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HISTORY 



OF THE 



Thirty-Ninth Congress 



UNITED STATES. 



By WILLIAM H. BAKNES, A.M., 

AUTHOR OF "THE BODY POLITIC." 



WITH P RTRAITS. 



NEW YORK: 

HARPER & BROTHERS, PUBLISHERS, 

3 27 to 335„PEARL STREET. 

iS 68. 






Entered, according to Act of Congress, in the year 1868, by 

WILLIAM H. BARNES, 

Tn the Clerk's Office of the District Court of the United States for the District 

of Columbia. 



PREFACE. 



THE history of the Thirty-Ninth Congress is a sequel 
to that of the Rebellion. This having been over- 
thrown, it remained for Congress to administer upon its 
effects. It depended upon the decisions of Congress 
whether the expected results of our victories should be 
realized or lost. 

Now that the work of the Thirty-Ninth Congress stands 
forth complete, people naturally desire to know some- 
thing of the manner in which the rough material was 
shaped into order, and the workmanship by which the 
whole was "fitly joined together." It can not be said 
of this fabric of legislation that it went up without "the 
sound of the hammer." The rap of the gavel was often 
heard enforcing order or limiting the length of speeches. 

Discussion is the process by which legislation is 
achieved ; hence ho history of legislation would be com- 
plete without presenting the progress of debate prepar- 
atory to the adoption of important measures. The ex- 
planation of what our legislators did is found in what 
they said. Debates, as presented in the following pages, 
are by necessity much abridged. No attempt has been 
made to give a. summary or synopsis of speeches. That 
which seemed to be the most striking or characteristic 
passage in a speech is given, in the words of the orator. 

Many things said and done in the Thirty-Ninth Con- 
gress, of great importance to the nation, are by neces- 
sity omitted. The reader, in forming his opinion of 



ii PREFACE. 

Congressional character and ability, will bear in mind 
that those ' who speak most frequently are not always 
the most useful legislators. Men from whom no quo- 
tation is made, and to whom no measure is attributed 
in the following pages, may be among the foremost in 
watchfulness for their constituents, and faithfulness to 
the country. 

If it should seem that one subject — the negro ques- 
tion — occupied too much of the time and attention of 
Congress, it must be borne in mind that this subject 
was thrust upon Congress and the country by the issue 
of the Rebellion, and must be definitely and finally 
settled before the nation can be at rest. "Unsettled 
questions have no pity on the repose of mankind." 

No attempt has been made to jfresent a journal of 
Congressional proceedings, giving a detail of what was 
said and done from day to day in the Senate and the 
House. There was always some great national question 
under consideration in one or the other House, forming 
an uninterrupted series of discussions and transactions. 
To present these in review is to give a history of the 
Thirty-Ninth Congress, since they distinguish it from all 
its predecessors, and make it historical. 



CONTENTS. 



CHAPTER I.— Opening Scenes. 

(Page 13-21.) 

Momentous Events op the Vacation — Opening of the Senate — Me. 
Wade — Mr. Sumner — Mr. Wilson — Mr. Harris — Edward McPherson — 
As Clerk op the preceding Congress, he calls the House to order — 
Interruption of Roll-call by Mr. Maynard — Remarks by Mr. Brooks — 
His Colloquy with Mr. Stevens — Mr. Colfax elected Speaker — His 
Inaugural Address — The Test Oath. 



CHAPTER II. — Locations of the Members and Cast op the 

Committees. 

(Page 22-32.) 

Importance of surroundings — Members sometimes referred to by their 
seats — Senator Andrew Johnson — Seating of the Senators — Drawing 
in the House — The Senate Chamber as seen from the Gallery — Dis- 
tinguished Senators — The House of Representatites — Some prominent 
characters — Importance of Committees — Difficulty in their appoint- 
ment — Important Senate Committees — Committees of the House. 



CHAPTER III. — Formation op tiie Joint Committee on 
Reconstruction. 

(Page 33-49.) 
Lack of Excitement — Cause — The Resolution — Dilatory Motions — Yeas 
and Nays — Proposed Amendments in the Senate — Debate in the Sen- 
ATE — Mr. Howard — Mr. Anthony — Mr. Doolittle — Mr. Fessenden — 
Mr. Saulsbury — Mr. Hendricks— Mr. Trumbull — Mr. Guthrie — Pas- 
sage of the Resolution in the Senate — Yeas and Nays — Remarks of 
Mr. Stevens on the Amendment of the Senate — Concurrence of the 
House — The Committee appointed. 
1 



iv CONTENTS. 

CHAPTER IV. — Suffrage in the District of Columbia. 

(Page 50-94.) 

Duty of Congress to legislate for the District of Columbia — Suffrage 
Bill introduced into the House — Speech by Mr. Wilson — Me. Boyer — 
Mr. Schofield — Mr. Kelly — Mr. Rogers — Mr. Farnsworth — Mr. Dayis 
— Mr. Chanler — Mr. Bingham — Mr. Grinnell — Mr. Kasson — Mr. Ju- 
lian — Mr. Thomas — Mr. Darling — Mr. Hale's Amendment — Mr. Thayer 
— Mr. Van Horn — Mr. Clarke — Mr. Johnson — Mr. Boutwell. 



CHAPTER V.— The Freedmen. 

(Page 95-103.) 

Necessities of the Freedmen — Committee in the House — Early Move- 
ment by the Senate in behalf of Freedmen — Senator Wilson's Bill — 
Occasion for it — Mr. Cowan moves its reference — Mr. Reverdy John- 
son ADVISES DELIBERATION — A QUESTION OF TIME WITH Mr. SHERMAN — Mr. 

Trumbull promises a more efficient bill — Mr. Sumner presents proof 

OF THE BAD CONDITION OF AFFAIRS IN THE SOUTH — Mr. COWAN AND Mr. 

Stewart produce the President as a witness for the defense — Mr. 
Wilson on the testimony — "Conservatism" — The bill absorbed in 
greater measures. 

CHAPTER VI. — TnE Freedmen's Bureau Bill in the Senate. 

(Page 104-137.) 

The Bill introduced and referred to Judiciary Committee — Its provis- 
I0NS — Argument of Mr. Hendricks against it — Reply of Mr. Trumbull 
— Mr. Cowan's Amendment — Mr. Guthrie wishes to relieve Kentucky 

FROM THE OPERATION OF THE BILL — Mr. CrESWELL DESIRES THAT MARYLAND 
MAY ENJOY THE BENEFITS OF THE BILL — Mr. CoWAN's GRATITUDE TO GoD AND 

Friendship for the Negro— Remarks by Mr. Wilson—" The short gen- 
tleman's long speech" — Yeas and Nays — Insulting title. 



CHAPTER VII. — The Freedmen's Bureau Bill in the House. 

(Page 138-157.) 
The Bill Reported to the House— Mr. Eliot's Speech— History — Mr. 
Dawson vs. the Negro — Mr. Garfield — The Idol broken — Mr. Taylor 
counts the Cost — Mr. Donnelly's Amendment — Mr. Kerr — Mr. Mar- 
shall on White Slavery — Mr. Hubbard — Mr. Moulton — Opposition 
from Kentucky — Mr. Ritter — Mr. Rosseau's Threat — Mr. Shanklin's 
Gloomy Prospect — Mr. Trimble's Appeal — Mr. McKee an exceptional 
Kentuckian — Mr. Grinnell on Kentucky — The Example of Russia — 
Mr. Phelps — Mr. Skellabarger's Amendment— Mr. Chanler— *Mr. 
Stevens' Amendments — Mr. Eliot closes the Discussion — Passage of the 
Bill — Yeas and Nays. 



CONTENTS v 

CHAPTER VIII. — Tiie Senate and the Veto Message. 

(Page 158-187.) 
Mr. Trumbull on the Amendments of the House — Mr. Guthrie exhibits 
feeling — Mr. Sherman's deliberate Conclusion — Mr. Henderson's sov- 
ereign remedy — Mr. Trumbull on patent medicines — Mr. McDougall a 
white man — Mr. Reverdy Johnson on the power to pass the Bill — Con- 
currence of the House — The Veto Message — Mr. Lane, of Kansas — His 
efforts for delay — Mr. Garrett Davis — Mr. Trumbull's reply to the 
President — The question taken — Yeas and Nays — Failure of passage. 



CHAPTER IX. — The Civil Rights Bill in the Senate. 

(Page 188-219.) 
Duty of Congress consequent upon the Abolition of Slavery — Civil Rights 
Bill introduced — Keference to Judiciary Committee — Before the Sen- 
ate — 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 Me. Johnson — Remarks by Mr. 
Morrill — Mr, Davis "wound up" — Mr. Guthrie's Speech — Mr. Hen- 
dricks — Reply of Mr. Lane — Mr. Wilson — Mr. Trumbull's closing re- 
marks — Yeas and Nays on the passage of the Bill. 



CHAPTER X. — The Civil Rights Bill in the House op 
Representatives. 

(Page 220-244.) 
The Bill referred to the Judiciary Committee and reported back — 
Speech by the Chairman of the Committee — Mr. Rogers — Mr. Cook — 
Mr. Thayer — Mr. Eldridge — Mr. Thornton — Mr. Windom — Mr. Shel- 

LABARGER — Mr. BrOOMALL — Mr. RAYMOND — Mr. DELANO — Mr. KERR — 

Amendment by Mr. Bingham — His Speech — Reply by his Colleague — 
Discussion closed by Mr. Wilson — Yeas and Nays on the passage of 
the Bill — Mr. Le Blond's proposed title — Amendments of the House 
accepted by the senate. 



CHAPTER XL— The Civil Rights Bill and the Veto. 

(Page 245-293.) 
Doubts as to the President's Decision — Suspense ended — The Veto Mes- 
sage — Mr. Trumbull's Answer — Mr. Reverdy Johnson defends the 
Message — Rejoinder — Remarks of Mr. Yates — Mr. Cowan appeals to 
the Country — Mr. Stewart shows how States may make the Law a 
Nullity — Mr. Wade — Mr. McDougall on Persian Mythology — Mr. J. 
H Lane defends the President — Mr. Wade — The President's Col- 
lar — Mr. Brown — Mr. Doolittle — Mr. Garrett Davis — Mr. Sauls- 
bury — Yeas and Nays in the Senate — Vote in the House — The Civil 
Rights Bill becomes a Law. 



vi CONTENTS. 

CHAPTER XII. — The Second Freedmen's Bureau Bill 
becomes a Law. 

(Page 294-306.) 
The Discovery of the Majority — The Senate Bill — The House Bill — 
Its Provisions — Passage of the Bill — Amendment and Passage in the 

Senate Committee of Conference — The Amendments as Accepted— 

The Bill as Passed— The Veto— The Proposition of a Democrat 

Accepted Confusion in Leadership — Passage of the Bill over the 

V eto — I T Becomes a Law. 



CHAPTER XIII.— First Words on Reconstruction 

(Page 307-323.) 
Responsibility of the Republican Party — Its Power and Position — Ini- 
tiatory Step — Mr. Stevens speaks for himself — Condition of the Rebel 
States — Constitutional Authority under which Congress should act — 
Estoppel— What Constitutes Congress— The First Duty— Basis of Rep- 
resentation — Duty on Exports — Two important Principles— Mr. Ray- 
mond's Theory— Rebel States still in the Union— Consequences of the 
Radical Theory— Conditions to be required— State Sovereignty — Rebel 
Debt— Prohibition of Slavery— Two Policies contrasted— Reply of Me. 
Jenckes— Difference in Terms, not in Substance— Logic of the Con- 
servatives LEADS TO THE RESULTS OF THE RADICALS. 



CHAPTER XIV.— The Basis of Representation in the House. 

(Page 324-572.) 
First work of the Joint Committee— The Joint Resolution proposing a 
Constitutional Amendment— Mr. Stevens' reasons for speedy action- 
Protracted Discussion commenced — Objections to the Bill by Mr. Rog- 
ers—Defense by Mr. Conkling— Two other Modes— How States might 
Evade the Law — Not a Finality — Wisconsin and South Carolina- 
Amendment for Female Suffrage proposed — Orth on Indiana and Mas- 
sachusetts—Obscuration of the Sun— More Radical Remedy desired— 
A Kentuckian gratified — Citations from the Census — Premium for 
Treason— White Slaves— Power to amend well-nigh exhausted— Ob- 
jections to the Suffrage Basis— "Race" and "Color" ambiguous— Con- 
dition of the Question — Recommitted — Final Passage. 



CHAPTER XV.— The Basis of Representation in the Senate. 

(Page 373-114.) 

The Joint Resolution goes to the Senate— Counter-proposition by Mr. 
Sumner— He Speaks Five Hours— Mr. Henderson's Amendment— Mr. 
Fessenden— Mr. Henry S. Lane— Mr. Johnson— Mr. Henderson— Mr. 



CONTENTS. vii 

Clark's Historical Statements — Fred. Douglass' Memorial — Mr. Wil- 
liams — Me. Hendricks — Mr. Chandler's "Blood-letting Letter" — 
Proposition of Mr. Yates — His Speech — Mr. Buckalew against New 
England — Mr. Pomeroy — Mr. Sumner's second Speech — Mr. Doolittle 
— Mr. Morrill — Mr. Fessenden meets Objections — Final Vote — The 
Amendment defeated. 



CHAPTER XVI. — Representation of the Southern States. 

(Page 417-433.) 

Concurrent Resolution — A "Venomous Fight" — Passage in the House — 
The Resolution in the Senate — "A Political Wrangle" deprecated — 
Importance of the Question — "A Straw in a Storm" — Policy of the 
President — Conversation between two Senators — Mr. Nye's Advice 
to Rebels — "A Dangerous Power" — "Was Mr. Wade once a Seces- 
sionist?" — Garrett Davis' Programme for the President — "Useless 
yet Mischievous" — The Great Question settled. 



CHAPTER XVII. — The Reconstruction Amendment in the 

House. 

(Page 434-451.) 

A Constitutional Amendment proposed and postponed — Proposition by 
Mr. Stewart — The Reconstruction Amendment — Death of its Prede- 
cessor LAMENTED OPPOSITION TO THE DISFRANCHISEMENT OF REBELS " THE 

Unrepentent Thirty-three" — Nine-tenths reduced to One-twelfth — 
Advice to Congress — The Committee denounced — Democratic and Re- 
publican Policy compared — Authority without Power — A Variety of 
Opinions — An Earthquake predicted — The Joint Resolution passes 
the House. 



CHAPTER XVIII. — The Reconstruction Amendment in the 

Senate. 

(Page 452-455.) 

Difference between Discussions in the House and in the Senate — Mr. 
Sumner proposes to postpone — Mr. Howard takes Charge of the Amend- 
ment — Substitutes proposed — The Republicans in Council — The Dis- 
franchising Clause stricken out — Humorous Account by Mr. Hendricks 
— The Pain and Penalties of not holding Office — A Senator's Piety 

appealed to howe vs. doolittle marketable principles praise of 

the President — Mr. McDougall's Charity — Vote of the Senate — Con- 
currence in the House. 



viii CONTENTS. 

CHAPTER XIX. — Report of the Committee on Reconstruction. 

(Page 466-472.) 
Ax IMPORTANT STATE PAPER — WORK OF THE COMMITTEE — DIFFICULTY OF ' 

obtaining information— Theory of the President — Taxation and 
Representation — Disposition and doings of the Southern People — 
Conclusion of the Committee — Practical Recommendations. 



CHAPTER XX. — Restoration op Tennessee. 

(Page 473-482.) 
Assembling of the Tennessee Legislature— Ratification of the Constitu- 
tional Amendment — Restoration of Tennessee proposed in Congress — 
The Government of Tennessee not Republican — Protest against the 
Preamble— Passage in the House— New Preamble proposed— The Presi- 
dent's Opinion deprecated and disregarded — Passage in the Senate — 
The President's Approval and Protest — Admission of Tennessee Mem 
bers — Mr. Patterson's Case. 



CHAPTER XXI.— Negro Suffrage. 

(Page 483-501.) 
Review of the preceding action— Efforts of Mr. Yates for Unrestricted 
Suffrage— Davis's Amendment to Cuvier — The "Propitious Hour" — 
The Mayor's Remonstrance — Mr. Willey's Amendment — Me. Cowan's 
Amemdment for Female Suffrage — Attempt to out-radical the Rad- 
ICALS Opinions for and against Female Suffrage — Reading and Writ- 
ing as a Qualification— Passage of the Bill— Objections of the Presi- 
ded Two Senators on the Opinions of the People — The Suffrage 

Bill becomes a Law. 



CHAPTER XXII. — The Military Reconstruction Act. 

(Page 502-551.) 

Proposition by Mr. Stevens — "Piratical Governments" not to be recog- 

NIZED The Military Feature introduced — Me. Schofield's Dog — The 

Only Hope of Mr. Hise— Conversation concerning the Reconstruction 
Committee— Censure of a Member — A Military Bill Reported — War 
Predicted — The "Blaine Amendment" — Bill passes the House — In the 
Senate — Proposition to Amend — Me. McDougall desires Liberty of 
Speech— Mr. Doolittle pleads for the Life of the Republic— Mr. 
Sherman's Amendment— Passage in the Senate— Discussion and Non- 
concurrence in the House— The Senate unyielding — Qualified Con- 
currence of the House— The Veto — "The Funeral of the Nation" — 
The Act — Supplementary Legislation. 



CONTENTS. ix 

CHAPTER XXIII.— Other Important Acts. 

(Page 552-560.) 

Equalizing Bounties — The Army — The Department of Education — South- 
ern Homesteads — The Bankrupt Law — The Tariff — Reduction of Taxes 
— Contracting the Currency — Issue of Three Per Cents. — Nebraska 
and Colorado — Tenure of Office. 



CHAPTER XXIV.— TnE President and Congress. 

(Page 561-567.) 

The President's treatment of the South — First Annual Message — Mr. 
Sumner's Criticism — The President triumphant — He damages his Cause 
— Humor of Mr. Stevens — Vetoes overridden — The Question submitted 
to the People — Their Verdict — Summary of Vetoes — Impeachment — 
Charges by Mr. Ashley — Report of the Committee. 



CHAPTER XXV.— Personal. 

(Page 568-576.) 

Contested Seats — Mr. Stockton votes for Himself — New Jersey's loss 
of two Senators — Losses of Vermont — Suicide of James H. Lane — 
Death in the House — General Soott — Lincoln's Eulogy and Statue — 
Mr. Sumner on Fine Arts in the Capitol — Censure of Mr. Chanler — 
Petition for the expulsion of Garret Davis — Grinnell assaulted by 
Rousseau — The Action of the House — Leader of the House. 



Biographical Sketches 577 



LIST OF PORTRAITS. 



PAGE 

1. — Hon. Schuyler Colfax, .... Frontispiece. 

2. — Hon. Thaddecs Stevens, 29 

3. — Hon. William D. Kellet, 59 

4. — Hon. Sidney Clarke, 89 

5. — Hon. Thomas A. Hendricks, 109 

6.— Hon. Henry Wilson, 135 

7. — Hon. Samuel C. Pomeeoy, 171 

8. — Hon. Reverdy Johnson, 203 

9. — Hon. James F. Wilson, 239 

10. — Hon. Willlvm M. Stewart, 275 

11. — Hon. Ebon C. Ingersoll, 307 

12. — Hon. Eobert C. Schence, 353 

13. — Hon. Richard Yates, 399 

14. — Hon. Edwin D. Morgan, 453 

15. — Hon. William B. Stokes, ...... 481 

16. — Hon. George H. Williams, 517 

17. — Hon. John Conness, ....... 541 

18. — Hon. James M. Ashley, 567 



INTRODUCTORY. 



By HON. SCHUYLER COLFAX, 

SPEAKER OF THE HOUSE OF REPRESENTATIVES. 

THE CONGRESS that has just passed away has written a 
record that will be long remembered by the poor and friend- 
less, whom it did not forget. Misrepresented or misunderstood by 
those who denounced it as enemies, harshly and unjustly criti- 
cised by some who should have been its friends, it proved itself 
more faithful to human progress and liberty than any of its prede- 
cessors. The outraged and oppressed found in these congressional 
halls champions and friends. Its key-note of policy was protection 
to the down-trodden. It quailed not before the mightiest, and 
neglected not the obscurest. It lifted the slave, whom the nation 
had freed, to the full stature of manhood. It placed on our 
statute-book the Civil Rights Bill as our nation's magna charta, 
grander than all the enactments that honor the American code; 
and in all the region whose civil governments had been destroyed 
by a vanquished rebellion, it declared as a guarantee of defense 
to the weakest that the freeman's hand should wield the free- 
man's ballot; and that none but loyal men should govern a land 
which loyal sacrifices had saved. Taught by inspiration that new 
wine could not be safely put in old bottles, it proclaimed that 
there could be no safe or loyal reconstruction on a foundation of 
unrepentant treason and disloyalty. 

The first session of the Thirty-ninth Congress proposed, as their 
plan of Reconstruction, a Constitutional Amendment. It was a 



1% INTRODUCTORY. 

bond of public justice and public safety combined, to be embodied 
in our national Constitution, to show to our posterity that patriot- 
ism is a virtue and, rebellion is a crime. These terms were 
more magnanimous than were ever offered in any country under 
like circumstances. They were kind, they were forbearing, they 
were less than we had a right to demand ; but in our anxiety, in 
,our desire to close up this question, we made the proposition. 
How was it received ? They trampled upon it, they spat upon 
it, they repudiated it, and said they would have nothing to do 
with it. They were determined to have more power after the 
rebellion than they had before. 

When this proposition was repudiated, we came together again, 
at the second session of the same Congress, to devise some other 
plan of reconstruction in place of the proffer that had been spurned. 
We put the basis of our reconstruction, first, upon every loyal man 
in the South, and then we gave the ballot also to every man who 
had only been a traitor. The persons we excluded, for the present, 
from suffrage in the South, were not the thousands who struggled 
in the rebel army, not the millions who had given their adhesion 
to it, but only those men who had sworn allegiance to the Con- 
stitution and then added to treason the crime of perjury. 

Though we demand no indemnity for the past, no banishment, 
no confiscations, no penalties for the offended law, there is one 
thing we do demand, there is one thing we have the power to 
demand, and that is security for the future, and that we intend 
to have, not only in legislation, but imbedded in the imperishable 
bulwarks of our national Constitution, against which the waves 
of secession may dash in future but in vain. We intend to have 
those States reconstructed on such enduring corner-stones that 
posterity shall realize that our fallen heroes have not died in 
vain. 



THE • THIRTY-NINTH CONGRESS. 



CHAPTER I. 

OPENING SCENES. 



Momentous Events of the Vacation— Opening of the Senate— Mr. 
Wade— Mr. Sumner— Mr. Wilson— Mr. Harris— Edward McPherson— 
As Clerk of the preceding Congress, he calls the House to order- 
Interruption of Roll-call by Mr. Maynard— Remarks by Mr. Brooks— 
His Colloquy with Mr. Stevens— Mr. Colfax elected' Speaker— His 
Inaugural Address— The Test Oath. 

THE Thirty-ninth Congress of the United States, convened 
in the Capitol at Washington on the fourth of December, 
1865. Since the adjournment of the Thirty-eighth Con- 
gress, events of the greatest moment had transpired— events 
which invested its successor with responsibilities unparalleled 
in the history of any preceding legislative body. 

Abraham Lincoln, sixteenth President of the United States, 
had been slain by the hand of the assassin. The crime had 
filled the land with horror. The loss of its illustrious victim 
had veiled the nation in unaffected grief. 

By this great national calamity, Andrew Johnson, who on 
the fourth of March preceding had taken his seat simply to 
preside over the deliberations of the Senate, became President 
of the United States. 

Meanwhile the civil war, which had been waged with such 
terrible violence and bloodshed for four years preceding, came 
to a sudden termination. The rebel armies, under Generals 
Lee and Johnston, had surrendered to the victorious soldiers 

(13) 



14 THE THIRTY-NINTH CONGRESS. 

of the United States, who in their generosity had granted to 
the vanquished terms so niild and easy as to excite universal 
surprise. 

Jefferson Davis, Alexander H. Stephens, and some other 
leaders in the rebellion, had been captured and held for a time 
as State prisoners ; but, at length, all save the " President of the 
Confederate States " were released on parole, and finally par- 
doned by the President. 

The President had issued a proclamation granting amnesty 
and pardon to "all who directly or indirectly participated in 
the rebellion, with restoration of all rights of property, except 
as to slaves," on condition of their subscribing to a prescribed 
oath. By the provisions of this proclamation, fourteen classes 
of persons were excepted from the benefits of the amnesty 
offered therein, and yet " any person belonging to the excepted 
classes" was encouraged to make special application to the 
President for pardon, to whom clemency, it was declared, would 
" be liberally extended." In compliance with this invitation, 
multitudes had obtained certificates of pardon from the Presi- 
dent, some of whom were at once elected by the Southern people, 
to represent them, as Senators and Representatives, in the Thirty- 
ninth Congress. 

The President had further carried on the work of reconstruc- 
tion by appointing Provisional Governors for many of the States 
lately in rebellion. He had recognized and entered into com- 
munication with the Legislatures of these States, prescribing 
certain terms on which they might secure representation in 
Congress, and recognition of " all their rights under the Consti- 
tution." 

By these and many other events which had transpired since the 
expiration of the preceding Congress, the legislation pertaining 
to reconstruction had become a work of vast complexity, involv- 
ing principles more profound, and questions more difficult, than 
ever before presented for the consideration and solution of men 
assembled in a legislative capacity. 

At twelve o'clock on the day designated in the Constitution 
for the meeting of Congress, the Senate assembled, and was called 
to order by Hon. Lafayette S. Foster, President pro tempore. 
Senators from twenty-five States were in their seats, and answered 
to their names. Rev. E. H. Gray, Chaplain of the Senate, in- 



OPENING SCENES. 15 

voked the blessing of Almighty God upon Congress, and prayed 
" that all their deliberations and enactments might be such as to 
secure the Divine approval, and insure the unanimous acquies- 
cence of the people, and command the respect of the nations of 
the earth." 

Soon after the preliminary formalities of opening the Senate 
had transpired, Benjamin F. Wade, Senator from Ohio, inaugu- 
rated the labors of the Thirty-ninth Congress, and significantly 
foreshadowed one of its most memorable acts by introducing " a 
bill to regulate the elective franchise in the District of Columbia." 

The Senate signified its willingness to enter at once upon active 
duty by giving unanimous consent to Mr. Sumner, Senator from 
Massachusetts, to introduce a number of important bills. The 
measures thus brought before the Senate were clearly indicative 
of the line of policy which Congress would pursue. The bills 
introduced were designed " to carry out the principles of a re- 
publican form of government in the District of Columbia ;" " to 
present an oath to maintain a republican form of government in 
the rebel States;" "to enforce the amendment to the Constitution 
abolishing slavery;" "to enforce the guarantee of a republican 
form of government in certain States where governments have 
been usurped or overthrown." 

Senator Wilson, of Massachusetts, was not behind his distin- 
guished colleague in his readiness to enter upon the most laborious 
legislation of the session. He introduced "a bill to maintain the 
freedom of the inhabitants in the States declared in insurrection 
by the proclamation of the President on the first of July, 1862." 

Senator Harris, of New York, long known as one of the ablest 
jurists of his State, and recently an eminent member of the Sen- 
ate's Judiciary Committee, directed attention to his favorite field 
of legislative labor by introducing " a bill to reorganize the 
Judiciary of the United States." 

While the Senate was thus actively entering upon the labors 
of the session, a somewhat different scene was transpiring in the 
other end of the Capitol. 

Long before the hour for the assembling of Congress, the halls, 
the galleries, and corridors of the House of Representatives were 
thronged with such crowds as had never before been seen at the 
opening of a session. The absorbing interest felt throughout the 
entire country in the great questions to be decided by Congress 



16 THE THIRTY-NINTH CONGRESS. 

had drawn great numbers to the Capitol from every quarter of 
the Union. Eligible positions, usually held in reserve for certain 
privileged or official persons, and rarely occupied by a spectator, 
were now filled to their utmost capacity. The Diplomatic Gal- 
lery was occupied by many unskilled in the mysteries of diplo- 
macy ; the Reporters' Gallery held many listeners and lookers 
on who had no connection with newspapers, save as readers. 
The "floor" was held not only by the "members," who made 
the hall vocal with their greetings and congratulations, but by a 
great crowd of pages, office-seekers, office-holders, and unambitious 
citizens, who thronged over the new carpet and among the desks. 

The hour having arrived for the assembling of Congress, 
Edward McPherson, Clerk of the last House of Representatives, 
brought down the gavel on the Speaker's desk, and called the 
House to order. The members found their seats, and the crowd 
surged back up the aisles, and stood in a compact mass in the 
rear of the last row of desks. 

Edward McPherson, who at that moment occupied the most 
prominent and responsible place in the nation, had come to his 
position through a series of steps, which afforded the country an 
opportunity of knowing his material and capacity. A graduate 
of Pennsylvania College in 1848, editor, author, twice a Con- 
gressman, and Clerk of the House of Representatives in the 
Thirty-eighth Congress, he had given evidence that he was 
reliable. Having shown himself a thoroughly conscientious man 
in the performance of all his public duties, the great interests 
of the nation were safe in his hands. 

The country had been greatly concerned to know how the 
Clerk would make up the Roll of the House, and whether the 
names of members elect from the late rebellious States would be 
called at the opening of the session. If this should be done, 
the first step would be gained by the Representatives of those 
States toward holding seats in Congress to which the majority 
at the North considered them not entitled. It had even been 
intimated that the color of constitutionality which they would 
gain from recognition by the Clerk would be used to justify an 
assertion of their claims by force. What the Clerk would do, as 
master of the rolls and presiding officer of the House, was not 
long in doubt. 

The Clerk proceeded to call the roll of Representatives elect, 



OPENING SCENES. 17 

while the subordinates at the desk took note of the responses. 
He called the names of Congressmen from the States of Maine, 
New Hampshire, Vermont, Massachusetts, and so forth, in a 
certain order which had been customary time immemorial in 
naming the States. In this order Tennessee had place after 
Kentucky and before Indiana. "When the name of the last 
Representative from Kentucky had been called, the decisive 
moment arrived. The delegation from Tennessee were on the 
floor, ready to answer to their names. The Clerk passed over 
Tennessee and went direct to Indiana. As soon as the first 
member from Indiana had responded, there arose a tall, black- 
haired, dark-faced figure, that every body recognized as Horace 
Maynard, of Tennessee. He shook his certificate of election at 
the Clerk, and began to speak, but the gavel came down with a 
sharp rap, and a firm, decided voice was heard from the desk, 
"The Clerk declines to have any interruption during the call 
of the roll." The roll-call then proceeded without further inter- 
ference to the end. "When, at last, the Clerk had finished his 
list of Representatives and Territorial Delegates, Mr. Maynard 
once more arose. "The Clerk can not be interrupted while 
ascertaining whether a quorum is present," says the presiding 
officer. The count of the assistants having been completed, the 
Clerk announced, " One hundred and seventy-six members hav- 
ing answered to their names, a quorum is present." Mr. Morrill 
immediately moved that the House proceed to the election of 
Speaker. "Before that motion is put," said Mr. Maynard, 
again arising. The Clerk was ready for the emergency, and 
before Mr. Maynard could complete his sentence, he uttered the 
imperative and conclusive words, " The Clerk can not recognize 
as entitled to the floor any gentleman whose name is not on this 
roll." A buzz of approbation greeted the discreet ruling of the 
Clerk. The difficult point was passed, and the whole subject of 
the admission of Southern Representatives was handed over 
intact, to be deliberately considered after the House should be 
fully organized for business. 

Mr. Morrill, in moving to proceed to the election of a Speaker, 
had forgotten or neglected to demand the previous question, and 
thus cut off debate. Mr. James Brooks, most plausible in address, 
and most ready in talk on the side of the minority, saw the point 
left unguarded by his opponents, and resolved to enter. Born in 
2 



18 TEE TEIETT-JVIJVTE COJYGBESS. 

Maine, now a citizen of New York, and editor of the " Express/' 
Mr. Brooks was in Congress for the fourth time a champion of 
what he deemed the rights of the South, and not in accordance 
with the prevailing sentiments in his native and adopted States. 

Mr. Brooks obtained the floor, and desired to amend the 
motion. He thought the roll should be completed before pro- 
ceeding to the election of Speaker. " I trust," said he, " that we 
shall not proceed to any revolutionary, any step like that, without 
at least hearing from the honorable gentleman from Tennessee. 
If Tennessee is not in the Union, by what right does the Presi- 
dent of the United States usurp his place in the White House 
when an alien and a foreigner, and not from , a State in the 
Union?" 

At this stage, a man of mark — five times a Representative in 
Congress, but now twelve years away from the capital and a new 
member — John Wentworth, of Chicago — elevated his tall and 
massive form, and with a stentorian voice called Mr. Brooks to 
order. The Clerk having fairly decided that gentleman entitled 
to the floor on the question of proceeding to the election of a 
Speaker, Mr. Wentworth sat down, and Mr. Brooks in resuming 
his remarks improved his chance to administer rebuke in a man- 
ner which provoked some mirth. ^When the honorable gentle- 
man from Illinois is better acquainted with me in this House," 
said Mr. Brooks, " he will learn that I always proceed in order, 
and never deviate from the rules." Mr. Brooks then returned to 
his championship of Mr. Maynard : " If he is not a loyal man, 
and is not from a State in this Union, what man, then, is loyal ? 
In the darkest and most doubtful period of the war, when an ex- 
ile from his own State, I heard his eloquent voice on the banks 
of the St. Lawrence arousing the people of my own State to dis- 
charge their duties to the country." 

Mr. Brooks joined Virginia with Tennessee, and asked the 
Clerk to give his reasons for excluding the names of Representa- 
tives from these States from the roll. The Clerk replied that he 
had acted in accordance with his views of duty, and was willing to 
let the record stand ; if it was the desire of the House to have his 
reasons, he would give them. 

" It is not necessary," said Thaddeus Stevens ; " we know all." 

" I know," replied Mr. Brooks, "that it is known to all in one 
quarter, but that it is not known to many in other quarters in 



OPENING SCENES. 19 

this House, why this exclusion has been made. I should know 
but little, if I had not the record before me of the resolution 
adopted by the Republican majority of this House, that Tennes- 
see, Louisiana, and Virginia were to be excluded, and excluded 
without debate. Why without debate? Are gentlemen afraid to 
face debate ? Are their reasons of such a character that they dare 
not present them to the country, and have to resort to the extra- 
ordinary step of sideway legislation, in a private caucus, to enact 
a joint resolution to be forced upon this House without debate, 
confirming that there are no reasons whatever to support this 
position except their absolute power, and authority, and control 
over this House? If the gentleman from Pennsylvania would 
but inform me at what period he intends to press this resolution, 
I would be happy to be informed." 

" I propose to present it at the proper time," was the response 
of Mr. Stevens, provoking laughter and applause. 

Mr. Brooks replied: "Talleyrand said that language was given 
to man to conceal ideas, and we all know the gentleman's ingenu- 
ity in the use of language. The proper time ! When will that 
be ?" Mr. Brooks then proceeded at some length to answer this 
"question. He supposed the proper time would be as soon as the 
House was organized, and before the President's message could 
be heard and considered, that the action of the House might 
silence the Executive, and nullify the exposition which he might 
make, and become a quasi condemnation of the action of the 
President of the United States. 

Mr. Brooks was at length ready to close, and -sought to yield 
the floor to a Democratic member. The Republicans, however, 
were ready to meet the emergency, and objected to the floor being 
yielded in such a way as would cause delay without furthering 
the business of organizing the House. Points of order were$ 
raised, and efforts made to entangle the Clerk, but in vain. His 
rulings ^ere prompt, decisive, and effectual. The moment a Re- 
publican fairly held the floor, the previous question was moved, 
the initial contest was over, and the House proceeded to elect a 
Speaker. 

A stoop-shouldered, studious-looking gentleman, now for the 
sixth successive term a member of Congress — Justin S. Morrill, 
of Vermont — arose and nominated Schuyler Colfax, of Indiana 
On the other side of the house, a gentleman from New York 



20 THE THIRTY-NINTH CONGRESS. 

portly in his person, now entering on his second Congressional 
term — Charles H. Winfield — nominated James Brooks, of New 
York. Four members took their seats behind the Clerk to act 
as tellers. The responses were at length all given, and the num- 
bers noted. Mr. Morrill, one of the tellers, announced the re- 
sult — "Mr. Colfax, one hundred and thirty-nine; Mr. Brooks, 
thirty-six." The Clerk formally announced the result, and 
stepped aside ; his work as presiding officer of the Thirty-ninth 
Congress was at an end. 

In the place thus made vacant appeared the man but a moment 
before elected to the position by the largest political majority 
ever given to a Speaker of the House. A well-proportioned 
figure of medium size, a pleasing countenance often radiant with 
smiles, a style of movement quick and restless, yet calm and self- 
possessed, were characteristic of him upon whom aU eyes were 
turned. In the past a printer and editor in Indiana, now in 
Congress for the sixth term, and elected Speaker the second time, 
Schuyler Colfax stood to take the oath of office, and enter 
upon the discharge of most difficult and responsible duties. He 
said : 

" Gentlemen of the House of Representatives : The reassem- 
bling of Congress, marking as it does the procession of our na- 
tional history, is always regarded with interest by the people for 
whom it is to legislate. But it is not unsafe to say that millions 
more than ever before, North, South, East, and West, are looking 
to the Congress which opens its session to-day with an earnest- 
ness and solicitude unequaled on similar occasions in the past. 
The Thirty-eighth Congress closed its constitutional existence 
with the storm-cloud of war still lowering over us, and after nine 
months' absence, Congress resumes its legislative authority in these 
* council halls, rejoicing that from shore to shore in our land there 
is peace. 

" Its duties are as obvious as the sun's pathway in the heavens. 
Representing in its two branches the States and the people, its 
first and highest obligation is to guarantee to every State a repub- 
lican form of government. The rebellion having overthrown 
constitutional State governments in many States, it is yours to 
mature and enact legislation which, with the concurrence of the 
Executive, shall establish them anew on such a basis of enduring 
justice as will guarantee all necessary safeguards to the people, 



OPENING SCENES. 21 

and afford what our Magna Charta, the Declaration of Indepen- 
dence, proclaims is the chief object of government — protection to 
all men in their inalienable rights. The world should witness, in 
this great work, the most inflexible fidelity, the most earnest de- 
votion to the principles of liberty and humanity, the truest patri- 
otism and the wisest statesmanship. 

" Heroic men, by hundreds of thousands, have died that the 
Republic might live. The emblems of mourning have darkened 
White House and cabin alike ; but the fires of civil war have 
melted every fetter in the land, and proved the funeral pyre of 
slavery. It is for you, Representatives, to do your work as faith- 
fully and as well as did the fearless saviors of the Union in their 
more dangerous arena of duty. Then we may hope to see the 
vacant and once abandoned seats around us gradually filling up, 
until this hall shall contain Representatives from every State and 
district; their hearts devoted to the Union for which they are to 
legislate, jealous of its honor, proud of its glory, watchful of its 
rights, and hostile to its enemies. And the stars on our banner, 
that paled when the States they represented arrayed themselves 
in arms against the nation, will shine with a more brilliant light 
of loyalty than ever before." 

Mr. Colfax having finished his address, took the following 
oath, which stood as the most serious obstacle in the way of many 
elected to Congress from the Southern States : 

" I do solemnly swear that I have never voluntarily borne arms against 
the United States since I have been a citizen thereof; that I have volunta- 
rily given no aid, countenance, counsel, or encouragement to persons engaged 
in armed hostility thereto ; that I have neither sought nor accepted nor at- 
tempted to exercise the functions of any office whatever, under any authority 
or pretended authority in hostility to the United States; that I have not 
yielded a voluntary support to any pretended government, authority, power, 
or constitution within the United States, hostile or inimical thereto. And I 
do further swear that, to the best of my knowledge and ability, I will support 
and defend the Constitution of the United States against all enemies, foreign 
and domestic; that I will bear true faith and allegiance to the same; that I 
take this obligation freely, without any mental reservation or purpose of 
evasion ; and that I will well and faithfully discharge the duties of the office 
on which I am about to enter. So help me God ! " 

The subordinate officers were then elected by resolution, and 
the House of Representatives being organized, was ready to enter 
upon its work. 



THE THIRTY-NINTH CONGRESS. 



CHAPTER II. 

LOCATIONS OF THE MEMBERS AND CAST OF THE COMMITTEES. 

Importance of surroundings — Members sometimes referred to by their 
seats — Senator Andrew Johnson — Seating of the Senators — Drawing 
in the House — The Senate-chamber as seen from the Gallery — Dis- 
tinguished Senators — The House of Representatives — Some prominent 
characters — importance of committees — difficulty in their appoint- 
MENT — Important Senate Committees — Committees of the House. 

THE localities and surroundings of men have an influence on 
their actions and opinions. A matter which, to the casual 
observer, seems so unimportant as the selection and arrange- 
ment of the seats of Senators and Representatives, has its influence 
upon the legislation of the country. Ever since parties have had 
an existence, it has been considered of vital moment that those 
of one political faith in a deliberative body should occupy, as 
nearly as possible, the same locality. 

It is sometimes of service to a reader, in attempting to under- 
stand the reported proceedings of Congress, to know the localities 
of the members. Each seat has a sort of history of its own, and 
becomes in some way identified with its occupant. Members are 
frequently alluded to in connection with the seats they occupy. 
Sometimes it happens that, years after a man has gone from 
Congress, it is convenient and suggestive to refer to him by his 
old place in the chamber. As an illustration, Mr. Trumbull, 
in his speech on the veto of the Civil Rights Bill, desiring to 
quote Andrew Johnson, Senator, against Andrew Johnson, Presi- 
dent, referred to " 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)." 

A necessary and important part of the adjustment of the 



LOCATIONS OF THE MEMBERS. 23 

machinery, at the opening of each Congress, is the selection of 
Beats. As the Senators serve for six years, and many of them 
have been reelected more than once, there are comparatively few 
changes made at the opening of any Congress. The old members 
generally choose to retain their accustomed seats, and the small 
number that come in as new Senators choose among the vacant 
seats, as convenience or caprice may dictate. 

In the House of Representatives the formality of drawing for 
seats is necessary. That this may be conveniently and fairly 
done, at the appointed time all the members retire to the ante- 
chambers, leaving the seats all unoccupied. The Clerk draws 
at random from a receptacle containing the names of all the 
members. As the members are called, one by one, they go 
in and occupy such seats as they may choose. The unlucky 
member whose name last turns up has little room for choice, 
and musl be content to spend his Congressional days far from 
ih'' Speaker, on the remote circumference, or to the right or 
left extreme. 

There are in the Senate-chamber seventy scats, in three tiers 
of semi-circular arrangement. If all the old Southern States 
were represented by Senators on the floor, the scats would be 
more than full. As it was in the Thirty-ninth Congress, there 
were a number of vacant desks, all of them situated to the right 
and left of the presiding officer. 

In a division of political parties nearly equal, the main aisle 
from the southern entrance would be the separating line. As it 
was, the Republican Senators occupied not only the eastern half 
of the chamber, but many of them were seated on the other side, 
the comparatively few Democratic Senators sitting still further to 
the west. 

Seated in the gallery, the spectator has a favorable position to 
survey the grand historic scene which passes below. His eye is 
naturally first attracted to the chair which is constitutionally the 
seat of the second dignitary in the land— the Vice-President of 
the United States. That office, however, has no incumbent, since 
}ie who took oath a few months before to perform its duties was 
called to occupy a higher place, made vacant by a most atrocious 
crime. The event, however, cost the Senate little loss of dignity, 
since the chair is filled by a President pro tempore of great ability 
and excellence— Lafayette S. Foster, Senator from Connecticut. 



24 THE THIRTY-NINTH CONGRESS. 

The eye of the spectator naturally seeks out Charles Sumner, 
who sits away on the outer tier of seats, toward the south-east 
corner of the chamber; and near him, on the left, are seen the 
late Governors, now Senators, Morgan and Yates, of New York 
and Illinois. Immediately in front of them, on the middle tier 
of seats, is an assemblage of old and distinguished Senators — 
Trumbull, Wilson, Wade, and Fessenden. . To the right of the 
"Vice-President's chair, and in the row of seats neares this desk, 
sits the venerable and learned lawyer, Reverdy Johnson, of Mary- 
land. Just in his rear sits the youthful Sprague, of Rhode Island, 
to whose right is seen Sherman, of Ohio. To the rear of these 
Senators, in the outer segment of seats, sits, or perhaps stands, 
Garrett Davis, of Kentucky, the most garrulous of old men, con- 
tinually out of temper with the majority, jet all the time marked 
by what he calls his "usual courtesy." To the left of Davis, 
beyond Nesmith, of Oregon, and the other and more silent Sen- 
ator from Kentucky, sits Saulsbury, Of Delaware, unless he 
should be traversing tlie carpeted space in the rear of his scat, 
like a sentinel of the Senate. 

Far different is the sight presented to the spectator who looks 
down from the galleries of the House of Representatives. The 
immense area below is supplied with two hundred and fifty-three 
seats, with desks arranged in semi-circular rows, having a point 
in front of the Speaker's desk as a focus. On the right of the 
spectator, as he looks from the gallery in front of the Speaker, 
is the Republican side of the House. But this prosperous organ- 
ization has grown so rapidly since its birth, ten years ago, that 
it has overstepped all old and traditional party limitations. One- 
half of the House is not sufficient to afford its representatives 
adequate accommodations. Republican members have passed 
over the main aisle, and occupy half of the Democratic side, 
having pressed the thin ranks of their opponents to the extreme 
left. 

As the spectator scans the House, his eye will rest on Thad- 
deus Stevens, whose brown wig and Roman cast of countenance 
mark the veteran ,of the House. He sits in the right place for 
a leader of the Republicans, about half-way back from the Speak- 
er's desk, on the diagonal line which divides the western side of 
the House, where he can readily catch the Speaker's eye, and be 
easily heard by all his friends. Immediately in his rear is his 



LOCATIONS OF THE MEMBERS. 25 

successor in the chairmanship of the Committee of Ways and 
Means— Mr. Morrill, of Vermont. To the right, across the aisle, 
is Elihu B. Washburn, of Illinois, the oldest member in contin- 
uous service in the House; and to his rear is Henry J. Ray- 
mond, of the Times. To the right, and partly in the rear of Mr. 
Stevens, are a number of noteworthy men: among them are 
General Schenck, General Garfield, and "Long John" Went- 
worth, of Chicago. Far around to the right, and much nearer 
the Speaker's desk, is seen a man distinguished in civil and mili- 
tary history, who once occupied the Speaker's chair — General 
Banks, of Massachusetts. In physical contrast with him, sits— 
in the adjoining desk, a tall, dark, bearded Californian— General 
John Bidwell, a new member of the House. On the opposite 
side of the House, among the Democrats, is the seat of John A. 
Bingham, who now returns to Congress after an absence of one 
term, whom his friends describe as the " best-natured and crossest- 
looking man in the House." James Brooks, most plausible and 
best-natured of Democrats, notwithstanding the inroads of the 
Republicans, sturdily keeps his seat near the main aisle. His 
seat, however, he is destined to lose before many months in favor 
of a contestant, who will occupy the other side of the chamber. 

In looking down upon so large an assemblage, a large part of 
which is so distant, the eye of the spectator will weary in the at- 
tempt to discover and recognize individuals, however familiar, 
amidst the busy throng. 

In preparing for the work of legislation, a matter of more im- 
portance than the arrangement of the seats is the cast of the 
committees. Most of the labor of legislative bodies is clone by 
committees. As it is impossible for any one Congressman to 
give that minute and particular attention to all the numerous 
interests demanding legislation, essential to a wise determination 
as to what bills should be presented, and how they should be 
drawn in every case, the various subjects are parceled out among 
those whose opportunities, interests, or inclinations have led them 
to give particular attention to the matters committed to their 
charge. The perfection of legislation on particular subjects de- 
pends not more on the wisdom of the entire body of legisla- 
tors than on the good sense of the committees that deliberate upon 
them. Much of the efficiency and success of the legislative acts 
of Congress will depend upon the structure of the committees 



26 THE THIRTY-NINTH CONGRESS. 

that do the laborious work of preparing business for the body. 
Tracing the stream of legislative enactment still nearer to its 
source, it will be found that the work of a committee takes a de- 
cided tinge from the character of its chairman. 

It consequently becomes a matter of great interest to the coun- 
try, at the opening of each Congress, to know who constitute the 
committees. One of the most arduous and responsible duties of 
the Speaker of the House of Representatives is the selection of 
committees and filling their chairmanships. Fitness and special 
adaptation are supposed to constitute the rule by which choice is 
made. Many elements, however, enter into the work which are 
not a part of this philosophy. It is impossible that the presiding 
officer should know unerringly who is absolutely the fittest man 
for any position, and if he possessed such superhuman knowledge 
he would still be trammeled by long-established rules of precedence 
and promotion. There is often a regular gradation by which men 
arrive at positions which is not in direct ratio to their fitness for 
their places. 

• Notwithstanding all the errors which were unavoidable elements 
in the work, committees were never better constituted than those 
of the Thirty-ninth Congress. 

The Senate" being comparatively small in numbers, and, more- 
over, by usage, doing most of the details of this business in cau- 
cus, the announcement of the committees in this body was made 
on Wednesday, the third day of the session. On the other hand, 
the size of the House, the large proportion of new and unknown 
members appearing every term, the number and magnitude of the 
committees, and the fact that the duty of appointment devolved 
upon the Speaker, combined to render the reading out of commit- 
teemen in the latter body impossible before the following Monday, 
one week after the assembling of Congress. 

Of the Senate Committee on Foreign Relations, Charles Sum- 
ner was appointed chairman. This is a very important committee, 
being; the direct channel of communication between the State De- 
partment and the Senate. It being the constitutional duty of the 
Senate to pass upon all treaties, and to decide upon qualifica- 
tions of all persons nominated by the Executive to represent the 
United States in foreign countries, the labors of this committee 
are arduous and responsible. The chairmanship of this committee 
was filled by a Senator of most eminent fitness and ability. His 



THE CAST OF THE COMMITTEES. 27 

literary culture, and attainments as a scholar, his general legal 
ability and familiarity with the laws of nations, his residence 
abroad for several years, and his long membership in the Senate, 
now of fourteen years' duration, all marked him as wisely chosen 
for his important position. 

On account of the immense National debt accumulated in the 
war, and the complication of the financial affairs of the nation, 
the Committee on Finance has an important bearing upon the 
interests of the country, unknown until recent years. AVilliam 
P. Fessenden was the Senator chosen chairman of this committee. 
His success in his private business, his appointment, in 1864, as 
the head of the Treasury Department, and his service in the 
Senate since 1853 as member of the Finance Committee, and since 
1859 as its chairman, all indicated the propriety of his continu- 
ance in this position. Second on the list of this committee stood 
Senator Sherman, of Ohio, who has been described as " au fait 
on National Banks, fond of figures, and in love with finances." 

The Committee on Commerce was constituted with Senator 
Chandler, of Michigan, as its chairman. Himself most success- 
ful in commercial life, in which he had attained distinction before 
coming to the Senate, and representing a State having a greater 
extent of coast and better facilities for commerce than any other 
inland community in the world, Senator Chandler was eminently 
suitable as head of the Committee on Commerce. His associates 
being selected from Maine, New York, Vermont, Wisconsin, 
Kansas, and Oregon, left unrepresented no important commercial 
interest in the nation. 

The Committee on Manufactures was headed by William 
Sprague, Senator from Rhode Island, a State having the largest 
capital invested, and most persons employed in manufactures, in 
proportion to population, of any in the Union. Senator Sprague 
himself having been educated in the counting-room of a manu- 
facturing establishment, and having control of one of the largest 
manufacturing interests in the country, was the appropriate per- 
son for such a position. 

The agricultural States of Ohio, Kansas, Maryland, Pennsyl- 
vania, and Kentucky furnished the members of the Committee 
on Agriculture, with Senator Sherman at its head. 

Of the Committee on the Judiciary, a Senator has given a 
description. In a speech delivered in the Senate, December 12, 
\ 



28 THE THIRTY-NINTH CONGRESS. 

1865, Mr. Doolittle, of Wisconsin, said: "From its very organi- 
zation the Senate designs to make that committee its constitu- 
tional adviser — not that its opinions are to be conclusive or con- 
troling on the vote of any member of this body, like the opinion 
of the bench of Judges in the House of Lords ; but its members 
are chosen in consideration of their high professional ability, their 
long experience, and well-known standing as jurists, in order that 
their report upon constitutional questions may be entitled to the 
highest consideration. And, sir, if you look into the organiza- 
tion of the Judiciary Committee appointed by the Senate at the 
present session, what is it? There is the Senator from Illinois, 
[Mr. Trumbull], for years Judge of the Supreme Court of that 
State before he entered this body, who, for ten years and more, 
has been a faithful, laborious, distinguished member of that com- 
mittee, and for the last four years its chairman. And there sits 
my honorable friend from New York [Mr. Harris], for twenty 
years before he came here known and distinguished among the 
able jurists and judges of that great State. And there is the 
honorable Senator from Vermont [Mr. Poland]* He has, it is 
true, just entered this body, but his reputation as a jurist pre- 
ceded his coming, and he comes here to fill the place in this 
chamber, and is put upon this Judiciary Committee to fill the 
place of him of whom I .will say, Avithout disparagement to any, 
that he was the ablest jurist of us all— the late distinguished 
Senator from Vermont [Mr. Collamer]. And there is the Sena- 
tor from New Hampshire [Mr. Clark], from the far East, and 
the Senator from Nevada [Mr. Stewart], from the Pacific coast, 
and the Senator from Indiana [Mr. Hendricks], from the central 
region, each of whom stands eminent in the profession in the State 
which he represents, and all of whom are recognized here among 
the ablest jurists of this body." 

Some of the great political questions destined to engage the 
attention of the Thirty-ninth Congress invested the Committee on 
the District of Columbia with a national interest, although its 
duties pertained chiefly to the local concerns of the immediate 
neighborhood of the capital. Its chairman, Mr. Morrill, of 
Maine, as well as its members, among whom were Wade, Sum- 
ner, and Yates, gave it character and ability, and aiforded assur- 
ance that the great questions involved would be calmly met and 
honestly answered. 







' 



THE CAST OF THE COMMITTEES. 39 

In the House of Representatives, the Committee of Ways and 
Means has ever been regarded of first importance, and its chair- 
man has been considered leader of the House. Its duties, though 
of a somewhat miscellaneous character, relate chiefly to devising 
the ways and means of raising revenue. The fact that the Con- 
stitution provides that "all bills for raising revenue shall origi- 
nate in the House of Representatives," gives the Committee of 
Ways and Means a sort of preeminence over all other commit- 
tees", whether of the Senate or the House. 

The work of the Committee of Ways and Means, as it had 
existed before the Thirty-ninth Congress, was, at the opening of 
this session, divided among three committees; one retaining the 
old name and still remaining the leading committee, a second on 
Appropriations, and a third on Banking and Owrrmcy. 

Of the new Committee of Ways and Means, Justin S. Morrill, 
of Vermont, was appointed chairman— a Representative of ten 
years' experience in the House, who had seen several years of 
service on the same committee. While his abilities and habits, 
as a student and a thinker, well adapted him for the work of 
conducting his committee by wise deliberation to useful measures, 
vet they were not characteristics fitting him with readiest tact 
and most resolute will to " handle the House." 

Thaddeus Stevens, the old chairman of the Committee of Ways 
and Means, was appointed the head of the new Committee on 
Appropriations. His vigilance and integrity admirably fitted 
him for this position, while his age made it desirable that he 
should be relieved of the arduous labors of the Committee of 
Ways and Means. Of this committee he had been chairman in 
the two preceding Congresses, and had filled a large space in 
the public eye as leader of the House. His age— over seventy 
years— gave him the respect of members the majority of whom 
"were born after he graduated at college— the more especially as 
these advanced years were not attended with any perceptible 
abatement of the intellectual vivacity or fire of youth. The 
evident honesty and patriotism with which he advanced over 
prostrate theories and policies toward the great ends at which he 
aimed, secured him multitudes of friends, while these same quali- 
ties contributed to make him many enemies. The timid became 
bold and the resolute were made stronger in seeing the bravery 
with which he maintained his principles. He had a habit of 



30 THE THIRTY-NINTH CONGRESS. 

going straight to the issue, and a rugged manner of presenting 
his opinions, coupled with a cool assurance, which, one of his 
unfriendly critics once declared, "sometimes rose almost to the 
sublime." He alone, of all the members of the Pennsylvania 
Convention, in 1836, refused to sign the new State Constitution, 
because it robbed the negro of his vote. It was a fitting reward 
that he, in 1866, should stand in the United States House of 
Representatives, at the head of a majority of more than one hun- 
dred, declaring that the oppressed race should enjoy rights so 
long denied. 

The Committee on Banking and Currency had as chairman 
Theodore M. Pomeroy, of New York, who had served four years 
in Congress. Perhaps its most important member was Samuel 
Hooper, a Boston merchant and financier, who, from the outset of 
his Congressional career, now entering upon the third term, had 
been on the Committee of Ways and Means, of which he still re- 
mained a member, the only Representative retaining connection 
with the old committee and holding a place in one of the new 
offshoots from it. 

Hiram Price, of Iowa, was appointed chairman of the Com- 
mittee on the Pacific Railroad. The Speaker of the House, in 
his recent visit to the Pacific coast, had been impressed with the 
importance of this work, and wisely chose as members of this 
committee Representatives from Pennsylvania, Minnesota, Massa- 
chusetts, New York, Missouri, Kansas, California, and Oregon. 

A committee of much importance to Congress and the coun- 
try — that of Commerce — had for its chairman Elihu B. Wash- 
burn, of Illinois, who had been in the previous Congress the 
oldest member in continuous service, and hence was styled 
" Father of the House." 

The Committee on Elections subsequently lost some of its im- 
portance in the public estimation by the creation of a special 
committee to consider subjects of reconstruction and the admis- 
sion of Southern members ; yet the interests confided to it de- 
manded ability, which it had in its chairman, Henry L. Dawes, 
of Massachusetts, as well as in the Representatives that consti- 
tuted its membership. 

The legislation relative to our vast unoccupied domain, having 
to pass through the Committee on Public Lands, renders this 
committee one of much importance. The honesty and ability of 



TEE CAST OF THE COMMITTEES. 31 

its chairman, George W. Julian, of Indiana, together with his 
long experience in Congress, gave to the recommendations of this 
committee great character and weight. 

Of the Committee on the Judiciary, James F. Wilson, of Iowa, 
was appointed for the second time as chairman. George S. Bout- 
well, of Massachusetts, and other Representatives of ability, 
were appointed as members of this committee. Since the duty 
devolved upon it of taking testimony in regard to the impeach- 
ment of the President, this committee attracted public attention 
to a degree never known before. 

The interests of manufactures were not likely to suffer in the 
hands of a committee in which the first place was held by James 
K. Moorhead, tanner's apprentice, and pioneer of cotton manufac- 
tures in Pennsylvania, and the second by Oakes Ames, a leading 
manufacturer of Massachusetts. 

Agriculture — the most gigantic material interest in America — 
was intrusted to a committee having John Bidwell, of Califor- 
nia, as its chairman, and members chosen from Iowa, Indiana, 
Vermont, Ohio, Kentucky, Michigan, Pennsylvania, and New 
York. 

The chairmanship of the Committee on Military Affairs was 
bestowed upon a major-general of volunteers from Ohio, Robert 

C. Schenck ; while membership on the committee was given to a 
Connecticut colonel, Henry C. Doming ; a New Hampshire briga- 
dier-general, Gilman Marston; a Kentucky major-general, Lov- 
ell H. Rousseau ; a New York Colonel, John H. Ketchum, and 
four civilians. 

Nathaniel P. Banks, Henry J. Raymond, and other men of 
much ability, were appointed on the Committee on Foreign 

Affairs. 

Special committees were appointed on the important subjects 
of Bankruptcy and the Freedmen. Of the committee on the 
former, Thomas A. Jenckes Avas appointed chairman. Thomas 

D. Eliot, of Massachusetts, was made chairman of the Commit- 
tee on the Freedmen. 

Many other committees were appointed whose labors were ar- 
duous and necessary to our legislation, yet, as they had to do 
with subjects of no great general interest, they need not be 
named. 

There was another committee, however, of great importance 



32 THE THIRTY-NINTH CONGRESS. 

whose members were not yet designated. The resolution by 
which it should be created, was yet to pass through the ordeal of 
discussion. The process by which this committee was created 
will be described in the following chapter. 



ON RECONSTRUCTION 33 



CHAPTER III. 

FORMATION OF THE JOINT COMMITTEE ON RECONSTRUCTION. 

Lack of Excitement — Cause — The Kesolution — Dilatory Motions — Yeas 
and Nays — Proposed Amendments in the Senate — Debate in the Sen- 
ate — Mr. Howard — Mr. Anthony — Mr. Doolittle — Mr. Fessenden — 
Mr. Saulsbury — Mr. Hendricks — Mr. Trumbull — Mr. Guthrie — Pas- 
sage of the Kesolution in the Senate — Yeas and Nays — Kemarks of 
Mr. Stevens on the Amendments of the Senate — Concurrence of the 
House — The Committee appointed. 

SI^CE it was known throughout the country that members- 
elect from Tennessee and other States recently in rebellion 
would appear at "Washington on the opening of the Thirty- 
ninth Congress, and demand recognition of their right to repre- 
sent their constituents, all eyes were turned to observe the action 
which would be taken on the subject. It was anticipated that 
the question would be sprung at once, and that a season of storm 
and excitement would ensue, unparalleled in the political history 
of the nation. Since the American people are exceedingly fond 
of excitements and sensations, the expectation of trouble in Con- 
gress drew immense numbers to its galleries on the first day of 
the session. Lovers of sensation were doomed to disappointment. 
Correspondents and reporters for the press, who were prepared to 
furnish for the newspapers descriptions of an opening of Congress 
''dangerously boisterous," were compelled to describe it as "ex- 
ceptionally quiet." ' 

The cause of this unexpected state of things was the faet that 
the majority had previously come to the wise conclusion that 
it would not be well to pass upon the admission of Southern 
members in open session and amid the confusion of organization. 
As there was so much difference of opinion concerning the status 
of the communities recently in rebellion, and such a variety of 
considerations must be regarded in reaching wise conclusions, it 
3 



34 THE THIRTY-NINTH CONGRESS. 

was deemed advisable that the whole subject should be calmly 
and deliberately investigated by a select number of able and 
patriotic men from both Houses of Congress. 

Accordingly, on the first day of the session, soon after the 
House was organized, Mr. Thaddeus Stevens offered the follow- 
ing important Resolution: 

" Resolved, by the Senate and House of Representatives in Congress as- 
sembled, that a joint committee of fifteen members shall be appointed, nine 
of whom shall be members of the House, and six members of the Senate, 
who shall inquire into the condition of the States which formed the so-called 
Confederate States of America, and report whether they or any of them are 
entitled to be represented in either House of Congress, with leave to report 
at any time by bill or otherwise; and until such report shall have been 
made, and finally acted upon by Congress, no member shall be received into 
either House from any of the said so-called Confederate States; and all 
papers relating to the representation of the said States shall be referred to 
the said committee without debate." 

To avoid the delay occasioned by a protracted debate, M$. Ste- 
vens called the previous question. The minority perceived the 
impossibility of preventing the final passage of the resolution, 
yet deemed it their duty to put it off as far as possible by their 
only available means — "dilatory motions." They first objected 
to the introduction of the resolution, under the rule that unani- 
mous consent must be given to permit a resolution to come before 
the House without notice given on a previous day. To meet this 
difficulty, Mr. Stevens moved to suspend the rules to enable him 
to introduce the resolution. On this motion the yeas and nays 
were demanded. To suspend the rules under such circumstances 
required a two-thirds' vote, which was given — one hundred and 
twenty-nine voting for, and thirty-five against the motion. The 
rules having been suspended, the resolution was regularly before 
the House. A motion was then made to lay the resolution on the 
table, and the yeas and nays demanded. Thirty-seven were in 
favor of the motion, and one hundred and thirty-three against 
it. Before a call for the previous question is available to cut off 
debate, it must, by the rules of the House, be seconded by one- 
fifth of the members present. This having been done, the vote 
was taken by yeas and nays on the concurrent resolution sub- 
mitted by Mr. Stevens. One hundred and thirty-three voted in 
favor of the resolution, and thirty-six against it, while thirteen 



ON RECOjXSTRUCT.IOjY. 35 

were reported as "not voting." As this vote was on an impor- 
tant measure, and is significant as marking with considerable 
accuracy the political complexion of the House of Representa- 
tives, it should be given in detail. 

The following are the names of those who voted " Yea :" 

Messrs. Alley, Allison, Ames, Anderson, Baker, Baldwin, Banks, Barker, 
Baxter, Beaman, Benjamin, Bidwell, Bingham, Blow, Boutwell, Brandagee, 
Bromwell, Broomall, Buckland, Bundy, Reader W. Clark, Sidney Clark, 
Cobb, Conkling, Cook, Cullom, Culver, Darling, Davis, Dawes, Defrees, De- 
lano, Deming, Dixon, Donnelly, Driggs, Dumont, Eckley, Eggleston, Eliot, 
Farnsworth, Ferry, Garfield, Grinnell, Griswold, Hale, Abner C. Harding, 
Hart, Hayes, Henderson, Higby, Hill, Holmes, Hooper, Hotchkiss, Asabel 
W. Hubbard, John H. Hubbard, Chester D. Hubbard, Demas Hubbard, 
James R. Hubbell, Hulburd, James Humphrey, Ingersoll, Jenckes, Julian, 
Kasson, Kelley, Kelso, Ketchum, Kuykendall, Laflin, Latham, George V. 
Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, Marvin, 
McClurg, Mclndoe, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, 
Morris, Moulton, Myers, Newell, O'Neill, Orthe, Paine, Patterson, Perham, 
Phelps, Pike, Pomeroy, Price, William H. Randall, Raymond, Alexander H. 
Rice, John H. Rice, Rollins, Sawyer, Schenck, Scofield, Shellabarger, Smith, 
Spaulding, Starr, Stevens, Stillwell, Thayer, John L. Thomas, Trowbridge, 
Upson, Van Aernam, Burt Van Horn, Robert Van Horn, Ward, Warner, 
Elihu B. Washburne, Welker, Wentworth, Whaley, Williams, James F. 
Wilson, Windom, and Woodbridge. 

The following members voted " Nay :" 

Messrs. Ancona, Bergen, Boyer, Brooks, Chanler, Dawson, Denison, 
Eldridge, Finck, Glossbrenner, Goodyear, Grider, Aaron Harding, Hogan, 
James M. Humphrey, Johnson, Kerr, LeBlond, McCullough, Niblack, 
Nicholson, Noell, Radford, Samuel J. Randall, Ritter, Rogers, Ross, Shank- 
lin, Sitgreaves, Strouse, Tabor, Taylor, Thornton, Trimble, Winfield, and 
Wright. 

The following are reported as " not voting :" 

Messrs. Delos R. Ashley, James M. Ashley, Blaine, Farquhar, Harris, 
Edwin N. Hubbell, Jones, Marshall, Plants, Rousseau, Sloan, Francis 
Thomas, Voorhees, and William B. Washburn. 

Thus the resolution passed the House. The immense size of 
this body required that, by stringent rule, debate should have 
limitation, and even sometimes be cut off altogether by the opera- 
tion of previous question. This arrangement enabled skillful and 
resolute leaders to carry through this measure within an hour's 
time, Avhereas, in the Senate, a body of less than one-third the 



36 THE THIRTY-NINTH CONGRESS. 

size, it passed after a delay of several days, and at the end of a 
discussion of considerable length. 

On the day following the passage of the resolution in the 
House of Representatives, it was read in the Senate. Mr, John- 
son, of Maryland, objecting to its being considered on the day of 
its reception, under a regulation of the Senate it was postponed. 

After the lapse of a week, on Tuesday, December 12, the 
resolution was taken up for consideration in the Senate. Mr. 
Anthony moved to amend the enacting clause so as to change it 
from a joint resolution to a concurrent resolution, since, under its 
original shape, \i would require the President's approval. 

This amendment having been made, Mr. Anthony moved to 
further amend the resolution by striking out all after the word 
"otherwise." The following are the words proposed to be 
stricken out: 

"And until such report shall have been made and finally acted on by 
Congress, no member shall be received into either house from any of the 
said so-called Confederate States; and all papers relating to the representa- 
tion of said States shall be referred to the said committee without debate." 

Mr. Howard, of Michigan, preferred the resolution as it came 
from the House of Representatives. " It contains within itself a 
pledge on the part of the two houses, that until the report of this 
important committee shall have been presented, we will not re- 
admit any of the rebel States, either by the recognition of their 
Senators or their Representatives. I think the country expects 
nothing less than this at our hands. I think that portion of the 
loyal people of the United States who have sacrificed so much 
of blood and treasure in the prosecution of the war, and who 
secured to us the signal victory which Ave have achieved over 
the rebellion, have a right to at least this assurance at our hands, 
that neither house of Congress will recognize as States any one 
of the rebel States until the event to which I have alluded. 

" Sir, what is the present position and status of the rebel States ? 
In my judgment they are simply conquered communities, subju- 
gated by the arms of the United States ; communities in which 
the right of self-government does not now exist. Why ? Because 
they have been for the last four years hostile, to the most surpris- 
ing unanimity hostile, to the authority of the United States, and 
have, during that period, been waging a bloody war against that 



ON BE CONSTRUCTION. 37 

authority. They are simply conquered communities, and we hold 
them, as we know well, as the world knows to-day, not by their 
own free will and consent as members of the Union, but solely by 
virtue of our military power, which is executed to that effect 
throughout the length and breadth of the rebel States. There is 
in those States no rightful authority, according to my view, at this 
time, but that of the United States ; and every political act, every 
governmental act exercised within their limits, must necessarily 
be exercised and performed under the sanction and by the will of 
the conqueror. 

" In short, sir, they are not to-day loyal States ; their population 
are not willing to-day, if we are rightly informed, to perform 
peaceably, quietly, and efficiently the duties which pertain to the 
population of a State in the Union and of the Union ; and for 
one I can not consent to recognize them, even indirectly, as en- 
titled to be represented in either house of Congress at this time. 
The time has not yet come, in my judgment, to do this. I think 
that, under present circumstances, it is due to the country that 
we should give them the assurance that we will not thus hastily 
readmit to seats in the legislative bodies here the representatives 
of constituencies who are still hostile to the authority of the 
United States. I think that such constituencies are not entitled 
to be represented here." 

Mr. Anthony, of Rhode Island, said : " The amendment was 
proposed from no opposition to what I understand to be the 
purpose of the words stricken out. That purpose I understand 
to be that both houses shall act in concert in any measures" 
which they may take for the reconstruction of the States lately 
in rebellion. I think that that object is eminently desirable, and 
not only that the two houses shall act in concert, but that Con- 
gress shall act in concert with the Executive; that all branches 
of the Government shall approach this great question in a spirit 
of comprehensive patriotism, with confidence in each other, with 
a conciliatory temper toward each other, and that each branch of 
the Government will be ready, if necessary, to concede something 
of their own views in order to meet the views of those who are 
equally charged with the responsibility of public affairs. 

"The words proposed to be stricken out refer to the joint 
committee of the two houses of Congress matters which the Con-*- 
stitution confides to each house separately. Each house is made, 



88 THE THIRTY-NINTH CONGRESS. 

by the Constitution, the judge of the elections, returns, and quali- 
fications of its own members. 

"There is one other reason why I move this amendment, and 
that is, that the resolution provides that papers shall be referred 
to this committee without debate. This is contrary to the prac- 
tice of the Senate. The House of Representatives has found it 
necessary, for the orderly transaction of its business-, to put limi- 
tations upon debate, hence the previous question and the hour 
rule ; but the Senate has always resisted every proposition of this 
kind, and submitted to any inconvenience rather than check free 
discussion. Senators around me, who were here in the minority, 
felt that the right of debate was a very precious one to them at 
that time, and, as it was not taken from them, they are not dis- 
posed to take it from the minority now. 

" The purpose of all that is stricken out can be effected by the 
separate action of the two houses, if they shall so elect. The 
House of Representatives, having passed this resolution by a great 
vote, will undoubtedly adopt, in a separate resolution, what is 
hefe stricken out ; and, except so far as relates to the restriction 
upon debate, I shall, if this amendment be adopted and the reso- 
lution passed, offer a resolution substantially declaring it to be 
the opinion of the Senate that, until this committee reports — 
presuming that it will report in a reasonable time — no action 
should be taken upon the representation of the States lately in 
rebellion." 

Mr. Doolittle, of Wisconsin, said : "All of these great ques- 
tions, concerning reconstruction, pacification, and restoration of 
civil government in the Southern States, representation in this 
body, or any thing which concerns of Federal relations with the 
several States, ought to be referred to the Committee on the Judi- 
ciary. Such has been the practice of this Government from the 
beginning. Great questions of constitutional law, questions con- 
cerning the relations of the Union to the States and the States to 
the Union, and above all, and without any exception, all ques- 
tions relating to representation in this body, to its membership, 
have always been referred to the Judiciary Committee. 

" There is nothing in the history of the Senate, there is nothing 
in the constitution of this committee, which would send these 
great constitutional questions for advisement and consideration 
to any other committee than the Committee on the Judiciary. 



ON RECONSTRUCTION. 39 

To place their consideration in the hands of a committee which 
is beyond the control of the Senate, is to distrust ourselves ; and 
to vote to send their consideration to any other committee, is 
equivalent to a vote of want of confidence in the Judiciary Com- 
mittee. 

" I object to this resolution, because, upon these great questions 
which are to go to the joint committee, the Senate does not stand 
upon an equality with the House. This resolution provides that, 
of the joint committee of fifteen, nine shall be appointed by the 
House of Representatives, six only by the Senate, giving to the 
House portion of the committee a majority of three. We all 
know that in joint committees the members vote, not as the 
representatives of the two houses, but per capita. The vote of a 
member of the committee from the House weighs precisely the 
same as the vote of a member of the committee from the Senate ; 
so that, to all intents and purposes, if we pass this concurrent 
resolution, which we can not repeal but by the concurrence of 
the other house, we place the consideration of these grave ques- 
tions in the hands of a committee which we can not control, and 
in which we have no equal voice. 

"Under the Constitution, upon all subjects of legislation but 
one, the two houses are equal and coordinate branches of Con- 
gress. That one relates to their representation in the bodies, to 
their membership, that which constitutes their existence, which 
is essential to their life and their independence. That is confided 
to each house, and to each house alone, to act for itself. It judges 
for itself upon the elections, returns, and qualifications of its 
members. It judges, it admits, it punishes, it expels. It can 
not share that responsibility with any other department Of the 
Government. It can no more share it with the other house than 
it can share it with the Supreme Court or with the President. 
It is a matter over which its jurisdiction is exclusive of every 
other jurisdiction. It is a matter in which its decisions, right 
or wrong, are absolute and without appeal. In my opinion the 
Senate of the United States can not give to a committee beyond 
its control this question of the representation in this body, with- 
out a loss of its self-respect, its dignity, its independence ; with- 
out an abandonment of its constitutional duty and a surrender 
of its constitutional powers. 

"There is another provision in this resolution, as it stands, 



40 THE THIRTY-NINTH CONGRESS. 

that we shall refer every paper to the committee without debate. 
Yes, sir, the Senate of the United States is to be led like a lamb 
to the slaughter, bound hand and foot, shorn of its constitutional 
power, and gagged, dumb, like the sheep brought to the block ! 
Is this the condition to which the Senator from Michigan pro- 
poses to reduce the Senate of the United States by insisting upon 
such a provision as that contained in the resolution as it conies 
from the House of Representatives ? 

"There is a still graver objection to this resolution as it stands. 
The provision that i until such report shall have been made and 
finally acted on by Congress, no member shall be received into 
either house from any of the so-called Confederate States/ is a 
provision which, by law, excludes those eleven States from their 
representation in the Union. Sir, pass that resolution as it stands, 
and let it receive the signature of the President, and you have 
accomplished what the rebellion could not accomplish, what the 
sacrifice of half a million men could not accomplish in warring 
against this Government — you have dissolved the Union by act 
of Congress. Sir, are we prepared to sanction that? I trust 
never. 

"The Senator from Michigan talks about the status of these 
States. He may very properly raise the question whether they 
have any Legislatures that are capable of electing Senators to this 
body. That is a question of fact to be considered; but as to 
whether they are States, and States still within the Union, not- 
withstanding their civil form of government has been overturned 
by the rebellion, and their Legislatures have been disorganized, 
that they are still States in this Union is the most sacred truth 
and tke dearest truth to every American heart, and it will be 
maintained by the American people against all opposition, come 
from 'what quarter it may. Sir, the flag that now floats on the 
top of this Capitol bears thirty-six stars. Every star represents a 
State in this Union. I ask the Senator from Michigan, does that 
flag, as it floats there, speak the nation's truth to our people and 
to the world, or is it a hypocritical, flaunting lie ? That flag has 
been, borne at the head of our conquering legions through the 
whole South, planted at Vicksburg, planted at Columbia, Savan- 
nah, Charleston, Sumter; the same old flag which came down 
before the rebellion at Sumter was raised up again, and it still 
bore the same glorious stars ; ' not a star obscured/ not one. 



OK RECONSTRUCTION. U 

"These people have been disorganized in their civil govern- 
ments in consequence of the war ; the rebels overturned civil gov- 
ernment in the first place, and we entered with our armies and 
captured the rebellion; but did that destroy the States? Not at 
all. We entered the States to save them, not to destroy them. 
The guarantee of the Constitution is a guarantee to the States, 
and to every one of the States, and the obligation that rests upon 
us is to guarantee to South Carolina a republican form of govern- 
ment as a State in this Union, and not as a Territory. No State 
nor the people of any State had any power to withdraw from the 
Union. They could not do it peacefully ; they undertook to do it 
by arms. We crushed the attempt; we trampled their armies 
under our feet; we captured the rebellion; the States are ours; 
and we entered them to save, and not to destroy. 

" The Constitution of the United States requires the President, 
from time to time, to give to Congress information of the state of 
the Union. Who has any right to presume that the President 
will not furnish the information which his constitutional duty re- 
quires ? He has at his control all the agencies which are neces- 
sary. There is the able Cabinet who surround him, with all the 
officers appointed under them : the post-masters under the Post- 
office Department, the treasury agents under the Treasury Depart- 
ment, and almost two hundred thousand men under the control 
of the War Department, in every part of this ' disaffected' region, 
who can bring to the President information from every quarter 
of all the transactions that exist there. That the President of 
the United States will be sustained, in the views which he takes 
in his message, by the people of this country, is as certain as the 
revolutions of the earth ; and it is our duty to act harmoniously 
with him, to sustain him, to hold up his hands, to strengthen his 
heart, to speak to him words of faith, friendship, and courage. 

" I know that in all these Southern States there are a thousand 
things to give us pain, sometimes alarm, but notwithstanding the 
bad appearance which from time to time presents itself in the 
midst of that boiling caldron of passion and excitement Avhich 
the war has left still raging there, the real progress which we 
have made has been most wonderful. I am one of those who 
look forward with hope, for I believe God reigns and rules in 
the affairs of mankind. I look beyond the excitement of the 
hour and all the outbreaking passion which sometimes shows 



b<2 THE THIRTY-NINTH CONGRESS. 

itself in the South, which leads them to make enactments in their 
Legislatures which are disgraceful to themselves, and can never be 
sanctioned by the people of this country, and also in spite of all 
the excitement of the North, I behold the future full of confi- 
dence and hope. We have only to come up like men, and stand 
as the real friends of the country and the Administration, and 
give to the policy of the President a fair and substantial trial, and 
all will be well." 

Mr. Fessenden, of Maine, then remarked : " When this resolu- 
tion was first promulgated in the newspapers as having been 
agreed upon, I approved it because I sympathized with its object 
and purpose. I did not examine it particularly; but, looking 
simply at what it was designed for, it met my approbation simply 
for this reason: that this question of the readmission of these 
Confederate States, so called, and all the questions connected with 
that subject, I conceived to be of infinite importance, requiring 
calm and serious consideration, and I believe that the appoint- 
ment of a committee, carefully selected by the two houses, to 
take that subject into consideration, was not only wise in itself, 
but an imperative duty resting upon the representatives of the 
people in the two branches of Congress. For myself, I was not 
prepared to act upon that question at once. I am not one of those 
who pin their faith upon any body, however eminent in position, 
or conceive themselves obliged, on a question of great national 
importance, to follow out any body's opinions simply because he 
is in a position to make those opinions, perhaps, somewhat more 
imperative than any other citizen of the republic. Talk about 
the Administration! Sir, we are a part of the Administration, 
and a very important part of it. I have no idea of abandoning 
the prerogatives, the rights, and the duties of my position in 
favor of any body, however that person or any number of persons 
may desire it. In saying this, I am not about to express an 
opinion upon the subject any further than I have expressed it, 
and that is, that in questions of such infinite importance as this, 
involving the integrity and welfare of the republic in all future 
time, we are solemnly bound, and our constituents will demand 
of us that we examine them with care and fidelity, and act on our 
own convictions, and not upon the convictions of others. 

" I do not agree with the honorable Senator from Wisconsin, 
that by passing a simple resolution raising a committee of our 



ON RECONSTRUCTION. 43 

own body, and referring to it certain papers, if we conclude to do 
so, we are infringing upon the rights of any body or making an 
intimation with regard to any policy that the President may have 
seen fit to adopt and recommend to the country. Sir, I trust 
there are no such things as exclusive friends of the President 
among us, or gentlemen who desire to be so considered. I have 
as much respect for the President of the United States probably 
as any man. I acted with him long, and I might express the 
favorable opinions which I entertain of him here, if they would 
not be out of place and in bad taste in this body. That I am 
disposed and ready to support him to the best of my ability, as 
every gentleman arouncWme is, in good faith and with kind feel- 
ing in all that he may desire that is consistent with my views of 
duty to the country, giving him credit for intentions as good as 
mine, and with ability far greater, I am ready to asseverate. 

" But, sir, I do not agree with the doctrine, and I desire to en- 
ter my dissent to it now and here, that, because a certain line of 
policy has been adopted by one branch of the Government, or 
certain views are entertained by one branch of the Government, 
therefore, for that reason alone and none other, that is to be tried, 
even if it is against my judgment ; and I do not say that it is or 
is not. That is a question to be considered. I have a great re- 
spect, not for myself, perhaps, but for the position which I hold 
as a Senator of the United States ; and no measure of Govern- 
ment, no policy of the President, or of the head of a department, 
shall pass me while I am a Senator, if I know it, until I have 
exanlined it and given my assent to it ; not on account of the 
source from which it emanates, but on account of its own intrin- 
sic merits, and because I believe it will result in the good of my 
country. That is my duty as a Senator, and I fear no miscon- 
struction at home on this subject or any other. 

"Now, therefore, sir, I hope that, laying aside all these mat- 
ters, which are entirely foreign, we shall act upon this resolution 
simply as a matter of business. No one has a right to complain 
of it that we raise a committee for certain purposes of our own 
when we judge it to be necessary. It is an imputation upon no- 
body; it is an insult to nobody; it is not any thing which any 
sensible man could ever find fault with, or be disposed to do so. 
It is our judgment, our deliberate judgment, our friendly judg- 
ment — a course of action adopted from regard to the good of the 



44 THE TSIETT-JVIJVTE CONGRESS. 

community, and that good of the community comprehends the 
good of every individual in it." 

Mr. Saulsbury, of Delaware, said : " This resolution is very 
objectionable to my mind. It is for the appointment of a com- 
mittee of the two houses to determine and to report upon what? 
The right of representation of eleven States in this body. What 
determines the rights of those States to representation here? Is 
it the views of the members of the House of Representatives? 
Do we stand in need of any light, however bright it may be, that 
may come from that distinguished quarter? Are we going to 
ask them to illuminate us by wisdom, and report the fact to us 
whether those States are entitled to representation on this floor? 

" Mr. President, on the first day of your assemblage after the 
battle of Manassas, you and they declared, by joint resolution, 
that the object for which the war was waged was for no purpose 
of conquest or subjugation, but it was to preserve the union of 
the States, and to maintain the rights, dignity, and equality of 
the several States unimpaired. While that war was being waged 
there was no action, either of this house or of the House of 
Representatives, declaring that, when it was over, the existence 
of those States should be ignored, or their right to representation 
in Congress denied. Throughout the whole contest the battle- 
cry was ' the preservation of the Union ' and ' the Union of the 
States.' If there was a voice then raised that those States had 
ceased to have an existence in this body, it was so feeble as to be 
passed by and totally disregarded. 

" Sir, suppose this committee should report that those States are 
not entitled to representation in this body, are you bound by their 
action ? Is there not a higher law, the supreme law of the land, 
which says if they be States that they shall each be entitled to two 
Senators on this floor ? And shall a report of a joint committee 
of the two houses override and overrule the fundamental law of 
the land ? Sir, it is dangerous as a precedent, and I protest against 
it as an humble member of this body. If they be not States, then 
the object avowed for which the war was waged was false." 

Mr. Hendricks, of Indiana, said : " I shall vote against this 
resolution because it refers to a joint committee a subject which, 
according to my judgment, belongs exclusively to the Senate. I 
know that the resolution no longer provides in express terms that 
the Senate, pending the continuance of the investigation of this 



ON RECONSTRUCTION. 4$ 

committee, will not consider the question of credentials from these 
States, but in effect it amounts to that. The question is to be 
referred to the committee, and according to usage, and it would 
seem to be the very purpose of reference that the body shall not 
consider the subject while the question is before them. I could 
not vote for a resolution that refers to a joint committee a subject 
that this body alone can decide. If there are credentials presented 
here, this body must decide the question whether the person pre- 
senting the credentials is entitled to a seat ; and how can this 
body be influenced by any committee other than a committee 
that it shall raise itself?" 

Mr. Trumbull, of Illinois, then followed: "If I understood 
the resolution as the Senator from Indiana does, I should cer- 
tainly vote with him ; but I do not so understand it. It is 
simply a resolution that a joint committee be raised to inquire 
into the condition of the States which formed the so-called Con- 
federate States of America, and to report whether they or any 
of them are entitled to be represented in either House of Con- 
gress, with leave to report at any time by bill or otherwise. It 
is true, as the Senator says, that after having raised this commit- 
tee, the Senate will not be likely to take action in regard to the 
admission of the Senators from any of these States until the 
committee shall have had a reasonable time at least to act and 
report; but it is very desirable that we should have joint action 
upon this subject. It would produce a very awkward and unde- 
sirable state of things if the House of Representatives were to 
admit members from one of the lately rebellious States, and the 
Senate were to refuse to receive Senators from the same State. 

" We all know that the State organizations in certain States of 
the Union have been usurped and overthrown. This is a fact of 
which we must officially take notice. There was a time when the 
Senator from Indiana, as well as myself, would not have thought 
of receiving a Senator from the Legislature, or what purported to 
be the Legislature, of South Carolina. When the people of that 
State, by their Representatives, undertook to withdraw from the 
Union and set up an independent government in that State, in 
hostility to the Union, when the body acting as a Legislature 
there was avowedly acting against this Government, neither he 
nor I would have received Representatives from it. That was a 
usurpation which, by force of arms, we have put down. Now the 



46 THE THIRTY-NINTH CONGRESS. 

question arises, Has a State government since been inaugurated 
there entitled to representation ? Is not that a fair subject of 
inquiry ? Ought we not to be satisfied upon that point ? We do 
not make such an inquiry in reference to members that come from 
States which have never undertaken to deny their allegiance to 
the Government of the United States. Having once been ad- 
mitted as States, they continue so until by some positive act they 
throw off their allegiance, and assume an attitude of hostility to 
the Government, and make war upon it ; and while in that con- 
dition, I know we should all object that they, of course, could not 
be represented in the Congress of the United States. Now, is it 
not a proper subject for inquiry to ascertain whether they have 
assumed a position in harmony with the Government ? and is it 
not proper that that inquiry should be made the subject of joint 
action?" 

Mr. Guthrie, of Kentucky, wished to ask the friends of this 
resolution if it was contemplated that this committee should take 
evidence, and report that evidence to the two houses. " If," said 
he, " they are only to take what is open to every member of the 
Senate, the fact that the rebellion has been suppressed ; the fact 
that the President of the United States has appointed officers to 
collect the taxes, and, in some instances, judges and other officers; 
that he has sent the post-office into all the States; that there have 
been found enough individuals loyal to the country to accept the 
offices ; the fact that the President has issued his proclamation to 
all these States, appointing Provisional Governors ; that they have 
all elected. conventions; that the conventions have rescinded the 
ordinances of secession ; that most of them have amended their 
constitutions and abolished slavery, and the Legislatures of some 
of them have passed the amendment to the Constitution on the 
subject of slavery — if they are only to take these facts, which are 
open and clear to us all, I can see no necessity for such a com- 
mittee. My principal objection to the resolution is, that this 
committee can give us no information which we do not now 
possess, coupled with the fact that the loyal conservative men of 
the United States, North, South, East, and West, do most 
earnestly desire that we shall so act that there shall be no longer 
a doubt that we are the United States of America, in full accord 
and harmony with each other. 



ON RECONSTRUCTION. 47 

" I know it has been said that the President had no authority 
to do these things. I read the Constitution and the laws of this 
country differently. He is to ' take care that the laws be faith- 
fully executed;' he is to suppress insurrection and rebellion. The 
power is put in his hands, and I do not see why, when he marches 
into a rebel State, he has not authority to put down a rebel gov- 
ernment and put up a government that is friendly to the United 
States, and in accordance with it. I do not see why he can not 
do that while the war goes on, and I do not see why he may not 
do it after the war is over. The people in those States lie at the 
mercy of the nation. I see no usurpation in what he has done, 
and if the work is well done, I, for one, am ready to accept it. 
Are we to send out a commission to see what the men whom he 
has appointed have done? It is said that they are not to be 
relied on ; that they have been guilty of treason, and we will not 
trust them. I hope that no such ideas will prevail here. I think 
this will be a cold shock to the warm feelings of the nation for 
restoration, for equal privileges and equal rights. They were in 
insurrection. We have suppressed that insurrection. They are 
now States of the Union ; and if they come here according to the 
laws of the States, they are entitled, in my judgment, to repre- 
sentation, and we have no right to refuse it. They are in a 
minority, and they would be in a minority even if they meant 
now what they felt when they raised their arms against the 
Government; but they do not, and of those whom they will 
send here to represent them, nineteen out of twenty will be just 
as loyal as any of us — even some of those who took up arms 
against us. 

" I really hope to see some one move a modification of the test 
oath, so that those who have repented of their disloyalty may 
not be excluded, for I really believe that a great many of those 
who took up arms honestly and wished to carry out the doctrines 
of secession, and who have succumbed under the force of our 
arms and the great force of public opinion, can be trusted a great 
deal more than those who did not fight at all. 

" To conclude, gentlemen, I see no great harm in this resolu- 
tion except the procrastination that will result from it, and that 
will give us nothing but what we have before us." 

The question being taken, the resolution, as amended, passed 
the Senate, thirty-three voting in the affirmative and eleven in 



48 THE THIRTY-NINTH CONGRESS. 

the negative. The following are the names of those who voted 
for the resolution: 

Messrs. Anthony, Brown, Chandler, Clark, Conness, Creswell, Fessenden, 
Foot, Foster, Grimes, Harris, Howard, Howe, Lane of Indiana, Lane of 
Kansas, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, 
Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, 
Wilson, and Yates. 

The following Senators voted against the resolution : 

Messrs. Buckalew, Cowan, Dixon, Doolittle, Guthrie, Hendricks, Johnson, 
Riddle, Saulsbury, Stockton, and Wright. 

Five Senators were absent : Messrs. Cragin, Davis, Henderson, 
McDougall, and Nesmith. 

On the day succeeding the adoption of the concurrent resolu- 
tion by the Senate, the amendments of that body came before the 
House of Representatives. Mr. Thaddeus Stevens moved that 
the House concur in the amendments of the Senate. He said : 
"The Senate took what to them appeared to be the proper view 
of their prerogatives, and, though they did not seem to differ 
with us as to the main object, the mode of getting at it with 
them w^as essential, and they very properly put the resolution in 
the shape they considered right. They have changed the form 
of the resolution so as not to require the assent of the President j 
and they have also considered that each house should determine 
for itself as to the reference of papers, by its own action at the 
time. To this I see no objection, and, while moving to concur, 
I will say now, that when it is in order I shall move, or some 
other gentleman will move when his State is called, a resolution 
precisely similar, or very nearly similar, to the provision w T hich 
the Senate has stricken out, only applicable to the House alone." 

The House then concurred in the amendments of the Senate, 
so the resolution passed in the following form: 

"Besolved, by the House of Representatives (the Senate concurring), That 
a joint committee of fifteen members shall be appointed, nine of whom shall 
be members of the House, and sis members of the Senate, who shall inquire 
into the condition of the States which formed the so-called Confederate 
States of America, and report whether they, or any of them, are entitled to 
be represented in either house of Congress, with leave to report at any time, 
by bill or otherwise." 



ON RECONSTRUCTION. 49 

A resolution subsequently passed the House, " That all papers 
offered relative to the representation of the late so-called Confed- 
erate States of America, shall be referred to the joint committee 
of fifteen without debate, and no members shall be admitted from 
either of said so-called States until Congress shall declare such 
States entitled to representation." 

On the fourteenth of December the Speaker announced the 
names of the committee on the part of the House. They were : 
Thaddeus Stevens, Elihu B. Washburn, Justin S. Morrill, Henry 
Grider, John A. Bingham, Roscoe Conkling, George S. Boutwell, 
Henry T. Blow, and Andrew J. Rogers. 

On the twenty-first of December the following gentlemen were 
announced as members of the committee on the part of the Senate : 
William Pitt Fessenden, James W. Grimes, Ira Harris, Jacob M. 
Howard, Reverdy Johnson, and George H. Williams. 

Thus, before the adjournment of Congress for the holidays, 
the Joint Committee of Fifteen on Reconstruction had been ap- 
pointed and empowered to proceed with investigations of the 
utmost importance to the country. Hated by the late insurgents 
of the South, who expected little leniency at its hands; opposed 
by politicians at the North, who viewed it as an obstacle in the 
way of their designs, and even misrepresented by the President 
nimself, who stigmatized it as a "Central Directory," this com- 
mittee went forward in the discharge of its important duties, 
without fear or favor, having a marked influence upon the doings 
of Congress and the destinies of the country. 

Meanwhile other important measures were enlisting the atten- 
tion of Congress, and were proceeding, by the slow but steady 
steps of parliamentary progress, to their final consummation. 
4 



50 THE THIBTT-JYINTH CONGRESS. 



CHAPTER IV. 

SUFFRAGE IN THE DISTRICT OF COLUMBIA. 

Duty of Congress to legislate for tiie District of Columbia— Suffrage 
Bill introduced into the House— Speech by Mr. Wilson— Mr. Boyer 
—Mr. Schofield— Mr. Kelley— Mr. Eogers— Mr. Farnsworth— Mr. 
Davis— Mr. Chanler— Mr. Bingham— Mr. Grinnell— Mr. Kasson— 
Mr. Julian— Mr. Thomas— Mr. Darling— Mr. Hale's amendment— Mr. 
Thayer— Mr. Van Horn— Mr. Clarke— Mr. Johnson— Mr. Boutwell. 

WHATEVER differences of opinion may exist as to the 
authority of Congress to legislate for States loyal or dis- 
loyal, or for Territories, there is entire unanimity as to the 
power and duty of Congress to enact laws for the District of Co- 
lumbia. Here there is no countercurrent of "reserved rights" 
or " State sovereignty " opposed to the authority of Congress. 

Congress being responsible for the legislation of the District 
of Columbia, we naturally look in that direction for an exhibition 
in miniature of the policy of the national legislature on questions 
relating to the interests of the nation at large. If slavery flour- 
ished and the slave-market existed in the capital, it was because 
a majority of the people of the United States were willing. So 
soon as the nation became antislavery, the "peculiar institution" 
could no longer exist in the District of Columbia, although it 
might still survive in other localities. 

The General Government having become completely disen- 
thralled from the dominion of slavery, and a wide-spread opinion 
prevailing at the North that all loyal men should enjoy the right 
of suffrage, the members of the Thirty-ninth Congress convened 
with a sense of duty impelling them to begin the great wobIc of 
political reform at the capital itself. Hence Mr. Wade, as we 
have seen, on the first day of the session, introduced " Senate bill 
Number One," designed, as its title declared, "to regulate the 



DISTRICT OF COLUMBIA. 51 

elective franchise in the District of Columbia." In the House 
of Representatives, on the second day of the session, Mr. Kel- 
ley introduced "a bill extending the right of suffrage in the 
District of Columbia." This bill was referred to the Judiciary 
Committee. 

In the House of Representatives, on the 18th of December, 
Mr. Wilson, chairman of the Committee on the Judiciary, re- 
ported a bill extending the right of suffrage in the District of 
Columbia. The bill provided that from all laws and parts of 
laws prescribing the qualification of electors for any office in the 
District of Columbia, the word " white " should be stricken out ; 
also, that from and after the passage of the bill, no person should 
be disqualified from voting at any election held in the District of 
Columbia on account of color; also, that all acts of Congress, and 
all laws of the State of Maryland in force in the District of 
Columbia, and all ordinances of the cities of Washington and 
Georgetown inconsistent with the provisions of the bill, should be 
repealed and annulled. 

This bill was made the special order for Wednesday the 10th of 
January. 

Mr. Wilson, of Iowa, whose duty it was, as chairman of the 
Judiciary Committee, to report the bill, opened the discussion by 
speaking as follows in favor of the measure : 

" Can we excuse ourselves in continuing a limitation on the 
right of suffrage in the capital of the republic that has no justifi- 
cation in reason, justice, or in the principles on which we profess 
to have based our entire political system? Upon this question 
there seems to have been but little difference of opinion among 
the men who laid the foundation and built the superstructure of 
this Government. In those days no limitation was placed upon 
the enjoyment of the defensive rights of the citizen, including 
the right of suffrage, on account of the color of the skin, except 
in the State of South Carolina. All of the other States partici- 
pating in the formation of the Government of the United States 
had some limitation, based on sex, or age, or property placed 
upon the right of suffrage ; but none of them so far forgot the 
spirit of our Constitution, the great words of the Declaration of 
Independence, or the genius of our institutions, as to inquire into 
the color of a citizen before allowing him the great defensive right 
of the ballot. It is true, that as the republic moved off in its 



52 THE THIRTY-NINTH CONGRESS. 

grand course among the nations a change occurred in the minds 
and practices of the people of a majority of the States. The love 
of liberty, because of its own great self, and not because of its 
application to men of a particular color, lost its sensitive charac- 
ter and active vitality. The moral sense of the people became 
dormant through the malign influence of that tolerated enemy to 
all social and governmental virtue, human slavery. The public 
conscience slumbered, its eyes closed with dollars and its ears 
stuffed with cotton. When these things succeeded the active jus- 
tice, abounding mercy, and love of human rights of the earlier 
days, State after State fell into the dark line of South Carolinian 
oppression, and adopted her anti-republican limitation of the 
right of suffrage. A few States stood firm and kept their faith, 
and to-day, when compared with the bruised and peeled and op- 
pression-cursed State of South Carolina, stand forth as shining 
examples of the great rewards that are poured upon the heads of 
the just. Massachusetts and South Carolina, the one true, the 
other false to the faith and ideas of the early life of the nation, 
should teach us how safe it is to do right, and how dangerous it 
is to do wrong; how much safer it is to do justice than it is to 
practice oppression. 

" But, sir, not the States alone fell into this grievous error. 
The General Governmeift took its stand upon the side of injus- 
tice, and apostatized from the true faith of the nation, by depriv- 
ing a portion of its citizens of the political right of self-defense, 
the use of the ballot. What good has come to us from this apos- 
tasy ? Take the history of the municipal government of this city, 
and what is there in its pages to make an American feel proud 
of the results of this departure from the principles of true de- 
mocracy? Is there a worse governed city in all the republic? 
Where in all the country was there to be found such evidences 
of thriftless dependence as in this city before the cold breath of 
the North swept down here during the rebellion and imparted a 
little of ' Yankee ' vigor to its business and population ? Where 
within the bounds of professed fidelity to the Government was 
true loyalty at a lower ebb, and sympathy with the rebellion at 
higher flood ; freedom more hated, and emancipation more roundly 
denounced; white troops harder to raise, and black ones more 
heartily despised; Union victories more coldly received, and re- 
verses productive of less despondency, than right among that por- 



DISTRICT OF COLUMBIA. 53 

tion of the voting population and its adjuncts which control the 
local elections in this District? "With what complaisance the 
social elements of this capital fostered the brood of traitors who 
rushed hence to the service of the rebellion in 1861 ! Are these 
fruits of our errors pleasing ? 

" I would not be vindictive, I would be just. I do not want 
to legislate against the white citizen for the purpose of advancing 
the interests of th'e colored citizen. It is best to guard against 
all such legislation. Let the laws which we pass here be of such 
pure republican character, that no person can tell from the read- 
ing of them what color is stamped upon the faces of the citizens 
of the United States. Let us have no class legislation, no class 
privileges. Let our laws be just and uniform in their operation. 
This is the smooth sea upon which our ship of state may sail ; 
all others are tempestuous and uncertain. 

" And now, Mr. Speaker, who are the persons upon whom this 
bill will operate, if we shall place it upon the statute-book of the 
nation ? They are citizens of the United States and residents of 
the District of Columbia. It is true that many of them have 
black faces, but that is God's work, and he is wiser than we. 
Some of them have faces marked by colors uncertain ; that is not 
God's fault. Those who hate black men most intensely can tell 
more than all others about this mixture of colors. But, mixed 
or black, they are citizens of this republic, and they have been, 
and are to-day, true and loyal to their Government ; and this is I 
vastly more than many of their contemners can claim for them- r 
selves. In this District a white skin was not the badge of loy- 
alty, while a black skin was. No traitor breathed the air of this 
capital Avearing a black skin. Through all the gradations of 
traitors, from Wirz to Jeff. Davis, criminal eyes beamed from 
white faces. Through all phases of treason, from the bold stroke / 
of Lee upon the battle-field to the unnatural sympathy of those • 
who lived within this District, but hated the sight of their coun- • 
try's flag, runs the blood which courses only under a white sur- • 
face. While white men were fleeing from this city to join their 
fortunes with the rebel cause, the returning wave brought black 
faces in their stead. White enemies went out, black friends came 
in. As true as truth itself were these poor men to the cause of this 
imperiled nation. Wherever we have trusted them, they have been 
true. Why will we not deal justly by them ? Why shall we not, 



54 THE THIRTY-NINTH CONGRESS. 

in this District, where the first effective legislative blow fell upon 
slavery, declare that these suffering, patient, devoted friends of the 
republic shall have the power to protect their own rights by their 
own ballots ? Is it because they are ignorant ? Sir, we are estopped 
from that plea. It comes too late. We did not make this inquiry 
in regard to the white voter. It is only when we see a man with 
a dark skin that we think of ignorance. Let us not stand on this 
now in relation to this District. The fact itself is rapidly passing 
away, for there is no other part of the population of the Dis- 
trict so diligent in the acquisition of knowledge as the colored 
portion. In spite of the difficulties placed in their pathway to 
knowledge by the white residents, the colored people, adults and 
children, are pressing steadily on. 

" Taken as a class, they surely show themselves possessed of 
enough of the leaven of thrift, education, morality, and religion to 
render it safe for us to make the experiment of impartial suffrage 
here. Let us make the trial. A failure can work no great harm, 
for to us belongs the power to make any change which the future 
may show to be necessary. How can we tell whether success or 
failure shall be the fruit of a practical application of the principles 
upon which our institutions rest, unless we put them to a fair test ? 
Give every man a fair chance to show how well he can discharge 
the duties of fully recognized citizenship. This is the way to 
solve the problem, and in no other way can it be determined. 
That success will attend the experiment I do not doubt. Others 
believe the result w T ill prove quite the reverse. Who is right and 
who wrong can be ascertained only by putting the two opinions 
to a practical test. The passage of this bill will furnish this test, 
and to that end I ask for it the favorable consideration of this 
house." 

Mr. Boyer, of Pennsylvania, said : " The design of this bill is 
to inaugurate here, upon this most conspicuous stage, the first act 
of the new political drama which is intended to culminate in the 
complete political equality of the races and the establishment of 
negro suffrage throughout the States. Constitutional amendments 

o o o 

with this view have been already introduced at both ends of the 
Capitol. The object of the leaders of this movement is no longer 
concealed ; and if there is any thing in their action to admire, it 
is the candor, courage, and ability with which they press their 
cause. The agitation is to go on until the question has been set- 



DISTRICT OF COLUMBIA. 55 

tied by the country, and it may as well be met here upon the 
threshold. The monstrous proposition is nothing less than the 
absorption into the body politic of the nation of a colored popu- 
lation equal to one-sixth of all the inhabitants of the country, as 
the census reports will show. Four millions of the population so 
to be amalgamated have been just set free from a servitude, the 
debasing influences of which have many a time been vividly de- 
picted in the antislavery speeches of the very men who are the 
most prominent champions of this new political gospel. 

" The argument in favor of the* American negro's right to vote 
must be measured by his capacity to understand and his ability to 
use such right for the promotion of the public good. And that is 
the very matter in dispute. But the point does not turn simply 
upon the inferiority of the negro race; for differences without 
inferiority may unfit one race for political or social assimilation 
with another, and render their fusion in the same government 
incompatible with the general welfare. It is, as I conceive, 
upon these principles that we must settle the question whether 
this is a white man's government. 

" The negro has no history of civilization. From the earliest 
ages of recorded time he has ever been a savage or a slave. He 
has populated with teeming millions the vast extent of a conti- 
nent, but in no portion of it has he ever emerged from barbar- 
ism, and in no age or country has he ever established any other 
stable government than a despotism. But he is the most obedi- 
ent and happy of slaves. 

" Of all men, the negroes themselves are best contented with 
their situation. They are not the prime movers in the agitations 
which concern them. An examination of the tables of the last 
census will demonstrate that they do not attach much importance 
to political rights. It will be found that the free people of color 
are most numerous in some of those States which accord them the 
fewest political privileges ; and in those States which have granted 
them the right of suffrage they seem to see but few attractions. 
In Maryland there were, in 1860, 83,942 free people of color; in 
Pennsylvania, 56,949; in Ohio, 36,673. In neither of those 
States were they voters. In the State of New York, where they 
could not vote except under a property qualification, which ex- 
cluded the most of them, they numbered 49,005. But in Mas- 
sachusetts, where they did then and do now vote, there were but 



56 THE THIRTY-NINTH CONGRESS. 

9,602. And in all New England, (except Connecticut, where they 
are not allowed to vote,) there were at the last census but 16,084. 
If the American negro, in his desire and capacity for self-govern- 
ment, bore any resemblance to the Caucasian, he would distinguish 
himself by emigration ; and, spurning the soil which had enslaved 
his race, he would seek equality and independence in a more con- 
genial clime. But the spirit of independence and hardy manhood 
which brought the Puritans to the shores of a New England wil- 
derness he lacks. He will not even go to Massachusetts now, 
although, instead of a stormy ocean, his barrier is only an imag- 
inary State line, and instead of a howling wilderness, he is invited 
to a land resounding with the myriad voices of the industrial arts, 
and instead of painted savages with uplifted tomahawks, he has 
reason to expect a crowd of male and female philanthropists, with 
beaming faces and outstretched hands!, to wekome him and call 
him brother. There will he find lecturers to prove his equality, 
and statesmen to claim him as an associate ruler in the land. If 
he cares for these things, or is fit for them, why does he linger 
outside upon the very borders of his political Eden ? Why does 
he not enter into it — avoiding Connecticut in his route — and take 
possession ? The fact is, that the fine political theories set up in 
his behalf are not in accordance with the natural instinct of the 
negro, which, in this particular, is truer than the philosophy of 
his white advisers. » 

"They are but superficial thinkers who imagine that the 
organic differences of races can be obliterated by the education 
of the schools. The qualities of races are perpetuated by descent, 
and are the result of historical influences reaching far back into 
the generations of the past. An educated negro is a negro still. 
The cunning of the chisel of a Canova could not make an endur- 
ing Corinthian column out of a block of anthracite ; not because 
of its color, but on account of the structure of its substance. He 
might indeed, with infinite pains, give it the form, but he could 
not impart to it the strength and adhesion of particles required 
to enable it to brave the elements, and the temple it was made 
to support would soon crumble into ruin." 

Mr. Schofield, of Pennsylvania, said : " The cheapest elevator 
and best moralizer for an oppressed and degraded class is to in- 
spire them with self-respect, with the belief in the possibility of 
their elevation. Bestow the elective franchise upon the colored 



DISTRICT OF COLUMBIA. 57 

population of this District, and yon awaken the hope and ambi- 
tion of the whole race throughout the country. Hitherto pun- 
ishment has been the only incentive to sobriety and industry 
furnished these people by American law. They were kept too 
low to feel disgrace, and reward was inconsistent with the theory 
of ' service owed.' Let us try now the persuasive power of wages 
and protection. If colored suffrage is still considered an experi- 
ment, this District is a good place in which to try it. The same 
objections do not exist here that are urged on behalf of some of 
the States. No constitutional question intervenes. Here, at 
least, Congress is supreme. The law can be passed, and if it is 
found to be bad, a majority can repeal it. The colored race is too 
small in numbers here to endanger the supremacy of the white 
people, but large and loyal enough to counteract to some extent 
disloyal proclivities. 

"Both the precept and practice of our fathers refute the alle- 
gation that this is exclusively a white man's government. If we 
can not now consent to so slight a recognition, as proposed by 
this bill, of the great underlying theory of our Government, as 
declared and practiced by our fathers, we are thrown back upon 
that new and monstrous doctrine, that the five millions of our 
colored population, and their posterity forever, have no rights 
that a white man is bound to respect. 

" Who pronounces this crushing sentence ? The political 
South. And what is this South? The Southern master and his 
Northern minion. Have these people wronged the South? 
Have they filled it with violence, outrage, and murder ? No, sir ; 
they are remarkably gentle, patient, and respectful. Have they 
despoiled its wealth or diminished its grandeur? No, sir; their 
unpaid toil has made the material South. They removed the 
forests, cleared the fields, built the dwellings, churches, colleges, 
cities, highways, railroads, and canals. Why, then, does the 
South hate and persecute these people? Because it has wronged 
them. Injustice always hates its victim. They are forced to 
look to the North for justice. And what is the North? Not the 
latitude of frosts ; not New England and the States that border 
on the lakes, the Mississippi, and the Pacific. The geographical 
is lost in the political meaning of the word. The North, in a 
political sense, means justice, liberty, and union, and in the order 
in which I have named them. Jefferson defined this 'North' 



58 THE THIRTY-NINTH CONGRESS. 

when he wrote 'all men are created equal, endowed by their 
Creator with certain inalienable rights, among which are life, 
liberty, and the pursuit of happiness.' This North has no geo- 
graphical boundaries. It embraces the friends of freedom in 
every quarter of this great republic. Many of its bravest cham- 
pions hail from the geographical South. The North, that did 
not fear the slave power in its prime, in the day of its political 
strength and patronage, when it commanded alike the nation and 
the mob, and for the same cruel purpose, will not be intimidated 
by its expiring maledictions around this capital. The North 
must pass this bill to vindicate its sincerity and its courage. The 
slave power has already learned that the North is terrible in war, 
and forgiving and gentle in peace ; let its crushed and mangled 
victims learn from the passage of this bill, that the justice of the 
North, unlimited by lines of latitude, unlimited by color or race, 
slumbereth not." 

Mr. Kelley, of Pennsylvania, followed : " In preparing to be- 
gin the work of reconstructing the grandest of human govern- 
ments, shattered for a time by treason, and in endeavoring to 
ascertain what we should do, and how and when it should be 
done, I have consulted no popular impulse. Groping my way 
through the murky political atmosphere that has prevailed for 
more than thirty* years, I have seated myself at the feet of the 
fathers of our country, that I might, as far as my suggestions 
would go, make them in accordance with the principles of those 
who constructed our Government. I can make no suggestion for 
the improvement of the primary principles or general structure of 
our Government, and I would heal its wounds so carefully that it 
should descend to posterity unstained and unmarred as it came, 
under the guidance of Providence, from the hands of those who 
fashioned it. 

"For whom do we ask this legislation? In 1860, according 
to the census, there were fourteen thousand three hundred and 
sixteen colored people in this District, and we ask this legislation 
for the male adults of that number. Are they in rags and filth 
and degradation? The tax-books of the District will tell you 
that they pay taxes on $1,250,000 worth of real estate, held 
within the limits of this District. On one block, on which they 
pay taxes on fifty odd thousand dollars, there are but two colored 
freeholders who have not bought themselves out of slavery. 




/k^^y. 







DISTRICT OF COLUMBIA. 59 

One of them has bought as many as eight persons beside him- 
self—a w if c and seven children. Coming to freedom in man- 
hood, mortgaged for a thousand or fifteen hundred dollars as his 
own price, he has earned and carried to the Southern robber 
thousands of dollars, the price extorted for his wife and children, 
*and is now a freeholder in this District. They have twenty-one 
churches, which they own, and which they maintain at an an- 
nual cost of over twenty thousand dollars. Their communing 
members number over forty-three hundred. In their twenty- 
two Sunday-schools they gather on each Sabbath over three thou- 
sand American children of African descent. They maintain, sir, 
to the infamous disgrace of the American Congress and people, 
thirty-three day schools, eight of which arc maintained exclu- 
sively by contributions from colored citizens of the District; the 
remainder by their contributions, eked out by contributions from 
the generous people of the North ; and every dollar of their 
million and a quarter dollars of real estate and personal property 
is taxed for schools to educate the children of the white people 
of the District, the fathers of many of those children having been 
absent during 1 1 1 « - war fighting for the Confederacy and against 
our constitutional flag. Who shall reproach them with being 
poor and ignorant while Congress, which lias exclusive jurisdic- 
tion over the District, has, till last year, robbed them day by day, 
and barred the door of the public school against them ? Such 
reproach does not lie in the white man's mouth ; at any rate, no 
member of the Democratic party ought to utter it." 

The debate was continued on the day following. Mr. Eogers, 
of New Jersey, having obtained the floor, addressed the House 
for two hours. He said : " I hold that there never has been, in 
the legislation of the United States, a bill which involved so 
momentous consequences as that now under consideration, because 
nowhere in the history of this country, from the time that the 
first reins of party strife were drawn over the land, was any po- 
litical party ever known to advocate the doctrine now advocated 
by a portion of the party on the other side of this House, except 
within the last year, and during the heat and strife of battle in 
the land. The wisdom of ages for more than five thousand years, 
and the most enlightened governments that ever existed upon the 
face of the earth, have handed down to us that grand principle 
that all governments of a civilized character have been and were 



60 THE THIRTY-NINTH CONGRESS. 

intended especially for the benefit of white men and white women, 
and not for those who belong to the negro, Indian, or mulatto race. 

" It is the high prerogative which the political system of this 
country has given to the masses, rich and poor, to exercise the 
right of suffrage and declare, according to the honest convictions 
of their hearts, who shall be the officers to rule over them.' 
There is no privilege so high, there is no right so grand. It 
lies at the very foundation of this Government; and when you 
introduce into the social system of this country the right of the 
African race to compete at the ballot-box with the intelligent 
white citizens of this country, you are disturbing and embitter- 
ing the whole social system ; you rend the bonds of a common 
political faith ; you break up commercial intercourse and the free 
interchanges of trade, and you degrade the people of this country 
before the eyes of the envious monarchs of Europe, and fill our 
history with a record of degradation and shame. 

" Why, then, should we attempt at this time to inflict the sys- 
tem of negro suffrage upon those who happen to be so unfortunate 
as to reside in the District of Columbia? This city bears the 
name of George Washington, the father of our country ; and as 
it was founded by him, so I wish to hand it down to those who 
shall come after us, preserving that principle which declares that 
the sovereignty is in the white people of the country, for whose 
benefit this Government was established. I am not ready to 
believe that those men who have laid down their lives in the 
battles of the late revolution, who came from their homes like 
the torrents that sweep over their native hills and mountains, 
those men who gathered round the sacred precincts of the tomb 
of Washington to uphold and perpetuate our proud heritage of 
liberty, intended to inflict upon the people of this District, or of 
this land, the monstrous doctrine of political equality of the negro 
race with the white at the ballot-box. 

" No such dogma as this was ever announced by the Eepublican 
party in their platforms. When that party met at Chicago, in 
1860, they took pains to enunciate the great principle of self-gov- 
ernment which underlies the institutions of this country, that each 
State has the right to control its own domestic policy according 
to its own judgment exclusively. I ask the gentlemen on the 
other side of the house to allow the people of the District of 
Columbia to exercise the same great right of self-government, to 



DISTRICT OF COLUMBIA. 61 

determine by their votes at the ballot-box whether they desire to 
inaugurate a system of political equality with the colored people 
of the District. 

" Self-government was the great principle which impelled our 
fathers to protest against the powers of King George. That was 
the principle which led the brave army of George Washington 
across the ice of the river Delaware. It was the principle which 
struck a successful blow against despotism, and planted liberty 
upon this continent. It was the principle that our fathers claimed 
the Parliament of England had no right to invade, and drove 
the colonies into rebellion, because laws were passed without their 
consent by a Parliament in which tkey were unrepresented. 

" I am here to-day to plead for the white people of this District, 
upon the same grounds taken by our fathers to the English Par- 
liament, in favor of self-government and the right of the people 
of the District to be heard upon this all-important question. Al- 
though we may have a Legal yet we have no moral right, according 
to the immutable principles of justice, and according to the declara- 
tion of Holy Writ, that we should do unto others as we would 
they should do unto us, to inflict upon the people of this Dis- 
trict this fiendish doctrine of political equality with a race that 
God Almighty never intended should stand upon an equal footing 
with the white man and woman in social or civil life." 

Mr. Farns worth, of Illinois, replied : " He [Mr. Rogers] says 
this is a white man's Government. ' A white man's Government ! ' 
Why, sir, did not the Congress of the United States pass a law 
for enrolling into the service of the United States the black man 
as well as the white man? Did not we tax the black man as 
well as the white man? Does he not contribute his money as 
well as his blood for the protection and defense of the Govern- 
ment? O, yes; and now, when the black man comes hobbling 
home upon his crutches and his wooden limbs, maimed for life, 
bleeding, crushed, wounded, is he to be told by the people who 
called him into the service of the Government, ' This is a white 
man's Government; you have nothing to do with it?' Shame! 
I say, eternal shame upon such a doctrine, and upon the men who 
advocate it ! 

" What should be the test as to the right to exercise the elective 
franchise ? I contend that the only question to be asked should 
be, ' Is he a man? ' The test should be that of manhood, not that 



62 THE THIRTY-NINTH CONGRESS. 

of color, or races, or class. Is he endowed with conscience and 
reason? Is he an immortal being? If these questions are an- 
swered in the affirmative, he has the same right to protection that 
we all enjoy. 

"I am in favor, Mr. Speaker, of making suffrage equal and 
universal. I believe that greater wisdom is concentrated in the 
decisions of the ballot-box when all citizens of a certain age 
vote than when only a part vote. If you apply a test founded 
on education or intelligence, where will you stop ? One man will 
say that the voter should be able to read the Constitution and to 
write his name ; another, that he should be acquainted with the 
history of the United States ; another will demand a still higher 
degree of education and intelligence, until you will establish an 
aristocracy of wisdom, which is one of the worst kinds of aris- 
tocracy. Sir, the men who formed this Government, who believed 
in the rights of human nature, and designed the Government to 
protect them, believed, I think, as I do, that when suffrage is made 
universal, you concentrate in the ballot-box a larger amount of 
wisdom than when you exclude a portion of the citizens from the 
right of suffrage. 

" I grant, sir, that many of the colored men whom I would en- 
franchise are poor and ignorant, but we have made them so. We 
have oppressed them by our laws. We have stolen them from 
their cradles and consigned them to helpless slavery. The shackles 
are now knocked from their limbs, and they emerge from the house 
of bondage and stand forth as men. Let us now take the next 
grand step, a step which must commend itself to our judgment 
and consciences. Let us clothe these men with the rights of free- 
men, and give them the power to protect their rights. 

" Sir, as I have already remarked, we have passed through a 
fiery ordeal. There are but few homes within our land that are 
not made desolate by the loss of a son or a father. The widow 
and the orphan meet us wherever we turn. The maimed and 
crippled soldiers of the republic are every-where seen. Many 
fair fields have become cemeteries, where molder the remains of 
the noble men who have laid down their lives in defense of our 
Government. We thought that we had attained the crisis of our 
troubles during the progress of the war. But it has been said that 
the ground-swell of the ocean after the storm is often more dan- 
gerous to the mariner than the tempest itself; and I am inclined to 



DISTRICT OF COLUMBIA. 63 

think that this is true in reference to the present posture of our na- 
tional affairs. The storm has apparently subsided ; but, sir, if we fail 
to do our duty now as a nation — and that duty is so simple that a 
child can understand it ; no elaborate argument need enforce it, as 
no sophistry can conceal it; it is simply to give to one man the 
same rights that we give to another — if we fail now in this our 
plain duty as a nation, then the ship of state is in more peril from 
this ground-swell on which we are riding than it was during the 
fierce tempest of war. I trust that this Congress will have the 
firmness and wisdom to guide the old ship safely into the haven 
of peace and security. This we can do by fixing our eyes upon 
the guiding star of our fathers — the equal rights of all men." 

The discussion was resumed on the following day, January 12, 
by Mr. Davis, of New York : " Republican government can never 
rest safely, it can never rest peacefully, upon any foundation save 
that of the intelligence and virtue of its subjects. No govern- 
ment, republican in form, was ever prosperous where its people 
were ignorant and debased. And in .this Government, where 
our fathers paid so much attention to intelligence, to the cultiva- 
tion of virtue, and to all considerations which should surround 
and guard the foundations of the republic, I am sure that we 
would do dishonor to their memory by conferring the franchise 
upon men unfitted to receive it and unworthy to exercise it. 

" I am perfectly aware that in many States we have given the 
elective franchise to the white man who is debased and ignorant. 
I regret it, because I think that intelligence ought always, either 
as to the black or the white man, to be made a test of suffrage. 
And I glory in the principles that have been established by Mas- 
sachusetts, which prescribes, not that a man should have money 
in his purse, but that he should have in his head a cultivated 
brain, the ability to read the Constitution of his country, and 
intelligence to understand his rights as a citizen. 

" I have never been one of those who believed that the black 
man had 'no rights that the white man was bound to respect.' 
I believe that the black man in this country is entitled to citizen- 
ship, and, by virtue of that citizenship, is entitled to protection, 
to the full power of this Government, wherever he may be found 
on the face of God's earth ; that he has a right to demand that 
the shield of this Government shall be held over him, and that 
its powers shall be exerted on his behalf to the same extent as 



64 THE THIRTY-NINTH CONGRESS. 

if he were the proudest grandee of the land. But, sir, citizen- 
ship is one thing, and the right of suffrage is another and a 
different thing; and in circumstances such as exist around us, I 
am unwilling that general, universal, unrestricted suffrage should 
be granted to the black men of this District, as is proposed by 
the bill under consideration. 

"This whole subject is within the power of Congress, and if 
we grant restricted privilege to-day, we can extend the exercise 
of that privilege to-morrow. Public sentiment on this, as on a 
great many subjects, is a matter of slow growth and develop- 
ment. That is the history of the world. Development upon all 
great subjects is slow. The development of the globe itself has 
required countless ages before it was prepared for the introduc- 
tion of man upon it. And take the progress of the human race 
through the historic age — kingdoms and empires, systems of 
social polity, systems of religion, systems of science, have been 
of no rapid growth, but long centuries intervened between their 
origin and their overthrow. 

" The Creator placed man on earth, not for the perfection of 
the individual, but the race; and therefore he locked up the 
mysteries of his power in the bosom of the earth and in the 
depths of the heavens, rendering them invisible to mankind. 
He made man study those secrets, those mysteries, in order that 
his genius might be cultivated, his views enlarged, his intellect 
matured, so that he might gradually rise in the scale of being, 
and finally attain the full perfection for which his Creator de- 
signed him. 

" Thus governments, political systems, and political rights have 
been the subjects of study and improvement; changes adapted 
to the advance of society are made ; experiments are tried, based 
upon reason and upon judgment, and those are safest which in 
their gradual introduction avoid unnecessary violence and con- 
vulsion. 

"I submit, sir, whether it be wise for us now so suddenly to 
alter so entirely the political status of so great a number of the 
citizens of this District, in conferring upon them indiscriminately 
the right of franchise." 

Mr. Chanler, of New York, then addressed the House : 

" If, sir, it should ever be your good fortune to visit romantic 
old Spain, and to enter the fortress and palace of Alhambra, the 



DISTRICT OF COLUMBIA. 65 

fairest monument of Moorish grandeur and skill, as this Capitol 
is the pride of American architecture, you may see cut in stone 
a hand holding a key, surmounting the horse-shoe arch of the 
main gateway. They are the three types of strength, speed, and 
secresy, the boast of a now fallen Saracen race, sons of that sea 
of sand, the desert, who carried the glory of Islam to furthest 
Gades. In an evil hour of civil strife and bitter hatred of fac- 
tion, the Alhambra was betrayed to Spain, ' to feed fat an ancient 
grudge' between political chiefs. The stronghold of the race, 
with the palace, the sacred courts of justice, and all the rare 
works of art — the gardens of unrivaled splendor — all that was 
their own of majesty, strength, and beauty, became the trophies 
of another. 

"The legend of the Saracen exile tells the story of penitence 
and shame; and to the last moment of his sad life he sighs in 
the sultry desert for the fair home of his ancestors, the gorgeous 
Alhambra. We, too, are descended from a race of conquerors, 
who crossed the ocean to establish the glory of civil and religious 
liberty, and secure freedom to themselves and their posterity. 
To-day we are assembled in the Alhambra of America; here is 
our citadel ; here our courts of highest resort ; around these halls 
cluster the proudest associations of the American people; they 
seem almost sacred in their eyes. Xo hostile foot of foreign foe 
or domestic traitor has trodden them in triumph. Above it floats 
the flag, the emblem of our Union. That Union is the emblem 
of the triumphs of the white race. That race rules by the ballot. 
Shall we surrender the ballot, the emblem of our sovereignty; 
the flag, the emblem of our Union; the Union, the emblem of 
our national glory, that they may become the badges of our 
weakness and the trophies of another race? Never, sir! never, 
never ! 

" Shall the white laborer bow his free, independent, and hon- 
ored brow to the level of the negro just set free from slavery, 
and, by yielding the entrance to this great citadel of our nation, 
surrender the mastery of his race over the Representatives of the 
people, the Senate, and Supreme Court of this Union ? Then, 
sir, the white workingman's sovereignty would begin to cease to be. 

"Then the most democratic majesty of American liberty would 
be humbled in the little dust which was lately raised by a brief 
campaign of two hundred thousand negro troops, and even they 
5 



66 THE THIRTY-NINTH CONGRESS. 

led by white officers, while millions of white soldiers held the 
field in victory by their own strength and valor. Deny it if ye 
dare ! Sir, I know that this is a white man's Government, and 
I believe the white workingman has the manhood which shall 
preserve it to his latest posterity, pure and strong, in 'justice 
tempered with mercy.' 

" There may be a legend hereafter telling of the exile of Rep- 
resentatives now on this floor, who, in the hour of party spite, 
betrayed the dominion of their race here, and the stronghold of 
their people's liberty, to a servile and foreign race." 

Near the close of Mr. Chanler's remarks, his time having been 
extended by courtesy of the House, a forensic passage at arms 
occurred between that gentleman and Mr. Bingham, of Ohio. 
Mr. Chanler had said : " I deny that any obligation rests against 
this Government to do any thing more for the negro than has 
already been done. ' On what meats doth this Caesar feed that he 
has grown so great?' The white soldier did as much work as he, 
fought as well, died as bravely, suffered in hospitals and in the 
field as well as he. More than this, the white soldier fought to 
liberate the slave, and did do it. The white soldier did more : 
he fought to preserve institutions and rights endeared to him by 
every hallowed association; to overthrow the rebellion of his 
brother against their Commonwealth and glorious Union; to 
preserve the sovereignty of the people against the conspiracy of a 
slave aristocracy, if you will ; to maintain the fabric of the Gov- 
ernment built by their fathers for them and their race in every 
country of kindred men who, downtrodden and disenfranchised, 
look to this country as a sure refuge. The white soldier fought 
as a volunteer, as a responsible, free, and resolute citizen, know- 
ing for what he fought, and generously letting the slave share 
with him the honor, and bestowing on him more than his share 
of the profits of the white man's victory over his equal and the 
negro's master. 

" We are willing that the negro should have every protection 
which the law can throw around him, but there is a majesty which 
'hedges in a king.' That he ought not to have until he shows 
himself ' every inch a king.' 

" ' Who would be free, themselves must strike the blow.' 
" ' Some are born great, some achieve greatness, and some have greatness 
thrust upon them.' 



DISTRICT OF COLUMBIA. 67 

" We are opposed to thrusting honor on the negro. He is to- 
day, as a race ; as dependent on the power and skill of the white 
race for protection as when he was first brought from Africa. 
Not one act of theirs has proved the capacity of the black race 
for self-government. They have neither literature, arts, nor arms, 
as a race. They have never, during all the changes of dynasties 
or revolution of States, risen higher than to be the helpers of the 
contending parties. They have had the same opportunity as the 
Indian to secure their independence of the white race, but have 
never systematically even attempted it on this continent, although 
they have been educated with equal care, and in the same schools 
ag the white man. Their race has been subject to the white man, 
and has submitted to the yoke." 

Mr. Bingham. — " I understood the gentleman to say, that the 
colored race had failed to strike for their rights during the late 
rebellion. I wish to remind the gentleman of the fact, which 
ought to bring a blush to the cheek of every American citizen, 
that at the beginning of this great struggle, a distinguished gen- 
eral, who, I have no doubt, received the political support of the 
gentleman himself for the Presidency, and who, then at the head 
of an American army within the Commonwealth of Virginia, 
issued his proclamation, as general in command of the army, 
notifying the insurgents in arms against the Constitution that, 
if their slaves rose in revolt for their liberty, he, Major-General 
McClellan, by the whole force of the army at his command, would 
crush them with an iron hand. Yet the gentleman gets up here 
to-day, after a record of that sort, to cast censure upon this people 
because they did not strike for their liberties against the com- 
bined armies of the republic and the armies of treason !" 

Mr. Chanler.— "My honorable friend from Ohio may have 
made a good point against General McClellan, but he has made 
none against me. I admit that they have made successful insur- 
rections, but my argument was not to the effect that the negro 
race was not capable of the bloodiest deeds. I avoided entering 
into that question. I asserted that they had made successful in- 
surrection j that they had held the white race under their heel in 
Hayti and St. Domingo. I would only say, with regard to this 
question of race, that I assert there is no record of the black race 
having proved its capacity for self-government as a race; that 
they have never struck a blow for freedom, and maintained their 



68 THE THIRTY-NINTH CONGRESS. 

freedom aud independence as individuals when free. I appeal to 
history, and to the gentleman from Ohio [Mr. Bingham], and I 
speak as a student of history, and the representative of a race 
whose proudest boast is that their capacity for self-govern- 
ment is the only charter of their liberty. I assail no race; I 
assail no man. I have taken the greatest pains to prove that the 
inalienable rights of the black man are as sacred to me as those 
inalienable rights I have received from my God. If the gentle- 
man misunderstood me, I hope he will accept this explanation. 
If I have not met his question, I will now yield the floor to him 
to continue." 

Mr. Bingham. — "And I continue thus far, that the gentle- 
man's speech certainly has relation to the rights of the black man 
within the Kepublic of the United States. What he may say of 
their history outside of the jurisdiction of this country, it is not 
very important for me to take notice of. But inasmuch as the 
gentleman has seen fit, in his response to what I said, to refer to 
the testimony of history, I will bear witness now, by the authority 
of history, that this very race of which he speaks is the only race 
now existing upon this planet that ever hewed their way out of 
the prison-house of chattel slavery to the sunlight of personal 
liberty by their own unaided arm. So much for that part of the 
gentleman's argument as relates to history." 

Mr. Chanler. — " Does the gentleman allude now to what has 
been done in other lands than this? I ask the question because he 
says he does not like me to go outside of the jurisdiction of this 
country, and I therefore ask him not to go too far into Africa." 

Mr. Bingham. — " I am not in Africa. I refer to what the gen- 
tleman referred to himself. The insurrection in St. Domingo, I 
say, stands without a parallel in the history of any race now liv- 
ing on this earth, and I challenge the gentleman to refute that 
statement from history." 

Mr. Chanler.—" That is admitted." 

Mr. Bins-ham. — "That is admitted. Then I want to know, 
with a fact like that conceded, what sort of logic, what sort of 
force, what sort of reason, what sort of justice is there in the 
remark of the gentleman made here in a deliberative assembly 
touching the question of the personal enfranchisement of the 
black race, when he says in the statement here, right in the face 
of that fact, that they only are entitled to their liberty who strike 



DISTRICT OF COLUMBIA. 69 

the blow for and maintain their liberty? They did strike the 
blow in Hayti, and did maintain their liberty there. They struck 
such a blow for liberty there as no other race of men under like 
circumstances ever before struck, now represented by any organ- 
ized community upon this planet; and that the gentleman con- 
ceded. And yet this sort of argument is to be adduced here as 
reason why these people in the District of Columbia should not 
receive the consideration of this House, and be protected in their 
rights as men. If the gentleman's remark is not adduced for 
that purpose, then it is altogether foreign to our inquiry. If the 
gentleman can assign any other reason for the introduction of any 
such argument as that, I should like to hear him." 

Mr. Chanler. — "I merely wish to say, in reply to the gentle- 
man, that I have read history a little further back. I remember 
when the British fleet and the British army held out a similar 
threat to the white race of this country. The proclamation of 
General McClellan did keep down the negroes'; and this fact 
proves what I assert — that they are a race to be kept under. No 
race capable of achieving its liberty by its own efforts, would have 
listened for one moment to the paper threats of all the generals 
in the world. The negroes listened to McClellan, and they 
shrank behind the bush. They are bushmen in Africa. They are 
a dependent race, unwilling — I assert it from the record of his- 
tory — unwilling to assert their independence at the risk of their 
lives. By their own efforts they never have attained, and I 
firmly believe they never will attain, their liberty." 

Mr. Bingham replied : " I desire to say to the gentleman from 
New York, when he talks of being a ' student of history/ that 
before the tribunal of history the facts are not against me nor 
against the colored race. I beg leave to say to the gentleman 
that these people have borne themselves as bravely, as well, and, 
I may add, as wisely during the great contest just closed, as any 
people to whom he can point, situated in like circumstances, at 
any period of the world's history. They were in chains when 
the rebellion broke out. They constituted but one-sixth of the 
whole body of the people. By the terms of the Constitution of 
the United States, if they lifted a hand in the assertion of their 
right to freedom, they were liable that moment to be crushed by 
the combined power of the Republic, called out, in pursuance of 
the very letter of the Constitution, 'to suppress insurrection.' 



70 TEE TEIBTT-NIJYTE CONGRESS. 

Yet, notwithstanding the fact that their whole living generation 
and the generations before them, running back two centuries, had 
been enslaved and brutalized, reduced Jo the sad and miserable 
condition of chattels, which, for want of a better name, we call a 
' slave ' — an article of merchandise, a thing of trade, with no ac- 
knowledged rights in the present, and denied even the hope of a 
heritage in the great hereafter — yet, sir, the moment that the 
word l Liberty ' ran along your ranks, the moment that the word 
' Emancipation ' was emblazoned upon your banners, those men 
who, with their ancestors, had been enslaved through five gene- 
rations, rose as one man to stand by this republic, the last hope 
of oppressed humanity upon the earth, until they numbered one 
hundred and seventy-five thousand arrayed in arms under your 
banners, doing firmly, unshrinkingly, and defiantly their full 
share in securing the final victory of our arms. I have said this 
much in defense of men who had the manhood, in the hour of the 
nation's trial, to strike for the flag and the unity of the republic 
in the tempest of the great conflict, and to stand, where brave 
men only could stand, on the field of poised battle, where the 
earthquake and the fire led the charge. Sir, I am not mistaken ; 
and the record of history to which I have referred does not, as 
the gentleman affirms it does, make against me." 

Mr. Grinnell, of Iowa, in reply to Mr. Chanler, said : "He 
[Mr. Chanler] proceeds to say that they are now, as a class, de- 
pendent as when they were brought from their native wilds in 
Africa. Sir, I believe if the gentleman were master of all lan- 
guages, if he were to attempt to put into a sentence the quintes- 
sence, the high-wines, and sublimation of an untruth, he could 
not have more concentrated his language into a libel. 

"What is the fact, sir? It is perfectly notorious that these four 
million slaves have not only taken care of themselves amid all the 
ingenious impediments which tyrants could impose, but they have 
borne upon their stalwart shoulders their masters, millions of 
people, for a century. Why, sir, it seemed as impossible for a 
man to swim the Atlantic with Mount Atlas upon his back, or 
make harmonious base to the thunders of heaven. But these men 
have achieved the world's wonder — coming out from the tortures 
of slavery, from the prison-house, untainted with dishonor or 
crime, and out of the war free, noble, brave, and more worthy of 
their friends, always true to the flag. 



DISTRICT OF COLUMBIA. 71 

" Mr. Speaker, it was in fable that'a man pointed a lion to the 
picture which represented the king of the forest prostrate, with a 
man's foot on his neck, and asked what he thought of that. The 
reply was, ' Lions have no painters.' For clays the unblushing 
apostles of sham Democracy have in this House drawn pictures 
of the ignorance and degradation of the people of color in the 
District of Columbia. Had the subjects of their wanton defama- 
tion had a Representative here, there would have been a different 
coloring to the picture, and I would gladly leave their defense to 
the Representatives of classes who have by hundreds darkened 
these galleries with their sable countenances, waiting for days to 
hear the decisive vote which announces that their freedom is not 
a mockery. 

"Who are they to whom this bill proposes to give suffrage? 
They are twenty thousand people, owning twenty-one churches, 
maintaining thirty-three day schools, and paying taxes on more 
than one and a quarter million dollars' worth of real property. 
Thirty per cent, of their number were slaves ; but the census does 
not show that there is a Democratic congressional district in the 
Union where a larger proportion of its population are found at- 
tendant at the churches or in the schools. 

" They did not follow the example of their pale-faced neighbors, 
to the number of thousands, crossing the line to join in the rebell- 
ion ; but three thousand and more of their number went into the 
Union army, nearly one thousand of whom, as soldiers, fell by 
disease and battle in the room of those who wept on Northern soil 
for rebel defeats, and now decry the manhood and withhold just 
rights from our true national defenders. 

"In the South they were our friends. In the language of an 
official dispatch of Secretary Seward to Minister Adams, ' Every- 
where the American general receives his most useful and reliable 
information from the negro, who hails his coming as the harbinger 
of freedom.' Not one, but many, of our generals have proclaimed 
that the negro has gained by the bayonet the ballot. Admiral Du 
Pont made mention of the negro pilot Small, who brought out 
the steamer Planter, mounting a rifled and siege gun, from Char- 
leston, as a prize to us, under the very guns of the enemy. He 
brought us the first trophy from Fort Sumter, and information 
more valuable than the prize. 

" The celebrated charge of the negro brigade at the conflict at 



72 TEE THIRTY-NINTH CONGRESS. 

Port Hudson has passed into history. The position of the colored 
people in the State of Iowa reflects lasting honor on their loyalty, 
and our brave white soldiers would not have me withhold the 
facts. In the State there were between nine hundred and a 
thousand people of their class subject to military duty. Of that 
number more than seven hundred entered the army. They put to 
blush the patriotism of the dominant race in all Democratic dis- 
tricts. Seven-tenths of a class, without the inducement of com- 
missions as lieutenants, captains, colonels, commissaries, or quar- 
termasters, braving the hate and vengeance of rebels, rushing into 
the deadly imminent breach in the darkest hour of our struggle ! 
Where is the parallel to this ? They had no flag ; it was a 
mockery. There was no pledge of political franchise. Does 
history cite us to a country where so large a per cent, of the pop- 
ulation went forth for the national defense ? It was not under the 
Csesars ; and Harold, in the defense of Britain, left behind him a 
larger per cent, of the stalwart and the strong. They were more 
eager to maintain the national honor than the zealots to rescue 
Jerusalem from the profanation of infidels. Not Frank or Hun, 
nor Huguenot or Roundhead, or mountaineer, Hungarian, or Pole, 
exceeded their sacrifices made when tardily accepted. And this is 
the race now asking our favor. 

" Mr. Speaker, it will be one of the most joyful occasions of my 
life to give expression to my gratitude by voting a ballot to those 
who owed us so little, yet have aided us so faithfully and well. 
My conscience approves it as a humane act to the millions who 
for centuries have groaned under a terrible realization that on 
the side of the oppressor there is power. 

"My purpose is not to leave that heritage of shame to my 
children, that I forgot those whose blood fed our rivers and crim- 
soned the sea, and left them outcasts in the ' land of the free/ 
preferring white treason to sable loyalty. I rather vote death 
the penalty for the chief traitor, all honor and reward for our 
soldiery, and a ballot, safety, and justice for the poor." 

On the 1 5th of January the discussion was continued by Mr. 
Kasson, of Iowa, who said : " Much has been said in this debate 
about the gallantry of the negro troops, and about the number 
of negro troops in the war. Gentlemen have declared here so 
broadly that we were indebted to them for our victories as to ac- 
tually convey the impression that they won nearly all the victo- 



DISTRICT OF COLUMBIA. 73 

ries accomplished by the armies of the United States, and that to 
them are we indebted for the salvation of our country and our 
triumph over the rebellion. 

" I do not agree with them in the extent of their praise, nor 
the grounds upon which it has been placed. One gentleman, I 
think it was the gentleman from Pennsylvania, speaks of our debt 
to the negroes, because they have fought our battles for us. This 
is a falsification of the condition of the negroes, and of the history 
of the country in this particular. Those negroes fought for their 
liberty, which was involved in the preservation of the Union of 
the States. They fought with us to accomplish the maintenance 
of the integrity of the country, which carried with it the liberty 
of their own race; and what would have been said of the negroes 
if they had not, under such circumstances, come forward and 
united with us? While I yield to the negro troops the credit of 
having exhibited bravery and manhood when put to the test, I 
do not yield to them the exclusive or chief credit of having won 
the victory for the Government of my country in preserving this 
Union. Let us not, uuder false assertions of fact, send out to 
the country and the world from this floor the declaration that the 
white race of this country are wanting in the gallantry, the de- 
votion, and the patriotism which ultimately secured for our armies 
triumph, and for our nation perpetuity. 

"Unless intelligence exists in this country, unless schools are 
supported and education diffused throughout the country, our in- 
stitutions are not safe, and either anarchy or despotism will be the 
result; and when you propose substantially to introduce at once 
three-quarters of a million or a million of voters, the great mass 
of whom are ignorant and unable to tell when the ballot they 
vote is right side up, then I protest against such an alarming in- 
fusion of ignorance into the ballot-box, into that sacred palladium, 
as we have always called it, of the liberties of our country. Let 
us introduce them by fit degrees. Let them come in as fast as 
they are fit, and their numbers will not shock the character of our 
institutions. 

"I turn for a single moment to call attention to the philan- 
thropy of the proposition. If you introduce all without regard 
to qualification, without their being able to read or write, and 
thus to understand the questions on which they are to decide, 
what would be the effect? You will take away from them the 



74 THE THIRTY-NINTH CONGRESS. 

strongest incentive to learn to read or write. As a race, it is not 
accustomed to position and property; it lias no homesteads, it has 
no stake in the country ; and unless they are required to be intel- 
ligent, and qualified to understand something about our institu- 
tions and our laws, and the questions which are submitted to the 
people from time to time, you say then to them, 'No matter 
whether or not you make progress in civilization or education, 
you shall have all the rights of citizenship,' and in that way you 
take away from them all special motive to education and improve- 
ment. On the contrary, if the ability to read and write and un- 
derstand the ballot is made the qualification on the part of these 
people to exercise the right of voting, the remaining portion will 
see that color is not exclusion. They would all aspire to the 
qualification itself as preliminary to the act. You can submit no 
motive to that race so powerful for the purpose of developing in 
them the education and intelligence required. 

" I say, therefore, on whatever grounds you put it, whether you 
regard the safety of our institutions or the light of philanthropy, 
you should insist on qualifications substantially the same as those 
required in the State of Massachusetts. And let me say that, 
taking the State of Massachusetts as an example of the result of 
general intelligence and qualified suffrage, and a careful guardian- 
ship of the ballot-box, I know of no more illustrious example in 
this or any other country of its importance. 

" AVith a credit that surpasses that of the United States, with 
a history that is surpassed by no State in the Union, with wealth 
that is almost fabulous in proportion to its population, with a 
prosperity almost unknown in the history of the world, that State 
stands before us to-day in all her dignity, strength, wealth, intel- 
ligence, and virtue. And if we, by adopting similar principles in 
other States, can secure such results, we certainly have an induce- 
ment to consider well how far this condition is to be attributed to 
her diffused education, and to the provisions of her constitution." 

At the close of Mr. Kasson's speech, a colloquy occurred be- 
tween him and his colleague, Mr. Price, eliciting the fact that the 
question of negro suffrage in Iowa had been squarely before the 
people of that State in the late fall election, and their vote had 
been in favor of the measure by a majority of sixteen thousand. 

Mr. Julian, of Indiana, having obtained the floor near the hour 
of adjournment, made his argument on the following day, when 



DISTRICT OF COLUMBIA. 75 

the consideration of the question was resumed. In answer to the 
objection that negro voting would "lead to the amalgamation of 
the races or social equality/' he said: "On this subject there is 
nothing left to conjecture, and no ground for alarm. Negro suf- 
frage has been very extensively tried in this country, and we are 
able to appeal to facts. Negroes had the right to vote in all the 
Colonies save one, under the Articles of Confederation. They 
voted, I believe, generally, on the question of adopting the Con- 
stitution of the United States. They have voted ever since in 
New York and the New England States, save Connecticut, in 
which the practice was discontinued in 1818. They voted in 
New Jersey till the year 1840; in Virginia and Maryland till 
1833; in Pennsylvania till 1838; in Delaware till 1831; and in 
North Carolina and Tennessee till 1836. I have never under- 
stood that in all this experience of negro suffrage the amalgama- 
tion of the races was the result. I think these evils are not at all 
complained of to this day in New England and New York, where 
negro suffrage is still practiced and recognized by law." 

In answer to the argument that a "war of races" might en- 
sue, Mr. Julian said : " Sir, a war of races in this country can 
only be the result of denying to the negro his rights, just as such 
wars have been caused elsewhere ; and the late troubles in Jamaica 
should teach us, if any lesson can, the duty of dealing j ustly with 
our millions of freedmen. Like causes must produce like results. 
English law made the slaves of Jamaica free, but England failed 
to enact other laws making their freedom a blessing. The old 
spirit of domination never died in the slave-master, but was only 
maddened by emancipation. For thirty years no measures were 
adopted tending to protect or educate the freedmen. At length, 
and quite recently, the colonial authorities passed a whipping act, 
then a law of eviction for people of color, then a law imposing 
heavy impost duties, bearing most grievously upon them, and 
finally a law providing for the importation of coolies, thus taxing 
the freedmen for the very purpose of taking the bread out of the 
mouths of their own children ! I believe it turns out, after all, 
that these outraged j)eople even then did not rise up against the 
local government ; but the white ruffians of the island, goaded on 
by their own unchecked rapacity, and availing themselves of the 
infernal pretext of a black insurrection, perpetrated deeds of 
rapine and vengeance that find no parallel anywhere, save in the 



76 THE THIRTY-NINTH CONGRESS. 

acts of their natural allies, the late slave-breeding rebels, against 
our flag. Sir, is there no warning here against the policy of 
leaving our freeclmen to the tender mercies of their old masters ? 
Are the white rebels of this District any better than the Jamaica 
villains to whom I have referred? The late report of General 
Schurz gives evidence of some important facts which will doubt- 
less apply here. The mass of the white people in the South, he 
says, are totally destitute of any national feeling. The same big- 
oted sectionalism that swayed them prior to the war is almost 
universal. Nor have they any feeling of the enormity of treason 
as a crime. To them it is not odious, as very naturally it would 
not be, under the policy which foregoes the punishment of traitors, 
and gives so many of them the chief places of power in the South. 
And their hatred of the negro to-day is as intense and scathing and 
as universal as before the war. I believe it to be even more so. 
The proposition to educate him and elevate his condition is every- 
where met with contempt and scorn. They acknowledge that 
slavery, as it once existed, is overthrown ; but the continued in- 
feriority and subordination of .the colored race, under some form 
of vassalage or serfdom, is regarded by them as certain. Sir, they 
have no thought of any thing else ; and if the ballot shall be with- 
held from thefreedmen after the withdrawal of military power, 
the most revolting forms of oppression and outrage will be prac- 
ticed, resulting, at last, in that very war of races which is foolishly 
apprehended as the effect of giving the negro his rights." 

A serious question confronted Mr. Julian, namely : How could 
Representatives from States which negroes by constitutional pro- 
vision are forbidden to enter, be expected to vote for negro suffrage 
in this District ? He said : " In seeking to meet this difficulty, 
several considerations must be borne in mind. In the first place, 
the demand for negro suffrage in this District rests not alone upon 
the general ground of right, of democratic equality, but upon pe- 
culiar reasons superinduced by the late war, which make it an 
immediate practical issue, involving not merely the welfare of the 
colored man, but the safety of society itself. If civil government 
is to be revived at all in the South, it is perfectly self-evident that 
the loyal men there must vote ; but the loyal men are the negroes, 
and the disloyal are the whites. To put back the governing power 
into the hands of the very men who brought on the war, and ex- 
clude those who have proved themselves the true friends of the 



DISTRICT OF COLUMBIA. 77 

country, would be utterly suicidal and atrociously unjust. Negro 
suffrage in the districts lately in revolt is thus a present political 
necessity, dictated by the selfishness of the white loyalist as well 
as his sense of justice. But in our Western States, in which the 
negro population is relatively small, and the prevailing sentiment 
of their white people is loyal, no such emergency exists. Society 
will not be endangered by the temporary postponement of the 
right of negro suffrage till public opinion shall render it prac- 
ticable, and leaving the question of suffrage in the loyal States to 
be decided by them on its merits. If Indiana had gone out of her 
proper place in the Union, and her loyal population had been found 
too weak to force her back into it without negro bullets and bay- 
onets, and if, after thus coercing her again into her constitutional 
orbit, her loyalists had been found unable to hold her there with- 
out negro ballots, the question of negro suffrage in Indiana would 
most obviously have been very different from the comparatively 
abstract one which it now is. It would, it is true, have involved 
the question of justice to the negroes of Indiana, but the tran- 
scendently broader and more vital question of national salvation 
also. Let me add further, that should Congress pass this bill, 
and should the ballot be given to the negroes in the sunny South 
generally, those in our Northern and Western States, many of them 
at least, may return to their native land and its kindlier skies, and 
thus quiet the nerves of conservative gentlemen who dread too 
close a proximity to those whose skins, owing to some providential 
oversight, were somehow or other not stamped with the true 
orthodox luster. 

"The ballot should be given to the negroes as a matter of 
justice to them. It should likewise be done as a matter of retrib- 
utive justice to the slaveholders and rebels. According to the 
best information I can obtain, a very large majority of the white 
people of this District have been rebels in heart during the war, 
and are rebels in heart still. That contempt for the negro and 
scorn of free industry, which constituted the mainspring of the 
rebellion, cropped out here during the war in every form that 
was possible, under the immediate shadow of the central Govern- 
ment. Meaner rebels than many in this District could scarcely 
have been found in the whole land. They have not been pun- 
ished. The halter has been cheated out of their necks. I am 
very sorry to say that under what seems to be a false mercy, a 



78 THE THIRTY-NINTH CONGRESS. 

misapplied humanity, the guiltiest rebels of the war have thus 
far been allowed to escape justice. I have no desire to censure 
the authorities of the Government for this fact. I hope they 
have some valid excuse for their action. This question of pun- 
ishment I know is a difficult one. The work of punishment is 
so vast that it naturally palsies the will to enter upon it. It 
never can be thoroughly done on this side of the grave. And 
were it practicable to punish adequately all the most active and 
guilty rebels, justice would still remain unsatisfied. Far guiltier 
men than they are the rebel sympathizers of the loyal States, who 
coolly stood by and encouraged their friends in the South in their 
work of national rapine and murder, and while they were ever 
ready to go joyfully into the service of the devil, were too cow- 
ardly to wear his uniform and carry his weapons in open day. 
But Congress in this District has the power to punish by ballot, 
and there will be a beautiful, poetic justice in the exercise of this 
power. Sir, let it be applied. The rebels here will recoil from 
it with horror. Some of the worst of them, sooner than submit 
to black suffrage, will doubtless leave the District, and thus render 
it an unspeakable service. To be voted down and governed by 
Yankee and negro ballots will seem to them an intolerable griev- 
ance, and this is among the excellent reasons why I am in favor 
of it. If neither hanging nor exile can be extemporized for the 
entertainment of our domestic rebels, let us require them at least 
to make their bed on negro ballots during the remainder of their 
unworthy lives. Of course they will not relish it, but that will 
be their own peculiar concern. Their darling institution must 
be charged with all the consequences of the war. They sowed 
the wind, and, if required, must reap the whirlwind. Retribu- 
tion follows wrong-doing, and this law must work out its results. 
Rebels and their sympathizers, I am sure, will fare as well under 
negro suffrage as they deserve, and I desire to leave them, as far 
as practicable, in the hands of their colored brethren. Nor shall 
I stop to inquire very critically whether the negroes are Jit to vote. 
As between themselves and white rebels, who deserve to be hung, 
they are eminently fit. I would not have them more so. Will 
you, Mr. Speaker, will even my conservative and Democratic 
friends, be particularly nice or fastidious in the choice of a man 
to vote down a rebel? Shall we insist upon a perfectly finished 
gentleman and scholar to vote down the traitors and white trash 



DISTRICT OF COLUMBIA. 79 

of this District, who have recently signalized themselves by mob- 
bing unoffending negroes ? Sir, almost any body, it seems to me, 
will answer the purpose. I do not pretend that the colored men 
here, should they get the ballot, will not sometimes abuse it. 
They will undoubtedly make mistakes. In some cases they may 
even vote on the side of their old masters. But I feel pretty safe 
in saying that even white men, perfectly free from all suspicion 
of negro blood, have sometimes voted on the wrong side. Sir, I 
appeal to gentlemen on this floor, and especially to my Demo- 
cratic friends, to say whether they can not call to mind instances 
in which white men have voted wrong ? Indeed, it rather strikes 
me that white voting, ignorant, depraved, party-ridden, Democratic 
white voting, had a good deal to do in hatching into life the re- 
bellion itself, and that no results of negro voting are likely to be 
much worse." 

After an hour occupied by Mr. Randall and Mr. Kelley, both 
of Pennsylvania, in a colloquial discussion of the history and 
present position of their State upon the subject of negro suffrage, 
Mr. Thomas, of Maryland, addressed the House. After setting 
forth the injustice the passage of the bill would work toward the 
people of his State, he said: 

" If I believed that the matter of suffrage was the only mode 
to help the negro in his elevation, and the only safeguard to his 
protection, or guarantee to his rights, I would be willing to give 
it to him now, subject to proper qualifications and restrictions. 
But I am honest in my conviction that, uneducated and ignorant 
as he is, a slave from his birth, and subject to the will and caprice 
of his master, with none of the exalted ideas of what that privi- 
lege means, and with but a faint conception of the true position 
he now occupies, the negro is not the proper subject to have con- 
ferred upon him this right. I believe if it is given to him, that 
in localities where his is the majority vote, parties will spring up, 
each one bidding higher than the other for his ballot, and that 
in the end the negro-voting element will be controlled by a few 
evil and wicked politicians, and as something to be bought and 
sold as freely as an article of merchandise. I am satisfied of 
another fact, from my experience of the Southern negro, that if 
they are ever allowed to vote, the shrewd politician of the South, 
who has been formerly his master, will exert more influence over 
his vote than all the exhortations from Beecher or Cheever. 



80 THE THIBTT-JYIJYTH CONGRESS. 

"It is a notorious fact that the Southern planter maintained 
his political influence over the poor white man of the South, 
because the poor white man was dependent on him for his living 
and support. And you will find, when it is too late, that the 
Southern planter will maintain the same political influence over 
the poor, uneducated, ignorant, and dependent African, even to 
a greater extent than he formerly exercised over what used to be 
called the 'poor white trash/ 

"Mr. Speaker, let us not, because we have the majority here 
to-day, pass upon measures which, if we were evenly divided, 
we would hesitate to pass. Let us not, because we are called 
radicals, strike at the roots of society, and of the great social 
and political systems that have existed for over a century, and 
attempt to do in a day, without any preparation, what, to do well 
and safely, will require years of patience on the part of the freed- 
men, and earnest, honest exertions to elevate, improve, and edu- 
cate on our part. Let us look at this question as statesmen, not 
as partisans. Let us not suppose that the parties of to-day will 
have a perpetual existence, and that because the negro, freed and 
emancipated by us, would naturally vote on the side of his deliv- 
erer to-day, that it is any guarantee, when new parties are formed 
and a competition arises, that the whole or the major part of his 
vote will be cast on the right side. White men and black men 
are liable to the same infirmities. 

"Let us rather, sir, rejoice at what has been already done for 
him, and be content to watch his future. Let us help to elevate 
and improve him, not only in education, but in morals. Let us 
see to it that he is not only protected in all his rights of person 
and of property, but let us insist that the amplest guarantees 
shall be given. Let us wait until the great problem the African 
is now working out has been finished, and we find that he thor- 
oughly comprehends and will not abuse what he has got, before 
we attempt to confer other privileges, which, when once granted, 
can never be taken from him. Sir, let it not be forgotten that 
' revolutions never go backward;' and if you ever confer this 
right on the negro, and find it will not work well, that you have 
been too hasty, that you should have waited awhile longer, you 
will find it is too late, and that, once having possessed it, they 
will not part with it except with their lives." 



DISTRICT OF COLUMBIA. 81 

On the 17th of January the debate was resumed by Mr. Dar- 
ling, of New York, who remarked : 

" What public necessity exists for the passage of this bill at 
this time? There are no benefits which the colored people of 
this District could attain by the exercise of the right of suffrage 
that Congress could not bestow. Our right and power to legis- 
late for this District are unquestioned, and instead of wasting 
days and weeks over a question which is exciting bitter feeling 
among our own people, had we not better give our attention 
to matters of great national interest which so urgently demand 
speedy action on our part? Let us pass laws for the education 
of the people of this District, and fit them ultimately to receive 
the elective franchise; or, if any thing is required to satisfy the 
intense desire, manifested by some gentlemen of this House, to 
bestow the franchise on those not now possessed of it, give it to 
every soldier who served in the Union Army and was honorably 
discharged, whether old or young, rich or poor, native or foreign- 
born, white or black, and show to. the world that the American 
people, recognizing the services and sufferings of their brave 
defenders, give them, as a recognition, the highest and best gift 
of American citizenship. 

"If I know myself, I know that no unjust or unmanly preju- 
dice warps my judgment or controls my action on any matter 
of legislation affecting the colored race on this continent. I 
believe in their equality of rights before the law with the domi- 
nant race. I believe in their rights of life, liberty, and the pur- 
suit of happiness. And yet I believe that, before we confer upon 
them the political right of suffrage, as contemplated by the bill 
now under consideration, we should seek to elevate their social 
condition, and lift them up from the depths of degradation and 
ignorance in which many of them are left by the receding waves 
of the sea of rebellion. There are many strong objections to 
conferring upon the colored men of this District the gift of un- 
qualified suffrage without any qualification based on intelligence. 
The large preponderance which they possess numerically will 
inevitably lead to mischievous results. Neither would I entirely 
disregard the views of the people of this District, many of whom 
I know to be sound, loyal Union men. 

"But I do not wish to see the Union party take any step in 
this direction from which they may desire hereafter to recede. 
6 



82 THE THIRTY-NINTH CONGRESS. 

Let us first rather seek to enlighten this people, and educate them 
to know the value of the great gift of liberty which has been 
bestowed upon them; teach them to know that to labor is for 
their best interests; teach them to learn and lead virtuous and 
industrious lives, in order to make themselves respected, and 
encourage them to act as becomes freemen. Then they will vote 
intelligently, and not be subject to the control of designing men, 
who would seek to use them for the attainment of their own 
selfish ends. 

"Now, Mr. Speaker, in conclusion I desire to say that, as no 
election will take place in this District until next June, there can 
be no reason for special haste in the passage of this bill, and that 
there is a proposition before this House, which seems to be received 
with very general favor, to create a commission for the govern- 
ment of this city; and, in order to give an opportunity to mature 
a bill for that purpose, and have it presented for the considera- 
tion of this House, I move the postponement of the pending bill 
until the first Tuesday in April next." 

At a previous stage of the discussion of this measure, Mr. Hale 
had proposed amendments to the bill. These amendments were 
now the subject under discussion. They were in the following 
words : 

"Amend the motion to recommit by adding to that motion an instruction 
to the committee to amend the bill so as to extend the right of suffrage in the 
Dfstrict of Columbia to all persons coming within either of the following 
classes, irrespective of caste or color, but subject only to existing provisions 
and qualifications other than those founded on caste or color, to wit : 

"1. Those who can read the Constitution of the United States. 

"2. Those who are assessed for and pay taxes on real or personal property 
within the District. 

"3. Those who have served in and been honorably discharged from the 
military or naval service of the United States. 

"And to restrict such right of suffrage to the classes above named, and to 
include proper provisions excluding from the right of suffrage those who 
have borne arms against the United States during the late rebellion, or given 
aid and comfort to said rebellion." 

At the close of Mr. Darling's remarks, in which he had moved 
to postpone the whole subject, Mr. Hale, of New York, having 
argued at considerable length in favor of the several clauses of 
his proposed amendment, remarked: "Of the details of my 
amendment I am by no means tenacious. I do not expect to 



DISTRICT OF COLUMBIA. 83 

bring every member of the House, or even every member on this 
side of the House, to concur in all my own views. I desire sim- 
ply to put my measures fairly before the House, and to advocate 
them as I best can. I am ready and willing to yield my own 
preferences in matters of detail to their better judgment. More 
than that, I shall not follow the example that has been set by 
some on this side of the House who oppose my amendment, and 
who claim to be the peculiar friends of negro suffrage, by pro- 
claiming that I will adhere to the doctrine of qualified suffrage, 
and will join our political enemies, the Democrats, in voting down 
every thing else. No, sir ; for one, and I say it with entire frank- 
ness, I prefer a restricted and qualified suffrage substantially upon 
the basis that I have proposed. If the voice of this House be 
otherwise — if the sentiment of this Congress be that it is more 
desirable that universal suffrage shoukf be extended to all within 
this District, then, for one, I say most decidedly I am for it rather 
than to leave the matter in its present condition, or to disfranchise 
the black race in this District." 

Mr. Thayer, of Pennsylvania, spoke as follows : " The propo- 
sition contained in this bill is a new proposition. It contemplates 
a change which will be a landmark in the history of this coun- 
try — a landmark which, if it is set up, will be regarded by the 
present and future generations of men .who are to inhabit this 
continent with pride and satisfaction, or deplored as one of the 
gravest errors in the history of legislation. The bill, if it shall 
become a law, will be, like the law to amend the Constitution by 
abolishing slavery, the deep foot-print of an advancing civiliza- 
tion, or the conspicuous monument of an unwise and pernicious 
experiment. 

" Much has been said, on the part of those who oppose the bill, 
on the subject of its injustice to the white inhabitants of the Dis- 
trict of Columbia. Indeed, the argument on that side of the 
question is, when divested of all that is immaterial, meretricious, 
and extravagant, reduced almost entirely to that single position. 
Abstract this from the excited declamation to which you have 
listened, and what is left is but the old revolting argument in 
favor of slavery, and a selfish appeal to prejudice and ignorance. 
It is insisted that a majority of the white voters of the District 
are opposed to the contemplated law, that they have recently 
given a public expression of their opinion against it, and that for 



84 THE THIRTY-NINTH CONGRESS. 

that reason it would be unjust and oppressive in Congress to pass 
this law. In my judgment, this is a question not concerning alone 
the wishes and prejudices of the seven thousand voters who dwell 
in this District, but involving, it may be, the honor, the justice, 
the good faith, and the magnanimity of the great nation which 
makes this little spot the central seat of its empire and its power. 

" If it concerns the honor of the United States that a certain 
class of its people, in a portion of its territory subject to its ex- 
clusive jurisdiction and control, shall, in consideration of the 
change which has taken place in its condition, and of the fidelity 
which it has exhibited in the midst of great and severe trials, be 
elevated somewhat above the political degradation which has 
hitherto been its lot, shall the United States be prevented from 
the accomplishment of that great and generous purpose by the 
handful of voters who temporarily encamp under the shadow of 
the Capitol ? It may be that the determination, of a question of 
so much importance as this belongs rather to the people of the 
United States, through their Representatives in Congress assem- 
bled, than to the present qualified voters of this District. Sir, 
the field of inquiry is much wider than the District of Columbia, 
and the problem to be solved one in which not they alone are in- 
terested. When Congress determined that the time had come 
when slavery should be abolished in this District, and the capital 
of the nation should no longer be disgraced by its presence, did 
it pause in the great work of justice to which it laid its hand to 
hear from the mayor of Washington, or to inquire whether the 
masters would vote for it? It is not difficult to conjecture what 
the fate of that great measure would have been had its adoption 
or rejection depended upon the voters of this District. 

" Shall we be told, sir, that if the Representatives of the people 
of twenty-five States are of the opinion that the laws and insti- 
tutions which exist in the seat of Government of the United 
States ought to be changed, that they are not to be changed be- 
cause a majority of the voters who reside here do not desire that 
change ? Will any man say that the voices of these seven thou- 
sand voters are to outweigh the voices of all the constituencies 
of the United States in the capital of their country? I dismiss 
this objection, therefore, as totally destitute of reason or weight. 
It is based upon a fallacy so feeble that it is dissipated by the 
bare touch of the Constitution to it. 



DISTRICT OF COLUMBIA. 85 

" Whatever is the duty of the United States to do, that is for 
their interest to do. The two great facts written in history by 
the iron hand of the late war are, first, that the Union is indis- 
soluble, and second, that human slavery is here forever abolished. 
From these two facts consequences corresponding in importance 
with the facts themselves must result: from the former, a more 
vigorous and powerful nationality; from the latter, the elevation 
and improvement of the race liberated by the war from bondage, 
as well as a higher and more advanced civilization in the region 
where the change has taken place. It is impossible to say that 
the African race occupies to-day the same position in American 
affairs and counts no more in weight than it did before the rebell- 
ion. You can not strike the fetters from the limbs of four mill- 
ion men and leave them such as you found them. As wide as 
is the interval between a freeman and a slave, so wide is the dif- 
ference between the African race before the rebellion and after 
the rebellion. You can not keep to its ancient level a race which 
has been released from servitude any more than you can keep 
back the ocean with your hand after you have thrown down the 
sea-wall which restrained its impatient tides. Freedom is every- 
where in history the herald of progress. It is written in the 
annals of all nations. It is a law of the human race. Ignorance, 
idleness, brutality — these belong to slavery ; they are her natural 
offspring and allies, and the gentleman from New York, [Mr. 
Chanler,] who consumed so much time in demonstrating the com- 
parative inferiority of the black race, answered his own argument 
when he reminded us that the Constitution recognized the negro 
only as a slave, and gave us the strongest reason why we should 
now begin to recognize him as a freeman. Sir, I do not doubt , 
that the negro race is inferior to our own. That is not the ques- 
tion. You do not advance an inch in the argument after you 
have proved that premise of your case. You must show that 
they are not only inferior, but that they are so ignorant and de- 
graded that they can not be safely intrusted with the smallest 
conceivable part of political power and responsibility, and that 
this is the case not on the plantations of Alabama and Missis- 
sippi, but here in the District of Columbia. Nay, you must not 
only prove that this is the general character of this population 
here, but that this condition is so universal and unexceptional 
that you can not allow them to take this first step in freedom, 



86 THE THIRTY-NINTH CONGRESS. 

although it may be hedged about with qualifications and condi- 
tions ; for which of you who have opposed this measure on the 
ground of race has proposed to give the benefit of it to such as 
may be found worthy ? Not one of you. And this shows that 
your objection is founded really on a prejudice, although it as- 
sumes the dignity and proportions of an argument. The real 
question, sir, is, can we afford to be just — nay, if you please, gen- 
erous — to a race whose shame has been washed out in the con- 
suming fires of war, and which now stands erect and equal before 
the law with our own? Shall we give hope and encouragement 
to that race beginning, as it does now for the first time, its career 
of freedom, by erecting here in the capital of the republic a ban- 
ner inscribed with the sacred legend of the elder days, ' All men 
are born free and equal ? ' or shall we unfurl in its stead that other 
banner, with a strange device, around which the dissolving rem- 
nants of the Democratic party in this hall are called upon to 
rally, inscribed with no great sentiment of justice or generosity, 
but bearing upon its folds the miserable appeal of the demagogue, 
'This is a white man's Government?' When you inaugurate 
your newly-discovered political principle, do not forget to invite 
the colored troops ; beat the assembly ; call out the remnants of 
the one hundred and eighty thousand men who marched with 
steady step through the flames and carnage of war, and many of 
whom bear upon their bodies the honorable scars received in that 
unparalleled struggle and in your defense, and as you send your 
banner down the line, say to them, ' This is the reward of a gen- 
erous country for the wounds you have received and the sufferings 
you have endured.' 

" Shall we follow the great law to which I have referred — the 
law that liberty is progress — and conform our policy to the spirit 
of that great law? or shall we, governed by unreasonable and 
selfish prejudices, initiate a policy which will make this race our 
hereditary enemy, a mine beneath instead of a buttress to the 
edifice which you are endeavoring to repair ? Sir, I do not hesi- 
tate to say that, in my opinion, it were better to follow where 
conscience and justice point, leaving results to a higher Power, 
than to shrink from an issue which it is the clear intention of 
Providence we shall face, or to be driven from our true course by 
the chimeras which the excited imaginations of political partisans 
have conjured up, or by the misty ghosts of long-buried errors." 



DISTRICT OF COLUMBIA. 87 

Mr. Van Horn, of New York, while willing to accept the bill 
as originally presented, preferred it as modified by Mr. Hale's 
amendments. In his speech he charged those who had opposed 
the bill as laboring in the interest of slavery. 

" They seem to have forgotten," he said, " in their advocacy of 
slavery, that we have passed through a fierce war, begun by 
slayery, waged against the Government by slavery, and solely in 
its interest to more thoroughly establish itself upon the Western 
Continent, and crush out the best interests of freedom and human- 
ity ; and that this war, guided on our part by the omnipotent arm 
of the Invisible, made bare in our behalf, has resulted in a most 
complete overthrow of this great wrong ; and by the almost om- 
nipotent voice of the republic, as now expressed in its fundamental 
law, it has no right to live, much less entitled to the right of burial, 
and should have no mourners in the land or going about the streets. 
Such speeches as those of the gentlemen from New Jersey, [Mr. 
Rogers,] and from Pennsylvania, [Mr. Boyer,] and my colleague 
and friend, [Mr. Chanler,] who represents, with myself, in part, 
the Empire State, carry us back to the days and scenes before the 
war, when slavery ruled supreme, not only throughout the land, 
by and through its hold upon power, which the people in an evil 
hour had given it, but here in these halls of legislation, where 
liberty and its high and noble ends ought to have been secured 
by just and equal laws, and the great and paramount object of 
our system of government carried out and fully developed. They 
seem to forget that liberty and good government have been on trial 
during these five years last past of war and blood, and that they 
have succeeded in the mighty struggle. They forget that Provi- 
dence, in a thousand ways, during this fierce conflict, has given us 
evidence of his favor, and led us out of the land of bondage into 
a purer and higher state of freedom, where slavery, as an institu- 
tion among us, is no more. Why do they labor so long and so 
ardently to resurrect again into life this foul and loathsome thing ? 
Why can not they forget their former love and attachments in this 
direction, and no longer cling with such undying grasp to this 
dead carcass, which, by its corruptions and rottenness, has well 
nigh heretofore poisoned them to the death ? Why not awake to 
the new order of things, and accept the results which God has 
worked out in our recent struggle, and not raise the weak arm 
of flesh to render null and void what has thus been done, and 



88 THE THIRTY-NINTH CONGRESS.. 

thus attempt to turn back the flow of life which is overspread- 
ing all, and penetrating every part of the body politic with its 
noble purposes and exalted hopes ? " 

Thursday, January 18, was the last day of the discussion of 
this important measure in the House of Representatives. When 
the subject was in order, Mr. Clarke, of Kansas, " as the only 
Representative upon the floor of a State whose whole history had 
been a continual protest against political injustice and wrong," 
after having advocated the bill by arguments drawn from the 
history of the country and the record of the negro race, remarked 
as follows : " This cry of poverty and ignorance is not new. I 
remember that those who first followed the Son of man, the Savior 
of the world, were not the learned rabbis, not the enlightened 
scholar, not the rich man or the pious Pharisee. They were the 
poor and needy, the peasant and the fisherman. I remember, also, 
that the more learned the slaveholder, the greater the rebel. I 
remember that no black skin covered so false a heart or misdirected 
brain, that when the radiant banner of our nationality was near 
or before him, he did not understand its meaning, and remained 
loyal to its demands. The man capable of taking care of himself, 
of wife and children, and, in addition to his unrequited toil, to 
hold up his oppressor, must have intelligence enough, in the long 
run, to wield the highest means of protection we can give. 

" But, sir, it is for our benefit, as well as for the benefit of the 
proscribed class, that I vote for and support impartial manhood 
suffrage in this District. We can not afford, as a nation, to keep 
any class ignorant or oppress the weak. We must establish here 
republican government. That which wrongs one man, in the end 
recoils on the many. Sir, if we accept, as the Republican party 
of the Union, our true position and our duty, we shall nobly win. 
If we are false and recreant, we shall miserably fail. Let us have 
faith in the people and the grand logic of a mighty revolution, 
and dare to do right. Class legislation will be the inevitable 
result of class power ; and what would follow, so far as the col- 
ored race are concerned, let the recent tragedy of Jamaica answer. 

" The principles involved in the arguments put forth on the 
other side of the House are not alone destructive to the rights 
of the defenseless, intelligent, and patriotic colored men of this 
District, but they militate with a double effect and stronger pur- 
pose against the poor whites of the North and of the South, against 



DISTRICT OF COLUMB 1. 1. 89 

the German, the Irishman, and the poor and oppressed of every 
race, wild come to onr Bhores to escape the oppression of despotic 
governments, and to seek the protection of a Government the true 
theory of \\lii<-li reposes in every citizen a portion of its sovereign 
power. Against this attempt to deny or abridge in any way the 

rights of the weak, the ] r, and the defenseless, and to transfer 

the governing power of (he nation to the favored classes, to the 
rich and the powerful, and thus change the very purpose and 
principles of. mm- republican system, I protest in the name of con- 
stitutional freedom, and in behalf of equal rights and equal laws. 

"Iprotr-t against this stealthy innovation upon popular rights, 
in the name of the toiling millions of the land; and I warn the 
House and the country of the untold mischief and disaster which 
must come to distract and divide the republic in the future, if we 
follow the pernicious and destructive doctrine- founded upon either 
the prejudices of clas . realth, or power. I protest in the 

name of a constituency whose early history was a sublime and 
persistent struggle against the prejudices of pampered and arro- 
gant ruffianism at home, and the worse than ruffian spirit of the 
Administrations of Pierce and Buchanan, and the Democratic 
traitors who at that time constituted a majority of this House, 
and were engaged in preparing the nation for its harvest of blood. 
We nni-t go hack to the spirit and purposes of Hie founders of our 
Government. We must accept the grand logic of the mighty 
revolution from which we are now emerging. We must repudi- 
ate, now and forever, these assaults upon the masses of the people 
and upon the fundamental principles of popular rights. I accept 
in their full force and effect the principles of the Declaration of 
Independence, and by constitutional amendment and law of Con- 
gress I would stamp them with irrevocable power upon the polit- 
ical escutcheon of the new r and regenerated republic. I would 
avoid the mistakes of the past, and I would spurn that cringing 
timidity by which, through all history, liberty has been sacrificed 
and humanity betrayed. 

" Sir, I hesitate not to say that if we do not gather up, in the 
process of national reconstruction, the enduring safeguards of future 
peace, we shall be false to our history and unmindful of the grand 
responsibilities now devolving upon us. The establishment of 
impartial suffrage in this District will be a fitting commence- 
ment of the work. It will be hailed by the friends of freedom 



90 THE THIRTY-NINTH CONGRESS. 

every-where as a return to a policy of national justice too long 
delayed. In behalf of the State I have the honor to represent, 
and upon whose soil this contest for a larger liberty and a nobler 
nationality was first submitted to the arbitrament of arms, I hail 
this measure with feelings of satisfaction and pride. It is the 
legitimate result of the courage and fidelity of the hardy pioneers 
of Kansas in 1856, who dared to face the blandishment of power 
and the arrogance and brutality of slavery when compromisers 
trembled, and Northern sycophants of an oligarchic despotism, 
then, as now, scowled and fretted at the progress of free prin- 
ciples." 

Mr. Johnson, of Pennsylvania, after having adduced a variety 
of arguments against the bill, finally said : " Sir, Ave hear a tre- 
mendous outcry in this House in favor of popular government 
and about the guarantee of the Constitution of the United States 
to the several States that they shall have republican governments. 
How are the poor people of this District to have a republican 
form of government if gentlemen who have come *o this city, per- 
haps for the first time in their lives, undertake to control them as 
absolutely and arbitrarily as Louis Napoleon controls France or 
Maximilian Mexico? Gentlemen ask, What right have they to 
hold an election and express their sentiments ? What right have 
they to hold such* an election? Surely they ought to have the 
right to petition, for their rulers are generally arbitrary enough. 

" Mr. Speaker, it seems to me ridiculously inconsistent for gen- 
tlemen upon this floor to prate so much about a republican form 
of government, and rise here and offer resolution after resolution 
about the Monroe doctrine and the downtrodden Mexicans, while 
they force upon the people of this District a government not of 
their own choice, because the voter in a popular government is a 
governor himself. But, sir, this is only part of a grand plan. 
Gentlemen who dare not go before their white constituents and 
urge that a negro shall have a vote in their own States, come here 
and undertake to thrust negro suffrage upon the people here. 
Gentlemen whose States have repudiated the idea of giving the 
elective franchise to negroes, come here and are willing to give 
the suffrage to negroes here, as if they intended to make this little 
District of Columbia a sort of negro Eden ; as if they intended to 
say to the negroes of Virginia and Maryland and Delaware, 
' You have no right to vote in these States, but if you will go to 



DISTRICT OF COLUMBIA. 01 

Washington you can vote there.' I imagine I can see them 
swarming up from different sections of the country to this city 
and inquiring where the polls are. Agents, men and women, 
such as there are at work in this city, will no doubt be at work in 
these States, telling them to pack their knapsacks and march to 
Washington, for on such a day there is to be an election, and 
there they will have the glorious privilege of the white man. Sir, 
all this doctrine is destructive of the American system of govern- 
ment, which recognizes the right of no man to participate in it 
unless he is a citizen, which secures to the citizen his voice in the 
control and management of the Government, and prevents those 
not citizens from standing in the way of the exercise of his just 
rights. 

" This Government docs not belong to any race so that it can be 
divested or disposed of. The present age have no right to termi- 
nate it. It is ours to enjoy and administer, and to transmit to 
posterity unimpaired as we received it from the fathers." 
^ Mr. Boutwcll, of Massachusetts, then addressed the House: 
"When we emancipated the black people, we not only relieved 
ourselves from the institution of slavery, we not only conferred 
upon them freedom, but we did more, we recognized their man- 
hood, which, by the old Constitution and the general policy and 
usage of the country, had been, from the organization of the Gov- 
ernment until the Emancipation Proclamation, denied to all of the 
enslaved colored people. As a consequence of the recognition of 
their manhood, certain results follow in accordance with the prin- 
ciples of this Government, and they who believe in this Govern- 
ment are, by necessity, forced to accept those results as a conse- 
quence of the policy of emancipation which they have inaugurated 
and for which they are responsible. 

"But to say now, having given freedom to them, that they shall 
not enjoy the essential rights and privileges of men, is to abandon 
the principle of the proclamation of emancipation, and tacitly to 
admit that the whole emancipation policy is erroneous. 

^ "It has been suggested that it is premature to demand imme- 
diate action upon the question of negro suffrage in the District of 
Columbia. I am not personally responsible for the presence of 
the bill at the present time, but I am responsible for the observa- 
tion that there never has been a day during a session of Congress 
since the Emancipation Proclamation, ay, since the negroes of this 



92 THE THIRTY-NINTH CONGRESS. 

District were emancipated, when it was not the duty of the Gov- 
ernment, which, by the Constitution, is intrusted with exclusive 
jurisdiction in this District, to confer upon the men of this Dis- 
trict, without distinction of race or color, the rights and privileges 
of men. And, therefore, there can be nothing premature in this 
measure, and I can not see how any one who supports the Eman- 
cipation Proclamation, which is a recognition of the manhood of 
the whole colored people of this country, can hesitate as to his 
duty; and while I make no suggestion as to the duty of other 
men, I have a clear perception of my own. And, first, we are 
bound to treat the colored people of this District, in regard to the 
matter of voting, precisely as we treat white people. And I do 
not hesitate to express the opinion that if the question here to-day 
were whether any qualification should be imposed upon white 
voters in this District, if they alone were concerned, this House 
would not, ay, not ten men upon -this floor would, consider whether 
any qualifications should be imposed or not. 

"Reading and writing, or reading, as a qualification, is de- 
manded, and an appeal is made to the example of Massachusetts. 
I wish gentlemen who now appeal to Massachusetts w r ould often 
appeal to her in other matters where I can more conscientiously 
approve her policy. But it is a different proposition in Massa- 
chusetts as a practical measure. When, ten years ago, this quali- 
fication was imposed upon the people of Massachusetts, it excluded 
no person who was then a voter. For two centuries we have had 
in Massachusetts a system of public instruction open to the chil- 
dren of the whole people without money and without price. 
Therefore all the people there had had opportunities for education. 
Now, why should the example of such a state be quoted to justify 
refusing suffrage to men who have been denied the privilege of 
education, and whom it has been a crime to teach? Is there no 
difference ? 

" We are to answer for our treatment of the colored people of 
this country, and it will prove in the end impracticable to secure 
to men of color civil rights unless the persons who claim those 
rights are fortified by the political right of voting. With the 
right of voting, every thing that a man ought to have or enjoy of 
civil rights comes to him. Without the right to vote, he is secure 
in nothing. I can not consent, after all thp guards and safeguards 
which may be prepared for the defense of the colored men in the 



DISTRICT OF COLUMBIA. 93 

enjoyment of their rights — I can not consent that they shall be 
deprived of the right to protect themselves. One hundred and 
eighty-six thousand of them have been in the army of the United 
States. They have stood in the place of our sons and brothers 
and friends. They have fallen in defense of the country. They 
have earned the right to share in the Government; and if you 
deny them the elective franchise, I know not how they are to be 
protected. Otherwise you furnish the protection which is given 
to the lamb when ho "is commended to the wolf. 

" There is an ancient history that a sparrow pursued by a hawk 
took refuge in the chief assembly of Athens, in the bosom of a 
member of that illustrious body, and that the senator in anger 
hurled it violently from him. It fell to the ground (load, and 
such was the horror and indignation of that ancient but not 
Christianized body— men living in the light of nature, of rea- 
son — that they immediately expelled the brutal Arcopagite from 
his seat, and from the association of humane legislators. 

"What will 1)0 said of us, not by Christian, but by heathen 
nations ev< n, if, after accepting the blood and sacrifices of these 
men, we hurl them from us and allow thorn to be the victims of 
those who have tyrannized over them for centuries? I know of 
no crime*tr*at exceeds this; I know of none that is its parallel ; 
and if this country is true to itself, it will rise in the majesty of 
its strength and maintain a policy, here and every-wherc, by 
which the rights of the colored people shall be secured through 
their own power — in peace, the ballot; in war, the bayonet. 

" It is a maxim of another language, which we may well apply 
to ourselves, that where the voting register ends the military ros- 
ter of rebellion begins; and if you leave these four million people 
to the care and custody of the men who have inaugurated and car- 
ried on this rebellion, then you treasure up for untold years the 
elements of social and civil war, which must not only desolate and 
paralyze the South, but shake this Government to its very founda- 
tion." 

Soon after the close of Mr. BoutwelFs speech, Mr. Darling's 
motion to postpone and Mr. Hale's motion to amend having been 
rejected, a vote was taken on the bill as reported by the commit- 
tee. The bill passed by a vote of one hundred and sixteen in 
the affirmative — fifty-four voting in the negative. 

The friends of the measure having received evidence that it 



94 THE THIRTY-NINTH CONGRESS. 

would not meet with Executive approval, and not supposing that 
a vote of two-thirds could be secured for its passage over the 
President's veto, determined not to urge it immediately through 
the Senate. 

There was great reluctance on the part of many Senators and 
members of the House to come to an open rupture with the 
President. They desired to defer the day of final and irrecon- 
cilable difference between Congress and the Executive. If the 
subject of negro suffrage in the District of Columbia was kept in 
abeyance for a time, it was hoped that the President's approval 
might meanwhile be secured to certain great measures for pro- 
tecting the helpless and maintaining the civil rights of citizens. 
To accomplish these important ends, the suffrage bill was deferred 
many months. The will of the majority in Congress relating to 
this subject did not become a law until after the opening of the 
second session of the Thirty-ninth Congress. 



THE FREEDMEN. Vo 



CHAPTER V. 

THE FREEDMEN. 

Necessities of tiie Freedmen — Committee in the House — Early move- 
ment by the Senate in behalf of Freedmen — Senator "Wilson's Bill — 
Occasion for it — Mr. Cowan moves its reference — Mr. Reverdy John- 
son ADVISES DELIBERATION — A QUESTION OF TIME WITH Mr. SHERMAN — Mr. 

Trumbull promises a moke efficient bill — Mr. Sumner presents proof 

OF THE BAD CONDITION OF AFFAIRS IN THE SOUTH — Mr. CoWAN AM) Mr. 

Stewart produce the President as a witness for the defense — Mr. 
Wilson on the testimony — "Conservatism" — The bill absorbed in 
greater meas! 

THE necessities of three millions and a half of persons made 
free as a result of the rebellion demanded early and efficient 
legislation at the hands of the Thirty-ninth Congress. In 
vain did the Proclamation of Emancipation break their shackles, 
and the constitutional amendment declare them free, if Congress 
should not " enforce " these important acts by " appropriate legis- 
lation." 

The House of Representatives signified its view of the impor- 
tance of this subject by constituting an able Committee "on 
Freedmen," with Thomas D. Eliot, of Massachusetts, as its chair- 
man. The Senate^ however, was first to take decided steps toward 
the protection and relief of freedmen. We have seen that on the 
first day of the session Senator Wilson, of Massachusetts, intro- 
duced a bill " to maintain the freedom of the inhabitants in the 
States declared in insurrection and rebellion by the proclamation 
of the President of the 1st of July, 1862," of which the following 
is a copy: 

Be it enacted, etc., That all laws, statutes, acts, ordinances, rules and regu- 
lations, of any description whatsoever, heretofore in force or held valid in 
any of the States which were declared to be in insurrection and rebellion by 



96 THE THIRTY-NINTH CONGRESS. 

the proclamation of the President of the 1st of July, 1862, whereby or 
wherein any inequality of civil rights and immunities among the inhabitants 
of said States is recognized, authorized, established, or maintained, by reason 
or in consequence of any distinctions or differences of color, race, or descent, 
or by reason or in consequence of a previous condition or status of slavery 
or involuntary servitude of such inhabitants, be, and are hereby, declared 
null and void; and it shall be unlawful to institute, make, ordain, or establish, 
in any of the aforesaid States declared to be in insurrection and rebellion, 
any such law, statute, act, ordinance, rule, or regulation, or to enforce, or to 
attempt to enforce, the same. 

Sec. 2. And be it further enacted, That any person who shall violate either 
of the provisions of this act shall be deemed guilty of a misdemeanor, and 
shall be punished by a fine of not less than $500 nor exceeding $10,000, and 
by imprisonment not less than sis months nor exceeding five years; and it 
shall be the duty of the President to enforce the provisions of this act. 

On the 13th of December, Mr. Wilson called up his bill, which 
the Senate proceeded to consider as in Committee of the Whole. 
The author of the bill presented reasons why it should become a 
law : " A bill is pending before the Legislature of South Carolina 
making these freedmen servants, providing that the persons for 
whom they labor shall be their masters ; that the relation between 
them shall be the relation of master and servant. The bill, as 
originally reported, provided that the freedmen might be educated, 
but that provision has already been stricken out, and the bill now 
lies over waiting for events here. That bill makes the colored 
people of South Carolina serfs, a degraded class, the slaves of 
society. It is far better to be the slave of one man than to be the 
slave of arbitrary law. There is no doubt of the fact that in a 
great portion of those States the high hopes, the confidence, and 
the joy expressed last spring by the freedmen, have passed away ; 
that silence and sorrow pervade that section of the country, and 
that they are becoming distrustful and discontented. God grant 
that the high-raised expectations of these loyal and deserted people 
may not be blasted. God forbid that we should violate our plighted 
faith." 

Mr. Cowan moved the reference of the bill to the Committee 
on the Judiciary, but its author was unwilling that it should be 
so referred, since it was highly important that action should be 
had upon it before the holidays. 

Mr. Johnson said that the bill gave rise to grave questions on 
which it was very desirable that the deliberation of the Senate 
should be very calmly advised. He objected on the ground of 



THE FBEEDMEJY. 97 

its indefiniteness : "There are no particular laws designated in 
the bill to be repealed. All laws existing before these States got 
into a condition of insurrection, by which any difference or ine- 
quality is created or established, are to be repealed. What is to 
be the effect of that repeal upon such laws as they exist? In 
some of those States, by the constitution or by the laws, (and the 
constitution is equally a law,) persons of the African race are ex- 
cluded from certain political privileges. Are they to be repealed, 
and at once, by force of that repeal, arc they to be placed exactly 
upon the same footing in regard to all political privileges with that 
which belongs to the other class of citizens ? Very many of those 
laws are laws passed under the police power, which has always 
been conceded as a power belonging to the States — laws supposed 
to have been necessary in order to protect the States themselves 
from insurrection. Are they to be repealed absolutely? 

" No man feels more anxious certainly than I do that the rights 
incident to the condition of freedom, which is now as I person- 
ally am glad to believe, the condition of the black race, should 
not be violated; but I do not know that there is any more press- 
ing need for extraordinary legislation to prevent outrages upon 
that class, by any thing which is occurring in the Southern States, 
than there is for preventing outrages in the loyal States. Crimes 
are being perpetrated every day in the very justly-esteemed State 
from which the honorable member comes. Hardly a paper fails 
to give us an account of some most atrocious and horrible crime. 
Murders shock the sense of that community and the sense of the 
United States very often ; and it is not peculiar to Massachusetts. 
Moral by her education, and loving freedom and hating injustice 
as much as the people of any other State, she yet is unable to pre- 
vent a violation of every principle of human rights, but we are 
not for that reason to legislate for her." 

Mr. Wilson replied : " The Senator from Maryland says that 
cruelties and great crimes are committed in all sections of the 
country. I know it ; but we have not cruel and inhuman laws to 
be enforced. Sir, armed men are traversing portions of the rebel 
States to-day enforcing these black law T s upon men whom we have 
made free, and to whom we stand pledged before man and God to 
maintain their freedom. A few months ago these freedmen were 
joyous, hopeful, confident. To-day they are distrustful, silent, 
and sad, and this condition has grown out of the wrongs and 
7 



98 THE THIRTY-NINTH CONGRESS. 

cruelties and oppressions that have been perpetrated upon 

them." 

Mr. Sherman said : " I believe it is the duty of Congress to 
give to the freedmen of the Southern States ample protection in 
all their natural rights. With me it is a question simply of time 
and manner. I submit to the Senator of Massachusetts whether 
this is the time for the introduction of this bill. I believe it 
would be wiser to postpone all action upon this subject until the 
proclamation of the Secretary of State shall announce that the 
constitutional amendment is a part of the supreme law of the land. 
When that is done, there will then be, in my judgment, no doubt 
of the power of Congress to pass this bill, and to make it definite 
and general in its terms. 

" Then, as I have said, it is a question of manner. When this 
question comes to be legislated upon by Congress, I do not wish 
it to be left to the uncertain and ambiguous language of this bill. 
I think that the rights which we desire to secure to the freedmen 
of the South should be distinctly specified. 

" The language of this bill is not sufficiently definite and dis- 
tinct to inform the people of the United States of precisely the 
character of rights intended to be secured by it to the freedmen 
of the Southern States. The bill in its terms applies only to 
those States which Avere declared to be in insurrection; and the 
same criticism would apply to this part of it that I have already 
made, that it is not general in its terms." 

Mr. Trumbull made some remarks of great significance, as fore- 
shadowing important measures soon to occupy the attention of 
Congress and the country : 

"I hold that under that second section Congress will have 
the authority, when the constitutional amendment is adopted, 
not only to pass the bill of the Senator from Massachusetts, but 
a bill that will be much more efficient to protect the freedman in 
his rights. We may, if deemed advisable, continue the Freed- 
man's Bureau, clothe it with additional powers, and, if necessary, 
back it up with a military force, to see that the rights of the men 
made free by the first clause of the constitutional amendment are 
protected. And, sir, when the constitutional amendment shall 
have been adopted, if the information from the South be that the 
men whose liberties are secured by it are deprived of the privilege 
to go and come when they please, to buy and sell when they 



THE FREEDMEN. 99 

please, to make contracts and enforce contracts, I give notice that, 
if no one else does, I shall introduce a bill, and urge its passage 
through Congress, that will secure to those men every one of those 
rights; they would not be freemen without them. It is idle to 
say that a man is free who can not go and come at pleasure, who 
can not buy and sell, who can not enforce his rights. These are 
rights which the first clause of the constitutional amendment 
meant to secure to all." 

On a subsequent day, December 20, 1865, when this subject 
was again before the Senate, Mr. Sumner spoke in its favor. Re- 
ferring to the message of the President on the " Condition of the 
Southern States," the Senator said: 

"When I think of what occurred yesterday in this chamber; 
when I call to mind the attempt to whitewash the unhappy con- 
dition of the rebel States, and to throw the mantle of official ob- 
livion over sickening and heart-rending outrages, where human 
rights are sacrificed and rebel barbarism receives a new letter of 
license, I feel that I ought to speak of nothing else. I stood here 
years ago, in the days of Kansas, when a small community was 
surrendered to the machinations *o£ slave-masters. I now stand 
here again, when, alas! an immense region, with millions of peo- 
ple, has been surrendered to the machinations of slave-masters. 
Sir, it is the duty of Congress to arrest this fatal fury. Congress 
must dare to be brave ; it must dare to be just." 

After having quoted copiously from the great Russian act by 
which the freedom given to the serfs by the Emperor's proclama- 
tion " was secured," and having emphasized them as examples for 
American legislation, Mr. Sumner said : 

" My colleague is clearly right in introducing his bill and press- 
ing it to a vote. The argument for it is irresistible. It is essen- 
tial to complete emancipation. "Without it emancipation will be 
only half done. It is our duty to see that it is wholly done. 
Slavery must be abolished not in form only, but in substance, so 
that there shall be no black code; but all shall be equal before 
the law." 

He then read extracts from letters and documents, showing the 
hostile sentiments of the people, and the unhappy condition of 
the colored population in nearly all of the rebel States, and closed 
by saying : " I bring this plain story to a close. I regret that 
I have been constrained to present it. I wish it were otherwise. 



Lot : 



100 THE THIRTY-NINTH CONGRESS. 

But I should have failed in duty had I failed to speak. Not in 
anger, not in vengeance, not in harshness have I spoken; but 
solemnly, carefully, and for the sake of my country and human- 
ity, that peace and reconciliation may again prevail. I have 
spoken especially for the loyal citizens who are now trodden 
down by rebel power. You have before you the actual condition 
of the rebel States. You have heard the terrible testimony. 
The blood curdles at the thought of such enormities, and espe- 
cially at the thought that the poor freedmen, to whom we owe 
protection, are left to the unrestrained will of such a people 
smarting with defeat, and ready to wreak vengeance upon these 
representatives of a true loyalty. In the name of God let us 
protect them. Insist upon guarantees. Pass the bill now under 
consideration; pass any bill; but do not let this crying injustice 
rage any longer. An avenging God can not sleep while such 
things find countenance. If you are not ready to be the Moses 
of an oppressed people, do not become its Pharaoh." 

Mr. Cowan rebuked the Senator from Massachusetts for apply- 
ing the term " whitewash " to the message of the President. He 
then charged Mr. Sumner with reading from " anonymous letter- 
writers, from cotton agents, and people of that kind," and placed 
against them "the testimony of the President of the United 
States, not a summer soldier, or a sunshine patriot, who was 
a Union man, and who was in favor of the Union at a time and 
in a place when there was some merit in it. He then pro- 
ceeded to read extracts from the President's message and General 
Grant's report. 

On a subsequent day, Mr. Stewart, of Nevada, made a speech 
in opposition to the positions assumed by Mr. Sumner. He de- 
clared his opinion that " if the great mass of the people of the 
South are capable of the atrocities attributed to them by the 
anonymous witnesses paraded before this Senate, then a union 
of these States is impossible ; then hundreds and thousands of the 
bravest and best of our land have fallen to no purpose; then 
every house, from the gulf to. the lakes, is draped in mourning 
without an object ; then three thousand millions of indebtedness 
hangs like a pall upon the pride and prosperity of the people, 
only to admonish us that the war was wicked, useless, and 
cruel." 

After making the remark, "In judging of testimony upon 



THE FREEDMEjY. 101 

ordinary subjects, we take into consideration not only the facts 
stated, but the character and standing of the witness, his means 
of information, and last, but not least, his appearance upon the 
stand," Mr. Stewart thus spoke in behalf of the principal wit- 
ness relied upon in the defense of the South: "In this great 
cause, the Senate properly called upon the chief Executive of the # 
nation for information. Was he a witness whose character and 
standing before the country would entitle his testimony to con- 
si. kration? Let the voice of a great people, who have indorsed 
his patriotism and administration, answer. Were his. means of 
information such as to entitle him to speak advisedly upon this 
subject? Let the machinery of the Government, that collects 
facts from every department, civil and military, upon the table 
of the Executive, answer. Was not his appearance before the 
public, in communicating tlii- testimony to the Senate and the 
country such as t<> remove all grounds of suspicion? Let the 
exalted tone, bole] and fearless statement, pure and patriotic spirit 
of both his m< - ie his best vindication." 

The Senator's remarks were principally directed in opposition 
to the policy of regarding the rebel States as "conquered terri- 
tories." He finally remarked : " I wish to be distinctly under- 
stood as not opposing the passage of the bill. I am in favor of 
legislation on this subject, and such legislation as shall secure the 
freedom of those who were formerly slaves, and their equality 
before the law; and I maintain that it can be fully secured with- 
out holding the Southern States in territorial subjugation." 

Mr. Wilson replied: "The Senator who has just addressed us 
questions the testimony adduced here by my colleague yesterday. 
He might as well question the massacre at Fort Pillow, and the 
cruelties perpetrated at Anderson ville, where eighty-three per cent. , 
of the men who entered the hospitals died — Andersonville, where 
more American soldiers lie buried than fell throughout the Mexi- ' 
can war; where more American soldiers lie buried than were | 
killed in battle of British soldiers in Wellington's four great bat- | 
ties in Spain, and at Waterloo, Alma, Inkermann, and Sebastopol. 
The Senator might as well question the atrocities of sacked Law- 
rence and other atrocities committed during the war. If he w r ill 
go into the Freedman's Bureau, and examine and study the offi- 
cial records of officers who, for five or six months, have taken 
testimony and have large volumes of sworn facts ; if he will go 



102 THE THIRTY-NINTH CONGRESS. 

into the office of General Holt, and read the reports there, his 
heart and soul "will be made sick at the wrongs man does to his 
fellow-man." 

The Senator, in the course of his remarks, took occasion to ex- 
press his opinion of "conservatism : " " Progress is to be made 
only by fidelity to the great cause by which we have stood dur- 
ing the past four years of bloody war. For twenty-five years we 
had a conflict of ideas, of words, of thoughts — words and thoughts 
stronger than cannon-balls. We have had four years of bloody 
conflict. Slavery, every thing that belongs or pertains to it, lies 
prostrate before us to-day, and the foot of a regenerated nation is 
upon it. There let it lie forever. I hope no words or thoughts 
of a reactionary character are to be uttered in either house of 
Congress. I hope nothing is to be uttered here in the name of 
' conservatism,' the worst word in the English language. If there 
is a word in the English language that means treachery, servility, 
and cowardice, it is that word ' conservative.' It ought never 
hereafter to be on the lips of an American statesman. For twenty 
years it has stood in America the synonym of meanness and base- 
ness. I have studied somewhat carefully the political history of 
the country during the last fifteen or twenty years, and I have al- 
ways noticed that when I heard a man prate about being a con- 
servative and about conservatism, he was about to do some mean 
thing. [Laughter.] I never knew it to fail ; in fact, it is about 
the first word a man utters when he begins to retreat." 

Mr. Wilson declared his motives in proposing this bill, and 
yet cheerfully acquiesced in its probable fate : " Having read hun- 
dreds of pages of records and of testimony, enough to make the 
heart and soul sick, I proposed this bill as a measure of humanity. 
I desired, before we entered on the great questions of public pol- 
icy, that Ave should pass a simpje bill annulling these cruel laws ; 
that we should do it early, and then proceed calmly with our 
legislation. That was my motive for bringing this bill into the 
Senate so early in the session. Many of the difficulties occurring 
in the rebel States, between white men and black men, between 
the old masters and the freedmen, grow out of these laws. They 
are executed in various parts of the States ; the military arrest 
their execution frequently, and the agents of the Freedmen's Bu- 
reau set them aside ; and this keeps up a continual conflict. If 
these obnoxious State laws were promptly annulled, it would con- 



TEE FREED MEN. 103 

tribute much to the restoration of good feeling and harmony, re- 
lieve public officers from immense labors, and the freed'men from 
suffering and sorrow; and this is the opinion of the most expe- 
rienced men engaged in the Freedmen's Bureau. I have had an 
opportunity to consult with and to communicate with many of 
the agents of the Bureau, with teachers, officers, and persons who 
understand the state of affairs in those States. 

" But, sir, it is apparent now that the bill is not to pass at pres- 
ent ; that it must go over for the holidays at any rate. The con- 
stitutional amendment has been adopted, and I have introduced 
a bill this morning based upon that amendment, which has been 
referred to the committee of which the Senator from Illinois 
[Mr. Trumbull] is chairman. This bill will go over; possibly 
it will not be acted upon at all. We shall probably enter on the 
discussion of the broader question of annulling all the black laws 
in the country, and putting these people under the protection of 
humane, equal, and just laws." 

The presentiment of the author of the bill was realized. The 
bill never saw the light as a law of the land. Nor was it need- 
ful that it should. It contributed to swell the volume of other 
and more sweeping measures. 



104 THE THIRTY-NINTH CONGRESS. 



CHAPTER VI. 

THE FREEDMEN'S BUREAU BILL IN THE SENATE. 

The bill introduced and referred to Judiciary Committee — Its provis- 
I0NS — Argument of Mr. Hendricks against it — Reply of Mr. Trum- 
bull — Mr. Cowan's amendment — Mr. Guthrie wishes to relieve 
Kentucky from the operation of the bill — Mr. Creswell desires 
that Maryland may enjoy the benefits of the bill — Mr. Cowan's 
gratitude to God and friendship for the negro — Remarks by Mr. 
Wilson — "The short gentleman's long speech" — Yeas and nays — 
Insulting title. 

ON the 19th of December Mr. Trumbull gave notice that "on 
some early day " he would " introduce a bill to enlarge the 
powers of the Freedmen's Bureau so as to secure freedom to 
all persons within the United States, and protect every individual 
in the full enjoyment of the rights of person and property, and 
furnish him with means for their vindication." Of the introduc- 
tion of this measure, he said it would be done " in view of the 
adoption of the constitutional amendment abolishing slavery. I 
have never doubted that, on the adoption of that amendment, it 
would be competent for Congress to protect every person in the 
United States in all the rights of person and property belonging 
to a free citizen; and to secure these rights is the object of the bill 
which I propose to introduce. I think it important that action 
should be taken on this subject at an early day, for the purpose 
of quieting apprehensions in the minds of many friends of free- 
dom, lest by local legislation or a prevailing public sentiment in 
some of the States, persons of the African race should continue to 
be oppressed, and, in fact, deprived of their freedom ; and for the 
purpose, also, of showing to those among whom slavery has here- 
tofore existed, that unless by local legislation they provide for the 
real freedom of their former slaves, the Federal Government will, 



THE FREEDMEN. 205 

by virtue of its own authority, see that they are fully pro- 
tected." 

On the 5th of January, 1866, the first day of the session of 
Congress after the holidays, Mr. Trumbull obtained leave to in- 
troduce a bill " to enlarge the powers of the Frecdnien's Bureau." 
The bill was read twice by its title, and as it contained provisions re- 
lating to the exercise of judicial functions by the officers and agents 
of the Frcedmen's Bureau, under certain circumstances, in the late 
insurgent States, it was referred to the Committee on the Judiciary. 
On the 11th of January Mr. Trumbull reported the bill from 
the Judiciary Committee, to whom it had been referred, with 
some amendments of a verbal character. On the following day 
these amendments were considered by the Senate, in Committee 
of the Whole, and adopted. The consideration of the bill as 
amended was deferred to a subsequent day. 

The I, ill provided that "the act to establish a Bureau for the 
relief of Freedmen and Refugees, approved March 3, 1865, shall 
continue until otherwise provided for by law, and shall extend to 
refugees and freedmen in all parts of the United States. The 
President is to be authorized to divide the section of country 
containing such refugees and freedmen into districts, each contain- 
ing one or more States, not to exceed twelve in number, and by 
and with the advice and consent of the Senate, to appoint an as- 
sistant commissioner for each district, who shall give like bond, 
receive the same compensation, and perform the same duties pre- 
scribed by this act and the act to which it is an amendment. 
The bureau may, in the discretion of the President, be placed 
under a commissioner and assistant commissioners, to be detailed 
from the army, in which event each officer so assigned to duty is 
to serve without increase of pay or allowances. 

^ " The commissioner, with the approval of the President, is to 
divide each district into a number of sub-districts, not to exceed 
the number of counties or parishes in each State, and to assign to 
each sub-district at least one agent, either a citizen, officer of the 
army, or enlisted man, who, if an officer, is to serve without ad- 
ditional compensation or allowance, and if a citizen or enlisted 
man, is to receive a salary not exceeding §1,500 per annum. 
Each assistant commissioner may employ not exceeding six 
clerks, one of the third class and five of the first class, ane? each 
agent of a sub-district may employ two clerks of the first class. 



106 THE THIRTY-NINTH CONGRESS. 

The President of the United States, through the War Department 
and the commissioner, is to extend military jurisdiction and pro- 
tection over all employes, agents, and officers of the bureau, and 
the Secretary of War may direct such issues of provisions, cloth- 
ing, fuel, and other supplies, including medical stores and trans- 
portation, and afford such aid, medical or otherwise, as he may 
deem needful for the immediate and temporary shelter and supply 
of destitute and suffering refugees and freedmen, their wives and 
children, under such rules and regulations as he may direct. 

" It is also provided that the President may, for settlement in 
the manner prescribed by section four of the act to which this is 
an amendment, reserve from sale or settlement, under the home- 
stead or preemption laws, public lands in Florida, Mississippi, 
and Arkansas, not to exceed three million acres of good land in 
all, the rental named in that section to be determined in such 
manner as the commissioner shall by regulation prescribe. It 
proposes to confirm and make valid the possessory titles granted 
in pursuance of Major-General Sherman's special field order, 
dated at Savannah, January 16, 1865. The commissioner, under 
the direction of the President, is to be empowered to purchase or 
rent such tracts of land in the several districts as may be neces- 
sary to provide for the indigent refugees and freedmen dependent 
upon the Government for support; also to purchase sites and 
buildings for schools and asylums, to be held as United States 
property until the refugees or freedmen shall purchase the same, 
or they shall be otherwise disposed of by the commissioner. 

"Whenever in any State or district in which the ordinary 
course of judicial proceedings has been interrupted by the rebell- 
ion, and wherein, in consequence of any State or local law, ordi- 
nance, police or other regulation, custom, or prejudice, any of the 
civil rights or immunities belonging to white persons (including 
the 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 have full and equal benefit of 
all laws and proceedings for the security of person and estate), are 
refused or denied to negroes, mulattoes, freedmen, refugees, or any 
other persons, on account of race, color, or any previous condition 
of slavery or involuntary servitude, except as a punishment for 
crime whereof the party shall have been duly convicted, or wherein 
they or any of them are subjected to any other or different pun- 



TEE FREED MEM. 107 

ishment, pains, or penalties, for the commission of any act or 
offense, than are prescribed for white persons committing like 
acts or offenses, it is to be the duty of the President of the United 
States, through the commissioner, to extend military protection 
and jurisdiction over all cases affecting such persons so discrim- 
inated against. 

" Any person who, under color of any State or local law, ordi- 
nance, police, or other regulation or custom, shall, in any State or 
district in which the ordinary course of judicial proceedings has 
been interrupted by the rebellion, subject, or cause to be subjected, 
any negro, mulatto, freedman, refugee, or other person, on account 
of race or color, or any previous condition of slavery or involun- 
tary servitude, except as a punishment for crime whereof the party 
shall have been duly convicted, or for any other cause, to the de- 
privation of any civil right secured to white persons, or to any 
other or different punishment than white persons are subject to 
for the commission of like acts or offenses, is to be deemed guilty 
of a misdemeanor, and be punished by fine not exceeding $1,000 
or imprisonment not exceeding one year, or both. It is to be the 
duty of the officers and agents of this bureau to take jurisdiction 
of and hear and determine all offenses committed against this 
provision; and also of all cases affecting negroes, mulattoes, 
freedmen, refugees, or other persons who are discriminated 
against in any of the particulars mentioned in this act, under 
such rules and regulations as the President of the United States, 
through the War Department, may prescribe. This jurisdiction 
is to cease and determine whenever the discrimination on account 
of which.it is conferred ceases, and is in no event to be exercised 
in any State in which the ordinary course of judicial proceedings 
has not been interrupted by the rebellion, nor in any such State 
after it shall have been fully restored in all its constitutional re- 
lations to the United States, and the courts of the State and of 
the United States within its limits are not disturbed or stopped 
in the peaceable course of justice." 

Other business occupying the attention of the Senate, the con- 
sideration of the Freedman's Bureau Bill was not practically 
entered upon until the 18th of January. On that day, Mr. 
Stewart made a speech ostensibly on this bill, but really on the 
question of reconstruction and negro suffrage, in reply to re- 
marks by Mr. Wade on those subjects. 



108 THE THIRTY-NINTH CONGRESS. 

Mr. Trumbull moved as an amendment to the bill that occupants 
Oi land under General Sherman's special field order, dated at Sav- 
annah, January 16, 1865, should be confirmed in their possessions 
for the period of three years from the date of said order, and no 
person should be disturbed in said possession during the said three 
years unless a settlement should be made with said occupant by the 
owner satisfactory to the commissioner of the Freedmen's Bureau. 

Mr. Trumbull explained the circumstances under which the 
freedmen had obtained possessory titles to lands in Georgia, and 
urged the propriety of their being confirmed by Congress for three 
years. He said : 

" I should be glad to go further. I would be glad, if we could, 
to secure to these people, upon any just principle, the fee of this 
land ; but I do not see with what propriety we could except this 
particular tract of country out of all the other lands in the South, 
and appropriate it in fee to these parties. I think, having gone 
upon the land in good faith under the protection of the Govern- 
ment, we may protect them there for a reasonable time; and the 
opinion of the committee was that three years would be a reason- 
able time." 

On the following day, Mr. Hendricks presented his objections 
to the bill in a speech of considerable length.. He was followed 
by Mr. Trumbull in reply. As both were members of the Judi- 
ciary Committee from which the bill was reported, and both had 
carefully considered the reasons for and against the measure, their 
arguments are given at length. 

Mr. Hendricks said : " At the last session of Congress the origi- 
nal law creating that bureau was passed. We were then in the 
midst of the war; very considerable territory had been brought 
within the control of the Union troops and armies, and within 
the scope of that territory, it was said, there were many freedmen 
who must be protected by a bill of that sort ; and it was mainly 
upon that argument that the bill was enacted. The Senate was 
very reluctant to enact the law creating the bureau as it now ex- 
ists. There was so much hesitancy on the part of the Senate, that 
by a very large vote it refused to agree to the bill repprted by the 
Senator from Massachusetts, [Mr. Sumner,] from a committee of 
conference, and I believe the honorable Senator from Illinois, [Mr. 
Trumbull,] who introduced this bill, himself voted against that 
bill ; and why? That bill simply undertook to define the powers 




-- .-„. ."|*\ is 






> ^ /V~ 




•*-<? 






THE FREED MEN. 109 

and duties of the Freedinen's Bureau and its agents, and the Sen- 
ate would not agree to confer the powers that that bill upon its 
face seemed to confer, and it was voted down ; and then the law as 
it now stands was enacted in general terms. There was very little 
gained, indeed, by the Senate refusing to pass the first bill and 
enacting the latter, for under the law as it passed, the Freedmen's 
Bureau assumed very nearly all the jurisdiction and to exercise all 
the powers contemplated in the bill reported by the Senator from 
Massachusetts. 

"Now, sir, it is important to note very carefully the enlarge- 
ment of the powers of this bureau proposed by this bill ; and in 
the first place, it proposes to make the bureau permanent. The 
last Congress would not agree to this. The bill that the Senate 
voted down did not limit the duration of the bureau, and it was 
voted down, and the bill that the Senate agreed to provided that 
the bureau should continue during the war and only for one year 
after its termination. That was the judgment of the Senate at the 
last session. What has occurred since to change the judgment of 
the Senate in this important matter ? What change in the condi- 
tion of the country induces the Senate now to say that this shall be 
a permanent bureau or department of the Government, when at 
the last session it said it should cease to exist within one year 
after the conclusion of the war? Why, sir, it seems to me that 
the country is now, and especially the Southern States are now in 
better Condition than the Senate had reason to expect when the 
law was enacted. Civil government has been restored in almost 
all the Southern States; the courts are restored in many of 
them; in many localities they are exercising their jurisdiction 
within their particular localities without let or hinderance; and 
why, I ask Senators, shall we make this bureau a perpetual and 
permanent institution of the Government when we refused to 
do it at the last session ? 

" I ask Senators, in the first place, if they are now, with the 
most satisfactory information that is before the body, willing 
to do that which they refused to do at the last session of Con- 
gress ? We refused to pass the law when it proposed to establish 
a permanent department. Shall we now, when the war is over, 
when the States are returning to their places in the Union, when 
the citizens are returning to their allegiance, when peace and 
quiet, to a very large extent, prevail over that country, when the 



110 THE THIRTY-NINTH CONGRESS. 

courts are reestablished ; is the Senate now, with this information 
before it, willing to make this a permanent bureau and depart- 
ment of the Government ? 

" The next proposition of the bill is, that it shall not be confined 
any longer to the Southern States, but that it shall have a govern- 
ment over the States of the North as well as of the South. The old 
law allowed the President to appoint a commissioner for each of 
the States- that had been declared to be in rebellion— one for each 
of the eleven seceding States, not to exceed ten in all. This bill 
provides that the jurisdiction of the bureau shall extend where- 
ever, within the limits of the United States, refugees or frcedmen 
have gone. Indiana has not been a State in insurrection, and 
yet there are thousands of refugees and freedmen who have gone 
into that State within the last three years. This bureau is to be- 
come a governing power over the State of Indiana according to 
the provisions of the bill. Indiana, that provides for her own 
paupers, Indiana, that provides for the government of her own 
people, may, under the provisions of this bill, be placed under a 
government that our fathers never contemplated — a government 
that must be most distasteful to freemen. 

" I know it may be said that the bureau will not probably be 
extended to the Northern States. If it is not intended to be ex- 
tended to those States, why amend the old law so as to give this 
power? AVhen the old law limited the jurisdiction of this bureau 
to the States that had been declared in insurrection, is it not 
enough that the bureau should have included one State, the State 
of Kentucky, over which it had no rightful original jurisdiction? 
And must we now amend it so as to place all the States of the 
Union within the power of this irresponsible sub-government? 
This is one objection that I have to the bill, and the next is the 
expense that it must necessarily impose upon the people. We 
are asked by the Freedmen's Bureau in its estimates to appropri- 
ate $11,745,050; nearly twelve million dollars for the support 
of this bureau and to carry on its operations during the coming 
year. I will read what he says : 

'"It is estimated that the amount required for the expenditures of the 
bureau for the fiscal year commencing January, 1860, will be $11,745,050. 
The sum is requisite for the following purposes: 

Salaries of assistant and sub-assistant commissioners $147,500 

Salaries of clerks 82,800 



THE FREEDMEM. Ill 

Stationery and printing 63,000 

Quarters and fuel 15,000 

Clothing for distribution 1,750,000 

Commissary stores 4,106,250 

Medical department 500,000 

Transportation 1,980,000 

School superintendents 21 ,000 

Sites for school-houses and asylums 3,000,000 

Telegraphing 18,000 

Making; in all the sum which I have mentioned. The old 
system under this law, that was before the commissioner when he 
made this estimate, requires an expenditure to carry on its opera- 
tions of nearly twelve million dollars, and that to protect, as it is 
called, and to govern four millions of the people of the United 
States — within a few millions of the entire cost of the Government 
under Mr. Adams's administration, when the population of the 
States had gone up to many millions. How is it that a depart- 
ment that has but a partial jurisdiction over the people shall cost 
almost as much for the management of four million people as it 
cost to manage the whole Government, for its army, its navy, its 
legislative and judicial departments, in former years ? My 
learned friend from Kentucky suggests that the expenses under 
John Quincy Adams's administration were about thirteen million 
dollars. What was the population of the United States at that 
time I am not prepared to state, but it was far above four mill- 
ions. Now, to manage four million people is to cost the people 
of the United States, under the law as it stands, nearly as much 
as it cost the people to manage the whole affairs of the Govern- 
ment under the administration of Mr. John Quincy Adams. 

" I hear Senators speak very frequently of the necessity of 
economy and retrenchment. Is this a specimen, increasing the 
number of officers almost without limit, and increasing the ex- 
penditures? I think one might be safe in saying that, if this 
bill passes, we can not expect to get through a year with less 
than §20,000,000 of an expenditure for this bureau. But that 
is a mere opinion ; for no man can tell until we have the number 
of officers that are to be appointed under the bill prescribed in 
the bill itself, and this section leaves the largest discretion to the 
bureau in the appointment of officers. I appeal to Senators to 
know whether, at this time, when we ought to adopt a system of 



112 THE THIRTY-NINTH CONGRESS. 

retrenchment and reform, they are willing to pass a bill which 
will so largely increase the public expenditures. 

" Then, sir, when this army of officers has been organized, the 
bill provides : ' And the President of the United States, through 
the War Department and the commissioner, shall extend mili- 
tary jurisdiction and protection over all employes, agents, and 
officers of this bureau/ 

" Will some Senator be good enough to tell me what that 
means? If Indiana be declared a State within which are found 
refugees and freedmen, who have escaped from the Southern 
States, and if Indiana has a commissioner appointed to her, and 
if in each county of Indiana there be a sub-commissioner at a 
salary of $1,500 a year, with two clerks with a salary of §1,200 
each, and then the War Department throws over this little army 
of office-holders in the State of Indiana its protection, what does 
that mean ? The people of Indiana have been ground hard under 
military authority and power within the last three or four years, 
but it was borne because it was hoped that when the war would 
be closed the military power would be withdrawn from the State. 
Under this bill it may be established permanently upon the peo- 
ple by a body of men protected by the military power of the 
Government. An officer is appointed to the State of Indiana to 
regulate the contracts which are made between the white people 
and the colored people of that State, and because he holds this 
office, not military in its character, involving no military act 
whatever, the military throws over, him its iron shield of protec- 
tion. What does that mean? Tf this officer shall do a great 
wrong and outrage to one of the people, and the wronged citizen 
appeals to the court for his redress and brings his suit for dam- 
ages, does the protecting shield of the War Department prevent 
the prosecution of that suit and the recovery of a judgment? 
What is the protection that is thrown over this army of office- 
holders? Let it be explained. 

" It may be said that this is a part of the military department. 
That will depend not so much upon what Ave call them in the 
law as what are the duties imposed upon these sub-agents. It is 
a little difficult to tell. They are to protect the freedmen; they 
are to protect refugees; they are to buy asylums and school- 
houses ; they are to establish schools ; they are to see to the con- 
tracts that are made between white men and colored men. I 



THE EBEEEMEJV. 113 

want to know of the chairman of the committee that reported this 
bill, in Avhat respect these duties are military in their character? 
I can understand one thing, that it may be regarded as a war 
upon the liberties of the people, but I am not able to see in what 
respect the duties of these officers otherwise are military. But 
this protection is to be thrown over them. I will not occupy 
longer time upon that subject. 

" The third section of the bill changes the letter of the law in 
two respects : first, ' That the Secretary of War may direct such 
issues of provisions, clothing, fuel, and other supplies, including 
medical stores and transportation/ etc. Those last words, ' med- 
ical stores and transportation,' make the change in the law that 
is proposed in this bill. But, sir, in point of fact it makes no 
change in the law; for if you will turn to the report of the com- 
missioner of this bureau, it will be found that the bureau, during 
the past six months, has been furnishing medical supplies and 
transportation. A very large item in the expenditures estimated 
for is . transportation. But I wish to ask of the Senator who 
framed this bill why we shall now provide for the transportation 
of freedmen and refugees. During the war, a very large number 
of refugees came from the Southern States into the North ; but 
the Commissioner of the Freedinen's Bureau, in his report, says 
that those refugees have mainly returned, and but few remain 
now to be carried back from the North to the South, or who de- 
sire to be. Then why do we provide in this bill for transporta- 
tion? Is it simply to give the bureau the power to transport 
refugees and freedmen from one locality to another at its pleas- 
ure ? The necessity of carrying them from one section of the 
country to another has passed away. Is it intended by this bill 
that the bureau shall expend the people's money in carrying the 
colored people from one locality in a Southern State to another 
locality? I ask the Senator from Illinois, when he comes to ex- 
plain his bill, to tell us just what is the force and purpose of this 
provision. 

"The fourth resolution, as amended, provides for the setting 
apart of three million acres of the public lands in the States of 
Florida, Mississippi, and Arkansas for homes for the colored 
people. I believe that is the only provision of the bill in which 
I concur. I concur in what was said by some Senator yesterday, 
that it is desirable, if we ever expect to do any thing substantially 



114 THE THIRTY-NINTH CONGRESS. 

for the colored people, to encourage them to obtain homes, and I 
am willing to vote for a reasonable appropriation of the public 
lands for that purpose. I shall not, therefore, occupy time in dis- 
cussing that section. 

"The fifth section, as amended by the proposition before the 
Senate, proposes to confirm the possessory right of the colored 
people upon these lands for three years from the date of that 
order, or about two years from this time. I like the amendment 
better than the original bill; for the original bill left it entirely 
uncertain what was confirmed, and of course it is better that we 
should say one year, or three years, or ten years, than to leave it 
entirely indefinite for what period we do confirm the possession. 
I have no doubt that General Sherman had the power, as a mili- 
tary commander, at the time, to set apart the abandoned lands 
along the coast as a place in which to leave the colored people 
then surrounding his army ; but that General Sherman during the 
war, or that Congress after the war, except by a proceeding for 
confiscation, can take the land permanently from one person and 
give it to another, I do not admit; nor did General Sherman 
undertake to do that. In express terms, he said that they should 
have the right of possession ; for what length of time he did not 
say, for the reason that he could not say. It was a military pos- 
session that he conferred, and that possession would last only dur- 
ing the continuance of the military occupation, and no longer. If 
General Sherman, by his General Order No. 15, placed the colored 
people upon the lands along the coast of South Carolina, Georgia, 
and Florida, for a temporary purpose, what was the extent of the 
possessory right which he could confer? He did not undertake to 
give a title for any defined period, but simply the right of posses- 
sion. It is fair to construe his order as meaning only what he 
could do, giving the right of possession during military occupancy. 
Now, sir, the President informs us that the rebellion is suppressed ; 
that the war is over ; that military law no longer governs in that 
country ; but that peace is restored, and that civil law shall now 
govern. What, then, is the law upon the subject? A right of 
possession is given by the commanding general to certain persons 
within that region of country; peace follows, and with peace 
comes back the right of the real owners to the possession. This 
possession that the General undertook to give, according to law, 
could not last longer than the military occupancy. When peace 



THE FREEDMEN. 115 

comes, the right of the owners return with it. Then how is it 
that Congress can undertake to say that the property that belongs 
to A, B ; and C, upon the islands and sea-coast of the South, shall, 
for two years from this date, not belong to them, but shall be- 
long to certain colored people? I want to know upon what 
principle of' law Congress can take the property of one man and 
give it to another. 

" I know very well what may be done in the courts by a pro- 
ceeding for confiscation. I am not discussing that question. If 
there has been any property confiscated and disposed of under 
proceedings of confiscation, I do not question the title here. That 
is purely a judicial question. But, sir, I deny that Congress can 
legislate the property of one man into the possession of another. 
If this section is to pass, I prefer that this confirmation shall be 
for three years rather than leave it in the uncertain state in which 
General Sherman's order left it. 

"The sixth section provides, 'That the commissioners shall, 
under the direction of the President, procure in the name of the 
United States, by grant or purchase, such lands within the 
districts aforesaid as may be required for refugees and freedmen 
dependent on the Government for support ; and he shall provide, 
or cause to be erected, suitable buildings for asylums and schools.' 
Upon what principle can you authorize the Government of the 
United States to buy lands for the poor people in any State of 
the Union? They may be very meritorious; their cases may 
appeal with great force to our sympathies ; it may almost appear 
necessary to prevent suffering that we should buy a home for 
each poor person in the country; but where is the power of the 
General Government to do this thing? Is it true that by this 
revolution the persons and property of the people have been 
brought within the jurisdiction of Congress, and taken from 
without the control and jurisdiction of the States? I have under- 
stood heretofore that it has never been disputed that the duty to 
provide for the poor, the insane, the blind, and all who are de- 
pendent upon society, rests upon the States, and that the power 
does not belong to the General Government. What has occurred, 
then, in this war that has changed the relation of the people to 
the General Government to so great an extent that Congress may 
become the purchasers of homes for them ? If we can go so far, 
I know of no limit to the powers of Congress. Here is a propo- 



116 THE THIRTY-NINTH CONGRESS. 

sition to buy a home for each dependent freeman and refugee. 
The section is not quite as strong as it might have been. It 
would have been stronger, I think, in the present state of public 
sentiment, if the word * refugee ' had been left out, and if it had 
been only for the freedmen, because it does not seem to be so pop- 
ular now to buy a home for a white man as to buy one for a colored 
man. But this bill authorizes the officers of the Freednien's 
Bureau to buy homes for white people and for black people only 
upon the ground that they are dependent. If this be the law 
now, there has come about a startling change in the relation of 
the States and of the people to the General Government. I shall 
be very happy to hear from the learned head of the Judiciary 
Committee upon what principle it is that in any one single case 
you may buy a home for any man, whether he be rich or poor. 
The General Government may buy land when it is necessary for 
the exercise of any of its powers ; but outside of that, it seems to 
me, there is no power within the Constitution allowing it. 

" The most remarkable sections of the bill, however; are the 
seventh and eighth, and to those sections I will ask the very 
careful attention of Senators ; for I think if we can pass those 
two sections, and make them a law, then indeed this Government 
can do any thing. It will be useless to speak any longer of 
limitations upon the powers of the General Government ; it will 
be idle to speak of the reserved power of the States ; State rights 
and State power will have passed away if we can do what is 
proposed in the seventh and eighth sections of this bill. We 
propose, first, to legislate against the effects of ' local law, ordi- 
nance, police, or other regulation;' then against l custom/ and 
lastly, against 'prejudice,' and to provide that 'if any of the civil 
rights or immunities belonging to white persons' are denied to 
any person because of color, then that person shall be taken un- 
der the military protection of the Government. I do not know 
whether that will be understood to extend to Indiana or not. 
That will be a very nice point for the bureau to decide, I pre- 
sume, after the enactment of the law. The section limits its 
operation to 'any State or district in which the ordinary course 
of judicial proceedings has been interrupted by the rebellion.' It 
will be a little difficult to say whether in the State of Indiana 
and Ohio the ordinary course of judicial proceeding has or has 
not been interrupted. We had some war in Indiana ; we had a 



THE FREEDMEN. 117 

very great raid through that State and some fighting; and I 
presume that in some cases the proceedings of the courts were 
interrupted and the courts were unable to go on with their busi- 
ness, so that it might be said that even in some of the Northern 
States this provision of the bill would be applicable. Suppose 
that it were applicable to the State of Indiana, then every man in 
that State, who attempted to execute the constitution and laws 
of the State, would be liable for a violation of the law. We do 
not allow to colored people there many civil rights and immuni- 
ties which are enjoyed by the white people. It became the policy 
of the State in 1852 to prohibit the immigration of colored people 
into .that State. I am not going to discuss the question whether 
that was a wise policy or not. At the time it received the ap- 
proval of my judgment. Under that constitutional provision, 
and the laws enacted in pursuance of it, a colored man coming 
into the State since 1852 can not acquire a title to real estate, 
can not make certain contracts, and no negro man is allowed to 
intermarry with a white woman. These are civil rights that are 
denied, and yet this bill proposes, if they are still denied in any 
State whose courts have been interrupted by the rebellion, the 
military protection of the Government shall be extended over 
the person who is thus denied such civil rights or immunities. 

" The next section of the bill provides punishments where any 
of these things are done, where any right is denied to a colored 
man which under State law is allowed to a white man. The 
language is very vague, and it is very difficult to say what this 
section will mean. If it has as broad a construction as is at- 
tempted to be given to the second section of the constitutional 
amendment, I would not undertake to guess what it means. 
Any man who shall deny to any colored man any civil rights 
secured to white persons, shall be liable to be taken before the 
officers of this bureau and to be punished according to the pro- 
visions of this section. In the first place, now that peace is 
restored, now that there is no war, now that men are no longer 
under military rule, but are under civil rule, I want to know 
how such a court can be organized; how it is that the citizen 
may be arrested without indictment, and may be brought before 
the officers of this bureau and tried without a jury, tried with- 
out the forms which the Constitution requires. 

"But sir, this section is most objectionable in regard to the 



118 THE THIRTY-NINTH CONGRESS. 

offense that it defines. If any portion of the law ought to be 
certain, it is that which defines crime and prescribes the punish- 
ment. What is meant by this general expression, 'the depriva- 
tion of any civil right secured to white persons ? ' The agent in 
one State may construe it to mean one thing, and the agent in 
another State another thing. It is broad and comprehensive — 
'the deprivation of any civil right secured to white persons.' 
That act of deprivation is the crime that is to be punished. Take 
the case that I have just referred to. Suppose a minister, when 
called upon, should refuse to solemnize a marriage between a 
colored man and a white woman because the law of. the State 
forbade it, would he then, refusing to recognize a civil right 
which is enjoyed by white persons, be liable to this punisment? 

"My judgment is that, under the second section of the consti- 
tutional amendment, we may pass such a law as will secure the 
freedom declared in the first section, but that we can not go be- 
yond that limitation. If a man has been, by this provision of 
the Constitution, made free from his master, and that master 
undertakes to make him a slave again, we may pass such laws 
as are sufficient in our judgment to prevent that act; but if the 
Legislature of the State denies to the citizen as he is now called, 
the freedman, equal privileges with the white man, I want to 
know if that Legislature, and each member of that Legislature, is 
responsible to the penalties prescribed in this bill ? It is not an 
act of the old master ; it is an act of the State government, which 
defines and regulates the civil rights of the people. 

"I regard it as very dangerous legislation. It proposes to 
establish a government within a government — not a republic 
within a republic, but a cruel despotism within a republic. In 
times of peace, in communities that are quiet and orderly, and 
obedient to law, it is proposed to establish a government not 
responsible to the people, the officers of which are not selected 
by the people, the officers of which need not be of the people 
governed — a government more cruel, more despotic, more 'danger- 
ous to the liberties of the people than that against which our 
forefathers fought in the Revolution. There is nothing that these 
men may not do, under this bill, to oppress the people. 

"Sir, if we establish courts in the Southern States, we ought 
to establish courts that will be on both sides, or on neither side ; 
but the doctrine now is, that if a man is appointed, either to an 



THE FREEDMEN. 119 

executive or a judicial office, in any locality where there arc 
colored people, he must be on the side of the negro. I have not 
heard, since Congress met, that any colored man has done a 
wrong in this country for many years ; and I have scarcely heard 
that any white man coming in contact with colored people lias 
done right for a number of years. Every body is expected to 
take sides for the colored man against the white man. If I have 
to take sides, it will be with the men of my own color and my 
own race; but I do not wish to do that. Toward these people 
I hope that the legislation of Congress, within the constitutional 
powers of Congress, will be just and fair — just to them and just 
to the white people among whom they live ; that it will promote 
harmony among the people, and not discord ; that it will restore 
labor to its channels, and bring about again in those States a 
condition of prosperity and happiness. Do we not all desire 
that ? If avc do, is it well for us to inflame our passions and the 
passions of the people of the North, so that their judgments shall 
not be equal upon the questions between these races? It is all 
Very well for us to have sympathy for the poor and the unfor- 
tunate, but both sides call for our sympathy in the South. The 
master, who, by his wickedness and folly, has involved himself 
in the troubles that now beset him, has returned, abandoning his 
rebellion, and has bent down upon his humble knees and asked 
the forgiveness of the Government, and to be restored again as 
a citizen. ■ Can a man go further than that ? He has been in 
many cases pardoned by the Executive. He stands again as a 
citizen of the country. 

"What relation do we desire that the people of the North 
shall sustain toward these people of the South — one of harmony 
and accord, or of strife and ill will? Do we want to restore 
commerce and trade with them, that we shall prosper thereby as 
well as they, or do we wish permanent strife and division? I 
want this to be a Union in form, under the Constitution of the 
United States, and, in fact, by the harmony of the people of 
the North and of the South. I believe, as -General Grant says, 
that this bureau, especially with the enlarged powers that we 
propose to confer upon it, will not be an instrument of concord 
and harmony, but will be one of discord and strife in that sec- 
tion of the country. It can not do good, but, in my judgment, 
will do much harm." 



120 THE THIRTY-NINTH CONGRESS. 

Following immediately upon the close of the above argument, 
Mr. Trumbull thus addressed the senate : " Mr. President, I feel 
it incumbent on me to reply to some of the arguments presented 
by the Senator from Indiana against this bill. Many of the 
positions he has assumed will be found, upon examination, to 
have no foundation in fact. He has argued against provisions- 
not contained in the bill, and he has argued also as if he were 
entirely forgetful of the condition of the country and of the 
great war through which we have passed. 

" Now, sir, what was the object of the Freedmen's Bureau, and 
why was it established? It was established to look after a large 
class of people who, as the results of the war, had been thrown 
upon the hands of the Government, and must have perished but 
for its fostering care and protection. Does the Senator mean to 
deny the power of this Government to protect people under such 
circumstances? The Senator must often have voted for appropri- 
ations to protect other classes of people under like circumstances. 
Whenever, in the history of the Government, there has beer, 
thrown upon it a helpless population, which must starve and die 
but for its care, the Government has never failed to provide for 
them. At this very session, within the last thirty days, both 
houses of Congress have voted half a million dollars to feed and 
clothe people during the present winter. Who were they ? Many 
of them were Indians who had joined the rebellion, and had slain 
loyal people of the country. Yes, sir, we appropriated money to 
feed Indians who had been fighting against us. We did not hear 
the Senator's voice in opposition to that appropriation. What 
were the facts? It was stated by our Indian agents that the In- 
dian tribes west of Arkansas, a part of whom had joined the rebel 
armies and some the Union armies, had been driven from their 
country; that their property had been destroyed; and now, the 
conflict of arms having ceased, they had nothing to live upon dur- 
ing the winter ; that they would encroach upon the white settle- 
ments ; that unless provision was made for them, they would rob, 
plunder, and murder the inhabitants nearest them ; and Congress 
was called upon to appropriate money to buy them food and 
clothing, and we did it. We did it for rebels and traitors. Were 
we not bound to do it ? 

Now, sir, we have thrown upon us four million people who 
have toiled all their lives for others; who, unlike the Indians, 



TEE FREEBMEN. mi 

had no properly at the beginning of the rebellion; who were 
never permitted to own any thing, never permitted to eat the 
bread their own hands had earned ; many of whom are without 
support, in the midst of a prejudiced and hostile population who 
have been struggling to overthrow the Government. These four 
million people, made free by the acts of war and the constitu- 
tional amendment, have been, wherever they could, loyal and 
true to the Union ; and the Senator seriously asks, What author- 
ity have we to appropriate money to take care of them ? What 
would he do»with them? Would he allow them to starve and 
die? AYould he turn them over to the mercy of the men who, 
through their whole lives, have had their earnings, to be en- 
slaved again? It is not the first time that money has been ajjpro- 
priated to take care of the destitute and suffering African. For 
years it has been the law that whenever persons of African de- 
scent were brought to our shores with the intention of reducing 
them to slavery, the Government should, if possible, rescue and 
restore them to their native land ; and we have appropriated hun- 
dreds of thousands of dollars for this object. Can any body deny 
the right to do it? Sir, humanity as well as the constitutional 
obligation to suppress the slave trade required it. So now the 
people relieved by our act from the control of masters who sup- 
plied their wants that they might have their services, have a right 
to rely upon us for assistance till they can have time to provide 
for themselves. 

" This Freedmen's Bureau is not intended as a permanent in- 
stitution; it is only designed to aid these helpless, ignorant, and 
unprotected people until they can provide for and take care of 
themselves. The authority to do this, so far as legislative sanc- 
tion can give it, is to be found in the action of a previous Congress 
which established the bureau ; but, if it were a new question, the 
authority for establishing such a bureau, in my judgment, is given 
by the Constitution itself; and as the Senator's whole argument 
goes upon the idea of peace, and that all the consequences of the 
war have ceased, I shall be pardoned, I trust, if I refer to those 
provisions of the Constitution which, in my judgment, authorize 
the exercise of this military jurisdiction ; for this bureau is a part 
of the military establishment not simply during the conflict of 
arms, but until peace shall be firmly established and the civil tri- 



122 THE THIRTY-NINTH CONGRESS. 

bunals of the country shall be restored with an assurance that they 
may peacefully enforce the laws without opposition. 

"The Constitution of the United States declares that Congress 
shall have authority 'to declare war and make rules concerning 
captures on land and water/ Ho raise and support armies/ 'to 
provide and maintain a navy/ 'to make rules for the govern- 
ment and regulation of the land and naval forces/ 'to provide 
for calling forth the militia to execute the laws of the Union, 
suppress insurrection, and repel invasion/ and 'to make all laws 
which shall be necessary and proper for carrying into execution 
the foregoing powers.' It also declares that 'the citizens of each 
State shall be entitled to all the privileges and immunities of 
citizens in the several States/ and that 'the United States shall 
guarantee to every State in the Union a republican form of gov- 
ernment.' Under the exercise of these powers, the Government 
has gone through a four years' conflict. It has succeeded in put- 
ting down armed resistance to its authority. But did the mili- 
tary power which was exercised to put down this armed resistance 
cease the moment the rebel armies were dispersed? Has the 
Government no authority to bring to punishment the authors 
of this rebellion after the conflict of arms has ceased ? no author- 
ity to hold as prisoners, if necessary, all who have been captured 
with arms in their hands? Can it be that, the moment the rebel 
armies are dispersed, the military authority ceases, and they are 
to be turned loose to arm and organize again for another conflict 
against the Union ? Why, sir, it would not be more preposterous 
on the part of the traveler, after having, at the peril of his life, 
succeeded in disarming a highwayman by whom he was assailed, 
to immediately turn round and restore to the robber his weapons 
with which to make a new assault. 

" And yet this is what some gentlemen would have this nation 
do with the worse than robbers who have assailed its life. They 
propose, the rebel armies being overcome, that the rebels them- 
selves shall be instantly clothed with all the authority they pos- 
sessed before the conflict, and that the inhabitants of States who 
for more than four years have carried on an organized war against 
the Government shall at once be invested with all the powers they 
had at its commencement to organize and begin it anew; nay, 
more, they insist that, without any action of the Government, it 
is the right of the inhabitants of the rebellious States, on laying 



THE FREEDMEM. 123 

down their arms, to resume their former positions in the Union, 
with all the rights they possessed when they began the war. If 
such are the consequences of this struggle, it is the first conflict 
in the history of the world, between either individuals or nations, 
from which such results have followed. What man, after being 
despoiled of much of his substance, his children slain, his own life 
periled, and his body bleeding from many wounds, ever restored 
the authors of such calamities, when within his power, to the 
rights they possessed before the conflict without taking some se- 
curity for the future. 

" Sir, the war powers of the Government do not cease with the 
dispersion of the rebel armies; they are to be continued and 
exercised until the civil authority of the Government can be es- 
tablished firmly and upon a sure foundation, not again to be dis- 
turbed or interfered with. And such, sir, is the understanding 
of the Government. None of the departments of the Govern- 
ment understand that its military authority has ceased to operate 
over the rel ellious States. It is but a short time since the Pres- 
ident of the United States issued a proclamation restoring the 
privilege of the writ of habeas corpus in the loyal States ; but 
did he restore it in the rebellious States'? Certainly not. What 
authority has he to suspend the privilege of that writ anywhere, 
except in pursuance of the constitutional provision allowing the 
writ to be suspended ' when in cases of rebellion or invasion the 
public safety may require it*?' Then the President understands 
that the public safety in the insurrectionary States still requires 
its suspension. 

"The Attorney-General, when asked, a few. days ago, why Jef- 
ferson Davis was not put upon trial, told you that, 'though act- 
ive hostilities have ceased, a state of war still exists over the 
territory in rebellion/ so that it could not be properly done. 
General Grant, in an order issued within a few days — which I 
commend to the especial consideration of the Senator from Indi- 
ana, for it contains many of the provisions of the bill under 
consideration — an order issued with the approbation of the Ex- 
ecutive, for such an order, I apprehend, could not have been 
issued without his approbation — directs 'military division and 
department commanders, whose commands embrace or are com- 
posed of any of the late rebellious States, and who have not 
already done so, will at once issue and enforce orders protecting 



124 THE THIRTY-NINTH CONGRESS. 

from prosecution or suits in the State, or municipal courts of 
such State, all officers and soldiers of the armies of the United 
States, and all persons thereto attached, or in anywise thereto 
belonging, subject to military authority, charged with offenses 
for acts clone in their military capacity, or pursuant to orders 
from proper military authority; and to protect from suit or 
prosecution all loyal citizens or persons charged with offenses 
done against the rebel forces, directly or indirectly, during the 
existence of the rebellion; and all persons, their agents and em- 
ployes, charged with the occupancy of abandoned lands or plan- 
tations, or the possession or custody of any kind of property 
whatever, who occupied, used, possessed, or controlled the same, 
pursuant to the order of the President, or any of the civil or 
military departments of the Government, and to protect them 
from any penalties or damages that may have been or may be 
pronounced or adjudged in said courts in any of such cases ; and 
also protecting colored persons from prosecutions, in any of said 
States, charged with offenses for which white persons are not 
prosecuted or punished in the same manner and degree. 5 " 

Mr. Saulsbury having asked whether the Senator believed that 
General Grant or the President had any constitutional authority 
to make such an order as that, Mr. Trumbull replied : " I am 
very glad the Senator from Delaware has asked the question. I 
answer, he had most ample and complete authority. I indorse 
the order and every word of it. It would be monstrous if the 
officers and soldiers of the army and loyal citizens were to be 
subjected to suits and prosecutions for acts done in saving the 
republic, and that, too, at the hands of the very men who sought 
its destruction. Why, had not the Lieutenant-General author- 
ity to issue the order? Have not the civil tribunals in al] 
the region of country to which order applies been expelled by 
armed rebels and traitors? Has not the power of the Govern- 
ment been overthrown there? Is it yet reestablished? Some 
steps have been taken toward reestablishing it under the author- 
ity of the military, and in no other way. If any of the State 
governments recently set up in the rebellious States were to un- 
dertake to embarrass military operations, I have no doubt they 
would at once be set aside by order of the Lieutenant-General, 
in pursuance of directions from the Executive. These govern- 
ments which have been set up act by permission of the mili- 



THE FBEEBMEK. 125 

tary. They are made use of, to some extent, to preserve peace 
and order and enforce civil rights between parties; and, so far 
as they act in harmony with the Constitution and laws of the 
United States and the orders of the military commanders, they 
are permitted to exercise authority; but until those States shall 
be restored in all their constitutional relations to the Union, 
they ought not to be permitted to exercise authority in any other 
way. 

" I desire the Senator from Indiana to understand that it is un- 
der this war power that the authority of the Freedmen's Bureau 
is to be exercised. I do not claim that its officers can try persons 
for offenses without juries in States where the civil tribunals have 
not been interrupted by the rebellion. The Senator from Indiana 
argues against this bill as if it was applicable to that State. Some 
of its provisions are, but most of them are not, unless^the State 
of Indiana has been in rebellion against the Government; and I 
know too many of the brave men who have gone from that State 
to mantain the integrity of the Union and put down the rebellion 
to cast any such imputation upon her. She is a loyal and a patri- 
otic State ; her civil government has never been usurped or over- 
thrown by trators, and the provisions of the seventh and eighth 
sections of the bill to which the Senator alludes can not, by their 
very terms, have any application to the State of Indiana. Let me 
read the concluding sentence of the eighth section : 

" 'The jurisdiction conferred by this section on the officers and agents of 
this bureau to cease and determine whenever the discrimination on account 
of which it is conferred ceases, and in no event to be exercised in any State 
in which the ordinary course of judicial proceedings has not been inter- 
rupted by the rebellion, nor in any such State after said State shall have 
been fully restored in all its constitutional relations to the United States, and 
the courts of the State and of the United States within the same are not dis- 
turbed or stopped in the peaceable course of justice.' 

" Will the Senator from Indiana admit for a moment that the 
courts in his State are now disturbed or stopped in the peaceable 
course of justice ? If they were ever so disturbed, they are not 
now. Will the Senator admit that the State of Indiana does not 
have and exercise all its constitutional rights as one of the States 
of this Union? The judicial authority conferred by this bill ap- 
plies to no State, not even to South Carolina, after it shall have 
been restored in all its constitutional rights. 



126 THE THIRTY-NINTH CONGRESS. 

"There is no provision in the bill for the exercise of judicial 
authority except in the eighth section. Rights are declared in 
the seventh, but the mode of protecting them is provided in the 
eighth section, and the eighth section then declares explicitly that 
the jurisdiction that is conferred shall be exercised only in States 
which do not possess full constitutional rights as parts of the 
Union. Indiana has at all times had all the constitutional rights 
pertaining to any State, has them now, and therefore the officers 
and agents of this bureau can take no jurisdiction of any case in 
the State of Indiana. It will be another question, which I will 
answer, and may as well answer now, perhaps, as to what is meant 
by ' military protection.' 

• " The second section declares that ' the President of the United 
States, through the War Department and the commissioner, shall 
extend railitary jurisdiction and protection over all employes, 
agents, and officers of this bureau.' He wants to know the effect 
of that in Indiana. This bureau is a part of the military estab- 
lishment. The effect of that in Indiana is precisely the same as 
in every other State, and under it the officers and agents of the 
Freedmen's Bureau will occivpy the same position as do the offi- 
cers and soldiers of the United States Army. What is that? 
While they are subject to the Rules and Articles of War, if they 
chance to be in Indiana and violate her laws, they are held amen- 
able the same as any other person. The officer or soldier in the 
State of Indiana who commits a murder or other offense upon a 
citizen of Indiana, is liable to be indicted, tried, and punished, 
just as if he were a civilian. When the sheriff goes w T ith the 
process to arrest the soldier or officer who has committed the of- 
fense, the military authorities surrender him up to be tried and 
punished according to the laws of the State. It has always been 
done, unless in time of war when the courts were interrupted. 
The jurisdiction and ' protection' that is extended over these offi- 
cers and agents is for the purpose of making them subject to the 
Rules and Articles of War. It is necessary for this reason : in 
the rebellious States civil authority is not yet fully restored. 
There would be no other way of punishing them, of holding them 
to accountability, of governing and controlling them, in many 
portions of the country ; and it is because of the condition of the 
rebellious States, and their still being under military authority, 



r THE FREEDMEN. 127 

that it is necessary to put these officers and agents of the Freed- 
men's Bureau under the control of the military power. 

"The Senator says the original law only embraced within its 
provisions the refugees in the rebellious States; and now this'bill 
is extended to all the States, and he wants to know the reason. I 
will tell him. When the original bill was passed, slavery existed 
in Tennessee, Kentucky, Delaware, and in various other States. 
Since that time, by the constitutional amendment, it has been 
every- where abolished." 

.Mr. Saulsbury, aroused by the mention of his own State, inter- 
rupted the speaker: "I say, as one of the representatives of Dela- 
ware on this floor, that she had the proud and noble character of 
being the first to enter the Federal Union under a Constitution 
formed by equals. She has been the very lasl to obey a mandate, 
legislative or executive, for abo^shing Blavery. She has been the 
last slaveholding Stale, thank God, in America, and I am one of 
the last slaveholders in Ajnerica." 

Mr. Trumbull continued: " Well, Mr. President, I do not see 
particularly whal the declaration of the Senator from Delaware 
has to do with the question I am discussing. His State may 
have been the last to become free, but I presume that the State 
of Delaware, old as she is, being the first to adopt the Constitu- 
tion, and noble as she is, will submit to the Constitution of the 
United States, which declares that there shall be no slavery within 
its jurisdiction." [Applause in the galleries.] 

"It is necessary, Mr. President, to extend the Freedmen's 
Bureau beyond the rebel States in order to take in the State of 
Delaware, [laughter,] the loyal State of Delaware, I am happy 
to say, which did not engage in this wicked rebellion; and it is 
-^ary to protect the freedmen in that State as well as else- 
where; and that is the reason for extending the Freedmen's 
Bureau beyond the limits of the rebellious States. 

"Now, the Senator from Indiana says it extends all over the 
United States. Well, by its terms it does, though practically it 
can have little if any operation outside of the late slaveholding 
States. If freedmen should congregate in large numbers at Cairo, 
Illinois, or at Evansville, Indiana, and become a charge upon the 
people of those States, the Freedmen's Bureau would have a right 
to extend its jurisdiction over them, provide for their wants, secure 
for them employment, and place them in situations where they 



128 THE THIRTY-NINTH CONGRESS. 

could provide for themselves ; and would the State of Illinois or 
the State of Indiana object to that ? The provisions of the bill 
which would interfere with the laws of Indiana can have no oper- 
ation there. 

"Again, the Senator objects very much to the expense of this 
bureau. Why, sir, as I have once or twice before said, it is a 
part of the military establishment. I believe nearly all its officers 
at the present time are military officers, and by the provisions of 
the pending bill they are to receive no additional compensation 
when performing duties in the Freedmen's Bureau. The bill 
declares that the ' bureau may, in the discretion of the President, 
be placed under a commissioner and assistant commissioners, to 
be detailed from the army, in which event each officer so assigned 
to duty shall serve without increase of pay or allowances.' 

"I shall necessarily, Mr. President, in following the Senator 
from Indiana, speak somewhat in a desultory manner; but I 
prefer to do so because I would rather meet the objections made 
directly than by any general speech. I will, therefore, take up 
his next objection, which is to the fifth section of the bill. That 
section proposes to confirm for three years the possessory titles 
granted by General Sherman. The Senator from Indiana admits 
that General Sherman had authority, when at the head of the 
army at Savannah, and these people were flocking around him 
and dependent upon him for support, to put them upon the aban- 
doned lands; but he says that authority to put them there and 
maintain them there ceased with peace. Well, sir, a sufficient 
answer to that would be that peace has not yet come; the effects 
of war are not yet ended ; the people of the States of South Caro- 
lina, Georgia, and Florida, where these lands are situated, are yet 
subject to military control. But I deny that if peace had come the 
authority of the Government to protect these people in their posses- 
sions would cease the moment it was declared. What are the facts ? 
The owners of these plantations had abandoned them and entered 
the rebel army. They were contending against the army which 
General Sherman then commanded. Numerous colored people 
had flocked around General Sherman's army. It was necessary 
that he should supply them to save them from starvation. His 
commissariat was short. Here was this abandoned country, owned 
by men arrayed in arms against the Government. He, it is 
admitted, had authority to put these followers of his army upon 



THE FREEDMEJf. 129 

these lands, and authorize them to go to work and gain a subsist- 
ence if they could. They went on the lands to the number of 
forty or fifty thousand, commenced work, have made improve- 
ments ; and now will the Senator from Indiana tell me that upon 
any principle of justice, humanity, or law, if peace had come 
when these laborers had a crop half gathered, the Government 
of the United States, having rightfully placed them in posses- 
sion, and pledged its faith to protect them there for an uncertain 
period, could immediately have turned them off and put in pos- 
session those traitor owners who had abandoned their homes to 
fight against the Government? 

"The Government having placed these people rightfully upon 
these lands, and they having expended their labor upon them, 
they had a right to be protected in their possessions, for some 
length of time after peace, on the principle of equity. That is all 
we propose to do by this bill. The committee thought it would 
not be more than a reasonable protection to allow them to remain 
for three years, they having been put upon these lands destitute, 
without any implements of husbandry, without cattle, horses, or 
any thing else with which to cultivate the land, and having, up 
to the present time, been able to raise very little at the expense 
of great labor. Perhaps the Senator thinks they ought not to 
remain so long. I will not dispute whether they shall go off at 
the end of one year or two years. The committee propose two 
years more. The order was dated ;n January, 1865, and we pro- 
pose three years from that time, which will expire in January, 
1868, or about two years from this time. 

" On account of that provision of the bill, the Senator asks me 
the question whether the Government of the United States has 
the right, in a time of peace, to take property from one man and 
give it to another. I say no. Of course the Government of the 
United States has no authority, in a time of peace, by a legis- 
lative act, to say that the farm of the Senator from Indiana shall 
be given to the Senator from Ohio; I contend for no such prin- 
ciple. But following that up, the Senator wants to know by 
what authority you buy land or provide school-houses for these 
refugees. Have we not been providing school-houses for years ? 
Is there a session of Congress when acts are not passed giving 
away public lands for the benefit of schools ? But that does not 
come out of the Treasury, the Senator from Indiana will prob- 
9 



130 THE THIRTY-NINTH CONGRESS. 

ably answer. But how did you get the land to give away ? Did 
you not buy it of the Indians ? Are you not appropriating, every 
session of Congress, money by the million to extinguish the Indian 
title— money collected off his constituents and mine by taxation? 
We buy the land and then we give the land away for schools. 
Will the Senator tell me how that differs from giving the money? 
Does it make any difference whether we buy the land from the 
Indians and give it for the benefit of schools, or whether we buy 
it from some rebel and give— no, sir, use— it for the benefit of 
schools, with a view ultimately of selling it for at least its cost? 
I believe I would rather buy from the Indian ; but still, if the 
traitor is to be permitted to have a title, we will buy it from him 
if we can purchase cheaper. 

" Sir, it is a matter of economy to do this. The cheapest way 
by which you can save this race from starvation and destruction 
is to educate them. They will then soon become self-sustaining. 
The report of the Freedmen's Bureau shows that to-day more 
than seventy thousand black children are being taught in the 
schools which have been established in the South. We shall not 
long have to support any of these blacks out of the public Treas- 
ury if we educate and furnish them land upon which they can 
make a living for themselves. This is a very different thing 
from taking the land of A and giving it to B by an act of Con- 
gress. 

"But the Senator is most alarmed at those sections of this bill 
which confer judicial authority upon the officers and agents of 
the Freedmen's Bureau. He says if this authority can be exer- 
cised there is an end to all the reserved rights of the States, and 
this Government may do any thing. Kot at all, sir. The author- 
ity, as I have already shown, to be exercised under the seventh 
and eighth sections, is a military authority, to be exerted only in 
regions of country where the civil tribunals are overthrown, and 
not there after they are restored. It is the same authority that 
we have been exercising all the time in the rebellious States ; it 
is the same authority by virtue of which General Grant issued 
the order which I have just read. Here is a perfect and complete 
answer to the objection that is made to the seventh and eighth 
sections. 

" But, says the Senator from Indiana, we have laws in Indiana 
prohibiting black people from marrying whites, and are you going 



THE FREEDMEjY. ]ji 

to disregard these laws? Am out laws enacted for the purpose 
of preventing a malgama tion to be disregarded, and is a man to 
be punished because he undertakes to enforce them? I beg the 
tor from Endiana to rlad the lull. One of its objects Is to 
secure the same ciyi] rights and subject to the same punishments 
p sons of all races and colors. How does this interfere with the 
law of Indiana preventing marriages between whites and black,? 
Al " n '" I "' ,, ' ^es treated alike by the law of Indiana? Does 
do1 the law make it just as much a crime for a white man to 
marry a black woman as for a black woman to marry a white 
man, and saf I presume there is no discrimination in 

this respect, and therefore your law forbidding marriages between 
whites and blacks operates alike on both races. This bill does 
""' interfere with it. If the .,,.,,,, ;, denied ,]„. rii; ht to marry 
a white person, the white person is equally denied the right to 
)llan '. v ln "' "'•-"'• I see no discrimination againsi either in this 
resped that does not apply to both. .Make the penalty the same 
"" : ' n ,!:; •" - of people for the same offense, and then no one 
complain. 

" My object in bringing forward these bills was to bring to the 

ltion "'" ' aething thai was practical, something 

"h"" wllir! ' ' hoped we all could agree. I havesaid nothing in 

bills which are pending, and which have been recommended 

by the Committee on the Judiciary— and I speak of both of them 
because they have both been alluded to in this discussion— about 
the political rights of the negro. On that subject it is known 
that there are differences of opinion, but I trust there are no 
differences of opinion among the friends of the constitutional 
amendment, among those who are for real freedom to the black 
man, as to his being entitled to equality in civil rights. If that 
is not going as far as some gentlemen would desire, I say to them 
it is a step in the right direction. Let us go that far, and, going 
that far, we have the cooperation of the Executive Department; 
for the President has told us 'Good faith requires the security 
of the freedmen in their liberty and their property, their right to 
labor, and their right to claim the just return of their labor.' 

"Such, sir, is the language of the President of the United 
States in his annual message; and who in this chamber that is 
in favor of the freedom of the slave is not in favor of giving him 
equal and exact justice before the law? Sir, we can go along 



13% THE THIRTY-NINTH CONGRESS. 

hand in hand together to the consummation of this great object 
of securing to every human being within the jurisdiction of the 
republic equal rights before the law, -and I preferred to seek 
for points of agreement between all tie departments of Govern- 
ment, rather than to hunt for points of divergence. I have not 
said any thing in my remarks about reconstruction. I have not 
attempted to discuss the question whether these States are in the 
Union or out of the Union, and so much has been said upon that 
subject that I am almost ready to exclaim with one of old, ' I 
know not whether they are in the body or out of the body ; God 
knoweth.' It is enough for me to know that the State organiza- 
tions in several States of the Union have been usurped and over- 
thrown, and that up to the present time no State organization- 
has been inaugurated in either of them which the various depart- 
ments of Government, or any department of the Government, has 
recognized as placing the States in full possession of all the con- 
stitutional rights pertaining to States in full communion with the 
Union. 

" The Executive has not recognized any one, for he still con- 
tinues to exercise military jurisdiction and to suspend the privilege 
of the writ of habeas corpus in all of them. Congress has not 
recognized any of them, as we all know ; and until Congress and 
the Executive do recognize them, let us make use of the Freed- 
men's Bureau, already established, to protect the colored race in 
their rights; and when these States shall be admitted, and the 
authority of the Freedmen's Bureau as a court shall cease and de- 
termine, as it must when civil authority is fully restored, let us 
provide, then, by other laws, for protecting all people in their equal 
civil rights before the law. If we can pass such measures, they 
receive executive sanction, and it shall be understood that it is the 
policy of the Government that the rights of the colored men are 
to be protected by the States if they will, but by the Federal Gov- 
ernment if they will not ; that at all hazards, and under all cir- 
cumstances, there shall be impartiality among all classes in civil 
rights throughout the land. If we can do this, much of the ap- 
prehension and anxiety now existing in the loyal States will be 
allayed, and a great obstacle to an early restoration of the insur- 
gent States to their constitutional relations in the Union will be 
removed. 

" If the people in the rebellious States can be made to under- 



THE FREEDMEN. 133 

stand that it is the fixed and determined policy of the Government 
that the colored people shall be protected in their civil rights, they 
themselves will adopt the necessary measures to protect them; and 
that will dispense with the Frcedmen's Bureau and all other Fed- 
eral legislation for their protection. The design of these bills is 
not, aa the Senator from Indiana would have us believe, to consol- 
idate all power in the Federal Government, or to interfere with 
the domestic regulations of any of the States, except so far as to 
• any out a constitutional provision which is the supreme law of 
the land. If the States will not do it, then it is incumbent on 
( 'undress to do it. But if the States will do it, then the Frced- 
men's Bureau will be removed, and the authority proposed to be 
given by the other bill will have no operation. 

"Sir, I trust there may be no oeeasion long to exercise the 
authority conferred by this bill. I hope that the people of the 
rebellious States themselves will conform to the existing condition 
of things. I do not expect them to change all their opinions and 
prejudices. J do uol expect them to rejoice that they have been 
discomfited. But they acknowledge that the war is over; they 
agree that they can no longer contend in arms against the Gov- 
ernment ; they say they are willing to submit to its authority; 
they say in their State conventions that slavery shall no more 
exist among them. With the abolition of slavery should go all 
the badges of servitude which have been enacted for its mainten- 
ance and support. Let them all be abolished. Let the peoj)le 
of the rebellious States now be as zealous and as active in the 
passage of laws and the inauguration of measures to elevate, de- 
velop, and improve the negro as they have hitherto been to en- 
slave and degrade him. Let them do justice and deal fairly with 
loyal Union men in their midst, and henceforth be themselves 
loyal, and this Congress will not have adjourned till the States 
whose inhabitants have been engaged in the rebellion will be re- 
stored to their former position in the Union, and we shall all be 
moving on in harmony together." 

On the day following the discussion above given, Mr. Cowan 
moved to amend the first section of the bill so that its operation 
would be limited to such States " as have lately been in rebellion." 
In supporting his amendment, Mr. Cowan remarked : " I have no 
idea of having this system extended over Pennsylvania. I think 
that as to the freedmen who make their appearance there, she will 



IS 4 TEE TEIETY-KIKTE CONGRESS. 

be able to take care of them and provide as well for them as any 
bureau which can be created here. I wish to confine the opera- 
tion of this institution to the States which have been lately in 
rebellion." 

To this Mr. Trumbull replied : " The Senator from Pennsyl- 
vania will see that the effect of that would be to exclude from 
the operation of the bureau the State of Kentucky and the State 
of Delaware, where the slaves have been emancipated by the con- 
stitutional amendment. The operation of the bureau will un- 
doubtedly be chiefly confined to the States where slavery existed ; 
but it is a fact which may not be known to the Senator from Penn- 
sylvania, that during this war large numbers of slaves have fled 
to the Northern States bordering on the slaveholding territory. 

"It is not supposed that the bill will have any effect in the 
State of Pennsylvania or in the State of Illinois, unless it might, 
perhaps, be at Cairo, where there has been a large number of these 
refugees congregated, without any means of support; they fol- 
lowed the army there at different times. 

"The provision of the bill in regard to holding courts, and 
some other provisions, are confined entirely to the rebellious States, 
and will have no operation in any State which was not in insur- 
rection against this Government. I make this explanation to the 
Senator from Pennsylvania, and I think he will see the necessity ' 
of the bureau going into Kentucky and some of the other States, 
as much as into any of the Southern rebellious States." 

Mr. Guthrie was opposed to the extension of the bill to his 
State. He said: "I should like to know the peculiar reasons 
why this bill is to be extended to the State of Kentucky. She has 
never been in rebellion. Though she has been overrun by rebel 
armies, and her fields laid waste, she has always had her full quota 
in the Union armies, and the blood of her sons has marked the 
fields whereon they have fought. Kentucky does not want and 
does not ask this relief. The freedmen in Kentucky are a part 
of our population ; and where the old, and lame, and halt, and 
blind, and infants require care and attention they obtain it from 
the counties. Our whole organization for the support of the 
poor, through the agencies of the magistrates in the several coun- 
ties, is complete." 

On the other hand, Mr. Creswell, of Maryland, saw a necessity 
for the operation of the bill in his State. He said : " I have re- 







y^^-^r, 



THE FREEDMEN. 135 

ceived, -within the last two or three weeks, letters from gentlemen 
of the highest respectability in my State, asserting that combina- 
tions of returned rebel soldiers have been formed for the express 
purpose of persecuting, beating most cruelly, and in some cases 
actually murdering the returned colored soldiers of the republic. 
In certain sections of my State, the civil law affords no remedy 
at all. It is impossible there to enforce against these people so 
violating the law the penalties which the law has prescribed for 
these offenses. It is, therefore, necessary, in my "opinion, that 
this bill shall extend over the State of Maryland." 

Mr. Cowan, in the course of a speech on the bill, said : " Thank 
God ! we are now rid of slavery ; that is now gone." He also 
said : " Let the friends of the negro, and I am one, be satisfied 
to treat him as he is treated in Pennsylvania; as he is treated in 
Ohio; as he is treated everv-wherc where people have maintained 
their sanity upon the question." 

Mr. Wilson said : " The Senator from Pennsylvania tells us 
that he is the friend of the negro. What, sir, he the friend of 
the negro! Why, sir, there has hardly been a proposition before 
the Senate of the United States for the last five years, looking to 
the emancipation of the negro and the protection of his rights, 
that the Senator from Pennsylvania has not sturdily opposed. 
He has hardly ever uttered a word upon this floor the tendency 
of which was not to degrade and to belittle a weak and struggling 
race. He comes here to-day and thanks God that they are free, 
when his vote and his voice for five years, with hardly an excep- 
tion, have been against making them free. He thanks God, sir, 
that your work and mine, our work which has saved a country 
and emancipated a race, is secured ; while from the word ' go,' to 
this time, he has made himself the champion of ' how not to do 
it.' If there be a man on the floor of the American Senate who 
has tortured the Constitution of the country to find powers to 
arrest the voice of this nation which was endeavoring to make 
a race free, the Senator from Pennsylvania is the man ; and now 
he comes here and thanks God that a work which he has done 
his best to arrest, and which we have carried, is accomplished. 1 
tell him to-day that we shall carry these other measures, whether 
he thanks God for them or not, whether he opposes them or not." 
[Laughter and applause in the galleries.] 

After an extended discussion, the Senate refused, by a vote of 



136 THE THIRTY-NINTH CONGRESS. 

thirty-three against eleven, to adopt the amendment proposed by 
Mr. Cowan. 

The bill was further discussed during three successive days, 
Messrs. Saulsbury, Hendricks, Johnson, McDougall, and Davis 
speaking against the measure, and Messrs. Fessenden, Creswell, 
and Trumbull in favor of it. Mr. Garrett Davis addressed the 
Senate more than once on the subject, and on the last day of the 
discussion made a very long speech, which was answered by Mr. 
Trumbull. The Senator from Illinois, at the conclusion of his 
speech, remarked: 

"What I have now said embraces, I believe, all the points of 
the long gentleman's speech except the sound and fury, and that 
I will not undertake to reply to." 

"You mean the short gentleman's long speech," interposed 
some Senator. 

"Did I say short?" asked Mr. Trumbull. "If so, it was a 
great mistake to speak of any thing connected with the Senator 
from Kentucky as short." [Laughter.] 

"It is long enough to reach you," responded Mr. Davis. 

The vote was soon after taken on the passage of the bill, with 
the following result: 

Teas— Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Cres- 
well, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes^ Harris, Henderson, 
Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Mor- 
rill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, 
Sumner, Trumbull, Van Winkle, Wade, Williams, Wilson, and Yates— 37. 

Nays— Messrs. Buckalew, Davis, Guthrie, Hendricks, Johnson, McDougall, 
Riddle, Saulsbury, Stockton, and Wright— 10. 

Absent— Messrs. Cowan, Nesmith, and Willey— 3. 

The bill having passed, the question came up as to its title, 
which it was proposed to leave as reported by the committee : " A 
bill to enlarge the powers of the Freedmen's Bureau." 

Mr. Davis moved to amend the title by substituting for it, 
" A bill to appropriate a portion of the public land in some of 
the Southern States and to authorize the United States Govern- 
ment to purchase lands to supply farms and build houses upon 
them for the freed negroes ; to promote strife and conflict between 
the white and black races ; and to invest the Freedmen's Bureau 
with unconstitutional powers to aid and assist the blacks, and to 
introduce military power to prevent the commissioner and other 



TEE FUEEBMEK. 137 

officers of said bureau from being restrained or held responsible in 
civil courts for their illegal acts in rendering such aid and assist- 
ance to the blacks, and for other purposes." 

The President pro tempore pronounced the amendment " not 
in order, inconsistent with the character of the bill, derogatory to 
the Senate, a reproach to its members." 

Mr. McDougall declared the proposed amendment "an insult 
to the action of the Senate." 

The unfortunate proposition was quietly abandoned by its au- 
thor, and passed over without further notice by the Senate. By 
unanimous consent, the title of the bill remained as first reported. 



138 THE THIRTY-NINTH CONGRESS. 



CHAPTER VII. 

THE FREEDMEN'S BUREAU BILL IN THE HOUSE. 

The Bill reported to the House— Mr. Eliot's Speech— History— Mr. 
Dattson vs. the Negro— Mr. Garfield— The Idol Broken— Mr. Taylor 

COUNTS THE COST— Mr. DONNELLY'S AMENDMENT— Mr. KERR— Mr. MAR- 
SHALL on White Slavery— Mr. Hubbard— Mr. Moulton— Opposition 
from Kentucky— Mr. Bitter— Mr. Eousseau's Threat — Mr. Shank- 
lin's Gloomy Prospect— Mr. Trimble's Appeal— Mr. McKee an ex- 
ceptional Kentuckian— Mr. Grinnell on Kentucky— The Example 
of Russia — Mr. Phelps — Me. Shell abarger's Amendment — Mr. Chan- 
ler— Mr. Stevens' Amendments— Mr. Eliot closes the Discussion- 
Passage of the Bill — Yeas and Nays. 

ON the day succeeding the passage of the bill in the Senate, 
it was sent to the House of Representatives, and by them 
referred to the Select Committee on the Freedmen. 
On the 30th of January, Mr. Eliot, Chairman of this com- 
mittee, reported the bill to the House with amendments, mainly 
verbal alterations. 

In a speech, advocating the passage of the bill, Mr. Eliot pre- 
sented something of the history of legislation for the freedmen. 
He said : " On the 3d day of last March the bill establishing a 
Ereedmen's Bureau became a law. It was novel legislation, 
without precedent in the history of any nation, rendered necessary 
by the rebellion of eleven slave States and the consequent libera- 
tion from slavery of four million persons whose unpaid labor 
had enriched the lands and impoverished the hearts of their 
relentless masters. 

" At an early day, when the fortunes of war had shown alter- 
nate triumphs and defeats to loyal arms, and the timid feared 
and the disloyal hoped, it was my grateful office to introduce 
the first bill creating a bureau of emancipation. It was during 



THE FREEDMEjY. 139 

the Thirty-seventh Congress. But, although the select commit- 
tee to which the bill was referred was induced to agree that it 
should he reported to the House, it so happened that the dis- 
tinguished Chairman, Judge White, of Indiana, did not succeed 
in reporting it for our action. At the beginning of the Thirty- 
eighth Congress it was again presented, and very soon was re- 
ported back to the Eouse under the title of 'A bill to establish 
a Bureau of Freedmen's AH'airs.' It was fully debated and 
passed by the Eouse. The vote was sixty-nine in favor, and 
sixty-seven against the bill; but of the sixty-seven who opposed 
it, fifty-six had been counted against it, because of their political 
affinities. On the 1st of March, 1864, the bill went to the 

Senate, it came back to tie' Eous 1 the 30th of June, four 

<lay^ before the adjournment <»f Congress. To my great regret, 
the Senate had passed an amendment in the nature of a sub- 
stitute, attaching this bureau to the Treasury Department; but 

it was too late to take action upon it then, and the bill was 

postponed until December. At that time the Bouse noii-con- 
concurred wi h the Senate, and a committee of conference was 
chosen. The managers of the two houses could not agree as to 
whether the War Department or the Treasury should manage 
the affairs of the bureau. They therefore agreed upon a bill 
creating an independent department neither attached to the War 
nor Treasury, but commumfating directly with the President, 
and resting for its support upon the arm of the War Department. 
That bill was also passed by the House but was defeated in the 
Senate. Another Conference Committee was chosen, and that 
committee, whose chairman iu the House was the distinguished 
gentleman from Ohio, then and now at the head of the Military 
Committee, agreed upon a bill attaching the bureau to the War 
Department, and embracing refugee^ as well as freedmen in its 
terms. That bill is now the law. 

"The law was approved on the 3d of March, 1865. Nine 
months have not yet elapsed since its organization. The order 
from the War Department under which the bureau was organized 
bears date ou the 12th of May, 1865. General Howard, who 
was then in command of the Department of Tennessee, was 
assigned as commissioner of the bureau. The bill became a law 
so late in the session that it was impossible for Congress to 
legislate any appropriation for its support. It was necessary, 



140 THE THIRTY-NINTH CONGRESS. 

therefore, that the management of it should be placed in the 
hands of military officers, and fortunately the provisions of the 
bill permitted that to be done. General Howard was, as I 
stated, in command of the Department of Tennessee, when he 
was detailed to this duty. But on the 15th of May, that is to 
say, within three days after the order appointing him, was issued, 
he assumed the duties of his office. 

" In the course of a few days, the commissioner of the bureau 
announced more particularly the policy which he designed to 
pursue. The whole supervision of the care of freedmen and of 
all lands which the law placed under the charge of the bureau 
was to be intrusted to assistant commissioners. 

"Before a month had expired, head-quarters had been estab- 
lished for assistant commissioners at Richmond, Raleigh, Beau- 
fort, Montgomery, Nashville, St. Louis, Vicksburg, New Orleans, 
and Jacksonville, and very shortly afterward assistant commis- 
sioners were designated for those posts of duty. They were re- 
quired to possess themselves, as soon as practicable, with the 
duties incident to their offices, to quicken in every way they 
could and to direct the industry of the freedmen. Notice was 
given that the relief establishments which had been created by 
law under the operations of the War Department should be dis- 
continued as soon as they could be consistently with the comfort 
and proper protection of the freeclnien, and that every effort 
should be made — and I call the attention of gentlemen to the 
fact that that policy has been pursued throughout — that every 
effort should be made to render the freedmen, at an early day, 
self-supporting. The supplies that had been furnished by the 
Government were only to be continued so long as the actual 
wants of the freedmen seemed to require it. At that time there 
were all over the country refugees who were seeking their homes, 
and they were notified that, under the care of the bureau, they 
would be protected from abuse, and directed in their efforts to 
secure transportation and proper facilities for reaching home. 

"Wherever there had been interruption of civil law, it was 
found impossible that the rights of freedmen could be asserted in 
the courts ; and where there were no courts before which their 
rights could be brought for adjudication, military tribunals, pro- 
vost-marshals' courts, were established, for the purpose of de- 
termining upon questions arising between freedmen or between 



THE FREEDMEN. 141 

freed men and other parties; and that, also, has been continued to 
this day. 

"The commissioners were instructed to permit the freedmen 
to select their own employers and to choose their own kind of 
service. All agreements were ordered to be free and mutual, and 
not to be compulsory. The old system that had prevailed of 
overseer labor was ordered to be rejiudiated by the commissioners 
who haa charge of the laborers, and I believe there has been no 
time since the organization of the bureau when there have not 
been reports made to head-quarters at Washington of all labor 
contracts; and wherever any provisions had been inserted, by 
inadvertence or otherwise, that seemed unjustly to operate against 
the freedmen, they have been stricken out by direction of the 
commissioner here. 

"In the course of the next month, action was taken by the 
commissioner respecting a provision of the law as it was passed 
in March, authorizing the Secretary of War to make issues of 
clothing ami provisions, and the assistanl commissiontrs were re- 
quired carefully to ascertain whatever might be needed under that 
provision of the law, and to make periodical reports as to the de- 
mands made upon the Government through the bureau. Direc- 
tions were given by the commissioner to his assistant commission- 
ers to make repeated reports to him upon all the various subjects 
which had come under his charge — with regard to the number 
of freedmen, where they were, whether in camps or in colonies, 
or whether they were employed upon Government works, and 
stating, if they obtained supplies, how they were furnished, 
whether by donations or whether procured by purchase. Keports 
were also required as to all lands which had been put under the 
care of the bureau ; and statements were called for showing de- 
scriptions of the lands, whether, in the language of the law, 
' abandoned ' or ' confiscated/ so that the bureau here could have 
full and complete information of all action of its agents through- 
out these States, and upon examination it could be determined 
where any specific lands which were under the charge of the bu- 
reau came from, and how they were derived. 

" In the course of the summer, it became necessary to issue ad- 
ditional instructions. The commissioner found that his way was 
beset with difficulties ; he was walking upon unknown ground ; he 
was testing here and there questions involved in doubt. It was 



14% THE THIRTY-NINTH CONGRESS. 

hardly possible at ouce and by one order to designate all that it 
would be needful for him to do, and, therefore, different instruc- 
tions were issued from time to time from his office. The assist- 
ant commissioners were called upon thoroughly to examine, 
either by themselves or their agents, the respective districts allot- 
ted to them, to make inquiry as to the character of the freedmen 
under their charge, their ability to labor, their disposition to 
labor, and the circumstances under which they were placed, so 
that the aid, the care, and the protection which the law contem- 
plated might be afforded to them as quickly and as economically 
as possible. 

"The commissioner continually repeated his injunctions to his 
assistants to be sure that no compulsory or unpaid labor was tol- 
erated, and that both the moral and intellectual condition of the 
freedmen should be improved as systematically and as quickly as 
practicable. 

" When the bureau was first organized, indeed when it was first 
urged uponathe attention of this House, it was stated and it was 
believed that the bureau would very shortly be self-sustaining. 
That was the idea from the beginning. And when it was stated 
here in debate that the bureau would probably be self-sustaining, 
it was supposed that from the lands abandoned, confiscated, sold, 
and the lands of the United States, which by the provisions of 
the bill had been placed under the care of the commissioner, 
these freedmen would be given an opportunity to earn substan- 
tially enough for the conduct of the bureau. And I have no 
doubt at all that such would have been the case had the original 
expectation been carried out. 

"There were large tracts of land in Virginia and the other 
rebel States which were clearly applicable to this purpose. There 
was the source of supply — the lands and the labor. There were 
laborers enough, and there was rich land enough. At a very 
early day the abandoned lands were turned over to the care of 
the commissioners, and I supposed, aud probably we all supposed, 
that the lands which in the language of the law were known as 
' abandoned lands/ and those which were in the possession of the 
United States, would be appropriated to the uses of these freed- 
men. Within a week after the commissioner assumed the duties 
of his office, he found it necessary to issue an order substantially 
like this : Whereas, large amounts of lands in the State of Vir- 



THE FREEDMEN. US 

ginia and in other States have been abandoned, and are now in 
the possession of the freedmen, and are now under cultivation by 
them; and, whereas, the owners of those lands arc now calling 
for their restoration, so as to deprive the freedmen of the results 
of their industry, it is ordered that the abandoned lands now 
under cultivation be retained by the freedmen until the growing 
crops can be secured, unless full and just compensation can be 
made them for their labor and its products. 

"'The above order' — this is the part about which it appeared 
thai some difference of judgment existed between the Executive 
and the commissioner of the bureau — 'the above order will not 
instrued so as to relieve disloyal persons from the conse- 
quences of their disloyalty.; and the application for the restora- 
tion of their Lands by this class of persons will in no case be 
entertained by any military authority.' 

"It was found, not a great while afterward, that the views 
which the President entertained as to his duty were somewhat in 
conflict with the provisions of this order; for it was held by the 
IV sidenl thai persons who had brought themselves within the 
range of his pardon and had secured it, and who had taken or 
did afterward take the amnesty oath, would be entitled, as one 
of the results of the pardon and of their position after the oath 
had been taken, to a restoration of their lands which had been 
a-signed to freedmen. In consequence of this, an order was sub- 
sequently issued, well known as circular Xo. 15. And under the 
operation of that circular, on its appearing satisfactorily to any 
assistant commissioner that any property under his control is not 
'abandoned,' as denned in the law, and that the United States 
have acquired no perfect right to it, it is to be restored and the 
fact reported to the commissioner. ' Abandoned ' lands were to 
be restored to the owners pardoned by the President, by the assist- 
ant commissioners, to whom applications for such restoration were 
to be forwarded; and each application was to be accompanied by 
the pardon of the President and by a copy of the oath of amnesty 
prescribed in the President's proclamation, and also by a proof of 
title to the land. It must be obvious that the effect of this must 
have been to transfer from the care of the bureau to the owners 
very large portions of the land which had been relied upon for 
the support of the freedmen. Within a few weeks from the date 
of that order, no less than §800,000 worth of property in New 



144 THE THIRTY-NINTH CONGRESS. 

Orleans was transferred, and about one third of the whole prop- 
erty in North Carolina in possession of the bureau was given up ; 
and the officer having charge of the land department reports that 
before the end of the year, in all probability, there will be under 
the charge of the commissioner little, if any, of the lands origi- 
nally designed for the support of these freedmen. 

" It is obvious, if these lands are to be taken, that other lands 
must be provided, or the freedmen will become a dead weight 
upon the Treasury, and the bill under consideration assigns other 
lands, in the place of those thus taken, from the unoccupied pub- 
He lands of the United States." 

On the following day, Mr. Dawson, of Pennsylvania, obtained 
the floor in opposition to the bill. His speech was not devoted 
to a discussion of the bill in question, but was occupied entirely 
with general political and social topics. The following extract 
indicates the tenor of the speech : 

"Negro equality does not exist in nature. The African is 
without a history. He has never shown himself capable of self- 
government by the creation of a single independent State possess- 
ing the attributes which challenge the respect of others. The 
past is silent of any negro people who possessed military and 
civil organization, who cultivated the arts at home, or conducted 
a regular commerce with their neighbors. No African general 
has marched south of the desert, from the waters of the Nile to 
the Niger and Senegal, to unite by conquest the scattered terri- 
tories of barbarous tribes into one great and homogeneous king- 
dom. No Moses, Solon, Lycurgus, or Alfred has left them a code 
of wise and salutary laws. They have had no builder of cities ; 
they have no representatives in the arts, in science, or in litera- 
ture; they have been without even a monument, an alphabet, or 
a hieroglyphic." 

On the other hand, Mr. Garfield, of Ohio, among the friends 
of the measure, delivered a speech " on the Freedmen's Bureau 
Bill," in which the topic discussed was " Restoration of the Rebel 
States." In the course of his remarks Mr. Garfield said : 

" Let the stars of heaven illustrate our constellation of States. 
When God launched the planets upon their celestial pathway, he 
bound them all by the resistless power of attraction to the cen- 
tral sun, around which they revolved in their appointed orbits. 
Each may be swept by storms, may be riven by lightnings, may 



THE FREEDMEN. 145 

be rocked by earthquakes, may be devastated by all the terres- 
trial forces and overwhelmed in ruin, but far away in the ever- 
lasting depths, the sovereign sun holds the turbulent planet in its 
place. This earth may be overwhelmed until the high hills are 
covered by the sea ; it may tremble with earthquakes miles below 
the soil, but it must still revolve in its appointed orbit. So Ala- 
bama may overwhelm all her municipal institutions in ruin, but 
she can not annul the omnipotent decrees of the sovereign people 
of the Union. She must be held forever in her orbit of obedience 
and duty." 

After having quoted Gibbon's narrative of the destruction of 
the collossal statue of Serapis by Theophilus, Mr. Garfield said : 
" So slavery sat in our national Capitol. Its huge bulk filled 
the temple of our liberty, touching it from side to side. Mr. 
Lincoln, on the 1st of January, 1863, struck it on the cheek, and 
the faithless and unbelieving among us expected to. see the fabric 
of our institutions dissolve into chaos because their idol had fallen. 
He struck it again; Congress and the States repeated the blow, 
and its unsightly carcass lies rotting in our streets. The sun 
shines in the heavens brighter than before. Let us remove the 
carcass ana leave not a vestige of the monster. We shall never 
have done that until we have dared to come up to the spirit of 
the Pilgrim covenant of 1620, and declare that all men shall be 
consulted in regard to the disposition of their lives, liberty, and 
property. The Pilgrim fathers proceeded on the doctrine that 
every man was supposed to know best what he wanted, and had 
the right to a voice in the disposition of himself." 

•Mr. Taylor, of New York, opposed the bill principally on the 
ground of the expense involved in its execution. After having 
presented many columns of figures, Mr. Taylor arrived at this 
conclusion : " The cost or proximate cost of the bureau for one 
year, confining its operation to the hitherto slave States, will be 
$25,251,600. That it is intended to put the bureau in full ope- 
ration in every county and parish of the hitherto slave States, 
including Delaware, Maryland, Kentucky, and Missouri, I have 
not the least doubt, nor have I any doubt but that it is intended 
to extend it into parts of some of the border States." 

Mr. Donnelly moved to amend the bill by inserting the pro- 
vision that "the commissioner may provide a common-school 
education for all refugees and freedmqn who shall apply therefor." 
10 



lJfG THE THIRTY-NINTH CONGRESS. 

He advocated education as an efficient means of restoration for 
the South. He presented ample tables of statistics, and summed 
up the results in their bearing upon his argument as follows : 

" The whole United States, with a population of 27,000,000, 
contains 834,106 illiterate persons, and of these 545,177 are found 
in the Southern States with a population of 12,000,000. In other 
words, the entire populous North contains but 288,923, while the 
sparsely-settled South contains 545,177." 

As an argument for the passage of the bill, he answered the 
question, " What has the South done for the black man since the 
close of the rebellion ? " 

" In South Carolina it is provided that all male negroes be- 
tween two and twenty, and all females between two and eighteen, 
shall be bound out to some ' master.' The adult negro is com- 
pelled to enter into contract with a master, and the district judge, 
not the laborer, is to fix the value of the labor. If he thinks 
the compensation too small and will not work, he is a vagrant, 
and can be hired out for a term of service at a rate again to be 
fixed by the judge. If a hired- negro leaves his employer he for- 
feits his wages for the whole year. 

" The black code of Mississippi provides that no negro shall 
own or hire lands in the State ; that he shall not sue nor testify 
in court against a white man; that he must be employed by a 
master before the second Monday in January, or he will be bound 
out — in other words, sold into slavery ; that if he runs away the 
master may recover him, ajid deduct the expenses out of his 
wages ; and that if another man employs him he will be liable to 
an action for damages. It is true, the President has directed 
General Thomas to disregard this code; but the moment the 
military force is withdrawn from the State that order will be of 
no effect. 

" The Merck code of Alabama provides that if a negro who has 
contracted to labor fails to do so, he shall be punished with dam- 
ages ; and if he runs away he shall be punished as a vagrant, 
which probably means that he shall be sold to the highest bidder 
for a term of years ; and that any person who entices him to leave 
his master, as by the offer of better wages, shall be guilty of a 
misdemeanor, and may be sent to jail for six months; and further, 
that these regulations include all persons of negro biood to the 
third generation, though one parent in each generation shall be 



TEE FREEDMEN. I47 

• 

pure white ; that is, clown to the man who has but one eighth 
negro blood in his veins. 

After quoting the black codes of 'other States, the speaker thus 
epitomized their substance : " All this means simply the reestab- 
lishment of slavery. 

" 1. He shall work at a rate of *wages to be fixed by a county 
judge or a Legislature made up of white masters, or by combina- 
tions of white masters, and not in any case by himself. 

" 2. He shall not leave that master to enter service with an- 
other. If he does he is pursued as a fugitive, charged with the 
expenses of his recapture, and made to labor for an additional 
period, while the white man who induced him to leave is sent to 
jail. 

"3. His children are taken from him and sold into' virtual 
slavery. 

" 4. If he refuses to work, he is sold to the highest bidder for 
a term of months or years, and becomes, in fact, a slave. 

" 5. He can not better his condition ; there is no future for 
him ; he shall not own property ; he shall not superintend the 
education of his children ; neither will the State educate them. 

" 6. If he is wronged, he has no remedy ; for the courts are 
closed against him." 

Mr. Kerr, of Indiana, addressed the House on the subject of 
reconstruction, maintaining, by extended arguments and quota- 
tions from learned authorities, that the rebel States were still in 
the Union. He concluded his speech by opposing the bill under 
consideration on the ground of its expense : " It involves the 
creation of a small army of agents and commissioners, whose 
jurisdiction and control shall pervade the whole country, shall 
extend into every State, into every congressional district, into 
every county, into every township and city of this broad Union ; 
provided, only, that they can find some freedmen or refugees upon 
whom to exercise their jurisdiction. I submit that, before a 
measure of this kind should be adopted, we should reflect most 
carefully upon what we are doing. We should remember that 
this country is now almost crushed into the very earth with its 
accumulated burden of public debt, of State debts, of county 
debts, of city debts, of township debts, of individual debts. We 
should bear in mind, that we may impose upon the people of this 
country, by this kind of latitudinarian and most dangerous legis- 



148 THE THIRTY-NINTH CONGRESS. 

lation, a burden that is too heavy to be borne, and against which 
the day may come when the people, as one man, will feel them- 
selves called upon to protest in such a manner- as forever to over- 
throw that kind of legislation, and condemn to merited reproach 
those who favor it." 

On a subsequent day of the discussion, Mr. Marshall, of Illi- 
nois, spoke against the bill. He put much stress upon an objec- 
tion to which nearly all the opponents of the bill had referred, 
namely, that Congress had no warrant in the Constitution for 
passing such a measure. He said : " Instead of this being called 
a bill for the protection of freedmen and refugees, it ought to be 
called a bill for the purpose of destroying the Constitution of the 
United States, and subjecting the people thereof to military power 
and domination. That would be a much more appropriate title." 

Mr. Marshall was "opposed to bestowing any thing in charity. 
" I deny," said he, " that this Federal Government has . any 
authority to become the common almoner of the charities of the 
people. I deny that there is any authority in the Federal Con- 
stitution to authorize us to put our hands into their pockets and 
take therefrom a part of their hard earnings in order to dis- 
tribute them as charity. I deny that the Federal Government 
was established for any such purpose, or that there is any au- 
thority or warrant in the Constitution for the measures which 
are proposed in this most extraordinary bill." 

He viewed with horror the slavery which the head of the War 
Department could impose upon the people by virtue pf the pro- 
visions of this bill. " He is to send his military satraps," said 
Mr. Marshall, " into every county and district of these States ; 
and they may enslave and put down the entire white people of the 
country by virtue of this law." He saw in the bill power " to rob 
the people by unjust taxation; to take the hard earnings from the 
white people of the "West, who, unless wiser counsels prevail, will 
themselves soon be reduced to worse than Egyptian bondage. I 
demand to be informed here upon this floor by what power you 
put your hands into their pockets and drag from them their 
money to carry out the purposes of this measure." 

Mr. Hubbard, of Connecticut, made a short speech in reply to 
the speaker last quoted. He said: "The gentleman from Illinois, 
some twenty times in the. course of his eloquent speech this morn- 
ing, called upon some one to tell him where Congress gets the 



THE FREEDMEN. 149 

power to enact such a law as this. In the first place, I commend 
to him to read the second section of the article of the immortal 
amendment of the Constitution, giving to Congress power to pass 
all appropriate laws and make all appropriate legislation for the 
purpose of carrying out its provisions. I commend' to his careful 
study the spirit of the second section of that immortal amendment, 
and I think, if he will study it with a willingness to be convinced, 
he will sec that it has given to this Congress full power in the 
premises. Moreover, sir, I read in the Constitution that Congress 
has been at all times charged with the duty of providing for the 
public welfare; and if Congress shall deem that the public wel- 
fare requires tin- enactment, it is the sworn duty of every mem- 
ber to give the bill his support. 

" Sir, there is an old maxim of law in which I have very con- 
siderable faith, that regard musl be had to the public welfare ; 
and this maxim is said to be the highest law. It is the law of 
the Constitution, and in the light of that Constitution as amended 
I find ample power for the enactment of this law. It is the duty 
of Congress to exercise its power in such a time as this, in a time 
of public peril ; and I hope that nobody on this side of the House 
will be so, craven as t<> want courage to come up to the question 
and give his vote for the bill. It is necessary to provide for the 
public welfare." 

Mr. Moulton, of Illinois, spoke in favor of the bill. Of the 
oft -repeated objection that " this bill is in violation of the Con- 
stitution of the United States," he said : " This is the very argu- 
ment that we have heard from the other side of this chamber for 
the last five years with reference to every single measure that has 
been proposed to this House for the prosecution of the war for 
the Union. Xo measure has been passed for the benefit of the 
country, for the prosecution of this war, for the defense of your 
rights and mine, but has been assailed by gentlemen on the oppo- 
site side of this House with the argument that the whole thing 
was unconstitutional." 

He then proceeded to set forth at length the authority of 
Congress to pass such a bill. 

Very strenuous opposition to the passage of the bill was made 
by most of the members from Kentucky. Mr. Ritter, of that 
State, uttered his earnest protest at considerable length against 
the measure. He presented his views of the "grand purposes 



150 THE THIRTY-NINTH CONGRESS. 

and designs of those who introduced this bill." In his opinion 
they intended "to commence a colony in each one of the five 
States above named, which is ultimately to drive out the entire 
white population of those States and fill their places with the 
negro race. And whether this is the design or not, it is certain, 
in my judgment, to have this effect. And they could not have 
devised a more effectual scheme for that purpose. 

" Sir, it is not to be expected that the two races will live con- 
tentedly where there are large numbers of the colored people 
living near to neighborhoods settled with white persons. Expe- 
rience has proved to many of us that wherever large numbers of 
colored people live, that the white people living within five or ten 
miles of the place become sufferers to a very large extent. Now, 
sir, if this should be the case (as I have no doubt it will) in the 
States in which you propose to establish the'se people, the whites 
and blacks will disagree to such an extent that, when people find 
that the colored people are permanently established, they will be 
compelled, in self defense, to seek a home somewhere else. No 
doubt, Mr. Speaker, but that those who prepared this bill saw 
that the difficulties and disagreements to which I have just al- 
luded would arise, and hence they require that military jurisdiction 
and protection shall be extended, so as to give safety in their 
movements ; and if the white inhabitants become dissatisfied, the 
commissioner is prepared with authority by this bill to buy 
them out and put the negroes upon the land." 

He thus presented his calculation of the cost of carrying out 
the bill as an argument against it: "In 1822 the ordinary ex- 
penses of the Government were $9,827,643, and in 1823 the ex- 
penses amounted to the sum of $9,784,154. Now, sir, who could 
have thought at that day that in the comparatively short time of 
forty-three years it would require the sum of even $12,000,000 to 
fix up a machinery alone for the benefit of three or four million 
negroes, and more especially, sir, when it is understood that in 
1820 we had a population, including white and colored, of 9,633,- 
545. Mr; Speaker,' how ' long will it be at this rate — when we 
take into consideration the fact that our Government proper, be- 
sides this little bureau machine, is now costing us hundreds of 
millions of dollars — how long, sir, will it be before we have to 
call in the services of Mr. Kennedy, of census notoriety, to esti- 
mate the amount of the debt we owe ? " 



THE FREEDMEN. 151 

Mr. Rousseau, of Kentucky, in defining his position, said : " I 
am not a Republican; I was a Whig and a Union man, and belong 
to the Union party, and I am sorry to say that the Union party 
and the Republican party are not always convertible terms." 

Mr. Rousseau urged against the Freedmen's Bureau Bill the 
wrongs and oppressions which its abuses heaped upon the people 
of the South. In the course of his speech Mr. Rousseau quoted 
what he had said on one occasion to an official of the Freedmen's 
Bureau : " I said to him, ' if you intend to arrest white people on 
the ex parte statements of negroes, and. hold them to suit your 
convenience for trial, and fine and imprison them, then I say that 
I oppose you; and if you should so arrest and punish me, I 
would kill yon when you set me at liberty; and I think that you 
would do the same to a man who would treat you in that way, 
if you arc the man I think you are, and the man you ought to 
be to fill your position here' " 

This extracl has considerable importance as being the occasion 
of an unfortunate personal difficulty between Mr. Rousseau and 
Mr. Grinnell, of Iowa, narrated in a subsequent chapter. The 
latter portion of Mr. Rousseau's speech was devoted to the subject 
of reconstruction. He was followed by Mr. Shanklin, of Ken- 
tucky. He characterized the Freedmen's Bureau as a "gigantic 
monster." He declared that " the effect of this measure upon the 
negro population will be to paralyze their energy, destroy their 
industry, and make them paupers and vagabonds." He saw 
" revolution and ruin " in prospect. " I affirm," said he, " that 
in legislating for those States, or without allowing them any 
representation in these halls, you are violating one of the cardi- 
nal principles of republican government ; you are tearing down 
the main pillar upon which our whole fabric of Government 
rests; you are sowing broadcast the seeds of revolution and ruin. 
Mr. Speaker, if the object of gentlemen here is to restore har- 
mony and peace and prosperity throughout the Union, why do 
they adopt measures thus insulting, tyrannical, and oppressive in 
their character? Is this the way to restore harmony and peace 
and prosperity? How can you expect to gain the respect and 
affection of those people by heaping upon them insult and injus- 
tice ? If they have the spirit of their ancestors, you may crush 
them, you may slay them, but you can never cause them to love 



152 THE THIRTY-NINTH CONGRESS. 

you or respect you; and they ought not while you force upon 
them measures which are only intended to degrade them." 

Mr. Trimble, of Kentucky, viewed the question in a similar 
light to that in which it was regarded by his colleague. "I 
hold/' said he, "this bill is in open and plain violation of that 
provision of the Constitution. There exists no power in this 
Government to deprive a citizen of the United States of his prop- 
erty, to take away the hard earnings of his own industry and 
bestow them upon this class of citizens. The only way you can 
take j)roperty in South Carolina, Georgia, or any other State, is 
to take that property under, the Constitution of the United States 
and the laws passed in pursuance thereof." 

He closed his speech with the following appeal : " I appeal to 
my friends who love this Union, who love it for all the memories 
of the past, who love it because it has protected them and theirs ; 
I appeal to them to pause and reflect before they press this meas- 
ure upon these people ; for I tell you that, in my j udgment, the 
effects of the provisions of this bill to us as a nation will not be 
told in our lifetimes. If legislation of this character is to be 
pressed here, I awfully fear hope will Sink within us. Our love 
for this Union and desire for its restoration will be greatly weak- 
ened and estranged." 

Mr. McKee alone, of all the Representatives from Kentucky, 
was favorable to the bill. The opponents of the measure had 
spoken of it as a " monstrous usurpation." " We have heard that 
talk," said Mr. McKee, "for more than four years here. What 
bill has been introduced into and passed by Congress since this 
war began that this same party has not been accustomed to de- 
nounce as a monstrous usurpation of power? When the Bresident 
of the United States issued his call for troops they cried out, ' A 
monstrous usurpation of power.' When he sent a requisition to 
the Governor of my own State, what was the response ? ' Not a 
man, not a dollar, to prosecute this wicked war against our 
Southern brethren.' And the Union party, God help them ! in 
Kentucky, indorsed the sentiment at that day. I did not belong 
to that part of the Union party ; I never belonged to that ' neu- 
trality concern.' I never put in my oar to help propel that ship 
which was in favor of thundering forth with its cannon against 
the^ North and the South alike. I never belonged to that party 
which said, <We will stand as a wall of fire against either side.' 



THE FREEDMEM. \ 153 

I thank God I never stood upon but one side, and that was the 
side of my country, against treason, against oppression, against 
wrong in all its forms." 

In arguing the necessity for some such legislation as that pro- 
vided in this bill, Mr. McKcc asked, " Has any Southern State 
given the frccdmen ' their full rights and full protection?' Is 
there a solitary State of those that have been in rebellion, (and I 
include my own State with the rest, because, although she has 
never been, by proclamation, declared a State in rebellion, I think 
she has been one of the most rebellious of the whole crew,) is 
there a single one of these States that has passed laws to give 
the freedmen full protection? In vain we wait an affirmative 
response. Until these States have done so, says this high author- 
ity, the Freed men's Bureau is a necessity. This is to my mind a 
sufficient answer to the arguments of gentlemen on the other side. 
In none of those States has the black man a law to protect him 
in his rights, either of person or property. He can sue in a court 
of justice in my State, but he can command no testimony in his 
prosecution or defense milt-- the witness be a white man. We 
have one code for the white man, another for the black. Is this 
justice? Where is your court of justice in any Southern. State 
where the black man can secure protection? Again there is no 
response." 

Mr. Gmnnell, of Iowa, a member of the committee that had 
reported this bill, took the floor in its favor. Much having been 
said by Representatives of Kentucky in reference to that State, 
Mr. Grinncll remarked: "I can not forget, when I hear these 
extravagant claims set up here, that her Governor, in the first 
year of the rebellion, refused to honor the call for troops made 
by the President of the United States in our darkest hour ; nor 
. can I forget that when her soldiers wished to organize regiments 
they were obliged to cross the Ohio River into the State of In- 
diana,, that they might organize them free from the interference 
of the power of Kentucky neutrality. That is a fact in history, 
and I can not overlook it, when gentlemen here arraign the 
President of the United States because he has seen fit to suspend 
the privilege of the writ of habeas corpus in the State of 
Kentucky." 

" Let us see," said Mr. Grinnell, in a subsequent part of his 
speech, " what are the laws of Kentucky which are so just and 



154 THE -THIRTY-NINTH CONGRESS. 

honorable and equitable. The white man in Kentucky can testify 
in the courts; the black man can testify against himself. The 
white man can vote; the black man can not. The white man, 
if he commits an offense, is tried by a jury of his peers; the 
black man is tried by his enlightened, unprejudiced superiors. 
The rape of a negro woman by a white man is no offense ; the 
rape of a white woman by a negro man is punishable by death, 
and the Governor of the State can not commute. 

" A white man may come into Kentucky when he pleases ; the 
free negro who comes there is ^i felon, though a discharged sol- 
dier, and wounded in our battles. A white man in Kentucky 
may keep a gun ; if a black man buys a gun he forfeits it, and 
pays a fine of five dollars if presuming to keep in his possession 
a musket which he has carried through the war. Arson of public 
buildings, if committed by a white man, is punished by imprison- 
ment in the penitentiary for a term of from seven to twenty-one 
years; if committed by a black man, the punishment is death. 
Arson of a warehouse, etc., when committed by a white man, is 
punished by imprisonment in the penitentiary from one to six 
years; when committed by a negro, the penalty is death. 

" If- a white man is guilty of insurrection or rebellion, he' is 
punished by being called f chivalrous.' I instance the rebel 
General Forest, who murdered white men at Fort Pillow, and is 
reputed the most popular man South. If a negro rebels, or con-, 
spires to rebel, he is punished with death. These are specimens." 

Referring to the benefits conferred by the Freedinen's Bureau 
upon Kentucky, Mr. Grinnell remarked : " As it is asserted that 
this Freednien's Bureau is a partial, unnecessary, speculating 
affair, I wish to call attention to the fact that in the State of 
Kentucky, during the last five months, more white refugees than 
freedmen, in the proportion of seven and one-fourth to one, have 
received rations at the hands of the Government; that this 
bureau has kept in schools in the State of Kentucky fourteen 
thousand black people. 

In further illustration of the work accomplished by this in- 
strumentality, he said: "This bureau is in charge of 800,000 
acres of land and 1,500 pieces of town property. It has issued 
more than 600,000 rations to refugees, and 3,500,000 to freed- 
men. It has treated 2,500 refugees in hospitals, and decently 
buried 227 of them. It has treated 45,000 freedmen, and made 



THE FREEDMEN. 155 

the graves for 6,000 of the number. Transportation has been 
furnished to 1,700 refugees and 1,900 freedmen. In the schools 
there are 80,000 people that have been instructed by this bureau. 
And now it is proposed to leave all these' children of misfortune 
to the tender mercies of a people of whom it is true by the 
Spanish maxim, ' Since I have wronged you I have hated you.' 
I never can. Our authority to take care of them is founded in 
the Constitution; else it is not worthy to be our great charter. 
It gives authority to feed Indian tribes, though our enemies, and 
a just interpretation can not restrain us in clothing and feeding 
unfortunate friends. In providing schools, we can turn to the 
same authority which led to the gift of millions of acres of the 
public domain for the purpose of establishing agricultural colleges 
in this country." 

He referred to Russia for example of what should be done in 
such an emergency: "We should be worse than barbarians to 
leave these people where they arc, landless, poor, unprotected ; 
and I commend to gentlemen who still cling to the delusion that 
all is well, to take lessons of the Czar of the K-ussias, who, when 
he enfranchised his people, gave them lands and school-houses, 
and invited school-masters from all the world to come there and 
instruct them. Let us hush our national songs; rather gird on 4 
sack-cloth, if wanting in moral courage to reap the fruits of our 
• war by being just and considerate to those who look up to us for 
temporary counsel and protection. Care and education are 
cheaper for the nation than neglect, and nothing is plainer in, 
the counsels of heaven or the world's history." 

An allusion made by Mr. Grinnell to the speech of Mr. Eos- 
seau, provoked the personal assault to be described hereafter. 

Mr. Raymond having the floor for a personal explanation, took 
occasion to make the following remarks in reference to the bill: 
" I have no apprehensions as to the practical workings of this 
law. So far as I have been able to collect information from all 
quarters — and I have taken some pains to do so — I find that this 
. law, like most other laws on our statute books, works well where 
' it is well ^administered. The practical operations of this bureau 
will depend upon the character of the agents into whose hands its 
management is intrusted. I certainly have no apprehension in 
this respect. I do not for one moment fear that iSe agents who 
will be appointed to carry this law into execution will not use the 



156 THE THIBTF-NIJYTH CONGRESS. 

powers conferred upon them for the furtherance of the great object 
which we all have in view — the reconciliation, the "protection, the 
security of all classes of those who are now our fellow-citizens in 
the Southern States." 

Mr. Phelps, of Maryland, made a speech indorsing the prin- 
ciple of the bill, but objecting to some of its details. His objec- 
tions were removed by the presentation and acceptance of the 
following amendment by Mr. Shellabarger, of Ohio : " No person 
shall be deemed destitute, suffering, or dependent upon the Gov- 
ernment for support, within the meaning of this act, who, being 
able to find _ employment, could, by proper industry and exertion, 
avoid such destitution, suffering and dependence." 

Mr. Chanler made a long speech in opposition to the bill. He 
gave particular attention to the speech of Mr. Donnelly, of Min- 
nesota, who had advocated education as a necessity for the 
South. "The malignant party spirit and sectional hate," said 
Mr. Chanler, "that runs through this whole statement, needs 
no illustration." . After presenting voluminous extracts from 
speeches, letters, and public documents, Mr. Chanler summed up 
his objections to the bill in the following words : " Our people 
are not willing to live under military rule. 

"This bureau is under military rule. It proposes to per- 
petuate and strengthen itself by the present bill. * 

"It founds an ' imperium in imperio' to protect black labor 
against white labor. 

. " It excludes the foreign immigrant from the lands given to the 
native-born negro. 

" It subjects the white native-born citizen to the ignominy of 
surrendering his patrimony, his self-respect, and his right to labor 
into the hands of negroes, idle, ignorant, and misled by fanatic, 
selfish speculators." 

Mr. Stevens desired to amend the bill by striking out the lim- 
itation to three years given the possessory titles conferred by Gen- 
eral Sherman, and rendering them perpetual. This amendment 
the House were unwilling to accept. Mr. Stevens further pro- 
posed to strike out the proviso " unless as punishment.for crime, 
whereof the party shall have been duly convicted," giving as a 
reason for this amendment, " I know that men are convicted of 
assault and baftery, and sentenced to slavery down there. I have 



THE FEEEDMEjY. 157 

authentic evidence of that fact in several letters, and, therefore, I 
propose to strike out those wo■ds. ,, 

This amendment was adopted. Another important amendment 
proposed by the committee was the limitation of the operation of 
the 1*111 to States in which the writ of habeas corpus was sus- 
pended on the 1st of February, 1866. Mr. Eliot closed the de- 
bate by answering BOriie objections to -the bill, and presenting some 
official documents proving the beneficent results of the bureau, 
especially in the State of Kentucky. 

On the 6th of February the question was taken, and the bill 
■ I by the following vote: 

Seas — Messrs. Alley, Allison, Aim's, Anderson, Deloa R. Ashley, - James 
M Ashley, Baker, Baldwin, Haul;-. Barker, Baxter, Beaman, Benjamin, 
Bidwell, Bingham, Blaine, Blow, Boutwell, Brandegee, Bromwell, Broomajl, 
Bandy, Reader W. Clarke, Sidney Clarke, Cohh, Conkling, Cook, Cullom, 
Darling Davis Dawes, l>efrces, Delano, Doming, Dixon, I'onnelly, Driggs, 
Dumont, Eckley, Eggleston, Eliot, Farnsworth, Earquhar, Ferry, Garfield, 
GrinnelL Griswold, Bale, Abner •'. Earding, Bart, Hayes, Henderson, 
Higby, Bill, Holmes, Boopw, Botchkiss, A-ah.-I W. Bubbard, Chester J). 
Bubbard, Demas Bubbard, John II. Bubbard, James B. Bubbell, James 
Bumphrey, [ngersoll, Jenckes, Julian, Kasson, Kclley, Kelso, Kctcham, 
KuykendalL Laflin, Latham, George V. Lawrence, William Lawrence, Loan, 
Longycar, Lynch, Marston, Marvin, McClurg, Mclndoe, McKee, McRuer, 
Mereur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O'Neill, 
Orth, Paine, Patterson, Perham, Phelps, Pike, Plants, Pomeroy, Price, Wil- 
liam II. Randall, Kaymond, Alexander II. Pice, John H. Rice, Rollins, 
Sawyer, Schenck, Scofield, Shellabargcr, Smith, Spalding, Starr, Stevens, 
Stilwell, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, 
Van Aernam, Burt Van Horn, Robert T. Van Horn, Ward, Warner, 
Elihu 1!. Washburne, William B. Washburn, Welker, Wentworth, Whaley, 
Williams, James F. Wilson, Stephen F. Wilson, Windom, and Wood- 
bridge. — 136. 

Nats — Messrs. Boyer, Brooks, Chanler, Dawson, Eldridge, Finck, Gloss- 
brenner, Grider, Aaron Harding, Harris, Ilogan, Edwin X. Ilubbell, James 
M. Humphrey, Kerr, Le Blond, Marshall, McCullough, Niblack, Nicholson, 
Nocll, Samuel J. Randall, Ritter, Rogers, Ross, Rosseau, Shanklin, Sit- 
greaves, Strouse, Taber, Taylor, Thornton, Trimble, and Wright — 33. 

Not Voting — Messrs. Ancona, Bergen, Buckland, Culver, Denison,' Good- 
year, Hulburd, Johnson, Jones, Radford, Sloan, Voorhees, and Winfield — 13. 



158 TEE TEIRTY-NINTH CONGRESS. 



CHAPTER VIII. 
» 

THE SENATE AND THE VETO MESSAGE. 

Mr. Trumbull on the amendments of the House — Mr. Guthrie exhibits 
feeling — Mr. Sherman's deliberate conclusion — Mr. Henderson's 
sovereign remedy — Mr. Trumbull on patent medicines — Mr. Mc- 

DoUGALL A WHITE MAN — Mr. ReVERDY JOHNSON ON THE POWER TO PASS 

the bill — Concurrence of the House — The Veto Message — Mr. Lane, 
of Kansas— His efforts for delay — Mr. Garrett Davis — Mr. Trum- 
bull's reply to the President — The question taken — Yeas and nays — 
Failure of passage. 

ON tlie 7th of February the amendments of the House to the 
Freedmen's Bureau Bill were presented to the Senate, and 
referred to the Committee on the Judiciary. 

On the following day Mr. Trumbull, chairman of this commit- 
tee, reported certain amendments to the amendments made by the 
House of Eepresentatives. Mr. Trumbull said : " The House of 
Representatives have adopted a substitute for the whole bill, but 
it is the Senate bill verbatim, with a few exceptions, which I will 
endeavor to point out. The title of the bill has been changed, to 
begin with. It was called as it passed the Senate ' A bill to en- 
large the powers of the Freedmen's Bureau.' The House has 
amended the title so as to make it read, ' A bill to amend an act 
entitled " An act to establish a Bureau for the Relief of Freedmen 
and Refugees," and for other purposes.' Of course, there is no 
importance in that. 

" The* first amendment which the House has made, and the 
most important one, will be found to commence in the eighth line 
of the first section. The House has inserted words limiting the 
operation of the Freedmen's Bureau to those sections of country 
within which the writ of habeas corpus was suspended on the 1st 
day of February, 1866. As the bill passed the Senate, it will be 



THE FREEDMEN. 159 

• 
remembered that it extended to refugees and freedmen in all parts 
of the United States, and the President was authorized to divide 
the section of country containing such refugees and freedmen into 
districts. The House amend that so as to authorize the President 
to divide the section of country within which the privilege of the 
writ of habeas corpus was suspended on the 1st day of February, 
1866, containing such refugees and freedmen, into districts. The 
writ of habeas corpus on the 1st day of February last was sus- 
pended in the late rebellious States, including Kentucky, and in 
none other. The writ of habeas corpus was restored by the Presi- 
dent's proclamation in Maryland, in Delaware, and in Missouri, 
all of which' have been slaveholding States. 

"As the bill passed the Senate, it will be observed it only ex- 
tended to refugees and freedmen in the United States, wherever 
they might be, and the President was authorized to divide the 
region of country containing such refugees and freedmen, and it 
had no operation except in States where there were refugees and 
freedmen. The House has limited it so that it will not have 
operation in Maryland, or Delaware, or Missouri, or any of the 
Northern States." 

After Mr. Trumbull had stated the other and less important 
amendments made by the House, the Senate proceeded to consider 
the amendments proposed by the Judiciary Committee, the • first 
of which was to strike out the words " within Avhich the privileges 
of the writ of habeas corpus was suspended on the 1st day of Feb- 
ruary, 1866." 

Mr. Trumbull said : " I wish to say upon that point that the 
bill as it passed the. Senate can have no operation except in regions 
of country where there are refugees and freedmen. It is confined 
to those districts of country, and it could not have operation in 
most of the loyal States. But it is desirable, as I am informed, 
and it was so stated by one of the Senators from Maryland, that 
the operations of this bill should be extended to Maryland. It 
may be necessary that it should be extended to Missouri, and 
possibly to Delaware. I trust not ; but the authority to extend 
it there ought to exist, if there should be occasion for it. The 
only objection I have to limiting the operation of the bill to .the 
late slaveholding States is, that I think it bad legislation, when 
we are endeavoring to break down discrimination and distinction, 
to pass a law which is to operate in one State of the Union and 



160 THE THIRTY-NINTH CONGRESS. 

• 
not in another. I would rather that the. law should be general, 
although I am fully aware that there is nothing for the law to 
operate upon in most of the States of the Union. I do not feel 
quite willing to vote upon Kentucky, for instance, a law that I 
am not willing to have applicable to the State of Illinois, if such 
a state of facts exists as that the law can operate in Illinois. I 
prefer, therefore, to have the bill in the shape in which it passed 
the Senate, and such was the opinion of the Committee on the 
Judiciary." 

Mr. Guthrie, of Kentucky, spoke with much feeling upon the 
bearings of the bureau upon his State: "You will have to ac- 
knowledge these States or you will have to do worse. The 
passage of this system of bills is a dissolution of the Union, and 
you can not help it. It will be impossible for you to carry on 
this Government under any such system. When the Union is not 
to be restored, when there is nothing of that feeling to make the 
people endure, do you suppose they will endure forever? Do you 
suppose this bill will attach the people in these eleven States more 
thoroughly to the Union than they felt when they reorganized 
their State governments, passed laws manumitting their slaves, 
electing their .Legislatures, and doing all that was indicated as 
necessary to be done ? Do you suppose that there will ever come 
a time, under this bill, that they will desire to become members 
of this Union once more? I see in this bill exactly how Ken- 
tucky is tolerated here; for as to having part in this legislation, 
when she is charged openly with being' ruled at home by rebels, . 
our counsels can be of no good here; but still we are not to be 
driven from the Union, and from raising our voice in favor of it, 
and raising it in favor of conciliation and confidence from one 
section to the other. Gentlemen do not get these doctrines of 
hatred and vengeance from the Gospel. These are not the doc- 
trines taught by the Savior of the world. While you cry for 
justice to the African, you are not slow to commit wrong and 
outrage on the white race. 

"Sir, there were rebels in all the States, and will be again 
if you drive these people to desperation. The Senator from 
Massachusetts, if I understood his language aright, threatened us 
with war or worse if we did not yield to his suggestions, and the 
Senator from Indiana intimated very strongly the same thing. 
You have strength enough to carry these measures, if it is the 



THE EEEEDMEJV. 161 

sentiment of the nation; but we are not a people to be alarmed 
by words or threats." 

Mr. Sherman had been, as he said, " during this whole debate, 
rather a spectator than a participant." Not desiring to commit 
himself too hastily, he had reserved his opinion that he might 
let and vote understanding^-, without feeling, or prejudice, or 
passion. It was after full reflection that he voted for the bill so 
( harshly characterized by the Senator from Kentucky, who had 
evinced a degree of feeling entirely uncalled for. Mr. Sherman 
said further: "I look upon the Freedman's Bureau Bill as sim- 
ply a temporary protection to the freedmen in the Southern States. 
We are bound by every consideration of honor, by every obliga- 
tion that can rest on any people, to protect the freedmen from 
the rebels of the Southern States; ay, sir, and to protect them 
from the loyal men of the Southern States. We know that, 'on 
account of the prejudices instilled by the system of slavery per- 
vading all parts of the Southern States, the Southern people will 
not do justice to the freedmen of those States. We know that in 
the course of the war the freedmen have been emancipated ; that 
they have aided us in this conflict ; and, therefore, we are bound, 
by every consideration of honor, faith, and of public morals, to 
protect and maintain all the essential incidents of freedom to them. 
I have no doubt that in doing this we shall encounter the preju- 
dices not only of rebels, but of loyal men ; but still the obligation 
and guarantee is none the less binding on us. We must maintain 
their freedom, and with it all the incidents and all the rights of 
freedom." 

Mr. Henderson, of Missouri, like the Senator from Ohio, had 
hitherto taken no part in the discussion. He was opposed to the 
limitations placed upon the bill by the House of Eepresentatives. 
" I would not have voted for it if it had not beene carried to my 
own State ; and if this amendment of the House of Eepresenta- 
tives is to be adopted, I will not vote for the bill. I want the 
bill to be made general. If it is to be made special, if it is to be 
applied to Kentucky only, I appreciate the feeling that drove my 
friend from Kentucky to make the most unfortunate lemark that 
has been made upon the floor of the Senate since 1861. I sin- 
cerely hope, for the good of the country, that the distinguished 
Senator may see fit to take back what he said a few moments ago. 
" Sir, we have had enough of disunion. I hope that no Senator 
11 



162 THE THIRTY-NINTH CONGRESS. 

in the future will rise upon this floor and talk, under any circum- 
stances whatever, of another war of rebellion against the consti- 
tuted authorities of this country. My God ! are we again to pass 
through the scenes of blood through which we have passed for the 
last four years ? Are we to have this war repeated ? No Freed- 
men's Bureau Bill, no bill for the protection of the rights of any 
body, shall ever drive me to dream of such a thing." 

Mr. Henderson thought a better protection for the negro than . 
the Freedmen's Bureau would be the ballot. He said : " I live 
in a State that was a slaveholding State until last January a year 
ao-o. I have been a slaveholder all my life until tke day when 
the ordinance of emancipation was passed in my State. I advo- 
cated it, and have advocated emancipation for the last four years, 
at least since this war commenced. Do you want to know how 
to protect the freedmen of the Southern States? This bill is use- 
less for that purpose. It is not the intention of the honorable 
Senators on this floor from Northern States, who favor this bill, 
to send military men to plunder the good people of Kentucky. 
It is an attempt to enforce this moral and religious sentiment of 
the people of the Northern States. Sir, these freedmen will be 
protected. The decree of Almighty God has gone forth, as it 
went forth in favor of their freedom originally, that they shall be 
endowed with all the rights that belong to other men. Will you 
protect them? Give them the ballot, Mr. President, and then 
they are protected." 

In reference to the remarks by Mr. Henderson, Mr. Trumbull 
said : " The zeal of my friend from Missouri seems to have run 
away with him. Having come from being a slaveholder to the 
position of advocating universal negro suffrage as the sovereign 
remedy for every thing, he manifests a degree of zeal which I 
have only seen equaled, I confess, by some of the dicoverers of 
patent medicines who have found a grand specific to cure all dis- 
eases ! Why, he says this bureau is of no account ; give the negro 
the ballot, and that will stop him from starving; that will feed 
him ; that will educate him ! You have got on your hands to- 
day one hundred thousand feeble, indigent, infirm colored popu- 
lation that would starve and die if relief were not afforded ; and 
the Senator from Missouri tells you, 'This is all nonsense; give 
them the right of suffrage, and that is all they want.' This to 
feed the hungry and clothe the naked ! He has voted for these 



THE FREEDMEN. 163 

bill-; but if you will only just give the right of suffrage, you do 
not want to take care of any starving man, any orphan child, 
any destitute and feeble person that can not take care of himself! 
It i- the most sovereign reined}- that I have heard of since the 
days ofTownsend's Sar-aparilla." 

I.'. ferring to the feeling manifested by Mr. Guthrie, Mr. Trum- 
bull Baid: "God forbid that I should put a degradation on the 
people of Kentucky. I never thought of such a thing. I would 
sooner cut off my right hand than do such a thing. What is it 
that ao excites and inflames the mind of the Senator from Ken- 
tucky that he talk- about the degradation that is to be put upon 
her, the plunder of her people, the injustice that is to be done 
her inhabitants? Why, -ir, a bill to help the people of Ken- 
tucky to tal.e care of the destitute negroes, made free without 
any property whatever, without the means of support, left to 
starve and to die unless somebody cares for them; and we pro- 
pose in the Congress of the United States to help to do it. Is 
that a degradation? I- that an injustice? I- that the way to 
roll a people? " 

Mr. McDougall having subsequently obtained the floor, made 
the remark: " I, being a white man, say for the white men and 
white women that they will take care Of themselves. This bill 
was not made for white women or white men, or white to en and 
women's children." 

This brought out the following statistical statement from Mr. 
Trumbull: "I have before me the official report, which shows 
the consolidated number of rations issued in the different districts 
and States during the month of June, July, August, September, 
and October, 1865. In June there were issued to refugees three 
hundred and thirteen thousand six hundred and twenty-seven ra- 
tions, and thirty six thousand one hundred and eighty-one to 
freedmen. In August, in Kentucky and Tennessee, there were 
issued to refugees eighty-seven thousand one hundred and eighty 
rations, and to freedmen eighty-seven thousand one hundred and 
ninety-five — almost an equality." 

Mr. Johnson, of Maryland remarked : " The object of the bill 
is a very correct one; these people should be taken care of; and 
as it is equally applicable to the whites and to the blacks, and 
the whites in many of the States requiring as much protection as 
the blacks, I would very willingly vote for the bill if I thought 



164 THE THIRTY-NINTH CONGRESS. 

we had the power to pass it; but on the question of power I 
have no disposition now or perhaps at any time in the present 
stage of the bill to trouble the Senate." 

The bill soon after jiassed the Senate as amended in the House, 
and reamended in the Senate, by a vote of twenty-nine to seven. 

On the following day, the amendments of the Senate were con- 
curred in by the House without debate, and the Freedmen's Bu- 
reau Bill was ready to be submitted to the Executive. 

Ten day's after the final passage of the bill, the President sent 
to the Senate a message, "with his objection thereto in writing." 

The Senate immediately suspended other business to hear the 
Veto Message, which was read by the Secretary, as follows: 

l 'To the Senate of the United States: 

"I have examined with care the bill which originated in the Senate, and 
has been passed by the two houses of Congress, to amend an act entitled 
'An act to establish a Bureau for the relief of Freedmen and Kefugees,' 
and for other purposes. Having, with much regret, come to the conclusion 
that it would not be consistent with the public welfare to give my approval 
to the measure, I return the bill to the Senate with my objections to its be- 
coming a law. 

"I might call to mind, in advance of these objections, that there is no im- 
mediate necessity for the proposed measure. The act to establish a Bureau 
for the relief of Freedmen and Refugees, which was approved in the month 
of March last, has not yet expired. It was thought stringent and extensive 
enough for the purpose in view in time of war. Before it ceases to have 
effect, further experience may assist to guide us to a wise conclusion as to 
the policy to be adopted in time of peace. 

" I share with Congress the strongest desire to secure to the freedmen 
the full enjoyment of their freedom and property, and their entire indepen- 
dence and equality in making contracts for their labor; but the bill before 
me contains provisions which, in my opinion, are not warranted by the Con- 
stitution, and are not well suited to accomplish the end in view. 

"The bill proposes to establish by authority of Congress, military juris- 
diction over all parts of the United States containing refugees and freedmen. 
It would, by its very nature, apply with most force to those parts of the 
United States in which the freedmen most abound ; and it expressly extends 
the existing temporary jurisdiction of the Freedmen's Bureau, with greatly 
enlarged powers, over those States 'in which the ordinary course of judicial 
proceeding, has been interrupted by the rebellion.' The source from which 
this military jurisdiction is to emanate is none other than the President of 
the United States, acting through the War Department and the commissioner 
of the Freedmen's Bureau. The agents to carry out this military jurisdic- 
tion are to be selected either from the army or from civil life ; the country 
is to be divided into districts and sub-districts ; and the number of salaried 



THE FREEDMEN. 165 

agents to be employed may be equal to the number of counties or parishes 
in all the United States where freedmen and refugees are to be found. 

"The subjects over which this military jurisdiction is to extend in every 
part of the United States include protection to 'all employes, agents, and 
officers of this bureau in the exercise of the duties imposed ' upon them by 
the bill. In eleven States it is further to extend over all cases affecting 
freedmen and refugees discriminated against 'by local law, custom, or .prej- 
udice.' In those eleven States the bill subjects any white person who may 
be charged with depriving a freedman of ' any civil rights or immunities 
belonging to white persons ' to imprisonment or fine, or both, without, how- 
ever, defining the ' civil rights and immunities ' which are thus to be secured 
to the freedmen by military law. This military jurisdiction also extends to 
all questions that may arise respecting contracts. The agent who is thus to 
exercise the office of a military judge may be a stranger, entirely ignorant 
of the laws of the place, and exposed to the errors of judgment to which all 
men are liable. The exercise of power, over which there is no legal super- 
vision, by so vast a number of agents as is contemplated by the bill, must, 
by the very-nature of man, be attended by acts of caprice, injustice, and 
passion. 

"The trials, having their origin under this bill, are to take place without 
the intervention of a jury, and without any fixed rules of law or evidence. 
The rules on which offenses are to be ' heard and determined ' by the nu- 
merous agents, are such rules and regulations as the President, through the 
War Department, shall prescribe. Fo previous presentment is required, 
nor any indictment charging the commission of a crime against the laws ; 
but the trial must proceed on charges and specifications. The punishment 
will be, not what the law declares, but such as a court-martial may think 
proper; and from these arbitrary tribunals there lies no appeal, no writ of 
error to any of the courts in which the Constitution of the United States 
vests exclusively the judicial power of the country. 

"While the territory and the classes of actions and offenses that are made 
subject to this measure are so extensive, the bill itself, should it become a 
law, will have no limitation in point of time, but will form a part of the 
permanent legislation of the country.' I can not reconcile a system of mili- 
•tary jurisdiction of this kind with the words of the Constitution, which de- 
clare that 'no person shall be held to answer for a capital or otherwise 
infamous crime unless upon a presentment or indictment of a grand jury, 
except in cases arising in the land and naval forces, or in the militia when 
in actual service in time of war or public danger ; ' and that ' in all crim- 
inal prosecutions the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury of the State or district wherein the crime shall 
have been committed.' The safeguards which the experience and wisdom 
of ages taught our fathers to establish a^s securities for the protection of the 
innocent, the punishment of the guilty, and the equal administration of 
justice, are to be set aside, and for the sake of a more vigorous interposition 
in behalf of justice, we are to take the risk of the many acts of injustice 
that would necessarily follow from an almost countless number of agents 
established in every parish or county in nearly a third of the States of the 



166 THE THIBTY-NINTH CONGRESS. 

Union over whose decisions there is to be no supervision or control by the 
Federal courts. The power that would be thus placed in the hands of the 
President is such as in time of peace- certainly ought' never to be intrusted 
to any one man. _ • 

"If it be asked whether the creation of such a tribunal within a State is 
warranted as a measure of war, the question immediately presents itself 
whether we are still engaged in war. Let us not unnecessarily disturb the 
commerce and credit and industry of the country by declaring to the Amer- 
ican people and to the world, that the United States are still in a condition 
of civil war. At present there is no part of our country in which ijie au- 
thority of the United States is disputed. Offenses that may be committed 
by individuals should not work a- forfeiture of the rights of whole commu- 
nities. The country has returned, or is returning, to a state of peace and 
industry, and the rebellion is in fact at an end. The measure, therefore, 
seems to be as inconsistent with the actual condition of the country as it is 
at variance with the Constitution of the United States. 

"If, passing from general considerations, we examine the bill in- detail, 
it is open to weighty objections. 

"In time of war*it was eminently proper that we should provide for those 
who were passing suddenly from a condition of bondage to a state of free- 
dom. But this bill proposes to make the Freedmen's Bureau, established by 
the act of 1865 as one of many great and extraordinary military measures to 
suppress a formidable rebellion, a permanent branch of the public adminis- 
tration, with its powers greatly enlarged. I have no reason to suppose, and I 
do not understand it to be alleged, that the act of March, 18G5, has proved 
deficient for the purpose for which it was passed, although at that time, 
and for a considerable period thereafter, the Government of the United 
States remained unacknowledged in most of the States whose inhabitants 
had been involved in the rebellion. The institution of slavery, for the mili- 
tary destruction of .which the Freedmen's Bureau was called into existence as 
an auxiliary, has been already effectually and finally abrogated throughout 
the whole country by an amendment of the Constitution of the United States, 
and practically its eradication has received the assent and concurrence of 
most of those States in which it at any time had an existence. I am not, 
therefore, able to discern, in the condition of the country, any thing to jus- 
tify an apprehension that the powers and agencies of the Freedmen's Bu- 
reau, which were effective for the protection of freedmen and refugees dur- 
ing the actual continuance of hostilities and of African servitude, will now, 
in a time of peace, and after the abolition of slavery, prove inadequate to 
the same proper ends. If I am correct in these views, there can be no ne- 
cessity for the enlargement of the powers of the bureau, for which provision 
is made in the bill. 

"The third section of the bill authorizes a general and unlimited grant 
of support to the destitute and suffering refugees and freedmen, their wives 
and children. Succeeding sections make provision for the rent or purchase 
of landed estates for freedmen, and for the erection for their benefit of suit- 
able buildings for asylums and schools, the expenses to be defrayed from 
the Treasury of the whole people. The Congress of the United States has 



THE FREEDMEJf. 167 

never heretofore thought itself empowered to establish asylums beyond the 
limits of the District of Columbia, except for the benefit of our disabled 
soldiers and sailors. It has never founded schools for any class of our own 
people, not even for the orphans of those who have fallen in the defense of 
the Union ; but has left the care of education to the much more competent 
and efficient control of the States, of communities, of private associations, 
and of individuals. It has never deemed itself authorized to.expend the 
public money for the rent or purchase of homes for the thousands, not to 
say millions, of the white race, who are honestly toiling from day to day 
for their subsistence. A system for the support of indigent persons in the 
United States was never contemplated by the authors of the Constitution, 
nor can any good reason be advanced why, as a permanent establishment, 
it should be founded for one class or color of our people more than another. 
Pending the war, many refugees and freedmen received support from the 
Government, but it was never intended that they should thenceforth be fed, 
clothed, educated, and sheltered by the United States. The idea on which 
the slaves were assisted to freedom was that, on becoming free,' they would 
be a self-sustaining population. Any legislation that shall imply that they 
are not expected to attain a self-sustaining condition must have a tendency 
injurious alike to their character and their prospects. 

"The appointment of an agent for every county and parish will create an 
immense patronage; and the expense of the numerous officers and their 
clerks, to be appointed by the President, will be great in the beginning, 
with a tendency steadily to increase. _ The appropriations asked by the 
Freedmen's Bureau, as now established, for the year 1866, amount to 
$11,745,000. It may be safely estimated that the cost to be incurred under 
the pending bill will require double that amount— more than the entire 
sum expended in any one year under the administration of the second 
Adams. If the presence of agents in every parish and county is to be con- 
sidered as a war measure, opposition, or even resistance, might be pro- 
voked, so that, to give effect to their jurisdiction, troops would have to be 
stationed within reach of every one of them, and thus a large standing 
force be rendered necessary. Large appropriations would therefore be re- 
required to sustain and enforce military jurisdiction in every county or 
parish from the Potomac to the Rio Grande. The condition of our fiscal 
affairs is encouraging, but, in order to sustain the present measure of pub- 
lic confidence, it is necessary that we practice not merely customary econ- 
omy, but, as far as possible, severe retrenchment. 

"In addition to the objections already stated, the fifth section of the bill 
proposes to take away land from its former owners without any legal pro- 
ceedings being first had, contrary to that provision of the Constitution which 
declares that no person shall ' be deprived of life, liberty, or property, with- 
out due process of law.' It does not appear that a part of the lands to which 
this section refers may not be owned by minors or persons of unsound mind, 
or by those who have been faithful to all their obligations as citizens of the 
United States. If any portion of the land is held by such persons, it is not 
competent for any authority to deprive them of it. If, on the "other hand, 
it be found that the property is liable to confiscation, even then it can not 



168 THE THIRTY-MINTS CONGRESS. 

be appropriated to public purposes until, by due process of law, it shall 
have been declared forfeited to the Government. 

"There is still further objection to the bill on grounds seriously affecting 
the class of persons to whom it is designed to bring relief; it will tend to 
keep the mind of the freedman in a state of uncertain expectation and rest- 
lessness, while to those among whom he lives it will be a source of constant 
and vague apprehension. 

"Undoubtedly the freedman should be protected, but he should be pro- 
tected by the civil authorities, especially by the exercise of all the constitu- 
tional powers of the courts of the United States and of the States. His 
condition is not so exposed as may at first be imagined. He is in a portion 
of the country where his labor can not well be spared. Competition for 
his services from planters, from those who are constructing or repairing 
railroads, and from capitalists in his vicinage or from other States, will en- 
able him to command almost his own terms. He also possesses a perfect 
right to change his place of abode; and if,' therefore, he does not find in 
one community or State a mode of life suited to his desires, or proper re- 
muneration for his labor, he can move to another, where that labor is more 
esteemed and better rewarded. In truth, however, each State, induced by 
its own wants and interests, will do what is necessary and proper to retain 
within its borders all the labor that is needed for the development of its 
resources. The laws that regulate supply and demand will maintain their 
force, and the wages of the laborer will be regulated thereby. There is no 
danger that the exceedingly great demand for labor will not operate in favor 
of the laborer. 

"Neither is sufficient consideration given to the ability of the freedmen 
to protect and take care of themselves. It is no more than justice to them 
to believe that, as they have received their freedom with moderation and 
forbearance, so they will distinguish themselves by their industry and thrift, 
and soon show the world that, in a condition of freedom, they are self-sus- 
taining, capable of selecting their own employment and their own places 
of abode, of insisting for themselves on a proper remuneration, and of es- 
tablishing and maintaining their own asylums and schools. It is earnestly 
hoped that, instead of wasting away, they will, by their own efforts, estab- 
lish for themselves a condition of respect, ability, and prosperity. It is 
certain that they can attain to that condition only through their own merits 
and exertions. 

"In this connection the query presents itself, whether the system pro- 
posed by the bill will not,* when put into complete operation, practically 
transfer the entire care, support, and control of four million emancipated 
slaves to agents, overseers, or task-masters, who, appointed at Washington, 
are to be located in every county and parish throughout the United States 
containing freedmen and refugees? Such a system would inevitably tend 
to a concentration of power in the Executive which would enable him, if so 
disposed, to control the action of this numerous class and use them for the 
attainment of his own political ends. 

"I can not but add another very grave objection to this bill: The Consti- 
tution imperatively declares, in connection with taxation, that each State 



THE FREEDMEN. 169 

shall have at least one Representative, and fixes the rule for the number to 
which, in future times, each State shall be entitled. It also provides that 
the Senate of the United States shall be composed of two Senators from 
each State, and adds, with peculiar force, 'that no State, without its con- 
sent, shall be deprived of its ecpial suffrage in the Senate.' The original 
act was necessarily passed in the absence of the States chiefly to be af- 
fected, because their people were then contumaciously engaged in the re- 
bellion. Now the case is changed, and some, at least, of those States are 
attending Congress by loyal Representatives, soliciting the allowance qf the 
constitutional right of representation. At the time, however, of the consid- 
eration and the passing of thi^s bill, there was no Senator or Representative 
in Congress from the eleven States which are to be mainly affected by its 
provisions. The very fact that reports were and are made against the good 
disposition of the people of that portion of the country is an additional reason 
why they need, and should have, Representatives of their own in Congress to 
explain their condition, reply to accusations, and assist, by their local knowl- 
edge, in the perfecting of measures immediately affecting themselves. While 
•the liberty of deliberation would then be free, and Congress would have full 
power to decide according to its judgment, there could be no objection urged 
that the States most interested had not been permitted to be heard. The 
principle is firmly fixed in the minds of the American people that there 
should be no taxation without representation. 

"Great burdens have now to be borne by all the country, and we may 
best demand that they shall be borne without murmur when they are voted 
by a majority of the Represetatives of all the people. I would not inter- 
fere with the uncpaestionable right of Congress to judge, each house for 
itself, ' of the elections, returns, and qualifications of its own members,' but 
that authority can not be construed as including the right to shut out, in 
time of peace, any State from the representation to which 'it is entitled by 
the Constitution. At present, all the people of eleven States are excluded — 
those who were most faithful during the war not less than others. The 
State of Tennessee, for instance, whose authorities engaged in rebellion, 
was restored to all her constitutional relations to the Union by the patriot- 
ism and energy of her injured and betrayed people. Before the war was 
brought to a termination, they had placed themselves in relation with the 
General Government, had established a State government of their own; as ' 
they were not included in the Emancipation Proclamation, they, by their 
own act, had amended their Constitution so as to abolish slavery within 
the limits of their State. I know no reason why the State of Tennessee, 
for example, should not fully enjoy 'all her constitutional relations to the 
United States.' 

"The President of the United States stands toward the country in a some- 
what different attitude fr'om that of any member of Congress. Each mem- 
ber of Congress is chosen from a single district or State; the President is 
chosen by the people of all the States. As eleven are not at this time rep- 
resented in either branch of Congress, it would seem to be his duty, on all 
proper occasions, to present their just claims to Congress. The're always 
will bo. differences of opinion in the community, and individuals may be 



170 THE THIRTY-NINTH CONGRESS.. 

be guilty of transgressions of the law; but these do not constitute valid 
objections against the right of a State to representation. I would in nowise 
interfere with the discretion of Congress with regard to the qualifications 
of members; but I hold it my duty to recommend to you, in the interests 
of peace and in the interests of union, the. admission of every State to its 
share in public legislation when, however insubordinate, insurgent, or re- 
bellious its people may have been, it presents itself, not only in an attitude 
of loyalty and harmony, but in the persons of Representatives whose loy- 
alty qan not be questioned under any existing constitutional or legal test. 

"It is plain that an indefinite or permanent exclusion of any part of the 
country from representation must be attended by a spirit of disquiet and 
complaint. It is unwise and dangerous to pursue a course of measures 
which will unite a very large section of the country against another section 
of the country, however much the latter may preponderate. The course of 
emigration, the development of industry and business, and natural causes will 
raise up at the South men as devoted to the Union as those of any other 
part of the land. But if they are all excluded from Congress — if, in a per- 

* manent statute, they«are declared not to be in full constitutional relations, 
to the country — they may think they have cause to become a unit in feeling 
and sentiment against the Government. Under the political education of 
the American" people, the idea is inherent and ineradicable that the con- 
sent of the majority of the whole people is necessary to secure a willing 
acquiescence in legislation. 

"The bill under consideration refers to certain of the States as though 
they had not 'been fully restored in all their constitutional relations to the 
United States.' If they have not, let us at once act together to secure that 
desirable end at the earliest possible moment. It is hardly necessary for me 
to inform Congress that, in my own judgment, most of these States, so far, 
at least, as depends upon their own action, have already been fully restored, 
and are to be deemed as entitled to enjoy their constitutional rights as mem- 
bers of the Union. Reasoning from the Constitution itself, and from the 
actual situation of the country, I feel not only entitled but bound to as- 
sume that, with the Federal courts restored, and those of the several States 
in the full exercise of their functions, the rights and interests of all classes 
of the people will, with the aid of the military in cases of resistance to the 

'laws, be essentially protected against unconstitutional infringement or viola- 
tion. Should this expectation unhappily fail — which I do not anticipate — 

' then the Executive is already fully armed with the powers conferred by the 
act of March, 1865, establishing the Freedmen's Bureau, and hereafter, as 

' heretofore, he can employ the land and naval forces of the country to sup- 
press insurrection or to overcome obstructions to the laws. 

"In accordance with the Constitution,- I return the bill to the Senate, in 
the earnest hope that a measure involving questions and interests so im- 
portant to the country will not become a law unless, upon deliberate con- 
sideration by the people, it shall receive the sanction of an enlightened 
public judgment. 

"ANDREW JOHNSON." 








s^^^^^f 






THE FREEDMEN. 171 

The majority of the Senate was in favor of proceeding imme- 
diately to the consideration of the message, and to have a vote as 
to whether the bill should be passed, "the objections of the. Presi- 
dent to the contrary notwithstanding." To this Mr. Lane, of 
Kansas, was opposed. ^He said: "There are several Senators 
absent, and I think it but just to them that they should have an 
opportunity to be present when the vote is taken on this bill. I 
can not consent, so long as I can postpone this question by the 
rules of the Senate, to have a vote upon it to-night." Mr. Lane 
accordingly made four successive motions to -adjourn, in each of 
which he called for the yeas and nays. Finally, the motion for 
adjournment having been made for the fifth time, it was carried, 
with the understanding that the bill should be the pending ques- 
tion at one o'clock on the following day. 

On that day, February 20th, the bill and the message came 
duly before the Senate. Mr. Davis obtained the floor, and made 
a long speech in opposition to the bill and in favor of the Veto 
Message. He expressed his aversion to the bill, and the objects 
sought to be attained under it in very emphatic terms, but added 
nothing to the arguments which had already been adduced. 

Mr. Trumbull replied to the objections urged against the bill 
in the President's Message. The President said, "The bill, 
should it become a law will have no limitation in point of time, 
but will form a part of the permanent legislation of the country." 

"The object of the bill," replied Mr. Trumbull, ""was to con- 
tinue in existence the Freedmen's Bureau — not as a permanent in- 
stitution. Any such intent was disavowed during the discussion of 
the bill. It is true, no time is expressly limited in the bill itself 
when it shall cease to operate, nor is it customary to insert such 
a clause in a law; but it is declared that the bill shall operate 
until otherwise provided by law. It is known that the Congress 
of the United States assembles every year, and no one supposed 
that this bill was to establish a burejau to be ingrafted upon the 
country as a permanent institution ; far from it. Nor is it a bill 
that is intended to go into the States and take control of the do- 
mestic affairs of the States." 

" There is no immediate necessity for the. proposed measure," 
said the President • " the act to establish a Bureau for the Eelief 
of Freedmen and Refugees, which was approved in the month of 



172 THE THIRTY-NINTH CONGRESS. 

March last, has not yet expired. It was thought stringent and 
extensive enough for the purpose in view in time of war." 

Mr* Trumbull replied-: "By. the terms of the act, it was to con- 
tinue 'during the present war of rebellion and for one year there- 
after.' Now, when did the war of rebellion cease ? So far as the 
conflict of arms is concerned, we all admit that the war of 'rebell- 
ion ceased when the last rebel army laid down its arms, and that 
was some time in the month of May, when the rebel army in 
Texas surrendered to the Union forces. I do not hold that the 
consequences of the war are over. I do not understand that 
peace is restored with all its consequences. We have not yet 
escaped from the evils inflicted by the war. Peace and harmony 
are not yet restored, but the war of rebellion is over, and this 
bureau must expire in May next, according to the terms of the 
act that was passed on the 3d of March, 1865, and according" to 
the views of the President as expressed in his Veto Message." 

" The bill," said the President, " proposes to establish by author- 
ity of Congress, military jurisdiction over all parts of the United 
States containing refugees and freedmen." 

" I would like to know," said Mr. Trumbull, " where in that 
bill is any provision extending military jurisdiction over all parts 
of the United States containing refugees and freedmen '? The bill 
contains no such clause. It .is a misapprehension of the bill. 
The clause of the bill upon that subject is. this: 

" ' And the President of the United States, through the "War Department 
and the commissioner, shall extend military jurisdiction and protection over 
all employes, agents, and officers of this bureau in the exercise of the duties 
imposed or authorized by this act or the act to which this is additional.' 

" Is not the difference manifest to every body between a bill 
that extends military jurisdiction over the officers and employes 
of the bureau and a bill which should extend military jurisdiction 
over all parts of the United States containing refugees and freed- 
men ? This bill makes the Freedmen's Bureau a part of the War 
Department. It makes its officers and agents amenable to the 
Rules and Articles of "War. But does that extend jurisdiction 
over the whole country where they are ? How do they differ from 
any other portion of the army of the United States ? The army 
of the United States, as every one knows, is governed by the 
Rules and Articles of War, wherever it may be, whether in Indi- 



THE FREEDMEN. 173 

ana or in Florida, and all persons in the army and a part of the 
military establishment are subject to these Rules and Articles of 
AVar ; but did any body ever suppose that the whole country where 
they were was under military jurisdiction ? If a company of sol- 
diers are stationed at one of the forts in Xew York harbor, the 
officers and soldiers of that company are subject to military juris- 
diction ; but was it ever supposed that the people of the State of 
Xew York were thereby placed under military jurisdiction? It 
is an entire niisajmrehension of the provisions of the bill. It ex- 
tends military jurisdiction nowhere; it merely places uncler juris- 
diction the persons belonging to the Freedmen's Bureau who, 
nearly all of them, are now under military jurisdiction." 

" The country," objected the President, " is to be divided into 
districts and sub-districts, and the number of salaried agents to 
be employed may be equal to the number of counties or parishes 
in all the States where freedmen and refugees are to be found." 

Mr. Trumbull replied : " A single officer need not be employed 
other than those we now have. I have already stated that it is 
in the power and discretion of the President to detail from the 
army officers to perform all the duties of the Freedmen's Bureau, 
and, in case they are detailed, the bill provides, that they shall 
serve without any additional compensation or allowance. But, 
sir, is it necessary, or was it ever contemplated, that there should 
be an officer or agent of the Freedmen's Bureau in every county 
and every parish where refugees and freedmen are to be found? 
By no means. What is the bill upon that subject? Does it 
make it imperative upon the President to appoint an agent in 
each county and parish? It authorizes him 'when the same 
shall be necessary for the operations of the bureau;' not other- 
wise. He has no authority, under the bill, to apppoint a single 
agent unless it is necessary for the operations of the bureau, and 
then he can only appoint so many as may be needed. Sir, it 
never entered the mind, I venture to say, of a single advocate 
of this bill, that the President of the United States would so 
abuse the authority intrusted to him as to station an agent in 
every county in these States; but it was apprehended that there 
might be localities in some of these States where the prejudice 
and hostility of the white population and the former masters 
were such toward the negroes that it would be necessary to 
have an agent in every county in that locality for their protec- 



174 THE THIRTY-NINTH CONGRESS. 

tion- and, in order to give the President the necessary discre- 
tion where this should be requisite, the bill authorized, when it 
was "necessary for the operations of the bureau, the appointment 
of an agent in each county or parish. In order to vest the Pres- 
ident with sufficient power in some localities, it was necessary, 
legislating by general law, to give him much larger power than 
would be necessary in other localities. 

"Sir, the country is not to be divided, I undertake to say, 
into districts and sub-districts unless the President of the United 
States finds it necessary to do so for the protection of these peo- 
ple ; and if the law should be abused in that respect, it would be 
because he abused the discretion vested in him by Congress, and 
not because the law required it. It makes no such requirement." 

"This military jurisdiction," said the President, "also extends 
to all questions that may arise respecting contracts." 

" So far," replied Mr. Trumbull, " from extending this military 
jurisdiction over all questions arising concerning contracts, and 
so far from extending military jurisdiction anywhere, it is ex- 
pressly provided, by the very terms of the bill, that no such juris- 
diction shall be exercised except where the President himself has 
established and is maintaining military jurisdiction, which he is 
now doing in eleven States ; and the very moment that he ceases to 
maintain military jurisdiction, that very moment the military juris- 
diction conferred over freedmen by this act ceases and terminates. 

"Sir, the whole jurisdiction to try and dispose of cases by the 
officers and agents of the Freedmen's Bureau is expressly limited 
to the time when these States shall be restored to their constitu- 
tional relations, and when the courts of the United States and 
of the States are not interrupted nor interfered with' in the peace- 
able course of justice. So far, then, from the bill establishing a 
military jurisdiction, upon which the Senator from Kentucky 
and other Senators have so much harped, it confers no jurisdic- 
tion to try cases one moment after the courts are restored, and 
are no longer interrupted in the peaceable administration of jus- 
tice. Let me ask by what authority is it that military tribunals 
are sitting to-day at Alexandria, Virginia? By what authority 
is it that the writ of habeas corpus is suspended to-day in eleven 
States, when the Constitution of the United States says that the 
writ shall not be suspended except when, in cases of rebellion 
and invasion, the public safety may require it. By what author- 



THE FREEBMEK. 175 

ity dose the President *of the United States object to the exercise 
of military jurisdiction by that part of the army charged with 
the execution of the provisions of the Freedmen's Bureau when 
he exercises that military jurisdiction himself by other portions 
of the army? But a few days since a military commission was 
sitting in Alexandria, trying persons charged with crimes — and 
they are held all over the South— and yet that part of the army 
connected with the Freedmen's Bureau can not exercise any such 
authority because it is unconstitutional — ^unconstitutional to do 
by virtue of a law of Congress what is done without any law ! 

"Where does the Executive get the power? # The Executive 
i> but the Commander-in-chief of the armies, made so by the 
Constitution; but he can not raise an army or a single soldier, 
he can not appoint a single officer, without the consent of Con- 
gress. He can not make any rules and regulations for the gov- 
ernment of the army without our permission. The Constitution 
of the United States declares, in so many words, that Congress 
shall have power ' to make rules for the government and regula- 
tion of the land and naval forces ' of the United States. Can it 
be that that department of the Government, vested in express 
terms by the Constitution itself with authority to make rules for 
the government and regulation of the land and naval forces, has 
no authority to direct that portion of the land and naval forces 
employed in the Freedmen's Bureau to exercise this jurisdiction 
instead of department commanders? Sir, it is competent for 
Congress to declare that no department commanders shall exer- 
cise any such authority; it is competent for Congress to declare 
that a court-martial shall never sit, that a military commission 
shall never be held, and the President is as much bound to 
obey it as the humblest citizen in the land." 

The President said : " The trials having their origin under this 
bill are to take place without the intervention of a jury,, and 
without any fixed rules of law or evidence." 

" Do not all military trials take place in that way," asked Mr. 
Trumbull. " Did any body ever hear of the presentment of a 
grand jury in a case where a court-martial set for the trial of a 
military offense, or the' trial of a person charged with any oifense 
cognizable before it? This Freedmen's Bureau Bill confers no 
authority to do this except in those regions of country where 
military authority prevails, where martial law is established, 



176 THE THIRTY-NINTH CONGRESS. 

where persons exercising civil authority act in subordination to 
the military power, and where the moment they transcend the 
proper limits as fixed by military orders, they are liable to be 
arrested and punished without the intervention of a grand jury, 
or without the right of appeal to any of the judicial tribunals of 
the country. I would as soon think of an appeal from the decis- 
ion of the military tribunal that sat in the city of Washington, 
and condemned to death the murderers of our late President, to 
the judicial tribunals of the country! Where military authority 
bears sway, where the courts are overborne, is it not an absurd- 
ity to say that you must have a presentment of a grand jury, 
and a trial in a court." 

"I can not reconcile a system of military jurisdiction of this 
kind with the words of the Constitution," said the President. 

" If you can not reconcile a system of military jurisdiction of 
this kind with the words of the Constitution, why have you been 
exercising it," asked Mr. Trumbull. "Why have you been or- 
ganizing courts-martial and military commissions all over the 
South, trying offenders, and punishing some of them with death ? 
Why have you authorized the present Freedmen's Bureau to hold 
bureau courts all through the South ? This has all been done by 
your permission, and is being done to-day. Then, sir, if you are 
still in the exercise of this power now, if you have been exercis- 
ing it from the day you became President of the United States, 
how is it that you can not reconcile a system of jurisdiction of 
this kind with the words of the Constitution ? 

"Sir, does it detract from the President's authority to have 
the sanction of law? I want to give that sanction. I do not 
object to the exercise of this military authority of the President 
in the rebellious States. I believe it is constitutional and legiti- 
mate and necessary; but I believe Congress has authority to 
regulate it. I believe Congress has authority to direct that this 
military jurisdiction shall be exercised by that branch of the 
army known as the Freedmen's Bureau, as well as by any other 
branch of the army." 

"The rebellion is at an end," said the President. "The 
measure, therefore, seems to be as inconsistent with the actual 
condition of the country as it is at variance with the Constitution 
of the United States." 

Mr. Trumbull replied : " If the rebellion is at an end, will any 



THE FREEDMEN. 177 

body tell me by what authority the President of the United States 
suspends the writ of habeas corpus in those States where it existed. 
The act of Congress of March, 18G3, authorized the President of 
the United States to suspend the writ of habeas corpus during the 
present rebellion. He says it is at an end. By what authority, 
then, does he suspend the writ? By his own declaration, let 
him stand or fall. If it is competent to suspend the writ, if it 
is competent for military tribunals to sit all through the South, 
and entertain military jurisdiction, this bill, which does not con- 
tinue military jurisdiction, does not establish military jurisdiction, 
but only authorizes the officers of this bureau, while military 
jurisdiction prevails, to take charge of that particular class of 
cases affecting the refugee or freedman where he is discriminated 
against, can not be obnoxious to any constitutional objection." 

"This bill," said the President, "proposes to make the Freed- 
mcn's Bureau, established by the act of 1865, as one of many 
great and extraordinary military measures to suppress a formida- 
ble rebellion, a permanent branch of the public administration, 
with its powers greatly enlarged." 

" This is a mistake," replied Mr. Trumbull ; " it is not intended, 
I apprehend, by any body, certainly not by me, to make it a 
permanent branch of the public administration; and I am quite 
sure that the powers of the bureau are not, by the amendatory 
bill, greatly enlarged. A careful exami nation of the amendment 
will show that it is in some respects a restriction on the powers 
already exercised." 

" The third section of the bill," the President objected, "au- 
thorizes a general and unlimited grant of support to the des- 
titute and suffering refugees and freedmen, their wives and 
children." 

" What is the third section of the bill," asked Mr. Trumbull, 
" which the President says contains such an unlimited grant of 
support to the destitute and suffering refugees, their wives and 
children ? I will read that third section : 

" 'That the Secretary of War may direct such issues of provisions, cloth- 
ing, fuel, including medical stores and transportation, and afford such aid, 
medical or otherwise, as he may deem needful for the immediate and tem- 
porary shelter and supply of destitute and suffering refugees and freedmen, 
their wives and children, under such rules and regulations as he may direct : 
Provided, That no person shall be deemed "destitute," "suffering," or 
12 



178 THE THIRTY-NINTH CONGRESS. 

" dependent upon the Government for support," within the meaning of this 
act, who, being able to find employment, could, by proper industry and exer- 
tion, avoid such destitution, suffering, or dependence.' 

"Does the President object to this bill on the ground that 
it authorizes medical aid to be furnished the sick? Or does he 
object to it because of the proviso which limits -its operation, and 
declares that nobody shall be deemed destitute and suffering un- 
der the provisions of the act who is able, by proper industry and 
exertion, to avoid such destitution? Why, sir, it is a limitation 
on the present existing law. Does that look much like taking 
care of four million of people — a provision that expressly limits 
the operations of this act to those only who can not find employ- 
ment? A statement of the fact is all that is necessary to meet 
this statement in the Veto Message." 

" The Congress of the United States," said the President, " has 
never heretofore thought itself empowered to establish asylums 
beyond the limits of the District of Columbia, except for the bene- 
fit of our disabled soldiers and sailors. It has never founded 
schools for any class of our own people. It has never deemed it- 
self authorized to expend the public money for the rent or purchase 
of homes for the thousands, not to say millions of the white race 
who are honestly toiling from day to day for their subsistence." 

" The answer to that is this," said Mr. Trumbull : " We never be- 
fore were in such a state as now ; never before in the history of this 
Government did eleven States of the Union combine together to 
overthrow and destroy the Union ; never before in the history of 
this Government have we had a four years' civil war ; never before 
in the history of this Government have nearly four million peo- 
ple been emancipated from the most abject and degrading slavery 
ever imposed upon human beings ; never before has the occasion 
arisen when it was necessary to provide for such large numbers 
of people thrown upon the bounty of the Government unpro- 
tected and unprovided for. But, sir, wherever the necessity did 
exist the Government has acted. We have voted hundreds of 
thousands and millions of dollars, and are doing it from year to 
year, to take care of and provide for the destitute and suffering 
Indians. We appropriated, years ago, hundreds of thousands of 
dollars to take care of and feed the savage African who was 
landed upon our coast by slavers. We provided by law that 
whenever savages from Africa should be brought to our shores, 



THE FREEDMEJf. 179 

or whenever they should be captured on board of slavers, the 
President of .the United States should make provision for their 
maintenance and support, for five years, on the coast of Africa. 
He was authorized by law to appoint agents to go to Africa to 
provide means to feed them, and we paid the money to do it. 
And yet, sir, can we not provide for these Africans who have 
been held in bondage all their lives, who have never been per- 
mitted to earn one dollar for themselves, who, by the great Con- 
stitutional Amendment declaring freedom throughout the land, 
have been discharged from bondage to their masters, who had 
hitherto provided for their necessities in consideration of their 
services? Can we not provide for these destitute persons of our 
own land on the same principle that we provide for the Indians, 
that we provide for the savage African ? " 

" But," continued Mr. Trumbull, " the President says we have 
never rented lands for the white race, we have never purchased 
lands for them. What do we propose to do by this bill? This 
authorizes, if the President thinks proper to do it — it is in his 
discretion — the purchase or renting of lands on which to place 
these indigent people ; but before any land can be purchased or 
rented, before any contract can be made on the subject, there 
must be an appropriation made by Congress. This bill con- 
tains no appropriation. .If the President is opposed to the rent 
or piu-chase of land, and Congress passes a bill appropriating 
money for that purpose, let him veto it if he thinks it unconsti- 
tutional ; but there is nothing unconstitutional in this bill. This 
bill does not purchase any land; but it prevents even a contract 
on the subject until another law shall be passed appropriating the 
money for that purpose. 

" But, sir, what is the objection to it if it did appropriate the 
money? I have already undertaken to show, and I think I have 
shown, that it was the duty of the United States, as an indepen- 
dent nation, as one of the powers of the earth, whenever there 
came into its possession an unprotected class of people, who must 
suffer and perish but for its care, to provide for and take care of 
them. When an army is marching through an enemy's country, 
and poor and destitute persons are found within its lines who 
must die by starvation if they are not fed from the supplies of the 
army, will any body show me the constitutional provision or the 
act of Congress that authorizes the general commanding to open 



180 THE THIRTY-NINTH CONGRESS. 

his commissariat and feed the starving multitude? And has it 
not been done by every one of your commanders all through the 
South? Whenever a starving human being, man, woman, or 
child, no matter whether black or white, rebel or loyal, came 
within the lines of the army, to perish and die unless fed from 
our supplies, there has never been an officer in our service, and, 
thank God ! there has not been, who did not relieve the sufferer. 
If you want to know where the constitutional power to do this 
is, and where the law is, I answer, it is in^hat common humanity 
that belongs to every man fit to bear the name, and it is in that 
power that belongs to us as a Christian nation, carrying on war 
upon civilized principles. 

" If we had the right then to feed those people as we did, have 
we not the right to take care of them in the cheapest way we 
can? If, when General Sherman was passing through Georgia, 
he found the lands abandoned ; if their able-bodied owners had 
entered the rebel army to fight against us; if the women and 
children had fled and left the land a waste, and he had, as is the 
fact, thousands of persons hanging upon his army dependent upon 
him for supplies; if it w T as believed that it would be cheaper to 
support these people upon these lands than to buy provisions to 
feed them, might we not do so ? May we not resort to whatever 
means is most judicious to protect from starvation that multitude 
which common humanity requires us to feed ? 

" Nor, sir, is it true that no provision has been made by Con- 
gress for the education of white people. We have given all 
through the new States one section of land in every township for 
the benefit of common schools. We have donated hundreds of 
thousands of acres of land to all the States for the establishment 
of colleges and seminaries of learning. How did we get this 
land? It was purchased by our money, and then we gave it 
aw r ay for purposes of education. The same right exists now to 
provide for these people, and it is not simply for the black peo- 
ple, but for the white refugees as w r ell as the black, that this bill 
provides." 

Said the President : " The appropriations asked by the Freed- 
men's Bureau, as now established, for the year 1866, amounts to 
$11,745,000. It may be safely estimated that the cost to be in- 
curred under the pending bill will require double that amount." 

Mr. Trumbull replied : "A far larger sum, in proportion to the 



TEE FREED MEN. 181 

number that were thrown upon our hands, was expended before 
the creation of the Freednicn's Bureau, in feeding and taking care 
of refugees and freedmen, than since the establishment of the 
Freedmen's Bureau. Since that time, the authority of the Gov- 
ernment has been extended over all the rebellious States, and we 
have had a larger number of refugees and freedmen to provide 
for, but in proportion to the number I have no doubt that the 
expense is less now than it was before the establishment of the 
bureau." 

" The query again presents itself," said the President, " whether 
the system proposed by the bill will not, when put into complete 
operation, practically transfer the entire care, support, and control 
of four million emancipated slaves to agents, overseers, or task- 
masters, who, appointed at Washington, are to be located in every 
county and parish throughout the United States containing freed- 
men and refugees." 

" I scarcely know how to reply to that most extravagant state- 
ment," said Mr. Trumbull. " I have already shown that it would 
be a great abuse of the power conferred by this bill to station an 
agent in every county. I have already stated that but a small 
proportion of the freedmen are aided by the Freedmen's Bureau. 
In this official document the President has sent to Congress the 
exaggerated statement that it is a question whether this bureau 
would not bring under its control the four million emancipated 
slaves. The census of 1860 shows that there never were four 
million slaves in all the United States, if you counted every man, 
woman, and child, and we know that the number has not in- 
creased during the war. But, sir, what will be thought when I 
show, as I shall directly show by official figures, that, so far from 
providing for four million emancipated slaves, the Freedmen's 
Bureau never yet provided for a hundred thousand, and, as re- 
stricted by the proviso to the third section of the present bill, it 
could never be extended, under it, to a larger number. Is it not 
most extraordinary that a bill should be returned with the veto 
from the President on the ground that it provides for four million 
people, when, restricted in its operations as it is, and having been 
in operation since March last, it has never had under its control 
a hundred thousand ? I have here an official statement from the 
Freedmen's Bureau, which I beg leave to read in this connection : 



182 TEE TEIRTY-NINTE CONGRESS. 

" 'The greatest number of persons to whom rations were issued, including 
the Commissary Department, the bureau issues to persons without the army, 
is one hundred and forty-eight thousand one hundred and twenty.' 

" Who are they ? I said there were not a hundred thousand 
freedmen provided for by the bureau. 

" ' Whites, 57,369 ; colored, 90,607 ; Indians, 133. The greatest number by 
the bureau was 49,932, in September. The total number for December was 
17,025.' 

" That sounds a little different from four millions. Seventeen 
thousand and twenty-five were all that were provided for by the 
Freedmen's Bureau in the month of December last^ the number 
getting less and less every month. Why ? Because, by the kind 
and judicious management of that bureau, places of employment 
were found for these refugees and freedmen. When the freedmen 
were discharged from their masters' plantations they were assisted 
to find places of work elsewhere. 

" The President says," continued Mr. Trumbull, " that Congress 
never thought of making these provisions for the white people. 
Let us see what provisions have been made for the white people. 
Major-General Fisk, Commissioner of the Freedmen's Bureau for 
the State of Tennessee, in his testimony given before the Recon- 
struction Committee, said : 

" 'During the last year, the rations issued to white people in Tennessee 
have been much in excess of those issued to freedmen. When I took charge 
of my district the Government was feeding twenty-five thousand people ; in 
round numbers, about seventeen thousand five hundred white persons and 
seven thousand blacks. The month preceding the establishment of the 
Freedmen's Bureau, for rations alone for that class of people the sum of 
$97,000 was paid. My first efforts were to reduce the number of those 
beneficiaries of the Government, to withhold the rations, and make the 
people self-supporting as far as possible; and in the course of four months 
I reduced the monthly expenses from $97,000 to $5,000.' 

" In addition to the objections already stated," said the Presi- 
dent, " the fifth section of this bill proposes to take away land 
from its former owners, without any legal proceedings first had." 

"I regret," said Mr. Trumbull, "that a statement like that 
should inadvertently (for it must have been inadvertent) have 
found a place in this Veto Message. The fifth section of the bill 



THE FREED MEM. 183 

does not propose to take away lands from any body. I will read 
it, and we snail see what it is : 

" ' That the occupants of land under Major-General Sherman's special field 
order, dated at Savannah, January 16, 1865, are hereby confirmed in their 
possession.' 

" Is not this a different thing from taking away land from any 
body ? Do you take a thing away from another person when you 
have it in your possession already ? This fifth section, so far from 
taking land from any body, provides simply for protecting the 
occupants of the land for three years from the 16th of January, 
1865, a little less than two years from this time. If the section 
does any thing, it simply prevents the restoration of this property 
to its former owners within that period, except upon terms to be 
entered into, satisfactory to the commissioner, between the occupant 
and the former owner. This is all there is of it. It is a very 
different thing from taking away land from its former owners." 

" Undoubtedly," said the President, " the freedmen should be 
protected by the civil authorities, especially by the exercise of all 
the constitutional powers of the courts of the United States and 
of the States." 

" Let us see," replied Mr. Trumbull, " how they are protected 
by the civil authority." After having read from documents setting 
forth laws in reference to freedmen in force in Texas and Missis- 
sippi, Mr. Trumbull continued : " I have here a number of com- 
munications of a similar character, showing that, by the laws in 
some of the Southern States, a pass system still exists, and that 
the negro really has no protection afforded him either by the civil 
authorities or judicial tribunals of the State. I have letters show- 
ing the same thing in the State of Maryland, from persons whose 
character is vouched for as reliable. Under this state of things, 
the President tells us that the freedman should be protected <by 
the exercise of all the constitutional powers of the courts of the 
United States and of the States ! ' " 

" He also possesses," said the President, referring to the freed- 
man, " a perfect right to change his place of abode ; and if, there- 
fore, he does not find in one community or State a mode of life 
suited to his desires, or proper remuneration for his labor, he can 
move to another where that labor is more esteemed and better re- 
warded." 



184 THE THIRTY- NINTH CONGRESS. 

" Then, sir/' said Mr. Trumbull, " is there no necessity for some 
supervising care of these people ? Are they to be coldly told that 
they have a perfect right to change their place of abode, when, if 
they are caught in a strange neighborhood without a pass, they are 
liable to be whipped ? when combinations exist against them that 
they shall not be permitted to hire unless to their former master ? 
Are these people, knowing nothing of geography, knowing not 
where to go, having never in their lives been ten miles from the 
place where they were born, these old women and young children, 
these feeble persons who are turned off because they can no longer 
work, to be told to go and seek employment elsewhere? and is the 
Government of the United States, which has made them free, to 
stand by and do nothing to save and protect them ? Are they to 
be left to the mercy of such legislation as that of Mississippi, to 
such laws as exist in Texas, to such practices as are tolerated in 
Maryland and in Kentucky ? Sir, I think some protection is neces- 
sary for them, and that was the object of this bureau. It was not 
intended, and such is not its effect, to interfere with the ordinary 
administration of justice in any State, not even during the rebell- 
ion. The moment that any State does justice and abolishes all 
discrimination between whites and blacks in civil rights, the judi- 
cial functions of the Freedmen's Bureau cease. 

" But," continued Mr. Trumbull, " the President, most strangely 
of all, dwells upon the unconstitutionality of this act, without ever 
having alluded to that provision of the Constitution which its ad- 
vocates claim gives the authority to pass it. Is it not most extra- 
ordinary that the President of the United States returns a bill 
which has passed Congress, with his objections to it, alleging it 
to be unconstitutional, and makes no allusion whatever in his 
whole message to that provision of the Constitution which, in the 
opinion of its supporters, clearly gives the authority to pass it? 
And what is that? The second clause of the constitutional 
amendment, which declares that Congress shall have authority 
by appropriate legislation to enforce the article which declares 
that there shall be neither slavery nor involuntary servitude 
throughout the United States. If legislation be necessary to 
protect the former slaves against State laws, which allow them to 
be whipped if found away from home without a pass, has not 
Congress, under the second clause of the amendment, authority 
to provide it? What kind of freedom is that which the Consti- 



THE FBEEDMEM. 185 

tution of the United States guarantees to a man that does not 
protect him from the lash if he is caught away from home with- 
out a pass? And how can we sit here and discharge the consti- 
tutional obligation that is upon us to pass the appropriate legis- 
lation to protect every man in the land in his freedom, when we 
know such laws are being passed in the South, if we do nothing 
to prevent their enforcement? Sir, so far from the bill being 
unconstitutional, I should feel that I had failed in my constitu- 
tional duty if I did not propose some measure that would protect 
these people in their freedom. And yet this clause of the Con- 
stitution seems to have escaped entirely the observation of the 
President. 

" The President objects to this bill because it was passed in the 
absence of representation from the rebellious States. If that ob- 
jection be valid, all our legislation affecting those States is wrong, 
and has been wrong from the beginning. When the rebellion 
broke out, in the first year of the war, we passed a law for col- 
lecting a direct tax, and we assessed that tax upon all the rebell- 
ious States. According to the theory of the President, that was 
all wrong, because taxation and representation did not go together. 
Those States were not represented. Then, according to this ar- 
gument, (I will not read all of it,) we were bound to have re- 
ceived their Representatives, or else not legislate for and tax them. 
He insists they were States in the Union all the time, and accord- 
ing to the Constitution, each State is entitled to at least one 
Representative. 

" 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 pass 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 pass 
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 pass 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 repre- 



186 THE THIRTY-NINTH CONGRESS. 

sented here. We had no right to blockade their coast. "Why? 
They were not represented here. They are States, says the Presi- 
dent, and each State is entitled 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 attitude 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 unconstitutional; I believe it constitutional. 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 reen- 
slaved, 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 pass, the objections of the President of the United 
States notwithstanding?" The Senators voted as follows: 



THE FREED MEN. 187 

Teas — Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Cres- 
well, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Hpwe, Kirk- 
wood, Lane of Indiana, Lane of Kansas, Morrill, Nye, Poland, Ponieroy, 
Ramsey, Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, 
and Yates — 30. 

Nays — Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hen- 
dricks, Johnson, McDougall, Morgan, Nesmith, Norton, Kiddle, 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." 



188 THE THIRTY- NINTH CONGRESS. 



CHAPTER IX. 

THE CIVIL RIGHTS BILL IN THE SENATE. 

Duty of Congress consequent upon the Abolition of Slavery — Civil 
Eights Bill introduced — Reference to Judiciary Committee — Before 
TnE Senate — Speech by Mr. Trumbull — Mr. Saulsbury — Mr. Van 
Winkle — Mr. Cowan — Mr. Howard — Mr. Johnson — Mr. Davis — Con- 
versations with Mr. Trumbull and Mr. Clark — Reply of Mr. John- 
son — Remarks by Mr. Morrill — Mr. Davis "wound up" — Mr. Guth- 
rie's Speech — Mr. Hendricks — Reply of Mr. Lane — Mr. Wilson — 
Mr. Trumbull's closing remarks — Yeas and Nays on the passage of 
the Bill. 

THE preceding Congress having proposed an amendment to 
the Constitution 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 unde- 
fined position, would have been a sin against them only surpassed 
in enormity by the original crime of their enslavement. 

As provided in the amendment itself, it devolved upon Con- 
gress "to enforce this article by appropriate legislation." The 
Thirty-ninth Congress assembled, 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 reassembling of Congress after the holi- 
days, 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 vindi- 
cation." This bill, having been read twice, was referred to the 
Committee on the Judiciary. 



CIVIL BIGHTS BILL. -189 

It was highly appropriate that this bill, involving the relations 
of millions of the inhabitants of the United States to the Govern- 
ment, 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 profes- 
sional ability, their long experience, and exalted standing as 
jurists. They are the legal advisers of the Senate, whose report 
upon constitutional questions is entitled to the highest consider- 
ation. 

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 he no discrimination in civil 
rights or immunities among the inhabitants of any State or Ter- 
ritory 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 involun- 
tary 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 evi- 
dence, 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. 



190 THE THIRTY-NINTH CONGRESS. 

That no question might arise as to the constitutionality 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 pronounce in favor of the consti- 
tutionality of this ordinance. It is an admirable illustration 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 discus- 
sion 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 constitutional amendment 
abolishing slavery. That amendment declared that all persons 
in the United States should be free. This measure is intended 
to give effect to that declaration, and secure to all persons within 
the United States practical freedom. There is very little impor- 
tance 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 w r as the immortal declaration 
'that all men are created equal; that they are endowed by their 
Creator with certain inalienable rights ; that among these are life, 
liberty, and the pursuit of happiness/ and 'that to secure these 
rights governments are instituted among men/ to the millions 
of the African race in this country who were ground down and 
degraded, and subjected to a slavery more intolerable and cruel 
than the world ever before knew ? Of what avail was it to the 
citizen of Massachusetts, who, a few years ago, went to South 
Carolina to enforce a constitutional right in court, that the Con- 



CIVIL RIGHTS BILL. 191 

stitution of the United States declared that the citizens of each 
State shall be entitled to all the privileges and immunities of 
citizens in the several States ? And of what avail will it now 
be that the Constitution of the United States has declared that 
slavery shall not exist, if in the late 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 pass or a certificate of his freedom, he is liable 
to be committed to jail, and to be dealt with as a person who is 
in the State without authority. Other provisions of the statute 
prohibit any negro or mulatto from having fire-arms; and one 
provision o'f the statute declares that for ' exercising the functions 
of a minister of the Gospel, free negroes and mulattoes, on con- 
viction, 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 Caro- 
lina 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 constitutional amendment was adopted and slavery 
abolished, all these statutes became null and void, because they 
were all passed in aid of slavery, for the purpose of maintaining 
and supporting it. Since the abolition of slavery, the Legis- 
latures which have assembled in the insurrectionary States have 
passed laws relating to the freedmen, and in nearly all the States 
they have discriminated against them. They deny them certain 
rights, subject them to severe penalties, and still impose upon 
them the very restrictions which were imposed upon them in con- 
sequence of the existence of slavery, and before it was abolished. 



192 THE THIRTY-NINTH CONGRESS. 

The purpose of the bill under consideration is to destroy all 
these discriminations, and to carry into effect the constitutional 
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 
passed 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 author- 
ity 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 
constitutional objections ; but I have never, since I have been a 
member of the body, seen a bill so fraught with danger, so full 
of mischief, as the bill now under consideration. 

" 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 passed in this country. The tears which the honest white 
people of this couutry have been made to shed from the oppres- 
sive 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 constitutional liberty 
in this country. 

"I Suppose it is a foregone conclusion that this measure, as 



CI VIL ; EIGHTS BILL. 193 

one of a series of measures, is to be passed 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 passed 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 mass of the 
American people, and invoke their attention to the awful conse- 
quences involved in measures of this character. Sir, stop, stop! 
the mangled, bleeding body of the Constitution of your country 
lies in your path ; you are treading upon its bleeding body when 
you pass these laws." 

After having argued at considerable length that this bill would 
be a most unconstitutional interference on the part of the Federal 
Government with " the powers of the States under the Federal 
Constitution," 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 ex- 
horted the peojDle 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 hor- 
rible afflictions of war, if we can have wisdom in council and 

sincere purpose to subserve the good of the whole people of the 
13 



194- THE THIRTY-NINTH CONGRESS. 

United States, though much that was clear 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 
God, resume our former position among the nations of the earth, 
and command the respect of the whole civilized world. But, sir, 
to-day, in viewing and in considering this bill, the thought has 
occurred to me, how happy were the founders of our Federal sys- 
tem 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 con- 
sideration. 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 Constitution. 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 
entitled to all the rights of a citizen of that country, or by com- 
ing 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 entitled 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 so- 
ciety and association with their fellows, as they do, arc both divine 
institutions, and that, consequently, the authors of the Declara- 



CIVIL RIGHTS BILL. 105 

tion 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 commu- 
nities 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 assert 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 ob- 
jectionable. 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 
rv T ho shall be members of our community ; and much as has been 
said here about what God 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 in- 
terests. 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 mass. I do not mean strict 
miscegenation, but I mean the mingling of two races in society, 
associating 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 ques- 
tion 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, ad- 
mitted him into a participation of that power, except so far as 
to tax him for the support of Government. And, Mr. President, 
I think it a most important question, and particularly a most 
important question for the Pacific coast, and those States which 
lie upon it, as to whether this door shall now be thrown open to 
the Asiatic population. If it be, there is an end to republican 
government there, because it is very well ascertained that those 
people have no appreciation of that form of government ; it seems 
to be obnoxious to their very nature; they seem to be incapable 
either of understanding it or of carrying it out; and I can not 



196 THE THIRTY-NINTH CONGRESS. 

consent to say that California, or Oregon, or Colorado, or Ne- 
vada, 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 civ- 
ilized legislation, that a judicial officer has been held up and sub- 
jected 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 ope- 
rate upon those people. I think it would be at least decent, respect- 
ful, 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 ex- 
ceedingly 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 con- 
stitutional 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 eman- 
cipated 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 emancipation. 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 



CIVIL BIGHTS BILL. 197 

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 pro- 
hibited 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 inap- 
propriate 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 be- 
tween 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 im- 
plements 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 emancipated. 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 



198 THE THIRTY-NINTH CONGRESS. 

as such commit him to jail, or assign him to uncompensated 
service." 

Mr. Johnson, of Maryland, made a speech, in which he ex- 
presscd himself as in favor of conferring citizenship upon the 
negro, and yet unable to vote for this bill from the opinion he 
entertained on "the question of power." He referred to the 
Dred Scott and other decisions, and showed their bearing upon 
the legislation now proposed. He said : " I have been exceed- 
ingly anxious individually that there should be some definition 
which will rid this class of our people from that objection. If 
the Supreme Court decision is a binding one, and will be followed 
in the future, this law which we are now about to pass will be 
held, of course, to be of no avail, as far as it professes to define 
what citizenship is, because it gives the rights of citizenship to all 
persons without distinction of color, and, of course, embraces Af- 
ricans or descendants of Africans." 

He referred to a precedent when Congress had conferred the 
rights of citizenship : " The citizens of Texas, who, of course, 
were aliens, it has never been doubted became citizens of the 
United States by the annexation of Texas ; and that was not 
done by treaty, it was done by legislation. If the power was in 
Congress by legislation to make citizens of all the inhabitants of 
the State of Texas, why is it not in the power of Congress to 
make citizens by legislation of all who are inhabitants of the 
United States, and who are not citizens ? That is what this bill 
does, or what it proposes to do. There are within the United 
States millions of people who are not citizens, according to the 
view of the Supreme Court of the United States. Ought they to 
be citizens? I think they ought. I think it is an anomaly that 
says there shall not be the rights of citizenship to any of the in- 
habitants of any State of the United States. 

" While they were slaves, it was a very different question ; but 
now, when slavery is terminated, and by terminating it you have 
got rid of the only obstacle m the way of citizenship, two questions 
arise : First, whether that fact itself does not make them citizens ? 
Before they were not citizens, because of slavery, and only because 
of slavery. Slavery abolished, why are they not just as much cit- 
izens as they would have been if slavery had never existed ? My 
opinion is that they become citizens, and I hold that opinion so 
strongly that I should consider it unnecessary to legislate on the 



CIVIL BIGHTS BILL. 199 

subject at all, as far as that class is concerned, but for the ruling 
of the Supreme Court to which I have adverted." 

Mr. Davis, of Kentucky, spoke against the propriety and con- 
stitutionality of making all negroes citizens of the United States. 
He said : " There never was a colony before the Declaration of 
Independence, and there never was a State after the Declaration 
of Independence, up to the time of the adoption of the Constitu- 
tion, so far as I have been able to learn by the slight historical 
examination which I have given to the subject, that ever made or 
attempted to make any other person than a person who belonged 
to one of the nationalities of Europe a citizen. I invoke the chair- 
man of the committee to give me an instance, to point to any his- 
tory or any memento, where a negro, although that negro was born 
in America, was ever made a citizen of either of the States of the 
United States before the adoption of this Constitution. The whole 
material out of which citizens were made previous to the adoption 
of the present Constitution was from the European nationalities, 
from the Caucasian race, if I may use the term. I deny that a 
single citizen was ever made by one of the States out of the negro 
race. I deny that a single citizen was ever made by one of the 
States out of the Mongolian race. I controvert that a single cit- 
zen was ever made by one of the States out of the Chinese race, 
out of the Hindoos, or out of any other race of people but the 
Caucasian race of Europe. 

" I come, then, to this position : that whenever the States, after 
the Declaration of Independence and before the present Constitu- 
tion was adopted, legislated in relation to citizenship, or acted in 
their governments in relation to citizenship, the subject of that 
legislation or that action was the Caucasian race of Europe ; that 
none of the inferior races of any kind were intended to be embraced 
or were embraced by this work of Government in manufacturing 
citizens." 

Mr. Trumbull inquired, "Will the Senator from Kentucky 
allow me to ask him if he means to assert that negroes were not 
citizens of any of these colonies before the adoption of the Con- 
stitution?" 

" I say they were not," said Mr. Davis. 

" Does the Senator wish any authority to show that they were?" 
asked Mr. Trumbull. 

"When I get through," said Mr. Davis, "you can answer me." 



200 THE THIRTY-NINTH CONGRESS: 

Mr. Trumbull replied : " I understood the Senator to challenge 
me to produce any proof on that point, and I thought he would 
like to have it in his speech. I can assert to him that by a solemn 
decision of the Supreme Court of North Carolina, they were citi- 
zens before the adoption of the Constitution." 

" If the honorable Senator will allow me," said Mr. Davis, " I 
will get along with my remarks." 

"I think you will get along better," replied Mr. Trumbull, 
" by not being exposed in your statements." 

" The honorable Senator is full of conceit, but I have seen less 
conceit with a great deal more brains," said Mr. Davis, who then 
proceeded " to throw up " what he termed " the main buttress for 
the defense of the positions" that he took. 

"My main position," said he, "is, that no native-born person 
of the United States, of any race or color, can be admitted a 
citizen of the United States by Congress under the power 
conferred in relation to naturalization by the Constitution upon 
Congress." 

After reading some authorities, the Senator proceeded to say: 
" A grave hallucination in this day is to claim all power ; and a 
minor error is that every thing which passion, or interest, or party 
power, or any selfish claims may represent to the judgment or 
imagination of gentlemen who belong to strong parties, to be 
necessary or useful for the good and the domination of such par- 
ties, is seized upon in defiance of a fair construction of language, 
in outrage of the plain meaning of the Constitution. That is not 
the rule by which our Constitution is to be interpreted. It is not 
the rule by which it is to be administered. On the contrary, if 
the able, honorable, and clear-headed Senator from Illinois would 
do himself and his country the justice to place himself in the 
position of the framcrs of the Constitution ; if he would look all 
around on the circumstances and connections of that day, on the 
purposes of those men not only in relation to forming a more 
perfect Union, but also in relation to securing the blessings of life, 
liberty, and property ,to themselves and their posterity forever ; 
if the honorable Senator would construe the Constitution accor- 
ding to the light, the sacred and bright light which such sur- 
rounding circumstances would throw upon his intellect, it seems 
to me that he would at once abandon this abominable bill, and 
would also ask to withdraw its twin sister from the other House 



CIVIL RIGHTS BILL. 201 

that both might be smothered here together upon the altar of the 
Constitution and of patriotism." 

At the close of Mr. Davis' speech, much debate and conversa- 
tion ensued among various Senators upon a proposed amendment 
by Mr. Lane, of Kansas, by which Indians " under tribal author- 
ity" should be excluded from the benefits conferred by this bill. 
After this question was disposed of, Mr. Davis was drawn out in 
another speech by what seemed to him to be the necessity of de- 
fending some positions which he had assumed. He said : 

" I still reitorate the position that the negro is not a citizen here 
according to the essential fundamental principles of our system; 
but whether he be a citizen or not, he is not a foreigner, and no 
man, white or black, or red or mixed, can be made a citizen by 
naturalization unless he is a foreigner." 

Mr. Clark, of New Hampshire, interposed : " I wish the Sen- 
ator from Kentucky would tell us what constitutes a citizen under 
the Constitution." 

" A foreigner is not a citizen in the fullest sense of the word at 
all," said Mr. Davis. 

" The Senator is now telling us," said Mr. Clark, " who is not 
a citizen, but my question is, What constitutes a citizen ? " 

" I leave that to the exercise of your own ingenuity," replied 
Mr. Davis. 

" That is it," said Mr. Clark. " Washington is dead ; Marshall 
is dead; Story is dead; I hoped the Senator from Kentucky 
would have enlightened us. He says a negro is not a citizen, and 
a negro is not a foreigner and can not be made a citizen. He 
says that a person who might be and was a citizen before the 
Constitution, is not a citizen since the Constitution was adopted. 
What right was taken away from him by the Constitution that 
disqualifies him from being a citizen? The free negroes in my 
State, before the Constitution was adopted, were citizens." 

Mr. Davis, having admitted that free negroes were citizens be- 
fore the Constitution in New Hampshire, Mr. Clark said : 

" I desired that the Senator should tell me what, in his opinion, 
constituted a citizen under the Constitution." 

Mr. Davis replied : " I will answer the honorable Senator. We 
sometimes answer a positive question by declaring what a thing is 
not. Now, the honorable Senator asks me what a citizen is. It 



202 THE THIRTY- NINTH CONGRESS 

is easier to answer what it is riot than what it is, and I say that 
a negro is not a citizen." ' 

" Well, that is a lucid definition," said Mr. Clark. 

" Sufficient for the subject," said Mr. Davis. 

" That is begging the question," Mr. Clark replied. " I wanted 
to find why a negro was not a citizen, if the gentleman would tell 
cue. If he would lay down his definition, I wanted to see whether 
the negro did not comply with it and conform to it, so as to be a 
citizen ; but he insists that he is not a citizen." 

" I will answer that question, if the honorable Senator will per- 
mit me," said Mr. Davis. " Government is a political partner- 
ship. No persons but the partners who formed the partnership 
are parties to the government. Here is a government formed 
by the white man alone. The negro was excluded from the 
formation of our political partnership ; he had nothing to do with 
it; he had nothing to do in its formation." 

"Is it a close corporation, so that new partners can not be 
added?" asked Mr. Stewart, of Nevada. 

" Yes, sir," said Mr. Davis ; " it is a close white corporation. 
You may bring all of Europe, but none of Asia and none of 
Africa into our partnership." 

"Let us see," said Mr. Clark, "how that may be. Take the 
gentleman's own ground that government is a partnership, and 
those who did not enter into it and take an active part in it can 
not be citizens. Is a woman a citizen under our Constitution?" 

" Not to vote," said Mr. Davis. 

" I did not ask about voting," said Mr. Clark. " The gentle- 
man said awhile ago that voting did not constitute citizenship. 
I want to know if she is a citizen. Can she not sue and be sued, 
contract, and exercise the rights of a citizen ? " 

" So can a free negro," said Mr. Davis. 

" Then, if a free negro can do all that," said Mr. Clark ; " why 
is he not a citizen?" 

"Because he is no part of the governing power; that is the 
reason," Mr. Davis replied. 

" I deny that," said Mr. Clark, " because in some of the States 
he is a part of the governing power. The Senator only begs the 
question; it only comes back to this, that a nigger is a "nigger." 
[Laughter.] 

" That is the whole of it," said Mr. Davis. 






^L 



CIVIL BIGHTS BILL. 203 

" That is the whole of the gentleman's logic," said Mr. Clark. 

In answer to the statement insisted on by Mr. Davis, " You 
can not make a citizen of any body that is not a foreigner," Mr. 
Johnson said : 

" That would be an extraordinary condition for the country to 
be in. Here are four million negroes. They are not foreigners, 
because they were born in the United States. They have no 
foreign allegiance to renounce, because they owed no foreign alle- 
giance. Their allegiance, whatever it was, was an allegiance to 
the Government of the United States alone. They can not come, 
therefore, under the naturalizing clause; they can not come, of 
course, under the statutes passed in pursuance of the power con- 
ferred upon Congress by that clause ; but does it follow from that 
that you can not make them citizens ; that the Congress of the 
United States, vested with the whole legislative power belonging 
to the Government, having within the limits of the United States 
four million people anxious to become citizens, and when you are 
anxious to make them citizens, have no power to make them citi- 
zens? It seems to me that to state the question is to answer it, 

" The honorable member reads the Constitution as if it said 
that none but white men should become citizens of the United 
States; but it says no such thing, and never intended, in my 
judgment, to say any such thing. If it had designed to exclude 
from all participation in the rights of citizenship certain men on 
account of color, and to have confined, at all times thereafter, 
citizenship to the white race, it is but fair to presume, looking 
to the character of the men who framed the Constitution, that 
they would have put that object beyond all possible doubt; they 
would have said that no man should be a citizen of the United 
States except a white man, or rather would have negatived the 
right of the negro to become a citizen by saying that Congress 
might pass uniform rules upon the subject of the naturalization 
of white immigrants and nobody else ; but that they did not do. 
They left it to Congress. Congress, in the exercise of their dis- 
cretion, have thought proper to insert the term ' white' in the 
naturalization act; but they may strike it out, and if it should 
be stricken out, I do not think any lawyer, except my friend 
from Kentucky, would deny that a black man could be natural- 
ized, and by naturalization become a citizen of the United States. 

" But to go back to the point from which the questions of my 



2 04 THE THIRTY-NINTH CONGRESS. 

honorable friend from Kentucky caused me to digress, we have 
now within the United States four million colored -people, the 
descendants of Africans, whose ancestors were brought into the 
United States as chattels. It was because of that condition that 
they were considered as not entitled to the rights of citizenship. 
"We have put an end to that condition. "We have said that at all 
times hereafter men of any color that nature may think proper to 
impress upon the human frame, shall, if within the United States, 
be free, and not property. Then, we have four million colored 
people who are now as free as we are; and the only question is, 
whether, being free, they can not be clothed with the rights of 
citizenship. The honorable member from Kentucky says no, be- 
cause the naturalization clause does not include them. I have 
attempted to answer that. He says no, because the act passed in 
pursuance of that clause does not include them. I have answered 
that by saying that that act in that particular may be changed." 
On the following day, February 1st, the discussion of the bill 
was resumed by Mr. Morrill, of Maine. He said of the bill : 
" It marks an epoch in the history of this country, and from this 
time forward the legislation takes a fresh and a new departure. 
Sir, to-day is the only hour since this Government began when it 
was possible to have enacted it. Such has been the situation of 
politics in this country, nay, sir, such have been the provisions 
of the fundamental law of this country, that such legislation 
hitherto has never been possible. There has been no time since 
the foundation of the Government when an American Congress 
could by possibility have enacted such a law, or with propriety 
have made such a declaration. What is this declaration? All 
persons born in this country are citizens. That never was so be- 
fore. Although I have said that by the fundamental principles 
of American law all persons were entitled to be citizens by birth, 
we all know that there was an exceptional condition in the Gov- 
ernment of the country which provided for an exception to this 
general rule. Here were four million slaves in this country that 
were not citizens, not citizens by the general policy of the coun- 
try, not citizens on account of their condition of servitude ; up to 
this hour they could not have been treated by us as citizens; so 
long as that provision in the Constitution which recognized this 
exceptional condition remained the fundamental law of the coun- 
try, such a declaration as this would not have been legal, could 



CIVIL BIGHTS BILL. 205 

not have been enacted by Congress. I hail it, therefore, as a 
declaration which typifies a grand fundamental change in the 
politics of the country, and which change justifies the declaration 
now. 

" The honorable Senator from Kentucky has vexed himself 
somewhat, I think, with the problem of the naturalization of 
American citizens. As he reads it, only foreigners can be natu- 
ralized, or, in other words, can become citizens; and upon his 
assumption, four million men and women in this country are out- 
side not only of naturalization, not only of citizenship, but outside 
of the possibility of citizenship. Sir, he has forgotten the grand 
principle both of nature and nations, both of law and politics, 
that birth gives citizenship of itself. This is the fundamental 
principle running through all modern politics both in this coun- 
try and in Europe. Every-where, where the principles of law 
have been recognized at all, birth by its inherent energy and 
force gives citizenship. Therefore the founders of this Govern- 
ment made no provision — of course they made none — for the 
naturalization of natural-born citizens. The Constitution speaks 
of ' natural-born,' and speaks of them as citizens in contradistinc- 
tion from those who are alien to us. Therefore, sir, this amend- 
ment, although it is a grand enunciation, although it is a lofty 
and sublime declaration, has no force or efficiency as an enact- 
ment. I hail it and accept it simply as a declaration. 

" The honorable Senator from Kentucky, when he criticises the 
methods of naturalization, and rules out, for want of power, four 
million people, forgets this general process of nations and of 
nature by which every man, by his birth, is entitled to citizen- 
ship, and that upon the general principle that he owes allegiance 
to the country of his birth, and that country owes him protec- 
tion. That is the foundation, as I understand it, of all citizen- 
ship, and these are the essential elements of citizenship : allegiance 
on the one side, and protection on the other." 

In reply to statements made by Mr. Davis, Mr. Morrill re- 
marked : " The Senator from Kentucky denounces as a usurpation 
this measure, and particularly this amendment, this declaration. 
He says it is not within the principles of the Constitution. That 
it is extraordinary I admit. That the measure is not ordinary 
is most clear. There is no parallel, I have already said, for it 
in the history of this country; there is no parallel for it in the 



206 THE THIRTY-NINTH CONGRESS. 

history of any country. No nation*from the foundation of gov- 
ernment, has ever undertaken to make a legislative declaration 
so broad. Why? Because* no nation hitherto has ever cherished 
a liberty so universal. The ancient republics were all exceptional 
in their liberty; they all had excepted classes, subjected classes, 
which were not the subject of government, and, therefore, they 
could not so legislate. That it is extraordinary and without a 
parallel in the history of this Government, or of any other, does 
not affect the character of the declaration itself. 

"The Senator from Kentucky tells us that the proposition is 
revolutionary, and he thinks that is an objection. I freely con- 
cede that it is revolutionary. I admit that this species of legis- 
lation is absolutely revolutionary. But are we not in the midst 
of revolution ? Is the Senator from Kentucky utterly oblivious 
to the grand results of four years of war ? Are we not in the 
midst of a civil and political revolution which has changed the 
fundamental principles of our Government in some respects? 
Sir, is it no revolution that you have changed the entire system 
of servitude in this country ? Is it no revolution that now you 
can no longer talk of two systems of civilization in this country ? 
Four short years back, I remember to have listened to eloquent 
speeches in this chamber, in which we were told that there was 
a grand antagonism in our institutions ; that there were two civ- 
ilizations ; that there was a civilization based on servitude, and 
that it was antagonistic to the free institutions of the country. 
Where is that? Gone forever. That result is a revolution 
grander and sublimer in its consequences than the world has 
witnessed hitherto. 

"I accept, then, what the Senator from Kentucky thinks so 
obnoxious. We are in the midst of revolution. We have revo- 
lutionized this Constitution of ours to that extent; and every 
substantial change in the fundamental constitution of a country 
is a revolution. Why, sir, the Constitution even provides for 
revolutionizing itself. N.ay, more, it contemplates it; contem- 
plates that in the changing phases of life, civil and political, 
changes in the fundamental law will become necessary ; and is it 
needful for me to advert to the facts and events of the last four 
or five years to justify the declaration that- revolution here is not 
only radical and thorough, but the result of the events of the last 
four years? Of course, I mean to contend in all I say that the 



CIVIL BIGHTS BILL. 207 

revolution of which I speak should be peaceful, as on the part 
of the Government here it has been peaceful. It grows out, to 
be sure, of an assault upon our institutions by those whose pur- 
pose it was to overthrow the Government ; but, on the part of the 
Government, it has been peaceful, it has been within the forms 
of the Constitution ; but it is a revolution nevertheless. 

" But the honorable Senator from Kentucky insists that it is a 
usurpation. Not so, sir. Although it is a revolution radical, as 
I contend, it was not a usurpation. It was not a usurpation, 
becarfse it took place within the provisions contemplated in the 
Constitution. .More than that, it was a change precisely in har- 
mony with the general principles of the Government. This great 
change which has been wrought in our institutions was in har- 
mony with the fundamental principles of the Government. The 
change which has been made has destroyed that which was ex- 
ceptional in our institutions ; and the action of the Government 
in regard to it was provoked by the enemies of the Government. 
The opportunity was afforded, and the change which has been 
wrought was in harmony with the fundamental principles of the 
Government." 

The Senator from Maine opposed the theory that this is a 
Government exclusively for white men. He remarked : " It is 
said that this amendment raises the general question of the an- 
tagonism of the races, which, we are told, is a well-established 
fact. It is said that no rational man, no intelligent legislator or 
statesman, should ever act without reference to that grand his- 
torical fact ; and the Senator from Pennsylvania, [Mr. Cowan,] 
on a former occasion, asserted that this Government, that Amer- 
ican society, had been established here upon the principle of the 
exclusion, as he termed it, of the inferior and the barbarian races. 
Mr. President, I deny that proposition as a historical fact. There 
is nothing more inaccurate. IS T o proposition could possibly be 
made here or anywhere else more inaccurate than to say that 
American society, either civil or political, was formed in the in- 
terest of any race or class. Sir, the history of the country does 
not bear out the statement of the honorable Senator from Penn- 
sylvania. Was not America said to be the land of refuge ? Has 
it not been, since the earliest period, held up as an asylum for 
the oppressed of all nations ? Hither, allow me to ask, have not 
all the peoples of the nations of the earth come for an asylum 



208 THE THIRTY-NINTH CONGRESS. 

and for refuse ? All the nations of the earth, and all the varie- 
ties of the races of the nations of the earth, have gathered here. 
In the early settlements of the country, the Irish, the French, 
the Swede, the Turk, the Italian, the Moor, and so I might 
enumerate all the races, and all the variety of races, came here ; 
and it is a fundamental mistake to suppose that settlement was 
begun here in the interests of any class, or condition, or race, 
or interest. This Western Continent was looked to as an asylum 
for the oppressed of all nations and of all races. Hither all 
nations and all races have come.- Here, sir, upon the grand 
plane of republican democratic liberty, they have undertaken to 
work out the great problem of man's capacity for self-government 
without stint or limit." 

Mr. Davis then made another speech in opposition to the bill. 
When the hour for adjournment had arrived, and Mr. Johnson 
interrupted him with a proposition that " the bill be passed over 
for to-day," Mr. Davis said, " I am wound up, and am obliged 
to run down." The Senate, however, adjourned at a late hour, 
and resumed the hearing of Mr. Davis on the following day. 

In alluding; to Mr. Johnson's strictures on his assertion that 
Congress had no power to confer the right of citizenship on " the 
native born negro," Mr. Davis said : " The honorable Senator, 
[Mr. Johnson,] as I said the other day, is one of the ablest law- 
yers, and, I believe, the ablest living lawyer in the land. I have 
seen gentlemen sometimes so much the lawyer that they had to 
abate some of the statesman [laughter] ; and I am not certain, I 
would not say it was so — I will not arrogate to myself to say 
so — but sometimes a suspicion flashes across my mind that that 
is precisely the predicament of my honorable friend. 

" I maintain that a negro can not be made a citizen by Con- 
gress ; he can not be made a citizen by any naturalization laws, 
because the naturalization laws apply to foreigners alone. No 
man can shake the legal truth of that position. They apply to 
foreigners alone; and a negro, an Indian, or any other person 
born within the United States, not being a foreigner, can not be 
naturalized; therefore they can not be made citizens by the uni- 
form rule established by Congress under the Constitution, and 
there is no other rule. Congress has no power, as I said before, 
to naturalize a citizen. They could not be made citizens by 
treaty. If they are made so at all, it is by their birth, and the 



CIVIL RIGHTS BILL. 209 

locality of their birth, and the general operation and effect of our 
Constitution. If they are so made citizens, that question is a ju- 
dicial question, not a legislative question. Congress has no power 
to enlarge or extend any of the provisions of the Constitution 
which bear upon the birth or citizenship of negroes or Indians 
born in the United States. 

" If there was any despot in Europe or in the world that 
wanted a master architect in framing and putting together a 
despotic and oppressive law, I would, if my slight voice 'could 
reach him, by all means say to him, Seek the laboratory of the 
Senator from Illinois. If he has not proved himself an adept 
in this kind of legislation, unconstitutional, unjust, oppressive, 
iniquitous, unwise, impolitic, calculated to keep forever a sever- 
ance of the Union, to exclude from all their constitutional rights, 
privileges, and powers under the Government eleven States of 
the Union — if he has not devised such a measure as that, I have 
not reason enough to comprehend it. 

Mr. Davis closed his speech by saying: "Was it for these 
fruits and these laws that we went into this war? Was it for 
these fruits and these laws and these oppressions that two million 
and a quarter of men were ordered into the field? Was it that 
the American people might enjoy these as the fruits of the tri- 
umphant close of this war, that hundreds of thousands of them 
have been mutilated on the battle-field and by the diseases of the 
camp, and that a debt of four or five thousand million dollars 
has been left upon the country? If these are to be the results 
of the war, better that not a single man had been marshaled in 
the field nor a single star worn by one of our officers. These 
military gentlemen think they have a right to command and 
control every-where. They do it. They think they have a 
right to do it here, and we are sheep in the hands of our shear- 
ers. We are dumb." 

Mr. Trumbull said : " I will occupy a few moments of the at- 
tention of the Senate, after this long harangue of the Senator 
from Kentucky, which he closed by declaring that we are dumb 
in the presence of military power. If he has satisfied the Senate 
that he is dumb, I presume he has satisfied the Senate of all the 
other positions he has taken ; and the others are about as absurd 
as that declaration. He denounces this bill as ' outrageous/ ' most 
14 



210 THE THIRTY-NINTH CONGRESS. 

monstrous/ ' abominable/ 'oppressive/ ' iniquitous/ 'unconstitu- 
tional/ 'void.' 

" Now, what is this bill that is obnoxious to such terrible epi- 
thets? It is a bill providing that all people shall have equal 
rights. Is not that abominable '? Is not that iniquitous ? Is not 
that monstrous? Is not that terrible on white men? [Laughter.] 
When was such legislation as this ever thought of for white men ? 

"Sir, this bill applies to white men as well as black men. It 
declares that all men in the United States shall be entitled to the 
same civil rights, the right to the fruit of their own labor, the 
right to make contracts', the right to buy and sell, and enjoy lib- 
erty and happiness; and that is abominable and iniquitous and 
unconstitutional! Could any thing be more monstrous or more 
abominable than for a member of the Senate to rise in his place 
and denounce with such epithets as these a bill, the only object 
of which is to secure equal rights to all the citizens of the coun- 
try — a bill that protects a white man just as much as a black 
man? With what consistency and with what face can a Senator 
in his place here say to the Senate and the country, that this is a 
bill for the benefit of the black men exclusively, when tliere is 
no such distinction in it, and when the very object of the bill is 
to break down all discrimination between black men and white 
men ? " 

Mr. Guthrie, of Kentucky, said : " My doctrine is that slavery 
exists no longer in this country ; that it is impossible to exist in 
the face of that provision; and with slavery fell the laws of all 
the States providing for slavery, every one of them. I do not 
see what benefit can arise from repealing them by this bill, be- 
cause, if they are not repealed by the Constitution as amended, 
this bill could not repeal them. I hope that all the States in 
which slavery formerly existed will accept that constitutional pro- 
vision in good faith. I myself accept it in good faith. Believing 
that all the laws authorizing slavery have fallen, I have advised 
the people of Kentucky, and I would advise all the States, to put 
these Africans upon the same footing that the whites arc in rela- 
tion to civil rights. They have all the rights that were formerly 
accorded to the free colored population in all the States just as 
fully this day as they will have after this bill has passed, and 
they will continue to have them. 

' Now, to the States belong the government of their own popu- 



CIVIL RIGHTS BILL. 211 

lation, and those within their borders, upon all subjects. We, in 
Kentucky, prescribe punishment for those who violate the laws; 
we prescribe it for the white population; we prescribe it for the 
free African population, and we prescribe it for the slave popula- 
tion. All the laws prescribing punishment for slaves fell with 
slavery, and they were subject afterward only to the penalties 
which were inflicted upon the free colored population, they then 
being free. Slaves, for many offenses, were punished far less than 
the free colored people. No slave was sent to the penitentiary 
and punished for stealing, or any thing of that kind, whereas a 
free person was. But all these States will now, of course, remodel 
their laws upon the subject of offenses. I would advise that there 
should be but one code for all persons, black as well as white; 
that there shall be one general rule for the punishment of crime 
in- the different States. But, sir, the States must have time to act 
on the subject ; and yet we are here preparing laws and penalties, 
and proposing to carry them into execution by military authority, 
before the States have had time to legislate, and even before some 
of their Legislatures have had time to convene. 

"Kentucky has had her share of talking here, and, sir, she 
has had her share of suffering during the war. At one time she 
was invaded by three armies of the rebellion; all but seven or 
eight counties of the State, at one time, were occupied by its ar- 
mies, and her whole territory devastated by guerrillas. We have 
suffered in this war. We have borne it as best we could. We 
feel it intensely that now, at the end of the war, we should be 
subjected to a military desj)otism, our houses liable to be entered 
at any time when our families are at rest, by military men who 
can arrest and send to prison without warrant, and we are obliged 
to go, and we are obliged to pay any fines they may impose. I 
do not believe that you will lose any thing if you pause before 
passing such legislation as this, and establishing these military 
despotisms, for we do not know where they are to end." 

Mr. Hendricks, of Indiana, had proposed to strike out the last 
clause of the bill, which provided that "such part of the land 
and naval forces of the United States, or of the militia," as should 
be necessary, might be employed to prevent the violation, and en- 
force the due execution of this act. The Senator from Indiana 
opposed the bill on the ground that it employed the machinery 



Z12 THE THIRTY-NINTH CONGRESS. 

of the Fugitive Slave Law, and that it was to be enforced by the 
military authority of the United States. He said : 

" This bill is a wasp ; its sting is in its tail. Sir, what is this 
bill? It provides, in the first place, that the civil rights of all 
men, without regard to color, shall be equal; and, in the second 
place, that if any man shall violate that principle by his conduct, 
he shall be responsible to the court; that he may be prosecuted 
criminally and punished for the crime, or he may be sued in a 
civil action and damages recovered by the party wronged. Is not 
that broad enough? Do Senators want to go further than this? 
To recognize the civil rights of the colored people as equal to the 
civil rights of the white people, I understand to be as far as Sen- 
ators desire to go ; in the language of the Senator from Massa- 
chusetts [Mr. Sumner], to place all men upon an equality before 
the law; and that is proposed in regard to their civil rights." 

In reference to the reenactment of the odious features of the 
Fugitive Slave Law in this bill, Mr. Hendricks said : " I recol- 
lect how the blood of the people was made to run cold within 
them when it was said that the white man was required to run 
after the fugitive slave; that the law of 1850 made you and me, 
my brother Senators, slave-catchers; that the posse comitatus 
could be called to execute a writ of the law, for the recovery of 
a runaway slave, under the provisions of the Constitution of the 
United States; and the whole country was agitated because of it. 
Now slavery is gone; the negro is to be established upon a plat- 
form of civil equality with the white man. That is the proposi- 
tion. But Ave do not stop there; we are to reenact a law that 
nearly all of you said was wicked and wrong; and for what pur- 
pose? Not to pursue the negro any longer; not for the purpose 
of catching him ; not for the purpose of catching the great crimi- 
nals of the land ; but for the purpose of placing it in the power 
of any deputy marshal in any county of the country to call upon 
you and me, and all the body of the people, to pursue some white 
man who is running for his liberty, because some negro has 
charged him with denying to him equal civil rights with the 
white man. I thought, sir, that that frame-work was enough ; I 
thought, when you placed under the command of the marshal, in 
every county of the land, all the body of the people, and put 
every one upon the track of the fleeing white man, that that was 
enough ; but it -is not. For the purpose of the enforcement of 



CIVIL BIGHTS BILL. 213 

this law, the President is authorized to appoint somebody who is 
to have the command of the military and naval forces of the 
United States — for what purpose ? To prevent a violation of this 
law, and to execute it. 

" You clothe the marshals under this bill with all the powers 
that were given to the marshals under the Fugitive Slave Law. 
That was regarded as too arbitrary in its provisions, and you re- 
pealed it. You said it should not stand upon the statute-book 
any longer; that no man, white or black, should be pursued 
under the provisions of that law. Now, you reenact it, and you 
claim it as a merit and an ornament to the legislation of the 
country; and you add an army of officers and clothe them with 
the power to call upon any body and every body to pursue the 
running white man. That is not enough, but you must have the 
military to be called in, at the pleasure of whom? Such a person 
as the President may authorize to call out the military forces. 
Where it shall be, and to whom this power shall be given, we 
do not know." 

Mr. Lane, of Indiana, replied to the argument of his colleague. 
He said : " It is true that many of the provisions of this bill, 
changed in their purpose and object, are almost identical with the 
provisions of the Fugitive Slave Law, and they are denounced by 
my colleague in their present application; but I have not heard 
any denunciation from my colleague, or from any of those associated 
with him, of the provisions of that Fugitive Slave Law which was 
enacted in the interest of slavery, and for purposes of oppression, 
and which was an unworthy, cowardly, disgraceful concession to 
Southern opinion by Northern politicians. I have suffered no 
suitable opportunity to escape me to denounce the monstrous char- 
acter of that Fugitive Slave Act of 1850. All these provisions 
w r ere odious and disgraceful in my opinion, when applied in the 
interest of slavery, when the object was to strike down the rights 
of man. But here the purpose is changed. These provisions are 
in the interest of freemen and of freedom, and what was odious in 
the one case becomes highly meritorious in the other. It is an 
instance of poetic justice and of apt retribution that God has caused 
the wrath of man to praise Him. I stand by every provision of 
this bill, drawn as it is from that most iniquitious fountain, the 
Fugitive Slave Law of 1850. 

" Then my colleague asks, Why do you invoke the power of the 



214 THE THIRTY-NINTH CONGRESS. 

military to enforce these laws? And he says that constables, and 
sheriffs, and marshals, when they have process to serve, have a 
right to call upon the posse comitatus, the body of the whole 
people, to enforce their writs. Here is a justice of the peace in 
South Carolina or Georgia, or a county court, or a circuit court, 
that is called upon to execute this law. They appoint their own 
marshal, their deputy marshal, or their constable, and he calls 
upon the posse comitatus. Neither the judge, nor the jury, nor 
the officer, as we believe, is willing to execute the law. He may 
call upon the people, the body of the whole people, a body of 
rebels steeped in treason and rebellion to their lips, and they are 
to execute it; and the gentleman seems wonderfully astonished 
that we should call upon the military power. We should not 
legislate at all if we believed the State courts could or would 
honestly carry out the provisions of the constitutional amendment ; 
but because we believe they will not do that, we give the Federal 
officers jurisdiction. 

" But what harm is to result from it ? Who is to be oppressed ? 
What white man fleeing, in the language of my colleague, pur- 
sued by these harpies of the law, is in danger of having his rights 
stricken down? What does the bill provide? It places all men 
upon an equality, and unless the white man violates the law, he 
is in no danger. It takes no rights from any white man. It 
simply places others on the same platform upon which he stands ; 
and if he would invoke the power of local prejudice to override 
the laws of the country, this is no Government unless the military 
may be called in to enforce the order of the civil courts and obe- 
dience to the laws of the country." 

Mr. Wilson, of Massachusetts, said, in answer to some objec- 
tions to the bill urged by Mr. Guthrie : " The Senator tells us 
that the emancipated men ought to have their civil rights, that 
the black codes fell with slavery; but the Senator forgets that at 
least six of the reorganized States in their new Legislatures have 
passed laws wholly incompatible with the freedom of these freed- 
men ; and so atrocious are the provisions of these laws, and so 
persistently are they carried into effect by the local authorities, 
that General Thomas, in Mississippi, General Swayne, in Ala- 
bama, General Sickles, in South Carolina, and General Terry, in 
Virginia, have issued positive orders, forbidding the execution of 
the black laws that have just been passed. 



CIVIL BIGHTS BILL. 215 

" So unjust, so wicked, so incompatible are these new black 
laws of the rebel States, made in defiance of the expressed will of 
the nation, that Lieutenant-general Grant has been forced to is- 
sue that order, which sets aside the black laws of all these rebell- 
ious States against the freedmen, and allows no law to be en- 
forced against them that is not enforced equally against white men. 
This order, issued by General Grant, will be respected, obeyed, 
and enforced in the rebel States with the military power of the 
nation. Southern legislators and people must learn, if they are 
compelled to learn by the bayonets of the Army of the United 
States, that the civil rights of the freedmen must be and shall be 
respected; that these freedmen are as free as their late masters; 
that they shall live under the same laws, be tried for their viola- 
tion in the same manner, and if found guilty, punished in the 
same manner and degree. 

"This measure is called for, because these reconstructed Legis- 
latures, in defiance of the rights of the freedmen, and the will of 
the nation, embodied in the amendment to the Constitution, have 
enacted laws nearly as iniquitous as the old slave codes that dark- 
ened the legislation of other days. The needs of more than four 
million colored men imperatively call for its enactment. The 
Constitution authorizes and the national will demands it. By a 
series of legislative acts, by executive proclamations, by m il i t ary 
orders, and by the adoption of the amendment to the Constitution 
by the people of the United States, the gigantic* system of human 
slavery that darkened the land, controlled the policy, and swayed 
the destinies of the republic has forever perished. Step by step 
we have marched right on from one victory to another, with the 
music of broken fetters ringing in our ears. None of the series 
of acts in this beneficent legislation of Congress, none of the 
proclamations of the Executive, none of these military orders, 
protecting rights secured by law, will ever be revoked or amended 
by the voice of the American people. There is now 

" 'No slave beneath that starry flag, 
The emblem of the free.' 

" By the will of the nation freedom and free institutions for all, 
chains and fetters for none, are forever incorporated in the fun- 
damental law of regenerated and united America. Slave codes 
and auction blocks, chains and fetters and blood-hounds, are things 



216 THE THIBTT-JVIJVTH CONGRESS. 

of the past, and the chattel stands forth a man, with the rights 
and the powers of the freemen. For the better security of these 
new-born civil rights we are now about to pass the greatest and 
the grandest act in this series of acts that have emancipated a 
race and disinthralled a nation. It will pass, it will go upon the 
statute-book of the republic by the voice of the American people, 
and there it will remain. From the verdict of Congress in favor 
of this great measure, no appeal will ever be entertained by the 
people of the United States." 

Mr. Cowan spoke again, and denounced the section of the bill 
which provided for its enforcement by the military. He said: 
" There it is ; words can not make it plainer ; reason can not eluci- 
date it; no language can strengthen it or weaken it, one way or 
the other. There is the question whether a military man, edu- 
cated in a military school, accustomed to supreme command, un- 
accustomed to the administration of civil law among a free people, 
is to be intrusted with these appellate jurisdiction over the courts 
of the country ; whether he can in any way, whether he ought in 
any way, to be intrusted with such a power. I, for my part, will 
never agree to it ; and I should feel myself recreant to every duty 
that I owed to myself, to my country, to my country's history, 
and I may say to the race which has been for hundreds and 
thousands of years endeavoring to attain to something like con- 
stitutional liberty, if I did not resist this and all similar 
projects." 

Mr. Trumbull answered some objections to the bill. " The 
Senator from Indiana [Mr. Hendricks] objects to the bill because 
he says that the same provisions which were enacted in the old 
Fugitive Slave Law are incorporated into this, and that it has 
been heralded to the country that it was a great achievement to 
do this; and he insists that if those provisions of law were 
odious and w r icked and wrong which provided for punishing 
men for aiding the slave to escape, therefore they must be wicked 
and wrong now when they are employed for the punishing a 
man who undertakes to put a person into slavery. Sir, that 
does not follow at all. A law may be iniquitous and unjust and 
wrong which undertakes to punish another for doing an innocent 
act, which would be righteous and just and proper to punish a 
man for doing a wicked act. We have upon our statute-books a 
law punishing a man who commits murder, because the commis- 



CIVIL- BIGHTS BILL. 217 

sion of murder is a high crime, and the party who does it for- 
feits his right to live; but would it be just to apply the law 
which punishes a person for committing murder to an innocent 
person who had killed another accidentally, without malice? That 
is the difference. It is the difference between right and wrong, 
between good and evil. True, the features of the Fugitive Slave 
Law were abominable when they were used for the purpose of 
punishing, not negroes, as the Senator from Indiana says, but 
white men. The Fugitive Slave Law was enacted for the pur- 
pose of punishing white men who aided to give the natural gift 
of liberty to those who were enslaved. Now, sir, we propose to 
use the provisions of the Fugitive Slave Law for the purpose of 
punishing those who deny freedom, not those who seek to aid 
persons to escape to freedom. The difference was too clearly 
pointed out by the colleague of the Senator [Mr. Lane] to justify 
me in taking further time in alluding to it. 

" But the Senator objects to this bill because it authorizes the 
calling in of the military ; and he asserts that it is the only law 
in which the military is brought in to enforce it. The Senator 
from Pennsylvania [Mr. Cowan] follows this up with a half 
hour's speech, denouncing this law as obnoxious to the objection 
that it is a military law, that it is taking the trial of persons for 
offenses out of the hands of the courts and placing them under 
the military — a monstrous proposition, he says. Is that so? 
What is the law ? 

" It is a court bill ; it is to be executed through the courts, 
and in no other way. But does the Senator mean to say it is a 
military bill because the military may be called in, in aid of the 
execution of the law through the courts ? Does the Senator from 
Pennsylvania — I should like his attention, and that of the Sena- 
tor from Indiana, too — deny the authority to call in the military 
in aid of the execution of the law through the courts ? 

" Let me read a clause from the Constitution, which seems to 
have been forgotten by the Senator from Pennsylvania and the 
Senator from Indiana. The Senator from Pennsylvania, who has 
denounced this- law, has been living under just such a law for 
thirty years, and it seems never found it out. What says the 
Constitution ? ' Congress shall have power to provide for calling 
forth the militia to execute the laws of the Union.' 

" Then, can not the militia prevent persons from violating the 



218 THE THIRTY-NINTH CONGRESS. 

law? They are authorized by the Constitution to be called out 
for the purpose of executing the law, and here we have a law 
that is to be carried into execution, and when you find persons 
combined together to prevent its execution, you can not do any 
thing with them! Suppose that the county authorities in Mus- 
cogee County, Georgia, combine together to deny civil rights to 
to every colored man in that county. For the purpose of pre- 
venting it, before they have done any act, I say the militia may 
be called out to prevent them from committing an act. We are 
not required to wait until the act is committed before any thing 
can be done. That was the doctrine which led to this rebellion, 
that we had no authority to do any thing till the conflict of arms 
came. I believed then, in 1860, that we had authority ; and if 
it had been properly exercised, if the men who were threatening 
rebellion, who were in this chamber defying the authority of the 
Government, had been arrested for treason — of which, in my 
judgment, by setting on foot armed expeditions against the coun- 
try, they were guilty — and if they had been tried and punished 
and executed for the crime, I doubt whether this great rebellion 
would ever have taken place. 

"There is another statute to which I beg leave to call the 
attention of the Senator from Pennsylvania, and under which 
he has lived for thirty years without ever having known it ; 
and his rights have been fully protected. I wish to call atten- 
tion to a section from which the tenth section of the bill under 
consideration, at which the Senator from Indiana is so horrified, 
is copied word for word, and letter for letter. The act of March 
10, 1836, ' supplementary to an act entitled " An act in addition 
to the act for the punishment of certain crimes against the 
United States, and to repeal the acts therein mentioned," ap- 
proved 20th of April, 1818/ contains the very section that is in 
this bill, word for word. It did not horrify the country ; it did 
not destroy all the liberties of the people ; it did not consolidate 
all the powers of the Constitution in the Federal Government ; 
it did not overthrow the courts, and it has existed now for 
thirty years!" 

The question was first taken on the amendment offered by Mr. 
Hendricks, to strike out the tenth section of the bill. The vote 
resulted yeas, twelve ; nays, thirty-four. 

At this stage of the proceedings, Mr. Saulsbury moved to 






CIVIL BIGHTS BILL. 219 

amend the bill by adding in the first section of the bill after the 
words "civil rights," the words, "except the right to vote in 
the States." He desired that if the Senate did not wish to con- 
fer the right of suffrage by this bill, they should say so. The 
question being taken on Mr. Saulsbury's amendment, the vote 
resulted seven in the affirmative and thirty-nine in the negative. 
The vote was finally taken on the passage of the bill, which 
resulted thirty-three in the affirmative and twelve in the nega- 
tive. The following Senators voted in favor of the bill : 

Messrs. A*nthony, Brown, Chandler, Clark, Connor, Cragin, Dixon, Fes- 
senden, Foot, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Henry 
S. Lane, James H. Lane, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, 
Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, 
Wilson, and Yates — 33. 

The following voted against the bill, namely : 

Messrs. Buckalew, Cowan, Davis, Guthrie, Hendricks, MeDougall, Nes- 
mith, Norton, Riddle, Saulsbury, Stockton, and Van Winkle— 12. 

Five Senators were absent, to wit : 

Messrs. Creswell, Doolittle, Grimes, Johnson, and Wright — 5. 



220 THE THIRTY-NINTH CONGRESS. 



CHAPTER X. 

THE CIVIL RIGHTS BILL IN THE HOUSE OF REPRESENTATIVES. 

The Bill referred to the Judiciary Committee and reported back — 
Speech by the Chairman of the Committee — Mr. Rogers — Mr. Cook — 
Mr. Thayer— Mr. Eldridge — Mr. Thornton — Mr. Windom — Mr. Shel- 
labarger— Mr. Broomall — Mr. Raymond — Mr. Delano — Mr. Kerr — 
Amendment by Mr. Bingham — His Speech — Reply by his .Colleague — 
Discussion closed by Mr. Wilson — Yeas and Nays on the Passage of 
the Bill — Mr. Le Blond's proposed title — Amendments of the House 
accepted by the Senate. 
• 

ON the 5th of February, four days after the passage of the Civil 
Rights Bill in the Senate, it came before the House of Repre- 
sentatives, and having been read a first and second time, was 
referred to the Committee on the Judiciary. On the 1st of March, 
the Chairman of the Judiciary Committee, Mr. "Wilson, brought 
the bill again before the House, proposing some verbal amend- 
ments which were adopted. He then made a motion to recommit 
the bill, pending which, he made a speech on the merits of the 
measure. He referred to many definitions, judicial decisions, 
opinions, and precedents, under which negroes were entitled to 
the rights of American citizenship. In reference to the results 
of his researches, he said : 

"Precedents, both judicial and legislative, are found in sharp 
conflict concerning them. The line which divides these prece- 
dents is generally found to be the same which sej>arates the early 
from the later days of the republic. The further the Govern- 
ment drifted from the old moorings of equality and human rights, 
the more numerous became judicial and legislative utterances in 
conflict with some of the leading features of this bill." 

He argued that the section of the bill providing for its enforce- 
ment by the military arm Avas necessary, in order " to fortify the 
declaratory portions of this bill with such sanctions as will render 
it effective." In conclusion he said : 



CIVIL RIGHTS BILL. 221 

"Can not protection be rendered to the citizen in the mode 
prescribed by the measure we now have under consideration? 
If not, a perpetual state of constructive war would be a great 
blessing to very many American citizens. If a suspension of 
martial law and a restoration of the ordinary forms of civil law 
are to result in a subjection of our people to the outrages under 
the operation of State laws and municipal ordinances which these 
orders now prevent, then it were better to continue the present 
state of affairs forever. But such is not the case; we may pro- 
vide by law for the same ample protection through the civil 
courts that now depends on the orders of our military command- 
ers ; and I will never consent to any other construction of our 
Constitution, for that would be the elevation of the military above 
the civil power. 

"Before our Constitution was formed, the great fundamental 
rights which I have mentioned belonged to every person who 
became a member of our great national family. No one surren- 
dered a jot or tittle of these rights by consenting to the formation 
of the Government. The entire machinery of Government, as 
organized by the Constitution, was designed, among other things, 
to secure a more perfect enjoyment of these rights. A legislative 
department was created, that laws necessary and proper to this 
end might be enacted; a judicial department was erected to 
expound and administer the laws ; an executive department was 
formed for the purpose of enforcing and seeing to the execution 
of these laws; and these several departments of Government 
possess the power to enact, administer, and enforce the laws 
'necessary and proper' to secure those rights which existed ante- 
rior to the ordination of the Constitution. Any other view of the 
powers of this Government dwarfs it, and renders it a failure in 
its most important office. 

"Upon this broad principle I rest my justification of this bill. 
I assert that we possess the power to do those things which gov- 
ernments are organized to do ; that we may protect a citizen of 
the United States against a violation of his rights by the law of 
a single State; that by our laws and our courts we may inter- 
vene to maintain the proud character of American citizenship; 
that this power permeates our whole system, is a part of it, with- 
out which the States can run riot over every fundamental right 
belonging to citizens of the United States; that the right to 



THE THIRTY-NINTH CONGRESS. 

exercise this power depends upon no express delegation, but runs 
with the rights it is designed to protect ; that we possess the same 
latitude in respect to the selection of means through which to ex- 
ercise this power that belongs to us when a power rests upon ex- 
press delegation ; and that the decisions which support the latter 
maintain the former. And here, sir, I leave the bill to the con- 
sideration of the House." 

Mr. Rogers, of New Jersey, followed with an argument against 
the bill, because it interfered with " States' Rights." Under its 
provisions, Congress would " enter the domain of a State and in- 
terfere with its internal police, statutes, and domestic regulations." 
He said : 

" This act of legislation would destroy the foundations of the 
Government as they were laid and established by our fathers, 
who reserved to the States certain privileges and immunities 
which ought sacredly to be preserved to them. 

" If you had attempted to do it in the days of those who were 
living at the time the Constitution was made, after the birth of 
that noble instrument, the spirit of the heroes of the Revolution and 
the ghosts of the departed who laid down their lives in defense 
of the liberty of this country and of the rights of the States, 
would have come forth as witnesses against the deadly infliction, 
and the destruction of the fundamental principle of the sover- 
eignty of the States in violation of the Constitution, and the 
breaking down of the ties that bind the States, and the violation 
of the rights and liberties of the white men and white women of 
America. 

" If you pass this bill, you will allow the negroes of this coun- 
try to compete for the high office of President of the United 
States. Because if they are citizens at all, they come within the 
meaning and letter of the Constitution of the United States, 
which allows all natural-born citizens to become candidates for 
the Presidency, and to exercise the duties of that office if elected. 

" I am afraid of degrading this Government ; I am afraid of 
danger to constitutional liberty ; I am alarmed at the stupendous 
strides which this Congress is trying to initiate; and I appeal 
in behalf of my country, in behalf of those that are to come after 
us, of generations yet unborn, as w 7 ell as those now living, that 
conservative men on the other side should rally to the standard 
of sovereign and independent States, and blot out this idea which 



CIVIL BIGHTS BILL. 223 

is inculcating itself here, that all the powers of the States must 
be taken away, and the power of the Czar of Russia or the Em- 
peror of France must be lodged in the Federal Government. 

" I ask you to stand by the law of the country, and to regulate 
these Federal and State systems upon the grand principles upon 
which they were intended to be regulated, that we may hand 
down to those who are to come after us this bright jewel of civil 
liberty unimpaired ; and I say that the Congress or the men who 
will strip the people of these rights will be handed down to per- 
dition for allowing this bright and beautiful heritage of civil lib- 
erty embodied in the powers and sovereign jurisdiction of the 
States to pass away from us. 

"I am willing to trust brave men — men who have shown as 
much bravery as those who were engaged on battle-fields against 
the armed legions of the North; because I believe that even when 
they were fighting against the flag of their country, the great 
mass of those people were moved by high and conscientious con- 
victions of duty. And in the spirit of Christianity, in the spirit 
which Jesus Christ exercised when he gave up his own life as 
a propitiation for a fallen world, I would say to those Southern 
men, Come here in the Halls of Congress, and participate with us 
in passing laws which, if constitutionally carried into effect, will 
control the interests and destinies of four millions people, mostly 
living within the limits of your States. 5 '* 

Mr. Cook, of Illinois, replied : " Mr. Speaker, in listening to 
the very eloquent remarks of the gentleman from New Jersey 
[Mr. Rogers], I have been astonished to find that in his appre- 
hension this bill is designed to deprive somebody, in some State 
of this Union, of some right which he has heretofore enjoyed. I 
am only sorry that he was not specific enough ; that he did not inform 
us what rights are to be taken away. He has denounced this bill 
as dangerous to liberty, as calculated in its tendency at least to 
destroy the liberties of this country. I have examined this bill 
with some care, and, so far as I have been able to understand it, 
I have found nothing in any provision of it which tends in any 
way to take from any man, white or black, a single right he en- 
joys under the Constitution and laws of the United States. 

" I would have been glad if he would have told us in what 
manner the white men of this country would have been placed in 
a worse condition than they are now, if this becomes the law. 



224 THE THIRTY-NINTH CONGRESS. 

This general denunciation and general assault of the bill, without 
pointing out one single thing which is to deprive one single man 
of any right he enjoys under the Government, seems to me not 
entitled to much weight. 

" When those rights which are enumerated in this bill are de- 
nied to any class of men, on account of race or color, when they 
are subject to a system of vagrant laws which sells them into 
slavery or involuntary servitude, which operates upon them as 
upon no other part of the community, they are not secured in the 
rights of freedom. If a man can be sold, the man is a slave. If 
he is nominally freed by the amendment to the Constitution, he 
has nothing in the world he can call his own; he has simply the 
labor of his hands on which he can depend. Any combination 
of men in his neighborhood can prevent him from having any 
chance to support himself by his labor. They can pass a law that 
a man not supporting himself by labor shall be deemed a vagrant, 
and that a vagrant shall be sold. If this is the freedom we gave 
the men who have been fighting for us and in defense of the Gov- 
ernment, if this is all we have secured them, the President had 
far better never have issued the Proclamation of Emancipation, 
and the country had far better never have adopted the great or- 
dinance of freedom. 

" Does any man in this House believe that these people can be 
safely left in these States without the aid of Federal legislation or 
military power ? Does any one believe that their freedom can be 
preserved without this aid ? If any man does so believe, he is 
strangely blind to the history of the past year ; strangely blind to 
the enactments passed by Legislatures touching these freedmen. 
And I shuddered as I heard the honorable gentleman from New 
Jersey [Mr. Rogers] claiming that he was speaking and thinking 
in the spirit which animated the Savior of mankind when he 
made atonement for our race; that it was in that spirit he was 
acting Avhen he was striving to have these people left utterly de- 
fenseless in the hands of men who were proving, day by day, 
month by month, that they desire to oppress them, for they had 
been made free against their consent. Every act of legislation, 
every expression of opinion on their part, proves that these peo- 
ple would be again enslaved if they were not protected- by the 
military arm of the Federal Government; without that they 
would be slaves to-day. And I submit, witli all deference, that 



CIVIL EIGHTS BILL. 225 

it is any thing but the spirit which the gentleman claims to have 
exercised, which prompted the argument he has made. 

"For myself, I trust that this bill will be passed, because I 
consider it the most appropriate means to secure the end desired, 
and that these people will be protected. I trust that we will say 
to them, Because upon our call you aided us to suppress this re- 
bellion, because the honor and faith of the nation were pledged 
for your protection, we will maintain your freedom, and redeem 
that pledge." 

On the following day, the House of Eepresentatives resumed 
the consideration of this bill. A speech was made by Mr. Thayer, 
of Pennsylvania. He said : 

" This bill is the just sequel to, and the proper completion of, 
that great measure of national redress which opened the dungeon- 
doors of four million human beings. Without this, in my judg- 
ment, that great act of justice will be paralyzed and made useless. 
With this, it will have practical effect, life, vigor, and enforce- 
ment. It has been the fashion of gentlemen, holding a certain 
set of opinions, in this House to characterize that great measure 
to which I have referred as a revolutionary measure. 

" Sir, it was a revolutionary measure. It was one of the great- 
est, one of the most humane, one of the most beneficial revolu- 
tions which ever characterized the history of a free State ; but it 
was a revolution which, though initiated by the conflict of arms 
and rendered necessary as a measure of war against the public 
enemy, was accomplished within and under the provisions of the 
Constitution of the United States. It was a revolution for the 
relief of human nature, a revolution which gave life, liberty, and 
hope to millions whose condition, 'until then, appeared to be one 
of hopeless despair. It was a revolution of which no freeman 
need be ashamed, of which every man who assisted in it will, I 
am sure, in the future be proud, and which will illumine with a 
great glory the history of this country. 

" There is nothing in this bill in respect to the enrployment of 
military force that is not already in the Constitution of the United 
States. The power here conferred is expressly given by that in- 
strument, and has been exercised upon the most stupendous scale 
in the suppression of the rebellion. What is this bill ? I hope 
gentlemen, even on the opposite side of the House, will not suf- 
fer their minds to be influenced by any such vague, loose, and 
15 



226 THE THIRTY-NINTH CONGRESS. 

groundless denunciations as these which have proceeded from the 
gentleman from New Jersey. The bill, after extending these 
fundamental immunities of citizenship to all classes of people in the 
United States, simply provides means for the enforcement of 
these rights and immunities. How? Not by military force, 
not through the instrumentality of military commanders, not 
through any military machinery whatever, but through the quiet, 
dignified, firm, and constitutional forms of judicial procedure. 
The bill seeks to enforce these rights in the same manner and 
with the same sanctions under and by which other laws of the 
United States are enforced. It imposes duties upon the judicial 
tribunals of the country which require the enforcement of these 
rights. It provides for the administration of laws to protect these 
rights. It provides for the execution of laws to enforce them. 
Is there any thing appalling in that? Is that a military despot- 
ism? Sir, it is a strange abuse of language to say that a mili- 
tary despotism is established by wholesome and equal laws. Yet 
the gentleman declaimed by the hour, in vague and idle terms, 
against this bill, which has not a single offensive, oppressive, 
unjust, unusual, or tyrannical feature in it. These civil rights 
and immunities which are to be secured, and which no man can 
conscientiously say ought to be denied, are to be enforced through 
the ordinary instrumentalities of courts of justice. 

" While engaged in this great work of restoration, it concerns 
our honor that we forget not those who are unable to help them- 
selves ; who, whatever may have been the misery and wretched- 
ness of their former condition, were on our side in the great 
struggle which has closed, and whose rights we can not disregard 
or neglect without violating the most sacred obligations of duty 
and of honor. To us they look for protection against the wrongs 
with which they are threatened. To us alone can they appeal in 
their helplessness for succor and defense. To us they hold out 
to-day their supplicating hands, asking for protection for them- 
selves and their posterity. We can not disregard this appeal, 
and stand acquitted before the country and the world of basely 
abandoning to a miserable fate those who have a right to demand 
the protection of your flag and the immunities guaranteed to 
every freeman by your Constitution." 

Mr. Eldridge, of Wisconsin, opposed the bill, in a speech of 
which the following; are the concluding remarks : 



CIVIL BIGHTS BILL. 227 

" I had hoped that this subject would be allowed to rest. Gen- 
tlemen refer us to individual cases of wrong perpetrated upon the 
freedmen of the South as an argument why we should extend the 
Federal authority into the diiFerent States to control the action of 
the citizens thereof. But, I ask, has not the South submitted to 
the altered state of things there, to the late amendment of the 
Constitution, to the loss of their slave property, with a cheerful- 
ness and grace that we did not expect? Have they not acqui- 
esced more willingly than we dared to hope? Then why not 
trust them? Why not meet them with frankness and kindness? 
Why not encourage them with trust and confidence? 

" I deprecate all these measures because of the implication they 
carry upon their face, that the people who have heretofore owned 
slaves intend to do thqni wrong. I do not believe it. So far as 
my knowledge goes, and so far as my information extends, I be- 
lieve that the people who have held the freedmen slaves will treat 
them with more kindness, with more leniency, than those of the 
North who make such loud professions of love and affection for 
them, and are so anxious to pass these bills. They know their 
nature; they know their wants; they know their habits; they 
have been brought up together, and have none of the prejudices 
and unkind feelings which many in the North would have toward 
them. 

" I do not credit all these stories about the general feeling of 
hostility in the South toward the negro. So far as I have heard 
opinions expressed upon that subject, and I have conversed with 
many persons from that section of the country, they do not blame 
the negro for any thing that has happened. As a general thing, 
he was faithful to them and their interests until the army reached 
the place and took him from them. He has supported their wives 
and children in the absence of the husbands and fathers in the 
armies of the South. He has done for them what no one else 
could have done. They recognize his general good feeling toward 
them, and are inclined to reciprocate that feeling toward him. 

" I believe that is the general feeling of the Southern people 
to-day. The -cases of ill-treatment are exceptional cases. They 
are like the cases which have occurred in the Northern States 
where the unfortunate have been thrown upon our charity. 
Take for instance the stories of the cruel treatment of the insane 
in the State of Massachusetts. They may have been barbarously 



228 THE THIRTY-NINTH CONGRESS. 

confined in the loathsome dens, as stated in particular instances, 
but is that any evidence of the general ill-will of the people of 
the State of Massachusetts toward the insane ? Is that any rea- 
son why the Federal arm should be extended to Massachusetts to 
control and protect the insane there? 

" It has also been said that certain paupers in certain States 
have been badly used — paupers, too, who were whites. Is that 
any reason why we should extend the arm of the Federal Gov- 
ernment to those States to protect the poor who are thrown upon 
the charities'of the people there ? 

" Sir, we must yield to the altered state of things in this 
country. We must trust the people ; it is our duty to do so ; we 
can not do otherwise. And the sooner we place ourselves in a 
position where we can win the confidence of our late enemies, 
where our counsels will be heeded, where our advice may be re- 
garded, the sooner will the people of the whole country be fully 
reconciled to each other and their changed relationship ; the sooner 
will all the inhabitants of our country be in the possession of all the 
rights and immunities essential to their prosperity and happiness." 

Mr. Thornton, of Illinois, feared there was " something hidden, 
something more than appears in the language " of the bill. He 
feared " a design to confer the right of suffrage upon the negro," 
and urged that a proviso should be accepted u restricting the 
meaning of the words ' civil rights and immunities.' " He re- 
marked further : " The most serious objection that I have to this 
bill is, that it is an interference with the rights of the South. It 
was remarked by my friend from Wisconsin that it has often been 
intimated on this floor, and throughout the country, that whenever 
a man talks about either the Constitution or the rights of the States, 
he is either a traitor or a sympathizer with treason. I do not as- 
sume that the States are sovereign. They are subordinate to the 
Federal Government. Sovereignty in this country is in the peo- 
ple, but the States have certain rights, and those rights are abso- 
lutely necessary to the maintenance of our system of government. 
What are those rights ? The right to determine and fix the legal 
status of the inhabitants of the respective States ; tlfe local powers 
of self-government ; the power to regulate all the relations that 
exist between husband and wife, parent and child, guardian and 
ward ; all the fireside and home rights, which are nearer and dearer 
to us than all others. 



CIVIL RIGHTS BILL. 229 

"Sir, this is but a stepping-stone to a centralization of the 
Government and the overthrow of the local powers of the States. 
Whenever that is consummated, then farewell to the beauty, 
strength, and power of this Government. There is nothing left 
but absolute, despotic, central power. It lives no longer but as 
a naked despotism. There is nothing left to admire and to 
cherish." 

Mr. Windom, of Minnesota, next obtained the floor. Referring 
to the speech of Mr. Rogers, he said : " I wish to make another 
extract from the speech of the gentleman from New Jersey. He 
said, ' If you pass this bill, you will allow negroes to compete for 
the high office of the President of the United States.' You will 
actually allow them to compete for the Presidency of the United 
States ! As for this fear which haunts the gentleman from New 
Jersey, if there is a negro in the country who is so far above all 
the white men of the country that only four millions of his own 
race can elect him President of the United States over twenty-six 
millions of white people, I think we ought to encourage such 
talent in the country. 

"Sir, the gentleman has far less confidence in the white race 
than I have, if he is so timid in regard to negro competition. 
Does he really suppose that black men are so far superior to 
white men that four millions of them can elect a President of 
their own race against the wishes of thirty millions of ours? 
Ever since I knew any thing of the party to which the gentle- 
man belongs, it has entertained this same morbid fear of negro 
competition ; and sometimes I have thought that if we were to 
contemplate the subject from their stand-point we would have 
more charity than we do for this timidity and nervous dread 
which haunts them. I beg leave, however, to assure the gentle- 
man that there is not the slightest danger of electing a black 
President, and that he need never vote for one, unless he thinks 
him better fitted for the office than a white man." 

With more direct reference to the merits of the question, Mr. 
Windom said : " Our warrant for the passage of this bill is found 
in the genius and spirit of our institutions ; but not in these alone. 
Fortunately, the great amendment which broke the shackles from 
every slave in the land contains an express provision that ' Con- 
gress shall have power to enforce this article by appropriate legis- 
lation.' 



230 THE THIRTY-NINTH CONGRESS. 

" When this amendment was acted upon, it was well understood, 
as it is now, that although the body of slavery might be destroyed, 
its spirit would still live in the hearts of those who have sacrificed 
so much for its preservation, and that if the freedmen were left to 
the tender mercy of their former masters, to whose heartless self- 
ishness has been superadded a malignant desire for vengeance 
upon the negro for having aided us in crushing the rebellion, his 
condition would be more intolerable than it was before the war. 
And hence the broad grant of power was made to enable Congress 
to enforce the spirit as well as the letter of the amendment. Now, 
sir, in what way is it proposed to enforce it? By denying to any 
one man a single right or privilege which he could otherwise con- 
stitutionally or properly enjoy ? No. By conferring on any one 
person or class of persons a single right or immunity which every 
other person may not possess? By no means. Does it give to 
the loyal negro any preference over the recent would-be .assassins 
of the nation ? Not at all. It merely declares that hereafter there 
shall be no discrimination in civil rights or immunities among the 
citizens of any State or territory of the United States on account 
of race, color, or previous condition of slavery, and that every 
person, except such as are excluded by reason of crime, shall have 
the same right to enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, sell, hold, and convey real and per- 
sonal property, and to full and equal benefit of all laws and pro- 
ceedings for the security of person and property, and shall be 
subject to like punishment, pains, and penalties, and to none 
other. 

"W$ know, and the whole world knoWs, that when in the 
hour of our extremity we called upon the black race to aid us, 
we promised them not liberty only, but all that that word liberty 
implies. All remember how unwilling we were to do any thing 
which would inure to the benefit of the negro. I recall with 
shame the fact that when, five years ago, the so-called Democ- 
racy — now Egyptians — were here in this capital, in the White 
House, in the Senate, and on this floor, plotting the destruction 
of the Government, and we were asked to appease them by sacri- 
ficing the negro, two-thirds of both houses voted to rivet his 
chains upon him so long as the republic should endure. A widen- 
ing chasm yawned between the free and slave States, and we looked 
wildly around for that wherewith it might be closed. In our ex- 



CIVIL BIGHTS BILL. 231 

tremity we seized upon the negro, bound and helpless, and tried to 
cast him in. But an overruling Providence heard the cries of the 
oppressed, and hurled his oppressors into that chasm by hundreds 
of thousands, until the whole land was filled with mourning, yet 
still the chasm yawned. In our anguish and terror, we felt that 
the whole nation would be speedily ingulfed in one common ruin. 
It was then that the great emancipator and savior of his country, 
Abraham Lincoln, saw the danger and the remedy, and seizing 
four million bloody shackles, he wrenched them from their victims, 
and standing with these broken manacles in his hands upraised 
toward heaven, he invoked the blessing of the God of the oppressed, 
and cast them into the fiery chasm. That offering was accepted, 
and the chasm closed. 

" When the reports from Port Hudson and Fort AVagner 
thrilled all loyal hearts by the recital of the heroic deeds of the 
black soldier, we were not reminded that if the negro were per- 
mitted 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. Shellabarger, of Ohio, said : " I agree with the gentleman 
on the other side of the House, that this bill can not be passed 
under that clause of the Constitution which provides that Con- 
gress may pass uniform rules of naturalization. Under that 



232 THE THIRTY-NINTH CONGRESS. 

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 indi- 
vidual 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 class of persons well recognized, not only in 
our constitutional history, but also by the laws of nations, who are 
not foreigners, who occupy an intermediate position, and that in-* 
termediate 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 class in this country, according to the decisions of 
our courts hitherto, 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 constitutional law 
in this country. 

" Now, then, to that class belong the persons who are natural- 
ized by this bill. If they were not, indeed, citizens hitherto, 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 class, 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 class of persons by treaty or by general law, as is proposed 
by the amendment of the gentleman from New York [Mr. Ray- 
mond]. It is the act of the sovereign alone that is requisite to 
the naturalization of that class 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. 



CIVIL BIGHTS BILL. 233 

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 pro- 
vided by the treaty of September 27, 1830, that those families 
should be naturalized as a class. 

" Then, again, it was done in the other way, by an act of Con- 
gress, 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 class was natur- 
alized by treaty." 

Some amendments having been proposed, the bill was recom- 
mitted to the Committee on the Judiciary, with the understand- 
ing 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 



234 THE THIRTY-NINTH CONGRESS. 

in the country proposes to deprive the authors of such immeas- 
urable 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 prodi- 
gal 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 Uuited 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 impor- 
tance 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. 



CIVIL BIGHTS BILL. 235 

"Now, sir, assuming, as I do, without any further argument, 
that Congress has the power of admitting to citizenship this 
great class of persons just set free by the amendment to the Con- 
stitution of the United States abolishing slavery, I suppose I need 
not dwell here on the great importance to that class 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 con- 
ferred 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 Govern- 
ment toward so large a class 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 stat- 
ute 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 belong- 
ing to myself, or as conferred upon any of our fellow-citizens." 

Mr. Eaymond expressed doubts as to the constitutionality of 
that part of the bill " that provides for that class of persons thus 
made citizens protection against anticipated inequality of legisla- 
tion 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 
pass here any bill which shall be intercepted on its way to the 
statute-book by well-grounded complaints of unconstitutionality 
on the part of any other department of the Government." 



236 THE THIRTY-NINTH CONGRESS. 

Mr. Delano, of Ohio, followed, expressing doubts as to the 
constitutionality of the measure. He considered it a serious in- 
fringement of the rights of the States. He said : " Now, sir, 
should this bill be passed, that law of the State might be over- 
thrown 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 re- 
gard to all the personal rights of the citizen- — rights of life, lib- 
erty, 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 un- 
derstood 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 car- 
ried out with all the logical consequences that follow their assump- 
tion, 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 Constitutions 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 asserts the 
right of Congress to regulate the laws which shall govern in the 
acquisition and ownership of property in the States, and to deter- 
mine 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 class, it can, by the same kind of rea- 
soning, determine what shall be enjoyed by every class. If it can 



CIVIL RIGHTS BILL. 237 

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 tes- 
tify 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 de- 
manded the previous question, on the motion to recommit, was 
entitled to the floor, but yielded portions of his time to Mr. 
Bingham and Mr. Shellabarger. 

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 immuni- 
ties among citizens of the United States, in any State or Terri- 
tory 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 proceed- 
ings, 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 
Constitution of my country to enforce in its letter and its spirit 
the bill of rights as embodied in that Constitution. I know that 
the enforcement of the bill of rights is the want of the republic. 
I know if it had been enforced in good faith in every State of the 
Union, the calamities, and conflicts, and crimes, and sacrifices of 
the past five years would have been impossible. 

"But I feel that I am justified in saying, in view of the text 
of the Constitution of my country, in view of all its past inter- 
pretations, in view of the manifest and declared intent of the men 
who framed it, the enforcement of the Bill of Rights, touching the 



238 THE THIRTY-NINTH CONGRESS. 

life liberty, and property of every citizen of the republic, within 
every organized State of the Union, is of the reserved powers of 
the States, to be enforced by State tribunals and by State officials, 
acting under the solemn obligations of an oath imposed upon them 
by the Constitution of the United States. Who can doubt this 
conclusion who considers the words of the Constitution, ' the pow- 
ers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respect- 
ively, or to the people ? ' The Constitution does not delegate to 
the United States the power to punish offenses against the life, 
liberty, or property of the citizen in the States, nor does it pro- 
hibit that power to the States, but leaves it as the reserved power 
of the States, to be by them exercised. The prohibitions of power 
by the Constitution to the States are express prohibitions, as that 
no State shall enter into any treaty, etc., or emit bills of credit, 
or pass, any bill of attainder, etc. The Constitution does not 
prohibit States from the enactment of laws for the general gov- 
ernment of the people within their respective limits. 

"The law in every State should be just; it should be no re- 
specter of persons. It is otherwise now, and it has been other- 
wise for many years in many of the States of the Union. . I 
should remedy that, not by arbitrary assumption of power, but 
by amending the Constitution of the United States, expressly 
prohibiting the States from any such abuse of power in the fu- 
ture. You propose to make it a penal offense for the judges of 
the States to obey the Constitution and laws of their States, and 
for their obedience thereto to punish them by fine and imprison- 
ment as felons. I deny your power to do this. You can not 
make an official act, done under color of law, and without crim- 
inal intent, and from a sense of public duty, a crime." 

Mr. Shellabarger 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 classes or races 
who were born and continue to reside in our territory or in ter- 
ritory we acquire. I stated, the other day, some of the cases in 
which we naturalized races, tribes, and communities in mass, 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 








^^z^ 



CIVIL BIGHTS BILL. 239 

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 Sep- 
tember 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 Gov- 
ernment 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 entitled 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 class which 
arc fairly conducive and necessary as means to the constitutional 
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 petition 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 Judi- 
ciary Committee. He said : " This bill, sir, has met with oppo- 
sition in both houses on the same ground that, in times gone by, 
before this land was drenched in blood by the slaveholders' rebell- 
ion, was urged by those who controlled the destinies of the south- 
ern portion of the country, and those who adhered to their fortunes 
in the North, for the purpose of riveting the chains of slavery and 



240 THE THIRTY-NINTH CONGRESS. 

converting this republic into a great slave nation. The argu- 
ments 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 entitled to certain 
rights, and, being entitled to those rights, it is the duty of the 
Government to protect citizens in the perfect enjoyment of them. 
The citizen is entitled 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 inter- 
pose 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 wiule it 
was deemed necessary to constitute a great Government to render 
secure the rights of the people, the frarners 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 citi- 
zen, 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, rep- 
resenting 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 



CIVIL RIGHTS BILL. 241 

merely to enforce equality of rights, so far as they relate to citi- 
zens 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 Constitution 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 orig- 
inal bill, Mr. Wilson said : " What difference in principle is there 
between saying that the citizen shall be protected by the legisla- 
tive 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 de- 
spoiled 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, o The highest obligation 
which the Government owes to the citizen, in return for the alle- 
giance 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 ver- 
dict 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, 
16 



242 THE THIRTY-NINTH CONGRESS. 

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 assert 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 alle- 
giance which the Government holds on the citizen, hundreds of 
thousands of men to the battle-field ; and yet, while we may ex- 
ercise 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 dol- 
lars 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 con- 
ferred 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." 

Other amendments proposed and adopted were chiefly of a 
verbal character. 



CIVIL BIGHTS BILL. H3 

The main question was finally taken, and the bill passed by 
the following vote : 

Yeas — Messrs. Alley, Allison, Ames, Anderson, James M. Ashley, Baker, 
Baldwin, Banks, Baxter, Beaman, Bidwell, Blaine, Blow, Boutwell, Brom- 
well, Broomall, Buckland, Bundy, Sidney Clarke, Cobb, Conkling, Cook, 
Cullom, Darling, Davis, Dawes, Delano, Deming, Dixon, Donnelly, Driggs, 
Dumont, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Abner C. 
Harding, Hart, Hayes, Higby, Hill, Holmes, Hooper, Asahel W. Hubbard, 
Chester D. Hubbard, Demas Hubbard, John H. Hubbard, Hulburd, James 
Humphrey, Ingersoll, Jenckes, Julian, Kelley, Kelso, Ketcham, Kuykendall, 
Laflin, George V. Lawrence, William Lawrence, Loan, Longyear, Lynch, 
Marston, Marvin, McClurg, McRuer, Mercur, Miller, Moorhead, Morrill, 
Morris, Moulton, Myers, Newell, O'Neill, Orth, Paine, Perham, Pike, Plants, 
Price, Alexander H. Rice, Sawyer, Schenck, Scofield, Shellabarger, Sloan, 
Spalding, Starr, Stevens, Thayer, Francis Thomas, John L. Thomas, Trow- 
bridge, Upson, Van Aernam, Burt Van Horn, Ward, Warner, Elihu B. 
Washburne, William B. Washburn, Welker, Wentworth, Whaley, Williams, 
James F. Wilson, Stephen F. Wilson, Windom, and Woodbridge— 111. 

Nays — Messrs. Ancona, Bergen, Bingham, Boyer, Brooks, Coffroth, Daw- 
son, Denison, Glosbrenner, Goodyear, Grider, Aaron Harding, Harris, 
Hogan, Edwin N. Hubbell, Jones, Kerr, Latham, Le Blond, Marshall, Mc- 
Cullough, Nicholson, Phelps, Eadford, Samuel J. Randall, Willam H. Ran- 
dall, Ritter, Rogers, Ross, Rosseau, Shanklin, Sitgreaves, Smith, Taber, 
Taylor, Thornton, Trimble, and Winfield— 38. 

Not Voting — Messrs. Debs R. Ashley, Barker, Benjamin, Brandegee, 
Chanler, Reader W. Clarke, Culver, Defrees, Eckley, Eggeston, Eldridge, 
Finck, Griswold, Hale, Henderson, Hotchkiss, James R. Hubbell, James M. 
Humphrey, Johnson, Kasson, Mclndoe, McKee, Niblack, Noell, Patterson, 
Pomeroy, Raymond, John H. Rice, Rollins, Stilwell, Strouse, Robert T. 
Van Horn, Henry D. Washburn, and Wright— 34. 

It is an illustration of the opinion which the minority enter- 
tained of the bill to the last, that after it had finally passed, and 
the previous question had been moved on the adoption of the 
title, Mr. Le Blond moved to amend the title of the bill by 
making it read, " A bill to abrogate the rights and break down 
the judicial system of the States." 

On the 15th of March the amendments made by the House 
came before the Senate for adoption in that body. While these 
were under consideration by the Senate, Mr. Davis, of Kentucky, 
made two motions to amend, which were rejected. He then 
moved to lay the bill on the table, and was proceeding to make 
a speech, when he was informed that his motion was not debat- 
able. He then withdrew his motion to lay on the table, and 



244 TEE THIRTY-NINTH CONGRESS. 

moved to postpone the bill until the first Monday of December 
following. Finding that the last amendment proposed by the 
House of Representatives was before the Senate, and that his 
motion could not be entertained, he proceeded to make a speech 
on the question before the Senate. He asserted that "Congress 
has no authority or jurisdiction whatever" over the subject of 
legislation which the bill contains. He closed his remarks with 
the following words : " I therefore, on the grounds that I have 
stated, oppose this bill. I know that they weigh nothing with 
the dominant power here. What care I for that? "What care I 
for the manner in which my suggestions may be received by the 
majority? Nothing — less than nothing, if possible. I am per- 
forming my duty according to my sense of that duty; and in 
despite of all opposition, of frowns or scoffs, or of any other op- 
position, come in what form it may, I will stand up to the last 
hour of my service in this chamber, and will, endeavor, as best I 
can, to perform my duty whatever may betide me." 

The amendments of the House were agreed to, and the Civil 
Rights Bill wanted only Executive approval to become a law 
of the land. 



CIVIL BIGHTS BILL. 245 



CHAPTER XI. 

THE CIVIL RIGHTS BILL AND THE VETO. 

Doubts as to the President's Decision — Suspense ended — The Veto Mes- 
sage — Me. Trumbull's Answer — Mr. Keverdy Johnson defends the 
Message — Rejoinder — Remarks of Mr. Yates — Mr. Cowan appeals to 
the Country — Mr. Stewart shows how States may make the Law a 
Nullity — Mr. Wade — Mr. McDougall on Persian Mythology — Mr. J. 
H. Lane defends the President — Mr. Wade — The President's Col- 
lar — Mr. Brown — Mr. Doolittle — Mr. Garrett Dayis — Mr. Sauls- 
bury — Yeas and Nays in the Senate — Vote in the House — The Civil 
Rights Bill becomes a Law. 

THE Civil Rights Bill having finally passed through Congress, 
on the 15th of March, by the concurrence of the Senate in 
the amendments of the House, was submitted to the Presi- 
dent for his approval. Much anxiety was felt throughout the 
country to know what would be the fate of the bill at the hands 
of the Executive. Some thought it incredible that a President of 
the United States would veto so plain a declaration of rights, es- 
sential to the very existence of a large class of inhabitants. 
Others were confident that Mr. Johnson's approval would not be 
given to a bill interfering, as they thought, so flagrantly with the 
rights of the States under the Constitution. 

All doubts were dispelled, on the 27th of March, by the ap- 
pearance of the President's Secretary on the floor of the Senate, 
who said, in formal phrase : " Mr. President, I am directed by the 
President of the United States to return to the Senate, in which 
house it originated, the bill entitled c An act to protect all persons 
in the United States in their civil rights, and to furnish the means 
of their vindication,' with his objections thereto in writing." 

The Secretary of the Senate then read the message, which was 
heard with profound attention by the Senators, and a large assem- 
bly which thronged the galleries, drawn thither in anticipation 
of the President's veto message. 



246 THE THIRTY-NINTH CONGRESS. 

"To the Senate of the United States: 

"I re°ret that the bill which has passed both houses of Congress, entitled 
' An act to protect all persons in the United States in their civil rights, and 
furnish the means for their vindication,' contains provisions which I can 
not approve, consistently with my sense of duty to the whole people and my 
obligations to the Constitution of the United States. I am therefore con- 
strained to return it to the Senate, the house in which it originated, with 
my objections to its becoming a law. 

" By the first section of the bill, all persons born in the United States, and 
not subject to any foreign power, excluding Indians not taxed, are declared 
to be citizens of the United States. This provision comprehends the Chi- 
nese of the Pacific States, Indians subject to taxation, the people called 
Gypsies, as well as the entire race designated as blacks, people of color, 
negroes, mulattoes, and persons of African blood. Every individual of those 
races, born in the United States, is by the bill made a citizen of the United 
States. It does not purport to declare or confer any other right of citizen- 
ship than Federal citizenship. It does not purport to give these classes of 
persons any status as citizens of States, except that which may result from 
their status as citizens of the United States. The power to confer the right 
of State citizenship is just as exclusively with the several States as the 
power to confer the right of Federal citizenship is with Congress. 

"The right of Federal citizenship thus to be conferred on the several ex- 
cepted races before mentioned is now, for the first time, proposed to be 
given by law. If, as is claimed by many, all persons who are native-born, 
already are, by virtue of the Constitution, citizens of the United States, the 
passage of the pending bill can not be necessary to make them such. If, 
on the other hand, such persons are not citizens, as may be assumed from 
the proposed legislation to make them such, the grave question presents it- 
self, whether, when eleven of the thirty-six States are unrepresented in Con- 
gress, at this time it is sound policy to make our entire colored population 
and all other excepted classes citizens of the United States? Four millions 
of them have just emerged from slavery into freedom. Can it be reasonably 
supposed that they possess the requisite qualifications to entitle them to all 
the privileges and immunities of citizens of the United States? Have the 
people of the several States expressed such a conviction? It may also be 
asked whether it is necessary that they should be declared citizens in order 
that they may be secured in the enjoyment of civil rights? Those rights 
proposed to be conferred by the bill are, by Federal as well as by State 
laws, secured to all domiciled aliens and foreigners even before the comple- 
tion of the process of naturalization, and it may safely be assumed that the 
same enactments are sufficient to give like protection and benefits to those 
for whom this bill provides special legislation. Besides, the policy of the 
Government, from its origin to the present time, seems to have been that 
persons who are strangers to and unfamiliar with our institutions and our 
laws should pass through a certain probation, at the end of which, before 
attaining the coveted prize, they must give evidence of their fitness to re- 
ceive and to exercise the rights of citizens as contemplated by the Constitu- 
tion of the United States. 



CIVIL BIGHTS BILL. 247 

" The bill, in effect, proposes a discrimination against large numbers of 
intelligent, worthy, and patriotic foreigners, and in favor of the negro, to 
whonC after long years of bondage, the avenues to freedom and intelligence 
have now been suddenly opened. He must, of necessity, from his previous 
unfortunate condition of servitude, be less informed as to the nature and 
character of our institutions than he who, coming from abroad, has to some 
extent at least, familiarized himse% with the principles of a Government 
to which he voluntarily intrusts 'life, liberty, and the pursuit of happiness.' 
Yet it is now proposed by a single legislative enactment to confer the rights 
of citizens upon all persons of African descent, born within the extended 
limits of the United States, while persons of foreign birth, who make our 
land their home, must undergo a probation of five years, and can only then 
become citizens upon proof that they are of 'good moral character, attached 
to the principles of the Constitution of the United States, and well disposed 
to the good order and happiness of the same.' 

" The first section of the bill also contains an enumeration of the rights 
to be enjoyed by these classes, so made citizens, 'in every State and Terri- 
tory in the United States.' These rights are, ' To make and enforce con- 
tracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, 
hold, and convey real and personal property,' and to have ' full and equal 
benefit of all laws and proceedings for the security of persons and property 
as is enjoyed by white citizens.' So, too, they are made subject to the same 
punishment, pains, and penalties in common with white citizens, and to 
none others. Thus a perfect equality of the white and black races is at- 
tempted to be fixed by Federal law, in every State of the Union, over the 
vast field of State jurisdiction covered by these enumerated rights. In no 
one of these can any State ever exercise any power of discrimination be- 
tween the different races. 

"In the exercise of State policy ever matters exclusively affecting the peo- 
ple of each State; it has frequently been thought expedient to discriminate 
between the two races. By the statutes of some of the States, Northern as 
well as Southern, it is enacted, for instance, that no white person shall in- 
termarry with a ne-ro or mulatto. Chancellor Kent says, speaking of the 
blacks, that 'marriages between them and whites are forbidden m some of 
the States where slavery does not exist, and they are prohibited in all the 
slaveholding States, and when not absolutely contrary to law, they are re- 
volting and regarded as an offense against public decorum.' 

"I do not say this bill repeals State laws on the subject of marriage be- 
tween the two races, for as the whites are forbidden to intermarry with the 
blacks, the blacks can only make such contracts as the whites themselves 
are allowed to make, and therefore can not, under this bill, enter into the 
marriage contract with the whites. I cite this discrimination, however, as 
an instance of the State policy as to discrimination, and to inquire whether, 
if Congress can abrogate all State laws of discrimination between the two 
races in the matter of real estate, of suits, and of contracts generally, Con- 
gress may not also repeal the State laws as to the contract of marriage be- 
tween the two races? Hitherto every subject embraced in the enumeration 
of rights contained in this bill has been considered as exclusively belonging 



248 THE THIRTY-NINTH CONGRESS. 

to the States. They all relate to the internal policy and economy of the re- 
spective States. They are matters which in each State concern the domestic 
condition of its people, varying in each according to its own peculiar circum- 
stances, and the safety and well-being of its own citizens. I do not mean 
to say that upon all these subjects there are not Federal restraints, as, for 
instance, in the State power of legislation over contracts, there is a Federal 
limitation that no State shall pass a law impairing the obligations of con- 
tracts; and as to crimes, that no State shall pass an ex post facto law; and 
as to money, that no State shall make any thing but gold and silver a legal 
tender. But where can we find a Federal prohibition against the power of 
any State to discriminate, as do most of them, between aliens and citizens, 
between artificial persons called corporations and natural persons, in the 
right to hold real estate? 

"If it be granted that Congress can repeal all State laws discriminating 
between whites and blacks, in the subjects covered by this bill, why, it may 
be asked, may not Congress repeal in the same way all State laws discrim- 
inating between the two races on the subject of suffrage and office? If 
Congress can declare by law who shall hold lands, who shall testify, who 
shall have capacity to make a contract in a State, then Congress can by law 
also declare who, without regard to color or race, shall have the right to 
sit as a juror or as a judge, to hold any office, and, finally, to vote, 'in every 
State and Territory of the United States.' As respects the Territories, they 
come within the power of Congress, for, as to them, the law-making power 
is the Federal power; but as to the States, no similar provisions exist, vest- 
ing in Congress the power 'to make rules and regulations' for them. 

"The object of the second section of the bill is to afford discriminating 
protection to colored persons in the full enjoyment of all the rights secured 
to them by the preceding section. It declares ' that any person who, under 
color of any law, statute, ordinance, regulation, or custom, shall subject, or 
cause to be subjected, any inhabitant of any State or Territory to the de- 
privation of any right secured or protected by this act, or to different pun- 
ishment, pains, or penalties on account of such person having at one time 
been held in a condition of slavery or involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, or 
by reason of his color or race, than is prescribed for the punishment of 
white persons, shall be deemed guilty of a misdemeanor, and, on conviction, 
shall be punished by fine not exceeding $1,000, or by imprisonment not 
exceeding one year, or both, in the discretion of the court.' This section 
seems to be designed to apply to some existing or future law of a State or 
Territory which may conflict with the provisions of the bill now under con- 
sideration. It provides for counteracting such forbidden legislation by im- 
posing fine and imprisonment upon the legislators who may pass such 
conflicting laws, or upon the officers or agents who shall put, or attempt to 
put, them into execution. It means an official offense, not a common crime 
committed against law upon the persons or property of the black race. 
Such an act may deprive the black man of his property, but not of the 
right to hold property. It means a deprivation of the right itself, either by 
the State Judiciary or the State Legislature. It is therefore assumed that, 



CIVIL BIGHTS BILL. 249 

under this section, members of State Legislatures who should vote for laws 
conflicting with the provisions of the bill; that judges of the State courts 
who should render judgments in antagonism with its terms; and that mar- 
shals and sheriffs, who should, as ministerial officers, execute processes, 
sanctioned by State laws and issued by State judges, in execution of their 
judgments, could be brought before fither tribunals, and there subjected to 
fine and imprisonment for the performance of the duties which such State 
laws might impose. 

" The legislation thus proposed invades the judicial power of the State. 
It says to every State court or judge, If you decide that this act is uncon- 
stitutional; if you refuse, under the prohibition of a State law, to allow a 
negro to testify; if you hold that over such a subject-matter the State law 
is paramount, and 'under color' of a State law refuse the exercise of the 
right to the negro, your error of judgment, however conscientious, shall sub- 
ject you to fine and imprisonment. I do not apprehend that the conflicting 
legislation which the bill seems to contemplate is so likely to occur as to 
render it necessary at this time to adopt a measure of such doubtful consti- 
tutionality. 

"In the next place, this provision of the bill seems to be unnecessary, as 
adequate judicial remedies could be adopted to secure the desired end 
without invading the immunities of legislators, always important to be pre- 
served in the interest of public liberty; without assailing the independence 
of the judiciary, always essential to the preservation of individual rights; 
and without impairing the efficiency of ministerial officers, always necessary 
for the maintenance of public peace and order. The remedy proposed by 
this section seems to be, in this respect, not only anomalous, but unconsti- 
tutional; for the Constitution guarantees nothing with certainty, if it does 
not insure to the several States the right of making and executing laws in 
regard to all matters arising within their jurisdiction, subject only to the 
restriction that, in cases of conflict with the Constitution and constitutional 
laws of the United States, the latter should be held to be the supreme law 
of the land. 

" The third section gives the district courts of the United States exclusive 
'cognizance of all crimes and offenses committed against the provisions of 
this act,' and concurrent jurisdiction with the circuit courts of the United 
States of all civil and criminal cases ' affecting persons who are denied or 
can not enforce in the courts or judicial tribunals of the State or locality 
where they may be any of the rights secured to them by the first section.' 
The construction which I have given to the second section is strengthened 
by this third section, for it makes clear what kind of denial or deprivation 
of the rights secured by the first section was in contemplation. It is a de- 
nial or deprivation of such rights 'in the courts or judicial tribunals of the 
State.' It stands, therefore, clear of doubt, that the offense and the penal- 
ties provided in the second section are intended for the State judge, who, in 
the clear exercise of his function as a judge, not acting ministerially, but 
judicially, shall decide contrary to this Federal law. In other words, when 
a State judge, acting upon a question involving a conflict between a State 
law and a Federal law, and bound, according to his own judgment and re- 



250 THE THIRTY-NINTH CONGRESS. 

sponsibility, to give an impartial decision between the two, comes to the 
conclusion that the State law is valid and the Federal law is invalid, he 
must not follow the dictates of his own judgment, at the peril of fine and 
imprisonment. The legislative department of the Government of the United 
States thus takes from the judicial department of the States the sacred and 
exclusive duty of judicial decision, and converts the State judge into a mere 
ministerial officer, bound to decree according to the will of Congress. 

"It is clear that, in States which deny to persons whose rights are se- 
cured by the first section of the bill any one of those rights, all criminal 
and civil cases affecting them will, by the provisions of the third section, 
come under the exclusive cognizance of the Federal tribunals. It follows 
that if, in any State which denies to a colored person any one of all those 
rights, that person should commit a crime against the laws of the State — 
murder, arson, rape, or any other crime — all protection and punishment 
through the courts of the State are taken away, and he can only be tried 
and punished in the Federal courts. How is the criminal to be tried? If 
the offense is provided for and punished by Federal law, that law, and not 
the State law, is to govern. 

"It is only when the offense does not happen to be within the purview 
of the Federal law that the Federal courts are to try and punish him under 
any other law; then resort is to be had to 'the common law, as modified 
and changed ' by State legislation, ' so far as the same is not inconsistent 
with the Constitution and laws of the United States.' So that over this vast 
domain of criminal jurisprudence, provided by each State for the protection 
of its own citizens, and for the punishment of all persons who violate its 
criminal laws, Federal law, wherever it can be made to apply, displaces 
State law. 

" The question here naturally arises, from what source Congress derives 
the power to transfer to Federal tribunals certain classes of cases embraced 
in this section. The Constitution expressly declares that the judicial power 
of the United States ' shall extend to all cases in law and equity arising under 
this Constitution, the laws of the United States, and treaties made, or which 
shall be made, under their authority; to all cases affecting embassadors, 
other public ministers, and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to which the United States shall be a party; 
to controversies between two or more States, between a State and citizens 
of another State, between citizens of different States, between citizens of 
the same State claiming land under grants of different States, and between 
a State, or the citizens thereof, and foreign States, citizens, or subjects.' 

"Here the judicial power of the United States is expressly set forth and 
detined; and the act of September 24, 1789, establishing the judicial courts 
of the United States, in conferring upon the Federal courts jurisdiction over 
cases originating in State tribunals, is careful to CQnfine them to the classes 
enumerated in the above recited clause of the Constitution. This section 
of the bill undoubtedly comprehends case, and authorizes the exercise of 
powers that are not, by the Constitution, within the jurisdiction of the courts 
of the United States. To transfer them to those courts would be an exer- 
cise of authority well calculated to excite distrust and alarm on the part of 



CIVIL BIGHTS BILL. 251 

all the States ; for the bill applies alike to all of them — as well to those that 
have as to those that have not been engaged in rebellion. 

"It may be assumed that this authority is incident to the power granted 
to Congress by the Constitution, as recently amended, to enforce, by appro- 
priate legislation, the article declaring that 'neither slavery nor involuntary 
servitude, except as a punishment for crime whereof the party shall have 
been duly convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction.' It can not, however, be justly claimed that, with 
a view to the enforcement of this article of the Constitution, there is, at 
present, any necessity for the exercise of all the powers which this bill 
confers. 

Slavery has been abolished, and, at present, nowhere exists within the 
jurisdiction of the United States; nor has there been, nor is it likely there 
will be, any attempt to revive it by the people of the States. If, however, 
any such attempt shall be ma#e, it will then become the duty of the Gen- 
eral Government to exercise any and alL incidental powers necessary and 
proper to maintain inviolate this great constitutional law of freedom. 

" The fourth section of the bill provides that officers and agents of the 
Freedmen's Bureau shall be empowered to make arrests, and also that other 
officers may be specially commissioned for that purpose by the President of 
the United States. It also authorizes circuit courts of the United States and 
the superior courts of the Territories to appoint, without limitation, commis- 
sioners, who are to be charged with the performance of quasi judicial duties. 
The fifth section empowers the commissioners so to be selected by the courts 
to appoint, in writing, under their hands, one or more suitable persons, from 
time to time, to execute warrants and other processes described by the bill. 
These numerous official agents are made to constitute a sort of police, in 
addition to the military, and are authorized to summon a posse- comitatus 
and even to call to their aid such portion of the land and naval forces of 
the United States, or of the militia, 'as may be necessary to the perform- 
ance of the duty with which they are charged.' 

"This extraordinary power is to be conferred upon agents irresponsible 
to the Government and to the people, to whose number the discretion of the 
commissioners is the only limit, and in whose hands such authority might 
be made a terrible engine of wrong, oppression, and fraud. The general 
statutes regulating the land and naval forces of the United States, the mi- 
litia, and the execution of the laws, are believed to be adequate for every 
emergency which can occur in time of peace. If it should prove otherwise, 
Congress can, at any time, amend those laws in such manner as, while sub- 
serving the public welfare, not to jeopard the rights, interests, and liberties 
of the people. 

"The seventh section provides that a fee of ten dollars shall be paid to 
each commissioner in every case brought before him, and a fee of five dol- 
lars to his deputy, or deputies, 'for each person he or they may arrest and 
take before any such commissioner,' ' with such other fees as may be deemed 
reasonable by such commissioner,' ' in general for performing such other du- 
ties as may be required in the premises.' All these fees are to be ' paid out 
of the Treasury of the United States,' whether there is a conviction or not; 



252 THE THIRTY-NINTH CONGRESS. 

but in case of conviction, they are to be recoverable from the defendant. 
It seems to me that, under the influence of such temptations, bad men might 
convert any law, however beneficent, into an instrument of persecution and 
fraud. 

" By the eighth section of the bill, the United States courts, which sit only 
in one place for white citizens, must migrate, with the marshal and district 
attorney (and necessarily with the clerk, although he is not mentioned), to 
any part of the district, upon the order of the President, and there hold a 
court ' for the purpose of the more speedy arrest and trial of persons charged 
with a violation of this act;' and there the judge and the officers of the 
court must remain, upon the order of the President, 'for the time therein 
designated.' 

"The ninth section authorizes the President, or such person as he may 
empower for that purpose, to employ such part of the land and naval forces 
of the United States, or of the militia, as shall be necessary to prevent the 
violation and enforce the due execution of this act.' This language seems 
to imply a permanent military force, that is to be always at hand, and 
whose only business is to be the enforcement of this measure over the vast 
region where it is intended to operate. 

"I do not propose to consider the policy of this bill. To me the details 
of the bill seem fraught with evil. The white race and the black race of 
the South have hitherto lived together under the relation of master and slave 
— capital owning labor. Now, suddenly, that relation is changed, and, as to 
the ownership, capital and labor are divorced. They stand, now, each 
master of itself. In this new relation, one being necessary to the other, 
there will be a new adjustment, which both are deeply interested in making 
harmonious. Each has equal power in settling the terms, and, if left to the 
laws that regulate capital and labor, it is confidently believed that they will 
satisfactorily work out the problem. Capital, it is true, has more intelli- 
gence ; but labor is never so ignorant as not to understand its own interests, 
not to know its own value, and not to see that capital must pay that value. 
This bill frustrates this adjustment. It intervenes between capital and 
labor, and attempts to settle questions of political economy through the 
agency of numerous officials, whose interest it will be to foment discord 
between the two races; for, as the breach widens, their employment will 
continue, and when it is closed, their occupation will terminate. 

"In all our history, in all our experience as a people living under Fed- 
eral and State law, no such system as that contemplated by the details of 
this bill has ever before been proposed or adopted. They establish, for the 
security of the colored race, safeguards which go infinitely beyond any that 
the General Government has ever provided for the white race. In fact, the 
distinction of race and color is, by the bill, made to operate in favor of the 
colored and against the white race. They interfere with the municipal leg- 
islation of the States, with the relations existing exclusively between a State 
and its citizens, or between inhabitants of the same State — an absorption 
and assumption of power by the General Government which, if acquiesced 
in, must sap and destroy our federative system of limited powers, and break 
down the barriers which preserve the rights of the States. It is another 



CIVIL BIGHTS BILL. 253 

step, or rather stride, to centralization and the concentration of all legisla- 
tive power in the National Government. The tendency of the bill must be 
to resuscitate the spirit of rebellion, and to arrest the progress of those influ- 
ences which are more closely drawing around the States the bonds of union 
and peace. 

"My lamented predecessor, in his proclamation of the 1st of January, 
1863, ordered and declared that all persons held as slaves within certain 
States and parts of States therein designated, were and thenceforward should 
be free; and, further, that the Executive Government of the United States, 
including the military and naval authorities thereof, would recognize and 
maintain the freedom of such persons. This guarantee has been rendered 
especially obligatory and sacred by the amendment of the Constitution abol- 
ishing slavery throughout the United States. I, therefore, fully recognize 
the obligation to protect and defend that class of our people whenever and 
wherever it shall become necessary, and to the full extent compatible with 
the Constitution of the United States. 

"Entertaining these sentiments, it only remains for me to say that I will 
cheerfully cooperate with Congress in any measure that may be necessary 
for the protection of the civil rights of the freedmen, as well as those of 
all other classes of persons throughout the United States, by judicial pro- 
cess under equal and impartial laws, in conformity with the provisions of 
the Federal (' institution. 

"I now return the bill to the Senate, and regret that, in considering the 
bills and joint resolutions — forty-two in number — which have been thus far 
submitted for my approval, I am compelled to withhold my assent from a 
second measure that has received the sanction of both houses of Congress. 

"ANDREW JOHNSON. 
"Washington, D. C, March. 27, 1866." 

The death and funeral obsequies of Senator Foot prevented 
the Senate from proceeding to the consideration of the Presi- 
dent'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 recon- 
sidered, the question being, " Shall the bill pass, 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 Presi- 
dent'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 
pronounced by the Supreme Court of the United States, de- 
livered by Chief-Justice Marshall, the most eminent jurist who 
ever sat upon an American bench. In the case of Gassies vs. 



254 TEE THIRTY-NINTH CONGRESS. 

Ballon, reported iu 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 pass 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 pass 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 Constitution are to be deprived of their right to legislate? 
If the reason assigned is a good one now, it has been a good one 
all the time for the last five years. If the fact that some States 
have rebelled against the Government is to take from the Gov- 
ernment the right to legislate, then the criminal is to take ad- 
vantage 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. 



\ 



CIVIL RIGHTS BILL. 255 

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 dis- 
crimination 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 in- 
tellectually 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 refer- 
ence 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, return- 
ing, with his objections, what was known as the Homestead Bill. 
On that occasion the Senator to whom I allude said : 

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

"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 im- 
portant a measure as the Homstead Bill.' 

"That was the language of Senator Andrew Johnson, now 



256 THE THIRTY-NINTH CONGRESS. 

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 play- 
ing 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 unconstitutional." 

"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 de- 
pends upon the Constitution of the United States. The Presi- 
dent must be a natural-born citizen, and a Senator or Representa- 
tive 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 enumerafed in this bill, and they belong to them in all 
the States of the Union. The right of American citizenship means 



* 



CIVIL BIGHTS BILL. 257 

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 entitled to the 
protection of that law by the Federal Government, because the 
Federal Government has jurisdiction of such questions. Ameri- 
can 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 strug- 
gled through another war, with all its sacrifices and all its desola- 
tion, 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 affor^ 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 Con- 
stitution. 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, 
17 



258 THE THIRTY-NINTH CONGRESS. 

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 pro- 
vides for counteracting such forbidden legislation by imposing fine 
and imprisonment upon the legislators who may pass such con- 
flicting 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 lan- 
guage 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 entitled, 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 pre- 
vails 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 pre- 
vails? or is it to punish the person who, under color of the 
custom, deprives the party of his right? It is a manifest per- 
version of the meaning of the section to assert 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 cor- 



CIVIL BIGHTS BILL. 259 

ruptly 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 constitute 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 constitute 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 dis- 
regard 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 passed in 
1790, providing for the punishment of certain offenses against 
foreign ministers, and said : " By this provision all officers exe- 
cuting 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 con- 
clusive, 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 



260 THE THIRTY-NINTH CONGRESS. 

reads. If two or more persons conspire together to overthrow 
the Government, or by force to. resist its authority, they are lia- 
ble 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 minister- 
ial 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 
aifords 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 law T s, because 
he is colored, then it becomes necessary to interfere for his pro- 
tection. 

"The assumption 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 in- 
sisted that they had a right to secede; they passed 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 un- 
der color of law; every judge who has held a court in the South- 
ern 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. 



# CIVIL RIGHTS BILL. 261 

" 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 prac- 
ticable? 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 assembled at Montgomery in 1861, and 
resolved that the connection between Alabama and the United 
States was dissolved, and when its members took steps to main- 
tain 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, gov- 
ernors, 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 arsenals 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 ap- 
prehend that the conflicting legislation which the bill seems to 
contemplate is so likely to occur as to render it necessary, at this 
time, to adopt a measure of such doubtful constitutionality." 

" 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 declara- 
tion 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 



262 THE THIRTY-NINTH CONGRESS 

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 emancipated if a law is permitted to be carried into 
eifect? Sir, these orders emanate and this information comes 
from officers acting by presidential authority, and yet the Pres- 
ident 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 ob- 
jections 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 participate, 
justice to the Constitution 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 re- 
frain 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 constitutional rights 
of Congress, of his assumption 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 passage 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 in- 
troduction in the Senate. I am not about to relate private dec- 
larations of the President, but it is right that the American peo- 
ple 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 consti- 
tutional power of the General Government to extend the elective 
franchise to negroes, but he was equally decided in the assertion 



/ 



CIVIL RIGHTS BILL. 263 

of the right of every man to life, liberty, and tire 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 participation 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 differ- 
ent 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 considera- 
tions I have stated, and believing that the passage 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 re- 
construction, I prepared the bill substantially as it is now re- 
turned with the President's objections. After the bill was intro- 
duced and printed, a copy was furnished him, and at a subsequent 
period, when it was reported that he was hesitating about sign- 
ing ^e 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 rem- 
edied, 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 passage. And how could he, consistently 



264 TEE THIRTY-NINTH CONGRESS. 

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 lim- 
ited to the protection of the civil rights belonging to every free- 
man, the birthright of every American citizen, and carefully 
avoided conferring or interfering with political rights or priv- 
ileges 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 passed, then the constitutional 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 Presi- 
dent was inconsistent and changed his opinion with reference 
to a great measure and a great principle, is no reason why a 
Senator or Eepresentative, who has acted understanding^, should 
change his opinion. He said : 

'"I hope the Senate and House of Kepresentatives, who have sanctioned 
this bill by more than a two-thirds majority, will, according to the Consti- 
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, ^ren- 
dered 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 legisla- 
tion ; but that is not the purpose of this bill. " It professes to be 
passed in the exercise of a positive and absolute power to change 



CIVIL RIGHTS BILL. ' 265 

the law — not to declare what the law was in order to remove 
doubts, but to make the law. It assumes, c* otherwise there 
would be no occasion for it, that birth alone does not confer 
citizenship ; and assuming that no citizenship would exist in con- 
sequence of birth alone, it declares that birth alone, in spite of 
State constitution 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 propo- 
sition as clearly erroneous as any proposition can be in relation 
to constitutional law. The States were sovereign before the Con- 
stitution was adopted ; and the Constitution 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 Con- 
gress is concerned, professes to confer upon that department of 
the Government only the particular delegated powers there enum- 
erated ; 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 Constitution was be- 
fore 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 pow- 
ers expressly granted,) by the tenth amendment adopted recently 
after the Constitution went into operation, and recommended by 
the men, many of whom were the framers of the Constitution 
itself, that the powers not delegated by the Constitution, 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 Govern- 
ment itself, as a Government of enumerated powers specially dele- 
gated, as upon the express provision that every thing not granted 
was to be considered as remaining with the States unless the Con- 
stitution 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 Constitution was adopted that power remains now as absolute 
and as conclusive as it was when the Constitution was adopted? 
The bill, therefore, changes the whole theory of the Government. 



266 THE THIRTY-NINTH CONGRESS. 

" The President, then, I think, is right. I go farther 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 constitution and 
law r s 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 juris- 
diction of the States over their criminal code. Congress assumes 
to define a crime, and defining a crime gives to its own courts ex- 
clusive 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 constitutions 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 fash- 
ion of the hour — I do not know that my honorable friend from 
Illinois ffoes 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 Constitution of the United States, it never would have been 
adopted by the people ; and if it is assumed, or if it is considered 
as constitutionally existing by virtue of some powder 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. 

"But you, Mr. President, know very well that consolidation 



CIVIL BIGHTS BILL. 267 

» 
of power in the Government of the United States was looked 
upon as certain ruin to republican institutions. In the first 
place, it would be sure to result in anarchy ; and in the second 
place, in order to be saved from the horrors of anarchy, we should 
be compelled to take refuge in despotic power, and the days of 
constitutional liberty would soon be numbered. The doubt then 
was, and the doubt now should be more firmly settled in the pub- 
lic mind, that a country as extensive as that of the United States 
can not exist except by means of divided sovereignties ; one sov- 
ereignty liaving charge of all external matters, or matters between 
the States to which the powers of the States are inadequate ; the 
other sovereignties having power over all internal matters to the 
management of which they are adequate. Despotism would soon 
be our fate, preceded by anarchy; the military chieftain instead 
of being looked upon, as he should be by every republican, with 
alarm and concern, would be hailed as a savior in order to save 
us from the horrors of disorganization^ 

"The honorable member referred to the act of 1790, but it 
relates entirely to different subjects, and all the statutes to which 
he adverted are statutes of the same description. What is the 
twenty-sixth section of the act of 1790 to which he referred? 
The preceding section provided that no one should sue a foreign 
minister, and the section to which my friend referred particularly, 
said that if a party did sue a foreign minister he should be liable 
to be punished. Certainly ; but why ? Because the Government 
of the United States was vested with the exclusive authority in 
all cases depending upon the law of nations ; and the law of na- 
tions saving from responsibility embassadors accredited to the 
United States, for civil debts, he who attempted to interfere 
offended against the Government, and he offended in relation to 
a subject exclusively committed to the General Government. The 
power, therefore, which Congress exerted in the particular legis- 
lation to which the honorable member reverted is just the power 
which they exert when they provide for the punishment of any 
man who counterfeits the currency of the United States, or forges 
its paper, or forges its bonds, or interferes with the administration 
of the Post-office Department. These are all powers incidental 
to the possession of the express power, and in the case to which 
he adverted the express power was one necessarily belonging to 
the Government, because it was a power belonging to and regu- 



268 THE THIRTY-NINTH CONGRESS. 

i 
lated by the law of nations, and not by any municipal regu- 
lation. 

" The honorable member from Illinois tells us that the Presi- 
dent's objection, that there are eleven States not now represented, 
is entitled to no consideration whatever. The honorable member 
seems to suppose that the President adverted to the fact that there 
were eleven States not represented as showing that Congress pos- 
sessed no constitutional authority to legislate upon the subject, 
supposing that they would have had the authority if those States 
were represented. That is not the view taken by the president; 
it is an entire misapprehension of the doctrine of the President. 
He says no such thing, and he intimates no such thing. But as- 
suming, what in another part of the message he denies, that 'the 
authority might be considered as existing, he submits as a question 
of policy whether it is right to change the whole domestic econ- 
omy of those eleven States, in the absence of any representation 
upon this floor from them. My honorable friend asks whose 
fault it is that they are not represented. Why are they not here? 
He says their hands are reeking with the blood of loyal men; 
that they are unable to take the oath which a statute that he as- 
sumes to be constitutional has provided ; and he would have the 
country and the Senate to believe that that is the reason why they 
are not here. Is that the fact, Mr. President ? These States are 
organized, and how organized? What have they done? They 
have abolished slavery by an astonishing unanimity; they have 
abolished nearly all the distinctions which antecedently existed 
between the two races. They have permitted the negroes to sue. 
they have permitted them to testify ; they have not yet permitted 
them to vote. 

" Why are they not received? Because, in the judgment of the 
Senate, before the States can be considered as restored, Congress- 
ional legislation on the subject is necessary. Whose fault is it 
that there has not been Congressional legislation ? Is it the fault 
of the eleven States ? Certainly not ,- it is our own fault. And 
why is it that we are in point of fact delaying their admission, 
whether it is to be considered as a fault or not? Because we 
want to inquire into the condition of these States. Why, in the 
name of Heaven ! how long have we been here ? We came here 
early in December, and this is the month of April ; and here we 
may remain until July, or, as rumor has it, until next December ; 



CIVIL RIGHTS BILL. 269 

and shall we be satisfied within that time that Congressional leg- 
islation may be safely adopted ? 

"J have a word or two more to say. My honorable friend 
from Illinois, as it seemed to me— his nature is impulsive, and 
perhaps he was carried further than he intended— seemed to in- 
timate that the President of the United States' had not acted 
sincerely in this matter; that his usurpation was a clear one, 
and that he was to be censured for that usurpation. What has 
he done? He has vetoed this bill. He had a constitutional right 
to do so. Not only that ; if he believed that the effect of the bill 
would be that which he states in his Veto Message, he was not only 
authorized but bound to veto it. His oath is to 'preserve' as 
well as to ' protect and defend' the Constitution of the United 
States; and believing, as he does, and in that opinion I concur, 
that this bill assails the Constitution of the United States, he 
would have been false to his plighted faith if he had not returned 
it with his objections. 

"He desires— and who does not?— that the Union shall be re- 
stored as it originally existed. He has a policy which he thinks 
is best calculated to effect it. He may be mistaken, but he is 
honest. Congress may differ with him. I hope they will agree 
sooner or later, because I believe, as I believe in my existence, 
that the condition in which the country now is can not remain 
without producing troubles that may shake our reputation, not 
only in our own eyes, but in the eyes of the civilized world. Let 
the day come when we shall be again together, and then, forget- 
ting the past, hailing the present, and looking forward to the 
future, we shall remember, if we remember the past at all, for 
the exhibition of valor and gallantry displayed on both sides, 
and find in it, when we become one, a guarantee that in the fu- 
ture no foreign hostilities are to be dreaded, and that no civil 
discord need be apprehended." 

Mr. Trumbull said : "The opinion of Judge Curtis, from which 
the Senator read, was the opinion of a dissenting judge, entitled 
to very great credit on account of the learning and ability of that 
judge, but it was not the opinion of the court, and an examina- 
tion of the entire opinion, which is very lengthy, would perhaps 
not sustain the precise principles the Senator from Maryland laid 
down. But, sir, I have another authority which I think of equal 
weight with that of Judge Curtis— not pronounced in a judicial 



270 TEE THIRTY-NINTH CONGRESS. 

tribunal it is true, but by one of the most eminent members of 
the bar in this nation; I may say by a gentleman who stands 
at the head of the bar in America at this time — an opinion pro- 
nounced, too, in the exercise of official duties; and I propose to 
read a few sentences from that opinion, for it is to be found re- 
ported in the Congressional Globe containing the proceedings of 
this body less than ninety days ago. This is the language: 

" 'While they [negroes] were slaves, it was a very different question; but 
now, when slavery is terminated, and by terminating it you have got rid of 
the only obstacle in the way of citizenship, two questions arise: first, 
Whether that fact itself does not make them citizens? Before they were 
not citizens, because of slavery, and only because of slavery. Slavery abol- 
ished, why are they not just as much citizens as they would have been had 
slavery never existed? My opinion is that they become citizens, and I hold 
that opinion so strongly that I should consider it unnecessary to legislate 
on the subject at all, as far as that class is concerned, but for the ruling of 
the Supreme Court, to which I have adverted.' 

" Sir, that opinion was held by the honorable Senator from Ma- 
ryland who made this speech to-day. He holds the opinion so 
strongly now that slavery is abolished, which was the only obsta- 
cle in the way of their being citizens, that he would want no legisla- 
tion on the subject but for the Dred Scott decision ! What further 
did the Senator from Maryland say less than ninety days ago ? It is 
possible, doubtless — it is not only possible but it is certainly true — 
that the Senator from Maryland, by reading the conclusive argu- 
ments of the Veto Message in regard to Chinese and Gypsies, has 
discovered that he was in error ninety days ago. I by no means 
mean to impute any wrong motive to the Senator from Maryland, 
but simply to ask that he will pardon me if I have not been able 
to see the conclusive reasoning of the Veto Message." 

After quoting still further from Mr. Johnson's speech, made on 
a previous occasion, Mr. Trumbull said: "But as I am up, I will 
refer to one other point to which the Senator alluded, and that is 
in regard to the quotation which I made yesterday from the stat- 
ute of 1790. I quoted that statute for the purpose of showing 
that the provisions in the bill under consideration, which it was 
insisted allowed the punishment of ministerial officers and judges 
who should act in obedience to State laws and under color of State 
laws, were not anomalous. I read a statute of 1790 to show that 
the Congress of the United States, at that day, provided for pun- 



CIVIL BIGHTS BILL. 271 

ishing both judges and officers who acted under color of State law 
in defiance of a law of the United States. How does the Senator 
answer that? He says that was on a different subject; the law 
of 1790 provided for punishing judges and officers who did an 
act in violation of the international law, jurisdiction over which is 
conferred upon the nation. Let me ask the Senator from Mary- 
land, if the bill under discussion does not provide for the punish- 
ment of persons who violate a right secured by the Constitution 
of the United States ? Is a right which a citizen holds by virtue 
of the Constitution of his country less sacred than a right which 
he holds by virtue of international law ? " 

Mr. Johnson replied as follows: "It is singular, in my esti- 
mation, how a gentleman with a mind as clear as Mr. Trum- 
bull's, with a perspicacity that is a little surprising, could have 
fallen into the error of supposing that there is any inconsistency 
between the doctrine contained in the speech to which he has ad- 
verted and the one which I have mantained to-day. What I 
said then I say now, that as far as the United States are con- 
cerned, all persons born within the limits of the United States are 
to be considered as citizens, and that without reference to the color 
or the race ; and after the abolition of slavery the negro would 
stand precisely in the condition of the white man. But the hon- 
orable member can* hardly fail, I think — certainly he can not 
when I call his attention to it — to perceive that that has noth- 
ing to do with the question now before the Senate. His bill 
makes them citizens of the United States because of birth, and 
gives them certain rights within the States." 

Mr. Fessenclen asked: "Were not your remarks made on this 
very question in this bill?" 

" No," replied Mr. Johnson ; " on another bill." He continued : 
" What I maintain is this — and I have never doubted it, because 
I entertained the same opinion when I made those remarks that 
I entertain now — that citizenship of the United States, in conse- 
quence of birth, does not make a party a citizen of the State in 
which he is born unless the Constitution and laws of the State 
recognize him as a citizen. Now, what does this bill propose? 
All born within the United States are to be considered citizens 
of the United States, and as such shall have in every State all 
the rights that belong to any body else in the State as far as the 
particular subjects stated in the bul are concerned. Now, I did 



272 THE THIRTY-NINTH CONGRESS. 

suppose, and I shall continue to suppose, it to be clear, unless I 
am met with the almost paramount authority of the Chairman of 
the Judiciary Committee, that citizenship, by way of birth, con- 
ferred on the party as far as he and the United States were con- 
cerned, is not a citizenship which entitles him to the privilege of 
citizenship within the State where he is born; if it be true, and 
I submit that it is true beyond all doubt, that over the question 
of State citizenship the authority of the State Government is 
supreme. 

" Now, the honorable member is counfounding the status of a 
citizen of the United States and the status of a citizen of the 
United States who as such is a citizen of the State of his resi- 
dence. Maintaining, as I do, that there is no authority to make 
any body a citizen of the United States so as to convert him 
thereby into a citizen of a State, there is no authority in the 
Constitution for this particular bill, which says that because he 
is a citizen of the United States he is to be considered a citizen 
of any State in which he may be at any time with reference to 
the rights conferred by this bill. 

Mr. Trumbull replied : " I desire simply to remark that the 
speech from which I quoted, made by the Senator from Maryland, 
was made upon this very bill. It was in reference to this bill 
that he was speaking when he laid down Hie proposition that 
every person born in the United States since the abolition of 
slavery was a citizen of the United States, and if there was any 
doubt about it, it was proper for us to declare them so, and not 
only proper, but our duty to do so ; and to make the matter 
specific, the honorable Senator voted for this proposition, which 
I will now read, on the yeas and nays : 

" 'All persons born in the United States, and not subject to any foreign 
Power, excluding Indians not taxed, are hereby declared to be citizens of 
the United States, without distinction of color.' 

" Upon the adoption of that proposition as an amendment, it 
not being in the bill as originally introduced, the Senator from 
Maryland, with thirty others, voted in the affirmative. So we 
have his high authority for saying that all persons born in the 
United States, and not subject to any foreign Power, are citizens 
of the United > States, exactly as it appears in this bill." 

" Mr. Yates, of Illinois, remarked : " I remember very well 



CIVIL RIGHTS BILL. 273 

that the Senator from Maryland offered an amendment to the 
Freedmen's Bureau Bill to this effect : to strike out the words 
1 without distinction of color.' The Freedmen's Bureau Bill ap- 
plied legislation by Congress to the freedmen in the States and 
to the condition of the freedmen in the States. It was legislation 
that affected the freedmen in the rebellious States. If I remem- 
ber aright the Senator from Maryland moved to strike out the 
words ' without distinction of color ' in one section of that bill, 
and for that motion he gave this reason : because, under the Con- 
stitution of the United States, as amended, abolishing slavery in 
all the States and Territories of the United States, the freedmen 
occupied precisely the same position with any other citizen of the 
United States in any State or Territory. I understood him as 
taking the broad position, which I have maintained, and which 
Republican Senators have maintained, and which I think the 
country maintains, that under the Constitution, as amended, the 
freedman occupies precisely the same position as any man born in 
any State or Territory of the United States; and that was the 
object, if I understood the Senator from Maryland, of his moving 
to amend the Freedmen's Bureau Bill by striking out the words 
i without distinction of color.' . 

"I recognize the authority of the decisions quoted by the 
Senator from Maryland before the adoption of the amendment to 
the Constitution. The States had the power over the question 
of slavery in the States before the amendment to the Constitu- 
tion; but by the amendment to the Constitution, in which the 
States have concurred, the freedman becomes a free man, entitled 
to the same rights and privileges as any other citizen of the 
United States." 

Mr. Cowan, of Pennsylvania, spoke in favor of the veto, pre- 
mising that his words, " if they are not to convince any body in 
the Senate, may go to the country and be reflected on there." 
Mr. Cowan said he was quite willing that all the people of this 
country should enjoy the rights conferred upon them by this bill. 
But, supposing the bill had all the merit in the world, it would 
not be effective to attain the ends hoped for by its friends ; and 
apart from that, its provisions were exceedingly dangerous. It 
gave married women and minors the right to make and enforce 
contracts. The grammatical structure of a portion of the bill 
was such as to enable a corrupt, passionate, or prejudiced judge 
18 



274 THE THIRTY-NINTH CONGRESS. 

to take advantage of it in order to widen the jurisdiction of the 
United States courts, and drag into them all the business which 
had heretofore occupied the State courts. This would be enough 
in this nineteenth century to make a man tremble for the fate of 
constitutional government. " If," said Mr. Cowan, " we had un- 
doubted authority to pass this bill, under the circumstances I 
would not vote for it, on account of its objectionable phraseology, 
its dubious language, and the mischief which might attend upon 
a large and liberal construction of it in the District and Circuit 
Courts of the United States." The trouble and expense of ob- 
taining justice in the United States courts, but one, or at most 
two existing in any of the Southern States, would debar the 
African from applying to them for redress. "Your remedy," 
said the Senator, " is delusive ; your remedy is no remedy at all ; 
and to hold it up to the world as a remedy is a gross fraud, how- 
ever pious it may be. It is no remedy to the poor debtor that 
you prosecute his judge, and threaten him with fine and im- 
prisonment. It is no remedy to the poor man with a small claim 
that you locate a court one or two hundred miles away from him 
which is so expensive in its administration of justice that he can 
not enter there. 

" There is another provision of the bill, which, notwithstand- 
ing the act of Congress relied upon by the honorable Senator 
from Illinois, I think is unquestionably anomalous, and to me 
not only anomalous, but atrocious; and that is, the substitution 
of an indictment for the writ of error. "What has been the law 
of these United States heretofore? When an act of Congress 
came in contact with a State law, and the judge of a State court 
decided that the law of Congress was unconstitutional, there was 
an appeal given to the defeated party to the Supreme Court of 
the United States in order to determine the constitutionality of 
the law. But, sir, who, until the last few months, ever heard of 
making the judge a criminal because he decided against the con- 
stitutionality of a law of the United States ? One would think 
we were being transported back to the dark ages of the world 
when a man is to be accused and perhaps convicted of a crime 
who has done nothing more than honestly and conscientiously 
discharged his duty. I know that the persons of embassadors are 
sacred, and I know that it is a very high offense against the law 
of nations, which no civil judge of any court could justify, to in- 




8!) jm. 







W M M STEWART 



CIVIL RIGHTS BILL. 275 

vade this sacred right of the embassador, but every body knows 
that that is an exceptional case. Every body knows that in 
all times and at all ages the judge was punishable who did 
not respect the person of an embassador. But that is not this 
case. That analogy will not help the third section of this bill. 
It is openly avowed upon the floor of the Senate of the United 
States, in the year of our Lord 1866, in the full blaze and light 
of the nineteenth century, that the indictment is to be a substi- 
tute for the writ of error, and it is justified because a judge ought 
to be indicted who violates the sacred person of an embassador ! 
What potency there must be in the recent amendment of the Con- 
stitution which has foisted the negEO and set him upon the same 
platform as the envoy extraordinary and minister plenipotentiary 
of Great Britain or of all the Russias to the United States of 
America, and made him as sacred as an embassador, and the judge 
who decides against him is to be punished as a criminal ! " 

Mr. Stewart showed that States might easily avoid all the an- 
noying operations of this bill which were feared by its opponents : 
'• When I reflect how very easy it is for the States to avoid the 
operation of this bill, how very little they have to do to avoid the 
operation of the bill entirely, I think that it is robbed of its co- 
ercive features, and I think no one has any reason to complain 
because Congress has exercised a power, which it must be con- 
ceded it has, when it has exercised it in a manner which leaves 
it so easy for the States to avoid the operation of this bill. If 
passed to-day, it has no operation in the State of Georgia; it is 
impossible to commit a crime under this bill in the State of 
Georgia; and the other States can place themselves in the same 
position so easily that I do not believe they ought to complain." 

He then read the second section of an act passed in Georgia, 
precisely similar to the first section of the Civil Rights Bill. 
Nothing could be done in Georgia under "color of law," which 
would subject* officers to the penalties provided by the Civil 
Rights Bill. " It being so easily avoided by being complied with, 
by doing a simple act of justice, by carrying out the spirit of the 
constitutional amendment, I can not give my consent to defeat 
a bill the purpose of which is good, the operation of which is so 
innocent, and may be so easily avoided." 

The Republican Senators were desirous of bringing the bill to 
a final vote on this evening, but on account of the illness of 



276 THE THIRTY-NINTH CONGRESS. 

Senator Wright, of New Jersey, it was proposed by Democratic 
members to appoint some hour on the following day when the 
vote should be taken in order that they might have a full vote. 

Mr. Wade, of Ohio, said : " If this was a question in the ordi- 
nary course of legislation, I certainly would not object to the 
jiroposition which the gentlemen on the other side make ; but I 
view it as one of the greatest and most fundamental questions 
that has ever come before this body for settlement, and I look 
upon it as having bearings altogether beyond the question on this 
bill. The bill is, undoubtedly, a very good one. There is no 
constitutional objection to it; there has been no objection to it 
raised that creates a doubt in the mind of any mortal man ; but, 
nevertheless, we are at issue with the President of the United States 
upon a question peculiarly our own. The President of the United 
States has no more power under the Constitution to interpose his 
authority here, to prescribe the principle upon which these States 
should be admitted to this Union, than any man of this body has 
out of it. The Constitution makes him the executive of the laws 
that we make, and there it leaves him ; and what is our condition ? 
We who are to judge of the forms of government under which 
States shall exist; we, who are the only power that is charged 
with this great question, are to be somehow or other wheedled 
out of it by the President by reason of the authority that he 
sets up. 

" Sir, we can not abandon it unless we yield to a principle that 
will unhinge and unsettle the balances of the Constitution itself. 
If the President of the United States can interjwse his authority 
upon a question of this character, and can compel Congress to 
succumb to his dictation, he is an emperor, a despot, and not a 
President of the United States. Because I believe the great 
question of congressional power and authority is at stake here, 
I yield to no importunities of the other side. I feel myself justi- 
fied in taking every advantage which the Almighty has put into 
my hands to defend the power and authority of this body, of 
which I claim to be a part. I will not yield to these appeals of 
comity on a question like this ; but I will tell the President and 
every body else that, if God Almighty has striken one member 
so that he can not be here to uphold the dictation of a despot, I 
thank him for his interposition, and I will take advantage of it 
if I can." 



CIVIL BIGHTS BILL. 277 

Mr. McDougall, of California, replied to Mr. Wade. This 
wayward Senator from California has wide notoriety from his 
unhappy habits of intemperance. He has been described by a 
writer unfriendly to his politics as " the most brilliant man in the 
Senate ; a man so wonderfully rich, that though he seeks to beggar 
himself in talents and opportunities, he has left a patrimony large 
enough to outdazzle most of his colleagues." He frequently would 
enter the Senate-chamber in a condition of apparent stupor, un- 
able to walk straight ; and after listening a few moments to what 
was going on, has arisen and spoken upon the pending question 
in words of great beauty and force. 

On this occasion Mr. McDougall is described as having been 
in a worse condition than usual. His words were muttered 
rather than spoken, so that only those immediately about him 
could hear; and yet his remarks were termed by one of his au- 
ditors as " one of the neatest little speeches ever heard in the 
Senate." His remarks were as follows : " The Senator from Ohio 
is in the habit of appealing to his God in vindication of his judg- 
ment and conduct; it is a common thing for him to do so; but 
in view of the present demonstration, it may well be asked who 
and what is his God. In the old Persian mythology there was 
an Ormudz and an Ahriman— a god of light and beauty, and a 
god of darkness and death. The god of light sent the sun to 
shine, and gentle showers to fructify the fields; the god of dark- 
ness sent the tornado, and the tempest, and the thunder, scathing 
with pestilence the nations. And in old Chaldean times men 
came to worship Ahriman, the god of darkness, the god of pesti- 
lence and famine ; and his priests became multitudinous ; they 
swarmed the land; and when men prayed then their offerings 
were, 'We will not sow a field of grain, we will not dig a well, 
we will not plant a tree.' These were the offerings to the dark 
spirit of evil, until a prophet came who redeemed that ancient 
land; but he did it after crucifixion, like our great Master. 

" The followers of Ahriman always appealed to the same spirit 
manifested by the Senator from Ohio. Death is to be one of his 
angels now to redeem the Constitution and the laws, and to estab- 
lish liberty. Sickness, suffering, evil, are to be his angels ; and he 
thanks the Almighty, his Almighty, that sickness, danger, and 
evil are about ! It may be a good god for him in this world ; but 
if there is any truth in what we learn about the orders of religion 



278 THE THIRTY-NINTH CONGRESS. 

in this Christian world, his faith will not help him when he shall 
ascend up and ask entrance at the crystal doors. If there can be 
evil expressed in high places that communicates evil thoughts, that 
communicates evil teachings, that demoralizes the youth, who re- 
ceive impressions as does the wax, it is by such lessons as the 
Senator from Ohio now teaches by word of mouth as Senator in 
this Senate hall. 

" Sir, the President of the United States is a constitutional offi- 
cer, clothed with high power, and clothed with the very power 
which he has exercised in this instance ; and those who conferred 
upon him these powers were men such as Madison, and Jay, and 
Hamilton, and Morris, and Washington, and a host of worthies ; 
men who, I think, knew as much about the laws of government, 
and how they should be rightly balanced, as any of the wisest who 
now sit here in council. It is the duty of the President of the 
United States to stand as defender of the Constitution in his place 
as the conservator of the rights of the people, as tribune of the 
people, as it was in old Rome when the people did choose their 
tribunes to go into the senate-chamber among the aristocracy of 
Rome, and when they passed laws injurious to the Roman people, 
to stand and say, ' I forbid it.' 

" That is the veto power, incorporated wisely by our fathers in 
the Constitution, conferred upon the President of the United 
States, and to be treated with consideration ; and no appeal of the 
Senator to his God can change the Constitution or the rights of 
the President of the United States, or can prevent a just consid- 
eration of the dignity of this Senate body by persons who have 
just consideration, who feel that they are Senators. 

" It is a strange thing, an exceedingly strange thing, that when 
a few Senators in the city of Washington, ill at their houses, give 
assurance that they can be here to act upon a great public question 
on the day following this, we should hear a piece of declamation, 
the Senator appealing to his God, and saying, with an Io triumphe 
air, ' Well or ill, God has made them ill.' Sir, the god of deso- 
lation, the god of darkness, the god of evil is his god. I never 
expected to hear such objections raised among honorable men; 
and men to be Senators should be honorable men. I never ex- 
pected to hear such things in this hall ; and I rose simply to say 
that such sentiments were to be condemned, and must receive my 



CIVIL BIGHTS BILL. 279 

condemnation, now and here ; and if it amounts to a rebuke, I 
trust it may be a rebuke." 

The Senate adjourned, with the understanding that the vote 
should be taken on the following day. In the morning hour on 
that day, as the States were called for the purpose of giving Sen- 
ators an opportunity of introducing petitions or resolutions, Mr. 
Lane, of Kansas, presented a joint resolution providing for ad- 
mitting Senators and Representatives from the States lately in 
insurrection. This bill, emanating from a Republican Senator, 
who professed to have framed it as an embodiment of the Presi- 
dent's policy, was evidently designed to have an influence upon 
the action of the Senate upon the Civil Rights Bill. It proposed 
that Senators and Representatives from the late rebellious States 
should be admitted into Congress whenever it should appear that 
they had annulled their ordinances of secession, ratified the con- 
stitutional amendment abolishing slavery, repudiated all rebel 
debts, recognized the debts of the United States, and extended 
the elective franchise to all male persons of color residing in the 
State, over twenty-one years of age, who can read and write, and 
who own real estate valued at not less than two hundred and 
fifty dollars. 

As a reason for introducing this measure, Mr. Lane, of Kansas, 
remarked : " I have been laboring for months to harmonize the 
President of the United States with the majority on the floor of 
Congress. I thought yesterday that there was a hope of securing 
such a result. It did seem that some of the members of this body 
were disposed to harmonize with the President. I proposed to 
go very far yesterday to secure that harmony. But while pur- 
suing this course, we were awakened by one of the most vindic- 
tive assaults ever made upon any official, by either friend or oppo- 
nent, from the Senator from Ohio [Mr. Wade]— an assault upon 
my personal friend, a man who for two years sat side by side with 
me here, whom I learned to respect and admire for his pluck, his 
ability, and integrity, and to love for his manly virtues ; a man 
whom I originally selected as the candidate of the Republican 
party for the second office within the gift of that party ; a man 
whom I urged en the Republican convention at Baltimore as their 
candidate ; a man whose election I did my utmost to secure against 
the efforts of the Senator from Ohio. In the most critical moment 
of that political campaign, an assault was made on our presi- 



A 



280 THE THIRTY-NINTH CONGRESS. 

dential candidate in the same spirit evinced by him yesterday in 
his attack upon the President. I defended the candidate of the 
Republican party against that assault, and I defend the President 
of the Republican party against the assault of yesterday. 

" ' A despot V 'A. dictator ! ' In what ? In seeking to re- 
construct the rebellious States in violation of the wishes of the 
Congress of the United States? When Mr. Johnson took his 
seat in the presidential chair, I ask you, sir, what had Congress 
done ? The people of the United States had done this : Mr. Lin- 
coln had marked out the policy of reconstruction, since adopted 
by Mr. Johnson, and the people of the United States, the party 
to which the Senator from Ohio and myself belong, indorsed by 
triumphant majorities that very reconstruction policy. A despot 
for proposing, in violation of the wishes of the Congress of the 
United States, to reconstruct the insurrectionary States upon the 
theory expressed in that joint resolution annulling the ordinances 
of secession, ratifying the amendment to the Constitution abolish- 
ing slavery, repudiating the Confederate debt, indorsing the na- 
tional debt, and extending suffrage to all colored men who can 
read the Constitution of the United States and sign their names, 
and to all colored men owning and paying taxes upon §250 worth 
of property ! 

" Mr. President, I am not as conversant with the constituency 
of the Senator from Ohio as he is, but I venture the assertion 
that outside of New England there is not a single Northern State 
in this Union but will by a majority vote to indorse the policy 
of reconstruction advised by President Johnson and expressed in 
that joint resolution. You can not carry before the people of this 
country suffrage to the unqualified black man. You can not find 
a State in this Union outside of New England, in my judgment, 
that will indorse that policy. Restrict it to a qualification clause, 
as the President of the United States recommends, and you can 
carry the Republican Union party every-where, and with una- 
nimity. 

" The President of the United States ' a despot ' for exercising 
a constitutional right in vetoing a bill passed by Congress ! Mr. 
President, had the Senator from Ohio occupied the position which 
is occupied by President Johnson, in my judgment, he would have 
vetoed the Civil Rights Bill. ' A despot ! ' "What is the exercise 
of the veto power? It amounts merely to a vote to reconsider, 



CIVIL BIGHTS BILL. 281 

with the lights given in his reasons for the veto. When before 
has the exercise of a constitutional right justified a political friend 
of the President of the United States in denouncing that Presi- 
dent as a despot and a dictator ? He has been and is now, in my 
judgment, as anxious to harmonize the difficulties in the Union 
party as any Senator upon this floor. If he was met in the same 
spirit, that party would be reunited and this Union would be re- 
stored. His advances are met by insult; his advances are met by 
denunciation from the leader of the Republican party upon this 
floor in language without a parallel. Mrfrresident, so far as I 
am concerned, I propose to-day and hereafter to take my position 
alongside the Bresident of the Republican party, and stand there 
unflinchingly so long as he remains faithful to the principles of 
that parry, defending him against the Senator from Ohio as I de- 
fended his predecessor against the same Senator." 

Mr. Lane then expressed his desire that his proposition should 
lie upon the table and be printed. An order having been entered 
to that effect, Mr. Wade addressed the Senate. He remarked: 
"It is said I made an attack on the President of the United 
States. As a Senator upon this floor, I care no more about the 
opinions of the President of the United States than I do about 
those of any respectable Senator upon this floor, or any Senator 
on this floor. Who is your President, that every man must bow 
to his opinion? Why, sir, we all know him; he is no stranger 
to this body. We have measured him ; we know his height, his 
depth, his length, his breadth, his capacity, and all about him. 
Do you set him up as a paragon and declare here on the floor 
of this Senate that you are going to make us all bow down before 
him? Is that the idea? You [to Mr. Lane, of Kansas,] are 
going to be his apologist and defender in whatever he may propose 
to do! Is that the understanding of the Senator from Kansas? 
" I do not believe that his constituents will be quite satisfied 
with so broad a declaration, that he is to wear any man's collar, 
and follow him wherever he may go. Did I use harsh language 
toward the Presfdent yesterday? All that I said I stand by to- 
day and forever. What was the question upon which I made 
those observations, and what has been the opinion of the President 
heretofore? what has been his action since ? Here are three mill- 
ion people, our friends, friends to the Government, who generously 
came forward in its difficulty, and helped us throughout the war, 



282 THE THIRTY-NINTH CONGRESS. 

sacrificed their blood and their lives to maintain the issue on our 
side, and who were faithful beyond all men that were ever faith- 
ful before, to us during, the whole of the difficulty, every-where 
assisting our brave soldiers in the field, laying down their lives 
to maintain our principles, and ministering in every way to the 
misfortunes of our brave men whenever they fell into the hands 
of those worse than savages with whom we were warring; and 
now these men are laboring, are under one of the most frightful 
despotisms that ever^ettled down upon the heads of mankind. 
Three million people^re exposed to the outrages, the insolence, 
the murder of those worse than savages, their former masters, 
murdered as we hear every day, oppressed evoty-where, their 
rights taken away, their manhood trampled under foot ; and Con- 
gress, under the Constitution of the United States, endeavors to 
extend to them some little protection, and how are we met here? 
Every attempt of your Moses has been to trample them down 
worse, and to throw every obstruction in the way of any relief 
that could be proposed by Congress. He has from all ajjpear- 
ances become their inveterate and relentless foe, making violent 
war upon any member of Congress who dares raise his voice or 
give his vote in favor of any measure having for its object the 
amelioration of the condition of these poor people. Talk to me 
about the President being their friend ! When did it ever hap- 
pen before that a great measure of relief to suffering humanity on 
as broad a scale as this was met by the stern veto of the President 
of the United States, and without being able when he undertakes 
to make his obstruction to our measures to designate a single 
clause of the Constitution that he pretends has been violated. 

"Yesterday what was the issue? I was charged with great 
cruelty on this floor, because I was unwilling to wait for recruits 
to be brought in here for the purpose of overthrowing the ground 
we had taken upon this important question whether these poor 
people shall have relief or not. Now, I wish to say that I am 
willing to extend courtesy to our old associates on this floor un- 
der other circumstances ; but when you extend fliis kind of cour- 
tesy to them, the result is death and destruction to three million 
people, trampled under the feet of their former masters. My 
courtesy is extended to those poor men, and I would not wait a 
moment that their enemies may be brought in here in order to 
prevent our doing any thing for their relief, joining with the 



CIVIL BIGHTS BILL. 283 

President, who is determined, if we may judge by his acts, that 
no measure having for its object any relief shall be extended to 
them. 

"Did you hear the fact stated here the other day, that bills 
were drawn with a view to escape the anathemas of your Presi- 
dent, and were exhibited to him, and he asked 'if he had any 
objection to them to look them over well, because if we can, con- 
sistent with the object aimed at, make them clear of any objection 
you may have, we will do it ? ' 

" I said, sir, that he seemed to have meditated a controversy 
with Congress from the beginning, and he has. He has treated 
our majorities as hostile to the people; two thirds of both branches 
of Congress have been treated by him as mere factionists, dis- 
unionists, enemies to the country, bent upon its destruction, bar- 
gaining with the enemy to destroy the Government. This is the 
way the President has tr«ated Congress, and every bill they have 
passed, which promised any relief to the men whom we are bound 
to protect, has been trampled under the Executive heel ; and even 
when members of this body did what I say they ought not to 
have done — for I do not approve of my brother Trumbull's go- 
ing up to the President, when he has a measure pending here as 
a Senator, to ask the President, in the first place, whether he will 
approve of it or not ; even when he was asked if he objected to 
this measure, and made no objection, he still undertakes to veto it. 

" If Congress should recede from the position they have taken 
to claim jurisdiction over this great question of readmitting these 
States, from that hour they surrender all the power that the Con- 
stitution places in their hands and that they were sworn to sup- 
port, and they are the mere slaves of an accidental Executive ; of 
a man who formerly associated with us upon this floor ; who was 
no more infallible than the rest of us poor mortals ; and yet the 
moment, by death or accident, he is placed in the executive chair, 
it would seem as if some Senators believed him to be endowed 
with superhuman wisdcmi, and ought to be invested with all the 
powers of this Government ; that Congress ought to get on their 
knees before him, and take his insults and his dictation without 
resentment and without even an attempt to resist. Some States 
may send such instrumentalities here, but God knows some will 
not ; and I pity those that do, for they would hold their freedom 
on a very uncertain! tenure. 



284 THE THIRTY-NINTH CONGRESS. 

" Some gentlemen may be patient under the charge of treason, 
perhaps the more so because treason is becoming popular in this 
day ; but, sir, I am a little too old-fashioned to be charged by the 
executive branch of this Government as a traitor on the floor of 
Congress, and not resent it. I do not care whether he be King 
or President that insinuates that I am a disunionist or traitor, 
standing upon the same infamous platform with the traitors of 
the South ; I will not take it from any mortal man, high or low, 
without repelling the charge. If any man here is tame enough 
to do it, he is too tame to be the Senator of a proud-spirited 
people, conscious of their own freedom. I claim to be their re- 
presentative, and they will censure me if they do not like my 
doctrine. 

"And now, Mr. President, I wish to make an appeal to those 
great, patriotic statesmen on this floor, who, by their love of prin- 
ciple, by their unswerving honesty, u«cduced by the blandish- 
ments of executive power, unawed by threats of violence, stand 
here to defend the rights of the people upon this floor, and will 
stand here forever. I say to you Senators, we, the majority who 
are stigmatized as traitors, are the only barrier to-day between 
this nation and anarchy and despotism. If we give way, the 
hope of this nation is lost by the recreancy — yea, sir, I will say 
the treachery — of a man who betrayed our confidence, got into 
power, and has gone into the camp of the enemy, and joined 
those who never breathed a breath of principle in common with 
us." 

Mr. Lane replied : " I stated that the party to which I belong 
nominated the present President of the United States and elected 
him, and that as long as he fought within our lines and remained 
in our party, I would endeavor to defend him upon this floor 
against all unjust assaults. After making that statement, the 
Senator from Ohio, forgetting the position he occupies, has sug- 
gested that I have taken upon myself the collar of the President 
of the United States. I hurl the suggestion in the teeth of the 
Senator from Ohio as unworthy a Senator. I wear a collar ! The 
pro-slavery party of the United States, backed by a Democratic 
Administration, sustained and supported by the army of the 
United States, could not fasten a collar upon the handful of 
Kansas squatters of whom I had the honor to be the leader. 
The gallant fight made in this Senate-chamber by the Senator 



CIVIL RIGHTS BILL. 285 

from Ohio, aided by the Senators from Massachusetts and other 
Senators, would have been of but little avail had it not been 
for that other fight that was made upon the prairies of Kansas 
under the lead of your humble speaker. I wear a collar ! In- 
dicted for treason by a pro-slavery grand-jury, hunted from State 
to State by a writ founded upon that indictment for treason, and 
§100,000 offered for my head ! Jim Lane wear a collar! Wher- 
ever he is known, that charge will be denounced as false by both 
friends and enemies." 

Mr. Brown, of Missouri, made a short speech, in which he set 
forth the position of Mr. Lane, of Kansas, on questions previ- 
ously before the Senate, showing their inconsistency with some 
of his recent remarks. 

Mr. Doolittle next delivered a speech, in the course of which 
he called attention to a bill which he had drawn " to provide ap- 
propriate legislation to enforce article thirteen of the Amendments 
to the Constitution, abolishing slavery in the United States." 
His object in presenting this bill was to "avoid the objections 
raised by men not only in this body, but in the other house, and 
the objections raised by the President of the United States, to 
tlir Will now pending. 

He endeavored to explain his position and changes of opinion 
upon the Civil Eights : " While this measure was upon its pass- 
age, I took no part in its discussion except upon a single point 
in relation to the Indian tribes. The bill passed, and the final 
vote was taken when I was not present in the Senate ; but it was 
not under such circumstances that, had I been* here, I should not 
have voted for the bill. I have no doubt that if I had been 
present I should have voted for it. My attention was not drawn 
very earnestly to the consideration of all the provisions of this bill 
until the bill had passed from Senate and had gone to the House 
of Representatives, when the speeches of Mr. Bingham, of Ohio, 
and of Mr. Delano, of Ohio, both able and distinguished lawyers 
of that State, arrested my attention and called me very carefully 
to the consideration of the great questions which are involved in 
the bill. The bill was passed by the House of Representatives; 
it went to the President. From the fact that it was not signed 
and returned to this body at once, and from all I heard, I be- 
came satisfied that, at least, if the bill was not to be returned 

19 



286 TEE TEIRTT-jYIjYTE CONGRESS. 

with objections, it was being withheld for most earnest and seri- 
ous consideration by the Executive. 

" Then, Mr. President, it was, in view of all that had occurred, 
what had been said by gentlemen in whom I had the utmost — I 
may say unbounded — confidence, that I began to look into this 
measure and to study it for myself. It is not my purpose now 
to go into a discussion of the provisions of this bill any further 
than to say that there are provisions in it upon which the judg- 
ments of the best patriots, the best jurists, the most earnest men 
disagree. There are men, in whom I have entire confidence, who 
maintain that all its provisions are within the purview of the 
Constitution; there are others in whom I have confidence, and 
equal confidence, who maintain directly the contrary; and this 
has brought me seriously to consider whether there be no com- 
mon ground upon which friends can stand and stand together. 
Sir, I may have failed to find it ; but if I have, it is not because 
I have not most earnestly sought for it with some days of study 
and most earnest reflection. I have endeavored to put upon 
paper what I believe would carry this constitutional provision 
into effect and yet would be a common ground on which we could 
unite without violating the conscientious convictions of any." 

In concluding his remarks, Mr. Doolittle referred to instruc- 
tions received by him from the Legislature of Wisconsin : " Mr. 
President, I have received, in connection with my colleague, a 
telegraphic dispatch from the Governor of the State of Wiscon- 
sin, which I have no doubt is correct, although I have not seen 
the resolution which is said to have been passed by the Legisla- 
ture, in which it is stated that the Legislature has passed a reso- 
lution instructing the Senators in Congress from Wisconsin to 
vote for the passage of the Senate bill commonly known as the 
Civil Eights Bill, the veto of the President to the contrary not- 
withstanding. I have already stated, from my stand-point, the 
reasons why, in my judgment, I can not do it; I have stated 
them freely and frankly, and, as a matter of course, I expect to 
abide the consequences. I know that it has sometimes been said 
to me, by those, too, in whom I would have confidence, that for 
me, under circumstances like these, not to follow the instructions 
of the Legislature of my State, would be to terminate my polit- 
ical life. Sir, be it so. I never held or aspired to any other 
office politically than the one I now hold; and God knows, if I 



CIVIL RIGHTS BILL. 287 

know my own heart, if I can see this Union restored after this 
gigantic war which has ptit down the rebellion, and to which I 
have lent my support, I shall be satisfied. I do not desire to 
remain in political life beyond that hour. There is nothing in 
that which will have the slightest influence whatever upon me. 
The duty which I owe to myself, the duty which I owe to the 
country, the duty which I owe to the union of these States, and 
the preservation of the rights of the States, and the duty which 
I owe to the great Republican party, which I would still desire 
to save, prompts me to pursue the course which I now do." 

Mr. Garrett Davis, of Kentucky, addressed the Senate in a 
long speech, of which the following is the closing paragraph : 
"Public justice is often slow, but generally sure*. Think you 
that the people will look on with folded arms and stolid indiffer- 
ence and see you subvert their Constitution and liberties, and on 
their ruins erect a grinding despotism. No; erelong they will 
rise up with earthquake force and fling you from power and 
place. I commend to your serious meditation these words : * Go 
tell Sylla that you saw Caius Marius sitting upon the ruins of 
Carthage!'" 

Mr. Saulsbury thought a revolution would result from the 
passage of this bill : " In my judgment the passage of this bill 
is the inauguration of revolution^— bloodless, as yet, but the at- 
tempt to execute it by the machinery and in the mode provided 
in the bill will lead to revolution in blood. . It is well that the 
American people should take warning in time and set their house 
in order, but it is utterly impossible that the people of this coun- 
try will patiently entertain and submit to this great wrong. I 
do not say this because I want a revolution ; Heaven knows we 
have had enough of bloodshed ; we have had enough of strife ; 
there has been enough of mourning in every household; there 
are too many new-made graves on which the grass has not yet 
grown for any one to wish to see the renewal of strife ; but, sir, 
attempt to execute this act within the limits of the States of this 
Union, and, in my judgment, this country will again be plunged 
into all the horrors of civil war." 

Mr. McDougall said: "I agree with the Senator from Dela- 
ware that this measure is revolutionary in its character. The 
majority glory in their giant power, but they ought to under- 
stand that it is tyrannous to exercise that power like a giant. A 



288 THE THIfiTT-NIJYTH CONGRESS. 

revolution now is moving onward ; it has its center in the North- 
east. A spirit has been radiating out 'from there for years past 
as revolutionary as the spirit that went out from Charleston, 
South Carolina, and perhaps its consequences will be equally 
fatal, for when that revolutionary struggle comes it will- not be a 
war between the North and its power and the slaveholding pop- 
ulation of the South; it will be among the North men them- 
selves, they who have lived under the shadows of great oaks, and 
seen the tall pine-trees bend." 

At the conclusion of the remarks by the Senator from Califor- 
nia, the vote was taken, with the following result: 

Yeas — Messrs. .Anthony, Brown, Chandler, Clark, Conness, Cragin, Cres- 
well, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, 
Howe, Kirkwood, Lane of Indiana, Morgan, Morrill, Nye, Poland, Pomeroy, 
Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Wil- 
liams, Wilson, and Yates — 33. 

Nays — Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie^ Hendricks, 
Johnson, Lane of Kansas, McDougall, Nesmith, Norton, Riddle, Saulsbury, 
Van Winkle, and Wright — 15. 

Absent — Mr. Dixon. 

The President pro tempore then made formal announcement of 
the result: "The yeas being 33 and the nays 15, the bill has 
passed the Senate by the requisite constiutional majority, not- 
withstanding the objection of the President to the contrary." 

On the 9th of April, 1866, three days after the passage of the 
bill in the Senate, the House of Representatives proceeded to its 
consideration. The bill and the President's Veto Message hav- 
ing been read, Mr. Wilson, of Iowa, demanded the previous ques- 
tion on the passage of the bill, the objections of the President to 
the contrary notwithstanding, and gave his reasons for so doing: 
"Mr. Speaker, the debate which occurred on this bill occupied 
two weeks of the time of this House. Some forty speeches were 
made, and the debate was not brought to a close until all had 
been heard who expressed a desire to speak upon the bill. At 
the close of that debate, the bill was passed by more than two- 
thirds of this House. It has been returned to us with the objec- 
tions of the President to its becoming a law. I do not propose 
to reopen the discussion of this measure ; I am disposed to leave 
the close of this debate to the President by the message which 
has just been read. I ask the friends of this great measure to 



CIVIL RIGHTS BILL. 289 

answer the argument and statements of that message by their 
votes." 

The vote was finally taken on the question, 'Shall this bill 
pass, notwithstanding the objections of the President?" The fol- 
lowing is the record of the vote: 

Yeas— Messrs. Alley, Allison, Delos R. Ashley, James ML Ashley, Baker, 
Baldwin, Banks, Barker, Baxter, Beaman, Benjamin, Bidwell, Boutwell, 
Brandegee, Bromwell, Broomall, Buckland, Bundy, Reader W. Clarke, Sid- 
ney Clarke, Cobb, Colfax, Conkling, Cook, Cullom, Darling, Davis, Dawes, 
Defrecs, Delano, Deming, Dixon, Dodge, Donnelly, Eckley, Eggleston, Eliot, 
Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Griswold, Hale, Abner C. 
Harding, Hart, Hayes, Henderson, Higby, Hill, Holmes, Hooper, Hotch- 
kiss, Asahel W. Hubbard, Chester D. Hubbard, John H. Hubbard, James 
i: Hubbell, Hulburd, Jame3 Humphrey, Ingersoll, Jenckes, Kasson, Kel- 
ley, Kelso, Ketcham, Laflin, George V. Lawrence, William Lawrence, 
Loan, Longyear, Lynch, Marston, Marvin, McClurg, Mclndoe, McKee, 
McEuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, New- 
ell, O'Neill, Orth, Paine, Patterson, Perham, Pike, Plants, Pomeroy, Price, 
Alexander H Rice, John II. Rice, Rollins, Sawyer, Schenck, Scofield, Shella- 
■r, Spalding, Starr, Stevens, Thayer, Francis Thomas, John L. Thomas, 
Trowbridge, Dpson, Van Aernam, Burt Van Horn, Robert T. Van Horn, 
Ward, Elihu l'». Washburne, Henry D. Washburn, William B. Washburn, 
Welker, Wmtworth, James F Wilson, Stephen F Wilson, Windom, and 
Woodbriuge— 122. 

Xavs— Messrs. Ancona, Bergen, Boyer, Coffroth, Dawson, Dennison, El- 
dridge, Finck, Glossbrenner, Aaron Harding, Harris, Hogan, Edwin N. 
Hnbbell, James M. Humphrey, Latham, Le Blond, Marshall, McCullough, 
Niblack, Nicholson, Noell, Phelps, Radford, Samuel J. Randall, William H. 
Randall, Raymond, Ritter, Rogers, Ross, Rosseau, Shanklin, Sitgreaves, 
Smith, Strouse, Taber, Taylor, Thornton, Trimble, Whaley, Winfield, and 

Wright— 41. 

Not Voting— Messrs. Ames, Anderson, Bingham, Blaine, Blow, Chanler, 
Culver, Driggs, Dumont, Goodyear, Grider, Demas Hubbard, Johnson, Jones, 
Julian,' Ker^ Kuykendall, Sloan, Stilwell, Warner, and Williams— 21. 

The Speaker then made the following announcement: "The 
yeas are 122, and the nays 41. Two-thirds of the House hav- 
ing, upon this reconsideration, agreed to the passage of the bill, 
and it being certified officially that a similar majority of the Sen- 
ate, in which the bill originated, also agreed to its passage, I do, 
therefore, by the authority of the Constitution of the United 
States, declare that this bill, entitled 'An act to protect all per- 
sons in the United . States in their civil rights, and furnish the 
means of their vindication/ has become a law." 
19' 



290 THE THIRTY-NINTH CONGRESS. 

This announcement was followed by prolonged applause on the 
floor of the House and among the throng of spectators in the gal- 
leries. 

The following is the form in which the great measure so long 
pending became a law of the land : 

"Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That all persons born in the United 
States and not subject to any foreign Power, excluding Indians not taxed, 
are hereby declared to be citizens of the United States; and such citizens 
of every race and color, without regard to any previous condition of slavery 
or involuntary servitude, except as a punishment for crime whereof the 
party shall have been duly convicted, shall have the same right in every 
State and Territory in the United States to make and enforce contracts, to 
sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and 
convey real and personal property, and to full and ecpaal benefit of all laws 
and proceedings for the security of person and property as is enjoyed by 
white citizens, and shall be subject to like punishment, pains, and penalties, 
and to none other, any law, statute, ordinance, regulation, or custom to the 
contrary notwithstanding. 

" Sec. 2. And be it further enacted, That any person who, under color of 
any law, statute, ordinance, regulation, or custom, shall subject, or cause to 
be subjected, any inhabitant of any State or Territory to the deprivation of 
any right secured or protected by this act, or to different punishment, pains, 
or penalties on account of such person having at any time been held in a 
condition of slavery or involuntary servitude, except as a punishment for 
crime whereof the party shall have been duly convicted, or by reason of his 
color or race, than is prescribed for the punishment of white persons, shall 
be deemed guilty of a misdemeanor, and, on conviction, shall be punished 
by a fine not exceeding $1,000, or imprisonment not exceeding one year, or 
both, in the discretion of the court. 

" Sec. 3. And be it further enacted, That the district courts of the United 
States, within their respective districts, shall have, exclusively of the courts of 
the several States, cognizance of all crimes and offenses committed against 
the provisions of this act, and also, concurrently with the circuit courts of 
the United States, of all causes, civil and criminal, affecting persons who are 
denied or can not enforce in the courts or judicial tribunals of the State 
or locality where they may be, any of the rights secured tb them by the first 
section of this act; and if any suit or prosecution, civil or criminal, has been 
or shall be commenced in any State court against any such person, for any 
cause whatsoever, or against any officer, civil or military, or other person, 
for any arrest or imprisonment, trespasses or wrongs, done or committed by 
virtue or under color of authority derived from this act or the act establish- 
ing a Bureau for the Relief of Freedmen and Refugees, and all acts amend- 
atory thereof, or for refusing to do any act upon the ground that it would 
be inconsistent with this act, such defendant shall have the right to remove 
such cause for trial to the proper district or circuit court in the manner 



CIVIL EIGHTS BILL. 291 

prescribed by the 'Act relating to habeas corpus and regulating judicial pro- 
ceedings in certain cases,' approved March 3, 1863, and all acts amendatory 
thereof. The jurisdiction in civil and criminal matters hereby conferred 
on the district and circuit courts of the United States shall be exercised 
and enforced in conformity with the laws of the United States, so far as 
such laws are suitable to carry the same into effect ; but in all cases where 
such laws are not adapted to the object, or are deficient in the provisions 
necessary to furnish suitable remedies and punish offenses against law, the 
common law, as modified and changed by the constitution and statutes of 
the States wherein the court having jurisdiction of the cause, civil or crim- 
inal, is held, so far as the same is not inconsistent with the Constitution 
and laws of the United States, shall be extended to and govern said courts 
in the trial and disposition of such cause, and, if of a criminal nature, in 
the infliction of punishment on the party found guilty. 

" Sec. 4. And be it further enacted, That the district attorneys, marshals, 
and deputy-marshals of the United States, the commissioners appointed by 
the circuit and territorial courts of the United States, with powers of arrest- 
in g. imprisoning, or bailing offenders against the laws of the United States, 
the officers and agents of the Freedmen's Bureau, and every other officer 
who may be specially empowered by the President of the United States, 
shall be, and they are hereby, specially authorized and required, at the ex- 
pense of the United States, to institute proceedings against all and every 
person who shall violate the provisions of this act, and cause him or them 
to be arrested and imprisoned, or bailed, as the case may be, for trial before 
such court of the United States, or territorial court, as by this act has cog- 
nizance of the offense. And with a view to affording reasonable protection 
to all persons in their constitutional rights of equality before the law, with- v 
out distinction of race or color, or previous condition of slavery or involuntary 
servitude, except as a punishment for crime whereof the party shall have 
been duly convicted, and to the prompt discharge of the duties of this act, 
it shall be the duty of the circuit courts of the United States and the supe- 
rior courts of the Territories of the United States, from time to time, to^ in- 
crease the number of commissioners, so as to afford a speedy and convenient 
means for the arrest and examination of persons charged with a violation 
of this act. And such commissioners are hereby authorized and required 
to exercise and discharge all the powers and duties conferred on them by 
this act, and the same duties with regard to offenses created by this act, as 
they are authorized by law to exercise with regard to other offenses against 
the laws of the United States. 

" Sec. 5. And be it further enacted, That it shall be the duty of all mar- 
shals and deputy-marshals to obey and execute all warrants and precepts 
issued under the provisions of this act, when to them directed; and should 
any marshal or deputy-marshal refuse to receive such warrant or other pro- 
cess when tendered, or to use all proper means diligently to execute the 
same, he shall, on conviction thereof, be fined in the sum of $1,000, to the 
use of the person upon whom the accused is alleged to have commmitted 
the offense. And the better to enable the said commissioners to execute their 
duties faithfully and efficiently, in conformity with the Constitution of the 



292 THE THIRTY-NINTH CONGRESS. 

United States and the requirements of this act, they are hereby authorized 
and empowered, within their counties respectively, to appoint, in writing, 
under their hands, any one or more suitable persons, from time to time, to 
execute all such warrants and other process as may be issued by them in 
the lawful performance of their respective duties; and the persons so ap- 
pointed to execute any warrant or process as aforesaid, shall have authority 
to summon and call to their aid the bystanders or the posse comitatus of the 
proper county, or such portion of the land and naval forces of the United 
States, or the militia, as may be necessary to the performance of the duty 
with which they are charged, and to insure a faithful observance of the 
clause of the Constitution which prohibits slavery, in conformity with the 
provisions of this act ; and said warrants shall run and be executed by said 
officers anywhere in the State or Territory within which they are issued. 

"Sec. 6. And be it further enacted, That any person who shall knowingly 
and willfully obstruct, hinder, or prevent any officer, or other person, charged 
with the execution of any warrant or process issued under the provisions 
of this act, or any person or persons lawfully assisting him or them, from 
arresting any person for whose apprehension such warrant or process may 
have been issued, or shall rescue or attempt to rescue such person from 
the custody of the officer, other person or persons, or those lawfully assist- 
ing as aforesaid, when so arrested pursuant to the authority herein given 
and declared, or who shall aid, abet, or assist any person so arrested as 
aforesaid, directly or indirectly, to escape from the custody of the officer or 
other person legally authorized as aforesaid, or shall harbor or conceal any 
person for whose arrest a warrant or process shall have been issued as 
aforesaid, so as to prevent his discovery and arrest after notice or knowledge 
of the fact that a warrant has been issued for the apprehension of such per- 
son, shall, for either of said offenses, be subject to a fine not exceeding 
$1,000, and imprisonment not exceeding six months, by indictment and con- 
viction before the district court of the United States for the district in which 
said offense may have been committed, or before the proper court of crim- 
inal jurisdiction, if committed within any one of the organized Territories 
of the United States. 

"Sec. 7. And be it further enacted, That the district attorneys, the mar- 
shals, the deputies, and the clerks of the said district and territorial courts 
shall be paid for their services the like fees as may be allowed to them for 
similar services in other cases; and in all cases where the proceedings are 
before a commissioner, he shall be entitled to a fee of ten dollars in full for 
his services in each case, inclusive of all services incident to such arrest 
and examination. The person or persons authorized to execute the process 
to be issued by such commissioners for the arrest of offenders against the 
provisions of this act, shall be entitled to a fee of five dollars for each per- 
son he or they may arrest and take before any such commissioner as afore- 
said, with such other fees as may be deemed reasonable by such commis- 
fiioner for such other additional services as may be necessarily performed by 
him or them, such as attending at the examination, keeping the prisoner in 
custody, and providing him with food and lodging during his detention, and 
until the final determination of such commissioner, and in general for per- 



CIVIL RIGHTS BILL. 293 

forming such other duties as may be required in the premises ; such fees 
to be made up in conformity with the fees usually charged by the officers 
of the courts of justice within the proper district or county, as near as may 
be practicable, and paid out of the Treasury of the United States on the 
certificate of the judge of the district within which the arrest is made, and 
to be recoverable from the defendant as part of the judgment in case of 
conviction. 

"Sec. 8. And be it further enacted, That whenever the President of the 
United States Bhall have reason to believe that offenses have been or are 
likely to be committed against the provisions of this act within any judicial 
district, it shall be lawful for him, in his discretion, to direct the judge, 
marshal, and district attorney of such district to attend at such place within 
the district, and for such time as he may designate, for the purpose of the 
more speedy arrest and trial of persons charged with a violation of this 
act; and it shall be the duty of every judge or other officer, when any such 
requisition shall be received by him, to attend at the place, and for the 
time therein designated. 

"Sec. 9. And be it further enacted, That it shall be lawful for the Presi- 
dent of the United States, or such person as he may empower for that pur- 
pose, to employ such part of the land or naval forces of the United States, 
or of the militia, as shall be necessary to prevent the violation and enforce 
the due execution of this act. 

" Sec. 10. And be it further enacted, That upon all questions of law aris- 
ing in any cause under the provisions of this act a final appeal may be taken 
to the Supreme Court of the United States." 



294 TEE TEIETT-NINTE CONGRESS. 



CHAPTER XII. 

the second freedmen's bureau bill becomes a law. 

Thk Discovery op the Majority — The Senate Bill — The House Bill — 
Its Provisions — Passage of the Bill — Amendment and Passage in the 
Senate — Committee op Conference — The Amendments as Accepted — 
The Bill as Passed — The Veto — The Proposition of a Democrat 
Accepted — Confusion in Leadership — Passage of the Bill over the 
Veto — It Becomes a Law. 

CONGRESS having succeeded in placing the Civil Rights Bill 
in the statute-book in spite of Executive opposition, was not 
disposed to allow other legislation which was regarded as 
important to go by default. The disposition of the President, 
now plainly apparent, to oppose all legislation which the party 
that had elevated him to office might consider appropriate to the 
condition of the rebel States, the majority in Congress discovered 
that, if they would make progress in the work before them, they 
must be content to do without Executive approval. The defec- 
tion of the President from the principles of the party which 
had elected him, so far from dividing and destroying that party, 
had rather given it consolidation and strength. After the veto 
of the Civil Rights Bill, a very few members of the Senate and 
House of Representatives who had been elected as Republicans 
adhered to the President, but the most of those who had wavered 
stepped forward into the ranks of the " Radicals," as they were 
called, and a firm and invincible "two-thirds" moved forward 
to consummate legislation which they deemed essential to the 
interests of the nation. 

So fully convinced were the majority that some effective legisla- 
tion for the freedmen should be consummated, that two days after 
the final vote in which the former bill failed to pass over the veto, 
Senator Wilson introduced a bill " to continue in force the Bu 



THE FREEDMEN. 295 

reau for the relief of Freedmen and Refugees," which was read 
twice and referred to the Committee on Military Affairs. 

The bill, however, which subsequently became a law, origi- 
nated in the House of Representatives. In that branch of Con- 
gress was a Special Committee on the Freedmen, who were able 
to give more immediate and continuous attention to that class of 
people than could committees such as those of the Judiciary and 
Military Affairs, having many other subjects to consider. 

The Committee on the Freedmen, having given much time 
and attention to the perfection of a measure to meet the neces- 
sities of the case, on the 2 2d of May reported through their 
chairman, Mr. Eliot, " A bill to continue in force and amend an 
act entitled ' an act to establish a Bureau for the relief of Freed- 
men and Refugees, and for other purposes.' " 

This bill provided for keeping in force the Freedmen's Bureau 
then in existence for two years longer. Some of the features to 
which the President had objected in his veto of the former bill 
had been modified and in part removed. In providing for the 
education of freedmen, the commissioner was restricted to co- 
operating so far with the charitable people of the country as to 
furnish rooms for school-houses and protection to teachers. The 
freedmen's courts were to be kept in existence till State legisla- 
tion should conform itself to the Civil Rights Bill, and the dis- 
turbed relations of the States to the Union were restored. The 
President was required to reserve from sale public lands, not ex- 
ceeding in all one million of acres, in Arkansas, Mississippi, 
Florida, Alabama, and Louisiana, to be assigned in parcels of 
forty acres and less to loyal refugees and freedmen. 

One week after the introduction of the bill, its consideration 
was resumed. The question was taken without debate, and the 
bill passed by a vote of ninety-six in favor and thirty-two 
against the measure. Fifty-five members failed to vote. 

On the day following, May 30th, the clerk of the House con- 
veyed the bill to the Senate. It was there referred to the Com- 
mittee on Military Affairs, as that committee already had before 
them seven bills relating to the same subject. Nearly a fortnight 
subsequently, the committee reported back to the Senate the 
House bill with certain amendments. The report of the com- 
mittee, and the amendments proposed therein, could not be con- 
sidered in the Senate until the lapse of another fortnight. On 



296 THE THIRTY-NINTH CONGRESS. 

the 26th of June, the amendments devised by the committee 
were read in the Senate and adopted. Mr. Davis made a number 
of attempts to have the bill laid on the table or deferred to a 
subsequent day, but without success. Mr. Hendricks and Mr. 
Buckalew made ineffectual attempts to amend the bill by pro- 
posing to strike out important sections. 

The Senate indulged in but little discussion of the bill or the 
amendments. The bill as amended finally passed the Senate by 
a vote of twenty-six for and six against the measure. The bill 
then went to the House for the concurrence of that body in the 
amendments passed by the Senate. 

The Committee on the Freedmen made a report, which was 
adopted by the House, to non-concur in the amendments of the 
Senate. A Committee of Conference was appointed on the part 
of the Senate and the House. They, after consultation, made a 
report by which the Senate amendments, with some modifications, 
were adopted. 

Mr. Eliot, Chairman of the Committee on the Freedmen, and 
of the Committee of Conference on the part of the House, at the 
recpuest of a member, thus explained the amendments proposed by 
the Senate : " The first amendment which the Senate made to the 
bill, as it was passed by the House, was simply an enlargement 
of one of the sections of the House bill, which provided that the 
volunteer medical officers engaged in the medical department of 
the bureau might be continued, inasmuch as it was expected that 
the medical force of the regular army would be speedily reduced 
to the minimum, and in that case all the regular officers would 
be -wanted in the service. It was therefore thought right that 
there should be some force connected with the Bureau of Refu- 
gees and Freedmen. The Senate enlarged the provisions of the 
House bill by providing that officers of the volunteer service now 
on duty might be continued as assistant commissioners and other 
officers, and that the Secretary of War might fill vacancies until 
other officers could be detailed from the regular army. That is 
the substance of the first material amendment. 

" The next amendment strikes out a portion of one of the sec- 
tions of the House bill, which related to the officers who serve as 
medical officers of the bureau, because it was provided for in the 
amendment to which I have just referred. 

"The next amendment strikes out from the House bill the 



THE FREEDMEN. 297 ' 

section which set apart, reserved from sale, a million acres of land 
in the Gulf States. It may perhaps be recollected that when the 
bill was reported from the committee, I stated that, in case the bill 
which the House had then passed, and which was known as the 
Homestead Bill, and which was then before the Senate, should 
become a law, this section of the bill would not be wanted. The 
bill referred to has become a law, and this section five, providing 
for that reservation, has, therefore, been stricken from the bill. 
. " The next amendment made by the Senate was to strike out a 
section of the House bill which simply provided that upon appli- 
cation for restoration by the former owners of the land assigned 
under General Sherman's field order, the application should not 
be complied with. That section is stricken out and another sub- 
stituted for it, which provides that certain lands which are now 
owned by the United States, having been purchased by the United 
States under tax commissioners' sales, shall be assigned in lots of 
twenty acres to freedmen who have had allotments under General 
Sherman's field order, at the price for which the lands were pur- 
chased by the United States ; and not only that those freedmen 
should have such allotments, but that other freedmen who had 
had lots assigned to them under General Sherman's field order, 
and who may have become dispossessed of their land, should have 
assignments made to them of these lands belonging to the United 
States. I think the justice of that provision will strike every one. 
And it will be perhaps a merit in the eyes of many that it does 
not call upon the Treasury for the expenditure of any money. 
In the bill which was passed by the House, it will be recollected 
that there was a provision under which there should be purchased 
by the commissioner of the bureau enough public lands to be sub- 
stituted for the lands at first assigned to freedmen. Instead of that, 
provision is made by which they can have property belonging to 
the United States which has come into its possession under tax 
sales, and where the titles have been made perfect by lapse of time. 
" The next amendment of the Senate provides that certain lands 
which were purchased by the United States at tax sales, and which 
are now held by the United States, should be sold at prices not 
less than ten dollars an acre, and that the proceeds should be 
invested for the support of schools, without distinction of color 
or race, on the islands in the parishes of St. Helena and St. Luke. 
That is all the provision which was made for education. 



298 THE THIRTY-NINTH CONGRESS. 

■ " The only other material amendment made by the Senate gives 
to the commissioner of the bureau power to take property of the 
late Confederate States, held by them or in trust for them, and 
which is now in charge of the commissioner of the bureau, to 
take that property and devote it to educational purposes. The 
amendment further provides that when the bureau shall cease to 
exist, such of the late so-called Confederate States as shall have 
made provision for education, without regard to color, should 
have the balance of money remaining on hand, to be divided, 
among them in proportion to their population." 

The vote followed soon after the remarks of Mr. Eliot, and 
the bill, as amended, passed the House of Representatives. 

The following is the bill as it went to the President for his 
approval : 

"An Act to continue in force and to amend 'An Act to establish a Bureau 
for the relief of Freedmen and Refugees,' and for other purposes. 

"Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That the act to establish a bureau for the 
relief of freedmen and refugees, approved March third, eighteen hundred 
and sixty-five, shall continue in force for the term of two years from and 
after the passage of this act. 

"Sec. 2. And be it further enacted, That the supervision and care of said 
bureau shall extend to all loyal refugees and freedmen, so far as the same 
shall be necessary, to enable them, as speedily as practicable, to become 
self-supporting citizens of the United States, and to aid them in making the 
freedom conferred by proclamation of the commander-in-chief, by emanci- 
pation under the laws of States, and by constitutional amendment, availa- 
ble to them and beneficial to the republic. 

"Sec. 3. And be it further enacted, That the President^ shall, by and. with 
the advice and consent of the Senate, appoint two assistant commissioners, 
in addition to those authorized by the act to which this is an amendment, 
who shall give like bonds and receive the same annual salaries provided in 
said act ; and each of the assistant commissioners of the bureau shall have 
charge of one district containing such refugees or freedmen, to be assigned 
him by the commissioner, with the approval of the President. And the 
commissioner shall, under the direction of the President, and so far as the 
same shall be, in his judgment, necessary for the efficient and economical 
administration of the affairs of the bureau, appoint such agents, clerks, and 
assistants as may be required for the proper conduct of the bureau. Mili- 
tary officers or enlisted men may be detailed for service and assigned to 
duty under this act; and the President may, if, in his judgment, safe and 
judicious so to do, detail from the army all the officers and agents of this 
bureau; but no officer so assigned shall have increase of pay or allowances. 
Each agent or clerk, not heretofore authorized by law, not being a military 



THE FREEBMEK. 299 

officer, shall have an annual salary of not less than five hundred dollars, nor 
more than twelve hundred dollars, according to the service required of him. 
And it shall be the duty of the commissioner, when it can be done consist- 
ently with public interest, to appoint, as assistant commissioners, agents, 
and clerks, such men as have proved their loyalty by faithful service in the 
armies of the Union during the rebellion. And all persons appointed to 
service under this act, and the act to which this is an amendment, shall be 
so far deemed in the military service of the United States as to be under 
the military jurisdiction and entitled to the military protection of the Gov- 
ernment while in discharge of the duties of their office. 

"Sec. 4. And be it further enacted, That officers of the Veteran Reserve 
Corps or of the volunteer service, now on duty in the Freedmen's Bureau 
as assistant commissioners, agents, medical officers, or in other capacities, 
whose regiments or corps have been or may hereafter be mustered out of 
service, may be retained upon such duty as officers of said bureau, with the 
same compensation as is now provided by law for their respective grades ; 
and the Secretary of War shall have power to fill vacancies until other of- 
ficers can be detailed in their places without detriment to the public service. 

" Sec. 5. And be it further enacted, That the second section of the act to 
which this is an amendment shall be deemed to authorize the Secretary of 
War to issue such medical stores or other supplies, and transportation, and 
afford such medical or other aid as may be needful for the purposes named 
in said section: Provided, That no person shall be deemed 'destitute,' 'suf- 
fering,' or 'dependent upon the Government for support,' within the mean- 
ing of this act, who is able to find employment, and could, by proper industry 
or exertion, avoid such destitution, suffering, or dependence. 

"Sec. 6. Whereas, by the provisions of an act approved February sixth, 
eighteen hundred and sixty-three, entitled 'An act to amend an act entitled 
"An act for the collection of direct taxes in insurrectionary districts within 
the United States, and for other purposes," approved June seventh, eighteen 
hundred and sixty-two,' certain lands in the parishes of Saint Helena and 
Saint Luke, South Carolina, were bid in by the United States at public tax 
sales, and, by the limitation of said act, the time of redemption of said 
lands has expired; and whereas, in accordance with instructions issued by 
President Lincoln on the sixteenth day of September, eighteen hundred and 
sixty-three, to the United States direct tax commissioners for South Caro- 
lina, certain lands bid in by the United States in the parish of Saint Hel- 
ena, in said State, were in part sold by the said tax commissioners to 'heads 
of families of the African race,' in parcels of not more than twenty acres 
to each purchaser; and whereas, under the said instructions, the said tax 
commissioners did also set apart as 'school-farms' certain parcels of land in 
said parish, numbered in their plats from one to sixty-three inclusive, mak- 
ing an aggregate of six thousand acres, more or less: Therefore, be it further 
enacted, That the sales made to 'heads of families of the African race,' un- 
der the instructions of President Lincoln to the United States direct tax 
commissioners for South Carolina, of date of September sixteenth, eighteen 
hundred and sixty-three, are hereby confirmed and established; and all 
leases which have been made to such 'heads of families' by said direct 



300 TEE TEIETT-JVIJVTE CONGRESS. 

tax commissioners shall be changed into certificates of sale in all cases 
wherein the lease provides for such substitution; and all the lands now re- 
maining unsold, which come within the same designation, being eight thou- 
sand acres, more or less, shall be disposed of according to said instructions. 
"Sec. 7. And be it further enacted, That all other lands bid in by the 
United States at tax sales, being thirty-eight thousand acres, more or less, 
and now in the hands of the said tax commissioners as the property of the 
United States, in the parishes of Saint Helena and Saint Luke, excepting 
the 'school-farms,' as specified in the preceding section, and so much as 
may be necessary for military and naval purposes at Hilton Head, Bay 
Point, and Land's End, and excepting also the city of Port Royal, on Saint 
Helena island, and the town of Beaufort, shall be disposed of in parcels of 
twenty acres, at one dollar and fifty cents per acre, to such persons, and to 
such only, as have acquired and are now occupying lands under and agree- 
ably to the provisions of General Sherman's special field order, dated at Sa- 
vannah, Georgia, January sixteenth, eighteen hundred and sixty-five; and the 
remaining lands, if any, shall be disposed of, in like manner, to such per- 
sons as had acquired lands agreeably to the said order of General Sherman, 
but who have been dispossessed by the restoration of the same to former 
"owners: Provided, That the lands sold in compliance with the provisions 
of this and the preceding section shall not be alienated by their purchasers 
within six years from and after the passage of this act. 

"Sec. 8. And be it further enacted, That the 'school-farms' in the parish 
of Saint Helena, South Carolina, shall be sold, subject to any leases of the 
same, by the said tax commissioners, at public auction, on or before the 
first day of January, eighteen hundred and sixty-seven, at not less than ten 
dollars per acre ; and the lots in the city of Port Royal, as laid down by 
the said tax commissioners, and the lots and houses in the town of Beau- 
fort, which are still held in like manner, shall be sold at public auction; 
and the proceeds of said sales, after paying expenses of the surveys and 
sales, shall be invested in United States bonds, the interest of which shall 
be appropriated, under the direction of the commissioner, to the support of 
schools, without distinction of color or race, on the islands in the parishes 
of Saint Helena and Saint Luke. 

"Sec. 9. And be it further enacted, That the assistant commissioners for 
South Carolina and Georgia are hereby authorized to examine the claims to 
lands in their respective States which are claimed under the provisions of 
General Sherman's special field order, and to give each person having a 
valid claim a warrant upon the direct tax commissioners for South Caro- 
lina for twenty acres of land; and the said direct tax commissioners shall 
issue to every person, or to his or her heirs, but in no case to any assigns, 
presenting such warrant, a lease of twenty acres of land, as provided for 
in section seven, for the term of six years ; but, at any time thereafter, upon 
the payment of a sum not exceeding one dollar and fifty cents per acre, the 
person holding such lease shall be entitled to a certificate of sale of said 
tract of twenty acres from the direct tax commissioner or such officer as 
may be authorized to issue the same; but no warrant shall be held valid 
longer than two years after the issue of the same. 



THE FREEDMEN. 301 

"Sec. 10. And be it further enacted, That the direct tax commissioners for 
South Carolina are hereby authorized and required, at the earliest day prac- 
ticable, to survey the lands designated in section seven into lots of twenty 
acres each, with proper metes and bounds distinctly, marked, so that the sev- 
eral tracts shall be convenient in form, and, as near as practicable, have 
an average of fertility and woodland; and the expense of such surveys shall 
be paid from the proceeds of sales of said lands, or, if sooner required, out 
of any moneys received for other lands on these islands, sold by the United 
States for taxes, and now in the hands of the direct tax commissioners. 

"Sec. 11. And be it further enacted, That restoration of the lands now oc- 
cupied by persons under General Sherman's special field order, dated at 
Savannah, Georgia, January sixteenth, eighteen hundred and sixty-five, shall 
not be made until after the crops of the present year shall have been gath- 
ered by the occupants of said lands, nor until a fair compensation shall 
have been made to them by the former owners of said lands, or their legal 
representatives, for all improvements or betterments erected or constructed 
thereon, and after due notice of the same being done shall have been given 
by the assistant commissioner. 

" Sec. 12. And be it further enacted, That the commissioner shall have 
power to seize, hold, use, lease, or sell, all buildings and tenements, and 
any lands appertaining to the same, or otherwise, held under claim or title 
by the late so-called Confederate States, and any buildings or lands held in 
trust for the same by any person or persons, and to use the same or appro- 
priate the proceeds derived therefrom to the education of the freed people; 
and whenever the bureau shall cease to exist, such of the late so-called Con- 
federate States as shall have made provision for the education of their citi- 
zens, without distinction of color, shall receive the sum remaining unex- 
pended of such sales or rentals, which shall be distributed among said States 
for educational purposes in proportion to their population. 

"Sec 13. And be it further enacted, That the commissioner of this bureau 
shall at all times cooperate with private benevolent associations of citizens 
in aid of freedmen, and with agents and teachers, duly accredited and ap- 
pointed by them, and shall hire or provide by lease buildings for purposes 
of education whenever such associations shall, without cost to the Govern- 
ment, provide suitable teachers and means of instruction ; and he shall fur- 
nish protection as may be required for the safe conduct of such schools. 

"Sec. 14. And be it further enacted, That in every State or district where 
the ordinary course of judicial proceedings has been interrupted by the re- 
bellion, and until the same shall be fully restored, and in every State or dis- 
trict whose constitutional relations to the Government have been practically 
discontinued by the rebellion, and until such State shall have been restored 
in such relations, and shall be duly represented in the Congress of the United 
States, the right to make and enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, hold, and convey real and per- 
sonal property, and to have full and equal benefit of all laws and proceed- 
ings concerning personal liberty, personal security, and the acquisition, 
enjoyment, and disposition of estate, real and personal, including the con- 
stitutional right to bear arms, shall be secured to and enjoyed by all the 



302 THE THIRTY-NINTH CONGRESS. 

citizens of such State or district, without respect to race or color, or previ- 
ous condition of slavery. And whenever in either of said States or districts 
the ordinary course of judicial proceedings has been interrupted by the 
rebellion, and until the same shall be fully restored, and until such State 
shall have been restored in its constitutional relations to the Government, 
and shall be duly represented in the Congress of the United States, the 
President, shall, through the commissioner and the officers of the bureau, 
and under such rules and regulations as the President, through the Secretary 
of War, shall prescribe, extend military protection and have military juris- 
diction over all cases and questions concerning the free enjoyment of such 
immunities and rights; and no penalty or punishment for any violation of 
law shall be imposed or permitted because of race or color, or previous con- 
dition of slavery, other or greater than the penalty or punishment to which 
white persons may be liable by law for the like offense. But the jurisdic- 
tion conferred by this section upon the officers of the bureau shall not ex- 
ist in any State where the ordinary course of judicial proceedings has not 
been interrupted by the rebellion, and shall cease in every State when the 
courts of the State and the United States are not disturbed in the peace- 
able course of justice, and after such State shall be fully restored in its con- 
stitutional relations to the Government, and shall be duly represented in the 
Congress of the United States. 

"Sec. 15. And be it further enacted, That the officers, agents, and employ- 
ees of this bureau, before entering upon the duties of their office, shall take 
the oath prescribed in the first section of the act to which this is an amend- 
ment; and all acts or parts of acts inconsistent with the provisions of this 
act are hereby repealed. 

On the 16th of July the President returned the bill to the 
House of Representatives, in which it originated, with his " ob- 
jections thereto" in writing. The following is 

THE VETO MESSAGE. 

"To the House of Representatives : 

" A careful examination of the bill passed by the two houses of Congress, 
entitled ' An act to continue in force and to amend " An act to establish a 
bureau for the relief of freedmen and refugees," and for other purposes,' has 
convinced me that the legislation which it proposes would not be consistent 
with the welfare of the country, and that it falls clearly within the reasons 
assigned in my message of the 19th of February last, returning without my 
signature a similar measure which originated in the Senate. It is not my 
purpose to repeat the objections which I then urged. They are yet fresh in 
your recollection, and can be readily examined as a part of the records of 
one branch of the National Legislature. Adhering to the principles set forth 
in that message, I now reaffirm them, and the line of policy therein indi- 
cated. 

" The only ground upon which this kind of legislation can be justified is 
that of the war-making power. The act of which this bill was intended as 



THE FREEDMEN. SOS 

amendatory was passed during the existence of the war. By its own pro- 
visions, it is to terminate within one year from the cessation of hostilities 
and the declaration of peace. It is therefore yet in existence, and it is 
likely that it will continue in force as long as the freedmen may require the 
benefit of its provisions. It will certainly remain in operation as a law 
until some months subsequent to the meeting of the next session of Con- 
gress, when, if experience shall make evident the necessity of additional 
legislation, the two houses will have ample time to mature and pass the 
requisite measures. In the mean time the questions arise, Why should this 
war measure be continued beyond the period designated in the original act? 
and why, in time of peace, should military tribunals be created to continue 
until each 'State shall be fully restored in its constitutional relations to the 
Government, and shall be duly represented in the Congress of the United 
States?' It was manifest with respect to the act approved March 3, 1865, 
that prudence and wisdom alike required that jurisdiction over all cases 
concerning the free enjoyment of the immunities and rights of citizenship, 
as well as the protection of person and property, should be conferred upon 
some tribunal in every State or district where the ordinary course of judicial 
proceeding was interrupted by the rebellion, and until the same should be 
fully restored. At that time, therefore, an urgent necessity existed for the 
passage of some such law. Now, however, war has substantially ceased; 
the ordinary course of judicial proceedings is no longer interrupted; the 
courts, both State and Federal, are in full, complete, and successful opera- 
tion, and through them every person, regardless of race or color, is entitled 
to and can be heard. The protection granted to the white citizen is al- 
ready conferred by law upon the freedman ; strong and stringent guards, by 
way of penalties and punishments, are thrown around his person and prop- 
erty, and it is believed that ample protection will be afforded him by due 
process of law, without resort to the dangerous expedient of ' military tri- 
bunals,' now that the war has been brought to a close. The necessity no 
longer existing for such tribunals, which had their origin in the war, grave 
objections to their continuance must present themselves to the minds of all 
reflecting and dispassionate men. Independently of the danger in represen- 
tative republics of conferring upon the military, in time of peace, extraor- 
dinary powers — so carefully guarded against by the patriots and statesmen 
of the earlier days of the republic, so frequently the ruin of governments 
founded upon the same free principle, and subversive of the rights and lib- 
erties of the citizen — the question of practical economy earnestly commends 
itself to the consideration of the law-making power. With an immense 
debt already burdening the incomes of the industrial and laboring classes, 
a due regard for their interests, so inseparably connected with the welfare 
of the country, should prompt us to rigid economy and retrenchment, and 
influence us to abstain from all legislation that would unnecessarily increase 
the public indebtedness. Tested by this rule of sound political wisdom, I 
can see no reason for the establishment of the 'military jurisdiction' con- 
ferred upon the officials of the bureau by the fourteenth section of the bill. 
"By the laws of the United States, and of the different States, competent 
courts, Federal and State, have been established, and are now in full prac- 



304 the thirty-ninth congress. 

tical operation. By means of these civil tribunals ample redress is afforded 
for all private wrongs, whether to the person or to the property of the citi- 
zen, without denial or unnecessary delay. They are open to all, without 
regard to color or race. I feel well assured that it will be better to trust 
the rights, privileges, and immunities of the citizens to tribunals thus estab- 
lished, and presided over by competent and impartial judges, bound by fixed 
rules of law and evidence, and where the rights of trial by jury is guaran- 
teed and secured, than to the caprice and judgment of an officer of the 
bureau, who, it is possible, may be entirely ignorant of the principles that 
underlie the just administration of the law. There is danger, too, that con- 
flict of jurisdiction will frequently arise between the civil courts and these 
military tribunals, each having concurrent jurisdiction over the person and 
the cause of action — the one judicature administered and controlled by civil 
law, the other by the military. How is the conflict to be settled, and who 
is to determine between the two tribunals when it arises? In my opinion 
it is wise to guard against such conflict by leaving to the courts and juries 
the protection of all civil rights and the redress of all civil grievances. 

"The fact can not be denied that since the actual cessation of hostili- 
ties many acts of violence — such, perhaps, as had never been witnessed in 
their previous history — have occurred in the States involved in the recent 
rebellion. I believe, however, that public sentiment will sustain me in the 
assertion that such deeds of wrong are not confined to any particular State 
or section, but are manifested over the entire country — demonstrating that 
the cause that produced them does not depend upon any particular locality, 
but is the result of the agitation and derangement incident to a long and 
bloody civil war. While the prevalence of such disorders must be greatly 
deplored, their occasional and temporary occurrence would seem to furnish 
no necessity for the extension of the bureau beyond the period fixed in the 
original act. Besides the objections which I have thus briefly stated, I may 
urge upon your consideration the additional reason that recent developments 
in regard to the practical operations of the bureau, in many of the States, 
show that in numerous instances it is used by its agents as a means of pro- 
moting their individual advantage, and that the freedmen are employed for 
the advancement of the personal ends of the officers, instead of their own 
improvement and welfare — thus confirming the fears originally entertained 
by many that the continuation of such a bureau for any unnecessary length 
of time would inevitably result in fraud, corruption, and oppression. 

"It is proper to state that in cases of this character investigations Ijave 
been promptly ordered, and the offender punished, whenever his guilt has 
been satisfactorily established. As another reason against the necessity of 
the legislation contemplated by this measure, reference may be had to the 
' Civil Rights Bill,' now a law of the land, and which will be faithfully exe- 
cuted as long as it shall remain unrepealed, and may not be declared un- 
constitutional by courts of competent jurisdiction. By that act, it is enacted 
'that all persons born in the United States, and not subject to any foreign 
power, excluding Indians not taxed, are hereby declared to be citizens of the 
United States ; and such citizens, of every race and color, without regard to 
any previous condition of slavery or involuntary servitude, except as a pun- 



THE FREED MEN. 805 

ishment for crime, whereof the party shall have been duly convicted, shall 
have the same right in every State and Territory of the United States, to 
make and enforce contracts, to sue, to be parties, and give evidence, to in- 
herit, purchase, lease, sell, hold, and convey real and personal property, 
and to full and equal benefit of all laws and proceedings for the security 
of person and property, as is enjoyed by white citizens, and shall be subject 
to like punishment, pains, and penalties, and to none other, any law, stat- 
ute, ordinance, regulation, or custom to the contrary notwithstanding.' 

"By the provisions of the act full protection is afforded, through the dis- 
trict courts of the United States, to all persons injured, and whose privi- 
leges, as they are declared, are in any way impaired, and heavy penalties 
are denounced against the person who wilfully violates the law. I need not 
state that that law did not receive my approval, yet its remedies are far pref- 
erable to those proposed in the present bill — the one being civil and the 
other military. 

"By the sixth section of the bill herewith returned, certain proceedings 
by which the lands in the ' parishes of St. Helena and St. Luke, South 
Carolina,' were sold and bid in, and afterward disposed of by the tax com- 
missioners, are ratified and confirmed. By the seventh, eighth, ninth, tenth, 
and eleventh sections, provisions by law are made for the disposal of the 
lands thus acquired to a particular class of citizens. While the quieting of 
titles is deemed very important and desirable, the discrimination made in 
the bill seems objectionable, as does also the attempt to confer upon the 
commissioners judicial powers, by which citizens of the United States are 
to be deprived of their property in a mode contrary to that provision of 
the Constitution which declares that no person ' shall be deprived of life, 
liberty, or property, without due process of law.' As a general principle, 
such legislation is unsafe, unwise, partial, and unconstitutional. It may 
deprive persons of their property who are equally deserving objects of the 
nation's bounty, as those whom, by this legislation, Congress seeks to ben- 
efit. The title to the land thus to be proportioned out to a favored class of 
citizens must depend upon the regularity of the tax sale under the law as 
it existed at the time of the sale, and no subsequent legislation can give 
validity to the rights thus acquired against the original claimants. The 
attention of Congress is therefore invited to a more mature consideration 
of the measures proposed in these sections of the bill. 

"In conclusion, I again urge upon Congress the danger of class legisla- 
tion, so well calculated to keep the public mind in a state of uncertain ex- 
pectation, disquiet, and restlessness, and to encourage interested hopes and 
fears that the National Government will continue to furnish to classes of 
citizens, in the several States, means for support and maintenance, regard- 
less of whether they pursue a life of indolence or labor, and regardless, also, 
of the constitutional limitations of the national authority in times of peace 
and tranquillity. 

" The bill is herewith returned to the House of Representatives, in which 
it originated, for its final action. 



"ANDREW JOHNSON. 



"Washington, D. C, July 16, 1866." 

20 



306 THE THIRTY-NINTH CONGRESS. 

As soon as the reading of this document had been completed, 
a motion was passed that it should be laid on the table and printed. 
Notice was given that it would be called up for the action of the 
House on the following day. Mr. Le Blond, a Democrat, sug- 
gested that it would be too long to wait until to-morrow to pass 
it over the veto, and without debate. The sooner action was 
taken, the more apparent would be the bad animus. 

" I have no objection," said Mr. Eliot, taking him at his word. 
Others said, " There is no objection," whereupon the vote was re- 
considered by which the matter was postponed. 

The motion to reconsider the postponement was carried, and 
the previous question called, " Shall this bill become a law, the 
objections of the President to the contrary notwithstanding?" 

"I do not see why we need be in such a hurry," said Mr. 
Rogers. 

" One of your own side suggested that the vote better be taken 
now," replied Mr. Ashley. 

"Well, he was not in earnest, of course," said Mr. Rogers, 
creating some mirth by the remark. 

" I hope the gentleman will make no objection," said Mr. 
Le Blond, addressing his remark to Mr. Rogers. 

Mr. Ward suggested that " the Democrats should choose their 
leader, and not confuse us in this way." 

Without further parley, the vote was one hundred and four in 
the affirmative, thirty -three in the negative, and forty-five "not 
voting." The Speaker then announced, "Two-thirds having 
voted in the affirmative, the bill has, notwithstanding the objec- 
tions of the President, again passed." 

The Clerk of the House of Representatives immediately an- 
nounced the action of that body to the Senate. Other business 
was at once laid aside, and the Veto Message was read in the 
Senate. 

Mr. Hendricks and Mr. Saulsbury then addressed the Senate 
in support of the position of the President. The question b'eing 
taken, thirty-three voted for and twelve against the bill. There- 
upon the President pro tempore, announced, " Two-thirds of this 
body have passed the bill, and it having been certified that two- 
thirds of the House of Representatives have voted for this bill, 
I now pronounce that this bill has become a law." 











I C INGER30LL, 

,c J RESE"NTATIVE FROM ILLINOIS 



RECONSTRUCTION. 307 



CHAPTER XIII. 

FIRST WORDS ON RECONSTRUCTION. 

Responsibility of the Republican Party— Its Power and Position— In- 
itiatory Step— Mr. Stevens steaks for IIimself— Condition of the Reb- 
el States— Constitutional Authority under which Congress should act 
—Estoppel— What constitutes Congress— The First Duty— Basis of 
Representation— Duty on Exports— Two important Principles— Mr. 
Raymond's Theory— Rebel States still in the Union— Consequences 
of the Radical Theory — Conditions to be required — State Sover- 
eignty—Rebel Debt — Prohibition of Slavery— Two Policies con- 
trasted— Reply of Mr. Jenckes— Difference in Terms, not in Substance 
—Logic of the Conservatives leads to the Results of the Radicals. 

HAYING traced the progress through Congress of the great 
measures relating to civil rights and protection of the 
freedmen, it is now proper to go back to an earlier period 
in this legislative history, and trace what was said and done upon 
a subject which, more than any other, awakened the interest and 
solicitude of the American people— the subject of Reconstruction. 

The Kepublican party had a majority of more than one hun- 
dred in the House, and after all its losses, retained more than two 
thirds of the Senate. As a consequence of this great preponder- 
ance of power, the party possessing it was justly held responsible 
for the manner in which the country should pass the important 
political crisis consequent upon the termination of the war in the 
overthrow of the rebellion. 

It became an important question for members of the Republi- 
can party in Congress to determine among themselves what line 
of policy they should pursue. 

The appointment of the Joint Committee of Fifteen on Recon- 
struction, was every-where regarded by the constituents of the 
majority as a most happy initiatory step. The whole country 
listened with eagerness to hear what words would be spoken in 



SO 8 THE THIRTY-NINTH CONGRESS. 

Congress to give some clue to the course the committee would 
recommend. Words of no uncertain significance and weight were 
uttered at an early period in the session. 

On the 18th of December, a fortnight after the opening of the 
session, Mr. Stevens announced his opinions on reconstruction 
with great boldness and distinctness. At the same time, seeing 
himself much in advance of many of his party, and fearing lest 
his opinions might alarm the less resolute, he declared : " I do not 
profess to speak their sentiments, nor must they be held respon- 
sible for them." 

Mr. Steveus opened his speech with remarks on the condition 
of the rebel States. He said : " The President assumes, what no 
one doubts, that the late rebel States have lost their constitutional 
relations to the Union, and are incapable of representation in 
Congress, except by permission of the Government. It matters 
but little, with this admission, whether you call them States out 
of the Union, and now conquered territories, or assert that be- 
cause the Constitution forbids them to do what they did do, that 
they are, therefore, only dead as to all national and political action, 
and will remain so until the Government shall breathe into them 
the breath of life anew and permit them to occupy their former 
position. In other words, that they are not out of the Union, 
but are only dead carcasses lying within the Union. In either 
case, it is very plain that it requires the action of Congress to 
enable them to form a State government and send Representatives 
to Congress. Nobody, I believe, pretends that with their old 
constitutions and frames of government they can be permitted to 
claim their old rights under the Constitution. They have torn 
their constitutional States into atoms, and built on their founda- 
tions fabrics of a totally different character. Dead men can not 
raise themselves. Dead States can not restore their own existence 
' as it was.' Whose especial duty is it to do it ? In whom does 
the Constitution place the power? Not in the judicial branch 
of Government, for it only adjudicates and does not prescribe 
laws. Not in the Executive, for he only executes and can not 
make laws. Not in the commander-in-chief of the armies, for 
he can only hold them under military rule until the sovereign 
legislative power of the conqueror shall give them law. 

"There is fortunately no difficulty in solving the question. 
There are two provisions in the Constitution, under one of which 



RECONSTR UCTION. 3 09 

the case must fall. The fourth article says : ' New States may be 
admitted by the Congress into this Union.' In my judgment, 
this is the controlling provision in this case. Unless the law 
of nations is a dead letter, the late war between two acknowl- 
edged belligerents severed their original compacts, and broke all 
the ties that bound them together. The future condition of the 
conquered power depends on the will of the conqueror. They 
must wine in as new States or remain as conquered provinces. 
Congress — the Senate and House of Representatives, with the 
concurrence of the President — is the only power that can act in 
the matter. But suppose, as some dreaming theorists imagine, 
that these States have never been out of the Union, but have 
only destroyed their State governments so as to be incapable of 
political action, then the fourth section of the fourth article ap- 
plies, which says, 'The United States shall guarantee to every 
State iii this Union a republican form of government.' Who is 
the United States? Not the judiciary; not the President; but 
the sovereign power of the people, exercised through their Repre- 
sentatives in Congress, with the concurrence of the Executive. 
It means the political Government — the concurrent action of both 
branches of Congress and the Executive. The separate action of 
each amounts to nothing either in admitting new States or guar- 
anteeing republican governments to lapsed or outlawed States. 
Whence springs the preposterous idea that either the President, 
or tin' Senate, or the House of Representatives, acting separately, 
can determine the right of States to send members or Senators to 
the Congress of the Union ? " 

Mr. Stevens then cited authorities to prove that "if the so- 
called Confederate States of America were an independent bellig- 
erent, and were so acknowledged by the United States and by 
Europe, or had assumed and maintained an attitude which en- 
titled them to be considered and treated as a belligerent, then, 
during such time, they were precisely in the condition of a foreign 
nation with whom we were at war; nor need their independence 
as a nation be acknowledged by us to produce that effect." 

Having read from a number of authorities to support his j)Osi- 
tion, Mr. Stevens continued: "After such clear and repeated 
decisions, it is something worse than ridiculous to hear men of 
respectable standing attempting to nullify the law of nations, and 
declare the Supreme Court of the United States in error, because, 



810 THE THIRTY-NINTH CONGRESS. 

as the Constitution forbids it, the States could not go out of the 
Union in fact. A respectable gentleman was lately reciting this 
argument, when he suddenly stopped and said : ' Did you hear of 
that atrocious murder committed in our town? A rebel delibe- 
rately murdered a Government official.' The person addressed 
said, ' I think you are mistaken.' ' How so ? I saw it myself.' 
( You are wrong ; no murder was or could be committed, for the 
law forbids it.' 

" The theory that the rebel States, for four years a separate 
power and without representation in Congress, were all the time 
here in the Union, is a good deal less ingenious and respectable 
than the metaphysics of Berkeley, which proved that neither the 
world nor any human being was in existence. If this theory 
were simply ridiculous it could be forgiven; but its effect is 
deeply injurious to the stability of the nation. I can not doubt 
that the late Confederate States are out of the Union to all in- 
tents and purposes for which the conqueror may choose so to con- 
sider them. 

Mr. Stevens further maintained that the rebel States should be 
adjudged out of the Union on the ground of estoppel. " They 
are estopped," said he, " both by matter of record and matter 
in pais. One of the first resolutions passed by seceded South 
Carolina in January, 1861, is as follows: 

" Resolved, unanimously, That the separation of South Carolina from the 
Federal Union is final, and she has no further interest in the Constitution 
of the United States; and that the only appropriate negotiations between 
her and the Federal Government are as to their mutual relations as foreign 
States." 

" Similar resolutions appear upon all their State and Confed- 
erate Government records. The speeches of their members of 
Congress, their generals and executive officers, and the answers 
of their Government to our shameful suings for peace, went upon 
the defiant ground that no terms would be offered or received 
except upon the prior acknowledgment of the entire and per- 
manent independence of the Confederate States. After this, to 
deny that we have a right to treat them as a conquered bellig- 
erent, severed from the Union in fact, is not argument but mock- 
ery. Whether it be our interest to do so is the only question 
hereafter and more deliberately to be considered. 

" But suppose these powerful but now subdued belligerents, in- 



RECONSTRUCTION. 811 

stead of being out of the Union, are merely destroyed, and are 
now lying about, a dead corpse, or with animation so suspended 
as to be incapable of action, and wholly unable to heal them- 
selves by any unaided movements of their own. Then they may 
fall under the provision of the Constitution which says, "the 
United States shall guarantee to every State in the Union a re- 
publican form of government." Under that power, can the judi- 
ciary, or the President, or the commander-in-chief of the army, 
or the Senate or House of Representatives, acting separately, 
restore them to life and readmit them into the Union ? I insist 
that if each acted separately, though the action of each was iden- 
tical with all the others, it would amount to nothing. Nothing 
but the joint action of the two houses of Congress and the con- 
currence of the President could do it. If the Senate admitted 
their Senators, and the House their members, it would have no 
effect on the future action of Congress. The Fortieth Congress 
might reject both. Such is the ragged record of Congress for 
the last four years." 

He cited a decision of the Supreme Court to show that " it 
rests with Congress to decide what government is the established 
one in a State," and then remarked: "But Congress does not 
mean the Senate, or the House of Representatives, and President, 
all acting severally. Their joint action constitutes Congress. 
Hence a law of Congress must be passed before any new State 
can be admitted or any dead ones revived. Until then, no mem- 
ber can be 'lawfully admitted into either house. Hence, it ap- 
pears with how little knowledge of constitutional law each branch 
is urged to admit members separately from these destroyed 
States. The provision that "each house shall be the judge of 
the elections, returns, and qualifications of its own members," 
has not the most distant bearing on this question. Congress 
must create States and declare when they are entitled to be rep- 
resented. Then each house must judge whether the members 
presenting themselves from a recognized State possesses the requi- 
site qualifications of age, residence, and citizenship, and whether 
the election and returns are according to law. The houses sep- 
arately can judge of nothing else. 

" It is obvious from all this, that the first duty of Congress is 
to pass a law declaring the condition of these outside or defunct 
States, and providing proper civil government for them. Since 



312 THE THIRTY-NINTH CONGRESS. 

the conquest, they have been governed by martial law. Military 
rule is necessarily despotic, and ought not to exist longer than is 
absolutely necessary. As there are no symptoms that the people 
of these provinces will be prepared to participate in constitutional 
government for some years, I know of no arrangement so proper 
for them as territorial government. There they can learn the 
principles of freedom and eat the fruit of foul rebellion. Under 
such governments, while electing members to the territorial leg- 
islatures, they will necessarily mingle with those to whom Con- 
gress shall extend the right of suffrage. In territories Congress 
fixes the qualifications of electors, and I know of no better 
place nor better occasion for the conquered rebels and the con- 
queror to practice justice to all men and accustom themselves to 
make and obey equal laws." 

Mr. Stevens proceeded to specify amendments to the Constitu- 
tion which should be made before the late rebel States " would be 
capable of acting in the Union." The first of those amendments 
would be to change the basis of representation among the States 
from federal numbers to actual voters. After explaining the 
operation of this amendment, he depicted the consequences of 
readmitting the Southern States without this guarantee. " With 
the basis unchanged," said he, " the eighty-three Southern mem- 
bers, with the Democrats that will in the best of times be elected 
from the North, will always give them the majority in Congress 
and in the Electoral College. They will, at the very first elec- 
tion, take possession of the White House and the halls of Con- 
gress. I need not depict the ruin that would follow. Assump- 
tion of the rebel debt or repudiation of the Federal debt would 
be sure to follow ; the oppression of the freedmen, the reamend- 
ment of their State constitutions, and the reestablishment of 
slavery Avould be the inevitable result." 

Mr. Stevens thus set forth the importance of a proposed amend- 
ment to allow Congress to lay a duty on exports : " Its impor- 
tance can not well be overstated. It is very obvious that for 
many years the South will not pay much under our internal rev- 
enue laws. The only article on which we can raise any consid- 
erable amount is cotton. It will be grown largely at once. With 
ten cents a pound export duty, it would be furnished cheaper to 
foreign markets than they could obtain it from any other part 
of the world. The late war has shown that. Two million bales 



RECONSTRUCTION. 8*13 

exported, at five hundred pounds to the bale, would yield $100,- 
000,000. This seems to be the chief revenue we shall ever derive 
from the South. Besides, it would be a protection to that amount 
to our domestic manufactures. Other proposed amendments — to 
make all laws uniform, to prohibit the assumption of the rebel 
debt — are of vital importance, and the only thing that can pre- 
vent the combined forces of copperheads and secessionists from 
legislating against the interests of the Union whenever they may 
obtain an accidental majority. 

" But this is not all that we ought to do before these inveterate 
rebels are invited to participate in our legislation. We have 
turned, or are about to turn, loose four million slaves, without a 
hut to shelter them or a cent in their pockets. The infernal 
laws of slavery have prevented them from acquiring an education, 
understanding the commonest laws of contract, or of managing 
the ordinary business of life. This Congress is bound to provide 
for them until they can take care of themselves. If we do not 
furnish them with homesteads, and hedge them around with pro- 
tective laws; if we leave them to the legislation of their late 
masters, we had better have left them in bondage. Their condi- 
tion would be worse than that of our prisoners at Andersonville. 
If we fail in this great duty now, when we have the power, we 
shall deserve and receive the execration of history and of all 
future ages. 

"Two things are of vital importance: 1. So to establish a 
principle that none of the rebel States shall be counted in any 
of the amendments of the Constitution until they are duly ad- 
mitted into the family of States by the law-making power of their 
conqueror. For more than six months the amendment of the 
Constitution abolishing slavery has been ratified by the Legisla- 
tures of three-fourths of the States that acted on its passage by 
Congress, and which had Legislatures, or which were States ca- 
pable of acting, or required to act, on the question. 

" I take no account of the aggregation of whitewashed rebels, 
who, without any legal authority, have assembled in the capitals 
of the late rebel States and simulated legislative bodies. Nor do 
I regard with any respect the cunning by-play into which they 
deluded the Secretary of State by frequent telegraphic announce- 
ments that ' South Carolina had adopted the amendment/ ' Ala- 
bama has adopted the amendment, being the twenty-seventh State/ 



314 THE THIRTY-NINTH CONGRESS. 

etc. This was intended to delude the people and accustom Con- 
gress to hear repeated the names of these extinct States as if they 
were alive, when, in truth, they have now no more existence than 
the revolted cities of Latium, two-thirds of whose people were 
colonized, and their property confiscated, and their rights of citi- 
zenship withdrawn by conquering and avenging Rome." 

A second thing of vital importance to the stability of this re- 
public, Mr. Stevens asserted to be " that it should now be sol- 
emnly decided what power can revive, recreate, and reinstate these 
provinces into the family of States, and invest them with the 
rights of American citizens. It is time that Congress should 
assert its sovereignty, and assume something of the dignity of a 
Roman senate. It is fortunate that the President invites Con- 
gress to take this manly attitude. After stating, with great 
frankness, in his able message, his theory — which, however, is 
found to be impracticable, and which, I believe, very few now 
consider tenable — he refers the whole matter to the judgment of 
Congress. If Congress should fail firmly and wisely to discharge 
that high duty, it is not the fault of the President." 

Mr. Stevens closed his speech by setting the seal of reprobation 
upon a doctrine which is becoming too fashionable, that " this is 
a white man's Government." He uttered a severe rebuke to 
those who thus " mislead and miseducate the public mind." 

There were some Republicans in Congress who disagreed with 
Mr. Stevens in his theory of the condition of the late rebel States, 
yet no one ventured immediately, to use a contemporary expression, 
" to take the Radical bull by the horns." 

At length, three days afterward, Mr. Raymond, as a represent- 
ative of the " Conservatives," ventured a reply. He thus set 
forth his theory as in opposition to that of Mr. Stevens : " I can 
not believe that these States have ever been out of the Union, or 
that they are now out of the Union. I can not believe that they 
ever have been, or are now, in any sense a separate power. If 
they were, sir, how and when did they become so? They were 
once States of this Union — that every one concedes; bound to 
the Union and made members of the Union by the Constitution 
of the United States. If they ever went out of the Union, it was 
at some specific time and by some specific act. Was it by the 
ordinance of secession? I think we all agree that an ordinance 
of secession passed by any State of this Union is simply a nullity, 



RECONSTRUCTION. 315 

because it encounters in its practical operation the Constitution 
of the United States, which is the supreme law of the land. It 
could have no legal, actual force or validity. It could not oper- 
ate to effect any actual change in the relations of the States adopt- 
ing it to the National Government, still less to accomplish the 
removal of that State from the sovereign jurisdiction of the Con- 
stitution of the United States. 

" Well, sir, did the resolutions of these States, the declarations 
of their officials, the speeches of members of their Legislatures, 
or the utterances of their press accomplish the result? Certainly 
not. They could not possibly work any change whatever in the 
relations of these States to the General Government. All their 
ordinances and all their resolutions were simply declarations of a 
purpose to secede. Their secession, if it ever took place, certainly 
could not date from the time when their intention to secede was 
first announced. After declaring that intention, they proceeded 
to carry it into effect. How? By war. By sustaining their 
purpose by arms against the force which the United States 
brought to bear against it. Did they sustain it? Were their 
arms victorious ? If they were, then their secession was an ac- 
complished fact; if not, it was nothing more than an abortive 
attempt, a purpose unfulfilled. This, then, is simply a question 
of fact, and we all know what the fact is. They did not succeed. 
They failed to maintain their ground by force of arms ; in other 
words, they failed to secede. 

" But the gentleman from Pennsylvania [Mr. Stevens] insists 
that they did secede, and that this fact is not in the least affected 
by the other fact that the Constitution forbids secession. He says 
that the law forbids murder, but that murders are, nevertheless, 
committed. But there is no analogy between the two cases. If 
secession had been accomplished ; if these States had gone out, and 
overcome the armies that tried to prevent their going out, then 
the prohibition of the Constitution could not have altered the fact. 
In the case of murder the man is killed, and murder is thus com- 
mitted in spite of the law. The fact of killing is essential to the 
committal of the crime, and the fact of going out is essential to 
secession. But in this case there was no such fact. I think I 
need not argue any further the position that the rebel States have 
never for one moment, by any ordinances of secession, or by any 
successful war, carried themselves beyond the rightful jurisdiction 



316 THE THIETT-JVIJVTH CONGRESS. 

of the Constitution of the United States. They have interrupted 
for a time the practical enforcement and exercise of that jurisdic- 
tion ; they rendered it impossible for a time for this Government 
to enforce obedience to its laws ; but there has never been an hour 
when this Government, or this Congress, or this House, or the 
gentleman from Pennsylvania himself, ever conceded that those 
States were beyond the jurisdiction of the Constitution and laws 
of the United States." 

Referring to the citation of authorities made by Mr. Stevens, 
Mr. Raymond maintained that they did not lend the " slightest 
countenance to the inference which was drawn from them." 

In reply to the theory maintained by Mr. Stevens, that States 
forfeited their State existence by the fact of rebellion, Mr. Ray- 
mond said : " I do not see how there can be any such forfeiture 
involved or implied. The individual citizens of those States 
went into the rebellion. They thereby incurred certain penalties 
under the laws and Constitution of the United States. What the 
States did was to endeavor to interpose their State authority 
between the individuals in rebellion and the Government of the 
United States, which assumed, and which would carry out the 
assumption, to declare those individuals traitors for their acts. 
The individuals in the States who were in rebellion, it seems to 
me, were the only parties who, under the Constitution and laws 
of the United States, could incur the penalties of treason. I 
know of no law, I know of nothing in the Constitution of the 
United States, I know of nothing in any recognized or established 
code of international law, which can punish a State as a State 
for any act it may perform. It is certain that our Constitution 
assumes nothing of the kind. It does not deal with States, ex- 
cept in one or two instances, such as elections of members of 
Congress and the election of electors of President and Vice- 
President. 

"Indeed, the main feature which distinguishes the Union un- 
der the Constitution from the old Confederation is this : that 
whereas the old Confederation did deal with States directly, 
making requisitions upon them for supplies and relying upon 
them for the execution of its laws, the Constitution of the United 
States, in order to form a more perfect Union, made its laws 
binding on the individual citizens of the several States, whether 
living in one State or in another. Congress, as the legislative 



RECONSTRUCTION. 317 

branch of this Government, enacts a law which shall be operative 
upon every individual within its jurisdiction. It is binding upon 
each individual citizen, and if he resists it by force, he is guilty 
of a crime, and is punished accordingly, any thing in the consti- 
tution or laws of his State to the contrary notwithstanding. But 
the States themselves are not touched by the laws of the United 
States or by the Constitution of the United States. A State can 
not be indicted; a State can not be tried; a State can not be 
hung .for treason. The individuals in a State may be so tried 
and hung, but the State as an organization, as an organic mem- 
ber of the Union, still exists, whether its individual citizens com- 
mit treason or not." 

Mr. Raymond subsequently cited some of the consequences 
which he thought must follow the acceptance of the position as- 
sumed by Mr. Stevens. " If," said Mr. Raymond, " as he asserts, 
we have been waging war with an independent Power, with a 
separate nation, I can not see how we can talk of treason in con- 
nection with our recent conflict, or demand the execution of Davis 
or any body else as a traitor. Certainly if we were at war with 
any other foreign Power, we should not talk of the treason of 
those who were opposed to us in the field. If we were engaged 
in a war with France, and should take as prisoner the Emperor 
Napoleon, certainly we could not talk of him as a traitor or as 
liable to execution. I think that by adopting any such assump- 
tion as that of the honorable gentleman, we surrender the whole 
idea of treason and the punishment of traitors. I think, more- 
over, that we accept, virtually and practically, the doctrine of 
State sovereignty, the right of a State to withdraw from the 
Union, and to break up the Union at its own will and pleasure. 

" Another of the consequences of this doctrine, as it seems to 
me, would be our inability to talk of loyal men in the South. 
Loyal to what? Loyal to a foreign, independent Power, as the 
United States would become under those circumstances? Cer- 
tainly not. Simply disloyal to their own Government, and 'de- 
serters, or whatever you may choose to call them, from that to 
which they would owe allegiance, to a foreign and independent 
State. 

"Now, there is another consequence of the doctrine which I 
shall not dwell upon, but simply suggest. If that confederacy 
was an independent Power, a separate nation, it had the right to 



318 THE THIETT-JVIJVTH CONGRESS. 

contract debts; and we, having overthrown and conquered that 
independent Power, according to the theory of the gentleman 
from. Pennsylvania, would become the successors, the inheritors, 
of its debts and assets, and we must pay them." 

Mr. Raymond set forth his* theory of the conditions and rela- 
tions of the late rebel States in the following language : " I cer- 
tainly do not think these States are to be dealt with by us as 
provinces — as simply so much territory — held to us by no other 
ties than those of conquest. I think we are to deal with them as 
States having State governments, still subject to the jurisdiction 
of the Constitution and laws of the United States, still under the 
constitutional control of the National Government; and that in 
our dealings with them we are to be guided and governed, not 
simply by our sovereign will and pleasure as conquerors, but by 
the restrictions and limitations of the Constitution of the United 
States, precisely as we are restrained and limited in our dealings 
with all other States of the American Union." 

In answer to the question how we are to deal with the late 
rebel States, Mr. Raymond remarked : " I think we have a full 
and perfect right to require certain conditions in the nature of 
guarantees for the future, and that right rests, primarily and 
technically, on the surrender we may and must require at their 
hands. The rebellion has been defeated. A defeat always im- 
plies a surrender, and, in a political sense, a surrender implies 
more than the transfer of the arms used on the field of battle. 
It implies, in the case of civil war, a surrender of the principles 
and doctrines, of all the weapons and agencies, by which the war 
has been carried on. The military surrender was made on the 
field of battle, to our generals, as the agents and representatives of 
the Commander-in-chief of the armies of the United States. 

" Now, there must be at the end of the war, a similar surrender 
on the political field of controversy. That surrender is due as an 
act of justice from the defeated party to the victorious party. It 
is due, also, and we have a right to exact it, as a. guarantee for 
the future. "Why do we demand the surrender of their arms by 
the vanquished in every battle? We do it that they may not 
renew the contest. Why do we seek, in this and all similar 
cases, a surrender of the principles for which they fought? It is 
that they may never again be made the basis of controversy and 
rebellion against the Government of the United States. 



BECOJYSTEUCTIOJV. 319 

"Now, what are those principles which should be thus sur- 
rendered ? The principle of State sovereignty is one of them. It 
was the corner-stone of the rebellion — at once its animating 
spirit and its fundamental basis. Deeply ingrained as it was in 
the Southern heart, it must be surrendered. The ordinances in 
which it was embodied must not only be repealed, the principle 
itself must be abandoned, and the ordinances, so far as this war 
is concerned, be declared null and void, and that declaration must 
be embodied in their fundamental constitutions." 

The speech was here interrupted by Mr. Bingham, who insisted 
that the adoption of the principle in the State constitutions would 
not be sufficient guarantee. Adoption in the Constitution of the 
United States was essential to its permanent effective force. 

Mr. Raymond thought the Constitution of the United States as 
plain as possible in its declaration against the doctrine of State 
sovereignty. If any more explicit denial could be got into the 
Constitution, he would favor it. 

" Another thing," said Mr. Raymond, " to be surrendered by 
the defeated rebellion is the obligation to pay the rebel war debt. 
We have the right to require this repudiation of their debt, 
because the money represented by that debt was one of the 
weapons with which they carried on the war against the Govern- 
ment of the United States. 

" There is another thing which we have the right to require, 
and that is the prohibition of slavery. We have the right to re- 
quire them to do this, not only in their State constitutions, but in 
the Constitution of the United States. And we have required it, 
and it has been conceded. They have also conceded that Congress 
may make such laws as may be requisite to carry that prohibition 
into eifect, which includes such legislation as may be required to 
secure for them protection of their civil and personal rights — 
their ' right to life, liberty, and the pursuit of happiness.' " 

Mr. Spalding having inquired whether there was any limit to 
the right to make these requisitions, except the good judgment of 
Congress, Mr. Raymond answered: 

" My impression is that these requisitions are made as a part 
of the terms of surrender which we have a right to demand at the 
hands of the defeated insurgents, and that it belongs, therefore, to 
the President, as Commander-in-chief of the army and navy of 



320 THE THIRTY-NINTH CONGRESS. 

* 

the United States, to make theni, and to fix the limit as to what 
they shall embrace." 

By way of setting forth the opinions of the " Radicals " in as 
strong a light as possible, Mr. Raymond said : " It may be for the 
welfare of this nation that we shall cherish toward the millions 
of our people lately in rebellion feelings of hatred and distrust ; 
that we shall nurse the bitterness their infamous treason has 
naturally and justly engendered, and make that the basis of our 
future dealings with them. Possibly we may best teach them the 
lessons of liberty, by visiting upon them the worst excesses of des- 
potism. Possibly they may best learn to practice justice toward 
others, to admire and emulate our republican institutions, by suf- 
fering at our hands the absolute rule we denounce in others. It 
may be best for us and for them that we discard, in all our deal- 
ings with them, all the obligations and requirements of the Con- 
stitution, and assert as the only law for them the unrestrained 
will of conquerors and masters." 

In contrast with this, he placed what he supposed to be a dif- 
ferent policy : " I would exact from them, or impose upon them 
through the constitutional legislation of Congress, and by enlarg- 
ing and extending, if necessary, the scope and powers of the 
Freedmen's Bureau, proper care and protection for the helpless 
and friendless freedmen, sp lately their slaves. I would exercise 
a rigid scrutiny into the character and loyalty of the men whom 
they may send to Congress, before I allowed them to participate 
in the high prerogative of legislating for the nation. But I 
would seek to allay rather than stimulate the animosities and 
hatred, however just they may be, to which the war has given 
rise. But for our own sake as well as for theirs, I would not 
visit upon them a policy of confiscation which has been discarded 
in the policy and practical conduct of every civilized nation on 
the face of the globe." 

Mr. Raymond having closed his speech, it was moved that the 
Committee of the Whole should rise, but the motion was with- 
drawn to allow Mr. Jenckes, of Rhode Island, five minutes for 
reply. He said: "The gentleman states, and properly, that 
every act or ordinance of secession was a nullity. Undoubtedly 
it was. Upon that question of law we do not disagree. But he 
seems to me to overlook entirely what was the state of facts from 
the time of the passage of the ordinances of secession until the 



RECONSTRUCTION. 321 

time of the surrender of Lee's army. During that period what 
were the relations which all that territory — I will not use the 
term States, but all that territory — between the Potomac and the 
Rio Grande sustained to the Government of the United States? 
Who could see States there for any purpose for which legislation 
was required by the Constitution of the United States ? 

" At the time of the passage of the ordinance of secession, 
States were organized there, in existence, in action, known to the 
Constitution and the constitutional authorities under it. But 
were they loyal ? Did they obey the Constitution of the United 
States ? This is a question that needs no answer other than that 
which is conveyed to every mind by the recollection of the last 
four years of war, with their expenditure of treasure and blood. 
Those States were not destroyed, in the technical language of the 
j aw — they simply died out. As their Governors passed out of 
office, as the terms of their legislatures expired, who knew those 
facts ? None but themselves. And yet, behind this grand cordon 
of armies, stretching from here to the Eio Grande, there were 
States in existence, organized as States, but States in rebellion, 
occupying the territory belonging to the people of the United 
States. They were not acting in concert with this Government, 
but against it. That, Mr. Chairman, is a matter of fact. My 
eyes are not dimmed or blinded by the parchment upon which 
constitutions or laws are written. I, like the men who carried 
the bayonets and planted the cannon, recognize the fact that was 
before us during all this time. There was a state of rebellion. 
There were in that part of our territory no States known to our 
Constitution or the laws that we enact, or the officers whose duty 
it is to enforce those laws. 

" I recognize, too, the next fact. Bear in mind, I am simply 
stating now what I conceive to be the facts. The question as to 
what may be the law can be reserved for discussion on another 
occasion. I recognize fully the duties of the Executive. And it 
was the duty of the President of the United States, as the head 
of the civil and military power of this great republic— not ' em- 
pire ;' God forbid that this country should ever be so designated 
with applause or even with toleration— to beat down armed oppo- 
sition to it, whether it came from a foreign power or from domes- 
tic insurrection. That was the duty of the President, and he 
recognized it; and it was not the duty of any one in this Con- 
21 



322 THE THIRTY-NINTH CONGRESS. 

gress to gainsay it. It was written on the face of the Constitution 
that the President was to see that the laws should be faithfully 
executed, and the power of this republic maintained, and he 

did so. 

" The next fact — the fact which seems to me to be the one most 
pertinent for consideration now — is that the military power which 
was opposed to this Government has been destroyed. It was the 
duty of the Executive to see that this was done, and to report to 
the Congress of the United States that it has been done. But 
what then? Then there comes the third question of fact, inti- 
mately connected with the last, and hardly separable from it, be- 
cause it requires the immediate action of the Executive and of 
Congress. All the power that existed in the shape of Confede- 
rated States behind rebel bayonets and fortifications has fallen to 
the earth. The territory which these States in rebellion occu- 
pied was the property of the people of the United States, and 
never could be taken from us. I hold it to be a question of pub- 
lic law, worthy of consideration by the representatives of the 
American people, by the President and the Administration gene- 
rally, to ascertain what existed in the shape of civil constitutions 
and laws behind the military government that has been over- 
thrown. I hesitate not to say, here or elsewhere, that the Exec- 
utive of this Government has done his duty in this matter. All 
conquering nations, when they overcome a rebellious people by 
overthrowing their military power, look, as did the Government 
of Great Britain when it had overcome the mutiny in India, to 
see what government of a civil kind has existed or may exist 
from custom among the people who are conquered. I see no 
reason in this view to discriminate between the argument of the 
gentleman from Pennsylvania and the argument of the gentle- 
man from New York. It seems to me, that if they will look at 
the particular questions which are now before us, and which 
require our action, the differences would be in terms and not in 
substance." 

The people of the predominant party generally acquiesced in 
the opinion of Mr. Jenckes, as expressed in the conclusion of his 
remarks as above presented. They conceived that the difference 
between the various views of the whole question was " one of de- 
tails and not of essence." The question of reconstruction was 
purely practical. All shades of opinion in the Republican party 



RECONSTRUCTION. 223 

blended in this : that the States in question were not to be restored 
until satisfactory pledges were given to the United States. All 
speculation or attempt at argument in reference to their abstract 
condition was consequently superfluous — " a pernicious abstrac- 
tion^' in the language of Mr. Lincoln. 

If some were not prepared to accept the deductions of Mr. Ste- 
vens, yet accepting the logic of Mr. Raymond, they would be 
carried almost as far. The latter held that the citizens of those 
States were defeated insurgents who must submit to any condi- 
tions of surrender imposed by the victorious commander. Certain 
concessions could be rightfully demanded as parts of their sur- 
render and conditions of their restoration. Their acquiescence 
had been required in a constitutional amendment affecting the 
great social and industrial interests of Southern society. After 
this none could deny the right, whatever might be the expediency, 
of requiring their assent to other amendments bearing upon the 
political structure of the Southern States. 

Some of the predominant party were willing to stop short in 
their demands upon the rebel States with requiring acceptance of 
the emancipation amendment, repudiation of the rebel debt, legal 
protection of freedmen, and revocation of the ordinances of seces- 
sion. The majority, however, were disposed to go still further, 
and demand other conditions and guarantees which should be- 
come a part of the fundamental law of the land. This was the 
practical work of reconstruction for which the Joint Committee 
of Fifteen was preparing the way, and upon which Congress was 
soon to enter. 



S%4 THE THIRTY-NINTH CONGRESS. 



CHAPTER XIV. . 

THE BASIS OF REPRESENTATION— IN THE HOUSE. 

First work of the Joint Committee — The joint resolution proposing a 

CONSTITUTIONAL AMENDMENT — Mr. STEVENS' REASONS FOR SPEEDY ACTION — 

Protracted discussion commenced — Objections to the bill by Mr. 
Eogers — Defense by Mr. Conkling— Two other modes — How States 
might evade the Law — Not a finality — Wisconsin and South Caro- 
lina — Amendment for Female Suffrage proposed — Orth on Indiana 
and Massachusetts — Obscuration of- the sun — More Kadical remedy 

DESIRED— A KENTUCKIAN GRATIFIED— CITATIONS FROM THE CENSUS — PRE- 
MIUM for Treason— White Slaves — Power to amend well-nigh ex- 
hausted — Objections to the Suffrage Basis — "Race" and "Color" am- 
biguous — Condition of the Question — PvEcommitted — Final passage. 

ALTHOUGH the Joint Committee of Fifteen were assiduous 
in their attention to the work assigned them, it was not 
until the 22d of January, 1866, that they were ready to 
make a partial report and recommend a practical measure for the 
consideration of Congress. 

On that day Mr. Fessenden, of the Senate, and Mr. Stevens, 
of the House of Representatives, brought before those bodies re- 
spectively a partial report from the committee, recommending the 
passage of the following joint resolution : 

Resolved by the Senate and House of Representatives of the United States of 
America in Congress asse?nbled, (two-thirds of both houses concurring,) That 
the following article be proposed to the Legislatures of the several States as 
an amendment to the Constitution of the United States, which, when ratified 
by three-fourths of the said Legislatures, shall be valid as part of said Con- 
stitution, namely : 

Article — . Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union according to 
their respective numbers, counting the whole number of persons in each 
State, excluding Indians not taxed: Provided, That whenever the elective 
franchise shall be denied or abridged in any State on account of race or 
color, all persons of such race or color shall be excluded from the basis of 
representation. 



BdSIS OF REPRESENTATION. 325 

In the Senate this subject was laid over, and was not reached 
for several days, as the Freednien's Bureau Bill was then under 
discussion. 

The subject was pressed upon the attention of the House for 
immediate action. Mr. Stevens had no intention to make a 
speech, since the > question had been under consideration by every 
member for the last six weeks. He remarked, however : " There 
are twenty-two States whose Legislatures are now in session, some 
of which will adjourn within two or three weeks. It is very de- 
sirable, if this amendment is to be adopted, that it should go forth 
to be acted upon by the Legislatures now in session. It proposes 
to change the present basis of representation to a representation 
upon all persons, with the proviso that wherever any State excludes 
a particular class of persons from the elective franchise, that State 
to that extent shall not be entitled to be presented in Congress. 
It does not deny to the States the right to regulate the elective 
franchise as they please ; but it does say to a State, ' If you ex- 
clude from the right of suffrage Frenchmen, Irishmen, or any par- 
ticular class of people, none of that class of persons shall be 
counted in fixing your representation in this House. You may 
allow them to vote or not, as you please ; but if you do allow 
them to vote, they will be counted and represented here ; while 
if you do not allow them to vote, no one shall be authorized to 
represent them here; they shall be excluded from the basis of 
representation.' " 

As indicative of the apparent harmony of sentiments prevailing 
on the question, Mr. Wilson said that the Committee on the 
Judiciary had determined to report a proposition substantially 
identical with that offered by Mr. Stevens. 

It was deemed important to have the joint resolution passed 
as soon as possible, that it might go before the State Legislatures 
then in session for their ratification before their adjournment. 
The member who had the measure in charge desired, after one or 
two speeches on either side, to have the question put to vote, and 
have the resolution passed before the sun went down. Such 
action, however, seemed to the House too hasty, and a discussion 
of the measure was entered upon, which ran through many days. 
Mr. Eogers, a member of the committee, offered a minority 
report, and addressed the House in opposition to the proposed 
amendment of the Constitution. He thus presented his view of 



326 THE THIRTY-NINTH CONGRESS. 

the object of the measure proposed : " It appears to have in its 
body, in its soul, and in its life only one great object and aim ; 
that is, to debase and degrade the white race, and to place upon 
a higher footing than the white men are placed, under the Con- 
stitution, this African race. It is a proposition to change the 
organic law of the land with regard to one of the fundamental 
principles which was laid down by our fathers at the formation 
of the Constitution as an axiom of civil and political liberty, that 
taxation and representation should always go together. If gentle- 
men will examine this proposed amendment of the Constitution, 
they will see that it is in violation of that great doctrine which 
was proclaimed by the fathers of the republic when they enun- 
ciated the Declaration of Independence, and protested against 
the tyranny and despotism of England, because she attempted to 
tax the people of the colonies without allowing them representa- 
tion in the councils of the kingdom. The amendment now under 
consideration proposes the very same identical thing that the 
Parliament of England proposed when it attempted to inflict 
upon the American colonies taxation without allowing the people 
of the colonies to have representatives in the Parliament of Eng- 
land to represent them ujjon the question whether they should be 
taxed by the mother country or not. 

" The first objection I have to the passage of this joint resolution 
is, that it is violative of the main principle upon which the Revo- 
lutionary War was conducted, and which induced our fathers to 
enter the harbors of Boston and New York and throw the tea 
into the water. Because the British people attempted to inflict 
taxation upon them with regard to that tea, and refused to allow 
them representation in the Parliament of England, our fathers 
rebelled against their mother country. What has come over the 
fortunes and happiness of the people of this country that the 
great principle of the Constitution should now be violated, that 
principle for which our fathers spilt their blood to sustain, the 
great axiom of American liberty, that taxation never should be 
imposed upon a people unless that people have a corresponding 
representation? If this amendment to the Constitution should 
be carried into effect, it will prevent any State, North or South, 
from allowing qualified suffrage to its colored population, except 
upon forfeiture of representation ; and if qualified suffrage should 
be allowed to the colored population of any State in this Union, 



BASIS OF REPRESENTATION. 827 

on account of race of color, and but one single negro should be 
deprived of his vote by failure to meet the requirements of the 
qualification imposed, that State would be denied representation 
for the whole of that colored population — men, women, and 
children. 

" More than that : this bill attempts, in an indirect manner, to 
have passed upon, by the Legislatures of the different States, a 
question which the party in power dare not boldly and openly 
meet before the people o#this country, because there can be but 
one object lying at the foundation of this bill— an object which 
has been explained and expatiated upon in this House — and that 
object, as I have said, is, through the Federal power, to force the 
States to adopt unqualified negro suffrage, by holding over them 
the penalty of being deprived of representation according to 

population. 

" But I object to this joint resolution upon another ground— 
upon the same ground that I objected to the passage of the 
Negro Suffrage Bill for the District of Columbia— without con- 
sulting the people. It has been said in this country that all 
power emanates from the people. And I say that to submit 
this grave question to the consideration and decision of partisan 
Legislatures in the different States— Legislatures which were 
elected without any regard to tins question— is violative of the 
great principles which lie at the foundations of the liberties of 
this country ; that no organic law, affecting the whole people, 
should be passed before submitting it to the people for their rati- 
fication or rejection. Now this joint resolution proposes simply 
to submit this amendment for ratification to the Legislatures of 
the different States. The Legislatures are not the States; the 
Legislatures are not the people in their sovereign capacity; Leg- 
islatures are not the source from which all power emanates. But 
the people, the sacred people, in the exercise of their sovereign 
power, either at the ballot-box or in conventions, are the only 
true and proper forum to which such grave and serious questions 
should be submitted. 

" I maintain that the Constitution of the United States, as it 
now exists, is not as liberal toward the Southern States, now that 
slavery has been abolished, as it was before the abolition of 
slavery. Why, sir, in the days of the past, under our Constitu- 
tion, the Southern States have been allowed a representation for 



328 THE THIRTY-NINTH CONGRESS. 

a population that was not classed as citizens or people ; they were 
allowed a representation for people who had no political status in 
the State; persons who were not entitled even to exercise the 
right of coming into a court of civil justice as a plaintiff or 
defendant in the prosecution or defense of a suit. 

"Now, after the raging fires of war have swept from the 
domain of every State in the South the pernicious institution of 
slavery; after the result has been that every slave has received 
his freedom ; after the slaves have gaiifed more by the success of 
this war than any other class of people in the United States, white 
men, men who are the representatives of the white race, come 
here proposing to compel the States, on pain of being deprived of 
a portion of their representation, to allow all the negroes within 
their limits to vote, without regard to qualification or any thing 
else, while under the same provision the State may, by its organic 
law, impose qualifications and conditions upon the exercise of the 
right of suffrage by the white population. The proposed amend- 
ment to the Constitution undertakes to consolidate the power in 
the Federal Government. It throws out a menace to the States, 
and the inevitable result of the passage would be to induce every 
State in the Union to adopt unqualified negro suffrage, so as not 
to deprive them of the great and inestimable right of representa- 
tion for that class of population in the halls of the legislation of 
the United States." 

Mr. Conkling, also a member of the Reconstruction Committee, 
made an argument in favor of the proposed amendment : " Eman- 
cipation vitalizes only natural rights, not political rights. En- 
franchisement alone carries with it political rights, and these 
emancipated millions are no more enfranchised now than when 
they were slaves. They never had political power. Their mas- 
ters had a fraction of power as masters. But there are no masters 
now. There are no slaves now. The whole relationship in which 
the power originated and existed is gone. Does this fraction of 
power still survive ? If it does, what shall become of it ? "Where 
is it to go? 

"We are told the blacks are unfit to wield even a fraction of 
power, and must not have it. That answers the whole question. 
If the answer be true, it is the end of controversy. There is no 
place, logically, for this power to go, save to the blacks ; if they 
are unfit to have it, the power would not exist. It is a power 



BASIS OF REPRESENTATION. 329 

astray, without a rightful owner. It should be resumed.by the 
whole nation at once. It should not exist; it does not exist. 
This fractional power is extinct. 

" A moral earthquake has turned fractions into units, and units 
into ciphers. If a black man counts at all now, he counts five- 
fifths of a man, not three-fifths. Revolutions have no such frac- 
tions in their arithmetic ; war and humanity join hands to blot 
them out. Four millions, therefore, and not three-fifths of four 
millions, are to be. reckoned in here now, and all these four mill- 
ions are, and arc to be, we are told, unfit for political existence. 

"Did the framers of the Constitution ever dream of this? 
Never, very clearly. Our fathers trusted to gradual and volun- 
tary emancipation, which would go hand in hand with education 
and enfranchisement. They never peered into the bloody epoch 
when four million fetters would be at once melted off in the fires 
of war. They never saw such a vision as we see. Four millions, 
each a Caspar Hauser, long shut up in darkness, and suddenly 
led out into the full flash of noon, and each, we are told, too 
blind to walk, politically. No one foresaw such an event, and so 
no provision was made for it. The three-fifths rule gave the 
slaveholding States, over and above all their just representation, 
eighteen Representatives beside, by the enumeration of 1860. 

" The new situation will enable those States, when relationships 
are resumed, to claim twenty-eight Representatives beside their 
just proportion. Twenty-eight votes to be cast here and in the 
Electoral College for those held not fit to sit as jurors, not fit .to 
testify in court, not fit to be plaintiff in a suit, not fit to approach 
the ballot-box ! Twenty-eight votes to be more or less controlled 
by those who once betrayed the Government, and for those so 
destitute, we are assured, of intelligent instinct as not to be fit 
For free agency ! 

" Shall all this be? Shall four million beings count four mill- 
ions, in managing the affairs of the nation, who are pronounced 
by their fellow-beings unfit to participate in administering gov- 
ernment in the States where they live, or in their counties, towns, 
or precincts ; who are pronounced unworthy of the least and most 
paltry part in local political affairs? Shall one hundred and 
twenty-seven thousand white people in New York cast but one 
vote in this House, and have none but one voice here, while the 
same number of white people in Mississippi have three votes and 



830 TEE TEIRTT-JVUVTE CONGRESS. 

three v,oices? Shall the death of slavery add two-fifths to the 
entire power which slavery had when slavery was living ? Shall 
one white man have as much share in the Government as three 
other white men merely because he lives where blacks outnumber 
whites two to one ? Shall this inequality exist, and exist only 
in favor of those who without cause drenched the land with blood 
and covered it with mourning? Shall such be the reward of 
those who did the foulest and guiltiest act which crimsons the 
annals of recorded time ? No, sir ; not if I can help it." 

Two other modes of meeting the case had been considered by 
the committee, namely : First, To make the basis of representation 
in Congress and the Electoral College consist of sufficiently quali- 
fied voters alone; Second, To deprive the States of the power to 
disqualify or discriminate politically on account of race or color. 
After presenting some reasons why the committee saw proper 
to recommend neither of these plans, Mr. Conkling further argued 
in favor of the proposed amendment : " It contains but one con- 
dition, and that rests upon a principle already imbedded in the 
Constitution, and as old as free government itself. That prin- 
ciple I affirmed in the beginning; namely, that representation 
does not belong to those who have not political existence, but to 
those who have. The object of the amendment is to enforce this 
truth. It therefore provides that whenever any State finds 
within its borders a race of beings unfit for political existence, 
that race shall not be represented in the Federal Government. 
Every State will be left free to extend or withhold the elective 
franchise on such terms as it pleases, and this without losing 
any thing in representation if the terms are impartial as to all. 
Qualifications of voters may be required of any kind — qualifica- 
tions of intelligence, of property, or of any sort whatever, and 
yet no loss of representation shall thereby be suffered. But 
whenever in any State, and so long as a race can be found which 
is so low, so bad, so ignorant, so stupid, that it is deemed neces- 
sary to exclude men from the right to vote merely because they 
belong to that race, in that case the race shall likewise be ex- 
cluded from the sum of Federal power to which the State is 
entitled. If a race is so vile or worthless that to belong to it is 
alone cause of exclusion from political action, the race is not 
to be counted here in Congress." 

Mr. Conkling maintained that the pending proposition com- 



BASIS OF REPRESENTATION. 331 

mended itself for many reasons. " First. It provides for repre- 
sentation coextensive with taxation. I say it provides for this; 
it does not certainly secure it, but it enables every State to secure 
it. It does not, therefore, as the gentleman from New Jersey 
[Mr. Rogers] insists, violate the rule that representation should 
go with taxation. If a race in any State is kept unfit to vote, 
and fit only to drudge, the wealth created by its work ought to 
be taxed. Those who profit by such a system, or such a condition 
of things, ought to be taxed for it. Let them build churches and 
school-houses, and found newspapers, as New York and other 
States have done, and educate their people till they are fit to vote. 
' Fair play,' ' A fair day's wages for a fair day's work,' ' Live and 
let live' — these mottoes, if blazoned over the institutions of a 
State, will insure it against being cursed for any length of time 
with inhabitants so worthless that they are fit only for beasts of 
burden. I have said that the amendment provides for repre- 
sentation going hand in hand with taxation. That is its first 
feature. 

"Second. It brings into the basis both sexes and all ages, and 
so it counteracts and avoids, as far as possible, the casual and 
geographical inequalities of population. 

" Third. It puts every State on an equal footing in the require- 
ment prescribed. 

" Fourth. It leaves every State unfettered to enumerate all its 
people for representation or not, just as it pleases. 

Thus every State has the sole control, free from all interference, 
of its own interests and concerns. No other State, nor the Gene- 
ral Government, can molest the people of any State on the sub- 
ject, or even inquire into their acts or their reasons, but all the 
States have equal rights. If New York chooses to count her 
black population as political persons, she can do so. If she does 
not choose to do so, the matter is her own, and her rights can not 
be challenged. So of South Carolina. But South Carolina shall 
not say, ' True, we have less than three hundred thousand " per- 
sons" in this State, politically speaking, yet we will have, in 
governing the country, the power of seven hundred thousand 
persons.' 

" The amendment is common to all States and equal for all ; 
its operation will, of course, be practically only in the South. No 
Northern State will lose by it, whether the Southern States 



332 THE THIRTY-NINTH CONGRESS. 

extend suffrage to blacks or not. Even New York, in her 
great population, has so few blacks that she could exclude them 
all from enumeration and it would make no difference in her 
representation. If the amendment is adopted, and suffrage re- 
mains confined as it is now, taking the census of 1860 as the 
foundation of the calculation, and the number of Eepresentatives 
as it then stood, the gains and losses would be these : Wisconsin, 
Indiana, Illinois, Michigan, Ohio, Pennsylvania, Massachusetts, 
New Jersey, and Maine would gain one Kepresentative each, and 
New York would gain three ; Alabama, Kentucky, North Caro- 
lina, South Carolina, and Tennessee would each lose one ; Georgia, 
Louisiana, and Virginia would each lose two, and Mississippi 
would lose three." 

On the following day, January 23d, the proposed joint resolu- 
tion came up in the regular order of business. 

Mr. Jenckes, of Rhode Island, feared that a construction might 
be put upon the bill which would be fatal to its efficiency for the 
purposes had in view by its friends. He said : " It says nothing 
about the qualification of property. Suppose this amendment is 
adopted by three-fourths of the States, and becomes a part of the 
fundamental law of the land, and after its adoption the State of 
South Carolina should reinstate the constitution of 1790, striking 
out the .word ' white ' and reestablishing the property qualification 
of fifty acres of land, or town lots, or the payment of a tax, there 
would then be no discrimination of color in the State of South 
Carolina, yet the number of electors would not be enlarged five 
hundred, and the basis of representation would be exactly as it 
is, with the addition of two-fifths of the enfranchised freeclmen. 
A Representative to this House would be reelected by the same 
voting constituency as now, perhaps with the addition of five 
hundred black men in the State. If jt bears this construction, 
and I believe it does, I shall vote against it. 

"If any of the States should establish property qualification 
based upon lands, then the same oligarchy would be enthroned 
on the whole basis of representation, entitled to a larger number 
of Representatives than now in this House, and elected. by a 
slightly enlarged number of qualified electors, giving power more 
firmly to that very aristocracy we have sought to overthrow." 

A number of queries were propounded, several amendments 
proposed, and a considerable desire for discussion expressed, until 



BASIS OF REPRESENTATION. 333 

Mr Stevens, much disappointed at the reception the measure met 
in the House, withdrew the demand for the previous question, and 
left the subject open for unlimited debate. 

Mr Blaine, of Maine, addressed the House, detailing some ob- 
jections to the measure. He said: "While I shall vote for 
the proposition, I shall do so with some reluctance unless it is 
amended, and I do not regret, therefore, that the previous ques- 
tion was not sustained. I am egotistic enough to believe that the 
phraseology of the original resolution, as introduced by me, was 
better than that employed in the pending amendment. The 
phrase < civil or political rights or privileges/ which I employed, 
is broader and more comprehensive than the term < elective fran- 
chise ' for I fear, with the gentleman from Illinois, [Mr. Farns- 
worth] that under the latter phrase the most vicious evasions 
might be practiced. As that gentleman has well said, they might 
make suffrage depend on ownership of fifty acres of land, and then 
prohibit any negro holding real estate; but no such mockery as 
this could be perpetrated under the provisions of the amendment 
as I originally submitted it." 

In relation to taxation, Mr. Blaine remarked : " Now, I contend 
that ordinary fair play-and certainly we can afford fair play 
where it does not cost any thing-calls for this, namely that if 
we exclude them from the basis of representation they should be 
excluded from the basis of taxation. Ever since this Government 
was founded, taxation and representation have always gone hand 
in hand If we shall exclude the principle in this amendment, 
we will be accused of a narrow, illiberal, mean-spirited, and 
money-grasping policy. More than that, we do not gain any 
thino- by it. What kind of taxation is distributed according to 
representation? Direct taxation. Now, we do not have any di- 
rect taxation. There has been but twenty millions of direct tax- 
ation levied for the last fifty years. That tax was levied in 1861, 
and was not collected, but distributed among the States and held 
in the Treasury Department as an offset to the war claims of the 
States; so that, as a matter of fact, we are putting an offensive 
discrimination in this proposition and gaining nothing by it ex- 
cept obloquy." i.i 

Mr Donnelly, of Minnesota, said : " It follows, as a logical con- 
clusion that if men have no voice in the National Government, 
other men should not sit in this hall pretending to represent 



334 THE THIRTY-NINTH CONGRESS. 

them. And it is equally clear that an oppressed. race should not 
lend power to their oppressors, to be used in their name and for 
their destruction. It is a mockery to say that a man's agent shall 
be his enemy, and shall be appointed without his consent and 
against his desire, and by other enemies. 

" In fact, I can not see how any Northern man can vote against 
this measure, unless he wishes to perpetuate an injustice to his 
section, because the effect of it will clearly be to increase the re- 
presentation of the North and decrease that of the South ; and 
this, too, upon a basis of undoubted justice. It means simply 
that those who do not take part in the Government shall not be 
represented in the Government." 

Mr. Donnelly did not, however, regard the proposed amend- 
ment as "a grand panacea for all the ills that affect the nation." 
He would vote for the law, "not as a finality, but as a partial 
step as one of a series of necessary laws." Said he, " When we 
vote for this measure, it must be because we think it right and 
necessary, not that it may furnish us with an excuse for failing 
to do all other right and necessary things expected of us by the 
people. "We must take direct, not sidelong measures. We must 
make laws, not arguments. We must enforce, not induce. 

"To pass this law and then hope that South Carolina, moved 
by the hope of future power, would do justice to the negro, is ab- 
surd. She has 291,300 whites and 412,406 negroes. To pass 
such a law would be for the governing power to divest itself of 
the government and hand it over to a subject and despised caste, 
and that, too, for a faint hope of some future advantage that 
might never be realized under the most favorable circumstances, 
and certainly could never be realized by the aspiring class abdi- 
cating and relinquishing power. The same is true, more or less, 
of all the South. In Mississippi there are 353,901 whites, and 
436,631 negroes; and in all the States the negro vote would be 
large enough to turn the scale against the disloyal party." 

Mr. Sloan, of Wisconsin, thus presented the practical workings 
of the " Constitution as it is : " " Look at the practical operation 
of the question we are discussing to-day. In the State I repre- 
sent there are eight hundred thousand free white people loyal to 
the Constitution, who have done their whole duty in sustaining 
their Government during this terrible war. The bones of our 
soldiers are moldering in the soil of every rebel State. They 



BASIS OF REPRESENTATION. 335 

have stood around our flag in the deadly hail of every battle of 
the war. The State of Wisconsin has six Representatives on this 
floor. South Carolina has three hundred thousand white in- 
habitants, disloyal, who have done all in their power to over- 
throw and destroy the Government, and yet, sir, under the Con- 
stitution as it now stands, the three hundred thousand disloyal 
white inhabitants of South Carolina will exercise as much polit- 
ical power in the Government as the eight hundred thousand 
loyal people of the State of "Wisconsin." 

Mr. Sloan called attention to a proposition which he had sub- 
mitted to the preceding Congress, providing that the right of 
representation should be based upon the right of suffrage — upon 
the numbers allowed the right to vote in the respective States. 

In answer to a supposed objection to this plan, that "there 
might be some inequality in the representation of the respective 
States," he Baid : " We all know that the young men of the old 
State- go out in large numbers to settle in the new States and 
Territories, while the women and children do not emigrate to so 
greal an extent, and hence there would be a larger number of 
voters in the new States in proportion to population than in the 
old. And yet this is a consideration which, in my judgment, 
oughf not to weigh a hair with any member on this floor. It 
would be only a temporary inequality. In the rapidly increasing 
settlement and in the natural increase of population of our new 
States, that inequality would very soon be entirely swept away. 
I believe the difference to-day between Massachusetts and Wis- 
consin would be very slight, if any, so rapid has been the increase 
of our population and the settlement of our State. We are now 
proposing to adopt an amendment to the Constitution which we 
expect to stand for all time, and any temporary inequality which 
could continue but for a few years ought not to have any 
weight." 

Mr. Brooks, of New York, thought that Mr. Stevens would 
better " at the start have named what are States of this Union. 
The opinion of the honorable gentleman himself, that there 
are no States in this Union but those that are now represented 
upon this floor, I know full well ; but he knows as well that the 
President of the United States recognizes thirty-six States of this 
Union, and that it is necessary to obtain the consent of three- 
fourths of those thirty-six States, which number it is not possible 



336 THE THIRTY-NINTH CONGRESS. 

to obtain. He knows very well that if bis amendment should be 
adopted by the Legislatures of States enough, in his judgment, to 
carry it, before it could pass the tribunal of the Executive cham- 
ber it would be obliged to receive the assent of twenty-seven 
States in order to become an amendment to the Constitution." 

Mr. Brooks, in the course of his speech, presented a petition 
from certain ladies of New York, asking an amendment of the 
Constitution, prohibiting the several States from disfranchising 
any of their citizens on the ground of sex. He then proposed 
to amend the joint resolution by inserting the words " or sex " 
after the word " color," so that it would read, " Provided, That 
whenever the elective franchise shall be denied or abridged in 
any State on account of race or color or sex, all persons of such 
race or color or sex shall be excluded from the basis of repre- 
sentation." 

"Is the gentleman in favor of that amendment?" asked Mr. 
Stevens. 

" I am," replied Mr. Brooks, " if negroes are allowed to vote." 

" That does not answer my question," said Mr. Stevens. 

" I suggested that I would move it at a convenient time," said 
Mr. Brooks. 

"Is the gentleman in favor of his own amendment?" Mr. 
Stevens again asked. 

" I am in favor of my own color in preference to any other 
color, and I prefer the white women of my country to the negro," 
was the response of Mr. Brooks, which was followed by applause 
in the galleries. 

Mr. Orth, of Indiana, obtained the floor for the purpose of 
offering an amendment, which he prefaced with the following 
remarks : " My position is that the true principle of representa- 
tion in Congress is that voters alone should form the basis, and 
that each voter should have equal political weight in our Govern- 
ment ; that the voter in Massachusetts should have the same but 
no greater power than the voter in Indiana ; and that the voter 
in Indiana should have the same power, but no greater, than the 
voter in the State of South Carolina. The gentleman from 
Maine, however, states that the census tables will show that by 
the amendment which I desire to offer at this time you will cur- 
tail the representative power of the State of Massachusetts. And 
why? Because he has shown by his figures that although Mas- 



BASIS OF REPRESENTATION. 337 

sachusetts lias a male population of 529,244, her voting popula- 
tion is only 175,487, being a percentage of twenty-nine, whilf 
Indiana, with a white male population of 693,469, has a voting 
population of 280,655, being about forty per cent. Why is this 
difference ? Is it because our voting population is so jnuch greater 
in proportion than the voting population of Massachusetts? Not 
at all. The difference arises from the fact that the State of Mas- 
sachusetts has seen fit to exclude a portion of her citizens from 
the ballot-box. Indiana has done the same thing. Indiana has 
excluded one class of citizens; Massachusetts has excluded an- 
other class. Indiana has seen fit, for reasons best known to her- 
self, to exclude the colored population from the right of suffrage; 
Massachusetts, on the contrary, has seen fit to exclude from the 
ballot-box those of her citizens who can not read or write. "While 
we in Indiana are governed by a prejudice of color, the people of 
Massachusetts, I might say, are governed by a prejudice as re- 
gards ignorance. But here is the difference: under the amend- 
ment that I propose, while Indiana excludes the black man from 
the right to participate in the decisions of the ballot-box, she does 
not ask that the black man shall be represented on this floor. 
On" the contrary, while Massachusetts excludes black and white 
persons who can not read and write, she yet asks that that popu- 
lation excluded from the ballot shall have representation on this 
floor. I regard this as wrong in theory, wrong in principle, and 
injurious to the State which I have the honor to represent, giving 
to Massachusetts a power upon this floor of which my State is 
deprived. Why ? Because the exclusion which drives from the 
ballot-box in Massachusetts a large portion of her citizens, yet 
admits them to representative power on this floor.". 

Mr. Orth's amendment proposed that Representatives should 
" be apportioned among the several States according to the num- 
ber of male citizens over twenty-one years of age, having the 
qualifications requisite for electors of the most numerous branch 
of the State Legislature." There being objection to the recep- 
tion of this amendment under the rules of the House, it could 
not be considered. 

Mr. Chanler, of New York, alluding to Mr. Stevens' desire 

to have the joint resolution passed on the day of its introduction, 

before the sun went down, said : " Sir, this measure, if passed, 

will tend to obscure the sun from which the liberties of this 

22 



838 THE THIRTY-NINTH CONGRESS. 

country derive their nourishment and life, the brilliant orb, the 
Constitution, whose light has spread itself to the farthest ends 
of the earth. The vital principle of that Constitution, the soul 
of its being, is that balance of power between the States which 
insures individual liberty to every citizen of each State, and har- 
mony among all the States of the Union. 

" I affirm, sir, that the discussion of this subject in the Con- 
stitutional Convention of 1787 was conducted in a spirit worthy 
of a great people, and resulted in the noble instrument under 
whose authority we now live. That era furnishes us a sad com- 
parison with the present epoch, when it may well be said that 
our Rome has 'lost the breed of noble bloods/ and when, so 
far as the agitation of these fanatical and partisan questions is 
concerned, reason seems to have ' fled to brutish beasts.' How 
differently and with what wise moderation did the framers of the 
Constitution act ! No narrow and fanatical partisanship marks 
their opinions or their acts." 

After reading, an extract from Curtis' History of the Consti- 
tution, Mr. Chanler, contrasting former legislation with the pres- 
ent on the subject of suffrage, said : " From the above historical 
statement, it will be found that the framers of the Constitution 
considered the question of suffrage of so vital importance in fix- 
ing the balance of power between the States, that it was, after 
full discussion in Congress by the whole body, referred to a 
"select committee of one from each State, again reported and fully 
discussed, and then referred to a committee of five, whose thor-. 
cfligh examination of the subject gave rise to new difficulties, and 
caused the matter to be referred to another committee of one 
member from each State. All differences were compromised jn 
a spirit of patriotism and justice. How different is all this from 
the hasty partisan legislation on this very suffrage question by 
the present Congress! 

"A caucus met before Congress organized, and chalked out a 
line of policy and action for the Republican party on the floor 
of Congress. The whole matter of reconstruction was referred to 
a grinding committee, whose dictation should govern Congress 
in every measure brought before it for consideration. Is this 
wise, just, or reasonable? I hold that this resolution is too nar- 
row to be of use and too. weak to last. It will totter to an un- 
timely grave, and hobble, a feeble and contemptible instrument, 



BASIS OF REPRESENTATION. 339 

from this Congress to every State Legislature to which it may 
be submitted, to be rejected for its feebleness in a time like this, 
amid the overwhelming issues which agitate this country." 

Mr. Farnsworth, of Illinois, remarked : " It is necessary, it 
seems to me, that whatever constitutional provision we may make 
should be made clear, manifest, certain. If possible, we should 
make it enforce itself, so that by no cunningly-devised scheme 
or shift can they nullify it. It seems to me that the resolution 
reported by the joint Committee on Reconstruction is not so clear 
as it ought to be ; I am afraid that it will be worthless. A State 
may enact that a man shall not exercise the elective franchise 
except he can road and write, making that law apply equally to 
the whites and blacks, and then may also enact that a black man 
shall not learn to read and write, exclude him from their schools, 
and make it a penal offense to instruct or to teach him, and thus 
prevent his qualifying to exercise the elective franchise according 
to the State law. And they may do in regard to the elective fran- 
•chise just what they are doing now in regard to slavery. They 
may provide that no man shall exercise the elective franchise 
who has been guilty of a crime, and then they may denounce 
these men as guilty of a crime for every little, imaginary, petty 
offense. They may declare that no man shall exercise the right 
of voting who has not a regular business or occupation by which 
he may obtain a livelihood, and then they may declare that the 
black man lias no settled occupation and no business. It seems 
to me, therefore, necessary that we should, by some provision in 
this amendment, settle this beyond a peradventure, so that none 
of these shifts or devices may defeat the purpose of the enact- 
ment." 

Mr. Farnsworth was in favor of more radical remedies : " I 
protest here that I will not accept any such constitutional amend- 
ment as this as a substitute for that full measure of justice which 
it is our duty to mete out, I will not promise that hereafter I will 
not propose, and vote for, and advocate with whatever power I 
possess, a measure which will give to all the people of the States 
that which is their due. By no vote of mine shall there be in- 
corporated in the Constitution a provision which shall, even by 
implication, declare that a State may disfranchise any portion of 
its citizens on account of race or color. We have no right to 
give our countenance to any such injustice. All provisions in 



340 THE THIRTY-NINTH CONG BESS. 

reference to representation which are based upon any other prin- 
ciple than that of the people of this country, who are the subjects 
of o-overnment, have the right to vote and to be represented, are 
false in principle. Such a measure may, perhaps, answer for a 
temporary expedient, but it will not. do as a fundamental rule to 
be embodied in the Constitution for the people of this country to 
live by. I deny that a State has the right to disfranchise a 
majority or even a minority of its citizens because of class or 
race. And I say that that provision of the Constitution which 
makes it the duty of the General Government to ' guarantee to 
every State in this Union a republican form of government' 
ought to be taken into consideration by this Congress and en- 
forced. Does a State that denies the elective franchise to one-half 
of its citizens possess a republican form of government ? Where 
a large portion of the citizens of a State — the men who arc re- 
quired to pay • taxes and perform military duty, to contribute 
their money and their strength in support of the Government — 
are denied the elective franchise, is that a republican form of gov- 
ernment ? I say that it # is a libel upon republicanism ; it is not 
a republican form of government; it is neither republican in 
form nor in substance." 

Mr. Baker, of Illinois, although anxious to have an amend- 
ment of the Constitution " achieving the general purpose of sup- 
plying a more just basis of representation," saw points of objection 
to the proposition before the House, some of which had been raised 
by previous speakers. He said : " I am reluctant to indorse an 
amendment to the Constitution framed in this day of growing 
liberty, framed by the party of progress, intended to make rep- 
resentative power in this Government correspond with the quan- 
tum of political justice on which it is based, and yet which leaves 
any State in the Union perfectly free to narrow her suffrage to 
any extent she pleases, imposing proprietary and other disquali- 
fying tests, and still strengthening her aristocratic power in the 
Government by the full count of her disfranchised people, pro- 
vided only she steers clear of a test based on race or color." 

Mr. Jenckes was desirous of having a more just and compre- 
hensive enactment than the one proposed : " In my judgment," 
said he, "justice requires that the qualification of electors for 
members of this House and for electors of President and Vice- 
President of the United States — in other words, for the two pop- 



B. ISIS OF REPRESENTATION. 3J,1 

ular branches of this great Government — should be defined in the 
fundamental law. Upon this point let me quote the words of 
Madison, written in his mature years to a distinguished son of 
the republic seeking advice from him. He says : ' The right of 
siiflrage, the rule of apportioning representation, and the mode 
of appointing to and removing from office, are fundamentals in 
a free government, and ought to be fixed by the Constitution.' 

"Certainly, sir, it is less difficult, in a Congress composed of 
less than three hundred men, to agree to a proposition which will 
meel the views of the whole country on this question of suffrage 
than to adopt a proposition which, when submitted to and adopted 
by the requisite number of States, must be carried into effect by 
as many Legislatures as there are States, and in a different man- 
ner by each, and which, in being carried into effect, must be acted 
upon by as many thousands of men in State conventions and Leg- 
islatures* as there arc hundreds in this Congress. 

"There is no equality, and there am be no equality, in the 
proposed amendment. It seems to me, therefore, if we under- 
take to amend the fundamental law at all in this respect, we 
ought to agree upon what should be the qualification of .voters 
for members of this House, embodying them in the proposed 
amendments to submit to the Legislatures of the States. Then 
there would be a definite projxxsition ; and that, I believe, if it 
emanated from this House, would have substantial equality and 
justice — would have the elements of equality and uniformity, 
and be enforced without difficulty in every State of the Union." 
Referring to a mode which might be adopted for evading the 
legitimate results of the proposed amendment, Mr. Jenckes re- 
marked: "I was alluding to another one. Some of the Southern 
States, up to the breaking out of the war, had constitutions which 
prescribed a property qualification. Suppose this amendment were 
adopted, and the State of South Carolina chose to annul the Con- 
stitutiom recently proclaimed and to go back to that of 1790, and 
that the word ■ white * should be stricken out of it, I desire to 
ask how many freedmen, how many persons of African descent, 
can be found who own in fee fifty acres of land or a town lot, or 
who have paid a tax of three shillings sterling. As far as I can 
ascertain from the statistics, there would not be, if that constitu- 
tion were restored and the word ' white' omitted, over five hun- 
dred additional qualified voters in that State. 



34® the thiety-ninth congress. 

"Ever since the adoption of the Constitution of 1790 down to 
the time of firing on Fort Sumter, South Carolina was in prac- 
tical relation to this Government as a State of this Union. She 
had been considered as having a republican form of government, 
and that which we had guaranteed as such for many years we 
would be bound to guarantee to her hereafter. Stronger than 
ever this oligarchy would be enthroned upon their old seat of 
power, not upheld merely by slaves beneath it, but by the power 
of the General Government above and around it. She might 
make any of the discriminations which I have suggested, of 
age, of residence, of previous servitude, and of ignorance or 
poverty." 

Mr. Trimble, of Kentucky, was "exceedingly gratified at the dis- 
position manifested among the party in opposition here, by reason 
of their own differences of opinion, to allow an opportunity to us 
to present our objections to the measure now under consideration. 
This subject of amending the Constitution under which we have 
lived sp long, so happily, and so prosperously, is one of great 
moment; and while I have some confidence in the ability and 
capacity of some of the friends on the opposite side to make a 
constitution, yet I prefer the Constitution as made by our fathers 
eighty years ago. 

"In my opinion, the amendment proposed is in violation of 
the reserved rights of the people of the States under that instru- 
ment. The object and purpose of this resolution is to enfran- 
chise a million men in this country whom no political party in 
this country ever had the boldness to propose the enfranchisment 
of prior to the present session of Congress. I remember that, in 
1860 and 1861, the party known in this country as the Union 
party took the ground, from one end of the country to the other, 
that neither Congress nor the people of the States had the power, 
under the Constitution of the United States, to interfere with 
slavery in the States where it existed ; much less, sir, did they 
claim the power- not only to destroy it, but to strike down the 
provisions of the Constitution" that protected me and my constitu- 
ents in our right to our property. Sir, there was an amendment 
submitted then for the purpose of peace, for the purpose of restoring 
peace and quiet throughout the country. It met, at the time, my 
hearty support, and I regret, from the bottom of my heart, that the 
people, North, South, East, and West, did not agree to that prop- 



BASIS OF REPRESENTATION. 343 

osition, and make it part and parcel of the Constitution. I refer 
to the amendment proposed in 1861, declaring that Congress 
should never thereafter interfere with the question of slavery in 
the States. 

"Sir, it is a well-established principle that no one should be 
permitted to take advantage of his own wrong. If the party in 
power have succeeded in freeing the slaves of the South, ought 
they not, at least, to allow the Southern States to enjoy the in- 
creased representation to which, according to the rule established 
by the Constitution, they are now entitled ? Or, if the Northern 
States sincerely desire that the negroes of the* South shall vote 
and shall be represented in Congress, let them transport those 
negroes to the North and take them under their guardianship ; 
they arc welcome to them. 

" I believe that the people of Kentucky, whom I in part rep- 
resent, and I have no doubt the people of the whole South, will 
submit in good faith to the constitutional amendment abolishing 
slavery. While they may believe that the amendment is revolu- 
tionary and unjust, in violation of the rights of Kentucky and 
the South, still the Southern States, having in a way yielded ftp 
this question, Cor representation and peace, they will stand by the 
Constitution as amended." 

Finally, Mr. Trimble presented the following argument against 
the measure: "This proposition is a direct attack upon the Pres- 
ident of the United States; it is a direct attack upon the doc- 
trines and principles taught by that distinguished man now hold- 
ing the presidential chair. This amendment is in violation, in 
my judgment, of every principle that that man has held from his 
boyhood up to the present hour. Sir, the President of the United 
States does not believe that the Congress of the United States has 
the right, or that the people have the right, to strike down the 
inalienable right of the States to settle for themselves who shall 
be clothed with that high privilege — suffrage." 

The subject being resumed on the following day, January 24th, 
Mr. Lawrence, of Ohio, addressed the House, premising his re- 
marks by a motion that the resolution and amendments be re- 
committed to the Committee on Reconstruction, "with instruc- 
tions to report an amendment to the Constitution which shall, 
first, apportion direct taxes among the States according to prop- 
erty in each; and which shall, second, apportion Representatives 



344 THE THIRTY-NINTH CONGRESS. 

among the States on the basis of adult male voters who may be 
citizens of the United States." 

He argued that "the rule which gave representation to three- 
fifths of the slave population was wrong in principle, and unjust 
in practical results. It was purely arbitrary, the result of com- 
promise, and not of fixed political principles, or of any standard 
of abstract justice. If slavery was a just element of political 
strength, I know of no rule which could properly divide it into 
'fractional quantities;' if it was not a just element of political 
strength, I l#now of no rule which could properly give it ' frac- 
tional power.' 

" The basis of representation was unjust iu practical results, be- 
cause it gave to chattel slavery political power — a power accorded 
to no other species of property — thus making what the slave 
States regarded as wealth an element of political strength." 

After having given a statistical table showing how representa- 
tion was apportioned among the several States having free and 
slave population, Mr. Lawrence deduced the following facts: 
" New Hampshire, with a white population of 325,579, has but 
three Representatives, while Louisiana, with a white population 
of 357,629, had five. California, with a white population of 
323,177, has but three Representatives, while Mississippi, with a 
similar population of 353,901, had five. In South Carolina 
72,847 white persons had one Representative, while the ratio of 
representation is one for 127,000 persons. 

" Under this mode of apportionment, the late slave States had 
eighteen Representatives, by the census of 1860, more than their 
just share, if based on free population. The whole political 
power of Ohio was counterbalanced by slave representation. It 
was equal to two-thirds of all the representation from New Eng- 
land. In South Carolina 14,569 votes carried as much political 
power as 25,400 in the free States." 

Freedom having been given to the slaves, " the effect will be, 
so soon as lawful State Gpvernments are created in the rebel 
States, to largely increase their representation in Congress and the 
Electoral College. The slave, population, by the census of 1860, 
was 3,950,531. Three-fifths of this, or 2,370,318, has heretofore 
entered into the basis of representation. Now, the additional 
1,580,213 is to be added to that basis. This will give ten addi- 
tional Representatives to the late slave States— in all twenty-eight 



BASIS OF REPRESENTATION. 345 

more than their just proportion upon a basis excluding the late 
slaves. If this injustice can be tolerated and perpetuated, and 
the late rebel States shall soon be admitted to representation, 
they will enjoy as the reward of their perfidy and treason an in- 
creased political power. This will reward traitors with a liberal 
premium for treason." 

As to the proper time for amending the Constitution, Mr. 
Lawrence said : " But if ever there could be a time for making 
fundamental changes in our organic law, and ingrafting on it irre- 
versible guarantees, that time is now. The events of the past 
four years demonstrate their necessity, and our security for the 
future imperatively demands them at our hands. The great 
events which have transpired, and the altered circumstances that 
surround us, admonish us that we will be recreant to our trusts if 
we fail to inscribe justice on the Constitution, and fortify it against 
the encroachments of treason, so that it shall be eternal. One of 
the elements of our past misfortunes, and which gave power for 
evil to the enemies who assailed us in this temple, was unequal 
and unjust representation — political power wielded by a dominant 
class, augmented by concessions on behalf of a. disfranchised and 
servile race, insultingly declared almost 'in the very citadel of na- 
tional justice as having no rights which a white man was bound 
to respect. By this amendment we strike down the iniquity o^ 
one class wielding political power for another, and arrogant be- 
cause in the exercise of unjust power." 

Maintaining that representation should be based upon suffrage, 
Mr. Lawrence said : " The reason which conclusively justifies it is, 
that a people declared by law, if in fact unprepared for suffrage, 
should not be represented as an element of power by those inter- 
ested in forever keeping them # unprepared. But children never 
can be qualified and competent depositaries of political power, and, 
therefore, should not enter into the basis of representation. It 
never has been deemed necessary for the protection of females that 
they should be regarded as an element of political power, and 
hence they should not be an element of representation. If the 
necessity shall come, or if our sense of justice should so change 
as to enfranchise adult females, it will be time enough then to 
make them a basis of representation." 

Mr. Shellabarger, of Ohio, though having "fifteen times as 
much respect for the opinions of the Committee on Reconstruc- 



346 THE THIRTY-NINTH CONGRESS. 

tion" as for his own, yet suggested the following as objections to 

their report : 

" 1. It contemplates and provides for, and in that way, taken by 
itself, authorizes the States to wholly disfranchise entire races of 
its people, and that, too, whether that race be white or black, 
Saxon, Celtic, or Caucasian, and without regard to their numbers 
or proportion to the entire population of the State. 

" 2. It is a declaration made in the Constitution of the only 
great and free republic in the world, that it is permissible and 
right to deny to the races of men all their political rights, and 
that it is permissible to make them the hewers of wood and draw- 
i ers of water, the mud-sills of society, provided only you do not ask 
to have these disfranchised races represented in that Government, 
provided you wholly ignore them in the State. The moral teach- 
ing of the clause offends the free and just spirit of the age, vio- 
lates the foundation principles of our own Government, and is 
intrinsically wrong. 

"3. The clause, by being inserted into the Constitution, and 
being made the companion of its other clauses, thereby construes 
and gives new meanings to those other clauses; and it thus lets 
down and spoils the free spirit and sense of the Constitution. 
Associated with that clause relating to the States being ' republi- 
can/ it makes it read thus : ' The United States shall guarantee 
to every State in this Union a republican form of government ; ' 
provided, however, that a government shall be deemed to be re- 
publican when whole races of its people are wholly disfranchised, 
unrepresented, and ignored. 

" 4. The report of the committee imposes no adequate restraint 
upon this disfranchisement of races and creation of oligarchies in 
the States, because after a race is disfranchised in a State it gives 
to- one vote cast in such State by the ruling race just the same 
power as a vote has in a State where no one is disfranchised. 
" 5. These words of the amendment, to-wit, ' denied or abridged 
• on account of color/ admit of dangerous construction, and also of 
an evasion of the avowed intent of the committee. Thus, for 
example, the African race may, in fact, be disfranchised in the 
States, and yet enumerated as part of the basis of representation, 
by means of a provision disfranchising all who were slaves, or all 
whose ancestors were slaves. 

" 6. The pending proposition of the committee is a radical de- 



BASIS OF REPRESENTATION. 3^7- 

parture from the principles of representative republican govern- 
ment, in this, that it does not provide for nor secure the absolute 
political equality of the people, or, relatively, of the States. It 
does not secure to each vote throughout the Government absolute 
equality in> its governing force. It, for example, permits twenty- 
five thousand votes in New York city to elect two members of 
Congress, provided one-half of its population should happen to 
be foreigners unnaturalized, and not electors of the State, whom 
the law deems unfit to vote ; whereas, twenty-five thousand votes 
in Ohio would elect but one member of Congress, provided her 
citizens were all Americans instead of foreigners." 

Mr. Eliot submitted an amendment to the effect that popula- 
tion should be the basis of representation, and that " the elective 
franchise shall not be denied or abridged in any State on account 
of race or color." He stated the following grounds of objection 
to the resolution offered by the committee: "First, the amend- 
ment as it is now reported from the committee is objectionable, 
to my mim 1 , 'because it admits by implication that a' State has 
the right to disfranchise large masses of its citizens. No man 
can show that in that Constitution which the fathers made, and 
under which we have lived, the right is recognized in any State 
to disfranchise large masses of its citizens because of race. And 
I do not want now, at this day, that the Congress of the United 
States, for the purpose of effecting a practical good, shall put 
into the Constitution of the land any language which would seem 
to recognize that right. 

" The next objection I have to the amendment is this : that it 
enables a State, consistently with its provisions, by making the 
right to vote depend upon a property qualification, to exclude 
large classes of men of both races. A State may legislate in such 
a way as to be, in fact, an oligarchy, and not a republican State. 
South Carolina may legislate so as to provide that no man shall 
have the right to vote unless he possesses an annual income of 
§1,000, and holds real estate to the amount of five hundred acres. 
Every one sees that that would exclude multitudes of all classes 
of citizens, making the State no longer republican, but oligarchical. 
Yet gentlemen say that under the Constitution Congress is bound to 
see to it that each State shall have a republican form of government. 

" The third objection I have to this amendment is, that it 
controls by implication that power ; because, while the Constitu- 



348 THE THIRTY-NINTH CONGRESS. 

tion now says that Congress shall guarantee to every State a 
republican form of government, this amendment, as reported by 
the committee, admits by implication that, although a State may 
so legislate as to exclude these multitudes of men, not on account 
of race or color, but on account of property, yet, nevertheless, she 
would have a republican form of government, and that Congress 
will not and ought not to interfere." 

Mr. Pike, of Maine, had, on the assembling of Congress after 
the holidays, offered a resolution expressing the idea contained in 
the report of the committee, but on reflection had come to the 
conclusion that the resolution would not accomplish the purpose 
desired. He stated his reasons for changing his opinion. He 
thought that the provisions of the proposed amendment might 
be evaded. " Suppose," said he, " this constitutional amendment 
in full force, and a State should provide that the right of suffrage 
should not be exercised by any person who had been a slave, 
or who was the descendant of a slave, whatever his race or color. 
I submit that it is a serious matter of doubt whether or not that 
simple provision would not be sufficient to defeat this constitu- 
tional amendment which we here so laboriously enact and submit- 
to the States." 

Mr. Conkling thought that this criticism .could have no prac- 
tical importance, from the fact that the proposed amendment w r as 
to operate in this country, where one race, and only one, has been 
held in servitude. 

Mr. Pike replied : " In no State in the South has slavery been 
confined to any one race. So far as I am acquainted with their 
statutes, in no State has slavery been confined to the African race. 
I know of.no slave statute, and I have examined the matter with 
some care, which says that Africans" alone shall be slaves. So 
much for race. As to color, it was a common thing throughout 
the whole South to advertise runaway slaves as having light hair 
and blue eyes, and a}l the indications of the Caucasian race, and 
'passing themselves off for white men.' I say further to the 
honorable gentleman from New York, that well-authenticated 
instances exist in every slave State where men of Caucasian de- 
scent, of Anglo-Saxon blood, have been confined in slavery, and 
they and their posterity held as slaves ; so that not only free 
blacks were found. every- where, but white slave's also abounded." 

Mr. Kelley, who next addressed the House, also brought proof 



BASIS OF REPRESENTATION. 3^9 

to controvert the " hasty assertion " that but one race had been 
enslaved : " The assertion that white persons have been sold into ' 
slavery does not depend on common report, but is proven by the 
reports of the superior courts of ajmost every Southern State. 
One poor German woman, who had arrived in our country at 
thirteen years of age, was released from slavery by the Supreme 
Court of Louisiana, but not until she had become the mother of 
three mulatto children, her owner having mated her with one of 
his darker slaves. Toward the close of the last century, the Su- 
preme Court of New Jersey decided that American Indians could 
be reduced to and legally held in slavery. And so long ago as 
1741 whiteslave women were so common in North Carolina, that 
the Legislature passed a law dooming to slavery the child of every 
' white servant woman ' born of an Indian father." 

Mr. Kelley thought that the enforcement of this long-dormant 
power of the Constitution would be for the benefit not merely of 
the poor, the ignorant, and the weak, but also of the wise, " the 
strong, and the wealthy of our country." " There is now pend- 
ing," said he, "before the Legislature of regenerated and, as 
gentlemen would have us believe, reconstructed Virginia, a bill 
to require five years' residence on the part of citizens of other 
States who may invest their capital and settle within the sacred 
limits of the Old Dominion before they can acquire citizenship. 
If they may pass a limitation of five years, why may they not 
pass a limitation of fifty? Why will not any limitation that 
comes within the ordinary duration of human life be admissible?" 

Mr. Bromwell, obtaining the floor, inquired whether the ques- 
tion was in such condition that any amendment or substitute 
could be offered. The Speaker replied: "Six amendments are 
pending now. The only one that could be offered would be to 
amend the* amendment of the gentleman from Pennsylvania, 
[Mr. Stevens,] which was, to add the word ' therein ' in the fif- 
teenth line. No other amendment would be in order now, the 
whole legislative power to amend being exhausted." 

Mr. Bromwell had desired to offer an amendment which, in his 
opinion, would obviate many of the objections to pending joint 
resolution, and the amendments thereto ; but the way not being 
open for this, he addressed the House in a brief speech. He said : 
"When this amendment was introduced, on last Monday morn- 
ing, # the differences of opinion which have been* developed in 



350 THE THIRTY-NINTH CONGRESS. 

reference to the principles of the amendment were not anticipated. 
But to-day we see that it has, so far, not an advocate upon this 
floor. Such may be the result with every amendment which 
may be presented. It is difficult to see, among all the amend- 
ments which are now pending, any one of them, or any combina- 
tion of them, that will meet the desire of the majority, not to say 
two-thirds of this House. I apprehend that the members of this 
House desire to act so as to secure the support of a proper major- 
ity here. I apprehend, also, that they desire to make this amend- 
ment such that it will meet with the sanction of a sufficient 
number of the States of the Union to make it effectual. Now, 
sir, it is in vain for this Congress to launch an amendment which 
shall die on the road through the Legislatures." 

Notwithstanding the difficulties in the way of all the plans 
proposed, Mr. Bromwell was heartily in favor of modifying the 
basis of representation. " I think," said he, " seventy years is 
long enough for fifteen, twenty, or thirty Representatives to sit 
here and make laws to apply to Northern people, with no con- 
stituencies behind them. I think it has been seen lono; enough 
that a large number of persons called property, made property by 
the laws of the States, shall give to the oligarchs of those jxirticu- 
lar districts of country the right to outvote the independent men 
of the North, of the free States, where some approximation has 
been made to securing God-given rights to all inhabitants. I 
think that it is wrong that the further a State recedes from com- 
mon right and common justice the more power the oligarchy 
which controls it shall grasp in their hands; and I desire that 
this amendment shall be made so that it shall bear down upon 
that abuse with the crushing power of three-fourths of the legis- 
latures of the Union." 

After the House had heard so many objectors to the basis 
of representation, as proposed by the committee, Mr. Cook, of 
Illinois, took the floor in favor of the measure. He said: 
"We have now, as I believe, the golden opportunity to remedy 
this evil which will never come again to the men of this genera- 
tion. The system of slavery has fallen. The States whose repre- 
sentation was increased by it have, with two or three exceptions, 
destroyed their loyal and legal State governments, and now seek 
reconstruction. The adoption of this amendment by the States 
lately in rebellion should be one of the guarantees to be insisted 



BASIS OF REPRESENTATION. 351 

upon as a condition precedent to their taking equal authority and 
rank in the Union with the loyal States." 

To the proposition that the basis of representation should be 
voters only, Mr. Cook presented the following objections : 

"1. It is difficult to enumerate voters accurately; their qualifi- 
cations are fixed by State laws. We can not send Federal officers 
into every State to adjudicate, in disputed cases, the rights of 
those claiming to be voters under the State laws, as we should 
have to do. 

"2. It would not be just; the voters of the country are un- 
cquallv distributed. The old States have fewer, the new States 
more, voters according to the white population. In other words, 
there is a greater proportion of women and children in the old 
States. These should be and arc represented. They are repre- 
sented, in the true sense of that word, by their fathers and broth- 
er-. The man who represents them does so really and practically, 
and not by legal fiction, like the man who represents 'three-fifths 
of all other persons.' 

"3. It takes from the basis of representation all unnaturalized 
foreigners. I" do not wish to discuss the question whether this 
would be judicious or not, but I do not want a measure of this 
almost supreme importance loaded down with these questions, and 
its passage jeopardized by the incorporation of provisions which 
would render it so liable to attack and misrepresentation." 

Mr. Cook referred as follows to some objections urged against 
the basis of representation proposed by the Reconstruction Com- 
mittee : " It is said that the Southern States may impose a prop- 
erty qualification, and so exclude the negroes, not on account of 
race or color, but for want of .a property qualification, or that 
they might provide for a qualification of intelligence, and so dis- 
franchise the negroes because they could not read or write, and 
still enumerate them. To do this they must first repeal all the 
laws now denying suffrage to negroes ; and, second, provide quali- 
fications which will disfranchise half their white voters j^Q. 
things neither of which will, in any human probability, occur. 
And in the event that it was possible that both these measures 
should be adopted, and all the blacks and half the whites dis- 
qualified, it would become a grave question whether the provision 
of the Constitution which requires the United States to guarantee 
to each State a republican form of government would not author- 



352 THE THIRTY-NINTH CONGRESS. 

ize the Government to rectify so gross a wrong. There is no 
measure to which fanciful objections may not be urged ; but I be- 
lieve this to be the least objectionable of any measure which has 
been suggested to meet this evil. But above all, I am well per- 
suaded that it is the only measure that can meet the approval of 
three-fourths of the States ; consequently, that this is the only 
practical measure before the House." 

Mr. Marshall, of Illinois, declared the proposition, as reported 
by the committee, to be " wholly untenable, is monstrous, absurd, 
damnable in its provisions, a greater wrong and outrage on the 
black race than any thing that has ever been advocated by 
others." 

He thus set forth the measure in the light of injustice to the 
negro : " The gentlemen who report it profess to be, and doubt- 
less are, the peculiar advocates of the African race. I wish to 
ask them upon what principle of justice, upon what principle of 
free government, they have provided that if, after this amend- 
ment is adopted, South Carolina, Mississippi, or any other State 
shall adopt a provision that all white men over twenty-one years 
of acre shall be voters, and all black men who have two hundred 
dollars' worth of property, and if there shall be ten thousand legal 
black voters in such State, upon what principle will you place m 
the Constitution of the United States a provision which would 
deprive these ten thousand legal black voters of any representa- 
tion upon the floor of Congress, or of being considered in the 
basis of representation ? And I wish* to ask the honorable gen- 
tleman who reported this amendment if that is not the effect and 
result of the amendment reported from the committee." 

In reference to the time and. place of inaugurating constitu- 
tional amendments, Mr. Marshall used -the following language: 
"If any amendments are necessary to the Constitution of our 
country, this is not the time, and more especially is this not the 
place, to inaugurate such amendments. I believe, notwithstand- 
ing the conceded wisdom, ability, and virtue of this House, that 
the fathers who framed our glorious Constitution were wiser, bet- 
ter, and nobler than we are ; yet every day we have offered here 
some dozen or twenty proposed amendments to the Constitution, 
offered as if we were discussing resolutions in a town meeting." 

Among the propositions before the House relating to this sub- 
ject, was an amendment proposed by Mr. Schenck, of Ohio, pro- 




^rtffC* Ic 



BASIS OF REPRESENTATION. 353 

viding that representati< should be based upon " the number of 
male citizens of the United States over twenty-one years of age, 
having the qualifications requisite for electors of the most nume- 
rous branch of the State legislature." 

Mr. Schenck addressed the House, and thus gave a history of 
his own connection with the measure : " At a very early day in 
this session, I was one* of those disposed to ask the attention of 
Congress to the subject, to propose in proper form the submission 
of the question to the Legislatures of the several States. On the 
first day of the session, on the 4th of December last, as soon as 
the House was organized, I gave notice that I would on the next, 
or some succeeding day, introduce a proposition to amend the 
Constitution. On the ensuing day I did accordingly present a 
joint resolution. It stands as House Resolution No. 1 of the ses- 
sion. 

" In that I propose representation hereafter shall be based upon 
suffrage. I propose that representation shall be apportioned among 
the several States of the Union according to the number of voters 
having qualifications requisite for electors of the most numerous 
branch of the Legislature of the State where they reside, follow- 
ing in this the language of the Constitution ; these voters, how- 
ever, to be further limited in their descriptions and definitions as 
being male citizens of the United States over twenty-one years of 
age. Now, whether the proposition be a good one or not; whether 
the limitation be such as should commend itself to the masses of 
our people, I will not for the present inquire. I will only remark 
they have seemed to me to embrace as many qualifications as we 
ought to include when we are going to lay down a new organic 
law on this subject." 

An objection urged by Mr. Schenck against the plan proposed 
by the committee was, that it failed to offer inducements for a 
gradual enfranchisement of the negro. He said: "Now, sir, I 
am not one of those who entertain Utopian ideas in relation, not 
merely to the progress, but to the immediate change of sentiment, 
opinions, and practice among the people of those States that have 
so lately been slave States, and so recently in rebellion. I believe 
that, like all other people, their growth toward good and right and 
free institutions must necessarily be gradual ; and if we pass the 
amendment which I have proposed, or any thing similar to it, 
and say to them, l You shall have representation proportioned to 
23 



354 THE THIRTY-NINTH COJVGEJESS. 

the portion of your population to which you extend this inesti- 
mable franchise/ my belief is that they will not, on the next day 
after it becomes a part of the organic law of the United States, 
at once enfranchise all the negroes in their midst. I am not sure 
that they ought to do it ; but we are dealing with the matter now 
as it presents itself as a practical question. What will they prob- 
ably do ? My belief is, that if you persuade them to do right, 
if you hold out to them an inducement for letting their negroes 
vote, and striking out these disqualifications and putting all upon 
the basis of manhood, they will probably begin, after the amend- 
ment becomes part of the organic law, by extending this right to 
those who have acquired certain property ; perhaps they will also 
extend it, after awhile, to those who have certain qualifications of 
education. However they may proceed, whether rapidly or slowly, 
it will be a work of progress and a work of time. But by this 
amendment you would say to them, ' We do not want you to enter 
upon any such gradual bringing up of these people to the level 
plain of right to be enjoyed by them equally with others of other 
races in your midst.' We say to them, 'You may enfranchise 
one-third or one-fourth of your people who are black and de- 
prived of the privilege of voting by introducing the qualification 
of property, up to which one-third or one-fourth may come ; you 
may introduce a qualification of education, up to which a number 
of them may come ; but that will all be of no value ; so long as 
there is any denial or any abridgement of the right to vote of a 
single man on account of his race or color, you shall have no 
part of the population of that race or color counted to measure 
to you your share of representation.' 

" Now, I will not go into the abstract question whether they 
ought to enfranchise the negroes at once or not; I will not go 
into the question of how soon they ought to do it as a matter of 
expediency ; I say that, in all human probability, when they come 
to enfranchise, if they do it at all, this portion of their popula- 
tion, they will do it gradually; yet, by this amendment, as it 
comes from the committee, you say that they shall not be repre- 
sented for any part of it at all till they completely enfranchise 
them and put them on the same footing with the white popula- 
tion." 

In conclusion, Mr. Schenck remarked : " New England, if she 
should even lose a vote, or two votes, or a fraction of a vote, can 



BASIS OF REPRESENTATION. 355 

not afford, any more than Ohio or Indiana, or any other of those 
States can, having these particular objections to the scheme, to let 
the opportunity go by now and not introduce a general amend- 
ment which will remedy the one great evil under which we are 
all laboring together. I hold that Ohio must give up her objec- 
tions on account of her negro population ; that the North-western 
States must give up their objections on account of the fact that 
they are permitting persons to vote who are not yet citizens of 
the United States. Those persons would have to wait, 'to tarry 
at Jericho until their beards are grown.' I hold that New Eng- 
land must give up her objections; and, if we are to amend the 
organic law at all, we must do it by uniting upon a common 
principle, a common sympathy, a common feeling, at least on this 
side of the House, upon which the entire responsibility is thrown, 
acting harmoniously, and adopting such an amendment to the 
organic law as shall be entirely democratic and fair in all its 
scope and action upon all the people of the States of this Union." 

The discussion was continued on the day following, Mr. El- 
dridge, of Wisconsin, having the floor for the first speech. After 
having expressed his satisfaction that the sun was allowed to go 
down on the deliberations upon this resolution, he confessed him- 
self opposed to the amendment of the Constitution. He said : " I 
believe that this is not the time for its amendment, and I believe, 
further, that there are other States than those represented upon 
this floor which are entitled to deliberate with us on that ques- 
tion, and to that point I shall mainly address the remarks which 
I have to make at this time." 

He made a protracted speech on the general subject of recon- 
struction. At the close of his remarks, he said : " It would 
much more comport with the dignity and sense of justice of the 
American Congress to let the legally elected members from the 
Southern States be admitted, and participate in the proceedings 
and debates, especially in matters of so great importance as a 
change in our organic law. Let us have a representation for our 
whole country. Wherever the American flag floats, from the St. 
Lawrence to the Gulf of Mexico — wherever the Star-spangled 
Banner waves — that is our country. And let us legislate as 
Americans, as Representatives of our whole country, in a spirit 
of justice, liberality, and patriotism, and we will again have one 
country." 



856 THE THIRTY-NINTH CONGRESS. 

Mr. Higby, of California, was opposed to the joint resolution 
from the fact that the proviso in the proposed amendment is in 
conflict with that portion of the Constitution which requires that 
"the United States shall guarantee to every State in this Union 
a republican form of government." " I say it," said he, " with- 
out fear or favor, that that amendment will allow any State 
government in its organization to exclude one-half of its pop* 
lation from the right of suffrage; and I say such State govern- 
ments will not be republican in form." 

In a conversation which ensued with some members, Mr. Higby 
maintained that no State excluding any class of citizens on account 
of race or color was republican in form. " I do not believe," said 
he, " there is a single State in the Union, except it may be one 
of the New England States, which is an exception to that gen- 
eral rule." 

Mr. Hill, of Indiana, asked whether the gentleman would 
favor the House with his opinion as to what would be a repub- 
lican form of government. 

Mr. Higby was sorry that the gentleman had lived to his time 
of life, and obtained a position as the Eepresentative of a large 
constituency, without finding out what a republican form of 
government is. " I will ask the gentleman," said he, " if he 
thinks that those States that have excluded and disfranchised 
more than half of their native population have a republican form 
of government ? " 

"In my opinion," said Mr. Hill, "when the framers of the 
Constitution placed in that instrument the declaration or the pro- 
vision that the Government of the United States would guarantee 
to each State a republican form of government, they spoke with 
reference to such governments as then existed, and such as those 
same framers recognized for a long time afterward as republican 
governments." 

" Well, that is a very good answer," said Mr. Higby. " It is 
an answer from a stand-point seventy-five years ago. I speak 
from the stand-point of the present time." 

Mr. Higby desired that the joint resolution should go back to 
the committee. He said : " I do not wish it disposed of here, to 
be voted down. I want, if it is possible, that it shall be so framed 
that it shall receive the full constitutional majority required, and 
be a proposition that shall operate with full force in all those 



BASIS OF REPRESENTATION. 357 

States that now have a great population excluded from the rights 
of citizenship." 

"If the gentleman proposes," said Mr. Stevens, "to send it 
back to the committee without instructions, I would ask him what 
we are to do. There are not quite as many views upon this flooi 
as there are members; but the number lacks very little of it. 
And how are we to gather up all those views spread through all 
this discussion, and accommodate all, when each view would now 
probably receive from one to three votes in its favor?" 

" I have only this to say," replied Mr. Higby : " with my views 
of the Constitution, I never can vote for this proposition with this 
proviso in its present language. I say that it gives a power to the 
States to make governments that are not republican in form." 

" I say to my friend," said Mr. Stevens, " that if I thought, that 
by any fair construction of language, such an interpretation could 
be given as he gives, I would vote against it myself; but I do 
not believe there is any thing in that objection." 

Mr. Bingham took the floor in favor of the proposed joint resolu- 
tion. In " giving this and other amendments to the Constitution 
my support," said he, " I do not subject myself to the gratuitous 
imputation of a want of reverence either for the Constitution or its 
illustrious founders. I beg leave, at all events, to say, with all 
possible respect for that gentleman, that I do not recognize the 
right of any man upon this floor, who was a representative of that 
party which denied the right to defend the Constitution of his 
country by arms against armed rebellion, to become my accuser. 

"In seeking to amend, not to mar, the Constitution of the 
United States, we ought to have regard to every express or implied 
limitation upon our power imposed by that great instrument. 
When gentlemen object to amending the Constitution, when they 
talk sneeringly about tinkering with the Constitution, they do not 
remember that it is one of the express provisions of that instru- 
ment that Congress shall have power to propose amendments to the 
Legislatures of the several States. Do gentlemen mean, by the 
logic to which we have listened for the past five days on this sub- 
ject of our right to amend, that we are not to add any thing to 
the Constitution, and that we are to take nothing from it ? I pre- 
fer to follow, in this supreme hour of the nation's trial, the lead 
of a wiser and nobler spirit, who, by common consent, was called, 
while he lived, ' the Father of his Country/ and, now that he is 



858 THE THIRTY-NINTH CONGRESS. 

dead, is still reverenced as ' the' Father of his Country/ and to be 
hailed, I trust, by the millions of the future who are to people 
this land of ours as { the Father of his Country.' In his Farewell 
Address, his last official utterance, Washington used these signifi- 
cant words, which I repeat to-day for the consideration of gentle- 
men : " The basis of our political systems is the right of the people 
to make and to alter their constitutions of government.' We pro- 
pose, sir, simply to act in accordance with this suggestion of 
Washington. We propose, in presenting these amendments, to 
alter, in so far as the changed condition of the country requires, 
the fundamental law, in order to secure the safety of the republic 
and furnish better guarantees in the future for the rights of each 
and all. 

" The question that underlies this controversy is this : whether 
we will stand by the Constitution in its original intent and spirit, 
or, like cravens, abandon it. I assert it here to-day, without fear 
of contradiction, that the amendment pending before this House 
is an amendment conforming exactly to the spirit of the Constitu- 
tion, and according to the declared intent of its framers. 

" My friend from California [Mr. Higby] has informed us that 
there are one hundred thousand more free colored citizens of the 
United States in the State of Mississippi to-day than there are 
of white citizens ; that there are one hundred thousand more free 
colored citizens of the United States in South Carolina than there 
are of white citizens ; and then we are gravely told that we must 
not press this amendment, because we are abandoning the Consti- 
tution and the intent of our fathers. That is a new discovery, 
one for which the Democracy ought to take out letters patent, 
that it was ever intended that a minority of free citizens should 
disfranchise the majority of free male citizens, of full age, in any 
State of the Union ! For myself, I will never consent to it." 

In answer to the objection that the proviso in the proposed 
amendment seemed to acknowledge the right to deny or abridge 
the elective franchise on account of race or color, Mr. Bingham 
said : " I beg the gentleman to consider that a grant of power by 
implication can not be raised by a law which only imposes a 
penalty, and nothing but a penalty, for a non-performance of a 
duty or the violation of a right. Within the last hundred years, 
in no country where the common law obtains, I venture to say, 
has any implication of a grant of power ever been held to be 



BASIS OF REPRESENTATION. 359 

raised by such a law, and especially an implied power, to do an 
act expressly prohibited by the same law. The guarantee of 
your Constitution, that the people shall elect their Representa- 
tives in the several States, can not be set aside or impaired by 
inserting in your Constitution, as a penalty for disregarding it, 
the provision that the majority of a State that denies the equal 
rights of the minority shall suffer a loss of political power. 

" I have endeavored to show that the words of the Constitu- 
tion, the people of 'the States shall choose their Representa- 
tives,' is an express guarantee that a majority of the free male 
citizens of the United States in everv State of this Union, being 
of full age, shall have the political power subject to the equal 
right of suffrage in the minority of free male citizens of full age. 
There is a further guarantee in the Constitution of a republican 
form of government to every State, which I take to mean that 
the majority of the free male citizens in every State shall have 
the political power. I submit to my friend that this proviso is 
nothing but a penalty for a violation on the part of the people 
of any State of the political right or franchise guaranteed by the 
Constitution to their free male fellow-citizens of full age. 

" The guarantee in the first article of the second section of the 
Constitution, rightly interpreted, is, as I claim, this: that the 
majority of the male citizens of the United States, of full age, in 
each State, shall forever exercise the political power of the State 
with this limitation : that they shall never by caste legislation im- 
pose disabilities upon one class of free male citizens to the denial 
or abridgement of equal rights. The further provision is, that 
the United States shall guarantee to each State a republican 
form of government, which means that the majority of male cit- 
izens, of full age, in each State, shall govern, not, however, in 
violation of the Constitution of the United States or of the rights 
of the minority." 

In closing his address, Mr. Bingham said : " I pray gentlemen 
to consider long before they reject this proviso. It may not be 
the best that the wisest head in this House can conceive of, but I 
ask gentlemen to consider that the rule of statesmanship is to 
take the best attainable essential good which is at our command. 
The reason why I support the proposed amendment is, that I 
believe it essential and attainable. I do not dare to say that it 
could not be improved. I do dare to say that it is in aid of the 



360 THE THIRTY-NINTH CONGRESS. 

existing grants and guarantees of the Constitution of my country, 
that it is simply a penalty to be inflicted upon the States for 
a specific disregard in the future of those wise and just and 
humane grants 'to the people' to elect their Representatives 
and maintain a republican governnient in each State. 

" Mr. Speaker, the republic is great ; it is great in its domain, 
equal in extent to continental Europe, abounding in productions 
of every zone, broad enough and fertile enough to furnish bread 
and homes to three hundred million freemen. The republic is 
great in the intelligence, thrift, industry, energy, virtue, and valor 
of its unconquered and unconquerable children, and great in its 
matchless, wise, and beneficent Constitution. I pray the Con- 
gress of the United States to propose to the people all needful 
amendments to the Constitution, that by their sovereign act they 
may crown the republic for all time with the greatness of 
justice." 

Mr. Broomall, of Pennsylvania, presented an objection to the 
resolution which had not been alluded to by any gentleman on 
the floor. He said : " The resolution provides that whenever the 
elective franchise shall be denied or abridged in any State, on 
account of race or color, all persons of such race or color shall be 
excluded from the basis of representation. Now, there is a great 
deal of indefiniteness in both those terms, 'race' and 'color.' 

"What is a race of men? Writers upon the subject of races 
differ very materially on this point. Some of them would make 
four or five races; others fifteen; and one, whom I might name, 
seems inclined not to limit the number short of a thousand. I 
myself am inclined to think that the Celtic race is a distinct one 
from ours. I think that any gentleman who has studied this 
subject attentively will at least have doubts whether or not the 
race that appears to have inhabited Europe in the early historic 
period, and has been partly dispossessed there by ours, is not a 
distinct race from ours. 

" Again : the word ' color ' is exceedingly indefinite. If we 
had a constitutional standard of color, that of sole-leather, for 
example, by which to test the State laws upon this subject, there 
might be less danger in incorporating this provision in the Con- 
stitution. But the term 'color' is nowhere defined in the Con- 
stitution or the law. We apply the term to persons who are of 
African descent, whether their color is whiter or darker than ours. 



BASIS OF REPRESENTATION 361 

Every one who is familiar with the ethnological condition of 
things here in the United States, and who sees the general mix- 
ing up of colors, particularly in the Democratic portion of the 
country — I allude to that portion south of Mason and Dixon's 
line — must say with me that the word 'color' has no very dis- 
tinct meaning when applied to the different peoples of the United 
States of America." 

Two Representatives from New York — Mr. Davis and Mr. 
Ward — expressed opinions favorable to a modification of the basis 
of representation, and yet were opposed to the details of the 
proposition before the House. 

Mr. Nicholson, of Delaware, in emphatic terms, denounced the 
acts of a majority of the House in attempting to amend the Con- 
stitution. " If they shall finally triumph," said he, " in the mad 
schemes in which they are engaged, they will succeed in convert- 
ing that heretofore sacred instrument, reverenced and obeyed till 
the present dominant party came into power, from a bond of 
union to a galling yoke of oppression — a thing to be loathed and 
despised." 

The discussion was still much protracted. Many members had 
an opportunity of presenting their views and opinions without 
adding much to the arguments for or against the measure. The 
power of debate, as well as " the power of amendment," seemed to 
have exhausted itself, and yet gentlemen continued to swell the 
volume of both through several days. 

On Friday, January 26th, Mr. Harding, of Kentucky, made a 
violent political speech, ostensibly in opposition to the measure 
before the House. The following is an extract from his remarks : 

" The Republican party have manufactured a large amount of 
capital out of the negro question. First they began with caution, 
now they draw on it as if they thought it as inexhaustible as were 
the widow's barrel of meal and cruse of oil. The fact that the 
negro question has continued so long has been owing to the great 
care with which the Republican party has managed it." 

Mr. McKee, of Kentucky, followed. Referring to his colleague 
who" had preceded him, he said: "I regret extremely that he has 
pursued the same line of policy that gentlemen belonging to the 
same political party have pursued ever since the idea took posses- 
sion of the Government that the negro was to be a freeman. His 
whole speech has been made up of the negro and nothing else. 



362 TEE TEIETT-JVIJVTE CONGRESS. 

" I would like it if the amendment could go a little beyond 
what it does. I would like so to amend the Constitution that no 
man who had raised his hand against the flag should ever be al- 
lowed to participate in any of the affairs of this Government. 
But it is not probable that we can go that far. Let us go just 
as far as we can. 

" Gentlemen say that they are not willing to vote for an amend- 
ment that strikes oif a part of the representation of the States; 
they are not willing to vote for an amendment that lessens Ken- 
tucky's representation upon this floor. The whole course of my 
colleague's remarks on this point is as the course of his party — 
and I may say of the loyal party in Kentucky — has been through 
a great part of the war, that Kentucky is the nation, and the 
United States a secondary appendage to her." 

Mr. Kerr, of Indiana, did not desire to be heard at length upon 
the main question before the House, but upon some questions in- 
cidentally connected with it. He then proceeded to discuss the 
question whether Congress has " the power so to regulate the suf- 
frage as to give the right of suffrage to every male citizen of the 
country of twenty-one years of age." " I propose now," said he, 
"for a few moments, to examine this question with a somewhat 
extensive reference to the history of the Constitution in this con- 
nection, and if possible to arrive at a conclusion whether the 
honorable gentleman from Pennsylvania has given greater atten- 
tion to the history of this question than the President, and 
whether the conclusion which he has reached is a safer one for 
the country, or more in harmony with the history and true intent 
of the Constitution, than that of the President." 

Near the close of his remarks, referring to the measure before 
the House, Mr. Kerr remarked : " I can see but one single clear 
result that will follow from this amendment if it is adopted by 
the people of this country, and that is an effect that will inure, 
not to the advantage of the nation, nor of any State in the Union, 
nor of any class or race of men in any State ; but it will inure 
solely to the benefit and advantage of the Republican party. In 
my judgment, the only persons who will gain by this provision 
will be the now dominant party in this country. They will 
thereby increase their power; they will thereby degrade the 
South; they will reduce her representation here, and relatively 
increase their own representation ; they will confirm the sectional 



BASIS OF REPRESENTATION. 863 

supremacy of the North in the legislation and administration of 
the Government. They may thus compel the South to become 
suppliants at their feet for justice, and it may be for mercy." 

Mr. Kasson, of Iowa, and Mr. Wright, of New Jersey, made 
extended remarks, avowedly in opposition to the measure, but 
dwelling, for the greater portion of their time, upon subjects re- 
motely connected with the resolution before the House. 

Discussion was resumed in the House on Monday, January 
29th. The question having become much complicated by the 
numerous propositions to amend, the Speaker, by request of Mr. 
Conkling, stated the exact position of the subject before the 
House, and the various questions pending. The Speaker said : 
" The committee having reported this joint resolution, the gen- 
tleman from Pennsylvania [Mr. Stevens] moved to amend by 
inserting the word ' therein ' after the words < all persons,' in the 
last clause of the proposed amendment to the Constitution. 

" Pending that motion, the gentleman from Pennsylvania [Mr. 
Kelley] moved an entirely new proposition in the nature of a 
substitute for the joint resolution reported from the joint com- 
mittee, proposing an amendment to the Constitution differing 
from the one reported from the committee. The gentleman from 
Illinois [Mr. Baker] also submitted for his colleague [Mr. In- 
gersoll] a proposition in the nature of a substitute for the one 
reported from the committee, as an amendment to the amend- 
ment. 

"Pending those two propositions, the gentleman from Ohio 
[Mr. Lawrence] moved to recommit the joint resolution to the 
joint committee with certain instructions. The gentleman from 
Massachusetts [Mr. Eliot] moved to amend the instructions, and 
the gentleman from Ohio [Mr. Schenck] moved to amend the 
amendment. 

"The gentleman from Ohio [Mr. Le Blond] also moved to 
commit the whole subject to the Committee of the Whole on the 
State of the Union. The first question will, therefore, be upon 
the motion to commit to the Committee of the Whole, as that 
committee is higher in rank than the joint Committee on Recon- 
struction. 

' Next after that will be the various motions to recommit with 
instructions. If all those propositions should fail, then the mo- 
tion of the gentleman from Pennsylvania, [Mr. Stevens,] being 



364 TEE THIRTY-NINTH CONGRESS. 

for the purpose of perfecting tfre original proposition, will come 
up for consideration. Then propositions in the nature of substi- 
tutes will come up for consideration j first the amendment to the 
amendment, proposed by the gentleman from Illinois, [Mr. Ba- 
ker,] and next the substitute amendment of the gentleman from 
Pennsylvania [Mr. Kelley]." 

Mr. Raymond, of New York, made a speech three hours in 
length, in opposition to the proposed amendment to the Consti- 
tution. He discussed the general questions of reconstruction, 
affirming that the Southern States had resumed their functions 
of self-government in the Union, that they did not change their 
constitutional relations by making war, and that Congress should 
admit their Representatives by districts, receiving only loyal men 
as members. 

The closing words of Mr. Raymond's speech excited great 
sensation and surprise. They were as follows: "The gigantic 
contest is at an end. The courage and devotion on either side 
which made it so terrible and so long, no longer owe a divided 
duty, but have become the common property of the American 
name, the priceless possession of the American Republic through 
all time to come. The dead of the contending hosts sleep beneath 
the soil of a common country, and under one common flag. Their 
hostilities are hushed, and they are the dead of the nation for- 
ever more. The victor may well exult in the victory he has 
achieved. Let it be our task, as it will be our highest glory, to 
make the vanquished, and their posterity to the latest generation, 
rejoice in their defeat." 

Mr. Julian could not accept heartily the proposition reported 
by the joint committee. He thus presented what he considered 
a preferable plan: "Under the constitutional injunction upon the 
United States to guarantee a republican form of government to 
every State, I believe the power already exists in the nation to 
regulate the right of suffrage. It can only exercise this power 
through Congress ; and Congress, of course, must decide what is 
a republican form of government, and when the national authority 
shall interpose against State action for the purpose of executing 
the constitutional guarantee. No one will deny the authority of 
Congress to decide that if a State should disfranchise one-third, 
one-half, or two-thirds of her citizens, such State would cease to 
be republican, and might be required to accept a" different rule 



BASIS OF REPRESENTATION. 365 

of suffrage. If Congress could intervene in such a case, it could 
obviously intervene in any other case in which it might deem it 
necessary or proper. It certainly might decide that the disfran- 
chisement by a State of a whole race of people within her bor- 
ders is inconsistent with a republican form of government, and 
in their behalf, and in the execution of its own authority and 
duty, restore them to their equal right with others to the fran- 
chise. It might decide, for example, that in North Carolina, 
where 631,000 citizens disfranchise 331,000, the government is 
not republican, and should be made so by extending the fran- 
chise. It might do the same in Virginia, where 719,000 citizens 
disfranchise 533,000; in Alabama, where 596,000 citizens dis- 
franchise 437,000 ; in Georgia, where 591,000 citizens disfran- 
chise 465,000; in Louisiana, where 357,000 citizens disfranchise 
350,000; in Mississippi, where 353,000 citizens disfranchise 
436^000; and in South Carolina, where only 291,000 citizens 
disfranchise 411,000. Can any man who reverences the Consti- 
tution deny either the authority or the duty of Congress to do 
all this in the execution of the guarantee named ? Or if the 
411,000 negroes in South Carolina were to organize a govern- 
ment, and disfranchise her 291,000 white citizens, would any 
body doubt the authority of Congress to pronounce such govern- 
ment antirepublican, and secure the ballot equally to white and 
black citizens] as the remedy? Or if a State should prescribe as 
a qualification for the ballot such an ownership of property, real 
or personal, as would disfranchise the great body of her people,^ 
could not Congress most undoubtedly .interfere ? So of an edu-* 
cational test, which might fix the standard of knowledge so high 
as to plape the governing power in the hands of a select few. 
The power in all such cases is a reserved one in Congress, to be. 
exercised according to its own judgment, with no accountability 
to any tribunal save the people; and without such power the 
nation would be at the mercy of as many oligarchies as there are 
States. It is true that the power of Congress to guarantee repub- 
lican governments in the States through its intervention with the 
question of suffrage has not hitherto been exercised, but this 
certainly does not disprove the existence of such power, nor the 
expediency of its exercise now, under an additional and inde- 
pendent constitutional grant, and when a fit occasion for it has come 
through the madness of treason. Why temporize by adopting 



366 THE THIRTY-NINTH CONGRESS. 

half-way measures and a policy of indirection? Tlie shortest 
distance between two given points is a straight line. Let us 
follow it in so important a work as amending the Constitution. 

"How do you know that the broad proposition I advocate 
will fail in Congress or before the people? These are revolu- 
tionary days. Whole generations of common time are now 
crowded into the span of a few years. Life was never before so 
grand and blessed an opportunity. The man mistakes his reck- 
oning who judges either the present or the future by any polit- 
ical almanac of bygone years. Growth, development, progress 
are the expressive watchwords of the hour. Who can remember 
the marvelous events of the past four years, necessitated by the 
late war, and then predict the failure of further measures, woven 
into the same fabric, and born of the same inevitable logic ? " 

On Monday, January 30th, the proposed constitutional amend- 
ment was recommitted to the joint Committee on Reconstruction. 
On the following day Mr. Stevens reported back the joint reso- 
lution, with an amendment striking out the words " and direct 
taxes," so as to fix simply the basis of representation in Congress 
upon population, excluding those races or colors to which the 
franchise is denied or abridged. 

Mr. Schenck offered a substitute making " male citizens of the 
United States over twenty-one years " the basis of representation. 
Mr. Schenck occupied a few minutes in advocating hie proposi- 
tion. 

. On the other hand, Mr. Benjamin, of Missouri, objected to the 
substitute as greatly to the detriment of Missouri, since it would 
reduce her representation in Congress from nine to four, because 
she has endeavored to place the Government in loyal .hands by 
•disfranchising the rebel element of that State. In doing this, 
she had disfranchised one-half her voters. 

The previous question having been called, Mr. Stevens made 
the closing speech of the protracted discussion. In the opening 
of his speech, Mr. Stevens said : " It is true we have been in- 
formed by high authority, at the other end of the avenue, intro- 
duced through an unusual conduit, that no amendment is neces- 
sary to the Constitution as our fathers made it, and that it is 
better to let it stand as it is. Now, sir, I think very differently, 
myself, for one individual. I believe there is intrusted to this 
Congress a high duty, no less important and no less fraught with 



BASIS OF REPRESENTATION. 367 

the weal or woe of future ages than was intrusted to the august 
body that made the Declaration of Independence. I believe now, 
if we omit to exercise that high duty, or abuse it, we shall be 
held to account by future generations of America, and by the 
whole civilized world that is in favor of freedom, and that our 
names will go down to posterity with some applause or with 
black condemnation if we do not treat the subject thoroughly, 
honestly, and justly in reference to every human being on this 
continent." 

That the above paragraph may be understood, it will be nec- 
essary to state that the President of the United States himself 
had taken part in the discussion of the measure pending before 
Congress. The "unusual conduit" was the telegraph and the 
press — the means by which his opinions were given to Congress 
and the public. The President's opinions were expressed in the 
following paper, as read by the Clerk of the House, at the re- 
quest of several members : 

" The following is the substance of a conversation which took place yes- 
terday between the President and a distinguished Senator, as telegraphed 
North by the agent of the Associated Press : 

" The President said that he doubted the propriety at this time of making 
further amendments to the Constitution. One great amendment had already 
been made, by which slavery had forever been abolished within the limits 
of the United States, and a national guarantee thus given that the institu- 
tion should never exist in the land. Propositions to amend the Constitution 
were becoming as numerous as preambles and resolutions at town meetings 
called to consider the most ordinary questions connected with the adminis- 
tration of local affairs. All this, in his opinion, had a tendency to diminish 
the dignity and prestige attached to the Constitution of the country, and to 
lessen the respect and confidence of the people in their great charter of 
freedom. If, however, amendments are to be made to the Constitution, 
changing the basis of representation and taxation, (and he did not deem them 
at all necessary at the present time,) he knew of none better than a simple 
proposition, embraced in a few lines, making in each State the number of 
qualified voters the basis of representation, and the value of property the 
basis of direct taxation. Such a proposition could be embraced in the fell- 
ing terms: 

" '■ Representatives shall be apportioned among the several States which 
may be included within this Union according to the number of qualified 
voters in each State. 

" 'Direct taxes shall be apportioned among the several States which may 
be included within this Union according to the value of all taxable property 
in each State.' 



368 THE THIRTY-NINTH CONGRESS. 

" An amendment of this kind would, in his opinion, place the basis of rep- 
resentation and direct taxation upon correct principles. The qualified vot- 
ers were for the most part, men who were subject to draft and enlistment 
when it was necessary to repel invasion, suppress rebellion, and quell do- 
mestic violence and insurrection. They risk their lives, shed their blood, 
and peril their all to uphold the Government, and give protection, security, 
and value to property. It seemed but just that property should compensate 
for the benefits thus conferred by defraying the expenses incident to its 
protection and enjoyment. 

"Such an amendment, the President also suggested, would remove from 
Congress all issues in reference to the political equality of the races. It 
would leave the States to determine absolutely the qualifications of their 
own voters with regard to color; and thus the number of Kepresentatives 
to which they would be entitled in Congress would depend upon the num- 
ber upon whom they conferred the right of suffrage. 

"The President, in this connection, expressed the opinion that the agita- 
tion of the negro-franchise question in the District of Columbia, at this time 
was the mere entering-wedge to the agitation of the question throughout the 
States, and was ill-timed, uncalled for, and calculated to do great harm. 
He believed that it would engender enmity, contention, and strife between 
the two races, and lead to a war between them which would result in great 
injury to both, and the certain extermination of the negro population. 
Precedence, he thought, should be given to more important and urgent mat- 
ters, legislation upon which was essential for the restoration of the Union, 
the peace of the country, and the prosperity of the people." 

" This/' said Mr. Stevens, I take to be an authorized utterance 
of one at the other end of the avenue. I have no doubt that this 
is the proclamation, the command of the President of the United 
States, made and put forth by authority in advance, and at a time 
when this Congress was legislating on this very question ; made, 
in my judgment, in violation of the privileges of this House; 
made in such a way that centuries ago, had it been made to Par- 
liament by a British king, it would have cost him bis head. But, 
sir, we pass that by ; we are tolerant of usurpation in this tolerant 
Government of ours." 

In answer to those who contended that Congress should regu- 
late the right of suffrage in the States, Mr. Stevens said : " If 
you should take away the right which now is and always has 
been exercised by the States, by fixing the qualifications of their 
electors, instead of getting nineteen States, which is necessary to 
ratify this amendment, you might possibly get five. I ven- 
ture to say you could not get five in this Union. And that is 
an answer, in the opinion of the committee, to all that has been 



. BASIS OF REPRESENTATION. 369 

said on this subject. But it grants no right. It says, however, 
to the State of South Carolina and other slave States, True, we 
leave where it has been left for eighty years the right to fix the 
elective franchise, but you must not abuse it; if you do, the 
Constitution will impose upon you a penalty, and will continue 
to inflict it until you shall have corrected your actions. 

''Now, any man who knows any thing about the condition of 
aspiration and ambition for power which exists in the slave 
States, knows that one of their chief objects is to rule this coun- 
try. It was to ruin it if they could not rule it. They have not 
been able to ruin it, and now their great ambition will be to rule 
it If a State abuses the elective franchise, and takes it from 
those who are the only loyal people there, the Constitution says 
to such a State, You shall lose power in the halls of the nation, 
and you shall remain where you are, a shriveled and dried-up 
nonentity instead of being the lords of creation, as you have 
been, so far as America is concerned, for years past. 

"Now, sir, I say no more strong inducement could ever be 
held out to them ; no more severe punishment could ever be in- 
flicted upon them as States. If they exclude the colored popu- 
lation, they will lose at least thirty-five Representatives in this 
hall ; if they adopt it, they will have eighty-three votes." 

Mr. Stevens urged several objections to the proposition of Mr. 
Schenck. He said : " If I have been rightly informed as to the 
number, there are from fifteen to twenty Representatives in the 
Northern States founded upon those who are not citizens of the 
United States. In New York I think there are three or four 
Representatives founded upon the foreign population — three cer- 
tainly. . And so it is in Wisconsin, Iowa, and other Northern 
States. There are fifteen or twenty Northern Representatives 
that would be lost by that amendment and given to the South 
whenever they grant the elective franchise to the negro. 

" Now, sir, while I have not any particular regard for any for- 
eigner who goes against me, yet I do not think it would be wise 
to put into the Constitution or send to the people a proposition 
to amend the Constitution which would take such Representatives 
from those States, and which, therefore, they will never adopt. 

" But I have another objection to the amendment of my friend 
from Ohio. His proposition is to apportion representation ac- 
cording- to the male citizens of the States. Why has he put in 
24 



370 THE THIRTY-NINTH CONGRESS.- 

the word ( male?' It was never in the Constitution of the United 
States before. Why make a crusade against women in the Con- 
stitution of the nation ? [Laughter.] Is my friend as much afraid 
of their rivalry as the gentlemen on the other side of the House 
are afraid of the rivalry of the negro ? [Laughter.] I do not think 
we ought to disfigure the Constitution with such a provision. I 
find that every unmarried man is opposed to the proposition. 
Whether married men have particular reason for dreading inter- 
ference from that quarter I know not. [Laughter.] I certainly 
shall never vote to insert the word '■ male ' or the word * white ' 
in the national Constitution. Let these things be attended to by 
the States." 

In answer to the objection that the amendment proposed by the 
committee " might be evaded by saying that no man who had ever 
been a slave should vote, and that would not be disfranchisement 
on account of race or color," Mr. Stevens said : " Sir, no man in 
America ever was or ever could be a slave if he was a white man. 
I know white men have been held in bondage contrary to law. 
But there never was a court in the United States, in a slave State 
or a free State, that has not admitted that if one held as a slave 
could prove himself to be white, he was that instant free. And, 
therefore, such an exclusion, on account of previous condition of 
slavery, must be an exclusion on account of race or color. There- 
fore that objection falls to the ground." 

In reply to the closing paragraph of Mr. Raymond's speech, 
Mr. Stevens said : " I could not but admire (an admiration min- 
gled with wonder) the amiability of temper, the tenderness of heart, 
the generosity of feeling which must have prompted some of the 
closing sentences of the excellent and able speech delivered by the 
gentleman on last Monday. His words were these: 

" ' The gigantic contest is at an end. The courage and devotion on either 
side, which made it so terrible and so long, no longer owe a divided duty, 
but have become the common property of the American name, the priceless 
possession of the American Republic, through all time to come. The dead 
of the contending hosts sleep beneath the soil of a common country, under 
their common flag. Their hostilities are hushed, and they are the dead of 
the nation for evermore.' 

" Sir, much more than amiable, much more than religious, must 
be the sentiment that would prompt any man to say that ' the 



BASIS OF REPRESENTATION. 371 

courage and devotion' which so long withstood our arms, pro- 
longing the terrible conflict of war, and sacrificing the lives of 
thousands of loyal men, are hereafter to be the common boast of 
the nation, 'the priceless possession of the American Republic 
through all time to come f that it is the pride of our country so 
many infamous rebels were so ferocious in their murders. 

" Sir, we are to consider these dead on both sides as the dead 
of the nation, the common dead ! And so, I suppose, we are to 
raise monuments beside the monuments to Reynolds and others, 
to be erected in the cemetery on the battle-field of Gettysburg. 
We must there build high the monumental marble for men like 
Barksdale, whom I have seen in this hall draw their bowie-knives 
on the Representatives of the people; men who died upon the 
battle-field of Gettysburg in arms against the Government, and 
where they now lie buried in ditches, 'unwept, unhonored, and 
unsung ! ' They are, I suppose, to be raised and put into the 
fore-front ranks of the nation, and we are to call them through 
all time as the dead of the nation ! Sir, was there ever blasphemy 
before like this? Who was it burnt the temple of Ephesus? 
Who was it imitated the thunder of Jove? All that was poor 
compared with this blasphemy. I say, if the loyal dead, who 
are thus associated with the traitors who murdered them, put by 
the gentleman on the same footing with them, are to be treated 
as the .' common dead of the nation ' — I say, sir, if they could 
have heard the gentleman, they would have broken the cerements 
of the tomb, and stalked forth and haunted him until his eye-balls 
were seared." 

The question was first taken on the substitute offered by Mr. 
Schenck, which was rejected by a vote of one hundred and thirty- 
one to twenty-nine. 

The question was then taken on agreeing to the joint resolution 
as modified by the committee, and it was decided in the affirma- 
tive by the following vote : 

Yeas — Messrs. Alley, Allison, Ames, Anderson, James M. Ashley, Baker, 
Banks, Barker, Baxter, Beaman, Benjamin, Bidwell, Bingham, Blaine, Blow, 
Boutwell, Brandegee, Bromwell, Broomall, Buckland, Bundy, Reader W. 
Clarke, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, 
Defrees, Delano, Deming, Dixon, Donnelly, Eckley, Eggleston, Farnsworth, 
Farquhar, Ferry, Garfield, Grinnell, Griswold, Abner C. Harding, Hart, 
Hayes, Hill, Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. 



372 THE THIRTY-NINTH CONGRESS. 

Hubbard, Demas Hubbard, John H. Hubbard, James R Hubbell, Hulburd, 
James Humphrey, Ingersoll, Julian, Kasson, Kelley, Kelso, Ketcham, Kuy- 
kendall, Laflin, George V. Lawrence, William Lawrence, Longyear, Lynch, 
Marston, Marvin, McClurg, Mclndoe, McKee, Mercur, Miller, Moorhead, 
Morrill, Morris, Moulton, Myers, O'Neill, Orth, Paine, Patterson, Perham, 
Pike, Plants, Pomeroy, Price, Alexander H. Kice, John H. Rice, Rollins, 
Sawyer, Schenck, Scofield, Shellabarger, Sloan, Spalding, Starr, Stevens, 
Stilwell, Thayer, Francis Thomas, John L. Thomas, Upson, Van Aernam, 
Burt Van Horn, Robert T. Van Horn, Ward, Warner, Elihu B. Washburne, 
William B. Washburn, Welker, Wentworth, Williams, James F. Wilson, 
Stephen F. Wilson, Windom, and Woodbridge— 120. 

Nays— Messrs. Baldwin, Bergen, Boyer, Brooks, Chanler, Dawson, Den- 
nison, Eldridge, Eliot, Finck, Grider, Hale, Aaron Harding, Harris, Hogan, 
Edwin N. Hubbell, James M. Humphrey, Jenckes, Johnson, Kerr, Latham, 
Le Blond, Marshall, McCullough, Niblack, Nicholson, Noell, Phelps, Sam- 
uel J. Randall, William H Randall, Raymond, Ritter, Rogers, Ross, Ros- 
seau, Shanklin, Sitgreaves, Smith, Strouse, Taber, Taylor, Thornton, Trimble, 
Voorhees, Whaley, and Wright — 46. 

Not Voting — Messrs. Ancona, Delos R. Ashley, Culver, Driggs, Dumont, 
Glossbrenner, Goodyear, Henderson, Higby, Jones, Loan, McRuer, Newell, 
Radford, Trowbridge, and Winfield — 16. 

Two-thirds having voted in the affirmative, the Speaker de- 
clared the joint resolution adopted. 

The strong vote by which' this measure was passed, after so 
general an expression of dissent from it, excited some surprise. 
Many gentlemen evidently surrendered their individual prefer- 
ences for the sake of unanimity. They believed that this was the 
best measure calculated to secure just representation, which would 
pass the ordeal of Congress and three-fourths of the States. They 
accepted the " rule of statesmanship," to " take the best attainable, 
essential good which is at our command." 

A disposition to rebuke supposed Executive dictation had some 
effect to produce an unexpected unanimity in favor of the measure. 
One Rhode Island and two Massachusetts members insisted on 
national negro suffrage, and voted against the amendments. Mr. 
Raymond and Mr. Hale, of New York, were the only Repub- 
licans who voted against the measure in accordance with the 
President's opinions. Of the border slave State members, ten 
voted for the amendment and sixteen against it. 



BASIS OF REPRESENTATION. 373 



CHAPTER XV. 

THE BASIS OF REPRESENTATION-IN THE SENATE. 

The Joint Resolution goes to the Senate — Counter-proposition by Mr. 
Sumner — He Speaks Five Hours — Mr. Henderson's Amendment — Mr. 
Fessenden— Mr. Henry S. Lane— Mr. Johnson— Mr. Henderson— Mr. 
Clark's Historical Statements— Fred. Douglass' Memorial— Mr. Wil- 
liams — Mr. Hendricks — Mr. Chandler's "Blood-letting Letter" 

Proposition of Mr. Yates— His Speech— Mr. Buckalew against New 
England — Mr, Pomeroy — Mr. Sumner's Second Speech — Mr. Doolittle 
— Mr. Morrill — Mr. Fessenden meets Objections — Final Vote — The 
Amendment Defeated. 

THE joint resolution, providing for amending the basis of 
representation, having passed the House of Eepresentatives 
on the last day of January, 1866, the action of that body 
was communicated to the Senate. The Civil Eights Bill at that 
time occupying the attention of the Senate, Mr. Fessenden gave 
notice that unless something should occur to render that course 
unwise, he would ask that the consideration of the proposed 
constitutional amendment should be taken up on the following 
Monday, February 5th. 

On the second of February, Mr. Sumner gave notice of his 
intention to move a joint resolution as a counter-proposition to 
the proposed constitutional amendment. Mr. Sumner's resolution 
was as follows : 

Whereas, it is provided in the Constitution that the United States shall 
guarantee to every State in the Union a republican form of government; and 
whereas, by reason of the failure of certain States to maintain Governments 
■which Congress can recognize, it has become the duty of the United States, 
standing in the place of guarantor, where the principal has made a lapse, 
to secure to such States, according to the requirement of the guarantee, 
governments republican in form; and whereas, further, it is provided in a 
recent constitutional amendment, that Congress may ' enforce ' the prohibi- 



374 THE THIRTY-NINTH CONGRESS. 

tion of slavery by ' appropriate legislation,' and it is important to this end 
that all relics of slavery should be removed, including all distinction of 
rights on account of color; now, therefore, to carry out the guarantee of a 
republican form of government, and to enforce the prohibition of slavery, 
"Be it resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That in all States lately declared to 
be in rebellion there shall be no oligarchy, aristocracy, caste, or monopoly 
invested with peculiar privileges or powers, and there shall be no denial of 
rights, civil or political, on account of color or race; but all persons shall 
be equal before the law, whether in the court-room or at the ballot-box ; 
and this statute, made in pursuance of the Constitution, shall be the su- 
preme law of the land, any thing in the constitution or laws of any such 
State to the contrary notwithstanding." 

According to notice given by the Chairman of the joint Com- 
mittee on Keconstruction on the part of the Senate, the proposed 
constitutional amendment came up for consideration on the fifth 
of February. 

Mr. Sumner addressed the Senate in opposition to the measure. 
His speech was five hours in length, and occupied parts of the 
sessions of two days in its delivery. Mr. Sumner argued that 
the proposed amendment would introduce "discord and defile- 
ment into the Constitution," by admitting that rights could be 
" denied or abridged on account of race or color," and that by its 
adoption Congress would prove derelict to its constitutional duty 
to guarantee a republican form of government to each State, and 
that having already legislated to protect the colored race in civil 
rights, it is bound to secure to them political rights also. 

Concerning the Committee on Keconstruction and their propo- 
sition, Mr. Sumner said : " Knowing, as I do, the eminent char- 
acter of the committee, its intelligence, its patriotism, and the 
moral instincts by which it is moved, I am at a loss to under- 
stand the origin of a proposition which seems to me nothing else 
than another compromise of human rights, as if the country 
had not already paid enough in costly treasure and more costly 
blood for such compromises in the past. I had hoped that the 
day of compromise with wrong had passed forever. Ample ex- 
perience shows that it is the least practical mode of settling ques- 
tions involving moral principles. A moral principle can not be 
compromised." 

He thought the proposed change in the Constitution could not 
properly be called an amendment. " For some time we have been 



BASIS OF REPRESENTATION. 375 

carefully expunging from the statute-book the word 'white/ and 
now it is proposed to insert in the Constitution itself a distinc- 
tion of color. An amendment, according to the dictionaries, 
is 'an improvement' — 'a change for the better.' Surely the 
present proposition is an amendment which, like the crab, goes 
backward." 

This measure would not accomplish the results desired -by its 
authors. " If by this," said he, " you expect to induce the recent 
slave-master to confer the right of suffrage without distinction 
of color, you will find the proposition a delusion and a snare. 
He will do no such thing. Even the bribe you offer will not 
tempt him. If, on the other hand, you expect to accomplish a 
reduction of his political power, it is more than doubtful if you 
will succeed, while the means you employ are unworthy of our 
country. There are tricks and evasions possible, and the cunning 
slave-master will drive his coach and six through your amend- 
ment, stuffed with all his Representatives." 

Drawing toward the close of his speech, Mr. Sumner gave the 
following review of his remarks that had preceded: "We have 
seen the origin of the controversy which led to the revolution, 
when Otis, with such wise hardihood, insisted upon equal rights, 
and then giving practical effect to the lofty demand, sounded the 
battle-cry that 'Taxation without Representation is Tyranny.' 
We have followed this controversy in its anxious stages, where 
these principles were constantly asserted and constantly denied, 
until it broke forth in battle; we have seen these principles 
adopted as the very frontlet of the republic, when it assumed its 
place in the family of nations, and then again when it ordained 
its Constitution; we have seen them avowed and illustrated in 
memorable words by the greatest authorities of the time ; lastly, 
we have seen them embodied in public acts of the States collect- 
ively and individually; and now, out of this concurring, cumu- 
lative, and unimpeachable testimony, constituting a speaking 
aggregation absolutely without precedent, I offer you the Amer- 
ican definition of a republican form of government. It is in vain 
that you cite philosophers or publicists, or the examples of former 
history. Against these I put the early and constant postulates 
of the fathers, the corporate declarations of the fathers, the avowed 
opinions of the fathers, and the public acts of the fathers, all with 
one voice proclaiming, first, that all men are equal in rights, and, 



376 THE THIRTY-NINTH CONGRESS. 

secondly, that governments derive their just powers from the 
consent of the governed; and here is the American idea of a 
republic, which must be adopted in the interpretation of the 
National Constitution. You can not reject it. As well reject the 
Decalogue in determining moral duties, or as well reject the mul- 
tiplication table in determining a question of arithmetic." 

Maintaining that "the rebel States are not republican govern- 
ments," Mr. Sumner said : " Begin with Tennessee, which dis- 
franchises 283,079 citizens, being more than a quarter of its whole 
'people.' Thus violating a distinctive principle of republican 
government, how can this State be recognized as republican? 
This question is easier asked than answered. But Tennessee is 
the least offensive on the list. There is Virginia, which dis- 
franchises 549,019 citizens, being more than a third of its whole 
'people.' There is Alabama, which disfranchises 436,030 citi- 
zens, being nearly one half of its whole 'people.' There "is 
Louisiana, which disfranchises 350,546 citizens, being one half of 
its whole ' people.' There is Mississippi, which disfranchises 
437,404 citizens, being much more than one half of its whole 
' people.' And there is South Carolina, which disfranchises 
412,408 citizens, being nearly two-thirds of its whole 'people.' 
A republic is a pyramid standing on the broad mass ef the peo- 
ple as a base ; but here is a pyramid balanced on its point. To 
call such a government ' republican ' is a mockery of sense and 
decency. A monarch, 'surrounded by republican institutions/ 
which at one time was the boast of France, would be less offensive 
to correct principles, and give more security to human rights." 

Of the Southern system of government he said : " It is essen- 
tially a monopoly, in a country which sets its face against all 
monopolies as unequal and immoral. If any monopoly deserves 
unhesitating judgment, it must be that which absorbs the rights 
of others and engrosses political power. How vain it is to con- 
demn the petty monopolies of commerce, and then allow this vast, 
all-embracing monopoly of human rights." 

Mr. Sumner maintained that the ballot was the great guaran- 
tee — " the only sufficient guarantee — being in itself peacemaker, 
reconciler, school-master, and protector." The result of conferring 
suffrage upon the negro will be, " The master will recognize the 
new citizen. The slave will stand with tranquil self-respect in 
the presence of the master. Brute force disappears. Distrust is 



BASIS OF REPRESENTATION. 377 

at an end. The master is no longer a tyrant. The freedinan is 
no longer a dependent. The ballot conies to him in his depres- 
sion, and says, ' Use me and be elevated.' It comes to him in his 
passion, and says, ' Use me and do not fight.' It comes to him 
in his daily thoughts, filling him with the strength and glory of 
manhood." 

Most beneficent results, it was thought, would flow from such 
legislation as that advocated by Mr. Sumner. "I see clearly," 
said he, " that there is nothing in the compass of mortal power so 
important to them in every respect, morally, politically, and eco- 
nomically — that there is nothing with such certain promise to them 
of beneficent results — that there is nothing so sure to make their 
land smile with industry and fertility as the decree of equal rights 
which I now invoke. Let the decree go forth to cover them with 
blessings, sure to descend upon their children in successive genera- 
tions. They have given us war ; we give them peace. They have 
raged against us in the name of slavery ; we send them back the 
benediction of justice for all. They menace hate; we offer in re- 
turn all the sacred charities of country together with oblivion of 
the past. This is our ' Measure for Measure.' This is our retali- 
ation. This is our only revenge." 

The following was the closing paragraph of Mr. Sumner's 
speech : " The Roman Cato, after declaring his belief in the im- 
mortality of the soul, added, that if this were an error, it was an 
error which he loved. And now, declaring my belief in liberty 
and equality as the God-given birthright of all men, let me say, 
in the same spirit, if this be an error, it is an error which I love ; 
if this be a fault, it is a fault which I shall be slow to renounce ; 
if this be an illusion, it is an illusion which I pray may wrap' the 
world in its angelic arms." 

On the seventh of February, the subject being again before the 
Senate, Mr. Henderson, of Missouri, moved to strike out the con- 
stitutional amendment proposed by the committee and insert the 
following : 

" Article 14. No State, in prescribing the qualifications requisite for elec- 
tors therein, shall discriminate against any person on account of color or 
race." 

Mr. Fessenden made a speech in favor of the report of the com- 
mittee, and in reply to Mr. Sumner. Referring to the subject of 
constitutional amendments, Mr. Fessenden said : " Something has 



378 THE THIRTY-NINTH CONGRESS. 

been said also, on different occasions, with reference to a disposi- 
tion that is said to prevail now to amend the Constitution, and 
the forbearance of Congress has been invoked with regard to 
that venerable and great instrument. I believe that I have as 
much veneration for the Constitution as most men, and I believe 
that I have as high an opinion of its wisdom ; but, sir, I proba- 
bly have no better opinion of it than those who made it, and it 
did not seem to them, as we learn from its very provisions, that 
it was so perfect that no amendment whatever could be made that 
would be, in the language of the Senator from Massachusetts, an 
improvement. Why, sir, they provided themselves, as we all 
know, in the original instrument, for its amendment. They, in 
the very earliest days of our history, amended it themselves." 

The result of retaining the "Constitution as it is" would be 
this : " The continuance of precisely the same rule, and the foster- 
ing of a feeling which the honorable Senator from Massachusetts 
has well proven to be contrary to the very foundation principles 
of a republican government. There can be no question that such 
would be the result ; and we should have in a portion of the States 
all the people represented and all the people acting, and in an- 
other portion of the States all the people represented and but a 
portion of the people only exercising political rights and retain- 
ing them in their own hands. Such has been the case, and such, 
judging of human nature as it is, we have a right to suppose will 
continue to be the case." 

The measure proposed by the committee was not entirely satis- 
factory to Mr. Fessenden. " I am free to confess," said he, " that 
could I legislate upon that subject, although I can see difficulties 
that would arise from it, yet trusting to time to soften them, and 
being desirous, if I can, to put into the Constitution a principle 
that commends itself to the consideration of every enlightened 
mind at once, I would prefer something of that sort, a distinct 
proposition that all provisions in the constitution or laws of any 
State making any distinction in civil or political rights, or priv- 
ileges, or immunities whatever, should be held unconstitutional, 
inoperative, and void, or words to that effect. I would like that 
much better; and I take it there are not many Senators within 
the sound of my voice who would not very much prefer it; but, 
after all, the committee did not recommend a provision of that 
description, and I stand here as the organ of the committee, ap- 



BASIS OF REPRESENTATION. 379 

proving what they have done, and not disposed to urge my own 
peculiar views, if I have any, against theirs, or to rely exclusively 
on my own judgment so far as to denounce what honorable and 
true men, of better judgments than myself, have thought best to 
recommend, and in which" I unite and agree with them." 

After having given objections to limiting the basis of repre- 
sentation to voters, Mr. Fessenden remarked: "And if you ex- 
tend it to citizens, or narrow it to citizens, you make it worse so 
far as many of the States are concerned ; for my honorable friends 
from the Pacific coast, where there is a large number of foreign- 
ers, would hardly be willing to have them cut off; and they have 
no benefit of political power in the legislation of the country 
arising from the number of those foreigners who make a portion 
of their population. The difficulty is, that you meet with troubles 
of this kind every- where the moment you depart from the prin- 
ciple of basing representation upon population and population 
alone. You meet with inequalities, with difficulties, with troubles, 
cither in one section of the country or the other, and you are inev- 
itably thrown back upon the original principle of the Constitution. 

"It will be noticed that the amendment which* we have thus 
presented has one good quality : it preserves the original basis of 
representation ; it leaves that matter precisely where the Consti- 
tution placed it in the first instance ; it makes no changes in that 
respect; it violates no prejudice; it violates no feeling. Every 
State is represented according to its population with this distinc- 
tion : that if a State says that it has a portion, a class, which is 
not fit to be represented— and it is for the State to decide — it 
shall not be represented ; that is all. It has another good point : 
it 'is equal in its operation ; all persons in every State are to be 
counted ; nobody is to be rejected. With the very trifling excep- 
tion fixed by the original Constitution, all races, colors, nations, 
languages, and denominations form the basis. 

But, sir, the great excellence of it— and I think it is an excel- 
lence^ — is, that it accomplishes indirectly what we may not have 
the power to accomplish directly. If we can not put into the 
Constitution, owing to existing prejudices and existing institu- 
tions, an entire exclusion of all class distinctions, the next ques 
tion is, can we accomplish that work in any other way ? " 

Concerning the "counter-proposition" of Mr. Sumner, the 
speaker said : " It is, in one sense, like a very small dipper with 



380 THE THIRTY-NINTH CONGRESS. 

a very long handle ; for the preamble is very much more diffuse 
than the proposed enactment itself. I looked to see what came 
next. I supposed that after that preamble we should have some 
adequate machinery provided for the enforcement and security 
of these rights; that we should have the matter put to the 
courts, and if the courts could not accomplish it, that we should 
have the aid of the military power, thus shocking the sensibili- 
ties of my honorable friend from Indiana [Mr. Hendricks] again. 
I do not know what good it does to merely provide by law that 
the provisions of the Constitution shall be enforced, without say- 
ing how, in what manner, by what machinery, in what way, to 
what extent, or how it is to be accomplished. Why reenact the 
Constitution of the United States and put it in a bill? What 
do you accomplish by it ? How is that a remedy ? It is simply 
as if it read in this way : Whereas, it is provided in the Consti- 
tution that the United States shall guarantee to every State in 
the Union a republican form of government, therefore we declare 
that there shall be a republican form of government and nothing 
else." 

Mr. Sumner had said, in his speech in opposition to the pro- 
posed amendment, " Above all, do not copy the example of Pon- 
tius Pilate, who surrendered the Savior of the world, in whom 
he found no fault at all, to be scourged and crucified, while he 
set at large Barabbas, of whom the Gospel says, in simple words, 
1 Now, Barabbas was a robber.' " 

To this Mr. Fessenden responded : " Is it a ' mean compro- 
mise ' — for so it is denominated — that the Committee of Fifteen 
and the House of Representatives, when they passed it, placed 
themselves in the situation of Pontius Pilate, with the negro for 
the Savior of the world and the people of the United States for 
Barabbas, as designated by the honorable Senator. Why, sir, I 
expected to hear him in the next breath go further than that, and 
say that with the Constitution of the United States and the con- 
stitutions of the States the negro had been crucified, and that 
now, by the amendment of the Constitution, the stone had been 
rolled away from the door of the sepulcher, and he had ascended 
to sit on the throne of the Almighty and judge the world ! One 
would have been, permit me to say with all respect, in as good 
taste as the other." 

In conclusion, Mr. Fessenden said : " I wish to say, in closing, 



BASIS OF REPRESENTATION. 381 

that I commend this joint resolution to the careful consideration 
of the Senate. It is all that we could desire ; it is all that our 
constituents could wish. It does not accomplish, as it stands now, 
all, perhaps, that it might accomplish; but it is an important 
step in the right direction. It gives the sanction of Congress, in 
so many words, to an important, leading, effective idea. It opens 
a way by which the Southern mind — to speak of it as the South- 
ern mind — may be led to that which is right and just. I have 
hopes, great hopes, of those who were recently Confederates ; and 
I believe that now that they have been taught that they can not 
do evil, to all the extent that they might desire, with impunity, 
and when their attention is turned of necessity in the right direc- 
tion, the road will seem so pleasant to their feet, or, at any rate, 
will seem so agreeable to their love of power, that they will be 
willing to walk in the direction that we have pointed. If they 
do, what is accomplished? In process of time, under this con- 
stitutional amendment, if it should be adopted, they are led to 
enlarge their franchise. That necessarily will lead them to con- 
sider how much further they can go, what is necessary in order 
to fit their people for its exercise, thus leading to education, thus 
leading to a greater degree of civilization, thus bringing up an 
oppressed and downtrodden race to an equality, if capable of an 
equality — and I hope it may be — with their white brethren, chil- 
dren of the same Father. 

" And, sir, if this is done, some of us may hope to live — I 
probably may not, but the honorable Senator from Massachusetts 
may — to see the time when, by their own act, and under the 
effect of an enlightened study of their own interests, all men may 
be placed upon the same broad constitutional level, enjoying the 
same rights, and seeking happiness in the same way and under 
the same advantages ; and that is all that we could ask." 

On the following day, the discussion was continued by Mr. 
Lane, of Indiana, who addressed the Senate in a speech of two 
hours' duration. Mr. Lane seldom occupied the time of the 
Senate by speech-making, but when he felt it his duty to speak, 
none upon the floor attracted more marked attention, both from 
the importance of his matter and the impressiveness of his 
manner. "* 

Much of Mr. Lane's speech, on this occasion, was devoted to 
the general subject of reconstruction, since he regarded the pend- 



382 TEE TEIRTY-NINTE CONGRESS. 

ing measure as one of a series looking to the ultimate restoration 
of the late rebel States. He was opposed to undue haste in this 
important work. He said : " The danger is of precipitate action. 
Delay is now what we need. The infant in its tiny fingers plays 
to-day with a handful of acorns, but two hundred years hence, 
by the efflux of time, those acorns are the mighty material out 
of which navies are built, the monarch of the forest, defying the 
shock of the storm and the whirlwind. Time is a mighty agent 
in all these affairs, and we should appeal to time. We are not 
ready yet for a restoration upon rebel votes; we are not ready 
yet for a restoration upon colored votes ; but, thank God ! we are 
willing and able to wait. "We have the Government, we have 
the Constitution of the United States, we have the army and the 
navy, the vast moral and material power of the republic. We 
can enforce the laws in all the rebel States, and we can keep the 
peace until such time as they may be restored with safety to them 
and safety to us." 

Of the measure proposed by the committee, Mr. Lane re- 
marked: "This amendment, as I have already endeavored to 
show, will do away with much of the irregularity now existing, 
and which would exist under a different state of things, the 
blacks being all free. So far as the amendment goes, I approve 
of it, and I think I shall vote for it, but with a distinct under- 
standing that it is not all that we are required to do, that it is 
not the only amendment to the Constitution that Congress is 
required to make." 

Mr. Lane expressed his opinion of Mr. Sumner's " counter- 
proposition " in the following language : " It is a noble declara- 
tion, but a simple declaration, a paper bullet that kills no one, 
and fixes and maintains the rights of no one." 

Of Mr. Henderson's proposition, he said : " It is a simple 
amendment to the Constitution of the United States, that no one 
shall be excluded from the exercise of the right of suffrage on 
account of race or color. That begins at the right point. The 
only objection to it is, that its operation can not be immediate, 
and in the mean time the rebels may be permitted to vote, and 
its adoption by the various State Legislatures is exceedingly 
doubtful. I should not doubt, however, that we might secure 
its adoption by three-fourths of the loyal States who have never 
seceded ; and I believe that whenever that question is presented, 



BASIS OF REPRESENTATION. 383 

the Supreme Court of the United States will determine that a 
ratification by that number of States is a constitutional approval 
of an amendment so as to make it the supreme law of the land. 
I have no doubt about it. 

" If the rebel States are to be organized immediately, the only 
question is whether the right of suffrage shall be given to rebel 
white men or loyal • black men. The amendment of the Senator 
from Missouri meets that issue squarely in the face. Whatsoever 
I desire to do I will not do by indirection. I trust I shall always 
be brave enough to do whatsoever I think my duty requires, 
directly and not by indirection." 

Mr. Lane, with several other Western Senators, had been 
counted as opposed to negro suffrage, hence his advocacy of the 
principle gave much strength to those who desired to take a po- 
sition in advance of the proposition of the committee. 

In reply to an oft-reiterated argument that a war of races would 
result from allowing suffrage to the negro, Mr. Lane remarked: 
" If you wish to avoid a war of races, how can that be accom- 
plished? By doing right;* by fixing your plan of reconstruction 
upon the indestructible basis of truth and justice. What lesson 
is taught by history? The grand lesson is taught there that re- 
bellions and insurrections have grown out of real or supposed 
wrong and oppression. A war of races ! And you are told to 
look to the history of Ireland, and to the history of Hungary. 
Why is it that revolution and insurrection are always ready to 
break out in Hungary? Because, forsooth, the iron rule of 
Austria has stricken down the natural rights of the masses. It 
is a protest of humanity against tyranny, oppression, that pro- 
duces rebellion and revolution. So in the bloody history of the 
Irish insurrections. Suppose the English Parliament had given 
equal rights to the, Irish, had enfranchised the Catholics in Ire- 
land in the reign of Henry VIII, long ere this peace and har- 
mony would have prevailed between England and Ireland. But 
the very fact that a vast portion of a people are disfranchised 
sows the seeds of continual and ever-recurring revolution and 
insurrection. It can not be otherwise. These insurrections and 
revolutions, which are but the protest of our common humanity 
against wrong, are one of the scourges in the hands of Providence 
to compel men to do justice and to observe the right. It is the 
law of Providence, written upon every page of history, that God's 



384 THE THIRTY-NINTH CONGRESS. 

vengeance follows man's wrong and oppression, and it will always 
be so. If you wish to avoid a war of races, if you wish to pro- 
duce harmony and peace among these people, you must enfranchise 
them all." 

On the following day, February 9th, Mr. Johnson, of Maryland, 
occupied the time devoted by the Senate to a consideration of this 
question with a speech against the propose^ amendment of the 
Constitution. Mr. Johnson said that when the Constitution was 
framed there was no such objection to compromising as now ex- 
isted in the minds of some Senators. " The framers of the Con- 
stitution came to the conclusion that the good of the country 
demanded that there should be a compromise, and they proposed, 
as a compromise, the provision as it now stands ; and that is, that 
for the purposes of representation, a person held in slavery, or in 
involuntary servitude, shall be esteemed three-fifths of a man and 
two-fifths property ; and they established the same rule in relation 
to taxation. They very wisely concluded that, as it was all-im- 
portant that some general rule should be adopted, this was the best 
rule, because promising more than any other rule to arrive at a 
just result of ascertaining the number of Representatives and 
ascertaining the quota of taxation." 

Mr. Johnson did not think that the North needed such a pro- 
vision as this amendment to render her able to cope with Southern 
statesmanship in Congress : " Are not the North and the states- 
men of the North equal to the South and the statesmen of the 
South on all subjects that may come before the councils of the 
nation ? What is there, looking to the history of the two sections 
in the past, which would lead us to believe that the North is in- 
ferior to the South in any thing of intellectual improvement or 
of statesmanship ? You have proved — and I thank God you have 
proved — that if listening to evil counsels, rendered effective, per- 
haps, by your own misjudged legislation, and by the ill-advised 
course of your own population, exhibited through the press and 
the pulpit, a portion of the South involved the country in a war, 
the magnitude of which no language can describe — you have 
proved yourselves adequate to the duty of defeating them in their 
mad and, as far as the letter of the Constitution is concerned, 
their traitorous purpose. And now, having proved your physical 
manhood, do you doubt your intellectual manhood? Mr. Presi- 
dent, in the presence in which I speak, I am restrained from 



BASIS OF REPRESENTATION. 3 So 

speaking comparatively of the Senate as it is and the Senate as 
it has been; but I can say this, with as much sincerity as man 
ever spoke, that there is nothing to be found in the free States 
calculated to disparage them properly in the estimation of the 
wise and the good. They are able to conduct the Government, 
and they will not be the less able because they have the advice 
and the counsels of their Southern brethren." 

In answer to the position that the Southern States were not 
possessed of a republican form of government, Mr. Johnson re- 
marked : " Did our fathers consider that any one of the thirteen 
States who finally came under the provisions of that Constitution, 
and have ever since constituted a part of the nation, were not 
living under republican forms of government? The honorable 
member will pardon me for saying that to suppose it is to dis- 
parage the memory of those great and good men. There was not 
a State in the Union when the Constitution was adopted that was 
republican, if the honorable member's definition of a republican 
government is the one now to be relied upon. A property qual- 
ification was required in all at that time. Negroes were not al- 
lowed to "vote, although free, in most of the States. In the 
Southern States the mass of the negroes were slaves, and, of 
course, were not entitled to vote. If the absence of the universal 
right of suffrage proves that the Government is not republican, 
then there was not a republican government within the limits of 
the United States when the Constitution was adopted; and yet 
the very object of the clause to guarantee a republican govern- 
ment — and the honorable member's citations prove it — was to 
prevent the existing governments from being changed by revolu- 
tion. It was to preserve the existing governments; and yet the 
honorable member would have the Senate and the country believe 
that, in the judgment of the men who framed the Constitution, 
there was not a republican form of government in existence. 

" The definition of the honorable member places his charge of 
antirepublicanism as against the present forms of constitution upon 
the ground of the right to vote. I suppose the black man has 
no more natural right to vote than the white man. It is the 
exclusion from the right that affects the judgment of the honora- 
ble member from Massachusetts. Voting, according to him, is a 
right derived from God ; it is in every man inalienable ; and its 
denial, therefore, is inconsistent and incompatible with the true 
25 



386 THE THIRTY-NINTH CONGRESS. 

object of a free government. If it be such a right, it is not less 
a rio-ht in the white man than in the black man ; it is not less a 
rio-ht in the Indian than in the white man or the black man ; it 
is not less a right in the female portion of our population than 
in the male portion. Then the honorable member from Massa- 
chusetts is living in an antirepublican government, and he ought 
not to stay there a moment if he can find any government which 
would be a government according to his theory. None has ex- 
isted since the world commenced, and it is not at all likely that 
any will exist in all time to come ; but if there is any such gov- 
ernment to be found on the face of the earth, let him leave Massa- 
chusetts, let him hug that angelic delusion which he hopes will 
encircle the whole world, and go somewhere, wheVe he can indulge 
it without seeing before him every day conclusive evidence that no 
such illusion exists at home. Leave Massachusetts, I beg the 
honorable member, just as soon as you can, or you will never be 
supremely happy." 

In conclusion, Mr. Johnson remarked, referring to the recent 
rebels: "Let us take them to our bosom, trust them, and as I 
believe in my existence, you will never have occasion to regret it. 
You will, if the event occurs, look back to your participation in 
it in future time with unmingled delight, because you will be able 
to date from it a prosperity and a national fame of which the 
world furnishes no example; and you will be able to date from 
it the absence of all cause of differences which can hereafter exist, 
which will keep us together as one people, looking to one destiny, 
and anxious to achieve one renown." 

On Tuesday, February 13th, the Senate resumed the consider- 
ation of the Basis of Representation. Mr. Sumner proposed to 
amend the proviso recommended by the committee — " all persons 
therein of such race or color shall be excluded from the basis of 
representation" — by adding the words "and they shall be ex- 
empt from taxation of all kinds." 

Mr. Henderson, of Missouri, occupied the attention of the Sen- 
ate, during a considerable part of this and the following day, in a 
speech against the proposition of the Committee of Fifteen, which 
he considered a compromise, surrendering the rights of the negro 
out of the hands of the General Government into the hands of 
States not fit to be intrusted with them. In favor of his own 
amendment prohibiting the States from disfranchising citizens on 



BASIS OF REPRESENTATION. 387 

the ground of color, Mr. Henderson said : " I propose to make 
the State governments republican in fact, as they are in theory. 
The States now have the power and do exclude the negroes for 
no other reason than that of color. If the negro is equally com- 
petent and equally devoted to the Government as the Celt, the 
Saxon, or the Englishman, why should he not vote ? If he pays 
his taxes, works the roads, repels foreign invasion with his mus- 
. ket, assists in suppressing insurrections, fells the forest, tills the 
soil, builds cities, and erects churches, what more shall he do to 
give him the simple right of saying he must be only equal in 
these burdens, and not oppressed? My proposition is put in the 
least offensive form. It respects the traditionary right of the 
States to prescribe the qualifications of voters. It does not re- 
quire that the ignorant and unlettered negro shall vote. Its 
words are simply that 'no State, in prescribing the qualifica- 
tions requisite for electors therein, shall discriminate against 
any person on account of color or race.' The States may yet 
prescribe an educational or property test ; but any such test shall 
apply to white and black alike. If the black man be excluded 
because he is uneducated, the uneducated white man must be ex- 
cluded too. If a property test be adopted for the negro, as in 
New York, the same test must apply to the white man. It 
reaches all the States, and not a few only, in its operation. I 
confess that, so far as I am personally concerned, I would go still 
further and put other limitations on the power of the States in 
regard to suffrage; but Senators have expressed so much distrust 
that even this proposition can not succeed, I have concluded to 
present it in a form the least objectionable in which I could frame 
it. It will be observed that this amendment, if adopted, will net 
prevent the State Legislatures from fixing official qualifications. 
They may prevent a negro from holding any office whatever 
under the State organization. It is a singular fact, however, that 
to-day, under the Federal Constitution, a negro may be elected 
President, United States Senator, or a member of the lower 
branch of Congress. In that instrument no qualification for 
office is prescribed which rejects the negro. The white man, not 
native born, may not be President, but the native-born African 
may be. The States, however, may, in this respect, notwith- 
standing this amendment, do what the Federal Constitution never 
did." 



388 THE THIRTY-NINTH CONGRESS. 

Mr. Henderson closed his speech with the following words: 
"The reasons in favor of my proposition are inseparably con- 
nected with all I have said. I need not repeat them. Every 
consideration of peace demands it. It must be done to remove 
the relics of the rebellion ; it must be done to pluck out political 
disease from the body politic, and restore the elementary princi- 
ples of our Government; it must be done to preserve peace iD 
the States and harmony in our Federal system ; it must be done , 
to assure the happiness and prosperity of the Southern people 
themselves; it must be done to establish in our institutions the 
principles of universal justice; it must be done to secure the 
strongest possible guarantees against future wars; it must be 
done in obedience to that golden rule- which insists upon doing 
to others what we would that others should do unto us ; it must 
be done if we would obey the moral law that teaches us to love 
our neighbors as ourselves; in fine, it must be done to purify, 
strengthen, and perpetuate a Government in which are now 
fondly centered the best hopes of mankind." 

Mr. Clark, of New Hampshire, addressed the Senate on the 
pending measure. He made the following interesting historical 
statements: "As the traveler who has passed a difficult road, 
when he comes to some high hill looks back to see the difficult- 
ies which he has passed, I turn back, and I ask the Senator to 
turn back, to consider what occurred, as I say, about six years 
ago. In the session of 1859-60, in the old Senate-chamber, a bill 
was brought into the Senate of the United States by the then 
Senator from Mississippi [Mr. Brown], who was chairman of the 
Committee on the District of Columbia, a place which my friend 
from Maine [Mr. Morrill] now so worthily fills — a bill in aid of 
the education of the children of this District. The bill proposed 
to grant certain fines and forfeitures to the use of the schools, and 
also proposed to tax the people ten cents on every hundred dollars 
of the property in this District for the purpose of educating the 
children. That bill proposed to tax the white man and the black 
man alike ; and fearing that the property of the black man would 
be taxed to educate the child of the white man, I proposed an 
amendment to the bill, that the tax collected from the black man 
should go to educate the black man's child. 

"There was also a further provision of the bill, that if the 
District raised a certain amount of money for the education of 



BASIS OF REPRESENTATION. 389 

the children, the Government of the United States would appro- 
priate a like amount from the Treasury. If, for instance, you 
raised $20,000 by taxes on the people in the District, the Gov- 
ernment should pay $20,000 more, to be added to it for the ed- 
ucation of the children of the District. I moved the amendment 
that no child whose father paid any portion of that tax for the 
education of the children should be excluded from ' the benefit 
of it, be he white or black; but that there might be no incon- 
venience felt, I agreed to an amendment that the black child 
should not be put into the same school with the white child, but 
that they should be educated in different schools to be provided 
for them ; but if the black man paid for educating the children 
of the District, his child should be educated. There was at 
once an outcry, ' Why, this is social equality of the two races ; 
this Is political equality;' and they would not consent that the 
black child should be educated, even with the money of the 
black father. That amendment was declared to be carried in the 
Senate of the United States, and after declaring it was carried, 
the Senate adjourned, and after the adjournment, the chairman 
of that committee, Mr. Brown, appealed to me personally if I 
would not withdraw it. I said to him, ''No, I would never 
withdraw it ; if you tax the black man, the black man should 
have a part of the money that you raise from him to educate 
his child.' 

" After some days, the bill came up again in the Senate of the 
United States, and the Senator from Mississippi, the chairman 
of the Committee on the District of Columbia, got up and in 
open Senate appealed to me, ' Will the Senator from New 
Hampshire withdraw that amendment?' ' Never, Mr. Presi- 
dent.' 'Then,' said the Senator from Mississippi, 'I will lay 
the bill aside, and will not ask the Senate to pass it;' and so 
the whole scheme failed, because they would not consent that 
the money of the black man should educate his own child, and 
they could not vote it to educate a white child. 

"Now I turn back to that time six years ago, and I mark 
the road that we have come along. I mark where we struck the 
chains from the black man in this same District, whose child 
you could not educate six years ago; I mark, in this Senate, 
at this very session, that we have passed a bill in aid of the 
Freedmen's Bureau to secure to him his rights in this District; 



390 THE THIRTY-NINTH CONGRESS. 

I mark that all through this nation we have stricken off the 
chains of the slave and secured to the slave his rights elsewhere 
in the Union ; and we have now come to the height of the hill, 
and are considering whether we will 'not enfranchise those very 
black men through all the country." 

In favor of granting political rights to the negro, Mr. Clark 
made the following remarks : " Mr. President, the question of the 
negro has troubled the nation long. His condition as a slave 
troubled you; and his condition as a freedman troubles you. 
Are you sick, heart-sick of this trouble? and do you inquire 
when will it end ? I will tell you. When you have given him 
equal rights, equal privileges, and equal security with other citi- 
zens; when you have opened the way for him to be a man, then 
will you have rendered exact justice which can alone insure sta- 
bility and content. 

" Sir, if I ever did hold that this Government was made or 
belonged exclusively to the white man, I should now be ashamed 
to avow it, or to claim for it so narrow an application. The 
black man has made too many sacrifices to preserve it, and en- 
dangered his life too often in its defense to be excluded from it. 
The common sentiment of gratitude should open its doors to him, 
if not political justice and equality. 

"Mr. President, my house once took fire in the night-time; 
my two little boys were asleep in it, when I and their mother 
were away. The neighbors rushed into it, saved the children, and 
extinguished the flames. "When I reached it, breathless and ex- 
hausted, the first exclamation was, ' Your children are safe/ Can 
you tell me how mean a man I should have been, and what exe- 
cration I should have deserved, if the next time those neighbors 
came to my house I had kicked them out of it? Tell me, then, 
I pray you, why two hundred thousand black men, most of whom 
volunteered to fight your* battles, who rushed in to save the burn- 
ing house of your Government, should not be permitted to par- 
ticipate in that Government which they helped to preserve? 
When you enlisted and mustered these men, when your adjutant- 
general went South, and gathered them to the recruiting-office, 
and persuaded them to join your ranks, did he, or any one, tell 
them this was the white man's Government ? When they came 
to the rendezvous, did you point to the sign over the door, Black 
men wanted to defend the white man's Government?' When 



BASIS OF REPRESENTATION. 391 

you put upon them the uniform of the United States, did you say, 
( Do n't disgrace it ; this is the white man's Government ? ' When 
they toiled on the march, in the mud, the rain, and the snow, 
and when they fell out of the ranks from sheer weariness, did 
you cheer them on with the encouragement that 'this is the 
white man's Government ?' 

" When they stood on picket on the cold, stormy night to guard 
you against surprise, did you creep up and warm their congealing 
blood with an infusion of the white man's Government ? When, 
with a wild hurrah, on the ' double-quick/ they rushed upon the 
enemy's guns, and bore your flag where men fell fastest and war 
made its wildest havoc, where explosion after explosion sent their 
mangled bodies and severed limbs flying through the air, and 
they fell on glacis, ditch, and scarp and counterscarp, did you 
caution them against such bravery, and remind them that ' this 
was the white man's Government ? ' And when the struggle was 
over, and many had fought ' their last battle,' and you gathered 
the dead for burial, did you exclaim, ' Poor fools ! - how cheated ! 
this is the white man's Government?' No, no, sir; you beck- 
oned them on by the guerdon of freedom, the blessings of an equal 
and just Government, and a ' good time coming.' 

"< White man's Government,' do you say? Go to Fort Pil- 
low ; stand upon its ramparts and in its trenches, and recall the 
horrid butchery of the black man there because he had joined you 
against rebellion, and then say, if you will, ' This is the white 
man's Government.' Go to Wagner. Follow in the track of the 
Massachusetts Fifty-fourth, as they went to the terrible assault, 
with the guns flashing and roaring in the darkness. Mark how 
unflinchingly tlfey received the pelting iron hail into their bosoms, 
and how they breasted the foe ! See how nobly they supported, 
and how heroically they fell with their devoted leader ; count the 
dead ; pick up the severed limbs ; number the wounds ; measure 
the blood spilled ; and remember why and wherefore and in whose 
cause the negro thus fought and suffered, and then say, if you can, 
' This is the white man's Government.' Go to Port Hudson, go 
to Richmond, go to Petersburg, go anywhere and every-where — 
to every battle-field where the negro fought, where danger was 
greatest arid death surest — and tell me, if you can, that ' this is 
the white man's Government,' And then go to Salisbury and 
Columbia and Andersonville, and as you shudder at the ineffable 



892 ■ THE THIRTY-NINTH CONGRESS. 

miseries of those dens, and think of thcfse who ran the dead-line, 
and were not shot, but escaped to the woods and were concealed 
and fed and piloted by the black men, and never once betrayed, 
but often enabled to escape and return to their friends, and then 
tell me if ' this is a white man's Government.' 

" In ancient Rome, when one not a citizen deserved well of the 
republic, he was rewarded by the rights of citizenship, but we 
deny them, and here in America — not in the Confederate States 
of America, where, attempting to found a government upon 
slavery and the subjection of one race to another, it would have 
been fitting, if anywhere, but in the United States of America, 
the cardinal principle of whose Government is the equality of all 
men. After these black men have so nobly fought to maintain 
the one and overthrow the other, when they ask us for the neces- 
sary right of suffrage to protect themselves against the rebels they 
have fought, and with whom they are compelled to live, we coolly 
reply, ' This is the white man's Government.' Nay, more, and 
worse, we have refused it to them, and allowed it to their and our 
worst enemies, the rebels. Sir, from the dim and shadowy aisles 
of the past, there comes a cry of ' Shame ! shame !' and pagan 
Rome rebukes Christian America. 

" But not chiefly, Mr. President, do I advocate this right of the 
black man to vote because he has fought the battles of the repub- 
lic and helped to preserve the Union, but because he is a citizen 
and a man — one of the people, one of the governed — upon whose 
consent, if the Declaration of Independence is correct, the just 
powers of the Government rest ; an intelligent being, of whom 
and for whom God will have an account of us, individually and 
as a nation; whose blood is one with ours, whose destinies are 
intermingled and run with ours, whose life takes hold on immor- 
tality with ours, and because this right is necessary to develop 
his manhood, elevate his race, and secure for it a better civiliza- 
tion and a more enlightened and purer Christianity." 

On the 15th of February, Mr. Sumner presented a memorial 
from George T. Downing, Frederick Douglass, and other colored 
citizens of the United States, protesting against the pending con- 
stitutional amendment as introducing, for the first time, into the 
Constitution a grant to disfranchise men on the ground of race 
or color. In laying this memorial before the Senate, Mr. Sum- 
ner said : "I do not know that I have at any time presented a 



BASIS OF REPRESENTATION. 393 

memorial which was entitled to more respectful consideration than 
this, from the character of its immediate signers and from the vast 
multitudes they represent. I hope I shall not depart from the 
proper province of presenting it if I express my entire adhesion 
to all that it says, and if I take this occasion to entreat the Sen- 
ate, if they will not hearken to arguments against the pending 
proposition, that they will at least hearken to the voice of these 
memorialists, representing the colored race of our country." 

Mr. Williams, of Oregon, argued in favor of the resolution 
reported by the committee as the best measure before the Senate. 
He was for proceeding slowly in the work of reconstruction.- In 
his opinion, neither the negro nor his master was now fit to vote. 
Upon this point he said : " It seems to me there can be little 
doubt that at this particular time the negroes of the rebel States 
are unfit to exercise the elective franchise. I have recently con- 
versed with two officers of the Federal army from Texas, who 
told me that there, in the interior and agricultural portions of 
the State, the negroes do not yet know that they are free; and 
one of the officers told me that he personally communicated to 
several negroes for the first time the fact of their freedom. Eman- 
cipation may be known in the towns and cities throughout the 
South, but the probabilities are that in the agricultural portions 
of that country the negroes have no knowledge that they are free, 
or only vague conceptions of their rights and duties as freemen. 
Sir, give these men a little time ; give them a chance to learn that 
they are free; give them a chance to acquire some knowledge of 
their rights as freemen ; give them a chance to learn that they 
are independent and can act for themselves; give them a chance 
to divest themselves of that feeling of entire dependence for sub- 
sistence and the sustenance of their families upon the landholders 
of the South,' to which they have been so long accustomed ; give 
them a little time to shake the manacles off of their minds that 
have just been stricken from their hands, and I will go with the 
honorable Senator from Massachusetts to give them the right of 
suffrage. And I will here express the hope that the day is not 
far distant when every man born upon American soil, within the 
pale of civilization, may defend his manhood and his rights as a 
freeman by that most effective ballot which 

'"Executes the freeman's will 
As lightning does the will of God.' 



394 THE THIRTY-NINTH CONGRESS. 

Concerning the amendment proposed by Mr. Henderson, Mr. 
"Williams said : " All the impassioned declamation and all the 
vehement assertions of the honorable Senator do not change or 
affect the evidence before our eyes that the people of these United 
States are not prepared to surrender to Congress the absolute 
right to determine as to the qualifications of voters in the respect- 
ive States, or to adopt the proposition that all persons, without 
distinction of race or color, shall enjoy political rights and priv- 
ileges equal to those now possessed by the white people of the 
country. Sir, some of the States have lately spoken upon that 
subject. Wisconsin and Connecticut, Northern, loyal, and Repub- 
lican States, have recently declared that they would not allow the 
negroes within their own borders political rights ; and is it prob- 
able that of the thirty-six States, more than six, at the most, 
would at this time adopt the constitutional amendment proposed 
by the gentleman ? " 

Notwithstanding the temporary darkness of the political sky, 
Mr. Williams saw brilliant prospects before the country. " This 
nation," said he, "is to live and not die. God has written it 
among the shining decrees of destiny. Inspired by this hope and 
animated by this faith, we will take this country through all its 
present troubles and perils to the promised land of perfect unity 
and peace, where freedom, equality, and justice, the triune and 
tutelar deity of the American Republic, will rule with righteous- 
ness a nation ' whose walls shall be salvation and whose gates 
praise.' " 

At the close of this speech, the Senate being about to proceed 
to a vote upon the pending amendment, it was proposed to defer 
action and adjourn the question over to the following day, for the 
purpose of affording an opportunity for speeches by Senators who 
were not prepared to proceed immediately. Mr. Fessenden, who 
had the measure in charge, protested against the delays of the 
Senate. " This subject," said he, " has dragged along now for 
nearly two weeks. If members desire to address the Senate, 
they must be prepared to go on and do so without a postpone- 
ment from day to day for the purpose of allowing every gentle- 
man to make his speech in the morning, and then adjourning early 
every evening. We shall never get through in that way. I give 
notice to gentlemen that I shall begin to be a little more quar- 
relsome — I do not know that it will do any good — after to-day." 



BASIS OF REPRESENTATION. 395 

On the day following, Mr. Hendricks delivered a speech of 
considerable length in opposition to the constitutional amend- 
ment. After having maintained that the proposition did not rest 
the right of representation upon population, nor upon property, 
nor upon voters, Mr. Hendricks inquired : " Upon what prin- 
ciple do Senators propose to adopt this amendment to the Con- 
stitution ? I can understand it if you say that the States shall 
be represented in the House of Representatives upon their pop- 
ulation ; I can understand it if you say that they shall be repre- 
sented upon their voters ; but when you say that one State shall 
have the benefit of its non-voting population and another State 
shall not, I can not understand the principle of equity and justice 
which governs you in that measure. Sir, if it does not stand upon 
a principle, upon what does it rest? It rests upon a political 
policy. A committee that had its bi