THE FREEDMEN'S BUREAU AND CIVIL RIGHTS BILLS On January 5, 1866, Trumbull introduced two measures which engrossed public attention during the next three months and enlarged the parting of the ways between Congress and the President. These were the Freedmen's Bureau Bill and the Civil Rights Bill. The former was a measure to continue in force and amend an act of Congress already in operation, but which would expire by limitation one year after the end of the war, and which had been passed to provide for needy and homeless whites, as well as blacks. It embraced also the temporary disposition of abandoned lands. Under its operation General Sherman had assigned some thousands of acres of abandoned land to freedmen for the purpose of giving them employment and enabling them to earn their own living, and they were in actual possession. Of course, the title to such lands would revert to the former owners, whenever military rule should come to an end. The Freedmen's Bureau Bill provided that in places where the ordinary course of judicial proceedings had been interrupted by the rebellion, and where any of the civil rights enjoyed by white persons were denied to other persons by reason of race, color, or previous condition of servitude, the latter should be under military protection and jurisdiction, which should be exercised by the Commissioner of the Freedmen's Bureau under orders of the President of the United States, and that any person, who, under color of any state or local law or custom, should infringe such rights, should be punished by fine or imprisonment or both. The courts authorized to hear and decide such cases were to consist of the officers and agents of the Bureau, without jury trial and without appeal; but this jurisdiction should not exist in any state after it should have been restored to its constitutional relations to the Union. The last-mentioned feature of the bill brought up the question whether Congress had power under the Constitution in time of peace to pass laws for the ordinary administration of justice in the states. Senator Hendricks, of Indiana, had doubts on that point. In a debate on the 19th of January, 1866, he said: My judgment is that under the second section of the [thirteenth] constitutional amendment we may pass such a law as will secure the freedom declared in the first section, but that we cannot go beyond that limitation.[85]
To this Trumbull replied: If the construction put by the Senator from Indiana upon the amendment be the true one, and we have merely taken from the master the power to control the slave and left him at the mercy of the state to be deprived of his civil rights, the trumpet of freedom that we have been blowing throughout the land has given an uncertain sound, and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the Constitutional amendment itself. With the destruction of slavery necessarily follows the destruction of the incidents of slavery. When slavery was abolished slave codes in its support were abolished also. Those laws that prevented the colored man going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also. The policy of the States where slavery has existed has been to legislate in its interest; and out of deference to slavery, which was tolerated by the Constitution of the United States, even some of the non-slaveholding states passed laws abridging the rights of the colored man which were restraints upon liberty. When slavery goes, all this system of legislation, devised in the interest of slavery and for the purpose of degrading the colored race, of keeping the negro in ignorance, of blotting out from his very soul the light of reason, if that were possible, that he might not think, but know only, like the ox, to labor, goes with it. Now, when slavery no longer exists, the policy of the Government is to legislate in the interest of freedom. Now, our laws are to be enacted with a view to educate, improve, enlighten, and Christianize the negro; to make him an independent man; to teach him to think and to reason; to improve that principle which the Great Author of all has implanted in every human breast, which is susceptible of the highest cultivation, and destined to go on enlarging and expanding through the endless ages of eternity.
If in order to prevent slavery Congress deem it necessary to declare null and void all laws which will not permit the colored man to contract, which will not permit him to testify, which will not permit him to buy and sell, and to go where he pleases, it has the power to do so, and not only the power, but it becomes its duty to do so. That is what is provided to be done by this bill. Its provisions are temporary; but there is another bill on your table, somewhat akin to this, which is intended to be permanent, to extend to all parts of the country, and to protect persons of all races in equal civil rights.
I hope that the people of the rebellious states themselves will conform to the existing condition of things. I do not expect them to change all their opinions and prejudices. I do not expect them to rejoice that they have been discomfited. But they acknowledge that the war is over; they agree that they can no longer contend in arms against the Government; they say they are willing to submit to its authority; they say in their state conventions that slavery shall no more exist among them. With the abolition of slavery should go all the badges of servitude which have been enacted for its maintenance and support. Let them all be abolished. Let the people of the rebellious states now be as zealous and as active in the passage of laws and the inauguration of measures to elevate, develop, and improve the negro, as they have hitherto been to enslave and degrade him. Let them do justice and deal fairly with loyal Union men in their midst, and henceforth be themselves loyal, and this Congress will not have adjourned till the states whose inhabitants have been engaged in the rebellion will be restored to their former position in the Union, and we shall all be moving on in harmony together.[86]
In short, Trumbull held that it was for Congress to decide what rights might be established and enforced by federal law, in addition to that of emancipation. That this was to be a troublesome question was shown a little later by a colloquy between Trumbull and Henderson. The latter was of the opinion that the only sure way to protect the freedmen was to give them the right to vote. Trumbull thought that, for the present purpose of providing them with food, clothing, and shelter, Dr. Townsend's Sarsaparilla or any other patent medicine, would be as effectual as the right of suffrage.[87] Sumner, a little later, thought that the right to serve on juries and to hold office was among the essential securities of freedom, and Thaddeus Stevens thought that land-ownership also was necessary. What could be done under the second clause of the Thirteenth Amendment was the question, either expressed or implied, underlying the whole controversy on Reconstruction during the next ten years. It was commonly believed that the President would approve the Freedmen's Bureau Bill; hence, when a veto message came, on the 19th of February, it was received with consternation by the Republicans in Congress. He held that the bill was both unconstitutional and inexpedient. It had been passed in the Senate by yeas 37, nays 10, every Republican voting for it and every Democrat against it. There were three absentees when the vote was taken: Cowan and Willey, Republicans, and Nesmith, Democrat. There was ample margin here for passing the bill over the veto, if the Republicans could hold together, but when the second vote was taken, February 20, the yeas were 30, and the nays 18, not two thirds. So the bill failed. Eight Republicans, Cowan, Dixon, Doolittle, Morgan, Norton, Stewart, Van Winkle, and Willey, had sided with the President. There were two absentees: Foot (Rep.), of Vermont, and Wright (Dem.), of New Jersey, both sick. The question of negro suffrage had not yet become acute in public discussions. The state of public opinion in the North was fairly set forth by Dr. C. H. Ray in a private letter to Trumbull dated Chicago, February 7, thus: If he [Johnson] will agree to your bill giving the freedmen the civil rights that the whites enjoy, and if he halts at that, and war is made on him because he will not go to the extent of negro suffrage, he will beat all who assail him. The party may be split, the Government may go out of Republican hands; but Andy Johnson will be cock-of-the-walk. The people, so far as I understand, are of the opinion that the war for the Union is over.... And as for the negro, they think that when he has the rights which your bill will give him, he must be contented to look upon the elective franchise as a something to be earned by giving evidence of his fitness therefor.
The excitement caused by the veto of the Freedmen's Bureau Bill was still further intensified by a struggle on a side issue, in which Trumbull took the leading part, and which involved the seat of the Democratic Senator Stockton, of New Jersey. He had been chosen by the Legislature of his state in joint meeting on March 15, 1865. The Democrats had a majority of five in the legislature, but had been unable, at first, to agree upon a candidate. Accordingly, the joint meeting, by a vote of 41 to 40, adopted a rule that any person receiving a plurality of the votes cast for Senator should be declared elected. In pursuance of this rule, a vote was taken by roll-call and John P. Stockton received 40 votes, John C. Ten Eyck received 37 votes, and there were 4 scattering, the total number being 81. Stockton was accordingly declared elected without objection, and the joint meeting adjourned sine die. When Congress assembled in December, Stockton's certificate of election, in due form, was presented and he was sworn in. A protest, however, had been signed by all the Republican members of the New Jersey legislature and this was presented by Senator Cowan by request. It affirmed that Stockton had not received the votes of a majority of the members, as required by a law of the state. The protest and credentials were referred to the Committee on the Judiciary, which consisted of five Republicans (Trumbull, Harris, Clark, Poland, and Stewart) and one Democrat (Hendricks). Trumbull, in behalf of the committee, reported that Stockton was duly elected and entitled to the seat. All the members concurred except Clark, of New Hampshire. Regarding the law of the state, which required a majority to elect, the report said that the state constitution denominated and recognized the two houses, either in joint session, or separately, as "The Legislature"; that the legislature, in either capacity, had the right to make its own rules; and that since a majority had voted for the plurality rule the subsequent action taken in pursuance of it was the act of the majority. There was room for an honest difference of opinion, since the enactment of a law required action by the two houses separately and a submission of the same to the governor. On this point, however, Trumbull quoted from "Story on the Constitution" to the effect that, since the governor had nothing to do with the choice of Senators, he was eliminated from consideration in any and all steps leading thereto. It happened at this time that one Republican Senator, Foot, of Vermont, and one Democrat, Wright, of New Jersey, were absent by reason of serious illness. Wright had gone to his home in Newark for treatment, but, before going, had paired with Morrill, of Maine, on the question of his colleague's contested election. When the debate was drawing to a close, severe pressure was put upon Morrill by his radical friends in the Senate to declare his pair off, and to vote against Stockton. When the vote was taken, on concurring in the report of the Judiciary Committee, the yeas were 21 and the nays 20. Stockton himself had not voted. Twelve of the affirmative votes were Republicans. Before the result was announced, Senator Morrill, who had withheld his vote, asked the Secretary to call his name, and then voted in the negative, making a tie. Then Senator Stockton said that Morrill had been paired with his colleague on this question, and that Wright had told him before he went away that he would not go home at all without first obtaining a pair on this question. Under such circumstances he (Stockton) felt at liberty to vote in his own behalf. So he directed the Secretary to call his name and he voted in the affirmative. Morrill admitted that the pair had been made, but said that when it was made he had not contemplated that it would run so long (seven weeks), and that he therefore felt at liberty to vote. He added, with apparent satisfaction, that his vote did not change the result. This was true, but Stockton's vote did change it to his own disadvantage. The result was announced; yeas 22, nays 21. If Stockton had not voted, the result would have been a tie, and he would have held his seat. His opponents had exhausted their resources and there was no parliamentary way of trying the case over again. By casting a vote in his own case he gave them a weapon with which to renew the fight. When the Senate reassembled, Sumner moved that the journal be corrected by striking out Stockton's name from the vote last taken, on the ground that he had no right to vote in his own case. The subject was thus brought up again, and the result was a reconsideration of the vote of the previous day. Trumbull concurred in the view that the question before the Senate was judicial in its nature and that, therefore, Stockton could not vote when his own seat was in question. On the last day of the debate a telegram was received from Senator Wright requesting a postponement of the vote till the following day, saying that he would then be in his seat or would not ask further delay. His request was supported by Reverdy Johnson in a pathetic appeal to the fraternal feeling and gentlemanly instincts of Senators; but Clark, who led the opposition, objected strenuously to any postponement, although two postponements had been previously granted on account of his own illness. On the motion to postpone till the following day the vote was, yeas 21, nays 22. Senator Dixon, a Republican supporter of Stockton, had fallen sick and was absent. Senator Stewart, another Republican supporter, was absent when the vote was taken, although he had been in the Senate Chamber earlier in the day; he had dodged. All the members of the Judiciary Committee, who had signed the original report in favor of Stockton, voted for him to the last, except Stewart. If he and Dixon had been present, the final vote would have been postponed, and in all probability Stockton would have retained his seat, although Morgan, of New York, who had voted for postponement, changed on the very last vote, which was against Stockton, 20 to 23. An impartial reader of the whole debate, in the calm atmosphere of the present day, will be apt to conclude that partisan zeal rather than judicial fairness was the deciding factor in Stockton's case, and that the heat developed in the contest was due to a desire on the part of the majority to gain a two-thirds vote in order to overcome the President's vetoes.
Consideration of the Civil Rights Bill began on the 29th of January, on an amendment proposed by Trumbull which provided that all persons of African descent born in the United States should be citizens thereof, and there should be no discrimination in civil rights or immunities among the inhabitants of any state or territory on account of race, color, or previous condition of slavery. The question was not merely whether this provision was just, but whether Congress had power under the Constitution to pass laws for the ordinary administration of justice in the states. On this point Trumbull said: Under the constitutional amendment which we have now adopted, and which declares that slavery shall no longer exist, and which authorizes Congress by appropriate legislation to carry this provision into effect, I hold that we have a right to pass any law which, in our judgment, is deemed appropriate, and which will accomplish the end in view, secure freedom to all people in the United States. The various state laws to which I have referred,—and there are many others,—although they do not make a man an absolute slave, yet deprive him of the rights of a freeman; and it is perhaps difficult to draw the precise line, to say where freedom ceases and slavery begins, but a law that does not allow a colored person to go from one county to another is certainly a law in derogation of the rights of a freeman. A law that does not allow a colored person to hold property, does not allow him to teach, does not allow him to preach, is certainly a law in violation of the rights of a freeman, and being so may properly be declared void. Without going elaborately into this question, as my design was to state rather than to argue the grounds upon which I place this bill, I will only add on this branch of the subject that the clause of the Constitution, under which we are called to act, in my judgment vests Congress with the discretion of selecting that "appropriate legislation" which it is believed will best accomplish the end and prevent slavery. Then, sir, the only question is, will this bill be effective to accomplish the object, for the first section will amount to nothing more than the declaration in the Constitution itself unless we have the machinery to carry it into effect. A law is good for nothing without a penalty, without a sanction to it, and that is to be found in the other sections of the bill. The second section provides: "That any person, who under color of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant of any state or territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding $1000, or imprisonment not exceeding one year, or both, in the discretion of the court." This is the valuable section of the bill so far as protecting the rights of freedmen is concerned. That they are entitled to be free we know. Being entitled to be free under the Constitution, that we have a right to enact such legislation as will make them free, we believe; and that can only be done by punishing those who undertake to deny them their freedom. When it comes to be understood in all parts of the United States that any person who shall deprive another of any right, or subject him to any punishment in consequence of his color or race, will expose himself to fine and imprisonment, I think all such acts will soon cease.[88]
Senator Saulsbury, of Delaware, contended that the Thirteenth Amendment of the Constitution had given no power to Congress to confer upon free negroes rights and privileges which had not been conceded to them by the states where they resided. He said that in Maryland about one half of the colored population were free before the Thirteenth Amendment was adopted, that in Delaware the free negroes largely outnumbered the slaves, and that in Kentucky the free negroes were a large part of the population. All that the Thirteenth Amendment did was to put the slave population on the same footing on which the free negroes already stood. Congress had no power to legislate on the status of free negroes in the several states before the Civil War. But the powers of Congress in this respect had not been enlarged by anything in the Thirteenth Amendment. That amendment had merely said that the condition of slavery—the condition in which one man belongs to another, which gives that other a right to appropriate the profits of his labor to his own use and to control his person—should no longer exist. Those who voted for the amendment might have contemplated a larger exercise of power by Congress than mere emancipation, but they did not avow it on the floor of the Senate when the measure was pending. He continued: The honorable Senator from Illinois has avowed that he does not propose by this bill to confer any political power. I have no doubt the Senator is perfectly honest in that declaration, and that he personally does not mean to give any political power, for instance, the right of voting, not only to the freedmen, but to the whole race of negroes; but the intention of the Senator in framing this bill will not govern its construction, and I have not the least doubt that, should it be enacted and become a law, it will receive very generally, if not universally, the construction that it does confer a right of voting in the states; and why do I say so? Says the Senator, "It confers no political power; I do not mean that." The question is not what the Senator means, but what is the legitimate meaning and import of the terms employed in the bill. Its words are, "That there shall be no discrimination in civil rights or immunities." What are civil rights? What are the rights which you, I, or any citizen of this country enjoy? What is the basis, the foundation of them all? They are divisible into two classes; one, those rights which we derive from nature, and the other those rights which we derive from government. I will admit that you may divide and subdivide the rights which you derive from government into different classifications; you may call some, for the sake of convenience and more definiteness of meaning, political; you may call others civil.
What is property? It has been judicially decided that the elective franchise is property. Leaving out the question of voting, however, as a question of property, is it not true that, under our republican form and system of government, the ballot is one of the means by which property is secured? Your bill gives to these persons every security for the protection of person and property which a white man has. What is one means and a very important means of securing the rights of person and property? It is a voice in the Government which makes the laws regulating and governing the right of property. Under our system of government—mark you, I do not say that it is so under all governments—one of the strongest and most efficient means for the security of person and property is a participation in the selection of those who make the laws. It was therefore that I thought that the honorable Senator when he framed this bill meant to give to these persons the right of voting; and I should still think so but for his personal disclaimer of any such object.
Senator Van Winkle (Unionist), of West Virginia, contended that negroes were not citizens of the United States and could not be made such by act of Congress, or by anything short of constitutional amendment. He was opposed to the introduction of inferior races into the ranks of citizenship, but if the Constitution should be changed in the mode provided for its amendment so as to introduce negroes, Indians, Chinese, and other alien races to citizenship, he would endeavor to do his whole duty toward them by recognizing them as citizens in every respect. Senator Cowan held that the second clause of the Thirteenth Amendment of the Constitution was limited to the breaking of the bond by which the negro slave was held by his master. It was not intended to revolutionize all the laws of the various states. The bill under consideration would not only repeal statutes of Pennsylvania, but would subject the judges of her courts to criminal prosecution, for enforcing her own laws. He (Cowan) was willing to vote for an amendment of the Constitution giving Congress the power to secure to all men of every race, color, and condition their natural rights to life, liberty, and property, but the bill under consideration was an attempt to do, without any power, that which it was very questionable whether we ought to do, even if we had the power. Cowan concluded by arguing that Congress ought not to enact laws affecting the Southern States so radically, when they were not represented in Congress. Senator Howard, of Michigan, supported the bill in a speech of great force from the humanitarian point of view, but did not dwell upon the constitutional question, except to affirm that he, as a member of the Judiciary Committee which had reported the Thirteenth Amendment, had intended, by the second clause thereof, to empower Congress to enact such measures as the pending Civil Rights Bill. Garrett Davis, of Kentucky, contended that negroes could not be made citizens of the United States under the power granted to Congress to pass naturalization laws, since naturalization applied only to foreigners. Negroes born in this country were not foreigners. Trumbull replied that free negroes were citizens under the fourth article of the Confederation, prior to the adoption of the Constitution and that an attempt to exclude them from citizenship on the 25th of June, 1778, received only two votes in the Congress of the Confederation. He quoted a decision of Judge Gaston, of North Carolina, that free negroes born in that state were citizens of the state and that slaves manumitted there became citizens by the fact of manumission. Reverdy Johnson held that it was as competent for Congress to strike out the word "white" from our naturalization law as it had been for a former Congress to insert that word. In that case a negro migrating from Africa to the United States might be made a citizen exactly like an immigrant from Europe. Garrett Davis denied this, saying: 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 Constitution, that nobody 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 God 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 sex, 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 constitution or state law, is hereby abolished. You propose to make it a penal offence for the judges of the states to obey the constitution 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 passed 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 unconstitutionality. 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 coÖperation 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 assured 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 constitutional 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 passed, then the constitutional 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 passage 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 constitutional 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 constitutional. 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 pronounced constitutional 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 constitutional 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 Constitution (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, pronounced unconstitutional was the Anti-Ku-Klux Act of 1871. Trumbull himself spoke and voted against that act believing it to be unconstitutional, as we shall see later. He drew the line somewhere between the two acts. The judges participating in the decision in the Harris case were Chief Justice Waite and Associate 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 amusement, common schools and public institutions of learning or benevolence supported in whole or in part by general taxation, was unconstitutional. The Supreme Court still consisted of the Justices above named.[95] It held that the Thirteenth Amendment of the Constitution 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 Constitution 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 institution 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 institution 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 institution 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 constitutional never came squarely before the Supreme Court on a test case, but, as we have seen, other acts analogous 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 reËlection 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 emancipated blacks was put in peril by this action of the President, and he gave all of his energies to the task of passing 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 gratitude, 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 circumstances 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 association still lingering in your bosom, when memory reverts to your sojourn among us? Is there no period in that long space, 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 prone, 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 mass 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 classes, 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.
[85] Cong. Globe, 1866, p. 319.
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