History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

"I have a word or two more to say. My honorable friend from Illinois, as it seemed to me—his nature is impulsive, and perhaps he was carried further than he intended—seemed to intimate that the President of the United States had not acted sincerely in this matter; that his usurpation was a clear one, and that he was to be censured for that usurpation. What has he done? He has vetoed this bill. He had a constitutional right to do so. Not only that; if he believed that the effect of the bill would be that which he states in his Veto Message, he was not only authorized but bound to veto it. His oath is to 'preserve' as well as to 'protect and defend' the Constitution of the United States; and believing, as he does, and in that opinion I concur, that this bill assails the Constitution of the United States, he would have been false to his plighted faith if he had not returned it with his objections.

"He desires—and who does not?—that the Union shall be restored as it originally existed. He has a policy which he thinks is best calculated to effect it. He may be mistaken, but he is honest. Congress may differ with him. I hope they will agree sooner or later, because I believe, as I believe in my existence, that the condition in which the country now is can not remain without producing troubles that may shake our reputation, not only in our own eyes, but in the eyes of the civilized world. Let the day come when we shall be again together, and then, forgetting the past, hailing the present, and looking forward to the future, we shall remember, if we remember the past at all, for the exhibition of valor and gallantry displayed on both sides, and find in it, when we become one, a guarantee that in the future no foreign hostilities are to be dreaded, and that no civil discord need be apprehended."

Mr. Trumbull said: "The opinion of Judge Curtis, from which the Senator read, was the opinion of a dissenting judge, entitled to very great credit on account of the learning and ability of that judge, but it was not the opinion of the court, and an examination of the entire opinion, which is very lengthy, would perhaps not sustain the precise principles the Senator from Maryland laid down. But, sir, I have another authority which I think of equal weight with that of Judge Curtis—not pronounced in a judicial tribunal it is true, but by one of the most eminent members of the bar in this nation; I may say by a gentleman who stands at the head of the bar in America at this time—an opinion pronounced, too, in the exercise of official duties; and I propose to read a few sentences from that opinion, for it is to be found reported in the Congressional Globe containing the proceedings of this body less than ninety days ago. This is the language:

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

"Sir, that opinion was held by the honorable Senator from Maryland who made this speech to-day. He holds the opinion so strongly now that slavery is abolished, which was the only obstacle in the way of their being citizens, that he would want no legislation on the subject but for the Dred Scott decision! What further did the Senator from Maryland say less than ninety days ago? It is possible, doubtless—it is not only possible but it is certainly true—that the Senator from Maryland, by reading the conclusive arguments of the Veto Message in regard to Chinese and Gypsies, has discovered that he was in error ninety days ago. I by no means mean to impute any wrong motive to the Senator from Maryland, but simply to ask that he will pardon me if I have not been able to see the conclusive reasoning of the Veto Message."

After quoting still further from Mr. Johnson's speech, made on a previous occasion, Mr. Trumbull said: "But as I am up, I will refer to one other point to which the Senator alluded, and that is in regard to the quotation which I made yesterday from the statute of 1790. I quoted that statute for the purpose of showing that the provisions in the bill under consideration, which it was insisted allowed the punishment of ministerial officers and judges who should act in obedience to State laws and under color of State laws, were not anomalous. I read a statute of 1790 to show that the Congress of the United States, at that day, provided for punishing both judges and officers who acted under color of State law in defiance of a law of the United States. How does the Senator answer that? He says that was on a different subject; the law of 1790 provided for punishing judges and officers who did an act in violation of the international law, jurisdiction over which is conferred upon the nation. Let me ask the Senator from Maryland, if the bill under discussion does not provide for the punishment of persons who violate a right secured by the Constitution of the United States? Is a right which a citizen holds by virtue of the Constitution of his country less sacred than a right which he holds by virtue of international law?"

Mr. Johnson replied as follows: "It is singular, in my estimation, how a gentleman with a mind as clear as Mr. Trumbull's, with a perspicacity that is a little surprising, could have fallen into the error of supposing that there is any inconsistency between the doctrine contained in the speech to which he has adverted and the one which I have maintained to-day. What I said then I say now, that as far as the United States are concerned, all persons born within the limits of the United States are to be considered as citizens, and that without reference to the color or the race; and after the abolition of slavery the negro would stand precisely in the condition of the white man. But the honorable member can hardly fail, I think—certainly he can not when I call his attention to it—to perceive that that has nothing to do with the question now before the Senate. His bill makes them citizens of the United States because of birth, and gives them certain rights within the States."

Mr. Fessenden asked: "Were not your remarks made on this very question in this bill?"

"No," replied Mr. Johnson; "on another bill." He continued: "What I maintain is this—and I have never doubted it, because I entertained the same opinion when I made those remarks that I entertain now—that citizenship of the United States, in consequence of birth, does not make a party a citizen of the State in which he is born unless the Constitution and laws of the State recognize him as a citizen. Now, what does this bill propose? All born within the United States are to be considered citizens of the United States, and as such shall have in every State all the rights that belong to any body else in the State as far as the particular subjects stated in the bill are concerned. Now, I did suppose, and I shall continue to suppose, it to be clear, unless I am met with the almost paramount authority of the Chairman of the Judiciary Committee, that citizenship, by way of birth, conferred on the party as far as he and the United States were concerned, is not a citizenship which entitles him to the privilege of citizenship within the State where he is born; if it be true, and I submit that it is true beyond all doubt, that over the question of State citizenship the authority of the State Government is supreme.

"Now, the honorable member is confounding the status of a citizen of the United States and the status of a citizen of the United States who as such is a citizen of the State of his residence. Maintaining, as I do, that there is no authority to make any body a citizen of the United States so as to convert him thereby into a citizen of a State, there is no authority in the Constitution for this particular bill, which says that because he is a citizen of the United States he is to be considered a citizen of any State in which he may be at any time with reference to the rights conferred by this bill."