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Harper's Weekly 04/14/1866


The Civil Rights Bill was drawn with sim-
plicity 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 legis-
lation 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 unreasona-
ble than to fear or hesitate to define their sta-
tus? 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 col-
ored man can be a citizen. But as the Gov-
ernment became thoroughly tainted with the
spirit of slavery, the reluctance to acknowledge
the fact increased and obscured the whole ques-
tion. 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 the
spirit of slavery culminating in the Dred
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 Con-
stitution, 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 de-
stroyed 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 re-
pose is and ought to be impossible while mill-
ions of loyal and tried friends of the Govern-
ment 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 kind-
ly but firmly expressed intention of the Gov-
ernment 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 explana-
tion 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 free-
dom; 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 constitu-
tional right to confer this freedom, can it be
unconstitutional to defend it? If it were con-
stitutional for the Government to insist that
the late rebel States should recognize this lib-
erty, 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 en-
force it? Having freed a man from chattel
slavery, is the Government bound to look on
passively and see him reduced again to virtual
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 of-
fense? 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 domi-
ciled aliens, nor foreigners, what rights have
they? Clearly their status must be determ-
ined 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 spe-
cial 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 ex-
presses 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 unreason-
able that worthy, intelligent, and patriotic na-
tives, 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 intelli-
gent, will it be asserted that the mass of the
foreigners are so? If it be right to take a for-
eigner 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
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 Unit-
ed 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 econ-
omy. 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 re-
deem 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 pre-
sented two methods of protection, and he re-
jects 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 un-
checked 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 dan-
ger 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 jus-
tice; 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 inter-
preted by liberty can alone give us Constitu-
tional unity and enduring peace.

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