Volume 13 — PROTECTION OF CIVIL RIGHTS.

Remarks in the Senate, February 9, 1866.

January 5, 1866, Mr. Trumbull, of Illinois, introduced “a bill to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” which was referred to the Judiciary Committee, of which he was Chairman. By this bill all courts, National and State, were opened to colored persons as parties and witnesses as to white citizens, and they were subject to like punishments. January 11th, he reported it to the Senate with amendments, and the next day the Senate proceeded to its consideration. The amendments were adopted, when, on motion of Mr. Trumbull, it was postponed. January 25th, its consideration was resumed, and continued until February 2d, when it passed the Senate,—Yeas 33, Nays 12.

March 13th, the bill passed the House of Representatives, with amendments,—Yeas 111, Nays 38. The Senate promptly concurred in the House amendments.

March 27th, President Johnson returned the bill to the Senate with his objections.

April 6th, after debate of several days, the bill passed the Senate again, notwithstanding the veto of the President, two thirds agreeing,—Yeas 33, Nays 15.

April 9th, it passed the House again, notwithstanding the veto of the President, two thirds agreeing,—Yeas 122, Nays 41.

Mr. Sumner, on the first day of the session, had introduced a “Bill supplying appropriate legislation to enforce the Amendment to the Constitution prohibiting Slavery.”[212] He had also succeeded at an earlier day in opening the courts of the District of Columbia,[213] and then the courts of the United States, to colored testimony.[214] The bill of Mr. Trumbull was introduced after consultation with Mr. Sumner, who watched its progress with absorbing interest, not doubting that it would be a precedent for a similar bill securing political rights. That the latter were embraced in civil rights was ably stated by Mr. Bingham, of Ohio, in the House of Representatives, while the Civil Rights Bill was under discussion.

“A distinction is taken, I know very well, in modern times, between civil and political rights. I submit with all respect that the term ‘political rights’ is only a limitation of the term ‘civil rights,’ and by general acceptation signifies that class of civil rights which are more directly exercised by the citizen in connection with the government of his country. If this be so, are not political rights all embraced in the term ‘civil rights,’ and must it not of necessity be so interpreted? Blackstone, whose Commentaries on the Common Law are so exact in definition, uses in that classic of the law the terms ‘civil liberty’ and ‘political liberty’ everywhere as synonymous. It never occurred to him that there was a colorable distinction between them.”[215]

Another point equally clear to Mr. Sumner was, that a bill to secure equal rights at the ballot-box was “appropriate legislation” in enforcement of the Constitutional Amendment abolishing Slavery, just as much as the Civil Rights Bill. If the latter was constitutional, so also was the former. This appears in the speech of February 5th and 6th, and also in that of March 7th. But he took care to present it briefly in the debate on the Constitutional Amendment.

February 9th, interrupting Mr. Reverdy Johnson, of Maryland, with his permission, Mr. Sumner, after reading the operative words of the Civil Rights Bill, which had already passed the Senate and was then pending in the House, said:—

As I understand it, this bill, which, as the Senator will see, actually annuls all State laws, everywhere throughout the United States, fixing any inequality in civil rights, is founded upon the second clause of the recent Amendment to the Constitution abolishing Slavery. Now the point to which I ask the attention of the Senator, before he passes from this branch of the discussion, is, whether, if we can annul all State laws declaring inequality in civil rights, we cannot also annul all State laws declaring inequality in political rights? whether, if this bill is constitutional, as I believe it is, such a bill as I propose would not also be constitutional? And in this connection I call attention to the famous judgment of Chief Justice Marshall, which the Senator remembers so well, in the case of M’Culloch v. The State of Maryland,[216] where the Chief Justice distinctly announces, having the point before him, that it is within the power of Congress to select its means, provided the means are appropriate to the end, and it is not for the Supreme Court, or any other branch of the Government, to sit in judgment on the means Congress chose to select. Therefore, if Congress now think, that, to enforce the abolition of Slavery, it is necessary, in the first place, to annul all inequality of civil rights, and, in the second place, to annul all inequality of political rights, I ask the Senator whether the latter proposition can be called in question?—whether an Act of Congress annulling all State laws declaring inequality of political rights is not absolutely constitutional, being “appropriate legislation” to enforce the Constitutional Amendment?

Mr. Johnson replied, that he had stated more than once that the bill on which Mr. Sumner “now relies is unconstitutional,” and then said:—

“But even supposing it to be within the power of Congress to pass a law of that kind, it by no means follows that I think it has power to pass a law placing all the inhabitants of the States on the same political ground.”

Later in his speech Mr. Sumner interrupted Mr. Johnson again, with his permission:—

My argument is, that, if, to carry out the prohibition of Slavery, and to complete the duty of Abolition, it shall be regarded necessary to confer the franchise, it is within the power of Congress so to do. And now I ask my honorable friend to give the Senate the benefit of his opinion on this precise point. If Congress, under the Constitutional Amendment, can secure equality of civil rights, may it not, a fortiori, secure equality in political rights, under the same clause? I do not ask the Senator whether in his opinion it may under that clause confer equality in civil rights. I assume that it can, and the Senator knows well that the Senate has acted accordingly. Senators all about me assume that power; and now I ask the Senator, as a Constitutional lawyer to whom we refer daily, whether, if you can do the one, you cannot do the other?

Mr. Johnson replied at once: “I answer that in the negative very decidedly, and have only time to give a few reasons for it.”

The following remarks, sketched for a speech on the veto of the Civil Rights Bill, and not delivered, are presented here in illustration of opinion at that time.

If I have not taken part in this debate, it is not from lack of interest in the question, but because on other occasions I have expressed my views on our duty to maintain the freedmen in their rights, civil and political, and since the cause, in the hands of the able Chairman of the Judiciary Committee [Mr. Trumbull], needed no assistance from me. I cannot disguise my joy that a measure like that now pending should receive the support it does. This is an augury for the future. If I were disposed to despair on other questions, I should take heart, when I see how Senators, once lukewarm, indifferent, or perhaps hostile, now generously unite in securing protection to the freedman by Act of Congress.

But, Mr. President, I am unwilling that this debate should close without at least one remark applicable to the future. You are about to decree that colored persons shall enjoy the same civil rights as white persons,—in other words, that with regard to civil rights there shall be no distinction of color; and this you do under the Constitutional Amendment by which Congress is empowered to “enforce” the prohibition of Slavery by “appropriate legislation.” Rightly you regard the present proposition as “appropriate legislation” to this end. It is so, unquestionably. But I should fail in frankness, if I did not give notice that at the proper time I shall insist that every reason, every argument, every consideration, by which you assert the power of Congress for the protection of colored persons in civil rights, is equally strong for their protection in political rights. There is no difference between the two cases. In each you legislate to the same end,—that the freedman may be maintained in that liberty so tardily accorded; and the legislation is just as appropriate in one case as in the other.

All this, Sir, I have seen from the beginning; but I have been unwilling to embarrass the present bill by any additional proposition. The protection of colored persons in their civil rights by Act of Congress will be a great event. It will be great in itself. It will be greater still because it establishes the power of Congress, without further Amendment of the Constitution, to protect colored persons in all their rights, including of course the elective franchise. The power is ample. I trust that you will not hesitate to exercise it.

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The able and exhaustive argument of the Senator from Illinois [Mr. Trumbull] has rendered all minute discussion of the veto superfluous. He has taken it up paragraph by paragraph, and has shown how absolutely unfounded it is in reason or authority. And then again, when the Senator from Maryland [Mr. Johnson] attempted to vindicate it, he has most successfully quoted that Senator against himself. If argument could avail, the veto is already lost, even without a vote.

But there are considerations of a more general character, which I desire to present very briefly; for at this stage of the debate I cannot venture to trespass on your attention.

Sir, you do not forget the Dred Scott decision, pronounced just as Mr. Buchanan was coming into power,—fit decision to inaugurate such a Presidency. Take it all in all, that decision must always stand forth in bad eminence, as perhaps the most thoroughly perverse and reprehensible in judicial history. Whether regarded in the light of morals or politics or jurisprudence, or of juridical history, it was simply shocking. It was an insult to conscience, to reason, and to truth.

The essential element of this decision was, that persons “guilty of a skin not colored like our own” could not be citizens of the United States; and this postulate was sustained by that remarkable assertion, outrageously false in history, that at the adoption of the Constitution colored persons were regarded as having no rights which the white man was bound to respect,—when, in point of fact, at that time they enjoyed the right of citizens in several States of the Union, while in England, Scotland, France, and Holland, to say nothing of other countries, it had been solemnly declared that all men within their respective borders were free.

In the lapse of time this decision passed out of sight. It seemed to be dead. Blasted at once by an indignant public sentiment, it received a more formal condemnation on two separate occasions: first, when the Attorney General, in an elaborate opinion, declared that a colored person was a citizen of the United States;[217] and, secondly, when the Supreme Court of the United States admitted a colored person as a counsellor at its bar.[218] We all thought this decision dead, and the whole practice of the Government was altered accordingly. Passports were issued to colored persons as citizens, and licenses to enter into the country trade were awarded to colored persons as citizens. For the time being that ill-begotten decision was practically dead.

But now it is once more alive. Bursting the cerements of the grave, it again stalks into this Chamber to fright us from our propriety. Not now from the Supreme Court does it come, but from the President. That public opinion which did not hesitate to condemn the Supreme Court cannot hesitate now to condemn the President.

The veto does not undertake to declare precisely that colored persons are not citizens under the Constitution, but it forbids all legislation positively declaring this citizenship. It is the Dred Scott decision in a new draught. It is the same thing, only with a new shake of the kaleidoscope. You cannot adopt this veto without practically overturning the recent practice of the Government, and setting aside that opinion of Attorney-General Bates which is one of the most illustrious acts in the Administration of President Lincoln. For myself, I have always regarded that production as of the first importance in our recent history. The future historian, as he records the events by which the Republic has been elevated, must dwell with pride upon that simple act, where a single officer of the Government did so much to fix the liberties of a race.

I have said that this veto revives the Dred Scott decision. It does more. It is bad to revive the worst decision in our history; but this veto practically sets aside one of the best decisions in our history. I refer to the case of M’Culloch v. Bank of Maryland, where our great magistrate, Chief Justice Marshall, expended all his marvellous talent in expounding the powers of Congress under the Constitution. In all the annals of the Supreme Court there is no decision more carefully considered or wrought with a finer skill. In this remarkable judgment it has been positively declared, that, where the Constitution confers upon Congress certain powers, it is within the discretion of Congress to determine when and how they shall be exercised. Here are the precise words:—

“The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.… Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”[219]

According to this authoritative text, Congress must determine the “means” it will employ in the exercise of its powers. But this veto pretends to despoil Congress of this discretion.

In the exercise of its discretion, Congress has undertaken to assure civil rights to colored persons. It has been moved to this especially in pursuance of the second clause of the Thirteenth Amendment, where it is empowered to enforce the prohibition of Slavery by appropriate legislation. The present bill is regarded as essential to enforce the prohibition of Slavery, and Congress, in the exercise of its discretion under the Constitution, has passed it. But the veto comes to arrest this discretion. So far as its influence goes, it will neutralize and nullify the great Amendment by which Slavery has been abolished. It leaves the letter in the Constitution, but it takes away the powers by which that letter is made a living soul.

I have said enough to condemn the veto. I have shown, first, that it revives a most odious judgment, and, secondly, that it subverts a received rule of interpretation, and degrades that Constitutional Amendment which is the glory of our recent history. But I go further.

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