This is a government and a political organization by white people. It is a principle of that Government and that organization, before and below the Const.i.tution, that n.o.body but white people are or can be parties to it.

The colloquy between Senators Johnson and Davis continued until the latter affirmed that the making of negroes citizens by any process whatsoever was "revolutionary," as destructive to our Government as would be a bill establishing a monarchy, or declaring that the President should hold office for life.[89]

The debate continued till February 2, Senators Guthrie, Hendricks, and Cowan opposing the bill and Trumbull, Fessenden, and Wilson supporting it. The vote was then taken and resulted, yeas 33, nays 12, absent 5. It went to the House, where it encountered unexpected opposition from Bingham, of Ohio, a radical Republican, who said:

Now what does this bill propose? To reform the whole civil and criminal code of every State Government by declaring that there shall be no discrimination between citizens on account of race or color in civil rights, or in the penalties prescribed by their laws. I humbly bow before the majesty of justice, as I bow before the majesty of that G.o.d whose attribute it is, and therefore declare that there should be no such inequality or discrimination even in the penalties for crime, but what power have you to correct it? That is the question. You further say that in the courts of justice of the several states there shall, as to the qualifications of witnesses, be no discrimination on account of race or color. I agree that as to persons who appreciate the obligation of an oath--and no others should be permitted to testify--there should be no such discrimination. But whence do you derive power to cure it by congressional enactment? There should be no discrimination among citizens of the United States, in the several states, of like s.e.x, age, and condition, in regard to the franchises of office. But such a discrimination does exist in nearly every state. How do you propose to cure all this? By a congressional enactment? How? Not by saying in so many words (which would be the bold and direct way of meeting this issue) that every discrimination of this kind, whether existing in state const.i.tution or state law, is hereby abolished. You propose to make it a penal offence for the judges of the states to obey the const.i.tution and laws of their states, and for their obedience thereto to punish them by fine and imprisonment as felons. I deny your power to do this. You cannot make an official act done under color of law and without criminal intent and from a sense of duty, a crime.[90]

The only Republican member of the House, from the non-slaveholding states, who sided with Bingham, was Raymond, of New York. The House pa.s.sed the bill by yeas 111, nays 38.

On the 27th of March, the President returned the bill to the Senate without his approval. He vetoed it on grounds of inexpediency and unconst.i.tutionality. His arguments were substantially the same as those of Senators Saulsbury and Cowan.

Trumbull replied to the veto message in a speech of great power which occupies five pages of the _Congressional Globe_. He took up and answered the President's objections _seriatim_. These details need not now be repeated. There was one of a personal character, however, which calls for notice. He said that he had endeavored to meet the President's wishes in the preparation of both the bills, and had called upon him twice and had given him copies of them before they were introduced and asked his cooperation in order to make them satisfactory. In short, he had done everything possible to avoid a conflict between the executive and legislative branches of the Government, and since he had been a.s.sured that the President's aims, like his own, were in the direction of peace and concord, he was amazed when they were vetoed. At the conclusion of his speech he referred briefly to the const.i.tutional objection to the bill saying:

If the bill now before us, which goes no further than to secure civil rights to the freedmen, cannot be pa.s.sed, then the const.i.tutional amendment proclaiming freedom to all the inhabitants of the land is a cheat and a delusion.

The floor and galleries of the Senate Chamber were crowded during the delivery of the speech and the roll-call followed immediately, resulting: yeas 33, nays 15, more than two thirds. The closing scene was thus described in a Washington letter to the _Nation_, April 12:

After three days of extremely ardent debate signalized by a speech of singular cogency and power from Senator Trumbull, the father of the bill, the vote was reached about 7 o'clock on Friday evening. When the end of the roll was reached and Vice-President Foster announced the result, nearly the whole Senate and auditory were carried off their feet and joined in a tumultuous outburst of cheering such as was never heard within those walls before.

The veto of the Civil Rights Bill and the struggle over its pa.s.sage the second time precipitated the exciting contest at the polls in the autumn of 1866. In that campaign Trumbull held the foremost position in the Republican column. Whether it was possible to avoid the conflict we cannot now say. It was most desirable that the party in power should march all one way, and hence that the President should respond to the friendly overtures of the leaders in Congress. When he found that he could not approve the two bills that the Senator had placed in his hands for examination, he ought to have sent for him and pointed out his objections and at all events expressed regret that he could not concur with him in the particulars where they disagreed. Then there might have been mutual concessions leading to harmony. In any event, there would have been no sting left behind, no hard feeling, no sense of injury, and perhaps no rupture in the party. That was not Johnson's way. He lacked _savoir faire_. He was combative by nature. He not only made personal enemies unnecessarily, but he alienated thousands who wished to be his friends.[91] "Many persons," says a not unfriendly critic, "whose feelings were proof against the appeals made on behalf of the freedmen and loyalists were carried over to the side of Congress by sheer disgust at Johnson's performances. The alienation, by the President, of this essentially thoughtful and conservative element of the Northern voters was as disastrous and inexcusable as the alienation of those moderate men in Congress whom he had repelled by his narrow and obstinate policy in regard to the Freedmen's Bureau and Civil Rights Bills. It was again demonstrated that Andrew Johnson was not a statesman of national size in such a crisis as existed in 1866."[92]

On the other hand, it must be admitted that Johnson was within his const.i.tutional right in vetoing the bills without previously consulting anybody in Congress.

The Civil Rights Act came before the Circuit Court of the United States twice, soon after it was enacted, and in both instances was held to be const.i.tutional. The circuit courts were then presided over by Justices of the Supreme Court. In the case of United States _v._ Rhodes, Seventh Circuit, District of Kentucky, 1866, before Justice Swayne, the act was p.r.o.nounced const.i.tutional in all its provisions, and held to be an appropriate method of exercising the power conferred on Congress by the Thirteenth Amendment.

The other case was the Matter of Turner, Fourth Circuit, Maryland, October Term, 1867, before Chief Justice Chase. This case was submitted to the court without argument. The Chief Justice expressed regret that it was not accompanied by arguments of counsel, but he decided that the act was const.i.tutional and that it applied to all conditions prohibited by it, whether originating in transactions before, or since, its enactment.[93]

If either of these cases had been taken to the Supreme Court on appeal, at that time, the Civil Rights Act of 1866 would doubtless have been upheld by that body; yet in October, 1882, the court held by unanimous vote that none of the latest amendments of the Const.i.tution (the Thirteenth, Fourteenth, and Fifteenth) did more than put prohibition on the action of the states. No state should have slavery; no state should make any law to abridge the privileges and immunities of citizens of the United States; no state should deny the right of voting by reason of race, color, or previous condition of servitude. The power of Congress to go into the states to enforce the criminal law against individuals had not been granted in any of these amendments. It could not be affirmed that the second section of the Thirteenth Amendment gave power to Congress to legislate for the states as to other matters than actual slavery. But the Civil Rights Act applied to all the states--to those where slavery had never existed as well as to those where it had been recently abolished.[94]

The act which the court in October, 1882, p.r.o.nounced unconst.i.tutional was the Anti-Ku-Klux Act of 1871. Trumbull himself spoke and voted against that act believing it to be unconst.i.tutional, as we shall see later. He drew the line somewhere between the two acts. The judges partic.i.p.ating in the decision in the Harris case were Chief Justice Waite and a.s.sociate Justices Miller, Bradley, Woods, Gray, Field, Harlan, Matthews, and Blatchford.

One year later the court held that the Equal Rights Act of March 1, 1875, which gave to all persons full and equal enjoyment of accommodations and privileges of inns, public conveyances, theatres, and other places of public amus.e.m.e.nt, common schools and public inst.i.tutions of learning or benevolence supported in whole or in part by general taxation, was unconst.i.tutional. The Supreme Court still consisted of the Justices above named.[95] It held that the Thirteenth Amendment of the Const.i.tution related only to slavery and its incidents and that the Fourteenth Amendment was merely prohibitory on the states; that is, that it did not confer additional powers upon Congress, but merely forbade discriminating acts on the part of the states. The opinion of the court was delivered by Justice Bradley. The only dissenting opinion was given by Justice Harlan, of Kentucky, who held that the Thirteenth Amendment of the Const.i.tution was not restricted to the prohibition of slavery, but that it conferred upon Congress the power to make freedom effectual to the former victims of slavery. He said:

The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an inst.i.tution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than the exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the inst.i.tution and then remit the race, theretofore held in bondage, to the several states for such protection in their civil rights, necessarily growing out of freedom, as those states in their discretion might choose to provide? Were the states, against whose protest the inst.i.tution was destroyed, to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession inhere in a state of freedom? Had the Thirteenth Amendment stopped with the sweeping declaration in its first section against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power by implication, according to the doctrines of Prigg _v._ Commonwealth of Pennsylvania, repeated in Strauder _v._ West Virginia, to protect the freedom established and consequently to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of such power contained in the second section of the Amendment.

The question whether the Civil Rights Act of 1866 was or was not const.i.tutional never came squarely before the Supreme Court on a test case, but, as we have seen, other acts a.n.a.logous to it did come before that tribunal in such a way that the authority of the court must be construed as adverse to it. My own thought is that the dissenting opinion of Mr. Justice Harlan above quoted is worth more than all the other literature on this subject that the books contain.

The autumn elections of 1866 returned a larger majority in Congress against President Johnson than had been there before. The result in Illinois was the reelection of Trumbull as Senator by the unanimous vote of the Republican legislative caucus, although there were three major-generals of the victorious Union army (Palmer, Oglesby, and Logan) competing for that position, all of whom reached it later.

Trumbull sustained Johnson until the latter vetoed the Civil Rights Bill. He believed that the freedom of the emanc.i.p.ated blacks was put in peril by this action of the President, and he gave all of his energies to the task of pa.s.sing the bill over the veto and sustaining it before the people. In this he was successful, but the avalanche of public opinion thus started did not stop with the defeat of Johnson in the election of 1866. It carried the control of the Union party out of the hands of the conservatives and gave the reins of leadership to Sumner, Stevens, and the radical wing. Trumbull followed this lead till the impeachment of Johnson took place, when he halted and saved Johnson at the expense of his own popularity, and he never regretted that he had done so.

A distant echo of the Civil Rights controversy reached the Illinois Senator from the state of Georgia, where he had been a school-teacher thirty years earlier. The correspondence is introduced here as a corrective, in some part, of the erroneous opinion that Trumbull was a man of cold and unfeeling nature:

MORGAN [Ga.], May 17th [1866].

HON. LYMAN TRUMBULL:

DEAR SIR: Truth seems strange, but, stranger still appears the fact, that after a lapse of thirty years, I should offer you a feeble acknowledgment of the grat.i.tude, and high respect I have ever cherished for you. It was my good fortune to enjoy, in Greenville, for nearly three years, the advantage of your profound teachings; and, in later life, when adverse circ.u.mstances compel me to impart those lessons, and the hallowed influence of that instruction, to others, I award to you the full meed of praise. You cannot imagine the satisfaction I experience, when my eye turns to the many eloquent addresses you deliver before Congress; but as there lurks beneath the most beautiful rose, thorns that inflict deep wounds, so your avowed animosity to us casts a gloom over those delightful emotions. Is there no delightful thrill of a.s.sociation still lingering in your bosom, when memory reverts to your sojourn among us? Is there no period in that long s.p.a.ce, around which fond retrospection can joyfully flutter her wings, and crush out the large drops of gall that have been distilled into your cup? I think you, and you alone, have the power and influence to arrest the mighty tide that threatens to overwhelm us. Can you not forget our past delinquencies, to which, I confess, we have been too p.r.o.ne, and remember only the little good you discovered? I often make special inquiries after you, and was much interested in an account given by an old Southern member. As I had still in my mind's eye your tall and erect form, my surprise was great, indeed, to be told that your form was not so straight, and that you used spectacles. I have failed in the proper place to mention my name, "Fannie Lowe," the most mischievous girl of the school. I married a gentleman from Mobile, who lived eight years after the union.

He fell a victim to cholera, fourteen years since, during its prevalence in New Orleans. It was my great misfortune to lose my daughter, just as the flower began to expand and promise hope and comfort for my old age. In conclusion, I will be delighted to hear from you, and by all means send me your photograph. My kindest regards to your dear ones, and accept the warmest wishes of

MRS. F. C. GARY.

MORGAN, CALHOUN CY., GEORGIA.

UNITED STATES SENATE CHAMBER, WASHINGTON, June 27, 1866.

MY DEAR MRS. GARY: I was truly grateful to receive yours of the 17th ult., and to know that after the lapse of thirty years I was not forgotten by those who were my pupils. I remember many of them well, and for all have ever cherished the kindest of feelings and the best of wishes. It pains me, however, to think that you and probably most of those about you, including those once my scholars, should so misunderstand me and Northern sentiments generally. How can you, my dear child,--excuse the expression, for it is only as a school-girl I remember Fannie Lowe,--how can you, I repeat, accuse me of entertaining feelings of "animosity" and of the bitterness of "gall" towards you or the South?... Towards the great ma.s.s of those engaged in the rebellion the North feels no animosity. We believe they were induced to take up arms against the Government from mistaken views of Northern sentiment brought about by ambitious and wicked leaders, and those political leaders we do want, at least, to exclude from political power, if nothing more, till loyal men are protected and loyalty is respected in the rebellious districts. It is in the power of the Southern people to have reconstruction at once, and the restoration of civil government, complete, if they will only put their state organizations in loyal hands, elect none but loyal men to office, and see that those who were true to the Union, during the war, of all cla.s.ses, are protected in their rights. I ask you, in all candor, till the disloyal of the South are willing to do this, ought they to complain if they are subjected to military control? I enclose you, as requested, a couple of photographs, which you will hardly recognize as of the young man whom you knew thirty years ago. The one without a beard was taken three or four years since; the other, this year. My family consists of a wife and three boys, the eldest twenty years of age.

Please remember me to any who once knew me at Greenville, for all of whom I cherish a pleasant remembrance; and believe me your sincere friend,

LYMAN TRUMBULL.

FOOTNOTES:

[85] _Cong. Globe_, 1866, p. 319.

[86] _Cong. Globe_, 1866, p. 322.

[87] _Cong. Globe_, 1866, pp. 745-46.

[88] _Cong. Globe_, 1866, p. 475.

[89] _Cong. Globe_, 1866, p. 530.

[90] _Cong. Globe_, 1866, p. 1293.

[91] "Doolittle tells me he wrote the President a letter on the morning of the 22d of February, knowing there was to be a gathering which would call at the White House, entreating him not to address the crowd. But, said D., he did speak and his speech lost him two hundred thousand votes." (_Diary of Gideon Welles_, II, 647.)

[92] W. A. Dunning, _Reconstruction_, p. 82.

[93] Both of these cases are reported in the first volume of Abbott's Circuit Court Reports.

[94] United States _v._ Harris, 106 U.S. 629.

[95] Civil Rights Cases, 109 U.S. 3.

CHAPTER XVIII

THE FOURTEENTH AMENDMENT

While the events in the preceding chapter were transpiring, a joint committee on Reconstruction were making an inquiry into the condition of the ex-Confederate States in order to determine whether they or any of them were ent.i.tled to immediate representation in Congress. It consisted of Senators Fessenden, Grimes, Harris, Howard, Williams, and Johnson, and Representatives Stevens, Washburne, of Illinois, Morrill, of Vermont, Bingham, Conkling, Boutwell, Blow, Rogers, and Grider. Senator Reverdy Johnson and Representatives Rogers and Grider were Democrats.

All the others were Republicans. There was a preponderance of conservatives on the committee. Senator Fessenden was the chairman, and his selection for the place marked him as _princeps senatus_ in the estimation of his colleagues.

While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconst.i.tutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its const.i.tutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no const.i.tutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect, Bingham proposed to the Reconstruction Committee a new const.i.tutional amendment in these words: