rebel organization; it is flaunting again the rebel flag in our faces; but, instead of open and manly warfare, it is assassination substituted for war.

"Mr. President, there is another remarkable feature of this whole proceeding, and that is, that from the beginning to the end, in all this extent of territory, no man has ever been convicted or punished for any of these offences, not one. The only claimed exception, and that is pointed out by the minority report, is where three or four negroes undertook to disguise themselves as Ku-klux, went around murdering and robbing other black people; but they were not genuine Ku-klux. They were arrested by the authorities, tried, and sent to the penitentiary, and are there

now.

"But, sir, in all this numerous array of crimes there is not one man called to an account for murder, robbery, scourging, whipping. Why, sir, it is an appalling fact. În regard to Texas the matter was discussed here some time ago; and now from Texas to North Carolina how many crimes have been committed by this Ku-klux Klan? And yet here is the testimony of a judge in Kentucky that the grand-juries refuse to indict and the petit juries refuse to convict, and there is no punishment for this lawless outrage upon human society.

"I have culled out these cases to show that the broad statement I made is literally true, because, when we come to analyze the statements made by the honorable Senator from Tennessee and the honorable Senator from Georgia, they are cases of ordinary crime; they are not the political offences of which I have spoken; and I repeat now as conclusively true, and I assert they cannot be gainsaid, and I ask of my political adversaries to overthrow them if they can: first, that every man who has been outraged by these Ku-klux Klans is a Republican; next, that every man who did it was a Democrat; and next, that no man has been convicted for any of this class of offences. "I have already consumed all the time on that branch of the case that I desire. I now turn to the report of the minority of the committee, signed by two gentlemen for whom I not only entertain high respect, but whose names ought to carry with them a great deal of respect in the country.

"In the first place, I do not understand these gentlemen to deny the material allegations made by the majority report. I do not understand them to deny, except in lawyerlike, general phraseology, the material allegations made by the majority, that this is a political organization, spreading terror and violence over a vast region of country, outraging its adversaries, and protecting its members from punishment in the courts; but they give a number of apologies, very plausibly stated.

"But, the chief point of this minority report is, to show that the Ku-klux outrages were

justified by the organization of secret leagues on the part of the negroes. Let us see what was the character of their secret leagues. Were they any other than ordinary associations of men bound together for a lawful purpose? What does this book show in regard to the Union Leagues or the secret leagues which it is said the negroes joined? Nothing but what they had a right to do."

Mr. Stevenson, of Kentucky, said: "Mr. President, when the Senator from Ohio (Mr. Sherman) rose to speak in support of his resolution, he made a most unjust and unfounded aspersion, as I think-wholly unintentional no doubt on his part-upon the Commonwealth which I have the honor in part to represent on this floor. The Senator was pleased to say that the lawlessness and violence of these armed, organized, sworn rebel soldiers were so great in Kentucky as to demand the passage of this resolution.

"Now, has my honorable friend made good his charge so repeatedly hurled at Kentucky in his speech, that there is a band of armed Confederate soldiers in that Commonwealth bound by secret oaths to overthrow the law and to commit robbery and murder? The charge was distinct. What has been its proof? He reads a charge to the jury made by William S. Prior, a circuit judge in one of the judicial districts of Kentucky. I know that gentleman well. His honor and his truth are as pure as the ermine that he wears. Does that judge say that the Ku-klux is a political organization? Does he intimate that the organization is composed of rebel soldiers? So far from it, he says it is not a political organization. The very charge of Judge Prior, who is a Southern man, and was for freedom of opinion, but for nothing else, ruthlessly banished by Federal power during the war, constitutes the highest proof of the injustice which the honorable Senator from Ohio seeks to heap upon the Commonwealth of Kentucky. Exiled during the war for the mere exercise of political opinion, when restored to the circuit bench by a most unprecedented majority, wherever he sees the least disorder, the least violence, he makes it the subject of a special charge, in order that these violators of law may be brought to justice.

"I do not deny the fact that occasional acts of violence have been committed in Kentucky. During my late administration of the executive affairs of that State, which I resigned on the 13th of February, it was my duty several times to call the attention of the Legislature, in as strong language perhaps as that used by the Courier-Journal of Louisville, to disorders of that sort, and to suggest that they should be put down at any cost and at every hazard. Perhaps, during the last three and a half years that I administered the government of that State, a dozen instances of violence did occur, not more; and what did they amount to? There was no evidence that they were the act

of any secret political organization in that State. I know there are bad men in both parties; bad men do wrong everywhere; but I aver that I do not believe that the organization committing these outrages amounted to fifty men, and they confined to one locality.

"What evidence is there that they were Confederate soldiers? There is no proof of it. That outrages have been committed I do not deny; but I undertake to say that if the gentleman will give me an investigating committee I can go to the great capital of Ohio, which the honorable Senator represents, and show more crime and more outrage committed in the single city of Cincinnati than have been committed in the entire Commonwealth of Kentucky for the last ten years. I might go to the State of Indiana and find vigilance committees who hang half a dozen at a time."

Mr. Thurman, of Ohio, said: "And not one of the men punished, either."

Mr. Stevenson, of Kentucky, said: "I might go to every State; but God forbid that I shall ever seek to seize isolated cases in the calendar of crime in order to obtain materials for a campaign speech for the next presidential election! I doubt whether my friend from Ohio would have done it so early in advance except for the recent family jars in his own party. Desperate diseases require desperate remedies; and I think that the honorable Senator felt that he had to give a slap at Kentucky in order to inflame the public mind and to revive the sinking fortunes of the Republican party."

Mr. Sawyer, of South Carolina, said: "Mr. President, I believe the existence of these outrages is in some degree indirectly due to the fact that, when the new State governments were formed in the South, men who by education, by previous social position, and by expêrience in such affairs were best fitted to become State officers, were by the laws and Constitution excluded from such positions. In South Carolina it is manifest that the discontent, the resistance to law, and the violations of private rights, do not necessarily imply hostility to the United States Government. Doubtless there are attempts there to evade the revenue laws; there have been, I believe, one or two cases where violent resistance has been made to officers attempting to suppress illicit distillation by seizures and destruction of stills. But the same thing has occurred in other parts of the United States where there was no disloyalty suspected, but simply a desire to get unlawful gains and to escape the payment of taxes. It is doubtless a species of disloyalty to evade the payment of whiskey taxes, income taxes, or any other taxes; but, if we reason from such attempts on the part of individuals that the community in which they live needs special legislation to protect loyal men, we shall make an egregious error.

"I believe that in South Carolina, at least, and probably in many other States, the turbulent and riotous spirit which induces these out

rages comes from opposition to the local administration. I do not think the men who commit the atrocities of which we hear so much are more to be excused for their conduct because their action proceeds from the one cause rather than from the other. But I wish the fact to be clearly understood, that, while here and there the so-called Ku-klux Klan may declare their hostility to the national Government, it is generally against those who support and affiliate with the State officers that their blows are aimed. The pretext for their action is maladministration of State and county affairs. Their devilish doings are claimed by them to be in the interest of just punishment for crimes which otherwise would go unwhipped of justice.

"The monstrous character of such a policy needs no comment. All right-minded men see that it is anarchy, and that all the dearest rights of man and of society are sacrificed by its prevalence. When men, on never so plausible an excuse, take the administration of justice from the proper tribunals into their own hands, society is thrown back into a state of barbarism; government, in a proper sense, ceases to exist. If there be power under the Constitution to cure this evil, we cannot afford to refuse or postpone the labor of devising a remedy.

"I am not prepared to deny that maladministration has occurred in many of the Southern States. I know such to have been the fact. I do not think it would have been less likely to occur if the government had been in Democratic hands. On the contrary, other things being equal, I think quite the reverse would have been the case."

Mr. Thurman, of Ohio, said: "Mr. President, no one underrates the necessity of putting a stop to the outrages spoken of, so far as they exist. There may be a difference of opinion as to the extent to which they do exist; but no one, I am sure, of any party, desires that they should continue. Every one, at least, in this chamber, desires that they should cease. But, desirable as it is that these outrages should cease, important as any Senator may consider it to be that an end should be put to them, there is another thing of more importance than even that; and that is that you shall respect and obey the Constitution of the United States. These evils that exist, great as they may be, admit them to be as great as even exaggeration has depicted them, are not near so great as would be an overthrow of the fundamental law of the land and the assumption of all power by the Congress of the United States.

"There have been bills introduced in one or the other House of this Congress by Northern members, and, if any thing could more completely demonstrate than another the danger of proceeding in hot haste upon such a subject, it would be those bills. They are bills that shock every sense of constitutional law in any

lawyer's mind. I have one of them here before me now, introduced into the House of Representatives by a colleague of my own from the State of Ohio, a bill which assumes that Congress has as much power in a State over the criminal law of the State, as much power to punish crimes in a State as it has within the District of Columbia, or in any of the forts or arsenals of the United States; a bill which asserts for Congress just as absolute jurisdiction over every crime and offence, from the highest to the lowest, from murder to libel, from robbery to assault and battery, and the power to punish those crimes when committed in a State, as fully as Congress can punish them when committed within the District of Columbia. And now, when it is proposed that Congress shall assume this power, the entire jurisdiction over crimes and offences committed within a State; when this stride, that no mortal man ever before thought of, is advocated here, it is proposed that the Judiciary Committee in hot haste shall report some such bill, and that within the few remaining days of this session! Why, sir, it is simply madness, I would almost say, if I did not see that it is proposed by sane

men.

66

Now, Mr. President, I wish to say something further on this question. The constitutional question involved is as to the power of Congress to go into a State and punish offences, not against the laws of the United States, which Congress has any right to pass, but merely to punish ordinary murder, ordinary assault and battery, ordinary crimes, such as are punishable by the State law. Whenever that question shall come, if there is any respect left for the Constitution, if there is any respect left for the decisions of your Supreme Court, I will show you by the decisions of the Supreme Court of the United States, as well as by the plain text of the Constitution, that you have no such power at all. No question was ever more solemnly decided than was this very question in an opinion delivered by John Marshall himself, that you have no such power. That was under the Constitution before the fourteenth amendment was adopted, it is true; but will anybody tell me where he can find in this fourteenth amendment any power to invade the States, and take the entire punishment of crime, the entire jurisdiction of crimes committed within a State, into the hands of Congress? I do hope, that at least the lawyers of this body, whose education and habits ought to give them some reverence for law, some respect for precedent, some regard for the Constitution, will pause and consider before they are driven to such a pretension as this.

"I know it has been said that 'hard cases make shipwreck of principle.' It is an old maxim of the lawyer; and hard cases or supposed emergencies too often make shipwreck of constitutions. I know, that under a great clamor of excitement Congress may be induced to exercise powers that, in its sober moments,

and without excitement, it would shrink with horror from attempting to exercise. We have seen too much of that in the past history of the country; but I do hope that the time has not come when, for the purpose of curing one evil, the very law-making body of the Government, each member of which is sworn to support the Constitution, will commit the far greater evil of overthrowing that instrument!

"This is the state of this case. Here, sir, is a law, a law which has been in force now nearly a year, with Republicans everywhere in these States to execute that law, everywhere having power to execute it, the judges of your own appointment, the jurors selected by your own marshals, and they the appointees of the President of the United States, with every power with which Government can clothe a judiciary; and now we are told that we must have some more law of the same kind. Mr. President, if we can have no better law of the same kind than the bills which have been presented to us, I hold that the less of that law we have the better.

"The provision in the Constitution, in regard to the President putting down insurrection when called upon by the Executive or the Legislature of a State, relates to insurrection against the State; but that does not limit the power of the President to put down insurrections in the country. There is the power to put down insurrections against the Government of the United States; and although the act of 1795, Congress not anticipating such a case, failed to provide for it, yet, by the act of 1862, you did provide for it, and gave the power to the President to call out the militia whenever the necessity existed to put down insurrections against the Government of the United States. Then you have the judicial power which I have shown you, and you have the executive power, the President clothed with power under your act to even call out the militia to put down insurrection against the Government of the United States.

"My object in making these remarks is to show that this is not a subject that is to be decided in a day, unless your Judiciary Committee, instead of being a committee of lawyers, instead of being a committee to find out what the law and the Constitution is, and advise the Senate, is to be a mere scrivener, to put into the form of law what party, what clamor may demand. Then you may command them to report to-day or to-morrow, but if they are to be lawyers, if they are to exercise the learning that they are supposed to possess, and the brains which they are supposed to have, if they are conscientious men, you must give them time to do it, that they may report that which they can defend when reported, and which the Senate can adopt without bringing shame and confusion upon the face of every man here who claims to be a lawyer."

While the resolution was under considera

tion, on March 23d, a message was received from the President of the United States.

Mr. Conkling, of New York: "I move that the message lie on the table and be printed." The motion was agreed to.

Mr. Davis, of Kentucky, said: "I have two or three objections to the resolution. The first is, that Congress has no constitutional power whatever to pass such a law. The second is, that if Congress did pass such a law it would be as impotent to execute it as, and more so than, the State authorities and the State courts. In the third place, in view of the state of society existing in Kentucky after the termination of the great civil war, and after the people were deprived, without authority of the Constitution, by a usurped power of Congress, of a thousand millions of their property, though there had been a pledge to them, a positive, reiterated pledge to them, by Congress, by the Executive, by the members of the Cabinet, that the war was waged only to put down armed rebellion, and not to invade the States, or their governments, or their institutions, or their property; and after again they were pledged to the payment of $10,000,000 for their property twice over, and you put a repudiation of this pledge in an amendment, a pretended and surreptitious amendment of the Constitution; I say as to a people thus outraged, as have been the people of Kentucky by their own Government, against all its professions of good faith, it is not strange that disorder should exist to some extent in that State, and that it should take time and reflection and sober reason to bring the people of the State to their correction; and that is the only corrective."

Mr. Blair, of Missouri, said: "I shall conclude what I have to say by expressing my opinion about this policy of the Republican party, not only in the reconstruction measures themselves, but in the continued series of aggressions in that line of policy which are never intermitted. One encroachment after another follows close upon the heels of its predecessor. They claim to go one point, and that they will be satisfied with that advantage; but it is only a stepping-stone to still further and greater usurpations. And, sir, I have to say that, in my judgment, this whole reconstruction business was a bald and flagrant usurpation and lawless outrage upon our written Constitution, intended to obliterate State lines, State power, and State pride, and to centralize the whole powers of Government here at the centre of the country. The contrivers of these measures have now thrown off the mask, and, emboldened by the result of the last presidential election, which they claim affirmed the measures which they had already passed, they by frand imposed upon the people of the United States the fifteenth amendment. The laws by which that amendment are sought to be carried out are not warranted even by the amendment itself, nor is the present measure now VOL. XI.-12 A

pending in Congress warranted by the fourteenth amendment, under which it seeks to shelter itself.

"I shall, perhaps, be told that these sentiments are revolutionary. Everybody who maintains that this Congress has not the power to sweep away the Constitution when it pleases is denounced as revolutionary. When they with one stroke, in the reconstruction measures, swept away the fifth and sixth amendments to the Constitution, securing persons and property, securing the right of trial by jury, securing a trial, according to due process of law, of every one charged with crime, and substituting in its place the drum-head courtmartial, all who maintained that this was unconstitutional and that Congress had no power to do this act, that there was no authority in any public body in the United States to do it, were denounced as revolutionists. When we declared that Congress had no power to pass a bill of attainder, by which whole communities of people were convicted and punished without due process of law, although the Constitution of the United States declares in so many words that 'Congress shall pass no bill of attainder or ex post facto law,' we were denounced as revolutionists. And so also, when we proclaimed that Congress could not, in defiance of the express letter of the Constitution, pass an ex post facto law, a law fixing a different punishment than that which had been previously affixed for an offence after the offence was committed; when we declared that Congress had no power to pass such a law, that it was forbidden by the express language of the Constitution, that any law in defiance and in derogation of the express prohibitions of the Constitution was null and void, we were responded to, 'That is revolutionary.'

"Now, sir, let me tell the Senators that these rights belonged to the people of our blood before the Constitution was made. Every man who has read English history, and especially those who are descended from the people of that race, has pondered over the history of the struggle, which for a thousand years has lasted, to secure these rights and to guard them against tyranny and despotism. Men have suffered death on the battle-field and upon the scaffold and at the stake and in dungeons rather than yield up these rights to the arbitrary kings who reigned over those people; and they have always succeeded in maintaining them, though for a brief period they might be trampled under foot, and they often made their rulers pay the penalty for their crimes in attempting to destroy and take away these precious boons, these guarantees of their personal freedom and security. One king laid his head upon the block, and his race and descendants were exiled and died wanderers away from their homes because they attempted to rob the people of these precious charters of their liberties. We have always read those

pages of history that told of these deeds of our brave ancestors with a stern joy when they exacted this punishment from their oppressors, and now are we to yield up these rights which have come to us through so many historic struggles and which have been affirmed to us in the Constitution; are we to yield them up to a set of upstart tyrants, because, if we refuse to do it, we are to be denounced as revolutionists?"

Mr. Morton, of Indiana, said: "Mr. President, I propose for a short time to consider the legal question that is involved in this controversy. The first section of the fourteenth amendment declares that

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction thé equal protection of the laws.

"The fifth section declares

The Congress shall have power by appropriate legislation to enforce the provisions of this article.

"The clause to which I call especial attention is that which says that no State shall deny to any person within its jurisdiction the equal protection of the laws.' If a State fails to secure to a certain class of people the equal protection of the laws, it is exactly equivalent to denying such protection. Whether that failure is wilful or the result of inability can make no difference, and is a question into which it is not important that Congress should enter. The meaning of the Constitution is, that every person shall have the equal protection of the laws. It is in its nature an affirmative provision, and not simply a negative on the power of the States. Will it be pretended that the meaning would be changed if it read, 'every person in the United States shall be entitled to the equal protection of the laws?' It means to confer upon every person the right to such protection, and therefore gives to Congress the power to secure the enjoyment of that right. Whenever the Constitution confers a power or guarantees a right, it gives also the means of exercising the power and protecting the right. "The Government can act only upon individuals. It cannot prevent the Legislature of a State from passing an act, or compel the passage of an act. If the effect of the amendment is simply that the United States shall exert a negative upon a State, it amounts to but very little, and in fact would result only in a lawsuit, and would, in effect, nullify the concluding section of the amendment, which gives to Congress the power to enforce the amendment by appropriate legislation. There can be no legislation to enforce it as against a State. A criminal law cannot be made against a State. A State cannot be indicted or punished as such. The legislation which Congress is authorized to enact must operate, if at all, upon individuals.

"The Constitution declares that the States

shall not have the power to coin money. How can that provision be enforced except by making it a penal offence for any person to coin money under color of the authority of a State?

"This principle was recognized by Congress in the act passed for the enforcement of the fifteenth amendment, which is in form like the fourteenth, a prohibition upon the States, declaring that no State shall deny or abridge suffrage on account of race, color, or previous condition of servitude. In that act Congress assumed the power to protect the right of suffrage, not only against any law that might be passed by a State, but against a mob, against any lawless individual, against the unauthorized act of any public officer or election board. It proceeded upon the hypothesis that the amendment conferred upon colored men an absolute right to vote upon the same terms and conditions with white men, and that Congress had the power to protect and enforce this right against individuals or organizations, whether acting in open violence or under color of State law.

"Believing that the fourteenth amendment intended to secure to every person the equal protection of the laws, it is competent for Congress to furnish such protection by appropriate legislation. If there be organizations in any of the States having for their purpose to deny to any class or condition of men equal protection, to deny to them the equal enjoyment of rights that are secured by the Constitution of the United States, it is the right and duty of Congress to make such organizations and combinations an offence against the United States, and punishable by such pains and penalties as may be prescribed. Whatever conspiracy may be formed having for its purpose to create a terror which shall deter any class of people from the exercise of those rights, it is a direct infringement of this amendment which may be punished by the laws of the United States."

Mr. Thurman, of Ohio, said: "It has been said here that it would be a good thing, and tend to produce peace in the South, if this body, by a unanimous vote, should show that it was disposed to exercise all the powers properly vested in it by the Constitution to produce peace in the country. Well, sir, if that is desired by Senators, they can have a unanimous vote very easily. All they have to do is to put this resolution in a proper shape, and they can have the unanimous vote, I think I may venture to say, of this Senate; and, if it is not put in a proper shape, what is the reason? There can be only one reason, it seems to me, why it is kept in a shape which is obnoxious to some of the Senators; and that is that it may not receive a unanimous vote, that it may go abroad to the country that the Democratic Senators on this floor are opposed to proper legislation. I wish to say that if the resolution is persisted in in its present form-and I for one shall not be able to vote for it in that form-that fact will furnish no reason whatso