Chapter VIII: The Senate and the Veto Message (2)

"Sir, does it detract from the President's authority to have the sanction of law? I want to give that sanction. I do not object to the exercise of this military authority of the President in the rebellious States. I believe it is constitutional and legitimate and necessary; but I believe Congress has authority to regulate it. I believe Congress has authority to direct that this military jurisdiction shall be exercised by that branch of the army known as the Freedmen's Bureau, as well as by any other branch of the army."

"The rebellion is at an end," said the President. "The measure, therefore, seems to be as inconsistent with the actual condition of the country as it is at variance with the Constitution of the United States."

Mr. Trumbull replied: "If the rebellion is at an end, will anybody tell me by what authority the President of the United States suspends the writ of _habeas corpus_ in those States where it existed. The act of Congress of March, 1863, authorized the President of the United States to suspend the writ of _habeas corpus_ during the present rebellion. He says it is at an end. By what authority, then, does he suspend the writ? By his own declaration, let him stand or fall. If it is competent to suspend the writ, if it is competent for military tribunals to sit all through the South, and entertain military jurisdiction, this bill, which does not continue military jurisdiction, does not establish military jurisdiction, but only authorizes the officers of this bureau, while military jurisdiction prevails, to take charge of that particular class of cases affecting the refugee or freedman where he is discriminated against, can not be obnoxious to any constitutional objection."

"This bill," said the President, "proposes to make the Freedmen's Bureau, established by the act of 1865, as one of many great and extraordinary military measures to suppress a formidable rebellion, a permanent branch of the public administration, with its powers greatly enlarged."

"This is a mistake," replied Mr. Trumbull; "it is not intended, I apprehend, by any body, certainly not by me, to make it a permanent branch of the public administration; and I am quite sure that the powers of the bureau are not, by the amendatory bill, greatly enlarged. A careful examination of the amendment will show that it is in some respects a restriction on the powers already exercised."

"The third section of the bill," the President objected, "authorizes a general and unlimited grant of support to the destitute and suffering refugees and freedmen, their wives and children."

"What is the third section of the bill," asked Mr. Trumbull, "which the President says contains such an unlimited grant of support to the destitute and suffering refugees, their wives and children? I will read that third section:

"'That the Secretary of War may direct such issues of
provisions, clothing, fuel, including medical stores and
transportation, and afford such aid, medical or otherwise,
as he may deem needful for the immediate and temporary
shelter and supply of destitute and suffering refugees and
freedmen, their wives and children, under such rules and
regulations as he may direct: _Provided_, That no person
shall be deemed "destitute," "suffering," or "dependent upon
the Government for support," within the meaning of this act,
who, being able to find employment, could, by proper
industry and exertion, avoid such destitution, suffering, or
dependence.'

"Does the President object to this bill on the ground that it authorizes medical aid to be furnished the sick? Or does he object to it because of the proviso which limits its operation, and declares that nobody shall be deemed destitute and suffering under the provisions of the act who is able, by proper industry and exertion, to avoid such destitution? Why, sir, it is a limitation on the present existing law. Does that look much like taking care of four million of people--a provision that expressly limits the operations of this act to those only who can not find employment? A statement of the fact is all that is necessary to meet this statement in the Veto Message."

"The Congress of the United States," said the President, "has never heretofore thought itself empowered to establish asylums beyond the limits of the District of Columbia, except for the benefit of our disabled soldiers and sailors. It has never founded schools for any class of our own people. It has never deemed itself authorized to expend the public money for the rent or purchase of homes for the thousands, not to say millions of the white race who are honestly toiling from day to day for their subsistence."

"The answer to that is this," said Mr. Trumbull: "We never before were in such a state as now"; never before in the history of this Government did eleven States of the Union combine together to overthrow and destroy the Union; never before in the history of this Government have we had a four years' civil war; never before in the history of this Government have nearly four million people been emancipated from the most abject and degrading slavery ever imposed upon human beings; never before has the occasion arisen when it was necessary to provide for such large numbers of people thrown upon the bounty of the Government unprotected and unprovided for. But, sir, wherever the necessity did exist the Government has acted. We have voted hundreds of thousands and millions of dollars, and are doing it from year to year, to take care of and provide for the destitute and suffering Indians. We appropriated, years ago, hundreds of thousands of dollars to take care of and feed the savage African who was landed upon our coast by slavers. We provided by law that whenever savages from Africa should be brought to our shores, or whenever they should be captured on board of slavers, the President of the United States should make provision for their maintenance and support, for five years, on the coast of Africa. He was authorized by law to appoint agents to go to Africa to provide means to feed them, and we paid the money to do it. And yet, sir, can we not provide for these Africans who have been held in bondage all their lives, who have never been permitted to earn one dollar for themselves, who, by the great Constitutional Amendment declaring freedom throughout the land, have been discharged from bondage to their masters, who had hitherto provided for their necessities in consideration of their services? Can we not provide for these destitute persons of our own land on the same principle that we provide for the Indians, that we provide for the savage African?"

"But," continued Mr. Trumbull, "the President says we have never rented lands for the white race, we have never purchased lands for them. What do we propose to do by this bill? This authorizes, if the President thinks proper to do it--it is in his discretion--the purchase or renting of lands on which to place these indigent people; but before any land can be purchased or rented, before any contract can be made on the subject, there must be an appropriation made by Congress. This bill contains no appropriation. If the President is opposed to the rent or purchase of land, and Congress passes a bill appropriating money for that purpose, let him veto it if he thinks it unconstitutional; but there is nothing unconstitutional in this bill. This bill does not purchase any land; but it prevents even a contract on the subject until another law shall be passed appropriating the money for that purpose.

"But, sir, what is the objection to it if it did appropriate the money? I have already undertaken to show, and I think I have shown, that it was the duty of the United States, as an independent nation, as one of the powers of the earth, whenever there came into its possession an unprotected class of people, who must suffer and perish but for its care, to provide for and take care of them. When an army is marching through an enemy's country, and poor and destitute persons are found within its lines who must die by starvation if they are not fed from the supplies of the army, will any body show me the constitutional provision or the act of Congress that authorizes the general commanding to open his commissariat and feed the starving multitude? And has it not been done by every one of your commanders all through the South? Whenever a starving human being, man, woman, or child, no matter whether black or white, rebel or loyal, came within the lines of the army, to perish and die unless fed from our supplies, there has never been an officer in our service, and, thank God! there has not been, who did not relieve the sufferer. If you want to know where the constitutional power to do this is, and where the law is, I answer, it is in that common humanity that belongs to every man fit to bear the name, and it is in that power that belongs to us as a Christian nation, carrying on war upon civilized principles.

"If we had the right then to feed those people as we did, have we not the right to take care of them in the cheapest way we can? If, when General Sherman was passing through Georgia, he found the lands abandoned; if their able-bodied owners had entered the rebel army to fight against us; if the women and children had fled and left the land a waste, and he had, as is the fact, thousands of persons hanging upon his army dependent upon him for supplies; if it was believed that it would be cheaper to support these people upon these lands than to buy provisions to feed them, might we not do so? May we not resort to whatever means is most judicious to protect from starvation that multitude which common humanity requires us to feed?

"Nor, sir, is it true that no provision has been made by Congress for the education of white people. We have given all through the new States one section of land in every township for the benefit of common schools. We have donated hundreds of thousands of acres of land to all the States for the establishment of colleges and seminaries of learning. How did we get this land? It was purchased by our money, and then we gave it away for purposes of education. The same right exists now to provide for these people, and it is not simply for the black people, but for the white refugees as well as the black, that this bill provides."

Said the President: "The appropriations asked by the Freedmen's Bureau, as now established, for the year 1866, amounts to $11,745,000. It may be safely estimated that the cost to be incurred under the pending bill will require double that amount."

Mr. Trumbull replied: "A far larger sum, in proportion to the number that were thrown upon our hands, was expended before the creation of the Freedmen's Bureau, in feeding and taking care of refugees and freedmen, than since the establishment of the Freedmen's Bureau. Since that time, the authority of the Government has been extended over all the rebellious States, and we have had a larger number of refugees and freedmen to provide for, but in proportion to the number I have no doubt that the expense is less now than it was before the establishment of the bureau."

"The query again presents itself," said the President, "whether the system proposed by the bill will not, when put into complete operation, practically transfer the entire care, support, and control of four million emancipated slaves to agents, overseers, or taskmasters, who, appointed at Washington, are to be located in every county and parish throughout the United States containing freedmen and refugees."

"I scarcely know how to reply to that most extravagant statement," said Mr. Trumbull. "I have already shown that it would be a great abuse of the power conferred by this bill to station an agent in every county. I have already stated that but a small proportion of the freedmen are aided by the Freedmen's Bureau. In this official document the President has sent to Congress the exaggerated statement that it is a question whether this bureau would not bring under its control the four million emancipated slaves. The census of 1860 shows that there never were four million slaves in all the United States, if you counted every man, woman, and child, and we know that the number has not increased during the war. But, sir, what will be thought when I show, as I shall directly show by official figures, that, so far from providing for four million emancipated slaves, the Freedmen's Bureau never yet provided for a hundred thousand, and, as restricted by the proviso to the third section of the present bill, it could never be extended, under it, to a larger number. Is it not most extraordinary that a bill should be returned with the veto from the President on the ground that it provides for four million people, when, restricted in its operations as it is, and having been in operation since March last, it has never had under its control a hundred thousand? I have here an official statement from the Freedmen's Bureau, which I beg leave to read in this connection:

"'The greatest number of persons to whom rations were
issued, including the Commissary Department, the bureau
issues to persons without the army, is one hundred and
forty-eight thousand one hundred and twenty.'

"Who are they? I said there were not a hundred thousand freedmen provided for by the bureau.

"'Whites, 57,369; colored, 90,607; Indians, 133. The
greatest number by the bureau was 49,932, in September. The
total number for December was 17,025.'

"That sounds a little different from four millions. Seventeen thousand and twenty-five were all that were provided for by the Freedmen's Bureau in the month of December last, the number getting less and less every month. Why? Because, by the kind and judicious management of that bureau, places of employment were found for these refugees and freedmen. When the freedmen were discharged from their masters' plantations they were assisted to find places of work elsewhere.

"The President says," continued Mr. Trumbull, "that Congress never thought of making these provisions for the white people. Let us see what provisions have been made for the white people. Major-General Fisk, Commissioner of the Freedmen's Bureau for the State of Tennessee, in his testimony given before the Reconstruction Committee, said:

"'During the last year, the rations issued to white people
in Tennessee have been much in excess of those issued to
freedmen. When I took charge of my district the Government
was feeding twenty-five thousand people; in round numbers,
about seventeen thousand five hundred white persons and
seven thousand blacks. The month preceding the establishment
of the Freedmen's Bureau, for rations alone for that class
of people the sum of $97,000 was paid. My first efforts were
to reduce the number of those beneficiaries of the
Government, to withhold the rations, and make the people
self-supporting as far as possible; and in the course of
four months I reduced the monthly expenses from $97,000 to
$5,000.'

"In addition to the objections already stated," said the President, "the fifth section of this bill proposes to take away land from its former owners, without any legal proceedings first had."

"I regret," said Mr. Trumbull, "that a statement like that should inadvertently (for it must have been inadvertent) have found a place in this Veto Message. The fifth section of the bill does not propose to take away lands from any body. I will read it, and we shall see what it is:

"'That the occupants of land under Major-General Sherman's
special field order, dated at Savannah, January 16, 1865,
are hereby confirmed in their possession.'

"Is not this a different thing from taking away land from any body? Do you take a thing away from another person when you have it in your possession already? This fifth section, so far from taking land from any body, provides simply for protecting the occupants of the land for three years from the 16th of January, 1865, a little less than two years from this time. If the section does any thing, it simply prevents the restoration of this property to its former owners within that period, except upon terms to be entered into, satisfactory to the commissioner, between the occupant and the former owner. This is all there is of it. It is a very different thing from taking away land from its former owners."

"Undoubtedly," said the President, "the freedmen should be protected by the civil authorities, especially by the exercise of all the constitutional powers of the courts of the United States and of the States."

"Let us see," replied Mr. Trumbull, "how they are protected by the civil authority." After having read from documents setting forth laws in reference to freedmen in force in Texas and Mississippi, Mr. Trumbull continued: "I have here a number of communications of a similar character, showing that, by the laws in some of the Southern States, a pass system still exists, and that the negro really has no protection afforded him either by the civil authorities or judicial tribunals of the State. I have letters showing the same thing in the State of Maryland, from persons whose character is vouched for as reliable. Under this state of things, the President tells us that the freedman should be protected 'by the exercise of all the constitutional powers of the courts of the United States and of the States!'"

"He also possesses," said the President, referring to the freedman, "a perfect right to change his place of abode; and if, therefore, he does not find in one community or State a mode of life suited to his desires, or proper remuneration for his labor, he can move to another where that labor is more esteemed and better rewarded."

"Then, sir," said Mr. Trumbull, "is there no necessity for some supervising care of these people? Are they to be coldly told that they have a perfect right to change their place of abode, when, if they are caught in a strange neighborhood without a pass, they are liable to be whipped? when combinations exist against them that they shall not be permitted to hire unless to their former master? Are these people, knowing nothing of geography, knowing not where to go, having never in their lives been ten miles from the place where they were born, these old women and young children, these feeble persons who are turned off because they can no longer work, to be told to go and seek employment elsewhere? and is the Government of the United States, which has made them free, to stand by and do nothing to save and protect them? Are they to be left to the mercy of such legislation as that of Mississippi, to such laws as exist in Texas, to such practices as are tolerated in Maryland and in Kentucky? Sir, I think some protection is necessary for them, and that was the object of this bureau. It was not intended, and such is not its effect, to interfere with the ordinary administration of justice in any State, not even during the rebellion. The moment that any State does justice and abolishes all discrimination between whites and blacks in civil rights, the judicial functions of the Freedmen's Bureau cease.

"But," continued Mr. Trumbull, "the President, most strangely of all, dwells upon the unconstitutionality of this act, without ever having alluded to that provision of the Constitution which its advocates claim gives the authority to pass it. Is it not most extraordinary that the President of the United States returns a bill which has passed Congress, with his objections to it, alleging it to be unconstitutional, and makes no allusion whatever in his whole message to that provision of the Constitution which, in the opinion of its supporters, clearly gives the authority to pass it? And what is that? The second clause of the constitutional amendment, which declares that Congress shall have authority by appropriate legislation to enforce the article, which declares that there shall be neither slavery nor involuntary servitude throughout the United States. If legislation be necessary to protect the former slaves against State laws, which allow them to be whipped if found away from home without a pass, has not Congress, under the second clause of the amendment, authority to provide it? What kind of freedom is that which the Constitution of the United States guarantees to a man that does not protect him from the lash if he is caught away from home without a pass? And how can we sit here and discharge the constitutional obligation that is upon us to pass the appropriate legislation to protect every man in the land in his freedom, when we know such laws are being passed in the South, if we do nothing to prevent their enforcement? Sir, so far from the bill being unconstitutional, I should feel that I had failed in my constitutional duty if I did not propose some measure that would protect these people in their freedom. And yet this clause of the Constitution seems to have escaped entirely the observation of the President.

"The President objects to this bill because it was passed in the absence of representation from the rebellious States. If that objection be valid, all our legislation affecting those States is wrong, and has been wrong from the beginning. When the rebellion broke out, in the first year of the war, we passed a law for collecting a direct tax, and we assessed that tax upon all the rebellious States. According to the theory of the President, that was all wrong, because taxation and representation did not go together. Those States were not represented. Then, according to this argument, (I will not read all of it,) we were bound to have received their Representatives, or else not legislate for and tax them. He insists they were States in the Union all the time, and according to the Constitution, each State is entitled to at least one Representative.

"If the argument that Congress can not legislate for States unrepresented is good now, it was good during the conflict of arms, for none of the States whose governments were usurped are yet relieved from military control. If we have no right to legislate for those States now, we had no right to impose the direct tax upon them. We had no right to pass any of our laws that affected them. We had no right to raise an army to march into the rebellious States while they were not represented in the Congress of the United States. We had no right to pass a law declaring these States in rebellion. Why? The rebels were not here to be represented in the American Senate. We had no right to pass a law authorizing the President to issue a proclamation discontinuing all intercourse with the people of those rebellious States; and why? Because they were not represented here. We had no right to blockade their coast. Why? They were not represented here. They are States, says the President, and each State is entitled to two Senators, and to at least one Representative. Suppose the State of South Carolina had sent to Congress, during the war, a Representative; had Congress nothing to do but to admit him, if found qualified? Must he be received because he comes from a State, and a State can not go out of the Union? Why, sir, is any thing more necessary than to state this proposition to show its absolute absurdity?"

The President said: "The President of the United States stands toward the country in a somewhat different attitude from that of any member of Congress. Each member of Congress is chosen from a single district or State; the President is chosen by the people of all the States. As eleven States are not at this time represented in either branch of Congress, it would seem to be his duty, on all proper occasions, to present their just claims to Congress."

"If it would not be disrespectful," said Mr. Trumbull, "I should like to inquire how many votes the President got in those eleven States. Sir, he is no more the representative of those eleven States than I am, except as he holds a higher position. I came here as a Representative chosen by the State of Illinois; but I came here to legislate, not simply for the State of Illinois, but for the United States of America, and for South Carolina as well as Illinois. I deny that we are simply the Representatives of the districts and States which send us here, or that we are governed by such narrow views that we can not legislate for the whole country; and we are as much the Representatives, and, in this particular instance, receive as much of the support of those eleven States as did the President himself."

Mr. Trumbull finally remarked: "The President believes this bill unconstitutional; I believe it constitutional. He believes that it will involve great expense; I believe it will save expense. He believes that the freedmen will be protected without it; I believe he will be tyrannized over, abused, and virtually reënslaved, without some legislation by the nation for his protection. He believes it unwise; I believe it to be politic."

Without further debate, the vote was taken on the question, "Shall the bill pass, the objections of the President of the United States notwithstanding?" The Senators voted as follows:

YEAS--Messrs. Anthony, Brown, Chandler, Clark, Conness,
Cragin, Creswell, Fessenden, Foster, Grimes, Harris,
Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of
Kansas, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman,
Sprague, Sumner, Trumbull, Wade, Williams, Wilson, and
Yates--30.

NAYS--Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle,
Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith,
Norton, Riddle, Saulsbury, Stewart, Stockton, Van Winkle,
and Willey--18.

ABSENT--Messrs. Foot and Wright--2.

The President _pro tempore_ then announced, "On this question the yeas are thirty and the nays are eighteen. Two-thirds of the members present not having voted for the bill, it is not a law."