Chapter IX: The CIVIL Rights Bill in the Senate (1)

Duty of Congress consequent upon the Abolition of Slavery --
Civil Rights Bill introduced -- Reference to Judiciary
Committee -- Before the Senate -- Speech by Mr. Trumbull --
Mr. Saulsbury -- Mr. van Winkle -- Mr. Cowan -- Mr. Howard
-- Mr. Johnson -- Mr. Davis -- Conversations with Mr.
Trumbull and Mr. Clark -- Reply of Mr. Johnson -- Remarks by
Mr. Morrill -- Mr. Davis "wound up" -- Mr. Guthrie's Speech
-- Mr. Hendricks -- Reply of Mr. Lane -- Mr. Wilson -- Mr.
Trumbull's closing remarks -- Yeas and Nays on the passage
of the Bill.

The preceding Congress having proposed an amendment to the Constitution by which slavery should be abolished, and this amendment having been "ratified by three-fourths of the several States," four millions of the inhabitants of the United States were transformed from slaves into freemen. To leave them with their shackles broken off, unprotected, in a new and undefined position, would have been a sin against them only surpassed in enormity by the original crime of their enslavement.

As provided in the amendment itself, it devolved upon Congress "to enforce this article by appropriate legislation." The Thirty-ninth Congress assembled, realizing that it devolved upon them to define the extent of the rights, privileges, and duties of the freedmen. That body was not slow in meeting the full measure of its responsibility.

Immediately on the reässembling of Congress after the holidays, January 5, 1866, Mr. Trumbull, in pursuance of previous notice, introduced a bill "to protect all persons in the United States in their civil rights, and furnish the means of their vindication." This bill, having been read twice, was referred to the Committee on the Judiciary.

It was highly appropriate that this bill, involving the relations of millions of the inhabitants of the United States to the Government, should be referred to this able committee, selected from among the men of most distinguished legal ability in the Senate. Its members were chosen in consideration of their high professional ability, their long experience, and exalted standing as jurists. They are the legal advisers of the Senate, whose report upon constitutional questions is entitled to the highest consideration.

To such a committee the Senate appropriately referred the Civil Rights Bill, and the nation could safely trust in their hands the great interests therein involved.

The bill declares that "there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. Any person who, under cover 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 the 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 his color or race, than is prescribed for the punishment of white persons, is to be deemed guilty of a misdemeanor, and, on conviction, to be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court."

Other provisions of the bill relate to the courts which shall have jurisdiction of cases which arise under the act, and the means to be employed in its enforcement.

That no question might arise as to the constitutionality of the law, all the provisions which relate to the enforcement of the act were borrowed from the celebrated Fugitive Slave Law, enacted in 1850. It was a happy thought to compel the enemies of the negro themselves, as judges, to pronounce in favor of the constitutionality of this ordinance. It is an admirable illustration of the progress of the age, that the very instruments which were used a few years before to rivet tighter the chains of the slave, should be employed to break those very chains to fragments. It shall forever stand forth to the honor of American legislation that it attained to more than poetic justice in using the very means once employed to repress and crush the negro for his defense and elevation.

Within less than a week after the reference of this bill to the Judiciary Committee, it was reported back, with no alteration save a few verbal amendments. On account of pressure of other business, it did not come up for formal consideration and discussion in the Senate until the 29th of January. On that day Mr. Trumbull, having called up the bill for the consideration of the Senate, said:

"I regard the bill to which the attention of the Senate is now called, as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration, and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. Of what avail was the immortal declaration 'that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness,' and 'that to secure these rights governments are instituted among men,' to the millions of the African race in this country who were ground down and degraded, and subjected to a slavery more intolerable and cruel than the world ever before knew? Of what avail was it to the citizen of Massachusetts, who, a few years ago, went to South Carolina to enforce a constitutional right in court, that the Constitution of the United States declared that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? And of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist, if in the late slaveholding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen?

"It is the intention of this bill to secure those rights. The laws in the slaveholding States have made a distinction against persons of African descent on account of their color, whether free or slave. I have before me the statutes of Mississippi. They provide that if any colored person, any free negro or mulatto, shall come into that State for the purpose of residing there, he shall be sold into slavery for life. If any person of African descent residing in that State travels from one county to another without having a pass or a certificate of his freedom, he is liable to be committed to jail, and to be dealt with as a person who is in the State without authority. Other provisions of the statute prohibit any negro or mulatto from having firearms; and one provision of the statute declares that for 'exercising the functions of a minister of the Gospel, free negroes and mulattoes, on conviction, may be punished by any number of lashes not exceeding thirty-nine, on the bare back, and shall pay the costs." Other provisions of the statute of Mississippi prohibit a free negro or mulatto from keeping a house of entertainment, and subject him to trial before two justices of the peace and five slaveholders for violating the provisions of this law. The statutes of South Carolina make it a highly penal offense for any person, white or colored, to teach slaves; and similar provisions are to be found running through all the statutes of the late slaveholding States.

"When the constitutional amendment was adopted and slavery abolished, all these statutes became null and void, because they were all passed in aid of slavery, for the purpose of maintaining and supporting it. Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment."

After having stated somewhat at length the grounds upon which he placed this bill, Mr. Trumbull closed by saying: "Most of the provisions of this bill are copied from the late Fugitive Slave Act, adopted in 1850 for the purpose of returning fugitives from slavery into slavery again. The act that was passed at that time for the purpose of punishing persons who should aid negroes to escape to freedom is now to be applied by the provisions of this bill to the punishment of those who shall undertake to keep them in slavery. Surely we have the authority to enact a law as efficient in the interests of freedom, now that freedom prevails throughout the country, as we had in the interest of slavery when it prevailed in a portion of the country."

Mr. Saulsbury took an entirely different view of the subject under consideration: "I regard this bill," he said, "as one of the most dangerous that was ever introduced into the Senate of the United States, or to which the attention of the American people was ever invited. During the last four or five years, I have sat in this chamber and witnessed the introduction of bills into this body which I thought obnoxious to many very grave and serious constitutional objections; but I have never, since I have been a member of the body, seen a bill so fraught with danger, so full of mischief, as the bill now under consideration.

"I shall not follow the honorable Senator into a consideration of the manner in which slaves were treated in the Southern States, nor the privileges that have been denied to them by the laws of the States. I think the time for shedding tears over the poor slave has well nigh passed in this country. The tears which the honest white people of this country have been made to shed from the oppressive acts of this Government, in its various departments, during the last four years, call more loudly for my sympathies than those tears which have been shedding and dropping and dropping for the last twenty years in reference to the poor, oppressed slave--dropping from the eyes of strong-minded women and weak-minded men, until, becoming a mighty flood, they have swept away, in their resistless force, every trace of constitutional liberty in this country.

"I suppose it is a foregone conclusion that this measure, as one of a series of measures, is to be passed through this Congress regardless of all consequences. But the day that the President of the United States places his approval and signature to that Freedmen's Bureau Bill, and to this bill, he will have signed two acts more dangerous to the liberty of his countrymen, more disastrous to the citizens of this country, than all the acts which have been passed from the foundation of the Government to the present hour; and if we on this side of the chamber manifest anxiety and interest in reference to these bills, and the questions involved in them, it is because, having known this population all our lives, knowing them in one hour of our infancy better than you gentlemen have known them all your lives, we feel compelled, by a sense of duty, earnestly and importunately, it may be, to appeal to the judgment of the American Senate, and to reach, if possible, the judgment of the great mass of the American people, and invoke their attention to the awful consequences involved in measures of this character. Sir, stop, stop! the mangled, bleeding body of the Constitution of your country lies in your path; you are treading upon its bleeding body when you pass these laws."

After having argued at considerable length that this bill would be a most unconstitutional interference on the part of the Federal Government with "the powers of the States under the Federal Constitution," the Senator from Delaware thus concluded:

"Sir, from early boyhood I was taught to love and revere the Federal Union and those who made it. In early childhood I read the words of the Father of his country, in which he exhorted the people to cling to the union of these States as the palladium of liberty, and my young heart bounded with joy in reading the burning words of lofty patriotism. I was taught in infancy to admire, as far as the infant mind could admire, our free system of government, Federal and State; and I heard the old men say that the wit of man never devised a better or more lovely system of government. When I arrived at that age when I could study and reflect for myself, the teachings of childhood were approved by the judgment of the man.

"I have seen how under this Union we had become great in the eyes of all nations; and I see now, notwithstanding the horrible afflictions of war, if we can have wisdom in council and sincere purpose to subserve the good of the whole people of the United States, though much that was dear to us has been blasted as by the pestilence that walketh in darkness and the destruction that wasteth at noonday, how we might, in the providence of God, resume our former position among the nations of the earth, and command the respect of the whole civilized world. But, sir, to-day, in viewing and in considering this bill, the thought has occurred to me, how happy were the founders of our Federal system of government, that they had been taken from the council chambers of this nation and from among their fellow-men before bills of this character were seriously presented for legislative consideration. Happily for them, they sleep their last sleep, and--

"'How sleep the brave who sink to rest,
By all their country's wishes blest!
When Spring, with dewy fingers cold,
Returns to deck their hallowed mold,
She there shall dress a sweeter sod
Than Fancy's feet have ever trod.

"'By fairy hands their knell is rung;
By forms unseen their dirge is sung;
There Honor comes, a pilgrim gray,
To bless the turf that wraps their clay;
And Freedom shall henceforth repair
And dwell a weeping hermit there.'"

On the following day, Mr. Van Winkle, of West Virginia, addressed the Senate on the merits of the bill. He thought that the objects sought could only be attained through an amendment to the Constitution. He moreover said:

"We hear a great deal about the sentence from the Declaration of Independence, that 'all men are created equal.' I am willing to admit that all men are created equal; but how are they equal? Can a citizen of France, for instance, by going into England, be entitled to all the rights of a citizen of that country, or by coming into this country acquire all the rights of an American, unless he is naturalized? Can a citizen of our country, by going into any other, become entitled to the rights of a citizen there? If not, it may be said that they are not equal. I believe that the division of men into separate communities, and their living in society and association with their fellows, as they do, are both divine institutions, and that, consequently, the authors of the Declaration of Independence could have meant nothing more than that the rights of citizens of any community are equal to the rights of all other citizens of that community. Whenever all communities are conducted in accordance with these principles, these very conditions of their prosperous existence, then all mankind will be equal, each enjoying his equality in his own community, and not till then. Therefore, I assert that there is no right that can be exercised by any community of society more perfect than that of excluding from citizenship or membership those who are objectionable. If a little society is formed for a benevolent, literary, or any other purpose, the members immediately exercise, and claim the right to exercise, that right; they determine who shall come into their community. We have the right to determine who shall be members of our community; and much as has been said here about what God has done, and about our obligations to the Almighty in reference to this matter, I do not see where it comes in that we are bound to receive into our community those whose minglings with us might be detrimental to our interests. I do not believe that a superior race is bound to receive among it those of an inferior race, if the mingling of them can only tend to the detriment of the mass. I do not mean strict miscegenation, but I mean the mingling of two races in society, associating from time to time with each other."

Mr. Cowan, of Pennsylvania, spoke against the bill. He said: "The identical question came up in my State--the question whether the negro was a citizen, and whether he possessed political power in that State--and it was there decided that he was not one of the original corporators, that he was not one of the freemen who originally possessed political power, and that they had never, by any enactment or by any act of theirs, admitted him into a participation of that power, except so far as to tax him for the support of Government. And, Mr. President, I think it a most important question, and particularly a most important question for the Pacific coast, and those States which lie upon it, as to whether this door shall now be thrown open to the Asiatic population. If it be, there is an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding it or of carrying it out; and I can not consent to say that California, or Oregon, or Colorado, or Nevada, or any of those States, shall be given over to an irruption of Chinese. I, for my part, protest against it.

"There is a great deal more in this bill that is exceedingly objectionable. It is the first time, I think, in the history of civilized legislation, that a judicial officer has been held up and subjected to a criminal punishment for that which may have been a conscientious discharge of his duty. It is, I say, the first case that I know of, in the legislation of modern and civilized nations, where a bill of indictment is to take the place of a writ of error, and where a mistake is to be tortured into a crime.

"I may state that I have another objection to this bill at the present time; and that is, that the people of several States in the Union are not represented here, and yet this law is mainly to operate upon those people. I think it would be at least decent, respectful, if we desire to maintain and support this Government on the broad foundation upon which it was laid--namely, the consent of the governed--that we should wait, at any rate, until the people upon whom it is to operate have a voice in these halls."

Mr. Cowan then proceeded in a somewhat "devious course," as it was characterized by another Senator, to make remarks upon the subject of reconstruction. Many questions and remarks were interposed by other Senators, giving the discussion an exceedingly colloquial style.

At length, Mr. Howard, of Michigan, having obtained the floor, spoke in favor of the bill. He said: "If I understand correctly the interpretation given by several Senators to the constitutional amendment abolishing slavery, it is this: that the sole effect of it is to cut and sever the mere legal ligament by which the person and the service of the slave was attached to his master, and that beyond this particular office the amendment does not go; that it can have no effect whatever upon the condition of the emancipated black in any other respect. In other words, they hold that it relieves him from his so-called legal obligation to render his personal service to his master without compensation, and there leaves him, totally, irretrievably, and without any power on the part of Congress to look after his well-being from the moment of this mockery of emancipation. Sir, such was not the intention of the friends of this amendment at the time of its initiation here, and at the time of its adoption; and I undertake to say that it is not the construction which is given to it by the bar throughout the country, and much less by the liberty-loving people.

"But let us look more closely at this narrow construction. Where does it leave us? We are told that the amendment simply relieves the slave from the obligation to render service to his master. What is a slave in contemplation of American law, in contemplation of the laws of all the slave States? We know full well; the history of two hundred years teaches us that he had no rights, nor nothing which he could call his own. He had not the right to become a husband or a father in the eye of the law; he had no child; he was not at liberty to indulge the natural affections of the human heart for children, for wife, or even for friend. He owned no property, because the law prohibited him. He could not take real or personal estate either by sale, by grant, or by descent or inheritance. He did not own the bread he earned and ate. He stood upon the face of the earth completely isolated from the society in which he happened to be. He was nothing but a chattel, subject to the will of his owner, and unprotected in his rights by the law of the State where he happened to live. His rights, did I say? No, sir, I use inappropriate language. He had no rights; he was an animal; he was property, a chattel. The Almighty, according to the ideas of the times, had made him to be property, a Chattel, and not a man.

"Now, sir, it is not denied that this relation of servitude between the former negro slave and his master was actually severed by this amendment. But the absurd construction now forced upon it leaves him without family, without property, without the implements of husbandry, and even without the right to acquire or use any instrumentalities of carrying on the industry of which he may be capable; it leaves him without friend or support, and even without the clothes to cover his nakedness. He is a waif upon the current of time; he has nothing that belongs to him on the face of the earth, except solely his naked person. And here, in this State, we are called upon to abandon the poor creature whom we have emancipated. We are coolly told that he has no right beyond this, and we are told that under this amendment the power of the State within whose limits he happens to be is not at all restrained in respect to him, and that the State, through its Legislature, may at any time declare him to be a vagrant, and as such commit him to jail, or assign him to uncompensated service."

Mr. Johnson, of Maryland, made a speech, in which he expressed himself as in favor of conferring citizenship upon the negro, and yet unable to vote for this bill from the opinion he entertained on "the question of power." He referred to the Dred Scott and other decisions, and showed their bearing upon the legislation now proposed. He said: "I have been exceedingly anxious individually that there should be some definition which will rid this class of our people from that objection. If the Supreme Court decision is a binding one, and will be followed in the future, this law which we are now about to pass will be held, of course, to be of no avail, as far as it professes to define what citizenship is, because it gives the rights of citizenship to all persons without distinction of color, and, of course, embraces Africans or descendants of Africans."

He referred to a precedent when Congress had conferred the rights of citizenship: "The citizens of Texas, who, of course, were aliens, it has never been doubted became citizens of the United States by the annexation of Texas; and that was not done by treaty, it was done by legislation. If the power was in Congress by legislation to make citizens of all the inhabitants of the State of Texas, why is it not in the power of Congress to make citizens by legislation of all who are inhabitants of the United States, and who are not citizens? That is what this bill does, or what it proposes to do. There are within the United States millions of people who are not citizens, according to the view of the Supreme Court of the United States. Ought they to be citizens? I think they ought. I think it is an anomaly that says there shall not be the rights of citizenship to any of the inhabitants of any State of the United States.

"While they were slaves, it was a very different question; but now, when slavery is terminated, and by terminating it you have got rid of the only obstacle in the way of citizenship, two questions arise: First, whether that fact itself does not make them citizens? Before they were not citizens, because of slavery, and only because of slavery. Slavery abolished, why are they not just as much citizens as they would have been if slavery had never existed? My opinion is that they become citizens, and I hold that opinion so strongly that I should consider it unnecessary to legislate on the subject at all, as far as that class is concerned, but for the ruling of the Supreme Court to which I have adverted."

Mr. Davis, of Kentucky, spoke against the propriety and constitutionality of making all negroes citizens of the United States. He said: "There never was a colony before the Declaration of Independence, and there never was a State after the Declaration of Independence, up to the time of the adoption of the Constitution, so far as I have been able to learn by the slight historical examination which I have given to the subject, that ever made or attempted to make any other person than a person who belonged to one of the nationalities of Europe a citizen. I invoke the chairman of the committee to give me an instance, to point to any history or any memento, where a negro, although that negro was born in America, was ever made a citizen of either of the States of the United States before the adoption of this Constitution. The whole material out of which citizens were made previous to the adoption of the present Constitution was from the European nationalities, from the Caucasian race, if I may use the term. I deny that a single citizen was ever made by one of the States out of the negro race. I deny that a single citizen was ever made by one of the States out of the Mongolian race. I controvert that a single citizen was ever made by one of the States out of the Chinese race, out of the Hindoos, or out of any other race of people but the Caucasian race of Europe.

"I come, then, to this position: that whenever the States, after the Declaration of Independence and before the present Constitution was adopted, legislated in relation to citizenship, or acted in their governments in relation to citizenship, the subject of that legislation or that action was the Caucasian race of Europe; that none of the inferior races of any kind were intended to be embraced or were embraced by this work of Government in manufacturing citizens."

Mr. Trumbull inquired, "Will the Senator from Kentucky allow me to ask him if he means to assert that negroes were not citizens of any of these colonies before the adoption of the Constitution?"

"I say they were not," said Mr. Davis.

"Does the Senator wish any authority to show that they were?" asked Mr. Trumbull.

"When I get through," said Mr. Davis, "you can answer me."

Mr. Trumbull replied: "I understood the Senator to challenge me to produce any proof on that point, and I thought he would like to have it in his speech. I can assert to him that by a solemn decision of the Supreme Court of North Carolina, they were citizens before the adoption of the Constitution."

"If the honorable Senator will allow me," said Mr. Davis, "I will get along with my remarks."

"I think you will get along better," replied Mr. Trumbull, "by not being exposed in your statements."

"The honorable Senator is full of conceit, but I have seen less conceit with a great deal more brains," said Mr. Davis, who then proceeded "to throw up" what he termed "the main buttress for the defense of the positions" that he took.

"My main position," said he, "is, that no native-born person of the United States, of any race or color, can be admitted a citizen of the United States by Congress under the power conferred in relation to naturalization by the Constitution upon Congress."

After reading some authorities, the Senator proceeded to say: "A grave hallucination in this day is to claim all power; and a minor error is that every thing which passion, or interest, or party power, or any selfish claims may represent to the judgment or imagination of gentlemen who belong to strong parties, to be necessary or useful for the good and the domination of such parties, is seized upon in defiance of a fair construction of language, in outrage of the plain meaning of the Constitution. That is not the rule by which our Constitution is to be interpreted. It is not the rule by which it is to be administered. On the contrary, if the able, honorable, and clear-headed Senator from Illinois would do himself and his country the justice to place himself in the position of the framers of the Constitution; if he would look all around on the circumstances and connections of that day, on the purposes of those men not only in relation to forming a more perfect Union, but also in relation to securing the blessings of life, liberty, and property to themselves and their posterity forever; if the honorable Senator would construe the Constitution according to the light, the sacred and bright light which such surrounding circumstances would throw upon his intellect, it seems to me that he would at once abandon this abominable bill, and would also ask to withdraw its twin sister from the other House that both might be smothered here together upon the altar of the Constitution and of patriotism."

At the close of Mr. Davis' speech, much debate and conversation ensued among various Senators upon a proposed amendment by Mr. Lane, of Kansas, by which Indians "under tribal authority" should be excluded from the benefits conferred by this bill. After this question was disposed of, Mr. Davis was drawn out in another speech by what seemed to him to be the necessity of defending some positions which he had assumed. He said:

"I still reiterate the position that the negro is not a citizen here according to the essential fundamental principles of our system; but whether he be a citizen or not, he is not a foreigner, and no man, white or black, or red or mixed, can be made a citizen by naturalization unless he is a foreigner."

Mr. Clark, of New Hampshire, interposed: "I wish the Senator from Kentucky would tell us what constitutes a citizen under the Constitution."

"A foreigner is not a citizen in the fullest sense of the word at all," said Mr. Davis.

"The Senator is now telling us," said Mr. Clark, "who is not a citizen, but my question is, What constitutes a citizen?"

"I leave that to the exercise of your own ingenuity," replied Mr. Davis.

"That is it," said Mr. Clark. "Washington is dead; Marshall is dead; Story is dead; I hoped the Senator from Kentucky would have enlightened us. He says a negro is not a citizen, and a negro is not a foreigner and can not be made a citizen. He says that a person who might be and was a citizen before the Constitution, is not a citizen since the Constitution was adopted. What right was taken away from him by the Constitution that disqualifies him from being a citizen? The free negroes in my State, before the Constitution was adopted, were citizens."

Mr. Davis, having admitted that free negroes were citizens before the Constitution in New Hampshire, Mr. Clark said:

"I desired that the Senator should tell me what, in his opinion, constituted a citizen under the Constitution."

Mr. Davis replied: "I will answer the honorable Senator. We sometimes answer a positive question by declaring what a thing is not. Now, the honorable Senator asks me what a citizen is. It is easier to answer what it is not than what it is, and I say that a negro is not a citizen."

"Well, that is a lucid definition," said Mr. Clark.

"Sufficient for the subject," said Mr. Davis.

"That is begging the question," Mr. Clark replied. "I wanted to find why a negro was not a citizen, if the gentleman would tell me. If he would lay down his definition, I wanted to see whether the negro did not comply with it and conform to it, so as to be a citizen; but he insists that he is not a citizen."

"I will answer that question, if the honorable Senator will permit me," said Mr. Davis. "Government is a political partnership. No persons but the partners who formed the partnership are parties to the government. Here is a government formed by the white man alone. The negro was excluded from the formation of our political partnership; he had nothing to do with it; he had nothing to do in its formation."

"Is it a close corporation, so that new partners can not be added?" asked Mr. Stewart, of Nevada.

"Yes, sir," said Mr. Davis; "it is a close white corporation. You may bring all of Europe, but none of Asia and none of Africa into our partnership."

"Let us see," said Mr. Clark, "how that may be. Take the gentleman's own ground that government is a partnership, and those who did not enter into it and take an active part in it can not be citizens. Is a woman a citizen under our Constitution?"

"Not to vote," said Mr. Davis.

"I did not ask about voting," said Mr. Clark. "The gentleman said awhile ago that voting did not constitute citizenship. I want to know if she is a citizen. Can she not sue and be sued, contract, and exercise the rights of a citizen?"

"So can a free negro," said Mr. Davis.

"Then, if a free negro can do all that," said Mr. Clark; "why is he not a citizen?"

"Because he is no part of the governing power; that is the reason," Mr. Davis replied.

"I deny that," said Mr. Clark, "because in some of the States he is a part of the governing power. The Senator only begs the question; it only comes back to this, that a nigger is a nigger." [Laughter.]

"That is the whole of it," said Mr. Davis.

"That is the whole of the gentleman's logic," said Mr. Clark.

In answer to the statement insisted on by Mr. Davis, "You can not make a citizen of any body that is not a foreigner," Mr. Johnson said:

"That would be an extraordinary condition for the country to be in. Here are four million negroes. They are not foreigners, because they were born in the United States. They have no foreign allegiance to renounce, because they owed no foreign allegiance. Their allegiance, whatever it was, was an allegiance to the Government of the United States alone. They can not come, therefore, under the naturalizing clause; they can not come, of course, under the statutes passed in pursuance of the power conferred upon Congress by that clause; but does it follow from that that you can not make them citizens; that the Congress of the United States, vested with the whole legislative power belonging to the Government, having within the limits of the United States four million people anxious to become citizens, and when you are anxious to make them citizens, have no power to make them citizens? It seems to me that to state the question is to answer it.

"The honorable member reads the Constitution as if it said that none but white men should become citizens of the United States; but it says no such thing, and never intended, in my judgment, to say any such thing. If it had designed to exclude from all participation in the rights of citizenship certain men on account of color, and to have confined, at all times thereafter, citizenship to the white race, it is but fair to presume, looking to the character of the men who framed the Constitution, that they would have put that object beyond all possible doubt; they would have said that no man should be a citizen of the United States except a white man, or rather would have negatived the right of the negro to become a citizen by saying that Congress might pass uniform rules upon the subject of the naturalization of white immigrants and nobody else; but that they did not do. They left it to Congress. Congress, in the exercise of their discretion, have thought proper to insert the term 'white' in the naturalization act; but they may strike it out, and if it should be stricken out, I do not think any lawyer, except my friend from Kentucky, would deny that a black man could be naturalized, and by naturalization become a citizen of the United States.

"But to go back to the point from which the questions of my honorable friend from Kentucky caused me to digress, we have now within the United States four million colored people, the descendants of Africans, whose ancestors were brought into the United States as chattels. It was because of that condition that they were considered as not entitled to the rights of citizenship. We have put an end to that condition. We have said that at all times hereafter men of any color that nature may think proper to impress upon the human frame, shall, if within the United States, be free, and not property. Then, we have four million colored people who are now as free as we are; and the only question is, whether, being free, they can not be clothed with the rights of citizenship. The honorable member from Kentucky says no, because the naturalization clause does not include them. I have attempted to answer that. He says no, because the act passed in pursuance of that clause does not include them. I have answered that by saying that that act in that particular may be changed."

On the following day, February 1st, the discussion of the bill was resumed by Mr. Morrill, of Maine. He said of the bill: "It marks an epoch in the history of this country, and from this time forward the legislation takes a fresh and a new departure. Sir, to-day is the only hour since this Government began when it was possible to have enacted it. Such has been the situation of politics in this country, nay, sir, such have been the provisions of the fundamental law of this country, that such legislation hitherto has never been possible. There has been no time since the foundation of the Government when an American Congress could by possibility have enacted such a law, or with propriety have made such a declaration. What is this declaration? All persons born in this country are citizens. That never was so before. Although I have said that by the fundamental principles of American law all persons were entitled to be citizens by birth, we all know that there was an exceptional condition in the Government of the country which provided for an exception to this general rule. Here were four million slaves in this country that were not citizens, not citizens by the general policy of the country, not citizens on account of their condition of servitude; up to this hour they could not have been treated by us as citizens; so long as that provision in the Constitution which recognized this exceptional condition remained the fundamental law of the country, such a declaration as this would not have been legal, could not have been enacted by Congress. I hail it, therefore, as a declaration which typifies a grand fundamental change in the politics of the country, and which change justifies the declaration now.

"The honorable Senator from Kentucky has vexed himself somewhat, I think, with the problem of the naturalization of American citizens. As he reads it, only foreigners can be naturalized, or, in other words, can become citizens; and upon his assumption, four million men and women in this country are outside not only of naturalization, not only of citizenship, but outside of the possibility of citizenship. Sir, he has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. This is the fundamental principle running through all modern politics both in this country and in Europe. Every-where, where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship. Therefore the founders of this Government made no provision--of course they made none--for the naturalization of natural-born citizens. The Constitution speaks of 'natural-born,' and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.

"The honorable Senator from Kentucky, when he criticises the methods of naturalization, and rules out, for want of power, four million people, forgets this general process of nations and of nature by which every man, by his birth, is entitled to citizenship, and that upon the general principle that he owes allegiance to the country of his birth, and that country owes him protection. That is the foundation, as I understand it, of all citizenship, and these are the essential elements of citizenship: allegiance on the one side, and protection on the other."

In reply to statements made by Mr. Davis, Mr. Morrill remarked: "The Senator from Kentucky denounces as a usurpation this measure, and particularly this amendment, this declaration. He says it is not within the principles of the Constitution. That it is extraordinary I admit. That the measure is not ordinary is most clear. There is no parallel, I have already said, for it in the history of this country; there is no parallel for it in the history of any country. No nation, from the foundation of government, has ever undertaken to make a legislative declaration so broad. Why? Because no nation hitherto has ever cherished a liberty so universal. The ancient republics were all exceptional in their liberty; they all had excepted classes, subjected classes, which were not the subject of government, and, therefore, they could not so legislate. That it is extraordinary and without a parallel in the history of this Government, or of any other, does not affect the character of the declaration itself.

"The Senator from Kentucky tells us that the proposition is revolutionary, and he thinks that is an objection. I freely concede that it is revolutionary. I admit that this species of legislation is absolutely revolutionary. But are we not in the midst of revolution? Is the Senator from Kentucky utterly oblivious to the grand results of four years of war? Are we not in the midst of a civil and political revolution which has changed the fundamental principles of our Government in some respects? Sir, is it no revolution that you have changed the entire system of servitude in this country? Is it no revolution that now you can no longer talk of two systems of civilization in this country? Four short years back, I remember to have listened to eloquent speeches in this chamber, in which we were told that there was a grand antagonism in our institutions; that there were two civilizations; that there was a civilization based on servitude, and that it was antagonistic to the free institutions of the country. Where is that? Gone forever. That result is a revolution grander and sublimer in its consequences than the world has witnessed hitherto.

"I accept, then, what the Senator from Kentucky thinks so obnoxious. We are in the midst of revolution. We have revolutionized this Constitution of ours to that extent; and every substantial change in the fundamental constitution of a country is a revolution. Why, sir, the Constitution even provides for revolutionizing itself. Nay, more, it contemplates it; contemplates that in the changing phases of life, civil and political, changes in the fundamental law will become necessary; and is it needful for me to advert to the facts and events of the last four or five years to justify the declaration that revolution here is not only radical and thorough, but the result of the events of the last four years? Of course, I mean to contend in all I say that the revolution of which I speak should be peaceful, as on the part of the Government here it has been peaceful. It grows out, to be sure, of an assault upon our institutions by those whose purpose it was to overthrow the Government; but, on the part of the Government, it has been peaceful, it has been within the forms of the Constitution; but it is a revolution nevertheless.

"But the honorable Senator from Kentucky insists that it is a usurpation. Not so, sir. Although it is a revolution radical, as I contend, it was not a usurpation. It was not a usurpation, because it took place within the provisions contemplated in the Constitution. More than that, it was a change precisely in harmony with the general principles of the Government. This great change which has been wrought in our institutions was in harmony with the fundamental principles of the Government. The change which has been made has destroyed that which was exceptional in our institutions; and the action of the Government in regard to it was provoked by the enemies of the Government. The opportunity was afforded, and the change which has been wrought was in harmony with the fundamental principles of the Government."

The Senator from Maine opposed the theory that this is a Government exclusively for white men. He remarked: "It is said that this amendment raises the general question of the antagonism of the races, which, we are told, is a well-established fact. It is said that no rational man, no intelligent legislator or statesman, should ever act without reference to that grand historical fact; and the Senator from Pennsylvania, [Mr. Cowan,] on a former occasion, asserted that this Government, that American society, had been established here upon the principle of the exclusion, as he termed it, of the inferior and the barbarian races. Mr. President, I deny that proposition as a historical fact. There is nothing more inaccurate. No proposition could possibly be made here or anywhere else more inaccurate than to say that American society, either civil or political, was formed in the interest of any race or class. Sir, the history of the country does not bear out the statement of the honorable Senator from Pennsylvania. Was not America said to be the land of refuge? Has it not been, since the earliest period, held up as an asylum for the oppressed of all nations? Hither, allow me to ask, have not all the peoples of the nations of the earth come for an asylum and for refuge? All the nations of the earth, and all the varieties of the races of the nations of the earth, have gathered here. In the early settlements of the country, the Irish, the French, the Swede, the Turk, the Italian, the Moor, and so I might enumerate all the races, and all the variety of races, came here; and it is a fundamental mistake to suppose that settlement was begun here in the interests of any class, or condition, or race, or interest. This Western Continent was looked to as an asylum for the oppressed of all nations and of all races. Hither all nations and all races have come. Here, sir, upon the grand plane of republican democratic liberty, they have undertaken to work out the great problem of man's capacity for self-government without stint or limit."

Mr. Davis then made another speech in opposition to the bill. When the hour for adjournment had arrived, and Mr. Johnson interrupted him with a proposition that "the bill be passed over for to-day," Mr. Davis said, "I am wound up, and am obliged to run down." The Senate, however, adjourned at a late hour, and resumed the hearing of Mr. Davis on the following day.

In alluding to Mr. Johnson's strictures on his assertion that Congress had no power to confer the right of citizenship on "the native born negro," Mr. Davis said: "The honorable Senator, [Mr. Johnson,] as I said the other day, is one of the ablest lawyers, and, I believe, the ablest living lawyer in the land. I have seen gentlemen sometimes so much the lawyer that they had to abate some of the statesman [laughter]; and I am not certain, I would not say it was so--I will not arrogate to myself to say so--but sometimes a suspicion flashes across my mind that that is precisely the predicament of my honorable friend.

"I maintain that a negro can not be made a citizen by Congress; he can not be made a citizen by any naturalization laws, because the naturalization laws apply to foreigners alone. No man can shake the legal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the United States, not being a foreigner, can not be naturalized; therefore they can not be made citizens by the uniform rule established by Congress under the Constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. They could not be made citizens by treaty. If they are made so at all, it is by their birth, and the locality of their birth, and the general operation and effect of our Constitution. If they are so made citizens, that question is a judicial question, not a legislative question. Congress has no power to enlarge or extend any of the provisions of the Constitution which bear upon the birth or citizenship of negroes or Indians born in the United States.

"If there was any despot in Europe or in the world that wanted a master architect in framing and putting together a despotic and oppressive law, I would, if my slight voice could reach him, by all means say to him, Seek the laboratory of the Senator from Illinois. If he has not proved himself an adept in this kind of legislation, unconstitutional, unjust, oppressive, iniquitous, unwise, impolitic, calculated to keep forever a severance of the Union, to exclude from all their constitutional rights, privileges, and powers under the Government eleven States of the Union--if he has not devised such a measure as that, I have not reason enough to comprehend it."