"The Civil Rights Bill," Harper's Weekly Magazine, April 14, 1866, pp. 226-227.
John Osborne, Dickinson College
The following text is presented here in complete form, as it originally appeared in print. Spelling and typographical errors have been preserved as in the original.
The Civil Rights Bill
The Civil Rights Bill was drawn with simplicity and care for a very necessary purpose. It declares who are citizens of the United States, defines their rights, prescribes penalties for violating them, and provides the means of redress. The power to do this springs from the very nature and function of a supreme government. But the power being conceded, it is fair to demand that any measure of legislation shall be shown to be necessary, politic, and constitutional.
It is certainly essential to an intelligent use of language in the laws and common speech that the true meaning of citizenship should be defined. Nearly a fifth of the population of the country are colored. They are subject to the Government; they support the obligations and do the duty of citizens. Are they citizens or aliens? Can any thing be more unreasonable than to fear or hesitate to define their status? If they are not citizens, are they aliens, are they unnaturalized natives? Domiciled aliens and foreigners have the protection of law, indeed, but these are neither. They are native to the soil. They owe and perform the obligations of other citizens. Why not call them citizens?
That color was not originally a disability for citizenship is undeniable; for the citizens of the several States became, upon the adoption of the Constitution, citizens of the United States, and in some of the States at that time colored persons were not only citizens but voters. Naturalization and other laws in 1802 and 1803, by implication and directly, admit that color is not a disability. In 1843, Mr. Hugh S. Legare, Attorney-General of the United States, gave his opinion that a free colored man can be a citizen. But as the Government became thoroughly tainted with the spirit of slavery, the reluctance to acknowledge the fact increased and obscured the whole question. Mr. Marcy, as Secretary of State, held both opinions, that colored men were and were not citizens. Passports have been both issued and refused to them as citizens; and finally thespirit of slavery culminating in the Dred Scott decision, declared that a free negro was not a citizen. In 1862, under the Government purged of the influence of slavery, the question again arose, and Attorney-General Bates in a masterly opinion held that color was not a disqualification. But the baffled party of dis-union still asserts the contrary. President Johnson in his veto of the Civil Rights Bill admits a difference of opinion; and the Constitution, while it speaks of citizens, nowhere defines the term. It is therefore both timely and wise, at the close of a civil war which has abolished slavery, that the highest authority should declare distinctly who are citizens of the United States, and what are the rights to which citizens are entitled.
The policy of such a measure is plain from the fact that the civil rights of millions of the native population of the United States are destroyed in certain parts of the country on the ground of color; that this invasion springs from the spirit and habit of slavery, and that, if not corrected by the supreme authority, the inevitable result will be a confirmation of that spirit, and a consequent perpetual menace of the public peace by deepening the conviction of the outraged class of the population that the chance of legal redress is hopeless. The good policy is evident from the further fact that the country earnestly desires repose, but that repose is and ought to be impossible while millions of loyal and tried friends of the Government are exposed, as in the absence of such a bill they are exposed, to the vengeance of those who are still, and naturally, alienated from the Government. Nothing can tend so surely to confirm the peace of the Union as the kindly but firmly expressed intention of the Government to protect and enforce the equal civil rights of every citizen; understanding by civil rights, according to Chancellor Kent, "the right of personal security, the right of personal liberty, and the right to acquire and enjoy property." This is substantially the explanation given by President Johnson of the right conferred by the Emancipation Amendment. "Liberty," he said to the colored soldiers and to Judge Wairdlaw, "means freedom to work and enjoy the products of your own labor." The Civil Rights Bill merely secures that freedom; for no man enjoys the fruit of his labor if he can not own property, and sue and testify and convey.
But if the United States had the constitutional right to confer this freedom, can it be unconstitutional to defend it? If it were constitutional for the Government to insist that the late rebel States should recognize this liberty, can it not insist that they shall assent to its definition and protection? What else was the significance of the second clause of the amendment authorizing the Government to enforce it? Having freed a man from chattel slavery, is the Government bound to look on passively and see him reduced again to virtual slavery, by a State vagrant law, for a trivial offense? The President, indeed, asks in his veto whether the present laws are not sufficient to protect the rights of the freedmen. What rights? If they are neither citizens, nor domiciled aliens, nor foreigners, what rights have they? Clearly their status must be determined before their rights can be defined; and then, if existing remedies are adequate, they are not impaired by the bill. If they are not adequate, the bill is plainly necessary.
The President's objection to the bill as special legislation is a manifest misapprehension. The bill is universal in its application. If the rights of any citizen of whatever birth or color are invaded any where in the country the bill provides the remedy, without any exclusion or exception whatever. But the veto lays great weight upon the fact that "worthy, intelligent, and patriotic foreigners" must reside here five years before they can become citizens, and expresses the opinion that the bill discriminates against them in favor of those to whom the avenues of freedom and intelligence are just opened. But the President hardly puts the case fairly. Let us ask it in another way. If "worthy, intelligent, and patriotic foreigners" are to be made both citizens and voters at the end of a residence of five years, is it unreasonable that worthy, intelligent, and patriotic natives, all whose interests and affections are and always have been bound up with the country, should be made citizens, merely, at the end of twenty-one years? If it be objected that the mass of the natives in question are not intelligent, will it be asserted that the mass of the foreigners are so? If it be right to take a foreigner totally ignorant of our language and government and the whole spirit of our system and give him a vote at the end of five years, can it be wrong to take a man like Robert Smalls, who instinctively knows and loves and struggles for the Government, and at the end of three years of emancipation give him, not so much as a vote, but the name and rights of a citizen? That is a question which we do not find answered in the Message.
The objection that the bill interferes with rightful State legislation is not sustained by a careful consideration of the bill. If the United States may lawfully define the civil rights of their citizens no State can lawfully impair those rights. The bill leaves the legislative discretion of the States unlimited by any thing but the fundamental civil rights of all citizens which the nation itself protects; and it gives the United States courts exclusive jurisdiction under an express clause of the Constitution.
But the most extraordinary objection urged by the President is that the Civil Rights Bill undertakes to settle questions of political economy. It is not easy to see precisely what is meant by this statement. The bill provides that all citizens shall have the same right to make contracts, to sue and be sued, to give evidence, to inherit and convey property. Is this settling questions of political economy? We should as soon have suspected that it was an attempt to solve astronomical problems.
But the serious objection to the veto lies in the fact, which is evident throughout, that the President thinks enough has been done to redeem the sacred honor of the United States, not of the separate States, pledged to the emancipated class. He says indeed that he will co-operate with Congress to protect them; but Congress has maturely considered and presented two methods of protection, and he rejects both. What is the President's plan? Is it to leave them to the Black Codes? Is it to call them free, thereby exasperating the late masters, and then suffer those masters unchecked to forbid them to own property, to bear arms, to testify, and to enjoy any of the rights of freedom? Is it to trust to time, and to hope that when the present generation, to whom we gave our word, is exterminated, some kind of justice may be done their posterity by those who come after us? The present danger to the Union is not in the direction feared by the President. It is not from the United States doing a simple Constitutional act of justice; it is from the States perpetuating the old injustice from which our troubles sprang. State rights interpreted by slavery brought us bitter alienation and bloody war. State rights interpreted by liberty can alone give us Constitutional unity and enduring peace.