CHAPTER SIXTEEN:
The Genesis of the Civil Rights Movement
War-Time Confiscation of Enemy Property
During Lincoln's war against the States, Executive power to confiscate the property of individuals sympathetic to the "enemy" was declared:
The first act authorizing the confiscation of property was that of August 6, 1861.(1) It provided that if, during the then existing or any future insurrection against the government, after proclamation of the President that the laws of the United States are opposed by combinations too powerful to be suppressed by the ordinary machinery of government authorities for that purpose, then all that property of whatsoever kind or description used with the consent of the owner to further the interests of the insurrection should be lawful subject of prize of capture wherever found, and it was made the duty of the President to cause the same to be seized, confiscated, and condemned.... The act extended to all descriptions of property, real or personal, on land or on water. The Supreme Court decided that its enactment was in virtue of the war powers of the government. It defined no crime. It imposed no penalty. It declared nothing unlawful. It was not, therefore, a mere municipal regulation for the punishment of crime. It was aimed exclusively at the seizure and confiscation of property used, or intended to be used, to aid, abet, or promote the rebellion, then a war, or to maintain the war against the government. It treated the property as the guilty subject.(2)
Other seizure mechanisms were provided in the Captured and Abandoned Property Act of 12 March 1863.(3) Under the terms of these wartime statutes, agents of the Treasury Department entered the States of the Southern Confederacy and began to seize abandoned or otherwise considered captured property in places where U.S. troops had already swept through. Proceedings in rem(4) were then conducted in prize courts wherein the property was condemned and the proceeds thereof were deposited into the Treasury.(5) In the hands of corrupt agents,(6) such work was very profitable indeed and by the time of the repeal of the Captured Property Act in May of 1868, the gross sales of such property seized had amounted to about $30 million with net proceeds totaling about $25 million. As discussed in a previous chapter, the primary form of property thus seized by the invading Northern army was that which was owned by Southern planters in the labor of their slaves. It was Lincoln's assertion that "the traitor against the General Government forfeits his slave at least as justly as he does any other property; and he forfeits both to the Government against which he offends. The Government, so far as there can be ownership, thus owns the forfeited slaves, and the question for Congress in regard to them is, 'Shall they be made free or sold to new masters?'"(7)
Most Americans today are completely ignorant of the true purpose of Lincoln's Emancipation Proclamation. As was discussed in Chapter Thirteen, the Proclamation only applied to the unconquered portions of the Confederate States, where Lincoln had no authority or power whatsoever to so declare freedom to the slaves, and left slavery in the Border States and the excepted counties and parishes of the South under Northern occupation "precisely as if this proclamation were not issued." No less an authority than Secretary of State Seward declared, "We show our sympathy with slavery by emancipating slaves where we cannot reach them, and holding them in bondage where we can set them free."(8) Not only did Lincoln assert the right under the "law of war" to confiscate property "whenever it helps us or hurts the enemy,"(9) but he also recognized that the Northern cause would benefit greatly should the slaves be enticed to rise up against the defenseless women, children, and elderly of the South, thereby forcing the men to withdraw from the field and return to their homes. Of course, his hopes in this regard were to be greatly disappointed.
It is important to note that the validity of the Emancipation Proclamation rested upon two premises: (1) that the Southern States were "in rebellion against the United States"; and (2) that the proclamation itself was "a fit and necessary war measure for suppressing said rebellion." Lincoln himself admitted that the proclamation had "no constitutional or legal justification, except as a military measure." If the first premise of the proclamation was false, then the second was equally spurious. Since the alleged "rebellion" was nothing more than a ruse concocted by the Republicans to justify their abandonment of the Constitution, their destruction of the Union thereunder, and their war of conquest on the South, Lincoln's proclamation must be viewed as a revolutionary document designed to attack the very fabric of American civilization and lay the foundation for an entirely new social and political structure.
The Establishment of the Freedmen's Bureau
Even before the war had ended, a stream of legislation began to flow from Washington, D.C., the alleged purpose of which was to protect the Blacks in the enjoyment of their newly-granted status as freedmen. On 3 March 1865, over one month before General Lee surrendered the Army of Northern Virginia at Appomattox Courthouse, Virginia, Congress passed "an act to establish a bureau [the Freedmen's Bureau] for the relief of freedmen, refugees, and abandoned lands." The functions of this Bureau were to continue "during the present war of rebellion, and for one year thereafter."(10) On 5 January 1866, Republican Senator Lyman Trumbell from Illinois proposed a bill "to enlarge the powers of the Freedmen's Bureau" which would authorize the President to "divide the section of country containing such refugees and freedmen into districts, each containing one or more States" and "to divide each district into a number of sub-districts... and to assign to each sub-district at least one agent, either a citizen, officer of the army, or enlisted man...." Moreover, this bill extended "military jurisdiction and protection over all employees, agents, and officers of the bureau." (11)
Negro historian W.E. Burghardt DuBois rightly described the Freedmen's Bureau as "a new government" emanating from the War Department and exercising jurisdiction over "millions of men." It "made laws, executed them and interpreted them; it laid and collected taxes, defined and punished crime, maintained and used military force, and dictated such measures as it thought necessary and proper for the accomplishment of its varied ends."(12) This was a government existing wholly outside of the venue of the Constitution and established on the foundation of "military necessity" through which the Radicals in Congress proposed to extend the jurisdiction of the U.S. Government beyond the constitutional ten-mile square limits of Washington, D.C.(13) into the several States. As John W. Burgess stated, "It was a stiff measure even for the transition period from war to peace. It cannot be justified constitutionally as anything but a war measure."(14) These words were precisely those which had been used three years previously by Lincoln to describe his Emancipation Proclamation. However, whereas Lincoln had a so-called rebellion upon which to base his war measure, the Radical Republicans had no such excuse for theirs since hostilities had ceased many months before. This expansion of the powers of the Freedmen's Bureau was therefore a blatantly unconstitutional act of legislative aggression against the South and was inimical to any real restoration of peaceful relations between the two sections. Democrat Senator Thomas A. Hendricks of Indiana protested against this obvious intent with these words:
Now, sir, it is important to note very carefully the enlargement of the powers of this bureau proposed by this bill; and in the first place, it proposes to make the bureau permanent. The last Congress would not agree to this. The bill that the Senate voted down did not limit the duration of the bureau, and it was voted down, and the bill that the Senate agreed to provided that the bureau should continue during the war and only for one year after its termination. That was the judgment of the Senate at the last session. What has occurred since to change the judgment of the Senate in this important matter?
What change in the condition of the country induces the Senate now to say that this shall be a permanent bureau or department of the Government, when at the last session it said it should cease to exist within one year after the conclusion of the war? Why, sir, it seems to me that the country is now, and especially the Southern States are now in better condition than the Senate had reason to expect when the law was enacted. Civil government has been restored in almost all the Southern States; the courts are restored in many of them; in many localities they are exercising their jurisdiction within their particular localities without let or hindrance; and why I ask Senators, shall we make this bureau a perpetual and permanent institution of the Government when we refused to do it at the last session?...
The next proposition of the bill is, that it shall not be confined any longer to the Southern States, but that it shall have a government over the States of the North as well as of the South. The old law allowed the President to appoint a commissioner for each of the States that had been declared to be in rebellion — one for each of the eleven seceding States, not to exceed ten in all. This bill provides that the jurisdiction of the bureau shall extend wherever, within the limits of the United States, refugees or freedmen have gone. Indiana has not been a State in insurrection, and yet there are thousands of refugees and freedmen who have gone into that State within the last three years. This bureau is to become a governing power over the State of Indiana according to the provisions of the bill. Indiana, that provides for her own paupers, Indiana that provides for the government of her own people, may, under the provision of this bill be placed under a government that our fathers never contemplated — a government that must be most distasteful to freemen....
Then, sir, when this army of officers has been organized, the bill provides: "And the President of the United States, through the War Department and the commissioner, shall extend military jurisdiction and protection over all employees, agents, and officers of this bureau." Will some Senator be good enough to tell me what that means? If Indiana be declared a State within which are found refugees and freedmen, who have escaped from the Southern States, and if Indiana has a commissioner appointed to her, and if in each county of Indiana there be a sub-commissioner at a salary of $1,500 a year, with two clerks with a salary of $1,200 each, and then the War Department throws over this little army of officers in the State of Indiana its protection, what does that mean? The people of Indiana have been ground hard under the military authority and power within the last three or four years, but it was hoped that when the war would be closed the military power would be withdrawn from the State. Under this bill it may be established permanently upon the people by a body of men protected by the military power of the Government. An officer is appointed to the State of Indiana to regulate contracts which are made between the white people and the colored people of that State, and because he holds this office, not military in its character, involving no military act whatever, the military throws over him its iron shield of protection. What does that mean? If this officer shall do a great wrong and outrage to one of the people, and the wronged citizen appeals to the court for his redress and brings his suit for damages, does the protecting shield of the War Department prevent the prosecution of that suit and the recovery of a judgment? What is the protection that is thrown over this army of office-holders? Let it be explained.(15)
Senator Hendricks then proceeded to discuss the bill's effect on the sovereignty of the Northern States:
The most remarkable sections of the bill, however, are the seventh and eighth, and to those sections I will ask for the careful attention of Senators; for I think if we can pass those two sections, and make them law, then indeed this Government can do any thing. It will be useless to speak any longer of limitations upon the powers of the General Government; it will be idle to speak of the reserved power of the States; State rights and State power will have passed away if we can do what is proposed in the seventh and eighth sections of this bill. We propose, first, to legislate against the effects of "local law, ordinance, police, or other regulation;" then against "custom," and lastly, against "prejudice," and to provide that "if any of the civil rights or immunities belonging to white persons" are denied to any person of color, then that person shall be taken under the military jurisdiction of the Government.... The section limits its operation to "any State or district in which the ordinary course of judicial proceeding has been interrupted by the rebellion." It will be difficult to say whether in the State of Indiana and Ohio the ordinary course of judicial proceeding has or has not been interrupted. We had some war in Indiana; we had a very great raid through that State and some fighting; and I presume that in some cases the proceedings of the courts were interrupted and the courts were unable to go on with their business, so that it might be said that even in some of the Northern States this provision of the bill would be applicable. Suppose that it were applicable to the State of Indiana, then every man in that State, who attempted to execute the constitution and laws of the State, would be liable for a violation of the law. We do not allow to colored people there, many civil rights and immunities which are enjoyed by the white people. It became the policy of the State in 1852 to prohibit the immigration of colored people into that State.... Under that constitutional provision, and the laws enacted in pursuance of it, a colored man coming into the State since 1852 can not acquire title to real estate, can not make certain contracts, and no negro man is allowed to intermarry with a white woman. These are civil rights that are denied, and yet this bill proposes, if they are still denied in any State whose courts have been interrupted by the rebellion, the military protection of the Government shall be extended over the person who is thus denied such civil rights or immunities.
The next section of the bill provides punishments where any of these things are done, where any right is denied to a colored man which under State law is allowed to a white man. The language is very vague, and it is very difficult to say what this section will mean. If it has as broad a construction as is attempted to be given to the second section of the constitutional amendment, I would not undertake to guess what it means. Any man who shall deny to any colored man any civil rights secured to white persons, shall be liable to be taken before the officers of this bureau and to be punished according to the provisions of this section. In the first place, now that peace is restored, now that there is no war, now that men are no longer under military rule, but are under civil rule, I want to know how such a court can be organized; how it is that the citizen may be arrested without indictment, and may be brought before the officers of this bureau and tried without jury, tried without the forms which the Constitution requires....
I regard it as a very dangerous legislation. It proposes to establish a government within a government — not a republic within a republic, but a cruel despotism within a republic. In times of peace, in communities that are quiet and orderly, and obedient to the law, it is proposed to establish a government not responsible to the people, the officers of which are not selected by the people, the officers of which need not be of the people governed — a government more cruel, more despotic, more dangerous to the liberties of the people than against which our forefathers fought in the Revolution. There is nothing that these men may not do, under this bill, to oppress the people.
I have not heard, since Congress met, that any colored man has done a wrong in this country for many years; and I have scarcely heard that any white man coming in contact with colored people has done right for a number of years. Every body is expected to take sides for the colored against the white man. If I have to take sides, it will be with men of my own color and my own race....(16)
Senator Burwell C. Ritter of Kentucky — also a Democrat — stated his belief that the authors of the bill intended to establish "a colony in each of the five States above named... ultimately to drive out the entire white population of those States and fill their places with the negro race...." and that "they could not have devised a more effectual scheme for that purpose." He went on:
Sir, it is not to be expected that the two races will live contentedly where there are large numbers of the colored people living near to neighborhoods settled with white persons. Experience has proved to many of us that wherever large numbers of colored people live, that the white people living within five or ten miles of the place becomes sufferers to a very large extent. Now, sir, if this should be the case (as I have no doubt it will) in the States in which you propose to establish these people, the whites and blacks will disagree to such an extent that, when people find that the colored people are permanently established, they will be compelled, in self defense, to seek a home somewhere else. No doubt, Mr. Speaker, but that those who prepared this bill saw that the difficulties and disagreements to which I have just alluded would arise, and hence they require that military jurisdiction and protection shall be extended, so as to give safety in their movements; and if the white inhabitants become dissatisfied, the commissioner is prepared with authority by this bill to buy them out and put the negroes upon the land.(17)
When the bill was delivered to President Johnson, he promptly vetoed it with the following words:
The bill proposes to establish by authority of Congress military jurisdiction over all parts of the United States containing refugees and freedmen. It would by its very nature apply with most force to those parts of the United States in which the freedmen most abound, and it expressly extends the existing temporary jurisdiction of the Freedmen's Bureau, with greatly enlarged powers, over those States "in which the ordinary course of judicial proceedings has been interrupted by the rebellion." The source from which this military jurisdiction is to emanate is none other than the President of the United States, acting through the War Department and the Commissioner of the Freedmen's Bureau. The agents to carry out this military jurisdiction are to be selected either from the Army or from civil life; the country is to be divided into districts and sub-districts, and the number of salaried agents to be employed may be equal to the number of counties or parishes in all the United States where freedmen and refugees are to be found.
The subjects over which this military jurisdiction is to extend in every part of the United States include protection to "all employees, agents, and officers of this bureau in the exercise of the duties imposed" upon them by the bill; in eleven States it is further to extend over all cases affecting freedmen and refugees discriminated against "by local law, custom, or prejudice." In those eleven States the bill subjects any white person who may be charged with depriving a freedman of "any civil rights or immunities belonging to white persons" to imprisonment or fine, or both, without, however, defining the "civil rights and immunities" which are thus to be secured to the freedmen by military law. This military jurisdiction also extends to all questions that may arise respecting contracts. The agent who is thus to exercise the office of a military judge may be a stranger, entirely ignorant of the laws of the place, and exposed to the errors of judgment to which all men are liable. The exercise of power over which there is no legal supervision by so vast a number of agents as is contemplated by the bill must, by the very nature of man, be attended by acts of caprice, injustice, and passion.
The trials having their origin under this bill are to take place without the intervention of a jury and without any fixed rules of law or evidence. The rules on which offenses are to be "heard and determined" by the numerous agents are such rules and regulations as the President, through the War Department, shall prescribe. No previous presentment is required nor any indictment charging the commission of a crime against the laws; but the trial must proceed on charges and specifications. The punishment will be, not what the law declares, but such as a court-martial may think proper; and from these arbitrary tribunals there lies no appeal, no writ of error to any of the courts in which the Constitution of the United States vests exclusively the judicial power of the country.
While the territory and the classes of actions and offenses that are made subject to this measure are so extensive, the bill itself, should it become a law, will have no limitation in point of time, but will form a part of the permanent legislation of the country. I can not reconcile a system of military jurisdiction of this kind with the words of the Constitution which declare that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," and that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." The safeguards which the experience and wisdom of ages taught our fathers to establish as securities for the protection of the innocent, the punishment of the guilty, and the equal administration of justice are to be set aside, and for the sake of a more vigorous interposition in behalf of justice we are to take the risks of the many acts of injustice that would necessarily follow from an almost countless number of agents established in every parish or county in nearly a third of the States of the Union, over whose decisions there is to be no supervision or control by the Federal courts. The power that would be thus placed in the hands of the President is such as in time of peace certainly ought never to be intrusted to any one man.
Johnson further warned in his veto message that the bill would, "when put into complete operation, practically transfer the entire care, support, and control of 4,000,000 emancipated slaves to agents, overseers, or taskmasters, who, appointed at Washington, are to be located in every county and parish throughout the United States containing freedmen and refugees. Such a system would inevitably tend to a concentration of power in the executive which would enable him, if so disposed, to control the actions of this numerous class and use them for the attainment of his own political ends."(18) To put it bluntly, the ownership of the slaves was to be transferred from their Southern masters, from whom they had been confiscated, to the War Department of the U.S. Government where they would be held in perpetual bondage under a system of "military paternalism."(19)
Without even pausing to discuss the compelling arguments against the bill, the Republican majority in Congress immediately passed it into law over the President's veto on 16 July 1866. As we will see in a later chapter, the military tribunals provided for in this bill, which were to operate under the President in his capacity as Commander-in-Chief, are still in place today, and, in fact, have completely supplanted constitutional courts throughout the country. Furthermore, the reader will clearly see here the origin of the modern American welfare State. In fact, the Freedmen's Bureau, thus set up under the jurisdiction of the War Department, appears to have been the precursor of today's Social Security Administration.(20)
The Civil Rights Act is Passed
The Freedmen's Bureau Act was followed by the Act of 9 April 1866, commonly called the Civil Rights Act, the purpose of which, according to the title, was "to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication." Section One read as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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 enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.(21)
The additional Act of 16 July 1866 provided for the President, through the commissioner and officers of the Freedmen's Bureau, to exercise military jurisdiction over all cases and questions concerning the enjoyment of these "civil rights" by the former slaves.(22) This Act was based on the empowerment clause of the preceding Thirteenth Amendment, which gave to Congress the exclusive discretion to decide what was "appropriate legislation" for carrying out the provisions of the amendment, thereby rendering any subsequent congressional action regarding the Negro a "political question" upon which no court had the power to adjudicate.
Again, a few voices, of which all but one were Democrats, were raised in Congress against the extension of citizenship to the Blacks. Senator Garrett Davis of Kentucky said:
There never was a colony before the Declaration of Independence, and there never was a State after the Declaration of Independence, up to the time of the adoption of the Constitution, so far as I have been able to learn by the slight historical examination which I have given to the subject, that ever made or attempted to make any other person than a person who belonged to one of the nationalities of Europe a citizen. I invoke the chairman of the committee to give me an instance, to point to any history or any moment, where a negro, although that negro was born in America, was ever made a citizen of either of the States of the United States before the adoption of this Constitution. The whole material out of which citizens were made previous to the adoption of the present Constitution was from the European nationalities, from the Caucasian race, if I may use the term. I deny that a single citizen was ever made by one of the States out of the negro race. I deny that a single citizen was ever made by one of the States out of the Mongolian race. I controvert that a single citizen was ever made out of the Chinese race, out of the Hindoos, or out of any race of people but the Caucasian race of Europe.
I come, then, to this position: that whenever the States, after the Declaration of Independence and before the present Constitution was adopted, legislated in relation to citizenship, or acted in their governments in relation to citizenship, the subject of that legislation or that action was the Caucasian race of Europe; that none of the inferior races of any kind were intended to be embraced or were embraced by this work of Government in manufacturing citizens....
Government is a political partnership. No persons but the partners who formed the partnership are parties to the government. Here is a government formed by the white man alone. The negro was excluded from the formation of our political partnership; he had nothing to do with it; he had nothing to do in its formation.(23)
Senator Andrew J. Rogers of New Jersey protested against the bill as follows:
This act of legislation would destroy the foundations of the Government as they were laid and established by our fathers, who reserved to the States certain privileges and immunities which ought sacredly to be preserved to them.
If you had attempted to do it in the days of those who were living at the time the Constitution was made, after the birth of that noble instrument, the spirit of the heroes of the Revolution and the ghosts of the departed who laid down their lives in defense of the liberty of this country and of the rights of the States, would have come forth as witnesses against the deadly infliction and the destruction of the fundamental principle of the sovereignty of the States in violation of the Constitution, and the breaking down of the ties that bind the States, and the violation of the rights and liberties of the white men and women of America.
If you pass this bill, you will allow the negroes of this country to compete for the high office of President of the United States. Because if they are citizens at all, they come within the meaning and letter of the Constitution of the United States, which allows all natural-born citizens to become candidates for the Presidency, and to exercise the duties of that office if elected.
I am afraid of degrading this Government; I am afraid of the danger to constitutional liberty; I am alarmed at the stupendous strides which this Congress is trying to initiate; and I appeal in behalf of my country, in behalf of those that are to come after us, in generations yet unborn, as well as those now living, that conservative men on the other side should rally to the standard of sovereign and independent States, and blot out this idea which is inculcating itself here, that all the power of the States must be taken away, and the power of the Czar of Russia or the Emperor of France must be lodged in the Federal Government.
I ask you to stand by the law of the country, and to regulate these Federal and State systems upon the grand principles upon which they were intended to be regulated, that we may hand down to those who are to come after us this bright jewel of civil liberty unimpaired; and I say that the Congress or the men who will strip the people of these rights will be handed down to perdition for allowing this bright and beautiful heritage of civil liberty embodied in the powers and sovereign jurisdiction of the States to pass away from us.(24)
Senator Willard Saulsbury of Delaware perceived the bill as part of a political revolution which would inaugurate the bloodshed and horrors of a new civil war:
In my judgment the passage of this bill is the inauguration of revolution — bloodless, as yet, but the attempt to execute it by the machinery and in the mode provided in the bill will lead to revolution in blood. It is well that the American people should take warning in time and set their house in order, but it is utterly impossible that the people of this country will patiently entertain and submit to this great wrong. I do not say this because I want a revolution; Heaven knows we have had enough of bloodshed; we have had enough of strife; there has been enough of mourning in every household; there are too many new-made graves on which the grass has not yet grown for any one to wish to see the renewal of strife; but, sir, attempt to execute this act within the limits of the States of this Union, and, in my judgment, this country will again be plunged into all the horrors of civil war.(25)
Senator James McDougall of California, the only Republican voice raised in opposition to the bill, agreed with Senator Saulsbury regarding the revolutionary nature of the bill and warned:
I agree with the Senator from Delaware that this measure is revolutionary in its character. The majority glory in their giant power, but they ought to understand that it is tyrannous to exercise that power like a giant. A revolution now is moving onward; it has its center in the Northeast. A spirit has been radiating out from there for years past as revolutionary as the spirit that went out from Charleston, South Carolina, and perhaps its consequences will be equally fatal, for when that revolutionary struggle comes it will not be a war between the North and its power and the slaveholding population of the South; it will be among the North men themselves....(26)
Not surprisingly, these protestations and warnings were ignored by the Radical Republican majority, who had just fought a war against "the fundamental principle of the sovereignty of the States," and the bill passed in both houses of Congress and was delivered to the President for his signature. Johnson again promptly vetoed the bill, giving his reasons for doing so in his message of 27 March 1866:
I regret that the bill which passed both houses of Congress, entitled "An act to protect all persons in the United States in their civil rights, and furnish the means for their vindication," contains provisions which I can not approve, consistently with my sense of duty to the whole people and my obligations to the Constitution of the United States. I am therefore constrained to return it to the Senate, the house in which it originated, with my objections to its becoming a law....
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 State — an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers, and break down the barriers which preserve the rights of the States. It is another step, or rather stride, to centralization and the concentration of all legislative power 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.(27)
Drunk with power and filled with hatred for the White Southerner, the Radical majority once again passed the bill into law over Johnson's veto. The destruction of State sovereignty was nearing completion.
The Inferior Nature of Federal Civil Rights
It should be noted that the enjoyment of rights by "white citizens" was spoken of in the Civil Rights Act as a pre-existing condition. This historical fact could not be denied, even by the Radical Republicans during Reconstruction. From the moment of their independence from Great Britain, the former subjects of the English Crown became Citizens endowed with the right of self-government, and as such, they were viewed by law as "joint tenants in the sovereignty" possessed by their respective States.(28) The rights naturally possessed by the American people were described as "unalienable"(29) in the Declaration of Independence. Not only was it impossible for Congress, being a mere agent of the people of the States, to ascribe rights to the sovereign, but it was permanently prevented by the first ten Amendments to the Constitution from lawfully regulating or otherwise interfering with the enjoyment of these rights in any way. There was no need whatsoever of enacting a statute to protect Citizens in the free exercise of their rights, for such protection was already written into the body of the Constitution at Article IV, Section 2, which is known as the "Comity Clause": "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
Quite unlike a natural or inalienable right, a civil right is "a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the law that creates it."(30) The source of the "civil rights" granted to the freedmen was not the Common Law which had been brought to this continent by the first European settlers, but the President's nearly unlimited, and wholly unconstitutional "war power" — martial law. The Republicans' assertion that the Civil Rights Act would elevate the "persons" mentioned therein to the same political status enjoyed by White State Citizens, or that such statutory units could ever be incorporated into the sovereign people of the States was a poorly concealed ruse, for it is impossible for a conferred and artificial status to ever be equal to a natural and original status. Justice Taney's observation in the Scott v. Sandford decision was therefore vindicated by the Radicals themselves — that Blacks in America were historically and legally "a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."
Endnotes
1. The Act read in part as follows:
Section 1. That if, during the present or any future insurrection against the Government of the United States after the President of the United States shall have declared by proclamation that the laws of the United States are opposed and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the power vested in the marshals by law, any person, or persons, his, her, or their agent, attorney, or employee shall purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein, or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned....
Section 3. The proceedings in court shall be for the benefit of the United States and the informer equally.
Section 4. That whenever hereafter, during the present insurrection against the Government of the United States, any person claimed to be held to labor or service under the law of any State shall be required or permitted by the person to whom such labor or service is claimed to be due, or by the lawful agent of such person, to take up arms against the United States, or shall be required or permitted by the person to whom such labor or service is claimed to be due, or his lawful agent, to work or to be employed in or upon any fort, navy-yard, dock, armory, ship, intrenchment, or in any military or naval service whatsoever against the Government and lawful authority of the United States, then, and in every such case, the person to whom such labor or service is claimed to be due shall forfeit his claim to such labor, any law of the State or of the United States to the contrary notwithstanding. And, whenever thereafter the person claiming such labor or service shall seek to enforce his claim, it shall be a full and sufficient answer to such claim that the person whose service or labor is claimed had been employed in hostile service against the Government of the United States contrary to the provisions of this act (Statutes at Large, Volume XII, page 1266).
Section One of the above Act remains on the books at Title 50, United States Code, Section 212.
2. Birkhimer, Military Government, pages 182-183.
3. Statutes at Large, Volume XII, pages 820-821.
4. "A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam" (Black's Law Dictionary [Sixth Edition], page 793; emphasis in original).
5. Birkhimer, Military Government, page 196.
6. Hugh McCulloch, who had replaced Salmon P. Chase as Secretary of the Treasury in 1865, observed, "I am sure I sent some honest agents South; but it sometimes seems very doubtful whether any of them remained honest very long" (quoted by Whitelaw Reid, After the War: A Southern Tour, May 1, 1865 to May 1, 1866 [Cincinnati, Ohio: Moore, Wilstach, and Baldwin, 1866], pages 204-205; emphasis in original).
7. Lincoln, address to Congress, 17 July 1862; quoted by Davis, Rise and Fall of the Confederate Government, Volume II, pages 169-170.
8. Seward, quoted by Piatt, Memoirs of Men Who Saved the Union, page 150.
9. Lincoln, letter to James C. Conkling, 26 August 1863; in Basler, Collected Works of Lincoln, Volume VI, page 407.
10. Statutes at Large, Volume XIII, pages 507-509.
11. William H. Barnes, History of the Thirty-Ninth Congress of the United States (New York: Harper and Brothers, Publishers, 1868), pages 104-106.
12. W.E. Burghardt DuBois, article: "The Freedmen's Bureau," Atlantic Monthly, Volume LXXXVII (1901), pages 357, 358, 359.
13. U.S. Constitution, Article I, Section 8, Clause 17.
14. John W. Burgess, Reconstruction and the Constitution (New York: Charles Scribner's Sons, 1902), page 65.
15. Thomas A. Hendricks, quoted by Barnes, History of the Thirty-Ninth Congress, pages 108-109, 112.
16. Hendricks, quoted by Barnes, op. cit., pages 116-119.
17. Burwell C. Ritter, quoted by Barnes, op. cit., page 163.
18. Andrew Johnson, veto message to the Senate of the United States, 19 February 1866; quoted by Barnes, op. cit., pages 165-168.
19. Hummel, Emancipating Slaves, pages 318-319.
20. See Chapter Twenty-Three.
21. Statutes at Large, Volume XIV, page 27.
22. Op. cit., page 173.
23. Garrett Davis, quoted by Barnes, History of the Thirty-Ninth Congress, pages 199, 202.
24. Andrew J. Rogers, quoted by Barnes, op. cit., pages 222-223.
25. Willard Saulsbury, quoted by Barnes, op. cit., page 287.
26. James McDougall, quoted by Barnes, op. cit., pages 287-288.
27. Johnson, veto message of 27 March 1866; in Richardson, Messages and Papers of the Presidents, Volume VIII, pages 3603, 3610-3611.
28. Chisholm v. Georgia (1793), 2 U.S. 419, 471-472, 1 L.Ed. 440, 463.
29. "Unalienable. Inalienable; incapable of being aliened, that is, sold and transferred.... Rights which can never be abridged because they are so fundamental" (Black's Law Dictionary [Sixth Edition], page 1523).
30. Nickell v. Rosenfield (1927), 82 Cal. App. 369, 375; 255 P. 760.
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