History of the Thirty-Ninth Congress of the United States Part 18

"When the reports from Port Hudson and Fort Wagner thrilled all loyal hearts by the recital of the heroic deeds of the black soldier, we were not reminded that if the negro were permitted to enjoy the same rights under the Government his valor helped to save that are possessed by the perjured traitors who sought its destruction, it would 'lead to a war of races.' O no! Then we were in peril, and felt grateful even to the negro, who stood between us and our enemies. Then our only hope of safety was in the brave hearts and strong arms of the soldier at the front. Now, since by the combined efforts of our brave soldiers, white and black, the military power of the South has been overthrown, and her Representatives are as eager to resume their places on this floor as five years ago they were to quit them for a place in the rebel army, we are told that, having been victorious, it becomes a great nation like ours to be magnanimous. I answer, it is far more becoming to be just. I am willing to carry my magnanimity to the verge of justice, but not one step beyond. I will go with him who goes furthest in acts of generosity toward our former enemies, unless those acts will be prejudicial to our friends. But when you advise me to sacrifice those who have stood by us during the war, in order to conciliate unrepentant rebels, whose hearts still burn with ill-suppressed hatred to the Government, I scorn your counsel."

Mr. Sh.e.l.labarger, of Ohio, said: "I agree with the gentleman on the other side of the House, that this bill can not be pa.s.sed under that clause of the Const.i.tution which provides that Congress may pa.s.s uniform rules of naturalization. Under that clause it is my opinion that the act of naturalization must not only be the act of the Government, but also the act of the individual alien, by which he renounces his former allegiance and accepts the new one. And that proposition and distinction will be found, I think, in all judicious arguments upon the subject.

"There is another cla.s.s of persons well recognized, not only in our const.i.tutional history, but also by the laws of nations, who are not foreigners, who occupy an intermediate position, and that intermediate position is defined by the laws of nations by the word 'subjects.'

Subjects are all persons who, being born in a given country, and under a given government, do not owe an allegiance to any other government.

"To that cla.s.s in this country, according to the decisions of our courts. .h.i.therto, belong American Indians and slaves, and, according to the Dred Scott decision, persons of African descent whose ancestors were slaves. All these were subjects by every principle of international as well as of settled const.i.tutional law in this country.

"Now, then, to that cla.s.s belong the persons who are naturalized by this bill. If they were not, indeed, citizens. .h.i.therto, they were at least subjects of this Government, by reason of their birth, and by reason of the fact that they owed no foreign allegiance.

"That brings me to the next remark, and it is this: that these subjects, not owing any foreign allegiance, no individual act of theirs is required in order to their naturalization, because they owe no foreign allegiance to be renounced by their individual acts, and because, moreover, being domiciled in our own country, and continuing here to reside, it is the individual election of each member of the tribe, or race, or cla.s.s, to accept our nationality; therefore, no additional individual act is required in order to his citizenship.

"That being proved, it is competent for the nationality, or for the government, wherever that subject may reside, to naturalize that cla.s.s of persons by treaty or by general law, as is proposed by the amendment of the gentleman from New York [Mr. Raymond]. It is the act of the sovereign alone that is requisite to the naturalization of that cla.s.s of persons, and it may be done either by a single act naturalizing entire races of men, or by adopting the heads of families out of those races, or it may be done to any extent, greater or less, that may please the sovereign. For this proposition, I refer gentlemen who desire to examine this subject to the authorities that may be found collected in any judicious work on public law, and they will find them very fully collected, certainly, in the notes to Wheaton.

"Now, then, what power may do that act of naturalization, and how may it be exercised? That is also answered by these same authorities. It may be done in this country either by an act of Congress, or it may be done by treaty. It has been done again and again and again in both ways in this country. It was done once in the case of the Choctaw Indians, as you will find in the Statutes-at-Large, where, in case the heads of families desired to remain and not to remove to the West, it was provided by the treaty of September 27, 1830, that those families should be naturalized as a cla.s.s.

"Then, again, it was done in the other way, by an act of Congress, in the case cited by my learned friend from Iowa [Mr. Wilson], in the case of the Stockbridge Indians.

"It was done again, as you may remember, in the case of the Cherokees, in December, 1835. There again a cla.s.s was naturalized by treaty."

Some amendments having been proposed, the bill was recommitted to the Committee on the Judiciary, with the understanding that it should be returned for consideration on Thursday of the following week.

Accordingly, on that day, March 8, the consideration of the bill being resumed, Mr. Broomall, of Pennsylvania, addressed the House, He viewed the bill as beneficent in its provisions, since it made no discriminations against the Southern rebels, but granted them, as well as the negro, the rights of citizenship.

"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. Yet the spirit of forgiveness is so inherent in the American bosom, that no party in the country proposes to withhold from these people the advantages of citizenship; and this is saying much. With a debt that may require centuries to pay; with so many living and mutilated witnesses of the horrors of war; with so many saddened homes, so many of the widowed and fatherless pleading for justice, for retribution, if not revenge, it speaks well for the cause of Christian civilization in America that no party in the country proposes to deprive the authors of such immeasurable calamity of the advantages of citizenship.

"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.

"I might consent that the glorious deeds of the last five years should be blotted from the country's history; that the trophies won on a hundred battle-fields, the sublime visible evidences of the heroic devotion of America's citizen soldiery, should be burned on the altar of reconstruction. I might consent that the cemetery at Gettysburg should be razed to the ground; that its soil should be submitted to the plow, and that the lamentation of the bereaved should give place to the lowing of cattle. But there is a point beyond which I will neither be forced nor persuaded. I will never consent that the Government shall desert its allies in the South, and surrender their rights and interests to the enemy, and in this I will make no distinction of caste or color, either among friends or foes."

Mr. Raymond, of New York, was impressed with the importance of the measure. "Whether we consider it by itself, simply as a proposed statute, or in its bearings upon the general question of the restoration of peace and harmony to the Union, I regard it as one of the most important bills ever presented to this House for its action, worthy, in every respect, to enlist the coolest and the calmest judgment of every member whose vote must be recorded upon it."

He was in favor of the first part of the bill, which declares "who shall be citizens of the United States, and declares 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.

"Now, sir, a.s.suming, as I do, without any further argument, that Congress has the power of admitting to citizenship this great cla.s.s of persons just set free by the amendment to the Const.i.tution of the United States abolishing slavery, I suppose I need not dwell here on the great importance to that cla.s.s of persons of having this boon conferred upon them.

"We have already conferred upon them the great, inestimable, priceless boon of personal liberty. I can not for one moment yield to what seems to be a general disposition to disparage the freedom we have given them. I think the fact that we have conferred upon four million people that personal liberty and freedom from servitude from this time forward for evermore, is one of the highest and most beneficent acts ever performed by any Government toward so large a cla.s.s of its people.

"Having gone thus far, I desire to go on by successive steps still further, and to elevate them in all respects, so far as their faculties will allow and our power will permit us to do, to an equality with the other persons and races in this country. I desire, as the next step in the process of elevating that race, to give them the rights of citizenship, or to declare by solemn statute that they are citizens of the United States, and thus secure to them whatever rights, immunities, privileges, and powers belong as of right to all citizens of the United States. I hope no one will be prepared or inclined to say this is a trifling boon. If we do so estimate this great privilege, I fear we are scarcely in the frame of mind to act upon the great questions coming before us from day to day here. I, for one, am not prepared or inclined to disparage American citizenship as a personal qualification belonging to myself, or as conferred upon any of our fellow-citizens."

Mr. Raymond expressed doubts as to the const.i.tutionality of that part of the bill "that provides for that cla.s.s of persons thus made citizens protection against antic.i.p.ated inequality of legislation in the several States."

In this direction he was desirous of avoiding a veto. He said: "Moreover, on grounds of expediency, upon which I will not dwell, I desire myself, and I should feel much relieved if I thought the House fully and heartily shared my anxiety, not to pa.s.s here any bill which shall be intercepted on its way to the statute-book by well-grounded complaints of unconst.i.tutionality on the part of any other department of the Government."

Mr. Delano, of Ohio, followed, expressing doubts as to the const.i.tutionality of the measure. He considered it a serious infringement of the rights of the States. He said: "Now, sir, should this bill be pa.s.sed, that law of the State might be overthrown by the power of Congress. In my opinion, if we adopt the principle of this bill, we declare, in effect, that Congress has authority to go into the States and manage and legislate with regard to all the personal rights of the citizen--rights of life, liberty, and property. You render this Government no longer a Government of limited powers; you concentrate and consolidate here an extent of authority which will swallow up all or nearly all of the rights of the States with respect to the property, the liberties, and the lives of its citizens."

He added, near the close of his address: "I am not to be understood as denying the power of this Government, especially that great war power which, when evoked, has no limit except as it is limited by necessity and the laws of civilized warfare. But, sir, in time of peace I would not and I can not stand here and attempt the exercise of powers by this General Government, which, if carried out with all the logical consequences that follow their a.s.sumption, will, in my opinion, endanger the liberties of the country."

Mr. Kerr, of Indiana, maintained the theory that the States should settle questions of citizenship as relating to those within their borders; that "the privileges and immunities of citizenship in the States are required to be attained, if at all, _according to the laws or Const.i.tutions of the States_, and never in _defiance_ of them." To sustain this theory, he read from a number of authorities, and finally remarked:

"This bill rests upon a theory utterly inconsistent with, and in direct hostility to, every one of these authorities. It a.s.serts the right of Congress to regulate the laws which shall govern in the acquisition and ownership of property in the States, and to determine who may go there and purchase and hold property, and to protect such persons in the enjoyment of it. The right of the State to regulate its own internal and domestic affairs, to select its own local policy, and make and administer its own laws, for the protection and welfare of its own citizens, is denied. If Congress can declare what rights and privileges shall be enjoyed in the States by the people of one cla.s.s, it can, by the same kind of reasoning, determine what shall be enjoyed by every cla.s.s. If it can say who may go into and settle in and acquire property in a State, it can also say who shall not. If it can determine who may testify and sue in the courts of a State, it may equally determine who shall not. If it can order the transfer of suits from the State to the Federal courts, where citizens of the same State alone are parties, in such cases as may arise under this bill, it can, by parity of logic, dispense with State courts entirely. Congress, in short, may erect a great centralized, consolidated despotism in this capital. And such is the rapid tendency of such legislation as this bill proposes."

On the succeeding day, March 9th, Mr. Wilson having demanded the previous question, on the motion to recommit, was ent.i.tled to the floor, but yielded portions of his time to Mr. Bingham and Mr.

Sh.e.l.labarger.

The former had moved to amend the motion to recommit, by adding instructions "to strike out of the first section the words, 'and there shall be no discrimination in civil rights or immunities among citizens of the United States, in any State or Territory of the United States, on account of race, color, or previous condition of slavery,'

and insert in the thirteenth line of the first section, after the word 'right,' the words, 'in every State and Territory of the United States.' Also, to strike out all parts of said bill which are penal, and which authorize criminal proceedings, and in lieu thereof to give to all citizens injured by denial or violation of any of the other rights secured or protected by said act, an action in the United States courts with double costs in all cases of recovery, without regard to the amount of damages; and also to secure to such persons the privilege of the writ of _habeas corpus_."

Mr. Bingham said: "And, first, I beg gentlemen to consider that I do not oppose any legislation which is authorized by the Const.i.tution of my country to enforce in its letter and its spirit the bill of rights as embodied in that Const.i.tution. 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 Const.i.tution 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 Const.i.tution of the United States. Who can doubt this conclusion who considers the words of the Const.i.tution, 'the powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?' The Const.i.tution 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 Const.i.tution to the States are express prohibitions, as that no State shall enter into any treaty, etc., or emit bills of credit, or pa.s.s any bill of attainder, etc. The Const.i.tution does not prohibit States from the enactment of laws for the general government of the people within their respective limits.

"The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that, not by arbitrary a.s.sumption of power, but by amending the Const.i.tution of the United States, expressly prohibiting the States from any such abuse of power in the future. You propose to make it a penal offense for the judges of the States to obey the Const.i.tution and laws of their States, and for their obedience thereto to punish them by fine and imprisonment as felons. I deny your power to do this. You can not make an official act, done under color of law, and without criminal intent, and from a sense of public duty, a crime."

[Ill.u.s.tration: James F. Wilson.]

Mr. Sh.e.l.labarger of Ohio said: "I do not understand that there is now any serious doubt anywhere as to our power to admit by law to the rights of American citizenship entire cla.s.ses or races who were born and continue to reside in our territory or in territory we acquire. I stated, the other day, some of the cases in which we naturalized races, tribes, and communities in ma.s.s, and by single exercises of national sovereignty. This we did by the treaty of April 30, 1800, by which we acquired Louisiana; also in the treaty of 1819, by which we acquired Florida; also in the treaty of 1848, by which we acquired part of Mexico; also by the resolution of March 1, 1845, annexing Texas, and the act of December 29, same year, admitting Texas into the Union, we made all the people not slaves citizens; also by the treaty of September 27, 1830, we admitted to citizens certain heads of families of Choctaws; also by the treaty of December 29, 1855, we did the same as to the Cherokees; also by the act of March 3, 1843, we admitted to full citizenship the Stockbridge tribe of Indians."

Referring to the first section which his colleague had proposed to amend, he said: "Self-evidently this is the whole effect of this first section. It secures, not to all citizens, but to all races as races who are citizens, equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. Now, sir, can this Government do this? Can it prevent one race of free citizens from being by State laws deprived as a race of all the civil rights for the securement of which his Government was created, and which are the only considerations the Government renders to him for the Federal allegiance which he renders? It does seem to me that that Government which has the exclusive right to confer citizenship, and which is ent.i.tled to demand service and allegiance, which is supreme over that due to any State, may--nay, must--protect those citizens in those rights which are fairly conducive and appropriate and necessary to the attainment of his 'protection' as a citizen. And I think those rights to contract, sue, testify, inherit, etc., which this bill says the races shall hold as races in equality, are of that cla.s.s which are fairly conducive and necessary as means to the const.i.tutional end; to-wit, the protection of the rights of person and property of a citizen. It has been found impossible to settle or define what are all the indispensable rights of American citizenship. But it is perfectly well settled what are some of these, and without which there is no citizenship, either in this or any other Government. Two of these are the right of pet.i.tion and the right of protection in such property as it is lawful for that particular citizen to own."

The debate was closed by Mr. Wilson, Chairman of the Judiciary Committee. He said: "This bill, sir, has met with opposition in both houses on the same ground that, in times gone by, before this land was drenched in blood by the slaveholders' rebellion, was urged by those who controlled the destinies of the southern portion of the country, and those who adhered to their fortunes in the North, for the purpose of riveting the chains of slavery and converting this republic into a great slave nation. The arguments which have been urged against this bill in both houses are but counterparts of the arguments used in opposition to the authority the Government sought to exercise in controlling and preventing the spread of slavery.

"Citizens of the United States, as such, are ent.i.tled to certain rights, and, being ent.i.tled to those rights, it is the duty of the Government to protect citizens in the perfect enjoyment of them. The citizen is ent.i.tled to life, liberty, and the right to property. The gentleman from Ohio tells us, in the protection of these rights, the citizen must depend upon the 'honest purpose of the several States,'

and that the General Government can not interpose its strong right arm to defend the citizen in the enjoyment of life, liberty, and in possession of property. In other words, if the States of this Union, in their 'honest purpose,' like the honesty of purpose manifested by the Southern States in times past, should deprive the citizen, without due process of law, of life, liberty, and property, the General Government, which can draw the citizen by the strong bond of allegiance to the battle-field, has no power to intervene and set aside a State law, and give the citizen protection under the laws of Congress in the courts of the United States; that at the mercy of the States lie all the rights of the citizens of the United States; that while it was deemed necessary to const.i.tute a great Government to render secure the rights of the people, the framers of the Government turned over to the States the power to deprive the citizen of those things for the security of which the Government was framed. In other words, the little State of Delaware has a hand stronger than the United States; that revolted South Carolina may put under lock and key the great fundamental rights belonging to the citizen, and we must be dumb; that our legislative power can not be exercised; that our courts must be closed to the appeal of our citizens. That is the doctrine this House of Representatives, representing a great free people, just emerged from a terrible war for the maintenance of American liberty, is asked to adopt.

"The gentleman from Ohio tells the House that civil rights involve all the rights that citizens have under the Government; that in the term are embraced those rights which belong to the citizen of the United States as such, and those which belong to a citizen of a State as such; and that this bill is not intended merely to enforce equality of rights, so far as they relate to citizens of the United States, but invades the States to enforce equality of rights in respect to those things which properly and rightfully depend on State regulations and laws. My friend is too sound a lawyer, is too well versed in the Const.i.tution of his country, to indorse that proposition on calm and deliberate consideration. He knows, as every man knows, that this bill refers to those rights which belong to men as citizens of the United States and none other; and when he talks of setting aside the school laws, and jury laws, and franchise laws of the States, by the bill now under consideration, he steps beyond what he must know to be the rule of construction which must apply here, and, as the result of which this bill can only relate to matters within the control of Congress."

Comparing Mr. Bingham's proposed amendment with the original bill, Mr.

Wilson said: "What difference in principle is there between saying that the citizen shall be protected by the legislative power of the United States in his rights by civil remedy and declaring that he shall be protected by penal enactments against those who interfere with his rights? There is no difference in the principle involved. If we may adopt the gentleman's mode, we may also select the mode provided in this bill. There is a difference in regard to the expense of protection; there is also a difference as to the effectiveness of the two modes. Beyond this, nothing. This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty it is to protect him. The amendment of the gentleman recognizes the principle involved, but it says that the citizen despoiled of his rights, instead of being properly protected by the Government, must press his own way through the courts and pay the bills attendant thereon. This may do for the rich, but to the poor, who need protection, it is mockery. The highest obligation which the Government owes to the citizen, in return for the allegiance exacted of him, is to secure him in the protection of his rights.

Under the amendment of the gentleman, the citizen can only receive that protection in the form of a few dollars in the way of damages, if he shall be so fortunate as to recover a verdict against a solvent wrong-doer. This is called protection. This is what we are asked to do in the way of enforcing the bill of rights. Dollars are weighed against the right of life, liberty, and property. The verdict of a jury is to cover all wrongs and discharge the obligations of the Government to its citizens.

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

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

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

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

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

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

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

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