History of the Thirty-Ninth Congress of the United States Part 20

"WASHINGTON, D. C., _March_ 27, 1866."

The death and funeral obsequies of Senator Foot prevented the Senate from proceeding to the consideration of the President's veto message for more than a week after it was read. On the 4th of April the Civil Rights Bill came up to be reconsidered, the question being, "Shall the bill pa.s.s, the objections of the President notwithstanding."

It devolved upon Mr. Trumbull, the author of the bill, to answer the objections of the President. In answer to the President's position that the bill conferred only Federal citizenship, and did not give any _status_ as citizens of States, Mr. Trumbull said: "Is it true that when a person becomes a citizen of the United States he is not also a citizen of every State where he may happen to be? On this point I will refer to a decision p.r.o.nounced 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 Ga.s.sies _vs._ Ballon, reported in 6 Peters, the Chief-Justice, in delivering the opinion of the court, says:

"'The defendant in error is alleged in the proceedings to be a citizen of the United Stated States, naturalized in Louisiana, and residing there. This is equivalent to an averment that he is a citizen of that State. _A citizen of the United States residing in any State of the Union is a citizen of that State._'"

The message declared "that the right of Federal citizenship is now for the first time proposed to be given by law." "This," said Mr.

Trumbull, "is not a misapprehension of the law, but a mistake in fact, as will appear by references to which I shall call the attention of the Senate." Mr. Trumbull then referred to the "collective naturalization" of citizens of Louisiana, Texas, and Cherokees, Choctaw, and Stockbridge Indians.

To the remark in the message that "if, as many claim, native-born persons are already citizens of the United States, this bill can not be necessary to make them such," Mr. Trumbull replied: "An act declaring what the law is, is one of the most common of acts known by legislative bodies. When there is any question as to what the law is, and for greater certainty, it is the most common thing in the world to pa.s.s a statute declaring it."

To the objection that eleven States were unrepresented, the Senator replied: "This is a standing objection in all the veto messages, yet the President has signed some forty bills. If there is any thing in this objection, no bill can pa.s.s Congress till the States are represented here. Sir, whose fault is it that eleven States are not represented? By what fault of theirs is it that twenty-five loyal States which have stood by this Union and by the Const.i.tution are to be deprived of their right to legislate? If the reason a.s.signed is a good one now, it has been a good one all the time for the last five years. If the fact that some States have rebelled against the Government is to take from the Government the right to legislate, then the criminal is to take advantage of his crime; the innocent are to be punished for the guilty.

"But the President tells us that 'the bill, in effect, proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro.' Is that true? What is the bill? It declares that there shall be no distinction in civil rights between any other race or color and the white race. It declares that there shall be no different punishment inflicted on a colored man in consequence of his color than that which is inflicted on a white man for the same offense. Is that a discrimination in favor of the negro and against the foreigner--a bill the only effect of which is to preserve equality of rights?

"But perhaps it may be replied to this that the bill proposes to make a citizen of every person born in the United States, and, therefore, it discriminates in that respect against the foreigner. Not so; foreigners are all upon the same footing, whether black or white. The white child who is born in the United States a citizen is not to be presumed at its birth to be the equal intellectually with the worthy, intelligent, and patriotic foreigner who emigrates to this country.

And, as is suggested by a Senator behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father. Is this, therefore, a discrimination against foreigners?

"The President also has an objection to the making citizens of Chinese and Gypsies. I am told that but few Chinese are born in this country, and where the Gypsies are born, I never knew. [Laughter.] Like Topsy, it is questionable, whether they were born at all, but 'just come.'

[Laughter.]

"But, sir, perhaps the best answer to this objection that the bill proposes to make citizens of Chinese and Gypsies, and this reference to the foreigners, is to be found in a speech delivered in this body by a Senator occupying, I think, the seat now occupied across the chamber by my friend from Oregon, [Mr. Williams,] less than six years ago, in reply to a message sent to this body by Mr. Buchanan, the then President of the United States, returning, with his objections, what was known as the Homestead Bill. On that occasion the Senator to whom I allude said:

"'But this idea about "poor foreigners," somehow or other, bewilders and haunts the imagination of a great many. * * * * *

"'I am constrained to say that I look upon this objection to the bill as a mere quibble on the part of the President, and as being hard-pressed for some excuse in withholding his approval of the measure; and his allusion to foreigners in this connection looks to me more like the _ad captandum_ of the mere politician or demagogue, than a grave and sound reason to be offered by the President of the United States in a veto message upon so important a measure as the Homestead Bill.'

"That was the language of Senator Andrew Johnson, now President of the United States. [Laughter.] That is probably the best answer to this objection, though I should hardly have ventured to use such harsh language in reference to the President as to accuse him of quibbling and of demagoguery, and of playing the mere politician in sending a veto message to the Congress of the United States."

The President had urged an objection that if Congress could confer civil rights upon persons without regard to color or race, it might also confer upon them political rights, and among them that of suffrage. In reply to this, Mr. Trumbull referred to the policy of the President himself in undertaking to "reorganize State governments in the disloyal States." He "claimed and exercised the power to protect colored persons in their civil rights," and yet, when "urged to allow loyal blacks to vote," he held that "he had no power; it was unconst.i.tutional."

"But, sir," continued Mr. Trumbull, "the granting of civil rights does not and never did, in this country, carry with it rights, or, more properly speaking, political privileges. A man may be a citizen in this country without a right to vote or without a right to hold office. The right to vote and hold office in the States depends upon the legislation of the various States; the right to hold certain offices under the Federal Government depends upon the Const.i.tution of the United States. The President must be a natural-born citizen, and a Senator or Representative must be a citizen of the United States for a certain number of years before he is eligible to a seat either in this or the other House of Congress; so that the fact of being a citizen does not necessarily qualify a person for an office, nor does it necessarily authorize him to vote. Women are citizens; children are citizens; but they do not exercise the elective franchise by virtue of their citizenship. Foreigners, as is stated by the President in this message, before they are naturalized are protected in the rights enumerated in this bill, but because they possess those rights in most, if not all, the States, that carries with it no right to vote.

"But, sir, what rights do citizens of the United States have? To be a citizen of the United States carries with it some rights, and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights enumerated in this bill, and they belong to them in all the States of the Union.

The right of American citizenship means something. It does not mean, in the case of a foreigner, that when he is naturalized he is to be left entirely to the mercy of State legislation. He has a right, when duly naturalized, to go into any State of the Union, and to reside there, and the United States Government will protect him in that right. It will protect a citizen of the United States, not only in one of the States of the Union, but it will protect him in foreign lands.

"Every person residing in the United States is ent.i.tled to the protection of that law by the Federal Government, because the Federal Government has jurisdiction of such questions. American citizenship would be little worth if it did not carry protection with it.

"How is it that every person born in these United States owes allegiance to the Government? Every thing that he is or has, his property and his life, may be taken by the Government of the United States in its defense, or to maintain the honor of the nation. And can it be that our ancestors struggled through a long war and set up this Government, and that the people of our day have struggled through another war, with all its sacrifices and all its desolation, to maintain it, and at last that we have got a Government which is all-powerful to command the obedience of the citizen, but has no power to afford him protection? Is that all that this boasted American citizenship amounts to? Go tell it, sir, to the father whose son was starved at Andersonville; or the widow whose husband was slain at Mission Ridge; or the little boy who leads his sightless father through the streets of your city, made blind by the winds and the sand of the Southern coast; or the thousand other mangled heroes to be seen on every side, that this Government, in defense of which the son and the husband fell, the father lost his eyes, and the others were crippled, had the right to call these persons to its defense, but has no right to protect the survivors or their friends in any right whatever in any of the States. Sir, it can not be. Such is not the meaning of our Const.i.tution. Such is not the meaning of American citizenship. This Government, which would go to war to protect its meanest--I will not say citizen--inhabitant, if you please, in any foreign land, whose rights were unjustly encroached upon, has certainly some power to protect its own citizens in their own country.

Allegiance and protection are reciprocal rights."

To the President's objection to the second section of the bill, that it discriminated in favor of colored persons, Mr. Trumbull replied: "It says, in effect, that no one shall subject a colored person to a different punishment than that inflicted on a white person for the same offense. Does that discriminate in favor of the colored person?

Why, sir, the very object and effect of the section is to prevent discrimination, and language, it seems to me, could not more plainly express that object and effect. It may be said that it is for the benefit of the black man, because he is now, in some instances, discriminated against by State laws; but that is the case with all remedial statutes. They are for the relief of the persons who need the relief, not for the relief of those who have the right already; and when those needing the relief obtain it, they stand upon the precise footing of those who do not need the benefit of the law."

The President had further objected to this section, that "it provides for counteracting such forbidden legislation by imposing fine and imprisonment upon the legislators who may pa.s.s such conflicting laws."

"Let us see," said Mr. Trumbull, "if that is the language or the proper construction of the section. I will read again the first lines of it. It declares 'that any person who, under color of any law, ordinance, regulation, or custom, shall subject, or cause to be subjected, etc., * * * shall be punished,' etc.

"Who is to be punished? Is the law to be punished? Are the men who make the law to be punished? Is that the language of the bill? Not at all. If any person, 'under color of any law,' shall subject another to the deprivation of a right to which he is ent.i.tled, he is to be punished. Who? The person who, under the color of the law, does the act, not the men who made the law. In some communities in the South a custom prevails by which different punishment is inflicted upon the blacks from that meted out to whites for the same offense. Does this section propose to punish the community where the custom prevails? or is it to punish the person who, under color of the custom, deprives the party of his right? It is a manifest perversion of the meaning of the section to a.s.sert any thing else.

"But it is said that under this provision judges of the courts and ministerial officers who are engaged in execution of any such statutes may be punished, and that is made an objection to this bill. I admit that a ministerial officer or a judge, if he acts corruptly or viciously in the execution or under color of an illegal act, may be and ought to be punished; but if he acted innocently, the judge would not be punished. Sir, what is a crime? It is a violation of some public law, to const.i.tute which there must be an act, and a vicious will in doing the act; or, according to the definition in some of the law-books, to const.i.tute a crime there must be a violation of a public law, in the commission of which there must be a union or joint operation of act and intent, or criminal negligence; and a judge who acted innocently, and not viciously or oppressively, would never be convicted under this act. But, sir, if he acted knowingly, viciously, or oppressively, in disregard of a law of the United States, I repeat, he ought to be punished, and it is no anomaly to prescribe a punishment in such a case. Very soon after the organization of this Government, in the first years of its existence, the Congress of the United States provided for punishing officers who, under color of State law, violated the laws of the United States."

Mr. Trumbull then read from an act of Congress pa.s.sed in 1790, providing for the punishment of certain offenses against foreign ministers, and said: "By this provision all officers executing any process in violation of the laws of the United States are to be subject to a much longer imprisonment than is provided by this bill.

"But, sir, there is another answer, in my judgment, more conclusive, to all these objections to this second section, which is the vital part of the bill. Without it, it would scarcely be worth the paper on which the bill is written. A law without a penalty, without a sanction, is of little value to any body. What good does it do for the Legislature to say, 'Do this, and forbear to do that,' if no consequence is to follow the act of disobedience? This is the vitality of the bill. What is the objection that is made to it, and which seems even to have staggered some friends of the measure? It is because it reads in the first section that any person who, 'under color of law,'

shall commit these offenses, shall be subject to the penalties of the law. Suppose those words had been left out, and the bill read, 'any person who shall subject any inhabitant of a State to different punishment by reason of his color shall be punished,' would there have been any objection to the bill then? That is the way most criminal laws read. That is the way the law punishing conspiracies against the Government reads. If two or more persons conspire together to overthrow the Government, or by force to resist its authority, they are liable to indictment, and, upon conviction, to imprisonment in the penitentiary and to heavy fine. Would the fact that the persons engaged in the conspiracy were judges or governors or ministerial officers, acting under color of any statute or custom, screen them from punishment? Surely not.

"The words 'under color of law' were inserted as words of limitation, and not for the purpose of punishing persons who would not have been subject to punishment under the act if they had been omitted. If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have any thing to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against, under color of State laws, because he is colored, then it becomes necessary to interfere for his protection.

"The a.s.sumption that State judges and other officials are not to be held responsible for violations of United States laws when done under color of State statutes or customs is akin to the maxim of the English law that the king can do no wrong. It places officials above the law; it is the very doctrine out of which the rebellion was hatched.

"Every thing that was done by that wicked effort to overturn our Government was done under color of law. The rebels insisted that they had a right to secede; they pa.s.sed ordinances of secession, they set up State governments, and all that they did was under color of law.

And if parties committing these high crimes are to go free because they acted under color of law, why is not Jeff Davis and every other rebel chief discharged at once? Why did this country put forth all its resources of men and money to put down the rebellion against the authority of the Government except it had a right to do so, even as against those who were acting under color of law? Lee, with his rebel hordes, thundering upon the outskirts of this very city, was acting under color of law; every judge who has held a court in the Southern States for the last four years, and has tried and convicted of treason men guilty of no other offense than loyalty to the Union, acted under color of law.

"Sir, if we had authority by the use of the army and the war power to put down rebels acting under color of law, I put the question to every lawyer, if we had not authority to do that through the courts and the judicial tribunals if it had been practicable? Suppose it had been practicable, through the marshals, to arrest the Legislature which convened at Montgomery, and undertook to take the State of Alabama out of the Union and set up a government in hostility thereto, ought it not to have been done? Was not that a conspiracy against this Government? When the Legislature a.s.sembled at Montgomery in 1861, and resolved that the connection between Alabama and the United States was dissolved, and when its members took steps to maintain that declaration; when the same thing was done in South Carolina, and courts were organized to carry out the scheme, will any body tell me it would not have been competent, had it been practicable, for the United States courts in those States to have issued process for the arrest of every one of those legislators, governors, judges, and all.

And, sir, had this been done, and it had turned out upon trial that any of the parties arrested had been engaged in armed hostility against the United States, as some of them had been when, with arms in their hands, they seized the a.r.s.enals and other public property of the United States, would they not have been found guilty of treason and hung for treason? and would the fact that they had acted under color of law have afforded them any protection?"

The President, in his Veto Message, had said, "I do not apprehend that the conflicting legislation which the bill seems to contemplate is so likely to occur as to render it necessary, at this time, to adopt a measure of such doubtful const.i.tutionality."

"That statement," replied Mr. Trumbull, "makes it necessary that I should advert to the facts and show whether there is any likelihood of such conflicting legislation; and my testimony comes from the President himself, or those acting under his authority."

After having referred to legislative enactments of several of the Southern States very oppressive to the colored people, Mr. Trumbull remarked: "Now, sir, what becomes of this declaration that there is no necessity for any measure of this kind? Here are the laws of Texas, of Mississippi, of Virginia, to which I have referred; and laws equally oppressive exist in some of the other States. Is there no necessity to protect a freedman when he is liable to be whipped if caught away from home? no necessity to protect a freedman in his rights when he is not permitted to hold or lease a piece of ground in a State? no necessity to protect a freedman in his rights, who will be reduced to a slavery worse than that from which he has been emanc.i.p.ated if a law is permitted to be carried into effect? Sir, these orders emanate and this information comes from officers acting by presidential authority, and yet the President tells us there is no danger of conflicting legislation."

After having answered other objections of the President, Mr. Trumbull said: "I have now gone through this Veto Message, replying with what patience I could command to its various objections to the bill. Would that I could stop here, that there was no occasion to go further; but justice to myself, justice to the State whose representative I am, justice to the people of the whole country, in legislation for whose behalf I am called to partic.i.p.ate, justice to the Const.i.tution I am sworn to support, justice to the rights of American citizenship it secures, and to human liberty, now imperiled, require me to go further. Gladly would I refrain speaking of the spirit of this message, of the dangerous doctrines it promulgates, of the inconsistencies and contradictions of its author, of his encroachments upon the const.i.tutional rights of Congress, of his a.s.sumption of unwarranted powers, which, if persevered in and not checked by the people, must eventually lead to a subversion of the Government and the destruction of liberty.

"Congress, in the pa.s.sage of the bill under consideration, sought no controversy with the President. So far from it, the bill was proposed with a view to carry out what were supposed to be the views of the President, and was submitted to him before its introduction in the Senate. I am not about to relate private declarations of the President, but it is right that the American people should know that the controversy which exists between him and Congress in reference to this measure is of his own seeking. Soon after Congress met, it became apparent that there was a difference of opinion between the President and some members of Congress in regard to the condition of the rebellious States and the rights to be secured to freedmen.

"The President, in his annual message, had denied the const.i.tutional power of the General Government to extend the elective franchise to negroes, but he was equally decided in the a.s.sertion of the right of every man to life, liberty, and the pursuit of happiness. This was his language:

"'But while I have no doubt that now, after the close of the war, it is not competent for the General Government to extend the elective franchise in the several States, it is equally clear that good faith requires the security of the freedmen in their liberty and their property.'

"There were some members of Congress who expressed the opinion that in the reorganization of the rebellious States the right of suffrage should be extended to the colored man, though this was not the prevailing sentiment of Congress. All were anxious for a reorganization of the rebellious States, and their admission to full partic.i.p.ation in the Federal Government as soon as these relations could be restored with safety to all concerned. Feeling the importance of harmonious action between the different departments of the Government, and an anxious desire to sustain the President, for whom I had always entertained the highest respect, I had frequent interviews with him during the early part of the session. Without mentioning any thing said by him, I may with propriety state that, acting from the considerations I have stated, and believing that the pa.s.sage of a law by Congress, securing equality in civil rights to freedmen and all other inhabitants of the United States, when denied by State authorities, would do much to relieve anxiety in the North, to induce the Southern States to secure these rights by their own action, and thereby remove many of the obstacles to an early reconstruction, I prepared the bill substantially as it is now returned with the President's objections. After the bill was introduced and printed, a copy was furnished him, and at a subsequent period, when it was reported that he was hesitating about signing the Freedmen's Bureau Bill, he was informed of the condition of the Civil Rights Bill then pending in the House, and a hope expressed that if he had objections to any of its provisions he would make them known to its friends, that they might be remedied, if not destructive of the measure; that there was believed to be no disposition on the part of Congress, and certainly none on my part, to have bills presented to him which he could not approve. He never indicated to me, nor, so far as I know, to any of its friends, the least objection to any of the provisions of the bill till after its pa.s.sage. And how could he, consistently with himself? The bill was framed, as was supposed, in entire harmony with his views, and certainly in harmony with what he was then and has since been doing in protecting freedmen in their civil rights all through the rebellious States. It was strictly limited to the protection of the civil rights belonging to every freeman, the birthright of every American citizen, and carefully avoided conferring or interfering with political rights or privileges of any kind.

* * * * "If the bill now before us, and which goes no further than to secure civil rights to the freedman, can not be pa.s.sed, then the const.i.tutional amendment proclaiming freedom to all the inhabitants of the land is a cheat and a delusion.

"I can not better conclude what I have to say than in the language of Mr. Johnson on the occasion of the veto of the Homestead Bill, when, after stating that the fact that the President was inconsistent and changed his opinion with reference to a great measure and a great principle, is no reason why a Senator or Representative, who has acted understandingly, should change his opinion. He said:

"'I hope the Senate and House of Representatives, who have sanctioned this bill by more than a two-thirds majority, will, according to the Const.i.tution, exercise their privilege and power, and let the bill become a law of the land, according to the high behest of the American people.'"

On the next day, April 5th, Mr. Johnson, of Maryland, made a speech sustaining the Veto Message. He argued that negroes were not citizens of the United States by reason of their birth in the United States, and that Congress had no authority by law to declare them such. To sustain his position, he made quotations from the opinion of the minority in the Dred Scott case, as rendered by Mr. Justice Curtis. He then proceeded to reply to some of Mr. Trumbull's arguments against the Veto Message: "The honorable member from Illinois disposes of the President's objection to the first section of this bill by saying that it is merely declaratory. I know it is competent for any legislative body, on a question where difference of opinions exist in relation to any legal proposition, to remove them by declaratory legislation; but that is not the purpose of this bill. It professes to be pa.s.sed in the exercise of a positive and absolute power to change the law--not to declare what the law was in order to remove doubts, but to make the law. It a.s.sumes, or otherwise there would be no occasion for it, that birth alone does not confer citizenship; and a.s.suming that no citizenship would exist in consequence of birth alone, it declares that birth alone, in spite of State const.i.tution and State laws, shall confer citizenship. Now, with all deference to the opinion of the honorable Chairman of the Committee on the Judiciary, that seems to me to be a proposition as clearly erroneous as any proposition can be in relation to const.i.tutional law. The States were sovereign before the Const.i.tution was adopted; and the Const.i.tution not only, according to its very terms, does not profess to confer upon the Government of the United States all governmental power, but as far as Congress is concerned, professes to confer upon that department of the Government only the particular delegated powers there enumerated; but so anxious were the framers of that instrument and the great men of that day, to whom the subsequent organization of this Government was left, that although they had no doubt as to the principle that only the delegated powers were granted, (and the debates in the Convention itself as well as the debates in the conventions of the several States, when the Const.i.tution was before them for adoption or rejection, all went upon the theory that no powers were conferred except such as were expressly granted, or as were reasonably implied to be as necessary to carry out the powers expressly granted,) by the tenth amendment adopted recently after the Const.i.tution went into operation, and recommended by the men, many of whom were the framers of the Const.i.tution itself, that the powers not delegated by the Const.i.tution, and not denied to the States by the same instrument, were to be considered reserved to the States respectively, or to the people.

"Standing, therefore, as well upon the nature of the Government itself, as a Government of enumerated powers specially delegated, as upon the express provision that every thing not granted was to be considered as remaining with the States unless the Const.i.tution contained some particular prohibition of any power before belonging to the States, what doubt can there be that if a State possessed the power to declare who should be her citizens before the Const.i.tution was adopted that power remains now as absolute and as conclusive as it was when the Const.i.tution was adopted? The bill, therefore, changes the whole theory of the Government.

"The President, then, I think, is right. I go further than he does. He expresses a doubt whether Congress has the power; I affirm, with all deference to the better judgment of the majority of the Senate who voted for the bill, and to that of the honorable Chairman of the Committee on the Judiciary, that it is perfectly clear that no such power exists in Congress as the one attempted to be exercised by the first section. I hold, with Mr. Justice Curtis--and his opinion to this day has never been questioned--that citizenship of the United States consequent upon birth in a State is to depend upon the fact whether the const.i.tution and laws of the State make the party so born a citizen of the State.

"But that is not all. This first section has another provision. Not satisfied with making the parties citizens and clothing them with all the rights belonging to white citizens by the laws of the States, it says that they 'shall be subject to like punishment, pains, and penalties, and to none other.' That invades the jurisdiction of the States over their criminal code. Congress a.s.sumes to define a crime, and defining a crime gives to its own courts exclusive jurisdiction over the crime and the party charged with its perpetration. It strikes at the criminal code of the States. The result, therefore, of the three provisions in this section is, that contrary to State const.i.tutions and State laws, it converts a man that is not a citizen of a State into a citizen of the State; it gives him all the rights that belong to a citizen of the State; and it provides that his punishment shall only be such as the State laws impose upon white citizens. Where is the authority to do that? If it exists, it is still more obvious that the result is an entire annihilation of the power of the States. It seems to be the fashion of the hour--I do not know that my honorable friend from Illinois goes to that extent--to hold to the doctrine that the sooner every thing is vested in the Government of the United States the better for the country. It is a perilous delusion. If such a proposition had been supposed to be found any where in the Const.i.tution of the United States, it never would have been adopted by the people; and if it is a.s.sumed, or if it is considered as const.i.tutionally existing by virtue of some power not before known, the Government will not last half a century. I have not time to read from the writings of Mr. Madison and Mr. Hamilton and the decisions of the Supreme Court on the question.