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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, including the constitutional right of bearing arms, 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, or wherein they or any of them are subjected to any other or different punishment, pains, or penalties, for the commission of any act or offence than are prescribed for white persons committing like acts or offences, it shall 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 discriminated against.
February 6-The bill passed-yeas 137, nays 33, as follow:
YEAS-Messrs. Alley, Allison, Ames, Anderson, Delos R Ashley, James M. Ashley, Baker, Baldwin, Banks, Barker, Baxter, Beaman, Benjamin, Bidwell, Bingham, Blaine, Blow, Boutwell, Brandegee, Bromwell, Broomall, Bundy, Reader w. Clarke, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, Defrees, Delano, Deming, Dixon, Donnelly, Driggs, Dumont, Eckley, Eggleston, Eliot, FarnsAbner C. Harding, Hart, Hayes, Henderson, Higby, Hill, Worth, Farquhar. Ferry, Garfield, Grinnell, Griswold, Hale, Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John H. Hubbard, James R. Hubbell, James Humphrey, Inge soll, Jenckes, Julian, Kasson, Kelley, Kelso, Ketcham, Kuykendall, Laflin, Latham, George V. Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, Marvin, McClurg, McIndoe, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O'Neill, Orth, Paine, Patterson, Perham, Phelps, Pike, Plants, Pomeroy, Price, William H. Randall, Raymond, Alexander H. Rice, John H. Rice, Rollins, Sawing, Starr, Stevens, Stilwell, Thayer, Francis Thomas, John yer, Schenck, Scofield. Shellabarger, Sloan, Smith, Spald L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Ward, Warner, Elihu B. Washburne, William B. Washburn, Welker, Wentworth. Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, Woodbridge-137.
NAYS-Messrs. Boyer, Brooks, Chanler, Dawson, Eldridge, Finck, Glossbrenner, Grider, Aaron Harding, Harris, Hogan, Edwin N. Hubbell, James M. Humphrey, Kerr, Le Blond Marshall, McCullough, Niblack, Nicholson, Noell, Samuel J. Randall, Ritter, Rogers, Ross. Rousseau, Shanklin, Sitgreaves, Strouse, Taber, Taylor, Thornton, Trimble, wright-33.
February 21-In Senate, the vote on passing the bill, notwithstanding the objections of the President, was-yeas 30, nays 18, as follow:
YEAS-Messrs. Anthony, Brown, Chandler, Clark, Conness,
Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morrill, Nye, Poland, Pomeroy, Ramsey. Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, provi-Yates-30.
SEC. 8. That any person who, under color of any State or local law, ordinance, 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 involuntary servitude, or for any other cause, to the deprivation 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 offences, shall be deemed guilty of a misdemeanor, and be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both; and it shall be the duty of the officers and agents of this bureau to take jurisdiction of, and hear and determine all offences committed against the sions of this section, and also of all cases affecting negroes, mulattoes, freedmen, refugees, or other who are discriminated against persons any of the particulars mentioned in the preceding section of this act, under such rules and regulations as the President of the United States, through the War Department, shall prescribe. preThe jurisdiction conferred by this and the ceding section on the officers and agents of this bureau shall 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 interrupted 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 disturbed or stopped in the peaceable course of justice.
SEO. 9. That all acts, or parts of acts, inconsistent with the provisions of this act, are hereby_repealed.
NAYS-Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Stewart, Stockton, Van Winkle, Willey-18,
Two-thirds not having voted therefor, the bill failed.
Veto of the Civil Rights Bill, March 27, 1866. To the Senate of the United States:
I regret 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 of their vindication," contains provisions which I cannot approve, consistently with my sense of duty to the I am therefore conwhole people, and my obligations to the Constitution of the United States. 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 Chinese of the Pacific States, Indians subject to taxation, the peo
The votes on passing this bill were: IN SENATE. 1866, January 25-The bill passed-yeas 37, ple called Gipsies, as well as the entire race desnays 10, as follow:
YEAS-Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Dixon, Doolittle, Fessenden, Foot,
ignated as blacks, people of color, negroes, mu Every lattoes, and persons of African blood individual of these races, born in the United
States, is by the bill made a citizen of the United | land their home, must undergo a probation of five States. It does not purport to declare or confer years, and can only then become citizens upon any other right of citizenship than federal citi- proof that they are "of good moral character, zenship. It does not purport to give these classes attached to the principles of the Constitution of of persons any status as citizens of States, ex- the United States, and well disposed to the good cept that which may result from their status as order and happiness of the same." 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.
ren, it is enacted, for instance, that no white person shall intermarry with a negro or mulatto. Chancellor Kent says, speaking of the blacks, that "marriages between them and the whites are forbidden in 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 revolting, and regarded as an offence against public decorum."
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 Territory in the United States." These rights are, to make and enforce contracts, to sue, be The right of federal citizenship thus to be con- parties, and give evidence; to inherit, purchase, ferred on the several excepted races before men- lease, sell, hold, and convey real and personal tioned, is now, for the first time, proposed to be property;" and to have "full and equal benefit of given by law. If, as is claimed by many, all all laws and proceedings for the security of person persons who are native-born already are, by virtue and property as is enjoyed by white citizens." of the Constitution, citizens of the United States, So, too, they are made subject to the same punishthe passage of the pending bill cannot be neces-ments, pains, and penalties in common with white sary to make them such. If, on the other hand, citizens, and to none other. Thus a perfect such persons are not citizens, as may be assumed equality of the white and colored races is atfrom the proposed legislation to make them such, tempted to be fixed by federal law in every State the grave question presents itself, whether, when of the Union, over the vast field of State jurisdiceleven of the thirty-six States are unrepresented tion covered by these enumerated rights. In no in Congress at the present time, it is sound policy one of these can any State ever exercise any to make our entire colored population and all power of discrimination between the different other excepted classes citizens of the United races. In the exercise of State policy over matStates? Four millions of them have just ters exclusively affecting the people of each State, emerged from slavery into freedom. Can it be it has frequently been thought expedient to disreasonably supposed that they possess the requi- criminate between the two races. By the stat site qualifications to entitle them to all the priv-utes of some of the States, northern well as southileges 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 the civil rights proposed to be conferred by the bill? Those rights are, by federal as well as State laws, secured to all domiciled aliens and foreigners, even before the completion 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 stran gers 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 receive and to exercise the rights of citizens, as contemplated by the Constitution of the United States. The bill, in effect, proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just 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 himself 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
I do not say that this bill repeals State laws on the subject of marriage between 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 connot, 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, Congress may not also repeal the State laws as to the contract of marriage between the two races? Hitherto every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States. They all relate to the internal police and economy of the respective States. They are matters which in each State concern the domestic condition of its people, varying in each according to its own peculiar circumstances 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 contracts; and, as to crimes, that no State shall pass an ex post facto law; and, as to money, that no State shall make anything but gold and silver a legal
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 unconstitu tional; 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
tender. But where can we find a federal prohi- | imprisonment for the performance of the duties bition 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 re-law is paramount, and "under color" of a State peal, in the same way, all State laws discriminating between the two races on the subjects 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 provision exists vesting 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 "4 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 one thousand dollars, or 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 consideration. It provides for counteracting such forbidden legislation by imposing 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 offence-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 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 marshals 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 other tribunals, and there subjected to fine and
law refuse the exercise of the right to the negro, your error of judgment, however conscientious, shall subject 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 constitutionality.
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 preserved 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 unconstitutional; 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 offences 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 cannot 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 denial or deprivation of such rights "in the courts or judicial tribunals of the State." It stands, therefore, clear of doubt that the offence and the penalties provided in the second section are intended for the State judge, who, in the clear exercise of his functions as a judge, not acting ministerially but judicially, shall decide contrary to this federal law. În 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 responsibility, 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 It may be assumed that this authority is inthe sacred and exclusive duty of judicial decision,cident to the power granted to Congress by tho and converts the State judge into a mere ministerial officer, bound to decide according to the will of Congress.
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, commissioners, who are to be charged with the performance of quasi judicial duties. The fifth
Constitution, as recently amended, to enforco, by appropriate legislation, the article declaring that neither slavery nor involuntary servitudo, It is clear that, in States which deny to per- except as a punishment for crime whereof the sons whose rights are secured by the first section party shall have been duly convicted, shall exist of the bill any one of those rights, all criminal within the United States, or any place subject and civil cases affecting them will, by the pro- to their jurisdiction." It cannot, however, be visions of the third section, come under the ex- justly claimed that, with a view to the enforceclusive cognizance of the federal tribunals. It ment of this article of the Constitution, there is follows that if, in any State which denies to a at present any necessity for the exercise of all colored person any one of all those rights, that the powers which this bill confers. Slavery has person should commit a crime against the laws been abolished, and at present nowhere exists of a State-murder, arson, rape, or any other within the jurisdiction of the United States; nor crime all protection and punishment through has there been, nor is it likely there will be, any the courts of the State are taken away, and he attempt to revive it by the people or the States. can only be tried and punished in the federal If, however, any such attempt shall be made, it courts. How is the criminal to be tried? If will then become the duty of the General Govthe offence is provided for and punished by fed-ernment to exercise any and all incidental eral law, that law, and not the State law, is to govern. It is only when the offence does not happen to be within the purview of 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, when-section empowers the commissioners so to b ever 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 "shill 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 ambassadors, 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 defined; 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 confine them to the classes enumerated in the aboverecited clause of the Constitution. This section of the bill undoubtedly comprehends cases 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 exercise of authority well calculated to excite distrust and alarm on the part of 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.
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 performance 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 militia, 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 a manner as, while subserving 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 dollars 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 commission," "in general for performing such other duties 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; but in case of conviction they are to be
recoverable from the defendant. It seems to State an absorption and assumption of power me that under the influence of such temptations by the General Government which, if acquiesced bad men might convert any law, however bene-in, must sap and destroy our federative system ficent, 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 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 or naval forces of the United States or of the militia as shall be necessary to prevent the violation and enforce to 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 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 intelligence, 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 federal 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 legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same
of limited powers, and break down the barriers which preserve the rights of the States. It is another step, or rather stride, towards centralization, and the concentration of all legislative powers in the national Government. The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences 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 gnarantee has been rendered especially obligatory and sacred by the amendment of the Constitution abolishing 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 co-operate 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 process, under equal and impartial laws, in conformity with the provisions of the Federal Constitution.
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.
Copy of the Bill Vetoed. AN ACT to protect all persons in the United States in their civil rights, and furnish the means of their vindication.
Be it enacted, &c., 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 equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall