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cept that which may result from their status as The first section of the bill also contains an citizens of the United States. The power to con- enumeration of the rights to be enjoyed by these fer the right of State citizenship is just as ex classes, so made citizens, “in every State and clusively with the several States as the power to Territory in the United States.” These rights confer the right of federal citizenship is with are," to make and enforce contracts, to sue, be Congress.
parties, and give evidence; to inherit, purchase, The right of federal citizenship thus to be con- lease, sell, hold, and convey real and personal ferred on the several excepted races before men- property;'' and to have “full and equal benefit tioned, is now, for the first time, proposed to be of all laws and proceedings for the security of given by law. If, as is claimed by many, all person and property as is enjoyed by white citipersons who are native-born already are, by vir- zens.' So, too, they are made subject to the tue of the Constitution, citizens of the United same punishments, pains, and penalt
in comStates, the passage of the pending bill cannot be mon with white citizens, and to none other. Thus necessary to make them such. If, on the other a perfect equality of the white and colored races hand, such persons are not citizens, as may be is attempted to be fixed by federal law in every assumed from the proposed legislation to make State of the Union, over the vast field of State them such, the grave question presents itself, jurisdiction covered by these enumerated rights. whether, when eleven of the thirty-six States are In no one of these can any State ever exercise unrepresented in Congress at the present time, any power of discrimination between the differit is sound policy to make our entire colored ent races. In the exercise of State policy over population and all other excepted classes citi- matters exclusively affecting the people of each zens of the United States? Four millions of State, it has frequently been thought expedient them have just emerged from slavery into free-to discriminate between the two races. By the dom, Can it be reasonably supposed that they statutes of some of the States, northern as well possess the requisite qualifications to entitle as southern, it is enacted, for instance, that no them to all the privileges and immunities of citi- white person shall intermarry with a negro or zens of the United States? Have the people of mulatto. Chancellor Kent says, speaking of the the several States expressed such a conviction ? blacks, that “marriages between them and the It may also be asked whether it is necessary that whites are forbidden in some of the States they should be declared citizens, in order that where slavery does not exist, and they are prothey may be secured in the enjoyment of the civil hibited in all the slaveholding States; and when rights proposed to be conferred by the bill? not absolutely contrary to law, they are revoltThose rights are, by federal as well as State laws, ing, and regarded as an offence against public secured to all domiciled aliens and foreigners, decorum." even before the completion of the process of I do not say that this bill repeals State laws naturalization; and it may safely be assumed on the subject of marriage between the two that the same enactments are sufficient to give races; for, as the whites are forbidden to interlike protection and benefit to those to whom this marry with the blacks, the blacks can only bill provides special legislation. Besides, the make such contracts as the wbites themselves policy of the Government, from its origin to the are allowed to make, and therefore cannot, present time, seems to have been that persons under this bill, enter into the marriage contract who are strangers to and unfamiliar with our with the wbites. I cite this discrimination, institutions and our laws should pass through a however, as an instance of the State policy as certain probation at the end of which, before at- to discrimination, and to inquire whether, if taining the coveted prize, they must give evi- Congress can abrogate all State laws of discrimdence of their fitness to receive and to exercise ination between the two races in the matter of the rights of citizens, as contemplated by the real estate, of suits, and of contracts generally, Constitution of the United States. The bill, in Congress may not also repeal the State laws as effect, proposes a discrimination against large to the contract of marriage between the two numbers of intelligent, worthy, and patriotic races? Hitherto every subject embraced in the foreigners, and in favor of the negro, to whom, enumeration of rights contained in this bill has after long years of bondage, the avenues to free been considered as exclusively belonging to the dom and intelligence have just now been sudden- States. They all relate to the internal police ly opened. He must, of necessity, from his pre- and economy of the respective States. They are vious unfortunate condition of servitude, be less matters which in each State concern the domesinformed as to the nature and character of our tic condition of its people, varying in each acinstitutions than he who, coming from abroad, cording to its own peculiar circumstances and has to some extent, at least, familiarized himself the safety and well-being of its own citizens. I with the principles of a government to which he do not mean to say that upon all these subjects voluntarily intrusts "life, liberty, and the pur- there are not federal restraints—as, for instance, suit of happiness." Yet it is now proposed, by in the State power of legislation over contracts, a single legislative enactment, to confer the there is a federal limitation that no State shall rights of citizens upon all persons of African pass a law impairing the obligation of con. descent born within the extended limits of the tracts; and, as to crimes, that no State shall United States, while persons of foreign birth, pass an ex post facto law; and, as to money, who make our land their home, must undergo a that no State shall make anything but gold and probation of five years, and can only then be- silver a legal tender. But where can we find a come citizens upon proof that they are “ of good federal prohibition against the power of any moral character, attached to the principles of State to discriminate, as do most of them, bethe Constitution of the United States, and well tween aliens and citizens, between artificial disposed to the good order and happiness of the persons called corporations and natural persons, same."
in the right to hold real estate? If it be granted
that Congress can repeal all State laws discrim- hold that over such a subject-matter the State inating between whites and blacks in the sub- law is paramount, and “under color" of a State jects covered by this bill, why, it may be asked, law refuse the exercise of the right to the negro, may not Congress repeal, in the same way, all your error of judgment, however conscientious, State laws discriminating between the two races shall subject you to fine and imprisonment! Í on the subjects of suffrage and office? If Con- do not apprehend that the conflicting legislation gress can declare by law who shall hold lands, which the bill seems to contemplate is so likely who shall testify, who shall have capacity to to occur as to render it necessary at this time make a contract in a State, then Congress can to adopt a measure of such doubtful constituby law also declare who, without regard to color tionality. or race, shall have the right to sit as a juror or In the next place, this provision of the bill as a judge, to hold any office, and, finally, to seems to be unnecessary, as adequate judicial vote," in every State and Territory of the United remedies could be adopted to secure the desired States."
As respects the Territories, they come end, without invading the immunities of legiswithin the power of Congress, for as to them the lators, always important to be preserved in the law-making power is the federal power; but as interest of public liberty; without assailing the
3 to the States, no similar provision exists vesting independence of the judiciary, always essential in Congress the power “to make rules and regu- to the preservation of individual rights; and lations " for them.
without impairing the efficiency of ministerial The object of the second section of the bill is officers, always necessary for the maintenance of to afford discriminating protection to colored public peace and order. The remedy proposed persons in the full enjoyment of all the rights by this section seems to be, in this respect, not secured to them by the preceding section. It only anomalous but unconstitutional; for the declares that any person who, under color of Constitution guarantees nothing with certainty any law, statute, ordinance, regulation, or cus- if it does not insure to the several States the tom, shall subject, or cause to be subjected, any right of making and executing laws in regard inhabitant of any State or Territory to the de- to all matters arising within their jurisdiction, privation of any right secured or protected by subject only to the restriction that, in cases of this act, or to different punishment, pains, or conflict with the Constitution and constitutional penalties, on account of such person having at laws of the United States, the latter should be any time been held in a condition of slavery or held to be the supreme law of the land. involuntary servitude, except as a punishment The third section gives the district courts of for crime, whereof the party shall have been the United States exclusive “cognizance of all duly convicted, or by reason of his color or race, crimes and offences committed against the prothan is prescribed for the punishment of white visions of this act," and concurrent jurisdiction persons, shall be deemed guilty of a misde- with the circuit courts or the United States of meanor, and, on conviction, shall be punished all civil and criminal cases "affecting persons by a fine not exceeding one thousand dollars, or who are denied, or cannot enforce in the courts imprisonment not exceeding one year, or both, or judicial tribunals of the State or locality in the discretion of the court." This section where they may be, any of the rights secured to seems to be designed to apply to some existing them by the first section." The construction or future law of a State or Territory which may which I have given to the second section is conflict with the provisions of the bill now under strengthened by this third section, for it makes consideration. It provides for counteracting clear what kind of denial or deprivation of the such forbidden legislation by imposing fine and rights secured by the first section was in conimprisonment upon the legislators who may pass templation. It is a denial or deprivation of such such conflicting laws, or upon the officers or rights in the courts or judicial tribunals of the agents who shall put or attempt to put them into State.” It stands, therefore, clear of doubt that execution. It means an official offence-not a the offence and the penalties provided in the common crime committed against law upon the second section are intended for the State judge, persons or property of the black race. Such an who, in the clear exercise of his functions as a act may deprive the black man of his property, judge, not acting ministerially but judicially, but not of the right to hold property. It means sball decide contrary to this federal law. In a deprivation of the right itself, either by the other words, when a State judge, acting upon a State judiciary or the State legislature. It is question involving a conflict between a State law therefore assumed that under this section mem- and a federal law, and bound, according to his bers of State legislatures who should vote for own judgment and responsibility, to give an laws conflicting with the provisions of the bill, impartial decision between the two, comes to the that judges of the State courts who should ren conclusion that the State law is valid and the der judgments in antagonism with its terms, and federal law is invalid, he must not follow the that marshals and sheriffs who should, as minis- dictates of his own judgment, at the peril of fine terial officers, execute processes sanctioned by and imprisonment. The legislative department State laws and issued by State judges in execu- of the Government of the United States thus tion of their judgments, could be brought before takes from the judicial department of the States other tribunals, and there subjected to fine and the sacred and exclusive duty of judicial deimprisonment for the performance of the duties cision, and converts the State judge into a mere which such State laws might impose. The leg- ministerial officer, bound to decide according islation thus proposed invades the judicial power to the will of Congress. of the State. It says to every State court or It is clear that, in States which deny to perjudge, if you decide that this act is unconstitu- sons whose rights are secured by the first section tional; if you refuse, under the prohibition of a of the bill any one of those rights, all criminal State law, to allow a negro to testify; if
and civil cases affecting them will, by the pro
visions of the third section, come under the ex- ment of this article of the Constitution, there is clusive cognizance of the federal tribunals. It at present any necessity for the exercise of all follows that if, in any State which denies to a the powers which this bill confers. Slavery has colored person any one of all those rights, that been abolished, and at present nowhere exists person should commit a crime against the laws within the jurisdiction of the United States; nor of a State--murder, arson, rape, or any other has there been, nor is it likely there will be any crime-all protection and punishment through attempt to revive it by the people or the States. the courts of the State
are taken away, and he If, however, any such attempt shall be made, it can only be tried and punished in the federal will then become the duty of the General Govcourts. How is the criminal to be tried ! Ifernment to exercise any and all incidental powthe offence is provided for and punished by feders necessary and proper to maintain inviolate eral law, that law, and not the State law, is to this great constitutional law of freedom. govern. It is only when the offence does not The fourth section of the bill provides that happen to be within the purview of federal law officers and agents of the Freedmen's Bureau that the federal courts are to try and punish shall be empowered to make arrests, and also him under any other law. Then resort is to be that other officers may be specially, commissionhad to the common law, as modified and ed for that purpose by the President of the changed” by State legislation, “so far as the United States. It also authorizes circuit courts same is not inconsistent with the Constitution of the United States and the superior courts of and laws of the United States." So that over the Territories to appoint, without limitation, this vast domain of criminal jurisprudence pro- commissioners, who are to be charged with the vided by each State for the protection of its own performance of quasi judicial duties. The fifth citizens, and for the punishment of all persons section, empowers the commissioners so to be who violate its criminal laws, federal law, when selected by the courts to appoint in writing, ever it can be made to apply, displaces State law. under their hands, one or more suitable persons The question here naturally arises, from what from time to time to execute warrants and other source Congress derives the power to transfer to processes described by the bill. These numerous federal tribunals certain classes of cases em- official agents are made to constitute a sort of braced in this section? The Constitution ex- police, in addition to the military, and are aupressly declares that the judicial power of the thorized to summon a posse comitatus, and even United States "sball extend to all cases in law to call to their aid such portion of the land and and equity arising under this Constitution, the naval forces of the United States, or of the milllaws of the United States, and treaties made, or tia," as may be necessary to the performance of which shall be made under their authority; to the duty with which they are charged.” This all cases affecting ambassadors, other public extraordinary power is to be conferred upon ministers and consuls; to all cases of admiralty agents irresponsible to the Government and to and maritime jurisdiction; to controversies to the people, to whose number the discretion of which the United States shall be a party; to con- the commissioners is the only limit, and in whose troversies between two or more States, between hands such authority might be made a terrible a State and citizens of another State, between engine of wrong, oppression, and fraud. The citizens of different States, between citizens of general statutes regulating the land and naval the same State claiming land under grants of forces of the United States, the militia, and the different States, and between a State, or the citi-execution of the laws, are believed to be adezens thereof, and foreign States, citizens, or sub-quate for every emergency which can occur in jects." Here the judicial power of the United time of peace. If it should prove otherwise, States is expressly set forth and defined ; and Congress can at any time amend those laws in the act of September 24, 1789, establishing the such a manner as, while subserving the public judicial courts of the United States, in conferring welfare, not to jeopard the rights, interests, and upon the federal courts jurisdiction over cases Uberties of the people. originating in State tribunals, is careful to con- The seventh section provides that a fee of ten fine them to the classes enumerated in the above dollars shall be paid to each commissioner in recited clause of the Constitution. This section every case brought before him, and a fee of five of the bill undoubtedly comprehends cases and dollars to his deputy or deputies, “ for each perauthorizes the exercise of powers that are not, son he or they may arrest and take before any by the Constitution, within the jurisdiction of such commissioner,” “with such other fees as the courts of the United States. To transfer may be deemed reasonable by such commission,” them to those courts would be an exercise of “in general for performing such other duties as authority well calculated to excite distrust and may be required in the premises." All these alarm on the part of all the States; for the bill fees are to be paid out of the Treasury of the applies alike to all of them as well to those United States," whether there is a conviction or that have as to those that have not been engaged not; but in case of conviction they are to be in rebellion.
recoverable from the defendant. It seems to It may be assumed that this authority is inci- me that under the influence of such temptations dent to the power granted to Congress by the bad men might convert any law, however be Constitution, as recently amended, to enforce, by neficent, into an instrument of persecution and appropriate legislation, the article declaring that fraud. "neither slavery nor involuntary servitude, ex- By the eighth section of the bill the United cept as a punishment for crime whereof the par- States courts, which sit only in one place for ty shall have been duly convicted, shall exist white citizens, must migrate, with the marshal within the United States, or any place subject and district attorney (and necessarily with the to their jurisdiction.” It cannot, however, be clerk, although he is not mentioned) to any justly claimed that, with a view to the enforce | part of the district upon the order of the Presi
dent, and there hold a court" for the purpose My lamented predecessor, in his proclamation of the more speedy arrest and trial of persons of the 1st of January, 1863, ordered and decharged with a violation of this act;" and there clared that all persons held as slaves within the judge and officers of the court must remain, certain States and parts of States therein desigupon the order of the President, "for the time nated were, and thenceforward should be free, therein designated."
and, further, that the executive government of The ninth
section authorizes the President, or the United States, including the military and such person as he may empower for that pur- naval authorities thereof, would recognize and pose, “to employ such part of the land or naval maintain the freedom of such persons. This forces of the United States, or of the militia, as guarantee has been rendered especially obligashall be necessary to prevent the violation and tory and sacred by the amendment of the Conenforce the due execution of this act." This lan- stitution abolishing slavery throughout the guage seems to imply & permanent military Unit States. I, therefore, fully recognize the force, that is to be always at hand, and whose obligation to protect and defend that class of only business is to be the enforcement of this our people, whenever and wherever it shall measure over the vast region where it is intended become necessary, and to the full extent comto operate.
patible with the Constitution of the United I do not propose to consider the policy of this states. bill. To me the details of the bill seem fraught Entertaining these sentiments, it only remains with evil. The white race and the black race for me to say, that I will cheerfully co-operate of the South have bitherto lived together under with Congress in any measure that may be necthe relation of master and slave-capital owning essary for the protection of the civil rights of labor. Now, suddenly, that relation is changed, the freedmen, as well as those of all otber classes and, as to ownership, capital and labor are of persons throughout the United States, by judidivorced. They stand now each master of it-cial process, under equal and impartial laws, in self. In this new relation, one being necessary conformity with the provisions of the Federal to the other, there will be a new adjustment, Constitution. which both are deeply interested in making I now return the bill to the Senate, and regret harmonious. Each has equal power in settling that, in considering the bills and joint resoluthe terms, and, if left to the laws that regulate tions—forty-two in number-which have been capital and labor, it is confidently believed thus far submitted for my approval, I am comthat they will satisfactorily work out the prob- | pelled to withhold my assent from a second lem. Capital, it is true, has more intelligence, measure that has received the sanction of both but labor is never so ignorant as not to under Houses of Congress. stand its own interests, not to know its own
ANDREW JOHNSON. value, and not to see that capital must pay that WASHINGTON, D, C., March 27, 1866. value.
This bill frustrates this adjustment. It intervenes between capital and labor, and attempts
THE VOTE ON THE BILL. to settle questions of political economy through The Senate passed the bill on Feb. 2, 1866, by the agency of numerous officials, whose interest a vote of 33 Yeas (all Republicans) against 12 it will be to foment discord between the two Nays-9 Democrats, and Cowan, Norton, and races; for as the breach widens their employment Van Winkle, Republicans. On March 13 the will continue, and when it is closed their occu- bill passed the House —Yeas 111 (all Republic pation will terminate.
cans), Nays 38 (32 Democrats, and Bingham, In all our history, in all our experience as a Latham, Phelps, Wm. H. Randall, Rousseau, people, living under Federal and State law, no Smith, Republicans and Unionists. On March such system as that contemplated by the details 15 the Senate concurred in the House amendof this bill has ever before been proposed or ments. On March 27 the bill was vetoed. adopted. They esta blish for the security of the On April 6, the Senate passed the bill, notcolored race safeguards which go infinitely be withstanding the objections of the President, by yond any that the General Government has ever the following vote: provided for the white race. In fact, the dis- YEAs—Messrs. Anthony, Brown, Chandler, tinction of race and color is, by the bill, made Clark, Conness, Cragin, Creswell, Edmunds, to operate in favor of the colored and against the Fessenden, Foster, Grimes, Harris, Henderson, white race. They interfere with the municipal Howard, Howe, Kirkwood, Lane 'of Indiana, legislation of the States, with the relations Morgan, Morrilí, Nye, Poland, Pomeroy, Ramexisting exclusively between a State and its sey, Sherman, Sprague, Stewart, Sumner, Trumcitizens, or between inhabitants of the same buli, Wade, Willey, Williams, Wilson, YatesState-an absorption and assumption of power 33, all Republicans. by the General Government which, if acquiesced Nays-Messrs. Buckalew, Cowan, Davis, in, must sap and destroy our federative system Doolittle, Guthrie, Hendricks, Johnson, Lane of limited powers, and break down the barriers of Kansas, McDougall, Nesmith, Norton, Ridwhich preserve the rights of the States. It is ale, Saulsbury, Van Winkle,' Wright—15. another step, or rather stride, towards central Democrats (in Italics), 10; Republicans (in ization, and the concentration of all legislative Roman), 5. powers in the National Government. The ten- On April 9, the House of Representatives dency of the bill must be to resuscitate the again passed the bill by the following vote : spirit of rebellion, and to arrest the progress YEAS—Messrs. Alley, Allison, Delos R. Ashof those influences which are more closely draw. ley, James M. Ashley, Baker, Baldwin, Banks, ing around the States the bonds of union and Barker, Baxter, Beaman, Benjamin, Bidwell, peace.
Boutwell, Brandegee, Bromwell, Broomall, Buck
land, Bundy, Reader W. Clarke, Sidney Clarke, Trowbridge, Upson, Van Aernam, Burt Van
Hooper, NAYS-Messrs. Ancona, Bergen, Boyer, CoffHotchkiss, Asahel W. Hubbard, Chester D. Hubroth, Dawson, Denison, Eldridge, Finck, bard, John H. Hubbard, James R. Hubbell, Glossbrenner, Aaron Harding, Harris, HoHulburd, James Humphrey, Ingersoll, Jenckes, gan, Edwin N. Hubbell, James M, HumphKasson, Kelley, Kelso, Ketcham, Laflin, George rey, Latham, Le Blond, Marshall, McoulV. Lawrence, William Lawrence, Loan, Long-lough, Niblack, Nicholson, Noell, Phelps, year, Lynch, Marston, Marvin, McClurg, Mc- Radford, Samuel J. Randall, William H. Indoe, McKee, McRuer, Mercur, Miller, Moor- . Randall, Raymond, Ritter, Rogers, Ro88, Roushead, Morrill, Morris, Moulton, Myers, Newell, seau, shanklin, Sitgreaves, Smith, Strouse, O'Neill, Orth, Paine, Patterson, Perham, Pike, Taber, Taylor Thornton, Trimble, Whaley, Plants, Pomeroy, Price, Alexander H. Rice, Winfield, Wright~41, Democrats (in Italics), John H. Rice, Róllins, Sawyer, Schenck, Sco- 34; Republicans and Únionists (in Roman), 7. field, Shellabarger, Spalding, Starr, Stevens, Whereupon the Speaker of the House declared Thayer, Francis Thomas, John L. Thomas, jr., I the bill a law.
THE FREEDMEN'S BUREAU BILL,
THE FIRST BILL.
tendency steadily to increase;" and that “large The first “Freedmen's Bureau Bill,” provid- appropriations would, therefore, be required to ing that “the act to establish a bureau for the sustain and enforce military jurisdiction in relief of freedmen and refugees, approved every county or parish from the Potomac to the March 3, 1865, shall continue in force until
Rio Grande." otherwise provided by law, and shall extend to
In addition to the objections already stated, refugees and freedmen in all parts of the United the fifth section of the bill, the President thinks, States," passed the Senate on Jan. 25, 1866, by proposes to take away land from its former 37 yeas against 10 nays, a strict party vote.
owners without any legal proceedings being first The House passed the bill on Feb. 6, yeas 137 had, contrary to that provision of the Constitu(all Republicans), nays 33 (Noell and Rousseau
tion which declares that no person shall “be devoting with the Democrats).
prived of life, liberty, or property without due
It is further urged that the bill will “tend to
keep the mind of the freedman in a state of un-
Against the 3d section of the bill, authorizing taxation without representation.” The unques"a general and unlimited grant of support to a
tionable right of Congress to judge, each house the destitute and suffering refugees and freed for itself, of the elections, returns, and qualifimen, their wives and children," and against cations of its own members,” cannot be conthe succeeding sections making provision for strued, the President says, as “including the the rent or purchase of landed estates for freed right to shut out, in time of peace, any State men, and for the erection for their benefit of from the representation to which it is entitled suitable buildings for asylums and schools, the by the Constitution." President urges that “the Congress of the United States has never heretofore thought itself em- THE BILL FAILS IN THE SENATE. powered to establish asylums beyond the limits On Feb. 21, a vote was taken in the Senate on of the District of Columbia, except for the passing the bill, notwithstanding the objections benefit of our disabled soldiers and sailors ;" of the President, with the following result: that “the appointment of an agent for every Yeas 30 (all Republicans); Nays 18 (10 Demcounty and parish will create an immense ocrats and 8 Republicans, namely, Cowan, patronage; and the expense of the numerous Dixon, Doolittle, Morgan, Norton, Stewart, Van officers and their clerks, to be appointed by the Winkle, Willey). Two-thirds of the Senate not President, will be great in the beginning, with a 'having voted therefor, the bill failed.