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Bruce Frohnen, The American Nation: Primary Sources [2008]

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Bruce Frohnen, The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008). http://oll.libertyfund.org/titles/2282

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About this Title:

This volume is a continuation of Frohnen’s earlier collection of primary sources The American Republic. It contains material from the Civil War to the outbreak of World War Two in the Pacific.

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

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The American Nation
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EDITORIAL BOARD

George W. Carey is a professor of government at Georgetown University, where he teaches American political theory. He is the author or editor of several works, including In Defense of the Constitution (Liberty Fund, 1995) and, most recently, A Student’s Guide to American Political Thought (ISI Books, 2006). He was for thirty-five years the editor of the Political Science Reviewer, an annual review of leading works in political science and related disciplines.

H. Lee Cheek Jr. is the chair of the social and behavioral sciences division and a professor of political science and philosophy at Brewton-Parker College in Mt. Vernon, Georgia. He has written or edited a number of works, including Political Philosophy and Cultural Renewal (Transaction, 2001, with Kathy B. Cheek); Calhoun and Popular Rule (Missouri, 2001); and a critical edition of W. H. Mallock’s The Limits of Pure Democracy (Transaction, 2007). He also has published numerous articles in such journals as the Journal of Politics, Methodist History, International Social Science Review, and Hebraic Political Studies.

Danton Kostandarithes is the chairman of the social studies department at The Bolles School, a private K-12 college preparatory institution in Jacksonville, Florida. He holds bachelor’s degrees in history and classical culture from the University of Georgia and an M.A. and a Ph.D. in American history from Tulane University. Dr. Kostandarithes teaches advanced placement U.S. history at Bolles and U.S. history at the University of North Florida on an adjunct basis.

Robert Anthony Waters Jr. is a visiting assistant professor of history at Ohio Northern University, on leave from Southern University at New Orleans, where he is an associate professor of history. His journal articles have appeared in Diplomatic History and Revue Belge de Philologie et d’Histoire, among others.

Edition: current; Page: [iv] Edition: current; Page: [v]
the American Nation PRIMARY SOURCES
Edited by Bruce P. Frohnen
Liberty Fund
indianapolis
Edition: current; Page: [vi]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Introduction, editorial additions, and index © 2008 by Liberty Fund, Inc.

“Address to the First Annual Meeting of the Women’s State Temperance Society,” by Elizabeth Cady Stanton. Reprinted from History of Woman Suffrage, vol. 1, 493-97. New York: Arno & The New York Times, 1969. Used by permission of Ayer Company Publishers.

Cover art: From Réunion des Musées Nationaux / Art Resource, N.Y.

All rights reserved

Printed in the United States of America

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Library of Congress Cataloging-in-Publication Data

The American nation: primary sources / edited by Bruce P. Frohnen.

p. cm.

Includes bibliographical references and index.

isbn 978-0-86597-729-7 (hardcover: alk. paper)—

isbn 978-0-86597-730-3 (pbk.: alk. paper)

1. United States—History—Civil War, 1861-1865—Sources. 2. Reconstruction (U.S. history, 1865-1877)—Sources. 3. United States—History—1865-1921—Sources. 4. United States—History—1919-1933—Sources. 5. United States—History—1933-1945—Sources. I. Frohnen, Bruce.

e173.a747 2009

973.7—dc22 2008029605

Liberty Fund, Inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [vii]

Contents

  • Alphabetical Table of Contents xi
  • Alphabetical List of Authors xiii
  • List of Illustrations xv
  • Introduction xvii
  • Note on the Texts xxi
  • part i: The Civil War
    • The Crittenden Compromise, 1860 4
    • South Carolina Ordinance of Secession, 1860 7
    • South Carolina Declaration of Causes of Secession, 1860 9
    • Mississippi Ordinance of Secession, 1861 12
    • Mississippi Declaration of Causes of Secession, 1861 14
    • Virginia Ordinance to Repeal the Ratification of the Constitution of the United States of America, 1861 15
    • Missouri Act Declaring the Political Ties Heretofore Existing between the State of Missouri and the United States of America Dissolved, 1861 15
    • Ordinance of the Kentucky Convention, 1861 16
    • Constitution of the Confederate States of America, 1861 20
    • Farewell Speech to Congress, Jefferson Davis, 1861 29
    • Inaugural Address, Jefferson Davis, 1861 31
    • First Inaugural Address, Abraham Lincoln, 1861 34
    • Proclamation Calling the Militia and Convening Congress, Abraham Lincoln, 1861 39
    • Proclamation of Blockade against Southern Ports, Abraham Lincoln, 1861 40
    • Message to Congress in Special Session, Abraham Lincoln, 1861 41
    • Proclamation Suspending Writ of Habeas Corpus, Abraham Lincoln, 1863 48
    • Message to Congress on Gradual Abolishment of Slavery, Abraham Lincoln, 1862 51
    • Proclamation Revoking General Hunter’s Emancipation Order, Abraham Lincoln, 1862 52
    • Emancipation Proclamation, Abraham Lincoln, 1862 53
    • Emancipation Proclamation, Abraham Lincoln, 1863 54
    • Gettysburg Address, Abraham Lincoln, 1863 56
    • Message to the Congress of Confederate States, Jefferson Davis, 1864 57
    • Act to Increase the Military Force of the Confederate States, 1865 60
    • Last Order, Robert E. Lee, 1865 61
  • part ii: Reconstruction
    • Proclamation of Amnesty and Reconstruction, Abraham Lincoln, 1863 68
    • Veto Message with Wade-Davis Proclamation and Bill, Abraham Lincoln, 1864 70
    • Wade-Davis Manifesto, 1864 73
    • Special Field Order no. 15, William Tecumseh Sherman, 1865 79
    • Second Inaugural Address, Abraham Lincoln, 1865 81
    • Last Public Address, Abraham Lincoln, 1865 82
    • Constitution of Indiana, Article XIII, 1851 85
    • Black Code of Mississippi, 1865 85
    • U.S. Constitution, Thirteenth Amendment, 1865 91
    • Freedmen’s Bureau Bill, 1865 91
    • Second Freedmen’s Bureau Bill, 1865 92
    • Veto of the Second Freedmen’s Bureau Bill, Andrew Johnson, 1866 94
    • Civil Rights Act of 1866 99
    • First Reconstruction Act of 1867 102
    • Veto of the First Reconstruction Act, Andrew Johnson, 1867 103
    • First and Second Supplements to the First Reconstruction Act of 1867 111
    • Articles of Impeachment of Andrew Johnson, 1868 115
    • Debate on Proposed Fourteenth Amendment, 1866 122
    • U.S. Constitution, Fourteenth Amendment, 1868 135
    • U.S. Constitution, Fifteenth Amendment, 1870 136
    • Enforcement Act of 1870 137
    • Enforcement Act of 1871 142
    • Enforcement Act of 1875 144
    • Constitution of the State of Mississippi, 1868 146
    • Slaughter-House Cases, 1873 150
    • Inaugural Address, Rutherford B. Hayes, 1877 171
    • Civil Rights Cases, 1883 175
    • Constitution of the State of Mississippi, 1890 189
    Edition: current; Page: [viii]
  • part iii: Consolidating Markets
    • The Homestead Act, 1862 198
    • The Pacific Railway Act, 1862 200
    • The Morrill Act, 1862 207
    • The Gospel of Wealth, Andrew Carnegie, 1889 209
    • Cross of Gold Speech, William Jennings Bryan, 1896 215
    • First Inaugural Address, William McKinley, 1897 219
    • First Annual Message, William McKinley, 1897 223
    • Lochner v. New York, 1905 226
  • part iv: Consolidating Culture?
    • Twelfth Annual Report of the Massachusetts State School Board, Horace Mann, 1848 238
    • Address on Colonization, Abraham Lincoln, 1862 253
    • Atlanta Exposition Speech, Booker T. Washington, 1895 256
    • Plessy v. Ferguson, 1896 259
    • The Talented Tenth, W. E. B. DuBois, 1903 270
    • Navajo Treaty, 1868 279
    • Dawes (Indian Lands) Act, 1887 284

      Blaine Amendments

    • Proposed Constitutional Amendment Regarding Religious Establishment, 1876 287
    • Massachusetts Constitutional Provision, 1855 287

      The Mormon Polygamy Cases

    • Reynolds v. United States, 1879 288
    • The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1890 292

      Immigration Policy

    • Immigration Act of 1882 298
    • Immigration Act of 1921 301
    • Immigration Act of 1924 302
    • The Principles of Scientific Management, Frederick Winslow Taylor, 1911 306
    • Buck v. Bell, 1927 314
    • Introduction to I’ll Take My Stand, Twelve Southerners, 1930 316
  • part v: Reform Movements
    • Populist Party Platform, 1892 324
    • Coin’s Financial School, William H. Harvey, 1894 327
    • What Pragmatism Means, William James, 1907 331
    • The Socialist Party and the Working Class, Eugene V. Debs, 1904 339
    • Preamble to the Constitution and By-Laws of the Industrial Workers of the World, 1908 347
    • The Subjective Necessity for Social Settlements, Jane Addams, 1892 348
    • Why the Ward Boss Rules, Jane Addams, 1898 356
    • Declaration of Principles of the Progressive Party, Theodore Roosevelt, 1912 360

      The Income Tax

    • Speech on Constitutionality of an Income Tax, William Howard Taft, 1909 368
    • U.S. Constitution, Sixteenth Amendment, 1913 369

      Direct Election of U.S. Senators

    • Resolution Opposing Direct Election of Senators, 1893 370
    • U.S. Constitution, Seventeenth Amendment, 1913 371
    • Address to Woman’s State Temperance Society, Elizabeth Cady Stanton, 1853 372
    • Prohibition Debate, 1917 375
    • U.S. Constitution, Eighteenth Amendment, 1919 382
    • U.S. Constitution, Twenty-first Amendment, 1933 382

      Women’s Suffrage

    • The Fundamental Principle of a Republic, Anna Howard Shaw, 1915 383
    • Debate on Women’s Suffrage, 1919 391
    • U.S. Constitution, Nineteenth Amendment, 1920 396
  • part vi: Consolidating Government
    • The Pendleton Act, 1883 400
    • The Interstate Commerce Act, 1887 404
    • Veto of Texas Seed Bill, Grover Cleveland, 1887 410
    • Sherman Antitrust Act, 1890 412
    • First Message to Congress, Theodore Roosevelt, 1901 414
    • Federal Trade Commission Act, 1914 418
    • The Place of the Independent Commission, Joseph B. Eastman, 1928 423
    • Radio Address on Unemployment Relief, Herbert Hoover, 1931 428
    • Commonwealth Club Address, Franklin Delano Roosevelt, 1932 431
    • First Inaugural Address, Franklin Delano Roosevelt, 1933 438
    • Federal Emergency Relief Act, 1933 441 Edition: current; Page: [ix]
    • National Industrial Recovery Act, 1933 444
    • Redistribution of Wealth, Huey Long, 1935 452
    • A. L. A. Schechter Poultry Corp. v. United States, 1935 457
    • Fireside Chat on the Reorganization of the Judiciary, Franklin Delano Roosevelt, 1937 466
    • National Labor Relations Board v. Jones & Laughlin Steel, 1937 472
  • part vii: America in the World
    • Monroe Doctrine, James Monroe, 1823 482
    • Roosevelt Corollary to Monroe Doctrine, Theodore Roosevelt, 1904 486
    • The Fallacy of Territorial Extension, William Graham Sumner, 1896 492
    • The Star of Empire, Alfred J. Beveridge, 1900 496
    • Open Door Note, John Hay, 1899 505

      Woodrow Wilson on Neutrality and War

    • Statement on American Neutrality, 1914 507
    • Address to the Senate Calling for Declaration of War, 1917 508

      Dissent in Wartime

    • Espionage Act, 1917 513
    • Free Speech in Wartime, Robert La Follette, 1917 515
    • Sedition Act, 1918 527
    • Schenck v. United States, 1919 528
    • Fourteen Points Speech, Woodrow Wilson, 1918 531
    • Covenant of the League of Nations, 1919 535
    • Speech against the League of Nations, Henry Cabot Lodge, 1919 541
    • Kellogg-Briand Pact, 1929 555
    • Note on Chinchow, Henry L. Stimson, 1932 558
    • Neutrality and War, Charles A. Lindbergh, 1939 559
    • The Atlantic Charter, 1941 562
    • The Four Freedoms, Franklin Delano Roosevelt, 1941 564
    • Pearl Harbor Speech, Franklin Delano Roosevelt, 1941 568
  • Sources 571
  • Index 573
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Alphabetical Table of Contents

  • Act to Increase the Military Force of the Confederate States, 1865 / 60
  • Address on Colonization, Abraham Lincoln, 1862 / 253
  • Address to the Senate Calling for Declaration of War, Woodrow Wilson, 1917 / 508
  • Address to Woman’s State Temperance Society, Elizabeth Cady Stanton, 1853 / 372
  • A. L. A. Schechter Poultry Corp. v. United States, 1935 / 457
  • Articles of Impeachment of Andrew Johnson, 1868 / 115
  • Atlanta Exposition Speech, Booker T. Washington, 1895 / 256
  • The Atlantic Charter, 1941 / 562
  • Black Code of Mississippi, 1865 / 85
  • Buck v. Bell, 1927 / 314
  • Civil Rights Act of 1866 / 99
  • Civil Rights Cases, 1883 / 175
  • Coin’s Financial School, William H. Harvey, 1894 / 327
  • Commonwealth Club Address, Franklin Delano Roosevelt, 1932 / 431
  • Constitution of Indiana, Article XIII, 1851 / 85
  • Constitution of the Confederate States of America, 1861 / 20
  • Constitution of the State of Mississippi, 1868 / 146
  • Constitution of the State of Mississippi, 1890 / 189
  • Declaration of Principles of the Progressive Party, Theodore Roosevelt, 1912 / 360
  • Covenant of the League of Nations, 1919 / 535
  • The Crittenden Compromise, 1860 / 4
  • Cross of Gold Speech, William Jennings Bryan, 1896 / 215
  • Dawes (Indian Lands) Act, 1887 / 284
  • Debate on Proposed Fourteenth Amendment, 1866 / 122
  • Debate on Women’s Suffrage, 1919 / 391
  • Emancipation Proclamation, Abraham Lincoln, 1862 / 53
  • Emancipation Proclamation, Abraham Lincoln, 1863 / 54
  • Enforcement Act of 1870 / 137
  • Enforcement Act of 1871 / 142
  • Enforcement Act of 1875 / 144
  • Espionage Act, 1917 / 515
  • The Fallacy of Territorial Extension, William Graham Sumner, 1896 / 492
  • Farewell Speech to Congress, Jefferson Davis, 1861 / 29
  • Federal Emergency Relief Act, 1933 / 441
  • Federal Trade Commission Act, 1914 / 418
  • Fireside Chat on the Reorganization of the Judiciary, Franklin Delano Roosevelt, 1937 / 466
  • First and Second Supplements to the First Reconstruction Act of 1867 / 111
  • First Annual Message, William McKinley, 1897 / 223
  • First Inaugural Address, Abraham Lincoln, 1861 / 34
  • First Inaugural Address, Franklin Delano Roosevelt, 1933 / 438
  • First Inaugural Address, William McKinley, 1897 / 219
  • First Message to Congress, Theodore Roosevelt, 1901 / 414
  • First Reconstruction Act of 1867 / 102
  • The Four Freedoms, Franklin Delano Roosevelt, 1941 / 564
  • Fourteen Points Speech, Woodrow Wilson, 1918 / 531
  • Freedmen’s Bureau Bill, 1865 / 91
  • Free Speech in Wartime, Robert LaFollette, 1917 / 515
  • The Fundamental Principle of a Republic, Anna Howard Shaw, 1915 / 383
  • Gettysburg Address, Abraham Lincoln, 1863 / 56
  • The Gospel of Wealth, Andrew Carnegie, 1889 / 209
  • The Homestead Act, 1862 / 198
  • I’ll Take My Stand (introduction), Twelve Southerners, 1930 / 316
  • Immigration Act of 1882 / 298
  • Immigration Act of 1921 / 301
  • Immigration Act of 1924 / 302
  • Inaugural Address, Jefferson Davis, 1861 / 31
  • Inaugural Address, Rutherford B. Hayes, 1877 / 171
  • The Interstate Commerce Act, 1887 / 404
  • Kellogg-Briand Pact, 1929 / 555
  • Last Order, Robert E. Lee, 1865 / 61
  • Last Public Address, Abraham Lincoln, 1865 / 82
  • The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1890 / 292
  • Lochner v. New York, 1905 / 226
  • Massachusetts Constitutional Provision, 1855 / 287
  • Message to Congress in Special Session, Abraham Lincoln, 1861 / 41
  • Message to Congress on Gradual Abolishment of Slavery, Abraham Lincoln, 1862 / 51 Edition: current; Page: [xii]
  • Message to the Congress of Confederate States, Jefferson Davis, 1864 / 57
  • Mississippi Declaration of Causes of Secession, 1861 / 14
  • Mississippi Ordinance of Secession, 1861 / 12
  • Missouri Act Declaring the Political Ties Heretofore Existing between the State of Missouri and the United States of America Dissolved, 1861 / 15
  • Monroe Doctrine, James Monroe, 1823 / 482
  • The Morrill Act, 1862 / 207
  • National Industrial Recovery Act, 1933 / 444
  • National Labor Relations Board v. Jones & Laughlin Steel, 1937 / 472
  • Navajo Treaty, 1868 / 279
  • Neutrality and War, Charles A. Lindbergh, 1939 / 559
  • Note on Chinchow, Henry L. Stimson, 1932 / 558
  • Open Door Note, John Hay, 1899 / 505
  • Ordinance of the Kentucky Convention, 1861 / 16
  • The Pacific Railway Act, 1862 / 200
  • Pearl Harbor Speech, Franklin Delano Roosevelt, 1941 / 568
  • The Pendleton Act, 1883 / 400
  • The Place of the Independent Commission, Joseph B. Eastman, 1928 / 423
  • Plessy v. Ferguson, 1896 / 259
  • Populist Party Platform, 1892 / 324
  • Preamble to the Constitution and By-Laws of the Industrial Workers of the World, 1908 / 347
  • The Principles of Scientific Management, Frederick Winslow Taylor, 1911 / 306
  • Proclamation Calling the Militia and Convening Congress, Abraham Lincoln, 1861 / 39
  • Proclamation of Amnesty and Reconstruction, Abraham Lincoln, 1863 / 68
  • Proclamation of Blockade against Southern Ports, Abraham Lincoln, 1861 / 40
  • Proclamation Revoking General Hunter’s Emancipation Order, Abraham Lincoln, 1862 / 52
  • Proclamation Suspending Writ of Habeas Corpus, Abraham Lincoln, 1863 / 48
  • Prohibition Debate, 1917 / 375
  • Proposed Constitutional Amendment Regarding Religious Establishment, 1876 / 287
  • Radio Address on Unemployment Relief, Herbert Hoover, 1931 / 428
  • Redistribution of Wealth, Huey Long, 1935 / 452
  • Resolution Opposing Direct Election of Senators, 1893 / 370
  • Reynolds v. United States, 1879 / 288
  • Roosevelt Corollary to Monroe Doctrine, Theodore Roosevelt, 1904 / 486
  • Schenck v. United States, 1919 / 528
  • Second Freedmen’s Bureau Bill, 1865 / 92
  • Second Inaugural Address, Abraham Lincoln, 1865 / 81
  • Sedition Act, 1918 / 527
  • Sherman Antitrust Act, 1890 / 412
  • Slaughter-House Cases, 1873 / 150
  • The Socialist Party and the Working Class, Eugene V. Debs, 1904 / 339
  • South Carolina Declaration of Causes of Secession, 1860 / 9
  • South Carolina Ordinance of Secession, 1860 / 7
  • Special Field Order no. 15, William Tecumseh Sherman, 1865 / 79
  • Speech against the League of Nations, Henry Cabot Lodge, 1919 / 541
  • Speech on Constitutionality of an Income Tax, William Howard Taft, 1909 / 368
  • The Star of Empire, Alfred J. Beveridge, 1900 / 496
  • Statement on American Neutrality, Woodrow Wilson, 1914 / 507
  • The Subjective Necessity for Social Settlements, Jane Addams, 1892 / 348
  • The Talented Tenth, W. E. B. DuBois, 1903 / 270
  • Twelfth Annual Report of the Massachusetts State School Board, Horace Mann, 1848 / 238
  • U.S. Constitution, Eighteenth Amendment, 1919 / 382
  • U.S. Constitution, Fifteenth Amendment, 1870 / 136
  • U.S. Constitution, Fourteenth Amendment, 1868 / 135
  • U.S. Constitution, Nineteenth Amendment, 1920 / 396
  • U.S. Constitution, Seventeenth Amendment, 1913 / 371
  • U.S. Constitution, Sixteenth Amendment, 1913 / 369
  • U.S. Constitution, Thirteenth Amendment, 1865 / 91
  • U.S. Constitution, Twenty-first Amendment, 1933 / 382
  • Veto Message with Wade-Davis Proclamation and Bill, Abraham Lincoln, 1864 / 70
  • Veto of Texas Seed Bill, Grover Cleveland, 1887 / 410
  • Veto of the First Reconstruction Act, Andrew Johnson, 1867 / 103
  • Veto of the Second Freedmen’s Bureau Bill, Andrew Johnson, 1866 / 94
  • Virginia Ordinance to Repeal the Ratification of the Constitution of the United States of America, 1861 / 15
  • Wade-Davis Manifesto, 1864 / 73
  • What Pragmatism Means, William James, 1907 / 331
  • Why the Ward Boss Rules, Jane Addams, 1898 / 356
Edition: current; Page: [xiii]

Alphabetical List of Authors

  • Addams, Jane / 348, 356
  • Beveridge, Alfred J. / 496
  • Bryan, William Jennings / 215
  • Carnegie, Andrew / 209
  • Cleveland, Grover / 410
  • Davis, Jefferson / 29, 31, 57
  • Debs, Eugene V. / 339
  • DuBois, W. E. B. / 270
  • Eastman, Joseph B. / 423
  • Harvey, William H. / 327
  • Hay, John / 505
  • Hayes, Rutherford B. / 171
  • Hoover, Herbert / 428
  • James, William / 331
  • Johnson, Andrew / 94, 103, 115
  • LaFollette, Robert / 515
  • Lee, Robert E. / 61
  • Lincoln, Abraham / 34, 39, 40, 41, 48, 51, 52, 53, 54, 56, 68, 70, 81, 82, 253
  • Lindbergh, Charles A. / 559
  • Lodge, Henry Cabot / 541
  • Long, Huey / 452
  • Mann, Horace / 238
  • McKinley, William / 219, 223
  • Monroe, James / 482
  • Roosevelt, Franklin Delano / 438, 466, 564, 568
  • Roosevelt, Theodore / 360, 414, 486
  • Shaw, Anna Howard / 383
  • Sherman, William Tecumseh / 79
  • Stanton, Elizabeth Cady / 372
  • Stimson, Henry L. / 558
  • Sumner, William Graham / 492
  • Taft, William Howard / 368
  • Taylor, Frederick Winslow / 306
  • Twelve Southerners / 316
  • Washington, Booker T. / 256
  • Wilson, Woodrow / 507, 508, 531
Edition: current; Page: [xiv] Edition: current; Page: [xv]

Illustrations

  • Alabama Secession Convention Flag, 1861 / 2
  • Battle of Franklin, Tenn. / 2
  • The Freedmen’s Bureau / 66
  • Johnson’s Veto of the Freedmen’s Bureau / 66
  • Daniel Freeman, c. 1904 / 196
  • Child Workers at Rhodes Manufacturing Co., Lincolnton, N.C. / 196
  • Booker T. Washington / 236
  • W. E. B. Dubois / 236
  • Anti-Saloon Flier, “Less Drink, More Homes” / 322
  • Anti-Saloon Flier, “Archbishop Ireland Says . . .” / 322
  • Men Waiting Outside Al Capone Soup Kitchen, 1930 / 398
  • Cartoon depicting Franklin D. Roosevelt’s Court-Packing Plan / 398
  • Charles Lindbergh Speaking at a Peace Rally, 1941 / 480
  • President Franklin D. Roosevelt Signing the Lend-Lease Bill / 480
Edition: current; Page: [xvi] Edition: current; Page: [xvii]

Introduction

This volume continues the work begun with The American Republic: Primary Sources. Like that work, this one seeks to make available within the covers of one volume the most crucial documents necessary for understanding the variety of policies and viewpoints driving American public life during an important, substantive part of its history. Picking up with the onset of the Civil War, documents in this volume will take students and other readers through the onset of World War II and America’s entrance into yet another major new phase in its existence.

For decades now, a host of debates have continued concerning the purpose, nature, and impact of the major popular, legal, and ideological movements shaping the United States during the period from approximately the onset of the Civil War through World War II. Was Reconstruction a noble, failed attempt to protect and empower African Americans in the South by reforming Southern institutions, a self-interested attempt to gain power and wealth for one political party and region through cynical appeals to abstract ideals, or a Utopian experiment in radical politics? Were national markets in goods and services the natural outgrowth of individual initiative and the American spirit of enterprise, or the creation of powerful interests? Is American culture intrinsically racist, ideologically intolerant of racial and cultural connections that might dilute a common emphasis on individual choice, or racially and culturally ambivalent? Were American reform movements homegrown or spawned by immigrants who brought with them European political habits and notions of class? Did the Great Depression necessitate establishment of the national welfare and administrative state, or was this a matter of ideological choice? Was America’s entry onto the world stage an inevitable consequence of its growing power, or a conscious choice, spawned by commitment to, and dreams of, universal peace and justice?

Such questions abound in discussions of these critical periods, but too rarely are informed by close reading of the public documents and pronouncements through which American thought has been expressed and policy made. In particular, the recent turn to social history has uncovered a great deal of information regarding the daily lives of Americans during the Civil War and through World War II. Unfortunately, this information often has come at the expense of in-depth study of crucial, relevant documents. The massive evidence marshaled by Raoul Berger in his landmark volume Government by Judiciary concerning the intentions of the framers of the Fourteenth Amendment, for example, has been all but ignored in the legal literature.1 Indeed, the history of the Fourteenth Amendment, which promised all Americans due process of law, equal protection of the laws, and the privileges and immunities of American citizenship, has become part of the ideological debate it was intended to illuminate.

The debate continues over whether public figures and policy makers after the Civil War sought to treat race as a set of intractable differences government should treat as guides to public policy, conventional differences public institutions should eliminate, or cultural differences government and society should respect. Almost unnoticed has been the specifically constitutional debate over which branch of government—Congress, the president, or the courts—should have primary responsibility for defining and enforcing the rights set forth in the Fourteenth Amendment. Thus re-presentation of key speeches and statutes relevant to that amendment’s passage remains imperative.

If students are to understand how and why the Supreme Court has gained increased power in the American system, they must be able to consult, directly, the relevant documents. The same may be said for the late-nineteenth-century growth of national markets, aided by Supreme Court decisions as it was opposed by an organized set of political actors (the Populists in particular) whose political program too often is reduced by commentators to issues of class struggle. Again, there has not been sufficient attention paid to actual party platforms and reforms.

In addition, while the work of the so-called Progressive historians has changed opinions greatly among academics concerning the nature and intent of the American founding, most students gain little exposure to the actual political Edition: current; Page: [xviii] program put forward by the Progressives themselves during the height of their influence.2 Direct documentary knowledge of Progressive legislative and constitutional enactments such as the direct election of senators would increase students’ understanding of the entire history of American public life. Likewise, the relationship between various political ideologies and the debate between so-called isolationists and internationalists—a relationship which changed radically at least once during the era represented in this volume—would be shown to be more complex, and more worthy of serious thought and investigation, by examination of relevant pronouncements and enactments.

A few words are required regarding editorial interpretation. As with the first work, this volume eschews editorial commentary on the contents of the documents presented. It presents only brief, historically oriented headnotes, intended to provide readers with the most basic information needed to understand the documents themselves. Given the breadth of material covered, it was necessary to organize the volume around themes. But those themes were chosen with the intention of providing a framework for the documents that does not necessitate or even push the reader toward any particular ideological conclusions. Whether one sees consolidation as a good or a bad thing, it can be agreed among students of all stripes that the era covered in this volume was one in which the power of the federal government increased and gained greater clarity, in which industrialization and the construction of national markets took place, in which regional movements opposed to consolidation, as well as truly national reform movements, were formed, in which a conflict of visions produced genuine conflict regarding race, ethnicity, and culture in America, and in which the United States came to play a far greater role in international affairs. The goal is simply to show the variety of positions and policies that shaped American public life during the era between the Civil War and World War II.

Organization of the Work

This work is in seven parts. As in the previous volume, each part is composed of selections of public writings intended to illustrate the major philosophical, cultural, and policy positions at issue during crucial eras of American political and cultural development.

The first part, “The Civil War,” provides documentary evidence of the positions of both sides as to the causes of that war, as well as the intentions behind eventual emancipation of African Americans and the impact of the war itself on American public life. The second part, “Reconstruction,” provides materials illustrating the nature and purpose of the programs initiated by the victorious states at the end of the Civil War, as well as reactions to that program in the Southern states that were these programs’ target. The third part, “Consolidating Markets,” includes materials showing the contested nature of the government’s role in American economic expansion and the growth of national markets for goods and services. The fourth part, “Consolidating Culture?” includes materials illustrating the various cultural conflicts—regarding race, religion, ethnicity, ideology, and culture—that characterized the late-nineteenth and early-twentieth centuries. The fifth part, “Reform Movements,” provides materials on the various reform movements that influenced public life and policy during this era, focusing on the constitutional changes they sought and achieved. The sixth part, “Consolidating Government,” traces the development of the federal administrative and welfare state through various legal, constitutional, and intellectual crises and developments. The seventh part, “America in the World,” provides materials tracing developments in America’s public position regarding the role it can and should take in international affairs.

This volume ends with the opening of the Second World War. While it would, perhaps, be helpful to include documents from beyond this era, it was judged prudent to stop there. Reasons for this decision include the need to keep the volume to some kind of manageable length, the existence of many courses in contemporary American history that begin at or immediately following World War II, and the general recognition that America’s participation in that war significantly altered its role in the world and the nature of debates regarding the nature of its people and the proper role of its government.

As with the previous volume, the placement of specific selections within this work is intended to answer two pedagogical needs: that of chronological consistency and that of issue focus, so that readers may see particular topics of importance in sufficient depth to give them serious examination. Given the increased complexity and prevalence of public debates, particularly concerning the role of government, during the era covered in this second volume, it proved more difficult to Edition: current; Page: [xix] maintain chronological consistency than in the first. Consequently, in this work there is somewhat greater overlap of eras among the documents. Moreover, in a very few cases it was necessary to present documents from eras before that which is the focus of this volume. For example, it would be confusing to readers to avoid presentation of the original statement of the Monroe Doctrine in “America in the World,” despite its dating from well before the Civil War, because that doctrine has been central to debates concerning America’s proper attitude toward international affairs and conflicts. In addition, Elizabeth Cady Stanton’s “Address to the Woman’s State Temperance Society” is presented, despite its having been delivered before the Civil War. This is because Stanton and that speech had influence beyond the Civil War era, because they presented arguably the most lucid and powerful statement of prohibition assumptions and ideology, and because Stanton herself embodied an important element in reform movements—the ties between abolitionism, prohibition, and the struggle for women’s rights.

Thanks are owed to the members of this volume’s editorial board, especially to Dr. Danton Kostandarithes, whose assistance went well beyond the call of duty. I also wish to thank the following for their assistance: Amy Ruark, Raymond McAuliffe, and Michael Thiefels. As always, my greatest thanks and my greatest debts belong to my wife, Gloria Antonia Frohnen, for reasons that include but go far beyond the many ways in which she made possible the completion of this work.

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Note on the Texts

As with the previous volume, The American Republic: Primary Sources, the editor has sought to make as few changes as possible in the texts included, so as to convey the flavor as well as the content of the writings. Further, because the materials in this volume are from time periods closer to our own, very few changes were required. Asterisks inserted without clear meaning or intent have been deleted, as have marginalia, extraneous quotation marks, and page numbers from previous editions that had been inserted in various texts. Some of the longer titles have been shortened in accordance with modern usage. Headings in which the original text used anachronistic fonts or, for example, all capital letters, have been modernized and standardized. Only those footnotes deemed necessary for understanding the text have been reproduced.

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PART ONE: The Civil War

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Abraham Lincoln’s election to the American presidency in 1860 shattered a truce among America’s sectional interests that had become increasingly fragile and tenuous. Lincoln won a majority of electoral votes, but none from a Southern state. Moreover, he failed to poll a majority of the popular vote, though he did win the most votes of any candidate in that four-way race. Numerous leaders in the South had made clear that they viewed Lincoln as an enemy because of his oft-stated conviction that slavery should be put on the road toward extinction, as well as his Republican Party’s explicit opposition to reopening the African slave trade or expanding slavery into the territories. Some threatened that Lincoln’s election to the presidency would cause slaveholding states to secede in short order. And so they did. By February 1861, seven states (South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas) had seceded. Four more states (Virginia, Arkansas, Tennessee, and North Carolina) would secede after the Confederate attack on the Union-controlled Fort Sumter in Charleston harbor in April of 1861. The four remaining slaveholding states (Delaware, Kentucky, Maryland, and Missouri) along with West Virginia, which was carved out of Virginia at this time, remained in the Union but were the source of political and military instability. Indeed, in both Missouri and Kentucky secessionist elements formed their own governments loyal to the Confederacy.

There were a number of last-ditch efforts to stave off war. And leaders of the Confederacy insisted that no war was necessary—the North must simply recognize the right of any state to secede if it so desired, and peace would ensue. The issue of secession’s legality had been debated for decades and was settled only on the battlefield.

Disagreements abound as to the ultimate cause and moral status of the Civil War. Was it about slavery or states’ rights? Or perhaps both, and made more virulent on account of the ever-widening gulf between Northern and Southern ways of life? Before coming to any of these conclusions, one would do well to examine the constitutional arguments presented by both sides during secession and the Civil War itself.

This section includes official documents regarding secession, as well as political speeches and military orders related to the conflict and issues underlying it.

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  • The Crittenden Compromise, 1860

After the 1860 elections had been held, but before the new Congress was seated, the old, lame duck Congress met to attempt one last compromise to save the Union. The best-known effort was led by Kentucky senator John J. Crittenden. The Crittenden Compromise was actually a joint resolution seeking a series of amendments to the American Constitution. Crittenden’s resolutions would have expanded on the Missouri Compromise of 1820 and enshrined its provisions in the Constitution, declaring that territory held or acquired by the United States would be free from slavery if north of latitude 36° 30′ and open to chattel slavery if south of that line—a line the Crittenden Compromise would have extended to the Pacific Ocean. In addition, the Crittenden Compromise would have provided for congressional compensation to slave owners unable to recover fugitive slaves owing to abolitionist action, protected slaveholding in the District of Columbia, prevented Congress from prohibiting the interstate transportation of slaves, and provided that none of its provisions could thereafter be amended or repealed. The measures garnered majorities but failed to achieve the necessary two-thirds majority in either house of Congress.

The Crittenden Compromise

A joint resolution (S. No. 50) proposing certain amendments to the Constitution of the United States.

Whereas serious and alarming dissensions have arisen between the northern and southern States, concerning the rights and security of the rights of the slaveholding States, and especially their rights in the common territory of the United States; and whereas it is eminently desirable and proper that these dissensions, which now threaten the very existence of this Union, should be permanently quieted and settled by constitutional provisions, which shall do equal justice to all sections, and thereby restore to the people that peace and good-will which ought to prevail between all the citizens of the United States: Therefore,

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following articles be, and are hereby, proposed and submitted as amendments to the Constitution of the United States, which shall be valid to all intents and purposes, as part of said Constitution, when ratified by conventions of three fourths of the several States:

Article 1. In all the territory of the United States now held, or hereafter acquired, situate north of latitude 36° 30′, slavery or involuntary servitude, except as a punishment for crime, is prohibited while such territory shall remain under territorial government. In all the territory south of said line of latitude, slavery of the African race is hereby recognized as existing, and shall not be interfered with by Congress, but shall be protected as property by all the departments of the territorial government during its continuance. And when any Territory, north or south of said line, within such boundaries as Congress may prescribe, shall contain the population requisite for a member of Congress according to the then Federal ratio of representation of the people of the United States, it shall, if its form of government be republican, be admitted into the Union, on an equal footing with the original States, with or without slavery, as the constitution of such new State may provide.

Art. 2. Congress shall have no power to abolish slavery in Edition: current; Page: [5] places under its exclusive jurisdiction, and situate within the limits of States that permit the holding of slaves.

Art. 3. Congress shall have no power to abolish slavery within the District of Columbia, so long as it exists in the adjoining States of Virginia and Maryland, or either, nor without the consent of the inhabitants, nor without just compensation first made to such owners of slaves as do not consent to such abolishment. Nor shall Congress at any time prohibit officers of the Federal Government, or members of Congress, whose duties require them to be in said District, from bringing with them their slaves, and holding them as such during the time their duties may require them to remain there, and afterwards taking them from the District.

Art. 4. Congress shall have no power to prohibit or hinder the transportation of slaves from one State to another, or to a Territory in which slaves are by law permitted to be held, whether that transportation be by land, navigable rivers, or by the sea.

Art. 5. That in addition to the provisions of the third paragraph of the second section of the fourth article of the Constitution of the United States, Congress shall have power to provide by law, and it shall be its duty so to provide, that the United States shall pay to the owner who shall apply for it, the full value of his fugitive slave in all cases when the marshal or other officer whose duty it was to arrest said fugitive was prevented from so doing by violence or intimidation, or when, after arrest, said fugitive was rescued by force, and the owner thereby prevented and obstructed in the pursuit of his remedy for the recovery of his fugitive slave under the said clause of the Constitution and the laws made in pursuance thereof. And in all such cases, when the United States shall pay for such fugitive, they shall have the right, in their own name, to sue the county in which said violence, intimidation, or rescue was committed, and to recover from it, with interest and damages, the amount paid by them for said fugitive slave. And the said county, after it has paid said amount to the United States, may, for its indemnity, sue and recover from the wrong doers or rescuers by whom the owner was prevented from the recovery of his fugitive slave, in like manner as the owner himself might have sued and recovered.

Art. 6. No future amendment of the Constitution shall affect the five preceding articles; nor the third paragraph of the second section of the first article of the Constitution; nor the third paragraph of the second section of the fourth article of said Constitution; and no amendment shall be made to the Constitution which shall authorize or give to Congress any power to abolish or interfere with slavery in any of the States by whose laws it is, or may be, allowed or permitted.

And whereas, also, besides those causes of dissension embraced in the foregoing amendments proposed to the Constitution of the United States, there are others which come within the jurisdiction of Congress, and may be remedied by its legislative power; and whereas it is the desire of Congress, as far as its power will extend, to remove all just cause for the popular discontent and agitation which now disturb the peace of the country, and threaten the stability of its institutions: Therefore,

1. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the laws now in force for the recovery of fugitive slaves are in strict pursuance of the plain and mandatory provisions of the Constitution, and have been sanctioned as valid and constitutional by the judgment of the Supreme Court of the United States; that the slaveholding States are entitled to the faithful observance and execution of those laws, and that they ought not to be repealed, or so modified or changed as to impair their efficiency; and that laws ought to be made for the punishment of those who attempt by rescue of the slave, or other illegal means, to hinder or defeat the due execution of said laws.

2. That all State laws which conflict with the fugitive slave acts of Congress, or any other constitutional acts of Congress, or which, in their operation, impede, hinder, or delay the free course and due execution of any of said acts, are null and void by the plain provisions of the Constitution of the United States; yet those State laws, void as they are, have given color to practices, and led to consequences, which have obstructed the due administration and execution of acts of Congress, and especially the acts for the delivery of fugitive slaves, and have thereby contributed much to the discord and commotion now prevailing. Congress, therefore, in the present perilous juncture, does not deem it improper, respectfully and earnestly to recommend the repeal of those laws to the several States which have enacted them, or such legislative corrections or explanations of them as may prevent their being used or perverted to such mischievous purposes.

3. That the act of the 18th of September, 1850, commonly called the fugitive slave law, ought to be so amended as to make the fee of the commissioner, mentioned in the eighth section of the act, equal in amount in the cases decided by him, whether his decision be in favor of or against the claimant. Edition: current; Page: [6] And to avoid misconstruction, the last clause of the fifth section of said act, which authorizes the person holding a warrant for the arrest or detention of a fugitive slave, to summon to his aid the posse comitatus, and which declares it to be the duty of all good citizens to assist him in its execution, ought to be so amended as to expressly limit the authority and duty to cases in which there shall be resistance or danger of resistance or rescue.

4. That the laws for the suppression of the African slave trade, and especially those prohibiting the importation of slaves in the United States, ought to be made effectual, and ought to be thoroughly executed; and all further enactments necessary to those ends ought to be promptly made.

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  • South Carolina Ordinance of Secession, 1860
  • South Carolina Declaration of Secession, 1860
  • Mississippi Ordinance of Secession, 1861
  • Mississippi Declaration of Secession, 1861
  • Virginia Ordinance to Repeal the Ratification of the Constitution of the United States of America, 1861
  • Missouri Act Declaring the Political Ties Heretofore Existing between the State of Missouri and the United States of America Dissolved, 1861
  • Ordinance of the Kentucky Convention, 1861

On November 10, 1860, just four days after the presidential election, the South Carolina legislature called for a convention to consider the state’s secession from the Union. Less than two months later, South Carolina officially seceded. Ten more states would follow. A legislative session called by Missouri’s governor and a convention of citizens in Kentucky also passed ordinances of secession, though in these latter cases the Union governments continued to exist as well as secessionist elements seated in the Confederate legislature. Four states, South Carolina, Georgia, Mississippi, and Texas, also issued separate declarations setting forth their reasons for secession. All assumed a right of states to secede and a stance portraying the federal government as an aggressor for violating Southern states’ rights and acting against Southern interests.

South Carolina Ordinance of Secession

AN ORDINANCE

To dissolve the Union between the State of South Carolina and other States united with her under the compact entitled “The Constitution of the United States of America.”

We, the People of the State of South Carolina, in Convention assembled, do declare and ordain, and it is hereby declared and ordained,

That the Ordinance adopted by us in Convention, on the twenty-third day of May, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and also, all Acts and parts of Acts of the General Assembly of this State, ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States, under the name of “The United States of America,” is hereby dissolved.

D. F. JAMISON, Del. from Barnwell, and Pres’t Convention.
Thos. Chiles Perrin,
Edw. Noble,
J. H. Wilson,
Thos. Thomson,
David Lewis Wardlaw,
Jno. Alfred Calhoun,
John Izard Middleton,
Benjamin E. Sessions,
J. N. Whitner,
James L. Orr,
J. P. Reed,
R. F. Simpson,
Benjamin Franklin Mauldin,
Lewis Malone Ayer, Jr.,
W. Peronneau Finley,
J. J. Brabham,
Benj. W. Lawton,
Jno. McKee,
Thomas W. Moore,
Richard Woods,
A. Q. Dunovant,
John A. Inglis,
Henry McIver,
Stephen Jackson,
W. Pinckney Shingler,
Peter P. Bonneau,
John P. Richardson,
John L. Manning,
John J. Ingram,
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Edgar W. Charles,
Julius A. Dargan,
Isaac D. Wilson,
John M. Timmons,
Francis Hugh Wardlaw,
R. G. M. Dunovant,
James Parsons Carroll,
Wm. Gregg,
Andrew J. Hammond,
James Tompkins,
James C. Smyly,
John Hugh Means,
William Strother Lyles,
Henry Campbell Davis,
Jno. Buchanan,
James C. Furman,
P. E. Duncan,
W. K. Easley,
James Harrison,
W. H. Campbell,
T. J. Withers,
James Chesnut, Jr.,
Joseph Brevard Kershaw,
Thos. W. Beaty,
Wm. J. Ellis,
R. L. Crawford,
W. C. Cauthen,
D. P. Robinson,
H. C. Young,
H. W. Garlington,
John D. Williams,
W. D. Watts,
Thos. Wier,
H. I. Caughman,
John C. Geiger,
Paul Quattlebaum,
W. B. Rowell,
Chesley D. Evans,
Wm. W. Harllee,
A. W. Bethea,
E. W. Goodwin,
William D. Johnson,
Alex. McLeod,
John P. Kinard,
Robert Moorman,
Joseph Caldwell,
Simeon Fair,
Thomas Worth Glover,
Lawrence M. Keitt,
Donald Rowe Barton,
Wm. Hunter,
Andrew F. Lewis,
Robt. A. Thompson,
William S. Grisham,
John Maxwell,
Jno. E. Frampton,
W. Ferguson Hutson,
W. F. De Saussure,
William Hopkins,
James H. Adams,
Maxcy Gregg,
John H. Kinsler,
Ephraim M. Clarke,
Alex. H. Brown,
E. S. P. Bellinger,
Merrick E. Carn,
E. R. Henderson,
Peter Stokes,
Daniel Flud,
David C. Appleby,
R. W. Barnwell,
Jos. Dan’l Pope,
C. P. Brown,
John M. Shingler,
Daniel Du Pre,
A. Mazyck,
William Cain,
P. G. Snowden,
Geo. W. Seabrook,
John Jenkins,
R. J. Davant,
E. M. Seabrook,
John J. Wannamaker,
Elias B. Scott,
Joseph E. Jenkins,
Langdon Cheves,
George Rhodes,
A. G. Magrath,
Wm. Porcher Miles,
John Townsend,
Robert N. Gourdin,
H. W. Conner,
Theodore D. Wagner,
R. Barnwell Rhett,
C. G. Memminger,
Gabriel Manigault,
John Julius Pringle Smith,
Isaac W. Hayne,
Jno. H. Honour,
Rich’d De Treville,
Thos. M. Hanckel,
A. W. Burnett,
Thos. Y. Simons,
L. W. Spratt,
Williams Middleton,
F. D. Richardson,
B. H. Rutledge,
Edward McCrady,
Francis J. Porcher,
T. L. Gourdin,
John S. Palmer,
John L. Nowell,
John S. O’Hear,
John G. Landrum,
B. B. Foster,
Benjamin F. Kilgore,
Jas. H. Carlisle,
Simpson Bobo,
Wm. Curtis,
H. D. Green,
Matthew P. Mayes,
Thomas Reese English, Sr.
Albertus Chambers Spain,
J. M. Gadberry,
J. S. Sims,
Wm. H. Gist,
James Jefferies,
Anthony W. Dozier,
John G. Pressley,
R. C. Logan,
Francis S. Parker,
Benj. Faneuil Dunkin,
Samuel Taylor Atkinson,
Alex. M. Forster,
Wm. Blackburn Wilson,
Robert T. Allison,
Samuel Rainey,
A. Baxter Springs,
A. I. Barron,
A. T. Darby.
Attest: BENJ. F. ARTHUR,
Clerk of the Convention.
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South Carolina Declaration of Causes of Secession

DECLARATION OF THE IMMEDIATE CAUSES WHICH INDUCE AND JUSTIFY THE SECESSION OF SOUTH CAROLINA FROM THE FEDERAL UNION.

The People of the State of South Carolina, in Convention assembled, on the 26th day of April, ad 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.

And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America, and to the nations of the world, that she should declare the immediate causes which have led to this act.

In the year 1765, that portion of the British Empire embracing Great Britain, undertook to make laws for the government of that portion composed of the thirteen American Colonies. A struggle for the right of self-government ensued, which resulted, on the 4th July, 1776, in a Declaration, by the Colonies, “that they are, and of right ought to be, FREE AND INDEPENDENT STATES; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.”

They further solemnly declared that whenever any “form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute a new government.” Deeming the Government of Great Britain to have become destructive of these ends, they declared that the Colonies “are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”

In pursuance of this Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments—Legislative, Executive and Judicial. For purposes of defence, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first article, “that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled.”

Under this Confederation the War of the Revolution was carried on, and on the 3d September, 1783, the contest ended, and a definitive Treaty was signed by Great Britain, in which she acknowledged the Independence of the Colonies in the following terms:

Article 1.—His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same and every part thereof.”

Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country as a FREE, SOVEREIGN AND INDEPENDENT STATE.

In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended, for the adoption of the States, the Articles of Union, known as the Constitution of the United States.

The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed, the compact was to take effect among those concurring; and the General Government, as the common agent, was then to be invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were—separate, sovereign Edition: current; Page: [10] States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But, to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On 23d May, 1788, South Carolina, by a Convention of her people, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government, with defined objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

In the present case, that fact is established with certainty. We assert, that fourteen of the States have deliberately refused for years past to fulfil their constitutional obligations, and we refer to their own Statutes for the proof.

The Constitution of the United States, in its 4th Article, provides as follows:

“No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.”

This stipulation was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia, which now composes the States north of the Ohio river.

The same article of the Constitution stipulates also for rendition by the several States of fugitives from justice from the other States.

The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the Institution of Slavery has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from the service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constitutional compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

The ends for which this Constitution was framed are declared by itself to be “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons Edition: current; Page: [11] distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of Slavery; they have permitted the open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the Common Government. Observing the forms of the Constitution, a sectional party has found within that article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the Common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that Slavery is in the course of ultimate extinction.

This sectional combination for the subversion of the Constitution, has been aided in some of the States by elevating to citizenship, persons, who, by the Supreme Law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its peace and safety.

On the 4th March next, this party will take possession of the Government. It has announced, that the South shall be excluded from the common Territory; that the Judicial Tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States.

The Guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.

Sectional interest and animosity will deepen the irritation, and all hope of remedy is rendered vain, by the fact that public opinion at the North has invested a great political error with the sanctions of a more erroneous religious belief.

We, therefore, the people of South Carolina, by our delegates, in Convention assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, have solemnly declared that the Union heretofore existing between this State and the other States of North America, is dissolved, and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.

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Mississippi Ordinance of Secession

AN ORDINANCE
TO DISSOLVE THE UNION BETWEEN THE STATE OF MISSISSIPPI AND OTHER STATES UNITED WITH HER UNDER THE COMPACT ENTITLED “THE CONSTITUTION OF THE UNITED STATES OF AMERICA.”

The people of the State of Mississippi, in Convention assembled, do ordain and declare, and it is hereby ordained and declared as follows, to-wit:

Section 1st. That all the laws and ordinances by which the said State of Mississippi became a member of the Federal Union of the United States of America be, and the same are hereby repealed, and that all obligations on the part of the said State or the people thereof to observe the same, be withdrawn, and that the said State doth hereby resume all the rights, functions and powers which, by any of said laws or ordinances, were conveyed to the government of the said United States, and is absolved from all the obligations, restraints and duties incurred to the said Federal Union, and shall from henceforth be a free, sovereign and independent State.

Section 2nd. That so much of the first section of the seventh article of the Constitution of this State as requires members of the Legislature, and all officers, executive and judicial, to take an oath or affirmation to support the Constitution of the United States, be, and the same is hereby abrogated and annulled.

Section 3rd. That all rights acquired and vested under the Constitution of the United States, or under any act of Congress passed, or treaty made, in pursuance thereof, or under any law of this State, and not incompatible with this Ordinance, shall remain in force and have the same effect as if this Ordinance had not been passed.

Section 4th. That the people of the State of Mississippi hereby consent to form a Federal Union with such of the States as may have seceded or may secede from the Union of the United States of America, upon the basis of the present Constitution of the said United States, except such parts thereof as embrace other portions than such seceding States.

Thus ordained and declared in Convention the 9th day of January, in the Year of Our Lord One Thousand Eight Hundred and Sixty-one.

W. S. BARRY, President.
F. A. Pope, Secretary.

IN TESTIMONY of the passage of which, and the determination of the members of this Convention to uphold and maintain the State in the position she has assumed by said Ordinance, it is signed by the President and Members of this Convention this the fifteenth day of January, ad 1861.

Adams County—A. K. Farrar, J. Winchester.
Attala—E. H. Sanders.
Amite—D. W. Hurst.
Bolivar—M. H. McGehee.
Carroll—J. Z. George, W. Booth.
Claiborne—H. T. Ellett.
Coahoma—J. L. Alcorn.
Copiah—P. S. Catching, B. King.
Clarke—S. H. Terral.
Choctaw—W. F. Brantley, W. H. Witty, J. H. Edwards.
Chickasaw—J. A. Orr, C. B. Baldwin.
Covington—A. C. Powell.
Calhoun—W. A. Sumner, M. D. L. Stephens.
DeSoto—J. R. Chalmers, S. D. Johnston, T. Lewers.
Franklin—D. H. Parker.
Green—T. J. Roberts.
Hinds—W. P. Harris, W. P. Anderson, W. B. Smart.
Holmes—J. M. Dyer, W. L. Keirn.
Harrison—D. C. Glenn.
Hancock—J. B. Deason.
Issaquena—A. C. Gibson.
Itawamba—R. O. Beene, A. B. Bullard, W. H. H. Tison, M. C. Cummings.
Jasper—O. C. Dease.
Jackson—A. E. Lewis.
Jefferson—J. S. Johnston.
Jones—J. H. Powell.
Kemper—O. Y. Neely, T. H. Woods.
Lawrence—W. Gwin.
Lowndes—George R. Clayton.
Leake—W. B. Colbert.
Lauderdale—J. B. Ramsey, F. C. Semmes.
Lafayette—L. Q. C. Lamar, T. D. Isom.
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Marshall—A. M. Clayton, J. W. Clapp, S. Benton, H. W. Walter, W. M. Lea.
Madison—A. P. Hill.
Monroe—S. J. Gholson, F. M. Rogers.
Marion—H. Mayson.
Noxubee—Israel Welsh.
Neshoba—D. M. Backstrom.
Newton—M. M. Keith.
Oktibbeha—T. C. Bookter.
Perry—P. J. Myers.
Pike—J. M. Nelson.
Panola—J. B. Fiser, E. F. McGehee.
Pontotoc—C. D. Fontaine, J. B. Herring, H. R. Miller, R. W. Flournoy.
Rankin—Wm. Denson.
Sunflower—E. P. Jones.
Simpson—W. J. Douglas.
Smith—W. Thompson.
Scott—C. W. Taylor.
Tallahatchie—A. Patterson.
Tishomingo—A. E. Reynolds, W. W. Bonds, T. P. Young, J. A. Blair.
Tunica—A. Miller.
Tippah—O. Davis, J. H. Berry, J. S. Davis, D. B. Wright.
Washington—J. S. Yerger.
Wilkinson—A. C. Holt.
Wayne—W. J. Eckford.
Warren—W. Brooke, T. A. Marshall.
Winston—J. Kennedy, W. S. Bolling.
Yallobusha—F. M. Aldridge, W. R. Barksdale.
Yazoo—H. Vaughan, G. B. Wilkinson.
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Mississippi Declaration of Causes of Secession

A DECLARATION
OF THE IMMEDIATE CAUSES WHICH INDUCE AND JUSTIFY THE SECESSION OF THE STATE OF MISSISSIPPI FROM THE FEDERAL UNION.

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.

Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of the commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.

That we do not overstate the dangers to our institution, a reference to a few facts will sufficiently prove.

The hostility to this institution commenced before the adoption of the Constitution, and was manifested in the well-known Ordinance of 1787, in regard to the Northwestern Territory.

The feeling increased, until, in 1819-20, it deprived the South of more than half the vast territory acquired from France.

The same hostility dismembered Texas and seized upon all the territory acquired from Mexico.

It has grown until it denies the right of property in slaves, and refuses protection to that right on the high seas, in the Territories, and wherever the government of the United States had jurisdiction.

It refuses the admission of new slave States into the Union, and seeks to extinguish it by confining it within its present limits, denying the power of expansion.

It tramples the original equality of the South under foot.

It has nullified the Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.

It advocates negro equality, socially and politically, and promotes insurruction and incendiarism in our midst.

It has enlisted its press, its pulpit and its schools against us, until the whole popular mind of the North is excited and inflamed with prejudice.

It has made combinations and formed associations to carry out its schemes of emancipation in the States and wherever else slavery exists.

It seeks not to elevate or to support the slave, but to destroy his present condition without providing a better.

It has invaded a State, and invested with the honors of martyrdom the wretch whose purpose was to apply flames to our dwellings and the weapons of destruction to our lives.

It has broken every compact into which it has entered for our security.

It has given indubitable evidence of its design to ruin our agriculture, to prostrate our industrial pursuits and to destroy our social system.

It knows no relenting or hesitation in its purposes; it stops not in its march of aggression, and leaves us no room to hope for cessation or for pause.

It has recently obtained control of the Government, by the prosecution of its unhallowed schemes, and destroyed the last expectation of living together in friendship and brotherhood.

Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.

Our decision is made. We follow their footsteps. We embrace the alternative of separation; and for the reasons here stated, we resolve to maintain our rights with the full consciousness of the justice of our course, and the undoubting belief of our ability to maintain it.

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Virginia Ordinance to Repeal the Ratification of the Constitution of the United States of America

An ORDINANCE to repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution.

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the twenty-fifth day of June, in the year of our Lord, one thousand seven hundred and eighty-eight, having declared that the powers granted under the said Constitution, were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States,

Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified; and all acts of the General Assembly of this State ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty, which belong and appertain to a free and independent State.

And they do further declare, That said Constitution of the United States of America, is no longer binding on any of the citizens of this State.

This ordinance shall take effect and be an act of this day, when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon, on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.

Done in Convention in the City of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia.

Missouri Act Declaring the Political Ties Heretofore Existing between the State of Missouri and the United States of America Dissolved

An act declaring the political ties heretofore existing between the State of Missouri and the United States of America dissolved.

Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions; and

Whereas the present Administration of the Government of the United States has utterly ignored the Constitution, subverted the Government as constructed and intended by its makers, and established a despotic and arbitrary power instead thereof: Now, therefore,

Be it enacted by the general assembly of the State of Missouri, That all political ties of every character now existing between the Government of the United States of America and the people and government of the State of Missouri are hereby dissolved, and the State of Missouri, resuming the sovereignty granted by compact to the said United States upon the admission of said State into the Federal Union, does again take its place as a free and independent republic amongst the nations of the earth.

This act to take effect and be in force from and after its passage.

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Approved, October 31, 1861.

I hereby certify the above and foregoing to be a full, true, and perfect copy of the original roll. In testimony whereof I have hereto set my hand and the great seal of the State of Missouri, this 2d day of November, 1861.

[seal.] B. F. MASSEY, Secretary of State.

An act ratifying the Constitution of the Provisional Government of the Confederate States of America.

Whereas the Congress of the Confederate States of America have, by an act entitled “An act to aid the State of Missouri in repelling invasion by the United States, and to authorize the admission of said State as a member of the Confederate States of America, and for other purposes,” enacted that “the State of Missouri shall be admitted a member of the Confederate States of America, upon an equal footing with the other States, under the Constitution for the Provisional Government of the same, upon condition that the said Constitution for the Provisional Government of the Confederate States shall be adopted and ratified by the properly and legally constituted authorities of said State”: Now, therefore,

Be it enacted by the general assembly of the State of Missouri, as follows:

Section 1. The general assembly of the State of Missouri, for and in behalf of the people thereof, do hereby accept the provisions of an act of the Congress of the Confederate States of America, as set forth in the preamble to this act, the State of Missouri hereby adopting and ratifying the Constitution for the Provisional Government of the Confederate States of America as a member of said Confederacy upon an equal footing with the other States under said Constitution.

Ordinance of the Kentucky Convention

Whereas the Federal Constitution, which created the Government of the United States, was declared by the framers thereof to be the supreme law of the land and was intended to limit the powers of said Government to certain general specified purposes, and did expressly reserve to the States and people all other powers whatever; and the President and Congress have treated this supreme law of the Union with contempt, and usurped to themselves the power to interfere with the rights and liberties of the States and the people against the expressed provisions of the Constitution, and have thus substituted for the highest forms of rational liberty and constitutional government, a central despotism, founded upon the ignorant prejudices of the masses of Northern society, and, instead of giving protection with the Constitution to the people of fifteen States of this Union, have turned loose upon them the unrestrained raging passions of mobs and fanatics, and because we seek to hold our liberties, our property, our homes, and our families, under the protection of the reserved powers of the States, have blockaded our ports, invaded our soil, and waged war upon our people for the purpose of subjugating us to their will; and

Whereas our honor and our duty to posterity demand that we shall not relinquish our own liberty, and shall not abandon the right of our descendants and the world to the inestimable blessings of constitutional government: Therefore,

Be it ordained, That we do hereby forever sever our connections with the Government of the United States, and, in the name of the people, we do hereby declare Kentucky to be a free and independent State, clothed with all power to fix her own destiny and to secure her own rights and liberties; and

Whereas the majority of the legislature of Kentucky have violated their most solemn pledges, made before the election, and deceived and betrayed the people; have abandoned the position of neutrality assumed by themselves and the people, and invited into the State the organized armies of Lincoln; have abdicated the government in favor of the military despotism which they have placed around themselves, but can not control, and have abandoned the duty of shielding the citizens with their protection; have thrown upon our people and the State the horrors and ravages of war, instead of attempting to preserve the peace, and have voted men and money for the war waged by the North for the destruction of our constitutional rights; have violated the express words of the Constitution by borrowing five millions of money for the support of the war, without a vote of the people; have permitted the arrest and imprisonment of our citizens and transferred the constitutional prerogatives of the executive to a military commission of partisans; have seen the right of habeas corpus suspended without an effort for its preservation, and permitted our people to be driven in exile from their homes; have subjected our property to confiscation, and our persons to confinement in the penitentiary as felons, because we may choose to take part in a contest for civil liberty and constitutional Edition: current; Page: [17] government against a sectional majority waging war against the people and institutions of fifteen independent States of the old Federal Union, and have done all these things deliberately against the warnings and vetoes of the governor and the solemn remonstrances of the minority in the senate and house of representatives: Therefore,

Be it further ordained, That the unconstitutional edicts of a factious majority of a legislature thus false to their pledges, their honor, and their interests, are not law, and that such government is unworthy of the support of a brave and free people; and that we do therefore declare that the people are thereby absolved from all allegiance to said government, and that they have a right to establish any government which to them may seem best adapted to the preservation of their rights and liberties.

Section 1. The supreme executive and legislative power of the provisional government of this Commonwealth, hereby established, shall be vested in a governor and ten councilmen, one from each of the present Congressional districts, a majority of whom shall constitute a quorum to transact business. The governor and councilmen to be elected by the members of this convention in such manner as this convention may prescribe.

Sec. 2. The governor and council are hereby invested with full power to pass all laws necessary to effect the objects contemplated by the formation of this government. They shall have full control of the army and navy of this Commonwealth, and the militia thereof.

Sec. 3. No law shall be passed, or act done, or appointment made, either civil or military, by the provisional government, except with the concurrence of a majority of the council and approval of the governor, except as herein specially provided.

Sec. 4. In case of a vacancy in the gubernatorial office, occasioned by death, resignation, or any other cause, the council shall have power to elect a governor, as his successor, who shall not, however, be a member of their own body.

Sec. 5. The council hereby established shall consist of one person selected from each Congressional district in the State, to be chosen by this convention, who shall have power to fill all vacancies from any cause from the district in which such vacancy shall occur.

Sec. 6. The council shall have power to pass any acts which they may deem essential to the preservation of our liberty and the protection of our rights, and such acts, when approved by the governor, shall become law, and as such shall be sustained by the courts and other departments of the government.

Sec. 7. The governor shall nominate, and, by and with the advice and consent of the council, shall appoint all judicial and executive and other officers necessary for the enforcement of law and the protection of society under the extraordinary circumstances now existing, who shall continue in office during the pleasure of the governor and council, or until the establishment of a permanent government.

Sec. 8. The governor shall have power, by and with the consent and advice of the council, to conclude a treaty with the Confederate States of America, by which the State of Kentucky may be admitted as one of said Confederate States upon an equal footing in all respects with the other States of said Confederacy.

Sec. 9. That three commissioners shall be appointed by this convention to the Government of the Confederate States of America, with power to negotiate and treat with said Confederate States for the earliest practicable admission of Kentucky into the Government of said Confederate States of America, who shall report the result of their mission to the governor and council of this provisional government, for such future action as may be deemed advisable, and, should less than the full number attend, such as may attend may conduct such negotiation.

Sec. 10. So soon as an election can be held, free from the influence of the armies of the United States, the provisional government shall provide for the assembling of a convention to adopt such measures as may be necessary and expedient for the restoration of a permanent government. Said convention shall consist of one hundred delegates, one from each representative district in the State, except the counties of Mason and Kenton, each of which shall be entitled to two delegates.

Sec. 11. An auditor and treasurer shall be appointed by the provisional government, whose duties shall be prescribed by law, and who shall give bond with sufficient security for the faithful discharge of the duties of their respective offices, to be approved by the governor and council.

Sec. 12. The following oath shall be taken by the governor, members of the council, judges, and all other officers, civil and military, who may be commissioned and appointed by this provisional government: “I, ——, do solemnly swear (or affirm), in the presence of Almighty God, and upon my honor, that I will observe and obey all laws passed by the provisional government of Kentucky. So help me God.”

Sec. 13. The governor shall receive, as his salary, $2,000 per annum, and the councilmen, $5 per diem, while in session, and the salary of the other officers shall be fixed by law.

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Sec. 14. The constitution and laws of Kentucky, not inconsistent with the acts of this convention, and the establishment of this government, and the laws which may be enacted by the governor and council, shall be the laws of this State.

Sec. 15. That whenever the governor and council shall have concluded a treaty with the Confederate States of America, for the admission of this State into the Confederate Government, the governor and council shall elect two Senators, and provide by law for the election of members of the House of Representatives in Congress.

Sec. 16. The provisional government hereby established shall be located at Bowling Green, Ky., but the governor and council shall have power to meet at any other place that they may consider appropriate.

Done at Russellville, in the State of Kentucky, this 20th day of November, in the year of our Lord 1861.

(Signed) H. C. BURNETT,
President of the convention, and member from Trigg County.
R. McKEE,
Secretary, and member from Louisville.
T. L. BURNETT,
Assistant secretary, and member from Spencer County.
T. S. BRYAN,
Assistant secretary, and member from Christian County.
W. M. COFFEE, of Ballard County.
A. D. KINGMAN.
W. J. LUNSFORD.
J. J. CUNNINGHAM, of Grayson County.
JOHN J. GREEN.
J. P. BURNSIDE.
GEORGE W. MAXSON.
ROBERT S. FORD, of Hardin County.
WILLIAM JOHNSTON, of Hardin County.
WILLIAM W. THOMPSON, of Hart County.
W. S. SHOWDY, of Hart County.
J. J. GROVES, of Hart County.
J. W. CROCKETT, of Henderson County.
B. W. JENKINS, of Henry County.
L. M. LOWE, of Hopkins County.
GREEN MALCOLM, of Jefferson County.
B. K. HORNSBY, of Jefferson County.
WILLIAM K. DANIEL, of Jessamine County.
D. P. BUCKNER, of Kenton County.
C. BENNETT, of Livingston County.
C. N. PENDLETON, of Logan County.
JAMES M. BEALL, of Logan County.
JOHN W. MALONE, of Logan County.
E. D. RICKETTS, of Louisville, First district.
J. A. PENTON, of Louisville, Second district.
GEORGE P. TALBOT, of Louisville, Third district.
J. G. P. HOOE, of Louisville, Fourth district.
H. W. BRUCE, of Louisville, Fourth district.
R. L. COBB, of Lyon County.
WILLIS B. MACHEN, of Lyon County.
GEORGE R. MERRITT, of Lyon County.
J. C. GILBERT, of Marshall County.
WILLIAM E. RAY, of Marion County.
L. M. RAY, of Marion County.
MICHAEL McARTY, of Marion County.
JOHN BURNAM, of Warren County.
J. H. D. McKEE, of Anderson County.
JAMES A. McBRAYER, of Anderson County.
W. TOWSLEY, of Ballard County.
J. P. BATES, of Barren County.
R. W. THOMAS, of Barren County.
N. A. SMITH, of Barren County.
W. K. EDMUNDS, of Barren County.
C. W. PARRISH, of Barren County.
J. W. EVARTS, of Barren County.
WILLIAM F. BELL, of Barren County.
S. S. SCOTT, of Barren County.
W. R. CUNNINGHAM, of Bourbon County.
SAMUEL H. McBRIDE, of Boyle County.
DORSEY B. BOWERS.
WILLIAM N. GAITHER.
JAMES W. MOORE.
HARDY S. LYPERT.
L. K. CHILTON.
JOHN J. THOMAS.
ROBERT McKEE.
STEPHEN EDWARDS.
P. C. BARNETT.
D. MATHEWSON, of Calloway County.
P. S. HAMLIN, of Calloway County.
T. M. JONES, of Calloway County.
ALEXANDER WESSON, of Calloway County.
FRANCIS W. DODDS, of Calloway County.
WILLIAM T. MATHES, of Calloway County.
C. A. DUNCAN, of Calloway County.
A. J. HOLLAND, of Calloway County.
H. L. GILTNER, of Calloway County.
THOMAS T. BARRETT.
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ROBERT J. BRECKINRIDGE.
J. S. GIBBON.
R. B. ALEXANDER.
E. R. WOODWARD, of Metcalfe County.
E. M. BRUCE, of Nicholas County.
J. J. CONOVER, of Owen County.
OWEN DORSEY, of Oldham County.
GEORGE W. JOHNSON, of Scott County.
A. KEENE RICHARDS, of Scott County.
WILLIAM B. CLARK, of Simpson County.
B. W. WILLIAMS, of Simpson County.
T. L. BURNETT, of Spencer County.
J. A. RUSSELL, of Todd County.
W. B. HARRISON, of Todd County.
G. LINE, of Todd County.
H. H. POSTON, of Trigg County.
W. H. MURTRIE, of Trigg County.
ROBERT WOLDRIDGE, of Trigg County.
ANDREW CUNNINGHAM, Jr., of Trigg County.
J. Y. NEWKIRK, of Trimble County.
WILLIAM D. RAY.
WILLIAM J. PAYNE, of Union County.
S. D. BLACKBURN, of Warren County.
SANDFORD LYNE, of Woodford County.
JOHN W. ARNETT.
ROBERT A. BRECKENRIDGE, of Washington County.
WARREN LYTTLETON JENKINS, of Webster County.
THOMAS S. BRYAN, of Christian County.
J. F. BELL, of Calloway County.
A. R. BOONE, of Graves County.
H. M. ROSE, of Graves County.
J. A. PERTLE, of Graves County.
J. D. SCAFF, of Graves County.
JOHN RIDGWAY, of Graves County.
BLANTON DUNCAN, of Louisville.
PHILIP B. THOMPSON, of Mercer County.
Z. McDANIEL, of Monroe County.
W. N. WAND, of Muhlenburgh County.
A. F. WILLIAMS, of McCroskin County.
JOHN M. JOHNSON, of McCroskin County.
WILLIAM G. BULLITT, of McCroskin County.
H. H. HUSTON, of McCroskin County.
JOHN Q. A. KING, of McCroskin County.
WILLIAM E. MINER, of Nelson County.
JOHN C. BRODHEAD, of Nelson County.
JOHN J. DENNIS, of Calhoun, McLean County.
J. L. GREGORY, of Calhoun, McLean County.
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  • Constitution of the Confederate States of America, 1861

On February 4, 1861, a convention of delegates from the seceding states convened in Montgomery, Alabama. They drafted a provisional constitution in four days and ratified a permanent document a month later. That document repeats much of the U.S. Constitution, but with important differences. In addition to provisions protecting chattel slavery against any legislative encroachments, either in the Confederate states or territories, the Confederate Constitution also limited the president to one six-year term, provided the president with a limited line-item veto, and forbade the use of tariffs to promote industry. Several provisions strengthened the capacity of state legislatures to check officials of the central government. Of particular note is the Confederate Constitution’s preamble, which, while following the basic pattern of the original Constitution, refers to “each State acting in its sovereign and independent character” and invokes “the favor and guidance of Almighty God.”

Constitution of the Confederate States of America

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity—invoking the favor and guidance of Almighty God—do ordain and establish this Constitution for the Confederate States of America.

Article I

Section 1

All legislative powers herein delegated shall be vested in a Congress of the Confederate States, which shall consist of a Senate and a House of Representatives.

Section 2

1. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.

2. No person shall be a Representative who shall not have attained the age of twenty-five years, and be a citizen of the Confederate States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

3. Representatives and direct taxes shall be apportioned among the several States, which may be included within this Confederacy, according to their respective numbers, which shall be determined, by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. The actual enumeration shall be made within three years after the first meeting of the Congress of the Confederate States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every fifty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of South Carolina shall be entitled to choose six; the State of Georgia ten; the State of Alabama nine; the State of Florida two; the State of Mississippi seven; the State of Louisiana six; and the State of Texas six.

4. When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment; except that any judicial or other Federal officer, resident and acting solely within the limits of any State, Edition: current; Page: [21] may be impeached by a vote of two-thirds of both branches of the Legislature thereof.

Section 3

1. The Senate of the Confederate States shall be composed of two Senators from each State, chosen for six years by the Legislature thereof, at the regular session next immediately preceding the commencement of the term of service; and each Senator shall have one vote.

2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature which shall then fill such vacancies.

3. No person shall be a Senator who shall not have attained the age of thirty years, and be a citizen of the Confederate States; and who shall not, when elected, be an inhabitant of the State for which he shall be chosen.

4. The Vice President of the Confederate States shall be President of the Senate, but shall have no vote unless they be equally divided.

5. The Senate shall choose their other officers; and also a President pro tempore in the absence of the Vice President, or when he shall exercise the office of President of the Confederate States.

6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the Confederate States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the Confederate States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishmet according to law.

Section 4

1. The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.

2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day.

Section 5

1. Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.

2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds of the whole number expel a member.

3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.

4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

Section 6

1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant to the principal officer in each of the Executive Departments a Edition: current; Page: [22] seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.

Section 7

1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.

2. Every bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the Confederate States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law. The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceeding shall then be had as in case of other bills disapproved by the President.

3. Every order, resolution or vote, to which the concurrence of both Houses may be necessary, (except on a question of adjournment,) shall be presented to the President of the Confederate States; and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be re-passed by two-thirds of both Houses, according to the rules and limitations prescribed in case of a bill.

Section 8

The Congress shall have power—

1. To lay and collect taxes, duties, imposts, and excises, for revenue necessary to pay the debts, provide for the common defence, and carry on the government of the Confederate States; but no bounties shall be granted from the treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States:

2. To borrow money on the credit of the Confederate States:

3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but neither this, nor any other clause contained in the constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof:

4. To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies, throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same:

5. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures:

6. To provide for the punishment of counterfeiting the securities and current coin of the Confederate States:

7. To establish post-offices and post-routes; but the expenses of the Post-office Department, after the first day of March in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues:

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries:

9. To constitute tribunals inferior to the Supreme Court:

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years:

13. To provide and maintain a navy:

14. To make rules for the government and regulation of the land and naval forces:

15. To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions:

16. To provide for organizing, arming, and disciplining Edition: current; Page: [23] the militia, and for governing such part of them as may be employed in the service of the Confederate States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:

17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States and the acceptance of Congress, become the seat of the government of the Confederate States: and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: and

18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the Confederate States, or in any department or officer thereof.

Section 9

1. The importation of negroes of the African race, from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.

2. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.

3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

4. No bill of attainder, ex post facto law, or law denying or impa[i]ring the right of property in negro slaves shall be passed.

5. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

6. No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.

7. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.

8. No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

9. Congress shall appropriate no money from the treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of departments, and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the government, which it is hereby made the duty of Congress to establish.

10. All bills appropriating money shall specify in federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or such service rendered.

11. No title of nobility shall be granted by the Confederate States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince, or foreign state.

12. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the government for a redress of grievances.

13. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

14. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

15. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

16. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due Edition: current; Page: [24] process of law; nor shall private property be taken for public use, without just compensation.

17. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

18. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact so tried by a jury shall be otherwise re-examined in any court of the Confederacy, than according to the rules of common law.

19. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

20. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Section 10

1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the Confederate States; and all such laws shall be subject to the revision and control of Congress.

3. No State shall, without the consent of Congress, lay any duty on tonnage, except on sea-going vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue, thus derived, shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships-of-war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof.

Article II

Section 1

1. The executive power shall be vested in a President of the Confederate States of America. He and the Vice President shall hold their offices for the term of six years but the President shall not be re-eligible. The President and Vice President shall be elected as follows:

2. Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative or person holding an office of trust or profit under the Confederate States, shall be appointed an elector.

3. The electors shall meet in their respective States and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of the government of the Confederate States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States—the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death, or other constitutional disability of the President.

4. The person having the greatest number of votes as Vice Edition: current; Page: [25] President, shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

5. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the Confederate States.

6. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the Confederate States.

7. No person except a natural born citizen of the Confederate States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the limits of the Confederate States, as they may exist at the time of his election.

8. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President; and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President; and such officer shall act accordingly, until the disability be removed or a President shall be elected.

9. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the Confederate States, or any of them.

10. Before he enters on the execution of his office, he shall take the following oath or affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the Confederate States, and will, to the best of my ability, preserve, protect, and defend the Constitution thereof.”

Section 2

1. The President shall be commander-in-chief of the army and navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the Confederate States, except in cases of impeachment.

2. He shall have power, by and with the advice and consent of the Senate, to make treaties; provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

3. The principal officer in each of the executive departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the executive departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.

4. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session; but no person rejected by the Senate shall be re-appointed to the same office during their ensuing recess.

Section 3

1. The President shall, from time to time, give to the Congress information of the state of the Confederacy, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them; and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the Confederate States.

Section 4

1. The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment, Edition: current; Page: [26] for and conviction of, treason, bribery, or other high crimes and misdemeanors.

Article III

Section 1

1. The judicial power of the Confederate States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

Section 2

1. The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State, where the State is plaintiff; between citizens claiming lands under grants of different States; and between a State or the citizens thereof, and foreign states, citizens or subjects; but no State shall be sued by a citizen or subject of any foreign state.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Section 3

1. Treason against the Confederate States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

2. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

Article IV

Section 1

1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Section 2

1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.

2. A person charged in any State with treason, felony, or other crime against the laws of such State, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

3. No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor: but shall be delivered up on claim of the party to whom such slave belongs, or to whom such service or labor may be due.

Section 3

1. Other States may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives and two-thirds of the Senate, the Senate voting by States; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress.

2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Confederate States, including the lands thereof.

3. The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Edition: current; Page: [27] Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory, the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and by the territorial government: and the inhabitants of the several Confederate States and Territories shall have the right to take to such territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.

4. The Confederate States shall guarantee to every State that now is, or hereafter may become, a member of this Confederacy, a republican form of government; and shall protect each of them against invasion; and on application of the legislature, (or of the executive, when the legislature is not in session,) against domestic violence.

Article V

Section 1

1. Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention—voting by States—and the same be ratified by the legislatures of two-thirds of the several States, or by conventions in two-thirds thereof—as the one or the other mode of ratification may be proposed by the general convention—they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.

Article VI

1. The Government established by this Constitution is the successor of the Provisional Government of the Confederate States of America, and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.

2. All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the Confederate States under this Constitution, as under the Provisional Government.

3. This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

4. The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the Confederate States.

5. The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States.

6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

Article VII

1. The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

2. When five States shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution shall prescribe the time for holding the election of President and Vice President; and for the meeting of the Electoral College; and for counting the votes, and inaugurating the President. They shall, also, prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.

Adopted unanimously by the Congress of the Confederate States of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana and Texas, sitting in Convention at the capitol, in the city of Montgomery, Alabama, on the Eleventh day of March, in the year Eighteen Hundred and Sixty-One.

HOWELL COBB,
President of the Congress.
South Carolina.—R. Barnwell Rhett, C. G. Memminger, Wm. Porcher Miles, James Chesnut, Jr., R. W. Barnwell, William W. Boyce, Lawrence M. Keitt, T. J. Withers.
Edition: current; Page: [28]
Georgia.—Francis S. Bartow, Martin J. Crawford, Benjamin H. Hill, Thos. R. R. Cobb.
Florida.—Jackson Morton, J. Patton Anderson, Jas. B. Owens.
Alabama.—Richard W. Walker, Robt. H. Smith, Colin J. McRae, William P. Chilton, Stephen F. Hale, David P. Lewis, Tho. Fearn, Jno. Gill Shorter, J. L. M. Curry.
Mississippi.—Alex. M. Clayton, James T. Harrison, William S. Barry, W. S. Wilson, Walker Brooke, W. P. Harris, J. A. P. Campbell.
Louisiana.—Alex. De Clouet, C. M. Conrad, Duncan F. Kenner, Henry Marshall.
Texas.—John Hemphill, Thomas N. Waul, John H. Reagan, Williamson S. Oldham, Louis T. Wigfall, John Gregg, William Beck Ochiltree.

Extract from the Journal of the Congress

On the question of the adoption of the Constitution of the Confederate States of America, the vote was taken by yeas and nays; and the Constitution was unanimously adopted, as follows:

Those who voted in the affirmative being Messrs. Walker, Smith, Curry, Hale, McRae, Shorter, and Fearn, of Alabama, (Messrs. Chilton and Lewis being absent); Messrs. Morton, Anderson, and Owens, of Florida; Messrs. Toombs, Howell Cobb, Bartow, Nisbet, Hill, Wright, Thomas R. R. Cobb, and Stephens, of Georgia, (Messrs. Crawford and Kenan being absent); Messrs. Perkins, De Clouet, Conrad, Kenner, Sparrow, and Marshall, of Louisiana; Messrs. Harris, Brooke, Wilson, Clayton, Barry, and Harrison, of Mississippi, (Mr. Campbell being absent); Messrs. Rhett, Barnwell, Keitt, Chesnut, Memminger, Miles, Withers, and Boyce, of South Carolina; Messrs. Reagan, Hemphill, Waul, Gregg, Oldham, and Ochiltree, of Texas, (Mr. Wigfall being absent).

A true copy:

J. J. HOOPER,
Secretary of the Congress.

I do hereby certify that the foregoing are, respectively, true and correct copies of “The Constitution of the Confederate States of America,” unanimously adopted this day, and of the yeas and nays on the question of the adoption thereof.

HOWELL COBB,
President of the Congress.
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  • Farewell Speech to Congress, Jefferson Davis, 1861
  • Inaugural Address, Jefferson Davis, 1861

Jefferson Davis served in the House of Representatives, as a regimental commander in the Mexican-American War (1846), as a U.S. senator, and as secretary of war before returning to the Senate in 1857. A powerful defender of Southern institutions and interests, Davis was not considered in the forefront of the call for secession, remaining in the Senate until his own state of Mississippi seceded. He did, however, heed his state’s decision to secede, and his farewell address to Congress is a defense of that decision. Davis actually delivered two inaugural addresses, the first (reproduced here) as the appointed president of the provisional government of the Confederate States of America, the second, a year later, as the Confederacy’s first (and only) formally elected president. Davis’s inaugural as provisional president was held in Montgomery, Alabama. After Virginia seceded from the Union, the Confederate capital was moved to Richmond, and Davis’s inaugural as duly elected president of the Confederacy was held in that city’s Capitol Square, at the foot of an equestrian statue of the first president of the United States, George Washington.

Farewell Speech to the United States Congress

Jefferson Davis

Mr. DAVIS. I rise, Mr. President, for the purpose of announcing to the Senate that I have satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States. Under these circumstances, of course my functions are terminated here. It has seemed to me proper, however, that I should appear in the Senate to announce that fact to my associates, and I will say but very little more. The occasion does not invite me to go into argument; and my physical condition would not permit me to do so if it were otherwise; and yet it seems to become me to say something on the part of the State I here represent, on an occasion so solemn as this.

It is known to Senators who have served with me here, that I have for many years advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union. Therefore, if I had not believed there was justifiable cause; if I had thought that Mississippi was acting without sufficient provocation, or without an existing necessity, I should still, under my theory of the Government, because of my allegiance to the State of which I am a citizen, have been bound by her action. I, however, may be permitted to say that I do think she has justifiable cause, and I approve of her act. I conferred with her people before that act was taken, counseled them then that if the state of things which they apprehended should exist when the convention met, they should take the action which they have now adopted.

I hope none who hear me will confound this expression of mine with the advocacy of the right of a State to remain in the Union, and to disregard its constitutional obligations by the nullification of the law. Such is not my theory. Nullification and secession, so often confounded, are indeed antagonistic principles. Nullification is a remedy which it is sought to apply within the Union, and against the agent of the States. It is only to be justified when the agent has violated his constitutional obligation, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other States of the Union for a decision; but when the States themselves, and when the people of the States, have so acted as to convince us that they will not regard our constitutional Edition: current; Page: [30] rights, then, and then for the first time, arises the doctrine of secession in its practical application.

A great man who now reposes with his fathers, and who has been often arraigned for a want of fealty to the Union, advocated the doctrine of nullification, because it preserved the Union. It was because of his deep-seated attachment to the Union, his determination to find some remedy for existing ills short of a severance of the ties which bound South Carolina to the other States, that Mr. Calhoun advocated the doctrine of nullification, which he proclaimed to be peaceful, to be within the limits of State power, not to disturb the Union, but only to be a means of bringing the agent before the tribunal of the States for their judgment.

Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever.

I therefore say I concur in the action of the people of Mississippi, believing it to be necessary and proper, and should have been bound by their action if my belief had been otherwise; and this brings me to the important point which I wish on this last occasion to present to the Senate. It is by this confounding of nullification and secession that the name of a great man, whose ashes now mingle with his mother earth, has been invoked to justify coercion against a seceded State. The phrase “to execute the laws,” was an expression which General Jackson applied to the case of a State refusing to obey the laws while yet a member of the Union. That is not the case which is now presented. The laws are to be executed over the United States, and upon the people of the United States. They have no relation to any foreign country. It is a perversion of terms, at least it is a great misapprehension of the case, which cites that expression for application to a State which has withdrawn from the Union. You may make war on a foreign State. If it be the purpose of gentlemen, they may make war against a State which has withdrawn from the Union; but there are no laws of the United States to be executed within the limits of a seceded State. A State finding herself in the condition in which Mississippi has judged she is, in which her safety requires that she should provide for the maintenance of her rights out of the Union, surrenders all the benefits, (and they are known to be many,) deprives herself of the advantages, (they are known to be great,) severs all the ties of affection, (and they are close and enduring,) which have bound her to the Union; and thus divesting herself of every benefit, taking upon herself every burden, she claims to be exempt from any power to execute the laws of the United States within her limits.

I well remember an occasion when Massachusetts was arraigned before the bar of the Senate, and when then the doctrine of coercion was rife and to be applied against her because of the rescue of a fugitive slave in Boston. My opinion then was the same that it is now. Not in a spirit of egotism, but to show that I am not influenced in my opinion because the case is my own, I refer to that time and that occasion as containing the opinion which I then entertained, and on which my present conduct is based. I then said, if Massachusetts, following her through a stated line of conduct, chooses to take the last step which separates her from the Union, it is her right to go, and I will neither vote one dollar nor one man to coerce her back; but will say to her, God speed, in memory of the kind associations which once existed between her and the other States.

It has been a conviction of pressing necessity, it has been a belief that we are to be deprived in the Union of the rights which our fathers bequeathed to us, which has brought Mississippi into her present decision. She has heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races. That Declaration of Independence is to be construed by the circumstances and purposes for which it was made. The communities were declaring their independence; the people of those communities were asserting that no man was born—to use the language of Mr. Jefferson—booted and spurred to ride over the rest of mankind; that men were created equal—meaning the men of the political community; that there was no divine right to rule; that no man inherited the right to govern; that there were no classes by which power and place descended to families, but that all stations were equally within the grasp of each member of the body-politic. These were the great principles they announced; these were the purposes for which they made their declaration; these were the ends to which their enunciation was directed. They have no reference to the slave; else, how happened it that among the items of arraignment made against George III was that he endeavored to do just what the North has been endeavoring Edition: current; Page: [31] of late to do—to stir up insurrection among our slaves? Had the Declaration announced that the negroes were free and equal, how was the Prince to be arraigned for stirring up insurrection among them? And how was this to be enumerated among the high crimes which caused the colonies to sever their connection with the mother country? When our Constitution was formed, the same idea was rendered more palpable, for there we find provision made for that very class of persons as property; they were not put upon the footing of equality with white men—not even upon that of paupers and convicts; but, so far as representation was concerned, were discriminated against as a lower caste, only to be represented in the numerical proportion of three fifths.

Then, Senators, we recur to the compact which binds us together; we recur to the principles upon which our Government was founded; and when you deny them, and when you deny to us the right to withdraw from a Government which thus perverted threatens to be destructive of our rights, we but tread in the path of our fathers when we proclaim our independence, and take the hazard. This is done not in hostility to others, not to injure any section of the country, not even for our own pecuniary benefit; but from the high and solemn motive of defending and protecting the rights we inherited, and which it is our sacred duty to transmit unshorn to our children.

I find in myself, perhaps, a type of the general feeling of my constituents towards yours. I am sure I feel no hostility to you, Senators from the North. I am sure there is not one of you, whatever sharp discussion there may have been between us, to whom I cannot now say, in the presence of my God, I wish you well; and such, I am sure, is the feeling of the people whom I represent towards those whom you represent. I therefore feel that I but express their desire when I say I hope, and they hope, for peaceful relations with you, though we must part. They may be mutually beneficial to us in the future, as they have been in the past, if you so will it. The reverse may bring disaster on every portion of the country; and if you will have it thus, we will invoke the God of our fathers, who delivered them from the power of the lion, to protect us from the ravages of the bear; and thus, putting our trust in God, and in our own firm hearts and strong arms, we will vindicate the right as best we may.

In the course of my service here, associated at different times with a great variety of Senators, I see now around me some with whom I have served long; there have been points of collision; but whatever of offense there has been to me, I leave here; I carry with me no hostile remembrance. Whatever offense I have given which has not been redressed, or for which satisfaction has not been demanded, I have, Senators, in this hour of our parting, to offer you my apology for any pain which, in heat of discussion, I have inflicted. I go hence unencumbered of the remembrance of any injury received, and having discharged the duty of making the only reparation in my power for any injury offered.

Mr. President, and Senators, having made the announcement which the occasion seemed to me to require, it only remains for me to bid you a final adieu.

Inaugural Address

Jefferson Davis
Gentlemen of the Congress of the Confederate States of America, Friends, and Fellow-Citizens:

Called to the difficult and responsible station of Chief Executive of the Provisional Government which you have instituted, I approach the discharge of the duties assigned to me with an humble distrust of my abilities, but with a sustaining confidence in the wisdom of those who are to guide and to aid me in the administration of public affairs, and an abiding faith in the virtue and patriotism of the people.

Looking forward to the speedy establishment of a permanent government to take the place of this, and which by its greater moral and physical power will be better able to combat with the many difficulties which arise from the conflicting interests of separate nations, I enter upon the duties of the office to which I have been chosen with the hope that the beginning of our career as a Confederacy may not be obstructed by hostile opposition to our enjoyment of the separate existence and independence which we have asserted, and, with the blessing of Providence, intend to maintain. Our present condition, achieved in a manner unprecedented in the history of nations, illustrates the American idea that governments rest upon the consent of the governed, and that it is the right of the people to alter or abolish governments whenever they become destructive of the ends for which they were established.

The declared purpose of the compact of Union from Edition: current; Page: [32] which we have withdrawn was “to establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”; and when, in the judgment of the sovereign States now composing this Confederacy, it had been perverted from the purposes for which it was ordained, and had ceased to answer the ends for which it was established, a peaceful appeal to the ballot-box declared that so far as they were concerned the Government created by that compact should cease to exist. In this they merely asserted a right which the Declaration of Independence of 1776 had defined to be inalienable; of the time and occasion for its exercise they, as sovereigns, were the final judges, each for itself. The impartial and enlightened verdict of mankind will vindicate the rectitude of our conduct, and He who knows the hearts of men will judge of the sincerity with which we labored to preserve the Government of our fathers in its spirit. The right solemnly proclaimed at the birth of the States, and which has been affirmed and reaffirmed in the bills of rights of States subsequently admitted into the Union of 1789, undeniably recognize in the people the power to resume the authority delegated for the purposes of government. Thus the sovereign States here represented proceeded to form this Confederacy, and it is by abuse of language that their act has been denominated a revolution. They formed a new alliance, but within each State its government has remained, the rights of person and property have not been disturbed. The agent through whom they communicated with foreign nations is changed, but this does not necessarily interrupt their international relations.

Sustained by the consciousness that the transition from the former Union to the present Confederacy has not proceeded from a disregard on our part of just obligations, or any failure to perform every constitutional duty, moved by no interest or passion to invade the rights of others, anxious to cultivate peace and commerce with all nations, if we may not hope to avoid war, we may at least expect that posterity will acquit us of having needlessly engaged in it. Doubly justified by the absence of wrong on our part, and by wanton aggression on the part of others, there can be no cause to doubt that the courage and patriotism of the people of the Confederate States will be found equal to any measures of defense which honor and security may require.

An agricultural people, whose chief interest is the export of a commodity required in every manufacturing country, our true policy is peace, and the freest trade which our necessities will permit. It is alike our interest, and that of all those to whom we would sell and from whom we would buy, that there should be the fewest practicable restrictions upon the interchange of commodities. There can be but little rivalry between ours and any manufacturing or navigating community, such as the Northeastern States of the American Union. It must follow, therefore, that a mutual interest would invite good will and kind offices. If, however, passion or the lust of dominion should cloud the judgment or inflame the ambition of those States, we must prepare to meet the emergency and to maintain, by the final arbitrament of the sword, the position which we have assumed among the nations of the earth. We have entered upon the career of independence, and it must be inflexibly pursued. Through many years of controversy with our late associates, the Northern States, we have vainly endeavored to secure tranquillity, and to obtain respect for the rights to which we were entitled. As a necessity, not a choice, we have resorted to the remedy of separation; and henceforth our energies must be directed to the conduct of our own affairs, and the perpetuity of the Confederacy which we have formed. If a just perception of mutual interest shall permit us peaceably to pursue our separate political career, my most earnest desire will have been fulfilled. But, if this be denied to us, and the integrity of our territory and jurisdiction be assailed, it will but remain for us, with firm resolve, to appeal to arms and invoke the blessings of Providence on a just cause.

As a consequence of our new condition and with a view to meet anticipated wants, it will be necessary to provide for the speedy and efficient organization of branches of the executive department, having special charge of foreign intercourse, finance, military affairs, and the postal service.

For purposes of defense, the Confederate States may, under ordinary circumstances, rely mainly upon their militia, but it is deemed advisable, in the present condition of affairs, that there should be a well-instructed and disciplined army, more numerous than would usually be required on a peace establishment. I also suggest that for the protection of our harbors and commerce on the high seas a navy adapted to those objects will be required. These necessities have doubtless engaged the attention of Congress.

With a Constitution differing only from that of our fathers in so far as it is explanatory of their well-known intent, freed from the sectional conflicts which have interfered with the pursuit of the general welfare, it is not unreasonable to expect that States from which we have recently parted may seek to unite their fortunes with ours under the Government Edition: current; Page: [33] which we have instituted. For this your Constitution makes adequate provision; but beyond this, if I mistake not the judgment and will of the people, a reunion with the States from which we have separated is neither practicable nor desirable. To increase the power, develop the resources, and promote the happiness of a confederacy, it is requisite that there should be so much of homogeneity that the welfare of every portion shall be the aim of the whole. Where this does not exist, antagonisms are engendered which must and should result in separation.

Actuated solely by the desire to preserve our own rights and promote our own welfare, the separation of the Confederate States has been marked by no aggression upon others and followed by no domestic convulsion. Our industrial pursuits have received no check. The cultivation of our fields has progressed as heretofore, and even should we be involved in war there would be no considerable diminution in the production of the staples which have constituted our exports and in which the commercial world has an interest scarcely less than our own. This common interest of the producer and consumer can only be interrupted by an exterior force which should obstruct its transmission to foreign markets—a course of conduct which would be as unjust toward us as it would be detrimental to manufacturing and commercial interests abroad. Should reason guide the action of the Government from which we have separated, a policy so detrimental to the civilized world, the Northern States included, could not be dictated by even the strongest desire to inflict injury upon us; but otherwise a terrible responsibility will rest upon it, and the suffering of millions will bear testimony to the folly and wickedness of our aggressors. In the meantime there will remain to us, besides the ordinary means before suggested, the well-known resources for retaliation upon the commerce of an enemy.

Experience in public stations, of subordinate grade to this which your kindness has conferred, has taught me that care and toil and disappointment are the price of official elevation. You will see many errors to forgive, many deficiencies to tolerate, but you shall not find in me either a want of zeal or fidelity to the cause that is to me highest in hope and of most enduring affection. Your generosity has bestowed upon me an undeserved distinction, one which I neither sought nor desired. Upon the continuance of that sentiment and upon your wisdom and patriotism I rely to direct and support me in the performance of the duty required at my hands.

We have changed the constituent parts, but not the system of our Government. The Constitution formed by our fathers is that of these Confederate States, in their exposition of it, and in the judicial construction it has received, we have a light which reveals its true meaning.

Thus instructed as to the just interpretation of the instrument, and ever remembering that all offices are but trusts held for the people, and that delegated powers are to be strictly construed, I will hope, by due diligence in the performance of my duties, though I may disappoint your expectations, yet to retain, when retiring, something of the good will and confidence which welcome my entrance into office.

It is joyous, in the midst of perilous times, to look around upon a people united in heart, where one purpose of high resolve animates and actuates the whole—where the sacrifices to be made are not weighed in the balance against honor and right and liberty and equality. Obstacles may retard, they can not long prevent the progress of a movement sanctified by its justice, and sustained by a virtuous people. Reverently let us invoke the God of our fathers to guide and protect us in our efforts to perpetuate the principles which, by His blessing, they were able to vindicate, establish and transmit to their posterity, and with a continuance of His favor, ever gratefully acknowledged, we may hopefully look forward to success, to peace, and to prosperity.

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  • First Inaugural Address, Abraham Lincoln, 1861

By the time Lincoln delivered his first inaugural address, seven states had seceded from the Union and formed themselves into the Confederate States of America, complete with its own Constitution and provisional president. Lincoln, meanwhile, had been brought to the capital in secrecy and under military guard. Dangers of the time did not, however, stop Lincoln from riding to the capitol building in an open carriage, accompanied by the outgoing president, James Buchanan. Criticized by some for not making more overt attempts at reconciliation with the seceding states up to this time, Lincoln nonetheless struck a conciliatory tone in this speech, which contains some of his best-known allegorical phrases.

First Inaugural Address

Abraham Lincoln
Fellow-Citizens of the United States:

In compliance with a custom as old as the Government itself, I appear before you to address you briefly and to take in your presence the oath prescribed by the Constitution of the United States to be taken by the President “before he enters on the execution of this office.”

I do not consider it necessary at present for me to discuss those matters of administration about which there is no special anxiety or excitement.

Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that—

I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.

Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations and had never recanted them; and more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:

Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes.

I now reiterate these sentiments, and in doing so I only press upon the public attention the most conclusive evidence of which the case is susceptible that the property, peace, and security of no section are to be in any wise endangered by the now incoming Administration. I add, too, that all the protection which, consistently with the Constitution and the laws, can be given will be cheerfully given to all the States when lawfully demanded, for whatever cause—as cheerfully to one section as to another.

There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions:

No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from Edition: current; Page: [35] such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear their support to the whole Constitution—to this provision as much as to any other. To the proposition, then, that slaves whose cases come within the terms of this clause “shall be delivered up” their oaths are unanimous. Now, if they would make the effort in good temper, could they not with nearly equal unanimity frame and pass a law by means of which to keep good that unanimous oath?

There is some difference of opinion whether this clause should be enforced by national or by State authority, but surely that difference is not a very material one. If the slave is to be surrendered, it can be of but little consequence to him or to others by which authority it is done. And should anyone in any case be content that his oath shall go unkept on a merely unsubstantial controversy as to how it shall be kept?

Again: In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave? And might it not be well at the same time to provide by law for the enforcement of that clause in the Constitution which guarantees that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”?

I take the official oath to-day with no mental reservations and with no purpose to construe the Constitution or laws by any hypercritical rules; and while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional.

It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have in succession administered the executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, heretofore only menaced, is now formidably attempted.

I hold that in contemplation of universal law and of the Constitution the Union of these S[t]ates is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the Edition: current; Page: [36] contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.

In doing this there needs to be no bloodshed or violence, and there shall be none unless it be forced upon the national authority. The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States in any interior locality shall be so great and universal as to prevent competent resident citizens from holding the Federal offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating and so nearly impracticable withal that I deem it better to forego for the time the uses of such offices.

The mails, unless repelled, will continue to be furnished in all parts of the Union. So far as possible the people everywhere shall have that sense of perfect security which is most favorable to calm thought and reflection. The course here indicated will be followed unless current events and experience shall show a modification or change to be proper, and in every case and exigency my best discretion will be exercised, according to circumstances actually existing and with a view and a hope of a peaceful solution of the national troubles and the restoration of fraternal sympathies and affections.

That there are persons in one section or another who seek to destroy the Union at all events and are glad of any pretext to do it I will neither affirm nor deny; but if there be such, I need address no word to them. To those, however, who really love the Union may I not speak?

Before entering upon so grave a matter as the destruction of our national fabric, with all its benefits, its memories, and its hopes, would it not be wise to ascertain precisely why we do it? Will you hazard so desperate a step while there is any possibility that any portion of the ills you fly from have no real existence? Will you, while the certain ills you fly to are greater than all the real ones you fly from, will you risk the commission of so fearful a mistake?

All profess to be content in the Union if all constitutional rights can be maintained. Is it true, then, that any right plainly written in the Constitution has been denied? I think not. Happily, the human mind is so constituted that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

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I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended. This is the only substantial dispute. The fugitive-slave clause of the Constitution and the law for the suppression of the foreign slave trade are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, can not be perfectly cured, and it would be worse in both cases after the separation of the sections than before. The foreign slave trade, now imperfectly suppressed, would be ultimately revived without restriction in one section, while fugitive slaves, now only partially surrendered, would not be surrendered at all by the other.

Physically speaking, we can not separate. We can not remove our respective sections from each other nor build an impassable wall between them. A husband and wife may be divorced and go out of the presence and beyond the reach of each other, but the different parts of our country can not do this. They can not but remain face to face, and intercourse, either amicable or hostile, must continue between them. Is it possible, then, to make that intercourse more advantageous or more satisfactory after separation than before? Can aliens make treaties easier than friends can make laws? Can treaties be more faithfully enforced between aliens than laws can among friends? Suppose you go to war, you can not fight always; and when, after much loss on both sides and no gain on either, you cease fighting, the identical old questions, as to terms of intercourse, are again upon you.

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. I can not be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse. I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose now to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor.

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the Edition: current; Page: [38] North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.

By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years.

My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. Such of you as are now dissatisfied still have the old Constitution unimpaired, and, on the sensitive point, the laws of your own framing under it; while the new Administration will have no immediate power, if it would, to change either. If it were admitted that you who are dissatisfied hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty.

In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to “preserve, protect, and defend it.”

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

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  • Proclamation Calling the Militia and Convening Congress, Abraham Lincoln, 1861
  • Proclamation of Blockade against Southern Ports, Abraham Lincoln, 1861
  • Message to Congress in Special Session, Abraham Lincoln, 1861

When secessionist forces fired on Fort Sumter on April 12, 1861, Congress was not in session. At this time the federal army numbered at most 16,000 men, making it necessary for the federal government, if it wished to prosecute a war, to call upon the states, with their large, if ill-trained and ill-equipped, militias (today’s National Guard) for troops. Within three days President Lincoln commenced calling up the militia. He also called Congress—specifically authorized under Article I, Section 8 of the Constitution to raise and support armies—into special session, but not until July 4. In the meantime Lincoln declared a blockade of Southern ports. Normally, blockades were issued only against foreign nations, so Lincoln’s action in effect recognized the South’s separate status from the Union. Such a move was necessary, however, if the North was to stop the South from receiving supplies from countries, such as Great Britain, that had refused to abide by any lesser move declaring Southern ports closed to foreign commerce.

Lincoln’s actions were not everywhere greeted with praise. Some in the North argued he had asked for too few troops, yet four Southern states that until then had remained in the Union seceded immediately upon learning that their militia would be required to join in fighting secessionists. Questions concerning Lincoln’s use of war powers were raised consistently during the war and after. His Message to Congress outlined his view of the war’s opening, including the circumstances surrounding the surrender of Fort Sumter and his view that the individual states had only those powers reserved to them in the Constitution.

Proclamation Calling the Militia and Convening Congress

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

Whereas the laws of the United States have been, for some time past, and now are opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law:

Now, therefore, I, ABRAHAM LINCOLN, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed.

The details for this object will be immediately communicated to the State authorities through the War Department.

I appeal to all loyal citizens to favor, facilitate, and aid this Edition: current; Page: [40] effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long enough endured.

I deem it proper to say that the first service assigned to the forces hereby called forth will probably be to repossess the forts, places, and property which have been seized from the Union; and in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens in any part of the country.

And I hereby command the persons composing the combinations aforesaid to disperse, and retire peaceably to their respective abodes within twenty days from this date.

Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the Constitution, convene both Houses of Congress. Senators and Representatives are therefore summoned to assemble at their respective chambers, at twelve o’clock, noon, on Thursday, the fourth day of July next, then and there to consider and determine such measures as, in their wisdom, the public safety and interest may seem to demand.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington, this fifteenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and of the Independence of the United States the eighty-fifth.

[l. s.] ABRAHAM LINCOLN.

Proclamation of Blockade against Southern Ports

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

Whereas an insurrection against the Government of the United States has broken out in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and the laws of the United States for the collection of the revenue cannot be effectually executed therein conformably to that provision of the Constitution which requires duties to be uniform throughout the United States:

And whereas a combination of persons, engaged in such insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in commerce on the high seas, and in waters of the United States:

And whereas an Executive Proclamation has been already issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, calling out a militia force for the purpose of repressing the same, and convening Congress in extraordinary session to deliberate and determine thereon:

Now, therefore, I, ABRAHAM LINCOLN, President of the United States, with a view to the same purposes before mentioned, and to the protection of the public peace, and the lives and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliberated on the said unlawful proceedings, or until the same shall have ceased, have further deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States and of the law of nations in such case provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave either of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning, and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo as prize, as may be deemed advisable.

And I hereby proclaim and declare that if any person, under the pretended authority of the said States, or under any other pretence, shall molest a vessel of the United States, or the persons or cargo on board of her, such person will be held amenable to the laws of the United States for the prevention and punishment of piracy.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the city of Washington, this nineteenth day of April, in the year of our Lord one thousand eight hundred Edition: current; Page: [41] and sixty-one, and of the Independence of the United States the eighty-fifth.

[l. s.] ABRAHAM LINCOLN.

Message to Congress in Special Session

Abraham Lincoln
Fellow-citizens of the Senate and House of Representatives:

Having been convened on an extraordinary occasion, as authorized by the Constitution, your attention is not called to any ordinary subject of legislation.

At the beginning of the present Presidential term, four months ago, the functions of the Federal Government were found to be generally suspended within the several States of South Carolina, Georgia, Alabama, Mississippi, Louisiana, and Florida, excepting only those of the Post Office Department.

Within these States, all the Forts, Arsenals, Dock-yards, Custom-houses, and the like, including the movable and stationary property in, and about them, had been seized, and were held in open hostility to this Government, excepting only Forts Pickens, Taylor, and Jefferson, on, and near the Florida coast, and Fort Sumter, in Charleston harbor, South Carolina. The Forts thus seized had been put in improved condition; new ones had been built; and armed forces had been organized, and were organizing, all avowedly with the same hostile purpose.

The Forts remaining in the possession of the Federal government, in, and near, these States, were either besieged or menaced by warlike preparations; and especially Fort Sumter was nearly surrounded by well-protected hostile batteries, with guns equal in quality to the best of its own, and outnumbering the latter as perhaps ten to one. A disproportionate share, of the Federal muskets and rifles, had somehow found their way into these States, and had been seized, to be used against the government. Accumulations of the public revenue, lying within them, had been seized for the same object. The Navy was scattered in distant seas; leaving but a very small part of it within the immediate reach of the government. Officers of the Federal Army and Navy, had resigned in great numbers; and, of those resigning, a large proportion had taken up arms against the government. Simultaneously, and in connection, with all this, the purpose to sever the Federal Union, was openly avowed. In accordance with this purpose, an ordinance had been adopted in each of these States, declaring the States, respectively, to be separated from the National Union. A formula for instituting a combined government of these states had been promulgated; and this illegal organization, in the character of confederate States was already invoking recognition, aid, and intervention, from Foreign Powers.

Finding this condition of things, and believing it to be an imperative duty upon the incoming Executive, to prevent, if possible, the consummation of such attempt to destroy the Federal Union, a choice of means to that end became indispensable. This choice was made; and was declared in the Inaugural address. The policy chosen looked to the exhaustion of all peaceful measures, before a resort to any stronger ones. It sought only to hold the public places and property, not already wrested from the Government, and to collect the revenue; relying for the rest, on time, discussion, and the ballot-box. It promised a continuance of the mails, at government expense, to the very people who were resisting the government; and it gave repeated pledges against any disturbance to any of the people, or any of their rights. Of all that which a president might constitutionally, and justifiably, do in such a case, everything was foreborne, without which, it was believed possible to keep the government on foot.

On the 5th of March, (the present incumbent’s first full day in office) a letter of Major Anderson, commanding at Fort Sumter, written on the 28th of February, and received at the War Department on the 4th of March, was, by that Department, placed in his hands. This letter expressed the professional opinion of the writer, that re-inforcements could not be thrown into that Fort within the time for his relief, rendered necessary by the limited supply of provisions, and with a view of holding possession of the same, with a force of less than twenty thousand good, and well-disciplined men. This opinion was concurred in by all the officers of his command; and their memoranda on the subject, were made enclosures of Major Anderson’s letter. The whole was immediately laid before Lieutenant General Scott, who at once concurred with Major Anderson in opinion. On reflection, however, he took full time, consulting with others upon the country, the distinct issue: “Immediate dissolution, or blood.”

And this issue embraces more than the fate of these United Edition: current; Page: [42] States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy—a government of the people, by the same people—can, or cannot, maintain its territorial integrity, against its own domestic foes. It presents the question, whether discontented individuals, too few in numbers to control administration, according to organic law, in any case, can always, upon the pretences made in this case, or on any other pretences, or arbitrarily, without any pretence, break up their Government, and thus practically put an end to free government upon the earth. It forces us to ask: “Is there, in all republics, this inherent, and fatal weakness?” “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”

So viewing the issue, no choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation.

The call was made; and the response of the country was most gratifying; surpassing, in unanimity and spirit, the most sanguine expectation. Yet none of the States commonly called Slave-states, except Delaware, gave a Regiment through regular State organization. A few regiments have been organized within some others of those states, by individual enterprise, and received into the government service. Of course the seceded States, so called, (and to which Texas had been joined about the time of the inauguration,) gave no troops to the cause of the Union. The border States, so called, were not uniform in their actions; some of them being almost for the Union, while in others—as Virginia, North Carolina, Tennessee, and Arkansas—the Union sentiment was nearly repressed, and silenced. The course taken in Virginia was the most remarkable—perhaps the most important. A convention, elected by the people of that State, to consider this very question of disrupting the Federal Union, was in session at the capital of Virginia when Fort Sumter fell. To this body the people had chosen a large majority of professed Union men. Almost immediately after the fall of Sumter, many members of that majority went over to the original disunion minority, and, with them, adopted an ordinance for withdrawing the State from the Union. Whether this change was wrought by their great approval of the assault upon Sumter, or their great resentment at the government’s resistance to that assault, is not definitely known. Although they submitted the ordinance, for ratification, to a vote of the people, to be taken on a day then somewhat more than a month distant, the convention, and the Legislature, (which was also in session at the same time and place) with leading men of the State, not members of either, immediately commenced acting, as if the State were already out of the Union. They pushed military preparations vigorously forward all over the state. They seized the United States Armory at Harper’s Ferry, and the Navy-yard at Gosport, near Norfolk. They received—perhaps invited—into their state, large bodies of troops, with their warlike appointments, from the so-called seceded States. They formally entered into a treaty of temporary alliance, and co-operation with the so-called “Confederate States,” and sent members to their Congress at Montgomery. And, finally, they permitted the insurrectionary government to be transferred to their capital at Richmond.

The people of Virginia have thus allowed this giant insurrection to make its nest within her borders; and this government has no choice left but to deal with it, where it finds it. And it has the less regret, as the loyal citizens have, in due form, claimed its protection. Those loyal citizens, this government is bound to recognize, and protect, as being Virginia.

In the border States, so called—in fact, the middle states—there are those who favor a policy which they call “armed neutrality”—that is, an arming of those states to prevent the Union forces passing one way, or the disunion, the other, over their soil. This would be disunion completed. Figuratively speaking, it would be the building of an impassable wall along the line of separation. And yet, not quite an impassable one; for, under the guise of neutrality, it would tie the hands of the Union men, and freely pass supplies from among them, to the insurrectionists, which it could not do as an open enemy. At a stroke, it would take all the trouble off the hands of secession, except only what proceeds from the external blockade. It would do for the disunionists that which, of all things, they most desire—feed them well, and give them disunion without a struggle of their own. It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while very many who have favored it are, doubtless, loyal citizens, it is, nevertheless, treason in effect.

Recurring to the action of the government, it may be stated that, at first, a call was made for seventy-five thousand militia; and rapidly following this, a proclamation was issued for closing the ports of the insurrectionary districts by proceedings in the nature of Blockade. So far all was believed to be strictly legal. At this point the insurrectionists announced their purpose to enter upon the practice of privateering.

Other calls were made for volunteers, to serve three years, unless sooner discharged; and also for large additions to the Edition: current; Page: [43] regular Army and Navy. These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.

Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus; or, in other words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it, are questioned; and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course some consideration was given to the questions of power, and propriety, before this matter was acted upon. The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “The privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,” is equivalent to a provision—is a provision—that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergeny, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.

No more extended argument is now offered; as an opinion, at some length, will probably be presented by the Attorney General. Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress.

The forbearance of this government had been so extraordinary, and so long continued, as to lead some foreign nations to shape their action as if they supposed the early destruction of our national Union was probable. While this, on discovery, gave the Executive some concern, he is now happy to say that the sovereignty, and rights of the United States, are now everywhere practically respected by foreign powers; and a general sympathy with the country is manifested throughout the world.

The reports of the Secretaries of the Treasury, War, and the Navy, will give the information in detail deemed necessary, and convenient for your deliberation, and action; while the Executive, and all the Departments, will stand ready to supply omissions, or to communicate new facts, considered important for you to know.

It is now recommended that you give the legal means for making this contest a short, and a decisive one; that you place at the control of the government, for the work, at least four hundred thousand men, and four hundred millions of dollars. That number of men is about one tenth of those of proper ages within the regions where, apparently, all are willing to engage; and the sum is less than a twentythird part of the money value owned by the men who seem ready to devote the whole. A debt of six hundred millions of dollars now, is a less sum per head, than was the debt of our revolution, when we came out of that struggle; and the money value in the country now, bears even a greater proportion to what it was then, than does the population. Surely each man has as strong a motive now, to preserve our liberties, as each had then, to establish them.

A right result, at this time, will be worth more to the world, than ten times the men, and ten times the money. The evidence reaching us from the country, leaves no doubt, that the material for the work is abundant; and that it needs only the hand of legislation to give it legal sanction, and the hand of the Executive to give it practical shape and efficiency. One Edition: current; Page: [44] of the greatest perplexities of the government, is to avoid receiving troops faster than it can provide for them. In a word, the people will save their government, if the government itself, will do its part, only indifferently well.

It might seem, at first thought, to be of little difference whether the present movement at the South be called “secession” or “rebellion.” The movers, however, well understand the difference. At the beginning, they knew they could never raise their treason to any respectable magnitude, by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in, and reverence for, the history, and government, of their common country, as any other civilized, and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

With rebellion thus sugar-coated, they have been drugging the public mind of their section for more than thirty years; and, until at length, they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretence of taking their State out of the Union, who could have been brought to no such thing the day before.

This sophism derives much—perhaps the whole—of its currency, from the assumption, that there is some omnipotent, and sacred supremacy, pertaining to a State—to each State of our Federal Union. Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States, on coming into the Union, while that name was first adopted for the old ones, in, and by, the Declaration of Independence. Therein the “United Colonies” were declared to be “Free and Independent States”; but, even then, the object plainly was not to declare their independence of one another, or of the Union; but directly the contrary, as their mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show. The express plighting of faith, by each and all of the original thirteen, in the Articles of Confederation, two years later, that the Union shall be perpetual, is most conclusive. Having never been States, either in substance, or in name, outside of the Union, whence this magical omnipotence of “State rights,” asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty” of the States; but the word, even, is not in the national Constitution; nor, as is believed, in any of the State constitutions. What is a “sovereignty,” in the political sense of the term? Would it be far wrong to define it “A political community, without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be, for her, the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are. Not one of them ever had a State constitution, independent of the Union. Of course, it is not forgotten that all the new States framed their constitutions, before they entered the Union; nevertheless, dependent upon, and preparatory to, coming into the Union.

Unquestionably the States have the powers, and rights, reserved to them in, and by the National Constitution; but among these, surely, are not included all conceivable powers, however mischievous, or destructive; but, at most, such only, as were known in the world, at the time, as governmental powers; and certainly, a power to destroy the government itself, had never been known as a governmental—as a merely administrative power. This relative matter of National power, Edition: current; Page: [45] and State rights, as a principle, is no other than the principle of generality, and locality. Whatever concerns the whole, should be confided to the whole—to the general government; while, whatever concerns only the State, should be left exclusively, to the State. This is all there is of original principle about it. Whether the National Constitution, in defining boundaries between the two, has applied the principle with exact accuracy, is not to be questioned. We are all bound by that defining, without question.

What is now combatted, is the position that secession is consistent with the Constitution—is lawful, and peaceful. It is not contended that there is any express law for it; and nothing should ever be implied as law, which leads to unjust, or absurd consequences. The nation purchased, with money, the countries out of which several of these States were formed. Is it just that they shall go off without leave, and without refunding? The nation paid very large sums, (in the aggregate, I believe, nearly a hundred millions) to relieve Florida of the aboriginal tribes. Is it just that she shall now be off without consent, or without making any return? The nation is now in debt for money applied to the benefit of these so-called seceding States, in common with the rest. Is it just, either that creditors shall go unpaid, or the remaining States pay the whole? A part of the present national debt was contracted to pay the old debts of Texas. Is it just that she shall leave, and pay no part of this herself?

Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money? If we now recognize this doctrine, by allowing the seceders to go in peace, it is difficult to see what we can do, if others choose to go, or to extort terms upon which they will promise to remain.

The seceders insist that our Constitution admits of secession. They have assumed to make a National Constitution of their own, in which, of necessity, they have either discarded, or retained, the right of secession, as they insist, it exists in ours. If they have discarded it, they thereby admit that, on principle, it ought not to be in ours. If they have retained it, by their own construction of ours they show that to be consistent they must secede from one another, whenever they shall find it the easiest way of settling their debts, or effecting any other selfish, or unjust object. The principle itself is one of disintegration, and upon which no government can possibly endure.

If all the States, save one, should assert the power to drive that one out of the Union, it is presumed the whole class of seceder politicians would at once deny the power, and denounce the act as the greatest outrage upon State rights. But suppose that precisely the same act, instead of being called “driving the one out,” should be called “the seceding of the others from that one,” it would be exactly what the seceders claim to do; unless, indeed, they make the point, that the one, because it is a minority, may rightfully do, what the others, because they are a majority, may not rightfully do. These politicians are subtle, and profound, on the rights of minorities. They are not partial to that power which made the Constitution, and speaks from the preamble, calling itself “We, the People.”

It may well be questioned whether there is, to-day, a majority of the legally qualified voters of any State, except perhaps South Carolina, in favor of disunion. There is much reason to believe that the Union men are the majority in many, if not in every other one, of the so-called seceded States. The contrary has not been demonstrated in any one of them. It is ventured to affirm this, even of Virginia and Tennessee; for the result of an election, held in military camps, where the bayonets are all on one side of the question voted upon, can scarcely be considered as demonstrating popular sentiment. At such an election, all that large class who are, at once, for the Union, and against coercion, would be coerced to vote against the Union.

It may be affirmed, without extravagance, that the free institutions we enjoy, have developed the powers, and improved the condition, of our whole people, beyond any example in the world. Of this we now have a striking, and an impressive illustration. So large an army as the government has now on foot, was never before known, without a soldier in it, but who had taken his place there, of his own free choice. But more than this: there are many single Regiments whose members, one and another, possess full practical knowledge of all the arts, sciences, professions, and whatever else, whether useful or elegant, is known in the world; and there is scarcely one, from which there could not be selected, a President, a Cabinet, a Congress, and perhaps a Court, abundantly competent to administer the government itself. Nor do I say this is not true, also, in the army of our late friends, now adversaries, in this contest; but if it is, so much better the reason why the government, which has conferred such benefits on both them and us, should not be broken up. Whoever, in any section, proposes to abandon such a government, would do well to consider, in deference to what principle it is, that he does it—what better he is likely to get in its stead—whether Edition: current; Page: [46] the substitute will give, or be intended to give, so much of good to the people. There are some foreshadowings on this subject. Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words “all men are created equal.” Why? They have adopted a temporary national constitution, in the preamble of which, unlike our good old one, signed by Washington, they omit “We, the People,” and substitute “We, the deputies of the sovereign and independent States.” Why? Why this deliberate pressing out of view, the rights of men, and the authority of the people?

This is essentially a People’s contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men—to lift artificial weights from all shoulders—to clear the paths of laudable pursuit for all—to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial, and temporary departures, from necessity, this is the leading object of the government for whose existence we contend.

I am most happy to believe that the plain people understand, and appreciate this. It is worthy of note, that while in this, the government’s hour of trial, large numbers of those in the Army and Navy, who have been favored with the offices, have resigned, and proved false to the hand which had pampered them, not one common soldier, or common sailor is known to have deserted his flag.

Great honor is due to those officers who remain true, despite the example of their treacherous associates; but the greatest honor, and most important fact of all, is the unanimous firmness of the common soldiers, and common sailors. To the last man, so far as known, they have successfully resisted the traitorous efforts of those, whose commands, but an hour before, they obeyed as absolute law. This is the patriotic instinct of the plain people. They understand, without an argument, that destroying the government, which was made by Washington, means no good to them.

Our popular government has often been called an experiment. Two points in it, our people have already settled—the successful establishing, and the successful administering of it. One still remains—its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion—that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.

Lest there be some uneasiness in the minds of candid men, as to what is to be the course of the government, towards the Southern States, after the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever, to be guided by the Constitution, and the laws; and that he probably will have no different understanding of the powers, and duties of the Federal government, relatively to the rights of the States, and the people, under the Constitution, than that expressed in the inaugural address.

He desires to preserve the government, that it may be administered for all, as it was administered by the men who made it. Loyal citizens everywhere, have the right to claim this of their government; and the government has no right to withhold, or neglect it. It is not perceived that, in giving it, there is any coercion, any conquest, or any subjugation, in any just sense of those terms.

The Constitution provides, and all the States have accepted the provision, that “The United States shall guarantee to every State in this Union a republican form of government.” But, if a State may lawfully go out of the Union, having done so, it may also discard the republican form of government; so that to prevent its going out, is an indispensable means, to the end, of maintaining the guaranty mentioned; and when an end is lawful and obligatory, the indispensable means to it, are also lawful, and obligatory.

It was with the deepest regret that the Executive found the duty of employing the war-power, in defence of the government, forced upon him. He could but perform this duty, or surrender the existence of the government. No compromise, by public servants, could, in this case, be a cure; not that compromises are not often proper, but that no popular government can long survive a marked precedent, that those who carry an election, can only save the government from immediate destruction, by giving up the main point, upon which the people gave the election. The people themselves, and not their servants, can safely reverse their own deliberate decisions. As a private citizen, the Executive could not have consented that these institutions shall perish; much less could he, in betrayal of so vast, and so sacred a trust, as these free people had confided to him. He felt that he had no moral right to Edition: current; Page: [47] shrink; nor even to count the chances of his own life, in what might follow. In full view of his great responsibility, he has, so far, done what he has deemed his duty. You will now, according to your own judgment, perform yours. He sincerely hopes that your views, and your action, may so accord with his, as to assure all faithful citizens, who have been disturbed in their rights, of a certain, and speedy restoration to them, under the Constitution, and the laws.

And having thus chosen our course, without guile, and with pure purpose, let us renew our trust in God, and go forward without fear, and with manly hearts.

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  • Proclamation Suspending Writ of Habeas Corpus, Abraham Lincoln, 1863

In response to rioting in Baltimore, along the most important railroad supply line into Washington, D.C., Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus, allowing him to imprison suspected subversives without charge. Lincoln later would expand this suspension to other areas. Supreme Court chief justice Roger Taney (sitting as an appellate court judge) declared Lincoln’s suspension of the writ of habeas corpus unconstitutional in ex parte Merryman—a decision that was ignored. Congress did not immediately embrace Lincoln’s suspension of habeas corpus, taking no action in regard to it until, in 1863, it gave its authorization and set guidelines for future suspensions.

Proclamation Suspending Writ of Habeas Corpus

Abraham Lincoln

by the president of the united states of america.
a proclamation.

Whereas the Constitution of the United States has ordained that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it; and

Whereas a rebellion was existing on the 3d day of March, 1863, which rebellion is still existing; and

Whereas by a statute which was approved on that day it was enacted by the Senate and House of Representatives of the United States in Congress assembled that during the present insurrection the President of the United States, whenever in his judgment the public safety may require, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof; and

Whereas, in the judgment of the President, the public safety does require that the privilege of the said writ shall now be suspended throughout the United States in the cases where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law or the rules and articles of war or the rules or regulations prescribed for the military or naval services by authority of the President of the United States, or for resisting a draft, or for any other offense against the military or naval service:

Now, therefore, I, Abraham Lincoln, President of the United States, do hereby proclaim and make known to all whom it may concern that the privilege of the writ of habeas corpus is suspended throughout the United States in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion or until this proclamation shall, by a subsequent one to be issued by the President of the United States, be modified or revoked. And I do hereby require all magistrates, attorneys, and other civil officers within the United States and all officers and Edition: current; Page: [49] others in the military and naval services of the United States to take distinct notice of this suspension and to give it full effect, and all citizens of the United States to conduct and govern themselves accordingly and in conformity with the Constitution of the United States and the laws of Congress in such case made and provided.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed this 15th day of September ad 1863, and of the Independence of the United States of America the eighty-eighth.

[seal.] ABRAHAM LINCOLN.
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  • Message to Congress on Gradual Abolishment of Slavery, Abraham Lincoln, 1862
  • Proclamation Revoking General Hunter’s Emancipation Order, Abraham Lincoln, 1862
  • Emancipation Proclamation—1862, Abraham Lincoln
  • Emancipation Proclamation—1863, Abraham Lincoln

Lincoln’s opposition to the institution of slavery was well known; he had first proposed a plan for gradual emancipation in 1849. But he did not portray the war as one intended to free the slaves. Indeed, fearing lest border, slaveholding states might secede, he repeatedly denied that such was his goal. But Congress itself, in the Confiscation Act of 1861, had authorized emancipation of slaves used in the Confederate war effort. When General John C. Frémont, Union commander in the Western Division, declared all slaves in Missouri “forever free,” Lincoln asked Frémont to limit his action to conform with the Confiscation Act. Frémont refusing, Lincoln, on August 30, 1861, revoked the proclamation and relieved him of command. Increasingly, however, Lincoln embraced limited forms of emancipation as a means of preserving the Union, thus delivering speeches such as that of March 6, 1862, reproduced here.

On May 9 of the following year, General David Hunter, commanding federal forces holding a series of Union-controlled enclaves along the South Atlantic coast, issued a proclamation declaring every slave in South Carolina, Georgia, and Florida to be free and eligible for military service. Like Frémont, Hunter claimed that his action was one of military necessity. But Lincoln reserved decisions of this magnitude for himself. Moreover, Lincoln had already made at least two appeals to border states to accept compensated emancipation, a policy he deemed less likely to win favor if Hunter’s actions were allowed to stand. But his third appeal, made at a meeting between Lincoln and border state leaders on July 12, 1862, also met with rejection. It was in this context that Lincoln decided to issue his Preliminary Emancipation Proclamation. Lincoln waited for a Union victory on the battlefield, which he felt he had after the Battle of Antietam, and then informed Confederate states, through his Preliminary Proclamation, that he would free all slaves in those states still in rebellion, as of January 1, 1863. The Emancipation Proclamation made good on this word, at least officially. The Proclamation declared free only those slaves essentially out of reach of Union forces, leaving all others in bondage. The Proclamation did, however, spawn a flood of slave escapes and was part of a wider movement toward emancipation that culminated in the Thirteenth Amendment.

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Message to Congress on Gradual Abolishment of Slavery

Abraham Lincoln

GRADUAL ABOLISHMENT OF SLAVERY.

MESSAGE from the PRESIDENT OF THE UNITED STATES, in relation to Co-operating with any State for the gradual abolishment of slavery.

March 6, 1862—Committed to the Committee of the Whole House on the state of the Union, and ordered to be printed.

Fellow-citizens of the Senate and House of Representatives:

I recommend the adoption of a joint resolution by your honorable bodies, which shall be substantially as follows:

Resolved, That the United States ought to co-operate with any State which may adopt gradual abolishment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.”

If the proposition contained in the resolution does not meet the approval of Congress and the country, there is the end; but if it does command such approval, I deem it of importance that the States and people immediately interested should be at once distinctly notified of the fact, so that they may begin to consider whether to accept or reject it. The federal government would find its highest interest in such a measure, as one of the most efficient means of self-preservation. The leaders of the existing insurrection entertain the hope that this government will ultimately be forced to acknowledge the independence of some part of the disaffected region, and that all the slave States north of such part will then say, “the Union for which we have struggled being already gone, we now choose to go with the southern section.” To deprive them of this hope substantially ends the rebellion; and the initiation of emancipation completely deprives them of it as to all the States initiating it. The point is not that all the States tolerating slavery would very soon, if at all, initiate emancipation, but that while the offer is equally made to all, the more northern shall, by such initiation, make it certain to the more southern that in no event will the former ever join the latter in their proposed confederacy. I say “initiation,” because in my judgment gradual, and not sudden, emancipation is better for all. In the mere financial or pecuniary view, any member of Congress, with the census tables and treasury reports before him, can readily see for himself how very soon the current expenditures of this war would purchase, at fair valuation, all the slaves in any named State. Such a proposition on the part of the general government sets up no claim of a right by federal authority to interfere with slavery within State limits, referring as it does the absolute control of the subject in each case to the State and its people immediately interested. It is proposed as a matter of perfectly free choice with them.

In the annual message last December I thought fit to say “the Union must be preserved; and hence all indispensable means must be employed.” I said this not hastily, but deliberately. War has been made, and continues to be, an indispensable means to this end. A practical re-acknowledgment of the national authority would render the war unnecessary, and it would at once cease. If, however, resistance continues, the war must also continue; and it is impossible to foresee all the incidents which may attend and all the ruin which may follow it. Such as may seem indispensable, or may obviously promise great efficiency towards ending the struggle, must and will come.

The proposition now made, though an offer only, I hope it may be esteemed no offence to ask whether the pecuniary Edition: current; Page: [52] consideration tendered would not be of more value to the States and private persons concerned than are the institution and property in it, in the present aspect of affairs?

While it is true that the adoption of the proposed resolution would be merely initiatory, and not within itself a practical measure, it is recommended in the hope that it would soon lead to important practical results. In full view of my great responsibility to my God and to my country, I earnestly beg the attention of Congress and the people to the subject.

ABRAHAM LINCOLN.

Proclamation Revoking General Hunter’s Emancipation Order

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

Whereas there appears in the public prints what purports to be a proclamation of Major General Hunter, in the words and figures following, to wit:

General Orders No. 11.—The three States of Georgia, Florida, and South Carolina, comprising the military department of the South, having deliberately declared themselves no longer under the protection of the United States of America, and having taken up arms against the said United States, it becomes a military necessity to declare them under martial law. This was accordingly done on the 25th day of April, 1862. Slavery and martial law in a free country are altogether incompatible; the persons in these three States—Georgia, Florida, and South Carolina—heretofore held as slaves, are therefore declared forever free.

(Official) David Hunter,
Major General Commanding.
Ed. W. Smith, Acting Assistant Adjutant Gen’l.

And whereas the same is producing some excitement and misunderstanding, therefore,

I, ABRAHAM LINCOLN, President of the United States, proclaim and declare, that the Government of the United States had no knowledge, information, or belief, of an intention on the part of General Hunter to issue such a proclamation; nor has it yet any authentic information that the document is genuine. And further, that neither General Hunter, nor any other commander, or person, has been authorized by the Government of the United States to make proclamations declaring the slaves of any State free; and that the supposed proclamation, now in question, whether genuine or false, is altogether void, so far as respects such declaration.

I further make known that whether it be competent for me, as Commander-in-Chief of the Army and Navy, to declare the slaves of any State or States free, and whether, at any time, in any case, it shall have become a necessity indispensable to the maintenance of the Government, to exercise such supposed power, are questions which, under my responsibility, I reserve to myself, and which I cannot feel justified in leaving to the decision of commanders in the field. These are totally different questions from those of police regulations in armies and camps.

On the sixth day of March last, by a special message, I recommended to Congress the adoption of a joint resolution to be substantially as follows:

Resolved, That the United States ought to coöperate with any State which may adopt a gradual abolishment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.

The resolution, in the language above quoted, was adopted by large majorities in both branches of Congress, and now stands an authentic, definite, and solemn proposal of the nation to the States and people most immediately interested in the subject matter. To the people of those States I now earnestly appeal—I do not argue—I beseech you to make the arguments for yourselves—You cannot, if you would, be blind to the signs of the times—I beg of you a calm and enlarged consideration of them, ranging, if it may be, far above personal and partisan politics. This proposal makes common cause for a common object, casting no reproaches upon any. It acts not the Pharisee. The change it contemplates would come gently as the dews of heaven, not rending or wrecking anything. Will you not embrace it? So much good has not been done, by one effort, in all past time, as, in the providence Edition: current; Page: [53] of God, it is now your high privilege to do. May the vast future not have to lament that you have neglected it.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this nineteenth day of May, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-sixth.

[seal.] ABRAHAM LINCOLN.

Emancipation Proclamation

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

I, Abraham Lincoln, President of the United States of America, and commander-in-chief of the army and navy thereof, do hereby proclaim and declare that hereafter, as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States and each of the states and the people thereof, in which states that relation is or may be suspended or disturbed.

That it is my purpose, upon the next meeting of Congress, to again recommend the adoption of a practical measure tendering pecuniary aid to the free acceptance or rejection of all slave states, so called, the people whereof may not then be in rebellion against the United States, and which states may then have voluntarily adopted, or thereafter may voluntarily adopt, immediate or gradual abolishment of slavery within their respective limits; and that the effort to colonize persons of African descent with their consent upon this continent or elsewhere, with the previously obtained consent of the governments existing there, will be continued.

That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any state or designated part of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

That the Executive will, on the first day of January aforesaid, by proclamation, designate the states and parts of states, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such state shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such state, and the people thereof, are not then in rebellion against the United States.

That attention is hereby called to an act of Congress entitled “An act to make an additional article of war,” approved March 13, 1862, and which act is in the words and figure following:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war, for the government of the army of the United States, and shall be obeyed and observed as such:

Article—. All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service.

Sec. 2. And be it further enacted, That this act shall take effect from and after its passage.”

Also to the ninth and tenth sections of an act entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate property of rebels, and for other purposes,” approved July 17, 1862, and which sections are in the words and figures following:

Sec. 9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them, and coming Edition: current; Page: [54] under the control of the Government of the United States; and all slaves of such persons found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.

Sec. 10. And be it further enacted, That no slave escaping into any state, territory, or the District of Columbia, from any other state, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offence against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service.”

And I do hereby enjoin upon and order all persons engaged in the military and naval service of the United States to observe, obey, and enforce, within their respective spheres of service, the act and sections above recited.

And the Executive will in due time recommend that all citizens of the United States who shall have remained loyal thereto throughout the rebellion shall (upon the restoration of the constitutional relation between the United States and their respective states and people, if that relation shall have been suspended or disturbed) be compensated for all losses by acts of the United States, including the loss of slaves.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the city of Washington this twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.

[l. s.] ABRAHAM LINCOLN.

Emancipation Proclamation

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any state or designated part of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever, free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

“That the Executive will, on the first day of January aforesaid, by proclamation, designate the states and parts of states, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any state, or the people thereof, shall on that day be in good faith represented in the Congress of the United States, by members chosen thereto at elections wherein a majority of the qualified voters of such states shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such state, and the people thereof, are not then in rebellion against the United States.”

Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as commander-in-chief of the army and navy of the United States, in time of actual armed rebellion against the authority and Government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate as the states and parts of states wherein the people thereof, respectively, Edition: current; Page: [55] are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terre Bonne, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans,) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth,) and which excepted parts are for the present left precisely as if this proclamation were not issued.

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated states and parts of states are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known that such persons, of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the United States of America the eighty-seventh.

[l.s.] ABRAHAM LINCOLN.
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  • Gettysburg Address, Abraham Lincoln, 1863

One of the most famous speeches in American history, The Gettysburg Address was not even the main attraction of the event at which it was delivered. Lincoln was asked to make a few remarks at the official dedication of the cemetery for Union war dead from the battle of Gettysburg. The featured speaker was the then-famous orator, Edward Everett. But it is Lincoln’s speech, now carved on the Lincoln Memorial, which has become the subject of historical study and legend.

The Gettysburg Address

Abraham Lincoln

Address delivered at the dedication of the Cemetery at Gettysburg.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln.
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  • Message to the Congress of Confederate States, Jefferson Davis, 1864
  • Act to Increase the Military Force of the Confederate States, 1865

Founded on the doctrine of states’ rights, the Confederacy found itself engaging in increasingly centralizing conduct over the course of its unsuccessful war of secession. The armies of the Confederate states were outnumbered throughout the war, and the relative numbers became increasingly lopsided in the Union’s favor, with increasing numbers of Confederate soldiers deserting and conscription methods (never popular) becoming increasingly onerous, particularly given the much smaller white population of the Southern states. Confederate president Jefferson Davis repeatedly issued messages and speeches intended to rally the people, restating the principles of the Confederate cause and predicting eventual victory. But conditions continued to worsen, eventually leading to calls for arming African Americans. Some of these proposals included emancipation. All were resisted until very late in the war when General Robert E. Lee, among others, threw his support behind calling on slaves to provide various services to the war effort—including labor, transport, and perhaps even fighting. On February 10, 1865, Congressman Ethelbert Barksdale of Mississippi introduced the act reproduced here. The bill was passed on March 13, succeeding by just one vote in the Confederate Senate. The March 23 executive order implementing the act required that the Confederate government gain the approval of slaves’ masters for their military service.

Message to the Congress of Confederate States

Jefferson Davis
To the Senate and House of Representatives of the Confederate States of America:

You are assembled under circumstances of deep interest to your country, and it is fortunate that coming, as you do, newly elected by the people and familiar with the condition of the various localities, you will be the better able to devise measures adapted to meet the wants of the public service without imposing unnecessary burthens on the citizen. The brief period which has elapsed since the last adjournment of Congress has not afforded sufficient opportunity to test the efficacy of the most important laws then enacted, nor have the events occurring in the interval been such as materially to change the state of the country.

The unjust war commenced against us in violation of the rights of the States, and in usurpation of power not delegated to the Government of the United States, is still characterized by the barbarism with which it has heretofore been conducted by the enemy. Aged men, helpless women and children, appeal in vain to the humanity which should be inspired by their condition for immunity from arrest, incarceration, or banishment from their homes. Plunder and devastation of the property of noncombatants[,] destruction of private dwellings and even of edifices devoted to the worship of God, expeditions organized for the sole purpose of sacking cities, consigning them to the flames, killing the unarmed inhabitants, and inflicting horrible outrages on women and children, are some of the constantly recurring atrocities of the invader. It can not reasonably be pretended that such acts conduce to any end which their authors dare avow before the civilized world, and sooner or later Christendom must mete Edition: current; Page: [58] out to them the condemnation which such brutality deserves. The suffering thus ruthlessly inflicted upon the people of the invaded districts has served but to illustrate their patriotism. Entire unanimity and zeal for their country’s cause have been preeminently conspicuous among those whose sacrifices have been greatest. So the Army, which has borne the trials and dangers of the war, which has been subjected to privations and disappointments (tests of manly fortitude far more severe than the brief fatigues and perils of actual combat), has been the center of cheerfulness and hope. From the camp comes the voice of the soldier patriots invoking each who is at home, in the sphere he best may fill, to devote his whole energies to the support of a cause in the success of which their confidence has never faltered. They, the veterans of many a hard-fought field, tender to their country, without limit of time, a service of priceless value to us, one which posterity will hold in grateful remembrance.

In considering the state of the country, the reflection is naturally suggested that this is the Third Congress of the Confederate States of America. The Provisional Government was formed, its Congress held four sessions, lived its appointed term, and passed away. The Permanent Government was then organized, its different departments established, a Congress elected, which also held four sessions, served its full constitutional term, and expired. You, the Second Congress under the Permanent Government, are now assembled at the time and place appointed by law for commencing your session. All these events have passed into history, notwithstanding the threat of our prompt subjugation, made three years ago, by a people that presume to assert a title to govern States whose separate and independent sovereignty was recognized by treaty with France and Great Britain in the last century and remained unquestioned for nearly three generations. Yet these very Governments, in disregard of duty and treaty obligations which bind them to recognize as independent Virginia and other Confederate States, persist in countenancing by moral influence, if not in aiding by unfair and partial action, the claim set up by the Executive of a foreign Government to exercise despotic sway over the States thus recognized and treat the invasion of them by their former limited and special agent as though it were the attempt of a sovereign to suppress a rebellion against lawful authority. Ungenerous advantage has been taken of our present condition, and our rights have been violated, our vessels of war detained in ports to which they have been invited by proclamations of neutrality, and in one instance our flag also insulted where the sacred right of asylum was supposed to be secure; while one of these Governments has contented itself with simply deprecating, by deferential representations, the conduct of our enemy in the constantly recurring instances of his contemptuous disregard of neutral rights and flagrant violations of public law. It may be that foreign governments, like our enemies, have mistaken our desire for peace, unreservedly expressed, for evidence of exhaustion, and have thence inferred the probability of success in the effort to subjugate or exterminate the millions of human beings who in these States prefer any fate to submission to their savage assailants. I see no prospect of an early change in the course heretofore pursued by these Governments; but when this delusion shall have been dispelled, and when our independence, by the valor and fortitude of our people, shall have been won against all the hostile influences combined against us, and can no longer be ignored by open foes or professed neutrals, this war will have left with its proud memories a record of many wrongs which it may not misbecome us to forgive, some for which we may not properly forbear from demanding redress. In the meantime it is enough for us to know that every avenue of negotiation is closed against us; that our enemy is making renewed and strenuous efforts for our destruction, and that the sole resource for us as a people secure in the justice of our cause, and holding our liberties to be more precious than all other earthly possessions, is to combine and apply every available element of power for their defense and preservation.

On the subject of the exchange of prisoners I greatly regret to be unable to give you satisfactory information. The Government of the United States, while persisting in failure to execute the terms of the cartel, make occasional deliveries of prisoners and then suspend action without apparent cause. I confess my inability to comprehend their policy or purpose. The prisoners held by us, in spite of humane care, are perishing from the inevitable effects of imprisonment and the homesickness produced by the hopelessness of release from confinement. The spectacle of their suffering augments our longing desire to relieve from similar trials our own brave men who have spent so many weary months in a cruel and useless imprisonment, endured with heroic constancy. The delivery, after a suspension of some weeks, has just been resumed by the enemy; but as they give no assurance of intent to carry out the cartel, an interruption of the exchange may recur at any moment.

The reports of the Departments, herewith submitted, are referred to for full information in relation to the matters appertaining to each. There are two of them on which I deem it necessary to make special remark. The report of the Secretary Edition: current; Page: [59] of the Treasury states facts justifying the conclusion that the law passed at the last session for the purpose of withdrawing from circulation the large excess of Treasury notes heretofore issued has had the desired effect, and that by the 1st of July the amount in circulation will have been reduced to a sum not exceeding $230,000,000. It is believed to be of primary importance that no further issue of notes should take place, and that the use of the credit of the Government should be restricted to the two other modes provided by Congress, viz, the sale of bonds and the issue of certificates bearing interest for the price of supplies purchased within our limits. The law as it now stands authorizes the issue by the Treasury of new notes to the extent of two-thirds of the amount received under its provisions. The estimate of the amount funded under the law is shown to be $300,000,000, and if two-thirds of this sum be reissued, we shall have an addition of $200,000,000 to our circulation, believed to be already ample for the business of the country. The addition of this large sum to the volume of the currency would be attended by disastrous effects and would produce the speedy recurrence of the evils from which the funding law has rescued the country. If our arms are crowned with the success which we have so much reason to hope, we may well expect that this war can not be prolonged beyond the current year, and nothing would so much retard the beneficent influence of peace on all the interests of our country as the existence of a great mass of currency not redeemable in coin. With our vast resources the circulation, if restricted to its present volume, would be easily manageable, and by gradual absorption in payment of public dues would give place to the precious metals, the only basis of a currency adapted to commerce with foreign countries. In our present circumstances I know of no mode of providing for the public wants which would entail sacrifices so great as a fresh issue of Treasury notes, and I trust that you will concur in the propriety of absolutely forbidding any increase of those now in circulation.

Officers have been appointed and dispatched to the Trans-Mississippi States, and the necessary measures taken for the execution of the laws enacted to obviate delays in administering the Treasury and other Executive Departments in those States, but sufficient time has not elapsed to ascertain the results.

In relation to the most important of all subjects at the present time—the efficiency of our armies in the field—it is gratifying to assure you that the discipline and instruction of the troops have kept pace with the improvement in material and equipment. We have reason to congratulate ourselves on the results of the legislation on this subject, and on the increased administrative energy in the different bureaus of the War Department, and may not unreasonably indulge anticipations of commensurate success in the ensuing campaign.

The organization of reserves is in progress, and it is hoped they will be valuable in affording local protection without requiring details and detachments from active force.

Among the recommendations contained in the report of the Secretary of War, your attention is specially invited to those in which legislation is suggested on the following subjects, viz:

The tenure of office of the general officers in the Provisional Army, and a proper discrimination in the compensation of the different grades.

The provision required in aid of invalid officers who have resigned in consequence of wounds or sickness contracted while in service.

The amendment of the law which deprives officers in the field of the privilege of purchasing rations, and thus adds to their embarrassment, instead of conferring the benefit intended.

The organization of the general staff of the Army, in relation to which a special message will shortly be addressed to you, containing the reasons which compelled me to withhold my approval of a bill passed by your predecessors at too late a period of the session to allow time for returning it for their reconsideration.

The necessity for an increase in the allowance now made for the transportation of officers traveling under orders.

The mode of providing officers for the execution of the conscript laws.

The means of securing greater dispatch and more regular administration of justice in examining and disposing of the records of cases reported from the courts-martial and military courts in the Army.

The recent events of the war are highly creditable to our troops, exhibiting energy and vigilance combined with the habitual gallantry which they have taught us to expect on all occasions. We have been cheered by important and valuable successes in Florida, northern Mississippi, western Tennessee, and Kentucky, western Louisiana and eastern North Carolina, reflecting the highest honor on the skill and conduct of our commanders and on the incomparable soldiers whom it is their privilege to lead. A naval attack on Mobile was so successfully repulsed at the outer works that the attempt was abandoned, and the nine months’ siege of Charleston has been practically suspended, leaving that noble city and its fortresses Edition: current; Page: [60] imperishable monuments to the skill and fortitude of its defenders. The armies in northern Georgia and northern Virginia still oppose with unshaken front a formidable barrier to the progress of the invader, and our generals, armies, and people are animated by cheerful confidence.

Let us, then, while resolute in devoting all our energies to securing the realization of the bright auspices which encourage us, not forget that our humble and most grateful thanks are due to Him, without whose guidance and protecting care all human efforts are of no avail, and to whose interposition are due the manifold successes with which we have been cheered.

JEFFERSON DAVIS.

Act to Increase the Military Force of the Confederate States

A BILL

To be entitled An Act to increase the military force of the Confederate States.

The Congress of the Confederate States of America do enact,

That in order to provide additional forces to repel invasion, maintain the rightful possession of the Confederate States, secure their independence and preserve their institutions, the President be and he is hereby authorized to ask for and accept from the owners of slaves the services of such number of ablebodied negro men as he may deem expedient for and during the war, to perform military service in whatever capacity the General-in-Chief may direct.

Sec. 2. That the President be authorized to organize the said slaves into companies, battalions, regiments and brigades, under such rules and regulations as the Secretary of War may prescribe and to be commanded by such officers as the President may appoint.

Sec. 3. That while employed in the service the said slaves shall receive the same rations, clothing and compensation as are allowed in the Act approved February 17th, 1864, and the Acts amendatory thereto, “to increase the efficiency of the army by the employment of free negroes and slaves in certain capacities,” and the compensation so allowed shall be made to the owner or to the slave as the owner thereof may elect.

Sec. 4. That nothing in this Act shall be construed to authorize a change in the relation which the said slaves shall bear towards their owners as property, except by consent of the States in which they may reside, and in pursuance of the laws thereof.

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  • Last Order, Robert E. Lee, 1865

Increasingly outnumbered and suffering increasingly frequent and important defeats, Confederate general Robert E. Lee finally accepted defeat and surrendered to Union general Ulysses S. Grant on April 9, 1865. The surrender took place at Appomattox Court House, near where Lee’s dwindling army of thirty thousand men, less than half of them battle-worthy, had been cornered after weeks of retreats, rear-guard actions, and disappointed searching for supplies. Grant had promised that Confederate officers would be allowed to keep their sidearms, and all who owned their horses would be allowed to keep them. All of the soldiers would be allowed to go home unmolested after promising not to take up arms against the government of the United States. Returning to his camp from Appomattox, Lee was cheered by his troops. He expressed like sentiments for his soldiers in his final order, which effectively, though not officially, ended the war. Several Southern armies in addition to Lee’s “Army of Northern Virginia” would surrender in short order, and Confederate president Jefferson Davis would be captured on May 10, 1865, by Union troops in Georgia as he attempted to escape to Texas to meet up with Confederate troops there.

Last Order

Robert E. Lee
Mr. President:

It is with pain that I announce to Your Excellency the surrender of the Army of Northern Virginia. The operations which preceded this result will be reported in full. I will therefore only now state that, upon arriving at Amelia Court-House on the morning of the 4th with the advance of the army, on the retreat from the lines in front of Richmond and Petersburg, and not finding the supplies ordered to be placed there, nearly twenty-four hours were lost in endeavoring to collect in the country subsistence for men and horses. This delay was fatal, and could not be retrieved. The troops, wearied by continual fighting and marching for several days and nights, obtained neither rest nor refreshment; and on moving, on the 5th, on the Richmond and Danville Railroad, I found at Jetersville the enemy’s cavalry, and learned the approach of his infantry and the general advance of his army toward Burkeville. This deprived us of the use of the railroad, and rendered it impracticable to procure from Danville the supplies ordered to meet us at points of our march. Nothing could be obtained from the adjacent country. Our route to the Roanoke was therefore changed, and the march directed upon Farmville, where supplies were ordered from Lynchburg. The change of route threw the troops over the roads pursued by the artillery and wagon trains west of the railroad, which impeded our advance and embarrassed our movements. On the morning of the 6th General Longstreet’s corps reached Rice’s Station, on the Lynchburg railroad. It was followed by the commands of Generals R. H. Anderson, Ewell, and Gordon, with orders to close upon it as fast as the progress of the trains would permit or as they could be directed on roads farther west. General Anderson, commanding Pickett’s and B. R. Johnson’s divisions, became disconnected with Mahone’s division, forming the rear of Longstreet. The enemy’s cavalry penetrated the line of march through the interval thus left and attacked the wagon train moving toward Farmville. This caused serious delay in the march of the center and rear of the column, and enabled Edition: current; Page: [62] the enemy to mass upon their flank. After successive attacks Anderson’s and Ewell’s corps were captured or driven from their position. The latter general, with both of his division commanders, Kershaw and Custis Lee, and his brigadiers, were taken prisoners. Gordon, who all the morning, aided by General W. H. F. Lee’s cavalry, had checked the advance of the enemy on the road from Amelia Springs and protected the trains, became exposed to his combined assaults, which he bravely resisted and twice repulsed; but the cavalry having been withdrawn to another part of the line of march, and the enemy massing heavily on his front and both flanks, renewed the attack about 6 p.m., and drove him from the field in much confusion.

The army continued its march during the night, and every effort was made to reorganize the divisions which had been shattered by the day’s operations; but the men being depressed by fatigue and hunger, many threw away their arms, while others followed the wagon trains and embarrassed their progress. On the morning of the 7th rations were issued to the troops as they passed Farmville, but the safety of the trains requiring their removal upon the approach of the enemy all could not be supplied. The army, reduced to two corps, under Longstreet and Gordon, moved steadily on the road to Appomattox Court-House; thence its march was ordered by Campbell Court-House, through Pittsylvania, toward Danville. The roads were wretched and the progress slow. By great efforts the head of the column reached Appomattox Court-House on the evening of the 8th, and the troops were halted for rest. The march was ordered to be resumed at 1 a.m. on the 9th. Fitz Lee, with the cavalry, supported by Gordon, was ordered to drive the enemy from his front, wheel to the left, and cover the passage of the trains; while Longstreet, who from Rice’s Station had formed the rear guard, should close up and hold the position. Two battalions of artillery and the ammunition wagons were directed to accompany the army, the rest of the artillery and wagons to move toward Lynchburg. In the early part of the night the enemy attacked Walker’s artillery train near Appomattox Station, on the Lynchburg railroad, and were repelled. Shortly afterward their cavalry dashed toward the Court-House, till halted by our line. During the night there were indications of a large force massing on our left and front. Fitz Lee was directed to ascertain its strength, and to suspend his advance till daylight if necessary. About 5 a.m. on the 9th, with Gordon on his left, he moved forward and opened the way. A heavy force of the enemy was discovered opposite Gordon’s right, which, moving in the direction of Appomattox Court-House, drove back the left of the cavalry and threatened to cut off Gordon from Longstreet, his cavalry at the same time threatening to envelop his left flank. Gordon withdrew across the Appomattox River, and the cavalry advanced on the Lynchburg road and became separated from the army.

Learning the condition of affairs on the lines, where I had gone under the expectation of meeting General Grant to learn definitely the terms he proposed in a communication received from him on the 8th, in the event of the surrender of the army, I requested a suspension of hostilities until these terms could be arranged. In the interview which occurred with General Grant in compliance with my request, terms having been agreed on, I surrendered that portion of the Army of Northern Virginia which was on the field, with its arms, artillery, and wagon trains, the officers and men to be paroled, retaining their sidearms and private effects. I deemed this course the best under all the circumstances by which we were surrounded. On the morning of the 9th, according to the reports of the ordnance officers, there were 7,892 organized infantry with arms, with an average of seventy-five rounds of ammunition per man. The artillery, though reduced to sixty-three pieces, with ninety-three rounds of ammunition, was sufficient. These comprised all the supplies of ordnance that could be relied on in the State of Virginia. I have no accurate report of the cavalry, but believe it did not exceed 2,100 effective men. The enemy were more than five times our numbers. If we could have forced our way one day longer it would have been at a great sacrifice of life, and at its end I did not see how a surrender could have been avoided. We had no subsistence for man or horse, and it could not be gathered in the country. The supplies ordered to Pamplin’s Station from Lynchburg could not reach us, and the men, deprived of food and sleep for many days, were worn out and exhausted.

With great respect, your obedient servant,

R. E. LEE,
General.
His Excellency JEFFERSON DAVIS.
ADDENDA.
GENERAL ORDERS, }
No. 9.

After four years of arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and Edition: current; Page: [63] resources. I need not tell the brave survivors of so many hard-fought battles, who have remained steadfast to the last, that I have consented to the result from no distrust of them. But, feeling that valor and devotion could accomplish nothing that could compensate for the loss that must have attended the continuance of the contest, I determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen.

By the terms of the agreement officers and men can return to their homes and remain until exchanged. You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed; and I earnestly pray that a merciful God will extend to you his blessing and protection.

With an increasing admiration of your constancy and devotion to your country, and a grateful remembrance of your kind and generous considerations for myself, I bid you all an affectionate farewell.

R. E. LEE,
General.
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PART TWO: Reconstruction

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Well before fighting ended on the Civil War’s battlefields, conflict stirred in the North regarding how the South should be reintegrated into the Union. The issue first surfaced only five days after Virginia seceded from the Union, when its thirty-five western counties sought separation from Virginia and reintegration with the Union, which they achieved as West Virginia in 1863. But the process of “reconstruction,” which at times aimed to alter fundamentally the governments and societies of the former Confederacy, continued for more than a decade and remains an issue to this day. According to popular legend (now disputed) Reconstruction’s formal end came when the Democratic and Republican parties struck a deal allowing the Republican presidential candidate, Rutherford B. Hayes, to take office after the disputed election of 1876 in exchange for the withdrawal of federal troops from the Southern states, public works projects in the South, and other concessions. Thereafter a series of Supreme Court cases and legal and constitutional challenges in the South sought to undo Reconstruction. From its inception until its end, Reconstruction was the subject of intense debate and sometimes violent conflict. The program first set forth by Abraham Lincoln, then championed by his successor, Andrew Johnson, drew criticism from Radical Republicans convinced that it did too little for African Americans, too little for Northern interests, and too little to fundamentally reform governments in the South. The program also drew extensive opposition, particularly from white Southerners who labeled it dictatorial and intrusive in character. And white Southern opposition took a variety of forms, from mob violence to contradictory legal and constitutional documents.

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  • Proclamation of Amnesty and Reconstruction, Abraham Lincoln, 1863
  • Veto Message with Wade-Davis Proclamation and Bill, Abraham Lincoln, 1864
  • Wade-Davis Manifesto, 1864

Lincoln’s Proclamation of Amnesty and Reconstruction, greeted warmly in the North at the time, set forth the first official plan of Reconstruction, seeking to expedite formation of loyalist governments. In it Lincoln offered all but the highest officers in the Confederacy amnesty in exchange for an oath of allegiance to the United States. Lincoln also set forth his “10 percent plan,” according to which any state in which at least 10 percent of those qualified in 1860 to vote agreed to abide by congressional laws and presidential proclamations regarding the end of slavery would be deemed the true government of that state. This would allow for the retraction of military government and, with congressional consent, the seating of the state’s congressional delegation. Radical Republican congressmen Henry Winter Davis, of Maryland, and Benjamin F. Wade, of Ohio, oppposed what they saw as the plan’s leniency. Their Wade-Davis bill would have required that half the white male citizens of any seceded state take an oath of loyalty to the Union before civil government could be reestablished in that state. The bill also required that freed slaves be given the right to vote—a right denied most African Americans in Northern states. Lincoln refused to sign the bill, letting it die at the end of the congressional session, on the grounds that he should not be tied to a single, inflexible plan of restoration for each seceded state. The Wade-Davis Manifesto was a response to this pocket veto. Published in the New York Tribune, it defended the more stringent requirements of the bill and accused Lincoln of dictatorial conduct in his control over reconstruction policies.

Proclamation of Amnesty and Reconstruction

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
A PROCLAMATION.

Whereas, in and by the Constitution of the United States, it is provided that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment”; and

Whereas, a rebellion now exists whereby the loyal state governments of several states have for a long time been subverted, and many persons have committed, and are now guilty of, treason against the United States; and

Whereas, with reference to said rebellion and treason, laws have been enacted by congress, declaring forfeitures and confiscation of property and liberation of slaves, all upon terms and conditions therein stated, and also declaring that the President was thereby authorized at any time thereafter, by proclamation, to extend to persons who may have participated in the existing rebellion, in any state or part thereof, pardon and amnesty, with such exceptions and at such times Edition: current; Page: [69] and on such conditions as he may deem expedient for the public welfare; and

Whereas, the congressional declaration for limited and conditional pardon accords with well-established judicial exposition of the pardoning power; and

Whereas, with reference to said rebellion, the President of the United States has issued several proclamations, with provisions in regard to the liberation of slaves; and

Whereas, it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the United States, and to reinaugurate loyal state governments within and for their respective states: Therefore—

I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known to all persons who have, directly or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is hereby granted to them and each of them, with restoration of all rights of property, except as to slaves, and in property cases where rights of third parties shall have intervened, and upon the condition that every such person shall take and subscribe an oath, and thenceforward keep and maintain said oath inviolate; and which oath shall be registered for permanent preservation, and shall be of the tenor and effect following, to wit:—

“I, ———, do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all acts of congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified, or held void by congress, or by decision of the supreme court; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the supreme court. So help me God.”

The persons excepted from the benefits of the foregoing provisions are all who are, or shall have been, civil or diplomatic officers or agents of the so-called Confederate government; all who have left judicial stations under the United States to aid the rebellion; all who are, or shall have been, military or naval officers of said so-called Confederate government above the rank of colonel in the army or of lieutenant in the navy; all who left seats in the United States congress to aid the rebellion; all who resigned commissions in the army or navy of the United States and afterwards aided the rebellion; and all who have engaged in any way in treating colored persons, or white persons in charge of such, otherwise than lawfully as prisoners of war, and which persons may have been found in the United States service as soldiers, seamen, or in any other capacity.

And I do further proclaim, declare, and make known that whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such state at the presidential election of the year of our Lord one thousand eight hundred and sixty, each having taken the oath aforesaid, and not having since violated it, and being a qualified voter by the election law of the state existing immediately before the so-called act of secession, and excluding all others, shall reëstablish a state government which shall be republican, and in nowise contravening said oath, such shall be recognized as the true government of the state, and the state shall receive thereunder the benefits of the constitutional provision which declares that “the United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or the executive, (when the legislature cannot be convened,) against domestic violence.”

And I do further proclaim, declare, and make known that any provision which may be adopted by such state government in relation to the freed people of such state, which shall recognize and declare their permanent freedom, provide for their education, and which may yet be consistent as a temporary arrangement with their present condition as a laboring, landless, and homeless class, will not be objected to by the National Executive.

And it is suggested as not improper that, in constructing a loyal state government in any state, the name of the state, the boundary, the subdivisions, the constitution, and the general code of laws, as before the rebellion, be maintained, subject only to the modifications made necessary by the conditions hereinbefore stated, and such others, if any, not contravening said conditions, and which may be deemed expedient by those framing the new state government.

To avoid misunderstanding, it may be proper to say that this proclamation, so far as it relates to state governments, has no reference to states wherein loyal state governments have all the while been maintained. And, for the same reason, it may be proper to further say, that whether members sent to Edition: current; Page: [70] congress from any state shall be admitted to seats constitutionally rests exclusively with the respective houses, and not to any extent with the Executive. And still further, that this proclamation is intended to present the people of the states wherein the national authority has been suspended, and loyal state governments have been subverted, a mode in and by which the national authority and loyal state governments may be reëstablished within said states, or in any of them; and, while the mode presented is the best the Executive can suggest, with his present impressions, it must not be understood that no other possible mode would be acceptable.

Given under my hand at the city of Washington the eighth day of December, ad one thousand eight hundred and sixty-three, and of the Independence of the United States of America the eighty-eighth.

ABRAHAM LINCOLN.

Veto Message with Wade-Davis Proclamation and Bill

Abraham Lincoln

BY THE PRESIDENT OF THE UNITED STATES:
A PROCLAMATION.

Whereas, at the late session, congress passed a bill to “guarantee to certain states, whose governments have been usurped or overthrown, a republican form of government,” a copy of which is hereunto annexed;

And whereas the said bill was presented to the President of the United States for his approval less than one hour before the sine die adjournment of said session, and was not signed by him;

And whereas the said bill contains, among other things, a plan for restoring the states in rebellion to their proper practical relation in the Union, which plan expresses the sense of congress upon that subject, and which plan it is now thought fit to lay before the people for their consideration:

Now, therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known, that, while I am (as I was in December last, when by proclamation I propounded a plan for restoration) unprepared by a formal approval of this bill, to be inflexibly committed to any single plan of restoration; and, while I am also unprepared to declare that the free state constitutions and governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for nought, thereby repelling and discouraging the loyal citizens who have set up the same as to further effort, or to declare a constitutional competency in congress to abolish slavery in states, but am at the same time sincerely hoping and expecting that a constitutional amendment abolishing slavery throughout the nation may be adopted, nevertheless I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any state choosing to adopt it, and that I am, and at all times shall be, prepared to give the executive aid and assistance to any such people, so soon as the military resistance to the United States shall have been suppressed in any such state, and the people thereof shall have sufficiently returned to their obedience to the constitution and the laws of the United States, in which cases military governors will be appointed, with directions to proceed according to the bill.

In testimony whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the city of Washington this eighth day of July, in the year of our Lord one thousand eight hundred and sixty-four, and of the Independence of the United States the eighty-ninth.

[l.s.] ABRAHAM LINCOLN.

A Bill to guarantee to certain States whose Governments have been usurped or overthrown a Republican Form of Government.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in the states declared in rebellion against the United States, the President shall, by and with the advice and consent of the Senate, appoint for each a provisional governor, whose pay and emoluments shall not exceed that of a brigadier-general of volunteers, who shall be charged with the civil administration of such state until a state government therein shall be recognized as hereinafter provided.

Sec. 2. And be it further enacted, That so soon as the military resistance to the United States shall have been suppressed Edition: current; Page: [71] in any such state, and the people thereof shall have sufficiently returned to their obedience to the constitution and the laws of the United States, the provisional governor shall direct the marshal of the United States, as speedily as may be, to name a sufficient number of deputies, and to enroll all white male citizens of the United States, resident in the state in their respective counties, and to request each one to take the oath to support the constitution of the United States, and in his enrolment to designate those who take and those who refuse to take that oath, which rolls shall be forthwith returned to the provisional governor; and if the persons taking that oath shall amount to a majority of the persons enrolled in the state, he shall, by proclamation, invite the loyal people of the state to elect delegates to a convention charged to declare the will of the people of the state relative to the reëstablishment of a state government subject to, and in conformity with, the constitution of the United States.

Sec. 3. And be it further enacted, That the convention shall consist of as many members as both houses of the last constitutional state legislature, apportioned by the provisional governor among the counties, parishes, or districts of the state, in proportion to the white population, returned as electors, by the marshal, in compliance with the provisions of this act. The provisional governor shall, by proclamation, declare the number of delegates to be elected by each county, parish, or election district; name a day of election not less than thirty days thereafter; designate the places of voting in each county, parish, or district, conforming as nearly as may be convenient to the places used in the state elections next preceding the rebellion; appoint one or more commissioners to hold the election at each place of voting, and provide an adequate force to keep the peace during the election.

Sec. 4. And be it further enacted, That the delegates shall be elected by the loyal white male citizens of the United States of the age of twenty-one years, and resident at the time in the county, parish, or district in which they shall offer to vote, and enrolled as aforesaid, or absent in the military service of the United States, and who shall take and subscribe the oath of allegiance to the United States in the form contained in the act of congress of July two, eighteen hundred and sixty-two; and all such citizens of the United States who are in the military service of the United States shall vote at the head-quarters of their respective commands, under such regulations as may be prescribed by the provisional governor for the taking and return of their votes; but no person who has held or exercised any office, civil or military, state or confederate, under the rebel usurpation, or who has voluntarily borne arms against the United States, shall vote, or be eligible to be elected as delegate, at such election.

Sec. 5. And be it further enacted, That the said commissioners, or either of them, shall hold the election in conformity with this act, and, so far as may be consistent therewith, shall proceed in the manner used in the state prior to the rebellion. The oath of allegiance shall be taken and subscribed on the poll-book by every voter in the form above prescribed, but every person known by, or proved to, the commissioners to have held or exercised any office, civil or military, state or confederate, under the rebel usurpation, or to have voluntarily borne arms against the United States, shall be excluded, though he offer to take the oath; and in case any person who shall have borne arms against the United States shall offer to vote he shall be deemed to have borne arms voluntarily unless he shall prove the contrary by the testimony of a qualified voter. The poll-book, showing the name and oath of each voter, shall be returned to the provisional governor by the commissioners of election or the one acting, and the provisional governor shall canvass such returns, and declare the person having the highest number of votes elected.

Sec. 6. And be it further enacted, That the provisional governor shall, by proclamation, convene the delegates elected as aforesaid, at the capital of the state, on a day not more than three months after the election, giving at least thirty days’ notice of such day. In case the said capital shall in his judgment be unfit, he shall in his proclamation appoint another place. He shall preside over the deliberations of the convention, and administer to each delegate, before taking his seat in the convention, the oath of allegiance to the United States in the form above prescribed.

Sec. 7. And be it further enacted, That the convention shall declare, on behalf of the people of the state, their submission to the constitution and laws of the United States, and shall adopt the following provisions, hereby prescribed by the United States in the execution of the constitutional duty to guarantee a republican form of government to every state, and incorporate them in the constitution of the state, that is to say:

First. No person who has held or exercised any office, civil or military, except offices merely ministerial, and military offices below the grade of colonel, state or confederate, under the usurping power, shall vote for or be a member of the legislature, or governor.

Second. Involuntary servitude is forever prohibited, and the freedom of all persons is guaranteed in said state.

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Third. No debt, state or confederate, created by or under the sanction of the usurping power, shall be recognized or paid by the state.

Sec. 8. And be it further enacted, That when the convention shall have adopted those provisions, it shall proceed to reëstablish a republican form of government, and ordain a constitution containing those provisions, which, when adopted, the convention shall by ordinance provide for submitting to the people of the state, entitled to vote under this law, at an election to be held in the manner prescribed by the act for the election of delegates; but at a time and place named by the convention, at which election the said electors, and none others, shall vote directly for or against such constitution and form of state government, and the returns of said election shall be made to the provisional governor, who shall canvass the same in the presence of the electors, and if a majority of the votes cast shall be for the constitution and form of government, he shall certify the same, with a copy thereof, to the President of the United States, who, after obtaining the assent of congress, shall, by proclamation, recognize the government so established, and none other, as the constitutional government of the state, and from the date of such recognition, and not before, Senators and Representatives, and electors for President and Vice-President may be elected in such state, according to the laws of the state and of the United States.

Sec. 9. And be it further enacted, That if the convention shall refuse to reëstablish the state government on the conditions aforesaid, the provisional governor shall declare it dissolved; but it shall be the duty of the President, whenever he shall have reason to believe that a sufficient number of the people of the state entitled to vote under this act, in number not less than a majority of those enrolled, as aforesaid, are willing to reëstablish a state government on the conditions aforesaid, to direct the provisional governor to order another election of delegates to a convention for the purpose and in the manner prescribed in this act, and to proceed in all respects as hereinbefore provided, either to dissolve the convention, or to certify the state government reëstablished by it to the President.

Sec. 10. And be it further enacted, That, until the United States shall have recognized a republican form of state government, the provisional governor in each of said states shall see that this act, and the laws of the United States, and the laws of the state in force when the state government was overthrown by the rebellion, are faithfully executed within the state; but no law or usage whereby any person was heretofore held in involuntary servitude shall be recognized or enforced by any court or officer in such state, and the laws for the trial and punishment of white persons shall extend to all persons, and jurors shall have the qualifications of voters under this law for delegates to the convention. The President shall appoint such officers provided for by the laws of the state when its government was overthrown as he may find necessary to the civil administration of the state, all which officers shall be entitled to receive the fees and emoluments provided by the state laws for such officers.

Sec. 11. And be it further enacted, That until the recognition of a state government as aforesaid, the provisional governor shall, under such regulations as he may prescribe, cause to be assessed, levied, and collected, for the year eighteen hundred and sixty-four, and every year thereafter, the taxes provided by the laws of such state to be levied during the fiscal year preceding the overthrow of the state government thereof, in the manner prescribed by the laws of the state, as nearly as may be; and the officers appointed, as aforesaid, are vested with all powers of levying and collecting such taxes, by distress or sale, as were vested in any officers or tribunal of the state government aforesaid for those purposes. The proceeds of such taxes shall be accounted for to the provisional governor, and be by him applied to the expenses of the administration of the laws in such state, subject to the direction of the President, and the surplus shall be deposited in the treasury of the United States to the credit of such state, to be paid to the state upon an appropriation therefor, to be made when a republican form of government shall be recognized therein by the United States.

Sec. 12. And be it further enacted, That all persons held to involuntary servitude or labor in the states aforesaid are hereby emancipated and discharged therefrom, and they and their posterity shall be forever free. And if any such persons or their posterity shall be restrained of liberty, under pretence of any claim to such service or labor, the courts of the United States shall, on habeas corpus, discharge them.

Sec. 13. And be it further enacted, That if any person declared free by this act, or any law of the United States, or any proclamation of the President, be restrained of liberty, with intent to be held in or reduced to involuntary servitude or labor, the person convicted before a court of competent jurisdiction of such act shall be punished by fine of not less than fifteen hundred dollars, and be imprisoned not less than five nor more than twenty years.

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Sec. 14. And be it further enacted, That every person who shall hereafter hold or exercise any office, civil or military, except offices merely ministerial, and military offices below the grade of colonel, in the rebel service, state or confederate, is hereby declared not to be a citizen of the United States.

Wade-Davis Manifesto

To the supporters of the government.

We have read without surprise, but not without indignation, the Proclamation of the President of the 8th of July, 1864.

The supporters of the Administration are responsible to the country for its conduct: and it is their right and duty to check the encroachments of the Executive on the authority of Congress, and to require it to confine itself to its proper sphere.

It is impossible to pass in silence this Proclamation without neglecting that duty; and, having taken as much responsibility as any others in supporting the Administration, we are not disposed to fail in the other duty of asserting the rights of Congress.

The President did not sign the bill “to guarantee to certain States whose Governments have been usurped, a Republican form of Government”—passed by the supporters of his Administration in both Houses of Congress after mature deliberation.

The bill did not therefore become a law: and it is therefore nothing.

The Proclamation is neither an approval nor a veto of the bill; it is therefore a document unknown to the laws and Constitution of the United States.

So far as it contains an apology for not signing the bill, it is a political manifesto against the friends of the Government.

So far as it proposes to execute the bill which is not a law, it is a grave Executive usurpation.

It is fitting that the facts necessary to enable the friends of the Administration to appreciate the apology and the usurpation be spread before them.

The Proclamation says:

“And whereas the said bill was presented to the President of the United States for his approval less than one hour before the sine die adjournment of said session, and was not signed by him—”

If that be accurate, still this bill was presented with other bills which were signed.

Within that hour, the time for the sine die adjournment was three times postponed by the votes of both Houses; and the least intimation of a desire for more time by the President to consider this bill would have secured a further postponement.

Yet the Committee sent to ascertain if the President had any further communication for the House of Representatives reported that he had none; and the friends of the bill, who had anxiously waited on him to ascertain its fate, had already been informed that the President had resolved not to sign it.

The time of presentation, therefore, had nothing to do with his failure to approve it.

The bill had been discussed and considered for more than a month in the House of Representatives, which it passed on the 4th of May; it was reported to the Senate on the 27th of May without material amendment, and passed the Senate absolutely as it came from the House on the 3d of July.

Ignorance of its contents is out of the question.

Indeed, at his request, a draft of a bill substantially the same in all material points, and identical in the points objected to by the Proclamation, had been laid before him for his consideration in the Winter of 1862-1863.

There is, therefore, no reason to suppose the provisions of the bill took the President by surprise.

On the contrary, we have reason to believe them to have been so well known that this method of preventing the bill from becoming a law without the constitutional responsibility of a veto, had been resolved on long before the bill passed the Senate.

We are informed by a gentleman entitled to entire confidence, that before the 22d of June in New-Orleans it was stated by a member of Gen. Banks’s staff, in the presence of other gentlemen in official position, that Senator Doolittle had written a letter to the department that the House Reconstruction bill would be staved off in the Senate to a period too late in the session to require the President to veto it in order to defeat it, and that Mr. Lincoln would retain the bill, if necessary, and thereby defeat it.

The experience of Senator Wade, in his various efforts to get the bill considered in the Senate, was quite in accordance with that plan; and the fate of the bill was accurately Edition: current; Page: [74] predicted by letters received from New-Orleans before it had passed the Senate.

Had the Proclamation stopped there, it would have been only one other defeat of the will of the people by an Executive perversion of the Constitution.

But it goes further. The President says:

“And whereas the said bill contains, among other things, a plan for restoring the States in rebellion to their proper practical relation in the Union, which plan expresses the sense of Congress upon that subject, and which plan it is now thought fit to lay before the people for their consideration—”

By what authority of the Constitution? In what forms? The result to be declared by whom? With what effect when ascertained?

Is it to be a law by the approval of the people without the approval of Congress at the will of the President?

Will the President, on his opinion of the popular approval, execute it as law?

Or is this merely a device to avoid the serious responsibility of defeating a law on which so many loyal hearts reposed for security?

But the reasons now assigned for not approving the bill are full of ominous significance.

The President proceeds:

“Now, therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known, that, while I am (as I was in December last, when by proclamation I propounded a plan for restoration) unprepared, by a formal approval of this bill, to be inflexibly committed to any single plan of restoration—”

That is to say, the President is resolved that the people shall not by law take any securities from the Rebel States against a renewal of the Rebellion, before restoring their power to govern us.

His wisdom and prudence are to be our sufficient guarantees!

He further says:

“And, while I am also unprepared to declare that the Free-State Constitutions and Governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for naught, thereby repelling and discouraging the loyal citizens who have set up the same as to further effort—”

That is to say, the President persists in recognizing those shadows of Governments in Arkansas and Louisiana, which Congress formally declared should not be recognized—whose Representatives and Senators were repelled by formal votes of both Houses of Congress—which it was declared formally should have no electoral vote for President and Vice-President.

They are the mere creatures of his will. They cannot live a day without his support. They are mere oligarchies, imposed on the people by military orders under the forms of election, at which generals, provost-marshals, soldiers and camp-followers were the chief actors, assisted by a handful of resident citizens, and urged on to premature action by private letters from the President.

In neither Louisiana nor Arkansas, before Banks’s defeat, did the United States control half the territory or half the population. In Louisiana, Gen. Banks’s proclamation candidly declared: “The fundamental law of the State is martial law.

On that foundation of freedom, he erected what the President calls “the free Constitution and Government of Louisiana.”

But of this State, whose fundamental law was martial law, only sixteen parishes out of forty-eight parishes were held by the United States; and in five of the sixteen we held only our camps.

The eleven parishes we substantially held had 233,185 inhabitants; the residue of the State not held by us, 575,617.

At the farce called an election, the officers of Gen. Banks returned that 11,346 ballots were cast; but whether any or by whom the people of the United States have no legal assurance; but it is probable that 4,000 were cast by soldiers or employees of the United States military or municipal, but none according to any law, State or National, and 7,000 ballots represent the State of Louisiana.

Such is the free Constitution and Government of Louisiana; and like it is that of Arkansas. Nothing but the failure of a military expedition deprived us of a like one in the swamps of Florida; and before the Presidential election, like ones may be organized in every Rebel State where the United States have a camp.

The President, by preventing this bill from becoming a law, holds the electoral votes of the Rebel States at the dictation of his personal ambition.

If those votes turn the balance in his favor, is it to be supposed that his competitor, defeated by such means, will acquiesce?

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If the Rebel majority assert their supremacy in those States, and send votes which elect an enemy of the Government, will we not repel his claims?

And is not that civil war for the Presidency, inaugurated by the votes of Rebel States?

Seriously impressed with these dangers, Congress, “the proper constitutional authority,” formally declared that there are no State Governments in the Rebel States, and provided for their erection at a proper time; and both the Senate and the House of Representatives rejected the Senators and Representatives chosen under the authority of what the President calls the Free Constitution and Government of Arkansas.

The President’s Proclamation “holds for naught” this judgment, and discards the authority of the Supreme Court, and strides headlong toward the anarchy his Proclamation of the 8th of December inaugurated.

If electors for President be allowed to be chosen in either of those States, a sinister light will be cast on the motives which induced the President to “hold for naught” the will of Congress rather than his Government in Louisiana and Arkansas.

That judgment of Congress which the President defies was the exercise of an authority exclusively vested in Congress by the Constitution to determine what is the established Government in a State, and in its own nature and by the highest judicial authority binding on all other departments of the Government.

The Supreme Court has formally declared that under the 4th section of the IVth article of the Constitution, requiring the United States to guarantee to every State a republican form of government, “it rests with Congress to decide what Government is the established one in a State”; and “when Senators and Representatives of a State are admitted into the councils of the Union, the authority of the Government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority, and its decision is binding on every other department of the Government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and, as no Senators or Representatives were elected under the authority of the Government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there.

Even the President’s proclamation of the 8th of December, formally declares that “Whether members sent to Congress from any State shall be admitted to seats, constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive.”

And that is not the less true because wholly inconsistent with the President’s assumption in that proclamation of a right to institute and recognize State Governments in the Rebel States, nor because the President is unable to perceive that his recognition is a nullity if it be not conclusive on Congress.

Under the Constitution, the right to Senators and Representatives is inseparable from a State Government.

If there be a State Government, the right is absolute.

If there be no State Government, there can be no Senators or Representatives chosen.

The two Houses of Congress are expressly declared to be the sole judges of their own members.

When, therefore, Senators and Representatives are admitted, the State Government, under whose authority they were chosen, is conclusively established; when they are rejected, its existence is as conclusively rejected and denied; and to this [judgment] the President is bound to submit.

The President proceeds to express his unwillingness “to declare a constitutional competency in Congress to abolish Slavery in States” as another reason for not signing the bill.

But the bill nowhere proposes to abolish Slavery in States.

The bill did provide that all slaves in the Rebel States should be manumitted.

But as the President had already signed three bills manumitting several classes of slaves in States, it is not conceived possible that he entertained any scruples touching that provision of the bill respecting which he is silent.

He had already himself assumed a right by proclamation to free much the larger number of slaves in the Rebel States, under the authority given him by Congress to use military power to suppress the Rebellion; and it is quite inconceivable that the President should think Congress could vest in him a discretion it could not exercise itself.

It is the more unintelligible from the fact that, except in respect to a small part of Virginia and Louisiana, the bill covered only what the Proclamation covered—added a Congressional title and judicial remedies by law to the disputed title under the Proclamation, and perfected the work the President professed to be so anxious to accomplish.

Slavery as an institution can be abolished only by a change of the Constitution of the United States or of the law of the State; and this is the principle of the bill.

It required the [new] Constitution of the State to provide Edition: current; Page: [76] for that prohibition; and the President, in the face of his own proclamation, does not venture to object to insisting on that condition. Nor will the country tolerate its abandonment—yet he defeated the only provision imposing it!!

But when he describes himself, in spite of this great blow at emancipation, as “sincerely hoping and expecting that a constitutional amendment abolishing Slavery throughout the nation may be adopted,” we curiously inquire on what his expectation rests, after the vote of the House of Representatives at the recent session, and in the face of the political complexion of more than enough of the States to prevent the possibility of its adoption within any reasonable time; and why he did not indulge his sincere hopes with so large an installment of the blessing as his approval of the bill would have secured.

After this assignment of his reasons for preventing the bill from becoming a law, the President proceeds to declare his purpose to execute it as a law by his plenary dictatorial power.

He says:

“Nevertheless, I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any State choosing to adopt it; and that I am, and at all times shall be, prepared to give the Executive aid and assistance to any such people so soon as the military resistance to the United States shall have been suppressed in any such State, and the people thereof shall have sufficiently returned to their obedience to the Constitution and the laws of the United States; in which cases Military Governors will be appointed, with directions to proceed according to the bill.”

A more studied outrage on the legislative authority of the people has never been perpetrated.

Congress passed a bill; the President refused to approve it, and then by proclamation puts as much of it in force as he sees fit, and proposes to execute those parts by officers unknown to the laws of the United States and not subject to the confirmation of the Senate!

The bill directed the appointment of Provisional Governors by and with the advice and consent of the Senate.

The President, after defeating the law, proposes to appoint without law, and without the advice and consent of the Senate, Military Governors for the Rebel States!

He has already exercised this dictatorial usurpation in Louisiana, and he defeated the bill to prevent its limitation.

Henceforth we must regard the following precedent as the Presidential law of the Rebel States:

Executive Mansion, }
His Excellency Michael Hahn, Governor of Louisiana.

“Until further orders, you are hereby invested with the powers exercised hitherto by the Military Governor of Louisiana. Yours.

Abraham Lincoln.

This Michael Hahn is no officer of the United States; the President, without law, without the advice and consent of the Senate, by a private note not even countersigned by the Secretary of State, makes him dictator of Louisiana!

The bill provided for the civil administration of the laws of the State—till it should be in a fit temper to govern itself—repealing all laws recognizing Slavery, and making all men equal before the law.

These beneficent provisions the President has annulled. People will die, and marry and transfer property, and buy and sell: and to these acts of civil life courts and officers of the law are necessary. Congress legislated for these necessary things, and the President deprives them of the protection of the law!

The President’s purpose to instruct his Military Governors “to proceed according to the bill”—a makeshift to calm the disappointment its defeat has occasioned—is not merely a grave usurpation but a transparent delusion.

He cannot “proceed according to the bill” after preventing it from becoming a law.

Whatever is done will be at his will and pleasure, by persons responsible to no law, and more interested to secure the interests and execute the will of the President than of the people; and the will of Congress is to be “held for naught,” “unless the loyal people of the Rebel States choose to adopt it.”

If they should graciously prefer the stringent bill to the easy proclamation, still the registration will be made under no legal sanction; it will give no assurance that a majority of the people of the States have taken the oath; if administered, it will be without legal authority, and void; no indictment will lie for false swearing at the election, or for admitting bad or rejecting good votes; it will be the farce of Louisiana and Arkansas acted over again, under the forms of this bill, but not by authority of law.

But when we come to the guarantees of future peace which Congress meant to enact, the forms, as well as the substance Edition: current; Page: [77] of the bill, must yield to the President’s will that none should be imposed.

It was the solemn resolve of Congress to protect the loyal men of the nation against three great dangers, (1) the return to power of the guilty leaders of the Rebellion, (2) the continuance of Slavery, and (3) the burden of the Rebel debt.

Congress required assent to those provisions by the Convention of the State; and if refused, it was to be dissolved.

The president “holds for naught” that resolve of Congress, because he is unwilling “to be inflexibly committed to any one plan of restoration,” and the people of the United States are not to be allowed to protect themselves unless their enemies agree to it.

The order to proceed according to the bill is therefore merely at the will of the Rebel States; and they have the option to reject it, accept the proclamation of the 8th of December, and demand the President’s recognition!

Mark the contrast! The bill requires a majority, the proclamation is satisfied with one-tenth; the bill requires one oath, the proclamation another; the bill ascertains voters by registering, the proclamation by guess; the bill exacts adherence to existing territorial limits, the proclamation admits of others; the bill governs the Rebel States by law, equalizing all before it, the proclamation commits them to the lawless discretion of military Governors and Provost-Marshals; the bill forbids electors for President, the proclamation and defeat of the bill threaten us with civil war for the admission or exclusion of such votes; the bill exacted exclusion of dangerous enemies from power and the relief of the nation from the Rebel debt, and the prohibition of Slavery forever, so that the suppression of the Rebellion will double our resources to bear or pay the national debt, free the masses from the old domination of the Rebel leaders, and eradicate the cause of the war; the proclamation secures neither of these guaranties.

It is silent respecting the Rebel debt and the political exclusion of Rebel leaders; leaving Slavery exactly where it was by law at the outbreak of the Rebellion, and adds no guaranty even of the freedom of the slaves he undertook to manumit.

It is summed up in an illegal oath, without a sanction, and therefore void.

The oath is to support all proclamations of the President during the Rebellion having reference to slaves.

Any Government is to be accepted at the hands of one-tenth of the people not contravening that oath.

Now that oath neither secures the abolition of Slavery, nor adds any security to the freedom of the slaves the President declared free.

It does not secure the abolition of Slavery, for the proclamation of freedom merely professed to free certain slaves while it recognized the institution.

Every Constitution of the Rebel States at the outbreak of the Rebellion may be adopted without the change of a letter; for none of them contravene that Proclamation; none of them establish Slavery.

It adds no security to the freedom of the slaves.

For their title is the Proclamation of Freedom.

If it be unconstitutional, an oath to support it is void. Whether constitutional or not, the oath is without authority of law, and therefore void.

If it be valid and observed, it exacts no enactment by the State, either in law or Constitution, to add a State guaranty to the proclamation title; and the right of a slave to freedom is an open question before the State courts on the relative authority of the State law and the Proclamation.

If the oath binds the one-tenth who take it, it is not exacted of the other nine-tenths who succeed to the control of the State Government; so that it is annulled instantly by the act of recognition.

What the State courts would say of the Proclamation, who can doubt?

But the master would not go into court—he would seize his slave.

What the Supreme Court would say, who can tell?

When and how is the question to get there?

No habeas corpus lies for him in a United States Court; and the President defeated with this bill its extension of that writ to this case.

Such are the fruits of this rash and fatal act of the President—a blow at the friends of his Administration, at the rights of humanity, and at the principles of republican government.

The President has greatly presumed on the forbearance which the supporters of his Administration have so long practiced, in view of the arduous conflict in which we are engaged, and the reckless ferocity of our political opponents.

But he must understand that our support is of a cause and not of a man; that the authority of Congress is paramount and must be respected; that the whole body of the Union men of Congress will not submit to be impeached by him of rash and unconstitutional legislation; and if he wishes our support, he Edition: current; Page: [78] must confine himself to his executive duties—to obey and execute, not make the laws—to suppress by arms armed Rebellion, and leave political reorganization to Congress.

If the supporters of the Government fail to insist on this, they become responsible for the usurpations which they fail to rebuke, and are justly liable to the indignation of the people whose rights and security, committed to their keeping, they sacrifice.

Let them consider the remedy for these usurpations, and, having found it, fearlessly execute it.

B. F. WADE, Chairman Senate Committee.
H. WINTER DAVIS, Chairman Committee.

House of Representatives on the Rebellious States.

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  • Special Field Order no. 15, William Tecumseh Sherman, 1865

As General William Sherman marched his Union army through Georgia, he collected in his wake an ever-growing number of former slaves who chose to follow his army rather than remain on the plantations on which they had been held in bondage. As he prepared to turn his army northward, Sherman sought to unburden himself of these refugees. On January 12, 1865, Sherman, along with Edwin M. Stanton, the secretary of war, met with twenty leaders (mostly clergymen) of the African American community in Savannah. Four days later, with the approval of President Lincoln, Special Field Order no. 15 was issued, confiscating roughly 400,000 acres of land along the coasts of South Carolina, Georgia, and Florida and distributing it to refugees, who would farm it.

Special Field Order no. 15

William Tecumseh Sherman

1. The islands from Charleston south, the abandoned rice-fields along the rivers for thirty miles back from the sea, and the country bordering the St. John’s River, Florida, are reserved and set apart for the settlement of the negroes now made free by the acts of war and the proclamation of the President of the United States.

2. At Beaufort, Hilton Head, Savannah, Fernandina, St. Augustine, and Jacksonville, the blacks may remain in their chosen or accustomed vocations; but on the islands, and in the settlements hereafter to be established, no white person whatever, unless military officers and soldiers detailed for duty, will be permitted to reside; and the sole and exclusive management of affairs will be left to the freed people themselves, subject only to the United States military authority, and the acts of Congress. By the laws of war, and orders of the President of the United States, the negro is free, and must be dealt with as such. He cannot be subjected to conscription, or forced military service, save by the written orders of the highest military authority of the department, under such regulations as the President or Congress may prescribe. Domestic servants, blacksmiths, carpenters, and other mechanics, will be free to select their own work and residence, but the young and able-bodied negroes must be encouraged to enlist as soldiers in the service of the United States, to contribute their share toward maintaining their own freedom, and securing their rights as citizens of the United States.

Negroes so enlisted will be organized into companies, battalions, and regiments, under the orders of the United States military authorities, and will be paid, fed, and clothed, according to law. The bounties paid on enlistment may, with the consent of the recruit, go to assist his family and settlement in procuring agricultural implements, seed, tools, boots, clothing, and other articles necessary for their livelihood.

3. Whenever three respectable negroes, heads of families, shall desire to settle on land, and shall have selected for that purpose an island or a locality clearly defined within the limits above designated, the Inspector of Settlements and Plantations will himself, or by such subordinate officer as he may appoint, give them a license to settle such island or district, and afford them such assistance as he can to enable them to establish a peaceable agricultural settlement. The three parties named will subdivide the land, under the supervision of the inspector, among themselves, and such others as may choose to settle near them, so that each family shall have a plot of not Edition: current; Page: [80] more than forty acres of tillable ground, and, when it borders on some water-channel, with not more than eight hundred feet waterfront, in the possession of which land the military authorities will afford them protection until such time as they can protect themselves, or until Congress shall regulate their title. The quartermaster may, on the requisition of the Inspector of Settlements and Plantations, place at the disposal of the inspector one or more of the captured steamers to ply between the settlements and one or more of the commercial points heretofore named, in order to afford the settlers the opportunity to supply their necessary wants, and to sell the products of their land and labor.

4. Whenever a negro has enlisted in the military service of the United States, he may locate his family in any one of the settlements at pleasure, and acquire a homestead, and all other rights and privileges of a settler, as though present in person. In like manner, negroes may settle their families and engage on board the gunboats, or in fishing, or in the navigation of the inland waters, without losing any claim to land or other advantages derived from this system. But no one, unless an actual settler as above defined, or unless absent on Government service, will be entitled to claim any right to land or property in any settlement by virtue of these orders.

5. In order to carry out this system of settlement, a general officer will be detailed as Inspector of Settlements and Plantations, whose duty it shall be to visit the settlements, to regulate their police and general arrangement, and who will furnish personally to each head of a family, subject to the approval of the President of the United States, a possessory title in writing, giving as near as possible the description of boundaries; and who shall adjust all claims or conflicts that may arise under the same, subject to the like approval, treating such titles altogether as possessory. The same general officer will also be charged with the enlistment and organization of the negro recruits, and protecting their interests while absent from their settlements; and will be governed by the rules and regulations prescribed by the War Department for such purposes.

6. Brigadier-General R. Saxton is hereby appointed Inspector of Settlements and Plantations, and will at once enter on the performance of his duties. No change is intended or desired in the settlement now on Beaufort Island, nor will any rights to property heretofore acquired be affected thereby.

By order of Major-General W. T. Sherman,

L. M. Dayton, Assistant Adjutant-General.
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  • Second Inaugural Address, Abraham Lincoln, 1865
  • Last Public Address, Abraham Lincoln, 1865

Tens of thousands of people stood in a mud-filled Pennsylvania Avenue on a stormy day to see Lincoln inaugurated as president for the second time and to hear a speech Lincoln himself considered among his best. By this time, the war was almost over (Lee would surrender on April 9), but the carnage of civil war, with over six hundred thousand soldiers dead, had been enormous, and the travails of Reconstruction were just beginning. Two days after Lee’s surrender, Lincoln would deliver his last public address, to a crowd of well-wishers gathered outside the White House. Addressing his policies for Reconstruction, Lincoln made his public statement in support of African American suffrage. Three days later Lincoln was shot dead by John Wilkes Booth, who had been in the audience at both the second inaugural and this last speech.

Second Inaugural Address

Abraham Lincoln
Fellow-Countrymen:

At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war—seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, Edition: current; Page: [82] in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Last Public Address

Abraham Lincoln

We meet this evening, not in sorrow, but in gladness of heart. The evacuation of Petersburg and Richmond, and the surrender of the principal insurgent army, give hope of a righteous and speedy peace whose joyous expression can not be restrained. In the midst of this, however, He, from Whom all blessings flow, must not be forgotten. A call for a national thanksgiving is being prepared, and will be duly promulgated. Nor must those whose harder part gives us the cause of rejoicing, be overlooked. Their honors must not be parcelled out with others. I myself, was near the front, and had the high pleasure of transmitting much of the good news to you; but no part of the honor, for plan or execution, is mine. To Gen. Grant, his skilful officers, and brave men, all belongs. The gallant Navy stood ready, but was not in reach to take active part.

By these recent successes the re-inauguration of the national authority—reconstruction—which has had a large share of thought from the first, is pressed much more closely upon our attention. It is fraught with great difficulty. Unlike the case of a war between independent nations, there is no authorized organ for us to treat with. No one man has authority to give up the rebellion for any other man. We simply must begin with, and mould from, disorganized and discordant elements. Nor is it a small additional embarrassment that we, the loyal people, differ among ourselves as to the mode, manner, and means of reconstruction.

As a general rule, I abstain from reading the reports of attacks upon myself, wishing not to be provoked by that to which I can not properly offer an answer. In spite of this precaution, however, it comes to my knowledge that I am much censured for some supposed agency in setting up, and seeking to sustain, the new State Government of Louisiana. In this I have done just so much as, and no more than, the public knows. In the Annual Message of Dec. 1863 and accompanying Proclamation, I presented a plan of re-construction (as the phrase goes) which, I promised, if adopted by any State, should be acceptable to, and sustained by, the Executive government of the nation. I distinctly stated that this was not the only plan which might possibly be acceptable; and I also distinctly protested that the Executive claimed no right to say when, or whether members should be admitted to seats in Congress from such States. This plan was, in advance, submitted to the then Cabinet, and distinctly approved by every member of it. One of them suggested that I should then, and in that connection, apply the Emancipation Proclamation to the theretofore excepted parts of Virginia and Louisiana; that I should drop the suggestion about apprenticeship for freed-people, and that I should omit the protest against my own power, in regard to the admission of members to Congress; but even he approved every part and parcel of the plan which has since been employed or touched by the action of Louisiana. The new constitution of Louisiana, declaring emancipation for the whole State, practically applies the Proclamation to the part previously excepted. It does not adopt apprenticeship for freed-people; and it is silent, as it could not well be otherwise, about the admission of members to Congress. So that, as it applies to Louisiana, every member of the Cabinet fully approved the plan. The Message went to Congress, and I received many commendations of the plan, written and verbal; and not a single objection to it, from any professed emancipationist, came to my knowledge, until after the news reached Washington that the people of Louisiana had begun to move in accordance with it. From about July 1862, I had corresponded Edition: current; Page: [83] with different persons, supposed to be interested, seeking a reconstruction of a State government for Louisiana. When the Message of 1863, with the plan before mentioned, reached New-Orleans, Gen. Banks wrote me that he was confident the people, with his military co-operation, would reconstruct, substantially on that plan. I wrote him, and some of them to try it; they tried it, and the result is known. Such only has been my agency in getting up the Louisiana government. As to sustaining it, my promise is out, as before stated. But, as bad promises are better broken than kept, I shall treat this as a bad promise, and break it, whenever I shall be convinced that keeping it is adverse to the public interest. But I have not yet been so convinced.

I have been shown a letter on this subject, supposed to be an able one, in which the writer expresses regret that my mind has not seemed to be definitely fixed on the question whether the seceded States, so called, are in the Union or out of it. It would perhaps, add astonishment to his regret, were he to learn that since I have found professed Union men endeavoring to make that question, I have purposely forborne any public expression upon it. As appears to me that question has not been, nor yet is, a practically material one, and that any discussion of it, while it thus remains practically immaterial, could have no effect other than the mischievous one of dividing our friends. As yet, whatever it may hereafter become, that question is bad, as the basis of a controversy, and good for nothing at all—a merely pernicious abstraction.

We all agree that the seceded States, so called, are out of their proper practical relation with the Union; and that the sole object of the government, civil and military, in regard to those States is to again get them into that proper practical relation. I believe it is not only possible, but in fact, easier, to do this, without deciding, or even considering, whether these States have even been out of the Union, than with it. Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Let us all join in doing the acts necessary to restoring the proper practical relations between these states and the Union; and each forever after, innocently indulge his own opinion whether, in doing the acts, he brought the States from without, into the Union, or only gave them proper assistance, they never having been out of it.

The amount of constituency, so to to [sic] speak, on which the new Louisiana government rests, would be more satisfactory to all, if it contained fifty, thirty, or even twenty thousand, instead of only about twelve thousand, as it does. It is also unsatisfactory to some that the elective franchise is not given to the colored man. I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers. Still the question is not whether the Louisiana government, as it stands, is quite all that is desirable. The question is “Will it be wiser to take it as it is, and help to improve it; or to reject, and disperse it?” “Can Louisiana be brought into proper practical relation with the Union sooner by sustaining, or by discarding her new State Government?”

Some twelve thousand voters in the heretofore slve-state of Louisiana have sworn allegiance to the Union, assumed to be the rightful political power of the State, held elections, organized a State government, adopted a free-state constitution, giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man. Their Legislature has already voted to ratify the constitutional amendment recently passed by Congress, abolishing slavery throughout the nation. These twelve thousand persons are thus fully committed to the Union, and to perpetual freedom in the state—committed to the very things, and nearly all the things the nation wants—and they ask the nation’s recognition, and its assistance to make good their committal. Now, if we reject, and spurn them, we do our utmost to disorganize and disperse them. We in effect say to the white men “You are worthless, or worse—we will neither help you, nor be helped by you.” To the blacks we say “This cup of liberty which these, your old masters, hold to your lips, we will dash from you, and leave you to the chances of gathering the spilled and scattered contents in some vague and undefined when, where, and how.” If this course, discouraging and paralyzing both white and black, has any tendency to bring Louisiana into proper practical relations with the Union, I have, so far, been unable to perceive it. If, on the contrary, we recognize, and sustain the new government of Louisiana the converse of all this is made true. We encourage the hearts, and nerve the arms of the twelve thousand to adhere to their work, and argue for it, and proselyte for it, and fight for it, and feed it, and grow it, and ripen it to a complete success. The colored man too, in seeing all united for him, is inspired with vigilance, and energy, and daring, to the same end. Grant that he desires the elective franchise, will he not attain it sooner by saving the already advanced steps toward it, than by running backward over them? Concede that the new government of Louisiana is only to what it should be as the egg is to the fowl, we shall Edition: current; Page: [84] sooner have the fowl by hatching the egg than by smashing it? Again, if we reject Louisiana, we also reject one vote in favor of the proposed amendment to the national constitution. To meet this proposition, it has been argued that no more than three fourths of those States which have not attempted secession are necessary to validly ratify the amendment. I do not commit myself against this, further than to say that such a ratification would be questionable, and sure to be persistently questioned; while a ratification by three fourths of all the States would be unquestioned and unquestionable.

I repeat the question. “Can Louisiana be brought into proper practical relation with the Union sooner by sustaining or by discarding her new State Government?[”]

What has been said of Louisiana will apply generally to other States. And yet so great peculiarities pertain to each state; and such important and sudden changes occur in the same state; and, withal, so new and unprecedented is the whole case, that no exclusive, and inflexible plan can safely be prescribed as to details and colatterals. Such exclusive, and inflexible plan, would surely become a new entanglement. Important principles may, and must, be inflexible.

In the present “situation” as the phrase goes, it may be my duty to make some new announcement to the people of the South. I am considering, and shall not fail to act, when satisfied that action will be proper.

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  • Constitution of Indiana, Article XIII, 1851
  • Black Code of Mississippi, 1865

While slavery had become a specifically Southern institution well before the Civil War, African Americans were subjected to numerous legal and constitutional disabilities throughout the North. States in what is today the Midwest were particularly insistent on discouraging African Americans from living within their borders. Such laws, the first of which was enacted in Ohio in 1804, banned African Americans from owning property, entering into contracts, and even residing in the state. The Indiana Constitution was part of a trend of increasing severity in such laws before the Civil War. Limits on African American rights in the North continued to be a sore spot for white Southerners opposed to post-Civil War legislation aimed at enfranchising and empowering their former slaves. Black Codes such as that in Mississippi bound African Americans to (generally agricultural or domestic) labor contracts, forbade free movement and voting, and sought to restrict social and educational as well as political conduct among African Americans.

Constitution of Indiana, Article XIII

ARTICLE XIII
NEGROES AND MULATTOES

Section 1. No negro or mulatto shall come into, or settle in, the State, after the adoption of this Constitution.

Sec. 2. All contracts made with any negro or mulatto coming into the State, contrary to the provisions of the foregoing section, shall be void; and any person who shall employ such negro or mulatto, or otherwise encourage him to remain in the State, shall be fined in any sum not less than ten dollars, nor more than five hundred dollars.

Sec. 3. All fines which may be collected for a violation of the provisions of this article, or of any law which may hereafter be passed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such negroes and mulattoes, and their descendants, as may be in the State at the adoption of this Constitution, and may be willing to emigrate.

Sec. 4. The General Assembly shall pass laws to carry out the provisions of this article.

Black Code of Mississippi

MISSISSIPPI
AN ACT to regulate the relation of master and apprentice, as relates to freedmen, free negroes, and mulattoes.

Section 1. It shall be the duty of all sheriffs, justices of the peace, and other civil officers of the several counties in this State, to report to the probate courts of their respective counties semi-annually, at the January and July terms of said courts, all freedmen, free negroes, and mulattoes, under the age of eighteen, in their respective counties, beats, or districts, who are orphans, or whose parent or parents have not the means or refuse to provide for and support said minors; and thereupon it shall be the duty of said probate court to order the clerk of said court to apprentice said minors to some competent and suitable person on such terms as the court may direct, having a particular care to the interest of said minor: Provided, That the former owner of said minors shall have the preference when, in the opinion of the court, he or she shall be a suitable person for that purpose.

Sec. 2. Be it further enacted, That the said court shall be fully satisfied that the person or persons to whom said minor shall be apprenticed shall be a suitable person to have the charge and care of said minor, and fully to protect the interest of said minor: Provided, That the said court shall require the Edition: current; Page: [86] said master or mistress to execute bond and security, payable to the State of Mississippi, conditioned that he or she shall furnish said minor with sufficient food and clothing; to treat said minor humanely; furnish medical attention in case of sickness; teach, or cause to be taught, him or her to read and write, if under fifteen years old, and will conform to any law that may be hereafter passed for the regulation of the duties and relation of master and apprentice: Provided, That said apprentice shall be bound by indenture, in case of males, until they are twenty-one years old, and in case of females until they are eighteen years old.

Sec. 3. Be it further enacted, That in the management and control of said apprentices, said master or mistress shall have the power to inflict such moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law: Provided, That in no case shall cruel or inhuman punishment be inflicted.

Sec. 4. Be it further enacted, That if any apprentice shall leave the employment of his or her master or mistress, without his or her consent, said master or mistress may pursue and recapture said apprentice, and bring him or her before any justice of the peace of the county, whose duty it shall be to remand said apprentice to the service of his or her master or mistress; and in the event of a refusal on the part of said apprentice so to return, then said justice shall commit said apprentice to the jail of said county, on failure to give bond, to the next term of the county court; and it shall be the duty of said court at the first term thereafter to investigate said case, and if the court shall be of opinion that said apprentice left the employment of his or her master or mistress without good cause, to order him or her to be punished, as provided for the punishment of hired freedmen, as may be from time to time provided for by law for desertion, until he or she shall agree to return to his or her master or mistress: Provided, That the court may grant continuances as in other cases: And provided further, That if the court shall believe that said apprentice had good cause to quit his said master or mistress, the court shall discharge said apprentice from said indenture, and also enter a judgment against the master or mistress for not more than one hundred dollars, for the use and benefit of said apprentice, to be collected on execution as in other cases.

Sec. 5. Be it further enacted, That if any person entice away any apprentice from his or her master or mistress, or shall knowingly employ an apprentice, or furnish him or her food or clothing without the written consent of his or her master or mistress, or shall sell or give said apprentice ardent spirits without such consent, said person so offending shall be deemed guilty of a high misdemeanor, and shall, on conviction thereof before the county court, be punished as provided for the punishment of persons enticing from their employer hired freedmen, free negroes or mulattoes.

Sec. 6. Be it further enacted, That it shall be the duty of all civil officers of their respective counties to report any minors within their respective counties to said probate court who are subject to be apprenticed under the provisions of this act, from time to time as the facts may come to their knowledge, and it shall be the duty of said court from time to time as said minors shall be reported to them, or otherwise come to their knowledge, to apprentice said minors, as hereinbefore provided.

Sec. 7. Be it further enacted, That in case the master or mistress of any apprentice shall desire, he or she shall have the privilege to summon his or her apprentice to the probate court, and thereupon, with the approval of the court, he or she shall be released from all liability as master of said apprentice, and his said bond shall be cancelled, and it shall be the duty of the court forthwith to re-apprentice said minor; and in the event any master of an apprentice shall die before the close of the term of service of said apprentice, it shall be the duty of the court to give the preference in re-apprenticing said minor to the widow or other member of said master’s family: Provided, That said widow or other member of said family shall be a suitable person for that purpose.

Sec. 8. Be it further enacted, That in case any master or mistress of any apprentice, bound to him or her under this act, shall be about to remove, or shall have removed, to any other State of the United States, by the laws of which such apprentice may be an inhabitant thereof, the probate court of the proper county may authorize the removal of such apprentice to such State upon said master or mistress entering into bond, with security, in a penalty to be fixed by the judge, conditioned that said master or mistress will, upon such removal, comply with the laws of such State in such cases: Provided, That said master shall be cited to attend the court at which such order is proposed to be made, and shall have a right to resist the same by next friend or otherwise.

Sec. 9. Be it further enacted, That it shall be lawful for any freedman, free negro, or mulatto, having a minor child or children, to apprentice the said minor child or children, as provided for by this act.

Sec. 10. Be it further enacted, That in all cases where the Edition: current; Page: [87] age of the freedman, free negro, or mulatto cannot be ascertained by record testimony, the judge of the the county court shall fix the age.

Sec. 11. Be it further enacted, That this act take effect and be in force from and after its passage.

Approved November 22, 1865.

AN ACT to amend the vagrant laws of the State.

Section 1. Be it enacted by the legislature of the State of Mississippi, That all rogues and vagabonds, idle and dissipated persons, beggars, jugglers, or persons practicing unlawful games or plays, runaways, common drunkards, common night-walkers, pilferers, lewd, wanton, or lascivious persons, in speech or behavior, common railers and brawlers, persons who neglect their calling or employment, misspend what they earn, or do not provide for the support of themselves or their families, or dependants, and all other idle and disorderly persons, including all who neglect all lawful business, habitually misspend their time by frequenting houses of ill-fame, gaming-houses, or tippling shops, shall be deemed and considered vagrants, under the provisions of this act, and on conviction thereof shall be fined not exceeding one hundred dollars, with all accruing costs, and be imprisoned, at the discretion of the court, not exceeding ten days.

Sec. 2. Be it further enacted, That all freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, without lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time, and all white persons so assembling themselves with freedmen, free negroes or mulattoes, or usually associating with freedmen, free negroes or mulattoes, on terms of equality, or living in adultery or fornication with a freed woman, free negro or mulatto, shall be deemed vagrants, and on conviction thereof shall be fined in a sum not exceeding, in the case of a freedman, free negro, or mulatto, fifty dollars, and a white man two hundred dollars, and imprisoned, at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months.

Sec. 3. Be it further enacted, That all justices of the peace, mayors, and aldermen of incorporated towns and cities of the several counties in this State shall have jurisdiction to try all questions of vagrancy in their respective towns, counties, and cities, and it is hereby made their duty, whenever they shall ascertain that any person or persons in their respective towns, counties, and cities are violating any of the provisions of this act, to have said party or parties arrested, and brought before them, and immediately investigate said charge, and, on conviction, punish said party or parties, as provided for herein. And it is hereby made the duty of all sheriffs, constables, town constables, and all such like officers, and city marshals, to report to some officer having jurisdiction all violations of any of the provisions of this act, and it shall be the duty of the county courts to inquire if any officers have neglected any of the duties required by this act, and in case any officer shall fail or neglect any duty herein it shall be the duty of the county court to fine said officer, upon conviction, not exceeding one hundred dollars, to be paid into the county treasury for county purposes.

Sec. 4. Be it further enacted, That keepers of gaming-houses, houses of prostitution, prostitutes, public or private, and all persons who derive their chief support in employments that militate against good morals, or against law, shall be deemed and held to be vagrants.

Sec. 5. Be it further enacted, That all fines and forfeitures collected under the provisions of this act shall be paid into the county treasury for general county purposes, and in case any freedman, free negro or mulatto shall fail for five days after the imposition of any fine or forfeiture upon him or her for violation of any of the provisions of this act to pay the same, that it shall be, and is hereby, made the duty of the sheriff of the proper county to hire out said freedman, free negro or mulatto, to any person who will, for the shortest period of service, pay said fine or forfeiture and all costs: Provided, A preference shall be given to the employer, if there be one, in which case the employer shall be entitled to deduct and retain the amount so paid from the wages of such freedman, free negro or mulatto, then due or to become due; and in case said freedman, free negro, or mulatto cannot be hired out, he or she may be dealt with as a pauper.

Sec. 6. Be it further enacted, That the same duties and liabilities existing among white persons of this State shall attach to freedmen, free negroes and mulattoes, to support their indigent families and all colored paupers; and that in order to secure a support for such indigent freedmen, free negroes, and mulattoes, it shall be lawful, and it is hereby made the duty of the boards of county police of each county in this State, to levy a poll or capitation tax on each and every freedmen, free negro, or mulatto, between the ages of eighteen and sixty years, not to exceed the sum of one dollar annually to each person so taxed, which tax, when collected, shall be paid into the county treasurer’s hands, and constitute a fund to be Edition: current; Page: [88] called the Freedmen’s Pauper Fund, which shall be applied by the commissioners of the poor for the maintenance of the poor of the freedmen, free negroes, or mulattoes of this State, under such regulations as may be established by the boards of county police in the respective counties of this State.

Sec. 7. Be it further enacted, That if any freedman, free negro, or mulatto shall fail or refuse to pay any tax levied according to the provisions of the sixth section of this act, it shall be prima facie evidence of vagrancy, and it shall be the duty of the sheriff to arrest such freedman, free negro, or mulatto, or such person refusing or neglecting to pay such tax, and proceed at once to hire for the shortest time such delinquent tax-payer to any one who will pay the said tax, with accruing costs, giving preference to the employer, if there be one.

Sec. 8. Be it further enacted, That any person feeling himself or herself aggrieved by the judgment of any justice of the peace, mayor, or alderman in cases arising under this act, may within five days appeal to the next term of the county court of the proper county, upon giving bond and security in a sum not less than twenty-five nor more than one hundred and fifty dollars, conditioned to appear and prosecute said appeal, and abide by the judgment of the county court; and said appeal shall be tried de novo in the county court, and the decision of said court shall be final.

Sec. 9. Be it further enacted, That this act be in force and take effect from its passage.

Approved November 24, 1865.

AN ACT to confer civil rights on freedmen, and for other purposes.

Section 1. Be it enacted by the legislature of the State of Mississippi, That all freedmen, free negroes, and mulattoes may sue and be sued, implead and be impleaded, in all the courts of law and equity of this State, and may acquire personal property, and choses in action, by descent or purchase, and may dispose of the same in the same manner and to the same extent that white persons may: Provided, That the provision of this section shall not be so construed as to allow any freedman, free negro, or mulatto to rent or lease any lands or tenements except in incorporated towns or cities, in which places the corporate authorities shall control the same.

Sec. 2. Be it further enacted, That all freedmen, free negroes, and mulattoes may intermarry with each other, in the same manner and under the same regulations that are provided by law for white persons: Provided, That the clerk of probate shall keep separate records of the same.

Sec. 3. Be it further enacted, That all freedmen, free negroes, and mulattoes who do now and have heretofore lived and cohabited together as husband and wife shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate for all purposes; that it shall not be lawful for any freedman, free negro, or mulatto to intermarry with any white person; nor for any white person to intermarry with any freedman, free negro, or mulatto; and any person who shall so intermarry shall be deemed guilty of felony, and on conviction thereof shall be confined in the State penitentiary for life; and those shall be deemed freedmen, free negroes, and mulattoes who are of pure negro blood, and those descended from a negro to the third generation, inclusive, though one ancestor in each generation may have been a white person.

Sec. 4. Be it further enacted, That in addition to cases in which freedmen, free negroes, and mulattoes are now by law competent witnesses, freedmen, free negroes, or mulattoes shall be competent in civil cases, when a party or parties to the suit, either plaintiff or plaintiffs, defendant or defendants; also in cases where freedmen, free negroes, and mulattoes is or are either plaintiff or plaintiffs, defendant or defendants, and a white person or white persons is or are the opposing party or parties, plaintiff or plaintiffs, defendant or defendants. They shall also be competent witnesses in all criminal prosecutions where the crime charged is alleged to have been committed by a white person upon or against the person or property of a freedman, free negro, or mulatto: Provided, That in all cases said witnesses shall be examined in open court, on the stand; except, however, they may be examined before the grand jury, and shall in all cases be subject to the rules and tests of the common law as to competency and credibility.

Sec. 5. Be it further enacted, That every freedman, free negro, and mulatto shall, on the second Monday of January, one thousand eight hundred and sixty-six, and annually thereafter, have a lawful home or employment, and shall have written evidence thereof as follows, to wit: If living in any incorporated city, town, or village, a license from the mayor thereof; and if living outside of any incorporated city, town, or village, from the member of the board of police of his beat, authorizing him or her to do irregular and job work; or a written contract, as provided in section sixth of this act; which licenses may be revoked for cause at any time by the authority granting the same.

Sec. 6. Be it further enacted, That all contracts for labor made with freedmen, free negroes, and mulattoes for a longer period than one month shall be in writing, and in duplicate, Edition: current; Page: [89] attested and read to said freedman, free negro, or mulatto by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to be performed, of which each party shall have one; and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer before expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.

Sec. 7. Be it further enacted, That every civil officer shall, and every person may, arrest and carry back to his or her legal employer any freedman, free negro, or mulatto who shall have quit the service of his or her employer before the expiration of his or her term of service without good cause; and said officer and person shall be entitled to receive for arresting and carrying back every deserting employé aforesaid the sum of five dollars, and ten cents per mile from the place of arrest to the place of delivery; and the same shall be paid by the employer, and held as a set-off for so much against the wages of said deserting employé: Provided, That said arrested party, after being so returned, may appeal to a justice of the peace or member of the board of police of the county, who, on notice to the alleged employer, shall try summarily whether said appellant is legally employed by the alleged employer, and has good cause to quit said employer. Either party shall have the right of appeal to the county court, pending which the alleged deserter shall be remanded to the alleged employer or otherwise disposed of, as shall be right and just; and the decision of the county court shall be final.

Sec. 8. Be it further enacted, That, upon affidavit made by the employer of any freedman, free negro, or mulatto, or other credible person, before any justice of the peace or member of the board of police, that any freedman, free negro, or mulatto legally employed by said employer has illegally deserted said employment, such justice of the peace or member of the board of police shall issue his warrant or warrants, returnable before himself or other such officer, to any sheriff, constable, or special deputy, commanding him to arrest said deserter, and return him or her to said employer, and the like proceedings shall be had as provided in the preceding section; and it shall be lawful for any officer to whom such warrant shall be directed to execute said warrant in any county of this State; and that said warrant may be transmitted without indorsement to any like officer of another county, to be executed and returned as aforesaid; and the said employer shall pay the costs of said warrants and arrest and return, which shall be set off for so much against the wages of said deserter.

Sec. 9. Be it further enacted, That if any person shall persuade or attempt to persuade, entice, or cause any freedman, free negro, or mulatto to desert from the legal employment of any person before the expiration of his or her term of service, or shall knowingly employ any such deserting freedman, free negro, or mulatto, or shall knowingly give or sell to any such deserting freedman, free negro, or mulatto any food, raiment, or other thing, he or she shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty-five dollars and not more than two hundred dollars and the costs; and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding two months’ imprisonment in the county jail, and he or she shall moreover be liable to the party injured in damages: Provided, If any person shall, or shall attempt to, persuade, entice, or cause any freedman, free negro, or mulatto to desert from any legal employment of any person, with the view to employ said freedman, free negro, or mulatto without the limits of this State, such person, on conviction, shall be fined not less than fifty dollars and not more than five hundred dollars and costs; and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding six months’ imprisonment in the county jail.

Sec. 10. Be it further enacted, That it shall be lawful for any freedman, free negro or mulatto, to charge any white person, freedman, free negro or mulatto, by affidavit, with any criminal offence against his or her person or property, and upon such affidavit the proper process shall be issued and executed as if said affidavit was made by a white person, and it shall be lawful for any freedman, free negro or mulatto, in any action, suit or controversy pending, or about to be instituted in any court of law or equity of this State, to make all needful and lawful affidavits as shall be necessary for the institution, prosecution or defence of such suit or controversy.

Sec. 11. Be it further enacted, That the penal laws of this State, in all cases not otherwise specially provided for, shall apply and extend to all freedmen, free negroes and mulattoes.

Sec. 12. Be it further enacted, That this act take effect and be in force from and after its passage.

Approved November 25, 1865.

AN ACT to punish certain offences therein named, and for other purposes.

Section 1. Be it enacted by the legislature of the State of Mississippi, That no freedman, free negro or mulatto, not in the military service of the United States government, and not Edition: current; Page: [90] licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie-knife, and on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed for trial in default of bail.

Sec. 2. Be it further enacted, That any freedman, free negro, or mulatto committing riots, routs, affrays, trespasses, malicious mischief, cruel treatment to animals, seditious speeches, insulting gestures, language, or acts, or assaults on any person, disturbance of the peace, exercising the function of a minister of the gospel without a license from some regularly organized church, vending spirituous or intoxicating liquors, or committing any other misdemeanor, the punishment of which is not specifically provided for by law, shall, upon conviction thereof in the county court, be fined, not less than ten dollars, and not more than one hundred dollars, and may be imprisoned at the discretion of the court, not exceeding thirty days.

Sec. 3. Be it further enacted, That if any white person shall sell, lend, or give to any freedman, free negro, or mulatto any fire-arms, dirk or bowie-knife, or ammunition, or any spirituous or intoxicating liquors, such person or persons so offending, upon conviction thereof in the county court of his or her county, shall be fined not exceeding fifty dollars, and may be imprisoned, at the discretion of the court, not exceeding thirty days: Provided, That any master, mistress, or employer of any freedman, free negro, or mulatto, may give to any freedman, free negro, or mulatto, apprenticed to or employed by such master, mistress, or employer, spirituous or intoxicating liquors, but not in sufficient quantities to produce intoxication.

Sec. 4. Be it further enacted, That all the penal and criminal laws now in force in this State, defining offences and prescribing the mode of punishment for crimes and misdemeanors committed by slaves, free negroes, or mulattoes, be, and the same are hereby, re-enacted and declared to be in full force and effect, against freedmen, free negroes, and mulattoes, except so far as the mode and manner of trial and punishment have been changed or altered by law.

Sec. 5. Be it further enacted, That if any freedman, free negro, or mulatto, convicted of any of the misdemeanors provided against in this act, shall fail or refuse for the space of five days, after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs, and take said convict for the shortest time.

Sec. 6. Be it further enacted, That this act shall be in force and take effect from and after its passage.

Approved November 29, 1865.

AN ACT supplementary to “An act to confer civil rights upon freedmen,” and for other purposes.

Section 1. Be it enacted by the legislature of the State of Mississippi, That in every case where any white person has been arrested and brought to trial by virtue of the provisions of the tenth section of the above-recited act, in any court in this State, upon sufficient proof being made to the court or jury, upon the trial before said court, that any freedman, free negro, or mulatto has falsely and maliciously caused the arrest and trial of said person or persons, the court shall render up a judgment against said freedman, free negro, or mulatto for all costs of the case, and impose a fine not to exceed fifty dollars, and imprisonment in the county jail not to exceed twenty days; and for a failure of said freedman, free negro, or mulatto to pay or cause to be paid all fines, costs, and jail fees, the sheriff of the county is hereby authorized and required, after giving ten days’ public notice, to proceed to hire out at public outcry at the court-house of the county said freedman, free negro, or mulatto for the shortest time, to raise the amount necessary to discharge said freedman, free negro, or mulatto from all costs, fines, and jail fees aforesaid.

Sec. 2. Be it further enacted, That this act shall take effect and be in force from and after its passage.

Approved December 2, 1865.

Edition: current; Page: [91]
  • U.S. Constitution, Thirteenth Amendment, 1865
  • Freedmen’s Bureau Bill, 1865
  • Second Freedmen’s Bureau Bill, 1865
  • Veto of the Second Freedmen’s Bureau Bill, Andrew Johnson, 1866
  • Civil Rights Act of 1866

Recommended by Congress for state ratification on January 31, 1865, the Thirteenth Amendment freed slaves held in Delaware and Kentucky, enshrined the Emancipation Proclamation’s freeing of other slaves in the Constitution, banned other forms of involuntary servitude (other than for convicted felons), and empowered Congress to enforce its provisions. But this did not address the predicament of freed slaves and Union loyalist whites in the South, where they were subjected to extreme economic and political deprivations. To this end Congress established the Bureau for the Relief of Freedmen and Refugees, or “Freedmen’s Bureau,” as an agency within the War Department. The bureau distributed food, clothing, and medicine. It also undertook projects intended to educate freedmen, settle them on confiscated land (which it administered), facilitate marriages, and maintain records regarding freedmen’s conditions. Several Southern states responded by passing Black Codes. Congress thereupon sought to extend the bureau’s tenure and increase its ability to protect African American rights. Congress also passed the Civil Rights Act, which declared all African Americans to be citizens and guaranteed them a number of corresponding rights. To the surprise of observers at the time, President Andrew Johnson vetoed both bills, objecting to what he argued was an unconstitutional continuation of war measures in time of peace and continued treatment of states that had been returned to the Union as conquered territories. Congress fell two votes short of the two-thirds majority needed to pass the Second Freedmen’s Bureau Bill over the president’s veto but did override his veto of the Civil Rights Act.

U.S. Constitution, Thirteenth Amendment

Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2

Congress shall have power to enforce this article by appropriate legislation.

Freedmen’s Bureau Bill

An Act to establish a Bureau for the Relief of Freedmen and Refugees.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is hereby established in the War Department, to continue during the present war of rebellion, and for one year thereafter, a bureau of refugees, freedmen, and abandoned lands, to which shall be committed, as hereinafter provided, the supervision and management of all abandoned lands, and the Edition: current; Page: [92] control of all subjects relating to refugees and freedmen from rebel states, or from any district or county within the territory embraced in the operations of the army, under such rules and regulations as may be prescribed by the head of the bureau and approved by the President. The said bureau shall be under the management and control of a commissioner to be appointed by the President, by and with the advice and consent of the Senate, whose compensation shall be three thousand dollars per annum, and such number of clerks as may be assigned to him by the Secretary of War, not exceeding one chief clerk, two of the fourth class, two of the third class, and five of the first class. And the commissioner and all persons appointed under this act, shall, before entering upon their duties, take the oath of office prescribed in an act entitled “An act to prescribe an oath of office, and for other purposes,” approved July second, eighteen hundred and sixty-two, and the commissioner and the chief clerk shall, before entering upon their duties, give bonds to the treasurer of the United States, the former in the sum of fifty thousand dollars, and the latter in the sum of ten thousand dollars, conditioned for the faithful discharge of their duties respectively, with securities to be approved as sufficient by the Attorney-General, which bonds shall be filed in the office of the first comptroller of the treasury, to be by him put in suit for the benefit of any injured party upon any breach of the conditions thereof.

Sec. 2. And be it further enacted, That the Secretary of War may direct such issues of provisions, clothing, and fuel, as he may deem needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children, under such rules and regulations as he may direct.

Sec. 3. And be it further enacted, That the President may, by and with the advice and consent of the Senate, appoint an assistant commissioner for each of the states declared to be in insurrection, not exceeding ten in number, who shall, under the direction of the commissioner, aid in the execution of the provisions of this act; and he shall give a bond to the Treasurer of the United States, in the sum of twenty thousand dollars, in the form and manner prescribed in the first section of this act. Each of said commissioners shall receive an annual salary of two thousand five hundred dollars in full compensation for all his services. And any military officer may be detailed and assigned to duty under this act without increase of pay or allowances. The commissioner shall, before the commencement of each regular session of congress, make full report of his proceedings with exhibits of the state of his accounts to the President, who shall communicate the same to congress, and shall also make special reports whenever required to do so by the President or either house of congress; and the assistant commissioners shall make quarterly reports of their proceedings to the commissioner, and also such other special reports as from time to time may be required.

Sec. 4. And be it further enacted, That the commissioner, under the direction of the President, shall have authority to set apart, for the use of loyal refugees and freedmen, such tracts of land within the insurrectionary states as shall have been abandoned, or to which the United States shall have acquired title by confiscation or sale, or otherwise, and to every male citizen, whether refugee or freedman, as aforesaid, there shall be assigned not more than forty acres of such land, and the person to whom it was so assigned shall be protected in the use and enjoyment of the land for the term of three years at an annual rent not exceeding six per centum upon the value of such land, as it was appraised by the state authorities in the year eighteen hundred and sixty, for the purpose of taxation, and in case no such appraisal can be found, then the rental shall be based upon the estimated value of the land in said year, to be ascertained in such manner as the commissioner may by regulation prescribe. At the end of said term, or at any time during said term, the occupants of any parcels so assigned may purchase the land and receive such title thereto as the United States can convey, upon paying therefor the value of the land, as ascertained and fixed for the purpose of determining the annual rent aforesaid.

Sec. 5. And be it further enacted, That all acts and parts of acts inconsistent with the provisions of this act, are hereby repealed.

Second Freedmen’s Bureau Bill

AN ACT to amend an act entitled “An act to establish a Bureau for the relief of Freedmen and Refugees,” and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act to establish a Bureau for the relief of Freedmen and Refugees, approved March three, eighteen hundred and sixty-five, shall continue in force until otherwise provided by Edition: current; Page: [93] law, and shall extend to refugees and freedmen in all parts of the United States, and the President may divide the section of country containing such refugees and freedmen into districts, each containing one or more States, not to exceed twelve in number, and, by and with the advice and consent of the Senate, appoint an Assistant Commissioner for each of said districts, who shall give like bond, receive the compensation, and perform the duties prescribed by this and the act to which this is an amendment; or said bureau may, in the discretion of the President, be placed under a Commissioner and Assistant Commissioners, to be detailed from the army, in which event each officer so assigned to duty shall serve without increase of pay or allowances.

Sec. 2. And be it further enacted, That the Commissioner, with the approval of the President, and when the same shall be necessary for the operations of the bureau, may divide each district into a number of sub-districts, not to exceed the number of counties or parishes in such district, and shall assign to each sub-district at least one agent, either a citizen, officer of the army, or enlisted man, who, if an officer, shall serve without additional compensation or allowance, and if a citizen or enlisted man, shall receive a salary of not less than five hundred dollars nor more than twelve hundred dollars annually, according to the services rendered, in full compensation for such services; and such agent shall, before entering on the duties of his office, take the oath prescribed in the first section of the act to which this is an amendment. And the Commissioner may, when the same shall be necessary, assign to each Assistant Commissioner not exceeding three clerks, and to each of said agents one clerk, at an annual salary not exceeding one thousand dollars each, provided suitable clerks cannot be detailed from the army. And the President of the United States, through the War Department, and the Commissioner, shall extend military jurisdiction and protection over all employés, agents, and officers of this bureau in the exercise of the duties imposed or authorized by this act or the act to which this is additional.

Sec. 3. And be it further enacted, That the Secretary of War may direct such issues of provisions, clothing, fuel, and other supplies, including medical stores and transportation, and afford such aid, medical or otherwise, as he may deem needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen, their wives and children, under such rules and regulations as he may direct: Provided, That no person shall be deemed “destitute,” “suffering,” or “dependent upon the government for support,” within the meaning of this act, who, being able to find employment, could by proper industry and exertion avoid such destitution, suffering, or dependence.

Sec. 4. And be it further enacted, That the President is hereby authorized to reserve from sale or from settlement, under the homestead or pre-emption laws, and to set apart for the use of freedmen and loyal refugees, male or female, unoccupied public lands in Florida, Mississippi, Alabama, Louisiana, and Arkansas, not exceeding in all three millions of acres of good land; and the Commissioner, under the direction of the President, shall cause the same from time to time to be allotted and assigned, in parcels not exceeding forty acres each, to the loyal refugees and freedmen, who shall be protected in the use and enjoyment thereof for such term of time and at such annual rent as may be agreed on between the Commissioner and such refugees or freedmen. The rental shall be based upon a valuation of the land, to be ascertained in such manner as the Commissioner may, under the direction of the President, by regulation prescribe. At the end of such term, or sooner, if the Commissioner shall assent thereto, the occupants of any parcels so assigned, their heirs and assigns, may purchase the land and receive a title thereto from the United States in fee, upon paying therefor the value of the land ascertained as aforesaid.

Sec. 5. And be it further enacted, That the occupants of land under Major General Sherman’s special field order, dated at Savannah, January sixteen, eighteen hundred and sixty-five, are hereby confirmed in their possession for the period of three years from the date of said order, and no person shall be disturbed in or ousted from said possession during said three years, unless a settlement shall be made with said occupant, by the former owner, his heirs, or assigns, satisfactory to the Commissioner of the Freedmen’s Bureau: Provided, That whenever the former owners of lands occupied under General Sherman’s field order shall make application for restoration of said lands, the Commissioner is hereby authorized, upon the agreement and with the written consent of said occupants, to procure other lands for them by rent or purchase, not exceeding forty acres for each occupant, upon the terms and conditions named in section four of this act, or to set apart for them, out of the public lands assigned for that purpose in section four of this act, forty acres each, upon the same terms and conditions.

Sec. 6. And be it further enacted, That the Commissioner shall, under the direction of the President, procure in the name of the United States, by grant or purchase, such lands within the districts aforesaid as may be required for refugees and freedmen dependent on the government for support; and Edition: current; Page: [94] he shall provide or cause to be erected suitable buildings for asylums and schools. But no such purchase shall be made, nor contract for the same entered into, nor other expense incurred, until after appropriations shall have been provided by Congress for such purposes. And no payments shall be made for lands purchased under this section, except for asylums and schools, from any moneys not specifically appropriated therefor. And the Commissioner shall cause such lands from time to time to be valued, allotted, assigned, and sold in manner and form provided in the fourth section of this act, at a price not less than the cost thereof to the United States.

Sec. 7. And be it further enacted, That whenever in any State or district in which the ordinary course of judicial proceedings has been interrupted by the rebellion, and wherein, in consequence of any State or local law, ordinance, police or other regulation, custom, or prejudice, any of the civil rights or immunities belonging to white persons, including the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms, are refused or denied to negroes, mulattoes, freedmen, refugees, or any other persons, on account of race, color, or any previous condition of slavery or involuntary servitude, or wherein they or any of them are subjected to any other or different punishment, pains, or penalties, for the commission of any act or offence, than are prescribed for white persons committing like acts or offences, it shall be the duty of the President of the United States, through the Commissioner, to extend military protection and jurisdiction over all cases affecting such persons so discriminated against.

Sec. 8. And be it further enacted, That any person who, under color of any State or local law, ordinance, police, or other regulation or custom, shall, in any State or district in which the ordinary course of judicial proceedings has been interrupted by the rebellion, subject, or cause to be subjected, any negro, mulatto, freedman, refugee, or other person, on account of race or color, or any previous condition of slavery or involuntary servitude, or for any other cause, to the deprivation of any civil right secured to white persons, or to any other or different punishment than white persons are subject to for the commission of like acts or offences, shall be deemed guilty of a misdemeanor, and be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both; and it shall be the duty of the officers and agents of this bureau to take jurisdiction of, and hear and determine all offences committed against the provisions of this section, and also of all cases affecting negroes, mulattoes, freedmen, refugees, or other persons who are discriminated against in any of the particulars mentioned in the preceding section of this act, under such rules and regulations as the President of the United States, through the War Department, shall prescribe. The jurisdiction conferred by this and the preceding section on the officers and agents of this bureau shall cease and determine whenever the discrimination on account of which it is conferred ceases, and in no event to be exercised in any State in which the ordinary course of judicial proceedings has not been interrupted by the rebellion, nor in any such State after said State shall have been fully restored in all its constitutional relations to the United States, and the courts of the State and of the United States within the same are not disturbed or stopped in the peaceable course of justice.

Sec. 9. And be it further enacted, That all acts, or parts of acts, inconsistent with the provisions of this act are hereby repealed.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
LA FAYETTE S. FOSTER,
President of the Senate, pro tempore.
I certify that this act did originate in the Senate.
J. W. FORNEY, Secretary.

Veto of the Second Freedmen’s Bureau Bill

Andrew Johnson

MESSAGE of the PRESIDENT OF THE UNITED STATES, returning

Bill (S. 60) to amend an act entitled “An act to establish a Bureau for the relief of Freedmen and Refugees,” and for other purposes, with his objections thereto.

February 19, 1866—Read and ordered to be printed.

To the Senate of the United States:

I have examined with care the bill which originated in the Senate, and has been passed by the two houses of Congress, to Edition: current; Page: [95] amend an act entitled “An act to establish a Bureau for the relief of Freedmen and Refugees,” and for other purposes. Having, with much regret, come to the conclusion that it would not be consistent with the public welfare to give my approval to the measure, I return the bill to the Senate with my objections to its becoming a law.

I might call to mind, in advance of these objections, that there is no immediate necessity for the proposed measure. The act to establish a Bureau for the relief of Freedmen and Refugees, which was approved in the month of March last, has not yet expired. It was thought stringent and extensive enough for the purpose in view in time of war. Before it ceases to have effect, further experience may assist to guide us to a wise conclusion as to the policy to be adopted in time of peace.

I share with Congress the strongest desire to secure to the freedmen the full enjoyment of their freedom and property, and their entire independence and equality in making contracts for their labor; but the bill before me contains provisions which, in my opinion, are not warranted by the Constitution, and are not well suited to accomplish the end in view.

The bill proposes to establish, by authority of Congress, military jurisdiction over all parts of the United States containing refugees and freedmen. It would, by its very nature, apply with most force to those parts of the United States in which the freedmen most abound; and it expressly extends the existing temporary jurisdiction of the Freedmen’s Bureau, with greatly enlarged powers, over those States “in which the ordinary course of judicial proceedings has been interrupted by the rebellion.” The source from which this military jurisdiction is to emanate is none other than the President of the United States, acting through the War Department and the Commissioner of the Freedmen’s Bureau. The agents to carry out this military jurisdiction are to be selected either from the army or from civil life; the country is to be divided into districts and subdistricts, and the number of salaried agents to be employed may be equal to the number of counties or parishes in all the United States where freedmen and refugees are to be found.

The subjects over which this military jurisdiction is to extend in every part of the United States include protection to “all employés, agents, and officers of this bureau in the exercise of the duties imposed” upon them by the bill. In eleven States it is further to extend over all cases affecting freedmen and refugees discriminated against “by local law, custom, or prejudice.” In those eleven States, the bill subjects any white person who may be charged with depriving a freedman of “any civil rights or immunities belonging to white persons” to imprisonment or fine, or both, without, however, defining the “civil rights and immunities” which are thus to be secured to the freedmen by military law. This military jurisdiction also extends to all questions that may arise respecting contracts. The agent who is thus to exercise the office of a military judge may be a stranger, entirely ignorant of the laws of the place, and exposed to the errors of judgment to which all men are liable. The exercise of power, over which there is no legal supervision, by so vast a number of agents as is contemplated by the bill, must, by the very nature of man, be attended by acts of caprice, injustice, and passion.

The trials, having their origin under this bill, are to take place without the intervention of a jury, and without any fixed rules of law or evidence. The rules on which offences are to be “heard and determined” by the numerous agents are such rules and regulations as the President, through the War Department, shall prescribe. No previous presentment is required, nor any indictment charging the commission of a crime against the laws; but the trial must proceed on charges and specifications. The punishment will be—not what the law declares, but such as a court-martial may think proper; and from these arbitrary tribunals there lies no appeal, no writ of error to any of the courts in which the Constitution of the United States vests exclusively the judicial power of the country.

While the territory and the classes of actions and offences that are made subject to this measure are so extensive, the bill itself, should it become a law, will have no limitation in point of time, but will form a part of the permanent legislation of the country. I cannot reconcile a system of military jurisdiction of this kind with the words of the Constitution, which declare that “no person shall be held to answer for a capital or otherwise infamous crime unless upon a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia when in actual service in time of war or public danger”; and that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State or district wherein the crime shall have been committed.” The safeguards which the experience and wisdom of ages taught our fathers to establish as securities for the protection of the innocent, the punishment of the guilty, and the equal administration of justice, are to be set aside, and, for the sake of a more vigorous interposition in behalf of justice, we are to take the risks of the many acts of injustice that would necessarily follow from an almost countless number of agents, established in every parish or county, in nearly a third of the States of the Union, over whose decisions Edition: current; Page: [96] there is to be no supervision or control by the federal courts. The power that would be thus placed in the hands of the President is such as in time of peace certainly ought never to be intrusted to any one man.

If it be asked whether the creation of such a tribunal within a State is warranted as a measure of war, the question immediately presents itself whether we are still engaged in war. Let us not unnecessarily disturb the commerce, and credit, and industry of the country, by declaring to the American people and to the world that the United States are still in a condition of civil war. At present there is no part of our country in which the authority of the United States is disputed. Offences that may be committed by individuals should not work a forfeiture of the rights of whole communities. The country has returned or is returning to a state of peace and industry, and the rebellion is, in fact, at an end. The measure, therefore, seems to be as inconsistent with the actual condition of the country as it is at variance with the Constitution of the United States.

If, passing from general considerations, we examine the bill in detail, it is open to weighty objections.

In time of war it was eminently proper that we should provide for those who were passing suddenly from a condition of bondage to a state of freedom. But this bill proposes to make the Freedmen’s Bureau, established by the act of 1865, as one of many great and extraordinary military measures to suppress a formidable rebellion, a permanent branch of the public administration, with its powers greatly enlarged. I have no reason to suppose, and I do not understand it to be alleged, that the act of March, 1865, has proved deficient for the purpose for which it was passed, although at that time, and for a considerable period thereafter, the government of the United States remained unacknowledged in most of the States whose inhabitants had been involved in the rebellion. The institution of slavery, for the military destruction of which the Freedmen’s Bureau was called into existence as an auxiliary, has been already effectually and finally abrogated throughout the whole country by an amendment of the Constitution of the United States, and practically its eradication has received the assent and concurrence of most of those States in which it at any time had an existence. I am not, therefore, able to discern, in the condition of the country, anything to justify an apprehension that the powers and agencies of the Freedmen’s Bureau, which were effective for the protection of freedmen and refugees during the actual continuance of hostilities and of African servitude, will now, in a time of peace, and after the abolition of slavery, prove inadequate to the same proper ends. If I am correct in these views there can be no necessity for the enlargement of the powers of the bureau for which provision is made in the bill.

The third section of the bill authorizes a general and unlimited grant of support to the destitute and suffering refugees and freedmen, their wives and children. Succeeding sections make provision for the rent or purchase of landed estates for freedmen, and for the erection, for their benefit, of suitable buildings for asylums and schools—the expenses to be defrayed from the treasury of the whole people. The Congress of the United States has never heretofore thought itself empowered to establish asylums beyond the limits of the District of Columbia, except for the benefit of our disabled soldiers and sailors. It has never founded schools for any class of our own people; not even for the orphans of those who have fallen in the defence of the Union, but has left the care of education to the much more competent and efficient control of the States, of communities, of private associations, and of individuals. It has never deemed itself authorized to expend the public money for the rent or purchase of homes for the thousands, not to say millions of the white race, who are honestly toiling from day to day for their subsistence. A system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution; nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another. Pending the war many refugees and freedmen received support from the government, but it was never intended that they should thenceforth be fed, clothed, educated, and sheltered by the United States. The idea on which the slaves were assisted to freedom was that, on becoming free, they would be a self-sustaining population. Any legislation that shall imply that they are not expected to attain a self-sustaining condition must have a tendency injurious alike to their character and their prospects.

The appointment of an agent for every county and parish will create an immense patronage; and the expense of the numerous officers and their clerks, to be appointed by the President, will be great in the beginning, with a tendency steadily to increase. The appropriations asked by the Freedmen’s Bureau, as now established for the year 1866, amount to $11,745,000. It may be safely estimated that the cost to be incurred under the pending bill will require double that amount—more than the entire sum expended in any one Edition: current; Page: [97] year under the administration of the second Adams. If the presence of agents in every parish and county is to be considered as a war measure, opposition, or even resistance might be provoked; so that, to give effect to their jurisdiction, troops would have to be stationed within reach of every one of them, and thus a large standing force be rendered necessary. Large appropriations would, therefore, be required to sustain and enforce military jurisdiction in every county or parish from the Potomac to the Rio Grande. The condition of our fiscal affairs is encouraging; but, in order to sustain the present measure of public confidence, it is necessary that we practice, not merely customary economy, but, as far as possible, severe retrenchment.

In addition to the objections already stated, the fifth section of the bill proposes to take away land from its former owners without any legal proceedings being first had, contrary to that provision of the Constitution which declares that no person shall “be deprived of life, liberty, or property without due process of law.” It does not appear that a part of the lands to which this section refers may not be owned by minors, or persons of unsound mind, or by those who have been faithful to all their obligations as citizens of the United States. If any portion of the land is held by such persons, it is not competent for any authority to deprive them of it. If, on the other hand, it be found that the property is liable to confiscation, even then it cannot be appropriated to public purposes until, by due process of law, it shall have been declared forfeited to the government.

There is still further objection to the bill on grounds seriously affecting the class of persons to whom it is designed to bring relief. It will tend to keep the mind of the freedman in a state of uncertain expectation and restlessness, while to those among whom he lives it will be a source of constant and vague apprehension.

Undoubtedly the freedman should be protected, but he should be protected by the civil authorities, especially by the exercise of all the constitutional powers of the courts of the United States and of the States. His condition is not so exposed as may at first be imagined. He is in a portion of the country where his labor cannot well be spared. Competition for his services from planters, from those who are constructing or repairing railroads, and from capitalists in his vicinage or from other States, will enable him to command almost his own terms. He also possesses a perfect right to change his place of abode, and if, therefore, he does not find in one community or State a mode of life suited to his desires, or proper remuneration for his labor, he can move to another where that labor is more esteemed and better rewarded. In truth, however, each State, induced by its own wants and interests, will do what is necessary and proper to retain within its borders all the labor that is needed for the development of its resources. The laws that regulate supply and demand will maintain their force, and the wages of the laborer will be regulated thereby. There is no danger that the exceedingly great demand for labor will not operate in favor of the laborer.

Neither is sufficient consideration given to the ability of the freedmen to protect and take care of themselves. It is no more than justice to them to believe that as they have received their freedom with moderation and forbearance, so they will distinguish themselves by their industry and thrift, and soon show the world that in a condition of freedom they are self-sustaining, capable of selecting their own employment and their own places of abode, of insisting for themselves on a proper remuneration, and of establishing and maintaining their own asylumns and schools. It is earnestly hoped that, instead of wasting away, they will, by their own efforts, establish for themselves a condition of respectability and prosperity. It is certain that they can attain to that condition only through their own merits and exertions.

In this connexion the query presents itself whether the system proposed by the bill will not, when put into complete operation, practically transfer the entire care, support, and control of four millions of emancipated slaves to agents, overseers, or task-masters, who, appointed at Washington, are to be located in every county and parish throughout the United States containing freedmen and refugees? Such a system would inevitably tend to a concentration of power in the Executive, which would enable him, if so disposed, to control the action of this numerous class, and use them for the attainment of his own political ends.

I cannot but add another very grave objection to this bill. The Constitution imperatively declares, in connexion with taxation, that each State shall have at least one representative, and fixes the rule for the number to which, in future times, each State shall be entitled. It also provides that the Senate of the United States shall be composed of two senators from each State; and adds, with peculiar force, “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” The original act was necessarily passed in the absence of the States chiefly to be affected, because their people were then contumaciously engaged in the rebellion. Now the case is changed, and some, at least, of those Edition: current; Page: [98] States are attending Congress by loyal representatives, soliciting the allowance of the constitutional right of representation. At the time, however, of the consideration and the passing of this bill, there was no senator or representative in Congress from the eleven States which are to be mainly affected by its provisions. The very fact that reports were and are made against the good disposition of the people of that portion of the country is an additional reason why they need, and should have, representatives of their own in Congress, to explain their condition, reply to accusations, and assist, by their local knowledge, in the perfecting of measures immediately affecting themselves. While the liberty of deliberation would then be free, and Congress would have full power to decide according to its judgment, there could be no objection urged that the States most interested had not been permitted to be heard. The principle is firmly fixed in the minds of the American people, that there should be no taxation without representation. Great burdens have now to be borne by all the country, and we may best demand that they shall be borne without murmur when they are voted by a majority of the representatives of all the people. I would not interfere with the unquestionable right of Congress to judge, each house for itself, “of the elections, returns, and qualifications of its own members.” But that authority cannot be construed as including the right to shut out, in time of peace, any State from the representation to which it is entitled by the Constitution. At present all the people of eleven States are excluded—those who were most faithful during the war not less than others. The State of Tennessee, for instance, whose authorities engaged in rebellion, was restored to all her constitutional relations to the Union by the patriotism and energy of her injured and betrayed people. Before the war was brought to a termination they had placed themselves in relations with the general government, had established a State government of their own, and, as they were not included in the emancipation proclamation, they, by their own act, had amended their constitution so as to abolish slavery within the limits of their State. I know no reason why the State of Tennessee, for example, should not fully enjoy “all her constitutional relations to the United States.”

The President of the United States stands towards the country in a somewhat different attitude from that of any member of Congress. Each member of Congress is chosen from a single district or State; the President is chosen by the people of all the States. As eleven States are not at this time represented in either branch of Congress, it would seem to be his duty, on all proper occasions to present their just claims to Congress. There always will be differences of opinion in the community, and individuals may be guilty of transgressions of the law, but these do not constitute valid objections against the right of a State to representation. I would in nowise interfere with the discretion of Congress with regard to the qualifications of members; but I hold it my duty to recommend to you, in the interests of peace and in the interests of Union, the admission of every State to its share in public legislation, when, however insubordinate, insurgent, or rebellious its people may have been, it presents itself not only in an attitude of loyalty and harmony, but in the persons of representatives whose loyalty cannot be questioned under any existing constitutional or legal test. It is plain that an indefinite or permanent exclusion of any part of the country from representation must be attended by a spirit of disquiet and complaint. It is unwise and dangerous to pursue a course of measures which will unite a very large section of the country against another section of the country, however much the latter may preponderate. The course of emigration, the development of industry and business, and natural causes, will raise up at the south men as devoted to the Union as those of any other part of the land. But if they are all excluded from Congress; if, in a permanent statute, they are declared not to be in full constitutional relations to the country, they may think they have cause to become a unit in feeling and sentiment against the government. Under the political education of the American people, the idea is inherent and ineradicable that the consent of the majority of the whole people is necessary to secure a willing acquiescence in legislation.

The bill under consideration refers to certain of the States as though they had not “been fully restored in all their constitutional relations to the United States.” If they have not, let us at once act together to secure that desirable end at the earliest possible moment. It is hardly necessary for me to inform Congress that in my own judgment most of those States, so far at least as depends upon their own action, have already been fully restored, and are to be deemed as entitled to enjoy their constitutional rights as members of the Union. Reasoning from the Constitution itself, and from the actual situation of the country, I feel not only entitled but bound to assume, that with the federal courts restored, and those of the several States in the full exercise of their functions, the rights and interests of all classes of the people will, with the aid of the military in cases of resistance to the laws, be essentially protected against unconstitutional infringement or Edition: current; Page: [99] violation. Should this expectation unhappily fail, which I do not anticipate, then the Executive is already fully armed with the powers conferred by the act of March, 1865, establishing the Freedmen’s Bureau, and hereafter, as heretofore, he can employ the land and naval forces of the country to suppress insurrection or to overcome obstructions to the laws.

In accordance with the Constitution I return the bill to the Senate, in the earnest hope that a measure involving questions and interests so important to the country will not become a law, unless upon deliberate consideration by the people it shall receive the sanction of an enlightened public judgment.

ANDREW JOHNSON.

Civil Rights Act

An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, 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, in every State and Territory in the United States, 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, as is enjoyed by white citizens, 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.

Sec. 2. And be it further enacted, 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 one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.

Sec. 3. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the “Act relating to habeas corpus and regulating judicial proceedings in certain cases,” approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause, and, if of a criminal nature, in the infliction of punishment on the party found guilty.

Sec. 4. And be it further enacted, That the district attorneys, Edition: current; Page: [100] marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers and agents of the Freedmen’s Bureau, and every other officer who may be specially empowered by the President of the United States, shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as by this act has cognizance of the offence. And with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of this act; and such commissioners are hereby authorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offences created by this act, as they are authorized by law to exercise with regard to other offences against the laws of the United States.

Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person upon whom the accused is alleged to have committed the offence. And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of this act; and said warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued.

Sec. 6. And be it further enacted, That any person who shall knowingly and wilfully obstruct, hinder, or prevent any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them, from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer, other person or persons, or those lawfully assisting as aforesaid, when so arrested pursuant to the authority herein given and declared, or shall aid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape from the custody of the officer or other person legally authorized as aforesaid, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued as aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the district court of the United States for the district in which said offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States.

Sec. 7. And be it further enacted, That the district attorneys, the marshals, their deputies, and the clerks of the said district and territorial courts shall be paid for their services the like fees as may be allowed to them for similar services in other cases; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, inclusive of all services incident to such arrest and examination. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of Edition: current; Page: [101] this act shall be entitled to a fee of five dollars for each person he or they may arrest and take before any such commissioner as aforesaid, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them, such as attending at the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid out of the Treasury of the United States on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction.

Sec. 8. And be it further enacted, That whenever the President of the United States shall have reason to believe that offences have been or are likely to be committed against the provisions of this act within any judicial district, it shall be lawful for him, in his discretion, to direct the judge, marshal, and district attorney of such district to attend at such place within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of this act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated.

Sec. 9. And be it further enacted, That it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act.

Sec. 10. And be it further enacted, That upon all questions of law arising in any cause under the provisions of this act a final appeal may be taken to the Supreme Court of the United States.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
LA FAYETTE S. FOSTER,
President of the Senate, pro tempore.

In the Senate of the United States, April 6, 1866.

The President of the United States having returned to the Senate, in which it originated, the bill entitled “An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” with his objections thereto, the Senate proceeded, in pursuance of the Constitution, to reconsider the same; and,

Resolved, That the said bill do pass, two-thirds of the Senate agreeing to pass the same.

Attest: J. W. Forney,
Secretary of the Senate.

In the House of Representatives U.S. April 9th, 1866.

The House of Representatives having proceeded, in pursuance of the Constitution, to reconsider the bill entitled “An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” returned to the Senate by the President of the United States, with his objections, and sent by the Senate to the House of Representatives, with the message of the President returning the bill:

Resolved, That the bill do pass, two-thirds of the House of Representatives agreeing to pass the same.

Attest: Edward McPherson, Clerk,
by Clinton Lloyd, Chief Clerk.
Edition: current; Page: [102]
  • First Reconstruction Act of 1867
  • Veto of the First Reconstruction Act, Andrew Johnson, 1867
  • First Supplements to First Reconstruction Act of 1867
  • Second Supplements to First Reconstruction Act of 1867

The Radical Republicans—a group committed to an extensive plan of Reconstruction—gained control over both houses of Congress in the elections of 1866. One result was the First Reconstruction Act of 1867, which divided ten former Confederate states into five military-run districts, demanded elections based on universal manhood suffrage, and conditioned readmittance to the Union on ratification of the Fourteenth Amendment. President Andrew Johnson vetoed the bill on the grounds that it overreached Congress’s proper role of establishing peace and good order. Congress overrode the veto the same day. Congress also passed supplements to the Reconstruction Act intended to overcome Southern white opposition. These supplemental acts empowered Union military governors to impose election methods and other elemental constitutional reforms in former Confederate states.

First Reconstruction Act of 1867

An Act to provide for the more efficient Government of the Rebel States.

Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said rebel States shall be divided into military districts and made subject to the military authority of the United States as hereinafter prescribed, and for that purpose Virginia shall constitute the first district; North Carolina and South Carolina the second district; Georgia, Alabama, and Florida the third district; Mississippi and Arkansas the fourth district; and Louisiana and Texas the fifth district.

Sec. 2. And be it further enacted, That it shall be the duty of the President to assign to the command of each of said districts an officer of the army, not below the rank of brigadier-general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned.

Sec. 3. And be it further enacted, That it shall be the duty of each officer assigned as aforesaid, to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority with the exercise of military authority under this act, shall be null and void.

Sec. 4. And be it further enacted, That all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no sentence of any military commission or Edition: current; Page: [103] tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district, and the laws and regulations for the government of the army shall not be affected by this act, except in so far as they conflict with its provisions: Provided, That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President.

Sec. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention.

Sec. 6. And be it further enacted, That, until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote, under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
LA FAYETTE S. FOSTER,
President of the Senate, pro tempore.

Veto of the First Reconstruction Act

Andrew Johnson
To the House of Representatives:

I have examined the bill “to provide for the more efficient government of the rebel States” with the care and anxiety which its transcendent importance is calculated to awaken. I am unable to give it my assent, for reasons so grave that I hope a statement of them may have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimately rest.

The bill places all the people of the ten States therein named under the absolute domination of military rulers; and the preamble undertakes to give the reason upon which the measure is based and the ground upon which it is justified. It declares that there exists in those States no legal governments and no adequate protection for life or property, and asserts the necessity of enforcing peace and good order within their limits. Is this true as matter of fact?

It is not denied that the States in question have each of them an actual government, with all the powers—executive, judicial, and legislative—which properly belong to a free state. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself the law of the state upon all matters within its jurisdiction. To pronounce the supreme law-making power of an established state illegal is to say that law itself is unlawful.

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The provisions which these governments have made for the preservation of order, the suppression of crime, and the redress of private injuries are in substance and principle the same as those which prevail in the Northern States and in other civilized countries. They certainly have not succeeded in preventing the commission of all crime, nor has this been accomplished anywhere in the world. There, as well as elsewhere, offenders sometimes escape for want of vigorous prosecution, and occasionally, perhaps, by the inefficiency of courts or the prejudice of jurors. It is undoubtedly true that these evils have been much increased and aggravated, North and South, by the demoralizing influences of civil war and by the rancorous passions which the contest has engendered. But that these people are maintaining local governments for themselves which habitually defeat the object of all government and render their own lives and property insecure is in itself utterly improbable, and the averment of the bill to that effect is not supported by any evidence which has come to my knowledge. All the information I have on the subject convinces me that the masses of the Southern people and those who control their public acts, while they entertain diverse opinions on questions of Federal policy, are completely united in the effort to reorganize their society on the basis of peace and to restore their mutual prosperity as rapidly and as completely as their circumstances will permit.

The bill, however, would seem to show upon its face that the establishment of peace and good order is not its real object. The fifth section declares that the preceding sections shall cease to operate in any State where certain events shall have happened. These events are, first, the selection of delegates to a State convention by an election at which negroes shall be allowed to vote; second, the formation of a State constitution by the convention so chosen; third, the insertion into the State constitution of a provision which will secure the right of voting at all elections to negroes and to such white men as may not be disfranchised for rebellion or felony; fourth, the submission of the constitution for ratification to negroes and white men not disfranchised, and its actual ratification by their vote; fifth, the submission of the State constitution to Congress for examination and approval, and the actual approval of it by that body; sixth, the adoption of a certain amendment to the Federal Constitution by a vote of the legislature elected under the new constitution; seventh, the adoption of said amendment by a sufficient number of other States to make it a part of the Constitution of the United States. All these conditions must be fulfilled before the people of any of these States can be relieved from the bondage of military domination; but when they are fulfilled, then immediately the pains and penalties of the bill are to cease, no matter whether there be peace and order or not, and without any reference to the security of life or property. The excuse given for the bill in the preamble is admitted by the bill itself not to be real. The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment.

I submit to Congress whether this measure is not in its whole character, scope, and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure.

The ten States named in the bill are divided into five districts. For each district an officer of the Army, not below the rank of a brigadier-general, is to be appointed to rule over the people; and he is to be supported with an efficient military force to enable him to perform his duties and enforce his authority. Those duties and that authority, as defined by the third section of the bill, are “to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish or cause to be punished all disturbers of the public peace or criminals.” The power thus given to the commanding officer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. The law of the States is now the only rule applicable to the subjects placed under his control, and that is completely displaced by the clause which declares all interference of State authority to be null and void. He alone is permitted to determine what are rights of person or property, and he may protect them in such way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hindrance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history, or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence; there is, indeed, no provision by which he is authorized or required Edition: current; Page: [105] to take any evidence at all. Everything is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. He is not bound to keep any record or make any report of his proceedings. He may arrest his victims wherever he finds them, without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do.

To a casual reader of the bill it might seem that some kind of trial was secured by it to persons accused of crime, but such is not the case. The officer “may allow local civil tribunals to try offenders,” but of course this does not require that he shall do so. If any State or Federal court presumes to exercise its legal jurisdiction by the trial of a malefactor without his special permission, he can break it up and punish the judges and jurors as being themselves malefactors. He can save his friends from justice, and despoil his enemies contrary to justice.

It is also provided that “he shall have power to organize military commissions or tribunals”; but this power he is not commanded to exercise. It is merely permissive, and is to be used only “when in his judgment it may be necessary for the trial of offenders.” Even if the sentence of a commission were made a prerequisite to the punishment of a party, it would be scarcely the slightest check upon the officer, who has authority to organize it as he pleases, prescribe its mode of proceeding, appoint its members from his own subordinates, and revise all its decisions. Instead of mitigating the harshness of his single rule, such a tribunal would be used much more probably to divide the responsibility of making it more cruel and unjust.

Several provisions dictated by the humanity of Congress have been inserted in the bill, apparently to restrain the power of the commanding officer; but it seems to me that they are of no avail for that purpose. The fourth section provides: First. That trials shall not be unnecessarily delayed; but I think I have shown that the power is given to punish without trial; and if so, this provision is practically inoperative. Second. Cruel or unusual punishment is not to be inflicted; but who is to decide what is cruel and what is unusual? The words have acquired a legal meaning by long use in the courts. Can it be expected that military officers will understand or follow a rule expressed in language so purely technical and not pertaining in the least degree to their profession? If not, then each officer may define cruelty according to his own temper, and if it is not usual he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and all the almost insupportable forms of torture invented for military punishment lie within the range of choice. Third. The sentence of a commission is not to be executed without being approved by the commander, if it affects life or liberty, and a sentence of death must be approved by the President. This applies to cases in which there has been a trial and sentence. I take it to be clear, under this bill, that the military commander may condemn to death without even the form of a trial by a military commission, so that the life of the condemned may depend upon the will of two men instead of one.

It is plain that the authority here given to the military officer amounts to absolute despotism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint, for it declares that he shall “punish or cause to be punished.” Such a power has not been wielded by any monarch in England for more than five hundred years. In all that time no people who speak the English language have borne such servitude. It reduces the whole population of the ten States—all persons, of every color, sex, and condition, and every stranger within their limits—to the most abject and degrading slavery. No master ever had a control so absolute over the slaves as this bill gives to the military officers over both white and colored persons.

It may be answered to this that the officers of the Army are too magnanimous, just, and humane to oppress and trample upon a subjugated people. I do not doubt that army officers are as well entitled to this kind of confidence as any other class of men. But the history of the world has been written in vain if it does not teach us that unrestrained authority can never be safely trusted in human hands. It is almost sure to be more or less abused under any circumstances, and it has always resulted in gross tyranny where the rulers who exercise it are strangers to their subjects and come among them as the representatives of a distant power, and more especially when the power that sends them is unfriendly. Governments closely resembling that here proposed have been fairly tried in Hungary and Poland, and the suffering endured by those people roused the sympathies of the entire world. It was tried in Ireland, and, though tempered at first by principles of English law, it gave birth to cruelties so atrocious that they are never recounted without just indignation. The French Convention armed its deputies with this power and sent them to the southern departments of the Republic. The massacres, murders, and other atrocities which they committed show what the passions of the ablest men in the most civilized society will tempt them to do when wholly unrestrained by law.

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The men of our race in every age have struggled to tie up the hands of their governments and keep them within the law, because their own experience of all mankind taught them that rulers could not be relied on to concede those rights which they were not legally bound to respect. The head of a great empire has sometimes governed it with a mild and paternal sway, but the kindness of an irresponsible deputy never yields what the law does not extort from him. Between such a master and the people subjected to his domination there can be nothing but enmity; he punishes them if they resist his authority, and if they submit to it he hates them for their servility.

I come now to a question which is, if possible, still more important. Have we the power to establish and carry into execution a measure like this? I answer, Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes.

This proposition is perfectly clear, that no branch of the Federal Government—executive, legislative, or judicial—can have any just powers except those which it derives through and exercises under the organic law of the Union. Outside of the Constitution we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our functions and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than in another that which the Constitution says we shall not do at all. If, therefore, the Southern States were in truth out of the Union, we could not treat their people in a way which the fundamental law forbids.

Some persons assume that the success of our arms in crushing the opposition which was made in some of the States to the execution of the Federal laws reduced those States and all their people—the innocent as well as the guilty—to the condition of vassalage and gave us a power over them which the Constitution does not bestow or define or limit. No fallacy can be more transparent than this. Our victories subjected the insurgents to legal obedience, not to the yoke of an arbitrary despotism. When an absolute sovereign reduces his rebellious subjects, he may deal with them according to his pleasure, because he had that power before. But when a limited monarch puts down an insurrection, he must still govern according to law. If an insurrection should take place in one of our States against the authority of the State government and end in the overthrow of those who planned it, would that take away the rights of all the people of the counties where it was favored by a part or a majority of the population? Could they for such a reason be wholly outlawed and deprived of their representation in the legislature? I have always contended that the Government of the United States was sovereign within its constitutional sphere; that it executed its laws, like the States themselves, by applying its coercive power directly to individuals, and that it could put down insurrection with the same effect as a State and no other. The opposite doctrine is the worst heresy of those who advocated secession, and can not be agreed to without admitting that heresy to be right.

Invasion, insurrection, rebellion, and domestic violence were anticipated when the Government was framed, and the means of repelling and suppressing them were wisely provided for in the Constitution; but it was not thought necessary to declare that the States in which they might occur should be expelled from the Union. Rebellions, which were invariably suppressed, occurred prior to that out of which these questions grow; but the States continued to exist and the Union remained unbroken. In Massachusetts, in Pennsylvania, in Rhode Island, and in New York, at different periods in our history, violent and armed opposition to the United States was carried on; but the relations of those States with the Federal Government were not supposed to be interrupted or changed thereby after the rebellious portions of their population were defeated and put down. It is true that in these earlier cases there was no formal expression of a determination to withdraw from the Union, but it is also true that in the Southern States the ordinances of secession were treated by all the friends of the Union as mere nullities and are now acknowledged to be so by the States themselves. If we admit that they had any force or validity or that they did in fact take the States in which they were passed out of the Union, we sweep from under our feet all the grounds upon which we stand in justifying the use of Federal force to maintain the integrity of the Government.

This is a bill passed by Congress in time of peace. There is not in any one of the States brought under its operation either war or insurrection. The laws of the States and of the Federal Government are all in undisturbed and harmonious operation. The courts, State and Federal, are open and in the full exercise of their proper authority. Over every State comprised in these five military districts, life, liberty, and property are secured by State laws and Federal laws, and the National Constitution is everywhere in force and everywhere obeyed. Edition: current; Page: [107] What, then, is the ground on which this bill proceeds? The title of the bill announces that it is intended “for the more efficient government” of these ten States. It is recited by way of preamble that no legal State governments “nor adequate protection for life or property” exist in those States, and that peace and good order should be thus enforced. The first thing which arrests attention upon these recitals, which prepare the way for martial law, is this, that the only foundation upon which martial law can exist under our form of government is not stated or so much as pretended. Actual war, foreign invasion, domestic insurrection—none of these appear; and none of these, in fact, exist. It is not even recited that any sort of war or insurrection is threatened. Let us pause here to consider, upon this question of constitutional law and the power of Congress, a recent decision of the Supreme Court of the United States in ex parte Milligan.

I will first quote from the opinion of the majority of the court:

Martial law can not arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.

We see that martial law comes in only when actual war closes the courts and deposes the civil authority; but this bill, in time of peace, makes martial law operate as though we were in actual war, and becomes the cause instead of the consequence of the abrogation of civil authority. One more quotation:

It follows from what has been said on this subject that there are occasions when martial law can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.

I now quote from the opinion of the minority of the court, delivered by Chief Justice Chase:

We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail.

This is sufficiently explicit. Peace exists in all the territory to which this bill applies. It asserts a power in Congress in time of peace, to set aside the laws of peace and to substitute the laws of war. The minority, concurring with the majority, declares that Congress does not possess that power. Again, and, if possible, more emphatically, the Chief Justice, with remarkable clearness and condensation, sums up the whole matter as follows:

There are under the Constitution three kinds of military jurisdiction—one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of the States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding as far as may be deemed expedient the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress can not be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

It will be observed that of the three kinds of military jurisdiction which can be exercised or created under our Constitution there is but one that can prevail in time of peace, and that is the code of laws enacted by Congress for the government of the national forces. That body of military law has no application to the citizen, nor even to the citizen soldier enrolled in the militia in time of peace. But this bill is not a part of that sort of military law, for that applies only to the soldier and not to the citizen, whilst, contrariwise, the military law provided by this bill applies only to the citizen and not to the solider.

I need not say to the representatives of the American people Edition: current; Page: [108] that their Constitution forbids the exercise of judicial power in any way but one—that is, by the ordained and established courts. It is equally well known that in all criminal cases a trial by jury is made indispensable by the express words of that instrument. I will not enlarge on the inestimable value of the right thus secured to every freeman or speak of the danger to public liberty in all parts of the country which must ensue from a denial of it anywhere or upon any pretense. A very recent decision of the Supreme Court has traced the history, vindicated the dignity, and made known the value of this great privilege so clearly that nothing more is needed. To what extent a violation of it might be excused in time of war or public danger may admit of discussion, but we are providing now for a time of profound peace, when there is not an armed soldier within our borders except those who are in the service of the Government. It is in such a condition of things that an act of Congress is proposed which if carried out, would deny a trial by the lawful courts and juries to 9,000,000 American citizens and to their posterity for an indefinite period. It seems to be scarcely possible that anyone should seriously believe this consistent with a Constitution which declares in simple, plain, and unambiguous language that all persons shall have that right and that no person shall ever in any case be deprived of it. The Constitution also forbids the arrest of the citizen without judicial warrant, founded on probable cause. This bill authorizes an arrest without warrant, at the pleasure of a military commander. The Constitution declares that “no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury.” This bill holds every person not a soldier answerable for all crimes and all charges without any presentment. The Constitution declares that “no person shall be deprived of life, liberty, or property without due process of law.” This bill sets aside all process of law, and makes the citizen answerable in his person and property to the will of one man, and as to his life to the will of two. Finally, the Constitution declares that “the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it”; whereas this bill declares martial law (which of itself suspends this great writ) in time of peace, and authorizes the military to make the arrest, and gives to the prisoner only one privilege, and that is a trial “without unnecessary delay.” He has no hope of release from custody, except the hope, such as it is, of release by acquittal before a military commission.

The United States are bound to guarantee to each State a republican form of government. Can it be pretended that this obligation is not palpably broken if we carry out a measure like this, which wipes away every vestige of republican government in ten States and puts the life, property, liberty, and honor of all the people in each of them under the domination of a single person clothed with unlimited authority?

The Parliament of England, exercising the omnipotent power which it claimed, was accustomed to pass bills of attainder; that is to say, it would convict men of treason and other crimes by legislative enactment. The person accused had a hearing, sometimes a patient and fair one, but generally party prejudice prevailed instead of justice. It often became necessary for Parliament to acknowledge its error and reverse its own action. The fathers of our country determined that no such thing should occur here. They withheld the power from Congress, and thus forbade its exercise by that body, and they provided in the Constitution that no State should pass any bill of attainder. It is therefore impossible for any person in this country to be constitutionally convicted or punished for any crime by a legislative proceeding of any sort. Nevertheless, here is a bill of attainder against 9,000,000 people at once. It is based upon an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. Not one of the 9,000,000 was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands and degrades them all, even those who are admitted to be guiltless, from the rank of freemen to the condition of slaves.

The purpose and object of the bill—the general intent which pervades it from beginning to end—is to change the entire structure and character of the State governments and to compel them by force to the adoption of organic laws and regulations which they are unwilling to accept if left to themselves. The negroes have not asked for the privilege of voting; the vast majority of them have no idea what it means. This bill not only thrusts it into their hands, but compels them, as well as the whites, to use it in a particular way. If they do not form a constitution with prescribed articles in it and afterwards elect a legislature which will act upon certain measures in a prescribed way, neither blacks nor whites can be relieved from the slavery which the bill imposes upon them. Without pausing here to consider the policy or impolicy of Africanizing the southern part of our territory, I would simply ask Edition: current; Page: [109] the attention of Congress to that manifest, well-known, and universally acknowledged rule of constitutional law which declares that the Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State. To force the right of suffrage out of the hands of the white people and into the hands of the negroes is an arbitrary violation of this principle.

This bill imposes martial law at once, and its operations will begin so soon as the general and his troops can be put in place. The dread alternative between its harsh rule and compliance with the terms of this measure is not suspended, nor are the people afforded any time for free deliberation. The bill says to them, take martial law first, then deliberate. And when they have done all that this measure requires them to do other conditions and contingencies over which they have no control yet remain to be fulfilled before they can be relieved from martial law. Another Congress must first approve the Constitution made in conformity with the will of this Congress and must declare these States entitled to representation in both Houses. The whole question thus remains open and unsettled and must again occupy the attention of Congress; and in the meantime, the agitation which now prevails will continue to disturb all portions of the people.

The bill also denies the legality of the governments of ten of the States which participated in the ratification of the amendment to the Federal Constitution abolishing slavery forever within the jurisdiction of the United States and practically excludes them from the Union. If this assumption of the bill be correct, their concurrence can not be considered as having been legally given, and the important fact is made to appear that the consent of three-fourths of the States—the requisite number—has not been constitutionally obtained to the ratification of that amendment, thus leaving the question of slavery where it stood before the amendment was officially declared to have become a part of the Constitution.

That the measure proposed by this bill does violate the Constitution in the particulars mentioned and in many other ways which I forbear to enumerate is too clear to admit of the least doubt. It only remains to consider whether the injunctions of that instrument ought to be obeyed or not. I think they ought to be obeyed, for reasons which I will proceed to give as briefly as possible.

In the first place, it is the only system of free government which we can hope to have as a nation. When it ceases to be the rule of our conduct, we may perhaps take our choice between complete anarchy, a consolidated despotism, and a total dissolution of the Union; but national liberty regulated by law will have passed beyond our reach.

It is the best frame of government the world ever saw. No other is or can be so well adapted to the genius, habits, or wants of the American people. Combining the strength of a great empire with unspeakable blessings of local self-government, having a central power to defend the general interests, and recognizing the authority of the States as the guardians of industrial rights, it is “the sheet anchor of our safety abroad and our peace at home.” It was ordained “to form a more perfect union, establish justice, insure domestic tranquillity, promote the general welfare, provide for the common defense, and secure the blessings of liberty to ourselves and to our posterity.” These great ends have been attained heretofore, and will be again by faithful obedience to it; but they are certain to be lost if we treat with disregard its sacred obligations.

It was to punish the gross crime of defying the Constitution and to vindicate its supreme authority that we carried on a bloody war of four years’ duration. Shall we now acknowledge that we sacrificed a million of lives and expended billions of treasure to enforce a Constitution which is not worthy of respect and preservation?

Those who advocated the right of secession alleged in their own justification that we had no regard for law and that their rights of property, life, and liberty would not be safe under the Constitution as administered by us. If we now verify their assertion, we prove that they were in truth and in fact fighting for their liberty, and instead of branding their leaders with the dishonoring name of traitors against a righteous and legal government we elevate them in history to the rank of self-sacrificing patriots, consecrate them to the admiration of the world, and place them by the side of Washington, Hampden, and Sidney. No; let us leave them to the infamy they deserve, punish them as they should be punished, according to law, and take upon ourselves no share of the odium which they should bear alone.

It is a part of our public history which can never be forgotten that both Houses of Congress, in July, 1861, declared in the form of a solemn resolution that the war was and should be carried on for no purpose of subjugation, but solely to enforce the Constitution and laws, and that when this was yielded by the parties in rebellion the contest should cease, with the constitutional rights of the States and of individuals unimpaired. This resolution was adopted and sent forth to the world unanimously by the Senate and with only two dissenting voices in the House. It was accepted by the friends Edition: current; Page: [110] of the Union in the South as well as in the North as expressing honestly and truly the object of the war. On the faith of it many thousands of persons in both sections gave their lives and their fortunes to the cause. To repudiate it now by refusing to the States and to the individuals within them the rights which the Constitution and laws of the Union would secure to them is a breach of our plighted honor for which I can imagine no excuse and to which I can not voluntarily become a party.

The evils which spring from the unsettled state of our Government will be acknowledged by all. Commercial intercourse is impeded, capital is in constant peril, public securities fluctuate in value, peace itself is not secure, and the sense of moral and political duty is impaired. To avert these calamities from our country it is imperatively required that we should immediately decide upon some course of administration which can be steadfastly adhered to. I am thoroughly convinced that any settlement or compromise or plan of action which is inconsistent with the principles of the Constitution will not only be unavailing, but mischievous; that it will but multiply the present evils, instead of removing them. The Constitution, in its whole integrity and vigor, throughout the length and breadth of the land, is the best of all compromises. Besides, our duty does not, in my judgment, leave us a choice between that and any other. I believe that it contains the remedy that is so much needed, and that if the coordinate branches of the Government would unite upon its provisions they would be found broad enough and strong enough to sustain in time of peace the nation which they bore safely through the ordeal of a protracted civil war. Among the most sacred guaranties of that instrument are those which declare that “each State shall have at least one Representative,” and that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Each House is made the “judge of the elections, returns, and qualifications of its own members,” and may, “with the concurrence of two-thirds, expel a member.” Thus, as heretofore urged, “in the admission of Senators and Representatives from any and all of the States there can be no just ground of apprehension that persons who are disloyal will be clothed with the powers of legislation, for this could not happen when the Constitution and the laws are enforced by a vigilant and faithful Congress.” “When a Senator or Representative presents his certificate of election, he may at once be admitted or rejected; or, should there be any question as to his eligibility, his credentials may be referred for investigation to the appropriate committee. If admitted to a seat, it must be upon evidence satisfactory to the House of which he thus becomes a member that he possesses the requisite constitutional and legal qualifications. If refused admission as a member for want of due allegiance to the Government, and returned to his constituents, they are admonished that none but persons loyal to the United States will be allowed a voice in the legislative councils of the nation, and the political power and moral influence of Congress are thus effectively exerted in the interests of loyalty to the Government and fidelity to the Union.” And is it not far better that the work of restoration should be accomplished by simple compliance with the plain requirements of the Constitution than by a recourse to measures which in effect destroy the States and threaten the subversion of the General Government? All that is necessary to settle this simple but important question without further agitation or delay is a willingness on the part of all to sustain the Constitution and carry its provisions into practical operation. If to-morrow either branch of Congress would declare that upon the presentation of their credentials members constitutionally elected and loyal to the General Government would be admitted to seats in Congress, while all others would be excluded and their places remain vacant until the selection by the people of loyal and qualified persons, and if at the same time assurance were given that this policy would be continued until all the States were represented in Congress, it would send a thrill of joy throughout the entire land, as indicating the inauguration of a system which must speedily bring tranquillity to the public mind.

While we are legislating upon subjects which are of great importance to the whole people, and which must affect all parts of the country, not only during the life of the present generation, but for ages to come, we should remember that all men are entitled at least to a hearing in the councils which decide upon the destiny of themselves and their children. At present ten States are denied representation, and when the Fortieth Congress assembles on the 4th day of the present month sixteen States will be without a voice in the House of Representatives. This grave fact, with the important questions before us, should induce us to pause in a course of legislation which, looking solely to the attainment of political ends, fails to consider the rights it transgresses, the law which it violates, or the institutions which it imperils.

ANDREW JOHNSON
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First Supplement to the First Reconstruction Act of 1867

An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed March second, eighteen hundred and sixty-seven, and to facilitate Restoration.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That before the first day of September, eighteen hundred and sixty-seven, the commanding general in each district defined by an act entitled “An act to provide for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-seven, shall cause a registration to be made of the male citizens of the United States, twenty-one years of age and upwards, resident in each county or parish in the State or States included in his district, which registration shall include only those persons who are qualified to vote for delegates by the act aforesaid, and who shall have taken and subscribed the following oath or affirmation: “I, ———, do solemnly swear (or affirm), in the presence of Almighty God, that I am a citizen of the State of ———; that I have resided in said State for ——— months next preceding this day, and now reside in the county of ———, or the parish of ———, in said State (as the case may be); that I am twenty-one years old; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do, so help me God”; which oath or affirmation may be administered by any registering officer.

Sec. 2. And be it further enacted, That after the completion of the registration hereby provided for in any State, at such time and places therein as the commanding general shall appoint and direct, of which at least thirty days’ public notice shall be given, an election shall be held of delegates to a convention for the purpose of establishing a constitution and civil government for such State loyal to the Union, said convention in each State, except Virginia, to consist of the same number of members as the most numerous branch of the State legislature of such State in the year eighteen hundred and sixty, to be apportioned among the several districts, counties, or parishes of such State by the commanding general, giving to each representation in the ratio of voters registered as aforesaid as nearly as may be. The convention in Virginia shall consist of the same number of members as represented the territory now constituting Virginia in the most numerous branch of the legislature of said State in the year eighteen hundred and sixty, to be apportioned as aforesaid.

Sec. 3. And be it further enacted, That at said election the registered voters of each State shall vote for or against a convention to form a constitution therefor under this act. Those voting in favor of such a convention shall have written or printed on the ballots by which they vote for delegates, as aforesaid, the words “For a convention,” and those voting against such a convention shall have written or printed on such ballots the words “Against a convention.” The persons appointed to superintend said election, and to make return of the votes given thereat, as herein provided, shall count and make return of the votes given for and against a convention; and the commanding general to whom the same shall have been returned shall ascertain and declare the total vote in each State for and against a convention. If a majority of the votes given on that question shall be for a convention, then such convention shall be held as hereinafter provided; but if a majority of said votes shall be against a convention, then no such convention shall be held under this act: Provided, That such convention shall not be held unless a majority of all such registered voters shall have voted on the question of holding such convention.

Sec. 4. And be it further enacted, That the commanding general of each district shall appoint as many boards of registration as may be necessary, consisting of three loyal officers or persons, to make and complete the registration, superintend the election, and make return to him of the votes, list of voters, and of the persons elected as delegates by a plurality of the votes cast at said election; and upon receiving said Edition: current; Page: [112] returns he shall open the same, ascertain the persons elected as delegates, according to the returns of the officers who conducted said election, and make proclamation thereof; and if a majority of the votes given on that question shall be for a convention, the commanding general, within sixty days from the date of election, shall notify the delegates to assemble in convention, at a time and place to be mentioned in the notification, and said convention, when organized, shall proceed to frame a constitution and civil government according to the provisions of this act, and the act to which it is supplementary; and when the same shall have been so framed, said constitution shall be submitted by the convention for ratification to the persons registered under the provisions of this act at an election to be conducted by the officers or persons appointed or to be appointed by the commanding general, as hereinbefore provided, and to be held after the expiration of thirty days from the date of notice thereof, to be given by said convention; and the returns thereof shall be made to the commanding general of the district.

Sec. 5. And be it further enacted, That if, according to said returns, the constitution shall be ratified by a majority of the votes of the registered electors qualified as herein specified, cast at said election, at least one half of all the registered voters voting upon the question of such ratification, the president of the convention shall transmit a copy of the same, duly certified, to the President of the United States, who shall forthwith transmit the same to Congress, if then in session, and if not in session, then immediately upon its next assembling; and if it shall moreover appear to Congress that the election was one at which all the registered and qualified electors in the State had an opportunity to vote freely and without restraint, fear, or the influence of fraud, and if the Congress shall be satisfied that such constitution meets the approval of a majority of all the qualified electors in the State, and if the said constitution shall be declared by Congress to be in conformity with the provisions of the act to which this is supplementary, and the other provisions of said act shall have been complied with, and the said constitution shall be approved by Congress, the State shall be declared entitled to representation, and senators and representatives shall be admitted therefrom as therein provided.

Sec. 6. And be it further enacted, That all elections in the States mentioned in the said “Act to provide for the more efficient government of the rebel States,” shall, during the operation of said act, be by ballot; and all officers making the said registration of voters and conducting said elections shall, before entering upon the discharge of their duties, take and subscribe the oath prescribed by the act approved July second, eighteen hundred and sixty-two, entitled “An act to prescribe an oath of office”: Provided, That if any person shall knowingly and falsely take and subscribe any oath in this act prescribed, such person so offending and being thereof duly convicted shall be subject to the pains, penalties, and disabilities which by law are provided for the punishment of the crime of wilful and corrupt perjury.

Sec. 7. And be it further enacted, That all expenses incurred by the several commanding generals, or by virtue of any orders issued, or appointments made, by them, under or by virtue of this act, shall be paid out of any moneys in the treasury not otherwise appropriated.

Sec. 8. And be it further enacted, That the convention for each State shall prescribe the fees, salary, and compensation to be paid to all delegates and other officers and agents herein authorized or necessary to carry into effect the purposes of this act not herein otherwise provided for, and shall provide for the levy and collection of such taxes on the property in such State as may be necessary to pay the same.

Sec. 9. And be it further enacted, That the word “article,” in the sixth section of the act to which this is supplementary, shall be construed to mean “section.”

SCHUYLER COLFAX,
Speaker of the House of Representatives.
B. F. WADE,
President of the Senate pro tempore.

Second Supplement to the First Reconstruction Act of 1867

An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twenty-third day of March, eighteen hundred and sixty-seven.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it is hereby declared to have been the true intent and meaning of Edition: current; Page: [113] the act of the second day of March, one thousand eight hundred and sixty-seven, entitled “An act to provide for the more efficient government of the rebel States,” and of the act supplementary thereto, passed on the twenty-third day of March, in the year one thousand eight hundred and sixty-seven, that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas were not legal State governments; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress.

Sec. 2. And be it further enacted, That the commander of any district named in said act shall have power, subject to the disapproval of the General of the army of the United States, and to have effect till disapproved, whenever in the opinion of such commander the proper administration of said act shall require it, to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment or authority derived from, or granted by, or claimed under, any so-called State or the government thereof, or any municipal or other division thereof, and upon such suspension or removal such commander, subject to the disapproval of the General as aforesaid, shall have power to provide from time to time for the performance of the said duties of such officer or person so suspended or removed, by the detail of some competent officer or soldier of the army, or by the appointment of some other person, to perform the same, and to fill vacancies occasioned by death, resignation, or otherwise.

Sec. 3. And be it further enacted, That the General of the army of the United States shall be invested with all the powers of suspension, removal, appointment, and detail granted in the preceding section to district commanders.

Sec. 4. And be it further enacted, That the acts of the officers of the army already done in removing in said districts persons exercising the functions of civil officers, and appointing others in their stead, are hereby confirmed: Provided, That any person heretofore or hereafter appointed by any district commander to exercise the functions of any civil office, may be removed either by the military officer in command of the district, or by the General of the army. And it shall be the duty of such commander to remove from office as aforesaid all persons who are disloyal to the government of the United States, or who use their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of this act and the acts to which it is supplementary.

Sec. 5. And be it further enacted, That the boards of registration provided for in the act entitled “An act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel States,’ passed March two, eighteen hundred and sixty-seven, and to facilitate restoration,” passed March twenty-three, eighteen hundred and sixty-seven, shall have power, and it shall be their duty before allowing the registration of any person, to ascertain, upon such facts or information as they can obtain, whether such person is entitled to be registered under said act, and the oath required by said act shall not be conclusive on such question, and no person shall be registered unless such board shall decide that he is entitled thereto; and such board shall also have power to examine, under oath, (to be administered by any member of such board,) any one touching the qualification of any person claiming registration; but in every case of refusal by the board to register an applicant, and in every case of striking his name from the list as hereinafter provided, the board shall make a note or memorandum, which shall be returned with the registration list to the commanding general of the district, setting forth the grounds of such refusal or such striking from the list: Provided, That no person shall be disqualified as member of any board of registration by reason of race or color.

Sec. 6. And be it further enacted, That the true intent and meaning of the oath prescribed in said supplementary act is, (among other things,) that no person who has been a member of the legislature of any State, or who has held any executive or judicial office in any State, whether he has taken an oath to support the Constitution of the United States or not, and whether he was holding such office at the commencement of the rebellion, or had held it before, and who has afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof, is entitled to be registered or to vote; and the words “executive or judicial office in any State” in said oath mentioned shall be construed to include all civil offices created by law for the administration of any general law of a State, or for the administration of justice.

Sec. 7. And be it further enacted, That the time for completing the original registration provided for in said act may, in the discretion of the commander of any district be extended to the first day of October, eighteen hundred and sixty-seven; and the boards of registration shall have power, Edition: current; Page: [114] and it shall be their duty, commencing fourteen days prior to any election under said act, and upon reasonable public notice of the time and place thereof, to revise, for a period of five days, the registration lists, and upon being satisfied that any person not entitled thereto has been registered, to strike the name of such person from the list, and such person shall not be allowed to vote. And such board shall also, during the same period, add to such registry the names of all persons who at that time possess the qualifications required by said act who have not been already registered; and no person shall, at any time, be entitled to be registered or to vote by reason of any executive pardon or amnesty for any act or thing which, without such pardon or amnesty, would disqualify him from registration or voting.

Sec. 8. And be it further enacted, That section four of said last-named act shall be construed to authorize the commanding general named therein, whenever he shall deem it needful, to remove any member of a board of registration and to appoint another in his stead, and to fill any vacancy in such board.

Sec. 9. And be it further enacted, That all members of said boards of registration and all persons hereafter elected or appointed to office in said military districts, under any so-called State or municipal authority, or by detail or appointment of the district commanders, shall be required to take and to subscribe the oath of office prescribed by law for officers of the United States.

Sec. 10. And be it further enacted, That no district commander or member of the board of registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States.

Sec. 11. And be it further enacted, That all the provisions of this act and of the acts to which this is supplementary shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
B. F. WADE,
President of the Senate pro tempore.
Edition: current; Page: [115]
  • Articles of Impeachment of Andrew Johnson, 1868

Andrew Johnson was a slaveholder and former tailor’s apprentice from Tennessee who rose to prominence in large measure because, when the Civil War began, he refused to resign his seat in the U.S. Senate, calling secessionists “traitors.” Lincoln chose Johnson, a “War Democrat” as his running mate when he ran for reelection in 1864. Johnson originally was seen as a proponent of a reconstruction policy more strict than Lincoln’s. But after Lincoln’s assassination Johnson began opposing what he saw as Radical Republican attempts to punish former Confederate states. Unfortunately for Johnson, the Radical Republicans held overwhelming majorities in both houses of Congress, allowing them to override several presidential vetoes of their legislation (a rare occurrence until then). Among the overridden vetoes was that of the Tenure of Office Act, which required Senate approval before the president could dismiss any executive officer appointed with the advice and consent of the Senate. Johnson seemed to violate this law by attempting to eject the Radical Republican Edwin Stanton from his position as secretary of war. This act, along with Reconstruction policy disagreements, precipitated impeachment proceedings in the House, which in effect indicted Johnson for high crimes and misdemeanors. Johnson escaped removal from office when the Senate fell one vote short of the two-thirds majority required.

Articles of Impeachment of Andrew Johnson

ARTICLES
Exhibited by the House of Representatives of the United States, in the name of themselves and all the people of the United States, against Andrew Johnson, President of the United States, in maintenance and support of their impeachment against him for high crimes and misdemeanors in office.

Article I

That said Andrew Johnson, President of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, unmindful of the high duties of his office, of his oath of office, and of the requirement of the Constitution that he should take care that the laws be faithfully executed, did unlawfully, and in violation of the Constitution and laws of the United States, issue an order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War, said Edwin M. Stanton having been theretofore duly appointed and commissioned, by and with the advice and consent of the Senate of the United States, as such Secretary, and said Andrew Johnson, President of the United States, on the twelfth day of August, in the year of our Lord one thousand eight hundred and sixty-seven, and during the recess of said Senate, having suspended by his order Edwin M. Stanton from said office, and within twenty days after the first day of the next meeting of said Senate, that is to say, on the twelfth day of December in the year last aforesaid, having reported to said Senate such suspension with the evidence and reasons for his action in the case and the name of the person designated to perform the duties of such office temporarily until the next meeting of the Senate, and said Senate thereafterwards on the thirteenth day of January, in the year of our Lord one thousand eight hundred and sixty-eight, having duly considered the evidence and reasons reported by said Andrew Johnson for said suspension, and having refused to concur in said suspension, whereby and by force of the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed Edition: current; Page: [116] March second, eighteen hundred and sixty-seven, said Edwin M. Stanton did forthwith resume the functions of his office, whereof the said Andrew Johnson had then and there due notice, and said Edwin M. Stanton, by reason of the premises, on said twenty-first day of February, being lawfully entitled to hold said office of Secretary for the Department of War, which said order for the removal of said Edwin M. Stanton is in substance as follows, that is to say:

Sir:

By virtue of the power and authority vested in me as President by the Constitution and laws of the United States you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication.

You will transfer to Brevet Major General, Lorenzo Thomas, Adjutant General of the army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge.

Respectfully yours,
ANDREW JOHNSON.
To the Hon. Edwin M. Stanton, Washington, D.C.

Which order was unlawfully issued with intent then and there to violate the act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and with the further intent, contrary to the provisions of said act, in violation thereof, and contrary to the provisions of the Constitution of the United States, and without the advice and consent of the Senate of the United States, the said Senate then and there being in session, to remove said Edwin M. Stanton from the office of Secretary for the Department of War, the said Edwin M. Stanton being then and there Secretary for the Department of War, and being then and there in the due and lawful execution and discharge of the duties of said office, whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office.

Article II

That on said twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, said Andrew Johnson, President of the United States, unmindful of the high duties of his office, of his oath of office, and in violation of the Constitution of the United States, and contrary to the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, without the advice and consent of the Senate of the United States, said Senate then and there being in session, and without authority of law, did, with intent to violate the Constitution of the United States, and the act aforesaid, issue and deliver to one Lorenzo Thomas a letter of authority in substance as follows, that is to say:

Sir:

The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully, yours.
ANDREW JOHNSON.
To Brevet Major General Lorenzo Thomas,
Adjutant General U.S. Army, Washington, D.C.

Then and there being no vacancy in said office of Secretary for the Department of War, whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office.

Article III

That said Andrew Johnson, President of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did commit and was guilty of a high misdemeanor in office in this, that, without authority of law, while the Senate of the United States was then and there in session, he did appoint one Lorenzo Thomas to be Secretary for the Department of War ad interim, without the advice and consent of the Senate, and with intent to violate the Constitution of the United States, no vacancy having happened in said office of Secretary for the Department of War during the recess of the Senate, and no vacancy existing in said office at the time, and which said appointment, so Edition: current; Page: [117] made by said Andrew Johnson, of said Lorenzo Thomas, is in substance as follows, that is to say:

Sir:

The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully yours,
ANDREW JOHNSON.
To Brevet Major General Lorenzo Thomas,
Adjutant General U.S. Army, Washington. D.C.

Article IV

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, in violation of the Constitution and laws of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, with intent, by intimidation and threats, unlawfully to hinder and prevent Edwin M. Stanton, then and there the Secretary for the Department of War, duly appointed under the laws of the United States, from holding said office of Secretary for the Department of War, contrary to and in violation of the Constitution of the United States and of the provisions of an act entitled “An act to define and punish certain conspiracies,” approved July thirty-first, eighteen hundred and sixty-one, whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high crime in office.

Article V

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, and on divers other days and times in said year, before the second day of March, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, to prevent and hinder the execution of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and in pursuance of said conspiracy, did unlawfully attempt to prevent Edwin M. Stanton, then and there being Secretary for the Department of War, duly appointed and commissioned under the laws of the United States, from holding said office, whereby the said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office.

Article VI

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, by force to seize, take, and possess the property of the United States in the Department of War, and then and there in the custody and charge of Edwin M. Stanton, Secretary for said department, contrary to the provisions of an act entitled “An act to define and punish certain conspiracies,” approved July thirty-one, eighteen hundred and sixty-one, with intent to violate and disregard an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, whereby said Andrew Johnson, President of the United States, did then and there commit a high crime in office.

Article VII

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas with intent unlawfully to seize, take, and possess the property of the United States in the Department of War, in the custody and charge of Edwin M. Stanton, Secretary for said department, with intent to violate and disregard the act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, whereby said Andrew Johnson, President of Edition: current; Page: [118] the United States, did then and there commit a high misdemeanor in office.

Article VIII

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office, and of his oath of office, with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully and contrary to the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and in violation of the Constitution of the United States, and without the advice and consent of the Senate of the United States, and while the Senate was then and there in session, there being no vacancy in the office of Secretary for the Department of War, and with intent to violate and disregard the act aforesaid, then and there issue and deliver to one Lorenzo Thomas a letter of authority in writing, in substance as follows, that is to say:

Sir:

The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully yours,
ANDREW JOHNSON.
To Brevet Major General Lorenzo Thomas,
Adjutant General U.S. Army, Washington, D.C.

Whereby the said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office.

Article IX

That said Andrew Johnson, President of the United States, on the twenty-second day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, in disregard of the Constitution and the laws of the United States duly enacted, as commander-in-chief of the army of the United States, did bring before himself then and there William H. Emory, a major general by brevet in the army of the United States, actually in command of the Department of Washington and the military forces thereof, and did then and there, as such commander-in-chief, declare to and instruct said Emory that part of a law of the United States, passed March second, eighteen hundred and sixty-seven, entitled “An act making appropriations for the support of the army for the year ending June thirtieth, eighteen hundred and sixty-eight, and for other purposes,” especially the second section thereof, which provides, among other things, that “all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army, and in case of his inability, through the next in rank,” was unconstitutional and in contravention of the commission of said Emory, and which said provision of law had been theretofore duly and legally promulgated by General Order for the government and direction of the army of the United States, as the said Andrew Johnson then and there well knew, with intent thereby to induce said Emory, in his official capacity as commander of the Department of Washington, to violate the provisions of said act, and to take and receive, act upon and obey such orders as he, the said Andrew Johnson, might make and give, and which should not be issued through the General of the army of the United States, according to the provisions of said act, and with the further intent thereby to enable him, the said Andrew Johnson, to prevent the execution of the act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and to unlawfully prevent Edwin M. Stanton, then being Secretary for the Department of War, from holding said office and discharging the duties thereof, whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office.

And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles or other accusation or impeachment against the said Andrew Johnson, President of the United States, and also of replying to his answers which he shall make unto the articles herein preferred against him, and of offering proof to the same, and every part thereof, and to all and every other article, accusation, or impeachment which shall be exhibited by them, as the case shall require, do demand that the said Andrew Johnson may be put to answer Edition: current; Page: [119] the high crimes and misdemeanors in office herein charged against him, and that such proceedings, examinations, trials, and judgments may be thereupon had and given as may be agreeable to law and justice.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
Attest:
Edward McPherson,
Clerk of the House of Representatives.

The following additional articles of impeachment were agreed to, viz:

Article X

The said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the government of the United States, designing and intending to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof, (which all officers of the government ought inviolably to preserve and maintain,) and to excite the odium and resentment of all the good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly, and before divers assemblages of the citizens of the United States convened in divers parts thereof to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterward, make and deliver with a loud voice certain intemperate, inflammatory and scandalous harangues, and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled and in hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say:

Specification First. In this, that at Washington, in the District of Columbia, in the Executive Mansion, to a committee of citizens who called upon the President of the United States, speaking of and concerning the Congress of the United States, said Andrew Johnson, President of the United States, heretofore, to wit, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, did, in a loud voice, declare in substance and effect, among other things, that is to say:

[“]So far as the Executive Department of the government is concerned, the effort has been made to restore the Union, to heal the breach, to pour oil into the wounds which were consequent upon the struggle, and (to speak in common phrase) to prepare as the learned and wise physician would, a plaster healing in character and coextensive with the wound. We thought, and we think, that we had partially succeeded; but as the work progressed, as reconstruction seemed to be taking place, and the country was becoming reunited, we found a disturbing and marring element opposing us. In alluding to that element, I shall go no further than your convention and the distinguished gentleman who has delivered to me the report of its proceedings. I shall make no reference to it that I do not believe the time and the occasion justify.

“We have witnessed in one department of the government every endeavor to prevent the restoration of peace, harmony, and Union. We have seen hanging upon the verge of the government, as it were, a body called, or which assumes to be, the Congress of the United States, while in fact it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of the States inevitable. . . . We have seen Congress gradually encroach step by step upon constitutional rights, and violate, day after day and month after month, fundamental principles of the government. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation. We have seen a Congress in a minority assume to exercise power which, allowed to be consummated, would result in despotism or monarchy itself.”

Specification Second.—In this, that at Cleveland, in the State of Ohio, heretofore, to wit, on the third day of September, in the year of our Lord one thousand eight hundred and sixty-six, before a public assemblage of citizens and others, Edition: current; Page: [120] said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say:

“I will tell you what I did do. I called upon your Congress that is trying to break up the government. . . .

“In conclusion, beside that, Congress had taken much pains to poison their constituents against him. But what had Congress done? Have they done anything to restore the union of these States? No; on the contrary, they had done everything to prevent it; and because he stood now where he did when the rebellion commenced, he had been denounced as a traitor. Who had run greater risks or made greater sacrifices than himself? But Congress, factious and domineering, had undertaken to poison the minds of the American people.”

Specification Third—In this, that at St. Louis, in the State of Missouri, heretofore, to wit, on the eighth day of September, in the year of our Lord one thousand eight hundred and sixty-six, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare, in substance and effect, among other things, that is to say:

“Go on. Perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do. And if you will go back—if you will go back and ascertain the cause of the riot at New Orleans perhaps you will not be so prompt in calling out ‘New Orleans.’ If you will take up the riot at New Orleans, and trace it back to its source or its immediate cause, you will find out who was responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the radical Congress, you will find that the riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will understand that they there knew that a convention was to be called which was extinct by its power having expired; that it was said that the intention was that a new government was to be organized, and on the organization of that government the intention was to enfranchise one portion of the population, called the colored population, who had just been emancipated, and at the same time disfranchise white men. When you design to talk about New Orleans you ought to understand what you are talking about. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that convention sat, you will there find that speeches were made incendiary in their character, exciting that portion of the population, the black population, to arm themselves and prepare for the shedding of blood. You will also find that that convention did assemble in violation of law, and the intention of that convention was to supersede the reorganized authorities in the State government of Louisiana, which had been recognized by the government of the United States; and every man engaged in that rebellion in that convention, with the intention of superseding and upturning the civil government which had been recognized by the government of the United States, I say that he was a traitor to the Constitution of the United States, and hence you find that another rebellion was commenced, having its origin in the radical Congress. . . .

“So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed; and every drop of blood that was shed is upon their skirts, and they are responsible for it. I could test this thing a little closer, but will not do it here to-night. But when you talk about the causes and consequences that resulted from proceedings of that kind, perhaps, as I have been introduced here, and you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this radical Congress in connection with New Orleans and the extension of the elective franchise.

“I know that I have been traduced and abused. I know it has come in advance of me here as elsewhere—that I have attempted to exercise an arbitrary power in resisting laws that were intended to be forced upon the government; that I had exercised that power; that I had abandoned the party that elected me, and that I was a traitor, because I exercised the veto power in attempting, and did arrest for a time, a bill that was called a ‘Freedmen’s Bureau’ bill; yes, that I was a traitor. And I have been traduced, I have been slandered, I have been maligned, I have been called Judas Iscariot and all that. Now, my countrymen here to-night, it is very easy to indulge in epithets; it is easy to call a man Judas and cry out traitor, but when he is called upon to give arguments and facts he is very often found wanting. Judas Iscariot—Judas. There was a Judas, and he was one of the twelve apostles. Oh! yes, the twelve apostles had a Christ. The twelve apostles had a Christ, and he never Edition: current; Page: [121] could have had a Judas unless he had had twelve apostles. If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad. Stevens? Was it Wendell Phillips? Was it Charles Sumner? These are the men that stop and compare themselves with the Saviour; and everybody that differs with them in opinion, and to try to stay and arrest their diabolical and nefarious policy, is to be denounced as a Judas. . . .

“Well, let me say to you, if you will stand by me in this action, if you will stand by me in trying to give the people a fair chance—soldiers and citizens—to participate in these offices, God being willing, I will kick them out. I will kick them out just as fast as I can.

“Let me say to you, in concluding, that what I have said I intended to say. I was not provoked into this, and I care not for their menaces, the taunts, and the jeers. I care not for threats. I do not intend to be bullied by my enemies nor overawed by my friends. But, God willing, with your help, I will veto their measures whenever any of them come to me.”

Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office.

Article XI

That said Andrew Johnson, President of the United States, unmindful of the high duties of his office, and of his oath of office, and in disregard of the Constitution and laws of the United States, did, heretofore, to wit, on the eighteenth day of August, ad eighteen hundred and sixty-six, at the city of Washington, and the District of Columbia, by public speech, declare and affirm, in substance, that the thirty-ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same, but, on the contrary, was a Congress of only part of the States, thereby denying, and intending to deny, that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying, and intending to deny, the power of the said thirty-ninth Congress to propose amendments to the Constitution of the United States; and, in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterwards, to wit, on the twenty-first day of February, ad eighteen hundred and sixty-eight, at the city of Washington, in the District of Columbia, did, unlawfully, and in disregard of the requirement of the Constitution, that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, by unlawfully devising and contriving, and attempting to devise and contrive means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stanton from said office of Secretary for the Department of War; and, also, by further unlawfully devising and contriving, and attempting to devise and contrive, means, then and there, to prevent the execution of an act entitled “An act making appropriations for the support of the army for the fiscal year ending June thirtieth, eighteen hundred and sixty-eight, and for other purposes,” approved March second, eighteen hundred and sixty-seven; and, also, to prevent the execution of an act entitled “An act to provide for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-seven, whereby the said Andrew Johnson, President of the United States, did, then, to wit, on the twenty-first day of February, ad eighteen hundred and sixty-eight, at the city of Washington, commit, and was guilty of, a high misdemeanor in office.

SCHUYLER COLFAX,
Speaker of the House of Representatives.
Attest:
Edward McPherson,
Clerk of the House of Representatives.
Edition: current; Page: [122]
  • Debate on Proposed Fourteenth Amendment, 1866
  • U.S. Constitution, Fourteenth Amendment, 1868
  • U.S. Constitution, Fifteenth Amendment, 1870

When Congress passed the Civil Rights Act over President Johnson’s veto, there remained questions concerning whether the act might be declared unconstitutional by the Supreme Court or altered fundamentally by a succeeding Congress not dominated by the Radical Republicans. Thus Congressional leaders sought to incorporate into the Constitution the Civil Rights Act’s extension to African Americans of the privileges and immunities of citizenship, due process, and equal protection. Debate in Congress was extensive concerning how far the legislation ought to go in granting rights to African Americans, and how far it could successfully go and still gain ratification. The amendment, which gives Congress the power to enforce its provisions, was recommended to the states on June 13, 1866, but did not receive the required assent of twenty-eight state legislatures (out of thirty-seven states in the Union at that time) until July 9, 1868. Moreover, two states, Ohio and New Jersey, had “withdrawn” their assents before that date. On July 21, 1868, Congress passed a joint resolution declaring the amendment to be part of the Constitution. The secretary of state made the required certification on July 28; Alabama and Georgia in the meantime had assented to the amendment. In 1866 and 1867, respectively, Congress extended the right to vote to African Americans in the District of Columbia and required territories to guarantee that right to African Americans in order to secure admission to the Union as states. After the election of 1868, Congress recommended the Fifteenth Amendment to the states, forbidding denial of the right to vote on account of race, color, or previous condition of servitude and giving Congress the power to enforce the amendment’s provisions.

Debate on Proposed Fourteenth Amendment

RECONSTRUCTION.

The SPEAKER. The morning hour having expired, the first business in order is House bill No. 543, which was made the special order for this day after the morning hour, being a bill to restore to the States lately in insurrection their full political rights.

Mr. ASHLEY, of Ohio. Unless the members of this Congress who represent the loyal people of this country approach the proposition before us, providing for the restoration of the late rebel States, in a proper spirit and with mutual concessions, I fear we shall fail to accomplish the great work committed to our hands. I desire to approach its consideration with charity for all and malice toward none. I know that I approach it in a forgiving spirit and with a thankful heart. With thankfulness, because the din of war has been hushed and the national conflagration extinguished. In a forgiving spirit, because I know how much there is to be forgiven if we would reunite dissevered and broken ties, secure the perpetual unity of the nation, and bind up its millions of bleeding and broken hearts.

In all the votes which I have given or may give on the propositions for reconstruction, in all I have said or may say, I shall keep steadily in view the one great desire of my heart, which outweighs and overshadows all others, and before which the petty schemes of parties and of men dwindle into insignificance and appear to me criminal. That desire is to see the Edition: current; Page: [123] States recently in rebellion restored to all the rights, privileges and dignities of States of the American Union at the earliest day consistent with the national safety, and upon such terms as shall secure the power, unity, and glory of the Republic.

How can this most desirable result best be accomplished? In answering this interrogatory the first question which presents itself to every reflecting mind is this: has the Government of the United States as at present organized the constitutional power to demand or exact from the people in the late rebel States any conditions prior to the recognition of their recently reorganized State governments and the admission of their Senators and Representatives in Congress? If so, is it expedient to exact of them the terms or conditions proposed by the committee of fifteen, or such conditions of a like character as may finally be agreed upon by the two Houses of Congress, as conditions precedent to their resumption, as States, of all constitutional relations to the national Government which were severed by their acts of rebellion and war?

I claim that we have the power, and that it is not only our right but our duty to demand such conditions as the majority of the loyal representatives of this Congress may deem requisite for the safety and security of the nation. I believe we have the constitutional power, because I believe the States represented in this Hall during the war and now are the Government. If I did not believe this I could not vote for any of the propositions before the House or any proposition of a like character.

From the first I have held that when the people of the late rebel States abolished their constitutional State governments and confederated together in violation of the national Constitution and organized hostile State governments and a national confederate government, and maintained those governments by force of arms until the rebellion became so formidable as to claim the prerogatives of a national de facto government, and to have conceded to it by the United States and the great Powers of Europe belligerent rights, that from that hour constitutional State governments ceased in each of the States so confederated together, and until governments are reorganized in each of them in subordination to the national Constitution, and recognized by this Congress, there can be no constitutional State governments in such States.

Mr. RANDALL, of Pennsylvania. Will the gentleman allow me to ask him who he intends shall form the State governments—the people of the States, or who?

Mr. ASHLEY, of Ohio. I propose that the loyal people of these States shall reorganize these State governments and administer their governments under such rules and restrictions as the Congress of the United States, representing the people of the loyal States, shall require.

Mr. RANDALL, of Pennsylvania. Then I understand the gentleman to say that he is willing that the loyal people shall form State governments, or shall continue their State governments and protect and elect Congressmen as part of their duty. Do I understand him aright?

Mr. ASHLEY, of Ohio. Under such rules and restrictions as this Congress shall require.

Mr. RANDALL, of Pennsylvania. That is an after-clap.

Mr. ASHLEY, of Ohio. Now, Mr. Speaker, I hope I can go on without any more of these interruptions. From the outbreak of the rebellion I have sought to have all the Departments of the Government adopt and act upon this idea. I have held that the sovereignty of the nation was in the people who reside in the States which maintained constitutional State governments, recognizing the national Constitution as the supreme law of the land, and the Government which it created as the one to which all citizens owed a paramount allegiance. I have held that the sovereignty of the nation could not be impaired or destroyed within the territorial jurisdiction of the United States by the action, or the refusal to act, of any one or more States. In other words, that the people in the States which maintained their constitutional relations to the national Government were the only depositaries of the national sovereignty and the only constitutional governing power in the nation.

Holding these views, I insist that the people who maintained constitutional State governments, who, during the entire war, were represented here, and who are now represented here, the people who maintained this national Government and put down the rebellion, have a right under the laws of war as conquerors to prescribe such conditions as in the judgment of the majority of this Congress are necessary for the national safety and the national security. This is the right of the conqueror under every law, human and divine. If this be not the true theory, then, indeed, is our national Government a rope of sand.

Entertaining these ideas, at the extra session of Congress in July, 1861, I drew up a bill embodying them, but by the advice of friends I did not present it until the regular session in December. On the 12th of March following, by the direction of the Committee on Territories, I reported to this House “a bill to provide temporary provisional governments for the districts of country in rebellion against the United States.” Edition: current; Page: [124] That bill, on the motion of my then colleague, (Mr. Pendleton,) was laid upon the table by a vote of 65 to 56, a number of Republicans voting with the Opposition, and a still larger number not voting at all.

At the first session of the Thirty-Eighth Congress, upon consultation, it was thought best to have a committee on the rebellious States, and the late Henry Winter Davis offered a resolution for the appointment of such a committee. The committee was raised, and he was appointed its chairman.

After the committee was appointed, of which I was a member, I again introduced the old bill, with such modifications and additions as time had suggested. That bill which was reported passed both Houses of Congress, but did not receive the sanction of President Lincoln, and therefore failed to become a law.

At the second session of the Thirty-Eighth Congress I again introduced the same bill with some modifications, and by direction of the committee I reported it to this House. After a number of efforts to modify it so as to secure a majority vote, it was lost, and we were left at sea on this great question of reconstruction. And to-day we are reaping the fruits of our stupidity and folly. I allude to these facts to show how steadily the national mind has been marching up to this idea, that the men who remained loyal to this Government, who maintained constitutional State governments, and who during the war administered this Government are the Government.

Mr. WRIGHT. Will the gentleman from Ohio [Mr. Ashley] allow me to ask him a question?

Mr. ASHLEY, of Ohio. I would rather the gentleman would ask me his questions after I get through my argument.

Mr. WRIGHT. I wish simply to ask the gentleman to give us his definition of a loyal man.

Mr. ASHLEY, of Ohio. If the gentleman will ask me after I get through I will answer his question.

Mr. WRIGHT. Very well; I will ask the gentleman then.

Mr. ASHLEY, of Ohio. I was saying that I allude to those facts for the purpose of showing how steadily the national mind has been approaching this idea. And when this joint committee on reconstruction, composed of the ablest men in the nation, made their report the other day, they recognized the same idea, to wit, that the constitutional governments in all the rebel States were abolished; that during the war and now they were not in constitutional relations with the national Government. And the man, whoever he may be, who stands up and says they are now in constitutional relations to the national Government utters that which he knows to be untrue. The man who stands up and says that during the entire war the rebel States were entitled to be represented here lays down a proposition which would undermine and sap the very foundations of the Government. If these rebel States had the right to be represented here and had been represented here during this war, this Government would have been bound hand and foot, and we would have been incapable of resistance.

This, then, being the idea adopted by the committee of fifteen, I can support this bill. I know that the proposition submitted by that committee falls far short of what I expected, far short of what the loyal men in the South had a right to expect, far short of what the men who sacrificed so much to preserve this nation had a right to expect. But if I can get nothing better I shall vote for their proposition, as I have already voted for the proposed constitutional amendment which was sent to the Senate the other day. When that proposition was up I desired to offer an amendment to it. But the honorable gentleman from Pennsylvania [Mr. Stevens] who had charge of the measure had entered a motion to recommit, and would not allow the amendment to be offered. But I now send it to the Clerk’s desk, as the amendment I then desired to offer. It may do no good to send it to the Senate now, as I learn since I got on my feet that the amendment which we sent over has received, with an amendment to the third section, the sanction of a majority of the true Union members of that body, and will, undoubtedly, pass that body.

The Clerk read as follows:

Article —.

Sec. 1. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Sec. 2. No State shall deny the elective franchise to any of its inhabitants, being citizens of the United States, above the age of twenty-one years because of race or color; but suffrage shall be impartial. And on the 4th day of July, ad 1876, all citizens of the United States above the age of twenty-one years, not convicted of crime or excluded from the right of the ballot by act of Congress or by the law of any State because of insurrection or rebellion against the Edition: current; Page: [125] United States, shall be electors in each State and Territory of the United States; and on and after the 4th day of July, ad 1876, all natural-born citizens of the United States thereafter becoming twenty-one years of age, and all aliens who may thereafter be naturalized and are above the age of twenty-one years and can read and write the English language, shall be qualified to vote for electors of President and Vice President of the United States, for members of the Congress of the United States, and for Governors and members of State Legislatures.

Sec. 3. Representation shall be apportioned among the several States according to the respective number of inhabitants in each.

Sec. 4. No payment shall ever be made by the United States or any State for or on account of the emancipation of any slave or slaves, or for or on account of any debt contracted in aid of insurrection or rebellion against the United States.

Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Mr. ASHLEY, of Ohio. I do not desire to take up the time of the House in discussing this proposition, as I understand the Senate has practically agreed to sustain the proposition on representation which was sent them from this House a short time since. It will be noticed, that in prescribing the qualifications of electors, I omit the word “male” and use the words “all citizens of the United States above the age of twenty-one years.” I did this purposely, as I am unwilling to prohibit any State from enfranchising its women if they desire to do so. The Senate having struck out the third clause and inserted another, this amendment will serve no other purpose than to show what I desired to offer the other day.

But, Mr. Speaker, I have an amendment which I desire to offer to this bill—an amendment upon which I shall ask a vote, and to which I desire the attention of the House. House bill No. 543, as reported by the committee, requires the adoption of the constitutional amendment proposed before any State, no matter when it may be ratified, shall be admitted here, thus putting it in the power of the northern States, if they desire to do so, to exclude States which in good faith ratified this constitutional amendment and amended their State constitutions and laws so as to comply with all the conditions we make. I desire, then, to have the bill reported by the committee so amended that whenever any State lately in insurrection and rebellion shall have ratified this amendment in good faith, and shall have modified its constitution and laws in conformity therewith, that its Senators and Representatives shall be admitted into Congress; that is, that the loyal men of Tennessee and Arkansas now elected shall be admitted; but that as to the other States, they shall, before being represented in Congress, after the adoption of this amendment and the modification of their constitution and laws, elect, or reëlect, if you will, Governors and all other State officers, members of the Legislature, Senators of the United States, and members of this House.

Why do I ask for this provision? Because these governments, set up by the President of the United States, set up over the heads of loyal men, have every one of them elected traitors to official positions in those States, have elected traitors to this House, have elected traitors to the Senate. I insist that this provision shall be applied to them, so that when their constitutions and their laws are modified in accordance with the proposition which we lay down, the loyal men of those States shall, under the amended Constitution and laws, vote for the officers which are to be recognized by the Government of the United States. I ask the Clerk to read the amendment which I propose to offer:

The Clerk read as follows:

That whenever any State lately in insurrection shall have ratified, in good faith and irrevocably, the above recited amendment, and shall have modified its constitution and laws in conformity therewith, and after such ratification and modification of its constitution and laws shall have elected a Governor and the State officers provided for in the constitution of such State, including the State Legislature and Senators and Representatives to the Congress of the United States, under such limitations and restrictions as may be imposed by the constitution and laws of such State when amended as herein prescribed, the Senators and Representatives from such State, if thus elected and qualified, may after having taken the oaths of office required by law, be admitted into Congress as such: Provided, That neither the State of Tennessee nor Arkansas shall be required to reëlect a Governor and State officers or a State Legislature or Senators or Representatives to the Congress of the United States; but whenever either of said States shall have ratified the above recited amendment, and shall have modified their constitutions and laws in conformity Edition: current; Page: [126] therewith, their Senators and Representatives now duly elected and qualified may be admitted into Congress on taking the oaths of office required by law.

Mr. ASHLEY, of Ohio. It will be observed, Mr. Speaker, that, by the adoption of this amendment, every State which adopts in good faith the proposed amendment to the Constitution and modifies its constitution and laws in conformity therewith, and after such modification elects a Governor and members of the Legislature and Senators and members of this House, it shall have its Representatives admitted here. An exception, however, is made in the case of Tennessee and Arkansas, which now have loyal Governors and other State officers and loyal Legislatures. Those States would not be required, under this amendment, to reëlect their officers, but the Senators and Representatives already elected, if they can take the oath, would be admitted to seats in Congress, and their present State officers would be allowed to continue in their present positions.

I think this modification a very necessary one. Let gentlemen look over the South and see the character of the men who have been elected as Senators. In almost every instance, where they are not out and out open-throated rebels, who ought to be incarcerated in prisons or exiled from the country instead of approaching this temple of liberty; in almost every instance, I say, where there has been any concessions made to loyal men the Legislatures have elected moderate men for the short term and the most malignant rebels for the long term. Sir, look at Georgia; they would not elect Joshua Hill, but elected Alexander H. Stephens; and so of nearly every rebel State. If the southern people are stupid enough to suppose that such men as Alexander H. Stephens will ever be admitted into the Senate or House of Representatives they might as well be undeceived now. Hence, I say that in view of the fact that the loyal men have had no voice in those reconstructed governments, have had no voice in their legislation, have been dumb and silent under the sway of these traitors who were placed in power over them by the Executive, the loyal men of those States should have a fair opportunity to select men who will truly represent them under the Constitution and laws when modified in accordance with the constitutional amendment proposed by Congress.

I also have an amendment which I intend to offer when the other bill comes up, but will not take up time by reading it now. I will send it to the reporter and he can insert it with my remarks.

Let us look, Mr. Speaker, at the condition in which we find the country. I hold in my hand the propositions reported by the committee of fifteen. I need not read them. They have been carefully examined by every member. All over the land, North and South, a cry is raised against the report of that committee. I ask gentlemen if they can put their hands on a single page of human history where, after a rebellion has been put down of the character of the one we had to deal with, they can find the conquerors making propositions so mild, so conciliatory, and so merciful as these made by the committee of fifteen—propositions as applicable to the conquerors as the conquered. Yet we find men in this Hall, men all over the South, men holding high positions in the Government before the rebellion, and high positions in the rebel government, who have the effrontery to tell the people of this country that they will not accept such conditions. If they will not and we permit them to dictate their own terms, is not this a practical surrender on the part of the conqueror to the conquered? Suppose our position had been reversed; suppose the anti-slavery men of this country had gone into a rebellion as the South did, without a pretext, without cause, when they had a majority in this and the other branch of Congress, simply because a pro-slavery man had been elected President. Suppose this to have been the case, that State after State had seceded, had captured the forts of the United States, and had made war on the Union for four years, destroying half a million of lives, as well as running up a debt of over $3,000,000,000 for posterity to pay. I say suppose this to have been the case, do you believe any such proposition would have been made by those men when they had conquered as have been made by this Government, nay, proposed by this very House? Do you suppose that leading anti-slavery men, like Garrison, Phillips, Beecher, Greeley, and Gerrit Smith, would have been sent for by a pro-slavery Executive to be counseled with and sent home as provisional governors to organize States over the heads of the only loyal men in those States? Do you think there would have been any such stupid performance if the North had been in rebellion? No, sir, we would have been stripped naked, as was said by Henry A. Wise the other evening at Alexandria.

My friend from Iowa in front of me [Mr. Price] hands the paper containing the extract I am quoting, and I will read it:

“If I had triumphed,” said Governor Wise, “I should have favored stripping them naked. [Laughter.] Pardon! They might have appealed for pardon, but I would have seen them damned before I would have granted it. For myself, Edition: current; Page: [127] the boot being on the other leg, I take no oaths; I ask no pardons! [Prolonged cheers.] I give you that brigade—the old, the lasting, the enduring Wise brigade. [Cheers and applause.]”

Do you suppose if the rebellion in the North to which I have referred had been put down, any traitor would have been permitted to walk in Boston and utter such treason against the Government? No, sir; and yet we are denounced in this Congress as a rump Congress, as Jacobins, as sanguinary men. Why? Because we ask, in restoring the governments of the southern States, that our friends shall have a fair share in the administration of their State governments, and that the leading traitors shall be punished.

Sir, under the Administration, as matters are now going, not a single, solitary traitor will be punished. Rebel soldiers that were in prison have all been liberated, while the soldiers of the grand Union Army who are in prison for the slightest offenses remain, and you cannot get them pardoned out. These are unpleasant facts, but I could not pass them and do my duty without referring to them.

What do we ask? The loyal men of the nation ask that in the restoration of the rebel States the men who were our friends and allies during the rebellion—the loyal men—shall be clothed with the power of the local and State governments of the South. Is this asking too much? If this is not accorded to us, if these men are to come back here, the loyal oath to be repealed as is recommended, and no conditions are to be exacted; if these men are to come back here next year and take possession of the Government, so far from treason being punished and made odious it will only prove to have been a passport to favor and to power. . . .

Mr. Speaker, to me the only vital and living question growing out of this subject of reconstruction is whether the loyal men of the South, whether all citizens of the United States residing in the South, shall have the right of the ballot. And when I say all loyal citizens I mean all, black as well as white. I hold that every man born in the United States is a citizen of the United States, and that every citizen, native-born or naturalized, has the right to a voice in the Government under which he lives. It is a natural right, a divine right if you will, a right of which the Government cannot justly deprive any citizen except as a punishment for crime. Sir, every American citizen of the age of twenty-one years, not convicted of an infamous offense, has the right to vote for or against those who are to make and administer the laws under which he lives. That is the high prerogative of every American citizen. Anything short of that is but a mockery.

I want this Congress, before it shall adjourn, to insist that every man who has been loyal to the Government in the South, whatever his race or color, shall have the right to the ballot. We now have the golden opportunity. If you do not guaranty these precious rights of the citizen now you leave the great work before us unfinished; and I warn you that agitation will follow your refusal to enact justice, and that there shall be no repose until every citizen of the Republic is enfranchised and stands equal before the law. Shall we falter, Mr. Speaker, in this sublime hour of victory which God has given us, or shall we finish the work which He has committed to our hands by securing the complete enfranchisement of all citizens of the United States?

The voice of every friend of this country in Europe, as it comes to us across the sea, cries out to us to enfranchise the men who in the late struggle were our friends and our allies. From Switzerland, the grand republic of the Old World, there come to us words of counsel and wisdom which we ought not to disregard. From every land beneath the sun, where liberty is loved and human hearts have been touched by our heroic struggle, there comes to us a plea that in reconstructing this Government we shall first of all see to it that justice is the basis upon which we build.

And better than all this, from the loyal men of the South, both white and black, there comes up to us the prayer that we will see to it that they have justice; that we will not falsify the pledges which the nation has made. Sir, do gentlemen expect that we can make the pledges we have made, and then turn these people over to the tender mercies of their enemies and ours without calling down upon us the execrations and denunciations of all right-thinking men? If they do, they are mistaken. Shall we hear and answer these words of counsel and wisdom and the prayer of our friends and allies, or shall we turn for counsel and advice to our late enemies?

We are as a nation either to go forward in the great work of progress or go backward; we cannot stand still. And I am desirous to know whether this Congress is going to attempt the work of staying the great anti-slavery revolution which has swept over the country and obliterated all the pro-slavery landmarks erected by parties and by men. Sir, I have faith to believe that neither President nor Cabinet nor Congress can long stay with their puny efforts the grand decree of the nation. He who attempts it, be he President, Cabinet minister, or statesman, will fall before its advancing power, and his political Edition: current; Page: [128] grave will be marked by the skeletons of those who for the past quarter of a century, having betrayed liberty, were wrecked along the political coast and to-day lie unburied and unhonored because there were none so base as to do them reverence.

Sir, I know that our hour of triumph may be delayed; but I have faith to believe that we cannot be defeated. Let the ballot be placed in the hands of every loyal man in the South, and this nation is safe—safe from rebellion, safe from repudiation, safe from a war of races, safe from the domination of traitors in its councils. Sir, without the ballot in the hands of every loyal man the nation is not safe. The ballot is the only sure weapon of protection and defense for the poor man, whether white or black. It is the sword and buckler and shield before which all oppressions, aristocracies, and special privileges bow. Sir, Mr. Lincoln, in a letter written to Governor Hahn, of Louisiana, pleading for the right of the black man to vote, said most beautifully and, as I believe, prophetically that “in some trying time the vote of the black man may serve to keep the jewel of liberty in the family of freedom.”

I believe this most fully; and believing it, I would be false to myself and false to my country if I did not demand it. If I were a black man, with the chains just stricken from my limbs, without a home to shelter me or mine, and you should offer me the ballot, or a cabin and forty acres of cotton land, I would take the ballot, conscious that, with the ballot in my hand, rightly used, all else should be added unto me.

Sir, I would like to know whether there is one professedly loyal man in this nation who would rather confer the ballot upon a traitor to his country than upon a loyal black man who has fought to save the Republic. I should like to hear such a man speak out here or elsewhere. Sir, however much brazen-faced impudence there is in every public assembly, there is no man in this House so bold or so bad as to make such a declaration.

Mr. LE BLOND. With my colleague’s permission, I wish to ask him a question. I infer from his remarks that he is in favor of negro suffrage. I wish to know whether he is in favor of negro suffrage in the States.

Mr. ASHLEY, of Ohio. Everywhere.

Mr. LE BLOND. In the State of Ohio?

Mr. ASHLEY, of Ohio. Everywhere.

Mr. LE BLOND. Then I wish to ask the gentleman another question: does he claim that Congress has the power to confer the right of suffrage upon negroes in the States?

Mr. ASHLEY, of Ohio. Well, sir, I do not intend to put myself on record against the right of Congress to do that. I am not prepared now to argue the point with my colleague; but I will say to him that when the time comes for the American Congress to take action on the question, I will be ready to speak. I will not say now whether I would vote for or against such a proposition.

Mr. LE BLOND. I wish to ask my colleague one more question: is he in favor of the report of the reconstruction committee?

Mr. ASHLEY, of Ohio. Well, sir, I am voting for it.

Mr. LE BLOND. Is my colleague in favor of keeping the States out until the conditions prescribed in that report are complied with?

Mr. ASHLEY, of Ohio. If my colleague had listened to my remarks and to the amendment which I presented, he would not have felt called upon to interrupt me to put this inquiry.

Mr. LE BLOND. I would like to inquire why the gentleman yields the question of suffrage, as he does, in supporting the proposition of the committee.

Mr. ASHLEY, of Ohio. Because I cannot get it. [Laughter.] Is not that a fair answer?

Mr. LE BLOND. That is honest.

Mr. ASHLEY, of Ohio. Now, sir, let us look at this question for a moment from the stand-point of the black man. And he who will not look at this question from the stand-point of the black man is unfit to sit in judgment on this question. Let me ask gentlemen on the other side, with whom I always deal fairly, suppose your ancestors had been in bondage for two hundred years, and that this nation—this nation of hypocrites and liars for more than eighty years—had enslaved and degraded you as no people were ever degraded before—making merchandise of your entire race, while professing Christianity and a love for liberty. I say suppose this to have been your condition when this war begun—a war inaugurated on the part of your masters to establish a government which should perpetuate your bondage—and after becoming satisfied that we could not conquer your masters without your aid, we had invited you in the hour of the nation’s agony to join our army and help put down the rebellion, promising you your freedom, and that you had come two hundred thousand strong, and had stayed, if you did not turn, the tide of battle, thereby giving us the victory. I say suppose this to be the case, and after the rebellion had been crushed and your masters were put down by your aid, we had coolly and unblushingly Edition: current; Page: [129] turned you over to the control of local State governments administered by your late masters. I ask, what kind of justice would you call that?

Mr. ELDRIDGE. I wish to inquire—

Mr. ASHLEY, of Ohio. If you will answer that I will yield the floor.

Mr. ELDRIDGE. Was that so from the beginning?

Mr. ASHLEY, of Ohio. It was so with me. I do not know what issue the gentleman had. So far as his votes indicated, his position was on the other side.

Mr. ELDRIDGE. Was that the position of Mr. Lincoln and those who supported him from the beginning of the war?

Mr. ASHLEY, of Ohio. I do not think it was at the beginning.

Mr. ELDRIDGE. Was it at the end of the war?

Mr. ASHLEY, of Ohio. Yes, sir.

The SPEAKER. The gentleman’s time has expired.

Mr. GARFIELD. I move that my colleague’s time be extended.

Mr. LE BLOND. He is entitled to credit, and deserves extension. [Laughter.]

There was no objection, and it was ordered accordingly.

Mr. ASHLEY, of Ohio. Mr. Speaker. I want my friend from Ohio, or any one on that side of the House, to tell me, if after having fought to save the nation under the promise of freedom and the protection of his life and property, what would be his feelings toward those who committed the great crime of turning him over to the control of his enemies and ours? What would you say of such a Government? What would you say of the honor of its rulers? Sir, I know not what other men would say, but if I were a black man I would not submit. I would rather be the slave of one man who had a pecuniary interest in my health and life than to be the slave of a State whose government was controlled by my late masters. It is a terrible thing to be the slave of a State whose government is administered in the spirit of caste. Sir, if the members of this House could witness what I have often seen, free men made the slave of the State, they would know how intolerable is such a condition, and would not sleep soundly if by their vote they permitted four million people, who were our allies and friends in this late war, to become the slaves of a State whose government was in the hands of rebels.

Mr. HIGBY. They have reënacted the same laws.

Mr. ASHLEY, of Ohio. These laws have been reënacted in some of the so-called reconstructed States, as my friend from California remarks. Sir, I repeat, if this great injustice was done me I would not submit; and I tell you that these four million people, soon to increase to ten millions, will not submit to such monstrous legislation. If I were a black man I would rather go into rebellion and revolution than submit to such an intolerable wrong. I would take my children and go daily with them to the altar and swear eternal hostility to those who thus betrayed me. I would consecrate all the powers of mind and strength which I possessed to brand those with infamy who had been so false to my people, and to put them into history along with those who, in every generation, have disgraced the world as the betrayers of mankind and enemies of the human race.

Sir, nothing can give such security to the poor man as the ballot. The prejudice of caste is strong, but the ballot will soon banish its baneful spirit. If in the days of Know-Nothingism the Irishman had not had the protection which the ballot alone could give him his condition would have been intolerable. How much more intolerable the condition of the black man without the ballot when completely under the dominion of his late slave-master!

Mr. ELDRIDGE. Let me ask a question.

Mr. ASHLEY, of Ohio. Not now. When Richmond fell, when Lee surrendered, when the last rebel army surrendered, and the bells all over the North were ringing out their peals of joy, who were the men that stood up first in this Union and asked for mercy to a fallen foe? The men who had a right to speak, Garrison, Phillips, Beecher, Greeley, Bryant, and Gerrit Smith—the men of heart, of intellect, and of soul. While they demanded justice for black men and the loyal men of the South, they plead also for mercy to a fallen foe.

When I came here last spring to see the President he was talking about making treason odious, and declaring that traitors should take a back seat. I was more anxious to secure justice to our friends and allies than to execute vengeance on our enemies. All we asked then and all we ask now is justice—justice to our friends and mercy to a fallen foe. All we ask now for white men and black men in the South and in the North is justice; and I tell you, that by the blessing of God, we intend to have it. Be not deceived. You cannot always postpone the demands of justice. As a nation we have learned by sad experience that we cannot trample upon it with impunity. Neither laws nor customs nor despotism can silence its claim, because it is a principle implanted by the Creator in every human Edition: current; Page: [130] heart, and can never be wholly eradicated by the selfishness or tyranny of man. He who understands the simple teachings of the golden rule comprehends the application of justice alike by Governments and men.

It needs no learning or superior wisdom to interpret it. The ignorant black, so recently a slave, and the most scholarly white alike understand it. Justice demands liberty and equality before the law for all. It speaks in the heart of every man, wherever born, with an inspiration like unto that which spoke on the day of Pentecost with tongues of fire. Woe to the statesman or party or nation which tramples on this principle! Its complete recognition by our Government will bring us national grandeur and national glory, and secure unity, peace, prosperity, power. Its rejection will tarnish the fair fame of our country, and bring discord, dissension, adversity, war.

Let the corner-stone of each reconstructed State be justice and the cap-stone will be liberty. With liberty and justice as the fundamental law of our national and State governments there can be no war of races, no secession, no rebellion. It is injustice and oppression which bring dissension and war. The opposite will bring harmony and peace. He who votes injustice to-day will be held accountable by the people now, and in the great tribunal of human history will be justly chargeable with all the oppression, wrongs, and wars which must follow the enactment of injustice into law. The law-maker who demands nothing for himself which he will not concede to the humblest citizen is the only true statesman. Make the community of interests one by guarantying the equal rights of all men before the law, and the fidelity of every inhabitant of such a commonwealth becomes a necessity not only from interest but from a love of justice.

Sir, this Congress is writing a new chapter in American history. Let every man whose great privilege it is to record his name where it will stand forever, so record it as to secure the triumph of justice, and his name and memory shall have a life coequal with the Republic.

Sir, he who has comprehended the logic of the terrible conflict through which we have passed and studied with profit the lessons which it has taught, will have learned the point at which in our great march as a nation we have reached, and know something of the course which in the future it will travel.

Animated for many years by conflicting, sectional, hostile forces, I have lived to see since my entrance into Congress these antagonistic views so modified and melted into one that to-day the condition is accepted by all patriotic, right-thinking men, and the historian without confusion can make up the record. If this war has taught us any one lesson more clearly than another, it is that we are inseparably one people, that this continent can never again become the abode of human slavery, and that in all our future deliberations in these Halls old antagonisms will cease to divide us, and our hopes and aspirations become one, because our interests are one.

Let this measure, or those which the Senate may perfect, pass and go into the Constitution of the country; let the propositions before us become the law of the land, and you will have done something toward securing the triumph of justice. Pass these acts, and justice as a flaming sword will stand at the doors of the nation’s council halls to guard its sanctuary from the presence of traitors. Pass them, and he who approaches this temple of liberty shall pause at the threshold before entering and swear eternal fidelity to the Republic.

Let these propositions pass and the proposed amendment of the Constitution become part of our fundamental law, and a generation shall not pass away before witnessing the complete enfranchisement of every freeman and the entire abolition of all class legislation.

In this faith and with this hope, believing that Providence in the future as in the past will overrule all for our good and supply where we have failed, I am prepared to give my voice and my vote for whatever measure a majority of the loyal members of the American Congress may adopt for the restoration of the States lately in rebellion. . . .

The SPEAKER. The gentleman from West Virginia [Mr. Latham] has the floor.

Mr. LATHAM. Mr. Speaker, we seem to have fallen upon an age of theories. We are told from day to day with much seeming sincerity and an air of the most profound political sagacity that the Union when restored must be restored upon a basis which will make it as permanent as the everlasting hills and as invulnerable as the throne of the Eternal, and with such safeguards that even treason will no longer be possible within its jurisdiction. I need not refer to particulars or quote authorities or precedents upon this point to show that I state the case fairly. To attempt to do so would be but to recite a hundred speeches made upon this floor during the present session, and the daily editorials of a thousand newspapers, made and published throughout the length and breadth of the land during the same period, and would be only an insipid reiteration of what everybody knows. The people have heard so much upon this subject; they have heard such declarations so often and so confidently made, and by those whom Edition: current; Page: [131] they have confidence will do what they themselves say ought to be done and must be done, that those of them who really love their country and are devoted to their Government are almost ready to believe that the long-looked for millennium will be ushered in with the reconstruction of the Union. . . .

I now ask indulgence for a few moments while I explain as briefly as possible the difficulties which stand in the way of my support to this bill as a whole. Before, however, entering directly upon this discussion I will just here remark that I do not comprehend how or why the reconstruction or restoration of the States lately overrun by the rebellion involves the necessity of reconstructing the Constitution and Government of the United States. Was the Government of the United States overthrown, or were any of its parts or functions destroyed by the rebellion? If not, where or why the necessity of its reconstruction? Did the rebellion expose imperfection or weakness in any of its parts? Or did we, during its existence, feel the need of the exercise of any power which we did not at the same time feel we had the right to exercise? Did we experience during the rebellion that any change in the Constitution, or even in the form of our Government, could make us stronger than we were?

Sir, we had the right to use, and did use, all the means which God and nature had given us to preserve the life of the Republic. More men and more money were the only agencies which could have given us additional strength, and constitutional amendments could not supply these demands. Sir, even the success of the rebellion would have proved nothing against the wisdom of the provisions of our Constitution, the success of republican institutions, or the strength and permanence of our form of government which it would not have proved equally against that system called the laws of nations, and which we are informed supplanted the Constitution during the war. Much less does the mere fact of rebellion prove anything against either, for all the systems of which we have any information, from the most arbitrary and unjust on earth to that which was established by eternal wisdom for the government of angels in heaven, have been assailed by organized rebellion.

“Irreversible guarantees against rebellion” are a myth, a farce, a deception—mere clap-trap, coined for party purposes—the device of demagoguery, and not the dictate of statesmanship. Security against rebellion is in the administration rather than in the form of government. Place all political power securely in the hands of its friends, and then make it, by the manner of its administration, what the Almighty intended civil government to be—“a terror to evil-doers, and a praise to them that do well”—by making the punishment of crime and the reward of virtue swift and certain, and you have the guarantees, and all the guarantees, against the renewal of the conflict here that the Almighty has in heaven against its renewal there.

There are two principles involved in the provisions of this bill which I desire to notice. First, that the approval of three fourths of the States now represented in Congress is sufficient to ratify the constitutional amendment. And second, that the ratification of the constitutional amendment recited in this bill shall be a condition-precedent to the right of representation in the States now unrepresented in Congress. These principles are necessarily based upon the presumption that these are not now States of the American Union. If this presumption be true, I ask gentlemen when and by what act they ceased to be States? Was it by the act of rebellion? That I admit was the design of the rebellion; but the rebellion failed in its purposes. Was it by the formal act or ordinance of secession? To state this proposition is now to answer it.

Am I told that the recognition of belligerent rights by the law of nations severed the connection? That the law of nations prevailed during the war and must prevail during the settlement growing out of it? I admit that the United States had the right to, and did, exercise and accord belligerent rights during the war to any extent justified either by policy or the dictates of humanity; but in so doing they never for a moment surrendered the rights of the sovereign; and that upon the submission of those in rebellion to the Constitution and laws the right to the exercise of belligerent powers under the law of nations ceased. Sovereignty alone prevailed—had triumphed; the Constitution and municipal law of the land attached, and the treatment to be accorded the offenders must be under the provisions of and in accordance with these instead of the law of nations, administered by the United States as sovereign and not as belligerent. Who, until at the present time, ever heard of a sovereign Power governing in time of peace any portion of its subjects as belligerents under the law of nations? Oh, what fools the wise men of past generations have been! How they must have desired to see the things that we see, to hear the things that we hear, to know the things that we know! How hard to die without seeing, hearing, and knowing them!

Sir, I assert, without fear of overreaching the principles of law governing the case, that loyal citizens, by being for a time overpowered by the rebellion, have lost none of the rights which attach or ever attached to them by virtue of the Constitution Edition: current; Page: [132] of the United States; and that consequently when they restore their State governments in harmony with that of the United States, they are entitled to exercise all the functions of a State, and to all the rights of a State in the Union. I say the “loyal citizens,” for I believe the disloyal are entitled under the Constitution to no right except the right to be hung. When, however, an amnesty or pardon for past offenses is granted, the party having received it may then appeal for protection, and as of right in all matters affected or reached by such amnesty or pardon, to that law which, had it been enforced against him, might have demanded even his life. The law against which he had offended and by which he was condemned, which, while under condemnation, only thundered its anathemas against him, has, upon pardon and reconciliation, become his friend and the advocate of his rights which attach by virtue of such pardon. Now, in what do these rights consist? Do they consist solely of what we term “civil rights,” or do they include “political rights” also? My own impression is that they include just what the sovereign granting the pardon may elect to have them include, nothing more, nothing less. And that if it is not yet safe to trust political power in the hands of the reconstructed, it should simply be withheld from them, and that those only who have been continuously loyal should be permitted to exercise it.

The committee, however, has failed to give us any information as to whether those State organizations are in the hands of the friends or the enemies of the Federal Government, or whether those recently in rebellion, but who have been pardoned, may yet be safely invested with “political rights.” Where is the protection or encouragement they propose for the Union men of the South? Where, are the recommendations of this committee upon the most vital question of the day, or involved in all the issues now upon us—the reward and encouragement of loyalty in the section lately overrun by rebellion? Echo answers, where! Gentlemen have labored hard to prove that the loyal are in like condemnation with the disloyal, because they were within rebel lines during the war; that all are “alien enemies” together; that the law of nations justifies us in treating them as such, and that we can make no discrimination between them. Let us see how this is. Allegiance and protection are reciprocal duties, binding, the one upon the citizen, the other upon the Government; and inseparably connected with the faithful observance of all the obligations of allegiance are all the rights which attach by virtue of citizenship. Now, when do these mutual obligations cease? Vattel, page 96, says:

“The natural subjects of a prince are bound to him without any other reserve than the fundamental laws; it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well. Both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is, then, an essential and necessary condition of political society that the subjects remain united to their prince as far as in their power.”

Am I told that the late civil war dissevered all these bonds and relieved both parties from the observance of these reciprocal obligations and duties? Chitty, in his note to Vattel, page 97, says:

“No individual can shake off his natural allegiance until the part of country where he resides is absolutely conquered and the parent State has acknowledged the severance.”

And in his Treatise on Commercial Law, page 129, he elaborates the same doctrine; and I assert, without fear of successful contradiction, that all the authorities on public law, where they touch upon this doctrine, confirm it.

The questions, how the subjects of a government who have been engaged in an unsuccessful rebellion may be treated, and how loyal citizens residing within the rebellious districts should be regarded, have never been considered questions legitimately belonging to the department of international law; because as subjects and citizens they are the objects of the local municipal regulations and laws of the country; the law of nations ceases to operate so soon as the state of war ceases to exist; and when we look to works of international law for authorities or precedents upon these points, we become bewildered because we are traveling out of the record. I have, however, some authorities which, though not bearing directly upon these points, go beyond and cover them. These authorities presuppose—necessarily, because wise men who have written upon these subjects never dreamed of the application of the principles of international law to a country subsequent to the overthrow of an unsuccessful rebellion. These authorities, then, presuppose the success of the rebellion and the permanent partition of the country. In the case of Respublica vs. Samuel Chapman, 1 Dallas, page 56, the court held that—

“None are subjects of the adopted government who have not freely assented thereto.”

Edition: current; Page: [133]

And in the case of Kelly vs. Harrison, 2 Johnson’s Cases, page 29, the court held that—

“The division of an empire works no forfeiture of a right previously acquired, and as a consequence of it all the citizens of the United States who were born prior to our independence, and under the allegiance of the King of Great Britain, would be still entitled in Great Britain to the rights of British subjects.”

This very language has been reaffirmed by the Supreme Court of the United States; and all these principles here contended for are as old as the law and are of universal acceptance, except with the new school of authorities, who have not yet published their works.

Does, then, the obligation of impartial justice on the part of the Government toward the subject or citizen cease, while that of fealty on his part remains; or does the obligation of fealty attach without carrying with it all the rights and privileges of citizenship? No, they both cease at one and the same time, the same instant, when the Government acknowledges its inability to extend its protection to him, and not until then. But am I told that the exercise and according of belligerent rights during the late civil war actually amounted, in contemplation of public law, to an acknowledgment of the severance by the United States? If so, then all, loyal and disloyal, “without distinction of race, color, or previous condition of slavery,” within the limits of the late rebellion, are now aliens, foreigners, not citizens of the United States; and you have no more right, except as might makes right, to extend over them the provisions of your municipal law for the collection of taxes, and for other purposes, than you have to extend them over the people of Mexico, China, or the Russian empire. And why is Jeff. Davis to-day a state prisoner if you can deal with him only in accordance with the law of nations? The United States, sir, by the result of the late war, have acquired no right by conquest which does not legitimately belong to them as sovereign. It was simply a reassertion and triumphant vindication of their disputed sovereignty. The application of the law of nations works an extension or enlargement rather than a forfeiture or limitation of the rights of revolted subjects during the revolt, but all the rights and remedies of the sovereign, and all the pains and penalties which the law denounces against the offenders, an enlargement of power in the Government, and an abridgment of the rights of the offender, attach immediately upon the vindication of the national integrity.

I know that I am now trenching upon the doctrines of the distinguished gentleman from Pennsylvania, [Mr. Stevens,] and I desire information from him upon the point I now make. Admit, for sake of argument, that all within the lines of the late rebellion were and are “alien enemies.” By what principle or upon what authority would you define the limits of the late rebellion with sufficient certainty to ascertain who are “alien enemies”? When and by whom were they so defined? Was it by the President in his proclamation of August 16, 1861? The Government of Great Britain accorded “belligerent rights” to the rebels, by proclamation of the Queen, on the 13th day of May, 1861. The right to the exercise of “belligerent rights” by the United States has been recognized by the Supreme Court from the 15th day of May, 1861, and the President frequently changed the limits by proclamations of different dates, and on April 2, 1866, declared it without form and void—without “a local habitation or a name.” As I remarked in this House, on the 8th day of January last, “the rebellion was never bounded by State lines, but its authority was extended wherever its power could carry it.” The Supreme Court of the United States, upon this point, (2 Black, page 673, the decision being made during the existence of the rebellion,) say:

“It has a boundary marked by lines of bayonets and which can be crossed only by force; south of this line is enemy’s territory, because it is claimed and held in possession by an organized, hostile, and belligerent power.”

Now, who can define any fixed limits to the rebellion? To-day that “line of bayonets” is at Gettysburg, and all “south of that line is enemy’s territory, because it is held by an organized hostile and belligerent power”; to-morrow that line is at Richmond, and then all between Gettysburg and Richmond is not enemy’s territory, because it is not held by the enemy. To-day that “line of bayonets” bears hard upon Louisville, and “all south is enemy’s territory”; to-morrow that line is at Chattanooga, Atlanta, Savannah, Columbia, Raleigh! To-day that line is at Jefferson City; to-morrow at Little Rock, at Shreveport, at Galveston, at the Rio Grande—nowhere! Now, who, I ask, ever has defined or ever shall or can define the limits of the rebellion, so as to determine that all were enemies within certain fixed geographical limits? How long occupancy by the enemy and peaceable acquiescence by the inhabitants, does it require to convert the citizen into a “public enemy”—a day, a month, or a year? I trust the gentleman from Pennsylvania never got south of that “line Edition: current; Page: [134] of bayonets,” and thus became an “alien enemy,” though it strikes me I have heard that the “line of bayonets” was at some time extended north of some of his property, which must now be liable to seizure by the Government as “enemy’s property,” because it was within “enemy’s territory,” “claimed and held in possession by an organized, hostile, and belligerent power.”

What, sir, is the legitimate bearing of this doctrine upon the fundamental principles of our Government? This bill, sir, contains on its face, though somewhat veiled, and is so interpreted by its author, the monstrous doctrine the enormity of which I have been endeavoring to expose. Recognize this doctrine as a principle in our Government and rebellion will cease to be an individual crime and treason will be impossible, because the instant you engage in them you become an “alien enemy,” entitled to “belligerent rights,” and can be dealt with only in accordance with the law of nations as a “public enemy.” In this way, sir, I admit that the committee has found the great panacea for all our troubles—the great and “irreversible guarantee against rebellion and treason”—by legalizing them. Wonderful discovery! Yet how plain, how simple! How is Columbus outstripped in teaching his wondering admirers how to set an egg on end!

  • “The invention all admire, and each, how
  • He to be the inventor missed; so easy it seems,
  • Once found, which, yet unfound, most would have thought
  • Impossible.”

What, think you, would our revolutionary fathers, who said that levying war against the United States was treason to be punished by the municipal law, think if they should rise from their graves to find what fools they are discovered to have been? “Angels and ministers of grace,” spirits of Washington, Jefferson, Madison, and Hamilton, “defend us” from such heresy!

I, sir, am neither misrepresenting the principles of this bill nor placing a false construction upon this doctrine. It is the one leading idea which has been persistently pressed by the gentleman from Pennsylvania [Mr. Stevens] in connection with every measure which has been introduced looking to a restoration of the Union. It is the construction which he gives to this bill, of which he himself is the author. It is the principle further presented by him in the following section of the bill offered by him to the House on yesterday:

Sec. 6. All persons who held office, either civil or military, under the government called the “confederate States of America,” or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced their allegiance to the United States, and shall not be entitled to exercise the elective franchise until five years after they shall have filed their intention or desire to be reinvested with the right of citizenship, and shall swear allegiance to the United States and renounce allegiance to all other governments or pretended governments, the said application to be filed and oath taken in the same courts that are authorized by law to naturalize foreigners.

“Forfeited their citizenship”; not citizens, then aliens. Citizens only can be punished for treason. Jeff. Davis “held office under and swore allegiance to the so-called confederate States of America”; hence Jeff. Davis is an alien, and hence he cannot be tried and punished for treason against the United States. Let us pause, sir, before we make this leap.

Sir, this is a subject which deserves the most careful and serious consideration of this Congress and of the country. It is a subject which should be approached and considered by all in no party spirit, but in the spirit of true and unbiased statesmanship and patriotism, and with a view to its bearing upon generations—millions of American citizens—yet unborn, and upon the future prosperity, security, and happiness of our entire common country. I have examined the plan (if plan it may be called) of reconstruction submitted by the committee, with a mind, I think, divested of prejudice and with the permanent welfare of my country only in view, and I am unable to give the plan my support, believing, for the reasons stated, that if adopted it would be productive of more evil than good. It is probably not my place to suggest or offer any plan further than has been indicated in the remarks I have made in opposition to the one proposed. I am prepared, however, to support any plan which promises a restoration of the Union upon principles which promise security to the country and do justice to the downtrodden and long overrun loyalists of the South, and which do not render treason impossible by simply legalizing it. I could even support this bill, not, however, as an ultimatum, if this monstrous doctrine was expunged from it; for though I would not make the reconstruction of the Government of the United States a condition for the restoration of the Union, I would be willing for restoration to take place either with or without the other conditions contained in this Edition: current; Page: [135] bill, the essentials of loyalty, properly organized constituency, &c., being complied with.

If the State governments, organized under the auspices of the President, are to be accepted as legitimate—and which is necessarily to be inferred from the action of the committee, because they do not, after six months’ investigation, propose any change—then let us say so, and let the country so understand it. If they are not to be accepted as legitimate, then let the committee recommend what changes shall be made and how, and I venture it will be done. A stroke of his pen and a crack of his whip by the honorable gentleman from Pennsylvania, the chairman of the committee, are all that would be needed. If political power is in the hands of those who should not be its custodians, let us wrest it from them. If disloyalty to the United States is made honorable and loyalty made odious, let us reverse the order of things, and let us meet the issue fairly, and do it without any indirection, that the country and the world may know what we intend and why we intend it. If we have to appeal to the law of necessity to accomplish our purposes, let us do it. If those purposes are legitimate, are necessary for our present peace and future security and happiness, the country and the world will approve and justify it. I need not tell you, sir, that it is time Congress had a practicable policy before the country. The eyes of the world are on us, and the historian pauses with ink-dipped pen. What shall he write—that the virtue, intelligence, and patriotism of the American people have triumphed, or that a great people, powerful in war, united by disaster, have failed in the hour of triumph, have proved themselves incapable of securing the blessings and reaping the fruits of victory? Heaven save my country!

U.S. Constitution, Fourteenth Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

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U.S. Constitution, Fifteenth Amendment

Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude—

Section 2

The Congress shall have the power to enforce this article by appropriate legislation.

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  • Enforcement Act of 1870
  • Enforcement Act of 1871
  • Enforcement Act of 1875

Attempts to enforce provisions of the Fourteenth and Fifteenth Amendments in the South were met with opposition and violence. The Enforcement Act of 1870 sought to increase protection of African Americans and Republican voters by providing penalties for interference with these rights. Intimidation, riots, and murder of African Americans and white Republicans attempting to vote continued, most prominently through actions of the Ku Klux Klan. The Enforcement Act of 1871 (also called the Ku Klux Klan Act, the Force Act, and the Civil Rights Act of 1871) granted the president increased powers to act against conspiracies against, and actual denials of, constitutional rights. This included the right to suspend the writ of habeas corpus and to use federal troops to keep order and protect targeted individuals and groups. The Enforcement Act of 1875, generally referred to as the Civil Rights Act of 1875, extended to all persons full and equal enjoyment of public accommodations such as hotels, trains, and theaters. It also granted African Americans the right to sue for personal damages and to serve as jurors. This last act was, in essence, struck down by the U.S. Supreme Court in the Slaughter-House Cases (1873).

Enforcement Act of 1870

An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.

Sec. 2. And be it further enacted, That if by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offence, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

Sec. 3. And be it further enacted, That whenever, by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him Edition: current; Page: [138] to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any judge, inspector, or other officer of election whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen upon the presentation by him of his affidavit stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

Sec. 4. And be it further enacted, That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

Sec. 5. And be it further enacted, That if any person shall prevent, hinder, control, or intimidate, or shall attempt to prevent, hinder, control, or intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States, by means of bribery, threats, or threats of depriving such person of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, such person so offending shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States.

Sec. 7. And be it further enacted, That if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender, on conviction of such violation of said sections, shall be punished for the same with such punishments as are attached to the said felonies, crimes, and misdemeanors by the laws of the State in which the offence may be committed.

Sec. 8. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, arising under this act, except as herein otherwise provided, and the jurisdiction hereby conferred shall be exercised in conformity with the laws and practice governing United States courts; and all crimes and offences committed against the provisions of this act may be prosecuted by the indictment of a grand jury, or, in cases of crimes and offences not infamous, the prosecution may be either by indictment or information filed by the district attorney in a court having jurisdiction.

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Sec. 9. And be it further enacted, That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, and every other officer who may be specially empowered by the President of the United States, shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as has cognizance of the offense. And with a view to afford reasonable protection to all persons in their constitutional right to vote without distinction of race, color, or previous condition of servitude, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States, and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of this act; and such commissioners are hereby authorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offences created by this act as they are authorized by law to exercise with regard to other offences against the laws of the United States.

Sec. 10. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person deprived of the rights conferred by this act. And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their districts respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties, and the persons so appointed to execute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the fifteenth amendment to the Constitution of the United States; and such warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued.

Sec. 11. And be it further enacted, That any person who shall knowingly and wilfully obstruct, hinder, or prevent any officer or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer or other person or persons, or those lawfully assisting as aforesaid, when so arrested pursuant to the authority herein given and declared, or shall aid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape from the custody of the officer or other person legally authorized as aforesaid, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued as aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both, at the discretion of the court, on conviction before the district or circuit court of the United States for the district or circuit in which said offence may have been committed; or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States.

Sec. 12. And be it further enacted, That the commissioners, district attorneys, the marshals, their deputies, and the clerks of the said district, circuit, and territorial courts shall be paid for their services the like fees as may be allowed to them for similar services in other cases. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of this act shall be entitled to the usual fees allowed to the marshal for an arrest for each person he or they may arrest and take before any such commissioner as aforesaid, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them, such as attending at the Edition: current; Page: [140] examination, keeping the prisoner in custody, and providing him with food and lodging during his detention and until the final determination of such commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county as near as may be practicable, and paid out of the treasury of the United States on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction.

Sec. 13. And be it further enacted, That it shall be lawful for the President of the United States to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to aid in the execution of judicial process issued under this act.

Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.

Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.

Sec. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void.

Sec. 17. And be it further enacted, 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 the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.

Sec. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act.

Sec. 19. And be it further enacted, That if at any election for representative or delegate in the Congress of the United States any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living, dead, or fictitious; or vote more than once at the same election for any candidate for the same office; or vote at a place where he may not be lawfully entitled to vote; or vote without having a lawful right to vote; or do any unlawful act to secure a right or an opportunity to vote for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or otherwise unlawfully prevent any qualified voter of any State of the United States of America, or of any Territory thereof, from freely exercising the right of suffrage, or by any such means induce any voter to refuse to exercise such right; or compel or induce by any such means, or otherwise, any officer of an election in any such State or Territory to receive a vote from a person not legally qualified or entitled to vote; or interfere in any manner with any Edition: current; Page: [141] officer of said elections in the discharge of his duties; or by any of such means, or other unlawful means, induce any officer of an election, or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and wilfully receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote; or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made a crime, or to omit to do any duty the omission of which is hereby made a crime, or attempt to do so, every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term not exceeding three years, or both, in the discretion of the court, and shall pay the costs of prosecution.

Sec. 20. And be it further enacted, That if, at any registration of voters for an election for representative or delegate in the Congress of the United States, any person shall knowingly personate and register, or attempt to register, in the name of any other person, whether living, dead, or fictitious, or fraudulently register, or fraudulently attempt to register, not having a lawful right so to do; or do any unlawful act to secure registration for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or other unlawful means, prevent or hinder any person having a lawful right to register from duly exercising such right; or compel or induce, by any of such means, or other unlawful means, any officer of registration to admit to registration any person not legally entitled thereto, or interfere in any manner with any officer of registration in the discharge of his duties, or by any such means, or other unlawful means, induce any officer of registration to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and wilfully receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote, or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made a crime, or to omit any act, the omission of which is hereby made a crime, every such person shall be deemed guilty of a crime, and shall be liable to prosecution and punishment therefor, as provided in section nineteen of this act for persons guilty of any of the crimes therein specified: Provided, That every registration made under the laws of any State or Territory, for any State or other election at which such representative or delegate in Congress shall be chosen, shall be deemed to be a registration within the meaning of this act, notwithstanding the same shall also be made for the purposes of any State, territorial, or municipal election.

Sec. 21. And be it further enacted, That whenever, by the laws of any State or Territory, the name of any candidate or person to be voted for as representative or delegate in Congress shall be required to be printed, written, or contained in any ticket or ballot with other candidates or persons to be voted for at the same election for State, territorial, municipal, or local officers, it shall be sufficient prima facie evidence, either for the purpose of indicting or convicting any person charged with voting, or attempting or offering to vote, unlawfully under the provisions of the preceding sections, or for committing either of the offenses thereby created, to prove that the person so charged or indicted, voted, or attempted or offered to vote, such ballot or ticket, or committed either of the offenses named in the preceding sections of this act with reference to such ballot. And the proof and establishment of such facts shall be taken, held, and deemed to be presumptive evidence that such person voted, or attempted or offered to vote, for such representative or delegate, as the case may be, or that such offense was committed with reference to the election of such representative or delegate, and shall be sufficient to warrant his conviction, unless it shall be shown that any such ballot, when cast, or attempted or offered to be cast, by him, did not contain the name of any candidate for the office of representative or delegate in the Congress of the United States, or that such offense was not committed with reference to the election of such representative or delegate.

Sec. 22. And be it further enacted, That any officer of any election at which any representative or delegate in the Congress of the United States shall be voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district, or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal, or destroy any certificate of record so required by law Edition: current; Page: [142] respecting, concerning, or pertaining to the election of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure, or advise any voter, person, or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefor, as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified.

Sec. 23. And be it further enacted, That whenever any person shall be defeated or deprived of his election to any office, except elector of President or Vice-President, representative or delegate in Congress, or member of a State legislature, by reason of the denial to any citizen or citizens who shall offer to vote, of the right to vote, on account of race, color, or previous condition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and such person may bring any appropriate suit or proceeding to recover possession of such office, and in cases where it shall appear that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And said circuit or district court shall have, concurrently with the State courts, jurisdiction thereof so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of the United States, and secured by this act.

Enforcement Act of 1871

An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial laws of the United States which are in their nature applicable in such cases.

Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property Edition: current; Page: [143] on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, or shall conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof in any district or circuit court of the United States or district or supreme court of any Territory of the United States having jurisdiction of similar offences, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by both such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts under the provisions of the act of April ninth, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.”

Sec. 3. That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the United States or the due execution thereof, or impede or obstruct the due course of justice under the same, it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppression of such insurrection, domestic violence, or combinations; and any person who shall be arrested under the provisions of this and the preceding section shall be delivered to the marshal of the proper district, to be dealt with according to law.

Sec. 4. That whenever in any State or part of a State the unlawful combinations named in the preceding section of this act shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State, and of the United States within such State, or when the constituted authorities are in complicity with, or shall connive at the unlawful purposes of, such powerful and armed combinations; and whenever, by reason of either or all of the causes aforesaid, the conviction of such offenders and the preservation of the public safety shall become in such district impracticable, in every such case such combinations shall be deemed a rebellion against the government of the United States, and during the continuance of such rebellion, and within the limits of the district which shall be so under the sway thereof, such limits to be prescribed by proclamation, it shall be lawful for the President of the United States, when in his judgment the public safety shall require it, to suspend the privileges of the Edition: current; Page: [144] writ of habeas corpus, to the end that such rebellion may be overthrown: Provided, That all the provisions of the second section of an act entitled “An act relating to habeas corpus, and regulating judicial proceedings in certain cases,” approved March third, eighteen hundred and sixty-three, which relate to the discharge of prisoners other than prisoners of war, and to the penalty for refusing to obey the order of the court, shall be in full force so far as the same are applicable to the provisions of this section: Provided further, That the President shall first have made proclamation, as now provided by law, commanding such insurgents to disperse: And provided also, That the provisions of this section shall not be in force after the end of the next regular session of Congress.

Sec. 5. That no person shall be a grand or petit juror in any court of the United States upon any inquiry, hearing, or trial of any suit, proceeding, or prosecution based upon or arising under the provisions of this act who shall, in the judgment of the court, be in complicity with any such combination or conspiracy; and every such juror shall, before entering upon any such inquiry, hearing, or trial, take and subscribe an oath in open court that he has never, directly or indirectly, counselled, advised, or voluntarily aided any such combination or conspiracy; and each and every person who shall take this oath, and shall therein swear falsely, shall be guilty of perjury, and shall be subject to the pains and penalties declared against that crime, and the first section of the act entitled “An act defining additional causes of challenge and prescribing an additional oath for grand and petit jurors in the United States courts,” approved June seventeenth, eighteen hundred and sixty-two, be, and the same is hereby, repealed.

Sec. 6. That any person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse so to do, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, for all damages caused by any such wrongful act which such first-named person or persons by reasonable diligence could have prevented; and such damages may be recovered in an action on the case in the proper circuit court of the United States, and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in such action: Provided, That such action shall be commenced within one year after such cause of action shall have accrued; and if the death of any person shall be caused by any such wrongful act and neglect, the legal representatives of such deceased person shall have such action therefor, and may recover not exceeding five thousand dollars damages therein, for the benefit of the widow of such deceased person, if any there be, or if there be no widow, for the benefit of the next of kin of such deceased person.

Sec. 7. That nothing herein contained shall be construed to supersede or repeal any former act or law except so far as the same may be repugnant thereto; and any offences heretofore committed against the tenor of any former act shall be prosecuted, and any proceeding already commenced for the prosecution thereof shall be continued and completed, the same as if this act had not been passed, except so far as the provisions of this act may go to sustain and validate such proceedings.

Enforcement Act of 1875

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty Edition: current; Page: [145] aforesaid or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.

Sec. 3. That the district and circuit courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses against, and violations of, the provisions of this act; and actions for the penalty given by the preceding section may be prosecuted in the territorial, district, or circuit courts of the United State[s] wherever the defendant may be found, without regard to the other party; and the district attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting and imprisoning or bailing offenders against the laws of the United States, are hereby specially authorized and required to institute proceedings against every person who shall violate the provisions of this act, and cause him to be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States, or territorial court, as by law has cognizance of the offense, except in respect of the right of action accruing to the person aggrieved; and such district attorneys shall cause such proceedings to be prosecuted to their termination as in other cases: Provided, That nothing contained in this section shall be construed to deny or defeat any right of civil action accruing to any person, whether by reason of this act or otherwise; and any district attorney who shall willfully fail to institute and prosecute the proceedings herein required, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action of debt, with full costs, and shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than one thousand nor more than five thousand dollars: And provided further, That a judgment for the penalty in favor of the party aggrieved against any such district attorney, or a judgment upon an indictment against any such district attorney, shall be a bar to either prosecution respectively.

Sec. 4. That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.

Sec. 5. That all cases arising under the provisions of this act in the courts of the United States shall be reviewable by the Supreme Court of the United States, without regard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court.

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  • Constitution of the State of Mississippi, 1868

One result of congressional acts requiring that African American males be allowed to vote in the former Confederate states was election of a constitutional convention in Mississippi, among other states, that included African Americans (sixteen of ninety-four delegates). The resulting constitution not only extended the voting franchise to African Americans, but also established state-supported schools and disenfranchised the vast majority of white Mississippians who had supported the Confederacy. Amid fraud and violence, that constitution failed to be ratified by the people. However, once the section disenfranchising ex-Confederates was jettisoned, the constitution achieved ratification.

The Constitution of the State of Mississippi, as Adopted in Convention

Preamble

To the end that justice be established, public order maintained, and liberty perpetuated, we, the people of the State of Mississippi, grateful to Almighty God for the free exercise of the right to choose our own form of Government, do ordain this Constitution.

Article I: Bill of Rights

Section 1. All persons resident in this State, citizens of the United States, are hereby declared citizens of the State of Mississippi.

Sec. 2. No person shall be deprived of life, liberty, or property, except by due process of law.

Sec. 3. The privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion, the public safety may require it.

Sec. 4. The freedom of speech and of the press shall be held sacred; and in all indictments for libel, the jury shall determine the law and the facts, under the direction of the court.

Sec. 5. No person’s life or liberty shall be twice placed in jeopardy for the same offense.

Sec. 6. The right of the people peaceably to assemble and petition the government on any subject, shall never be impaired.

Sec. 7. In all criminal prosecutions, the accused shall have a right to be heard by himself or counsel, or both; to demand the nature and cause of the accusation; to be confronted by the witnesses against him; to have a compulsory process for obtaining witnesses in his favor, and in all prosecutions, by indictment or information, a speedy and public trial, by an impartial jury of the county where the offense was committed, and he shall not be compelled to give evidence against himself.

Sec. 8. Cruel or unusual punishment shall not be inflicted, nor shall excessive fines be imposed; excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses, when the proof is evident, or presumption great.

Sec. 9. No ex post facto law or laws impairing the obligation of contracts, shall ever be passed.

Sec. 10. Private property shall not be taken for public use, except upon due compensation first being made to the owner or owners thereof, in a manner to be provided for by law.

Sec. 11. There shall be no imprisonment for debt.

Sec. 12. The right of trial by jury shall remain inviolate.

Sec. 13. No property qualification shall ever be required of any person to become a juror.

Sec. 14. The people shall be secure in their persons, houses, and possessions, from unreasonable seizure, or search, and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched, and the person or thing to be seized.

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Sec. 15. All persons shall have a right to keep and bear arms for their defense.

Sec. 16. The rights of married women shall be protected by law, in property owned previous to marriage; and, also in all property acquired in good faith, by purchase, gift, devise, or bequest, after marriage; Provided, That nothing herein contained shall be so construed as to protect said property from being applied to the payment of their lawful debts.

Sec. 17. No property qualification for eligibility to office shall ever be required.

Sec. 18. No property or educational qualification shall ever be required for any person to become an elector.

Sec. 19. There shall be neither slavery nor involuntary servitude in this State, otherwise than in the punishment of crime, whereof the party shall have been duly convicted.

Sec. 20. The right to withdraw from the Federal Union, on account of any real or supposed grievances, shall never be assumed by this State, nor shall any law be passed in derogation of the paramount allegiance of the citizens of this State to the Government of the United States.

Sec. 21. No public money or moneys shall be appropriated for charitable or other public institution in this State, making any distinction among the citizens thereof; Provided, That nothing herein contained shall be so construed as to prevent the Legislature from appropriating the school fund in accordance with the article in this Constitution relating to public schools.

Sec. 22. No distinction shall ever be made by law between citizens and alien friends in reference to the possession, enjoyment or descent of property.

Sec. 23. No religious test as a qualification for office shall ever be required, and no preference shall ever be given by law to any religious sect or mode of worship, but the free enjoyment of all religious sentiments and the different modes of worship shall ever be held sacred; Provided, The rights hereby secured, shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the State.

Sec. 24. The right of all citizens to travel upon public conveyances shall not be infringed upon, nor in any manner abridged in this State.

Sec. 25. The military shall be in strict subordination to the civil power.

Sec. 26. Treason against the State shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Sec. 27. No person’s life shall be periled by the practice of dueling, and any person who shall hereafter fight a duel, or assist in the same, as second, or send, accept, or knowingly carry a challenge therefor, or go out of the State to fight a duel, shall be disqualified from holding any office under this Constitution, and shall forever be disfranchised in this State.

Sec. 28. All courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Sec. 29. No person shall ever be elected or appointed to any office in this State for life or during good behavior, but the term of all offices shall be for some specified period.

Sec. 30. No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in this State, by him or herself, or counsel or both.

Sec. 31. No person shall, for any indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or the militia when in actual service, or by leave of the court, for misdemeanor in office; Provided, That the Legislature in cases of petit larceny, assaults, assault and battery, affray, riot, unlawful assembly, drunkenness, vagrancy, and other misdemeanors of like character, may dispense with an inquest of a grand jury and may authorize prosecutions before Justices of the Peace, or such other inferior court or courts as may be established by the Legislature, and the proceedings in such cases shall be regulated by law.

Sec. 32. The enumeration of rights in this Constitution shall not be construed to deny or impair others retained by and inherent in the people. . . .

Article VII: Franchise

Section 1. All elections by the people shall be by ballot.

Sec. 2. All male inhabitants of this State, except idiots and insane persons, and Indians, not taxed, citizens of the United States, or naturalized, twenty-one years old and upwards, who have resided in this State six months, and in the county one month next preceding the day of election, at which said inhabitant offers to vote, and who are duly registered according to the requirements of section 3 of this article, and who Edition: current; Page: [148] are not disqualified by reason of any crime, are declared to be qualified electors.

Sec. 3. The Legislature shall provide by law for the registration of all persons entitled to vote at any election, and all persons entitled to register shall take and subscribe the following oath or affirmation: “I ——, do solemnly swear (or affirm), in the presence of Almighty God, that I am twenty-one years old; that I have resided in this State six months, and in —— county one month; that I will faithfully support and obey the Constitution and laws of the United States, and of the State of Mississippi, and will bear true faith and allegiance to the same; that I am not disfranchised in any of the provisions of the acts known as the Reconstruction Acts of the 39th and 40th Congress; and that I admit the political and civil equality of all men; so help me God”; Provided, That if Congress shall, at any time, remove the disabilities of any persons disfranchised in the said Reconstruction Acts of the said 39th and 40th Congress (and the Legislature of this State shall concur therein), then so much of this oath, and so much only, as refers to the said Reconstruction Acts, shall not be required of such person, so pardoned, to entitle him to be registered.

Sec. 4. No person shall be eligible to any office of profit or trust, or to any office in the militia of this State, who is not a qualified elector.

Sec. 5. No person shall be eligible to any office of profit or trust, civil or military, in this State, who, as a member of the Legislature, voted for the call of the Convention that passed the Ordinance of Secession, or who, as a delegate to any Convention, voted for or signed any ordinance of secession, or who gave voluntary aid, countenance, counsel or encouragement to persons engaged in armed hostility to the United States, or who accepted or attempted to exercise the functions of any office, civil or military, under any authority or pretended government authority, power, or Constitution, within the United States, hostile or inimical thereto, except all persons who aided reconstruction by voting for this Convention, or who have continuously advocated the assembling of this Convention, and shall continuously and in good faith advocate the acts of the same; but the Legislature may remove such disability; Provided, That nothing in this section, except voting for or signing the Ordinance of Secession shall be so construed as to exclude from office the private soldier of the late so-called Confederate States army.

Sec. 6. In time of war, insurrection or rebellion, the right to vote at such place, and in such manner as shall be prescribed by law, shall be enjoyed by all persons otherwise entitled thereto, who may be in the actual military or naval service of the United States or this State; Provided, Said votes be made to apply in the county or precinct wherein they reside.

Article VIII: School Fund, Education and Science

Section 1. As the stability of a Republican form of government depends mainly upon the intelligence and virtue of the people, it shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and shall, as soon as practicable, establish schools of higher grade.

Sec. 2. There shall be a Superintendent of Public Education elected at the same time and in the same manner as the Governor, who shall have the qualification of the Secretary of State, and hold his office for four years, and until his successor shall be elected and qualified, whose duties shall be the general supervision of the common schools and the educational interests of the State, and who shall perform such other duties pertaining to his office, and receive such compensation as shall be prescribed by law; he shall report to the Legislature, for its adoption, within twenty days after the opening of its first session under this Constitution, a uniform system of free public schools.

Sec. 3. There shall be a Board of Education, consisting of the Secretary of State, the Attorney General, and the Superintendent of Public Education, for the management and investment of the school funds, under the general direction of the Legislature, and to perform such other duties as may be prescribed by law. The Superintendent and one other of said board shall constitute a quorum.

Sec. 4. There shall be a Superintendent of Public Education in each county, who shall be appointed by the Board of Education, by and with the advice and consent of the Senate, whose term of office shall be two years, and whose compensation and duties shall be prescribed by law; Provided, That the Legislature shall have power to make said office of County School Superintendent of the several counties elective, as other county officers are.

Sec. 5. A public school or schools shall be maintained in each school district at least four months in each year. Any Edition: current; Page: [149] school district neglecting to maintain such school or schools shall be deprived for that year of its proportion of the income of the free school fund and of all funds arising from taxes for the support of schools.

Sec. 6. There shall be established a common school fund, which shall consist of the proceeds of the lands now belonging to the State, heretofore granted by the United States, and of the lands known as “swamp lands,” except the swamp lands lying and situated on Pearl river, in the counties of Hancock, Marion, Lawrence, Simpson, and Copiah, and of all lands now or hereafter vested in the State by escheat, or purchase, or forfeiture for taxes, and the clear proceeds of all fines collected in the several counties for any breach of the penal laws, and all moneys received for licenses granted under the general laws of the State, for the sale of intoxicating liquor, or keeping of dram shops; all moneys paid as an equivalent for persons exempt from military duty, and the funds arising from the consolidation of the Congressional township funds, and the lands belonging thereto, together with all moneys donated to the State for school purposes, which funds shall be securely invested in United States bonds, and remain a perpetual fund, which may be increased, but not diminished, the interest of which shall be inviolably appropriated for the support of free schools.

Sec. 7. The Legislature may levy a poll tax not to exceed two dollars a head, in aid of the school fund, and for no other purpose.

Sec. 8. The Legislature shall, as soon as practicable, provide for the establishment of an Agricultural College or Colleges, and shall appropriate the two hundred and ten thousand acres of land donated to the State for the support of such a college by the act of Congress passed July 2, ad 1865, or the money or scrip, as the case may be, arising from the sale of said lands or any lands which may hereafter be granted, or appropriated for such purpose.

Sec. 9. No religious sect or sects shall ever control any part of the school or university funds of this State.

Sec. 10. The Legislature shall, from time to time, as may be necessary, provide for the levy and collection of such other taxes as may be required to properly support the system of free schools herein adopted. And all school funds shall be divided pro rata among the children of school age.

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  • Slaughter-House Cases, 1873

Only a few years after the Fourteenth Amendment was ratified, the nature of the protections it afforded and how they might restrict states’ rights became the subject of intense debate. Critical to this debate was the decision in the Slaughter-House Cases, actually a consolidation of several cases. These cases concerned a Louisiana law that enabled New Orleans to set up a monopoly centralizing and controlling the local slaughterhouse business. Butchers and others involved in the production of meat sued to overturn the law on the grounds that it infringed their Fourteenth Amendment right to pursue their legitimate occupations. In a 5-4 decision, the U.S. Supreme Court held that the Fourteenth Amendment extended no such general right. Instead, according to the Court, the Fourteenth Amendment merely protected the specific privileges and immunities of federal citizenship and would not interfere with legitimate exercise of each state’s police powers. Because Louisiana passed the law with the stated aim of protecting the public health, it was seen to pass constitutional muster. This was only the beginning of a still-ongoing debate over the intent and effect of the Fourteenth Amendment.

Slaughter-House Cases

The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company.

Paul Esteben, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B. Beaubay, William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J. Gitzinger, J. P. Aycock, D. Verges, The Live-Stock Dealers’ and Butchers’ Association of New Orleans, and Charles Cavaroc v. The State of Louisiana, ex rel. S. Belden, Attorney-General.

The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company.

Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court.

These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State.

The cases named on a preceding page, with others which have been brought here and dismissed by agreement, were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions. . . .

The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court to review the judgment of the State court on those questions is clear and is imperative.

The statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled “An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.”

The first section forbids the landing or slaughtering of Edition: current; Page: [151] animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-houses or abattoirs within those limits except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition.

The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers.

The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and imposes upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-house of sufficient capacity for slaughtering five hundred animals per day.

It declares that the company, after it shall have prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughter-houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed.

Section five orders the closing up of all other stock-landings and slaughter-houses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the governor of the State for that purpose.

These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us.

This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens—the whole of the butchers of the city—of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families; and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city.

But a critical examination of the act hardly justifies these assertions.

It is true that it grants, for a period of twenty-five years, exclusive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations to be hereafter stated. But it is not true that it deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food.

The act divides itself into two main grants of privilege,—the one in reference to stock-landings and stock-yards, and the other to slaughter-houses. That the landing of live-stock in large droves, from steamboats on the bank of the river, and from railroad trains, should, for the safety and comfort of the people and the care of the animals, be limited to proper places, and those not numerous, it needs no argument to prove. Nor can it be injurious to the general community that while the duty of making ample preparation for this is imposed upon a few men, or a corporation, they should, to enable them to do it successfully, have the exclusive right of providing such landing-places, and receiving a fair compensation for the service.

It is, however, the slaughter-house privilege, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right.

It is not, and cannot be successfully controverted, that it is both the right and the duty of the legislative body—the supreme power of the State or municipality—to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to Edition: current; Page: [152] do so, to slaughter in their houses; and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

“Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all,” says Chancellor Kent,* “be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.” This is called the police power; and it is declared by Chief Justice Shaw that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise.

This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. “It extends,” says another eminent judge, “to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.”

The regulation of the place and manner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterwards, are among the most necessary and frequent exercises of this power. It is not, therefore, needed that we should seek for a comprehensive definition, but rather look for the proper source of its exercise.

In Gibbons v. Ogden,* Chief Justice Marshall, speaking of inspection laws passed by the States, says: “They form a portion of that immense mass of legislation which controls everything within the territory of a State not surrendered to the General Government—all which can be most advantageously administered by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts. No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation.”

The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln. In that case the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port, in that of New York City, to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive right of Congress to regulate commerce. And it cannot be denied that such a statute operated at least indirectly upon the commercial intercourse between the citizens of the United States and of foreign countries. But notwithstanding this it was held to be an exercise of the police power properly within the control of the State, and unaffected by the clause of the Constitution which conferred on Congress the right to regulate commerce.

To the same purpose are the recent cases of The License Tax, and United States v. De Witt.§ In the latter case an act Edition: current; Page: [153] of Congress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at less than a prescribed temperature, was held to be void, because as a police regulation the power to make such a law belonged to the States, and did not belong to Congress.

It cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city, the noxious slaughter-houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, and to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges—privileges which it is said constitute a monopoly—the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate. The proposition is ably discussed and affirmed in the case of McCulloch v. The State of Maryland,* in relation to the power of Congress to organize the Bank of the United States to aid in the fiscal operations of the government.

It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law.

Unless, therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation, is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the statute, and we are not advised that they are on the whole exorbitant or unjust.

The proposition is, therefore, reduced to these terms: Can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?

The eminent and learned counsel who has twice argued the negative of this question, has displayed a research into the history of monopolies in England, and the European continent, only equalled by the eloquence with which they are denounced.

But it is to be observed, that all such references are to monopolies established by the monarch in derogation of the rights of his subjects, or arise out of transactions in which the people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so fully stated in the brief, was undoubtedly a contest of the commons against the monarch. The decision is based upon the ground that it was against common law, and the argument was aimed at the unlawful assumption of power by the crown; for whoever doubted the authority of Parliament to change or modify the common law? The discussion in the House of Commons cited from Macaulay clearly establishes that the contest was between the crown, and the people represented in Parliament.

But we think it may be safely affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges—privileges denied to other citizens—privileges which come within any just definition of the word monopoly, as much as those now under consideration; and that the power to do this has never been questioned or denied. Nor can it be truthfully denied, that some of the most useful and beneficial enterprises set on foot for the general good, have been made successful by means of these exclusive rights, and could only have been conducted to success in that way.

It may, therefore, be considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in Edition: current; Page: [154] the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited.

If any such restraint is supposed to exist in the constitution of the State, the Supreme Court of Louisiana having necessarily passed on that question, it would not be open to review in this court.

The plaintiffs in error accepting this issue, allege that the statute is a violation of the Constitution of the United States in these several particulars:

That it creates an involuntary servitude forbidden by the thirteenth article of amendment;

That it abridges the privileges and immunities of citizens of the United States;

That it denies to the plaintiffs the equal protection of the laws; and,

That it deprives them of their property without due process of law; contrary to the provisions of the first section of the fourteenth article of amendment.

This court is thus called upon for the first time to give construction to these articles.

We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to go.

Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the last eight years three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument.

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history; for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights; additional powers to the Federal government; additional restraints upon those of the States. Fortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.

The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.

In that struggle slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that instrument. Its two short sections seem hardly to admit of Edition: current; Page: [155] construction, so vigorous is their expression and so appropriate to the purpose we have indicated.

“1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

“2. Congress shall have power to enforce this article by appropriate legislation.”

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government—a declaration designed to establish the freedom of four millions of slaves—and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.

That a personal servitude was meant is proved by the use of the word “involuntary,” which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase, on a writ of habeas corpus under this article, illustrates this course of observation.* And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration.

The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies.

Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.

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Hence the fifteenth amendment, which declares that “the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.

We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply; though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen Edition: current; Page: [157] of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.

The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment.

The first occurrence of the words “privileges and immunities” in our constitutional history, is to be found in the fourth of the articles of the old Confederation.

It declares “that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively.”

In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: “The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”

There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.

Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823.*

“The inquiry,” he says, “is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.”

This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, while it declines to Edition: current; Page: [158] undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.

In the case of Paul v. Virginia,* the court, in expounding this clause of the Constitution, says that “the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens.”

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States—such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities Edition: current; Page: [159] of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its National character, its Constitution, or its laws.

One of these is well described in the case of Crandall v. Nevada.* It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.” And quoting from the language of Chief Justice Taney in another case, it is said “that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States”; and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.

But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.”

The argument has not been much pressed in these cases that the defendant’s charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.

We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.

“Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.”

In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.

If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State Edition: current; Page: [160] not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment.

In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has never been very well defined in public opinion, such a division has continued from that day to this.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property—was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.

The judgments of the Supreme Court of Louisiana in these cases are

Affirmed.

Mr. Justice FIELD, dissenting:

I am unable to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from their judgment. . . .

The substance of the averments of the plaintiffs in error is this: That prior to the passage of the act in question they were engaged in the lawful and necessary business of procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard, animals suitable for human food, and in preparing such food for market; that in the prosecution of this business they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle and the sale of meat; that with their association about four hundred persons were connected, and that in the parishes named about a thousand persons were thus engaged in procuring, preparing, and selling animal food. And they complain that the business of landing, yarding, and keeping, within the parishes named, cattle intended for sale or slaughter, which was lawful for them to pursue before the first day of June, 1869, is made by that act unlawful for any one except the corporation named; and that the business of slaughtering cattle and preparing animal food for market, which it was lawful for them to pursue in these parishes before that day, is made by that act unlawful for them to pursue afterwards, except in the buildings of the company, and upon payment of certain prescribed fees, and a surrender of a valuable portion of each animal slaughtered. And they contend that the lawful business of landing, yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in common with every individual in the community of the three parishes had a right to follow, cannot be thus taken from them and given over for a period of twenty-five years to the sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And they also contend that the lawful and necessary business of slaughtering cattle and preparing animal food for market, Edition: current; Page: [161] which they and all other individuals had a right to follow, cannot be thus restricted within this territory of 1154 square miles to the buildings of this corporation, or be subjected to tribute for the emolument of that body.

No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to show that the position has some support in the fundamental law of the country.

It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.

In the law in question there are only two provisions which can properly be called police regulations—the one which requres the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with, the sanitary purposes of the act are accomplished. In all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of landing, keeping, and slaughtering cattle within a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal from its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such object could possibly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one, which merits only this passing notice.

It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.

Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without him, would not have existed. It thus only recognizes in the inventor a temporary property in the product of his own brain.

The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishements of the corporation, and there allowed only upon onerous conditions.

If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to a single individual. If they may be granted for twenty-five years they may be equally granted for a century, and in perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally granted for the landing Edition: current; Page: [162] and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which animal food is prepared for market they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld.

The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it.

The counsel for the plaintiffs in error have contended, with great force, that the act in question is also inhibited by the thirteenth amendment.

That amendment prohibits slavery and involuntary servitude, except as a punishment for crime, but I have not supposed it was susceptible of a construction which would cover the enactment in question. I have been so accustomed to regard it as intended to meet that form of slavery which had previously prevailed in this country, and to which the recent civil war owed its existence, that I was not prepared, nor am I yet, to give to it the extent and force ascribed by counsel. Still it is evident that the language of the amendment is not used in a restrictive sense. It is not confined to African slavery alone. It is general and universal in its application. Slavery of white men as well as of black men is prohibited, and not merely slavery in the strict sense of the term, but involuntary servitude in every form.

The words “involuntary servitude” have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Rights Act, which will be hereafter noticed. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude. The counsel of the plaintiffs in error therefore contend that “wherever a law of a State, or a law of the United States, makes a discrimination between classes of persons, which deprives the one class of their freedom or their property, or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others,” there involuntary servitude exists within the meaning of the thirteenth amendment.

It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed and adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on the eighteenth of December, 1865,* and in April of the following year the Civil Rights Act was passed. Its first section declares that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are “citizens of the United States,” and that “such citizens, 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 in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey Edition: current; Page: [163] real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens.”

This legislation was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom. After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.”*

By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food for market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion of each animal slaughtered. Every man in these parishes who has a horse or other animal for sale, must carry him to the yards and stables of this company, and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company, and that district embraces over eleven hundred square miles. The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France, where, as says a French writer, the peasant was prohibited “to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press, . . . or to sell his commodities at the public market.” The exclusive right to all these privileges was vested in the lords of the vicinage. “The history of the most execrable tyranny of ancient times,” says the same writer, “offers nothing like this. This category of oppressions cannot be applied to a free man, or to the peasant, except in violation of his rights.”

But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keeping of ovens, machines, grindstones, wine-presses, and for all the numerous trades and pursuits for the prosecution of which buildings are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration.

It is not necessary, however, as I have said, to rest my objections to the act in question upon the terms and meaning of the thirteenth amendment. The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government. It first declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It then declares that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The first clause of this amendment determines who are citizens of the United States, and how their citizenship is created. Before its enactment there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number the opinion prevailed that there was no such citizenship independent of the citizenship of the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his celebrated speech in the Senate upon the Force Bill, Edition: current; Page: [164] in 1833, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States, he said: “If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.”*

In the Dred Scott case this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizenship in the several States, under their constitutions and laws.

The Chief Justice, in that case, and a majority of the court with him, held that the words “people of the United States” and “citizens” were synonymous terms; that the people of the respective States were the parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution.

The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive their existence from its legislation, and cannot be destroyed by its power.

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the 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 Edition: current; Page: [165] for the security of person and property.” That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.*

The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, Mr. Justice Washington said he had “no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign”; and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be “all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.” This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. In the discussions in Congress upon the passage of the Civil Rights Act repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth “as appertaining to every freeman.”

The privileges and immunities designated in the second section of the fourth article of the Constitution are, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several States whilst in the same State.

Nor is there anything in the opinion in the case of Paul v. Virginia,* which at all militates against these views, as is supposed by the majority of the court. The act of Virginia, of 1866, which was under consideration in that case, provided that no insurance company, not incorporated under the laws of the State, should carry on its business within the State without previously obtaining a license for that purpose; and that it should not receive such license until it had deposited with the treasurer of the State bonds of a specified character, to an amount varying from thirty to fifty thousand dollars. No such deposit was required of insurance companies incorporated by the State, for carrying on their business within the State; and in the case cited the validity of the discriminating provisions of the statute of Virginia between her own corporations and the corporations of other States, was assailed. It was contended that the statute in this particular was in conflict with that clause of the Constitution which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature and possessing only the attributes which the legislature had prescribed; that though it had been held that where contracts or rights of property were Edition: current; Page: [166] to be enforced by or against a corporation, the courts of the United States would, for the purpose of maintaining jurisdiction, consider the corporation as representing citizens of the State, under the laws of which it was created, and to this extent would treat a corporation as a citizen within the provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States, it had never been held in any case which had come under its observation, either in the State or Federal courts, that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each State to the privileges and immunities of citizens in the several States. And the court observed, that the privileges and immunities secured by that provision were those privileges and immunities which were common to the citizens in the latter States, under their constitution and laws, by virtue of their being citizens; that special privileges enjoyed by citizens in their own States were not secured in other States by the provision; that it was not intended by it to give to the laws of one State any operation in other States; that they could have no such operation except by the permission, expressed or implied, of those States; and that the special privileges which they conferred must, therefore, be enjoyed at home unless the assent of other States to their enjoyment therein were given. And so the court held, that a corporation, being a grant of special privileges to the corporators, had no legal existence beyond the limits of the sovereignty where created, and that the recognition of its existence by other States, and the enforcement of its contracts made therein, depended purely upon the assent of those States, which could be granted upon such terms and conditions as those States might think proper to impose.

The whole purport of the decision was, that citizens of one State do not carry with them into other States any special privileges or immunities, conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States and are secured by the clause in question, in their enjoyment upon terms of equality with citizens of the latter States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the payment of a larger sum from a non-resident trader for a license to enable him to sell his merchandise in the State, than it did of a resident trader, and the court held, that the statute in thus discriminating against the non-resident trader contravened the clause securing to the citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership, possessed by the non-resident, was subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of her own citizens. The privileges of the non-resident were in this particular abridged by that legislation.

What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If under the fourth article of the Constitution equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment the same equality is secured between citizens of the United States.

It will not be pretended that under the fourth article of the Constitution any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude non-resident citizens from engaging in a similar manufacture or sale. The non-resident citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with others, and thus, as respects them, the monopoly would cease. If this were not so it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them.

Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the pretection of every citizen of the United States against the creation of any monopoly whatever. The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under Edition: current; Page: [167] the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were held void at common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth.

A monopoly is defined “to be an institution or allowance from the sovereign power of the State by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.” All such grants relating to any known trade or manufacture have been held by all the judges of England, whenever they have come up for consideration, to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade. It thus covers in every particular the possession and use of suitable yards, stables, and buildings for keeping and protecting cattle and other animals, and for their slaughter. Such establishments are essential to the free and successful prosecution by any butcher of the lawful trade of preparing animal food for market. The exclusive privilege of supplying such yards, buildings, and other conveniences for the prosecution of this business in a large district of country, granted by the act of Louisiana to seventeen persons, is as much a monopoly as though the act had granted to the company the exclusive privilege of buying and selling the animals themselves. It equally restrains the butchers in the freedom and liberty they previously had, and hinders them in their lawful trade.

The reasons given for the judgment in the Case of Monopolies apply with equal force to the case at bar. In that case a patent had been granted to the plaintiff giving him the sole right to import playing-cards, and the entire traffic in them, and the sole right to make such cards within the realm. The defendant, in disregard of this patent, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm, he pleaded that he was a haberdasher in London and a free citizen of that city, and as such had a right to make and sell them. The court held the plea good and the grant void, as against the common law and divers acts of Parliament. “All trades,” said the court, “as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law and the benefit and liberty of the subject.* The case of Davenant and Hurdis was cited in support of this position. In that case a company of merchant tailors in London, having power by charter to make ordinances for the better rule and government of the company, so that they were consonant to law and reason, made an ordinance that any brother of the society who should have any cloth dressed by a cloth-worker, not being a brother of the society, should put one-half of his cloth to some brother of the same society who exercised the art of a cloth-worker, upon pain of forfeiting ten shillings, “and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because it was against the liberty of the subject; for every subject, by the law, has freedom and liberty to put his cloth to be dressed by what cloth-worker he pleases, and cannot be restrained to certain persons, for that in effect would be a monopoly, and, therefore, such ordinance, by color of a charter or any grant by charter or such effect, would be void.”

Although the court, in its opinion, refers to the increase in prices and deterioration in quality of commodities which necessarily result from the grant of monopolies, the main ground of the decision was their interference with the liberty of the subject to pursue for his maintenance and that of his family any lawful trade or employment. This liberty is assumed to be the natural right of every Englishman.

The struggle of the English people against monopolies forms one of the most interesting and instructive chapters in their history. It finally ended in the passage of the statute of 21st James I, by which it was declared “that all monopolies and all commissions, grants, licenses, charters, and letters-patent, to any person or persons, bodies politic or corporate, whatsoever, of or for the sole buying, selling, making, working, Edition: current; Page: [168] or using of anything” within the realm or the dominion of Wales were altogether contrary to the laws of the realm and utterly void, with the exception of patents for new inventions for a limited period, and for printing, then supposed to belong to the prerogative of the king, and for the preparation and manufacture of certain articles and ordnance intended for the prosecution of war.

The common law of England, as is thus seen, condemned all monopolies in any known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their lawful trade. The statute of James I, to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequently disregarded by the sovereigns of that country.

The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the colonists, together with the English statutes, and was established here so far as it was applicable to their condition. That law and the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their circumstances, were claimed by the Congress of the United Colonies in 1774 as a part of their “indubitable rights and liberties.”* Of the statutes, the benefits of which was thus claimed, the statute of James I against monopolies was one of the most important. And when the Colonies separated from the mother country no privilege was more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all men “with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.”

If it be said that the civil law and not the common law is the basis of the jurisprudence of Louisiana, I answer that the decree of Louis XVI, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to exercise, without restraint, his art, trade, or profession, and such has been the law of France and of her colonies ever since, and that law prevailed in Louisiana at the time of her cession to the United States. Since then, notwithstanding the existence in that State of the civil law as the basis of her jurisprudence, freedom of pursuit has been always recognized as the common right of her citizens. But were this otherwise, the fourteenth amendment secures the like protection to all citizens in that State against any abridgment of their common rights, as in other States. That amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. If the trader in London could plead that he was a free citizen of that city against the enforcement to his injury of monopolies, surely under the fourteenth amendment every citizen of the United States should be able to plead his citizenship of the republic as a protection against any similar invasion of his privileges and immunities.

So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that few instances have arisen where the principle has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pronounced illegal and void. When a case under the same law, under which the present cases have arisen, came before the Circuit Court of the United States in the District of Louisiana, there was no hesitation on the part of the court in declaring the law, in its exclusive features, to be an invasion of one of the fundamental privileges of the citizen.* The presiding justice, in delivering the opinion of the court, observed that it might be difficult to enumerate or define what were the essential privileges of a citizen of the United States, which a State could not by its laws invade, but that so far as the question under consideration was concerned, it might be safely said that “it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free Edition: current; Page: [169] governments.” And again: “There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.”

In the City of Chicago v. Rumpff,* which was before the Supreme Court of Illinois, we have a case similar in all its features to the one at bar. That city being authorized by its charter to regulate and license the slaughtering of animals within its corporate limits, the common council passed what was termed an ordinance in reference thereto, whereby a particular building was designated for the slaughtering of all animals intended for sale or consumption in the city, the owners of which were granted the exclusive right for a specified period to have all such animals slaughtered at their establishment, they to be paid a specific sum for the privilege of slaughtering there by all persons exercising it. The validity of this action of the corporate authorities was assailed on the ground of the grant of exclusive privileges, and the court said: “The charter authorizes the city authorities to license or regulate such establishments. Where that body has made the necessary regulations, required for the health or comfort of the inhabitants, all persons inclined to pursue such an occupation should have an opportunity of conforming to such regulations, otherwise the ordinance would be unreasonable and tend to oppression. Or, if they should regard it for the interest of the city that such establishments should be licensed, the ordinance should be so framed that all persons desiring it might obtain licenses by conforming to the prescribed terms and regulations for the government of such business. We regard it neither as a regulation nor a license of the business to confine it to one building or to give it to one individual. Such an action is oppressive, and creates a monopoly that never could have been contemplated by the General Assembly. It impairs the rights of all other persons, and cuts them off from a share in not only a legal, but a necessary business. Whether we consider this as an ordinance or a contract, it is equally unauthorized, as being opposed to the rules governing the adoption of municipal by-laws. The principle of equality of rights to the corporators is violated by this contract. If the common council may require all of the animals for the consumption of the city to be slaughtered in a single building, or on a particular lot, and the owner be paid a specific sum for the privilege, what would prevent the making a similar contract with some other person that all of the vegetables, or fruits, the flour, the groceries, the dry goods, or other commodities should be sold on his lot and he receive a compensation for the privilege? We can see no difference in principle.”

It is true that the court in this opinion was speaking of a municipal ordinance and not of an act of the legislature of a State. But, as it is justly observed by counsel, a legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than a municipal government. These rights are protected from invasion by the fundamental law.

In the case of the Norwich Gaslight Company v. The Norwich City Gas Company,* which was before the Supreme Court of Connecticut, it appeared that the common council of the city of Norwich had passed a resolution purporting to grant to one Treadway, his heirs and assigns, for the period of fifteen years, the right to lay gas-pipes in the streets of that city, declaring that no other person or corporation should, by the consent of the common council, lay gas-pipes in the streets during that time. The plaintiffs having purchased of Treadway, undertook to assert an exclusive right to use the streets for their purposes, as against another company which was using the streets for the same purposes. And the court said: “As, then, no consideration whatever, either of a public or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather, or any other article of trade in respect to which the government has no exclusive prerogative, we think that so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly, yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Rights, the first section of which declares ‘that no man or set of men are entitled to exclusive public emoluments or privileges from the community,’ to render them void.”

In the Mayor of the City of Hudson v. Thorne, an application was made to the chancellor of New York to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson upon a vacant lot owned by them, Edition: current; Page: [170] intended to be used as a hay-press. The common council of the city had passed an ordinance directing that no person should erect, or construct, or cause to be erected or constructed, any wooden or frame barn, stable, or hay-press of certain dimensions, within certain specified limits in the city, without its permission. It appeared, however, that there were such buildings already in existence, not only in compact parts of the city, but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. And the chancellor said: “If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture; but as all by-laws must be reasonable, the common council cannot make a bylaw which shall permit one person to carry on the dangerous business and prohibit another who has an equal right from pursuing the same business.”

In all these cases there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void.

This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest; and unless adhered to in the legislation of the country our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me a matter of profound regret that its validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.* As stated by the Supreme Court of Connecticut, in the case cited, grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

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  • Inaugural Address, Rutherford B. Hayes, 1877

An ardent abolitionist from Ohio, Rutherford B. Hayes (1822-93) served in the Union Army during the Civil War, seeing extensive combat and reaching the rank of major general. Elected to Congress before the war’s end, he later served as Ohio’s governor. His election to the presidency in 1876 was marked by scandal and charges of corruption. His opponent, Samuel Tilden, a Democrat, won the popular vote and held more electoral votes than Hayes, one shy of a majority. Congress appointed an electoral commission to decide which candidate should receive the electoral votes from three Southern states whose electoral votes were in dispute. On a party-line vote, the commission awarded all the electoral votes to Hayes, giving him the presidency. Charges were made of a stolen election and also of a deal according to which Hayes would be given the presidency in exchange for an end to Reconstruction and provision of government aid to the South. No federal aid was forthcoming. But soon after his election, Hayes removed the final federal troops from former Confederate states, ending attempts at Reconstruction.

Inaugural Address

Rutherford B. Hayes
Fellow-Citizens:

We have assembled to repeat the public ceremonial, begun by Washington, observed by all my predecessors, and now a time-honored custom, which marks the commencement of a new term of the Presidential office. Called to the duties of this great trust, I proceed, in compliance with usage, to announce some of the leading principles, on the subjects that now chiefly engage the public attention, by which it is my desire to be guided in the discharge of those duties. I shall not undertake to lay down irrevocably principles or measures of administration, but rather to speak of the motives which should animate us, and to suggest certain important ends to be attained in accordance with our institutions and essential to the welfare of our country.

At the outset of the discussions which preceded the recent Presidential election it seemed to me fitting that I should fully make known my sentiments in regard to several of the important questions which then appeared to demand the consideration of the country. Following the example, and in part adopting the language, of one of my predecessors, I wish now, when every motive for misrepresentation has passed away, to repeat what was said before the election, trusting that my countrymen will candidly weigh and understand it, and that they will fell assured that the sentiments declared in accepting the nomination for the Presidency will be the standard of my conduct in the path before me, charged, as I now am, with the grave and difficult task of carrying them out in the practical administration of the Government so far as depends, under the Constitution and laws on the Chief Executive of the nation.

The permanent pacification of the country upon such principles and by such measures as will secure the complete protection of all its citizens in the free enjoyment of all their constitutional rights is now the one subject in our public affairs which all thoughtful and patriotic citizens regard as of supreme importance.

Many of the calamitous efforts of the tremendous revolution which has passed over the Southern States still remain. The immeasurable benefits which will surely follow, sooner or later, the hearty and generous acceptance of the legitimate results of that revolution have not yet been realized. Difficult Edition: current; Page: [172] and embarrassing questions meet us at the threshold of this subject. The people of those States are still impoverished, and the inestimable blessing of wise, honest, and peaceful local self-government is not fully enjoyed. Whatever difference of opinion may exist as to the cause of this condition of things, the fact is clear that in the progress of events the time has come when such government is the imperative necessity required by all the varied interests, public and private, of those States. But it must not be forgotten that only a local government which recognizes and maintains inviolate the rights of all is a true self-government.

With respect to the two distinct races whose peculiar relations to each other have brought upon us the deplorable complications and perplexities which exist in those States, it must be a government which guards the interests of both races carefully and equally. It must be a government which submits loyally and heartily to the Constitution and the laws—the laws of the nation and the laws of the States themselves—accepting and obeying faithfully the whole Constitution as it is.

Resting upon this sure and substantial foundation, the superstructure of beneficent local governments can be built up, and not otherwise. In furtherance of such obedience to the letter and the spirit of the Constitution, and in behalf of all that its attainment implies, all so-called party interests lose their apparent importance, and party lines may well be permitted to fade into insignificance. The question we have to consider for the immediate welfare of those States of the Union is the question of government or no government; of social order and all the peaceful industries and the happiness that belongs to it, or a return to barbarism. It is a question in which every citizen of the nation is deeply interested, and with respect to which we ought not to be, in a partisan sense, either Republicans or Democrats, but fellow-citizens and fellow-man, to whom the interests of a common country and a common humanity are dear.

The sweeping revolution of the entire labor system of a large portion of our country and the advance of 4,000,000 people from a condition of servitude to that of citizenship, upon an equal footing with their former masters, could not occur without presenting problems of the gravest moment, to be dealt with by the emancipated race, by their former masters, and by the General Government, the author of the act of emancipation. That it was a wise, just, and providential act, fraught with good for all concerned, is now generally conceded throughout the country. That a moral obligation rests upon the National Government to employ its constitutional power and influence to establish the rights of the people it has emancipated, and to protect them in the enjoyment of those rights when they are infringed or assailed, is also generally admitted.

The evils which afflict the Southern States can only be removed or remedied by the united and harmonious efforts of both races, actuated by motives of mutual sympathy and regard; and while in duty bound and fully determined to protect the rights of all by every constitutional means at the disposal of my Administration, I am sincerely anxious to use every legitimate influence in favor of honest and efficient local self-government as the true resource of those States for the promotion of the contentment and prosperity of their citizens. In the effort I shall make to accomplish this purpose I ask the cordial cooperation of all who cherish an interest in the welfare of the country, trusting that party ties and the prejudice of race will be freely surrendered in behalf of the great purpose to be accomplished. In the important work of restoring the South it is not the political situation alone that merits attention. The material development of that section of the country has been arrested by the social and political revolution through which it has passed, and now needs and deserves the considerate care of the National Government within the just limits prescribed by the Constitution and wise public economy.

But at the basis of all prosperity, for that as well as for every other part of the country, lies the improvement of the intellectual and moral condition of the people. Universal suffrage should rest upon universal education. To this end, liberal and permanent provision should be made for the support of free schools by the State governments, and, if need be, supplemented by legitimate aid from national authority.

Let me assure my countrymen of the Southern States that it is my earnest desire to regard and promote their truest interest—the interests of the white and of the colored people both and equally—and to put forth my best efforts in behalf of a civil policy which will forever wipe out in our political affairs the color line and the distinction between North and South, to the end that we may have not merely a united North or a united South, but a united country.

I ask the attention of the public to the paramount necessity of reform in our civil service—a reform not merely as to certain abuses and practices of so-called official patronage which have come to have the sanction of usage in the several Departments of our Government, but a change in the system Edition: current; Page: [173] of appointment itself; a reform that shall be thorough, radical, and complete; a return to the principles and practices of the founders of the Government. They neither expected nor desired from public officers any partisan service. They meant that public officers should owe their whole service to the Government and to the people. They meant that the officer should be secure in his tenure as long as his personal character remained untarnished and the performance of his duties satisfactory. They held that appointments to office were not to be made nor expected merely as rewards for partisan services, nor merely on the nomination of members of Congress, as being entitled in any respect to the control of such appointments.

The fact that both the great political parties of the country, in declaring their principles prior to the election, gave a prominent place to the subject of reform of our civil service, recognizing and strongly urging its necessity, in terms almost identical in their specific import with those I have here employed, must be accepted as a conclusive argument in behalf of these measures. It must be regarded as the expression of the united voice and will of the whole country upon this subject, and both political parties are virtually pledged to give it their unreserved support.

The President of the United States of necessity owes his election to office to the suffrage and zealous labors of a political party, the members of which cherish with ardor and regard as of essential importance the principles of their party organization; but he should strive to be always mindful of the fact that he serves his party best who serves the country best.

In furtherance of the reform we seek, and in other important respects a change of great importance, I recommend an amendment to the Constitution prescribing a term of six years for the Presidential office and forbidding a reelection.

With respect to the financial condition of the country, I shall not attempt an extended history of the embarrassment and prostration which we have suffered during the past three years. The depression in all our varied commercial and manufacturing interests throughout the country, which began in September, 1873, still continues. It is very gratifying, however, to be able to say that there are indications all around us of a coming change to prosperous times.

Upon the currency question, intimately connected, as it is, with this topic, I may be permitted to repeat here the statement made in my letter of acceptance, that in my judgment the feeling of uncertainty inseparable from an irredeemable paper currency, with its fluctuation of values, is one of the greatest obstacles to a return to prosperous times. The only safe paper currency is one which rests upon a coin basis and is at all times and promptly convertible into coin.

I adhere to the views heretofore expressed by me in favor of Congressional legislation in behalf of an early resumption of specie payments, and I am satisfied not only that this is wise, but that the interests, as well as the public sentiment, of the country imperatively demand it.

Passing from these remarks upon the condition of our own country to consider our relations with other lands, we are reminded by the international complications abroad, threatening the peace of Europe, that our traditional rule of noninterference in the affairs of foreign nations has proved of great value in past times and ought to be strictly observed.

The policy inaugurated by my honored predecessor, President Grant, of submitting to arbitration grave questions in dispute between ourselves and foreign powers points to a new, and incomparably the best, instrumentality for the preservation of peace, and will, as I believe, become a beneficent example of the course to be pursued in similar emergencies by other nations.

If, unhappily, questions of difference should at any time during the period of my Administration arise between the United States and any foreign government, it will certainly be my disposition and my hope to aid in their settlement in the same peaceful and honorable way, thus securing to our country the great blessings of peace and mutual good offices with all the nations of the world.

Fellow-citizens, we have reached the close of a political contest marked by the excitement which usually attends the contests between great political parties whose members espouse and advocate with earnest faith their respective creeds. The circumstances were, perhaps, in no respect extraordinary save in the closeness and the consequent uncertainty of the result.

For the first time in the history of the country it has been deemed best, in view of the peculiar circumstances of the case, that the objections and questions in dispute with reference to the counting of the electoral votes should be referred to the decision of a tribunal appointed for this purpose.

That tribunal—established by law for this sole purpose; its members, all of them, men of long-established reputation for integrity and intelligence, and, with the exception of those who are also members of the supreme judiciary, chosen equally from both political parties; its deliberations enlightened by the research and the arguments of able counsel—was Edition: current; Page: [174] entitled to the fullest confidence of the American people. Its decisions have been patiently waited for, and accepted as legally conclusive by the general judgment of the public. For the present, opinion will widely vary as to the wisdom of the several conclusions announced by that tribunal. This is to be anticipated in every instance where matters of dispute are made the subject of arbitration under the forms of law. Human judgment is never unerring, and is rarely regarded as otherwise than wrong by the unsuccessful party in the contest.

The fact that two great political parties have in this way settled a dispute in regard to which good men differ as to the facts and the law no less than as to the proper course to be pursued in solving the question in controversy is an occasion for general rejoicing.

Upon one point there is entire unanimity in public sentiment—that conflicting claims to the Presidency must be amicably and peaceably adjusted, and that when so adjusted the general acquiescence of the nation ought surely to follow.

It has been reserved for a government of the people, where the right of suffrage is universal, to give to the world the first example in history of a great nation, in the midst of the struggle of opposing parties for power, hushing its party tumults to yield the issue of the contest to adjustment according to the forms of law.

Looking for the guidance of that Divine Hand by which the destinies of nations and individuals are shaped, I call upon you, Senators, Representatives, judges, fellow-citizens, here and everywhere, to unite with me in an earnest effort to secure to our country the blessings, not only of material prosperity, but of justice, peace, and union—a union depending not upon the constraint of force, but upon the loving devotion of a free people; “and that all things may be so ordered and settled upon the best and surest foundations that peace and happiness, truth and justice, religion and piety, may be established among us for all generations.”

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  • Civil Rights Cases, 1883

The Civil Rights Act of 1875 gave private citizens the right to sue individuals and companies who refused them accommodations or admittance on the grounds of their race. The Civil Rights Cases consolidated five separate cases in which African Americans sued theaters, hotels, and transportation companies for excluding them from their premises or services. The Supreme Court declared the act unconstitutional, declaring that the Fourteenth Amendment forbade only state conduct denying equal protection to all citizens and that the Thirteenth Amendment forbade only the actual owning of slaves, not discriminatory conduct on the part of one private person toward another.

Civil Rights Cases

UNITED STATES v. STANLEY on certificate of division from the circuit court of the united states for the district of kansas

UNITED STATES v. RYAN in error to the circuit court of the united states for the district of california

UNITED STATES v. NICHOLS on certificate of division from the circuit court of the united states for the western district of missouri

UNITED STATES v. SINGLETON on certificate of division from the circuit court of the united states for the southern district of new york

ROBINSON & Wife v. MEMPHIS AND CHARLESTON RAILROAD COMPANY in error to the circuit court of the united states for the western district of tennessee

Submitted October Term, 1882.—

Decided October 15th, 1883

These cases were all founded on the first and second sections of the Act of Congress, known as the Civil Rights Act, passed March 1st, 1875, entitled “An Act to protect all citizens in their civil and legal rights.” 18 Stat. 335. Two of the cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other an indictment, for denying to individuals the privileges and accommodations of a theatre, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire’s theatre in San Francisco; and the indictment against Singleton was for denying to another person, whose color was not stated, the full enjoyment of the accommodations of the theatre known as the Grand Opera House in New York, “said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude.” The case of Robinson and wife against the Memphis & Charleston R. R. Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee, to recover the penalty of five hundred dollars given by the second section of the act; and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies’ car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits, under a charge of the court to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of Congress; and the principal point made by the exceptions was, that the judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife, was an improper person, Edition: current; Page: [176] because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper connection between them; and the judge charged the jury, in substance, that if this was the conductor’s bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the company. The case was brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols, and Singleton, came up on certificates of division of opinion between the judges below as to the constitutionality of the first and second sections of the act referred to; and the case of Ryan, on a writ of error to the judgment of the Circuit Court for the District of California sustaining a demurrer to the information.

The Stanley, Ryan, Nichols, and Singleton cases were submitted together by the solicitor general at the last term of court, on the 7th day of November, 1882. There were no appearances and no briefs filed for the defendants.

The Robinson case was submitted on the briefs at the last term, on the 29th day of March, 1883.

Mr. Justice Bradley delivered the opinion of the court. After stating the facts in the above language he continued:

It is obvious that the primary and important question in all the cases is the constitutionality of the law: for if the law is unconstitutional none of the prosecutions can stand.

The sections of the law referred to provide as follows:

Sec. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offence, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.”

Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part.

The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.

Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under Edition: current; Page: [177] consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be found in United States v. Cruikshank, 92 U.S. 542; Virginia v. Rives, 100 U.S. 313; and Ex parte Virginia, 100 U.S. 339.

An apt illustration of this distinction may be found in some of the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the States from passing any law impairing the obligation of contracts. This did not give to Congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by State legislation might be counteracted and corrected: and this power was exercised. The remedy which Congress actually provided was that contained in the 25th section of the Judiciary Act of 1789, 1 Stat. 85, giving to the Supreme Court of the United States jurisdiction by writ of error to review the final decisions of State courts whenever they should sustain the validity of a State statute or authority alleged to be repugnant to the Constitution or laws of the United States. By this means, if a State law was passed impairing the obligation of a contract, and the State tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally; and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a State law; and under the broad provisions of the act of March 3d, 1875, ch. 137, 18 Stat. 470, giving to the circuit courts jurisdiction of all cases arising under the Constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that, or any other law, it must appear as well by allegation, as proof at the trial, that the Constitution had been violated by the action of the State legislature. Some obnoxious Edition: current; Page: [178] State law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case; and for the very sufficient reason, that the constitutional prohibition is against State laws impairing the obligation of contracts.

And so in the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.

If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares “that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on Edition: current; Page: [179] account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.” In Ex parte Virginia, 100 U.S. 339, it was held that an indictment against a State officer under this section for excluding persons of color from the jury list is sustainable. But a moment’s attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the State government, carry into effect such a rule of disqualification. In the Virginia case, the State, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute book of the State actually laid down any such rule of disqualification, or not, the State, through its officer, enforced such a rule: and it is against such State action, through its officers and agents, that the last clause of the section is directed. This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering.

These sections, in the objectionable features before referred to, are different also from the law ordinarily called the “Civil Rights Bill,” originally passed April 9th, 1866, 14 Stat. 27, ch. 31, and re-enacted with some modifications in sections 16, 17, 18, of the Enforcement Act, passed May 31st, 1870, 16 Stat. 140, ch. 114. That law, as re-enacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding, proceeds to enact, 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 rights secured or protected by the preceding section (above quoted), or to different punishment, pains, or penalties, on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to wit, the words “any law, statute, ordinance, regulation or custom to the contrary notwithstanding,” which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to State laws, by making the penalty apply only to those who should subject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any State or Territory: thus preserving the corrective character of the legislation. Rev. St. §§ 1977, 1978, 1979, 5510. The Civil Rights Bill here referred to is analogous in its character to what a law would have been under the original Constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defence.

In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or Edition: current; Page: [180] injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post roads, the declaring of war, etc. In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers.

If the principles of interpretation which we have laid down are correct, as we deem them to be (and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of United States v. Harris, 106 U.S. 629), it is clear that the law in question cannot be sustained by any grant of legislative power made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment; and, in our judgment, it has not.

We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or not, is a different question which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine.

We have also discussed the validity of the law in reference to cases arising in the States only; and not in reference to cases arising in the Territories or the District of Columbia, which are subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us: they all being cases arising within the limits of States. And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another, is also a question which is not now before us, as the sections in question are not conceived in any such view.

But the power of Congress to adopt direct and primary, as distinguished from corrective legislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares “that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”; and it gives Congress power to enforce the amendment by appropriate legislation.

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This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States: and upon this assumption it is claimed, that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement; the argument being, that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth Amendment.

In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by state laws under the Four