History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

"I can not better conclude what I have to say than in the language of Mr. Johnson on the occasion of the veto of the Homestead Bill, when, after stating that the fact that the President was inconsistent and changed his opinion with reference to a great measure and a great principle, is no reason why a Senator or Representative, who has acted understandingly, should change his opinion. He said:

"'I hope the Senate and House of Representatives, who have sanctioned this bill by more than a two-thirds majority, will, according to the Constitution, exercise their privilege and power, and let the bill become a law of the land, according to the high behest of the American people.'"

On the next day, April 5th, Mr. Johnson, of Maryland, made a speech sustaining the Veto Message. He argued that negroes were not citizens of the United States by reason of their birth in the United States, and that Congress had no authority by law to declare them such. To sustain his position, he made quotations from the opinion of the minority in the Dred Scott case, as rendered by Mr. Justice Curtis. He then proceeded to reply to some of Mr. Trumbull's arguments against the Veto Message: "The honorable member from Illinois disposes of the President's objection to the first section of this bill by saying that it is merely declaratory. I know it is competent for any legislative body, on a question where difference of opinions exist in relation to any legal proposition, to remove them by declaratory legislation; but that is not the purpose of this bill. It professes to be passed in the exercise of a positive and absolute power to change the law—not to declare what the law was in order to remove doubts, but to make the law. It assumes, or otherwise there would be no occasion for it, that birth alone does not confer citizenship; and assuming that no citizenship would exist in consequence of birth alone, it declares that birth alone, in spite of State constitution and State laws, shall confer citizenship. Now, with all deference to the opinion of the honorable Chairman of the Committee on the Judiciary, that seems to me to be a proposition as clearly erroneous as any proposition can be in relation to constitutional law. The States were sovereign before the Constitution was adopted; and the Constitution not only, according to its very terms, does not profess to confer upon the Government of the United States all governmental power, but as far as Congress is concerned, professes to confer upon that department of the Government only the particular delegated powers there enumerated; but so anxious were the framers of that instrument and the great men of that day, to whom the subsequent organization of this Government was left, that although they had no doubt as to the principle that only the delegated powers were granted, (and the debates in the Convention itself as well as the debates in the conventions of the several States, when the Constitution was before them for adoption or rejection, all went upon the theory that no powers were conferred except such as were expressly granted, or as were reasonably implied to be as necessary to carry out the powers expressly granted,) by the tenth amendment adopted recently after the Constitution went into operation, and recommended by the men, many of whom were the framers of the Constitution itself, that the powers not delegated by the Constitution, and not denied to the States by the same instrument, were to be considered reserved to the States respectively, or to the people.

"Standing, therefore, as well upon the nature of the Government itself, as a Government of enumerated powers specially delegated, as upon the express provision that every thing not granted was to be considered as remaining with the States unless the Constitution contained some particular prohibition of any power before belonging to the States, what doubt can there be that if a State possessed the power to declare who should be her citizens before the Constitution was adopted that power remains now as absolute and as conclusive as it was when the Constitution was adopted? The bill, therefore, changes the whole theory of the Government.

"The President, then, I think, is right. I go further than he does. He expresses a doubt whether Congress has the power; I affirm, with all deference to the better judgment of the majority of the Senate who voted for the bill, and to that of the honorable Chairman of the Committee on the Judiciary, that it is perfectly clear that no such power exists in Congress as the one attempted to be exercised by the first section. I hold, with Mr. Justice Curtis—and his opinion to this day has never been questioned—that citizenship of the United States consequent upon birth in a State is to depend upon the fact whether the constitution and laws of the State make the party so born a citizen of the State.

"But that is not all. This first section has another provision. Not satisfied with making the parties citizens and clothing them with all the rights belonging to white citizens by the laws of the States, it says that they 'shall be subject to like punishment, pains, and penalties, and to none other.' That invades the jurisdiction of the States over their criminal code. Congress assumes to define a crime, and defining a crime gives to its own courts exclusive jurisdiction over the crime and the party charged with its perpetration. It strikes at the criminal code of the States. The result, therefore, of the three provisions in this section is, that contrary to State constitutions and State laws, it converts a man that is not a citizen of a State into a citizen of the State; it gives him all the rights that belong to a citizen of the State; and it provides that his punishment shall only be such as the State laws impose upon white citizens. Where is the authority to do that? If it exists, it is still more obvious that the result is an entire annihilation of the power of the States. It seems to be the fashion of the hour—I do not know that my honorable friend from Illinois goes to that extent—to hold to the doctrine that the sooner every thing is vested in the Government of the United States the better for the country. It is a perilous delusion. If such a proposition had been supposed to be found any where in the Constitution of the United States, it never would have been adopted by the people; and if it is assumed, or if it is considered as constitutionally existing by virtue of some power not before known, the Government will not last half a century. I have not time to read from the writings of Mr. Madison and Mr. Hamilton and the decisions of the Supreme Court on the question.

"But you, Mr. President, know very well that consolidation of power in the Government of the United States was looked upon as certain ruin to republican institutions. In the first place, it would be sure to result in anarchy; and in the second place, in order to be saved from the horrors of anarchy, we should be compelled to take refuge in despotic power, and the days of constitutional liberty would soon be numbered. The doubt then was, and the doubt now should be more firmly settled in the public mind, that a country as extensive as that of the United States can not exist except by means of divided sovereignties; one sovereignty having charge of all external matters, or matters between the States to which the powers of the States are inadequate; the other sovereignties having power over all internal matters to the management of which they are adequate. Despotism would soon be our fate, preceded by anarchy; the military chieftain instead of being looked upon, as he should be by every republican, with alarm and concern, would be hailed as a savior, in order to save us from the horrors of disorganization.

"The honorable member referred to the act of 1790, but it relates entirely to different subjects, and all the statutes to which he adverted are statutes of the same description. What is the twenty-sixth section of the act of 1790 to which he referred? The preceding section provided that no one should sue a foreign minister, and the section to which my friend referred particularly, said that if a party did sue a foreign minister he should be liable to be punished. Certainly; but why? Because the Government of the United States was vested with the exclusive authority in all cases depending upon the law of nations; and the law of nations saving from responsibility embassadors accredited to the United States, for civil debts, he who attempted to interfere offended against the Government, and he offended in relation to a subject exclusively committed to the General Government. The power, therefore, which Congress exerted in the particular legislation to which the honorable member reverted is just the power which they exert when they provide for the punishment of any man who counterfeits the currency of the United States, or forges its paper, or forges its bonds, or interferes with the administration of the Post-office Department. These are all powers incidental to the possession of the express power, and in the case to which he adverted the express power was one necessarily belonging to the Government, because it was a power belonging to and regulated by the law of nations, and not by any municipal regulation.

"The honorable member from Illinois tells us that the President's objection, that there are eleven States not now represented, is entitled to no consideration whatever. The honorable member seems to suppose that the President adverted to the fact that there were eleven States not represented as showing that Congress possessed no constitutional authority to legislate upon the subject, supposing that they would have had the authority if those States were represented. That is not the view taken by the President; it is an entire misapprehension of the doctrine of the President. He says no such thing, and he intimates no such thing. But assuming, what in another part of the message he denies, that the authority might be considered as existing, he submits as a question of policy whether it is right to change the whole domestic economy of those eleven States, in the absence of any representation upon this floor from them. My honorable friend asks whose fault it is that they are not represented. Why are they not here? He says their hands are reeking with the blood of loyal men; that they are unable to take the oath which a statute that he assumes to be constitutional has provided; and he would have the country and the Senate to believe that that is the reason why they are not here. Is that the fact, Mr. President? These States are organized, and how organized? What have they done? They have abolished slavery by an astonishing unanimity; they have abolished nearly all the distinctions which antecedently existed between the two races. They have permitted the negroes to sue, they have permitted them to testify; they have not yet permitted them to vote.

"Why are they not received? Because, in the judgment of the Senate, before the States can be considered as restored, Congressional legislation on the subject is necessary. Whose fault is it that there has not been Congressional legislation? Is it the fault of the eleven States? Certainly not; it is our own fault. And why is it that we are in point of fact delaying their admission, whether it is to be considered as a fault or not? Because we want to inquire into the condition of these States. Why, in the name of Heaven! how long have we been here? We came here early in December, and this is the month of April; and here we may remain until July, or, as rumor has it, until next December; and shall we be satisfied within that time that Congressional legislation may be safely adopted?