens, adds, “And so I think it ought to be an all sound policy; and the view taken of the subject in the above case (Spragins vs. Houghton, 2 Scammon, 377,) by one of the counsel who argued the cause, is a masterly argument.” (See Mr. Butterfield’s argument approved by Kent, in 2 Scammon, 382.)
Again, Mr. Lawrence (in Wheaton, 910) says:
“If they [the States] can admit to the elective franchise those who are not citizens, thereby neutralizing the votes of citizens, not only the Federal power of naturalization becomes a nullity, but in the latter case a minority of actual citizens by the aid of aliens may control the government of the States, and through the States the Government of the Union.”
Once more I cite Mr. Calhoun, not merely because of the eminence of his learning and ability, but mainly because of the intrinsic force of what he says, and that it is said by one not too apt to restrict the powers of the States, nor to magnify those of the General Government. In the argument from which I have quoted (Wheaton, 905) he says:
“To suppose that a State can make an alien a citizen of the State, or confer upon him the right of voting, would involve the absurdity of giving him a direct and immediate control over the action of the General Government, from which he has no right to claim protection, and to which he has no right to present a petition. That the full force of the absurdity may be felt, it must be borne in mind that every department of the General Government is either directly or indirectly under the control of the voters in the several States.” * * * * “Now, admit that a State may confer the right of voting on all aliens, and it will follow as a necessary consequence that we might have among our constituents persons who have not the right to claim the protection of the Government or to present a petition to it.
“But a still greater difficulty remains. Suppose a war should be declared between the United States and the country to which the aliens belong. They, as aliens, would be liable to be seized under the laws of Congress, to have their goods confiscated, and themselves sent out of the country. The principle that leads to such consequences cannot be true.”
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Surely Mr. Calhoun must be right. Surely the States cannot, if the nation should exercise it right to forbid it, authorize them to elect the American President and the American Congress, who can neither petition the Government they elect, demand the protection of the Government they elect, be required to bear arms in favor of the Government which they elect, be tried for treason against the Government they elect, nor remain, in time of war, in the country whose rulers they elect, and who are, by a law now in force, declared to be, in time of war, the enemies of the Government which they elect and required to be driven from the country. (See act of 6th July, 1798.) [snip]
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IN SENATE
April 30, 1866
PETITIONS AND MEMORIALS
Mr. WILSON. I present resolutions of the Legislature of Massachusetts on the state of the Union and the duties of the Government to the freedom. I ask that they be read, laid on the table and printed.
The Secretary read as follows:
COMMONWEALTH OF MASSACHUSETTS
IN TH YEAR 1866
Resolutions on the state of the Union and the duties of Government to the freedmen.
Resolved, That the rebel States should be held in abeyance, and should not be permitted to join in the management of national affairs through representatives in Congress until the people of said States shall, by fundamental enactments and otherwise, manifest a loyal spirit of submission to the authority and Constitution of the United States, and give such guarantees as Congress may deem sufficient to render it safe and prudent to to permit them to again resume the functions and privileges which they voluntarily surrendered by their rebellion and war; and in these matters the right of determination rests with Congress.
Resolved, That we tender our thanks to the Senators and Representatives at Washington for their firmness hitherto in maintaining their principles and for their resistance to all attempts to place in the Halls of Congress disloyal men, or the Representatives of disloyal constituencies, to the peril of the national credit and at the imminent risk of losing by legislation all that we have gained by successful war. And we expect them to maintain this position in the future and to the last.
Resolved, That while thus expressing our confidence in our senatorial and representative delegations in
Congress, and the determination of the people to stand by them, we are also impelled to take notice of the recent charges made by name against one of the Senators of this State, Hon. CHARLES SUMNER, in the lately published speech of the President
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of the United States, and to declare that the language used and the charges made by the President are unbecoming the elevated station occupied by him, an unjust reflection upon Massachusetts, and without the shadow of justification or defense founded upon the private or public record of our eminent Senator.
Resolved, That his Excellency, the Governor, be requested to transmit a copy of these resolutions to our Senators and Representatives in Congress.
The resolutions were ordered to lie on the table, and be printed. [snip]
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REPORTS OF COMMITTEES
Mr. FESSENDEN. The joint committee, so called, on reconstruction have directed me to report, first, a joint resolution proposing an amendment to the Constitution of the United States; second, a bill to provide for restoring to the States lately in insurrection their full political rights; third, a bill declaring certain persons ineligible to office under the Government of the United States. They directed me, further, in reporting this resolution and bills, to say that it was the intention of the committee to accompany them with an extended report of their reasons, and the grounds upon which they report them. Unfortunately, however, such has been the situation of the committee, relying upon the chairman, who has been unable to attend to it on account of illness, that this report has not been drawn; and perhaps we may ask leave to submit the report hereafter in connection with the bills and resolution now reported. It was thought advisable, as it was so late in the session, not to withhold the measures proposed for action for the reason I have stated. It is very possible that the report may be made hereafter if it shall please the Senate to receive it.
The joint resolution (S. R. No. 78) proposing an amendment to the Constitution of the United States; the bill (S. No. 292) to provide for restoring to the States lately in insurrection their full political rights; and the bill (S. No. 293) declaring certain persons ineligible to office under the Government of the United States, were severally read a first time by their titles, and passed to a second reading. [snip]
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RECONSTRUCTION
Mr. STEVENS. I am instructed by the joint committee on reconstruction to report a joint resolution proposing an amendment to the Constitution of the United States.
The joint resolution was read a first and second time. It is as follows:
A joint resolution proposing an amendment to the Constitution of the United States.
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:
ARTICLE—
SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of male citizens shall bear to the whole number of such male citizens not less than twenty-one years of age.
SEC. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.
SEC. 4. Neither the United States nor any State shall assume or pay any debt, or obligation already incurred, or which may hereafter be incurred, in aid or insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor.
SEC. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.
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Mr STEVENS. I move that this joint resolution be postponed until Tuesday of next week after the reading of the Journal, and be made the special order for that day, and from day to day until disposed of, and that it be printed. [snip]
Mr STEVENS. I move to suspend the rules for the purpose I have named.
The question was taken; and upon a division there were—ayes 89, noes 20.
Before the result of the vote was announced, Mr. ANCONA called for the yeas and nays.
The yeas and nays were ordered.
The question was taken; and it was decided in the affirmative—yeas 107, nays 20, not voting 56; … [snip]
So the motion to suspend the rules was agreed to, two thirds voting in the affirmative. [snip]
Mr STEVENS. I am also instructed by the joint committee on reconstruction to report a bill to provide for restoring the States lately in insurrection to their full political rights.
The bill was read a first and second time. It is as follows:
A bill to provide for restoring the States lately in insurrection to their full political rights.
Whereas it is expedient that the States lately in insurrection should, at the earliest day consistent with the future peace and safety of the Union, be restored to full participation in all political rights; and whereas the Congress did, by joint resolution, propose for ratification to the Legislatures of the several States, as an amendment to the Constitution of the United States, an article in the following words, to wit:
ARTICLE—
[SEC. 1., SEC. 2., SEC. 3., SEC. 4., SEC. 5. (see the text above for SEC. 1 to 5)]
Now, therefore,
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the above-recited amendment shall have become part of the Constitution of the United States, and any State lately in insurrection shall have ratified the same, and shall have modified its constitution and laws in conformity therewith, the Senators and Representatives from such State, if found duly elected and qualified, may, after having taken the required oaths of office, be admitted into Congress as such.
SEC. 2. And be it further enacted, That when any State lately in insurrection shall have ratified the foregoing amendment to the Constitution, any part of the direct tax under the act of August 5, 1861, which may remain due and unpaid in such State may be assumed and paid by such State; and the payment thereof, upon proper assurances from such State to be given to the Secretary of the Treasury of the United States, may be postponed for a period not exceeding ten years from and after the passage of this act.
Mr. STEVENS. I move that the further consideration of this bill be postponed till Wednesday of next week, after the reading of the Journal, and be made the special order for that day, and from day to day until disposed of, and be printed.
Mr. ELDRIDGE. I object.
Mr. STEVENS. I move that the rules be suspended for that purpose.
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The question was taken; and two thirds voting in the affirmative, the motion was agreed to.
The bill was accordingly postponed until Wednesday of next week, after the reading of the Journal, and made the special order for that day, and from day to day until disposed of, and was ordered to be printed.
Mr. STEVENS. I am further instructed by
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the same committee to report a bill declaring certain persons ineligible to office under the Government of the United States.
The bill was read a first and second time. It is as follows:
A bill declaring certain persons ineligible to office under the Government of the United States.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assemble, That no person shall be eligible to any office under the Government of the United States who is included in any of the following classes, namely:
1. The president and vice president of the confederate States of America, so called, and the heads of departments thereof.
2. Those who in other countries and acted as agents of the confederate States of America, so called.
3. Heads of Departments of the United States, officers of the Army and Navy of the United States, and all persons educated at the Military or Naval Academy of the United States, judges of the courts of the United States, and members of either House of the Thirty-Sixth Congress of the United States who gave aid or comfort to the late rebellion.
4. Those who acted as officers of the confederate States of America, so called, above the grade of colonel in the army or master in the navy, and any one who, as Governor of either of the so-called confederate States, gave aid or comfort to the rebellion.
5. Those who have treated officers or soldiers or sailors of the Army or Navy of the United States, captured during the late war, otherwise than lawfully as prisoners of war.
Mr. STEVENS. I move that the further consideration of this bill be postponed until Thursday of next week, after the reading of the Journal, and be made the special order for that day, and from day to day until disposed of, and that it be printed.
Mr. ELDRIDGE. I object.
Mr. STEVENS. I move that the rules be suspended for the purpose of making it a special order for Thursday week next.
Mr. ELDRIDGE demanded the yeas and nays, and tellers on the yeas and nays.
Tellers were not ordered, and the yeas and nays were not ordered.
The rules were then suspended.
The bill was ordered to be printed, and made the special order for Thursday week next, after the morning hour.
Mr. STEVENS. I am directed by the committee to say that it is designed, as soon as the testimony is printed, that a short report will be made by the committee in furtherance of the objects now reported. [snip]332)
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IN SENATE
May 2, 1866
RECONSTRUCTION
Mr. WILLIAMS. I ask leave to introduce at this time, for the purpose of having it printed, an amendment to the bill (S. No. 292) to provide for restoring to the States lately in insurrection their full political rights.
Mr. POMEROY. I ask for the reading of the amendment.
The PRESIDENT pro tempore. It will be read if there be no objection.
The Secretary read the amendment, which was to strike out section one of the bill and to insert the following in lieu thereof:
That whenever any one of the States lately in insurrection shall ratify the above proposed amendment, as required by the Constitution of the United States, and shall conform its constitution and laws thereto, the Senators and Representatives from such State, after the 4th day of March, 1867, if found duly elected and qualified, shall, upon taking the required oaths, be admitted into Congress: Provided, That Senators and Representatives from Tennessee and Arkansas, respectively. shall be admitted, if elected and qualified as aforesaid, when either of said States shall ratify, as aforesaid, said proposed amendment.
Mr. WILLIAMS. Mr. President, I beg permission to say that this amendment embodies the views I presented to the committee, and I introduce it at this time so that it may be printed and examined before the Senate proceeds to the consideration of the bill. I invite attention to the fact that by this amendment Senators and Representatives from the so-called confederate States are not allowed to take their seats in Congress until the 4th day of March, 1867, with the exception of Tennessee and Arkansas, giving the loyal States an opportunity, if they desire so to do, to make the proposed constitutional amendment a part of the Constitution of the United States before that time. Should the loyal States adopt that amendment, I have little doubt that it would be adopted by enough of the other States to make it a part of the Constitution before the 4th of March, 1867; but if the loyal States should refuse to adopt the amendment and say that they do not want the guarantees and security for which it provides, then, so far as I am advised at present, I can see no good reason for refusing any longer to receive representation from these insurgent States. Tennessee and Arkansas are made exceptions. Their Senators and Representatives are to be received as soon as they ratify this constitutional amendment; and I believe, from the condition of their people and the character of their constitutions and laws, that they are entitled to a precedence over the other States that have been in rebellion. I believe that this amendment is better in all respects than the original section; but if the Senate, after consideration, decides otherwise, I shall cheerfully acquiesce in its judgment.
The PRESIDENT pro tempore. The order to print will be entered if there be no objection.
Mr. DIXON. Mr. President, I ask leave to give notice of my intention to offer, by way of amendment to the bill and resolutions reported by the joint committee on reconstruction, and as a substitute therefor, the following joint resolution:
Resolved by the Senate and House of Representatives of the United Sates of America in Congress assembled, That the interests of peace and the interests of the Union require the admission of every State to its share in public legislation whenever it presents itself, not only in an attitude of loyalty and harmony. but in the persons of representatives whose loyalty cannot be questioned under any constitutional or legal test.
I ask the consent of the Senate to say a few words in explanation of my views on the subject.
What the country expected from Congress was a practical scheme for hastening the reestablishment of all the States in their full constitutional relations. This report produces a plan which must inevitably put off this end, so strongly desired and demanded. Does any one believe that the southern States will accept the proposed constitutional amendment? Certainly they will decline. They will say, "Let us see what the next elections in the North develop. This Congress may recommend the amendment; the next Congress, which is to be chosen in the fall of the present year, and which may meet on the 5th of March, 1867, may be of a different mind. It may repeal all that this Congress has enacted; we had better wait."
The "restoration of the States to their practical relations in the Union," as Mr. Lincoln happily phrased it, is therefore put off, if this report is accepted, for at least another year; and the practical result of the labors of the reconstruction committee will be to have made up a platform on which those who choose to stand upon it may go before the country at the fall election. That is all; and in our judgment that is not enough to satisfy the country.
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It is hardly worth while to discuss the merits of measures which to be valid most be accepted by communities which are sure to reject them; but we may remark that it is not probable so heavily taxed and so poor a people as those of the southern States will assume the payment of the enormous and wastefully contracted rebel debt, and that no party would ever dare to go before the people of this country with a proposition for the United States to assume this debt, whose certificates are held chiefly by foreign speculators upon our national ruin. Further, that it is scarcely probable the people who have a majority in the South will voluntarily disfranchise themselves; and that the extremes to which partisan passions have been inflamed in Tennessee by the disfranchisement of the greater part of the population there, does not encourage practical men to look for the fruits of peace from such a policy enforced elsewhere.
Even the reconstruction committee acknowledge that "it is expedient that the States lately in insurrection should, at the earliest day consistent with the future peace and safety of the Union, be restored to full participation in all political rights." Now, what have we already to "secure future peace and safety?" In the first place, we have the civil rights act, under which any citizen who is denied justice by local or State courts is empowered to appeal to the United States court, which is commanded, with all its machinery, to interfere in his behalf; and if necessary, to use the military power of the United States to secure him justice. Surely no citizen need suffer wrong while this act remains. In the next place, we have a form of oath, prescribed by Congress; which makes it impossible for any one who voluntarily engaged in rebellion to enter Congress or to hold any Federal office without committing perjury, for which he may and ought to be indicted and punished. Finally, we have the Freedmen's Bureau for a whole year, during which, with a wise and conciliatory policy, we may hope the labor question in the South will assume something of its normal condition.
But let us not forget, on the other hand, the dangers which attend impracticable measures. Suppose, going before the people on this platform, built by the congressional committee, we are beaten. In that event we may be sure that the next Congress will not only refuse to make the demands which this one makes, but it will most probably repeal the civil rights act and the test oath; and thus our own imprudence will have sacrificed the great objects we have already gained.
The amendment proposed is right enough, if the reconstruction committee can get any southern State to accept it. But unless they do so, it is of course only a shot in the air, which may be right and true, but will hit nowhere — unless indeed it falls upon the heads of the gunners. Is it not far wiser for Congress to make sure of what it has done; to cry "Enough for this time;" to be content that it has secured the supremacy of law and justice in all our territory; and to admit at once to their seats all Representatives and Senators who can take the prescribed oaths?
One Congress cannot bring about the millennium; there are years to come in which we may all join upon a platform of larger liberty, and argue the questions and urge the reforms which still remain. For this time we have reason to be content; for we have put down armed resistance to the laws, and Congress has given us, in the civil rights act, a guarantee for free speech in every part of the Union. It is our own fault if, having thus secured the right to argue, we do not enlighten prejudice and mere opposition, and show that equal liberty is the best for all.
What I have read seems to me so wise and just, that I have adopted it as the best expression which I can make of my own views. It is the leading editorial article in the New York Evening Post of May 1, a journal which certainly is not excelled in ability, patriotism, and influence by any newspaper in this country. Coming from such a source. I cannot but hope that these wise, calm, and statesmanlike views may have some influence even in this body, as they certainly will have among the intelligent people of the United States. They express, in my judgment, the calm and resolute convictions of thinking men, and will, so soon as public opinion can legitimately declare itself, take the form and be clothed with the authority of public law.
Leave was granted to introduce the joint resolution (S. R. No. 81) providing for the representation of the several States in the Congress of the United States; which was read twice by its title. [snip]
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HOUSE OF REPRESENTATIVES
May 8, 1866
The House met at twelve o’clock m. Prayer by the Chaplain, Rev. C. B. BOYTON.
The Journal of yesterday was read and approved.
RECONSTRUCTION
The SPEAKER stated the first business in order to be the consideration of the constitutional amendment reported by the joint committee on reconstruction.
Mr. GARFIELD. I move that that special order be postponed, and that the House proceed to the consideration of the tax bill. I do this for the reason that I believe in three or four days at the farthest we can finish the tax bill. If we enter now into the discussion of the constitutional amendment it will bring up the entire subject of reconstruction, and the debate will run on for three or four weeks. It seems to me to be almost a national calamity to delay the tax bill that long. I call for the previous question.
Mr. STEVENS. I hope there will be no such disposition made of the special order. I have no idea that the constitutional amendment will take up more than two or three days. It ought to be in the Senate at once, if it is ever to be acted on. As to the tax bill, we will not lose anything by letting it lie over. Some additions have been recently made to it which I have not had time to read. We have set apart the night sessions for the consideration of the bill.
Mr. WASHBURNE, of Illinois. I understand it was the agreement of the House yesterday that the constitutional amendment should be considered during the day and the tax bill during the evening.
Mr. GARFIELD. I do not think that was the understanding. It was not mine.
The SPEAKER. To what time does the gentleman propose to postpone it?
Mr. GARFIELD. Until the tax bill has been disposed of.
Mr. STEVENS. I move that that motion be laid upon the table.
Mr. RAYMOND. In case we do not finish the constitutional amendment to-day, will it be superseded by the proposition made the special order for to-morrow?
The SPEAKER. The constitutional amendment remains the special order until disposed of.
Mr. STEVENS. I withdraw my motion to lay upon the table. I will say that the intention is not to press the accompanying bills until this constitutional amendment has been disposed of by the Senate.
Mr. JENCKES. I ask the gentleman from Ohio to modify his motion so that we may have the day for the tax bill, and the evening for reconstruction.
The SPEAKER. That will require unanimous consent.
Mr. GARFIELD. I am willing to agree to that.
Mr. STEVENS. I object.
Mr. GARFIELD. Then I insist on my motion and demand the previous question.
The previous question was seconded and the main question ordered.
Mr. LE BLOND. I demand the yeas and nays. I want to see whether the negro shall have preference of the finances.
The yeas and nays were ordered.
The question was taken; and it was decided in the negative—yeas 51, nays 82, not voting 50; … [snip]
So the House refused to postpone the special order. [snip]
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RECONSTRUCTION—AGAIN
Mr. STEVENS. The short time allowed by our resolution will suffice to introduce this debate. If unexpectedly there should be any objection to the proposed amendment to the Constitution I may ask the indulgence of the House to reply. [snip]
This proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent that this. I say nineteen for I utterly repudiate and scorn the idea that any State not acting in the Union is to be counted on the question of ratification. It is absurd to suppose that any more than three fourths of the States that propose the amendment are required to make it valid; that States not here are to be counted as present. Believing, then, that this is the best proposition that can be made effectual, I accept it. …. [snip]
Let us now refer to the provisions of the proposed amendment.
The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the “equal” protection of the laws.
I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.
Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.
Whatever law protects the white man shall afford “equal” protection to the black man.
Whatever means of redress is afforded to one shall be afforded to all.
Whatever law allows the white man to testify in court shall allow the man of color to do the same.
These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen. Some answer, “Your civil rights bill secures the same things.” That is partly true, but a law is repealable by a majority. And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed. The veto of the President and their votes on the bill are conclusive evidence of that. And yet I am amazed and alarmed at the impatience of certain well-meaning Republicans at the exclusion of the rebel States until the Constitution shall be so amended as to restrain their despotic desires. This amendment once adopted cannot be annulled without two thirds of Congress. That they will hardly get. And yet certain of our distinguished friends propose to admit State after State before this becomes a part of the Constitution. What madness! Is their judgment misled by their kindness; or are they unconsciously drifting into the haven of power at the other end of the avenue? I do not suspect it, but others will.
The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. …. [snip]
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The third section may encounter more difference of opinion here. Among the people I believe it will be the most popular of all the provisions; it prohibits rebels from voting for members of Congress and electors of President until 1870. My only objection to it is that it is too lenient. … I would be glad to see it extended to 1876, and to include all State and municipal as well as national elections. ….
I need say nothing of the fourth section, for none dare object to it who is not himself a rebel. ….
I move to recommit the joint resolution to the committee on reconstruction. [snip]
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RECONSTRUCTION—AGAIN
Mr. GARFIELD. Mr. Speaker, I do not rise to speak at length upon the pending measure, for the purpose of entering a motion and submitting a few practical suggestions on the bill, and particularly in reference to the third section. [snip]
I am glad to see this first section here which proposes to hold over every American citizen, without regard to color, the protecting shield of law. The gentleman who has just taken his seat [Mr. FINCK] undertakes to show that because we propose to vote for this section we therefore acknowledge that the civil rights bill was unconstitutional. He was anticipated in that objection by the gentleman from Pennsylvania, {Mr. STEVENS.} The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman’s party comes into power. It is precisely for that reason that we propose to lift that great and good law about the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it. For this reason, and not because I believe the civil rights bill constitutional, I am glad to see that first section here. [snip]
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HOUSE OF REPRESENTATIVES
May 9, 1866
RECONSTRUCTION
Mr. SPALDING demanded the regular order of business.
The House accordingly resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, reported from the joint committee on reconstruction.
The motion to recommit the joint resolution had been made by Mr. STEVENS.
The pending question was upon the motion of Mr. GARFIELD to amend the motion to recommit by adding instructions to the committee to report the proposed amendment to the Constitution with the third section stricken out. [snip]
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Mr. SHANKLIN. Mr. Speaker, the subject now before the House for it s consideration is a mapper, perhaps, of as much importance, and involves as many important interests to the American people, as any subject upon which the Congress of the United States can have to pass. Upon its solution may depend the weal or woe of the American people and their descendants. Those institutions, republican and free in their character, reared by the wisdom, the patriotism, and the sufferings of our revolutionary sires, and consecrated by their blood, may depend upon the action of this Congress upon this subject. [snip]
The joint resolution reported by the committee, and which is now before the House, is as follows:
ARTICLE—
SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person, within its jurisdiction, the equal protection of the laws.
SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its make citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crimes, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.
SEC. 3. Until the 4th day of July, 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for members of Congress, and for electors for President and Vice President of the United States.
SEC. 4. Neither the United States, nor any State, shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States; or any claim for compensation for loss of involuntary service or labor.
SEC. 5. Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [snip]
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RECONSTRUCTION—AGAIN
Mr. RAYMOND. Mr. Speaker, I took occasion at an early stage of the session, while making some remarks on the general subject of restoration, to say that, in my judgment, the joint committee, to which it had been referred, ought to lay the whole of their plan upon our tables before asking us to act upon any of its specific parts. …. [snip]
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And now, sir, with regard to these amendments, five in form, but only four in substance, I have this to say: that, with one exception, they are such as commend themselves to my approval. The principle of the first, which secures an equality of rights among all the citizens of the United States, has had a somewhat curious history. It was first embodied in a proposition introduced by the distinguished gentleman from Ohio, [Mr. BINGHAM,] in the form of an amendment to the Constitution, giving to Congress power to secure an absolute equality of civil rights in every State of the Union. It was discussed somewhat in that form, but, encountering considerable opposition from both sides of the House, it was finally postponed, and is still pending. Next it came before us in the form of a bill, by which Congress proposed to exercise precisely the powers which that amendment was intended to confer, and to provide for enforcing against State tribunals the prohibitions against unequal legislation. …. [snip]
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RECONSTRUCTION—AGAIN
Mr. McKEE. Mr. Speaker, in the short time allotted for this discussion it is not my purpose to go over the propositions embraced in the pending amendment to the Constitution. Nor do I regard it as necessary, at least so far as my own position is concerned, having already in this House voted for at least three of the propositions in substantially the same shape in which they are now presented. I desire more particularly to discuss the third section of this proposed amendment, as there seems to have been generated more opposition to this than any other, and it being a proposition I regard as one of the most vital of all. [snip]
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Mr. Speaker, I now yield to the gentleman from Iowa, [Mr. WILSON,] if he desires to occupy the few minutes I have remaining.
The SPEAKER. The time of the gentleman from Kentucky [Mr. McKEE] will expire in four minutes.
Mr. WILSON, of Iowa. Mr. Speaker, I desired, when the gentleman from New York [Mr. RAYMOND] was speaking, to interrupt him, in order that I might understand fully the position in which he placed himself concerning his vote on the civil rights bill. I understood him to say that he voted against that bill because, as he believed, Congress had not the power, under the Constitution, to pass the bill, and that it would require such an amendment as is now proposed to clothe us with the power to pass such a measure. I could not at the tie harmonize that in my mind with the record of the gentleman during this Congress relative to the principle involved in the civil rights bill.
The first section of that bill embodies its essential and vital principle. All the other sections provide merely for the enforcement of the principle embraced in the first section, which was simply a declaration that all persons without distinction of race or color should enjoy in all of the States and Territories civil rights and immunities. Now, sir, the gentleman himself introduced early in the session a bill, the second section of which provides as follows:
“That all persons born[*], or [= ‘and’] hereafter to be born[*], within the limits and under the jurisdiction of the United States, shall be deemed and considered, and are hereby declared, to be citizens of the United States, and entitled to all rights and privileges as such.”
The first section proposes to amend our naturalization laws[*] by striking out the word “white;” and the bill itself is intended to confer upon negroes and all other persons born withing the United States, without distinction of color, the rights of citizens of the United States.
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[My comment about “born, or hereafter to be born” and “naturalization laws”]
Notice that Representative Wilson’s reference to naturalization is a response to Representative Raymond’s two mentions of the word “born”. The reference to naturalization in the proposed (14th) amendment to the constitution is an implicit denial of the proposed amendment being about “natural born Citizen” and eligibility to be president. That is obvious, right?. A “natural born Citizen” with eligibility to be president has only singular U. S. citizenship which is only possible by birth alone to two U. S. citizens married only to each other only before a child is born. Eligibility to be president is denied to children naturalized by Article III Supreme Court fiat (‘because we said so’) ‘opinion’, and denied to fathers naturalized by oath under Article I.
Also, the words “deemed”, “considered”, and “declared” are positive law (law of people) words which can be nullified by other positive law words of another Congress. The words “natural born” are natural law (law of nature) words which can never be nullified by positive law words or by natural law. Status as a “natural born Citizen” can be renounced but not nullified by positive law. Naturalization is the reason why U. S. presidential candidates are not able to use the 1868 Fourteenth Amendment as constitutional authority for eligibility to be president. [End of comment]
After that bill had been introduced by the gentleman from New York he made a speech, in which I find one of the propositions which he laid down as proper to be enforced by this Congress against the people of the southern States was in this language:
“I think, in the third place, we should provide by law for giving to the freedmen of the South all the rights of citizens, in courts of law and elsewhere.”
Now, he did not mean that such provision should be made by a constitutional amendment; for in his fifth proposition he goes on to say:
"Fifth, I would make such amendments to the Constitution as may seem wise to Congress and the States, acting freely and without coercion.”
So that his third proposition had no reference to this. And in fact he precludes any such construction by using the term “law.” He says:
“We should provide by law for giving to the freedmen of the South all the rights of citizens, in courts of law and elsewhere.”
Now, sir that proposition of the gentleman is broader than the provision of the civil rights bill. It involves the entire principle; and if we give a reasonable construction to the term “elsewhere,” we may include in that the jury-box and the ballot-box.
It does seem to me, sir, that the explanation given by the gentleman for his vote against the civil rights bill cannot be supported upon this record. If the gentleman will say that he voted against that bill because of the sections following the first, that may raise a different question—
The SPEAKER. The half hour of the gentleman from Kentucky [Mr. McKEE] has expired. [snip]
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IN SENATE
May 30, 1866
RECONSTRUCTION
Mr. HOWARD. I now move to take up House joint resolution No. 127
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the reconsideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States.
The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan [Mr. HOWARD.]
Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
The PRESIDENT pro tempore. The first amendment proposed by the Senator from Michigan will be read.
The Secretary read the amendment, which was in line nine, after the words "section one,"to insert:
All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.
So that the section will read:
SEC. 1. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment — I presume he will have no objection to it — by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read:
All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside.
Mr. HOWARD. I hope that amendment to the amendment will not he adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.
Mr. COWAN. The honorable Senator from Michigan has given this subject, I have no doubt, a good deal of his attention, and I am really desirous to have a legal definition of "citizenship of the United States." What does it mean? What is its length and breadth? I would be glad if the honorable Senator. in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word.
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It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. He is not entitled, by virtue of that, to be an elector. An elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office. Now, I should like to know, because really I have been puzzled for a long while and have been unable to determine exactly, either from conversation with those who ought to know, who have given this subject their attention, or from the decisions of the Supreme Court, the lines and boundaries which circumscribe that phrase, "citizen of the United States." What is it?
So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the State of Pennsylvania; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that particular. I have supposed, further, that it was essential to the existence of society itself and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them. I do not know that there is any danger to many of the States in this Union; but is it proposed that the people of Cal-
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ifornia are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? I do not know that the contingency will ever happen, but it may be well to consider it while we are on this point.
As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she chooses who is not a citizen of some one of the United States. She cannot forbid his entrance; but unquestionably, if she was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, she would have the right to say that those people should not come there. It depends upon the inherent character of the men. Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society.
It must be evident to every man intrusted with the power and duty of legislation, and qualified to exercise it in a wise and temperate manner, that these things cannot be; and in my judgment there should be some limitation, some definition to this term "citizen of the United States." What is it? Is it simply to put a man in a condition that he may be an elector in one of the States? Is it to put him in a condition to have the right to enter the United States courts and sue? Or is it only that he is entitled as a sojourner to the protection of the laws while he is within and under the jurisdiction of the courts? Or is it to set him upon some pedestal, some position, to put him out of the reach of State legislation and State power?
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Sir, I trust I am as liberal as anybody to-ward the rights of all people, but I am unwilling, on the part of my State, to give up the right that she claims, and that she may exercise, and exercise before very long, of expelling a certain number of people who invade her borders; who owe to her no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own — an imperium in imperio; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers where ever they go, and whose sole merit is a universal swindle; who delight in it, who boast of it, and whose adroitness and cunning is of such a transcendent character that no skill can serve to correct it or punish it; I mean the Gypsies. They wander in gangs in my State. They follow no ostensible pursuit for a livelihood. They trade horses, tell fortunes, and things disappear mysteriously. Where they came from nobody knows. Their very origin is lost in mystery. No man today can tell from whence the Zingara come or whither they go, but it is understood that they are a distinct people. They never intermingle with any other. They never intermarry with any other. I believe there is no instance on record where a Zingara woman has mated with a man of any other race, although it is true that sometimes the males of that race may mate with the females of others; but I think there is no case in history where it can be found that a woman of that race, so exclusive are they, and so strong are their sectional antipathies, has been known to mate with a man of another race. These people [gypsies] live in the country and are born in the country. They infest society. They impose upon the simple and the weak everywhere. Are those people, by a constitutional amendment, to be put out of the reach of the State in which they live? I mean as a class. If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous.
I think the honorable Senator from Michigan would not admit the right that the Indians of his neighborhood would have to come in upon Michigan and settle in the midst of that society and obtain the political power of the State, and wield it, perhaps, to his exclusion. I do not know that anybody would agree to that. It is true that our race are not subjected to dangers from that quarter, because we are the strongest, perhaps; but there is a race in contact with this country which, in all characteristics except that of simply making fierce war, is not only our equal, but perhaps our superior. I mean the yellow race; the Mongol race. They outnumber us largely. Of their industry, their skill, and their pertinacity in all worldly affairs, nobody can doubt. They are our neighbors. Recent improvement, the age of fire, has brought their coasts almost in immediate contact with our own. Distance is almost annihilated. They may pour in their millions upon our Pacific coast in a very short time. Are the States to lose control over this immigration? Is the United States to determine that they are to be citizens? I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government. If I desire the exercise of my rights I ought to go to my own people, the people of my own blood and lineage, people of the same religion, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. I would not claim that right. Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands [the States] by the Constitution of the United States so as to prevent them [the States] hereafter from dealing with them [gypsies, Chinese, etc.] as in their wisdom they see fit.
Mr. CONNESS. Mr. President, I have failed to learn, from what the Senator has said, what relation what he has said has to the first section of the constitutional amendment before us; but that part of the question I propose leaving to the honorable gentleman who has charge of this resolution. As, however, the State of California has been so carefully guarded from time to time by the Senator from Pennsylvania and others, and the passage, not only of this amendment but of the so-called civil rights bill, has been deprecated because of its pernicious influence upon society in California, owing to the contiguity of the Chinese and Mongolians to that favored land, I may be excused for saying a few words on the subject.
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If my friend from Pennsylvania, who professes to know all about Gypsies and little about Chinese, knew as much of the Chinese and their habits as he professes to do of the Gypsies, (and which I concede to him, for I know nothing to the contrary,) he would not be alarmed in our behalf because of the operation of the proposition before the Senate, or even the proposition contained in the civil rights bill, so far as it involves the Chinese and us.
The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.
Now, I will say, for the benefit of my friend, that he may know something about the Chinese in future, that this portion of our population, namely, the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large, notwithstanding our near neighborhood to the Celestial land. The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead. There are, perhaps, in California today about forty thousand Chinese — from forty to forty-five thousand. Those persons return invariably, while others take their places, and, as I before observed, if they do not return alive their bones are carefully gathered up and sent back to the Flowery Land. It is not an unusual circumstance that the clipper ships trading between San Francisco and China carry at a time three or four hundred human remains of these Chinese. When interred in our State they are not interred deep in the earth, but laid very near the surface, and then mounds of earth are laid over them, so that the process of disinterment is very easy. That is their habit and custom; and as soon as they are fit for transmission to their own country they are taken up with great regularity and sent there. None of their bones are allowed to remain. They will return, then, either living or dead.
Another feature connected with them is, that they do not bring their females to our country but in very limited numbers, and rarely ever in connection with families; so that their progeny in California is very small indeed. From the description we have had from the honorable Senator from Pennsylvania of the Gypsies, the progeny of all Mongolians in California is not so formidable in numbers as that of the Gypsies in Pennsylvania. We are not troubled with them at all. Indeed, it is only in exceptional cases that they have children in our State; and therefore the alarming aspect of the application of this provision to California, or any other land to which the Chinese may come as immigrants, is simply a fiction in the brain of persons who deprecate it, and that alone.
I wish now to address a few words to what the Senator from Pennsylvania has said as to the rights that California may claim as against the incursion of objectionable population from other States and countries. The State of California at various times has passed laws restrictive of Chinese immigration. It will be remembered that the Chinese came to our State, as others did from all parts of the world, to gather gold in large quantities, it being found there. The interference with our own people in the mines by them was deprecated by and generally objectionable to the miners in California. The Chinese are re-
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garded, also, not with favor as an addition to the population in a social point of view; not that there is any intercourse between the two classes of persons there, but they are not regarded as pleasant neighbors; their habits are not of a character that make them at all an inviting class to have near you, and the people so generally regard them. But in their habits otherwise, they are a docile, industrious people, and they are now passing from mining into other branches of industry and labor. They are found employed as servants in a great many families and in the kitchens of hotels; they are found as farm hands in the fields; and latterly they are employed by thousands — indeed, I suppose there are from six to seven thousand of them now employed in building the Pacific railroad. They are there found to be very valuable laborers, patient and effective; and, I suppose, before the present year closes, ten or fifteen thousand of them, at least, will be employed on that great work.
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The State of California has undertaken, at different times, to pass restrictive statutes as to the Chinese. The State has imposed a tax on their right to work the mines, and collected it ever since the State has been organized — a tax of four dollars a month on each China-man; but the Chinese could afford to pay that and still work in the mines, and they have done so. Various acts have been passed imposing a poll tax or head tax, a capitation tax, upon their arrival at the port of San Francisco; but all such laws, when tested before the supreme court of the State of California, the supreme tribunal of that people, have been decided to be unconstitutional and void.
Mr. HOWARD. A very just and constitutional decision, undoubtedly.
Mr. CONNESS. Those laws have been tested in our own courts and when passed under the influence of public feeling there they have been declared again and again by the supreme court of the State of California to be void, violative of our treaty obligations, an interference with the commerce of the nation. Now, then, I beg the honorable Senator from Pennsylvania, though it may be very good capital in an electioneering campaign to declaim against the Chinese, not to give himself any trouble about the Chinese, but to confine himself entirely to the injurious effects of this provision upon the encouragement of a Gypsy invasion of Pennsylvania. I had never heard myself of the invasion of Pennsylvania by Gypsies. I do not know, and I do not know that the honorable Senator can tell us, how many Gypsies the census shows to be within the State of Pennsylvania. The only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared, than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent the recurrence of. On that occasion I am not aware, I do not remember that the State of Pennsylvania claimed the exclusive right of expelling the invaders, but on the contrary my recollection is that Pennsylvania called loudly for the assistance of her sister States to aid in the expulsion of those invaders — did not claim it as a State right to exclude them, did not think it was a violation of the sovereign rights of the State when the citizens of New York and New Jersey went to the field in Pennsylvania and expelled those invaders.
But why all this talk about Gypsies and Chinese? I have lived in the United States for now many a year, and really I have heard more about Gypsies within the last two or three months than I have heard before in my life. It cannot be because they have increased so much of late. It cannot be because they have been felt to be particularly oppressive in this or that locality. It must be that the Gypsy element is to be added to our political agitation, so that hereafter the Negro alone shall not claim our entire attention. Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension.
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Mr. President, let me give an instance here, in this connection to illustrate the necessity of the civil rights bill in the State of California; and I am quite aware that what I shall say will go to California and I wish it to do so. By the influence of our "southern brethren," who I will not say invaded California, but who went there in large numbers some years since, and who seized political power in that State and used it, who made our statutes and who expounded our statutes from the bench, negroes were forbidden to testify in the courts of law of that State, and Mongolians were forbidden to testify in the courts; and therefore for many years, indeed, until 1862, the State of California held officially that a man with a black skin could not tell the truth, could not be trusted to give a relation in a court of law of what he saw and what he knew. In 1862 the State Legislature repealed the law as to Negroes, but not as to Chinese. Where white men were parties the statute yet remained, depriving the Mongolian of the right to testify in a court of law. What was the consequence of preserving that statute? I will tell you. During the four years of rebellion a good many of our "southern brethren" in California took upon themselves the occupation of what is there technically called "road agents." It is a term well known and well understood there. They turned out upon the public highways, and became robbers, highway robbers; they seized the treasure transmitted and conveyed by the express companies, by our stage lines, and in one instance made a very heavy seizure, and claimed that it was done in accordance with the authority of the so-called confederacy. But the authorities of California hunted them down, caught a few of them, and caused them to be hanged, not recognizing the commission of Jeff Davis for those kinds of transactions within our bounds. The spirit of insubordination and violation of law, promoted and encouraged by rebellion here, affected us so largely that large numbers of — I will not say respectable southern people, and I will not say that it was confined to them alone — but large numbers of persons turned out upon the public highways, so that robbery was so common upon the highways, particularly in the interior and in the mountains of that State, that it was not wondered at, but the wonder was for anybody that traveled on the highways to escape robbery. The Chinese were robbed with impunity, for if a white man was not present no one could testify against the offender. They were robbed and plundered and murdered, and no matter how many of them were present and saw the perpetration of those acts, punishment could not follow, for they were not allowed to testify. Now, sir, I am very glad indeed that we have determined at length that every human being may relate what he heard and saw in a court of law when it is required of him, and that our jurors are regarded as of sufficient intelligence to put the right value and construction upon what is stated.
So much for what has been said in connection with the application of this provision to the State that I in part represent here. I beg my honorable friend from Pennsylvania to give himself no further trouble on account of the Chinese in California or on the Pacific coast. We are fully aware of the nature of that class of people and their influence among us, and feel entirely able to take care of them and to provide against any evils that may flow from their presence among us. We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.
Mr. HOWARD. There is a typographical error in the amendment now under consideration. The word "State"in the eleventh line is printed "States." It should be in the singular instead of the plural number, so as to read "all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State" (not States) "wherein they reside." I move that that correction be made.
Mr. JOHNSON. I suggest to the Senator from Michigan that it stands just as well as it is.
Mr. HOWARD. I wish to correct the error of the printer; it is printed "States" instead of "State."
The PRESIDENT pro tempore. The correction will be made.
Mr. JOHNSON. I doubt whether it is an error of the printer.
The PRESIDENT pro tempore. The question is on the amendment proposed by the Senator from Wisconsin to the amendment of the Senator from Michigan to the resolution before the Senate.
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Mr. DOOLITTLE. I moved this amendment because it seems to me very clear that there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States. All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military. We appoint civil agents who have a control over them in behalf of the Government. We have our military commanders in the neighborhood of the reservations, who have complete control. For instance, there are seven or eight thousand Navajoes at this moment under the control of General Carlton, in New Mexico, upon the Indian reservations, managed, controlled, fed at the expense of the United States, and fed by the War Department, managed by the War Department, and at a cost to this Government of almost a million and a half of dollars every year. Because it is managed by the War Department, paid out of the commissary fund and out of the appropriations for quartermasters' stores, the people do not realize the enormous expense which is upon their hands. Are these six or seven thousand Navajoes to be made citizens of the United States? Go into the State of Kansas, and you find there any number of reservations, Indians in all stages, from the wild Indian of the plains, who lives on nothing but the meat of the buffalo, to those Indians who are partially civilized and have partially adopted the habits of civilized life. So it is in other States. In my own State there are the Chippewas, the remnants of the Winnebagoes, and the Pottawatomies. There are tribes in the State of Minnesota and other States of the Union. Are these persons to be regarded as citizens of the United States, and by a constitutional amendment declared to be such, because they are born within the United States and subject to our jurisdiction?
Mr. President, the word "citizen," if applied to them, would bring in all the Digger Indians of California. Perhaps they have mostly disappeared; the people of California, perhaps, have put them out of the way; but, there are the Indians of Oregon and the Indians of the Territories. Take Colorado; there are more Indian citizens of Colorado than there are white citizens this moment if you admit it as a State. And yet by a constitutional amendment you propose to declare the Utes, the Tabahuaches, and all those wild Indians to be citizens of the United States, the great Republic of the world, whose citizenship should be a
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title as proud as that of king, and whose danger is that you may degrade that citizenship.
Mr. President, citizenship, if conferred, carries with it, as a matter of course, the rights, the responsibilities, the duties, the immunities, the privileges of citizens, for that is the very object of this constitutional amendment to extend. I do not intend to address the Senate at length on this question now. I have simply raised the question. I think that it would be exceedingly unwise not to adopt this amendment and to put in the Constitution of the United States the broad language proposed. Our fathers certainly did not act in this way, for in the Constitution as they adopted it they excluded the Indians who are not taxed; did not enumerate them, indeed, as a part of the population upon which they based representation and taxation; much less did they make them citizens of the United States.
Mr. President, before the subject of the constitutional amendment passes entirely from the Senate, I may desire to avail myself of the opportunity to address the body more at length; but now I simply direct what I have to say to the precise point contained in the amendment which I have submitted.
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Mr. FESSENDEN. I rise not to make any remarks on this question, but to say that if there is any reason to doubt that this provision does not cover all the wild Indians, it is a serious doubt; and I should like to hear the opinion of the chairman of the Committee on the Judiciary, who has investigated the civil rights bill so thoroughly, on the subject, or any other gentleman who has looked at it. I had the impression that it would not cover them.
Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.
If you introduce the words "not taxed," that is a very indefinite expression. What does "excluding Indians not taxed" mean? You will have just as much difficulty in regard to those Indians that you say are in Colorado, where there are more Indians than there are whites. Suppose they have property there, and it is taxed; then they are citizens.
Mr. WADE. And ought to be.
Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.
It seems to me, sir, that to introduce the words suggested by the Senator from Wisconsin would not make the proposition any clearer than it is, and that it by no means embraces, or by any fair construction — by any construction, I may say — could embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd. I think that the proposition is clear and safe as it is.
Mr. JOHNSON. Mr. President, the particular question before the Senate is whether the amendment proposed by the Senator from Wisconsin shall be adopted. But while I am up, and before I proceed to consider the necessity for that amendment, I will say a word or two upon the proposition itself; I mean that part of section one which is recommended as an amendment to the old proposition as it originally stood.
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The Senate are not to be informed that very serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them assuch; and the object of this amendment is to settle that question. I think, therefore, with the committee to whom the matter was referred, and by whom the report has been made, that it is very advisable in some form or other to define what citizenship is; and I know no better way of accomplishing that than the way adopted by the committee. The Constitution as it now stands recognizes a citizenship of the United States. It provides that no person shall be eligible to the Presidency of the United States except a natural-born citizen of the United States or one who was in the United States at the time of the adoption of the Constitution; it provides that no person shall be eligible to the office of Senator who has not been a citizen of the United States for nine years; but there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question. The decision of the courts and the doctrine of the commentators is, that every man who is a citizen of a State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State.
Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power — for that, no doubt, is the meaning of the committee who have brought the matter before us — shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents[*] who at the time were subject to the authority[*] of the United States. I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States.
[My comment about “born … parents” and “subject … authority”]
“Born of parents” = plural and married only to each other before a child is born, and “subject to the authority”= both parents (“plural / married”) are citizens of the United States before a child is born.
Notice that Senator Johnson’s main point is “who is a citizen”, not which ‘citizen’ is eligible to be president.
The way that the Senator phrased the issue being debated in 1866 by including Article II “natural born Citizen” reveals the validity of the presupposition of this 2000s table talk conversation about eligibility to be president: Why did founder and state ratifier John Jay emphatically underline the ‘original genesis’ word born in “natural born Citizen” in his July 25, 1787 note to Washington?
The exclusive word “born” reveals Jay’s “original intent” about (1) which U. S. ‘citizen’ is eligible to be president generation to generation, election to election, (2) who are the parents (citizenship would “devolve” from U. S. citizen married parents to children), (3) where birth must occur, only U. S. soil. [End of comment]
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The amendment proposed by my friend from Wisconsin I think, and I submit it to the Senate, should be adopted. The honorable member from Illinois seems to think it unnecessary, because, according to his interpretation of the amendment as it stands, it excludes those who are proposed to be excluded by the amendment of the Senator from Wisconsin, and he thinks that that is done by saying that those only who are born in the United States are to become citizens thereof, who at the time of birth are "subject to the jurisdiction thereof" and he supposes and states very positively that the Indians are not subject to the jurisdiction of the United States. With due deference to my friend from Illinois, I think he is in error. They are within the territorial limits of the United States. If they were not, the provision would be altogether inapplicable to them. In one sense, therefore, they are a part of the people of the United States, and independent of the manner in which we have been dealing with them it would seem to follow necessarily that they are subject to the jurisdiction of the United States, as is anybody else who may be born within the limits of the United States. But when the United States took possession — England for us in the beginning, and our limits have been extended since — of the territory which was originally peopled exclusively by the Indians, we found it necessary to recognize some kind of a national existence on the part of the aboriginal settlers of the United States; but we were under no obligation to do so, and we are under no constitutional obligation to do so now, for although we have been in the habit of making treaties with these several tribes, we have also, from time to time, legislated in relation to the Indian tribes. We punish murder committed within the territorial limits in which the tribes are to be found. I think we punish the crime of murder committed by one Indian upon another Indian. I think my friend from Illinois is wrong in supposing that that is not done.
Mr. TRUMBULL. Not except where it is done under special provision — not with the wild Indians of the plains.
Mr. JOHNSON. By special provision of legislation. That I understand. I am referring to that.
Mr. TRUMBULL. We propose to make citizens of those brought under our jurisdiction in that way. Nobody objects to that, I reckon.
Mr. JOHNSON. Yes, I do. I am not objecting at all to their being citizens now; what I mean to say, is that overall the Indian tribes within the limits of the United States, the United States may — that is the test — exercise jurisdiction. Whether they exercise it in point of fact is another question; whether they propose to govern them under the treaty-making power is quite another question; but the question as to the authority to legislate is one, I think, about which, if we were to exercise it, the courts would have no doubt; and when, therefore, the courts come to consider the meaning of this provision, that all persons born within the limits of the United States and subject to the jurisdiction thereof are citizens, and are called upon to decide whether Indians born within the United States, with whom we are now making treaties are citizens, I think they will decide that they [the Indians] have become citizens by virtue of this amendment. But at any rate, without expressing any decided opinion to that effect, as I would not do when the honorable member from Illinois is so decided in the opposite opinion, when the honorable member from Wisconsin, to say nothing of myself, entertains a reasonable doubt that Indians would be embraced within the provision, what possible harm can there be in guarding against it? It does not affect the constitutional amendment in any way. That is not my purpose, and I presume is not the purpose of my friend from Wisconsin.
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The honorable member from Illinois says that the terms which the member from Wis-
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consin proposes to insert would leave it very uncertain. I suppose that my friend from Illinois agreed to the second section of this constitutional amendment, and these terms are used in that section. In apportioning the representation, as you propose to do by virtue of the second section, you exclude from the basis "Indians not taxed." What does that mean? The honorable member from Illinois says that that is very uncertain. What does it mean? It means, or would mean if inserted in the first section, nothing, according to the honorable member from Illinois. Well, if it means nothing inserted in the first section it means nothing where it is proposed to insert it in the second section. But I think my friend from Illinois will find that these words are clearly understood and have always been understood; they are now almost technical terms. They are found, I think, in nearly all the statutes upon the subject; and if I am not mistaken, the particular statute upon which my friend from Illinois so much relied as one necessary to the peace of the country, the civil rights bill, has the same provision in it, and that bill I believe was prepared altogether, or certainly principally, by my friend from Illinois. I read now from the civil rights bill as it passed:
"That all persons horn in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens."
What did these words mean? They meant something; and their meaning as they are inserted in that act is the same meaning which will be given to them if they are inserted in the first section of this constitutional amendment. But I conclude by saying that when we are trying to settle this, among other questions, for all time, it is advisable—and if my friend will permit me to say so, our clear duty—to put every provision which we adopt in such plain language as not to be capable of two interpretations, if we can. When Senators upon the floor maintain the opinion that as it now stands it is capable of an interpretation different from that which the committee mean, and the amendment proposed gets clear of that interpretation which the committee do not mean, why should we not adopt it? I hope, therefore, that the friends—and I am the friend of this provision as far as we have gone in it—that the friends of this constitutional amendment will accept the suggestion of the honorable member from Wisconsin.
Mr. TRUMBULL. The Senator from Maryland certainly perceives a distinction between the use of the words "excluding Indians not taxed" in the second section and in the first. The second section is confined to the States; it does not embrace the Indians of the plains at all. That is a provision in regard to the apportionment of representation among the several States.
Mr. JOHNSON. The honorable member did not understand me. I did not say it meant the same thing.
Mr. TRUMBULL. I understood the Senator, I think. I know he did not say that the clause in the second section was extended all over the country, but he did say that the words "excluding Indians not taxed" were in the second section, and inasmuch as I had said that those words were of uncertain meaning, therefore, having gone for the words in the second section I was guilty of a great inconsistency. Now, I merely wish to show the Senator from Maryland that the words in the second section may have a very clear and definite meaning, when in the first section they would have a very uncertain meaning, because they are applied under very different circumstances. The second section refers to no persons except those in the States of the Union; but the first section refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia. Therefore the criticism upon the language that I had used, it seems to me, is not a just one.
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But the Senator wants to insert the words, "excluding Indians not taxed." I am not willing to make citizenship in this country depend on taxation. I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in the State of New York shall be a citizen and the poor Indian residing in the State of New York shall not be a citizen. If you put in those words in regard to citizenship, what do you do? You make a distinction in that respect, if you put it on the ground of taxation. We had a discussion on the civil rights bill as to the meaning of these words, "excluding Indians not taxed." The Senator from Maryland, [Mr. Johnson] I think, on that occasion gave this definition to the phrase "excluding Indians not taxed," that it did not allude to the fact of taxation simply but it meant to describe a class of persons; that is, civilized Indians. I was inclined to fall into that view. I was inclined to adopt the suggestion of the Senator from Maryland, that the words "excluding Indians not taxed" did not mean literally excluding those upon whom a tax was not assessed and collected, but rather meant to define a class of persons, meaning civilized Indians; and I think I gave that answer to the Senator from Indiana, [Mr. Hendricks] who was disposed to give it the technical meaning that "Indians not taxed" meant simply those upon whom no tax was laid. If it does mean that, then it would be very objectionable to insert those words here, because it would make of a wealthy Indian a citizen and would not make a citizen of one not possessed of wealth under the same circumstances. This is the uncertainty in regard to the meaning of those words. The Senator from Maryland and myself, perhaps, would understand them alike as embracing all Indians who were not civilized; and yet, if you insert that language, "Indians not taxed," other persons may not understand them that way; and I remember that the Senator from Indiana was disposed to understand them differently when we had the discussion upon the civil rights bill. Therefore I think it better to avoid these words and that the language proposed in this constitutional amendment is better than the language in the civil rights bill. The object to be arrived at is the same.
I have already replied to the suggestion as to the Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States; and the Senator from Maryland, if he will look into our statutes, will search in vain for any means of trying these wild Indians. A person can only be tried for a criminal offense in pursuance of laws, and he must be tried in a district which must have been fixed by law before the crime was committed. We have had in this country, and have today, a large region of country within the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.
For these reasons I think this language is better than the language employed by the civil rights bill.
Mr. HENDRICKS. Will the Senator from Illinois allow me to ask him a question before he sits down?
Mr. TRUMBULL. Certainly.
Mr. HENDRICKS. I wish to know if, in his opinion, it is not a matter of pleasure on the part of the Government of the United States, and especially of Congress, whether the laws of the United States be extended over the Indians or not; if it is not a matter to be decided by Congress alone whether we treat with the Indians by treaty or govern them by direct law; in other words, whether Congress has not the power at its pleasure to extend the laws of the United States over the Indians and to govern them.
Mr. TRUMBULL. I suppose it would have the same power that it has to extend the laws of the United States over Mexico and govern her if in our discretion we thought proper to extend the laws of the United States over the republic of Mexico, or the empire of Mexico, if you please so to call it, and had sufficient physical power to enforce it. I suppose you may say in this case we have the power to do it, but it would be a violation of our treaty obligations, a violation of the faith of this nation, to extend our laws over these Indian tribes with whom we have made treaties saying we would not do it.
Mr. FESSENDEN. We could extend it over Mexico in the same way.
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Mr. TRUMBULL. I say we could extend it over Mexico just as well; that is, if we have the power to do it. Congress might declare war, or, without declaring war, might extend its laws, or profess to extend them, over Mexico, and if we had the power we could enforce that declaration; but I think it would be a breach of good faith on our part to extend the laws of the United States over the Indian tribes with whom we have these treaty stipulations, and in which treaties we have agreed that we would not make them subject to the laws of the United States. There are numerous treaties of that kind.
Mr. VAN WINKLE. If the Senator will permit me, I wish to remind him of a citation from a decision of the Supreme Court that he himself made here, I think, when the veto of the civil rights bill was under discussion; and if I correctly understood it, as he read it, the Supreme Court decided that these untaxed Indians were subjects, and distinguished between subjects and citizens.
Mr. TRUMBULL. I think there are decisions that treat them as subjects in some respects. In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here. The language seems to me to be better chosen than it was in the other bill [the “civil rights bill”]. There is a difficulty about the words, "Indians not taxed." Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase "excluding Indians not taxed," the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that, nor did I; but if the Senator from Indiana was right, it would receive a construction which I am sure the Senator from Wisconsin would not be for: for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.
Mr. HENDRICKS. I expected the Senator from Illinois, being a very able lawyer, at the head of the Judiciary Committee, to meet the question that I asked him and to answer it as a question of law, and not as a question of military power. I did not ask him the question whether the Government of the United States had the military power to go into the Indian territory and subjugate the Indians to the political power of the country; nor had the right to understand the question in that sense. I asked him the question whether, under the Constitution, under the powers of this Government, we may extend our laws over the Indians and compel obedience as a matter of legal right, from the Indians. If the Indian is bound to obey the law he is subject to the jurisdiction of the country; and that is the question I desired the Senator to meet as a legal question, whether the Indian would he bound to obey the law which Congress in express terms extended over him in regard to questions within the jurisdiction of Congress.
Now, sir, this question has once or twice been decided by the Attorney General, so far as he could decide it. In 1855 he was inquired of whether the laws of the United States regulating the intercourse with the Indian tribes, by the general legislation in regard to Oregon,
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had been extended to Oregon; and he gave it as his opinion that the laws had been extended to Oregon, and regulated the intercourse between the white people and the Indians there. Subsequently, the Attorney General was asked whether Indians were citizens of the United States in such sense as that they could become the owners of the public lands where the right to acquire them was limited to citizens; and in the course of that opinion he says that the Indian is not a citizen of the United States by virtue of his birth, but that he is a subject. He says:
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"The simple truth is plain that the Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States. The two conditions are incompatible. The moment it comes to be seen that the Indians are domestic subjects of this Government, that moment it is clear to the perception that they are not the sovereign constituent ingredients of the Government. This distinction between citizens proper, that is, the constituent members of the political sovereignty, and subjects of that sovereignty, who are not therefore citizens, is recognized in the best authorities of public law."
He then cites some authorities. Again, be says:
"Not being citizens of the United States by mere birth, can they become so by naturalization? Undoubtedly.
"But they cannot become citizens by naturalization under existing general acts of Congress. (2 Kent's Commentaries, page 72.)
"Those acts apply only to foreigners, subjects of another allegiance. The Indians are not foreigners, and they are in our allegiance without being citizens of the United States."
Mr. JOHNSON. Whose opinion is that?
Mr. HENDRICKS. That is the opinion of Mr. Cushing, given on the 5th of July, 1856. I did not intend to discuss this question, but I will make one further reply to the Senator from Illinois. When the civil rights bill was under consideration I was of the opinion that the term "not taxed" meant not taxed; and when words are plain in the law I take them in their natural sense. When there is no ambiguity the law says there shall be no construction; and when you say a man is not taxed I presume it means that he is not taxed. I do not know any words that express the meaning more clearly than the words themselves, and therefore I cannot express the meaning in any more apt words than the words used by the Senator from Wisconsin, "Indians not taxed." When I said that that was making citizenship to rest upon property I recollect, or I think I do, the indignant terms in which the Senator from Illinois then replied, conveying the idea that it was a demagogical argument in this body to speak of a subject like that; and yet today he says to the Senator from Wisconsin that it is not a statesmanlike proposition. He makes the same point upon the Senator from Wisconsin which he undertook to make upon me on the civil rights bill.
If it is the pleasure of Congress to make the wild Indians of the desert citizens, and then if three fourths of the States agree to it. I presume we will get along the best way we can; and what shall then be the relations between these people and the United States will be for us and for our descendants to work out. They are not now citizens; they are subjects. For safety, as a matter of policy we regulate our intercourse with them to a large extent by treaties, so as that they shall assent to the regulations that govern them. That is a matter of policy, but we need not treat with an Indian. We can make him obey our laws, and being liable to such obedience he is subject to the jurisdiction of the United States. I did not intend to discuss this question, but I got into it by the inquiry I made of the Senator from Illinois.
Mr. HOWARD. I hope, sir, that this amendment will not be adopted. I regard the language of the section as sufficiently certain and definite. If amended according to the suggestion of the honorable Senator from Wisconsin it will read as follows:
All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States, and of the State wherein they reside.
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Suppose we adopt the amendment as suggested by the honorable Senator from Wisconsin, in what condition will it leave us as to the Indian tribes wherever they are found? According to the ideas of the honorable Senator, as I understand them, this consequence would follow: all that would remain to be done on the part of any State would be to impose a tax upon the Indians, whether in their tribal condition or otherwise, in order to make them citizens of the United States. Does the honorable Senator from Wisconsin contemplate that? Does he propose to leave this amendment in such a condition that the State of Wisconsin, which he so ably represents here, will have the right to impose taxes upon the Indian tribes within her limits, and thus make of these Indians constituting the tribes, no matter how numerous, citizens of the United States and of the State of Wisconsin? That would be the direct effect of his amendment if it should be adopted. It would, in short, be a naturalization, whenever the States saw fit to impose a tax upon the Indians, of the whole Indian race within the limits of the States.
Mr. CLARK. The Senator will permit me to suggest a case. Suppose the State of Kansas, for instance, should tax her Indians for five years, they would he citizens.
Mr. HOWARD. Undoubtedly.
Mr. CLARK. But if she refuse to tax them for the next ten years how would they be then? Would they be citizens or not?
Mr. HOWARD. I take it for granted that when a man becomes a citizen of the United States under the Constitution they cannot cease to be a citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited.
Mr. CLARK. It depends upon taxation.
Mr. HOWARD. The continuance of the quality of citizenship would not. I think, depend upon the continuance of taxation.
Mr. CLARK. But still he would be an "Indian not taxed."
Mr. HOWARD. He has been taxed once.
Mr. CLARK. The point I wish to bring the Senator to is this: would not the admission of a provision of that kind make a sort of shifting use of the Indians?
Mr. HOWARD. It might, depending upon the construction which would happen to be given by the courts to the language of the Constitution. The great objection, therefore, to the amendment is, that it is an actual naturalization, whenever the State sees fit to enact a naturalization law in reference to the Indians in the shape of the imposition of a tax, of the whole Indian population within their limits. There is no evading this consequence, but still I cannot impute to the honorable Senator from Wisconsin a purpose like that. I think he has misapprehended the effect of the language which he suggests. I think the language as it stands is sufficiently certain and exact. It is that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
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I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction" as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. That question has long since been adjudicated, so far as the usage of the Government is concerned. The Government of the United States have always regarded and treated the Indian tribes within our limits as foreign Powers, so far as the treaty-making power is concerned, and so far especially as the commercial power is concerned, for in the very Constitution itself there is a provision that Congress shall have power to regulate commerce, not only with foreign nations and among the States, but also with the Indian tribes. That clause, in my judgment, presents a full and complete recognition of the national character of the Indian tribes, the same character in which they have been recognized ever since the discovery of the continent and its occupation by civilized men; the same light in which the Indians were viewed and treated by Great Britain from the earliest commencement of the settlement of the continent. They have always been regarded, even in our ante-revolutionary history, as being independent nations, with whom the other nations of the earth have held treaties, and in no case, I believe, has either the Government of Great Britain or of the United States recognized the right of an individual Indian to transfer or convey lands. Why? If he was a citizen, in other words, if he was not a subject of a foreign Power, if he did not belong to a tribe whose common law is that land as well as almost every other description of property shall be held in common among the members of the tribe, subject to a chief, why is it that the reservation has been imposed and always observed upon the act of conveyance on the part of the Indian?
A passage has been read from an opinion given by Mr. Attorney General Cashing on this subject, in which, it seems to me, he takes great liberties with the Constitution in speaking of the Indian as being a subject of the United States. Certainly I do not so hold; I cannot so hold, because it has been the habit of the Government from the beginning to treat with the Indian tribes as sovereign Powers. The Indians are our wards. Such is the language of the courts. They have a national independence. They have an absolute right to the occupancy of the soil upon which they reside; and the only ground of claim which the United States has ever put forth to the proprietorship of the soil of an Indian territory is simply the right of preemption; that is, the right of the United States to be the first purchaser from the Indian tribes. We have always recognized in an Indian tribe the same sovereignty over the soil which it occupied as we recognize in a foreign nation of a power in itself over its national domains. They sell the lands to us by treaty, and they sell the lands as the sovereign Power owning, holding, and occupying the lands.
But it is useless, it seems to me, Mr. President, to enlarge further upon the question of the real political power of Indians or of Indian tribes. Our legislation has always recognized them as sovereign Powers. The Indian who is still connected by his tribal relation with the government of his tribe is subject for crimes committed against the laws or usages of the tribe to the tribe itself, and not to any foreign or other tribunal. I believe that has been the uniform course of decision on that subject. The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.
Mr. FESSENDEN. Within the territory.
Mr. HOWARD. Yes, sir. Why? Because the jurisdiction of the nation intervenes and ousts what would otherwise be perhaps a right of jurisdiction of the United States. But the great objection to the amendment to the amendment is that it is an unconscious attempt on the part of my friend from Wisconsin to naturalize all the Indians within the limits of the United States. I do not agree to that. I am not quite so liberal in my views. I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me and hold lands and deal in every other way that a citizen of the United States has a right to do.
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Mr. DOOLITTLE. Mr. President, the Senator from Michigan declares his purpose to be
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not to include these Indians within this constitutional amendment. In purpose I agree with him. I do not intend to include them. My purpose is to exclude them; and the question between us is whether his language Includes them and mine excludes them, or whether his language excludes them and mine includes them. The Senator says, in the first place, if the words which are suggested by me, "Indians not taxed," are to govern, any State has it in its power to naturalize the Indian tribes within its limits and bring them in as citizens. Can a State tax them unless they are subject to the State? Certainly not. My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet, if they are subject to the jurisdiction of the United States they are declared by the very language of his amendment to be citizens.
Now, sir, the words which I have used are borrowed from the Constitution as it stands — the Constitution adopted by our fathers. We have lived under it for seventy years; and these words, "Indians not taxed," are the very words which were used by our fathers in forming the Constitution as descriptive of a certain class of Indians which should not be enumerated as a part of our population, as distinguished from another class which should be enumerated as a part of our population; and these are words of description used by them under which we have acted for seventy years and more. They have come to have a meaning that is understood as descriptive of a certain class of Indians that may be enumerated within our population as a part of the citizens of the United States, to constitute a part of the basis of the political power of the United States, and others not included within it are to be excluded from that basis. The courts of the United States have had occasion to speak on this subject. and from time to time they have declared that the Indians are subjects of the United States, not citizens; and that is the very word in your amendment where they are "subject to the jurisdiction" of the United States. Why, sir, what does it mean when you say that a people are subject to the jurisdiction of the United States? Subject, first, to its military power; second, subject to its political power; third, subject to its legislative power; and who doubts our legislative power over the reservations upon which these Indians are settled? Speaking upon that subject, I have to say that one of the most distinguished men who ever sat in this body, certainly that have sat in this body since I have been a member of it, the late Senator from Vermont, Judge Collatner, time and again urged upon me, as a member of the Committee on Indian Affairs, to bring forward a scheme of legislation by which we should pass laws and subject all the Indians in all the Territories of the United States to the legislation of Congress direct. The Senator from Ohio not now in his seat [Mr. Sherman] has contended for the same thing, and other members of Congress contend that the very best policy of dealing with the Indian tribes is to subject them at once to our legislative power and jurisdiction. "Subjects of the United States!" Why, sir, they are completely our subjects, completely in our power. We hold them as our wards. They are living upon our bounty.
Mr. President, there is one thing that I doubt not Senators must have forgotten. In all those vast territories which we acquired from Mexico, we took the sovereignty and the jurisdiction of the soil and the country from Mexico, just as Mexico herself had held it, just as Spain had held it before the Mexican republic was established; and what was the power that was held by Spain and by Mexico over the Indian tribes? They did not recognize even the possessory title of an Indian in one foot of the jurisdiction of those territories. In reference to the Indians of California, we have never admitted that they had sufficient jurisdiction over any part of its soil to make a treaty with them, The Senate of the United States expressly refused to make treaties with the Indians of California, on the ground that they had no title and no jurisdiction whatever in the soil; they were absolutely subject to the authority of the United States, which we derived from our treaty with Mexico.
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The opinion of Attorney General Cushing, one of the ablest men who has ever occupied the position of Attorney General, has been read here, in which he states clearly that the Indians, though born upon our soil, owing us allegiance, are not citizens; they are our subjects; and that is the very word which is used in this amendment proposed to the Constitution of the United States, declaring that if they be "subject" to our jurisdiction, born on our soil, they are, ipso facto, citizens of the United States.
Mr. President, the celebrated civil rights bill which has been passed during the present Congress, which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned, uses the following language:
"That 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."
Why should this language be criticised any more now, when it is brought forward here in this constitutional amendment, than when it was in the civil rights bill? Why should the language be more criticised here than it is in the second section of this constitutional amendment, where the same words are used? The second section, in apportioning representation, proposes to count the whole number of persons in each State "excluding Indians not taxed." Why not insert those words in the first section as well as in the second? Why not insert them in this constitutional amendment as well as in the civil rights bill? The civil rights bill undertook to do this same thing. It undertook to declare that "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." But, sir, the committee of fifteen, fearing that this declaration by Congress was without validity unless a constitutional amendment should be brought forward to enforce it, have thought proper to report this amendment.
Mr. FESSENDEN. I want to say to the honorable Senator, who has a great regard for truth, that he is drawing entirely upon his imagination. There is not one word of correctness in all that he is saying, not a particle, not a scintilla, not the beginning of truth.
Mr. DOOLITTLE. I take a little issue with my friend from Maine on that point as a question of fact.
Mr. FESSENDEN. In the first place, this was not brought forward by the committee of fifteen at all.
Mr. DOOLITTLE. This proposition was first introduced into the House by a gentleman from Ohio by the name of Bingham.
Mr. FESSENDEN. I thought the Senator was speaking of this first part of the section, the amendment, not the whole.
Mr. DOOLITTLE. No, sir; that is proposed by the Senator from Michigan. As I understand, a member from Ohio, Mr. Bingham, who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward a proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons, and that constitutional amendment, Mr. Bingham being himself one of the committee of fifteen, was referred by the House to that committee, and from the committee it has been reported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the Constitution now appears to give it validity and force. It is not an imputation upon any one.
Mr. GRIMES. It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill.
Mr. DOOLITTLE. The Senator goes too far. What I say is that they had doubts.
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Mr. FESSENDEN. I will say to the Senator one thing: whatever may have been Mr. Bingham's motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.
Mr. DOOLITTLE. I will ask the Senator from Maine this question: if Congress under the Constitution now has the power to declare that "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," what is the necessity of amending the Constitution at all on this subject?
Mr. FESSENDEN. I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. I was saying that the committee of fifteen brought this proposition forward for a specific object.
Mr. DOOLITTLE. I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill.
Mr. FESSENDEN. Exactly; and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill.
Mr. DOOLITTLE. Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject?
Mr. FESSENDEN. That question the Senator may answer to suit himself. It has no reference to the civil rights bill.
Mr. DOOLITTLE. That does not meet the case at all. If my friend maintains that at this moment the Constitution of the United States, without amendment gives all the power you ask, why do you put this new amendment into it on that subject?
Mr. HOWARD. If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give.
Mr. DOOLITTLE. I was asking the Senator from Maine.
Mr. HOWARD. I was a member of the same committee, and the Senator's observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it and expose the freedmen again to the oppressions of their old masters.
Mr. DOOLITTLE. The Senator has made his answer, I suppose.
Mr. HOWARD. Yes, sir.
Mr. DOOLITTLE. Mr. President, when the Senator undertakes to say that I have any disposition to subject the freedmen to the despotism of their old masters, he says that which there is not a particle of foundation or excuse for saying. I say to that Senator
Mr. HOWARD. I beg the Senator to allow me one word. I made no personal imputation against the Senator from Wisconsin.
Mr. DOOLITTLE. I desire to finish my sentence before being interrupted.
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Mr. HOWARD. I will not be forced by the Senator into a false position.
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Mr. DOOLITTLE. I do not desire to be interrupted until I finish one sentence. I say to that Senator that so far as the rights of the freedmen are concerned, I am willing to compare my course of action in this body or elsewhere with his. I say to that Senator that I labored as hard as he has labored to secure the rights and liberties of the freedmen, to emancipate the slaves of the South, and to put an end forever not only to slavery, but to the aristocracy that was founded upon it; and I have never, by word or deed, said or done anything, as a member of this body or elsewhere, tending to build up any oppression against the freedmen, tending to destroy any of their rights. I say to that honorable Senator, and I am ready at any time to meet him in argument upon it although it is drawing me now from the question in dispute, that I myself prepared and introduced here and urged a bill whose provisions defended every right of the freedmen just as much as the bill to which we have now made reference, and I am prepared to do so and to defend their rights with the whole power of the Government.
But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is, whether the language which he uses, "all persons subject to the jurisdiction of the United States," includes these Indians. I maintain that it does; and, therefore, for the purpose of relieving it from any doubt, for the purpose of excluding this class of persons, as they are, in my judgment, utterly unfit to be citizens of the United States, I have proposed this amendment, which I borrow from the Constitution as it stands, which our fathers adopted more than seventy years ago, which I find also in the civil rights bill which passed this present Congress, and which I find also in the second section of this constitutional amendment when applied to the enumeration of the inhabitants of the States. I insist that it is just, proper in every way, but reasonable, that we exclude the wild Indians from being regarded or held as citizens of the United States.
Mr. WILLIAMS. I would not agree to this proposed constitutional amendment if I supposed it made Indians not taxed citizens of the United States. But I am satisfied that, giving to the amendment a fair and reasonable construction, it does not include Indians not taxed. The first and second sections of this proposed amendment are to be taken together, are to be construed together, and the meaning of the word "citizens," as employed in both sections, is to be determined from the manner in which that word is used in both of those sections. Section one provides that—
All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
If there be any doubt about the meaning of that paragraph, I think that doubt is entirely removed by the second section, for by the second section of this constitutional amendment Indians not taxed are not counted at all in the basis of representation. The words in the second section are as follows:
Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
They are not to be regarded as persons to be counted under any circumstances. Indians not taxed are not even entitled to be counted as persons in the basis of representation under any circumstances; and then the section provides –
But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, &c.
Now, can any reasonable man conclude that the word "citizens" there applies to Indians not taxed, or includes Indians not taxed, when they are expressly excluded from the basis of representation and cannot even be taken into the enumeration of persons upon whom representation is to be based? I think it is perfectly clear, when you put the first and second sections together, that Indians not taxed are excluded from the term "citizens" because it cannot be supposed for one moment that the term "citizens," as employed in these two sections, is intended to apply to Indians who are not even counted under any circumstances as a part of the basis of representation. I therefore think that the amendment of the Senator from Wisconsin is clearly unnecessary. I do not believe that "Indians not taxed" are included, and I understand that to be a description of Indians who maintain their tribal relations and who are not in all respects subject to the jurisdiction of the United States.
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In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, "subject to the jurisdiction of the United States," to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of those words, 1 think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed, I do not think the amendment is necessary.
Mr. SAULSBURY. I do not presume that any one will pretend to disguise the fact that the object of this first section is simply to declare that negroes shall be citizens of the United States. There can be no other object in it, I presume, than a further extension of the legislative kindness and beneficence of Congress toward that class of people.
“The poor Indian, whose untutored mind, Sees God in clouds, or hears him in the wind,” was not thought of. I say this not meaning it to be any reflection upon the honorable committee who reported the amendment, because for all the gentlemen composing it I have a high respect personally; but that is evidently the object. I have no doubt myself of the correctness of the position, as a question of law, taken by the honorable Senator from Wisconsin; but, sir, I feel disposed to vote against his amendment, because if these negroes are to be made citizens of the United States, I can see no reason in justice or in right why the Indians should not be made citizens. If our citizens are to be increased in this wholesale manner, I cannot turn my back upon that persecuted race, among whom are many intelligent, educated men, and embrace as fellow-citizens the negro race. I therefore, as at present advised, for the reasons I have given, shall vote against the proposition of my friend from Wisconsin, although I believe, as a matter of law, that his statements are correct.
The PRESIDENT pro tempore. The question is on the amendment of the Senator from Wisconsin to the amendment proposed by the Senator from Michigan.
Mr. DOOLITTLE. I ask for the yeas and nays on that question.
The yeas and nays were ordered.
Mr. VAN WINKLE. I desire to have the amendment to the amendment read.
The Secretary read the amendment to the amendment, which was to insert after the word "thereof" in the amendment the words "excluding Indians not taxed" so that the amendment, if amended, would read:
All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the State wherein they reside.
The question being taken by yeas and nays, resulted — yeas 10, nays 80; [snip]
So the amendment to the amendment was rejected.
The PRESIDENT pro tempore. The question now is on the amendment of the Senator from Michigan.
The amendment was agreed to.
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The PRESIDENT pro tempore. The next amendment proposed by the Senator from Michigan [Mr. HOWARD] will be read.
The Secretary read the amendment, which was in section two, line twenty-two, after the word “male,” to strike out the word “citizens” and insert “inhabitants, being citizens of the United States;” so as to make the section read:
“SEC. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.
Mr. JOHNSON. Is it supposed that that amendment changes the section as it was before? It appears to me to be the same as it was before, because, although the word “inhabitants” is used, it is in connection with the other words that they are to be citizens of the United States. As it originally stood it read:
But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens.
Mr. FESSENDEN. The object is the same as in the amendment already made, to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State.
Mr. HOWARD. The object is to make section two conform to section one, to make them harmonize.
Mr. JOHNSON. I am satisfied.
The amendment was agreed to.
Mr. SAULSBURY. Is it in order now to offer an amendment to the first section?
The PRESIDENT pro tempore. There are several more amendments before the Senate, offered by the Senator from Michigan, [Mr. HOWARD,] not yet acted upon. The next amendment offered by him will be read.
The Secretary read the amendment, which was to add at the end of section two the words “in such State.”
The amendment was agreed to.
The next amendment was to insert as section three the following:
SEC. 3. That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer or any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability. [snip]
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IN SENATE
June 8, 1866
RECONSTRUCTION
The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment of Mr. WILLIAMS to strike out the second section and to insert the following in lieu thereof:
“SEC. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. [snip]
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Mr. FESSENDEN. I desire to insert in the first section, by general consent, after the word "born," the words "or naturalized;" so that the clause will read:
All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.
Mr. HOWARD. There is no objection to that.
The amendment was agreed to.
Mr. DOOLITTLE. I now offer the amendment which I gave notice of, the effect of which is to submit these separate sections as so many separate articles, any of which may be accepted or rejected by the States. I move to strike out all after the enacting clause of the resolution and to insert the following:
That the following articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, which, or either of which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:
ARTICLE—. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
ARTICLE—. Representatives shall be apportioned among the several States which may be included within the Union according to their respective number, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty one years of age in such State.
ARTICLE—. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability.
ARTICLE—. The obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate.
ARTICLE—. Neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim on account of the loss or emancipation of any slave; but all such debts, obligations, and claims, shall be forever held illegal and void.
ARTICLE—. The Congress shall have power to enforce, by appropriate legislation, the provisions of these articles.
I shall not make any speech on this subject. I simply state the fact that this is in accordance with the precedents. The first amendment to the Constitution submitted to the States were twelve in number, and they were submitted as separate articles. Ten of them were adopted; two of them were rejected by the States. All the other amendments that have ever been submitted have been submitted as separate articles.
Mr. JOHNSON. And the language was the same, “or either of them.”
Mr. DOOLITTLE. I have not the acts before me, but that is so. The reason is obvious. In all legislation a single member has the right to demand a vote on every single proposition; and as these distinct propositions are to be submitted to the Legislatures of the several States, they ought to be submitted in such a way that they may ratify or reject either of the propositions. Now, they are entirely distinct from each other; the first defining citizenship; the second on the subject of representation; the third in relation to disfranchisement; and, as amended, the fourth and fifth sections are combined in one, having reference to the public debt and the rebel debt. They are all distinct, independent propositions. They ought not to be submitted in such a way that they must all be accepted or all rejected by the States, but the States should be permitted to act upon each of them separately. I will not take up the time of the Senate in discussion, because I know the desire is to vote. [snip]
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Mr. DAVIS. I desire to move an amendment to the third section.
The PRESIDING OFFICER. The Chair understands that the third section being an amendment agreed to in committee, it is not in order to amend it now, but it will be in order when the joint resolution shall be reported to the Senate.
The joint resolution was reported to the Senate as amended.
The PRESIDING OFFICER. The resolution is now open to further amendment.
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Mr. DAVIS. I now move to amend the third section, in line thirty-three, by striking out the words “or under any State,” and in lines thirty-five and thirty-six by striking out the words “or as a member of any State Legislature or as an executive or judicial officer of any State;” so that it will read:
SEC. 3. That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, who, having previously taken an oath, as a member of Congress or as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two thirds of each House remove such disability.
I have barely a word to say in explanation of this amendment. This section operates upon all officers, both of the United States and of the States, who took an oath to support the Constitution of the United States, and it excludes them from office in the future, as well in the States as in the United States. The object of my amendment is simply to limit the effect of the violation of the Constitution to cases where the officer who took the oath was a United States officer, to exclude the ineligibility from State officers, and to restrict it entirely to Federal officers.
The amendment was rejected. [snip]
The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole, and the question must be taken on each amendment separately if called for by any Senator. The first amendment will be read.
The Secretary read the first amendment, which was to insert at the beginning of the first section the following words:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Mr. McDOUGALL. I move that the resolution under consideration be postponed until Tuesday next at one o'clock.
Mr. FESSENDEN. It was agreed yesterday that we should take the vote today.
Mr. HOWARD. I hope it will not be postponed. It was understood that we should come to a final vote today.
Mr. McDOUGALL. In making the motion, I wish to give the reason why I make it. This business of amending the Constitution should be carefully done; and about many of these provisions I am myself still in great doubt, though I have looked at them as carefully as I could. I do not think we should hasten constitutional amendments. It takes a great deal of hard work to get out foundation stones, and now we are undertaking to lay foundation stones. I say the measure had better be manipulated a little more than it has been, so that we may know that we do exactly right whether we affirm or disaffirm the proposition.
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Several SENATORS. Let us vote.
Mr. McDOUGALL. I am not disposed to vote upon it at all. Of course I can be subjected to the power of a majority as organized in caucus; but I must say it is the first time in the history of this Republic that legislative matters and great constitutional questions were settled in party caucus. That has transpired for the first time in our history during the recent war and during the past and present Administrations. It deprives men of the right of counsel. Those who have the violence and strength of the majority can exert it; but I have a right to be heard upon all these questions. There is no party organization that has the right, under our system of government, to so organize themselves that they shall supersede the system under which our Government was established, and when they do it it is an act of tyrannous power. It is glorious to have a giant's power, but tyrannous to use it like a giant.
The motion to postpone was not agreed to.
The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole to the first section of the proposed article.
The amendments were concurred in. [snip]
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HOUSE OF REPRESENTATIVES
June 13, 1866
RECONSTRUCTION—AGAIN
Mr. STEVENS. Mr. Speaker, I do not intend to detain the House long. A few words will suffice.
We may, perhaps, congratulate the House and the country on the near approach to completion of a proposition to be submitted to the people for the admission of an outlawed community into the privileges and advantages of a civilized and free Government.
When I say that we should rejoice at such completion, I do not thereby intend so much to express joy at the superior excellence of the scheme, as that there is to be a scheme—a scheme containing much positive good, as well, I am bound to admit, as the omission of many better things.
In my youth, in my manhood, in my old age, I had fondly dreamed that when any fortunate chance should have broken up for awhile the foundation of our institutions, and released us from obligations the most tyrannical that ever man imposed in the name of freedom, that the intelligent, pure and just men of this Republic, true to their professions and their consciences, would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich. In short, that no distinction would be tolerated in this purified Republic but what arose from merit and conduct. This bright dream has vanished "like the baseless fabric of a vision." I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism.
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Do you inquire why, holding these views and possessing some will of my own, I accept so imperfect a proposition? I answer, because I live among men and not among angels; among men as intelligent, as determined, and as independent as myself, who, not agreeing with me, do not choose to yield their opinions to mine. Mutual concession, therefore, is our only resort, or mutual hostilities.
We might well have been justified in making renewed and more strenuous efforts for a better plan could we have had the cooperation of the executive. With his cordial assistance the rebel States might have been made model republics, and this nation an empire of universal freedom. But he preferred "restoration" to "reconstruction.'' He chooses that the slave States should remain as nearly as possible in their ancient condition, with such small modifications as he and his prime minister should suggest, without any impertinent interference from Congress. He anticipated the legitimate action of the national Legislature, and by rank usurpation erected governments in the conquered provinces; imposed upon them institutions in the most arbitrary and unconstitutional manner; and now maintains them as legitimate governments, and insolently demands that they shall be represented in Congress on equal terms with loyal and regular States.
To repress this tyranny and at the same time to do some justice to conquered rebels requires caution. The great danger is that the seceders may soon overwhelm the loyal men in Congress. The haste urged upon us by some loyal but impetuous men; their anxiety to embrace the representatives of rebels; their ambition to display their dexterity in the use of the broad mantle of charity; and especially the danger arising from the unscrupulous use of patronage and from the oily orations of false prophets, famous for sixty-day obligations and for protested political promises, admonish us to make no further delay.
A few words will suffice to explain the changes made by the Senate in the proposition which we sent them.
The first section is altered by defining who are citizens of the United States and of the States. This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States. It declares this great privilege to belong to every person born or naturalized in the United States.
The second section has received but slight alteration. I wish it had received more. It contains much less power than I could wish; it has not half the vigor of the amendment which was lost in the Senate. It or the proposition offered by Senator Wade would have worked the enfranchisement of the colored man in half the time.
The third section has been wholly changed by substituting the ineligibility of certain high offenders for the disfranchisement of all rebels until 1870.
This I cannot look upon as an improvement. It opens the elective franchise to such as the States choose to admit. In my judgment it endangers the Government of the country, both State and national; and may give the next Congress and President to the reconstructed rebels. With their enlarged basis of representation, and exclusion of the loyal men of color from the ballot-box, I see no hope of safety unless in the prescription of proper enabling acts, which shall do justice to the freedmen and enjoin enfranchisement as a condition-precedent.
The fourth section, which renders inviolable the public debt and repudiates the rebel debt, will secure the approbation of all but traitors.
The fifth section is unaltered.
You perceive that while I see much good in the proposition I do not pretend to be satisfied with it. And yet I am anxious for its speedy adoption, for I dread delay. The danger is that before any constitutional guards shall have been adopted Congress will be flooded by rebels and rebel sympathizers. Whoever has mingled much in deliberative bodies must have observed the mental as well as physical nervousness of many members, impelling them too often to injudicious action. Whoever has watched the feelings of this house during the tedious months of this session, listened to the impatient whispering of some and the open declarations of others; especially when able and sincere men propose to gratify personal predilections by breaking the ranks of the Union forces and presenting to the enemy a ragged front of stragglers, must be anxious to hasten the result and prevent the demoralization of our friends. Hence, I say, let us no longer delay; take what we can get now, and hope for better things in further legislation; in enabling acts or other provisions.
I now, sir, ask for the question.
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The SPEAKER. The question before the House is on concurring in the amendments of the Senate; and as it requires by the Constitution a two-thirds vote, the vote will be taken by yeas and nays. [snip]
The joint resolution as amended by the Senate is as follows:
Joint resolution proposing an amendment to the Constitution of the United States.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:
ARTICLE—
SEC. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
SEC. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SEC. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution
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of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove said disability.
SEC. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave but all such debts, obligations, and claims shall be held illegal and void.
SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The question was put on concurring with the amendments of the Senate; and there were—yeas 120, nays 32, not voting 32; … [snip]
The SPEAKER. Two thirds of both Houses having concurred in the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the joint resolution has passed. [snip]
The result of the vote having been announced as above recorded,
Mr. STEVENS moved to reconsider the vote by which the amendments of the Senate were concurred in; and also moved to lay the motion to reconsider on the table.
The latter motion was agreed to. [snip]
[End of debates about the 1868 Fourteenth Amendment – citizen.]
Proposed: June 13, 1866 – Ratified: July 9, 1868
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[Start of a few debates about Reconstruction and the 1870 Fifteenth Amendment – vote.]
HOUSE OF REPRESENTATIVES
June 14, 1866
RECONSTRUCTION
The House then resumed, as the special order, the consideration of bill of the House No. 543, to restore to the States lately in rebellion their full political rights, upon which Mr. WINDOM was entitled to the floor.
Mr. WINDOM. Mr. Speaker, after the thorough discussion this question has received I can hardly expect to add anything new. But at a time like this silence is akin to cowardice; indifference is treason. The great struggle through which we are passing is of a two-fold character—it is a war of principles as well as of material forces. The latter is ended and our triumph is complete; but the conflict of principles still rages with increased vigor. Rebels vanquished in the yield are encouraged from unexpected quarters to renew the contest in other and more dangerous forms. Foiled in their mad attempt to overthrow the Republic by force, they now hope to accomplish it by political strategy. In 1860 two modes of destroying the Government were considered by them. One was to rebel and by force of arms disrupt it; the other was to remain in
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their places of power, and, as they said, “fight it from the inside.” Their councils were for a time divided as to which of these modes would be the more efficient and practicable. The “inside” policy would doubtless have prevailed had not a few hot-heads have precipitated the decision by inaugurating open rebellion, thus compelling the more discreet to follow. The promise of Democratic leaders at the North to aid and assist them in maintaining the right of secession did much to induce the attempt; and the last Democratic President (James Buchanan) did what he could to make good that promise. But the people arose in the sublime majesty of their power and demanded the preservation of their Government. A storm of patriotic indignation swept over the country. These same Democratic leaders quailed before it, and instead of armed support, gave only the aid and comfort of the sympathy and secret conspiracies. Rebellion having failed through the inability of those allies to keep their pledges, the rebels now propose to try the other mode, namely, to take their seats in Congress and carry on the contest “from the inside.” In this they have renewed assurances of aid from the North. Once more the people are called upon to preserve the Republic against the treachery of pretended friends and the machinations of avowed enemies. Their response is by no means uncertain. Already it has been heard in tones which those in high places would do well to heed. What we have heard is only the muttering of the distant storm which will soon break with fury upon the heads of those who are false to their trust. The loyal people have suffered too much and understand too well the issues of the hour to be deceived by demagogues or traitors. They will demand nothing for vengeance, but everything for security. Their generosity is unbounded, but will not yield an iota of principle.
The issues which now distract the country could have been easily avoided. The conflict of principles might have ceased with the conflict of arms. When Lee surrendered to rebels understood it to be an entire surrender of the “cause” and of the principles upon which it was based. They did not doubt the right or the determination of the Government to insist upon this, and knowing that by treason and rebellion they had justly forfeited life and property, both of which were at the mercy of the victors, they were quite willing to purchase these by yielding to any just demands. They felt that, having staked everything upon the wager of battle and having lost, it was the right of the conqueror to impose terms and the duty of the conquered to submit. They understood well the principles of liberty and equal rights, for which the nation had contended, and they anticipated such terms and conditions as would forever guaranty them. Had the President then called an extra session of Congress, and upon consultation with the people, through their Representatives, agreed upon and demanded such terms, they would have been gladly accepted, and the whole country would have long ago rejoiced in peace. Just here was committed the fatal blunder which had led to all our present troubles, and which bids fair to disturb and agitate the political elements for years to come. Reconstruction and reconciliation were then plain and easy. Now they are complicated and difficult. The President’s intentions, as disclosed by his speeches, at that time were right. He hated treason, and declared it should be made “odious.” He despised traitors, and said they should be “punished.” Those were brave and patriotic words, and they found a hearty response in every loyal breast. But during all the last summer and autumn he suffered himself to be surrounded by pardon-seeking rebels, who filled his audience room, crowded the ante-chambers, halls, and lobbies of the White House, and knelt before him, with well-dissembled loyalty on their lips, while treason rankled in their breasts. He believed their assurances, and was flattered and deceived. His hatred was turned to compassion, his distrust to confidence.
“Vice is a monster of such hideous mien.
As, to be hated, needs but to be seen;
Yet seen too oft, familiar with her face,
We first endure, then pity, then embrace.”
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Having persuaded the Executive and a portion of his Cabinet that their policy of reconstruction is the only proper and constitutional one, the rebels now seek, through the aid of their old party associates at the North, to impose it upon the country. Against this policy the majority in Congress protests, and demands one which is approved by the loyal people. Briefly stated, the real issue between the rebels and Congress is, shall the principles for which we sacrificed a quarter of a million precious lives and untold millions of public treasure be abandoned at the dictation of traitors? The rebels say “yes;” Congress answers “no.” Shall vanquished traitors be permitted through their representatives in Congress to seize upon the Government they have tried to destroy, and thereby accomplish by political strategy what they have failed to do by courage in the field? The rebels insist upon it; Congress protests. Has the Government a right to demand of traitors, as a condition-precedent to their full restoration to political power, such guarantees as will insure its own safety, guard its honor, and protect its humblest defender in all the rights of citizenship? Congress asserts that right. The rebels deny it, and insolently demand immediate and unconditional restoration as one of their constitutional rights. Shall the rebellious States come back with largely increased political powers, as the result and reward of treason, or shall the Constitution be so amended as to make the basis of representation just and equitable, and thereby place the North and South on an exact equality in this respect? Congress says it shall be so amended. The rebels say it shall not, and that they are entitled to come back at once without terms or conditions of any kind.
How far the rebel policy has been impressed upon the Administration may be seen by reference to the President’s last annual message, his veto of the Freedmen’s Bureau bill, his 22d of February speech, and his veto of the civil rights bill, all of which he has declared to be the authoritative enunciations of his policy. Interpreted by these utterances, that policy declares: first, that inasmuch as the acts of secession are void and the withdrawal of a State from the Union is legally impossible, the rebellious States have never lost their places as States in the Union, and that they therefore are, and constantly have been, entitled to all the rights, privileges, and immunities appertaining to any State, among which is the right of the people to immediate representation in Congress without the exaction of any condition whatever; second, that as representation and taxation are inseparable, Congress has no right to impose the one until it grants the other; third, that it is a grave question whether any laws affecting the interests of the people of those States can be constitutionally enacted so long as they are denied representation in Congress; fourth, that the Executive alone is authorized to investigate and decide all questions appertaining to the internal condition and Federal relations of those States; that the people, through their representatives in Congress, are entitled to no voice on the subject of reconstruction, except that “each House may judge of the election, returns, and qualifications of its own members;” but that this right is no broader when applied to an applicant for a seat from a disloyal than to one from a loyal State; that, therefore, in appointing a joint committee “to inquire into the condition of those States,” and into the loyalty or disloyalty of their people, and their consequent fitness or unfitness to participate in the administration of the Government, Congress has flagrantly transcended its powers, usurped executive prerogatives, and contumaciously hindered and obstructed the reunion of the States; fifth, that the freedmen of the South, whom we called upon to defend us in the day of our great peril, to whom we gave the solemn assurance of national protection as well as freedom, and who, trusting our plighted honor, fought with us for the nation’s life, shall have no protection for their persons or their property, and no civil or political rights except such as the authorities of their respective States may choose to extend to them, and that they shall have no voice in the selection of those authorities; that loyal white men, who have suffered and fought for the Union shall have no political advantages over rebels who have wickedly attempted its overthrow.
The central, governing principle of this policy, from which its other elements spring as branches from the parent trunk is found in the declaration that the rebellious States are, and constantly have been, entitled to all the rights, privileges, and immunities of any State, and that, consequently, the people thereof are entitled to demand immediate representation in Congress, without any conditions whatever.
The President is good enough to inform us that he as Commander-in-Chief of the Army and Navy has required of them certain terms with which they have complied, namely, the adoption of the anti-slavery amendment, the repudiation of the confederate debt, and the abrogation of their secession ordinances; that no other terms are necessary or proper, and therefore he and the rebels have fully performed the work of reconstruction; that he has guarantied to those States a republican form of government, as required by the Constitution of the United States. He further declares through his Secretary of State, that reconciliation and not reconstruction is now the obligation resting upon us. That Congress has no duty to perform in the premises but to admit at once the Senators and Representatives from the South, and thereby complete the work of reconciliation.
It is true that to Congress is generally conceded the right to examine and judge of the credentials of an applicant for a seat, in order to ascertain whether they are in proper form, and also to inquire if he has a majority of the votes cast in his district, and if he is of proper age. But we are by no means to ask anything about the kind of government established in the State from which he comes or the character of the people who send him to represent them. Having ascertained that his credentials are formal, that he is twenty-five years of age, and has a majority of all the votes cast in his district, we are to be permitted to administer to him an oath to support the Constitution of the United States. When we shall have done this much, and brought back all the southern Representatives, it is supposed we will be once more in the full enjoyment of the blessings of complete restoration, peace, and union.
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This grand panacea for all our political ills is based upon the theory that the people who attempted by violence and perjury to destroy the Government, who waged a most wicked and diabolical four years’ war for the establishment of a slave holding empire upon the ruins of the Republic, who murdered our soldiers in cold blood, who fired our hotels filled with women and children, who starved our soldiers to death in loathsome prison-pens, within sight of storehouses groaning with confederate supplies, who polluted the fountains of life by knowingly inoculating prisoners with the virus of a nameless disease which will scourge them to their graves and entail untold sufferings upon their innocent offspring, who laid down their arms only when our victorious bayonets were at their throats, and who, when professing to accept the issues of war, assassinated the nation’s honored chief—that this people, without any evidences of repentance, but with every indication of sorrow for the “lost cause,” and of bitter hatred toward the Government and its defenders, have suddenly become sufficiently loyal to be trusted with all the rights and franchises they have renounced and forfeited; that in “accepting the situation” they have entitled themselves to step at once, unquestioned, from the rebel congress
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and the rebel camps into the halls of legislation to make laws for the Republic which they have so recently tried in vain to destroy; to become the guardians of our widows, orphans, and disabled soldiers, and custodians of all the civil and political rights of the humble colored patriots whom they held in slavery as long as they could.
But is claimed by some of its supporters that this policy demands the admission of loyal Representatives only, without regard to the character of their constituencies. Unfortunately the term “loyalty” seems to have acquired an exceedingly doubtful meaning. The South use it to define a faithful adherence to rebellion and treason. A certain class of northern Democrats mean by it all manner of opposition to the war for the Union, an unwavering sympathy with its enemies so long as they had any hope of success in the field, and since their failure there a determination to restore them to power in the Government. The President in his 22d of February speech defines a loyal man to be one who acknowledges his allegiance to the Government and swears to support the Constitution of the United States, and adds by way of further explanation, “He (the rebel) cannot do this in good faith unless he is loyal. No amplification of the oath can make any difference; it is mere detail, which I care nothing about.” By this definition, then, an acknowledgment of allegiance and an oath support the Constitution urge the vilest traitor of all his treason, and convert him at once into a first-class patriot. And this for the extraordinary reason that one who has been a rebel cannot take the oath in “good faith unless he is loyal.” The test oath which requires a man to swear that he has not borne arms against the Government, or voluntarily given aid and comfort to its enemies, is a mere “amplification” and cannot “make any difference; it is mere detail, which I (the President) care nothing about.” Loyalty, as expounded by this very high authority, consists simply in swearing to support the Constitution in the future, which, of course, any rebel, from Jeff. Davis down, can readily do, for they have done that many times already, and as was said by another, have sworn to support the constitution of the southern confederacy in addition.
Sir, I have no confidence in the “good faith” of these constitutional oath-breakers. Treason has debauched their entire moral nature. Their oaths will be broken in the future with the same facility they have been in the past. I want some better guarantee for future loyalty than is to be found in the oath of a thrice-perjured traitor. Nor is this the kind of loyalty which the patriotic people whom I represent desire should govern this country. They do not believe the test oath to be a mere “amplification.” If it be mere “detail” to require a man to purge himself of treason before he assumes to govern them, it is that sort of detail which in their opinion does make a material “difference,” and about which they do “care.” They were taught only a twelve month since that “treason is a crime and ought to be punished;” that “loyal men” whether white or black, should govern this country;” that “the traitor who has raised a parricidal hand against the Government which protected him should be subjected to a severe ordeal before he is restored to citizenship” even. They believe what they were then taught, and in the honest simplicity of their hearts cannot discover the severity of that “ordeal” which merely requires a traitor to make a trip to the White House, ask a pardon, and then swear to support the Constitution, in order to entitle himself to make laws to govern them. They believe, with the Andrew Johnson of 1864, that “before these repenting rebels can be trusted they must bring forth the fruits of repentance.”
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But it is also insisted by a very few of its supporters that this policy does not demand a repeal of the test oath. It is certainly not so understood by the rebels themselves, or by the masses of the Democracy at the North. I think it is hardly fair to say that the President himself or his Secretary of State so understands it; for they both complain that these insurgent States are not now admitted to representation. Mr. Seward said in New York, on the 22d of February, when expounding by authority the views of the Administration:
“Admit the southern Representatives at once. I thought it ought to have been done on the first day of that session.”
The gentleman from Kentucky, [Mr. ROUSSEAU,] who last addressed the House on this subject, assuming the championship of the President, declared that it had been in our power at any time during this session to have completed the work of reconstruction in fifteen minutes by admitting the southern members, and complains that this was not done.
Now, it is an indisputable fact, known to almost every intelligent man in the country, and clearly proved by officers of the Army and others who testified before the committee on reconstruction, and so reported by that committee—
“That in the face of the law requiring the test oath, the Senators and Representatives elected to Congress from those States are, with very few exceptions, men who had actively participated in the rebellion, and who insultingly denounce the law as unconstitutional.”
Among them is the vice president of the so-called southern confederacy himself. And yet, with these facts before them, the originators and supporters of this policy complain that these Senators and Representatives were not “admitted at once, on the first day of this session.” They could not be admitted except by committing perjury, or the repeal of the test oath. It will hardly be contended that they were expected to signalize the first act of their return, as they did the last of their withdrawal, by perjury. Am I not, therefore, justified in assuming the position that this policy does demand the repeal of the test oath?
But admit, if you please, that in this position I am mistaken, and that the President and those who sustain him mean that none but those who can take the test oath shall be admitted, it would still, in my opinion, be a most dangerous policy, and would defer the admission of traitors but a very short time; and for this reason: it will be an easy matter for the South to select men for the present Congress who have not borne arms against the Government or voluntarily given aid and comfort to the rebellion, and yet who are at heart no more loyal than many who were in the rebel army. These men, thus selected, will take their seats, and together with northern Democrats will repeal that oath. Their admission will establish the right of their districts to representation, however disloyal the people may be. This right once established, and the test oath repealed, what will follow? At the next election every disloyal district will send men who thoroughly represent the feelings and sentiments of the people, those who have been most obnoxious for their treason having the preference. What shall be done then? “Keep them out if disloyal,” you say; but how can you keep them out? The right of the district to representation having been established by the admission of men who could take the oath at this Congress, those who are elected to the next will demand that the Clerk of the House place their names on the roll to be called to vote upon the organization. This the Clerk will be compelled to do, and the vilest rebels and guerrillas of the South will have an unquestionable right to participate in the most important act of the Congress, namely, its organization. They will then step up to the desk and take the oath to support the constitution without any of those troublesome “amplification” and “details” concerning their past conduct, and will, to all intents and purposes, by members of Congress. What then do you propose to do?
“Expel them if disloyal,” says another. But it requires a two-thirds vote to expel a member. They will all be upon the floor to vote in their own cases, and aided by their northern democratic allies everybody knows that it would be an utter impossibility to expel Jeff. Davis himself should he be elected. No, sir; adopt this policy and in less than two years every disloyal district will be represented by a traitor, and traitors will control the legislation of the country. Instead of being able to expel them for their treason you will have to apologize for having whipped them. The brave men who fought our battles and saved the Republic will have to conceal their honorable scars lest they may give offense to the “reconstructed South;” just as now the military authorities at West Point order the erasure of inscriptions from captured rebel cannon in order that when the young “gentlemen” from the South return their pride may not be touched by witnessing the evidences of their defeat. Oh, magnanimous policy! Magnanimous to enemies, cruel to friends!
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Another inevitable consequence of this policy will be that no changes of the Constitution, whereby guarantees will be furnished which are necessary for the safety of the Government, can ever be secured. It is an explicit declaration that we have no right to demand such guarantees as conditions-precedent to representation. It is so understood everywhere, and especially at the South. A. H. Stephens, vice president of the southern confederacy, and Senator-elect to Congress from Georgia, so understands it when he declares that it meets his hearty approval, and coolly informs us that the South would rather remain unrepresented than to accept any terms as conditions-precedent. If such amendments of the Constitution are not secured before the full restoration of those States, we all know that they never will be, until they are obtained by another war, for it requires a two-thirds vote in Congress to propose, and a three-fourths vote of all the States to adopt them. This every sane man knows would be impossible. I am therefore justified in asserting that those who support this plan of reconstruction intend that no constitutional amendments, affecting the interest of the South, and guarantying the honor and safety of the nation, shall ever be made. What will be the consequence? By the Constitution (unamended) two fifths of all negroes who were slaves, but who have been liberated by the war, will be added to the basis of representation, thereby giving the south thirteen additional Representatives on this floor; thirteen additional Representatives taken from the loyal and transferred to the disloyal States; a number equal to the representation of more than six such States as Minnesota; a gain in this House to the South as against the North greater than the political power exercised by the States of Minnesota, Wisconsin, Iowa, Kansas, Nevada, Oregon, and California, or equal to all the New England States combined. For it must be borne in mind that these thirteen Representatives are not merely to be added to the South, but they are to be deducted from the North, making a relative difference of twenty-six in favor of the disloyal section of the country. Nor is this vast political power to be taken from the loyal people of the North and given to the loyal people at the South, upon whose numbers it is based, but it is to be handed over to the traitors to be wielded for the oppression of our defenders who live among them, and against the welfare of the country. The vote of a South Carolina rebel is to be made equal to the votes of three soldiers of my own State, thus reaffirming by law the old insulting boast that “one of the chivalry is equal to three northern mudsills.”
Is this the way “treason is to be put down and traitors punished?” Is this the way “treason is to be made odious?” Is this what Andrew Johnson meant when he said “the traitor ceased to be a citizen and forfeited his right to vote with loyal men when he renounced his citizenship and sought to destroy our Government?” Should he not rather have said that loyal men by fighting for their country forfeited their right
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to vote with traitors? Ah, sir, is not that a novel mode of punishing traitors which reinvests them at once with all their former powers, and as a premium for treason gives them an additional political power equal to that exercised by six loyal States? If the eleven rebel States were admitted now they would have twenty-two Senators. The other five States which belonged to the slave holding class, namely, Kentucky, Delaware, Maryland, Missouri, and West Virginia, would doubtless add five more, giving them twenty-seven Senators.
It will be seen by reference to the census of 1860 and the apportionment of 1861 that the eleven confederate States have fifty-eight Representatives. Giving them one half the representation from the five States just named, (they are reasonably certain of a much greater proportion,) and they will have seventy-one. Add the thirteen Representatives which they will receive, as just shown, by reason of the abolition of slavery, and they will have eighty-four members and twenty-seven Senators, making at least one hundred and eleven votes in the Electoral college. They will thus have more than one third of both the Senate and House, and more than one third of the votes for President and Vice President of the United States. This power will be in the control of a white population embracing less than one sixth of the whole population of the country. So that the effect of this policy will be to give to less than one sixth of the people (a large majority of whom are disloyal,) more than one third of the political power of the whole. If by any means they can secure one sixth more of the representation they will have a majority in Congress and in the Electoral college, and will of course elect their own President and make laws to suit themselves.
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Does any one who has given the least attention to the working of political parties in this country believe for a moment that a compact, well-drilled organization at the South, which needs only one sixth of the representation from the North to give it control of the Government, will have any difficulty in obtaining that sixth? I think not? That party at at the North which is now willing, for the sake of political alliance with rebels, to thus disfranchise its own section and inflict so wicked an injustice upon the loyal people, may well be trusted to go far enough to reap the fruits of such an unholy alliance. If by such combination a majority could be secured in Congress, the southern wing of the party would have so large a proportion of that majority that they would of course insist, as they always have done, upon controlling the organization of the House and dictating the formation of its committees. This being done, what may we reasonably expect? First, either the assumption of the rebel debt or the repudiation of our own. No man not totally blinded by partisan zeal can for a moment believe that the representatives from the South, with the control of Congress in their hands, will meekly, year after year, vote appropriations and tax their constituents to pay interest on a debt contracted, as they affirm, in waging an unjust war upon them, unless the people of the North reciprocate by taxing themselves to pay the debt of the South, incurred, as they contend, in self defense. [snip]
But I must not dwell longer upon this much talked of “policy.” I have endeavored only to suggest some of its more prominent features, and to point out some of its inevitable results. … While it is true that some good men approve it, it is equally true that there is not an enemy of the republican institutions, at home or abroad, who does not eulogize it and glorify its author. … Northern sympathizers, who traduced and maligned Mr. Lincoln and his Administration, are in ecstasies over it.
Why such commendations from such men? Is there nothing in their unanimous and enthusiastic indorsement to arouse the suspicion of the thinking and patriotic that some great mischief, some imminent danger, may lurk beneath it? When traitors praise, let patriots beware. It promises peace, immediate restoration, universal harmony, but beneath are concealed injustice, cowardice, treachery, and ruin.
Antagonized to this is the policy of the Union party, sometimes called the “congressional policy.” As enunciated by the measures already passed and those now pending, it declares:
1. That the secession of a State and the rebellion of its people “deprives it of all civil government” and abrogates all its rights and privileges in the Union, but does not in any way affect its obligations to the Union.
2. That such State can be restored only by the act of the loyal people, expressed through their representatives in Congress, and until such restoration takes place its people have no right to demand representation.
3. That it is the duty of Congress to first ascertain whether or not the people of the South are in a condition to participate, safely, in administering the Government. If they are to restore them at once. If they are not, to provide, as conditions-precedent to their admission, such irreversible guarantees as will insure the safety of the Republic and prevent future rebellions.
After a full and careful investigation, believing that the people of the South are not in a condition to safely participate in the Government without additional guarantees, and that amendments to the Constitution have become imperatively necessary by reason of the changed condition of affairs, Congress proposes to submit to the people of all the States, for their ratification or rejection, the following amendment to the Constitution of the United States:
ARTICLE—
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:
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ARTICLE—
SEC. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
SEC. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SEC. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove said disability.
SEC. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave but all such debts, obligations, and claims shall be held illegal and void.
SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
These are the only changes proposed to the Constitution. Are they not all generous and just? The injustice, if any, of the first section consists in not including political as well as civil equality among its guarantees. The freedman who saved the life of the Czar of Russia was at once raised to the dignity of a nobleman. The freedman who helped us to save the life of the great Republic is still to remain a political pariah, without even the power to defend himself at the ballot-box. And yet when it is proposed to say to the baffled parricide, who has forfeited life, liberty, property, and citizenship, “Your life shall be spared, your liberty shall be unabridged, your property shall be protected, you may again enjoy the rights you have renounced and forfeited,” he complains of severity and want of magnanimity, because he is required to respect the life, liberty, and property of the freedman.
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Is it not the negro rather than the rebel who has reason to complain of this section?
Is there anything unjust or ungenerous in the second section, which provides a basis of representation equitable to all sections, and corrects the glaring inequalities which we have seen will otherwise exist? The propriety and necessity of this section are so apparent that its mere statement is the strongest possible argument in favor of its adoption. It does not propose to humiliate the South or deny her a single right. It demands only that she shall stand on an exact equality with ourselves. Nothing more and nothing less. I would like to see the man who can stand before a loyal constituency and contend that a southern rebel shall be clothed with twice as much political power as a northern loyalist. [snip]
The third section, providing for the exclusion from office, State and Federal, of certain classes of prominent, perjured, and dangerous traitors, meets my unqualified approval. The test it applies seems to me to be an eminently proper one. The assertion that he who has once taken an oath to support the Constitution and voluntarily violated that oath is not to be trusted, challenges the assent of every right-minded man. Its propriety is seen also in the class of persons whom it disfranchises. It strikes at those members of Congress who plotted and instigated the rebellion; those officers of the Army and navy who were educated by the Government for its defense, but who in the hour of danger basely betrayed their flag and country; those members of State Legislatures and other officers who led the misguided masses into treason. It is just what the true men North and South demand, and yet I doubt not it will be assailed by the Opposition with the most intense malignity. It touches a tender point. For if leading rebels are to be excluded from office, State as well as Federal, there is a reasonable probability that the loyal men of the South will control it, and in that event the long-anticipated political millennium, in which the secession lion and the Democratic lamb shall lie down together on downy beds of power, will be as far removed as ever. But notwithstanding this opposition it will prove the most popular amendment proposed. Its justice, its safety, its propriety, as well as its generosity toward the misguided masses of the South, will commend it to all who have the interest of the country more at heart than the interests of a political party.
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These men who are to be thus disfranchised, have justly forfeited every right they once possessed. In any other Government on earth they would be hung or banished, and their property would be confiscated. We only propose that, having attempted to ruin, they shall not now rule. They may remain in the country, retain their property, and enjoy with us the equal protection of the laws, but they shall not govern loyal men. …
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In conclusion, let me say to gentlemen who think the loyal people of this country can be so far deceived as to adopt this policy of unconditional restoration with all its inevitable consequences, you sadly undervalue their intelligence and patriotism. They were in earnest in crushing the rebellion. They are no less in earnest in demanding a safe and just policy of reconstruction. They were not moved from the purpose during the war by losses in the field, by burdensome taxation, by threats of foreign intervention, nor by conspiracies and dissensions at home. … Such a people may be safely trusted to finish the great work they have begun. The nation’s power is in their hands. They have purchased it at a fearful cost. They will keep it until equal and exact justice shall have been secured to every citizen, and until the great Republic-free, united, and prosperous, shall have achieved its glorious mission among the nations of the earth.
Mr. HARRIS. Mr. speaker, having been up to this period of the session a silent member from choice, I deem it my duty now to declare my views upon some of the political questions which are presented for the consideration of this House and this country. …. [snip]
I then, sir, declare that in principle I now stand as I stood before the war; as I stood after war was declared; as I stood in the last Congress, when I received its crown of censure; as I stood in prison and before that infernal instrument of tyranny, a court-martial. And as I stand in principle so will I stand in practice whenever occasion may require.
When I indicate that there has been no change in my principles, this House, and this country possibly—for the avowal of them has been attended by an unexpected notoriety—may infer what my position now is. I am an old-line Democrat, and I believe in the doctrine of secession. I believe that the several States of this Union have the right to separate from it, each acting for itself. I believe that abuses and usurpations had been practiced and threatened to so great an extent by their associates and partners in this governmental compact, that the southern States were justified in going out; and, sir, I further believe by their ordinances of secession, that they did go out, and thereby became to this Union foreign States. These convictions I cannot change, and I do not expect will ever be removed; I will most assuredly proclaim them and stand by them as long as a single citizen of the confederate States is in chains or subject to penalty for asserting them. …. [snip]
From what I have said, Mr. Speaker, this House will readily infer that I am adverse to the reconstruction policy of the President. I confess that Andrew Johnson has been, in adopting his mode of reconstruction, consistent with the views of the late President, with those of the Republican party that elected him, and with his own declaration from the time he abandoned the Democratic party and joined the Republicans. …. [snip]
But to return; I stated that I was adverse to the President’s specific policy of reconstructing this Union. In my view the southern seceded States have no right to Representatives on this floor or in the Senate, and by my vote I have heretofore invariably rejected every application which has been made by any person claiming such a right; and, sir, not only do I believe that they have no right in their present position to send Senators and Representatives here, but I do not think they have the right to furnish us with a President or Vice President, although there are many here and elsewhere, who, while agreeing with me that these States are out of the Union and not entitled to representation anywhere, have been so fraternal in their feelings and so magnanimous in their conduct as to go beyond the line in order to obtain the services of the gentleman who at present fills the executive chair of the United States. Being a citizen of seceded and unreconstructed Tennessee, he is, in my opinion, as also upon their theory, only President de facto, forced upon the country by their votes, attended by that very effective implement, their bayonets. ….
I have said how I think these States can be admitted into this union. It should be by act of Congress and with the assent of their people But, sir, no congressional bill for that purpose can ever receive my vote as long as that test oath disgraces your statute book. That test discriminates most effectually between citizens of these States, depriving all but a chosen few of the dearest political rights, and necessarily
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superinducing what seems to be so odious when only negroes are involved, a despicable oligarchy. It is an insidious and fatal blow at the political equality of white men and at our American republican form of government. I will do all I can to remove it, and if it cannot be removed I will do all I can to rescue the noble citizens of the South from the slavery and degradation it imposes even though it lead to a continuance of the dissolution of the Union. Anxious as I am to restore the States to their former status in the Union, I will not by my voice weaken those guarantees of liberty which our fathers established for themselves and for us their posterity, even to continue or preserve the Union itself. Liberty is worth more than Union. The Congress, sir, that will keep that test in force will only admit those southern men who will misrepresent their constituents. Better wait for better times and better men.
“When vice prevails, and impious men bear sway,
The post of honor is a private station.”
There is another objection of a kindred character, …. The exclusion from the ballot-box of the white men of the South in the choice of their Representatives, whether brought about under the President’s plan or the congressional plan, shall never receive my sanction. ….
But Mr. Speaker, both sides, the southern and northern States, pretend to be anxious. … Slavery has been abolished, and the seceded States have acquiesced in it; and the negro is placed in the position which you desired him to have when you provoked this war. It agonized you to think that he should be subjected to compulsory and uncompensated labor, and your agony has been removed. …. [snip]
The amendment of the Constitution now submitted to the country, and doubtfully reiterating the fact of negro citizenship, and otherwise in an equivocal manner struggling to bring about an equality of the races, will be spurned from their presence by the southern States, and, thank Heaven, there are southern
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States enough to make southern contempt for it effectual! It will hardly prove any annoyance. The States will still retain control and govern in their own way that portion of their population without leave asked of the United States.
Mr. Speaker, all the efforts made here or elsewhere to elevate the negro to an equality with the white man in the southern States, either civilly, socially, or politically, are perfectly idle. The negro must be kept in subordination to the white man, no matter how eloquently you may deck off the theory of equality. In my opinion there is, as it were, a declaration of war between these races. … Full equality of rights will never exist between the races so dissimilar that they cannot socially amalgamate, especially when they live together in large numbers. When amalgamation takes place, when marriage can be consummated between them, when the white woman shall bring forth negro offspring without a blush, and the white grandsire shall affectionately pat his nappy-headed grandson, then equality may be said to exist between the races. You may then with safety grant equal rights of all kinds, and possibly prepare for the millennium. Why, then, interpose such obstacles to a reunion? [snip]
Booth the assassin was not caught but bravely shot by a company of soldiers. He was brought to this city dead, in order that the reward for his arrest might be secured by proving his identity. After that, his entrails were torn out and thrown to the hogs, his head adorns some phrenological museum, his heart is preserved in spirits, his spinal column can be seen, which will display to the learned how much he must have suffered by the near approach of the bullet to the spinal marrow; the balance of his remains were deposited, God and our northern Secretary of War only know where. We know they were not handed over to his poor heart-broken mother so that she might exclaim over his grave in a burst of agony, “Would to God I had died for thee, O Absalom, my son, my son!”
Mary Surratt was convicted, of course. She was tried by a court-martial. Her immediate execution was ordered. She entreated for four days to enable her to overcome the shock and the better to prepare her soul to meet her God. “Not an hour.” thundered forth the voice from the War Department; “on with the gallows, the coffin, and the grave; the angels of heaven shall not rejoice over this repentant sinner.” Agents of mercy sought the ear of higher authority, and probably a more merciful heart, but Preston King was janitor that day and they were excluded. Where is Preston King? Echo answers—where? She was thus executed speedily and notwithstanding application had been made in behalf of her heart-broken daughter for her remains, so that she might pour forth her sorrows, mingled with the gratitude and love which a daughter feels for a beloved mother, over her grave, those remains are still in the keeping of the War Department. Pontius Pilate delivered the body of Jesus to Joseph of Arimathea, but a worse that Pontius Pilate is here.
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Is this a specimen of northern civilization and Christianity? These things were done by northern men without any denunciation by the great northern, enlightened, civilized, and Christian Republican party. …. [snip]
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Mr. LE BLOND. If my friend from Maryland will permit me, I would like to ask him a single question. I understand from the argument of the gentleman from Maryland that he takes the position that the southern States lately in rebellion are out of the Union, and had a constitutional right to go out of the Union. Did I understand him correctly?
Mr. HARRIS. They had a right to go out of the Union.
Mr. LE BLOND. A constitutional right?
Mr. HARRIS. They had the fight in spite of the Constitution. It was a right that grew out of the sovereignty of the States. [snip]
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HOUSE OF REPRESENTATIVES
June 15, 1866
CONSTITUTIONAL AMENDMENT
The morning hour having expired,
Mr. BINGHAM. I ask unanimous consent to introduce the following concurrent resolution relative to the constitutional amendment:
Resolved by the House of Representatives, (the Senate concurring,) That the President of the United States be requested to transmit forthwith to the Executives of the several States of the United States copies of the article of amendment proposed by Congress to the State Legislatures to amend the Constitution of the United States, passed June 13, 1866, respecting citizenship, the basis of representation, disqualification for office, the validity of the public debt of the United States, &c., to the end that the said States may proceed to act upon the said article of amendment, and that he request the Executives of the States that may receive the said amendment to transmit to the Secretary of State certified copies of such ratification.
Mr. LE BLOND. Does that resolution come in by unanimous consent?
The SPEAKER. The gentleman from Ohio asked unanimous consent to introduce it.
Mr. LE BLOND. And unanimous consent has not been given. I will state to the gentleman that the resolution is wrong on its face. It requires the Executive to immediately send
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copies of the proposed constitutional amendment to the different States, before the time allowed for the Executive to approve or reject this amendment has elapsed.
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I am told by gentlemen here that the Executive is not required to sign this constitutional amendment.
Mr. RANDALL, of Pennsylvania. I rise to a point of order. I desire to know whether there is anything properly before the House.
The SPEAKER. If the gentleman from Ohio [Mr. BINGHAM] states that he reports this from the committee on reconstruction, of which he is a member, then it is before the House.
Mr. LE BLOND. I understand that the Constitution provides that all bills and joint resolutions shall be sent to the Executive for his approval or rejection, and that no exception is made in regard to a constitutional amendment; and the practice has been to submit constitutional amendments to the Executive.
Mr. BINGHAM. Will the gentleman say when?
Mr. LE BLOND. Under the administration of Mr. Buchanan there was a constitutional amendment submitted to the Executive and was approved by him. And during the administration of Mr. Lincoln there was also a constitutional amendment passed and submitted to the Executive for approval.
Mr. BINGHAM. I would ask the gentleman whether he is aware of the fact that the twelve constitutional amendments reported by the First Congress of the United States were never submitted to or approved by the President.
Mr. LE BLOND. I am aware that in the early history of this country the record shows nothing upon the subject. That is the truth about it; it does not show that they were approved or rejected, or that they went to the Executive or did not go. But it is a fact, and the gentleman cannot escape it, that the Constitution makes no exception in the matter whatever.
Now, what objection is there to changing this resolution so that it shall require, in the event that the Executive shall approve the constitutional amendment, that he shall send copies of the same to the Governors of the States? I hold that the Constitution is explicit upon the subject, and that while it requires a two-thirds vote upon a proposed constitutional amendment, it does not become effective until it has the approval of the President.
As the object of this resolution is to avoid another veto from the Executive, I shall object to its introduction at this time, and when it comes in—
Mr. BINGHAM. If the gentleman objects why does he argue it?
The SPEAKER. If the gentleman from Ohio [Mr. LE BLOND] makes the point of order, as the Chair understands he does, that the amendment must be submitted to the President—
Mr. LE BLOND. I do not raise that point.
Mr. BINGHAM. What point, then, does the gentleman raise?
Mr. LE BLOND. I intend to raise the point when it does come before the House.
The SPEAKER. The Chair understands the gentleman from Ohio [Mr. LE BLOND] as having raised the point of order on the specific grounds stated by him. The argument that he has made is based upon the objection, and the Chair holds that the objection, if based on those grounds, is not good. The Chair has the authority of the Supreme Court of the United States for his decision, and supposing that the question would come up he has procured the authority, and now has it before him.
Mr. JOHNSON. The Supreme Court never decided a question of order in this House.
The SPEAKER. The gentleman from Pennsylvania certainly does not understand the decision of the Chair or he would not have made the remark.
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The question was raised distinctly in 1803, in the Senate of the United States, on a motion that the then proposed amendment should be submitted to the President:
“On motion that the Committee on Enrolled Bills be directed to present to the President of the United States for his approbation the resolution which has been passed by both Houses of Congress proposing to the consideration of the State Legislatures an amendment to the Constitution of the United States respecting the mode of electing President and Vice President thereof, it was passed in the negative—yeas 7, nays 23.
On a distinct vote of 23 to 7, the Senate voted that the Committee on Enrolled Bills should not present the proposed amendment to the President of the United States for his approval, and it was not presented to or approved by him.
In 1798 a case arose in the Supreme Court of the United States, depending upon the amendment to the Constitution proposed in 1794, and the counsel in argument before the court insisted that the amendment was not valid, not having been approved by the President of the United States. The Attorney General, Mr. Lee, in reply to this argument said:
“Has not the same course been pursued relative to all other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of investing the President with a qualified negative on the acts and resolutions of Congress.”
The court, speaking through Chase, Justice, observes:
“There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution.”
And the court would not hear an argument from the Attorney General on the point, it was so clear.
The Chair has still another authority. During the last Congress a proposition of amendment to the Constitution was submitted to the President of the United States, Mr. Lincoln. It was sent back by him with the remark that he thought he had no right to sign it officially, but inasmuch as it was presented to him he would sign it.
Thereupon the following resolution was submitted to the Senate by the chairman of the Judiciary Committee of that body, [Mr. TRUMBULL:]
“Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States, respecting the extinction of slavery therein, having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with the former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives.”
Upon that resolution Senator Reverdy Johnson said:
“Now, the proposition is that no proposal by Congress of an amendment to the Constitution, although receiving the support of two thirds of both Houses of Congress, is to be submitted to the States unless the President shall approve it. That is not the case in relation to the other mode of proposing amendments. There being two modes, and stated in the alternative, the other mode is:
“ ‘Or on the application of the Legislatures of two thirds of the several States.’
What are Congress to do then? Suppose two thirds of the States propose amendments, has the President anything to do with that? All will admit that he has not. Has Congress anything to do with that? All will admit that their single duty then is an imperative duty to call a convention. So that the whole object of the clause, as it seems to me, is merely to begin a mode by which the people shall have an opportunity of deciding whether the Constitution shall be amended or not. But when, as is stated by the honorable chairman of the Judiciary Committee, every amendment which has been adopted has been submitted to the States without having been approved by the President, and when the Supreme Court, at a time when it stood as high as it has ever stood at any time since its organization, refused even to hear an argument on the subject, supposing it to be too clear for discussion, it would seem to me that we ought to consider the question as settled.”
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And such was the decision of the Senate, which adopted the resolution of Mr. TRUMBULL, without a division or even a call of the yeas and nays.
The Chair will state in response to the remark of the gentleman from Pennsylvania, [Mr. JOHNSON,] that this is a parliamentary point. It is a question as to whether the Committee on Enrolled Bills of this House, where the joint resolution proposing the amendment in question originated, should present the same to the President for his signature. And the Chair has decided that such a course of proceeding is not in accordance with the Constitution and the uniform usage heretofore, except in the single case of the last Congress, when the proposed amendment abolishing slavery was submitted by inadvertence to President Lincoln for his signature. Therefore an objection based specifically on that ground should not be tacitly allowed by the Chair as correct, and is not a valid objection to the consideration of this concurrent resolution at this time.
Mr. LE BLOND. With all deference to the opinion of the Chair, and the authorities he has cited, I desire to say that the question the Chair has presented is entirely a new one, but not the one I made. The objection I make is to the reception of the resolution at this time.
Mr. BINGHAM. Then I object to the gentleman’s discussing the resolution. And I give notice that I will introduce it on Monday next under a suspension of the rules.
Mr. JOHNSON. I desire to be heard a moment in reply to the speech of the Speaker.
Mr. ALLISON. I object. [snip]
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HOUSE OF REPRESENTATIVES
June 16, 1866
RECONSTRUCTION
Mr. JULIAN. Mr. Speaker the conflict going on to-day between Conservatism and Radicalism is not a new one. It only presents new phases, and more decided characteristics in its progress toward a final settlement. These elements in our political life were at war long years prior to the late rebellion. …. [snip]
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But, Mr. Speaker, the war is over, So at least we are informed by the President; and with the glad return of peace comes once more the same issue between Conservatism and Radicalism, and more clearly marked than ever before. Conservatism, true to the logic which made it the ally and handmaid of treason all through the war, now demands the indiscriminate pardon of all the rebel leaders. It recognizes the revolted States as still in the Union, in precisely the same sense as are the loyal States, and restored to all their rights as completely as if no rebellion had happened. … It opposes, likewise, the civil rights bill, which seeks to protect these people in their right to sue, to testify in the courts, to make contracts, and to own property. It opposes, of course, with all bitterness, the policy of giving the freedmen the ballot, which “is as just a demand as governed men ever made of governing,” and should be accorded at once, both on the score of policy and justice. In short, it seeks to make void and of non-effect, for any good purpose, the sacrifice of more than three hundred thousand lives and three thousand millions of money, by its eager service of the heaven-defying villains who causelessly brought this sacrifice upon the nation.
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But on all these points Radicalism takes issue. It holds that treason is a crime, and that it ought to be punished. While it does not ask for vengeance, it demands public justice against some at least of the rebel leaders. It deals with the revolted States as outside of their constitutional relations to the Union, and as incapable of restoring themselves to it except on conditions to be prescribed by Congress. It demands the immediate reduction of representation in the States of the South to the basis of actual voters, and the amendment of the Constitution for that purpose. It favors the protection of the colored people of the South, through the Freedmen’s Bureau and civil rights bills, as necessary to make effective the constitutional amendment abolishing slavery. And for the same reason, Radicalism, when not smitten by unnatural fear or afflicted by policy, demands the ballot as the right of every colored citizen of the rebellious States. Such have been the issues between Conservatism and Radicalism, some of which are disposed by time; and they are all in fact side issues, save the grand and all-comprehending one of suffrage. Let this be settled in harmony with our democratic institutions and all else will be added. [snip]
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Sir, why should we decline a present duty which is as clear and as palpable as the sunlight. Why impiously propose to red-handed traitors and assassins that they may trample down the precious right of four million helpless but loyal people, if only it shall be agreed that these downtrodden millions shall not be represented in Congress. Why offer them a proposition which, if accepted, might be as fatal to the interests of the colored race as would have been the acceptance of the offer of President Lincoln to leave that race in bondage if the rebels would lay down their arms within a stipulated time? As I have already shown, the power to do what we wish is in our hands. Congress can enact a statute securing impartial suffrage in all the insurgent States, in which civil government is totally overthrown, and over which our power is supreme. Congress can pass enabling acts, as opportunely proposed by my distinguished friend from Pennsylvania, [Mr. STEVENS,] providing for the calling of State conventions in those States to form constitutions, and fixing the qualification of voters. Congress, if it deems it expedient, can disfranchise the rebels, or any portion of them, and re-
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fuse admission to the rebellious States till they have secured impartial suffrage to their people. And finally, Congress, if constitutional amendments are necessary, can propose such as will accord with justice and the rights of man, and will therefore have the strongest pledge of their ultimate success; while, in the mean time, whatever obstacles may be thrown in our way by the accidental occupant of the White House, the great cause of loyalty and freedom will be strengthened and fortified by every honest and manly endeavor to serve it.
But it is said, Mr. Speaker, that the people are not ready for so radical a policy, and that while the reconstruction of the rebel States on a solid and enduring basis is very desirable, we must accept the necessity which compels us to regard the temper of the public feeling and the practical effects upon the harmony of the Union party which advance measures would be likely to produce.
Sir, I defend the people against this accusation against their intelligence and loyalty. …. [snip]
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A servant of the people needs to have faith in the people. In dealing with a great question involving the reconstruction of Government and regeneration of society in nearly half the territory of the Republic he has no right to be “a negative expression, or an unknown quantity, in the algebra which is to work out the problem.” He has no right to say that the people are not ready for a given policy, if he himself understands it, and is convinced that it is just and necessary. On the contrary, he will find it most safe to accept our democratic theory that the people are capable of understanding their affairs, and of managing them through honest and fearless representatives. What our politicians most need to-day is faith, faith in the people, faith in justice, and then to add to their faith courage. ….
The people, you say, are not ready for negro ballots in the insurgent States. Sir, I would be glad to have the proof of that. Since the outbreak in 1861 they seem to have been ready for whatever has come in the rapid and stirring march of events. They were ready for the war, appalling as it was, and utterly foreign to their habits and tastes. When it came, as I have shown, they were ready for radical measures in its prosecution. ….
Mr. Speaker, a people who have proved themselves ready for all this will be found ready to move steadily forward toward the complete accomplishment of their grand purpose. Most assuredly they will not turn back, nor pause in their course. Their schooling during the past five years has armed them against fear, and the man who says they are not ready for all measures required to make good to the nation the righteous ends of the war impeaches both their intelligence and their patriotism. … Impartial suffrage is openly indorsed as the true doctrine, which, in due season, the people will be prepared to accept. … Almost everybody, save the most unblushing copperheads says that negro voting in the South is the true reconstruction, and is absolutely necessary if the rebels are to vote; but the country is not ripe for it. “Personally,” as Henry Clay said of the annexation of Texas, all of us “would be glad to see it,” but the issue is premature.
Sir, gentlemen are themselves premature, in all such statements. The people are ready, in this battle of politics, and would gladly go to the front if they could, leaving the politicians to straggle in the rear. And if the voice of the loyal millions could be faithfully executed to-day, treason would be made infamous, traitors would be disfranchised, and the loyal men of the south, irrespective of color, would take the front seats in the work of reconstruction and government. … Above all, let us remember that Providential guidance which in our trials hitherto has favored us exactly in the degree we have allied our cause to justice and withheld from us the coveted price of success as often as we have sought it at the expense of the rights of man. That same Providential discipline will most assuredly be with us to the end, whether we bravely meet the great duties of the crisis or prove ourselves unequal to our day and our work. Nothing, therefore, is so safe, and so sure to win, as the policy which shall make this truth our guide. God give us faith in His counsels, and courage to follow them! And let us not forget that—
“The wise and active conquer difficulties,
By daring to attempt them; sloth and folly
Shiver and shrink at sight of trial and hazard,
And make the impossibility they fear.” [snip]
INDIANA POLICY
Mr. NIBLACK. Mr. Speaker, the Constitution and laws of Indiana relating to negroes and mulattoes have been so often referred to in the debates during the present session of congress, and are so different from those of
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most, if not all, of the other northern States, that I as one of the Representatives from that State, feel called upon to define more accurately than has yet been done the action of our State in regard to this race of people, and to vindicate, so far as I am able, the policy which our people have seen proper to pursue in that respect. I feel it the more incumbent on me to attempt this vindication because I favored the adoption of our constitution containing the peculiar provisions of which I propose to speak, and because of my personal participation in the legislation necessary to give full effect to these provisions.
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This subject has a renewed interest to the people of our State on account of the action of the present Congress, which in many respects changes, or at least attempts to change very materially the status of the negro race everywhere in the United States, and which, if sustained by the courts and people of the country, will override all State laws and State regulations in regard to that class of persons, and practically annul all that the people of Indiana or any other State may have done to separate the white and black races within its territorial limits.
This question does not affect the State of Indiana alone, however, but involves principles important, if not vital, to the good order and well-being of all the States, and hence has become a question of national importance. It is really for this reason that I ask the indulgence of the House to-day, and enter upon the discussion of a subject to which I had hoped I never would feel called upon to recur again in public debate. In thus discussing the local affairs of my State, I shall doubtless find it necessary as incidental thereto to refer to some other matters of public interest at this time.
The present constitution of Indiana which was ratified by the people of the State at a general election in August, A. D. 1851, and which went into effect on the 1st day of the succeeding November, contains, among others, the following separate article:
ARTICLE XIII—Negroes and Mulattoes
“SEC. 1. No negro or mulatto shall come into or settle in the State after the adoption of this constitution.
“SEC. 2. All contracts made with any negro or mulatto coming into the State contrary to the provisions of the foregoing section shall be void; and every person who shall employ such negro or mulatto, or otherwise encourage him to remain in the State, shall be fined in any sum not less than ten dollars nor more than $500.
“SEC. 3. All fines which may be collected for a violation of the provisions of this article, or of any law which may hereafter be passed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such negroes and mulattoes and their descendants as may be in the State at the adoption of this constitution, and may be willing to emigrate.
“SEC. 4. The General Assembly shall pass laws to carry out the provisions of this article.”
This article was, by order of the convention which adopted the constitution of containing it, submitted to a separate vote, so that the sense of the people could be taken on it alone, and so that it might or might not become a part of that constitution, according as the people of the State might desire. On this separate vote 131,040 votes were cast. Of that number 109,976 votes were in favor of the adoption of this article and 21,064 against it, making a majority in favor of its adoption of 88,912 votes. To those who are disposed to criticize the action of our State in regard to the policy it thus inaugurated, or to regard the provision a hard and unjustifiable one, I respond that no political party, as such, was responsible for it, but that the people of the State sanctioned and ratified it by an unprecedented majority, a majority approaching very nearly unanimity.
The first Legislature of the State which assembled after this new constitution went into force enacted laws to carry this article into full effect, prescribing penalties against those who might violate its provisions, and making ample arrangements for the colonization of such negroes and mulattoes of the State as might be willing to emigrate.
As might very naturally be expected, sir, a policy so important as this was not entered upon by our State without the most thorough discussion and the maturest deliberation. The debates of the convention which adopted it fully sustain this assertion.
The first question which is presented in reviewing the action of the convention on this subject is, did it possess the power, representing the sovereign power of the State as it did, to adopt and render effective this policy of repression and exclusion as to the negro race? I insist, sir, that it did possess this power, and that the position I thus assume can be sustained both on principle and by well-established authorities. I go further, sir, and insist that this convention possessed the power, if sanctioned and sustained by the people of the State, to have adopted a similar policy of repression and exclusion as to any other class of people who might have been regarded by it as an undesirable population, or if the best interests of the State had, in the opinion of the convention, demanded such a course.
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The authority of any State, acting through its organic law, to do anything it may choose to do which falls within the range of powers possessed by any sovereignty or political community, and about which it is not restrained by the Constitution of the United States, is, in my judgment, undeniable. The tenth article in the amendments to the Constitution of the United States is as follows:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Now, sir, the States have delegated to Congress the power “to establish a uniform rule of naturalization. “The Constitution of the United States also provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” The power of a State to adopt “a uniform rule of naturalization” is therefore impliedly denied to it. As I interpret the provision lastly above quoted there are certain “privileges and immunities” pertaining to “citizens of the several States” which each State is bound to respect, “but so far as mere rights of persons are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting, holding office, or in any other respect.” (See Howard’s U. S. Reports, vol. 19, page 422.) Beyond these provisions in relation to “a uniform rule of naturalization,” and the “privileges and immunities of citizens in the several States” to which the citizens of each State are entitled, I find nothing in the Constitution of the United States, either as a delegated power or as a restriction, bearing on the question of citizenship. Section ten of that instrument, in enumerating the powers denied to the several States, does not allude to the subject of citizenship at all, and denies nothing to the State in relation to it. Hence I affirm that all questions relating to State citizenship, to domicile, or residence, whether temporary or otherwise, within the States, rest with the States alone, and are among the powers reserved to the “States respectively, or to the people.” If I am right in this conclusion, sir, then the power of Indiana is as ample and unrestricted over these matters as if she were an independent State, and not a member of the Federal Union.
What, therefore, may an independent State do in excluding persons from its territorial limits or in repelling persons desirous of migrating into it? In determining this question we have to look to the law of nations, to the decisions of the courts, and to those principles which underlie all legitimate Governments. Vattel, in his Treatise on the Law of Nations, (see book two, chapter seven, section ninety-four,) says:
“The sovereign [which in our form of government means the people] may forbid the entrance of his territory, either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the State.” [snip]
Quotations of similar import might be drawn from other writers on international law, but I regard it as unnecessary to multiply them here. There is no conflict of authorities on this point that I am aware of. … The court in its opinion first argued to show that there is no conflict between the law of New York and the law of Congress governing the transportation of passengers and the navigation of vessels, and intimates that on that ground, perhaps, the law of New York might be sustained. After disposing of that point, however, the court say:
“But we do not place our opinion on this ground. We choosing rather to plant ourselves on what we consider impregnable positions. They are these: that a State has the undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation; where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That by virtue of this it is not only the right, but the bounden and solemn duty of a State to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate merely to municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of a State is complete, unqualified, and exclusive.”
Further on in the same case the court say:
“We suppose it to be equally clear that a state has as much right to guard, by anticipation, against the commission of an offense against its laws us to inflict punishment upon the offender after it shall have been committed.”
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In a more recent case this question as to the power of a State to exclude persons from its territorial limits was again considered by the Supreme Court of the United States. It arose upon a law of the State of Massachusetts imposing certain restrictions or conditions upon the admission of emigrants arriving in vessels from other countries. The case I refer to is that of Norris vs. The City of Boston, found in Curtis’s United States Reports, volume seventeen, and commencing on page 122. In this case the question as to the power of a State over the subject under discussion was not only considered, but the power of the Federal Government to control the action of the several States in the premises was also discussed. I read from the opinion of Chief Justice Taney, delivered in this cause. After reciting the history of the case, he says:
“The writ of error, however, brings up nothing for revision here but the constitutionality of the law under which this money was demanded and paid, and that question I proceed to examine.
“And the first inquiry is whether, under the Constitution of the United States, the Federal Government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment this question lies at the foundation of the controversy in this case. I do not mean to say that the General Government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be a usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute. It was dis
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tinctly decided in Holmes vs. Jennison, 14 Pet., 540; in Groves vs. Slaughter, 15 Pet., 440; and in Prigg vs. The Commonwealth of Pennsylvania, 15 Pet., 539.
“If these cases are to stand, the right of the State is undoubted. And it is equally clear that if it may remove
from among its citizens any person or description of persons whom it regards as injurious to its welfare, it follows that it may meet them at the threshold and prevent them from entering. For it will hardly be said that the United States may permit them to enter and compel the State to receive them, and that the State may immediately afterward expel them. There could be no reason of policy or humanity for compelling the States, by the power of Congress to imbibe the poison, and then leaving them to find a remedy for it by their own exertions and at their own expense.” * * * * “If the State has the power to determine whether the persons objected to shall remain in the State in association with its citizens, it must, as an incident inseparably connected with it, have the right to determine who shall enter. Indeed, in the case of Groves vs. Slaughter, the Mississippi constitution prohibited the entry of the objectionable persons, and the opinions of the court throughout treat the exercise of this power as being the same with that of expelling them after they have entered.” * * * “I think it to be very clear, both on principle and the authority of adjudged cases that the several States have a right to remove from among their people, and to prevent from entering the State, any person or class or description of persons whom it may deem dangerous or injurious to the interests and welfare of its citizens, and that the State has the exclusive right to determine, in its sound discretion, whether the danger does or does not exist, free from the control of the General Government.” [snip]
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In the opinion, however, of the convention to which I have referred, and of an overwhelming majority of the people of our State at the time of the adoption of our present constitution, the power to exclude negroes and mulattoes rested on much stronger grounds than the power to exclude people of all classes of other countries and other States, which I have shown exists in all the States choosing to exercise it. The convention acted upon the theory that negroes and mulattoes were not citizens of the United States, were not parties to the political compact which formed the Constitution and Government of the United States, and were not entitled to become citizens of the United States under the then existing laws of Congress and without a radical change of policy on the part of the General Government. In this assertion I am also sustained by the debates of the convention to which I have referred. In this theory our people were then supported by the long continued and almost uniform usages and practices of the United States Government, by the opinions of many of the most eminent men in the country, and by the solemn adjudications of the courts of several of the States of the Union. I am aware that the impression prevails to a very considerable extent that no respectable court had ever recognized this theory until the opinion in the celebrated Dred Scott case was pronounced by the Supreme Court of the United States.’ This impression is erroneous, however, as I shall attempt to show.
In Kentucky, it had been decided in the case of Ely vs. Thompson, 3 Mar., 71, that—
“Although free persons of color are not parties to the social compact, yet they are entitled to repose under its shadow.”
Again, in Aury vs. Smith, 1 Litt. Rep., 327, the court said that—
“Prior to the adoption of the Federal Constitution States had a right to make citizens of any person they pleased; but as the Constitution does not authorize any but white persons to become citizens of the United States, it furnishes a presumption that none others were citizens at the time of its adoption.”
In Arkansas, on the 20th of January, 1843, an act was approved entitled—
“An act to prohibit emigration, &c., of free negroes, or free persons of color, into this State.”
Soon afterward a man of color was indicted, tried, and convicted for coming into that State contrary to the provisions of that act. In reviewing this case the supreme court of that State say:
“The Legislature, no doubt, intended not only this section but the entire act as a measure of police necessary to the security and well-being of the people of the State. In this view we are unable to perceive any clause or provision of either the Federal or State constitution with which it conflicts. If any, it is that clause of the former which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the Several States.’ Are free negroes, or free colored persons, citizens within the meaning of this clause? We think not. In recurring to the past history of the Constitution, and prior to its foundation, to that of the Confederation, it will be found that nothing beyond a kind of quasi citizenship has ever been recognized in the case of colored persons.” [snip]
Prudence Crandall was prosecuted for boarding and harboring a person of color, not an inhabitant of the State, contrary to the provisions of this law. One of the points raised in the defense was, that the law was a violation of the Constitution of the United States, and that the person instructed, although of the African race, was a citizen of another State, and therefore entitled to the rights and privileges of citizens in the State of Connecticut. But Chief Justice Dagget, who presided at the trial of the cause, held that persons of that description were not citizens of a State, within the meaning of the word “citizen” in the Constitution of the United States, and were not, therefore, entitled to the privileges and immunities of citizens in other States.
The case carried to the supreme court of errors of that State. But it went off there on another point, and no opinion was expressed in that court on the question of negro citizenship. The rulings of Chief Justice Dagget in the case have long been quoted with approbation, however, by many of the courts of the country, and the case itself, in Indiana at least, has long been regarded as a leading one of its class. (See Crandall vs. The State, 10 Conn. Rep., 340.)
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Before the assembling of our convention, similar decisions on the question of negro citizenship had been made, I believe, in Georgia and Mississippi, and perhaps other States, but I cannot now give a reference to the cases from those States.
In 1821 the late William Wirt, then Attorney General of the United States, in a case referred to him, decided that “citizens of the United States” were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens within the meaning of the Constitution and laws of the United States. The conduct of the executive department of the Government, so far as I am advised on the question, has, with some trivial exceptions, and until a recent period, been in strict conformity with this opinion of Mr. Wirt.
Again, sir, the act of Congress passed in 1790, during the second session of the first Congress which assembled after the adoption of the Constitution of the United States, providing “a uniform rule of naturalization,” confines the right to become citizens “to aliens, being free white persons.” A large number of those who, as members of Congress, enacted this law were members of Congress, enacted this law were members of the Convention which adopted the Constitution, and thus gave what we must in fairness concede their interpretation to that instrument as to what classes of persons were citizens, and as to who were entitled to become such under it.
In 1813 another act of Congress was passed, providing—
“That from and after the termination of the war, in which the United States are now engaged with Great Britain, it shall not be lawful to employ on board of any public or private vessels of the United States, any person or persons except citizens of the United States or persons of color, natives of the United States.”
This act clearly makes a distinction between citizens of the United States and persons of color, although natives of the United States, and is certainly a very plain legislative interpretation of the Constitution, that persons of color, though born in the country, are not citizens of the United States within the legal meaning of that phrase.
These authorities, with many others of similar import which I have not the space to refer to, all preceded by many years the Dred Scott decision, and were to a greater or less extent referred to and discussed by the Indiana convention during its deliberations. Since then these authorities have been reviewed and affirmed in this Dred Scott case, and upon the question of non-citizenship of the African race announce no new doctrine. I know that that case has been and still is bitterly denounced, and that terrible words have been pronounced against the learned judge who delivered the opinion of the court in that cause. These have been and still are but the ebullitions of frenzied partisanship, and will perish with the passions which evoked them. Judge Taney will be revered as one of the most learned, distinguished, and incorruptible judges that has yet ever adorned the American judiciary long after most of his assailants have been forgotten. Whatever objection has been made to the opinion of the court in that case, in other respects, but few eminent lawyers have ever within my knowledge denied its correctness in so far as it decides that persons of African descent were not citizens of the United States within the meaning of the Constitution. The action of the present Congress in endeavoring to confer citizenship upon that class of people I regard as a concession of its correctness on that point.
The negro, then, not being a citizen of the United States, and hence not shielded as such by the Federal Constitution, but constituting an anomalous and quasi foreign element, domiciled in the States respectively, and whether as a slave or freeman peculiarly within the jurisdiction and under the control of the States, it irresistibly follows that each State may for itself determine whether or not such negro shall enter its territory, and if he shall be so permitted to enter, then to determine the conditions upon which he shall be allowed to remain, and to fix and define his status while he does so remain within it.
I have so far, Mr. Speaker, discussed the mere question of the power of a State in certain matters within its own territorial limits. I concede, however, that because a State or a Government may possess the power to do a particular thing, it does not at all follow that it is always either wise or just to exercise that power. How far a conceded power ought to be exercised, or whether exercised at all, is a question of policy to be determined by each State for itself from time to time as emergencies may arise. Was it good policy, therefore, for the people of Indiana to exercise the power the State possessed in regard to the negro race in the manner they did? To this I might reply that it is a domestic question alone about which no other State has any well-grounded reason to complain, and hence not a proper subject of discussion outside of the
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territorial limits of the State, but Congress having, as I have already stated, given a national importance to every branch of this subject, I hope I will be pardoned for attempting here a brief response to that inquiry.
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The people of Indiana were from the beginning, and still are, as I have no doubt, opposed to the introduction of negroes into the State in any great number in any capacity, and for any purpose. They resolved at the start that slavery should not exist within the State. They also early enacted laws tending to discourage the immigration of free persons of color into it. In these early times the public mind was impressed with the idea that slavery would not, probably, be a perpetual institution in the country, and that some provision would ultimately have to be made by many of the States, if not by the United States Government itself, for the free people of color, and our State being a border free State, and liable always to an influx by that class of people, the future status of the free people of color within her borders was from the first a matter in which our people felt a most lively interest. They early imbibed the idea which seemed to so generally prevail during the last generation, that a separation of the races was best for both whites and blacks, and that both humanity and good policy demanded that such a separation ought to be in every suitable way encouraged. They always protested against having our State made an asylum for the free black of other States, where they had from any cause become an undesirable population. [snip]
The action of our State in regard to the unfortunate colored race, Mr. Speaker, can be defended, and successfully, too, as I hope to show, on other grounds than as a colonization measure merely. I refer now to the inequality and physical difference between the white and black races. I have always maintained, and certainly a very large majority of the people of Indiana have, heretofore at least, also maintained, that in the grand scale of humanity the negro race is inferior to the white race, and that anything like social or political equality between the two races is neither practicable nor desirable. Our whole system of laws in relation to the negro, from the first organization of the State to the present time, has been based on that theory. I am aware that in assuming this position now I am entering the regions of controversy, and that a different theory seems now to prevail in many sections of the country. I have not time now to go into this question in all its details, nor to answer many of the arguments urged with so much earnestness of late in favor of the equality of all men without reference to race or color. That all human beings, however low in the scale of humanity, have certain rights which ought not to be, and cannot be with impunity, disregarded, I frankly concede. That the strong ought not out of mere wantonness to tyrannize over the weak is equally evident. That the negro, in his present condition in this country, is entitled to certain civil rights wherever he may be lawfully domiciled, is as fully and freely admitted.
In Indiana all the civil rights of negroes and mulattoes, lawfully within the State, including the right to testify as witnesses, are by law fully recognized. But there is a very broad distinction between the protection of a person in his civil rights, his personal and property rights, and the conferring of political power upon him. This distinction the laws of Indiana have always carefully observed, and it is a distinction which I maintain ought to be kept steadily in view while legislating in regard to the negro race on this continent.
This distinction between civil rights and political rights, this inequality between the races, was fully considered and discussed in the Indiana convention which formed our constitution. One of the leading members of that convention, [Mr. Lockhart,] afterward a member of this House, in discussing the relations between the two races, and in referring to the negro race, said:
“If citizens in a full and constitutional sense, why were they not permitted to participate in its formation? They certainly were not. The Constitution was the work of the white race; the Government for which it provides, and of which it is the fundamental law, is in their hands and under their control; and it could not have been intended to place a different race of people in all things upon terms of equality with themselves. Indeed, if such had been the desire, its utter impracticability is too evident to admit of doubt. The two races, differing as they do in complexion, habits, conformation, and intellectual endowments, could not, nor ever will, live together upon terms of social or political equality. A higher than human power has so ordered it. A greater than human agency must change the decree.”—Debates Indiana Convention, page 627.
I might give other extracts of like import showing that this alleged inequality between the races was a well-recognized fact by leading members of the convention, of all parties, and by an overwhelming majority of that body. … It is only a brief period since none denied more indignantly the charge of favoring the equality of the races than did most of the leaders of the party now in the majority in this House. It was treated by many of them as an insult to be resented by opprobrious words and burning epithets. In illustration of the truth of these remarks, I will quote from a speech made by Mr. Lincoln, late President of the United States, at Columbus, Ohio, in September, 1859. On the morning of the day on which he spoke, on that occasion, one of the papers of that city charged that, “in debating with Senator Douglas, during the memorable contest of last fall, Mr. Lincoln declared in favor of negro suffrage, and attempted to defend that vile conception against the Little Giant.” In the commencement of his speech, Mr. Lincoln noticed this charge and complained of it. He said it was a mistake and a misrepresentation, and, to vindicate himself, proceeded to read from his previous speech of the preceding year as follows:
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Now, gentlemen, I don’t want to read at any greater length, but this is the true complexion of all I have ever said in regard to the institution of slavery and the black race. This is the whole of it, and anything that argues me into this idea of perfect social and political equality with the negro is but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse.” * * * “I have no purpose to introduce political and social equality between the white and black races. There is a physical difference between the two which, in my judgment, will probably forbid their ever living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position.”
After insisting that notwithstanding this inequality the negro has certain natural rights of which he ought not to be deprived—a fact which I have already fully conceded in my remarks to-day—Mr. Lincoln continues:
“I agree with Judge Douglas, he [the negro] is not my equal in many respects. Certainly, not in color, perhaps not in moral or intellectual endowments.”
Mr. Lincoln also then quoted from another speech he had previously made, as follows:
“While I was at the hotel to-day an elderly gentleman called upon me to know whether I was really in favor of producing perfect equality between the negroes and white people. While I had not proposed to myself on this occasion to say much on that subject, yet as the question was asked me, I thought I
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would occupy, perhaps, five minutes in saying something in regard to it. I will say, then, that I am not nor ever have been in favor of bringing about in any way the social and political equality of the white and black races; that I am not or ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office or intermarry with the white people; and I will say in addition to this, that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live while they do remain together, there must be the position of superior and inferior, and I, as much as any other man, am in favor of having the superior position assigned to the white race.”
After reasserting his belief that there were certain rights, however, that ought not to be denied to the colored man, and after indulging in some pleasantries at the expense of Judge Douglas, Mr. Lincoln, on that occasion, further proceeded to say:
“There, my friends, you have briefly what I have, on former occasions, said upon the subject to which this newspaper, to the extent of its ability, has drawn the public attention. In it you not only perceive, as a probability, that in that contest I did not at any time say I was in favor of negro suffrage, but the absolute proof that twice—once substantially and once expressly—I declared against it. Having shown you this, there remains but a word of comment upon that newspaper article. It it this: that I presume the editor of that paper is an honest and truth-loving man, and that he will be greatly obliged to me for furnishing him thus early an opportunity to correct the misrepresentation he has made, before it has run so long that malicious people can call him a liar.”
Mr. Lincoln’s name will go down to posterity as the great emancipator and friend of the African race, and I quote him therefore as a representative man of his class and of his times. And while I was, during his eventful life, especially the last years of it, unable to agree with him in many things, I am gratified with the opportunity of saying that in his views thus expressed as to the differences between the races, and as to the impracticability of their living together or terms of equality, I fully and heartily concur with him.
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Mexico, sir, is a living example of the folly of trying to commingle essentially different races of people together upon terms of equality. I do not claim that all the troubles of that unfortunate country result from that cause alone, But I am quite sure it is one of the great disturbing causes, which will not, and I fear cannot, be easily removed.
Many colored men, it is true, have given evidence of superior talents, and some of them have risen to a comparative degree of eminence. But they are the exceptions, not the rule. An admixture of white blood is discernible in most of those who have in any laudable way distinguished themselves. As a class I have failed to see in them any of those high traits of character which indicate them as fit to become a governing race anywhere. So far as we know, the African race had as fair a chance in the earlier ages of the world for improvement in the arts and sciences and for advancement in civilization as did the white race. If we are all the children of Adam, they certainly had; and yet what have they of themselves accomplished? What progress they have made has resulted from their having been, against their will, brought into contact with white people. It is true that they have recently obtained their freedom, and are now in a condition to demonstrate better than ever before to what extent they are capable of accomplishing great results.
But, sir, they did not win their freedom, and had but little agency in shaping the events which conferred it upon them. It came to them as one of the results of and as incident to a great civil war in which white men contended for power, and in which colored men played but a subordinate part. It came to them on the demand of white men who wielded the power of the Government, first as a measure of war, and afterward as a condition of peace. As the war progressed, many of them under the great inducements held out for their encouragement, did from time to time enter the ranks of the Union Army and rendered such assistance as they were capable of affording. Others of them, however, adhered to the cause of their late masters to the last, and I think I am justified in saying that, whatever their sympathies as a class may have been, a majority of them either adhered from first to last to the rebellion or aided and assisted by their labor or otherwise those who did so adhere. One of the most remarkable developments of the late war in connection with this race of people was the fidelity and personal devotion to their late masters, exhibited by a great proportion of them in the seceding States when the strongest inducements to freedom were held out to them by the Federal Government. The teachings of history, sir, are in vain if white men would have so acted under similar circumstances. I think, therefore, Mr. Lincoln has been amply sustained by this circumstance alone in saying that there is a physical difference between the two races; that there is a difference in their moral and intellectual endowments. And, when I hear it asserted with so much confidence by gentlemen on the other side, that the colored people of the South constitute a unitedly loyal element, I confess I am unable to understand upon what authority the assertion is made I am inclined to think, sir, it is one of those poetic licenses that visionary men are too apt to indulge in when treating of solid realities.
Now, sir, I have attempted to show, and I shall assume for the purposes of my argument that I have shown it, that there is an inequality between the two races, physical and intellectual; the white man occupying the superior and the colored man the inferior position. I have also shown, and before I conclude will attempt further to show, that this difference was recognized and acted upon when our matchless Government was instituted, and that it has been observed and perpetuated, in a greater or less degree, by every department of the Government to the present time. In view, then, of these facts, in view of this anomalous and inferior condition of the colored race in this country, it is no matter of surprise that negroes in any considerable numbers, especially in States where their labor is not needed, should be regarded as an undesirable population. In Indiana the kind of labor to which these people are peculiarly adapted was nowhere needed when her policy in regard to them was adopted. Even yet there is no special demand for that kind of labor. Our climate is unsuited to them as a race. There was room, and to spare, for them elsewhere under a more genial sun, and where their labor was, and perhaps always may be needed.
Was it strange, then, that our people should desire to provide against an increase of this population, and should be anxious, even, at the same time to devise some humane plan to induce those already among us to emigrate? It was to accomplish these results that the provision in our constitution in relation to negroes and mulattoes was inserted. To refuse a negro the right of immigration into the State can at best, under the circumstances of his position, be no more than an inconvenience to him. To receive him into the State might be much more than an inconvenience to its people. Neither was there then, nor is there now, any inhumanity in holding out pecuniary inducements to those already in the State to emigrate, and this is all that the provision in relation to colonization amounts to. On the score of policy, therefore, I announce it as my deliberate conviction that the people of Indiana were justified in the course they saw fit to pursue in regard to the colored race.
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I now proceed, Mr. Speaker, to discuss another question which at once presents itself in connection with what I have already said, and one of more practical and general importance to all the States than anything I have yet offered, and that is as to the effect of the recent action of Congress in passing the so-called civil rights bill on State laws and State regulations imposing disabilities on its negro population.
The first and second sections of the act of Congress to which I refer read as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That 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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
“SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $,1000, or imprisonment not exceeding one year, or both, in the discretion of the court.”
The language employed leaves no doubt, sir, as to the intention of Congress in enacting this law. If Congress possesses the constitutional power to enact such a law, then all persons born in the United States, and not subject to any foreign Power, except Indians not taxed, of whatever race or color, are citizens of the United States, and entitled to full protection as such. And all State constitutions and State laws making any discrimination against negroes, mulattoes, Indians who pay taxes, Chinamen, or Gypsies, on account of their color or race, are null and void; and any State judge or other State officer who shall attempt to enforce the law of any State making such discrimination is liable to “be punished by fine not exceeding $1,000 or imprisonment not exceeding one year, or both, in the discretion of the court.” Take the case of the State of Indiana as an instance. As I have shown, any negro or mulatto who may come into the State since the 1st day of November, A.D. 1851, is liable to a fine; and all contracts made within the State with such negro or mulatto are void under the constitution and laws of that State. Such negro or mulatto thus coming into the State in violation of its laws is not a competent witness to testify against white persons under the State law. Yet if this law of Congress shall be held valid, then if any judge of any of the State courts in that State shall assess a fine against any negro or mulatto for coming into the State in violation of its laws, or shall refuse to permit any such negro or mulatto to testify against a white person in any case, then such judge is liable to be indicted for thus acting in one of the Federal courts at Indianapolis, to be taken to that city for trial, and to be punished under this law of Congress. Every other officer of the court who may assist the judge in thus enforcing the State law is liable to be punished in the same way, astounding as it may seem.
Has Congress, then, the constitutional power to enact such a law? The people of every State in this Union are interested, either directly or indirectly, in the answer to this question. The people of States in which there is any discrimination against negroes or mulattoes are especially interested in it. To every judge and officer of any court in Indiana it is a most important question, because until it is judicially settled either the one way or the other such judge or other officer of his court cannot know what his duty is in such a dilemma.
I have no hesitation in announcing it as my opinion, Mr. Speaker, that Congress does not possess the power it has attempted to exercise
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in the passage of this civil rights bill. I shall endeavor very briefly to give some of the reasons for the opinion I thus entertain.
I have already attempted to show that at the time of the adoption of the Federal Constitution none but persons of the white race were recognized by that instrument as citizens of the United States. As this construction of the Constitution is an important question in connection with the subject I am now discussing, I hope I will be pardoned for again alluding to it. It is objected that this construction is in opposition to the plain words of the Declaration of Independence, and hence inadmissible. If this were true the Constitution, being later in date, and the real bond of union between the States, would have to prevail. That there is, however, no such conflict between the Declaration and the Constitution I shall attempt to show. It is true the Declaration of Independence contains these memorable words:
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed.”
In commenting on these words the Supreme Court of the United States say:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration; for if the language as understood in that day would embrace them the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
“Yet the men who framed this Declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which by common consent, had been excluded from civilized Governments, and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrine and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.
“This state of public opinion had undergone no change when the Constitution was adopted, as I equally evident from its provisions and language.”—Dred Scott case, 19 Howard’s United States Reports, page 4110.
The court, in the same case, in considering whether the African race were recognized by the Constitution as citizens of the United States, say:
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their Representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement (that is, persons of African descent) compose a portion of this people and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at the time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not yet remained subject to their authority, and had no rights and privileges but such as those who held the power and the Government might choose to grant them.
“It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.”—19 Howard, 405.
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It may be also added, Mr. Speaker, that when our national Government was instituted, degrading laws as to the African race existed in nearly all the States which were then in existence. Even up to and as late as 1848, in no State except Maine did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights. (See Kent’s commentaries, sixth edition, vol. 2, p. 258, note b.)
The Constitution itself allowed the continuation of the African slave trade until 1808. In few of these historical facts, and in the light of the authorities I have cited, it could not have been that the great men who formed our Government should have intended that the African race should participate in it as the equals of the whites and have full protection as citizens of it. They could not have intended so great an inconsistency.
I do not refer, sir, to this treatment of the African race with any pleasure. I do so only because my line of argument seems to require it. If it shall be said that our fathers sinned in the treatment of this unfortunate race, then I answer that they sinned not alone, but that the whole civilized world, to a greater or less extent, participated in the sin, and that all sections and portions of our country were alike involved in it.
Now, therefore, sir, as persons of African descent, though born in the country, are not by virtue of the provisions of the Federal Constitution citizens of the United States, by what power and in what way, if at all, can this class of persons be such citizens?
The States cannot by any separate or State action make them citizens of the United States. While, as I have shown, a State may impose disabilities on this class of persons within its jurisdiction, it may at the same time confer any privileges and immunities on them or any portion of them as it may seem proper within its own territorial limits. A State may make them jurors, witnesses, voters, or office-holders if it choose, but such disabilities on the one hand, and such privileges and immunities on the other, do not extend beyond the boundaries of the State imposing or conferring them. The Supreme Court of the United States, in commenting on the power of the States in this respect, say:
“The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition.” * * * * “And no law of a State, therefore, passed since the Constitution was adopted can give any right of citizenship outside of its own territory.”
On the same subject that court also say:
“No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was, therefore, with one accord, surrendered by the States and confided to the Federal Government.”— 19 Howard, pages 417 and 418.
All the power, therefore, that exists anywhere to introduce any person as a citizen into the political family of the United States rests with the Federal Government. This power is embraced in the grant of authority to Congress, to which I have before alluded, “to establish an uniform rule of naturalization.” What, then, is the extent of this authority thus conferred on Congress? Under this power may Congress make everybody it chooses citizens of the United States, or can it under it only make certain classes or descriptions of persons such citizens?
The American definition of the word “naturalization” is found in Bouvier’s Law Dictionary, and is as follows: “Naturalization—The act by which an alien is made a citizen of the United States of America.”
Bouvier
also defines a “naturalized citizen” to be “one who, being born
an alien, has lawfully become a citizen of the United States under
the Constitution and laws.
The same author defines an
“alien” to be “one born out of the jurisdiction of the United
States, who has not since been naturalized under their Constitution
and laws.”
Chancellor Kent, in his Commentaries, (see volume two, page 12,) says:
“An alien is a person born out of the jurisdiction and allegiance of the United States.”
The Supreme Court of the United States, in considering the power of Congress on the subject of naturalization, also says:
“And this power granted to Congress to establish a uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.”
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Chancellor Kent, in treating of this subject of naturalization, also says:
“The act of Congress confines the description of aliens capable of naturalization to free white persons. I presume this excludes the inhabitants of Africa and their descendants; and it may become a question to what extent persons of mixed blood are excluded, and what shades and degrees of mixture of color disqualify an alien from application for the benefits of the act of naturalization. Perhaps there might be difficulties also as to the copper-colored native of America, or the yellow or tawny races of the Asiatics, and it may well be doubted whether any of them are ‘white persons’ within the purview of the law.”—Kent’s Commentaries, vol. 2, page 38.
Under the construction of this act of Congress thus foreshadowed by Mr. Kent, Chinamen have been denied naturalization in California, and nowhere, within my knowledge, have the courts of the country extended its benefits to any but persons of the white race.
To the inquiry propounded as to the power of Congress over this subject of naturalization I respond, that this grant of authority “to establish an uniform rule of naturalization” only confers on the Federal Government the power to admit “aliens,” that is, persons born out of the jurisdiction and allegiance of the United States, to citizenship, and does not confer on it the power to elevate to the rank of citizens persons of an inferior race born with its jurisdiction and allegiance.
If I am right in these conclusions, then it follows, irresistibly follows, I submit, that so much of the civil rights bill as attempts to confer citizenship on the class of colored people which is intended to be embraced within its provisions is wholly inoperative and void within the territorial limits, at least, of the several States of this Union, and only efficient, if anywhere, in those places to which the exclusive jurisdiction of Congress extends.
Now, it has been shown, Mr. Speaker, and I hope satisfactorily shown, that persons of the African race never have been and still are not citizens of the United States by virtue of the provisions of the Federal Constitution. I have shown, or at least attempted to show, that the States cannot by any separate action on their part confer national citizenship on that race of people. I have also endeavored to show that Congress cannot make citizens of the United States of negroes who were born within the jurisdiction and allegiance of the Federal Government. My position in relation to that portion of the African race who were born in this country, then, is, that they were left by the Constitution of the United States, and as one of the results of our peculiar institutions, in an anomalous and subordinate condition, from which Congress by an ordinary act of legislation cannot relieve them. I do not say that Congress might not by an amendment of the naturalization laws provide for the naturalization of persons of color born outside the jurisdiction and allegiance of the United States, who might arrive here as emigrants in the ordinary way. My argument is not now addressed to that question, and I affirm nothing in regard to it, either the one way or the other. What I do insist on is, that Congress under the pretense of naturalization cannot confer citizenship on native-born persons of an inferior race of people not recognized as citizens by the Constitution.
It may be asked how these persons of Afri-
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can descent, born in the country, can be made citizens of the United States if the people shall really desire to make them such. I answer that this can only be done by an amendment of the Federal Constitution. … Why, then, is such an amendment to the Constitution necessary if the civil rights bill already confers citizenship upon them? I have heard no satisfactory response to that inquiry yet, and I know of none that can be given. Hence I infer that the majority here in Congress doubt the constitutionality of the civil rights bill, at least in so far as it attempts to confer citizenship on the native colored race. [snip]
There are some other provisions of this civil rights bill, Mr. Speaker, which I would like to discuss, but my time will not permit me. I can only refer to them in general terms. This bill in substance also says that people of color of all shades and races except Indians not taxed—
“Shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.”
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This provision, I insist, is utterly null and void so far as it conflicts with State laws, State ordinances, and State constitutions. In the District of Columbia, and wherever else Congress is supreme, it is doubtless an effective and valid provision, but in matters of local and domestic concern within the States it can have no force and validity whatever, as I believe. This power of a State over its domestic affairs was never in any manner surrendered to the General Government, and hence was reserved to the “States respectively or to the people.” This is a cardinal principle in our form of government, and until recently was never denied, that I am aware of, by any respectable statesman in this country.
The convention which assembled at Chicago in 1860, and which first nominated Mr. Lincoln for the Presidency, adopted the following as a part of one of its resolutions:
“That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depends.”
The party, therefore, constituting the majority of this House, as it is thus shown, came into power in 1861 fully pledged to this cardinal principle of allowing the States exclusive control of their own local affairs. That principle is as much the doctrine of the Constitution to-day as it was in 1861. Then why attempt to overthrow it? To attempt to do to-day what the Constitution forbids is as much a crime against liberty as if attempted in the earlier and better days of the Republic.
These extraordinary provisions of this civil rights bill are to me another illustration of the tendencies of late to centralize all power in the General Government. This tendency to consolidation of power in the Federal Government is the counterpart of secession, and is another of the political heresies which all true friends of constitutional liberty ought equally to resist. We must see to it that the reserved powers of the States are respected on the one hand, and on the other that the authority of the Federal Government, in all matters confided to it, must be sustained at every hazard and at every sacrifice. Those who most strive to preserve the proper equilibrium between the States and the General Government are the truest friends of the Union everywhere. It is sometimes suggested that the Federal Government does not possess the constitutional power to do many things which the emergencies of the country require, and hence the necessity of some amendments to the Constitution. [snip]
In conclusion, Mr. Speaker, the States are the pillars which support the grand national edifice, and are component parts of the Federal Government. To sustain them, then, in what pertains to their jurisdiction is to sustain the Government itself. To restore those States which are now out of their practical relations with the General Government is a task imposed by the highest impulses of patriotism. Give us, therefore, restoration! Give us Union! After these are secured to us we will then be in a condition to consider what else our situation requires.
Mr. DAVIS obtained the floor. [snip]
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HOUSE OF REPRESENTATIVES
June 18, 1866
CONSTITUTIONAL AMENDMENT
Mr. COBB. I rise to a privileged question. I submit, from the Committee on Enrolled Bills, the following report:
To the House of Representatives:
The Committee on Enrolled Bills respectfully report that on the 16th day of June, 1866, they presented to and filed with the Secretary of State of the United States a joint resolution of the following title, namely: “House Resolution No. 127;” a joint resolution proposing an amendment to the Constitution of the United States. AMASA COBB, Chairman.
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The SPEAKER. The Chair would add that the constitutional amendment is published officially by the Secretary of State in the Washington Republican of this morning.
Mr. BINGHAM. I ask unanimous consent to introduce the following concurrent resolution, for action at this time:
Resolved by the House of Representatives, (the Senate concurring,) That the President of the United States be requested to transmit forthwith to the Executives of the several States of the United States copies of the article of amendment proposed by Congress to the State Legislatures to amend the Constitution of the United States, passed June 13, 1866, respecting citizenship, the basis of representation, disqualification for office, the validity of the public debt of the United States, &c., to the end that the said States may proceed to act upon the said article of amendment, and that he request the Executives of the States that may ratify the said amendment to transmit to the Secretary of State certified copies of such ratification.
Mr. ELDRIDGE. I object.
Mr. BINGHAM. I move to suspend the rules to enable me to introduce the resolution.[snip]
Mr. BINGHAM. I call for the previous question on the adoption of the resolution.
The previous question was seconded and the main question ordered; and under the operation thereof the resolution was agreed to, there being—ayes 87, noes 20.
Mr. BINGHAM moved to reconsider the vote by which the resolution was adopted; and also moved that the motion to reconsider be laid on the table.
The latter motion was agreed to. [snip]
RECONSTRUCTION
The House then resumed, as the special order, the consideration of bill of the House No. 543, to restore to the States lately in rebellion their full political rights, upon which Mr. RAYMOND was entitled to the floor.
Mr. RAYMOND. Mr. Speaker, I regard the action which this House may take upon the bill now before it as of very great importance. …. [snip]
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But, sir, in my previous remarks, from which I have already quoted, I insisted that the States, in voting upon these amendments, should “act freely and without coercion.” I regard that, sir, as of vital importance. Amendments to the Constitution forced upon an unwilling people will never command the respect essential to their full validity. … This bill, sir, violates that fundamental condition. It seeks to coerce the States lately in rebellion into the ratification of these amendments. It denies them representation unless they do ratify them. The first section of the bill, after reciting the amendments adopted by Congress, enacts—
“That whenever the above-recited amendment shall have become part of the Constitution of the United States, and any State lately in insurrection shall have ratified the same, and shall have modified its constitution and laws in conformity therewith, the Senators and Representatives from such States, if found duly elected and qualified, may, after having taken the required oaths of office, be admitted into Congress as such.”
Here are three things required as conditions without which no southern State shall be admitted to representation in Congress: first, the above-recited amendment must first “have become part of the Constitution of the United States”—that is to say, it must first have been ratified by three fourths of all the States; second, it must be ratified by each of the States lately in rebellion seeking representation; and third, that State must have “modified its constitution and laws in conformity therewith.” Now, sir, the first of these conditions is not within control of the States upon which they are imposed. … The Constitution says Congress shall have power to do certain things, which are enumerated and distinctly set forth, and then it is expressly declared that the powers not delegated are “reserved to the States or to the people thereof.” We can, therefore, do nothing which the Constitution does not empower us to do, either in express terms or by necessary implication from the terms employed.
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Now, if I am right in this, I ask any one here to point me to the clause of the Constitution which confers upon Congress a right to say that Representatives from any State shall not be received into Congress until that State shall perform certain acts, make certain laws, or do certain things which we may dictate. Where is it in the Constitution? Is it embodied in any article? Is it implied in any clause, either directly or indirectly? I cannot find it. On the contrary, I find an express declaration in the article which empowers Congress to propose amendments to the Constitution, an explicit provision, that “no State shall be deprived of its equal suffrage in the Senate without its own consent,” even by an amendment of the Constitution. This bill proposes to deprive States of such equal suffrage by a law. It proposes to do by enacting a law what Congress and the States together cannot do by amending the Constitution. I must maintain, until I am shown to the contrary, that we have no power under the Constitution of the United States to pass such a bill as this, or to enforce its provisions if it should become a law.
I am told, however, that the law of conquest is higher than the Constitution, and that we may, under the law, exercise over these States the rights of conquerors and dictate to them such terms as we please. ….
I am told, furthermore, that the law of necessity requires us to impose these conditions upon the admission of representatives from the States lately in insurrection, and that the law of necessity supersedes all other laws. Certainly not the law of military necessity. No one pretends that any military necessity now exists …. [snip]
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Sir, I long to see the day when the Union party shall take ground that will command the sympathies of the Union-loving men all over this broad Republic, and give it that basis of liberality, generosity, and constitutional freedom to which by its organization, by its principles, and by its history, it is entitled. When it shall have done that, it will hold a position from which nothing can drive it. ….
[Here the hammer fell.]
Mr. BINGHAM obtained the floor. [snip]
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HOUSE OF REPRESENTATIVES
June 22, 1866
CONSTITUTIONAL AMENDMENT
The SPEAKER also laid before the House the following message from the President of the United States:
To the Senate and House of Representatives:
I submit to Congress a report of the Secretary of State, to whom was referred the concurrent resolution of
the 18th instant respecting a submission to the Legislatures of the States of an additional article to the Constitution of the United States. It will be seen from this report that the Secretary of State had, on the 16th instant, transmitted to the Governors of the several States certified copies of the joint resolution passed on the 13th instant proposing an amendment to the Constitution.
Even in ordinary times any question of amending the Constitution must be justly regarded as of paramount importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two Houses for the approval of the President, and that of the thirty-six States which constitute the Union eleven are excluded from representation in either House of Congress, although, with the single exception of Texas, they have been entirely restored to all their functions as States in conformity with the organic law of the land, and have appeared at the national capital by Senators and Representatives, who have applied for and have been refused admission to the vacant seats. Nor have the sovereign people of the nation been afforded an opportunity of expressing their views upon the important questions which the
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amendment involves. Grave doubts, therefore, may naturally and justly arise as to whether the action of Congress is in harmony with the sentiments of the people, and whether State Legislatures, elected without reference to such an issue, should be called upon by Congress to decide respecting the ratification of the proposed amendment.
Waiving the question as to the constitutional validity of the proceedings of Congress upon the joint resolution proposing the amendment, or as to the merits of the article which it submits through the executive department to the Legislatures of the States, I deem it proper to observe that the steps taken by the Secretary of State, as detailed in the accompanying report, are to be considered as purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State Legislatures or to the people. On the contrary, a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened public judgment, may at this time well suggest a doubt whether any amendment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of the several States for final decision until after the admission of such loyal Senators and Representatives of the now unrepresented States as have been or as may hereafter be, chosen in conformity with the Constitution and laws of the United States.
ANDREW JOHNSON
WASHINGTON, D. C., June 22, 1866
To the President:
The Secretary of State, to whom was referred the concurrent resolution of the two Houses of Congress of the 18th instant, in the following words—“that the President of the United States be requested to transmit forthwith to the Executives of the several States of the United States, copies of the article of amendment proposed by Congress to the United States, passed June 13, 1866, respecting citizenship, the basis of representation, disqualification for office, and validity of the public debt of the United States, &c., to the end that the said States may proceed to act upon the said article of amendment, and that he request the Executive of each State that may ratify said amendment to transmit to the Secretary of State a certified copy of such ratification”—has the honor to submit the following report, namely, that on the 16th instant, Hon. AMASA COBB, of the Committee of the House of Representatives on Enrolled Bills, brought to this Department and deposited therein, an enrolled resolution of the two Houses of Congress, which was thereupon received by the Secretary of State and deposited among the rolls of the Department, a copy of which is hereunto annexed.
Thereupon the Secretary of State, on the 16th instant, in conformity with the proceeding which was adopted by him in 1865, in regard to the then proposed and afterward adopted congressional amendment of the Constitution of the United States, concerning the prohibition of slavery, transmitted certified copies of the annexed resolution to the Governors of the several States together with a certificate and circular letter. A copy of both of these communications is hereunto annexed.
Respectfully submitted.
WILLIAM H. SEWARD
DEPARTMENT OF STATE,
WASHINGTON, June, 1866
Mr. WILSON, of Iowa. I move that the message be printed and referred to the Committee on the Judiciary, and on that I demand the previous question. [snip]
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IN SENATE
June 27, 1866
SUFFRAGE IN THE DISTRICT
Mr. MORRILL. I move that the Senate proceed to the consideration of Senate bill No. 1.
The motion was agreed to; and the Senate, as in committee of the Whole, resumed the consideration of the bill (S. No. 1) to regulate the elective franchise in the District of Columbia, the pending question being on the amendment of Mr. MORRILL to the amendment reported by the Committee on the District of Columbia as a substitute for the bill. The amendment to the amendment was in line seven, after the word “therein” to insert “and excepting persons who may have voluntarily left the District of Columbia to give aid and comfort to the rebels in the late rebellion;” so that, if amended, the amendment of the committee will read:
That from and after the passage of this act, each and every male person, excepting paupers and persons under guardianship, of the age of twenty-one years and upwards, who has not been convicted of any infamous crime or offense, and who is a citizen of the United States, and who shall have resided in the said District for the period of six months previous to any election therein, and excepting persons who may have voluntarily left the District of Columbia to give aid and comfort to the rebels in the late rebellion, shall be entitled to the elective franchise, and shall be deemed an elector and entitled to vote at any election in said District, without any distinction on account of color or race.
SEC. 2. And be it further enacted, That any person whose duty it shall be to receive votes at any election within the District of Columbia who shall willfully refuse to receive or who shall willfully reject the vote of any person entitled to such right under this act, shall be liable to an action of tort by the person injured, and shall be liable on indictment and conviction, if such act was done knowingly, to a fine not exceeding $5,000, or to imprisonment for a term not exceeding one year in the jail of said District, or to both.
SEC. 3. And be it further enacted, That if any person or persons shall willfully interrupt or disturb any such elector in the exercise of such franchise, he or they shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in any sum not to exceed $1,000, or be imprisoned in the jail in said District
for a period not to exceed thirty days, or both, at the discretion of the court.
SEC. 4. And be it further enacted, That it shall be the duty of the several courts having criminal jurisdiction in said District to give this act in special charge to the grand jury at the commencement of each term of the court.
SEC. 5. And be it further enacted, That all acts and parts of acts inconsistent with this act be, and the same are hereby, repealed.
SEC. 6. And be it further enacted, That the mayors and aldermen of the cities of Washington and Georgetown, respectively on or before the first day of March in each year, shall prepare a list of the persons they judge to be qualified to vote in the several wards of said cities in any election; and said mayors and aldermen shall be in open session to receive evidence of the qualification of persons claiming the right to vote in any election therein, and for correcting said list, on two days in each year, not exceeding five days prior to the annual election for the choice of city officers, giving previous notice of the time and place of each session in some newspaper printed in said District.
SEC. 7. And be it further enacted, That on or before the _x_ day of _x_ the mayors and aldermen of said cities shall post up a list of voters thus prepared in one or more public places in said cities, respectively, at least ten days prior to said annual election.
SEC. 8. And be it further enacted, That the officers presiding at any election shall keep and use the check-list herein required at the polls during the election of all officers, and no vote shall be received unless delivered by the voter in person, and not until the presiding officer has had opportunity to be satisfied of his identity, and shall find his name on the list, and mark it, and ascertain that his vote is single. [snip]
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40th CONGRESS 3rd SESSION
December 7, 1868 to March 3, 1869
IN SENATE
February 25, 1869
SUFFRAGE CONSTITUTIONAL AMENDMENT
Mr STEWART submitted the following report:
The committee of conference on the disagreeing votes of the two Houses on the joint resolution (S. R. No. 8) proposing an amendment to the Constitution of the United States, having met, after full and free conference have agreed to recommend, and do recommend, to their respective Houses as follows: That the House recede from their amendments and agree to the resolution of the Senate with an amendment, as follows: in section one, line two, strike out the words “and hold office;” and the Senate agree to the same.
W. M. STEWART
ROSCOE CONKLING
Managers on the part of the Senate
GEORGE S. BOUTWELL
JOHN A BINGHAM
JOHN A. LOGAN
Managers on the part of the House
Mr. STEWART. I move that the report be
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made the special order at a quarter past twelve o’clock to-morrow.
Mr. HENDRICKS. What is the proposition?
The PRESIDENT pro tempore. The proposition is to make the report of the committee of conference on the disagreeing votes of the two Houses on the constitutional amendment the special order for to-morrow at a quarter past twelve o’clock.
Mr. HENDRICKS. It would be better to say one o’clock. [snip]
Mr. STEWART. I will modify my motion and say one o’clock.
Mr. BUCKALEW. The call for a division is withdrawn on that motion. There is no objection to fixing one o’clock.
The motion was agreed to. [snip]
(1623)
-447-
IN SENATE
February 26, 1869
SUFFRAGE CONSTITUTIONAL AMENDMENT
The PRESIDENT pro tempore. A special order is before the Senate, being the report of the committee of conference on joint resolution (S. R. No. 8) proposing an amendment to the Constitution of the United States.
The report of the committee of conference was read, as follows:
The committee of conference on the disagreeing votes of the two Houses on the joint resolution (S. R. No. 8) proposing an amendment to the Constitution of the United States having met, after full and free conference have agreed to recommend, and do recommend, to their respective Houses as follows:
That the House recede from their amendments and agree to the resolution of the Senate, with an amendment as follows:
In section one, line two, strike out the words “or hold office;” and that the Senate agree to the same.
W. M. STEWART
ROSCOE CONKLING
Managers on the part of the Senate
GEORGE S. BOUTWELL
JOHN A BINGHAM
JOHN A. LOGAN
Managers on the part of the House
Mr. STEWART. I call for the reading of the joint resolution as it will read if amended.
The Chief Clerk read as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which when ratified by three fourths of said legislatures shall be valid as part of the Constitution, namely:
ARTICLE XV
SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
SEC. 2. The Congress by appropriate legislation may enforce the provisions of this article.
Mr. POMEROY. I am embarrassed a little in regard to this question by the manner in which the committee have made the report. The resolution called joint resolution No. 8 was passed by the Senate by a constitutional vote of two thirds, restraining the United States or any State from restricting the right to vote and hold office on account of race, color, or previous condition of slavery. That resolution, as is known to all the Senators, passed and went to the House. The House amended it by inserting three words; they amended it by restraining the States from putting any restrictions relating to nativity, property, and education. It cane back then to the Senate, and the Senate disagreed to the amendment, and asked for a committee of conference. The conference was agreed to by the two Houses, and then the committee of conference took up the question. The committee of conference then have reported to us that the House recede from their amendment, and without stopping there they have ventured to tamper with the text of the resolution which had been agreed to by the two Houses. That, I undertake to say, is both unparliamentary and almost unprecedented. We have had a somewhat rich experience in this Senate upon the question of the power of a committee of conference to change what had been agreed to by the two Houses, and it has never yet passed the Senate when the question has been made, excepting, as we have it recorded in the books, that after that fact was distinctly stated it passed unanimously and it was agreed to unanimously on account of its having been a violation of parliamentary law and of the powers of a committee of conference. That has been the result in all the cases I have been able to find. [snip]
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Mr. POMEROY. …. [snip]
I do not desire to consume time on this subject. The question of a constitutional amendment has been before the Senate for a long time. I have no hostility to the measure itself, but I have insisted year after year that the Senate owes it to itself to maintain its parliamentary law and parliamentary practice. It is laid down in Jefferson’s Manual—and nothing can be laid down clearer—that a committee of conference cannot change what has been agreed upon by the two Houses, but their power terminates when they have undertaken to reconcile the disagreeing votes of the two Houses. The House of Representatives have made Jefferson’s Manual a part of their rules. Where it does not conflict with their own rules they have adopted Jefferson’s Manual, and if the House of Representatives have adopted this report they have broken their own rule on this question.
Mr. STEWART. Does the Senator mean to say that the committee have attempted to revise any portion of the text of the bill which stands as independent matter and not dependent upon the amendment? I am very confident that they have not.
Mr. POMEROY. There were two distinct propositions agreed upon between the two Houses. One was that the colored man should have the right to vote; another was that he should have the right to hold office. The two Houses agreed to the proposition that he should have the right to vote and the right to hold office; and the committee of conference have stricken out one clause—the right to hold office.
Mr. STEWART. The Senator is mistaken. The proposition agreed to by the Senate was that the colored man should have the right to vote and to hold office. The House said “Very well; he shall have the right provided you will attach other conditions,” which qualified the right to vote and to hold office.
Mr. POMEROY. I was only going to add, not desiring to take up time or to express myself as hostile to the measure, that I think committees of conference should be held strictly to parliamentary law and good usage; and where a distinct proposition has been agreed to by both Houses it should not again come into the discussion by a recommendation of a committee of conference to change it. What the Senator from Nevada says is true in one respect. The House did agree to this proposition with an amendment. When the House concluded to recede from its amendment the disagreement ceased; there was no further conflict between the two Houses. This proposition to hold office has always been as distinct a proposition as any other proposition in the constitutional amendment, and it was not the power of the committee of conference to change it. That is the usage of the Senate and the parliamentary law.
Mr. EDMUNDS. Do I understand the Senator from Kansas to raise a question of order?
Mr. POMEROY. It is not a question of order. I will raise it if it is.
Mr. EDMONDS. What is it, then?
Mr. POMEROY. In previous debates Senators undertook to raise the question of order. It was tried two or three times, and the Chair always held that it was not a question of order.
Mr. STEWART. I wish to say but a word on this question. The Senator from Kansas is entirely mistaken about the point.
Mr. POMEROY. It is possible that I am, and it is possible that I am not.
Mr. STEWART. It is not true, in point of fact, that this was an entire proposition. Let me state it to the Senate. The Senate passed a resolution to insert in the Constitution these words:
The right of citizens of the United States to vote and to hold office shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.
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The House amended that proposition so that it would read thus:
The right of citizens of the United States to vote and to hold office shall not be denied or abridged by any State—leaving out “the United States”—on account of race, color, nativity, property, creed, or previous condition of servitude; qualifying the right to hold office, as contained in the Senate proposition, by two other conditions, or stating cases in which the States should not deny the right to hold office by putting in two other propositions; qualifying the proposition of the Senate that they should have the right to hold office by a very important amendment. They did not agree in the qualification upon the right to hold office. The right to hold office was a dependent proposition
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qualified by three additional restrictions. It is not an independent proposition, it is all one sentence; and the reason of the thing, it seems to me, is that where a sentence is an entirety and one part is made dependent upon another, it is impossible for a committee of conference to compare views and comply with the general principle of a free conference, as laid down in Jefferson’s Manual, unless they can so modify the sentence as to make it a complete whole and accommodate the difference between the two Houses. This is what Jefferson’s Manual says:
“At free conferences the managers discuss, viva voce and freely, and interchange propositions for such modifications as may be made in a parliamentary way and may bring the sense of the two Houses together.” [snip]
Mr. HOWARD. The question is upon concurring in the report of the committee of conference. I shall vote to concur in the report not because this amendment of the Constitution as presented is entirely satisfactory to me, but because I think that it is at present the best that can be obtained. I must content myself, therefore, with the best I can get and run the risk of the future. [snip]
(1638)
SUFFRAGE CONSTITUTIONAL AMENDMENT
Mr STEWART. I move that the Senate proceed to the consideration of the report of the committee of conference on the constitutional amendment.
The motion was agreed to. [snip]
The PRESIDENT pro tempore. The report of the committee of conference on the joint resolution (S. R. No. 8) proposing an amendment to the Constitution of the United States is before the Senate, and the Senator from Indiana [Mr. HENDRICKS] is entitled to the floor. [snip]
The PRESIDENT pro tempore. The Senator from Indiana is entitled to the floor on the report of the committee of conference.
Mr. HENDRICKS. Mr. President, I shall not occupy the attention of the Senate longer.
The PRESIDENT pro tempore. The question is on concurring in the report of the committee of conference; and as it takes two thirds to decide that question the roll must be called.
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Mr. FOWLER. I do not intend to trespass on the time of the Senate, but I wish to say one word. I have already stated my views on this subject generally; but the amendment as it is now presented entirely ignores the great principle of human rights. There is nothing protective in this amendment except in regard to color, race, or previous condition of slavery. The principle of the Declaration of Independence is entirely ignored. It is not an amendment that gives manhood suffrage at all. That part of the subject I do not wish to say anything about; I have already expressed my views. The right of suffrage is a greater right than the right of holding office for this reason: the principle laid down in the Declaration of Independence is the Governments derive their just powers from the consent of the governed. Of course the right to hold office must be an inferior right to that of voting, because it is not supposed that men who have the right to consent to the Government are going to consent to a Government which would debar them from the right to hold office.
Again, I think the Constitution as it stands at present would guaranty to each citizen of the United States the right to hold office if he were elected. I do not doubt on that point myself. A proposition is made here to incorporate this principle in the Constitution, and an amendment has been made to it which takes out the principle from this amendment, thus placing a construction upon the Constitution which denies the right of the citizen to hold office. Now, if this amendment is made to the Constitution as it stands it will deny to those citizens specified in the amendment the right to hold office. That is the clear and inevitable construction of it. That of course defeats the rights which the citizen holds under the Constitution as it stands at the present time. [snip]
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The PRESIDENT pro tempore. The question is on concurring in the report of the committee; and on this question the yeas and nays must be called.
The question being taken by yeas and nays resulted—yeas 39, nays 13; … [snip]
The PRESIDENT pro tempore. On this question the yeas are 39, and the nays are 13. Two thirds of the Senators present having voted in the affirmation, the report is agreed to.
Mr. WILLIAMS obtained the floor.
Mr. DAVIS. I rise to a question of order. I ask the Chair what the number of votes was announced to be.
The PRESIDENT pro tempore. The yeas were 39, and the nays were 13; being two thirds.
Mr. DAVIS. The question of order that I make is that the decision of this question has not been announced by the Chair according to the Constitution. The Chair has announced that the proposition has received the vote of two thirds of the Senate, and therefore that it has passed. I controvert that fact. There are now thirty-seven States in the Union. They are entitled to seventy-four members of the Senate.
Mr. NYE. The honorable Senator will allow me to correct him. The Chair did not make the announcement that the honorable Senator says he did. He said it received two thirds of the votes of all the members present. That was the announcement by the Chair.
Mr. DAVIS. The Chair announced that the proposition had passed.
Mr. HOWARD. The Chair announced that the Senate had concurred in the report.
Mr. DAVIS. I merely want to state my point of order. I do not intend to consume any time upon it.
The PRESIDENT pro tempore. The Chair desires the Senator to understand what the Chair said in the announcement of the vote. It was that two thirds of the Senators present had voted in the affirmative. That is the way in which it was announced by the Chair.
Mr. DAVIS. But then the conclusion was—
The PRESIDENT pro tempore. That the report was concurred in.
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Mr. DAVIS. That is just as I understood it. Now, the conclusion does not follow the vote which the Chair announced, because the Senate consists of seventy-four members, and to constitute two thirds of the Senate a vote of fifty is necessary. My point of order is, that when a less number than two thirds of the Senate is required by the Constitution for any purpose, for instance to ratify a treaty or to confirm a nomination, the Constitution expressly says that it shall be two thirds of the members present. In voting upon a proposition to amend the Constitution, the Constitution does not limit the number of two thirds by reciting that it is two thirds of the members present. Here is the language of the Constitution:
“The Congress, whenever two thirds of both Houses shall deem it necessary.” &c.
Now, if Senators will look to that part of the Constitution which regulates the ratification of treaties by the Senate, or the confirmation of nominations to office by the President, they will perceive that the Constitution declares expressly that the two thirds meant to effect those purposes are two thirds of the members present. In relation to this important matter of amending the Constitution there is no such restricted definition of two thirds; but the Constitution in broad language provides the “Congress; whenever two thirds of both Houses shall deem it necessary,” &c., shall propose amendments of the Constitution. Now, the question is, what is two thirds of both Houses? What is two thirds of the Senate? Chuckle-heads may laugh; interlopers may laugh; but the proposition that I make is technically, logically, and constitutionally true.
Mr. WILLIAMS. I rise to a point of order. I believe I was recognized by the Chair. The Senator from Kentucky rose to a point of order, and he is making an extended argument; and I think I am entitled to proceed with my business. I have no objection to his stating the point of order; but proceeding to an extended argument after I am on the floor and recognized by the Chair, it seems to me is not in order.
The PRESIDENT pro tempore. Questions of order, by our rules, are not debatable.
Mr. DAVIS. I did not intend to interfere with the rights of the honorable Senator from Oregon.
Mr. WILLIAMS. I was willing to give a reasonable time for the statement of the point of order.
Mr. DAVIS. Well, sir, I will yield to his resumption of his right. I think I have satisfied my State that the two thirds required by the Constitution to propose amendments to that instrument, from the annunciation of the vote of the Senate, has not been obtained in favor of this proposition.
Mr. HENDRICKS. Will the Senator from Oregon allow me on this question to call the attention of the Presiding Officer to the language of the Constitution in another article. The article of the Constitution controlling this question speaks of two thirds of the Senate. The Presiding Officer will observe in article one, section three, paragraph six, on the subject of impeachment, that it is provided that the Senate shall try the impeachment, “and no person shall be convicted without the concurrence of two thirds of the members present.” In one case the Constitution speaks of two thirds of the members present deciding the question, and in the other case the bill must have two thirds of the body. I wish also to call the attention of the Chair to the provision for the ratification of treaties.
Mr. HOWARD. While the Senator is looking at the Constitution, I wish to know what the question is before the Senate?
The PRESIDENT pro tempore. A question of order is raised.
Mr. HOWARD. Then I submit that it is not in order to debate it.
The PRESIDENT pro tempore. The question of order is raised that the vote was not carried because there were not two thirds of the entire Senate in the affirmative, but only two thirds of the members present.
Mr. HOWARD. I ask for the decision of the Chair.
Mr. HENDRICKS. I wish to call the attention of the Senator from Michigan, if he desires to look into the subject, to the second section—
Mr. HOWARD. It is not debatable.
The PRESIDENT pro tempore. Questions of order are not debatable.
Mr. HENDRICKS. I do not desire to debate it.
The PRESIDENT pro tempore. The Chair has decided the question precisely as all these propositions for amendments have been heretofore decided. The exception probably has never been taken.
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Mr. TRUMBULL. If the Chair will indulge me a moment, this very point was raised in regard to a constitutional amendment some years ago, and the Senate decided by a vote, almost unanimously, that two thirds of the Senators present were sufficient to carry a constitutional amendment. I think that the Presiding Officer upon reflection will recollect it. It was the constitutional amendment that was proposed before the war. I myself made the point for the purpose of having it decided,
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and it was decided, I think by a nearly unanimous vote, that two thirds of the Senators present, a quorum being present, was sufficient to carry a constitutional amendment.
Mr. HENDRICKS. I will ask the Senator from Illinois if that vote did not show two thirds of the Senators of the States then represented in Congress?
Mr. TRUMBULL. No, sir. The constitutional amendment to which I refer was proposed before the war, at the close of Mr. Buchanan’s administration, when Breckenridge was the Presiding Officer of the Senate; and I myself raise the question whether two thirds of the Senate, there being a quorum present, could propose a constitutional amendment.
Mr. EDMUNDS. What was the amendment?
Mr. TRUMBULL. The amendment, which passed, was one that perhaps is foreign to this question, and the Senator from Vermont will not want to hear it at this time. It was a proposition to amend the Constitution so that never hereafter should slavery be abolished; and I am sorry to say it passed this body, not by my vote, however, at that time.
Mr. POMEROY. That was before the flood.
Mr. TRUMBULL. I raised the question then—the Senator from Rhode Island [Mr. ANTHONY] recollects it—for the very purpose of having it decided.
Mr. ANTHONY. I recollect that the Senator raised the question, and I believe I asked him why he raised it, and he said he did it to settle the question that less than two thirds of all the Senators might propose a constitutional amendment.
Mr. WILLIAMS. I ask for a decision on the question of order.
The PRESIDENT pro tempore. I believe it has been decided according to all the precedents. The Senator from Oregon is entitled to the floor. [snip]
(1647)
SUFFRAGE CONSTITUTIONAL AMENDMENT
Mr. STEWART. With the permission of the Senator from Ohio I offer the following resolution, in order to send the constitutional amendment to the Secretary of State, and ask for its present consideration:
Resolved by the Senate, (the House of Representatives concurring,) That the President of the United States be requested to transmit forthwith to the Executives of the several States of the United States copies of the article of amendment proposed by Congress to the State Legislatures to amend the Constitution of the United States, passed February 26, 1869, respecting the exercise of the elective franchise, to the end that the said States may proceed to act upon said article of amendment, and that he request the Executive of each State that may ratify and amendment to transmit to the Secretary of State a certified copy of such ratification.
Mr. DAVIS. I object to that resolution.
The PRESIDENT pro tempore. Objection being made, it goes over. [snip]
[End of debates about Reconstruction and the 1870 Fifteenth Amendment – vote.]
Proposed: February 26, 1869 – Ratified: February 3, 1870
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Appendix A
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How Firm a Foundation
1
How
firm a foundation, ye saints of the Lord
Is laid for your faith
in His excellent Word
What more can He say than to you He hath
said
To you who for refuge to Jesus have fled
2
Fear
not, I am with thee; oh be not dismayed
For I am thy God and
will still give thee aid
I’ll strengthen thee, help thee, and
cause thee to stand
Upheld by My righteous, omnipotent hand
3
When
through the deep waters I call thee to go
The rivers of sorrow
shall not overflow
For I will be with thee, thy troubles to
bless
And sanctify to thee thy deepest distress
4
When
through fiery trials thy pathways shall lie
My grace all
sufficient shall be thy supply
The flame shall not hurt thee; I
only design
Thy dross to consume and thy gold to refine
5
The
soul that on Jesus has leaned for repose
I will not, I will not
desert to its foes
That soul, though all hell should endeavor to
shake
I’ll never,
no never,
no never
forsake
[amen – with hands raised to heaven]
Author (attributed to) “K” in Rippon’s Selection of Hymns published in 1787. “K” is thought to refer to Robert Keen (or Keene), director of music at Carter Lane Baptist Church in London, England when John Rippon was pastor. Fifty years later (1837) the song was included in Caldwell’s Union Harmony. The lyrics and traditional American melody are in the public domain. This is the closing music in the 1983 movie The Day After, about a nuclear strike against the United States.
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The Ghost From Valley Forge
01. I had a dream the other night I didn’t understand,
02. A figure walking through the mist, with flintlock in his hand.
03. His clothes were torn and dirty, as he stood there by my bed,
04. He took off his three-cornered hat, and speaking low he said:
05. We fought a revolution to secure our liberty,
06. We wrote the Constitution, as a shield from tyranny.
07. For future generations, this legacy we gave,
08. In this, the land of the free and home of the brave.
09. The freedom we secured for you, we hoped you’d always keep,
10. But tyrants labored endlessly while your parents were asleep.
11. Your freedom gone – your courage lost – you’re no more than a slave,
12.In this, the land of the free and the home of the brave.
13. You buy permits to travel, and permits to own a gun,
14. Permits to start a business, or to build a place for one.
15. On land that you believe you own, you pay a yearly rent,
16. Although you have no voice in choosing how the money’s spent.
17. Your children must attend a school that doesn’t educate,
18. Your moral values can’t be taught, according to the state.
19. You read about the current ‘news’ in a very biased press,
20. You pay a tax you do not owe, to please the IRS.
21. Your money is no longer made of silver or of gold,
22. You trade your wealth for paper, so life can be controlled.
23. You pay for crimes that make our nation turn from God to shame,
24. You’ve taken Satan’s number, as you’ve traded in your name.
25. You’ve given government control to those who do you harm,
26. So they can padlock churches, and steal the family farm.
27. And keep our country deep in debt, put men of God in jail,
28. Harass your fellow countryman while corrupted courts prevail.
29. Your public servants don’t uphold the solemn oath they’re sworn,
30. Your daughters visit doctors so children won’t be born.
31. Your leaders ship artillery and guns to foreign shores,
32. And send your sons to slaughter, fighting other people’s wars.
33. Can you regain your freedom for which we fought and died?
34. Or don’t you have the courage, or the faith to stand with pride?
35. Are there no more values for which you’ll fight to save?
36. Or do you wish your children live in fear and be a slave?
37. Sons of the republic, arise and take a stand!
38. Defend the Constitution, the supreme law of the land!
39. Preserve our republic, and each God-given right!
40. And pray to God to keep the torch of freedom burning bright!
41. As I awoke he vanished, in the mist from whence he came,
42. His words were true, we are not free, and we have ourselves to blame.
43. For even now as tyrants trample each God-given right,
44. We only watch and tremble – too afraid to stand and fight.
45. If he stood by your bedside in a dream while you’re asleep,
46. And wonder what remains of your right he fought to keep.
47. What would be your answer if he called out from the grave?
48. Is this still the land of the free and home of the brave?
(This online poem is in the public domain)
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Child Of The Patriotic Dead
01. Child of the patriotic dead,
02. A nation’s hand rests on thy head;
03. A nations heart beats close to thine,
04. The country fondly calls thee ‘mine’!
05. On battle-fields, as death’s cold chill
06. Steals o’er the heart, the patriot’s will
07. Gives up, upon that blood-stained sod,
08. His child to country and to God.
09. What legacy so rich? Who loved so well
10. As these—bequeathed ’mid shot and shell—
11. The flesh and blood of him who bore
12. A freeman’s flag on southern shore?
13. Remembered be thy father’s grave,
14. Remembered all he died to save;
15. And welcome to our hearts and home
16. The babes he cherished as his own.
17. How base the heart, how lost to shame,
18. That calls thee by a pauper’s name;
19. That, grudging, has an alms to give
20. For those who died that we might live!
21. Nay, dear one, think not this shall be
22. The kindness we will show to thee;
23. But gather round the homestead board
24. With every blessing bounteous stored.
25. The memory of thy father’s deeds
26. Entwined with all thy wants and needs,
27. Makes all we do but sweet employ,
28. And gives each heart a lasting joy.
29. Close to our hearts, ye noble band;
30. Yours, for a heritage, this princely land;
31. In thanks, a nation, with its care,
32 Will watch and guard you everywhere.
(This civil war era poem is in the public domain)
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