tender. But where can we find a federal prohi- | imprisonment for the performance of the duties bition against the power of any State to discrimi nate, as do most of them, between aliens and citizens, between artificial persons called corporations and natural persons, in the right to hold | real estate? If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal, in the same way, all State laws discriminating between the two races on the subjects of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally, to vote, "in every State and Territory of the United States." As respects the Territories, they come within the power of Congress, for as to them the law-making power is the federal power; but as to the States no similar provision exists vesting in Congress the power to make rules and regulations" for them. The object of the second section of the bill is to afford discriminating protection to colored persons in the full enjoyment of all the rights secured to them by the preceding section. It declares that any person who, under color of any law, statute, oidinance, 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 a fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court." This section seems to be designed to apply to some existing or future law of a State or Territory which may conflict with the provisions of the bill now under consideration. It provides for counteracting such forbidden legislation by imposing fine and imprisonment upon the legislators who may pass such conflicting laws, or upon the officers or agents who shall put or attempt to put them into execution. It means an official offence-not a common crime committed against law upon the persons or property of the black race. Such an act may deprive the black man of his property, but not of the right to hold property. It means a deprivation of the right itself, either by the State judiciary or the State legislature. It is therefore assumed that under this section members of State legislatures who should vote for laws conflicting with the provisions of the bill, that judges of the State courts who should render judgments in antagonism with its terms, and that marshals and sheriffs who should, as ministerial officers, execute processes sanctioned by State laws and issued by State judges in execution of their judgments, could be brought before other tribunals, and there subjet ted to fine and which such State laws might impose. The legislation thus proposed invades the judicial power of the State. It says to every State court or judge, if you decide that this act is unconstitutional; if you refuse, under the prohibition of a State law, to allow a negro to testify; if you hold that over such a subject-matter the State law is paramount, and "under color" of a State law refuse the exercise of the right to the negro, your error of judgment, however conscientious, shall subject you to fine and imprisonment! I do not apprehend that the conflicting legislation which the bill seems to contemplate is so likely to occur as to render it necessary at this time to adopt a measure of such doubtful constitutionality. In the next place, this provision of the bill seems to be unnecessary, as adequate judicial remedies could be adopted to secure the desired end, without invading the immunities of legislators, always important to be preserved in the interest of public liberty; without assailing the independence of the judiciary, always essential to the preservation of individual rights; and without impairing the efficiency of ministerial officers, always necessary for the maintenance of public peace and order. The remedy proposed by this section seems to be, in this respect, not only anomalous, but unconstitutional; for the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction, subject only to the restriction that, in cases of conflict with the Constitution and constitutional laws of the United States, the latter should be held to be the supreme law of the land. The third section gives the district courts of the United States exclusive "cognizance of all crimes and offences committed against the provisions of this act," and concurrent jurisdiction with the circuit courts of the United States of all civil and criminal cases "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." The construction which I have given to the second section is strengthened by this third section, for it makes clear what kind of denial or deprivation of the rights secured by the first section was in contemplation. It is a denial or deprivation of such rights "in the courts or judicial tribunals of the State." It stands, therefore, clear of doubt that the offence and the penalties provided in the second section are intended for the State judge, who, in the clear exercise of his functions as a judge, not acting ministerially but judicially, shall decide contrary to this federal law. În other words, when a State judge, acting upon a question involving a conflict between a State law and a federal law, and bound, according to his own judgment and responsibility, to give an impartial decision between the two, comes to the conclusion that the State law is valid and the federal law is invalid, he must not follow the dictates of his own judgment, at the peril of fine and imprisonment. The legislative department of the Government of the United States thus takes from the judicial department of the States | It may be assumed that this authority is inthe sacred and exclusive duty of judicial decision,cident to the power granted to Congress by tho and converts the State judge into a mere minis- Constitution, as recently amended, to enforce, tezial officer, bound to decide according to the will of Congress. at present any necessity for the exercise of all the powers which this bill confers. Slavery has been abolished, and at present nowhere exists within the jurisdiction of the United States; nor has there been, nor is it likely there will be, any attempt to revive it by the people or the States. If, however, any such attempt shall be made, it will then become the duty of the General Government to exercise any and all incidental powers necessary and proper to maintain inviolate this great constitutional law of freedom. by appropriate legislation, the article declaring that neither slavery nor involuntary servitude It is clear that, in States which deny to per- except as a punishment for crime whereof the sons whose rights are secured by the first section party shall have been duly convicted, shall exist of the bill any one of those rights, all criminal within the United States, or any place subject and civil cases affecting them will, by the pro-to their jurisdiction." It cannot, however, be visions of the third section, come under the ex- justly claimed that, with a view to the enforceclusive cognizance of the federal tribunals. Itment of this article of the Constitution, there is follows that if, in any State which denies to a colored person any one of all those rights, that person should commit a crime against the laws of a State-murder, arson, rape, or any other crime-all protection and punishment through the courts of the State are taken away, and he can only be tried and punished in the federal courts. How is the criminal to be tried? If the offence is provided for and punished by federal law, that law, and not the State law, to govern. It is only when the offence does not happen to be within the purview of federal law The fourth section of the bill provides that that the federal courts are to try and punish officers and agents of the Freedmen's Bureau him under any other law. Then resort is to be shall be empowered to make arrests, and also had to the "common law, as modified and that other officers may be specially commissioned changed" by State legislation, "so far as the for that purpose by the President of the United same is not inconsistent with the Constitution States. It also authorizes circuit courts of the and laws of the United States." So that over United States and the superior courts of the this vast domain of criminal jurisprudence pro- Territories to appoint, without limitation, comvided by each State for the protection of its own missioners, who are to be charged with the per citizens, and for the punishment of all persons formance of quasi judicial duties. The fifth who violate its criminal laws, federal law, when-section empowers the commissioners so to be ever it can be made to apply, displaces State law. selected by the courts to appoint in writing, The question here naturally arises, from what under their hands, one or more suitable persons source Congress derives the power to transfer to from time to time to execute warrants and other federal tribunals certain classes of cases embraced processes described by the bill. These numerous in this section? The Constitution expressly de-official agents are made to constitute a sort of clares that the judicial power of the United police, in addition to the military, and are auStates "shall extend to all cases in law and thorized to summon a posse comitatus, and even equity arising under this Constitution, the laws to call to their aid such portion of the land and of the United States, and treaties made, or which naval forces of the United States, or of the milishall be made under their authority; to all cases tia, "as may be necessary to the performance of affecting ambassadors, other public ministers and the duty with which they are charged." This consuls; to all cases of admiralty and maritime extraordinary power is to be conferred upon jurisdiction; to controversies to which the agents irresponsible to the Government and to United States shall be a party; to controversies the people, to whose number the discretion of between two or more States, between a State the commissioners is the only limit, and in whose and citizens of another State, between citizens hands such authority might be made a terrible of different States, between citizens of the same engine of wrong, oppression, and fraud. The State claiming land under grants of different general statutes regulating the land and naval States, and between a State, or the citizens there- forces of the United States, the militia, and the of, and foreign States, citizens, or subjects," execution of the laws, are believed to be adeHere the judicial power of the United States is quate for every emergency which can occur in expressly set forth and defined; and the act of time of peace. If it should prove otherwise September 24, 1789, establishing the judicial Congress can at any time amend those laws in courts of the United States, in conferring upon such a manner as, while subserving the public the federal courts jurisdiction over cases origi-welfare, not to jeopard the rights, interests, and nating in State tribunals, is careful to confine liberties of the people. them to the classes enumerated in the aboverecited clause of the Constitution. This section of the bill undoubtedly comprehends cases and authorizes the exercise of powers that are not, by the Constitution, within the jurisdiction of the courts of the United States. To transfer them to those courts would be an exercise of authority well calculated to excite distrust and alarm on the part of all the States; for the bill applies alike to all of them-as well to those that have as to those that have not been engaged in rebellion. The seventh section provides that a fee of ten dollars shall be paid to each commissioner in every case brought before him, and a fee of five dollars to his deputy, or deputies," for each person he or they may arrest and take before any such commissioner," "with such other fees as may be deemed reasonable by such commission," " in general for performing such other duties as may be required in the premises." All these fees are to be "paid out of the Treasury of the United States," whether there is a conviction or not; but in case of conviction they are to be recoverable from the defendant. It seems to State an absorption and assumption of power me that under the influence of such temptations by the General Government which, if acquiesced bad men might convert any law, however bene-in, must sap and destroy our federative system ficent, into an instrument of persecution and of limited powers, and break down the barriers fraud. which preserve the rights of the States. It is another step, or rather stride, towards centralization, and the concentration of all legislative powers in the national Government. The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace. By the eighth section of the bill the United States courts, which sit only in one place for white citizens, must migrate, with the marshal and district attorney, (and necessarily with the clerk, although he is not mentioned,) to any part of the district upon the order of the President, and there hold a court "for the purpose of the more speedy arrest and trial of persons charged with a violation of this act," and there the judge and officers of the court must remain, upon the order of the President, "for the time therein designated." The ninth section authorizes the President, 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 to due execution of this act." This language seems to imply a permanent military force, that is to be always at hand, and whose only business is to be the enforcement of this measure over the vast region where it is intended to operate. I do not propose to consider the policy of this bill. To me the details of the bill seem fraught with evil. The white race and the black race of the South have hitherto lived together under the relation of master and slave-capital own ing labor. Now, suddenly, that relation is changed, and, as to ownership, capital and labor are divorced. They stand now each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and, if left to the laws that regulate capital and labor, it is confidently believed that they will satisfactorily work out the problem. Capital, it is true, has more intelligence, but labor is never so ignorant as not to understand its own interests, not to know its own value, and not to see that capital must pay that value. This bill frustrates this adjustment. It intervenes between capital and labor, and attempts to settle questions of political economy through the agency of numerous officials, whose interest it will be to foment discord between the two races; for as the breach widens their employment will continue, and when it is closed their occupation will terminate. In all our history, in all our experience as a people, living under federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is, by the bill, made to operate in favor of the colored and against the white race. They interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same My lamented predecessor, in his proclamation of the 1st of January, 1863, ordered and declared that all persons held as slaves within certain States and parts of States therein designated were, and thenceforward' should be free, and, further, that the executive government of the United States, including the military and naval authorities thereof, would recognize and maintain the freedom of such persons. This gnarantee has been rendered especially obligatory and sacred by the amendment of the Constitution abolishing slavery throughout the United States. I, therefore, fully recognize the obligation to protect and defend that class of our people, whenever and wherever it shall become necessary, and to the full extent compatible with the Constitution of the United States. Entertaining these sentiments, it only remains for me to say, that I will cheerfully co-operate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process, under equal and impartial laws, in conformity with the provisions of the Federal Constitution. I now return the bill to the Senate, and regret that, in considering the bills and joint resolutions-forty-two in number-which have been thus far submitted for my approval, I am compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress. ANDREW JOHNSON. Copy of the Bill Vetoed. Be it enacted, &c., 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 enjcyed by white citizens, and shall be subject to like punishment, pains, and penal- | territorial courts of the United States, with pow ties, and to none other, any law, statute ordi-ers of arresting, imprisoning, or bailing offenders nance, regulation, or custom, to the contrary against the laws of the United States, the officers notwithstanding. SEC. 2. 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. 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 constitu tional 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 of fences 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. 3. 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 aud 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 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 inflic-formity with the provisions of this act; and said tion of punishment on the party found guilty. SEC. 4. That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit court and SEC. 5. 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 exe cute 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 war rants and other process that may be issued by them in the lawful performance of their respect ive duties; and the persons so appointed to exe cute any warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or the posse comitatus of the proper county, or such portion of the land and naval forces of the United States, or of the mili tia, 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 con warrants shall run and be executed by said officers anywhere in the State or Terrritory within which they are issued. SEC. 6. 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 warraut 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. 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. 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. 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. The votes on this bill were: 1866, February 2-The SENATE passed the bill yeas 33, nays 12, as follow: YEAS-Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Dixon, Fessenden, Foot, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson, Yates-33. ricks, McDougall, Nesmith, Norton, Ridde, Saulsbury, StockNAYS-Messrs. Buckalew, Cowan, Davis, Guthrie, Hendton, Van Winkle-12. March 9-The bill being before the House, Mr. ELDRIDGE moved that it lie on the table; Dawson, Denison, Eldridge, Glossbrenner, Goodyear, Grider, NAYS-Messrs. Alley, Allison, Ames, Anderson, D. R. Ash man, Bidwell, Bingham, Blaine, Blow, Boutwell, Bromwell, SEC. 7. 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, inclu-ley, James M. Ashley, Baker, Baldwin, Banks, Baxter, Beasive 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 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 dur ing his detention, and until the final deterinina tion 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. 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 March 13-The bill passed-yeas 111, nays 38, as follow: YEAS-Messrs. Alley, Allison, Ames, Anderson, James M. Ashley, Baker, Baldwin, Banks, Baxter, Beaman, Bidwell, Blaine, Blow, Boutwell, Bromwell, Broomall, Buckland, Bundy, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling. Davis, Dawes, Delano, Deming, Dixon, Donnelly, Driggs, Dumont, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinneil, Abner C. Harding, Hart, Hayes, Higby, Hill, Holmes, Hooper, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John H. Hubbard, Hulburd, James Humphrey, Ingersoll, Jenckes, Julian, Kelley, Kelso, Ketcham, Kuy kendall, Laflin, George V. Lawrence, William Lawrence, Ruer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Loan, Longyear, Lynch, Marston, Marvin, McClurg, Mc Myers, Newell, O'Neill, Orth, Paine, Perham, Pike, Plants, Price, Alexander H. Rice, Sawyer, Schenck, Scofield. Shellarger, Sloan, Spalding, Starr, Stevens, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Ward, Warner, Ellihu B. Washburne, Willium B Washburn, Welker, Wentworth, Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, Woodbridge-111. NAYS-Messrs. Ancona, Bergen, Bingham, Boyer, Brooks, |