History of the Thirty-Ninth Congress of the United States Part 14

"If the argument that Congress can not legislate for States unrepresented is good now, it was good during the conflict of arms, for none of the States whose governments were usurped are yet relieved from military control. If we have no right to legislate for those States now, we had no right to impose the direct tax upon them. We had no right to pa.s.s any of our laws that affected them. We had no right to raise an army to march into the rebellious States while they were not represented in the Congress of the United States. We had no right to pa.s.s a law declaring these States in rebellion. Why? The rebels were not here to be represented in the American Senate. We had no right to pa.s.s a law authorizing the President to issue a proclamation discontinuing all intercourse with the people of those rebellious States; and why? Because they were not represented here. We had no right to blockade their coast. Why? They were not represented here.

They are States, says the President, and each State is ent.i.tled to two Senators, and to at least one Representative. Suppose the State of South Carolina had sent to Congress, during the war, a Representative; had Congress nothing to do but to admit him, if found qualified? Must he be received because he comes from a State, and a State can not go out of the Union? Why, sir, is any thing more necessary than to state this proposition to show its absolute absurdity?"

The President said: "The President of the United States stands toward the country in a somewhat different att.i.tude from that of any member of Congress. Each member of Congress is chosen from a single district or State; the President is chosen by the people of all the States. As eleven States are not at this time represented in either branch of Congress, it would seem to be his duty, on all proper occasions, to present their just claims to Congress."

"If it would not be disrespectful," said Mr. Trumbull, "I should like to inquire how many votes the President got in those eleven States.

Sir, he is no more the representative of those eleven States than I am, except as he holds a higher position. I came here as a Representative chosen by the State of Illinois; but I came here to legislate, not simply for the State of Illinois, but for the United States of America, and for South Carolina as well as Illinois. I deny that we are simply the Representatives of the districts and States which send us here, or that we are governed by such narrow views that we can not legislate for the whole country; and we are as much the Representatives, and, in this particular instance, receive as much of the support of those eleven States as did the President himself."

Mr. Trumbull finally remarked: "The President believes this bill unconst.i.tutional; I believe it const.i.tutional. He believes that it will involve great expense; I believe it will save expense. He believes that the freedmen will be protected without it; I believe he will be tyrannized over, abused, and virtually reenslaved, without some legislation by the nation for his protection. He believes it unwise; I believe it to be politic."

Without further debate, the vote was taken on the question, "Shall the bill pa.s.s, the objections of the President of the United States notwithstanding?" The Senators voted as follows:

YEAS--Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, and Yates--30.

NAYS--Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Stewart, Stockton, Van Winkle, and Willey--18.

ABSENT--Messrs. Foot and Wright--2.

The President _pro tempore_ then announced, "On this question the yeas are thirty and the nays are eighteen. Two-thirds of the members present not having voted for the bill, it is not a law."

CHAPTER IX.

THE CIVIL RIGHTS BILL IN THE SENATE.

Duty of Congress consequent upon the Abolition of Slavery -- Civil Rights Bill introduced -- Reference to Judiciary Committee -- Before the Senate -- Speech by Mr. Trumbull -- Mr. Saulsbury -- Mr. van Winkle -- Mr. Cowan -- Mr. Howard -- Mr. Johnson -- Mr. Davis -- Conversations with Mr.

Trumbull and Mr. Clark -- Reply of Mr. Johnson -- Remarks by Mr. Morrill -- Mr. Davis "wound up" -- Mr. Guthrie's Speech -- Mr. Hendricks -- Reply of Mr. Lane -- Mr. Wilson -- Mr.

Trumbull's closing remarks -- Yeas and Nays on the pa.s.sage of the Bill.

The preceding Congress having proposed an amendment to the Const.i.tution by which slavery should be abolished, and this amendment having been "ratified by three-fourths of the several States," four millions of the inhabitants of the United States were transformed from slaves into freemen. To leave them with their shackles broken off, unprotected, in a new and undefined position, would have been a sin against them only surpa.s.sed in enormity by the original crime of their enslavement.

As provided in the amendment itself, it devolved upon Congress "to enforce this article by appropriate legislation." The Thirty-ninth Congress a.s.sembled, realizing that it devolved upon them to define the extent of the rights, privileges, and duties of the freedmen. That body was not slow in meeting the full measure of its responsibility.

Immediately on the rea.s.sembling of Congress after the holidays, January 5, 1866, Mr. Trumbull, in pursuance of previous notice, introduced a bill "to protect all persons in the United States in their civil rights, and furnish the means of their vindication." This bill, having been read twice, was referred to the Committee on the Judiciary.

It was highly appropriate that this bill, involving the relations of millions of the inhabitants of the United States to the Government, should be referred to this able committee, selected from among the men of most distinguished legal ability in the Senate. Its members were chosen in consideration of their high professional ability, their long experience, and exalted standing as jurists. They are the legal advisers of the Senate, whose report upon const.i.tutional questions is ent.i.tled to the highest consideration.

To such a committee the Senate appropriately referred the Civil Rights Bill, and the nation could safely trust in their hands the great interests therein involved.

The bill 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 be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. Any 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."

Other provisions of the bill relate to the courts which shall have jurisdiction of cases which arise under the act, and the means to be employed in its enforcement.

That no question might arise as to the const.i.tutionality of the law, all the provisions which relate to the enforcement of the act were borrowed from the celebrated Fugitive Slave Law, enacted in 1850. It was a happy thought to compel the enemies of the negro themselves, as judges, to p.r.o.nounce in favor of the const.i.tutionality of this ordinance. It is an admirable ill.u.s.tration of the progress of the age, that the very instruments which were used a few years before to rivet tighter the chains of the slave, should be employed to break those very chains to fragments. It shall forever stand forth to the honor of American legislation that it attained to more than poetic justice in using the very means once employed to repress and crush the negro for his defense and elevation.

Within less than a week after the reference of this bill to the Judiciary Committee, it was reported back, with no alteration save a few verbal amendments. On account of pressure of other business, it did not come up for formal consideration and discussion in the Senate until the 29th of January. On that day Mr. Trumbull, having called up the bill for the consideration of the Senate, said:

"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 const.i.tutional 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 inst.i.tuted 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 Ma.s.sachusetts, who, a few years ago, went to South Carolina to enforce a const.i.tutional right in court, that the Const.i.tution of the United States declared that the citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens in the several States?

And of what avail will it now be that the Const.i.tution of the United States has declared that slavery shall not exist, if in the late slaveholding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen?

"It is the intention of this bill to secure those rights. The laws in the slaveholding 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 pa.s.s 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 firearms; 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 slaveholding States.

"When the const.i.tutional amendment was adopted and slavery abolished, all these statutes became null and void, because they were all pa.s.sed in aid of slavery, for the purpose of maintaining and supporting it.

Since the abolition of slavery, the Legislatures which have a.s.sembled in the insurrectionary States have pa.s.sed 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 const.i.tutional amendment."

After having stated somewhat at length the grounds upon which he placed this bill, Mr. Trumbull closed by saying: "Most of the provisions of this bill are copied from the late Fugitive Slave Act, adopted in 1850 for the purpose of returning fugitives from slavery into slavery again. The act that was pa.s.sed at that time for the purpose of punishing persons who should aid negroes to escape to freedom is now to be applied by the provisions of this bill to the punishment of those who shall undertake to keep them in slavery.

Surely we have the authority to enact a law as efficient in the interests of freedom, now that freedom prevails throughout the country, as we had in the interest of slavery when it prevailed in a portion of the country."

Mr. Saulsbury took an entirely different view of the subject under consideration: "I regard this bill," he said, "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 four or five years, I have sat in this chamber and witnessed the introduction of bills into this body which I thought obnoxious to many very grave and serious const.i.tutional 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.

"I shall not follow the honorable Senator into a consideration of the manner in which slaves were treated in the Southern States, nor the privileges that have been denied to them by the laws of the States. I think the time for shedding tears over the poor slave has well nigh pa.s.sed in this country. The tears which the honest white people of this country have been made to shed from the oppressive acts of this Government, in its various departments, during the last four years, call more loudly for my sympathies than those tears which have been shedding and dropping and dropping for the last twenty years in reference to the poor, oppressed slave--dropping from the eyes of strong-minded women and weak-minded men, until, becoming a mighty flood, they have swept away, in their resistless force, every trace of const.i.tutional liberty in this country.

"I suppose it is a foregone conclusion that this measure, as one of a series of measures, is to be pa.s.sed through this Congress regardless of all consequences. But the day that the President of the United States places his approval and signature to that Freedmen's Bureau Bill, and to this bill, he will have signed two acts more dangerous to the liberty of his countrymen, more disastrous to the citizens of this country, than all the acts which have been pa.s.sed from the foundation of the Government to the present hour; and if we on this side of the chamber manifest anxiety and interest in reference to these bills, and the questions involved in them, it is because, having known this population all our lives, knowing them in one hour of our infancy better than you gentlemen have known them all your lives, we feel compelled, by a sense of duty, earnestly and importunately, it may be, to appeal to the judgment of the American Senate, and to reach, if possible, the judgment of the great ma.s.s of the American people, and invoke their attention to the awful consequences involved in measures of this character. Sir, stop, stop! the mangled, bleeding body of the Const.i.tution of your country lies in your path; you are treading upon its bleeding body when you pa.s.s these laws."

After having argued at considerable length that this bill would be a most unconst.i.tutional interference on the part of the Federal Government with "the powers of the States under the Federal Const.i.tution," the Senator from Delaware thus concluded:

"Sir, from early boyhood I was taught to love and revere the Federal Union and those who made it. In early childhood I read the words of the Father of his country, in which he exhorted the people to cling to the union of these States as the palladium of liberty, and my young heart bounded with joy in reading the burning words of lofty patriotism. I was taught in infancy to admire, as far as the infant mind could admire, our free system of government, Federal and State; and I heard the old men say that the wit of man never devised a better or more lovely system of government. When I arrived at that age when I could study and reflect for myself, the teachings of childhood were approved by the judgment of the man.

"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 noonday, how we might, in the providence of G.o.d, 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 mold, 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.'"

On the following day, Mr. Van Winkle, of West Virginia, addressed the Senate on the merits of the bill. He thought that the objects sought could only be attained through an amendment to the Const.i.tution. He moreover said:

"We hear a great deal about the sentence from the Declaration of Independence, that 'all men are created equal.' I am willing to admit that all men are created equal; but how are they equal? Can a citizen of France, for instance, by going into England, be ent.i.tled to all the rights of a citizen of that country, or by coming into this country acquire all the rights of an American, unless he is naturalized? Can a citizen of our country, by going into any other, become ent.i.tled to the rights of a citizen there? If not, it may be said that they are not equal. I believe that the division of men into separate communities, and their living in society and a.s.sociation with their fellows, as they do, are both divine inst.i.tutions, and that, consequently, the authors of the Declaration of Independence could have meant nothing more than that the rights of citizens of any community are equal to the rights of all other citizens of that community. Whenever all communities are conducted in accordance with these principles, these very conditions of their prosperous existence, then all mankind will be equal, each enjoying his equality in his own community, and not till then. Therefore, I a.s.sert that there is no right that can be exercised by any community of society more perfect than that of excluding from citizenship or membership those who are objectionable. If a little society is formed for a benevolent, literary, or any other purpose, the members immediately exercise, and claim the right to exercise, that right; they determine who shall come into their community. We have the right to determine who shall be members of our community; and much as has been said here about what G.o.d has done, and about our obligations to the Almighty in reference to this matter, I do not see where it comes in that we are bound to receive into our community those whose minglings with us might be detrimental to our interests. I do not believe that a superior race is bound to receive among it those of an inferior race, if the mingling of them can only tend to the detriment of the ma.s.s. I do not mean strict miscegenation, but I mean the mingling of two races in society, a.s.sociating from time to time with each other."

Mr. Cowan, of Pennsylvania, spoke against the bill. He said: "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 freemen who originally possessed political power, and that they had never, by any enactment or by any act of theirs, admitted him into a partic.i.p.ation 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 can not 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.

"There is a great deal more in this bill that is exceedingly objectionable. It is the first time, I think, in the history of civilized legislation, that a judicial officer has been held up and subjected to a criminal punishment for that which may have been a conscientious discharge of his duty. It is, I say, the first case that I know of, in the legislation of modern and civilized nations, where a bill of indictment is to take the place of a writ of error, and where a mistake is to be tortured into a crime.

"I may state that I have another objection to this bill at the present time; and that is, that the people of several States in the Union are not represented here, and yet this law is mainly to operate upon those people. I think it would be at least decent, respectful, if we desire to maintain and support this Government on the broad foundation upon which it was laid--namely, the consent of the governed--that we should wait, at any rate, until the people upon whom it is to operate have a voice in these halls."

Mr. Cowan then proceeded in a somewhat "devious course," as it was characterized by another Senator, to make remarks upon the subject of reconstruction. Many questions and remarks were interposed by other Senators, giving the discussion an exceedingly colloquial style.

At length, Mr. Howard, of Michigan, having obtained the floor, spoke in favor of the bill. He said: "If I understand correctly the interpretation given by several Senators to the const.i.tutional amendment abolishing slavery, it is this: that the sole effect of it is to cut and sever the mere legal ligament by which the person and the service of the slave was attached to his master, and that beyond this particular office the amendment does not go; that it can have no effect whatever upon the condition of the emanc.i.p.ated black in any other respect. In other words, they hold that it relieves him from his so-called legal obligation to render his personal service to his master without compensation, and there leaves him, totally, irretrievably, and without any power on the part of Congress to look after his well-being from the moment of this mockery of emanc.i.p.ation.

Sir, such was not the intention of the friends of this amendment at the time of its initiation here, and at the time of its adoption; and I undertake to say that it is not the construction which is given to it by the bar throughout the country, and much less by the liberty-loving people.

"But let us look more closely at this narrow construction. Where does it leave us? We are told that the amendment simply relieves the slave from the obligation to render service to his master. What is a slave in contemplation of American law, in contemplation of the laws of all the slave States? We know full well; the history of two hundred years teaches us that he had no rights, nor nothing which he could call his own. He had not the right to become a husband or a father in the eye of the law; he had no child; he was not at liberty to indulge the natural affections of the human heart for children, for wife, or even for friend. He owned no property, because the law prohibited him. He could not take real or personal estate either by sale, by grant, or by descent or inheritance. He did not own the bread he earned and ate. He stood upon the face of the earth completely isolated from the society in which he happened to be. He was nothing but a chattel, subject to the will of his owner, and unprotected in his rights by the law of the State where he happened to live. His rights, did I say? No, sir, I use inappropriate language. He had no rights; he was an animal; he was property, a chattel. The Almighty, according to the ideas of the times, had made him to be property, a Chattel, and not a man.

"Now, sir, it is not denied that this relation of servitude between the former negro slave and his master was actually severed by this amendment. But the absurd construction now forced upon it leaves him without family, without property, without the implements of husbandry, and even without the right to acquire or use any instrumentalities of carrying on the industry of which he may be capable; it leaves him without friend or support, and even without the clothes to cover his nakedness. He is a waif upon the current of time; he has nothing that belongs to him on the face of the earth, except solely his naked person. And here, in this State, we are called upon to abandon the poor creature whom we have emanc.i.p.ated. We are coolly told that he has no right beyond this, and we are told that under this amendment the power of the State within whose limits he happens to be is not at all restrained in respect to him, and that the State, through its Legislature, may at any time declare him to be a vagrant, and as such commit him to jail, or a.s.sign him to uncompensated service."