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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 ersonal property, and to have full and equal
i. of all laws and proceedings for the security of . 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.
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 jo has been o by the rebelion, subject, or cause to be subjected, any negro, musatto, freedman, refugee, or other person, on account of race or color, or any previous condition of slavery or involuntary servi de, 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 i. 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 provisions of this section, and also of all cases affecting negroes, mulattoes, freedmen, refugees, or other persons who are discriminated against in 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. The jurisdiction conferred by this and the preceding 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 .#. 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.
SEC. 9. That all acts, or parts of acts, inconsistent with the provisions of this act, are hereby repealed.
The votes on passing this bill were:
1866, January 25—The bill passed—yeas 37,
nays 10, as follow:
YEAS–Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Dixon, Doolittle, Fessenden, Foot,
February 6–The bill passed—yeas 137, nays 33, as follow: YEAs—Messrs. Alley, Allison, Ames, Anderson, Delos IRAshley, James M. Ashley, Baker, Baldwin, Banks, Barker. Baxter, Beaman, Benjamin, Bidwell, Bingham, Blaine. Elov. Boutwell, Brandegee, Bromwell, Broomall, Bundy, Reader W. Clarke, Sidney Clarke, Cobb, Conkling, Cook, Cullore. Darling, Davis, Dawes, Defrees, Delano, Deming, Dixor. Donnelly, Driggs, Dumont, Eckley, Eggleston, Eliot, Farsworth, Farquhar, Ferry, Garfield, Grinnell, Griswold, Hale Abner C. Harding, Hart, Hayes, Henderson, Higby, Hill Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John II. Hubbard, James EHubbell, James Humphrey, Ingersoll, Jenckes, Julian, Kasson, Kelley, Kelso, Ketcham, Kuykendall, Laflin, Lathair, George W. Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, Marvin, *...* McIndoe, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Motikton, Myers, Newell, O’Neill, Orth, Paine, Patterson, Perhara, Phelps, Pike, Plants, Pomeroy, Price, William H. Randall, Raymond, Alexander H. Rice, John H. Rice, Rollins, Sawyer, Schenck, Scofield, Shellabarger, Sloan, Smith, Spalding, Starr, Stevens, Stilwell, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Ward, Warner, Ellihu B. Washburne, William B. Washburn, Welker, Wentworth, Whaley, Wiiliams, 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, LeBlond Marshall, McCullough, Nîblack, Nicholson, Noell, Samwel 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, Hen. derson, Howard, IIowe, Kirkwood, Lane of Indiana, Lane of Kansas, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, Yates—30. 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 a prove, consistently with my sense of duty to the whole people, and my obligations to the Constitution of the United States. I am therefore constrained 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 "... excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehend, the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks, people, of color, negroes, mulattoes, and persons of African blood. Eve individual of these races, born in the Unit
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 decide according to the will of Congress. It is clear that, in States which depy to persons whose rights are secured 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 a State–murder, arson, rape, or any other crime—all protection and punishment through the courts of the State are taken away, and . can only be tried and punished in the federal courts. How is the criminal to be tried ? If the offence is provided for and punished by federal law, that law, and not the State law, is to overn. It is only when the offence does not appen 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 |t|
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 punsshment of all persons
aský, whoslofféCésary 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 overnment, 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 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 intellient, worthy, and patriotic foreigners, and in #. 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 intruts “life, liberty, and the o 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 jTerritory in the United States.” These rights are, “to make and enforce contracts, to sue, be o and give evidence; to inherit, purchase, ease, sell, hold, and convey real and personal bproperty;" and to have ... equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” 3So, too, they are made subject to the same punishments, pains, and penalties in common with white WCitizens, and to none other. Thus a perfect ° equality of the white and colored races is atf 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 Q one of these can any State ever exercise any §power of discrimination between the different races. In the exercise of State policy over mat|ters exclusively affecting the people of each State, it has frequently been thought expedient to discriminate between the two races. By the statutes of some of the States, northern well as south
I ren, it is enacted, for instance, that no white
f person shall intermarry with a negro or mulatto. who violate its criminal laws, federal law, when- |s per y 8
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.” 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 intermarr with the blacks, the blacks can only make suc 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 enerally, Congress may not also repeal the State aws 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 belongin to the States. They all relate to the interna 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 ea. post facto law; and, as to money, that no State shall make anything but gold and silver a legal tender. But where can we find a federal prohi. bition against the power of any State to discrimi: nate, 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 discriminating between the two races on the subjects of suffrage and office? If Congress can . 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, ho , to vote, “in every State and Territory of the United States.” As respects the Territories, they come within the power of Conress, for as to them the law-making power is the ederal 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 “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 #. 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 ren: der 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
H.T.:*::::::::::#. Thornton. Trino ove to all matters arising within their jurisdiction, i. subject only to the restriction that, in cases of o 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 # 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 con: templation. It is a denial or deprivation of sus. 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 jo. shall decide contrary to this federal law. In other words, when a State judge, acting upon a question involving a conflict between a Stately and a federal law, and bound, according to b 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 offino
other tribunals, and there subjected to fine and
and imprisonment. The legislative department of the Government of the *. States thus
:akes from the judicial department of the States *e sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer, bound to decide according to the will of Congress. It is clear that, in States which o to persons whose rights are secured 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 a 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 offence is provided for and punished by federal law, that law, and not the State law, is to overn. It is only when the offence does not appen 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 o protection of its own citizens, and for the punishment of all persons who violate its criminal laws, federal law, whenever 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 eases 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 .* 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 i. have as to those that have not been engaged in rebellion.
v It may be assumed that this authority is incident to the power granted to Congress by the Constitution, as recently amended, to enforce, by appropriate 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 subject to their jurisdiction.” It cannot, 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 or the States. If, however, any such attempt shall be made, it will then become the duty of the General Government to exercise any and all incidental owers necessary and proper to maintain invioate 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, com. missioners, 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 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 eneral statutes regulating the land and naval forces of the to. 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 re o 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 me that under the influence of such temptations bad men might convert any law, however bene: 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 lo to any art of the district upon the order of the Presient, 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 pur}: “to employ such part of the land or naval orces 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. o 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
State—an absorption and * of pow: by the General [...: which, if acquies: in, must sap and destroy our federative systs. of limited powers, and §o down the barrio, which preserve the rights of the States. Its another step, or rather stride, towards centra. ization, and the concentration of all legislativ: o in the national Government. The to ency of the bill must be to resuscitate to spirit of rebellion, and to arrest the progres of those influences which are more closely draw. ing around the States the bonds of union ano peace. My lamented predecessor, in his proclamatic: of the 1st of January, 1863, ordered and do clared that all persons held as slaves with: certain States and parts of States therein des: nated were, and thenceforward should be ste, and, further, that the executive government of the United States, including the military an naval authorities thereof, would recognize and maintain the freedom of such persons. This gnarantee has been rendered especially obliga. tory and sacred by the amendment of the Co. stitution abolishing slavery throughout to United States. I, therefore, fully recognize to obligation to protect and defend that class of our people, whenever and wherever it shal become necessary, and to the full extent com: atible with the Constitution of the Unite States. Entertaining these sentiments, it only :mains for me to say, that I will cheerfully co-o- | erate with Congress in any measure that mos be necessary for the protection of the civil right of the freedmen, as well as those of all oths classes of persons throughout the United Stats by judicial process, under equal and impartill laws, in conformity with the provisions of the Federal Constitution. I now return the bill to the Senate, and to gret that, in considering the bills and join resolutions—forty-two in number—which have been thus far submitted for my approval, I at I compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress. ANDREW John SON, WASHINGTON, D. C., March 27, 1866.
Copy of the Bill Vetoed. An Act to protect all persons in the Unio States in their civil rights, and furnish to means of their vindication. Be it enacted, &c., That all persons born in the United States and not subject to any foreign ower, excluding Indians, not taxed, are hereby j to be citizens of the United States: and such citizens of every race and color, with: out regard to any previous condition of slave." or involuntary servitude, except as a punish. ment for crime whereof the party shallhaye been duly convicted, shall have the same right" every State and Territory in the United States" make and enforce contracts; to sue, be parties and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal propero; and to full and equal benefit of all laws and proceedings for the security of person and
prol. erty as is enjoyed by white citizens, and i