A Documentary History of the American Civil War Era : Volume 1, Legislative Achievements [1 ed.] 9781572339279, 9781572338692

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A Documentary History of the

A merican Civil War Era

A Documentary History of the

A merican Civil War Era Volume

1

Legislative Achievements Edited by Thomas C. Mackey Voices of the Civil War

The University of Tennessee Press / Knoxville

The Voices of the Civil War series makes available a variety of primary source materials that illuminate issues on the battlefield, the home front, and the western front, as well as other aspects of this historic era. The series contextualizes the personal accounts within the framework of the latest scholarship and expands established knowledge by offering new perspectives, new materials, and new voices.

U

Copyright © 2012 by The University of Tennessee Press / Knoxville. All Rights Reserved. Manufactured in the United States of America. First Edition.

Library of Congress Cataloging-in-Publication Data A documentary history of the American Civil War era / edited by Thomas C. Mackey. — 1st ed. p. cm. Includes bibliographical references and index. ISBN 978-1-57233-927-9 — ISBN 1-57233-927-6 1. United States—Politics and government—1861–1865—Sources. 2. United States—History—Civil War, 1861–1865—Sources. I. Mackey, Thomas C., 1956– E459.D53 2013 973.7—dc23 2012026779

For Harold M. Hyman and William E. Nelson With gratitude and thanks

Contents Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Introduction: A Documentary History of the American Civil War Era . . . . . xi

Volume 1 Legislative Achievements

Fugitive Slave Act, September 18, 1850 . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Kansas-Nebraska Act, May 30, 1854. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Crittenden Compromise, December 18, 1860 . . . . . . . . . . . . . . . . . . . . . . 29 Proposed Thirteenth Amendment, 1860. . . . . . . . . . . . . . . . . . . . . . . . . . 33 Lincoln’s Proclamation, April 15, 1861. . . . . . . . . . . . . . . . . . . . . . . . . . 37 Magoffin and Kentucky Neutrality, April 16, May 16, 1861. . . . . . . . . . . . . 39 Proclamations on Blockade and Marque, April 19, 1861 . . . . . . . . . . . . . . . 41 Crittenden-Johnson Resolutions, July 22 and 23, 1861 . . . . . . . . . . . . . . . . 45 First Confiscation Act, August 6, 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Seditious Conspiracy Act, July 31, 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Abolishment of Slavery in the District of Columbia Act, April 16, 1862. . . . . 51 Confederate Conscription Act, April 17, and “20 Negro” Amendment, October 11, 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Homestead Act, May 20, 1862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Pacific Railroad Act, July 1, 1862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Morrill Land Grant Act, July 2, 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Non-issued Lincoln Veto to Second Confiscation Act, July 12, 1862 . . . . . . . 85 Supplement, Abolishment of Slavery in the District of Columbia Act, July 12, 1862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Judiciary Act, July 15, 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Militia Act, July 17, 1862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Second Confiscation Act, July 17, 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Second Confiscation Act Supplement, July 17, 1862 . . . . . . . . . . . . . . . . . 101

West Virginia Act, December 31, 1862 . . . . . . . . . . . . . . . . . . . . . . . . . 103 National Banking Act, February 25, 1863. . . . . . . . . . . . . . . . . . . . . . . .107 Federal Conscription Act, March 3, 1863. . . . . . . . . . . . . . . . . . . . . . . . 129 Habeas Corpus Act, March 3, 1863 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Freedmen’s Bureau Act, March 3, 1865 . . . . . . . . . . . . . . . . . . . . . . . . . 145 Thirteenth Amendment, December 6, 1865 . . . . . . . . . . . . . . . . . . . . . . 149 President Johnson’s Veto, Freedmen’s Bureau Act, February 19, 1866. . . . . . 151 President Johnson’s Veto, Civil Rights Act, March 27, 1866. . . . . . . . . . . . 159 Civil Rights Act, April 9, 1866. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Freedmen’s Bureau Act, July 16, 1866 . . . . . . . . . . . . . . . . . . . . . . . . . . 173 President Johnson’s Veto, Freedmen’s Bureau Act, July 16, 1866 . . . . . . . . . 179 Judicial Circuits Act, July 23, 1866. . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Habeas Corpus Act, February 5, 1867 . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Reconstruction Act [First], March 2, 1867 . . . . . . . . . . . . . . . . . . . . . . . 191 President Johnson’s Veto, First Reconstruction Act, March 2, 1867. . . . . . . 195 Tenure of Office Act, March 2, 1867. . . . . . . . . . . . . . . . . . . . . . . . . . . 209 President Johnson’s Veto, Tenure of Office Act, March 2, 1867. . . . . . . . . . 213 Anti-Peonage Act, March 2, 1867. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Reconstruction Act [Second], March 23, 1867. . . . . . . . . . . . . . . . .223 President Johnson’s Veto, Second Reconstruction Act, March 23, 1867 . . . . 229 Reconstruction Act [Third], July 19, 1867. . . . . . . . . . . . . . . . . . . . . . . . 235 President Johnson’s Veto, Third Reconstruction Act, July 19, 1867. . . . . . . . 239 Articles of Impeachment, President Andrew Johnson, February 24, 1868. . . 249 Reconstruction Act [Fourth], March 11, 1868. . . . . . . . . . . . . . . . . . . . . 261 Fourteenth Amendment, July 9, 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Fifteenth Amendment, February 3, 1870 . . . . . . . . . . . . . . . . . . . . . . . . 265 Enforcement Act, May 30, 1870. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Enforcement Act, April 20, 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Civil Rights Act, March 1, 1875. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 Congressional Electoral Commission, January 29, 1877 . . . . . . . . . . . . . . 287 Posse Comitatus Act, June 18, 1878 . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Chronology .

295 Selected Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Acknowledgments This project did not happen without the help of numerous people and they have earned mention and thanks in this acknowledgment. Of course, all errors of omission and commission in this work are mine alone. A good place to start (and a good place to work) would be the University of Tennessee Press. Scot Danforth, director of the Press and specialist in the era of the United States Civil War, has offered encouragement and been patient with this project and with me. He has cheerfully answered all questions while always nudging the project forward. The editor of the Voices of the Civil War series for the University of Tennessee Press, Peter Carmichael, has assisted from first discussions to final draft. His help and insights have been most welcome, and the overall project is better because of his suggestions and editor’s eye. A special thanks to the anonymous readers is due; their honest, blunt assessments and recommendations improved the manuscript and assisted in developing my understanding of what this project could and could not achieve. I have had the good fortune to receive assistance on this project from graduate students at the University of Louisville and summer undergraduate research assistants as well. Working on the document collection and editing became a “teaching moment” for graduate students James D. Kendall, William E. Hardy, James Osborne, and John Spenlau, and undergraduates Sarah J. Bodell and, especially, James B. “Ben” Shepard. In the History Department at the University of Louisville, John McLeod should be singled out for his continual good humor and encouragement when he served as chair of the department and since. At the Brandeis School of Law at the University of Louisville, Dean James Chen and Associate Deans Tom Blackburn and Tony Arnold support my field of United States legal history as both a research endeavor and as a teaching area. The History Department staff of Jon-Paul Moody and Lee Keeling has been their normal helpful, professional, and supportive selves. July 2011 marks thirty years that I have known Kelly Kane, even though we only reconnected and married twelve years ago. To her and for her support, encouragement, fussing, help, and good sense, I cannot offer enough thanks nor express my wide and deep gratitude for her agreeing to be us. For how she

managed to hold down a full-time job, attend four years of law school at night, pass the bar, and now work as an attorney-at-law, all the while dealing with me, she should receive all accolades, huzzas, honors, and thanks. In academia, students do not thank master professors enough. As a result, these volumes are dedicated to the two extraordinary professors, critics, mentors, and friends with whom I have had the great good fortune to work and to learn from: Dr. Harold M. Hyman, the William P. Hobby Professor of History, Emeritus, at Rice University, and Dr. William E. Nelson, the Judge Edward Weinfeld Professor of Law at the New York University School of Law. Each a New Yorker, both personify the best that the history profession offers to students willing to be challenged and changed. My good kismet to work with Harold Hyman both enriched and reshaped me in graduate school many years ago. And my professional and personal debts to Bill Nelson and his family (Elaine, Leila, and Greg) are far too numerous to list. To Harold and Bill, I dedicate these volumes as a token of my highest esteem and respect. Thanks guys.

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Documentary History of the American Civil War Era

Introduction: A Documentary H istory of the A merican Civil War Er a I

In 1881, Union Civil War veteran, distinguished law author and attorney, and later Associate Justice of the United States Supreme Court, Oliver Wendell Holmes Jr. published a little book entitled, The Common Law. Although little read in its entirety today, the point of the book continues to influence law academics, historians of the law, and jurisprudents to the current day. Holmes possessed a deep understanding of law and of history and he understood those two topics of intellectual endeavor to be symbiotic—mutually reinforcing. In the famous first paragraph of The Common Law, Holmes wrote, “ . . . The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Holmes argued that law is, and was, embedded in culture, and that law and public policy were not some set of eternal rules that could only be divined through case law and statutes. He then shifted his focus a bit and argued for the need to understand history to understand law and public policy. Holmes explained: The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two new products at every stage. The substances of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depends very much upon its past.1

This collection of documents, headnotes, and introductory essays enriches the study of the middle period of the nineteenth-century United States by providing students and scholars access to the most important (and sometimes

overlooked and difficult to locate) public policy and judicial decisions in the era of Abraham Lincoln. If, as Holmes says, the law embodies a nation’s history, then it is necessary for students of history to confront and consider the law and the public policies that defined each era. This set of documents defines not only the historical context of that past era but also in at least a few instances—the Thirteenth Amendment, the Civil Rights Act of 1866, the Fourteenth Amendment, and the 1873 decision by the United States Supreme Court in the Slaughter-House Cases— these public policies established a new baseline for federalism and for individual and group rights in the post–Civil War/Reconstruction United States. But documents and evidence do not speak for themselves; thus, the introductory headnotes before each document explain the historical significance of that document within its context and trace the lasting significance of each. Further, the introductory notes explain why modern audiences will find these documents relevant to their current interests and researches. In “historical methods” courses taught at colleges and universities, historians stress to students just how foreign the past is, even telling their students that “the past is a foreign country.”2 One approach to understanding the past is to consider the legal and public policy choices each generation made and to explore why they made those choices. To modern audiences, it is difficult to grasp and understand just how breathtaking, how extreme (“radical” in the parlance of the day) the April 16, 1862, abolishment of slavery in the District of Columbia really was for that generation within its historical context. With a wave of the hand and a dismissive “whatever,” today’s students too often ignore the past. But that decision, which appears to moderns as nothing more than simple justice, thrilled large parts of the white majority northern and midwestern populations and confirmed the worst fears of the white southerner population. That decision instilled hope in the African American population and their allies that maybe, just perhaps maybe, the administration of President Lincoln was not as inept and slow on the issue of race relations and slavery as they had led themselves to believe. Thus, that understanding—that recapturing, of the excitement and fear of new public policies—is the challenge of history in general, and one of the particular challenges confronting political and legal historians. It is a truism that change happens. But, in the worst of times in a nation’s history, a time of civil war, change occurred. Not just cultural or social change, but important political and legal change occurred and added a new war goal for the Union, such as President Lincoln’s January 1, 1863, addition of uncompensated emancipation to the primary Union goal of preserving the nation. The addition of the Fourteenth Amendment to the 1787 Constitution changed the very foundation of the nation, and most legal and historical scholars now consider the document and its amendments a second United States Constitution. Though not denying the importance of the military events (as Lincoln himself stated in his second inaugural, “The progress of our arms, upon which all else chiefly depends”), the xii

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war did not endure. However, in contrast to the war, these political, legal, and judicial decisions chronicling change from that era lasted well past their immediate political and legal moment and affected and affect Americans from their times to the present; change happened, and those changes mattered, and still matter.

II

Some persons embraced the changes and reforms that rattled within the United States before, during, and after the four years of Civil War, while other persons resisted those changes. The pace of change and the unexpected directions of reform bewildered many, perhaps even the majority of, the sensitive and acute observers of the time. Starting in March 1861, residing in the Executive Mansion at the center of that destructive and constructive hurricane of war and change, was the Kentucky-born, Indiana-raised, Illinois attorney, Abraham Lincoln. Popularculture writers and textbooks do not credit Lincoln enough for his appreciation of history and history’s random nature. As a regional politician, a senatorial candidate, a presidential candidate, a president-elect, and the president, Lincoln understood that his every action, word, clause, sentence, paragraph, and speech would be analyzed and parsed for meaning and nuance. For this reason, Lincoln rarely spoke informally or off-the-cuff, preferring to explain himself and his political positions through his writings, which he pored over, wrote, and rewrote. Although Lincoln had his occasional internal doubts as his moods rose and fell and as the Union’s fortunes rose and fell and rose again, the president possessed the ability to grasp the significance of his unique historical moment. This appreciation can be gathered from the closing of his much underappreciated (and included in this collection) December 1, 1862, message to Congress. He began the last paragraph of that message saying, “Fellow-citizens, we cannot escape history.” Lincoln continued, “We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation.” He closed that message by explaining and defending his September 1862 decision to issue a preliminary emancipation proclamation; by doing so, he educated the country about the benefits of adding this second war goal to the Union cause. Lincoln understood that emancipation was not popular in the North and Midwest, but he also understood that emancipation aided his cause and hurt the southern cause. For the President, these long-term benefits outweighed the short-term costs. Escaping history and the analysis and assessments of historians was not possible, and Lincoln knew it. So, regardless of later assessments, Lincoln acted both to preserve the country while, in time, adding emancipation to the Union’s war goals. He also at least suspected, perhaps knew, that foundation-shattering political and legal change engulfed him and his contemporaries. In that same message Introduction

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to Congress, Lincoln pointed out that, “The dogmas of the quiet past, are inadequate to the stormy present.” In such difficult times, change constituted the only constant. “The occasion is piled high with difficulty, and we must rise with the occasion,” Lincoln continued. He also understood that the new context and the new times brought about by all of the changes required—perhaps demanded— new imagination. As Lincoln put the issue: “As our case is new, so we must think anew, and act anew.” This document collection presents the raw “stuff” of Lincoln’s era, full-text documents of the political, public policy, and judicial voices of the Civil War era so that students, scholars, and interested readers can measure and gauge how that generation met Lincoln’s challenge to “think anew, and act anew.”

III

These three volumes of statutes, speeches, letters, party platforms, and judicial decisions from the era of the Civil War and Reconstruction fill a gap in the current literature of the period; it also provides modern researchers, graduate students, undergraduate students, and the general public with access to key public policy documents of that crucial era in United States history. In the last thirty to forty years, social, cultural, and military historians of the United States have done a fine job of interpreting and broadening the scope of topics and insights into the era of the Civil War and Reconstruction. At the same time, the political, legal, and constitutional history of that era has suffered and become a bit (actually more than a bit) lost. With the recent successful bicentennial celebration of Abraham Lincoln’s birth, a new wave of interest in Lincoln and his times has emerged in both the popular and the scholarly press. Lincoln’s bicentennial has been followed by sesquicentennial remembrances, conferences, and publications focused on the Civil War years as well. This collection of documents contributes to the Lincoln bicentennial outburst of publications as well as highlights the public policy and judicial decisions of the Civil War era during the sesquicentennial. These primary sources provide an indispensable resource for scholars, teachers, students, and the general public. One goal for this book is to make available to a wide audience public policy documents that are known and appreciated by legal historians and associated scholars of the era. For example, documents such as the Civil Rights Act of 1866 or the key United States Supreme Court decision by Chief Justice Salmon P. Chase in Texas v. White (1869) that defined the nature of the nation are included, but these documents are seldom, if ever, reprinted. As a result, these sources are often difficult to access for the average historian, much less the general reader. Each document is cited to its source and a headnote essay is included with each. The headnote essay places the document within its historical context and comments on the significance of the document as well. These volumes bring back xiv

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into the mainstream of the middle period of nineteenth-century United States studies the political, legal, and constitutional issues of public policy over which that generation of Americans fought and died. As a result, this collection introduces readers and students to the richness of the Civil War/Reconstruction–era primary sources and provides an overview of the major, minor, better-known, and lesser-known documents of that era and of the issues that confronted policymakers and their publics.

IV

It is important to state what these volumes are not: it is not a definitive compilation of documents from the Civil War era. To include all federal, all state, all county, all local, and then all of the personal documents of the general public and leaders of that era would entail publishing whole archives—and then some. Instead, this collection is much more humble. It focuses on the most important political, judicial, and public policy decisions of that time. Another scholar might choose a slightly different list of documents to include and yet another might shift the focus of the headnote essays, all of which are understandable. Instead, this set of documents reflects some best known then, and best known now (at least to specialists), documents and decisions, knowing that even in the area of public policy and judicial decisions, this list is not complete. It is not meant to be complete, just representative. For example, some might argue that the Judicial Circuits Act of 1866 or Kentucky Governor Beriah Magoffin’s April 16, 1861, response to President Abraham Lincoln’s call for troops from all of the states including Kentucky to put down the insurrection are minor documents; well, that is the point. Such statutes and policies mattered at the time and their inclusion here is aimed to help readers recapture the obvious and some of the less obvious yet significant and emotional points of contention of that crucial era. To make sense of this jumble of public policies, political statements, and judicial decisions, these primary sources are divided into three thematic groupings, and then arranged chronologically within each group: volume 1, Legislative Achievements, contains legislation passed in response to the turmoil churning through the country on the brink of, during, and in the wake of the Civil War; volume 2, Political Arguments, contains voices of politicians, political party platforms, and administrative speeches; and volume 3, Judicial Decisions, provides the reader with a plethora of judicial opinions and verdicts as the Civil War raged on the battlefield and in the courtroom. Each of these three volumes includes well-known documents such as the Homestead Act of 1862, Jefferson Davis’s inaugural address, Lincoln’s two inaugural addresses, and the majority decision and dissents in the 1857 Dred Scott decision. Such documents are included because students and scholars will want to find these “greatest hits” in such a volume. Also included in this collection are important, even fundamental, documents and Introduction

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public policy decisions that are far less well known to most general readers and even some scholars of the period. For example, the previously mentioned April 16, 1862, abolishment of slavery in the District of Columbia Act overjoyed the Radical Republicans, worried the moderates, and horrified the Democrats and the South even though it occurred at a low point in the war for the Union. Although the abolition of slavery in the District may have been more symbolic than substantive (unless one was an African American freed by the statute, of course), nevertheless, it was an important symbol of the shifting goals of the war, and a hint of what race relations might look like in the future should the Union be successful. Party platforms were far more important public policy documents in the nineteenth century than they are in the early twenty-first century, and they need to be read for the stances the political parties took (and did not take) on the pressing issues of the day. President Andrew Johnson’s May 29, 1865, Proclamations of Amnesty and Reconstruction constituted a major turning point in the Reconstruction of the nation, and yet it remains little known, read, analyzed, or appreciated. Judicial decisions, too, mattered more to that generation than they do now, and perhaps no decision of the United States Supreme Court needs to be better known and appreciated than Texas v. White (1869). In that decision, the majority of the justices redefined the nature of the nation and settled a political and constitutional debate that had raged in United States political theory since the 1787-1788 political battles over the ratification of the Constitution. By raising the Lincoln administration’s belief in a perpetual Union/nation and the idea that the nation of the United States existed prior to the formation of the 1781 Articles of Confederation to constitutional principle, Chief Justice Chase and the Supreme Court’s majority provided a new constitutional basis for the building of modern America. Then add in section one of the 1868 Fourteenth Amendment, which reconstituted and rebalanced the powers and duties of the states and the nation (United States federalism), as well as established a new basis and definition of national and state citizenship, and modern nationalism comes into view. Of course not everyone everywhere accepted these decisions and changes; each decision met with stiff resistance and, at times, fierce debate. But, standing back, historians have discerned a pattern of political, legal, and constitutional changes that these public policies and judicial decisions reflect. These volumes make these primary sources accessible for further analysis. Volume One, Legislative Achievements, contains some of the most significant and lasting public policy documents from the era of the Civil War, beginning with the controversial September 18, 1850, Fugitive Slave Act and concluding with the June 18, 1878, Posse Comitatus Act. Both military and nonmilitary legislation is included in this section, such as the April 19, 1861, proclamations by President Abraham Lincoln declaring a naval blockade of Southern ports and, ironically on the same day, the president of the so-called Confederate States of America, Jefferson Davis’s proclamation offering Letters of Marque authorizing xvi

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blockade runners and privateers to attack Northern shipping and trade. Other important pieces of legislation are included, such as the Confiscation Acts of 1861 and 1862, the 1862 Confederate Conscription Act (with the later “20 Negro” exemption), and the 1863 Federal Conscription Act. Nonmilitary legislation includes statutes that looked forward in time to the world after the war, such as the 1862 Homestead Act, the Pacific Railroad Act, the Civil Rights Act of 1866, and the text of all four of the Reconstruction Acts. Also included are the three constitutional amendments added in the era—the 1865 Thirteenth Amendment, the 1868 Fourteenth Amendment (the second American Constitution), and the 1870 Fifteenth Amendment. Volume Two, Political Arguments, contains the party platforms of the major and some minor parties from 1856 to 1876. Also included in this section are documents such as Robert Edward Lee’s April 20, 1861, letter of resignation from the U.S. Army, a few of the key speeches by the rising attorney-politician from Illinois, Abraham Lincoln, and (completely consistently) a selected letter on the “American Question” written by a European observer of the events in the United States, Karl Marx. Other documents include examples of the 1860-1861 state ordinances of secession and key speeches by Jefferson Davis and, on the other side of the coin, speeches by the Republican leader in the House of Representatives from Pennsylvania, Thaddeus Stevens, on emancipation and Reconstruction. Volume Two also divides the documents into presidential administrations, including one document from Confederate President Jefferson Davis telling his congress that the Southern cause was “just and holy.” This section includes documents from the presidencies of James Buchanan, Abraham Lincoln, Andrew Johnson, Ulysses S. Grant, and Rutherford B. Hayes. Classic documents such as Lincoln’s September 22, 1862, announcement of forthcoming emancipation and the January 1, 1863, Emancipation Proclamation, are included, as well as lesserknown but important documents such as Francis Lieber’s April 23, 1863, revised law code for war, General Order 100, and Attorney General James Speed’s 1865 opinion supporting the Andrew Johnson administration’s decision to try the Lincoln murder conspirators by special military commission and not in the civilian courts. Volume Three, Judicial Decisions, constitutes the most unexpected section of documents from the era of the Civil War and Reconstruction for many readers. It may seem odd to include a section on judicial opinions because of the old rule of thumb in wartime, inter arma [enim] silent leges—in times of war, the law falls silent. But in the United States, the federal courts are not just courts of law; rather, they constitute a third branch of government. Thus, the judiciary generally, and, in particular, the United States Supreme Court, is a policy-making institution. However, unlike Congress and the President, which are accountable to the country through calendared elections and which actively make policy, courts are passive. Cases and disputes have to make their way through the judicial process to Introduction

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reach decision by higher appellate courts. As a result, a time lag exists between the moment an action is taken or decided upon by Congress, by a president, by a state, or by an individual and the moment that issue reaches a trial court. Only after all of those actions are taken and a decision rendered at trial can the issues become ripe for an appellate court decision. In times of crisis, like war, judges and justices prefer to leave the “hot” issues of the day to the more accountable political branches and delay or refuse to involve themselves in controversial issues that might affect or hinder the nation’s war efforts. But once the fighting has ceased and genuine legal and constitutional issues reach their trial and appellate dockets for argument and decision, judges and justices are much more apt to take cases for hearing and, on occasion, rebuke the other branches for their actions during wartime. Judicial decisions, especially those of the United States Supreme Court, in turn, become national public policy. This pattern of judicial decision making can be discerned before, during, and after the United States Civil War. As a result, it is proper that this collection contains a series of state and federal judicial appellate opinions. Like the previous sections, this section contains some of the classic judicial decisions of the time, such as the 1857 decision in Dred Scott, the 1861 Ex parte Merryman decision, the 1869 decision in Texas v. White, and the first judicial interpretation of the 1868 Fourteenth Amendment, the 1873 Slaughter-House Cases. Other decisions are well known to specialists but deserve wider readership and discussion; decisions such as the October 1859 Jefferson County, Virginia, indictment of John Brown, the decision in the 1864 case of political and seditious activity in Ex parte Vallandigham, and the 1867 state and 1878 federal case that upheld the separation of the races in public accommodations (and thus constituted the common law of common commerce) long before the more notorious, also included, 1896 case of Plessy v. Ferguson. These judicial voices constitute a lasting and often overlooked aspect of the age of Abraham Lincoln.3 This volume remedies the lack of access to judicial decision making of the era and adds back into the larger literature these judicial decisions as part of the political voices of the middle period of United States history. Readers will notice that more Union documents are present in this work than Confederate documents. To “think anew, and act new,” as Lincoln argued, guided the selection of documents because some public policy decisions, like the Fourteenth Amendment, have cast long, important shadows on United States law and culture. While the Confederate Congress and the state legislatures in the Southern states debated numerous issues, their efforts often came to naught. For example, on January 18, 1862, Confederate President Jefferson Davis signed a January 13 act that the Confederate Congress had passed to organize the Confederate “Territory of Arizona.”4 This pipe dream never became a reality. In fact, this act demonstrates the falsehood of Southerners’ claims (and modern apologists for the Confederacy) that they did not seek to expand the Confederacy with slavery. Members of the Confederate Congress considered and proposed westxviii

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ward expansion, and it was an open Southern “secret” that Cuba formed a tempting target for Southern expansion for the purpose of protecting their “domestic institutions,” the polite euphemism for slavery as a form of race relations. But this Confederate public policy proved to be but a paper tiger; no such Confederate territory of Arizona ever emerged and breathed political life. Thus, this Confederate statute changed nothing, had no effect, and it is not included. Should a later supplement to this volume be appropriate, then such a document might be included; for now, this collection limits itself to those policies and statements that actually made a difference at the time, resonated among the people, and created public policy ripples through United States politically, constitutionally, and culturally. Several groups of readers will find this work useful. It complements and expands upon every public and private college and university and law school library’s collection of nineteenth-century United States history and law. Specialists on the middle period of the nineteenth century will consult this work to support their ongoing research projects. Scholars in United States history, legal and constitutional historians, law professors, and political science and public policy programs at the college and university levels will be interested in this collection for access to primary sources. It can serve as a reference work and a document book to support either an undergraduate course in colleges or universities or graduate seminars in the era of the Civil War and Reconstruction. These volumes differ from other collections of documents because it focuses only on public policy and judicial issues. Further, for a group of nonspecialist readers that can be called better-than-the-usual–Civil War/Reconstruction “buffs” as well as members of the numerous Civil War roundtables that exist across the country (and even Europe), these volumes will be useful because they include difficult to locate primary sources on public policy. These nonprofessional historians do creative work and possess a serious interest in the field larger than the old-fashioned “drum and trumpet” military history too often solely associated with the Civil War. Thus, all of these different groups will find material here that will challenge and enrich their work and understanding of the period.

V

Editing of the documents has been as minimal and as unobtrusive as possible. Nevertheless, one issue arose from the decision to include the full text of the selected documents. Historians and other scholars understand that acceptable spelling has varied over time; but, spelling variations may surprise contemporary readers and students. For example, in the nineteenth century, “defence” constituted acceptable spelling of the modern “defense.” Other examples include “unfrequent” and “infrequent”; “practise,” and “practice”; and, ”intrusted,” and “entrusted.” As a result, I have left the original spelling in place, only occasionally Introduction

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employing the editors’ notation of “[sic]” when needed to indicate that the irregular spelling is in the original document.

Notes

1. Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1881), 1-2. 2. See David Lowenthal, The Past is a Foreign Country (New York: Cambridge University Press, 1985). 3. See Orville Vernon Burton, The Age of Lincoln (New York: Hill & Wang, 2007). 4. Journal of the Congress of the Confederate States of America, 1861-1865 (Washington, D.C.: Government Printing Office, 1904-1905), vol. 1: 475, 551, 61220, 635, 660-91.

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Volume

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Legislative Achievements

Introduction This first section contains some of the best-known nonmilitary and military public policies enacted before, during, and after the era of the United States Civil War and Reconstruction. It opens with what turned out to be the most controversial part of the so-called Compromise of 1850, the Fugitive Slave Act of 1850, and closes with the Posse Comitatus Act of 1878, which limited federal and military interference in overseeing voting in localities in the southern states. In between can be found some of the “great” documents of the era of Abraham Lincoln that changed the nation, such as the Homestead Act of 1862, the Morrill Land Grant Act of 1862, the National Banking Act of 1863, and, of course, the 1868 Fourteenth Amendment. This section also contains other significant—even crucial—statutes, such as the 1861 Seditious Conspiracy Act, the 1862 Abolition of Slavery in the District of Columbia Act, the 1863 and 1867 Habeas Corpus Acts, all four of the Reconstruction Acts passed by Congress, the 1866 and 1875 Civil Rights Acts, and the 1867 Anti-Peonage Act. Lest anyone think that any one of these statutes passed easily and without opposition, President Abraham Lincoln’s threatened veto message regarding the 1862 Second Confiscation Act is included. President Andrew Johnson’s veto messages on the 1866 Civil Rights Act, the 1866 Freedmen’s Bureau Act, and the first three Reconstruction Acts are also provided in this section, all of which contributed to Congress’ 1868 Articles of Impeachment of President Johnson. Politics not only continued during the 1850s, 60s, and 70s, but political debate and conflict constituted one of the major stories of the era, and these documents suggest that hard-fought battles occurred in Congress as well as on the war fronts. This section of documents also reflects what can happen when southern representatives and senators left the federal Congress when their states allegedly seceded from the nation. Without southern opposition, legislation long bottled-up in Congress passed, such as national modernization of banking and the selling of western lands to white free laborers in the West for homesteads. Prior to the war years, southerners had stalled or simply voted down modernizing proposals like banking reform and national funding for railroad expansion. After early 1861, with southern opposition gone, popular and modernizing statutes, which included the 1862 Homestead Act and the Pacific Railroad Act, became law.

These achievements are even more remarkable because such forward-looking, even progressive, legislation rarely becomes reality during times of war—especially civil wars. Yet, the Republican-dominated federal Congress enacted just such fundamental legislation during the U.S. Civil War. Further, considering that uncompensated emancipation of the African American population occurred because of federal policies—first by executive order of January 1, 1863, the Emancipation Proclamation, and then formally with the ratification of the December 6, 1865, Thirteenth Amendment—Congress provided federal assistance for African Americans transitioning from slavery to freedom. The Freedmen’s Bureau Acts of 1865 and 1866 constitute the first nationally funded and operated social service agency. Though limited, even extremely limited, in its scale and scope, the Freedmen’s Bureau symbolized a new direct relationship between the federal government and individual persons. The agents of the Bureau affected persons within states and without the interference of the states or the localities directly. This era also saw a national commitment (if only briefly, as it turned out) to civil rights of “citizens” embodied in the civil rights acts. It took a “second” Reconstruction in the 1950s and 1960s to create the historical context and the political sensitivities needed to make an enforceable reality the political and legal goals of the 1860s and 1870s civil rights statutes. Only then did equality before the law for all citizens regardless of race start to become a reality. History is not neat, and these advances in public policies can be read as limited advances. Thus, it is not surprising that the Civil War and Reconstruction generation did not achieve all of their goals; perhaps it is more surprising how much they accomplished that looks and sounds “modern.”

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Documentary History of the American Civil War Era

The F ugitive Slave Act, September 18, 1850 U.S. Statutes at Large 9:462–65.

None of the various parts of the so-called “Compromise of 1850” proved more controversial than the new fugitive slave act. For southerners, the price of continued Union with the North and Midwest was greater federal guarantees of the return of their runaway human property. Expanding and increasing the legal process of the return (the rendition) of fugitive slaves, this act provided a whole new and stronger process. Instead of having owners or their agents (the slave catchers) appear before a judicial magistrate as required in the earlier Fugitive Slave Act of 1793, this act made the process of rendition an administrative procedure, not a judicial procedure. In this fashion, concerns about admitting slave testimony, for example, could not be raised because the process was strictly an administrative hearing and not a judicial inquiry. Congress’ goal with this act was to streamline and make more efficient the return of fugitives out of free states and territories where they had been caught and to speed the process of their return to slave states or territories. To that end, this legislation established federal slave commissions to oversee the process of rendition. Section 5 of this act became a point of controversy in free states by authorizing the federal marshals to deputize the local populations in free areas to assist in slave recaptures. Potentially by this section, then, every adult male in free states and territories might have to become a slave catcher or, under Section 7, face a fine of up to $1,000 and six months in jail. Revealing the bias of the act and revealing the extent to which northerners and midwesterners were willing to go to accommodate southerners and placate their fears about their runaway property, Section 8 provided that if the commissions found that the accused runaway before them was indeed a runaway slave, then the commissions received a fee of $10; if, on the contrary, they found the accused runaway to be a free person, then the

commissioners received $5. While intended to limit the problem of runaway slaves, this act actually increased the tension between and among the sections of the country because of its potential to make non–slave owners slave catchers, and because of its procedural uniqueness and biases. In large part because of this act, the larger political crisis of 1850 is called less and less a “compromise” by modern historians and more and more the “armistice” of 1850. Chap. LX.—An Act to amend, and supplementary to, the Act entitled “An Act respecting Fugitives from Justice, and Persons escaping from the Service of their Masters,” approved February twelfth, one thousand seven hundred and ninety-three. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any act of Congress, by the Circuit Courts of the United States, and Who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace, or other magistrate of any of the United States, may exercise in respect to offenders for any crime or offense against the United States, by arresting, imprisoning, or bailing the same under and by the virtue of the thirty-third section of the act of the twenty-fourth of September seventeen hundred and eighty-nine, entitled “An Act to establish the judicial courts of the United States” shall be, and are hereby, authorized and required to exercise and discharge all the powers and duties conferred by this act. Sec. 2. And be it further enacted, That the Superior Court of each organized Territory of the United States shall have the same power to appoint commissioners to take acknowledgments of bail and affidavits, and to take depositions of witnesses in civil causes, which is now possessed by the Circuit Court of the United States; and all commissioners who shall hereafter be appointed for such purposes by the Superior Court of any organized Territory of the United States, shall possess all the powers, and exercise all the duties, conferred by law upon the commissioners appointed by the Circuit Courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act. Sec. 3. And be it further enacted, That the Circuit Courts of the United States shall from time to time enlarge the number of the commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act. Sec. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugi6

Documentary History of the American Civil War Era

tives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled. Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant, or other process, when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of such claimant, on the motion of such claimant, by the Circuit or District Court for the district of such marshal; and after arrest of such fugitive, by such marshal or his deputy, or whilst at any time in his custody under the provisions of this act, should such fugitive escape, whether with or without the assent of such marshal or his deputy, such marshal shall be liable, on his official bond, to be prosecuted for the benefit of such claimant, for the full value of the service or labor of said fugitive in the State, Territory, or District whence he escaped: and the better to enable the said commissioners, when thus appointed, to execute their duties faithfully and efficiently, in conformity with the requirements of the Constitution of the United States and of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; with authority to such commissioners, or the persons to be appointed by them, to execute process as aforesaid, to summon and call to their aid the bystanders, or posse comitatus of the proper county, when necessary to ensure a faithful observance of the clause of the Constitution referred to, in conformity with the provisions of this act; and all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose; and said warrants shall run, and be executed by said officers, any where in the State within which they are issued. Sec. 6. And be it further enacted, That when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district, or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge, or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner; and upon satisfactory Legislative Achievements

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proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever. Sec. 7. And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Ter8

Documentary History of the American Civil War Era

ritories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed. Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of the said District and Territorial Courts, shall be paid, for their services, the like fees as may be allowed for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in whole by such claimant, his or her agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid, in either case, by the claimant, his or her agent or attorney. The person or persons authorized to execute the process to be issued by such commissioner for the arrest and detention of fugitives from service or labor as aforesaid, shall also be entitled to a fee of five dollars each for each person he or they may arrest, and take before any commissioner as aforesaid, at the instance and request of such claimant, with such other fees as may be deemed reasonable by such commissioner for such other additional services as may be necessarily performed by him or them; such as attending at the examination, keeping the fugitive in custody, and providing him with food and lodging during his detention, and until the final determination of such commissioners; and, in general, for performing such other duties as may be required by such claimant, his or her attorney or agent, or commissioner in the premises, such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid by such claimants, their agents or attorneys, whether such supposed fugitives from service or labor be ordered to be delivered to such claimant by the final determination of such commissioner or not. Sec. 9. And be it further enacted, That, upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will he rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent, or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may Legislative Achievements

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deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses, as are now allowed by law for transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States. Sec. 10. And be it further enacted, That when any person held to service or labor in any State or Territory, or in the District of Columbia, shall escape therefrom, the party to whom such service or labor shall be due, his, her, or their agent or attorney, may apply to any court of record therein, or judge thereof in vacation, and make satisfactory proof to such court, or judge in vacation, of the escape aforesaid, and that the person escaping owed service or labor to such party. Whereupon the court shall cause a record to be made of the matters so proved, and also a general description of the person so escaping, with such convenient certainty as may be; and a transcript of such record, authenticated by the attestation of the clerk and of the seal of the said court, being produced in any other State, Territory, or district in which the person so escaping may be found, and being exhibited to any judge, commissioner, or other office, authorized by the law of the United States to cause persons escaping from service or labor to be delivered up, shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned. And upon the production by the said party of other and further evidence if necessary, either oral or by affidavit, in addition to what is contained in the said record of the identity of the person escaping, he or she shall be delivered up to the claimant. And the said court, commissioner, judge, or other person authorized by this act to grant certificates to claimants or fugitives, shall, upon the production of the record and other evidences aforesaid, grant to such claimant a certificate of his right to take any such person identified and proved to be owing service or labor as aforesaid, which certificate shall authorize such claimant to seize or arrest and transport such person to the State or Territory from which he escaped: Provided, That nothing herein contained shall be construed as requiring the production of a transcript of such record as evidence as aforesaid. But in its absence the claim shall be heard and determined upon other satisfactory proofs, competent in law. Approved, September 18, 1850.

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K ansas-Nebrask a Act, M ay 30, 1854 U.S. Statutes at Large 10:277–90.

In the history of the United States, a few statutes stand out as constituting true turning points in the nation’s history—this statute is one of those key turning points. In its structure, this statute is a normal enabling act providing for territorial governmental structure as stated in the 1787 Northwest Ordinance. Sections 1-18 provide a governmental structure for the western territory of Nebraska, and Sections 19-36 cover the territory of Kansas, with a final section to ensure that federal relations with the American Indian tribes were not affected by this statute. Yet, this statute caused a firestorm of protest and concern in both the North and Midwest versus the South. Its Senate sponsor, Stephen A. Douglas of Illinois, believed this act would provide access to the great West for immigrants while avoiding the combustible issue of the spread of slavery into the federal territories. In Sections 1 and 19, the statute provides that “the said Territory or any portion of the same, shall be received into the Union with or without slavery, as their constitution may prescribe at the time of the admission” with Sections 10 and 28 providing for the enabling of the fugitive slave acts of 1793 and 1850. Douglas gambled that his solution for the slavery issue in the territories—originally Michigan Senator Lewis Cass’s idea of “popular sovereignty,” that the people of a territory could decide for themselves, somehow, at some point, whether to admit or reject slavery from their localities—would settle the issue. He also gambled that allowing slavery north of the 36° 30´ line, where it had previously been banned, would not cause too much turmoil. In both instances, his gambles failed. Popular sovereignty (or squatter sovereignty, as it was inelegantly described) provided too vague a public policy to reassure anyone and, in fact, it opened the door for proslavery and antislavery settlers to stream into Kansas in order to stake a claim to the land as slavery or not; tensions between these competing groups of settlers resulted in

a low-intensity conflict that included, on May 21, 1856, the sack of Lawrence, Kansas. And by potentially allowing slavery north of that line, Douglas raised the fears of many midwesterners and northerners that, in the words of Salmon P. Chase, a “slave power” existed in the country aligned in a conspiracy to push slavery into the territories and encircle the free labor states and seeking to find a way to push slavery into free states. Because this act became a litmus test on whether a politician or a whole political party supported the expansion of slavery into the federal territories or not, and because the Whig Party sought to avoid the issue altogether, the Whig Party started to unravel. Old Whigs and many northern Democrats who disagreed with Douglas searched for a new political organization that opposed the westward expansion of slavery. A new political organization, an anti–Kansas-Nebraska faction, started to form in late 1854 and early 1855. It became the Republican Party, a sectional political party. Kansas-Nebraska and what it represented about the development of the West and the issue of slavery motivated some people to enter, or reenter, the political arena, in particular a previously one-term congressman and attorney from Illinois, Abraham Lincoln. In his October 16, 1854, Peoria, Illinois, speech in opposition to the Kansas-Nebraska Act, Lincoln voiced his opposition to the slave power, began his drift out of the Whigs to the Republicans, and began to build his political machine and political reputation in Illinois—and, in time, beyond. Douglas hoped that this act might propel him into the Democratic Party nomination for the presidency and eventually the Executive Mansion; instead, the political firestorm set off by the act damaged Douglas’s national political aspirations. Chap. LIX.—An Act to Organize the Territories of Nebraska and Kansas. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all that part of the territory of the United States included within the following limits, except such portions thereof as are hereinafter expressly exempted from the operations of this act, to wit: beginning at a point in the Missouri River where the fortieth parallel of north latitude crosses the same; then west on said parallel to the east boundary of the Territory of Utah, the summit of the Rocky Mountains; thence on said summit northwest to the forty-ninth parallel of north latitude; thence east on said parallel to the western boundary of the territory of Minnesota; thence southward on said boundary to the Missouri River; thence down the main channel of said river to the place of beginning, be, and the same is hereby, created into a temporary government by the name of the Territory of Nebraska; and when admitted as a 12

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State or States, the said Territory or any portion of the same, shall be received into the Union with or without slavery, as their constitution may prescribe at the time of the admission: Provided, That nothing in this act contained shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such time as Congress shall deem convenient and proper, or from attaching a portion of said Territory to any other State or Territory of the United States: Provided further, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or include any territory which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial line or jurisdiction of any State or Territory; but all such territory shall excepted out of the boundaries, and constitute no part of the Territory of Nebraska, until said tribe shall signify their assent to the President of the United States to be included within the said Territory of Nebraska or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed. Sec. 2. And be it further enacted, That the executive power and authority in and over said Territory of Nebraska shall be vested in a Governor who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The Governor shall reside within said Territory, and shall be commander-in-chief of the militia thereof. He may grant pardons and respites for offences against the laws of said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed. Sec. 3. And be it further enacted, That there shall be a Secretary of said Territory, who shall reside therein, and hold his office for five years, unless sooner removed by the President of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his executive department; he shall transmit one copy of the laws and journals of the Legislative Assembly within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each year to the President of the United States, and two copies of the laws to the President of the Senate and to the Speaker of the House of Representatives, to be deposited in the libraries of Congress, and in or case of the death, removal, resignation, or absence of the Governor from the Territory, the Secretary shall be, and he is hereby, authorized and required to execute and perform all the powers Legislative Achievements

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and duties of the Governor during such vacancy or absence, or until another Governor shall be duly appointed and qualified to fill such vacancy. Sec. 4. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the Governor and a Legislative Assembly. The Legislative Assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall, at its first session, consist of twenty-six members, possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. The number of representatives may be increased by the Legislative Assembly, from time to time, in proportion to the increase of qualified voters: Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the council and representatives, giving to each section of the Territory representation in the ratio of its qualified voters as nearly as may be. And the members of the Council and of the House of Representatives shall reside in, and be inhabitants of, the district or county, or counties for which they may be elected, respectively. Previous to the first election, the Governor shall cause a census, or enumeration of the inhabitants and qualified voters of the several counties and districts of the Territory, to be taken by such persons and in such mode as the Governor shall designate and appoint; and the persons so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct; and he shall at the same time declare the number of members of the Council and House of Representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said council districts for members of the Council, shall be declared by the Governor to be duly elected to the Council; and the persons having the highest number of legal votes for the House of Representatives, shall be declared by the Governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election; and the persons thus elected to the Legislative Assembly shall meet at such place and on such day as the Governor shall appoint; but thereafter, the time, place, and manner of holding and conducting all elections by the people, and the apportioning of the representation in the several counties or districts to the Council and House of Representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the Legislative Assembly: Provided, That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days. 14

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Sec. 5. And be it further enacted, That every free white male inhabitant above the age of twenty-one years who shall be an actual resident of said Territory, and shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States and those who shall have declared on oath their intention to become such, and shall have taken an oath to support the Constitution of the United States and the provisions of this act: And provided further, That no officer, soldier, seaman, or marine, or other person in the army or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory, by reason of being on service therein. Sec. 6. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents. Every bill which shall have passed the Council and House of Representatives of the said Territory shall, before it become a law, be presented to the Governor of the Territory; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, to be entered on the journal of each house respectively. If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Assembly, by adjournment, prevents its return, in which case it shall not be a law. Sec. 7. And be it further enacted, That all township, district, and county officers, not herein otherwise provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Nebraska. The Governor shall nominate, and, by and with the advice and consent of the Legislative Council, appoint all officers not herein otherwise provided for; and in the first instance the Governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the Legislative Assembly; and shall lay off the necessary districts for members of the Council and House of Representatives, and all other officers. Legislative Achievements

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Sec. 8. And be it further enacted, That no member of the Legislative Assembly shall hold, or be appointed to, any office which shall have been created, or the salary or emoluments of which shall have been increased, while he was a member, during the term for which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first Legislative Assembly; and no person holding a commission or appointment under the United States, except Postmasters, shall be a member of the Legislative Assembly, or hold any office under the government of said Territory. Sec. 9. And be it further enacted, That the judicial power of said Territory shall be vested in a Supreme Court, District Courts, Probate Courts, and in Justices of the Peace. The Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory annually, and they shall hold their offices during the period of four years, and until their successor shall be appointed and qualified. The said Territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the Supreme Court, at such times and places as may be prescribed by of law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and districts courts, respectively, shall possess chancery as well as common law jurisdiction. Each District Court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law; but in no case removed to the Supreme Court shall trial by jury be allowed in said court. The Supreme Court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed. Writs of error, and appeals from the final decisions of said Supreme Court, shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed one thousand dollars; except only that in all cases involving title to slaves, the said writs of error, or appeals shall be allowed and decided by the said Supreme Court, without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States, from the 16

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decision of the said Supreme Court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom: Provided, that nothing herein contained shall be construed to apply to or affect the provisions to the “act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelfth, seventeen hundred and ninety-three, and the “act to amend and supplementary to the aforesaid act,” approved September eighteen, eighteen hundred and fifty; and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and Laws of the United States as is vested in the Circuit and District Courts of the United States; and the said Supreme and District Courts of the said Territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws, and writs of error and appeal in all such cases shall be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive in all such cases the same fees which the clerks of the district courts of Utah Territory now receive for similar services. Sec. 10. And be it further enacted, That the provisions of an act entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelve, seventeen hundred and ninety-three, and the provisions of the act entitled “An act to amend, and supplementary to, the aforesaid act,” approved September eighteen, eighteen hundred and fifty, be, and the same are hereby, declared to extend to and be in full force within the limits of said Territory of Nebraska. Sec. 11. And be it further enacted, That there shall be appointed an Attorney for said Territory, who shall continue in office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall receive the same fees and salary as the Attorney of the United States for the present Territory of Utah. There shall also be a Marshal for the Territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall execute all processes issuing from the said courts when exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees, as the Marshal of the District Court of the United States for the present Territory of Utah, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services. Sec. 12. And be it further enacted, That the Governor, Secretary, Chief Justice, and Associate Justices, Attorney and Marshal, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of Legislative Achievements

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the United States. The Governor and a Secretary to be appointed as aforesaid, shall, before they act as such, respectively take an oath or affirmation before the District Judge or some Justice of the Peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or & before the Chief Justice, or some Associate Justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices, which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificates shall be received and recorded by the said Secretary among the Executive proceedings; and the Chief Justice and Associate Justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or Secretary, or some Judge or Justice of the Peace of the Territory, who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation shall be taken, certified, and recorded, in such manner and form as may be prescribed by law. The Governor shall receive an annual salary of two thousand five hundred dollars. The Chief Justice and Associate Justices shall each receive an annual salary of two thousand dollars. The Secretary shall receive an annual salary of two thousand dollars. The said salaries shall be paid quarter-yearly, from the dates of the respective appointments, at the Treasury of the United States; but no such payment shall be made until said officers shall have entered upon the duties of their respective appointments. The members of the Legislative Assembly shall be entitled to receive three dollars each per day during their attendance at the sessions thereof, and three dollars each for every twenty miles’ travel in going to and returning from the said sessions, estimated according to the nearest usually travelled route; and an additional allowance of three dollars shall be paid to the presiding officer of each house for each day he shall so preside. And a chief clerk, one assistant clerk, a sergeant-at-arms, and doorkeeper, may be chosen for each house; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day, during the session of the Legislative Assembly; but no other officers shall be paid by the United States: Provided, That there shall be but one session of the legislature annually, unless, on an extraordinary occasion, the Governor shall think proper to call the legislature together. There shall be appropriated, annually, the usual sum, to be expended by the Governor, to defray the contingent expenses of the Territory, including the salary of a clerk of the Executive Department; and there shall also be appropriated, annually, a sufficient sum, to be expended by the Secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the Legislative Assembly, the printing of the laws, and other incidental expenses; and the Governor and Secretary of the Territory shall, in the disbursement of all moneys intrusted to them, be 18

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governed solely by the instructions of the Secretary of the Treasury of the United States, and shall, semi-annually, account to the said Secretary for the manner in which the aforesaid moneys shall have been expended; and no expenditure shall be made by said Legislative Assembly for objects not specially authorized by the acts of Congress, making the appropriations, nor beyond the sums thus appropriated for such objects. Sec. 13. And be it further enacted, That the Legislative Assembly of the Territory of Nebraska shall hold its first session at such time and place in said Territory as the Governor thereof shall appoint and direct; and at said first session, or as soon thereafter as they shall deem expedient, the Governor and Legislative Assembly shall proceed to locate and establish the seat of government for said Territory at such place as they may deem eligible; which place, however, shall thereafter be subject to be changed by the said Governor and Legislative Assembly. Sec. 14. And be it further enacted, That a delegate to the House of Representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the Legislative Assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives, but the delegate first elected shall hold his seat only during the term of the Congress to which he shall be elected. The first election shall be held at such time and places, and be conducted in such manner, as the Governor shall appoint and direct; and at all subsequent elections the times, places, and manner of holding the elections, shall be prescribed by law. The person having the greatest number of votes shall be declared by the Governor to be duly elected; and a certificate thereof shall be given accordingly. That the Constitution, and all Laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union approved March sixth, eighteen hundred and twenty, which, being inconsistent with the principle of non-intervention by Congress with slaves in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States: Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of sixth March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery. Sec. 15. And be it further enacted, That there shall hereafter be appropriated, as has been customary for the Territorial governments, sufficient amount, to be Legislative Achievements

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expended under the direction of the said Governor of the Territory of Nebraska, not exceeding the sums heretofore appropriated for similar objects, for the erection of suitable public buildings at the seat of government, and for the purchase of a library, to be kept at the seat of government for the use of the Governor, Legislative Assembly, Judges of the Supreme Court, Secretary, Marshal, and Attorney of said Territory, and such other persons, and under such regulations as shall be prescribed by law. Sec. 16. And be it further enacted, That when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, section; numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same. Sec. 17. And be it further enacted, That, until otherwise provided by law, the Governor of said Territory may define the Judicial Districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts; and also appoint the times and places for holding courts in the several counties or subdivisions in each of said Judicial Districts by proclamation, to be issued by him; but the Legislative Assembly, at their first or any subsequent session, may organize, alter, or modify such Judicial Districts, and assign the judges, and alter the times and places of holding the courts, as to them shall seem proper and convenient. Sec. 18. And be it further enacted, That all officers to be appointed by the President, by and with the advice and consent of the Senate, for the Territory of Nebraska, who, by virtue of the provisions of any law now existing, or which may be enacted during the present Congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security, at such time and place, and in such manner, as the Secretary of the Treasury may prescribe. Sec. 19. And be it further enacted, That all that part of the Territory of the United States included within the following limits, except such portions thereof as are hereinafter expressly exempted from the operations of this act, to wit, beginning at a point on the western boundary of the State of Missouri, where the thirtyseventh parallel of north latitude crosses the same; thence west on said parallel to the eastern boundary of New Mexico; thence north on said boundary to latitude thirty-eight; thence following said boundary westward to the east boundary of the Territory of Utah, on the summit of the Rocky Mountains; thence northward on said summit to the fortieth parallel of latitude, thence east on said parallel to the western boundary of the State of Missouri; thence south with the western boundary of said State to the place of beginning, be, and the same is hereby, created into a temporary government by the name of the Territory of Kansas; and when admitted as a State or States, the said Territory, or any portion of the same, shall be received into the Union with or without slavery, as their Constitution 20

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may prescribe at the time of their admission: Provided, That nothing in this act contained shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such times as Congress shall deem convenient and proper, or from attaching any portion of said Territory to any other State or Territory of the United States: Provided further, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any State or Territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Kansas, until said tribe shall signify their assent to the President of the United States to be included within the said Territory of Kansas, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed. Sec. 20. And be it further enacted, That the executive power and authority in and over said Territory of Kansas shall be vested in a Governor, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The Governor shall reside within said Territory, and shall be commander-in-chief of the militia thereof. He may grant pardons and respites for offences against the laws of said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed. Sec. 21. And be it further enacted, That there shall be a Secretary of said Territory, who shall reside therein, and hold his office for five years, unless sooner removed by the President of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his Executive Department; he shall transmit one copy of the laws and journals of the Legislative Assembly within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each year, to the President of the United States, and two copies of the laws to the President of the Senate and to the Speaker of the House of Representatives, to be deposited in the libraries of Congress; and, in case of the death, removal, resignation, or absence of the Governor from the Territory, the Secretary shall be, and he is hereby, authorized and required to execute and perform all the powers and duties of the Governor during such vacancy or absence, or until another Governor shall be duly appointed and qualified to fill such vacancy. Legislative Achievements

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Sec. 22. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the Governor and a Legislative Assembly. The Legislative Assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall, at its first session, consist of twenty-six members possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. The number of representatives may be increased by the Legislative Assembly, from time to time, in proportion to the increase of qualified voters: Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the Council and Representatives, giving to each section of the Territory representation in the ratio of its qualified voters as nearly as may be. And the members of the Council and of the House of Representatives shall reside in, and be inhabitants of, the district or county, or counties, for which they may be elected, respectively. Previous to the first election, the Governor shall cause a census, or enumeration of the inhabitants and qualified voters of the several counties and districts of the Territory, to be taken by such persons and in such mode as the Governor shall designate and appoint; and the persons so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct; and he shall at the same time declare the number of members of the Council and House of Representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said Council Districts for members of the Council, shall be declared by the Governor to be duly elected to the Council; and the persons having the highest number of legal votes for the House of Representatives, shall be declared by the Governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case of a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election; and the persons thus elected to the Legislative Assembly shall meet at such place and on such day as the Governor shall appoint; but thereafter, the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts to the Council and House of Representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the Legislative Assembly: Provided, That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days. Sec. 23. And be it further enacted, That every free white male inhabitant above the age of twenty-one years, who shall be an actual resident of said Territory, and 22

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shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States, and those who shall have declared, on oath, their intention to become such, and shall have taken an oath to support the Constitution of the United States and the provisions of this act: And, provided further, That no officer, soldier, seaman, or marine, or other person in the army or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory by reason of being on service therein. Sec. 24. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposa1 of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of nonresidents be taxed higher than the lands or other properly of residents. Every bill which shall have passed the Council and House of Representatives of the said Territory shall, before it become a law, be presented to the Governor of the Territory; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which, it shall likewise be reconsidered, and, if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, to been entered on the journal of each house, respectively. If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Assembly, by adjournment, prevent its return, in which case it shall not be a law. Sec. 25. And be it further enacted, That all township, district, and county officers, not herein otherwise provided for, shall be appointed or elected as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Kansas. The Governor shall nominate, and, by and with the advice and consent of the Legislative Council, appoint all officers not herein otherwise provided for; and, in the first instance, the Governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the Legislative Assembly; and shall lay off the necessary districts for members of the Council and House of Representatives, and all other officers. Sec. 26. And be it further enacted, That no member of the Legislative Assembly shall hold, or be appointed to, any office which shall have been created, or the salary or emoluments of which shall have been increased, while he was a member, Legislative Achievements

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during the term for which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first Legislative Assembly; and no person holding a commission or appointment under the United States, except postmasters, shall be a member of the Legislative Assembly, or shall hold any office under the government of said Territory. Sec. 27. And be it further enacted, That the judicial power of said Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The Supreme Court shall consist of chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory annually; and they shall hold their offices during the period of four years, and until their successors shall be appointed and qualified. The said Territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the Supreme Court, at such times and places as may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction. Said District Court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law; but in no case removed to the Supreme Court shall trial by jury be allowed in said court. The Supreme Court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed. Writs of error, and appeals from the final decisions of said supreme court, shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed one thousand dollars; except only that in all cases involving title to slaves, the said writ of error or appeals shall be allowed and decided by said supreme court, without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States, from the decision of the said supreme court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom: Pro24

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vided, That nothing herein contained shall be construed to apply to or affect the provisions of the “act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelfth,—seventeen hundred and ninety-three, and the “act to amend and supplementary to the aforesaid act,” approved September eighteenth, eighteen hundred and fifty; and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the Circuit and District Courts of the United States; and the said supreme and district courts of the said Territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as may be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws, and writs of error and appeal in all such cases shall-be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive the same fees in all such cases, which the clerks of the district courts of Utah Territory now receive for similar services. Sec. 28. And be it further enacted, That the provisions of the act entitled “An act respecting fugitives from justice, and persons escaping from, the service of their masters,” approved February twelfth, seventeen hundred and ninety-three, and the provisions of the act entitled “An act to amend, and supplementary to, the aforesaid act,” approved September eighteenth, eighteen hundred and fifty, be, and the same are hereby, declared to extend to and be in full force within the limits of the said Territory of Kansas. Sec. 29. And be it further enacted, That there shall be appointed an attorney for said Territory, who shall continue in office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall receive the same fees and salary as the Attorney of the United States for the present Territory of Utah. There shall also be a marshal for the Territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall execute all processes issuing from the said courts where exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulations and penalties, and be entitled to the same fees, as the Marshal of the District Court of the United States for the present Territory of Utah, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services. Sec. 30. And be it further enacted, That the Governor, Secretary, Chief Justice, and Associate Justices, Attorney, and Marshal, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States. The Governor and Secretary to be appointed as aforesaid shall, before they act as such, respectively take an oath or affirmation before the Legislative Achievements

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district judge or some justice of the peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the Chief Justice or some Associate Justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices, which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificates shall be received and recorded by the said secretary among the executive proceedings; and the Chief Justice and Associate Justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or Secretary, or some Judge or Justice of the Peace of the Territory who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation shall be taken, certified, and recorded, in such manner and form as may be prescribed by law. The Governor shall receive an annual salary of two thousand five hundred dollars. The Chief Justice and Associate Justices shall receive an annual salary of two thousand dollars. The Secretary shall receive an annual salary of two thousand dollars. The said salaries shall be paid quarter-yearly, from the dates of the respective appointments, at the Treasury of the United States; but no such payment shall be made until said officers shall have entered upon the duties of their respective appointments. The members of the Legislative Assembly shall be entitled to receive three dollars each per day during their attendance at the sessions thereof, and three dollars each for every twenty miles’ travel in going to and returning from the said sessions, estimated according to the nearest usually travelled route; and an additional allowance of three dollars shall be paid to the presiding officer of each house for each day he shall so preside. And a chief clerk, one assistant clerk, a sergeant at-arms, and door-keeper, may be chosen for each house; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day, during the session of the Legislative Assembly; but no other officers shall be paid by the United States: Provided, That there shall be but one session of the Legislature annually, unless, on an extraordinary occasion, the Governor shall think proper to call the Legislature together. There shall be appropriated, annually, the usual sum, to be expended by the Governor, to defray the contingent expenses of the Territory, including the salary of a clerk of the Executive Department and there shall also be appropriated, annually, a sufficient sum, to be expended by the Secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the Legislative Assembly, the printing of the laws, and other incidental expenses; and the Governor and Secretary of the Territory shall, in the disbursement of all moneys intrusted to them, be governed solely by the instructions of the secretary of the Treasury of the United States, and shall, semi-annually, account to the said secretary for the manner in which the 26

Documentary History of the American Civil War Era

aforesaid moneys shall have been expended; and no expenditure shall be made by said Legislative Assembly for objects not specially authorized by the acts of Congress making the appropriations, nor beyond the sums thus appropriated for such objects. Sec. 31. And be it further enacted, That the seat of government of said Territory is hereby located temporarily at Fort Leavenworth; and that such portions of the public buildings as may not be actually used and needed for military purposes, may be occupied and used, under the direction of the Governor and Legislative Assembly, for such public purposes as may be required under the provisions of this act. Sec. 32. And be it further enacted, That a delegate to the House of Representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the Legislative Assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives, but the delegate first elected shall hold his seat only during the term of the Congress to which he shall be elected. The first election shall be held at such time and places, and be conducted in such manner, as the Governor shall appoint and direct; and at all subsequent elections, the times, places, and manner of holding the elections shall be prescribed by law. The person having the greatest number of votes shall be declared by the Governor to be duly elected, and a certificate thereof shall be given accordingly. That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Kansas as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which, being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States: Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of sixth of March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery. Sec. 33. And be it further enacted, That there shall hereafter be appropriated, as has been customary for the territorial governments, a sufficient amount, to be expended under the direction of the said Governor of the Territory of Kansas, not exceeding the sums heretofore appropriated for similar objects, for the erection of suitable public buildings at the seat of government, and for the purchase of a Legislative Achievements

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library, to be kept at the seat of government for the use of the Governor, Legislative Assembly, Judges of the Supreme Court, Secretary, Marshal, and Attorney of said Territory, and such other persons, and under such regulations, as shall be prescribed by law. Sec. 34. And be it further enacted, That when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same. Sec. 35. And be it further enacted, That, until otherwise provided by law, the Governor of said Territory may define the Judicial Districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts; and also appoint the times and places for holding courts in the several counties or subdivisions in each of said judicial districts by proclamation, to be issued by him; but the Legislative Assembly, at their first or any subsequent session, may organize, alter, or modify such judicial districts, and assign the judges, and alter the times and places of holding the courts as to them shall seem proper and convenient. Sec. 36. And be it further enacted, That all officers to be appointed by the President, by and with the advice and consent of the Senate, for the Territory of Kansas, who, by virtue of the provisions of any law now existing, or which may be enacted during the present Congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security, at such time and place, and in such manner as the Secretary of the Treasury may prescribe. Sec. 37. And be it further enacted, That all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced within this act, shall be faithfully and rigidly observed, notwithstanding any thing contained in this act; and that the existing agencies and superintendencies of said Indians be continued with the same powers and duties which are now prescribed by law, except that the President of the United States may, at his discretion, change the location of the office of superintendent. Approved, May 30, 1854.

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Documentary History of the American Civil War Era

The Crittenden Compromise , December 18, 1860 Congressional Globe, 36th Congress, 2nd Session, 114.

From at least the 1787 federal Constitutional Convention forward, whenever a major political controversy arose in the United States, politicians crafted some sort of compromise and accommodation. No one politician based and developed his political reputation on crafting national sectional compromises more than Kentucky Senator Henry Clay. In time, with different leadership, national politicians crafted the Compromise (perhaps more accurately described as an “armistice”) of 1850. Regardless, by 1860, many—perhaps most—Americans expected their political leaders to work out a compromise of the issues to avoid dis-Union and further political conflict and discord. It is not surprising, therefore, that a Kentucky senator sought to continue the Henry Clay tradition of crafting compromise. On December 18, 1860, Kentucky Senator John Jordan Crittenden proposed the following points as a potential compromise in an effort to please all parties. But Crittenden was not Clay, and Crittenden misjudged both sides and their determinations not to compromise during the secession winter of 1860–1861. All Republicans could agree on one plank, the nonextension of slavery into the western territories, and thus they opposed Article 1 of Crittenden’s proposals. Southerners liked his idea in Article 1 of reestablishing the 36° 30´ plan that guaranteed slavery south of that line and they liked his proposal in Article 6 of prohibiting any constitutional amendments altering the constitutional nature of slavery. But, southern politicians opposed Crittenden’s compromise because his proposals did not go far enough to protect and expand slavery into the West. Southern politicians called for Congress to enact a federal slave code for the territories. Thus, all major parties opposed parts of this proposed compromise, which, in effect, was stillborn upon introduction into the Senate. Though many commentators and politicians

talked about parts of the compromise and some politicians held some hope for it, on December 31, 1860, the Senate tabled Crittenden’s compromise proposal, never to be taken up again. A joint resolution (S. No. 50) proposing certain amendments to the Constitution of the United States. Whereas serious and alarming dissensions have arisen between the northern and southern States concerning the rights and security of the rights of the slaveholding States, and especially their rights in the common territory of the United States; and whereas it is eminently desirable and proper that these dissensions, which now threaten the very existence of this Union, should be permanently quieted and settled by constitutional provisions, which shall do equal justice to all sections, and thereby restore to all the people that peace and good-will which ought to prevail between all the citizens of the United States: Therefore, Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following articles be, and are hereby, proposed and submitted as amendments to the Constitution of the United States, which shall be valid to all intents and purposes, as part of said Constitution, when ratified by conventions of three-fourths of the several States: Article 1: In all the territory of the United States now held, or hereafter acquired, situate north of 36 degrees 30 minutes, slavery or involuntary servitude, except as a punishment for crime, is prohibited while such territory shall remain under territorial government. In all the territory south of said line of latitude, slavery of the African race is hereby recognized as existing, and shall not be interfered with by Congress, but shall be protected as property by all the departments of the territorial government during its continuance. And when any territory, north or south of said line, within such boundaries as Congress may prescribe, shall contain the population requisite for a member of Congress according to the then Federal ratio of representation of the people of the United States, it shall, if its form of government be republican, be admitted into the Union, on an equal footing with the original States, with or without slavery, as the constitution of such new State may provide. Article 2: Congress shall have no power to abolish slavery in places under its exclusive jurisdiction, and situate within the limits of States that permit the holding of slaves. Article 3: Congress shall have no power to abolish slavery within the District of Columbia, so long as it exists in the adjoining States of Virginia and Maryland, or either, nor without the consent of the inhabitants, nor without just compensation first made to such owners of slaves as do not consent to such abolishment. Nor shall Congress at any time prohibit officers of the Federal Government, or members of Congress, whose duties require them to be in said District, from 30

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bringing with them their slaves, and holding them as such during the time their duties may require them to remain there, and afterwards taking them from the District. Article 4: Congress shall have no power to prohibit or hinder the transportation of slaves from one State to another, or to a Territory, in which slaves are by law permitted to be held, whether that transportation be by land, navigable river, or by the sea. Article 5: That in addition to the provisions of the third paragraph of the second section of the fourth article of the Constitution of the United States, Congress shall have power to provide by law, and it shall be its duty so to provide, that the United States shall pay to the owner who shall apply for it, the full value of his fugitive slave in all cases where the marshal or other officer whose duty it was to arrest said fugitive was prevented from so doing by violence or intimidation, or when, after arrest, said fugitive was rescued by force, and the owner thereby prevented and obstructed in the pursuit of his remedy for the recovery of his fugitive slave under the said clause of the Constitution and the laws made in pursuance thereof. And in all such cases, when the United States shall pay for such fugitive, they shall have the right, in their own name, to sue the county in which said violence, intimidation, or rescue was committed, and to recover from it, with interest and damages, the amount paid by them for said fugitive slave. And the said county, after it has paid said amount to the United States, may, for its indemnity, sue and recover from the wrong-doers or rescuers by whom the owner was prevented from the recovery of his fugitive slave, in like manner as the owner himself might have sued and recovered. Article 6: No future amendment of the Constitution shall affect the five preceding articles; nor the third paragraph of the second section of the first article of the Constitution; nor the third paragraph of the second section of the fourth article of said Constitution; and no amendment will be made to the Constitution which shall authorize or give to Congress any power to abolish or interfere with slavery in any of the States by whose laws it is, or may be, allowed or permitted. And whereas, also, besides those causes of dissension embraced in the foregoing amendments proposed to the Constitution of the United States, there are others which come within the jurisdiction of Congress, and may be remedied by its legislative power; and whereas it is the desire of Congress, so far as its power will extend, to remove all just cause for the popular discontent and agitation which now disturb the peace of the country, and threaten the stability of its institutions; Therefore, 1. Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, That the laws now in force for the recovery of fugitive slaves are in strict pursuance of the plain and mandatory provisions of the Constitution, and have been sanctioned as valid and constitutional by the judgment of the Supreme Court of the United States; that the slaveholding States Legislative Achievements

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are entitled to the faithful observance and execution of those laws, and that they ought not to be repealed, or so modified or changed as to impair their efficiency; and that laws ought to be made for the punishment of those who attempt by rescue of the slave, or other illegal means, to hinder or defeat the due execution of said laws. 2. That all State laws which conflict with the fugitive slave acts of Congress, or any other constitutional acts of Congress, or which, in their operation, impede, hinder, or delay the free course and due execution of any of said acts, are null and void by the plain provisions of the Constitution of the United States; yet those State laws, void as they are, have given color to practices, and led to consequences, which have obstructed the due administration and execution of acts of Congress, and especially the acts for the delivery of fugitive slaves, and have thereby contributed much to the discord and commotion now prevailing. Congress, therefore, in the present perilous juncture, does not deem it improper, respectfully and earnestly to recommend the repeal of those laws to the several States which have enacted them, or such legislative corrections or explanations of them as may prevent their being used or perverted to such mischievous purposes. 3. That the act of the 18th of September, 1850, commonly called the fugitive slave law, ought to be so amended as to make the fee of the commissioner, mentioned in the eighth section of the act, equal in amount in the cases decided by him, whether his decision be in favor of or against the claimant. And to avoid misconstruction, the last clause of the fifth section of said act, which authorizes the person holding a warrant for the arrest or detention of a fugitive slave, to summon to his aid the posse comitatus, and which declares it to be the duty of all good citizens to assist him in its execution, ought to be so amended as to expressly limit the authority and duty to cases in which there shall be resistance or danger of resistance or rescue. 4. That the laws for the suppression of the African slave trade, and especially those prohibiting the importation of slaves in the United States, ought to be made effectual, and ought to be thoroughly executed; and all further enactments necessary to those ends ought to be promptly made.

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Documentary History of the American Civil War Era

P roposed Thirteenth A mendment of 1860, M arch 2, 1861 Congress, Senate, Joint Resolution to Amend Constitution, March 2, 1861; 36th Congress, 2nd Session: Congressional Globe, 1364.

This proposed constitutional amendment constituted one of the last (and last-ditch) proposals at compromise during the secession winter of 1860–1861. Aimed to reassure the Border States and the states of the Deep South, seven of whom had already claimed to have seceded from the nation, this proposed Thirteenth Amendment would have prohibited Congress from interfering with “domestic institutions,” the common euphemism for slavery, within the states. If ratified, it would have denied Congress the power to affect slavery, at least in theory, in perpetuity. Passed as a joint resolution, this proposal went to the states, and several considered ratifying it before the military and political events of April 1861 overwhelmed it, rendering it moot. The first document can be found in the Congressional Globe. The second version of this document is taken from the Statutes at Large, and the third version resides in the Gilder Lehrman Collection in New York City and is available through their Web site, www.gilderlehrman.org. Differences in these documents suggest that further editing and stylistic changes occurred before the presidential administrations of James Buchanan and Abraham Lincoln sent this proposed amendment to the states for their consideration. Resolved, &c., That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which when ratified by three fourths of said Legislatures, shall be valid to all intents and purposes as part of the said Constitution, namely: Art. 13. No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish, or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

***

P roposed Thirteenth A mendment to the United States C onstitution of 1860–1861 George P. Sanger, ed., The Statutes at Large, Treaties, and Proclamations, of the United States of America (Boston: Little, Brown, 1863), 12:251.

[No. 13.] Joint Resolution to amend the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said Legislatures, shall be valid, to all intents and purposes, as part of the said Constitution, viz.:

“Article Thirteen.”

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Approved, March 2, 1861. Gilder Lehrman document:

COPY OF PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

To his Excellency, The Governor of the State of Maryland, Annapolis: Washington, March 16, 1861. Sir:—I transmit an authenticated copy of a joint resolution to amend the Constitution of the United States, adopted by Congress, and approved on the 2nd of March, 1861, by James Buchanan, President. I have the honor to be, Your Excellency’s ob’t servant, Abraham Lincoln

By the President. William H. Seward, Secretary of State 34

Documentary History of the American Civil War Era

United States of America, Department of State.

To all whom these presents shall come, Greeting: I certify that the paper hereunto annexed, has been compared with the original roll, and is a true copy of the “Joint Resolution to Amend the Constitution of the United States;” approved March 2, 1861. In testimony whereof, I, William H. Seward, Secretary of State of the United States, has hereunto subscribed my name and cause the seal of the Department of State to be affixed. Done at the city of Washington, this 13th day of March, A.D. 1861, and of the Independence of the United States of America the 85th. William H. Seward

Joint Resolution

Thirty Sixth Congress of the United States, at the second Session, begun and held at the city of Washington in the District of Columbia, on Monday, the third day of December, one thousand eight hundred and sixty.

Joint Resolution To Amend The Constitution Of The United States

Resolved, By the Senate and the House of representatives of the United States of America in Congress assembled, that the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said legislatures, shall be valid, to all interests and purposes, as part of said Constitution, viz:

Article XIII

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereto, including that of persons held to labor or service by the laws of said State. William Pennington, Speaker of the House of Representatives,



Approved March 2, 1861. James Buchanan.

Legislative Achievements

John C. Breckinridge, Vice President of the United States, and President of the Senate,

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P resident A braham Lincoln A P roclamation, A pril 15, 1861 Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, N.J.: Rutgers University Press, 1953), 4:331–32.

At 4:30 a.m. on Friday, April 12, 1861, the Confederate artillery batteries surrounding federal Fort Sumter in the harbor of Charleston, South Carolina, started their bombardment. During the 1860–1861 session winter, the formation of the so-called Confederacy, the start of Abraham Lincoln’s administration, and the question of whether Confederate forces would allow the last federal installation in the South, Fort Sumter, to be resupplied all came to a head with the start of the military action that Friday morning. After thirty-four hours of bombardment, the commanding officer in Fort Sumter, Kentuckian Major Robert Anderson, agreed to a cease-fire on the condition that the formal surrender occur the next day after a salute to the United States flag; Confederate authorities agreed. On Sunday, April 14, Anderson surrendered the fort. The following day, Monday, April 15, President Lincoln called upon the states to send the federal government 75,000 troops to deal with the crisis and “to re-possess the forts, places, and property which have been seized from the Union.” He urged those in rebellion to cease their actions within twenty days and called Congress into special session; not right away, but on the symbolic date of July 4, 1861. In response to the outbreak of violence in Charleston by the Confederates and to Lincoln’s actions in calling up the militia to use force against the secessionists, the voters of the upper South, led by their fire-eater politicians, decided on secession. Preserving what the Founders had established—the Union—became Lincoln’s primary war goal, and it remained so throughout the war.

By the President of the United States: A Proclamation.

Whereas the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the States of South

Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law, Now therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the Constitution, and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed. The details, for this object, will be immediately communicated to the State authorities through the War Department. I appeal to all loyal citizens to favor, facilitate and aid this effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long enough endured. I deem it proper to say that the first service assigned to the forces hereby called forth will probably be to re-possess the forts, places, and property which have been seized from the Union; and in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens in any part of the country. And I hereby command the persons composing the combinations aforesaid to disperse, and retire peaceably to their respective abodes within twenty days from this date. Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the constitution, convene both Houses of Congress. Senators and Representatives are therefore summoned to assemble at their respective chambers, at 12 o’clock, noon, on Thursday, the fourth day of July, next, then and there to consider and determine, such measures, as, in their wisdom, the public safety, and interest may seem to demand. In Witness Whereof I have hereunto set my hand, and caused the Seal of the United States to be affixed. Done at the city of Washington this fifteenth day of April in the year of our Lord One thousand, Eight hundred and Sixty-one, and of the Independence of the United States the Eighty-fifth. [L.S.] By the President:

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Abraham Lincoln. William H. Seward, Secretary of State.

Documentary History of the American Civil War Era

Governor M agoffin’s R efusal of Troops, A pril 16, 1861; and, K entucky ’s Declar ation of Neutr ality, M ay 16, 1861 On April 12, 1861, when the military events of the Civil War started with the firing on Fort Sumter and President Abraham Lincoln’s proclamation calling up the militia to meet the insurrectionist challenge, the Border States found themselves at a crossroads. With divided populations and loyalties, it was not clear how the states of Delaware, Maryland, Kentucky, and Missouri would respond. What became clear was that Maryland had to be held by the Union in order to defend the capitol of Washington, D.C., that Missouri remained in a confused political and military situation, and that Kentucky was the keystone of the western theater. As Lincoln explained the significance of Kentucky to a friend on September 22, 1861, “I think to lose Kentucky is nearly the same as to lose the whole game. Kentucky gone, we can not hold Missouri, nor, I think, Maryland. These all against us, and the job on our hands is too large for us. We would as well consent to separation at once, including the surrender of this capitol.” In that crucial spring of 1861, Kentucky decided not to decide. With a governor who was a southern sympathizer but a state legislature that was more Union than southern in its sympathies, Kentuckians decided to try to emulate Switzerland and declared their neutrality. On April 16, 1861, when Governor Beriah Magoffin received his copy of Lincoln’s call for troops, he fired off a terse one-sentence reply that made his position clear. Debates in Kentucky and in the Kentucky state legislature ensued, resulting in the commonwealth declaring itself neutral in the Civil War. Governor Magoffin endorsed the May 16, 1861, House statement on neutrality and the Kentucky Senate adopted it on May 24. Kentucky historian Lowell Harrison has quipped that if an outside observer had examined the United States in the summer of 1861 he would have seen that the country had “become three countries: the Union, the Confederacy, and Kentucky.” Neutrality lasted until early September 1861, when Confederate forces violated Kentucky’s neutrality, causing the legislature to take control of public policy from

secessionist sympathizer Magoffin, and declare Kentucky for the Union.

Governor Magoffin’s Refusal of Troops

J. Stoddard Johnston, ed., Confederate Military History, vol. 9, Kentucky (Atlanta: Confederate Publishing, 1899), 19.

Frankfort, Ky Hon. Simon Cameron, Secretary of War; Your dispatch is received. In answer, I say emphatically that Kentucky will furnish no troops for the wicked purpose of subduing her sister Southern States. B. Magoffin, Governor of Kentucky

Kentucky Resolution of Neutrality

J. Stoddard Johnston, ed., Confederate Military History, vol. 9, Kentucky (Atlanta: Confederate Publishing, 1899), 22–23.

Considering the deplorable condition of the country and for which the State of Kentucky is in no way responsible, and looking to the best means of preserving the internal peace and securing the lives, liberty, and property of the citizens of the State; therefore, Resolved, by the House of Representatives, that this State and the citizens thereof should take no part in the civil war now being waged, except as mediators and friends to the belligerent parties; and that Kentucky should, during the contest, occupy the position of strict neutrality. Resolved, that the act of the governor in refusing to furnish troops or military force upon the call of the executive authority of the United States under existing circumstances is approved. Gov. Beriah Magoffin

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P roclamations on Block ade and M arque President Abraham Lincoln Proclamation of Blockade, April 19, 1861 Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, N.J.: Rutgers University Press, 1953), 4:339–40.

On April 19, 1861, in Washington, D.C., and Richmond, Virginia, president of the United States Abraham Lincoln and president of the Confederacy Jefferson Davis issued related proclamations. With the recent attack upon Fort Sumter and its surrender and Lincoln’s April 15 proclamation calling up the militia to put down the southern insurrection, and calling the federal Congress into session on July 4, 1861, both leaders used their war powers to advance their oppositional causes. Davis authorized the issuing of letters of marque—privateers with authority to carry out retaliations on federal naval vessels and merchant ships—and called on his followers to “be vigilant and zealous in discharging the duties incident thereto” and to be prepared for the war yet to come. That same day, Lincoln issued his order to the United States Navy to blockade southern ports as part of his efforts to put down the domestic insurrection. On the same day, pursuing different methods, both leaders positioned their sections for not only a land war but also a war at sea and in the coastal waters.

By the President of the United States of America: A Proclamation.

Whereas an insurrection against the Government of the United States has broken out in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and the laws of the United States for the collection of the revenue cannot be effectually executed therein conformably to that provision of the Constitution which requires duties to be uniform throughout the United States:

And whereas a combination of persons engaged in such insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in commerce on the high seas, and in waters of the United States: And whereas an Executive Proclamation has been already issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, calling out a militia force for the purpose of repressing the same, and convening Congress in extraordinary session, to deliberate and determine thereon: Now, therefore, I, Abraham Lincoln, President of the United States, with a view to the same purposes before mentioned, and to the protection of the public peace, and the lives and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliberated on the said unlawful proceedings, or until the same shall have ceased, have further deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States, and of the law of Nations, in such case provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave either of the said ports, she will be duly warned by the Commander of one of the blockading vessels, who will endorse on her register the fact and date of such warning, and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo as prize, as may be deemed advisable. And I hereby proclaim and declare that if any person, under the pretended authority of the said States, or under any other pretense, shall molest a vessel of the United States, or the persons or cargo on board of her, such person will be held amenable to the laws of the United States for the prevention and punishment of piracy. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this nineteenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and of the Independence of the United States the eighty-fifth. Abraham Lincoln. [L.S.] By the President: William H. Seward, Secretary of State.

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President Jefferson Davis Proclamation of Marque, April 19, 1861

James D. Richardson, ed., A Compilation of the Messages and Papers of the Confederacy Including the Diplomatic Correspondence 1861-1865 (Nashville: United States Publishing, 1906), 1:60-62.

By the President of the Confederate States. A Proclamation.

Whereas, Abraham Lincoln, the President of the United States has, by proclamation, announced the intention of invading this Confederacy with an armed force for the purpose of capturing its fortresses, and thereby subverting its independence and subjecting the free people thereof to the dominion of a foreign power; and, whereas, it has thus become the duty of this government to repel the threatened invasion, and to defend the rights and liberties of the people by all the means which the laws of nations and the usages of civilized warfare place at its disposal; Now, therefore, I, Jefferson Davis, President of the Confederate States of America, do issue this my proclamation, inviting all those who may desire, by service in private armed vessels on the high seas, to aid this government in resisting so wanton and wicked an aggression, to make application for commissions or letters of marque or reprisal to be issued under the seal of these Confederate States. And I do further notify all persons applying for letters of marque to make a statement in writing, giving the name and a suitable description of the character, tonnage, and force of the vessel, and the name and place of residence of each owner concerning therein, and the intended number of the crew, and to sign said statement and deliver the same to the Secretary of State, or to the collector of any port of entry of these Confederate States, to be by him transmitted to the Secretary of State. And I do further notify all applicants aforesaid that before any commission or letter of marque is issued to any vessel, the owner or owners thereof, and the commander for the time being, will be required to give bond to the Confederate States, with at least two responsible sureties, not interested in such vessel, in the penal sum of five thousand dollars; or if such vessel be provided with more than one hundred and fifty men, then in the penal sum of ten thousand dollars, with condition that the owners, officers, and crew who shall be employed on board such commissioned vessel shall observe the laws of these Confederate States and the instructions given to them for the regulation of their conduct. That they shall satisfy all damages done contrary to the tenor thereof by such vessel during her commission, and deliver up the same when revoked by the President of the Confederate States.

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And I do further specially enjoin on all persons holding offices, civil and military, under the authority of the Confederate States, that they be vigilant and zealous in discharging the duties incident thereto; and I do, moreover, solemnly exhort the good people of these Confederate States, as they love their country, as they prize the blessings of free government, as they feel the wrongs of the past and these now threatened in aggravated form by those whose enmity is more implacable because unprovoked, that they exert themselves in preserving order, in promoting concord, in maintaining the authority and efficacy of the laws, and in supporting and invigorating all the measures which may be adopted for the common defense, and by which, under the blessings of Divine Providence, we may hope for a speedy, just, and honorable peace. In testimony whereof I have hereunto set my hand, and caused the seal of the Confederate States to be affixed, this seventeenth day of April, 1861. Jefferson Davis [Signed] R. Toombs, Secretary of State. By the President:

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The Crittenden-Johnson R esolutions on the Objects of the War , July 22, 1861 Congressional Globe, 37th Congress, 1st Session, 222, 243.

When the Civil War began in April 1861, Congress was not in session. To deal with the immediate crisis, President Abraham Lincoln called Congress into special session, but postponed the date for its meeting until the symbolic date of July 4. Once in session, Congress passed legislation supporting the president’s earlier actions and it began the grinding task of funding and dealing with the domestic insurrection. Enacted in the two days after the first major military engagement of the war, First Bull Run, on July 21, 1861, these congressional resolutions stated the war’s goals for the Union. In line with the Lincoln administration’s public position, Congress emphasized that the preservation of the Union, not the destruction of slavery (euphemistically referred to by the phrase “purpose of overthrowing or interfering with the rights or established institutions of those States”) constituted the Union’s war goal. By disavowing any abolitionist goal, Congress and the president sought to maintain the loyalty of the key Border States and particularly the keystone border and slave state of the West— Kentucky. Kentucky Representative John J. Crittenden and the only United States senator to remain in the Senate from any of the seceded states, Andrew Johnson of Tennessee, introduced these identical resolutions that placed the Congress solidly in line with President Lincoln’s war goals. These resolutions passed with only the most radical of abolitionist congressmen and senators voting in the negative. John J. Crittenden Resolution of July 22, 1861 Resolved by the House of Representatives of the Congress of the United States, That the present deplorable civil war has been forced upon the country by the disunionists of the southern States, now in arms against the constitutional Government, and in arms around the capital; that in this national emergency, Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to

the whole country; that this war is not waged on their part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease. Andrew Johnson Resolution of July 23, 1861 Resolved by the Senate, That the present deplorable civil war has been forced upon the country by the disunionists of the southern States, now in arms against the constitutional Government, and in arms around the capital; that in this national emergency, Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to the whole country; that this war is not prosecuted on their part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and all laws made in pursuance thereof and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; that as soon as these objects are accomplished the war ought to cease.

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The F irst Confiscation Act, August 6, 1861 U.S. Statutes at Large 12:319.

Embedded in this legalistic document exists the hope of the abolitionists and a fear of the Border State residents and southerners— federal uncompensated emancipation of slaves. The confiscation of the property of belligerents is a routine part of the law of war, and nothing in this act deviates from the normal laws of war. But, the position of the Abraham Lincoln administration was that the Civil War was being fought to preserve the Union, not to bring about the end of slavery. On January 1, 1863, President Lincoln added a second war goal to the Union cause—emancipation. Yet, at this early point in the war years, as property, slaves stood to be confiscated and potentially freed, not as persons but a particular type of property under the laws of war. It was written narrowly in Section 4 to cover not all slaves regardless of where they lived or how they came to Union lines, but specifically the slaves of those southerners in rebellion against the federal government only; nevertheless, this statute constitutes the first federal step, hesitant and limited as it was, against the institution of slavery. Chap. LX.—An Act to confiscate Property used for Insurrectionary Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 employé, 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. Sec. 2. And be it further enacted, That such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be seized, or into which they may be taken and proceedings first instituted. Sec. 3. And be it further enacted, That the Attorney-General, or any district attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts. Sec. 4. And be it further enacted, 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, entrenchment, 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. Approved: August 6, 1861

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Seditious Conspir acy Act, July 31, 1861 U.S. Statutes at Large 12:284.

Internal security concerns have been, are, and will continue to be an issue in the history of the United States, and the era of the Civil War was no exception. This act established the new federal crime of seditious conspiracy. Less than treason (the only crime defined in the 1787 Constitution itself and punishable by death, Art. 3 §3), Congress sought to protect loyal officeholders in the Border and Southern states as well as punish those persons who actually took up arms to resist the authority of the Union and the Constitution. Chapter XXXIII—An Act to define and punish certain Conspiracies. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force, the Government of the United States, or to levy war against the United States, or to oppose by force the authority of the Government of the United States; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States against the will or contrary to the authority of the United States; or by force, or intimidation, or threat to prevent any person from accepting or holding any office, or trust, or place of confidence, under the United States; each and every person so offending shall be guilty of a high crime, and upon conviction thereof in any district or circuit court of the United States, having jurisdiction thereof, or district or supreme court of any Territory of the United States having jurisdiction thereof, shall be punished by a fine not less than five hundred dollars and not more than five thousand dollars; or by imprisonment, with or without hard labor, as the court shall determine, for a period not less than six months nor greater than six years, or by both such fine and imprisonment. Approved, July 31, 1861.

A bolishment of Slavery in the District of Columbia Act, A pril 16, 1862 U.S. Statutes at Large 12:376–78.

While enormous controversy swirled for at least a decade around the issue of Congress’ power to prohibit or provide for slavery in the western territories of the United States, an issue that Chief Justice Roger B. Taney and a majority of the United States Supreme Court sought to “solve” with their ill-fated 1857 Dred Scott v. Sanford, 19 Howard (60 U.S.) 393, decision, no one doubted that Congress could legislate for the federal city—the District of Columbia. Earlier efforts to abolish slavery in the District of Columbia had failed, such as the 1849 bill that one-term Congressman Abraham Lincoln from Illinois voted for, the southern bloc in both the House of Representatives and the Senate managing to defeat every effort. As part of a series of bills passed by Congress that came to be known as the “Compromise of 1850,” which amounted more to an “Armistice of 1850,” as historian David Potter called it, Congress abolished the slave trade in the District of Columbia, but not slavery itself. Starting in 1861 with southerners absent from Congress because of their alleged secession, the rest of Congress had an opportunity to rid the capital city of the institution of slavery, and they did so in the form of compensated emancipation. As property, slaves had enormous value and in this early part of the war, respect for private property rights—even slave property—held sway over any moral sentiments about slavery. Thus, this bill provided loyal persons only (not those District of Columbia residents who supported the rebellion or who took up arms and could not swear a loyalty oath) a process for applying for compensation for their freed property. Congress appropriated one million dollars to cover the cost of this compensated emancipation and it set the maximum amount for the price for any one slave at $300. Section 8 of this act made it a federal felony to kidnap free persons and present them as alleged slaves for the purpose of collecting compensation, and Section 11 committed Congress to appropriate $100,000 for the cost of relocating and transporting

freed slaves “to the Republic of Hayti or Liberia, or such other country beyond the limits of the United States as the President may determine.” While not the dramatic war powers emancipation of President Lincoln on January 1, 1863, this act would have been unthinkable in Congress just a year earlier. Thus, this piece of legislation demonstrates the drift of the country on the issue of slavery, and slavery’s uncertain future in the United States. Chap. LIV.—An Act for the Release of certain Persons held to Service or Labor in the District of Columbia Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons held to service or labor within the District of Columbia by reason of African descent are hereby discharged and freed of and from all claim to such service or labor; and from and after the passage of this act neither slavery nor involuntary servitude, except for crime, whereof the party shall be duly convicted, shall hereafter exist in said District. Sec. 2. And be it further enacted, That all persons loyal to the United States, holding claims to service or labor against persons discharged therefrom by this act, may, within ninety days from the passage thereof, but not thereafter, present to the commissioners hereinafter mentioned their respective statements or petitions in writing, verified by oath or affirmation, setting forth the names, ages, and personal description of such persons, the manner in which said petitioners acquired such claim, and any facts touching the value thereof, and declaring his allegiance to the Government of the United States, and that he has not borne arms against the United States during the present rebellion, nor in any way given aid or comfort thereto: Provided, That the oath of the party to the petition shall not be evidence of the facts therein stated. Sec. 3. And be it further enacted, That the President of the United States, with the advice and consent of the Senate, shall appoint three commissioners, residents of the District of Columbia, any two of whom shall have power to act, who shall receive the petitions above mentioned, and who shall investigate and determine the validity and value of the claims therein presented, as aforesaid, and appraise and apportion, under the proviso hereto annexed, the value in money of the several claims by them found to be valid: Provided, however, That the entire sum so appraised and apportioned shall not exceed in the aggregate an amount equal to three hundred dollars for each person shown to have been so held by lawful claim: And provided, further, That no claim shall be allowed for any slave or slaves brought into said District after the passage of this act, nor for any slave claimed by any person who has borne arms against the Government of the United States in the present rebellion, or in any way given aid or comfort thereto, or which originates in or by virtue of any transfer heretofore made, or which shall hereafter be made by any person who has in any manner aided or sustained the rebellion against the Government of the United States. 52

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Sec. 4. And be it further enacted, That said commissioners shall, within nine months from the passage of this act, make a full and final report of their proceedings, findings, and appraisement, and shall deliver the same to the Secretary of the Treasury, which report shall be deemed and taken to be conclusive in all respects, except as hereinafter provided; and the Secretary of the Treasury shall, with like exception, cause the amounts so apportioned to said claims to be paid from the Treasury of the United States to the parties found by said report to be entitled thereto as aforesaid, and the same shall be received in full and complete compensation: Provided, That in cases where petitions may be filed presenting conflicting claims, or setting up liens, said commissioners shall so specify in said report, and payment shall not be made according to the award of said commissioners until a period of sixty days shall have elapsed, during which time any petitioner claiming an interest in the particular amount may file a bill in equity in the Circuit Court of the District of Columbia, making all other claimants defendants thereto, setting forth the proceedings in such case before said commissioners and their actions therein, and praying that the party to whom payment has been awarded may be enjoined from receiving the same; and if said court shall grant such provisional order, a copy thereof may, on motion of said complainant, be served upon the Secretary of the Treasury, who shall thereupon cause the said amount of money to be paid into said court, subject to its orders and final decree, which payment shall be in full and complete compensation, as in other cases. Sec. 5. And be it further enacted, That said commissioners shall hold their sessions in the city of Washington, at such place and times as the President of the United States may direct, of which they shall give due and public notice. They shall have power to subpoena and compel the attendance of witnesses, and to receive testimony and enforce its production, as in civil cases before courts of justice, without the exclusion of any witness on account of color; and they may summon before them the persons making claim to service or labor, and examine them under oath; and they may also, for purposes of identification and appraisement, call before them the persons so claimed. Said commissioners shall appoint a clerk, who shall keep files and [a] complete record of all proceedings before them, who shall have power to administer oaths and affirmations in said proceedings, and who shall issue all lawful process by them ordered. The Marshal of the District of Columbia shall personally, or by deputy, attend upon the sessions of said commissioners, and shall execute the process issued by said clerk. Sec. 6. And be it further enacted, That said commissioners shall receive in compensation for their services the sum of two thousand dollars each, to be paid upon the filing of their report; that said clerk shall receive for his services the sum of two hundred dollars per month; that said marshal shall receive such fees as are allowed by law for similar services performed by him in the Circuit Court of the District of Columbia; that the Secretary of the Treasury shall cause all other reasonable expenses of said commission to be audited and allowed, and that said compensation, fees, and expenses shall be paid from the Treasury of the United States. Legislative Achievements

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Sec. 7. And be it further enacted, That for the purpose of carrying this act into effect there is hereby appropriated, out of any money in the Treasury not otherwise appropriated, a sum not exceeding one million of dollars. Sec. 8. And be it further enacted, That any person or persons who shall kidnap, or in any manner transport or procure to be taken out of said District, any person or persons discharged and freed by the provisions of this act, or any free person or persons with intent to re-enslave or sell such person or person into slavery, or shall re-enslave any of said freed persons, the person or persons so offending shall be deemed guilty of a felony, and on conviction thereof in any court of competent jurisdiction in said District, shall be imprisoned in the penitentiary not less than five nor more than twenty years. Sec. 9. And be it further enacted, That within twenty days, or within such further time as the commissioners herein provided for shall limit, after the passage of this act, a statement in writing or schedule shall be filed with the clerk of the Circuit Court for the District of Columbia, by the several owners or claimants to the services of the persons made free or manumitted by this act, setting forth the names, ages, sex, and particular description of such persons, severally; and the said clerk shall receive and record, in a book by him to be provided and kept for that purpose, the said statements or schedules on receiving fifty cents each therefor, and no claim shall be allowed to any claimant or owner who shall neglect this requirement. Sec. 10. And be it further enacted, That the said clerk and his successors in office shall, from time to time, on demand, and on receiving twenty-five cents therefor, prepare, sign, and deliver to each person made free or manumitted by this act, a certificate under the seal of said court, setting out the name, age, and description of such person, and stating that such person was duly manumitted and set free by this act. Sec. 11. And be it further enacted, That the sum of one hundred thousand dollars, out of any money in the Treasury not otherwise appropriated, is hereby appropriated, to be expended under the direction of the President of the United States, to aid in the colonization and settlement of such free persons of African descent now residing in said District, including those to be liberated by this act, as may desire to emigrate to the Republics of Hayti or Liberia, or such other country beyond the limits of the United States as the President may determine: Provided, The expenditure for this purpose shall not exceed one hundred dollars for each emigrant. Sec. 12. And be it further enacted, That all acts of Congress and all laws of the State of Maryland in force in said District, and all ordinances of the cities of Washington and Georgetown, inconsistent with the provisions of this act, are hereby repealed. Approved, April 16, 1862.

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Confeder ate Conscription Act, A pril 17, 1862; and, The “Twenty Negro” A mendment, October 11, 1862 James M. Matthews, ed., The Statutes at Large of the Confederate States of America Commencing with the First Session of the First Congress (Richmond, Va.: R. M. Smith, Printer to Congress, 1862), 29–32.

Irony exists in that it was the so-called Confederacy—allegedly committed to personal liberty and the shibboleth of state rights— that first instituted a national military draft. Recognizing its lack of manpower for its fighting forces and seeing that volunteer enlistment was not meeting its military needs as the first rush of volunteering ebbed, on April 17, 1862, the Confederate Congress established a draft. Like all drafts, the hope was that this conscription act would encourage volunteer enlistments (and avoid the draft) so that men could serve in the units of their choice with the officers and men of their choosing, although this draft legislation allowed the paying of bounties to draftees. This legislation covered all men, meaning of course white men, from eighteen to thirty-five years of age and drafted them into the Confederate service for three years. Certain professions would be exempted from this conscription, such as teachers and apothecaries, which led to a burst of new schools and pharmacies opening up by those seeking to avoid the draft. Also, this conscription legislation allowed for the hiring of substitutes for those men wealthy enough to buy their way out of military service. Notably and emotionally for many of the non-slave-owning whites in the South, on October 11, 1862, the Confederate Congress passed an amendment to this draft act that better specified exempt persons and occupations. For example, railroad men and those who opposed the draft because of their conscience, such as Quakers and Mennonites, were exempt. But, controversially, this amendment exempted one white man from military service for every farm that had twenty slaves on it. This exemption due to slave ownership, together with the substitution policy, led the men in

the ranks of the Confederate military to claim that the southern cause was “a rich man’s war and a poor man’s fight.” Thus, these contradictions and ironies were not lost on the participants.

Confederate Conscription Act

Chap. XXXL.—An Act to further provide for the public defence. In view of the exigencies of the country, and the absolute necessity of keeping in the service our gallant army, and of placing in the field a large additional force to meet the advancing columns of the enemy now invading our soil: Therefore The Congress of the Confederate States of America do enact, That the President be, and he is hereby authorized to call out and place in the military service of the Confederate States, for three years, unless the war shall have been sooner ended, all white men who are residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, who are not legally exempted from military service. All of the persons aforesaid who are now in the armies of the Confederacy, and whose term of service will expire before the end of the war, shall be continued in the service for three years from the date of their original enlistment, unless the war shall have been sooner ended: Provided, however, That all such companies, squadrons, battalions, and regiments, whose term of original enlistment was for twelve months, shall have the right, within forty days, on a day to be fixed by the Commander of the Brigade, to reorganize said companies, battalions, and regiments, by electing all their officers, which they had a right heretofore to elect, who shall be commissioned by the President: Provided, further, That furloughs not exceeding sixty days, with transportation home and back, shall be granted to all those retained in the service by the provisions of this Act beyond the period of their original enlistment, and who have not heretofore received furloughs under the provisions of an act entitled “An Act providing for the granting of bounty and furloughs to privates and noncommissioned officers in the Provisional Army,” approved eleventh December, eighteen hundred and sixty-one, said furloughs to be granted at such times and in such numbers as the Secretary of War may deem most compatible with the public interest: and Provided, further, That in lieu of a furlough the commutation value in money of the transportation herein above granted, shall be paid be each private, musician, or non-commissioned officer who may elect to receive it, at such time as the furlough would otherwise be granted: Provided, further, That all persons under the age of eighteen years or over the age of thirty-five years, who are now enrolled in the military service of the Confederate States, in the regiments, squadrons, battalions, and companies hereafter to be reorganized, shall be required to remain in their respective companies, squadrons, battalions and regiments for ninety days, unless their places can be sooner supplied by other recruits not in the service, who are between the ages of eighteen and thirty-five years; and 56

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all laws and parts of laws providing for the re-enlistment of volunteers and the organization thereof into companies, squadrons, battalions, or regiments, shall be and the same are hereby repealed. Sec. 2. Be it further enacted, That such companies, squadrons, battalions, or regiments organized, or in process of organization by authority from the Secretary of War, as may be within thirty days from the passage of this Act, so far completed as to have the whole number of men requisite for organization actually enrolled, not embracing in said organizations any persons now in service, shall be mustered into the service of the Confederate States as part of the land forces of the same, to be received in that arm of the service in which they are authorized to organize, and shall elect their company, battalion, and regiment officers. Sec. 3. Be it further enacted, That for the enrollment of all persons comprehended within the provisions of this Act, who are not already in service in the armies of the Confederate States, it shall be lawful for the President, with the consent of the Governors of the respective States, to employ State officers, and on failure to obtain such consent, he shall employ Confederate officers, charged with the duty of making such enrollment in accordance with rules and regulations to be prescribed by him. Sec. 4. Be if further enacted, That persons enrolled under the provisions of the preceding Section, shall be assigned by the Secretary of War, to the different companies now in these services, until each company is filled to its maximum number, and the persons so enrolled shall be assigned to companies from the States from which they respectively come. Sec. 5. Be it further enacted, That all Seamen and ordinary Seamen in the land forces of the Confederate States, enrolled under the provisions of this Act, may, on application of the Secretary of the Navy, be transferred from the land forces to the Naval service. Sec. 6. Be it further enacted, That in all cases where a State may not have in the Army a number of Regiments, Battalions, Squadrons or Companies, sufficient to absorb the number of persons to military service under this Act, belonging to such State, then the residue or excess thereof, shall be kept as a reserve, under such regulations as may be established by the Secretary of War, and that at stated periods of not greater than three months, details, determined by lot, shall be made from said reserve, so that each company shall, as nearly as practicable, be kept full: Provided, That the persons held in reserve may remain at home until called into service by the President: Provided, also, That during their stay at home they shall not receive pay: Provided, further, That the persons comprehended in this Act, shall not be subject to the Rules and Articles of War, until mustered into the actual service of the Confederate States; except that said persons, when enrolled and liable to duty, if they shall willfully refuse to obey said call, each of them shall be held to be a deserter, and punished as such, under said Articles: Provided, further, That whenever, in the opinion of the President, the exigencies Legislative Achievements

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of the public service may require it, he shall be authorized to call into actual service the entire reserve, or so much as may be necessary, not previously assigned to different companies in service under provision of section four of this Act; said reserve shall be organized under such rules as the Secretary of War may adopt: Provided, The company, battalion and regimental officers shall be elected by the troops composing the same: Provided, the troops raised in any one State shall not be combined in regimental, battalion, squadron or company organization with troops raised in any other States. Sec. 7. Be it further enacted, That all soldiers now serving in the army or mustered in the military service of the Confederate States, or enrolled in said service under the authorizations heretofore issued by the Secretary of War, and who are continued in the service by virtue of this act, who have not received the bounty of fifty dollars allowed by existing laws, shall be entitled to receive said bounty. Sec. 8. Be it further enacted, That each man who may hereafter be mustered into the service, and who shall arm himself with a musket, shotgun, rifle or carbine, accepted as an efficient weapon, shall be paid the value thereof, to be ascertained by the mustering officer under such regulation as may be prescribed by the Secretary of War, if he is willing to sell the same, and if he is not, then he shall be entitled to receive one dollar a month for the use of said received and approved musket, rifle, shotgun or carbine. Sec. 9. Be it further enacted, That persons not liable for duty may be received as substituted for those who are, under such regulations as may be prescribed by the Secretary of War. Sec. 10. Be it further enacted, That all vacancies shall be filled by the President from the company, battalion, squadron or regiment in which such vacancies shall occur, by promotion according to seniority, except in case of disability or other incompetency: Provided, however, That the President may, when in his opinion, it may be proper, fill such vacancy or vacancies by the promotion of any officer or officers, or private or privates from such company, battalion, squadron or regiment who shall have been distinguished in the service by exhibition of valor and skill; and that whenever a vacancy shall occur in the lowest grade of the commissioned officers of a company, said vacancy shall be filled by election: Provided, That all appointments made by the President shall be by and with the advice and consent of the Senate. Sec. 11. Be it further enacted, That provisions of the first Section of this Act, relating to the election of officers, shall apply to those regiments, battalions, and squadrons which are composed of twelve-months’ and war companies combined in the same organization, without regard to the manner in which the officers thereof were originally appointed. Sec. 12. Be it further enacted, That each company of infantry shall consist of one hundred and twenty-five, rank and file; each company of field artillery of one hundred and fifty, rank and file; each of cavalry, of eighty, rank and file. 58

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Sec. 13. Be it further enacted, That all persons, subject to enrollment, who are not now in the service, under the provisions of this act, shall be permitted, previous to such enrollment, to volunteer in companies now in the service. Approved April 16, 1862.

The “Twenty Negro” Amendment

James M. Matthews, ed., The Statutes at Large of the Confederate States of America, Passed at the Second Session of the First Congress; 1862 (Richmond, Va.: R. M. Smith, Printer to Congress, 1862), 77–79.

Chap. XLV.—An Act to exempt certain persons from military duty, and to repeal an act entitled “An Act to exempt certain persons from enrollment for service in the Army of the Confederate States,” approved 21st April, 1862. The Congress of the Confederate States of America do enact, That all persons who shall be held unfit for military service in the field, by reason of bodily or mental incapacity or imbecility, under rules to be prescribed by the Secretary of War; the Vice President of the Confederate States; the officers, judicial and executive, of the Confederate and State Governments, including postmasters appointed by the President and confirmed by the Senate, and such clerks in their offices as are allowed by the Postmaster General, and now employed, and excluding all other postmasters, their assistants and clerks; and except such State officers as the Several States may have declared, or may hereafter declare by law to be liable to militia duty; the members of both Houses of the Congress of the Confederate States, and of the Legislatures of the several States, and their respective officers; all clerks now in the offices of the Confederate and State governments authorized by law receiving salaries or fees; all volunteer troops, heretofore raised by any State since the passage of the act entitled “An act further to provide for the public defense,” approved April the sixteenth, eighteen hundred and sixty-two, while such troops shall be in active service under State authority: Provided, That this exemption shall not apply to any person who was liable to be called into service by virtue of said act of April the sixteenth, eighteen hundred and sixty-two; all pilots and persons engaged in the merchant marine service; the president, superintendents, conductors, treasurer, chief clerk, engineers, managers, station agents, section masters, two expert track hands to each section of eight miles, and mechanics in the active service and employment of railroad companies, not to embrace laborers, porters, and messengers; the president, general superintendent and operators of telegraph companies, the local superintendent and operators of said companies, not to exceed four in number at any locality, but that of the seat of Government of the Confederate States; the president, superintendents, captains, engineers, chief clerk and mechanics in the active service and employment of all companies engaged in river and canal navigation, and all captains of boats and engineers therein employed; one editor of each newspaper now being published, and such Legislative Achievements

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employees as the editor or proprietor may certify, upon oath, to be indispensable for conducting the publication; the public printer, and those employed to perform the public printing for the Confederate and State Governments; every minister of religion authorized to preach according to the rules of his sect and in the regular discharge of ministerial duties, and all persons who have been and now are members of the society of Friends and the association of Dunkards, Nazarenes, and Mennonites, in regular membership in their respective denominations: Provided, Members of the society of Friends, Nazarenes, Mennonites, and Dunkards shall furnish substitutes to pay a tax of five hundred dollars each into the public Treasury; all physicians who now are, and for the last five years have been, in the actual practice of their profession; all shoemakers, tanners, blacksmiths, wagonmakers, millers and their engineers, millwrights, skilled and actually employed at their regular vocation in the said trades, habitually engaged in working for the public, and whilst so actually employed: Provided, Said persons shall make oath in writing that they are so skilled and actually employed at the time at their regular vocation in one of the above trades, which affidavit shall only be prima facie evidence of the facts therein stated: Provided, further, That the exemptions herein granted to persons by reason of their peculiar mechanical or other occupation or employment, not connected with the public service, shall be subject to the condition that the products of the labor of such exempts, or of the companies and establishments with which they are connected, shall be sold and disposed of by the proprietors at prices not exceeding seventy-five per centum upon the cost of production, or within a maximum to be fixed by the Secretary of War, under such regulations as he may prescribe: And it is further provided, That if the proprietors of any such manufacturing establishments shall be shown, upon evidence, to be submitted to, and judged of, by the Secretary of War, to have violated, or in any manner evaded the true intent and spirit of the foregoing proviso, the exemptions therein granted shall no longer be extended to them, their superintendents or operatives in said establishments, but they and each and every of them shall be forthwith enrolled under the provisions of this act, and ordered into the Confederate army, and shall in no event, be again exempted therefrom by reason of said manufacturing establishments or employment therein; all superintendents of public hospitals, lunatic asylums, and the regular physicians, nurses and attendants therein, and the teachers employed in the institutions for the deaf, dumb and blind; in each apothecary store, now established and doing business, one apothecary in good standing, who is a practical apothecary; superintendents and operators in wool and cotton factories, paper mills, and superintendents and managers of wool-carding machines, who may be exempted by the Secretary of War: Provided, The profits of such establishments shall not exceed seventy-five per centum upon the cost of production, to be determined upon oath of the parties, subject to the same penalties for violation of the provisions herein contained as are hereinbefore provided in case of other manufacturing and mechanical employ60

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ments; all presidents and teachers of colleges, academies, schools and theological seminaries, who have been regularly engaged as such for two years previous to the passage of this act; all artisans, mechanics, and employees in the establishments of the Government for the manufacture of arms, ordnance, ordnance stores, and other munitions of war, saddles, harness and army supplies, who may be certified by the officer in charge thereof, as necessary for such establishments; also, all artisans, mechanics, and employees in the establishments of such persons as are or may be engaged under contracts with the Government in furnishing arms, ordnance stores, and other munitions of war: Provided, That the chief of the ordnance bureau, or some ordnance officer authorized by him for the purpose, shall approve of the number of the operatives required in such establishments; all persons employed in the manufacture of arms or ordnance of any kind by the several States, or by contractors to furnish the same to the several State Governments, whom the Governor or Secretary of State thereof may certify to be necessary to the same; all persons engaged in the construction of ships, gun-boats, engines, sails, or other articles necessary to the public defense, under the direction of the Secretary of the Navy; all superintendents, managers, mechanics and miners employed in the production, and manufacture of salt to the extent of twenty bushels per day, and of lead and iron, and all persons engaged in burning coke for smelting and manufacture of iron, regular miners in coal mines, and all colliers engaged in making charcoal for making pig and bar iron, not to embrace laborers, messengers, wagoners, and servants, unless employed at works conducted under the authority and by the officers or agents of a State, or in works employed in the production of iron for the Confederate States; one male citizen for every five hundred head of cattle, for every two hundred and fifty head of horses or mules, and one shepherd for every five hundred head of sheep, of such persons as are engaged exclusively in raising stock: Provided, That there is no white male adult not liable to do military duty engaged with such person in raising said stock; to secure the proper police of the country, one person, either as agent, owner or overseer on each plantation on which one white person is required to be kept by the laws or ordinances or any State, and on which there is no white adult not liable to do military service, and in States having no such law, one person as agent, owner or overseer, on each plantation of twenty negroes, and on which there is no white male adult not liable to military service: And furthermore, For additional police for every twenty negroes on two or more plantations, within five miles of each other, and each having less than twenty negroes, and on which there is no white male adult not liable to military duty, one person, being the oldest of the owners or oversees on such plantations; and such other persons as the President shall be satisfied, on account of justice, equity or necessity, ought to be exempted, are hereby exempted from military service in the armies of the Confederate States and also a regiment raised under and by authority of the State of Texas, for frontier defense, now in the service of said State, while in such service: Provided, further, That the exemptions Legislative Achievements

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herein above enumerated and granted hereby shall only continue whilst the persons exempted are actually engaged in their respective pursuits or occupations. Sec. 2. Be it further enacted, That the act entitled “An act to exempt certain persons from enrollment for service in the armies of the Confederate States,” approved the twenty-first of April, eighteen hundred and sixty-two, is hereby repealed. Approved October 11, 1862.

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Homestead Act of 1862, M ay 20, 1862 U.S. Statutes at Large 12:392–93.

One of the most important nonmilitary pieces of legislation enacted during the United States Civil War, homesteads on the large public lands in the great West had long been dreamed of by policy makers and the general population in the early to mid-nineteenth century. Not free land distributed to persons in the West but inexpensive land, homesteads exactly fit the Jeffersonian image of a nation of property-owning small farmers as the backbone of the United States. Yet, the question arose: would those farmers on the Great Plains possess slaves or not? Variations of that question developed, such as, could Congress include or exclude slavery from the West, or could the “people” in the federal territories employ what Lewis Cass and Stephen Douglas called “popular sovereignty” to decide the issue? If so, when? In opposition to the potential expansion of slavery into the federal territories to defend “free soil,” meaning defending the opportunity of free white labor to move to and develop the West, a sectional political party arose, the Republicans. Antislavery because of their free soil position, but not abolitionist and certainly not pro-black, Republicans supported the idea of homesteads as the public policy to ensure that the West was populated with free white labor, not slave labor. A bit ironically, Senator Andrew Johnson of Tennessee had long advocated for and introduced a homestead bill into the Senate, only to see it fail because southerners and their northern doughface supporters (northern men with southern sentiments) opposed the establishment of homesteads unless slavery could be guaranteed in the great West. But, with the southerners absent from Congress, the House of Representatives and the Senate passed a homestead bill and President Abraham Lincoln signed it. It provided up to 160 acres of the public domain at a cost of one dollar and twentyfive cents an acre to persons who had not participated in the

rebellion. After five years of continuous residence on the land and after paying a ten-dollar fee, the homesteader could achieve clear title (fee simple in legal parlance) to the land. On January 1, 1863, at Cub Creek, Nebraska, the federal government began the homestead program. Over time, while numerous problems with the program developed, such as fraud and the problem that 160 acres is not enough land to ranch on the high plains, the 1862 Homestead Act completed a social and political dream of moving the population westward and developing stable, self-sufficient, independent landowners—a propertied form of the American promise and dream. Chap. LXXV.—An Act to secure Homestead to actual Settlers on Public Domain. Be It enacted by the Senate and House of Representatives of the United States of America in assembled, That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who shall have filed his declaration intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States Government or given aid and comfort to its enemies, shall, from and after the first of January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preëmption at one dollar and twentyfive cents, or less, per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivision of the public lands, and after the same shall have been surveyed: Provided, That any person owning and residing on land may, under the provisions of this act, enter other land lying contiguous to his or her said land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres. Sec. 2. And be it further enacted, That the person applying for the benefit of this act shall, upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family, or is twenty-one years or more of age, or shall have performed service in the army or navy of the United States, and that he has never borne arms against the Government of the United States or given aid and comfort to its enemies, and that such application is made for his or her exclusive use and benefit, and that said entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person or person whomever; and upon filing the said affidavit with register or receiver, and on payment of ten dollars, he or she shall thereupon be permitted to enter the quantity of land specified: Provided, however, That no certificate shall 64

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be given or patent issued therefor until the expiration of five years from the date of such entry; and if, at the expiration of such time, or at any time within two years thereafter; the person making such entry; or, if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death; shall prove by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, and that he has borne true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time a citizen of the United States, shall be entitled to a patent, as in other cases provided for by law; And provided further, That in case of the death of both father and mother, leaving an infant child or children, under twenty-one years of age, the right and fee shall enure to the benefit of said infant child or children; and the executor, administrator or guardian may, at any time within two years after the death of the surviving parent, and in accordance with the laws of the State in which such children for the time being have their domicile, sell said land for the benefit of said infants, but for no other purpose; and the purchaser shall acquire the absolute title by the purchase, and be entitled to a patent from the United States, on payment of the office fees and sum of money herein specified. Sec. 3. And be it further enacted, That the register of the land office shall note all such applications on the tract books and plats of his office, and keep a register of all such entries, and make return thereof to the General Land Office, together with the proof upon which they have been founded. Sec. 4. And be it further enacted, That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt of debts contracted prior to the issuing of the patent therefor. Sec. 5. And be it further enacted, That if, at any time after the filing of the affidavit, as required in the second section of this act, and before the expiration of the five years aforesaid, it shall be proven, after due notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the government. Sec. 6. And be it further enacted, That no individual shall be permitted to acquire title to more than one quarter section under the provision of this act; and that the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations, consistent with this act, as shall be necessary and proper to carry its provision into effect; and that the registers and receivers of the several land offices shall be entitled to receive the same compensation for any lands entered under the provision of this act that they are now entitled to receive when the same quantity of land is entered with money, one half to be paid by the Legislative Achievements

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person making the application at the time of so doing, and the other half on the issue of the certificate by the person to whom it may be issued; but this shall not be construed to enlarge the maximum of compensation now prescribed by law for any register or receiver; Provided, That nothing contained in this act shall be so construed as to impair or interfere in any manner whatever with existing preëmption rights. And provided, further, That all persons who may have filed their applications for a preëmption right prior to the passage of this act, shall be entitled to all privileges of this act: Provided, further, That no person who has served, or may hereafter serve, for a period of not less than fourteen days in the army or navy of the United States, either regular or volunteer, under the laws thereof, during the existence of an actual war, domestic or foreign, shall be deprived of the benefits of this act on account of not having attained the age of twenty-one years. Sec. 7. And be it further enacted, That the fifth section of the act entitled “An act in addition to an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,” approved the third of March, in the year eighteen hundred and fifty-seven, shall extend to all oaths, affirmations, and affidavits, required or authorized by this act. Sec. 8. And be it further enacted, That nothing in this act shall be so construed as to prevent any person who has availed him or herself of the benefits of the first section of this act, from paying the minimum price, or the price to which the same may have graduated, for the quantity of land so entered at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases provided by law, on making proof of settlement and cultivation as provided by existing laws granting preëmption rights. Approved, May 20, 1862.

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Pacific R ailroad Act, July 1, 1862 U.S. Statutes at Large 12:489–98.

Another of the most important nonmilitary pieces of legislation enacted during the Civil War era, this act provided the legal beginning of what would become the transcontinental railroad. Started during the war, but not completed until 1869, the idea of a transcontinental railroad had fired the imagination of investors and politicians from at least the conclusion of the Mexican War through the 1850s. But questions on where to run the line and southern fears that the line would not connect them to the West meant that they defeated every effort to pass such legislation earlier. But with the start of the war and the withdrawal of the southern representatives and senators from Congress, the rest of the body pressed ahead with plans for a transcontinental railroad. Congress granted the Union Pacific Railroad a right of way on either side of the proposed rail route and granted access to the timber or stone and other materials in the railroad’s path. This story of connecting the two coasts of the United States has become iconographic in U.S. history, and this statute represents the beginning of the process of knitting the country together with a web of steel rails. Chap. CXX.—An Act to aid in the construction of a Railroad and Telegraph Line from the Missouri River to the Pacific Ocean, and to secure to the Government the Use of the same for Postal, Military, and Other Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Walter S. Bugess, William O. Blodget, Benjamin H. Cheever, Charles Fosdick Fletcher, of Rhode Island, Augustus Brewster, Henry P. Haven, Cornelius S. Bushnell, Henry Hammond, of Connecticut; Isaac Sherman, Dean Richmond, Royal Phelps, William H. Ferry, Henry A. Paddock, Lewis J. Stancliff, Charles A. Secor, Samuel R. Campbell, Alfred E. Tilton, John Anderson, Azariah Boody, John S. Kennedy, H. Carver, Joseph Field, Benjamin F. Camp, Orville W. Childs, Alexander J.

Bergen, Ben. Holliday, D. N. Barney, S. De Witt Bloodgood, William H. Grant, Thomas W. Olcott, Samuel B. Ruggles, James B. Wilson, of New York; Ephraim Marsh, Charles M. Harker, of New Jersey; John Edgar Thompson, Benjamin Haywood, Joseph H. Scranton, Joseph Harrison, George W. Cass, John H. Bryant, Daniel J. Morell, Thomas M. Howe, William F. Johnson, Robert Finney, John A. Green, E. R. Myre, Charles F. Wells, junior, of Pennsylvania; Noah L. Wilson, Amasa Stone, William H. Clement, S. S. L’Hommedieu, John Brough, William Dennison, Jacob Blickinsderfer, of Ohio; William M. McPherson, R. W. Wells, Willard P. Hall, Armstrong Beatty, John Corby, of Missouri; S. J. Hensley, Peter Donahue, C. P. Huntington, T. D. Judah, James Bailey, James T. Ryan, Charles Hosmer, Charles Marsh, D. O. Mills, Samuel Bell, Louis McLalle, George W. Mowe, Charles McLaughlin, Timothy Dame, John R. Robinson, of California; John Atchison and John D. Winters, of the Territory of Nevada; John D. Campbell, R. N. Rice, Charles A. Trowbridge, and Ransom Gardner, Charles W. Penny, Charles T. Gorham, William McConnell, of Michigan; William F Coolbaugh, Lucius H. Langworthy, Hugh T. Reid, Hoyt Sherman, Lyman Cook, Samuel R. Curtis, Lewis A. Thomas, Platt Smith, of Iowa; William B. Ogden, Charles G. Hammond, Henry Farnum, Amos C. Babcock, W. Seldon Gale, Nehemiah Bushnell and Lorenzo Bull, of Illinois; William H. Swift, Samuel T. Dana, John Bertram, Franklin S. Stevens, Edward R. Tinker, of Massachusetts; Franklin Gorin, Laban J. Bradford, and John T. Levis, of Kentucky; James Dunning, John M. Wood, Edwin Noyes, Joseph Eaton, of Maine; Henry H. Baxter, George W. Collamer, Henry Keyes, Thomas H. Canfield, of Vermont; William S. Ladd, A. M. Berry, Benjamin F. Harding, of Oregon; William Bunn, junior, John Catlin, Levi Sterling, John Thompson, Ellhu L. Phillips, Walter D. McIndoe T. B. Stoddard, E. H. Brodhead, A. H. Virgin, of Wisconsin; Charles Paine, Thomas A. Morris, David C. Branham, Samuel Hanna, Jonas Votaw, Jesse L. Villiams, Isaac C. Elston, of Indiana; Thomas Swan, Chauncey Brooks, Edward Wilkins, of Maryland; Francis R. E. Cornell, David Blakely, A. D. Seward, Henry A. Swift, Dwight Woodbury, John McKusick, John R. Jones, of Minnesota; Joseph A. Gilmore, Charles W. Woodman, of New Hampshire; W. H. Grimes, J. C. Stone, Chester Thomas, John Kerr, Werter R. Davis, Luther C. Challiss, Josiah Miller, of Kansas; Gilbert C. Monell and Augustus Kountz, T. M. Marquette, William H. Taylor, Alyin Saunders, of Nebraska; John Evans, of Colorado; together with commissioners to be appointed by the Secretary of the Interior, and all persons who shall or may be associated with them, and their successors, are hereby created and erected into a body corporate and politic in deed and in law, by the name, style, and title of “The Union Pacific Railroad Company; “and by that name shall have perpetual succession, and shall be able to sue and to be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States, and may make and have a common seal; and the said corporation is hereby 68

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authorized and empowered to layout, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph, with the appurtenances, from a point on the one hundredth meridian of longitude west from Greenwich, between the south margin of the valley of the Republican River and the north margin of the valley of the Platte River, in the Territory of Nebraska, to the western boundary of Nevada Territory, upon the route and terms hereinafter provided, and is hereby vested with all the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set forth. The capital stock of said company shall consist of one hundred thousand shares of one thousand dollars each, which shall be subscribed for and held in not more than two hundred shares by anyone person, and shall be transferable in such manner as the by-laws of said corporation shall provide. The persons hereinbefore named, together with those to be appointed by the Secretary of the Interior, are hereby constituted and appointed commissioners, and such body shall be called the Board of Commissioners of the Union Pacific Railroad and Telegraph Company, and twenty-five shall constitute a quorum for the transaction of business. The first meeting of said board shall be held at Chicago at such time as the commissioners from Illinois herein named shall appoint, not more than three nor less than one month after the passage of this act, notice of which shall be given by them to the other commissioners by depositing a call thereof in the post office at Chicago, post paid, to their address at least forty days before said meeting, and also by publishing said notice in one daily newspaper in each of the cities of Chicago and Saint Louis. Said board shall organize by the choice from its number of a president, secretary, and treasurer, and they shall require from said treasurer such bonds as may be deemed proper, and may from time to time increase the amount thereof as they may deem proper. It shall be the duty of said board of commissioners to open books, or cause books to be opened, at such times and in such principal cities in the United States as they or a quorum of them shall deter-mine, to receive subscriptions to the capital stock of said corporation, and a cash payment of ten per centum on all subscriptions, and to receipt therefor. So soon as two thousand shares shall be in good faith subscribed for, and ten dollars per share actually paid into the treasury of the company, the said president and secretary of said board of commissioners shall appoint a time and place for the first meeting of the subscribers to the stock of said company, and shall give notice thereof in at least one newspaper in each State in which subscription books have been opened at least thirty days previous to the day of meeting, and such subscribers as shall attend the meeting so called, either in person or by proxy, shall then and there elect by ballot not less than thirteen directors for said corporation; and in such election each share of said capital shall entitle the owner thereof to one vote. The president and secretary of the board of commissioners shall act as inspectors of said election, and shall certify under their hands the names of the directors elected at said meeting; and the said commissioners, treasurer, and secretary shall then deliver over to said directors all the Legislative Achievements

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properties, subscription books and other books in their possession, and thereupon the duties of said commissioners, and the officers previously appointed by them shall cease and determine forever, and thereafter the stockholders shall constitute said body politic and corporate. At the time of the first and each triennial election of directors by the stockholders two additional directors shall be appointed by the President of the United States, who shall act with the body of directors, and to be denominated directors on the part of the government; any vacancy happening in the government directors at any time may be filled by the President of the United States. The directors to be appointed by the President shall not be stockholders in the Union Pacific Railroad Company. The directors so chosen shall, as soon as may be after their election, elect from their own number a president and vicepresident, and shall also elect a treasurer and secretary. No person shall be a director in said company unless he shall be a bona fide owner of at least five shares of stock in the said company, except the two directors to be appointed by the President as aforesaid. Said company, at any regular meeting of the stockholders called for that purpose, shall have power to make by-laws, rules, and regulations as they shall deem needful and proper, touching the disposition of the stock, property, estate, and effects of the company, not inconsistent herewith, the transfer of shares, the term of office, duties, and conduct of their officers and servants, and all matters whatsoever which may appertain to the concerns of said company; and the said board of directors shall have power to appoint such engineers, agents, and sub-ordinates as may from time to time be necessary to carry into effect the object of this act, and to do all acts and things touching the location’ and construction of said road and telegraph. Said directors may require payment of subscriptions to the capital stock, after due notice, at such times and in such proportions as they shall deem necessary to complete the rail-road and telegraph within the time in this act prescribed. Said president, vice-president, and directors shall hold their office for three years, and until their successors are duly elected and qualified, or for such less time as the by-laws of the corporation may prescribe; and a majority of said directors shall constitute a quorum for the transaction of business. The secretary and treasurer shall give such bonds, with such security, as the said board shall from time to time require, and shall hold their offices at the will and pleasure of the directors. Annual meetings of the stock-holders of the said corporation, for the choice of officers (when they are to be chosen) and for the transaction of annual business, shall be holden at such time and place and upon such notice as may be prescribed in the by-laws. Sec. 2. And be it further enacted, That the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; and the right, power, and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber, and other materials for the construction thereof; said right of way is granted to said railroad to the extent of two hundred feet in width 70

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on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops, and depots, machine shops, switches, side tracks, turntables, and, water stations. The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and; grants hereinafter made. Sec. 3. And be it further enacted, That there be, and is hereby, granted to the said company, for the purpose of aiding in the construction , of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed: Provided, That all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to said company. And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and preemption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company. Sec. 4. And be it further enacted, That whenever said company shall have completed forty consecutive miles of any portion of said railroad and telegraph line, ready for the service contemplated by this act, and supplied with all necessary drains, culverts, viaducts, crossings, sidings, bridges, turnouts, watering places, depots, equipments, furniture, and all other appurtenances of a first class railroad, the rails and all the other iron used in the construction and equipment of said road to be American manufacture of the best quality, the President of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue conveying the right and title to said lands to said company, on each side of the road as far as the same is completed, to the amount aforesaid; and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners. Any vacancies occurring in said board of commissioners by death, resignation, or otherwise, shall be filled by the President of the United States: Provided, however, That no such commissioners shall be appointed by the President of the United States unless there shall be presented to him a statement, verified on oath by the president of said company, that such forty miles have been completed, in the manner required by this act, and setting forth with certainty the points where Legislative Achievements

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such forty miles begin and where the same end; which oath shall be taken before a judge of a court of record. Sec. 5. And be it further enacted, That for the purposes herein mentioned the Secretary of the Treasury shall, upon the certificate in writing of said commissioners of the completion and equipment of forty consecutive miles of said railroad and telegraph, in accordance with the provisions of this act, issue to said company bonds of the United States of one thousand dollars each, payable in thirty years after date, bearing six per centum per annum interest (said interest payable semi-annually,) which interest may be paid in United States treasury notes or any other money or currency which the United States have or shall declare lawful money and a legal tender, to the amount of sixteen of said bonds per mile for such section of forty miles; and to secure the repayment to the United States, as hereinafter provided, of the amount of said bonds so issued and delivered to said company, together with all interest thereon which shall have been paid by the United States, the issue of said bonds and delivery to the company shall ipso facto constitute a first mortgage on the whole line of the railroad and telegraph, together with the rolling stock, fixtures and property of every kind and description, and in consideration of which said bonds may be issued; and on the refusal or failure of said company to redeem said bonds, or any part of them, when required so to do by the Secretary of the Treasury, in accordance with the provisions of this act the said road, with all the rights, functions, immunities, and appurtenances thereunto belonging, and also all lands granted to the said company by the United States, which, at the time of said default, shall remain in the ownership of the said company, may be taken possession of by the Secretary of the Treasury, for the use and benefit of the United States: Provided, this section shall not apply to that part of any road now constructed. Sec. 6. And be it further enacted, That the grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line, and transport mails, troops, and munitions of war, supplies, and public storage upon said railroad for the government, whenever required to do so by any department, thereof, and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid, (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service ;) and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest until the whole amount is fully paid. Said company may also pay the United States, wholly or in part, in the same or other bonds, treasury notes, or other evidences of debt against the United States, to be allowed at par; and after said road is completed, until said bonds and interest are paid, at least five per centum of the net earnings of said road shall also be annually applied to the payment thereof. Sec. 7. Be it further enacted, That said company shall file their assent to this act, under the seal of said company, in the Department of the Interior, within 72

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one year after the passage of this act, and shall complete said railroad and telegraph from the point of beginning as herein provided, to the western boundary of Nevada Territory before the first day of July, one thousand eight hundred and seventy-four: Provided, That within two years after the passage of this act said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the Department of the Interior, whereupon the Secretary of the Interior shall cause the lands within fifteen miles of said designated route or routes to be withdrawn from preemption, private entry, and sale; and when any portion of said route shall be finally located, the Secretary of the Interior shall cause the said lands herein-before granted to be surveyed and set off as fast as may be necessary for the purposes herein named: Provided, That in fixing the point of connection of the main trunk with the eastern connections, it shall be fixed at the most practicable point for the construction of the Iowa and Missouri branches, as hereinafter provided. Sec. 8. And be it further enacted, That the line of said railroad and telegraph shall commence at a point on the one hundredth meridian of a longitude west from Greenwich, between the south margin of the valley of the Republican River and the north margin of the valley of the Platte River, in the Territory of Nebraska, at a point to be fixed by the President of the United States, after actual surveys; thence running westerly upon the most direct, central, and practicable route, through the territories of the United States, the western boundary of the Territory of Nevada, there to meet and connect with the line of the Central Pacific Railroad Company of California. Sec. 9. And be it further enacted, That the Leavenworth, Pawnee, and Western Railroad Company of Kansas are hereby authorized to construct a railroad and telegraph line, from the Missouri River, at the mouth of the Kansas River, on the south side thereof, so as to connect with the Pacific railroad of Missouri, to the aforesaid point, on the one hundredth meridian of longitude west from Greenwich, as herein provided, upon the same terms and conditions in all respects as are provided in this act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude aforesaid; and in case the general route or line of road from the Missouri River to the Rocky Mountains should be so located as to require a departure northwardly from the proposed line of said Kansas railroad before it reaches the meridian of longitude aforesaid, the location of said Kansas road shall be made so as to conform thereto; and said railroad through Kansas shall be so located between the mouth of the Kansas River, as aforesaid, and the aforesaid point, on the one hundredth meridian of longitude, that the several railroads from Missouri and Iowa, herein authorized to connect with the same, can make connection within the limits prescribed in this act, provided the same can be done without deviating from the general direction of the whole line to the Pacific coast. The route in Kansas, west of the meridian of Fort Riley, to the aforesaid point, on the one hundredth meridian Legislative Achievements

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of longitude, to be subject to the approval of the President of the United States, and to be determined by him on actual survey. And said Kansas company may proceed to build said railroad to the aforesaid point, on the one hundredth meridian of longitude west from Greenwich, in the territory of Nebraska. The Central Pacific Railroad Company of California, a corporation existing under the laws of the State of California, are hereby authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of California, upon the same terms and conditions, in all respects, as are contained in this act for the construction of said railroad and telegraph line first mentioned, and to meet and connect with the first mentioned railroad and telegraph line on the eastern boundary of California. Each of said companies shall file their acceptance of the conditions of this act in the Department of the Interior within six months after the passage of this act. Sec. 10. And be it further enacted, That the said company chartered, by the State of Kansas shall complete one hundred miles of their said road, commencing at the mouth of the Kansas River as aforesaid, within two years after filing their assent to the conditions of this act, as herein provided, and one hundred miles per year thereafter until the whole is completed; and the said Central Pacific Railroad Company of California shall complete fifty miles of their said road within two years after filing their assent to the provisions of this act, as herein provided, and fifty miles per year thereafter until the whole is completed; and after completing their roads, respectively, said companies, or either of them, may unite upon equal terms with the first-named company in constructing so much of said railroad and telegraph line and branch railroads and telegraph lines in Luis act hereinafter mentioned, through the Territories from the State of California to the Missouri River, as shall then remain to be constructed, on the same terms and conditions as provided in this act in relation to the said Union Pacific Railroad Company. And the Hannibal and St. Joseph Railroad, the Pacific Railroad Company of Missouri, and the first-named company, or either of them, on filing their assent to this act, as aforesaid, may unite upon equal terms, under this act, with the said Kansas company, in constructing said railroad and telegraph, to said meridian of longitude, with the consent of the said State of Kansas; and in case said firstnamed company shall complete their line to the eastern boundary of California before it is completed across said State by the Central Pacific Railroad Company of California, said first-named company is hereby authorized to continue in constructing the same through California, with the consent of said State, upon the terms mentioned in this act, until said roads shall meet and connect, and the whole line of said railroad and telegraph is completed; and the Central Pacific Railroad Company of California, after completing its road across said State, is authorized to continue the construction of said railroad and telegraph through the Territories of the United States to the Missouri River, including the branch roads specified in this act, upon the routes hereinbefore and hereinafter indicated, 74

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on the terms and conditions pro-vided in this act in relation to the said Union Pacific Railroad Company, until said roads shall meet and connect, and the whole line of said railroad and branches and telegraph is completed. Sec. 11. And be it further enacted, That for three hundred miles of said road most mountainous and difficult of construction, to wit: one hundred and fifty miles westwardly from the eastern base of the Rocky Mountains, and one hundred and fifty miles eastwardly from the western base of the Sierra Nevada mountains, said points to be fixed by the President of the United States, the bonds to be issued to aid in the construction thereof shall be treble the number per mile hereinbefore pro-vided, and the same shall be issued, and the lands herein granted be set apart, upon the construction of every twenty miles thereof, upon the certificate of the commissioners as aforesaid that twenty consecutive miles of the same are completed; and between the sections last named of one hundred and fifty miles each, the bonds to be issued to aid in the construction thereof shall be double the number per mile first mentioned, and the same shall be issued, and the lands herein granted be set apart, upon the construction of every twenty miles thereof, upon the certificate of the commissioners as aforesaid that twenty consecutive miles of the same are completed: Provided, That no more than fifty thousand of said bonds shall be issued under this act to aid in constructing the main line of said railroad and telegraph. Sec. 12. And be it further enacted, That whenever the route of said railroad shall cross the boundary of any State or Territory, or said meridian of longitude, the two companies meeting or uniting there shall agree upon its location at that point, with reference to the most direct and practicable through route, and in case of difference between them as to said location the President of the United States shall determine the said location; the companies named in each State and Territory to locate the road across the same between the points so agreed upon, except as herein provided. The track upon the entire line of railroad and branches shall be of uniform width, to be determined by the President of the United States, so that, when completed, cars can be run from the Missouri River to the Pacific coast; the grades and curves shall not exceed the maximum grades and curves of the Baltimore and Ohio railroad; the whole line of said railroad and branches and telegraph shall be operated and used for all purposes of communication, travel, and transportation, so far as the public and government are concerned, as one connected, continuous line; and the companies herein named in Missouri, Kansas, and California, filing their assent to the provisions of this act, shall receive and transport all iron rails, chairs, spikes, ties, timber, and all materials required for constructing and furnishing said first-mentioned line between the aforesaid point, on the one hundredth meridian of longitude and western boundary of Nevada Territory, whenever the same is required by said first-named company, at cost, over that portion of the roads of said companies constructed under the provisions of this act. Legislative Achievements

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Sec. 13. And be it further enacted, That the Hannibal and Saint Joseph Railroad Company of Missouri may extend its roads from Saint Joseph, via Atchison, to connect and unite with the road through Kansas, upon filing its assent to the provisions of this act, upon the same terms and conditions, in all respects for one hundred miles in length next to the Missouri River, as are provided in this act for the construction of the railroad and telegraph line first mentioned, and may for this purpose use any railroad charter which has been or may be granted by the legislature of Kansas; Provided, That if actual survey shall render it desirable, the said company may construct their road, with the consent of the Kansas legislature, on the most direct and practicable route west from St. Joseph, Missouri, so as to connect and unite with the road leading from the western boundary of Iowa at any point east of the one hundredth meridian of west longitude, or with the main trunk road at said point; but in no event shall lands or bonds be given to said company, as herein directed, to aid in the construction of their said road for a greater distance than one hundred miles. And the Leavenworth, Pawnee, and Western Railroad Company of Kansas may construct their road from leavenworth to unite with the road through Kansas. Sec. 14. And be it further enacted, That the said Union Pacific Railroad Company is hereby authorized and required to construct a single line of railroad and telegraph from a point on the western boundary of the State of Iowa, to be fixed by the President of the United States, upon the most direct and practicable route, to be subject to his approval, so as to form a connection with the lines of said company at some point on the one hundredth meridian of longitude aforesaid, from the point of commencement on the western boundary of the State of Iowa, upon the same terms and conditions, in all respects, as are contained in this act for the construction of the said railroad and telegraph first mentioned; and the said Union Pacific Railroad Company shall complete one hundred miles of the road and telegraph in this section provided for, in two years after filing their assent to the conditions of this act, as by the terms of this act required, and at the rate of one hundred miles per year thereafter, until the whole is completed: Provided, That a failure upon the part of said company to make said connection in the time aforesaid, and to perform the obligations imposed on said company by this section and to operate said road in the same manner as the main line shall be operated, shall forfeit to the government of the United States all the rights, privileges, and franchises granted to and conferred upon said company by this act. And whenever there shall be a line of railroad completed through Minnesota or Iowa to Sioux City, then the said Pacific Railroad Company is hereby authorized and required to construct a rail-road and telegraph from Said Sioux City upon the most direct and practicable route to a point on, and so as to connect with, the branch railroad and telegraph in this section hereinbefore mentioned, or with the said Union Pacific Railroad, said point of junction to be fixed by the President of the United States, not further west than the one hundredth meridian of longitude 76

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aforesaid, and on the same terms and conditions as provided in this act for the construction of the Union Pacific Railroad as aforesaid, and to complete the same at the rate of one hundred miles per year; and should said company fail to comply with the requirements of this act in relation to the said Sioux City railroad and telegraph, the said company shall suffer the same forfeitures prescribed in relation to the Iowa branch railroad and telegraph hereinbefore mentioned. Sec. 15. And be it further enacted, That any other railroad company now incorporated, or hereafter to be incorporated, shall have the right to connect their road with the road and branches provided for by this act, at such places and upon such just and equitable terms as the President of the United States may prescribe. Wherever the word company is used in this act it shall be construed to embrace the words their associates, successors, and assigns, the same as if the words had been properly added thereto. Sec. 16. And be it further enacted, That at any time after the passage of this act all of the railroad companies named herein, and assenting hereto, or any two or more of them, are authorized to form themselves into one consolidated company; notice of such consolidation, in writing, shall be filed in the Department of the Interior, and such consolidated company shall thereafter proceed to construct said railroad and branches and telegraph line upon the terms and conditions provided in this act. Sec. 17. And be it further enacted, That in case said company or companies shall fail to comply with the terms and conditions of this act, by not completing said road and telegraph and branches within a reason-able time, or by not keeping the same in repair and use, but shall permit the same, for an unreasonable time, to remain unfinished, or out of repair, and unfit for use, Congress may pass any act to insure the speedy completion of said road and branches, or put the same in repair and use, and may direct the income of said railroad and telegraph line to be there-after devoted to the use of the United States, to repay all such expenditures caused by the default and neglect of such company or companies: Provided, That if said roads are not completed, so as to form a continuous line of railroad, ready for use, from the Missouri River to the navigable waters of the Sacramento River, in California, by the first day of July, eighteen hundred and seventy-six, the whole of all of said railroads before mentioned and to be constructed under the provisions of this act, together with all their furniture, fixtures, rolling stock, machine shops, lands, tenements, and hereditaments, and property of every kind and character, shall be forfeited to and be taken possession of by the United States: Provided, That of the bonds of the United States in this act provided to be delivered for any and all parts of the roads to be constructed east of the one hundredth meridian of west longitude from Greenwich, and for any part of the road west of the west foot of the Sierra Nevada mountain, there shall be reserved of each part and installment twenty-five per centum, to be and remain in the United States treasury, undelivered, until said road and all parts thereof provided for in this act Legislative Achievements

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are entirely completed; and of all the bonds provided to be delivered for the said road, between the two points aforesaid, there shall be reserved out of each installment fifteen per centum, to be and remain in the treasury until the whole of the road provided for in this act is fully completed; and if the said road or any part thereof shall fail of completion at the time limited therefor in this act, then and in that case the said part of said bonds so reserved shall be forfeited to the United States. Sec. 18. And be it further enacted, That whenever it appears that the net earnings of the entire road and telegraph, including the amount allowed for services rendered for the United States, after deducting all expenditures, including repairs, and the furnishing, running, and managing of said road, shall exceed ten per centum upon its cost, exclusive of the five per centum to be paid to the United States, Congress may reduce the rates of fare thereon, if unreasonable in amount, and may fix and establish the same by law. And the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military and other purposes, Congress may, at any time, having due regard for the rights of said companies named herein, added to, alter, amend, or repeal this act. Sec. 19. And be it further enacted, That the several railroad companies herein named are authorized to enter into an arrangement with the Pacific Telegraph Company, the Overland Telegraph Company, and the California State Telegraph Company, so that the present line of telegraph between the Missouri River and San Francisco may be moved upon or along the line of said railroad and branches as fast as said roads and branches are built; and if said arrangement be entered into and the transfer of said telegraph line be made in accordance therewith to the line of said railroad and branches, such transfer shall, for all purposes of this act, be held and considered a fulfillment on the part of said railroad companies of the provisions of this act in regard to the construction of said line of telegraph. And, in case of disagreement, said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of said railroad companies named herein. Sec. 20. And be it further enacted, That the corporation hereby created and the roads connected therewith, under the provisions of this act, shall make to the Secretary of the Treasury an annual report wherein shall be set forth— First. The names of the stockholders and their places of residence, so far as the same can be ascertained; Second. The names and residences of the directors, and all other officers of the company; Third. The amount of stock subscribed, and the amount thereof actually paid in; 78

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Fourth. A description of the lines of road surveyed, of the lines thereof fixed upon for the construction of the road, and the cost of such surveys; Fifth. The amount received from passengers on the road; Sixth. The amount received for freight thereon; Seventh. A statement of the expense of said road and its fixtures; Eighth. A statement of the indebtedness of said company, setting forth the various kinds thereof. Which report shall be sworn to by the president of the said company, and shall be presented to the Secretary of the Treasury on or before the first day of July in each year. Approved, July 1, 1862.

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Morrill L and Gr ant Act, July 2, 1862 U.S. Statutes at Large 12:503–5.

Although the Land Ordinance of 1785 had provided that section sixteen of every township would be sold and the monies used to establish a “school fund,” the schools established were overwhelmingly grammar or secondary schools. By the 1850s, northerners and midwesterners had become interested in what came to be described as the “Illinois Idea,” which set aside public lands for institutions of higher learning. Like the hope of homesteads, southerners blocked efforts to establish such land-grant colleges throughout the 1850s, arguing constitutional strict construction that because the 1787 Constitution did not provide for such institutions, Congress could not pass legislation for it. If such institutions of higher education were to be established, it had to be the states, not the federal government, to establish them. But, during the war years, with the southerners out of Congress, the House and Senate took the opportunity to pass this legislation. Proposed in 1861 by Republican Congressman Justin Morrill of Vermont and overcoming some opposition among other Republicans who feared that their states might not be rewarded sufficiently by the act, the legislation passed in July 1862. This act, combined with the passage of the 1862 Homestead Act and the establishment of the cabinetlevel Department of Agriculture, ensured that this bill passed the Congress and received the president’s signature. This act provided 30,000 acres of public lands to each state for each of its congressmen and senators (including southern states) or land scrip for those states without public lands. Once this land or script sold, the monies generated were to be used “without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes on the several pursuits and professions

in life.” American land-grant colleges—agricultural and mechanical colleges (A&Ms)—proved a success, with a number of these institutions of higher learning, over time, achieving world-class status, such as Cornell, the University of Illinois–Champaign, Texas A&M University, the University of Wisconsin–Madison, Michigan State University, Kansas State University, and the University of California–Berkeley. Chap. CXXX.—An Act donating Public Lands to the several States and Territories which may provide Colleges for the Benefit of Agriculture and Mechanic Arts. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be granted to the several States, for the purpose hereinafter mentioned, an amount of public land, to be apportioned to each State a quantity equal to thirty thousand acres for each senator and representative in Congress to which the States are respectively entitled by the apportionment under the census of eighteen hundred and sixty: Provided, That no mineral lands shall be selected or purchased under the provisions of this Act. Sec. 2. And be it further enacted, That the land aforesaid, after being surveyed, shall be apportioned to the several States in sections or subdivisions of sections, not less than one quarter of a section; and whenever there are public lands in a State subject to sale at private entry at one dollar and twenty-five cents per acre, the quantity to which said State shall be entitled shall be selected from such lands within the limits of such State, and the Secretary of the Interior is hereby directed to issue to each of the States in which there is not the quantity of public lands subject to sale at private entry at one dollar and twenty-five cents per acre, to which said State may be entitled under the provisions of this act, land scrip to the amount in acres for the deficiency of its distributive share: said scrip to be sold by said States and the proceeds thereof applied to the uses and purposes prescribed in this Act, and for no other purpose whatsoever: Provided, That in no case shall any State to which land scrip may thus be issued be allowed to locate the same within the limits of any other State, or of any Territory of the United States, but their assignees may thus locate said land scrip upon any of the unappropriated lands of the United States subject to the sale at private entry at one dollar and twenty-five cents, or less, per acre: And provided, further, That not more than one million acres shall be located by such assignees in any one of the States: And provided, further, That no such location shall be made before one year from the passage of this act. Sec. 3. And be it further enacted, That all the expenses of management, superintendence, and taxes from date of selection of said lands, previous to their sales, and all expenses incurred in the management and disbursement of the moneys which may be received therefrom, shall be paid by the States to which they may belong, out of the treasury of said States, so that the entire proceeds of the sale 82

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of said lands shall be applied without any diminution whatever to the purposes hereinafter mentioned. Sec. 4. And be it further enacted, That all moneys derived from the sales of lands aforesaid by the States to which lands are apportioned, and from the sales of land scrip hereinbefore provided for, shall be invested in stocks of the United States, or of the States, or some other safe stocks, yielding not less than five per centum upon the par value of said stocks; and that the moneys so invested shall constitute a perpetual fund, the capital of which shall remain forever undiminished, (except so far as may be provided in section fifth of this act), and the interest of which shall be inviolably appropriated, by each State which may take and claim the benefit of this act, to the endowment, support, and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes on the several pursuits and professions in life. Sec. 5. And be it further enacted, That the grant of land and land scrip hereby authorized shall be made on the following conditions, to which, as well as to the provisions hereinbefore contained, the previous assent of the several States shall be signified by legislative acts: First. If any portion of the fund invested, as provided by the foregoing section, or any portion of the interest thereon, shall, by any action or contingency, be diminished or lost, it shall be replaced by the State to which it belongs, so that the capital of the fund shall remain forever undiminished; and the annual interest shall be regularly applied without diminution to the purposes mentioned in the fourth section of this act, except that a sum, not exceeding ten per centum upon the amount received by any State under the provisions of this act may be expended for the purchase of lands for sites or experimental farms, whenever authorized by the respective legislatures of said States. Second. No portion of said fund, nor the interest thereon, shall be applied, directly or indirectly, under any pretence whatever, to the purchase, erection, preservation, or repair of any building or buildings. Third. Any State which may take and claim the benefit of the provisions of this act shall provide, within five years from the time of its acceptance as provided in subdivision seven of this section, at least not less than one college, as described in the fourth section of this act, or the grant to such State shall cease; and said State shall be bound to pay the United States the amount received of any lands previously sold; and that the title to purchasers under the State shall be valid. Fourth. An annual report shall be made regarding the progress of each college, recording any improvements and experiments made, with their cost and results, and such other matters, including State industrial and economical statistics, Legislative Achievements

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as may be supposed useful; one copy of which shall be transmitted by mail free, by each, to all the other colleges which may be endowed under the provisions of this act, and also one copy to the Secretary of the Interior. Fifth. When lands shall be selected from those which have been raised to double the minimum price, in consequence of railroad grants, they shall be computed to the States at the maximum price, and the number of acres proportionally diminished. Sixth. No State while in a condition of rebellion or insurrection against the government of the United States shall be entitled to the benefit of this act. Seventh. No State shall be entitled to the benefits of this act unless it shall express its acceptance thereof by its legislature within two years from the date of its approval by the President. Sec. 6. And be it further enacted, That land scrip issued under the provisions of this act, shall not be subject to location until after the first day of January, one thousand eight hundred and sixty-three. Sec. 7. And be it further enacted, That the land officers shall receive the same fees for locating land scrip issued under the provisions of this act as is now allowed for the location of military bounty land warrants under existing laws; Provided, their maximum compensation shall not be thereby increased. Sec. 8. And be it further enacted, That the Governors of the several States to which scrip shall be issued under this act shall be required to report annually to Congress all sales made of such script until the whole shall be disposed of, the amount received for the same, and what appropriation has been made of the proceeds. Approved, July 2, 1862.

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Non-Issued Lincoln Veto To Second Confiscation, July 12, 1862 Edward McPherson, The Political History of the United States of America, During the Great Rebellion (Washington, D.C.: Philp & Solomons, 1865), 197– 98; Abraham Lincoln to Congress (July 17, 1862, Draft of Veto Message). Transcribed and annotated by the Lincoln Studies Center, Knox College, Galesburg, Illinois. Available at Abraham Lincoln Papers at the Library of Congress, Manuscripts Division (Washington, D.C.: American Memory Project, [2000–2001]), http://memory.loc.gov/ammem/alhtml

In this often overlooked Abraham Lincoln document (probably because of its legalistic nature), President Lincoln explained his opposition to the proposed Second Confiscation Act. Four sections of the act could be construed as constituting a bill of attainder, and the Constitution prohibited such attainders. But, Congress passed a supplement to the act the same day as they passed the Second Confiscation Act; Lincoln signed both the act and the supplement and did not issue this veto. July 17—The President sent this message to Congress: Fellow-Citizens of the Senate and House of Representatives: Considering the bill for “An act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” and the joint resolution explanatory of said act, as being substantially one, I have approved and signed both. Before I was informed of the resolution, I had prepared the draft of a message, stating objections to the bill becoming a law, a copy of which draft is herewith submitted. Abraham Lincoln. July 12, 1862. [Copy] Fellow-Citizens of the House of Representatives: I herewith return to your honorable body, in which it originated, the bill for an act entitled, “An act to suppress treason and rebellion, to seize and confiscate

the property of rebels, and for other purposes,” together with my objections to its becoming a law. There is much in the bill to which I perceive no objection. It is wholly perspective; and it touches neither person or property of any loyal citizen, in which particular it is just and proper. The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and persons who shall “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any such existing rebellion or insurrection.” By fair construction, persons within those sections are not punished without regular trials in duly constituted courts under the forms and all the substantial provisions of law and the Constitution applicable to their several cases. To this I perceive no objection; especially as such persons would be within the general pardoning power, and also the special provision for pardon and amnesty contained in the act. It is also provided that the slaves of persons convicted under these sections shall be free. I think there is an unfortunate form of expression, rather than a substantial objection, in this. It is startling to say that Congress can free a slave within a State, and yet if it were said the ownership of the slave had first been transferred to the nation, and Congress had then liberated him, the difficulty would at once vanish. And this is the real case. 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 regards to them is, “shall they be made free or sold to new masters?” I perceive no objection to Congress deciding in advance that they shall be free. To the high honor of Kentucky, as I am informed, she is the owner of some slaves by escheat, and has sold none, but liberated all. I hope the same is true of some other States. Indeed, I do not believe it will be physically possible for the General Government to return persons so circumstanced to actual slavery. I believe there would be physical resistance to it, which could neither be turned aside by argument nor driven away by force. In this view I have no objection to this feature of the bill. Another matter involved in these two sections and running through other parts of the act will be noticed hereafter. I perceive no objection to the third and fourth sections. So far as I wish to notice the fifth and sixth sections, they may be considered together. That the enforcement of these sections would do no injustice to the persons embraced within them is clear. That those who make a causeless war should be compelled to pay the cost of it is too obviously just to be called into question. To give governmental protection to the property of persons who have abandoned it and gone on a crusade to overthrow that same Government is absurd, if considered in the mere light of justice. The severest justice may not always be the 86

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best policy. The principle of seizing and appropriating the property of the person embraced within these sections is certainly not very objectionable, but a justly discriminating application of it would be very difficult, and, to a great extent impossible. And would it not be wise to place a power of remission somewhere, so that these persons may know they have something to lose by persisting and something to gain by desisting? I am not sure whether such a power of remission is or is not within section thirteen. Without any special act of Congress, I think our military commanders, when, in military phrase, “they are within the enemy’s country,” should, in an orderly manner, seize and use whatever of real or personal property may be necessary or convenient for their commands; at the same time preserving, in some way, the evidence of what they do. What I have said in regard to slaves while commenting on the first and second sections is applicable to the ninth, with the difference that no provision is made in the whole act for determining whether a particular individual slave does or does not fall within the classes defined in that section. He is to be free upon certain conditions; but whether those conditions do or do not pertain to him, no mode of ascertaining is provided. This could be easily supplied. To the tenth section I make no objection. The oath therein required seems to be proper, and the remainder of the section is substantially identical with a law already existing. The eleventh section simply assumes to confer discretionary power upon the Executive. Without the law, I have no hesitation to go as far in the direction indicated as I may at any time deem expedient. And I am ready to say now, I think it is proper for our military commanders to employ, as laborers, as many persons of African descent as can be used to advantage. The twelfth and thirteenth sections are something better than objectionable; and the fourteenth is entirely proper, if other parts of the act shall stand. That to which I chiefly object pervades most part of the act, but more distinctly appears in the first, second, seventh, and eighth sections. It is the sum of these provisions which results in the divesting of title forever. For the causes of treason and ingredients of treason, not amounting to the full crime, it declares forfeiture extending beyond the lives of the guilty parties; whereas the Constitution of the United States declares that “no attainder of treason shall work corruption of blood, or forfeiture except during the life of the parties attained.” True, there is to be no formal attainder in this case; still, I think the greater punishment cannot be constitutionally inflicted, in a different form, for the same offense. With great respect I am constrained to say I think this feature of the act is unconstitutional. It would not be difficult to modify it. I may remark that the provision of the Constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real or landed estates. Legislative Achievements

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Again, this act, in rem, forfeits property for the ingredients of treason without a conviction of the supposed criminal, or a personal hearing given him in any proceeding. That we may not touch property lying within our reach because we cannot give personal notice to an owner who is absent endeavoring to destroy the Government is certainly satisfactory. Still, the owner may not be thus engaged; and I think a reasonable time should be provided for such parties to appear and have personal hearings. Similar provisions are not uncommon in connection with proceedings in rem. For the reasons stated, I return the bill to the House in which it originated.

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Supplement, A bolishment of Slavery in the District of C olumbia Act, July 12, 1862 U.S. Statutes at Large 12:538–39.

This supplement to the April 16, 1862, District of Columbia Abolishment of Slavery Act clarified the processes for filing actions for freedom and who could and could not file for such actions. It also prohibited discrimination by color of witnesses who could testify to the residence of the person who had sought freedom under this suit. This provision was necessary because, by custom and tradition, the District of Columbia employed the judicial procedures in effect in Virginia, and Virginia law forbade black testimony. This supplement clarifies and strengthens the earlier act. Chap. CLV.—An Act Supplementary to the “Act for the release of Certain Persons held to Service of Labor in the District of Columbia,” approved April sixteen, eighteen hundred and sixty-two. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the oath or affirmation required by the second section of the act entitled “An act for the release of certain persons held to service or labor in the District of Columbia” to verify the statements or petitions in writing filed before the commissioners, under the act aforesaid, of persons holding claim to service or labor against persons of African descent, freed, and discharged therefrom, under the act aforesaid, may in all cases in which the persons holding claims, as aforesaid, are infants or minors, be made by the guardian or by any other person, whether separately or jointly, having the custody, management, or control by law of the person and property of such infants or minors; and that in all cases in which the persons holding claims as aforesaid are non-residents of the District of Columbia, or resident absentees, the oath or affirmation required as aforesaid may be made by the attorney or agent of said non-resident or resident absentees; and in all cases in which the statements or petitions, required as aforesaid, of persons in the military or naval service of the United States, shall have been or may be hereafter verified before any commander of any military force in the navy, the same shall be received and deemed valid, to all intents and purposes,

as fully as if the verification had been or were made before any officer competent by law to take and administer oaths and affirmations: Provided, That the commissioners shall be satisfied that, at the time of the verification aforesaid, the person making the same was employed in the military or naval service of the United States within the jurisdiction of a rebellious State or Territory, and unable to make the oath or affirmation required, as aforesaid, before any officer authorized by law to take or administer the same, holding allegiance to the United States. Sec. 2. And be it further enacted, That if any person having claim to the service or labor of any person or persons in the District of Columbia by reason of African descent, shall neglect or refuse to file with the clerk of the circuit court of the District of Columbia the statement in writing, or schedule provided in the ninth section of the act approved April sixteenth, eighteen hundred and sixty-two, to which this is supplementary, then it shall be lawful for the person or persons, whose services are claimed as aforesaid, to file such statement in writing or schedule setting forth the particular facts mentioned in said ninth section; and the said clerk shall receive and record the same as provided in said section, on receiving fifty cents each therefore. Sec. 3. And be it further enacted, That whenever the facts set forth in the said statement or schedule shall be found by the commissioners to be true, the said clerk and his successors in office shall prepare, sign, and deliver certificates, as prescribed in the tenth section of the act to which this is supplementary, to such person or persons as shall file their statements in pursuance of the foregoing section, in all respects the same as if such statements were filed by the person having claim to their service or labor. Sec. 4. And be it further enacted, That all persons held to service or labor under the laws of any State, and who at any time since the sixteenth day of April, anno Domini eighteen hundred and sixty-two, by the consent of the person to whom such service or labor is claimed to be owing, have been actually employed within the District of Columbia, or who shall be hereafter thus employed, are hereby declared free, and forever released from such servitude, anything in the laws of the United States or of any State to the contrary notwithstanding. Sec. 5. And be it further enacted, That in all judicial proceedings in the District of Columbia there shall be no exclusion of any witness on account of color. Approved, July 12, 1862.

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Judiciary Act, July 15, 1862 U.S. Statutes at Large 12: 576–77.

Even the in midst of a civil war, Congress had a duty to maintain and support the federal judiciary. In this act, Congress added and adjusted the federal circuits in the country, adding a new state, Kansas, to the circuits. Although the so-called Confederate States closed the federal district and circuit courts, it is interesting to note that Congress took account of the federal courts in the southern states as if the federal district and circuits courts were open and operating. This action aligns with and reflects the Lincoln administration’s position that the states were not out of the Union; rather, insurrectionary disloyal bands of men had taken over the southern states. Thus, at some point, the federal courts in the southern states would reopen and they needed to be ready to take their place in the circuits. Chap. CLXXVIII.—An Act to amend the Act of the third of March, 1837, entitled “An Act supplementary to the Act entitled ‘An Act to amend the Judicial System of the United States.’ ” Be it enacted by the Senate and House of Representatives of the United States of America in Congress assemble, That hereafter the districts of Maryland, Delaware, Virginia, and North Carolina shall constitute the fourth circuit; the districts of South Carolina, Georgia, Alabama, Mississippi, and Florida shall constitute the fifth circuit; the districts of Louisiana, Texas, Arkansas, Kentucky, and Tennessee shall constitute the sixth circuit; the districts of Ohio and Indiana shall constitute the seventh circuit; the districts of Michigan, Wisconsin, and Illinois shall constitute the eighth circuit, and the districts of Missouri, Iowa, Kansas, and Minnesota shall constitute the ninth circuit; and the circuit courts in the districts heretofore included within any circuit of the United States, which by this act are attached to a different circuit, shall be held at the same times and places as are now prescribed by law, and the circuit courts in districts which by this act for the first time attached to circuits, shall be held at the same times and places as are now prescribed by law for holding the district courts in said districts, except in

the district of Iowa, in which the circuit court shall be holden at the capital of the State on the second Tuesday in May and November of each year, at which times and place terms of the district court shall be holden: Provided, this act shall not interfere with the terms of said district court now provided by law for said district. The allotment of their chief justice and the associate justices of the said supreme court to the several circuits shall be made as heretofore. Sec. 2. And be it further enacted, That so much of any act or acts of Congress as vests in the district courts of the United States for the districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas, or either of them, the power and jurisdiction of circuit courts be, and the same is hereby repealed; and there shall hereafter be circuit courts held for said districts by the chief or associate justices of the Supreme Court, assigned or allotted to the circuit to which said districts may representatively belong, and the district judges of such districts severally and respectively, either of whom shall constitute a quorum; which circuit courts, and the judges thereof, shall have like powers and exercise like jurisdiction as other circuit courts and the judges thereof; and the said district courts, and the judges thereof, shall have like powers and exercise like jurisdiction as the district courts, and the judges thereof, in the other circuits. Sec. 3. And be it further enacted, That all actions, suits, prosecutions, causes, pleas, process, and other proceedings, relative to any cause, civil or criminal, (which might have been brought and could have been originally cognizable in a circuit court,) now pending in, or returnable to the several district courts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas, acting as circuit courts, (or so empowered to act,) on the first day of October, next, shall be, and are hereby declared to be, respectively, transferred, returnable, and continued to the several circuit courts constituted by this act, to be holden within said districts, respectively, and shall be heard, tried, and determined therein, in the same manner as if originally brought, entered, prosecuted, or had in such circuit courts. And the said circuit courts shall be governed by the same laws and regulations as apply to the other circuit courts of the United States; and the clerks of the said courts respectively shall perform the same duties, and shall be entitled to receive the same fees and emoluments which are by law established for the clerks of the other circuit courts of the United States. Sec. 4. And be it further enacted, That all acts and provisions inconsistent with this act be, and the same are hereby, repealed. Approved, July 15, 1862.

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The Militia Act, July 17, 1862 U.S. Statutes at Large 12:597–600.

This statute is a hodge-podge of house-cleaning issues, including sections that inch the nation closer to wartime and war powers emancipation. It clarifies the length of service of the thousands of men volunteering for nine- and twelve-month commitments in the military service, and provides for Congress to pay a bounty to encourage volunteering. The statute provides for a structure of military justice in the Union army through a judge advocate general. It allows the Union army to organize itself into a corps structure that lasted the rest of the war, although the various commanders tinkered with the composition and structures of the corps throughout. The measure also establishes the structure and the number and ranks of cavalry forces for the army. Perhaps most important are Sections 12–15 that provide for the use of African Americans in noncombat roles in the army and, if those persons owed service to people who supported the rebellion, then those persons in federal service became free. Further, this statute provided freedom for the men and boys enrolled in Union service, and it freed their mothers, wives, and any children. Yet, after establishing this advance, the statute then required that any African Americans being paid under this statute not be allotted the typical salary of $13 per month, with $3 deducted for clothing, but that they be paid $10 per month, with $3 deducted for clothing. Fearful of sending the message that African Americans were the economic or social equals of white soldiers and/or laborers, this statute authorized that blacks be paid for their work, but at a reduced rate. Not until 1864 did Congress equalized the pay for black Union army soldiers. Chap. CCI.—An Act to amend the Act calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repeal Invasion, approved February twenty-eight, seventeen hundred and ninety-five, and Acts amendatory thereof, and for other Purposes.

Be it enacted by the Senate and the House of Representative of the United States of America in Congress assembled, That whenever the President of the United States shall call forth the militia of the States, to be employed in the service of the United States, he may specify in his call the period for which such service will be required, not exceeding nine months; and the militia so called shall be mustered in and continue to serve for and during the term so specified, unless sooner discharged by command of the president. If by reason of defects in existing laws, or in the execution of them, in the several States, or any of them, it shall be found necessary to provide for enrolling the militia and otherwise putting this act into execution, the President is authorized in such cases to make all necessary rules and regulations; and the enrollment of the militia shall in all cases include ablebodied male citizens between the ages of eighteen and forty-five, and shall be apportioned among the States according to representative population. Sec. 2. And be it further enacted, That the militia, when so called into service, shall be organized in the mode prescribed by law for volunteers. Sec. 3. And be it further enacted, That the President be, and he is hereby, authorized, in addition to the volunteer forces which he is now authorized by law to raise, to accept the services of any number of volunteers, not exceeding one hundred thousand, as infantry, for a period of nine months, unless sooner discharged. And every soldier who shall enlist under the provisions of this section shall receive his first month’s pay, and also twenty-five dollars in bounty, upon the mustering of his company or regiment into the service of the United States. And all provisions of law relating to volunteers enlisted in the service of the United States for three years, or during the war, except in relation to bounty, shall be, and the same are, extended to, and are hereby declared to embrace, the volunteers to be raised under the provisions of this section. Sec. 4. And be it further enacted, That, for the purpose of filling up the regiments of infantry now in the United States service, the President be, and he hereby is, authorized to accept the services of volunteers in such numbers as may be presented for that purpose, for twelve months, if not sooner discharged. And such volunteers, when mustered into the service, shall be in all respects upon a footing with similar troops in the United States service, except as to service bounty, which shall be fifty dollars, one half of which to be paid upon their joining their regiments, and the other half at the expiration of their enlistment. Sec. 5. And be it further enacted, That the President shall appoint, by and with the advice and consent of the Senate, a judge advocate general, with the rank, pay, and emoluments of colonel of cavalry, to whose office shall be returned, for revision, the records and proceedings of all courts-martial and military commissions and where a record shall be kept of all proceedings thereupon. And no sentence of death, or imprisonment in the penitentiary, shall be carried into execution until the same shall have been approved by the President. Sec. 6. And be it further enacted, That there may be appointed by the President, by and with the advice and consent of the Senate, for any army in the field, 94

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a judge advocate, with the rank, pay, and emoluments, each, of a major of cavalry, who shall perform the duties of judge advocate for the army to which they respectively belong, under the direction of the judge advocate general. Sec. 7. And be it further enacted, That hereafter all offenders in the army charged with offenses now punishable by a regimental or garrison court-martial shall be brought before a field officer of his regiment, who shall be detailed for that purpose, and who shall hear and determine the offense, and order the punishment that shall be inflicted; and shall also make a record of his proceedings, and submit the same to the brigade commander, who, upon the approval of the proceedings of such field officer, shall order the same to be executed: Provided, That the punishment in such cases be limited to that authorized to be inflicted by a regimental or garrison court-martial: And provided, further, That, in the event of there being no brigade commander, the proceedings as aforesaid shall be submitted for approval to the commanding officer of the post. Sec. 8. And be it further enacted, That all officers who have been mustered into the service of the United States as battalion adjutants and quartermasters of cavalry under the orders of the War Department, exceeding the number authorized by law, shall be paid as such for their time they were actually employed in the service of the United States, and that all such officers now in service, exceeding the number aforesaid, shall be immediately mustered out of the service of the United States. Sec. 9. And be it further enacted, That the President be, and he is hereby, authorized to establish and organize army corps according to his discretion. Sec. 10. And be it further enacted, That each army corps shall have the following officers and no more attached thereto, who shall constitute the staff of the commander thereof: one assistant adjutant general, one quartermaster, one commissary of subsistence, and one assistant inspector general, who shall bear, respectively, the rank of lieutenant colonel, and who shall be assigned from the army or volunteer force by the President. Also three aides-de-camp, one to bear the rank of major, and two to bear the rank of captain, to be appointed by the President, by and with the advice and consent of the Senate, upon the recommendation of the commander of the army corps. The senior officer of artillery in each army corps shall, in addition to his other duties, act as chief of artillery and ordnance at the headquarters of the corps. Sec. 11. And be it further enacted, That the cavalry forces in the service of the United States shall hereafter be organized as follows: Each regiment of cavalry shall have one colonel, one lieutenant colonel, three majors, one surgeon, one assistant surgeon, one regimental adjutant, one regimental quartermaster, one regimental commissary, one sergeant major, one quartermaster serge[a]nt, one commissary serge[a]nt, two hospital stewards, one saddler sergeant, one chief trumpeter, one chief farrier or blacksmith, and each regiment shall consist of twelve companies or troops, and each company or troop shall have one captain, one first lieutenant, one second lieutenant, and one supernumerary second Legislative Achievements

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lieutenant, one first sergeant, one quartermaster sergeant, one commissary sergeant, five serge[a]nts, eight corporals, two teamsters, two farriers or blacksmiths, one saddler, one wagoner, and seventy-eight privates; the regimental adjutants, the regimental quartermasters, and regimental commissaries to be taken from their respective regiments: Provided, That vacancies caused by this organization shall not be considered as original, but shall be filled by regular promotion. Sec. 12. And be it further enacted, That the President be, and he is hereby, authorized to receive into the service of the United States, for the purpose of constructing intrenchments, or performing camp service, or other labor, or any military or naval service for which they may be found competent, persons of African descent, and such persons shall be enrolled and organized under such regulations, not inconsistent with the Constitution and laws, as the President may prescribe. Sec. 13. And be it further enacted, That when any man or boy of African descent who by the laws of any State shall owe service or labor to any person who, during the present rebellion, has levied war or has borne arms against the United States, or adhered to their enemies by giving them aid and comfort, shall render any such service as is provided for in this act, he, his mother and his wife and children, shall forever thereafter be free, any law, usage, or custom whatsoever to the contrary notwithstanding: Provided, That the mother, wife and children of such man or boy of African descent shall not be made free by the operation of this act except where such mother, wife or children owe service or labor to some person who, during the present rebellion, has borne arms against the United States or adhered to their enemies by giving them aid and comfort. Sec. 14. And be it further enacted, That the expenses incurred to carry this act into effect shall be paid out of the general appropriation for the army and volunteers. Sec. 15. And be it further enacted, That all persons who have been or shall be hereafter enrolled in the service of the United States under this act shall receive the pay and rations now allowed by law to soldiers, according to their respective grades: Provided, That persons of African descent, who under this law shall be employed, shall receive ten dollars per month and one ration, three dollars of which monthly payment be in clothing. Sec. 16. And be it further enacted, That medical purveyors and storekeepers shall give bonds in such sums as the Secretary of War may require with security to be approved by him. Approved, July 17, 1862.

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The Second Confiscation Act, July 17, 1862 U.S. Statutes at Large 12:589–92.

An extension of the First Confiscation Act of 1861, this act expands upon and clarifies the law of confiscation especially as it applied to the slaves of those persons in rebellion. It provides a judicial process—known as in rem proceedings—for removing title to private property from one party and delivering that title to another party. This act specifies the persons in rebellion that its provisions may be applied against and the punishments that can be inflicted on such persons. Section 9 provides freedom for slaves of persons in rebellion and for runaways from slavery, and Section 12 provides the president the power to relocate and colonize those newly freed persons “in some tropical country beyond the limits of the United States.” Yet, Section 11 also authorizes the president to employ such newly freed persons as he thinks appropriate, so while colonization of African Americans was still contemplated, this act also recognizes the military/manpower value to the Union of such freed persons. Controversially, President Abraham Lincoln threatened to veto the act. Under threat of that veto and on the same day, Congress passed a supplement to this act to clarify its intentions with this important federal statute. Lincoln did not veto the Second Confiscation Act, but signed both the act and its supplement. Chap. CXC.—An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free; or, at the discretion of the court, he shall be imprisoned for not less than five years and fined not less than ten thousand dollars, and all his slaves, if any, shall be declared and made free; said fine shall be levied and collected on any or all of the property,

real and personal, excluding slaves, of which the said person so convicted was the owner at the time of committing the said crime, any sale or conveyance to the contrary notwithstanding. Sec. 2. And be it further enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court. Sec. 3. And be it further enacted, That every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States. Sec. 4. And be it further enacted, That this act shall not be construed in any way to affect or alter the prosecution, conviction, or punishment of any person or persons guilty of treason against the United States before the passage of this act, unless such person is convicted under this act. Sec. 5. And be it further enacted, That, to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States, that is to say: First. Of any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States. Secondly. Of any person hereafter acting as President, Vice-President, member of Congress, judge of any court, cabinet officer, foreign minister, commissioner or consul of the so-called confederate states of America. Thirdly. Of any person acting as governor of a state, member of a convention or legislature, or judge of any court of any of the so-called confederate states of America. Fourthly. Of any person who, having held an office of honor, trust, or profit in the United States, shall hereafter hold an office in the so-called confederate states of America. Fifthly. Of any person hereafter holding any office or agency under the government of the so-called confederate states of America, or under any of the several states of the said confederacy, or the laws thereof, whether such office or agency be national, state, or municipal in its name or character: Provided, That the persons, thirdly, fourthly, and fifthly above described shall have accepted their appointment or election since the date of the pretended ordinance of secession of the state, or shall have taken an oath of allegiance to, or to support the constitution of the so-called confederate states. 98

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Sixthly. Of any person who, owning property in any loyal State or Territory of the United States, or in the District of Columbia, shall hereafter assist and give aid and comfort to such rebellion; and all sales, transfers, or conveyances of any such property shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section. Sec. 6. And be it further enacted, That if any person within any State or Territory of the United States, other than those named as aforesaid, after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof. And all sales, transfers, or conveyances, of any such property after the expiration of the said sixty days from the date of such warning and proclamation shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section. Sec. 7. And be it further enacted, That to secure the condemnation and sale of any of such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any district court thereof, or in any territorial court, or in the United States district court for the District of Columbia, within which the property above described, or any part thereof, may be found, or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies’ property and become the property of the United States, and may be disposed of as the court shall decree and the proceeds thereof paid into the treasury of the United States for the purposes aforesaid. Sec. 8. And be it further enacted, That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto. And the said courts shall have power to allow such fees and charges of their officers as shall be reasonable and proper in the premises. Sec. 9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall Legislative Achievements

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in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves. Sec. 10. And be it further enacted, That no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offence against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service. Sec. 11. And be it further enacted, That the President of the United States is authorized to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion, and for this purpose he may organize and use them in such manner as he may judge best for the public welfare. Sec. 12. And be it further enacted, That the President of the United States is hereby authorized to make provision for the transportation, colonization, and settlement, in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen. Sec. 13. And be it further enacted, That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare. Sec. 14. And be it further enacted, That the courts of the United States shall have full power to institute proceedings, make orders and decrees, issue process, and do all other things necessary to carry this act into effect. Approved: July 17, 1862.

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The Second Confiscation Act Supplement, July 17, 1862 U.S. Statutes at Large 12:627.

President Abraham Lincoln let it be known that while he fully supported the intent of the Second Confiscation Act, some parts of some sections of the act bothered him sufficiently that he would veto the whole act. What concerned the president were the provisions in the first, second, seventh, and eighth section of the act that divested title to property forever. To Lincoln’s thinking, those sections constituted a legislative attainder, a legislative act to punish not only a specific person, but that person’s family and future family, and the 1787 Constitution prohibited all such bills of attainders. In response to this substantive concern, Congress added this supplement to the Second Confiscation Act. Joint Resolution explanatory of “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes.” Resolved by the Senate and the House of representatives of the United States of America in Congress assembled, That the provisions of the third clause of the fifth section of “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” shall be so construed as not to apply to any act or acts done prior to the passage thereof; not to include any member of a State legislature, or judge of any State court, who has not in accepting or entering upon his office, taken an oath to support the constitution of the so-called “Confederate States of America”; nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. Approved, July 17, 1862

West Virginia Act, December 31, 1862 U.S. Statutes at Large 12:633.

Western Virginians held long-standing grievances with the Virginia state government in Richmond, such as the distance to the capitol for judicial appeals, a perception of a lack of concern for the needs of the mountain counties, and the expenses incurred to be a part of Virginia. Yet, the greatest difference was resentment in the mountains against the slave-owning tidewater aristocracy who dominated Virginia politics. Virginia’s western counties had few slaves and their economy was not tied to the cash-crop slave economy. Thus, when Virginia seceded, Union sentiment in the western counties surfaced and, with the support and encouragement of President Abraham Lincoln’s administration, the western counties separated from Virginia and applied for admission to the Union. Congress agreed and passed this enabling act allowing the new state of West Virginia to enter the nation. West Virginia’s separation from Virginia raised the constitutional problem of whether the separation had violated Article 4, §3 of the Constitution that stated, “ . . . no new State shall be formed or erected within the Jurisdiction of any other State . . . without the Consent of the Legislatures of the States concerns as well as of the Congress.” In 1871, in Virginia v. West Virginia, 11 Wallace (78 U.S.) 39, the United States Supreme Court held that West Virginia and Virginia had met the necessary requirements and, thereby, West Virginia had entered the nation appropriately. Chap. VI.—An Act for the Admission of the State of “West Virginia” into the Union, and for other Purposes. Whereas, the people inhabiting that portion of Virginia known as West Virginia did, by a Convention assembled in the city of Wheeling on the twenty-sixth of November, eighteen hundred and sixty-one, form for themselves a Constitution with a view of becoming a separate and independent State; and whereas at

a general election held in the counties composing the territory aforesaid on the third day of May last, the said Constitution was approved and adopted by the qualified voters of the proposed State; and whereas the Legislature of Virginia, by an act passed on the thirteenth day of May, eighteen hundred and sixty-two, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, and to embrace the following named counties, to wit: Hancock, Brooke, Ohio, Marshall, Wetzel, Marion, Monongalia, Preston, Taylor, Tyler, Pleasants, Ritchie, Doddridge, Harrison, Wood, Jackson, Wirt, Roane, Calhoun, Gilmer, Barbour, Tucker, Lewis, Braxton, Upshur, Randolph, Mason, Putnam, Kanawha, Clay, Nicholas, Cabell, Wayne, Boone, Logan, Wyoming, Mercer, McDowell, Webster, Pocahontas, Fayette, Raleigh, Greenbrier, Monroe, Pendleton, Hardy, Hampshire, and Morgan; and whereas both the Convention and the Legislature aforesaid have requested that the new State should be admitted into the Union, and the Constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State. Therefore— Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of West Virginia be, and is hereby, declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States in all respects whatsoever, and until the next general census shall be entitled to three members in the House of Representatives of the United States: Provided always, That this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for. It being represented to Congress that since the Convention of the twentysixth of November, eighteen hundred and sixty-one, that framed and proposed the Constitution for the said State of West Virginia, the people thereof have expressed a wish to change the seventh section of the eleventh article of said Constitution by striking out the same and inserting the following in its place, viz: “The children of slaves born within the limits of this State after the fourth day of July, eighteen hundred and sixty-three, shall be free; and all slaves within the said State who shall, at the time aforesaid, be under the age of ten years, shall be free when they arrive at the age of twenty-one years; and all slaves over ten and under twenty-one years shall be free when they arrive at the age of twenty-five years; and no slave shall be permitted to come into the State for permanent residence therein:” Therefore– Sec. 2. Be it further enacted, That whenever the people of West Virginia shall, through their said Convention, and by a vote to be taken at an election to be held within the limits of the said State, at such time as the Convention may provide, make, and ratify the change aforesaid, and properly certify the same under the hand of the president of the Convention, it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon, this 104

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act shall take effect and be in force from and after sixty days from the date of said proclamation. Approved, December 31, 1862 [President Abraham Lincoln signed the bill that day.]

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National Banking Act, F ebruary 25, 1863 U.S. Statutes at Large 12:665–82.

Clarifying and institutionalizing a stronger system of banking for the United States, this statute marks a major advance in the modernization of the nation’s banking system. Driven and crafted in large part by Secretary of the Treasury Salmon P. Chase, this statute provided the Union with a streamlined banking system and a means for the raising of revenues and a system of accountability for those monies raised. In the time since the Second Bank of the United States closed in 1836, the nation had no centralized banking system; instead, the Treasury worked its finances through a series of state and private banks. This act modernized that system and provided the Union a flexible and accountable system for handing the enormous scale and scope of economic activity undertaken by the Union to prosecute the war effort. Largely technical in its nature, the importance of this act cannot be underestimated for providing a structure to the Union financial system that allowed the Union to raise, borrow, and spend money on the military while controlling inflation at home and even encouraging economic growth in time of war. Chap. LVIII.—An Act to provide a national Currency, secured by a Pledge of United States Stocks, and to provide for the Circulation and Redemption thereof. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be established in the Treasury Department a separate bureau, which shall be charged with the execution of this and all other laws that may be passed by Congress respecting the issue and regulation of a national currency secured by United States bonds. The chief officer of the said bureau shall be denominated the comptroller of the currency, and shall be under the general direction of the Secretary of the Treasury. He shall be appointed by the President, on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of five years unless sooner removed by the President, by and with the advice and consent

of the Senate; he shall receive an annual salary of five thousand dollars; he shall have a competent deputy, appointed by the Secretary, whose salary shall be two thousand five hundred dollars, and who shall possess the power and perform the duties attached by law to the office of comptroller during a vacancy in such office, and during his absence or inability; he shall employ, from time to time, the necessary clerks to discharge such duties as he shall direct, which clerks shall be appointed and classified by the Secretary of Treasury in the manner now provided by law. Within fifteen days from the time of notice of his appointment, the comptroller shall take and subscribe the oath of office prescribed by the Constitution and laws of the United States; and he shall give to the United States a bond in the penalty of one hundred thousand dollars, with not less than two responsible freeholders as sureties, to be approved by the Secretary of the Treasury, conditioned for the faithful discharge of the duties of his office. The deputy controller so appointed shall also take the oath of office prescribed by the Constitution and laws of the United States, and shall give a like bond in the penalty of fifty thousand dollars. The comptroller and deputy comptroller shall not, either directly or indirectly, be interested in any association issuing national currency under the provisions of this act. Sec. 2. And be it further enacted, That the comptroller of the currency, with the approval of the Secretary of the Treasury, shall devise a seal, with suitable inscriptions, for his office, a description of which, with a certificate of approval by the Secretary of the Treasury, shall be filed in the office of the Secretary of State with an impression thereof, which shall thereupon become the seal of office of the comptroller of the currency, and the same may be renewed when necessary. Every certificate, assignment, and conveyance executed by the comptroller, in pursuance of any authority conferred on him by law, and sealed with his seal of office, shall be received in evidence in all places and courts whatsoever; and all copies of papers in the office of the comptroller, certified by him and authenticated by the said seal, shall in all cases be evidence equally and in like manner as the original. An impression of such seal directly on the paper shall be valid as if made on wax or wafer. Sec. 3. And be it further enacted, That there shall be assigned to the comptroller of the currency by the Secretary of the Treasury suitable rooms in the treasury building for conducting the business of the currency bureau, in which shall be safe and secure fire-proof vaults, in which it shall be the duty of the comptroller to deposit and safely keep all the plates and other valuable things belonging to his department; and the comptroller shall from time to time furnish the necessary furniture, stationery, fuel, lights, and other proper conveniences for the transaction of the said business. Sec. 4. And be it further enacted, That the term “United States bonds,” as used in this act, shall be construed to mean all coupon and registered bonds now issued or that may hereafter be issued on the faith of the United States by the Secretary of the Treasury in pursuance of the law. 108

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Sec. 5 And be it further enacted, That associations for carrying on the business of banking may be formed by any number of persons, not less in any case than five. Sec. 6. And be it further enacted, That persons uniting to form such an association shall, under their hands and seals, make a certificate which shall specify— First. The name assumed by such association. Second. The place where its operations of discount and deposite are to be carried on; designating the State, Territory, or district, and also the particular city, town, or village. Third. The amount of its capital stock, and the number of shares into which the same shall be divided; which capital stock shall not be less than fifty thousand dollars; and in cities whose population is over ten thousand persons, the capital stock shall not be less than one hundred thousand dollars. Fourth. The names and places of residence of the shareholders, and the number of shares held by each of them. Fifth. The time when such association shall commence. Sixth. A declaration that said certificate is made to enable such persons to avail themselves of the advantages of this act. The said certificate shall be acknowledged before a judge of some court of record or a notary public, and the acknowledgement thereof certified under the seal of such court or notary, and shall be transmitted, together with a copy of the articles of association which shall have been adopted, to the comptroller of the currency, who shall record and carefully preserve the same in his office. Copies of such certificate, duly certified by the comptroller, and authenticated by his seal of office, shall be legal and sufficient evidence in all courts and places within the United States, or the jurisdiction of the Government thereof, of the existence of such association, and of every other matter or thing which could be proved by the production of the original certificate. Sec. 7. And be it further enacted, That at least thirty per centum of the capital stock of such association shall be paid in at the time of the commencement of its banking business, and the remainder of the capital stock of such association shall be paid instalments of at least ten per centum each on the whole amount to which the associations shall be limited, as frequently as one instalment at the end of each succeeding two months from the time of the commencement of its banking operations, until the whole of the capital stock shall be paid in. Sec. 8. And be it further enacted, That if any stockholder, or his assignee, shall fail to pay any instalment on the stock when the same is required by the foregoing section to be paid, the directors of such association may sell the stock held by such delinquent shareholder, at public auction, having given three weeks’ previous notice thereof in a newspaper published and of general circulation in the city where the association is located, if the same be located in a city, and not so located, then in a newspaper printed, or of general circulation, in the county where the same is Legislative Achievements

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located, to any person who will pay the highest price therefore, and not less than the amount then due thereon, with the expenses of the advertisement and sale; and the excess, if any, shall be paid to the delinquent shareholder. If no bidder can be found who will pay for such stock the amount due thereon to the association, and the costs of advertisement and sale, the amount previously paid shall be forfeited to the association, and such stock may subsequently be sold as the directors may order. Sec. 9. And be it further enacted, That whenever a certificate shall have been transmitted to the comptroller of the currency, as provided in this act, and the association transmitting the same shall notify the comptroller that at least thirty per centum of its capital stock has been paid as aforesaid, and that such association has complied with all the provisions of this act required to be complied with before such association shall be authorized to commence the business of banking, and that such association if desirous of commencing such business, the comptroller shall immediately proceed, in such manner as he shall by general rules prescribe, to examine the condition of such association; to ascertain especially the amount of money paid in on account of its capital stock; the name and place of residence of each of the directors of such association, and the amount of the capital stock of which each is the bona fide owner, and generally whether such association has complied with all the requirements of this act to entitle it to engage in the business of banking; and shall cause to be made, and attested by the oaths of a majority of the directors and by the president or cashier of such association, a statement of all the facts necessary to enable the comptroller to determine whether such association is lawfully entitled to commence the business of banking under this act. Sec. 10. And be it further enacted, That if, upon careful examination of the facts so reported, and of any other facts which may come to the knowledge of the comptroller, whether by means of a special commission appointed by him for the purpose of inquiring into the condition of such association, or otherwise, it shall appear that such association is lawfully entitled to commence the business of banking, the comptroller shall give to each association a certificate under his hand and official seal, showing that such association has complied with all the provisions of this act required to be complied with before being entitled to commence the business of banking under it, and that such association is authorized to commence said business accordingly; and it shall be the duty of each association to cause said certificate to be published in some newspaper, published in the city or county where such association is located, for at least sixty days next after the issuing thereof: Provided, That if no newspaper is published in such city or county, such certificate shall be published as the comptroller of the currency shall direct. Sec. 11. And be it further enacted, That every association formed pursuant to the provisions of this act may make and use a common seal, and shall have succession by the name designated in its articles of association and for the period limited therein, not, however, exceeding twenty years from the passage of this act; by 110

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such name may make contracts, sue, and be sued, complain and defend in any court of law or equity as fully as natural persons, and may make by-laws approved by the comptroller of the currency, not inconsistent with the laws of the United States or the provisions of this act, for the election of directors, the management of its property, the regulation of its affairs, and for the transfer of its stock; and shall have power to carry on the business of banking by obtaining and issuing circulating notes in accordance with the provisions of this act; by discounting bills, notes, and other evidences of debt; by receiving deposits; by buying and selling gold and silver bullion, foreign coins, and bills of exchange; by loaning money on real and personal security, in the manner specified in their articles of association, for the purposes authorized by this act, and by exercising such incidental powers as shall be necessary to carry on such business; to choose one of their number as president of such association, and to appoint a cashier and such other officers and agents as their business may require; and to remove such president, cashier, officers, and agents at pleasure, and appoint others in their place; and their usual business shall be transacted in banking offices located at the places specified respectively in its certificate of association, and not elsewhere. Sec. 12. And be it further enacted, That the shares of associations formed under this act shall be deemed personal property, and shall be transferable on the books of the association in such manner as may be prescribed in the by-laws or articles of association; and every person becoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of such shares; and no change shall be made in the articles of association by which the rights, remedies, or security of the existing creditors of the association shall be impaired. For all debts, contracted by such association for circulation, deposits, or otherwise, each shareholder shall be liable to the amount, at their par value, of the shares held by him in addition to the amount invested in such shares. Sec. 13. And be it further enacted, That it shall be lawful for any association formed under this act, by its articles of association, to provide for an increase of its capital from time to time as may be deemed expedient, subject to the limitations of this act; but no such increase shall be valid until the increased capital shall be paid in, and notice thereof shall have been transmitted to the comptroller of the currency, and his certificate obtained, specifying the amount of such increase of capital stock, and that the same has been duly paid to such association. Sec. 14. And be it further enacted, That it shall be lawful for any such association to purchase, hold, and convey real estate as follows: First. Such as shall be necessary for its immediate accommodation in the transaction of its business. Second. Such as shall be mortgaged to it in good faith by way of security for loans made by such association, or for money due thereto. Third. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. Legislative Achievements

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Fourth. Such as it shall purchase at sales under judgments, decrees, or mortgages held by such association. Such association shall not purchase or hold real estate in any other case or for any other purpose than as specified in this section. Sec. 15. And be it further enacted, That every association, after having complied with the provisions of this act preliminary to the commencement of banking business under its provisions, shall transfer and deliver to the treasurer of the United States any United States bonds bearing interest to an amount not less than one third of the capital stock paid in; which bonds shall be deposited with the treasurer of the United States, and by him safely kept in his office until the same shall be otherwise disposed of, in pursuance of the provisions of this act. Sec. 16. And be it further enacted, That upon the making of any such transfer and delivery, the association making the same shall be entitled to receive from the comptroller of the currency circulating notes of different denominations, in blank, registered and countersigned as hereinafter provided, equal in amount to ninety per centum of the current market value of the United States bonds so transferred and delivered, but not exceeding the par value thereof, if bearing interest at the rate of six per centum, or of equivalent United States bonds bearing a less rate of interest; and at no time shall the total amount of such notes, issued to any such association, exceed the amount at such time actually paid in of its capital stock. Sec. 17. And be it further enacted, That the entire amount of circulations notes to be issued under this act shall not exceed three hundred millions of dollars. One hundred and fifty millions of which sum shall be apportioned to associations in the States, in the District of Columbia, and in the Territories, according to representative population, and the remainder shall be apportioned by the Secretary of the Treasury among associations formed in the several States, in the District of Columbia, and in the Territories, having due regard to the existing banking capital, resources, and business, of such States, District, and territories. Sec. 18. And be it further enacted, That, in order to furnish suitable notes for circulation, the comptroller of the currency is hereby authorized and required, under the direction of the Secretary of the Treasury, to cause plates to be engraved in the best manner to guard against counterfeiting and fraudulent alterations, and to have printed therefrom, and numbered, such quantity of circulating notes, in blank, of the denominations of five dollars, ten dollars, twenty dollars, fifty dollars, one hundred dollars, five hundred dollars, and one thousand dollars, as may be required to supply, under this act, the associations entitled to receive the same; which notes shall express upon their face that they are secured by United States bonds, deposited with the treasurer of the United States, and issued under the provisions of this act, which statement shall be attested by the written or engraved signatures of the treasurer and register, and by the imprint of the seal of the treasury; and shall also express upon their face the promise of the association receiving the same, to pay on demand, attested by the signatures of the president, 112

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or vice-president, and cashier; and the said notes shall bear such devices and such other statements, and shall be in such form, as the Secretary of the Treasury shall, by regulation direct. Sec. 19. And be it further enacted, That the plates and special dies to be procured by the comptroller of the currency for the printing of such circulating notes shall remain under his control and direction, and the expenses necessarily incurred in executing the provisions of this act respecting the procuring of such notes, shall be audited and paid as contingent expenses of the Treasury Department; and for the purpose of reimbursing the same, and all other expenses incurred under this act, and in lieu of all taxes upon the circulation authorized by this act, or upon the bonds deposited for the security of the same, such association organized under this act shall semi-annually, on the first day of January and July, after its organization, pay to the comptroller of the currency, in lawful money of the United States, one per centum on the amount of circulating notes received by such association, and in default thereof, the treasurer of the United States is hereby authorized to reserve and retain one per centum on the amount of said bonds so deposited, at each semi-annual payment of interest thereon; and all sums so reserved and retained shall be paid into the treasury under the directions of the Secretary, and every bank, banking association, or corporation, not organized under the provisions of this act, issuing notes calculated or intended to circulate as money, shall, on the first day of July next, and regularly on the first days of January and July thereafter, make and deliver to the comptroller of the currency a true and accurate return of the gross amount of the notes issued by it, whether in circulation, or in its vaults, or on deposit elsewhere, and in default of any such return, the bank, banking association, or corporation so failing to make return, shall pay to the United States a penalty of two per centum upon its entire capital stock, to be recovered, for the use of the United States, in any court of competent jurisdiction. Sec. 20. And be it further enacted, That after any such association shall have caused its promise to pay such notes on demand to be signed by the president or vice-president and cashier thereof, in such manner as to make them obligatory promissory notes, payable on demand, at its place of business, such association is hereby authorized to issue and circulate the same as money; and the same shall be received at par in all parts of the United States in payment of taxes, excises, public lands, and all other dues to the United States, except for duties on imports, and also for all salaries and other debts and demands owing by the United States to individuals, corporations, and associations within the United States, except interest on public debt; and no such association shall issue post notes, or any other notes to circulate as money, than such as are authorized by the foregoing provisions of this act. Sec. 21. And be it further enacted, That all transfers of United States bonds which shall be made by any association as security for circulating notes under the provisions of this act, shall be made to the treasurer of the United States, with a memorandum written or printed on the certificate of such bonds, and signed by Legislative Achievements

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the cashier, or some other officer of the association making the deposit, stating that it is held in trust for the association on whose behalf such transfer is made, and as security for the redemption and payment of the circulating notes delivered to such association; and no transfer of any such bonds by the treasurer shall be deemed valid, or of binding force and effect, unless sanctioned by the order or request of the comptroller of the currency upon the treasurer[.] It shall be the duty of the comptroller of the currency to keep in his office a book in which shall be entered the name of every association from whose account such transfer of bonds is made by the treasurer, and the name of the party to whom such transfer is made, unless such transfer is made in blank, in which case the fact shall be stated in said book, and in either case the par value of the bonds so transferred shall be entered therein; and it shall be the duty of the comptroller, immediately upon countersigning and entering the same, to advise by mail the association from whose account such transfer was made, the kind of bonds and the amount thereof so transferred. Sec. 22. And be it further enacted, That it shall be the duty of the comptroller of the currency to countersign and enter in the book, in the manner aforesaid, every transfer or assignment of any bonds held by the treasurer presented for his signature; and the comptroller shall have at all times during office hours access to the books of the treasurer, for the purpose of ascertaining the correctness of the transfer or assignment presented to him to countersign; and the treasurer shall have the like access to the book above mentioned, kept by the controller, during office hours to ascertain the correctness of the entries in the same. Sec. 23. And be it further enacted, That it shall be the duty of either the president or cashier of every banking association having stocks deposited in the office of the treasurer of the United States, once or more in each fiscal year, and at such time or times during the ordinary business hours as said officer or officers may select, to examine and compare the bonds so pledged with the books of said Department, and, if found correct, to execute to the said treasurer a certificate setting forth the different kinds and amounts thereof, and that the same are in the possession and custody of the treasurer at the date of the certificate. Such examination may be made by an agent of such association, duly appointed in writing for that purpose, whose certificate before mentioned shall be of like force and validity as if executed by such president or cashier. Sec. 24. And be it further enacted, That every association issuing circulating notes under the provisions of this act, shall make a quarterly report of the comptroller of the currency commencing on the first day of the quarter of the year succeeding the organization of such association, and continuing on the first days of each succeeding quarter in every year thereafter, which report shall be verified by the oath or affirmation of the president and cashier, and all wilful false swearing in respect to such report shall be perjury, and subject to the punishment prescribed by law for such offence. The report hereby required shall be in the form prescribed by the comptroller, and shall contain a true statement of the condi114

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tion of the association making such report, before the transaction of any business on the morning of the day specified, next preceding the date of such report, in respect of the following items and particulars, to wit: Loans and discounts, overdrafts due from banks, amount due from the directors of the association, real estate, specie, cash items, stocks, bonds, and promissory notes, bills of solvent banks, bills of suspended banks, loss and expense account, capital, circulation, profits, amount due to banks, amount due to individuals and corporations other than banks, amount due to the treasurer of the United States, amount due to depositors on demand, amount due, not included under either of the above heads. And it shall be the duty of the comptroller to publish full abstracts of such reports together in two newspapers to be designated by him for that purpose, one in the city of Washington and the other in the city of New York, exhibiting the items of capital circulation, and deposits, specie and cash items, public securities and private securities; and the separate report of each association shall be published in a newspaper published in the place where such association is established, or, if there be no newspaper at such place, then in a newspaper published at the capital of the State, at the expense of the association making the report. In addition to the quarterly reports required by this section, every association located and doing business in the cities of Boston, Providence, New York, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, and New Orleans, shall publish, or cause to be published, on the morning of the first Tuesday in each month, in a newspaper printed in the city in which the association making such report is located, to be designated by the comptroller of the currency, a statement, under oath of the president or cashier, showing the condition of the association making such statement, in respect to the following items and particulars, to wit: average amount of loans and discounts, specie, deposits, and circulation. Sec. 25. And be it further enacted, That if any such association shall, at any time fail to redeem, in the lawful money of the United States, any of its circulating notes, when payment thereof shall be lawfully demanded, during the usual hours of business, at the office of such association, the holder may cause the same to be protested, in one package, by a notary public, unless the president or cashier of the association shall offer to waive demand and notice of the protest, and shall, in pursuance of such offer, make, sign, and deliver to the party making such a demand an admission in writing, stating the time of the demand, the amount demanded, and the fact of the non-payment thereof; and such notary public, on making such protest, or upon receiving such admission, shall forthwith forward such admission or notice of protest to the comptroller of the currency; and after such default it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or other wise prosecute the business of banking, except to receive and safely keep money belonging to it, and to deliver special deposits: Provided, however, That if satisfactory proof be produced to such notary public that the payment of any such notes is restrained by order of Legislative Achievements

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any court of competent jurisdiction, such notary public shall not protest the same; and when the holder of such notes shall cause more than one note or package to be protested on the same day, he shall not receive pay for more than one protest. Sec. 26. And be it further enacted, That on receiving notice that any such association has failed to redeem any of its circulating notes, as specified in the next preceding section, the comptroller of the currency, with the concurrence of the Secretary of the Treasury, may appoint a special agent, (of whose appointment immediate notice shall be given to such association,) who shall immediately proceed to ascertain whether such association has refused to pay it circulating notes, in the lawful money of the United States, when demanded as aforesaid, and report to the comptroller the facts so ascertained; and if, from such protest or the reports so made, that comptroller shall be satisfied that such association has refused to pay its circulating notes as aforesaid, and is in default, he shall, within thirty days after he shall have received notice of such failure, declare the United States bonds and securities pledged by such association forfeited to the United States, and the same shall thereupon be forfeited accordingly; and thereupon the comptroller shall immediately give notice, in such manner as the Secretary of the Treasury shall, by general rules or otherwise, direct, to the holders of the circulating notes of such association to present them for payment at the treasury of the United States; and the same shall be paid as presented, whereupon said comptroller may, in his discretion, cancel an equal amount of the bonds pledged by such association, equal at current market rates, not exceeding par, to the notes paid; and it shall be lawful for the Secretary of the Treasury, from time to time, to make such regulations respecting the disposition to be made of such circulating notes after presentment thereof for payment as aforesaid, and respecting the perpetuation of the evidence of the payment thereof, as may seem to him proper; but all such notes, on being paid, shall be cancelled; and for any deficiency in the proceeds of the bonds pledged by such association, when disposed of as hereinafter specified, to reimburse to the United States the amount so expended in paying the circulating notes of such association, the United States shall have a first and paramount lien upon all the assets of such association, and such deficiency shall be made good out of such assets in preference to any and all other claims whatsoever, except the necessary costs and expenses of administering the same. Sec. 27. And be it further enacted, That whenever the comptroller shall become satisfied, as in the last preceding section specified, that any such association has refused to pay its circulating notes as therein mentioned, he may, instead of cancelling the United States bonds pledged by such association, as provided in the next section, cause so much of them as may be necessary to redeem the outstanding circulating notes of such association to be sold at public auction in the city of New York, after giving thirty days’ notice of such sale to such association. Sec. 28. And be it further enacted, That the comptroller of the currency may, if he shall be of the opinion that the interests of the United States will be best 116

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promoted thereby, sell at private sale any of the stock so transferred to him by such association, and receive therefor either money or the circulating notes of such failing association: Provided, That no such bonds shall be sold by private sale for less than par, nor less that the market value thereof at the time of sale. And provided further, That no sales of such stock, either public or private, shall be complete until the transfer thereof shall have been made with the formalities prescribed in this act. Sec. 29. And be it further enacted, That on becoming satisfied, as specified in this act, that any such association has refused to pay its circulating notes as therein mentioned, and is in default, the comptroller of the currency may forthwith appoint a receiver, and require of him such bond and security as he shall deem proper, who, under the direction of the comptroller, shall take possession of the books, records, assets of every description of such association, collect all debts, dues, and claims belonging to such association, and, upon order of the a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, sell all the real and personal property of such association, on such terms as the court shall direct; and such receiver shall pay over all moneys so made to the treasurer of the United States, and also make report to the comptroller of the currency of all his acts and proceedings. The comptroller shall thereupon cause notice to be given, by advertisements in such newspapers as he may direct, for three consecutive months, calling on all persons who may have claims against such association to present the same, and make legal proof thereof; and from time to time the comptroller, after full provision shall have been first made for refunding to the United States any such deficiency in redeeming the notes of such association as is mentioned in this act, shall make a ratable dividend of the moneys so paid over to him by such receiver on all such claims as may have been so proved or adjudicated in a court of competent jurisdiction, and from time to time, as the proceeds of the assets of such association shall be paid over to him, he shall make further dividends, as aforesaid, on all claims previously proved or adjudicated; and the remainder of such proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held: Provided, however, That if any such association, against which proceedings have been so initiated on account of any alleged refusal to redeem its circulating notes as aforesaid, shall deny having failed to do so, such association may at any time within ten days after such association shall have been notified of the appointment of an agent, as provided in this act, apply to the nearest circuit, or district, or territorial court of the United States, to enjoin further proceeding in the premises; and such court, after citing the comptroller of the currency to show cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented, in the lawful money of the United States, shall make an order enjoining the comptroller, and any receiver acting under his direction, from all further proceedings on account of such alleged refusal. Legislative Achievements

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Sec. 30. And be it further enacted, That the bonds transferred to the treasurer of the United States, as hereinbefore provided, by any banking association for the security of its circulating notes, shall be held exclusively for that purpose, until such notes shall be redeemed, except as provided in this act; but the comptroller of the currency may give to any such banking association powers of attorney to receive and appropriate to its own use the interest on the bonds which shall have been so transferred to the treasurer by it; but such powers shall become inoperative whenever such banking association shall fail to redeem its circulating notes as aforesaid; and said comptroller may direct the return of any of said bonds to the banking association which transferred the same, upon the surrender to him and the cancellation of a proportionate amount of such circulating notes: Provided, That ninety per centum of the current market value of the remaining bonds shall have been transferred by the banking association offering to surrender such circulating notes shall be equal to the amount of all the circulating notes retained by such banking association: And provided, further, That there shall have been no failure by such association to redeem its circulating notes, and that there shall have been no violation by such association of any of the provisions of this act for the security of the creditors of such association; nor shall the treasurer be required to surrender such bonds in fractional sums of less than one thousand dollars; and if, at that time after said bonds shall be deposited with the treasurer of the United States, as aforesaid, the market or cash value shall be reduced, the comptroller of the currency is hereby authorized to demand and receive the amount of such depreciation in other United States bonds at cash value, or in money, from the association receiving said bills, to be deposited with the treasurer of the United States, as long as such depreciation continues. Sec. 31. And be it further enacted, That whenever the price of any of the bonds pledged as aforesaid for the redemption of the circulating notes of any such banking association shall be, at the stock exchange in the city of New York, for four consecutive weeks, at a rate less than that at which they shall have been estimated when so pledged, and such depreciation shall not have been made good by a deposit of other bonds or money, it shall be the duty of the comptroller of the currency to notify the treasurer of the United States of such fact, and the payment of interest upon such depreciated bonds shall be suspended, and such interest shall be retained by the said treasurer until the same, when added to the current market value of the bonds so pledged, to be ascertained as before provided, shall be equal to the amount for which such bonds were pledged; Provided, That it shall be the duty of the comptroller of the currency, at the expiration of every period of three months, to cause the whole of the sums so retained, and then remaining in the treasury of the United States, to be invested in United States bonds, in the name of the comptroller of the currency, in trust for the respective associations by which the bonds on which such interest shall have accrued shall have been pledged; and when ever the price of such depreciated bonds at the stock exchange in New York 118

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shall rise to the price at which they were pledged, and so remain for four consecutive weeks, such investment shall be assigned to such association, and all accruing interest on such pledged bonds shall thereafter be paid to such association on demand thereof. Sec. 32. And be it further enacted, That it shall be the duty of the comptroller of the currency to receive worn-out or mutilated circulating notes issued by such banking association, and to deliver in place thereof to such association other blank circulating notes to an equal amount; and such worn-out or mutilated notes, after a memorandum shall have been entered in the proper books, in accordance with such regulations as may be established by the comptroller, as well as all circulating notes which shall have been paid or surrendered to be cancelled, shall be burned to ashes in presence of three persons, one to be appointed by the Secretary of the Treasury, one by the comptroller of the currency, and one by the treasurer of the United States, under such regulations as the Secretary of the Treasury may prescribe; and in case such notes shall have been delivered to the comptroller by an officer or agent of such association, then in the presence also, of such officer or agent; and a certificate of such burning, signed by the parties so appointed, shall be made in the books of the comptroller, and duplicate thereof given to such officer or agent. Sec. 33. And be it further enacted, That it shall be unlawful for any officer acting under the provisions of this act to countersign or deliver to any such association, or to any other company or person, any circulating notes contemplated by this act, except as hereinbefore provided, and in accordance with the true intent and meaning of this act; and any officer who shall violate the provisions of this section shall be deemed guilty of a high misdemeanor, and on conviction thereof shall be punished by fine not exceeding double the amount so countersigned and delivered, and imprisonment not exceeding fifteen years, at the discretion of the court in which he shall be tried. Sec. 34. And be it further enacted, That all fees for protesting the notes issued by any such banking association shall be paid by the person procuring the protest to be made, and such banking association shall be liable therefor; but no part of the stock pledged by such banking association, as aforesaid, shall be applied to the payment of such fees; and all expenses of any preliminary or other examinations into the condition of any association shall be paid by such association; and all expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof. Sec. 35. And be it further enacted, That the stockholders, collectively, of any association shall at no time be liable to such association, either as principal debtors or sureties, or both, to an amount greater than three fifths of the capital stock actually paid in and remaining undiminished by losses or otherwise; nor shall the directors be so liable, except to such amount and in such manner as shall be prescribed by the by-laws of such association, adopted by its stockholders to regulate such liabilities. Legislative Achievements

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Sec. 36. And be it further enacted, That the capital stock of any association formed under this act shall be divided into shares of one hundred dollars each, and shall be assignable on the books of the association in such manner as its bylaws shall prescribe; but no shareholder in any association under this act shall have power to sell or transfer any share held in his own right so long as he shall be liable, either as principal, debtor, surety, or otherwise, to the association for any debt which shall have become due and remain unpaid, nor in any case shall such shareholder be entitled to receive any dividend, interest, or profit on such shares so long as such liabilities shall continue, but all such dividends, interests, and profits shall be retained by the association, and applied to the discharge of such liabilities; and no stock shall be transferred without the consent of a majority of the directors while the holder thereof is thus indebted to the association. Sec. 37. And be it further enacted, That no banking association shall take, as security for any loan or discount, a lien upon any part of its capital stock; but the same security, both in kind and amount, shall be required of shareholders as of other persons; and no such banking association shall be the purchaser or holder of any portion of its capital stock, or of the capital stock of any other incorporated company, unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, on security which, at the time, was deemed adequate to insure the payment of such debt, independent of any lien upon such stock; or in the case of forfeiture of stock for the non-payment of instalments due thereon, and stock so purchased or acquired, shall in no case be held by such association so purchasing for a longer period of time than six months, if the same can, within that time, be sold for what the stock cost. Sec. 38. And be it further enacted, That in all elections of directors, and in deciding all questions at meetings of stockholders, each shareholder shall be entitled to one vote on each share of stock held by him; shareholders may vote by proxies duly authorized in writing; but no officer, clerk, teller, or book-keeper of such association shall act as proxy; and no stockholder whose liability is past due and unpaid shall be allowed to vote. Sec. 39. And be it further enacted, That the affairs of every such association shall be managed by not less than five nor more than nine directors, one of whom shall be president of the association; every director shall during his whole term of service, be a citizen of the United States and a resident of the state in which such association is located. At least three fourths of the directors shall have resided in the state in which such association is located one year next preceding their election as directors; and each director shall own in his own right, at least one per centum of the capital stock of such association not exceeding two hundred thousand dollars, and half of one per centum of its capital if over two hundred thousand dollars. Each director shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such association, and not knowingly violate, or willingly permit to be violated, any provisions of this act, and he 120

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is the bonâ fide owner, in his own right, of the shares of the stock standing in his name on the books of the association, and that the same is not hypothecated, or in any way pledged, as security for any loan obtained or debt owing to the association of which he is a director, which oath, subscribed by himself, and certified by the officer before whom it is taken, shall be immediately transmitted to the comptroller of the currency, and by him filed and preserved in his office. Sec. 40. And be it further enacted, That the directors of any such association first elected shall hold their places until their successors shall be elected and qualified. All subsequent elections shall be held annually, on such day in the month of January as the stockholders of said association may prescribe; and the directors so elected shall hold their places for one year, and until their successors are elected and qualified. But any director removing from the state, or ceasing to be owner of the requisite amount of stock, shall thereby vacate his place. Any vacancy in the board shall be filled by appointment by the remaining directors. The director so appointed shall hold his place until the next annual election; and if, from any cause, an election of directors shall not be made at the time appointed, the association shall not for that cause be dissolved, but an election may be held on any subsequent day, thirty days’ notice thereof having been given in a newspaper printed, or of general circulation, in the city, town, or county in which the association is located, and if no newspaper is published in such city, town, or county, such notice shall be published in a newspaper in the county adjoining. Sec. 41. And be it further enacted, That every such association shall at all times have on hand, in lawful money of the United States, an amount equal to at least twenty-five per centum of the aggregate amount of its outstanding notes of circulation and its deposits; and whenever the amount of its outstanding note of circulation and its deposits shall exceed the above-named proportion for the space of twelve days, or whenever such lawful money of the United States shall at any time fall below the amount of twenty-five per centum of its circulation and deposits, such association shall not increase its liabilities by making any new loans or discounts otherwise than by discounting or purchasing bills of exchange, payable at sight, nor make any dividends of its profits, until the required proportion between the aggregate amount of its outstanding notes of circulation and its deposits and lawful money of the United States shall be restored: Provided, however, That clearing-house certificates, representing specie or lawful money specifically deposited for the purpose of any clearing-house association, shall be deemed to be lawful money in the possession of any association belonging to such clearing-house holding and owning such certificates, and considered to be a part of the lawful money which such association is required to have, under the foregoing provisions of this section: Provided, further, That any balance due to any association organized under this act in other places from any association in the cities of Boston, Providence, New York, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, or New Orleans, in good credit, subject to be drawn for at sight, and available to redeem their Legislative Achievements

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circulating notes and deposits, may be deemed to be part of the lawful money which such association in other places than the cities of Boston, Providence, New York, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, and New Orleans, are required to have by the foregoing provisions of this section, to the extent of three fifths of the said amount of twenty-five per centum required. And it shall be competent for the comptroller of the currency to notify any such association whose lawful money reserve, as aforesaid, shall fall below said proportion of twenty-five per centum, to make good such reserve; and if such association shall fail for thirty days thereafter so to make good its reserve of lawful money of the United States, the comptroller may, with the concurrence of the Secretary of the Treasury, appoint a receiver to wind up the business of the association, as provided in this act. Sec. 42. And be it further enacted, That no association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in, and remaining undiminished by losses or otherwise, except on the following accounts, that is to say: First. On account of its notes of circulation. Second. On account of moneys deposited with, or collected by, such association. Third. On account of bills of exchange or drafts drawn against money actually on deposit to the credit of such association, or due thereto. Fourth. On account of liabilities to its stockholders, for money paid in on capital stock and dividends thereon, and reserved profits. Sec. 43. And be it further enacted, That no association shall, either directly or indirectly, pledge or hypothecate any of its notes of circulation, for the purpose of procuring money to be paid in on its capital stock, or to be used in its banking operations, or otherwise. Sec. 44. And be it further enacted, That no association, or any member thereof, shall, during the time it shall continue its banking operations, withdraw, or permit to be withdrawn, either in form of dividends, loans to stockholders for a longer time than six months or in any manner, any portion of its capital; and if losses shall at any time have been sustained by any association equal to or exceeding its undivided profits then on hand, no dividend shall be made; and no dividend shall ever be made by any association, while it shall continue its banking operations, to an amount greater than its nett profits then on hand, deducting therefrom its losses and bad debts; and all debts due to any association, on which interest is past due and unpaid for a period of six months, unless the same shall be well secured, and shall be in process of collection, shall be considered bad debts within the meaning of this act. Sec. 45. And be it further enacted, That the directors of every association shall semi-annually in the months of May and November, declare a dividend of so much of the profits of such association as they shall judge expedient; and on each dividend day, the cashier shall make, and verify by his oath, a full, clear, and ac122

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curate statement of the condition of the association, as it shall be on that day after declaring the dividend; which statement shall contain— First. The amount of capital stock actually paid in and then remaining, as the capital stock of such association. Secondly. The amount of the circulating notes of such association then in circulation. Thirdly. The greatest amount in circulation at any time since the making of the last previous statement, as shall have been exhibited by the weekly statements of the cashier, specifying the times when the same occurred. Fourthly. The amount of balances and debts of every kind due to other banks and banking associations. Fifthly. The amount due to depositors. Sixthly. The total amount of debts and liabilities of every description, and the greatest amount since the making of the last previous statement, specifying the time when the same accrued. Seventhly. The total amount of dividend declared on the day of making the statement. Eighthly. The amount of lawful money of the United States belonging to the association, and in its possession at the time of making the statement. Ninthly. The amount subject to be drawn at sight, in lawful money of the United States, then remaining on deposit with any associations, banks or bankers; specifying the amount so on deposit in the cities of Boston, Providence, New York, Philadelphia, Baltimore, Cincinnati, Chicago, St. Louis, and New Orleans. Tenthly. The amount then on hand of bills or notes, issued by other banks and banking associations. Eleventhly. The amount of balances due from other banks, bankers, and banking associations, excluding deposits subject to be drawn at sight as aforesaid. Twelfthly. The amount on hand of bills, bonds, stocks, notes, and other evidences of debts, discounted or purchased by the association, specifying particularly the amount of suspended debt, the amount considered bad, the amount considered doubtful, and the amount in suit or judgment. Thirteenthly. The value of the real and personal property held for the convenience of the association, specifying the amount of each. Fourteenthly. The amount of real estate taken in payment of debts due to the association. Fifteenthly. The amount of undivided profits of the association. Sixteenthly. The total amount of the liability to the association by the directors thereof collectively, specifying the gross amount of indorsers or sureties. The statement thus made shall forthwith be transmitted to the comptroller of the currency. Sec. 46. And be it further enacted, That every association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of Legislative Achievements

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exchange, or other evidence of debt, such rate of interest or discount as is for the time the established rate of interest for delay in the payment of money, in the absence of contract between the parties, by the laws of the several States in which the associations are respectively located, and no more; Provided, however, That interest may be reserved or taken, in advance, at the time of making the loan or discount, according to the usual rules of banking; and the knowingly taking, reserving, or charging of a rate of interest greater than that allowed by this section shall be held and adjudged a forfeiture of the debt or demand on which the same is taken, reserved, or charged; but the purchase, discount, or sale of a bill of exchange, drawn on actually existing values, and payable at another place than the place of such purchase, discount, or sale, at the current discount or premium, shall not be considered as taking, reserving, or charging interest. Sec. 47. And be it further enacted, That the total liabilities of any person, or of any company or firm (including the liabilities of a company or firm the liabilities of the several members thereof,) to any association, including liabilities as acceptor of bonâ fide bills of exchange, payable out of the state where the association is located, shall at no time exceed one third; exclusive of liabilities as acceptor, one fifth; and exclusive of liabilities on such bills of exchange, one tenth part of the amount of the capital stock of such association actually paid in. Sec. 48. And be it further enacted, That no association shall, at any time, pay out on loans or discounts, or in purchasing drafts or bills of exchange, or in payment of deposits, nor shall it in any other mode put in circulation the notes of any bank or banking association, which notes shall not, at any such time, be receivable, at par, on deposit, and in payment of debts by the association so paying out or circulating such notes; nor shall it knowingly pay out or put in circulation any notes issued by any bank or banking association which at the time of such paying out or putting in circulation is not redeeming its circulating notes in lawful money of the United States. Sec. 49. And be it further enacted, That all transfer of the notes, bonds, bills of exchange, and other evidences of debt, owning to any association, or of deposits to its credit; all assignment of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, with a view to prevent the application of its assets in the manner prescribed by this act, or with a view to the preferences of one creditor to another, except in payment of its circulating notes, shall be utterly null and void. Sec. 50. And be it further enacted, That if the directors of any association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this act, all the rights, privileges, and franchises of the association derived from this act shall be therefore forfeited; such violation shall, however, be determined and adjudged by a proper circuit, 124

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district, or territorial court of the United States, before the association shall be declared dissolved; and in cases of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person, shall have sustained in consequence of such violation. Sec. 51. And be it further enacted, That the comptroller of the currency, with the approbation of the Secretary of the Treasury, as often as shall be deemed necessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, which person shall not be a director or other officer in any association whose affairs he shall be appointed to examine, and who shall have power to make a thorough examination into all the affairs of the association, and, in doing so, to examine any of the officers and agents thereof on oath, and shall make a full and detailed report of the condition of the association to the comptroller; and the association shall not be subject to any other visitorial powers than such as are authorized by this act, except such as are vested in the several courts of law and chancery. Any every person appointed to make such examination shall receive for his services at the rate of five dollars for each day by him employed in such examination, and two dollars for every twenty-five miles he shall necessarily travel in the performance of his duty, which shall be paid by the association by him examined. Sec. 52. And be it further enacted, That every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract, or willfully misapply any of the moneys, funds, or credits of the association, or shall, without authorization from the directors, issue or put in circulation any of the notes of the association, or shall, without such authority, issue or put forth any certificate of deposit, draw any order or bill of exchange, mortgage, judgment or decree, or shall make any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud any other company, body politic, or corporate, or any individual person, or to deceive any officer or agent appointed to examine the affairs of such association, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment not less than five nor more than ten years. Sec. 53. And be it further enacted, That the president and cashier of every such association shall cause to be kept at all times a full and correct list of the names and residences of all the shareholders in the association in the office where its business is transacted; and such list shall be subject to the inspection of all the shareholders and creditors of the association during business hours of each day in which business may be legally transacted; and a copy of such list, verified by the oath of such president or cashier, shall, at the beginning of every year, be transmitted to the comptroller of the currency, commencing on the first day of the first quarter after the organization of the association. Sec. 54. And be it further enacted, That the Secretary of the Treasury is hereby authorized, whenever, in his judgment, the public interests will be promoted Legislative Achievements

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thereby, to employ any of such associations doing business under this act as depositaries of the public moneys, except receipts from customs. Sec. 55. And be it further enacted, That all suits and proceedings arising out of the provisions of this act, in which the United States or its officers or agents shall be parties, shall be conducted by the district attorneys of the several districts, under the direction and supervision of the solicitor of the treasury. Sec. 56. And be it further enacted, That every person who shall mutilate, cut, deface, disfigure, or perforate with holes, or shall unite or cement together, or do any other thing to any bank bill, draft, note, or procure the same to be done, with intent to render such bank bill, draft, note, or other evidence of debt, unfit to be reissued by said association, shall upon conviction forfeit fifty dollars to the association who shall be injured thereby, to be recovered by action in any court have jurisdiction. Sec. 57. And be it further enacted, That if any person shall falsely make, forge, or counterfeit, cause or procure to be made, forged, or counterfeited, or willingly aid or assist in falsely making, forging, or counterfeiting, any note in imitation of, or purporting to be imitation of, the circulating notes issued under the provisions of this act, or shall pass, utter, or publish, or attempt to pass, utter, or publish any false, forged, or counterfeited note, purporting to be issued by any association doing a banking business under the provisions of this act, knowing the same to be falsely made, forged, or counterfeited, or shall falsely alter, or cause or procure to be falsely altered, or willingly aid or assist in falsely altering any such circulating notes, issued as aforesaid, or shall pass, utter or publish, or attempt to pass, utter or publish as true, any falsely altered or spurious circulating note, issued or purporting to have been issued as aforesaid, knowing the same to be falsely altered or spurious, every such person shall be deemed and adjudged guilty of a felony, and being thereof convicted by due course of law, shall be sentenced to be imprisoned and kept at hard labor for a period not less than five years nor more than fifteen years, and to be fined a sum not exceeding one thousand dollars. Sec. 58. And be it further enacted, That if any person shall make or engrave, or cause or procure to be made or engraved, or shall have in his custody or possession any engraved plate or block after the similitude of any plate from which any circulating notes issued as aforesaid shall have been printed, with intent to use such plate or block, or cause or suffer the same to be used, in forging or counterfeiting any of the notes issued as aforesaid, or shall have in his custody or possession any blank note or notes engraved and printed after the similitude of any notes issued as aforesaid, with intent to use such blanks, or cause or suffer the same to be used, in forging or counterfeiting any of the notes issued as aforesaid, or shall have in his custody or possession any paper adapted to the making of such notes, and similar to the paper upon which any such notes shall have been issued, with intent to use such paper, or cause or suffer the same to be used, in forging or counterfeiting any of the notes issued as aforesaid, every such person, being thereof convicted by due 126

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course of law, shall be sentenced to be imprisoned and kept to hard labor for a term not less than five nor more than fifteen years, and fined in a sum not exceeding one thousand dollars. Sec. 59. And be it further enacted, That suits, actions, and proceedings by and against any association under this act may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established. Sec. 60. And be it further enacted, That it shall be the duty of the comptroller of the currency to report annually to Congress, at the commencement of its session— First. A summary of the state and condition of every association from whom reports have been received the preceding year, at the several dates to which such reports refer, with an abstract of the whole amount of banking capital returned by them, of the whole amount of their debts and liabilities, the amount of circulating notes outstanding, and the total amount of means and resources, specifying the amount of specie held by them at the times of their several returns, and such other information in relation to said associations as, in his judgment, many be useful. Second. A statement of the associations whose business has been closed during the year, with the amount of their circulating redeemed, and the amount outstanding. Third. To suggest any amendment to the laws relative to banking by which the system may be improved, and the security of the bill-holders and depositors may be increased. Fourth. To report the names and compensation of the clerks employed by him, and the whole amount of the expenses of the banking department during the year; and such report shall be made by or before the first day of December in each year, and the usual number of copies for the use of the Senate and House, and one thousand copies for the use of the Department, shall be printed by the public printer and in readiness for distribution on the first meeting of congress. Sec. 61. And be it further enacted, That any banking association or corporation lawfully in existence as a bank of circulation on the first day of January Anno Domini eighteen hundred and sixty-three, organized in any state, either under a special act of incorporation or a general banking law, may, at any time within__years after the passage of this act become an association under the provisions of this act; that in such case the certificate of association provided for by this act shall be signed by the directors of such banking association or corporation, and in addition to the specifications required by this act, shall specify that such directors are authorized by the owners of two thirds of the capital stock of such banking association or corporation, to make such certificate of association, and such certificate of association shall thereafter have the same effect, and the same proceedings shall be had thereon, as is provided for as to other associations organized under this act. And such association or corporation thereafter shall have the same powers Legislative Achievements

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and privileges, and shall be subject to the duties, responsibilities, and rules, in all respects, as [are] prescribed in this act for other associations organized under it, and shall be held and regarded as an association under this act. Sec. 62. And be it further enacted, That any bank or banking association, authorized by any State law to engage in the business of banking, and duly organized under such State law at the time of the passage of this act, and which shall be the holder and owner of United States bonds to the amount of fifty per centum of its capital stock, may transfer and deliver to the treasurer of the United States such bonds, or any part thereof, in the manner provided by this act; and upon making such transfer and delivery, such bank or banking association shall be entitled to receive from the comptroller of the currency, circulating notes, as herein provided, equal in amount to eighty per centum of the amount of the bonds so transferred and delivered. Sec. 63. And be it further enacted, That upon the failure of any such State bank or banking association, to redeem any of its circulating notes issued under the provisions of the preceding section, the comptroller of the currency shall, when satisfied that such default has been made, and within thirty days after notice of such default, proceed to declare the bonds transferred and delivered to the treasurer, forfeited to the United States, and the same shall thereupon to be forfeited accordingly. And thereupon the circulating notes which have been issued by such bank or banking association shall be redeemed and paid at the treasury of the United States, in the manner as other circulating notes issued under the provisions of this act are redeemed and paid. Sec. 64. And be it further enacted, That the bonds forfeited, as provided in the last preceding section, may be cancelled to an amount equal to the circulating notes redeemed and paid, or such bonds may be sold, under the direction of the Secretary of the Treasury, and after retaining out of the proceeds a sum sufficient to pay the whole amount of circulating notes, for the redemption of which bonds are held, the surplus, if any remains, shall be paid to the banks, or banking association from which such bonds were received. Sec. 65. And be it further enacted, That Congress reserves the right, at any time, to amend, alter, or repeal this act. Approved, February 25, 1863.

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F eder al Conscription Act, M arch 3, 1863 U.S. Statutes at Large 12:731–37.

On April 17, 1862, the so-called Confederate Congress enacted the first Civil War–era conscription act—popularly called the draft. Volunteerism had not filled the ranks as southern military and civilian leadership needed, so the military circumstances forced them to the controversial step of conscripting men into the ranks of the army. Given the traditional rhetoric of the Americans, South and North, regarding the liberty of the individual to make their own decisions about how to live their lives, conscription into the military challenged that tradition of individual self-determination. And, like the later Union conscription act, the Confederate Conscription Act really aimed to encourage volunteering rather than the heavy-handed policy of drafting people away from their normal lives into the military. The need for men reached the point for the Union that the Congress enacted its conscription act in early March 1863. Noted Civil War historian James M. McPherson assessed this public policy, saying that “it became one of the divisive issues of the war and served as a model of how not to conduct a draft in future wars.” Unlike the tradition before conscription when states and state governors managed the job of filling the ranks, this draft was a federal process. It authorized the Provost Marshals Bureau to enforce and manage the draft. The number of enrolled eligible men between the ages of twenty and forty-five determined the quota for each district. If a man’s name was drawn, numerous methods existed to avoid military service. More than one-fifth of those men drafted simply never showed up at the induction centers; they fled to the West, to Canada, or hid out in the countryside. Plenty of those who did report were sent home because their district’s quota had already been met with volunteers and draftees. Others went home after convincing medical authorities that they were physically or mentally unfit for service or who qualified for one of the exemptions,

such as being the sole means of support for a widow. Even if someone did not disqualify under these options, a draftee could hire a substitute to take his place or, if the man had enough money, he could pay the federal government a $300 commutation fee and be exempted from the draft. Of the 207,000 men drafted, 87,000 paid the fee and 74,000 furnished substitutes. Needless to say, huge opportunities existed for graft, corruption, fraud, and error; further, the commutation of service for $300 became resented and controversial. Yet, the needs of the war led both governments into enacting legislation they could not have imagined ever needing, much less enacting during the secession winter of 1860–1861. Chap. LXXV.—An Act for enrolling and calling out the national Forces, and for other Purposes. Whereas there now exists in the United States an insurrection and rebellion against the authority thereof, and it is, under the Constitution of the United States, the duty of the government to suppress insurrection and rebellion, to guarantee to each State a republican form of government, and to preserve the public tranquillity; and whereas, for these high purposes, a military force is indispensable, to raise and support which all persons ought willingly to contribute; and whereas no service can be more praiseworthy and honorable than that which is rendered for the maintenance of the Constitution and Union, and the consequent preservation of free government: Therefore— Be it enacted by the Senate and House of representatives of the United States of America in Congress assembled, That all able-bodied male citizens of the United States, and persons of foreign birth who shall have declared on oath their intention to become citizens under and in pursuance of the laws thereof, between the ages of twenty and forty-five years, except as hereinafter excepted, are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States when called out by the President for that purpose. Sec. 2. And be it further enacted, That the following persons be, and they are hereby, excepted and exempt from the provisions of this act, and shall not be liable to military duty under the same, to wit: Such as are rejected as physically or mentally unfit for the service; also, First the Vice-president of the United States, the judges of the various courts of the United States, the heads of the various executive departments of the government, and the governors of the several States. Second, the only son liable to military duty of a widow dependent upon his labor for support. Third, the only son of an aged or infirm parent or parents dependent upon his labor for support. Fourth, where there are two or more sons of aged or infirm parents subject to draft, the father, or, if he be dead, the mother, may elect which son shall be exempt. Fifth, the only brother of children not twelve 130

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years old, having neither father nor mother dependent upon his labor for support. Sixth, the father of motherless children under twelve years of age dependent upon his labor for support. Seventh, where there are a father and sons in the same family and household, and two of them are in the military service of the United States as non-commissioned officers, musicians, or privates, the residue of such family and household, not exceeding two, shall be exempt. And no persons but such as are herein excepted shall be exempt: Provided, however, That no person who has been convicted of any felony shall be enrolled or permitted to serve in said forces. Sec. 3. And be it further enacted, That the national forces of the United States not now in the military service, enrolled under this act, shall be divided into two classes: the first of which shall comprise all persons subject to do military duty between the ages of twenty and thirty-five years, and all unmarried persons subject to do military duty above the age of thirty-five and under the age of forty-five; the second class shall comprise all other persons subject to do military duty, and they shall not, in any district, be called into the service of the United States until those of the first class shall have been called. Sec. 4. And be it further enacted, That, for greater convenience in enrolling, calling out, and organizing the national forces, and for the arrest of deserters and spies of the enemy, the United States shall be divided into districts, of which the District of Columbia shall constitute one, each territory of the United States shall constitute one or more, as the President shall direct, and each congressional district of the respective states, as fixed by a law of the state next preceding the enrolment, shall constitute one: Provided, That in states which have not by their laws been divided into two or more congressional districts, the President of the United States shall divide the same into so many enrolment districts as he may deem fit and convenient. Sec. 5. And be it further enacted, That for each of the said districts there shall be appointed by the President a provost-marshal, with the rank, pay, and emoluments of a captain of cavalry, or an office of said rank shall be detailed by the President, who shall be under the direction and subject to the orders of a provostmarshal-general, appointed or detailed by the President of the United States, whose office shall be at the seat of government, forming a separate bureau of the War Department, and whose rank, pay, and emoluments shall be those of a colonel of cavalry. Sec. 6. And be it further enacted, That it shall be the duty of the provostmarshal-general, with the approval of the Secretary of War, to make rules and regulations for the government of his subordinates; to furnish them with the names and residences of all deserters from the army, or any of the land forces in the service of the United States, including the militia, when reported to him by the commanding officers; to communicate to them all orders of the President in reference to calling out the national forces; to furnish proper blanks and instructions for enrolling and drafting; to file and preserve copies of all enrolment lists; to require Legislative Achievements

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stated reports of all proceedings on the part of his subordinates; to audit all accounts connected with the service under his direction; and to perform such other duties as the President may prescribe in carrying out the provisions of this act. Sec. 7. And be it further enacted, That it shall be the duty of the provostmarshals to arrest all deserters, whether regulars, volunteers, militiamen, or persons called into the service under this or any other act of Congress, wherever they may be found, and to send them to the nearest military commander or military post; to detect, seize, and confine spies of the enemy, who shall without unreasonable delay be delivered to the custody of the general commanding the department in which they may be arrested, to be tried as soon as the exigencies of the service permit; to obey all lawful orders and regulations of the provost-marshal-general, and such as may be prescribed by law, concerning the enrolment and calling into service of the national forces. Sec. 8. And be it further enacted, That in each of said districts there shall be a board of enrolment, to be composed of the provost-marshal, as president, and two other persons, to be appointed by the President of the United States, one of whom shall be a licensed and practicing physician and surgeon. Sec. 9. And be it further enacted, That it shall be the duty of the said board to divide the district into sub-districts of convenient size, if they shall deem it necessary, not exceeding two, without the direction of the Secretary of War, and to appoint, on or before the tenth day of March next, and in each alternate year thereafter, an enrolling officer for each sub-district, and to furnish him with proper blanks and instructions; and he shall immediately proceed to enroll all persons subject to military duty, noting their respective places of residence, ages on the first day of July following, and their occupation, and shall, on or before the first day of April, report the same to the board of enrolment, to be consolidated into one list on or before the first day of May succeeding the enrolment: Provided, nevertheless, That if from any cause the duties prescribed by this section cannot be performed within the time specified, then the same shall be performed as soon thereafter as practicable. Sec. 10. And be it further enacted, That the enrolment of each class shall be made separately, and shall only embrace those whose ages shall be on the first day of July thereafter between twenty and forty-five years. Sec. 11. And be it further enacted, That all persons thus enrolled shall be subject, for two years after the first day of July succeeding the enrolment, to be called into military service of the United States, and to continue in service during the present rebellion, not, however, exceeding the term of three years; and when called into service shall be placed on the same footing, in all respects, as volunteers for three years, or during the war, including advance pay and bounty as provided by law. Sec. 12. And be it further enacted, That whenever it may be necessary to call out the national forces for military service, the President is hereby authorized to 132

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assign to each district the number of men to be furnished by said district; and thereupon the enrolling board shall, under the direction of the President, make a draft of the required number, and fifty per cent, in addition, and shall make an exact and complete roll of the names of the persons so drawn, and of the order in which they were drawn, so that the first drawn may stand first upon the said roll, and the second may stand second, and so on; and the persons so drawn shall be notified of the same within ten days thereafter, by a written or printed notice, to be served personally or by leaving a copy at the last place of residence, requiring them to appear at a designated rendezvous to report for duty. In assigning to the districts the number of men to be furnished therefrom, the President shall take into consideration the number of volunteers and militia furnished by and from the several states in which said district are situated, and the period of their service since the commencement of the present rebellion, and shall so make said assignment as to equalize the numbers among the districts of the several states, considering and allowing for the numbers already furnished as aforesaid and the time of their service. Sec. 13. And be it further enacted, That any person drafted and notified to appear as aforesaid, may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft; or he may pay to such person as the Secretary of War may authorize to receive it, such sum not exceeding three hundred dollars, as the Secretary may determine, for the procuration of such substitute; which sum may be fixed at a uniform rate by a general order made at the time of ordering a draft for any state or territory; and thereupon such person so furnishing the substitute, or paying the money, shall be discharged from further liability under the draft. And any person failing to report after due service of notice, as herein prescribed, without furnishing a substitute, or paying the required sum therefore, shall be deemed a deserter, and shall be arrested by the provost-marshal and sent to the nearest military post for trial by court-martial, unless, upon proper showing that he is not liable to do military duty, the board of enrolment shall relieve him from the draft. Sec. 14. And be it further enacted, That all drafted persons shall, on arriving at the rendezvous, be carefully inspected by the surgeon of the board, who shall truly report to the board the physical condition of each one; and all persons drafted and claiming exemption from military duty on account of disability, or any other cause, shall present their claims to be exempted to the board, whose decision shall be final. Sec. 15. And be it further enacted, That any surgeon charged with the duty of such inspection who shall receive from any person whomsoever any money or other valuable thing, or agree, directly or indirectly, to receive the same to his own or another’s use for making an imperfect inspection or a false or incorrect report, shall be tried by a court-martial, and, on conviction thereof, be punished by fine not exceeding five hundred dollars nor less than two hundred, and be Legislative Achievements

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imprisoned at the discretion of the court, and be cashiered and dismissed from the service. Sec. 16. And be it further enacted, That as soon as the required number of able-bodied men liable to do military duty shall be obtained from the list of those drafted, the remainder shall be discharged; and all drafted persons reporting at the place of rendezvous shall be allowed traveling pay from their places of residence; and all persons discharged at the place of rendezvous shall be allowed traveling pay to their places of residence; and all expenses connected with the enrolment and draft, including subsistence while at rendezvous, shall be paid from the appropriation for enrolling and drafting, under such regulations as the President of the United States shall prescribe; and all expenses connected with the arrest and return of deserters to their regiments, or such other duties as the provost-marshal shall be called upon to perform, shall be paid from the appropriation for arresting deserters, under such regulations as the President of the United States shall prescribe: Provided, The provost-marshal shall in no case receive commutation for transportation or for fuel and quarters, but only for forage, when not furnished by the government, together with the actual expenses of postage, stationery, and clerk hire authorized by the provost-marshal-general. Sec. 17. And be it further enacted, That any person enrolled and drafted according to the provisions of this act who shall furnish an acceptable substitute, shall thereupon receive from the board of enrolment a certificate of discharge from such draft, which shall exempt him from military duty during the time for which he was drafted; and such substitute shall be entitled to the same pay and allowances provided by law as if he had originally drafted into the service of the United States. Sec. 18. And be it further enacted, That such of the volunteers and militia now in the service of the United States as may reënlist to serve one year, unless sooner discharged, after the expiration of their present term of service, shall be entitled to a bounty of fifty dollars, one half of which to be paid upon such reënlistment, and the balance at the expiration of the term of reënlistment; and such as may reënlist for two years, unless sooner discharged, after the expiration of their present term of enlistment, shall receive, upon such reënlistment, twenty-five dollars of the one hundred dollar bounty for enlistment provided by the fifth section of the act approved twenty-second of July, eighteen hundred and sixty-one, entitled “An act to authorize the employment of volunteers to aid in enforcing the laws and protecting public property.” Sec. 19. And be it further enacted, That whenever a regiment of volunteers of the same army, from the same State, is reduced to one half the maximum number prescribed by law, the President may direct the consolidation of the companies of such regiment: Provided, That no company so formed shall exceed the maximum number prescribed by law. When such consolidation is made, the regimental officers shall be reduced in proportion to the reduction in the number of companies. 134

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Sec. 20. And be it further enacted, That whenever a regiment is reduced below the minimum number allowed by law, no officers shall be appointed in such regiment beyond those necessary for the command of the reduced number. Sec. 21. And be it further enacted, That so much of the fifth section of the act approved seventeenth July, eighteen hundred and sixty-two, entitled, “An act to amend an act calling forth the militia to execute the laws of the Union,” and so forth, as requires the approval of the President to carry into execution the sentence of a court-martial, be, and the same is hereby, repealed, as far as relates to carrying into execution the sentence of any court-martial against any person convicted as a spy or deserter, or of mutiny or murder; and hereafter sentences in punishment of these offenses may be carried into execution upon the approval of the commanding-general in the field. Sec. 22. And be it further enacted, That courts-martial shall have power to sentence officers who shall absent themselves from their commands without leave, to be reduced to the ranks to serve three years or during the war. Sec. 23. And be it further enacted, That the clothes, arms, military outfits, and accoutrements furnished by the United States to any soldier, shall not be sold, bartered, exchanged, pledged, loaned, or given away; and no person not a soldier, or duly authorized officer of the United States, who has possession of any such clothes, arms, military outfits, or accoutrements, furnished as aforesaid, and which have been the subjects of any such sale, barter, exchange, pledge, loan, or gift, shall have any right, title, or interest therein; but the same may be seized and taken wherever found by any officer of the United States, civil or military, and shall thereupon be delivered to any quartermaster, or other officer authorized to receive the same; and the possession of any such clothes, arms, military outfits, or accoutrements, by any person not a soldier or officer of the United States, shall be primâ facie evidence of such a sale, barter, exchange, pledge, loan, or gift as aforesaid. Sec. 24. And be it further enacted, That every person not subject to the rules and articles of war who shall procure or entice, or attempt to procure or entice, a soldier in the service of the United States to desert; or who shall labor, conceal, or give employment to a deserter, or carry him away, or aid in carrying him away, knowing him to be such; or who shall purchase from any soldier his arms, equipment, ammunition, uniform, clothing, or any part thereof; and any captain and commanding officer of any ship or vessel, or any superintendent or conductor of any railroad, or any other public conveyance, carrying away such soldier as one of his crew or otherwise, knowing him to have deserted, or shall refuse to deliver him up to the orders of his commanding officer, shall upon legal conviction, be fined, at the discretion of any court having cognizance of the same, in any sum not exceeding five hundred dollars, and he shall be imprisoned not exceeding two years nor less than six months. Sec. 25. And be it further enacted, That if any person shall resist any draft of men enrolled under this act into the service of the United States, or shall counsel or aid any person to resist any such draft; or shall assault or obstruct any officer Legislative Achievements

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in making such draft, or in the performance of any service in relation thereto; or shall counsel any person to assault or obstruct any such officer, or shall counsel any drafted men not to appear at the place of rendezvous, or wilfully dissuade them from the performance of military duty as required by law, such person shall be subject to summary arrest by the provost-marshal, and shall be forthwith delivered to the civil authorities, and upon conviction thereof, be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments. Sec. 26. And be it further enacted, That, immediately after the passage of this act, the President shall issue his proclamation declaring that all soldiers now absent from their regiments without leave may return within a time specified to such place or places as he may indicate in his proclamation, and be restored to their respective regiments without punishment, except the forfeiture of their pay and allowances during their absence; and all deserters who shall not return within the time so specified by the President shall, upon being arrested, be punished as the law provides. Sec. 27. And be it further enacted, That depositions of witnesses residing beyond the limits of the state, territory, or district in which military courts shall be ordered to sit, may be taken in cases not capital by either party, and read in evidence; provided the same shall be taken upon reasonable notice to the opposite party, and duly authenticated. Sec. 28. Be it further enacted, That the judge advocate shall have power to appoint a reporter, whose duty it shall be to record the proceedings of and testimony taken before military courts instead of the judge advocate; and such reporter may take down such proceedings and testimony in the first instance in short-hand. The reporter shall be sworn or affirmed faithfully to perform his duty before entering upon it. Sec. 29. And be it further enacted, That the court shall, for reasonable cause, grant a continuance to either party for such time and as often as shall appear to be just: Provided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days. Sec. 30. And be it further enacted, That in time of war, insurrection, or rebellion, murder, assault and battery with intent to kill, manslaughter, mayhem, wounding by shooting or stabbing with an intent to commit murder, robbery, arson, burglary, rape, assault and battery with an intent to commit rape, and larceny, shall be punishable by the sentence of a general court-martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offenses, shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been committed. Sec. 31. And be it further enacted, That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay 136

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and allowances prescribed by law, and no more; and any officer absent without leave shall, in addition to the penalties prescribed by law or court-martial, forfeit all pay or allowances during such absence. Sec. 32. And be it further enacted, That the commanders of regiments and of batteries in the field, are hereby authorized and empowered to grant furloughs for a period not exceeding thirty days at any one time to five per centum of the non-commissioned officers and privates, for good conduct in the line of duty, and subject to the approval of the commander of the forces of which such noncommissioned officers and privates form a part. Sec. 33. And be it further enacted, That the President of the United States is hereby authorized and empowered, during the present rebellion, to call forth the national forces, by draft, in the manner provided for in this act. Sec. 34. And be it further enacted, That all persons drafted under the provisions of this act shall be assigned by the President to military duty in such corps, regiments, or other branches of the service as the exigencies of the service may require. Sec. 35. And be it further enacted, That hereafter details to special service shall only be made with the consent of the commanding officer of forces in the field; and enlisted men, now or hereafter detailed to special service, shall not receive any extra pay for such services beyond that allowed to other enlisted men. Sec. 36. And be it further enacted, That general orders of the War Department, numbered one hundred and fifty-four and one hundred and sixty-two, in reference to enlistments from the volunteers into the regular service, be, and the same are hereby, rescinded; and hereafter no such enlistments shall be allowed. Sec. 37. And be it further enacted, That the grades created in the cavalry forces of the United States by section eleven of the act approved seventeenth July, eighteen hundred and sixty-two, and for which no rate of compensation has been approved, shall be paid as follows, to wit: Regimental commissary, the same as regimental quartermaster; chief trumpeter the same as chief bugler; sad[d]lersergeant the same as regimental commissary-sergeant: Provided, That the grade of supernumerary second lieutenant, and two teamsters for each company, and one chief farrier and blacksmith for each regiment, as allowed by said section of that act, be, and they are hereby, abolished; and each cavalry company may have two trumpeters, to be paid as buglers; and each regiment shall have one veterinary surgeon, with the rank of a regimental sergeant-major, whose compensation shall be seventy-five dollars per month. Sec. 38. And be it further enacted, That all persons who, in time of war or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial or military commission, and shall, upon conviction, suffer death. Approved, March 3, 1863

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H abeas Corpus Act, M arch 3, 1863 U.S. Statutes at Large 12:755–58.

Habeas corpus, the great writ of liberty, is one of the most celebrated, if not the most celebrated, bulwarks of personal liberty in the Anglo-American legal world and history. Meaning in Latin, “you shall have the body,” habeas corpus provides a process for those being held as prisoners or in custodial holdings so they can petition a court and request an inquiry into their detention. This writ (a court’s instruction to take some action) orders the holding authority to physically bring the person being held into court and explain why the individual is being restrained. A process started by the writ of habeas corpus could result in the release of the individual. This oversight of the liberties of persons being held by judicial and administrative institutions holds such an important place in the United States constitutional system that the 1787 Constitution itself provides in Article 1, §9 that “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In April 1861, on the basis of his war powers and with Congress not in session, President Abraham Lincoln authorized military commanders to suspend the writ of habeas corpus in areas of war in the United States in response to the firing on Fort Sumter and the alleged secession of upper South states. With this act, Congress legitimized Lincoln’s earlier suspension of the writ and authorized future suspensions. For the purpose of protecting federal officials who had been found guilty in state courts of offenses against southern and border state civilians, this act indemnified them. It also provided for the removal of actions away from usually hostile state proceedings against federal officers to federal courts, where they would be defended by United States attorneys as long as federal officials had been carrying out orders properly. It also provided for the removal of actions against federal officers away from hostile state proceedings to the federal courts. In federal

court, the United States attorneys defended the accused officers. The Habeas Corpus Act represents a balance between wartime needs for security against internal disloyalty and the traditional values of personal liberty from arbitrary arrest and detainment protected by the writ. Chap. LXXXI.—An Act relating to Habeas Corpus and regulating Judicial Proceedings in Certain Cases. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon the certificate, under oath, of the officer having charge of any one so detained that such person is detained by him as a prisoner under the authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ, so long as said suspension by the President shall remain in force, and said rebellion continue. Sec. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia a list of names of all persons, citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest; the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department, and the Secretary of War a list of such persons as are imprisoned by the order or authority of the President, acting through the Department of War. And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after passage of this act, and after furnishing of said list, as aforesaid, has terminated its session without finding an indictment or presentment, or other proceedings against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him 140

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to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge’s order; and in case he shall delay or refuse to do so, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court: Provided, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the government of the United States, and to support the Constitution thereof; and that he or she will not hereafter in any way encourage or give aid and comfort to the present rebellion, or the supporters thereof: And provided, also, That the judge or court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said judge or court, to keep the peace and be of good behavior towards the United States and its citizens, and from time to time, and at such times as such judge or court may direct, appear before said judge or court to be further dealt with, according to the law, as the circumstances may require. And it shall be the duty of the district attorney of the United States to attend such examination before the judge. Sec. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offense against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance of trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of the petitioner or any other credible person, obtain and be entitled to have the said judge’s order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true. Sec. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending, or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue. Legislative Achievements

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Sec. 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or commenced, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit is pending, file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court and entering special bail in the cause, if special bail was originally required therein. It shall then be the duty of the state court to accept the surety and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding. And any attachment of goods or estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such state they would have been holden to answer final judgment had it been rendered in the court in which the suit or prosecution was commenced. And it shall be lawful in any such action or prosecution which may be now pending, or hereafter commenced, before any state court whatever, for any cause aforesaid, after final judgment, for either party to remove and transfer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken, in manner aforesaid. And it shall be the duty of the person taking such appeal to produce and file in the said circuit court attested copies of the process, proceedings, and judgments in such cause; and it shall also be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to remove the same to the circuit court of the United States of that district in which such judgment shall have been rendered; and the said circuit court shall thereupon proceed to try and determine the facts and the law in such action, in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding. And any bail which may have been taken, or property attached, shall be holden on the final judgment of the said circuit court in such action, in the same manner as if no 142

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such removal and transfer had been made, as aforesaid. And the state court, from which such action, civil or criminal, may be removed and transferred as aforesaid, upon the parties giving good and sufficient security for the prosecution thereof, shall allow the same to be removed and transferred, and proceed no further in the case: Provided, however, That if the party aforesaid shall fail duly to enter the removal and transfer, as aforesaid, in the circuit court of the United States, agreeably to this act, the state court, by which judgment shall have been rendered, and from which the transfer and removal shall have been made, as aforesaid, shall be authorized, on motion for that purpose, to issue execution, and to carry into effect any such judgment, the same as if no such removal and transfer had been made. And provided also, That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent in the state court. And if in any suit hereafter commenced the plaintiff is nonsuited or judgment pass against him, the defendant shall recover double costs. Sec. 6. And be it further enacted, That any suit or prosecution described in this act, in which final judgment may be rendered in the circuit court, may be carried by writ of error to the supreme court, whatever may be the amount of said judgment. Sec. 7. And be it further enacted, That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act. Approved, March 3, 1863.

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The F reedmen ’s Bureau Act, M arch 3, 1865 U.S. Statutes at Large 13:507–9.

With this act, Congress and President Abraham Lincoln established the first federal social service organization in United States history. Its goal was to aid the transition from slavery to freedom of the African American community and other displaced persons. The act established a division within the War Department to assist in the distribution of “provisions, clothing, and fuel” to such persons. Section 4 of this act authorized the state commissioners provided for therein “to set apart, for the use of loyal refugees and freedmen, such tracts of land within the insurrectionary states as shall have been abandoned, or to which the United States shall have acquired title by confiscation or sale.” Each freedman could acquire up to forty acres, paying rent for the land at 1860 rates. From this provision spread the rumor that the federal government would confiscate southern land and then distribute it to the refugees and freedmen: the rumor of “forty acres and a mule.” But, as this statute makes clear, any such assigned land had to be occupied and rent paid for three years; recently freed persons usually had no such resources to make such a commitment. Further, the administrators of the Freedmen’s Bureau, led by General Oliver O. Howard, proved to be just as concerned as white southerners about keeping the labor of the South on the land and maintaining the region’s social order. These concerns, coupled with the legal tradition that government should not take property from A and give it to B without just compensation, meant that wholesale redistribution of land in the South did not happen. Also note that the statute assumes that the transition from slavery to freedom would be relative short, considering that this act was established for one year and that the transition and support of freedmen and refugees could be met with excess goods possessed by the army; this statute did not require its own budget allocation. Thus, the assumption on March 3, 1865, was that freedom could be achieved quickly, easily, and cheaply.

Chap. XC.—An Act to establish a Bureau for the Relief of Freedmen and Refuges. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is hereby established in the War Department, to continue during the present war of rebellion, and for one year thereafter, a bureau of refugees, freedmen, and abandoned lands, to which shall be committed, as hereinafter provided, the supervision and management of all abandoned lands, and the control of all subjects relating to refugees and freedmen from rebel states, or from any district of country within the territory embraced in the operations of the army, under such rules and regulations as may be prescribed by the head of the bureau and approved by the President. The said bureau shall be under the management and control of a commissioner to be appointed by the President, by and with the advice and consent of the Senate, whose compensation shall be three thousand dollars per annum, and such number of clerks as may be assigned to him by the Secretary of War, not exceeding one chief clerk, two of the fourth class, two of the third class, and five of the first class. And the commissioner and all persons appointed under this act, shall, before entering upon their duties, take the oath of office prescribed in an act entitled “An act to prescribe an oath of office, and for other purposes,” approved July second, eighteen hundred and sixty-two, and the commissioner and the chief clerk shall, before entering upon their duties, give bonds to the treasurer of the United States, the former in the sum of fifty thousand dollars, and the latter in the sum of ten thousand dollars, conditioned for the faithful discharge of their duties respectively, with securities to be approved as sufficient by the Attorney-General, which bonds shall be filed in the office of the first comptroller of the treasury, to be by him put in suit for the benefit of any injured party upon any breach of the conditions thereof. Sec. 2. And be it further enacted, That the Secretary of War may direct such issues of provisions, clothing, and fuel, as he may deem needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children, under such rules and regulations as he may direct. Sec. 3. And be it further enacted, the President may, by and with the advice and consent of the Senate, appoint an assistant commissioner for each of the states declared to be in insurrection, not exceeding ten in number, who shall, under the direction of the commissioner, aid in the execution of the provisions of this act; and he shall give a bond to the Treasurer of the United States, in the sum of twenty thousand dollars, in the form and manner prescribed in the first section of this act. Each of said commissioners shall receive an annual salary of two thousand five hundred dollars in full compensation for all his services. And any military officer may be detailed and assigned to duty under this act without increase of pay or allowances. The commissioner shall, before the commencement of each regular session of congress, make full report of his proceedings with exhibits of the state of his accounts to the President, who shall communicate the 146

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same to congress, and shall also make special reports whenever required to do so by the President or either house of congress; and the assistant commissioners shall make quarterly reports of their proceedings to the commissioner, and also such other special reports as from time to time may be required. Sec. 4. And be it further enacted, That the commissioner, under the direction of the President, shall have authority to set apart, for the use of loyal refugees and freedmen, such tracts of land within the insurrectionary states as shall have been abandoned, or to which the United States shall have acquired title by confiscation or sale, or otherwise, and to every male citizen, whether refugee or freedman, as aforesaid, there shall be assigned not more than forty acres of such land, and the person to whom it was so assigned shall be protected in the use and enjoyment of the land for the term of three years at an annual rent not exceeding six per centum upon the value of such land, as it was appraised by the state authorities in the year eighteen hundred and sixty, for the purpose of taxation, and in case no such appraisal can be found, then the rental shall be based upon the estimated value of the land in said year, to be ascertained in such manner as the commissioner may by regulation prescribe. At the end of said term, or at any time during said term, the occupants of any parcels so assigned may purchase the land and receive such title thereto as the United States can convey, upon paying therefore the value of the land, as ascertained and fixed for the purpose of determining the annual rent aforesaid. Sec. 5. And be it further enacted, That all acts and parts of acts inconsistent with the provisions of this act, are hereby repealed. Approved, March 3, 1865.

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Thirteenth A mendment, Passed by Congress January 31, 1865, and R atified December 6, 1865 Neither the Confiscation Acts nor President Abraham Lincoln’s January 1, 1863, Emancipation Proclamation ended slavery in the United States. Though it can be argued that the Union army victory in April 1865 ended slavery, the institution’s constitutional, legal, and formal end came with the ratification of the Thirteenth Amendment to the United States Constitution. Although Lincoln did not live to see this amendment ratified, he did know that this constitutional amendment had passed Congress and been sent to the states for ratification. This amendment is notable as a landmark on the long road on what the preamble to the Constitution called “a more perfect Union,” and for what this amendment did and did not do. While it abolished the race relation structure of master and slave, it did not specify what sort of race relations might follow. Though many might have assumed that African Americans would start to participate legally and politically in their localities and states just like the white majority population had done, that assumption proved false quickly as southern states started to pass the so-called Black Codes in 1865 and 1866 to implement state law to re-create slavery in everything but name. Also, this amendment is the first instance of Congress providing for an open-ended enforcement clause to a constitutional amendment. To overturn the state Black Codes and to enforce this federal amendment, Congress passed the nation’s first civil rights measure, the Civil Rights Act of 1866, to enforce the Thirteenth Amendment, and did so over the veto of President Andrew Johnson. Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2: Congress shall have power to enforce this article by appropriate legislation.

P resident A ndrew Johnson Veto of the F reedmen ’s Bureau Act, F ebruary 19, 1866 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press, 1992), 10:120–27.

Congress wished to extend the life of the Freedmen’s Bureau and wanted the organization to continue its work past the one year originally established for it. While President Abraham Lincoln willingly signed the Freedmen’s Bureau Act of 1865, by the time of its extension, Lincoln had been assassinated, and lifelong Democrat Andrew Johnson of Tennessee occupied the Executive Mansion. Johnson opposed this extension of the Freedmen’s Bureau for several reasons. First, he felt it was no longer needed because the war had ended and the Thirteenth Amendment had been ratified, ending slavery. With the war over, the freedmen supposedly no longer needed protection from hostile persons in their localities. Second, Johnson disliked using the military and its jurisdiction to set up and protect the Freedmen’s Bureau instead of relying on the regular local and state civil and judicial authorities in the South. Next, he feared (reflecting a common assumption of his era) that continued protection of the freedmen by the federal government would lead to their dependency on the government for their livelihood, and thus they would not become “self-sustaining” like everyone else. Last, Johnson was uncomfortable with the federal government establishing this sort of social service agency. From Johnson’s perspective, if such services were needed, then it was the custom and tradition of the states, localities, or private persons to provide such services, not the federal government. In response to Johnson’s concerns and veto, Congress went back to work on the bill extending the Freedmen’s Bureau. To the Senate of the United States: I have examined with care the bill, which originated in the Senate and has been passed by the two Houses of Congress, to amend an act entitled “An act to establish a bureau for the relief of freedmen and refugees,” and for other purposes.

Having with much regret come to the conclusion that it would not be consistent with the public welfare to give my approval to the measure, I return the bill to the Senate with my objections to its becoming a law. I might call to mind in advance of these objections that there is no immediate necessity for the proposed measure. The act to establish a bureau for the relief of freedmen and refugees, which was approved in the month of March last, has not yet expired. It was thought stringent and extensive enough for the purpose in view in time of war. Before it ceases to have effect further experience may assist to guide us to a wise conclusion as to the policy to be adopted in time of peace. I share with the Congress the strongest desire to secure the freedmen the full enjoyment of their freedom and property and their entire independence and equality in making contracts for their labor, but the bill before me contains provisions which in my opinion are not warranted by the Constitution and are not well suited to accomplish the end in view. 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 subdistricts, and the number of salaried agents to be employed may be equal to the number of counties or parishes in all of 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 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. 152

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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 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. If it be asked whether the creation of such a tribunal within a State is warranted as a measure of war, the question immediately presents itself whether we are still engaged in war. Let us not unnecessarily disturb the commerce and credit and industry of the country by declaring to the American people and to the world that the United States are still in a condition of civil war. At present there is no part of our country in which the authority of the United States is disputed. Offenses that may be committed by individuals should not work a forfeiture of the rights of whole communities. The country has returned, or is returning, to a state of peace and industry, and the rebellion is in fact at an end. The measure, therefore, seems to be as inconsistent with the actual condition of the country as it is at variance with the Constitution of the United States. If, in passing from general considerations, we examine the bill in detail, it is open to weighty objections. Legislative Achievements

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In time of war it was eminently proper that we should provide for those who were passing suddenly from a condition of bondage to a state of freedom. But this bill proposes to make the Freedmen’s Bureau, established by the act of 1865 as one of many great and extraordinary military measures to suppress a formidable rebellion, a permanent branch of the public administration, with its powers greatly enlarged. I have no reason to suppose, and I do not understand it to be alleged, that the act of March, 1865, has proved deficient for the purpose for which it was passed, although at that time and for a considerable period thereafter the Government of the United States remained unacknowledged in most of the States whose inhabitants had been involved in the rebellion. The institution of slavery, for the military destruction of which the Freedmen’s Bureau was called into existence as an auxiliary, has been already effectually and finally abrogated throughout the whole country by an amendment of the Constitution of the United States, and practically its eradication has received the assent and concurrence of most of those States in which it at any time had an existence. I am not, therefore, able to discern in the condition of the country anything to justify an apprehension that the powers and agencies of the Freedmen’s Bureau, which were effective for the protection of the freedmen and refugees during the actual continuance of hostilities and of African servitude, will now, in a time of peace and after the abolition of slavery, prove inadequate to the same proper ends. If I am correct in these views, there can be no necessity for the enlargement of the powers of the Bureau, for which provision is made in the bill. The third section of the bill authorizes a general and unlimited grant of support to the destitute and suffering refugees and freedmen, their wives and children. Succeeding sections make provision for the rent or purchase of landed estates for freedmen, for the erection for their benefit of suitable buildings for asylums and schools, the expenses to be defrayed from the Treasury of the whole people. The Congress of the United States has never heretofore thought itself empowered to establish asylums beyond the limits of the District of Columbia, except for the benefit of disabled soldiers and sailors. It has never founded schools for any class of our own people, not even for the orphans of those who have fallen in the defense of the Union, but has left the care of education to the much more competent and efficient control of the States, of communities, of private associations, and of individuals. It has never deemed itself authorized to expend the public money for the rent or purchase of homes for the thousands, not to say millions, of the white race who are honestly toiling from day to day for their subsistence. A system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution; nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another. Pending the war many refugees and freedmen received support from the Government, but it was never intended that they should thenceforth be fed, clothed, educated, and sheltered by the United States. The idea on which 154

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the slaves were assisted to freedom was that on becoming free they would be a selfsustaining population. Any legislation that shall imply that they are not expected to attain a self-sustaining condition must have a tendency injurious alike to their character and their prospects. The appointment of an agent for every county and parish will create an immense patronage, and the expense of the numerous officers and their clerks, to be appointed by the President, will be great in the beginning, with a tendency steadily to increase. The appropriations asked by the Freedmen’s Bureau as now established, for the year 1866, amount to $11,745,000. It may be safely estimated that the cost to be incurred under the pending bill will require double that amount—more than the entire sum expended in any one year under the Administration of the second Adams. If the presence of agents in every parish and county is to be considered as a war measure, opposition, or even resistance, might be provoked; so that to give effect to their jurisdiction troops would have to be stationed within reach of every one of them, and thus a large standing force to be rendered necessary. Large appropriations would therefore be required to sustain and enforce military jurisdiction in every county or parish from the Potomac to the Rio Grande. The condition of our fiscal affairs is encouraging, but in order to sustain the present measure of public confidence it is necessary that we practice not merely customary economy, but, as far as possible, severe retrenchment. There is still further objection to the bill, on grounds seriously affecting the class of persons to whom it is designed to bring relief. It will tend to keep the mind of the freedman in a state of uncertain expectation and restlessness, while to those among whom he lives it will be a source of constant and vague apprehension. Undoubtedly the freedman should be protected, but he should be protected by the civil authorities, especially by the exercise of all the constitutional powers of the courts of the United States and of the States. His condition is not so exposed as may at first be imagined. He is in a portion of the country where his labor can not well be spared. Competition for his services from planters, from those who are constructing or repairing railroads, and from capitalists in his vicinage or from other States will enable him to command almost his own terms. He also possesses a perfect right to change his place of abode, and if, therefore, he does not find in one community or State a mode of life suited to his desires or proper remuneration for his labor, he can move to another where that labor is more esteemed and better rewarded. In truth, however, each State, induced by its own wants and interests, will do what is necessary and proper to retain within its borders all the labor that is needed for the development of its resources. The laws that regulate supply and demand will maintain their force, and the wages of the laborer will be regulated thereby. There is no danger that the exceedingly great demand for labor will not operate in favor of the laborer. Neither is sufficient consideration given to the ability of the freedmen to protect and take care of themselves. It is no more than justice to them to believe that Legislative Achievements

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as they have received their freedom with moderation and forbearance, so they will distinguish themselves by their industry and thrift, and soon show the world that in a condition of freedom they are self-sustaining, capable of selecting their own employment and their own places of abode, of insisting for themselves on a proper remuneration, and of establishing and maintaining their own asylums and schools. It is earnestly hoped that instead of wasting away they will by their own efforts establish for themselves a condition of respectability and prosperity. It is certain that they can attain to that condition only through their own merits and exertions. In this connection the query presents itself whether the system proposed by the bill will not, 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 action of this numerous class and use them for the attainment of his own political ends. I can not but add another very grave objection to this bill. The Constitution imperatively declares, in connection with taxation, that each State shall have at least one Representative, and fixes the rule for the number to which, in future times, each State shall be entitled. It also provides that the Senate of the United States shall be composed of two senators from each State, and adds with particular force “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” The original act was necessarily passed in the absence of the States chiefly to be affected, because their people were then contumaciously engaged in the rebellion. Now the case is changed, and some, at least, of those States are attending Congress by loyal representatives, soliciting the allowance of the constitutional right for representation. At the time, however, of the consideration and the passing of this bill there was no Senator or Representative in Congress from the eleven States which are to be mainly affected by its provisions. The very fact that reports were made and are made against the good disposition of the people of that portion of the country is an additional reason why they need and should have representatives of their own in Congress to explain their condition, reply to accusations, and assist by their local knowledge in the perfecting of measures immediately affecting themselves. While the liberty of deliberation would then be free and Congress would have full power to decide according to its judgment, there could be no objection urged that the States most interested had not been permitted to be heard. The principle is firmly fixed in the minds of the American people that there should be no taxation without representation. Great burdens have now to be borne by all the country, and we may best demand that they shall be borne without murmur when they are voted by a majority of the representatives of all the people. I would not interfere with the unquestionable right of Congress to judge, each House for itself, “of the elections, returns, and qualifications of its 156

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own members;” but that authority can not be construed as including the right to shut out in time of peace any State from the representation to which it is entitled by the Constitution. At present all the people of the eleven States are excluded— those who were most faithful during the war not less than others. The State of Tennessee, for instance, whose authorities engaged in rebellion, was restored to all her constitutional relations to the Union by the patriotism and energy of her injured and betrayed people. Before the war was brought to a termination they had placed themselves in relations with the General Government, had established a State government of their own, and, as they were not included in the emancipation proclamation, they by their own act had amended their constitution so as to abolish slavery within the limits of their State. I know no reason why the State of Tennessee, for example, should not fully enjoy “all her constitutional relations to the United States.” The President of the United States stands toward the country in a somewhat different attitude from that of any member of Congress. Each member of Congress is chosen from a single district or State; the President is chosen by the people of all the States. As eleven States are not at this time represented in either branch of Congress, it would seem to be his duty on all proper occasions to present their just claims to Congress. There will always be differences of opinion in the community, and individuals may be guilty of transgressions of the law, but these do not constitute valid objections against the right of a State to representation. I would in no wise interfere with the discretion of Congress with regard to the qualifications of members; but I hold it my duty to recommend to you, in the interests of peace and the interests of the union, the admission of every State to its share in public legislation when, however insubordinate, insurgent, or rebellious its people may have been, it presents itself, not only in an attitude of loyalty and harmony, but in the persons of representatives whose loyalty can not be questioned under any existing constitutional or legal test. It is plain that an indefinite or permanent exclusion of any part of the country from representation must be attended by a spirit of disquiet and complaint. It is unwise and dangerous to pursue a course of measures which will unite a very large section of the country against another section of the country, however much the latter may preponderate. The course of emigration, the development of industry and business, and natural causes will raise up at the South men as devoted to the Union as those of any other part of the land; but if they are all excluded from Congress, if in a permanent statute they are declared not to be in full constitutional relations to the country, they may think they have cause to become a unit in feeling and sentiment against the Government. Under the political education of the American people the idea is inherent and ineradicable that the consent of the majority of the whole people is necessary to secure a willing acquiescence in legislation. The bill under consideration refers to certain of the States as though they had not “been fully restored in all their constitutional relations to the United States.” Legislative Achievements

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If they have not, let us at once act together to secure that desirable end at the earliest possible moment. It is hardly necessary for me to inform Congress that in my own judgment most of those States, so far, at least, as depends upon their own action, have already been fully restored, and are to be deemed as entitled to enjoy their constitutional rights as members of the Union. Reasoning from the Constitution itself and from the actual situation of the country, I feel not only entitled but bound to assume that with the Federal courts restored and those of the several States in the full exercise of their functions the rights and interests of all classes of people will, with the aid of the military in cases of resistance to the laws, be essentially protected against unconstitutional infringement or violation. Should this expectation unhappily fail, which I do not anticipate, then the Executive is already fully armed with the powers conferred by the act of March, 1865, establishing the Freedmen’s Bureau, and hereafter, as heretofore, he can employ the land and naval forces of the country to suppress insurrection or to overcome obstructions to the laws. In accordance with the Constitution, I return the bill to the Senate, in the earnest hope that a measure involving questions and interests so important to the country will not become law, unless upon deliberate consideration by the people it shall receive the sanction of an enlightened public judgment. Andrew Johnson

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P resident A ndrew Johnson Veto of the Civil R ights Bill , M arch 27, 1866 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press), 10:312–20.

Before a bill passed by both houses of the Congress becomes law, it must receive the approval of the president. In March 1866, Congress reacted to the passage of the so-called “Black Codes” by the southern states that re-established slavery in everything but name by passing the nation’s first civil rights act. In response, President Andrew Johnson vetoed the Civil Rights Act of 1866, citing several reasons for his veto. As Johnson put it at one point in his veto message, “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.” The proposed bill altered the balance of traditional federalism and, for the first time, provided federal oversight of rights that had traditionally been overseen by the states. Thus, this change in federalism violated the traditions of American government and, for Johnson, constituted a flaw in the bill. Johnson also listed several other objections to the bill, such as: it favored unprepared blacks for citizenship over better-prepared immigrants who had experience with political participation; it made even more marginalized groups citizens, such as the Chinese and gypsies (at least in historical context); it was demeaning to the states for the federal government to determine who was a citizen and who was not; the bill raised the issue of inter-racial marriage; it moved the nation closer to a centralized and concentrated government centered in Washington, D.C., as opposed to the states; and, it discriminated against the majority white population. Again, as Johnson put it, Congress, “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.” At the time, the arguments regarding changing the balance of

federalism provided Johnson’s main point of contention; to modern readers, Johnson’s statements about race and citizenship stand out. Washington, D.C., March 27, 1866 To the Senate of the United States: 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. By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal Citizenship. It does not purport to give these classes of person any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the Power to confer the right of Federal Citizenship is with Congress. The right of Federal Citizenship thus to be conferred on the several excepted races before mentioned is now, for the first time, proposed to be given by law. If, as is claimed by many, all persons who are native-born, already are, by virtue of the Constitution, citizens of the United States, the passage of this pending bill can not be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself, whether, when eleven of the thirty-six States are unrepresented in Congress, at this time it is sound policy to make our entire colored population and all other excepted classes citizens of the United States? Four millions of them have just emerged from slavery into freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all privileges and immunities of citizens of the United States? Have the people of the several States expressed such a conviction? It may also be asked whether it is necessary that they should be declared citizens in order that they may be secured in the enjoyment of civil rights? Those rights proposed to be conferred by the bill are, by Federal as well as by State laws, secured to all domiciled aliens and foreigners even before the completion of the process of naturalization, and it may safely be assumed that the same enactments are sufficient to give like protection and benefits to those for whom this bill provides special legislation. Besides, the policy of the Govern160

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ment, from its origin to the present time, seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States. The bill, in effect, proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro, to whom after long years of bondage, the avenue of freedom and intelligence have now been suddenly opened. He must, of necessity, from his previous unfortunate condition of servitude, be less informed as to the nature and character of our institutions than he who coming from abroad, has to some extent at least, familiarized himself with the principles of a Government to which he voluntarily intrusts “life, liberty, and the pursuit of happiness.” Yet it is now proposed by a single legislative enactment to confer the rights of citizens upon all persons of African descent, born within the extended limits of the United States, while persons of foreign birth, who make our land their home, must undergo a probation of five years, and can only then become citizens upon proof that they are of “good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” The first section of the bill also contains an enumeration of the rights to be enjoyed by these classes, so made citizens, “in every State and Territory in the United States.” These rights are, “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 have “full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none other. Thus a perfect equality of the white and black races is attempted to be fixed by Federal law, in every State of the Union, over the vast field of State jurisdiction covered by these enumerated rights. In no one of these can any State ever exercise any power of discrimination between the different races. In the exercise of State policy over matters exclusively affecting the people of each State, it has frequently been thought expedient to discriminate between the two races. By the statutes of some of the States, Northern as well as Southern, it is enacted, for instance, that no white person shall intermarry with a negro or mulatto. Chancellor Kent says, speaking of the blacks, that— Marriages between them and whites are forbidden in some of the States where slavery does not exist, and they are prohibited in all slaveholding States, and when not absolutely contrary to law, they are revolting, and regarded as an offense against public decorum.

I do not say this bill repeals State laws on the subject of marriage between the two races, for as the whites are forbidden to intermarry with the blacks, the blacks Legislative Achievements

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can only make such contracts as the whites themselves are allowed to make, and therefore can not, under this bill, enter into the marriage contract with the whites. I cite this discrimination, however, as an instance of the State policy as to discrimination, and to inquire whether if Congress can abrogate all State laws of discrimination between the two races in the matter of real estate, of suits, and of contracts generally, Congress may not also repeal the State laws as to the contract of marriage between the two races? Hitherto every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States. They all relate to the internal policy and economy of the respective States. They are matters which in each State concern the domestic condition of its people, varying in each according to its own peculiar circumstances, and the safety and well-being of its own citizens. I do not mean to say that upon all these subjects there are not Federal restraints, as, for instance, in the State power of legislation over contracts, there is a Federal limitation that no State shall pass a law impairing the obligations of contracts; and as to crimes, that no State shall pass an ex post facto law; and as to money, that no State shall make any thing but gold and silver a legal tender. But where can we find a Federal prohibition against the power of any State to discriminate, as do most of them, between aliens and citizens, between artificial persons called corporations and natural persons, in the right to hold real estate? If it be granted that Congress can repeal all State laws discriminating between whites and blacks, in the subjects covered by this bill, why, it may be asked, may not Congress repeal in the same way all State laws discriminating between the two races on the subject of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold office, and, finally, to vote, “in every State and Territory of the United States.” As respects the Territories, they come within the power of Congress, for, as to them the law-making power is the Federal power; but as to the States, no similar provisions exist, vesting in Congress the power “to make rules and regulations” for them. The object of the second section of the bill is to afford discriminating protection to colored persons in the full enjoyment of all the rights secured to them by the previous section. It declares— That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at one time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, 162

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and, on conviction, shall be punished by fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, in the direction of the court.

This section seems to be designed to apply to some existing or future law of a State or Territory which may conflict with the provisions of the bill now under consideration. It provides for counteracting such forbidden legislation by imposing fine and imprisonment upon the legislators who may pass such conflicting laws, or upon such officers or agents who shall put, or attempt to put, them into execution. It means an official offense, not a common crime committed against law upon the persons or property of the black race. Such an act may deprive the black man of his property, but not of the right to hold property. It means a deprivation of the right itself, either by the State Judiciary or the State Legislature. It is therefore assumed that, under this section, members of State Legislatures who should vote for laws conflicting with the provisions of the bill; that judges of the State courts who should render judgments in antagonism with its terms; and that marshals and sheriffs, who should, as ministerial officers, execute process, sanctioned by State laws and issued by State judges, in execution of their judgments, could be brought before other tribunals, and there subjected to fine and imprisonment for the performance of the duties which State laws might impose. Legislation thus proposed invades the judicial power of the State. It says to every State court or judge, If you decide that this act is unconstitutional; if you refuse, under the prohibition of a State law, to allow a negro to testify; if you hold that over such a subject-matter the State law is paramount, and “under color” of a State law refuse the exercise of the right to the negro, your error of judgment, however conscientious, shall subject you to fine and imprisonment. I do not apprehend that the conflicting legislation which the bill seems to contemplate is so likely to occur as to render it necessary at this time to adopt a measure of such doubtful constitutionality. In the next place, this provision of the bill seems to be unnecessary, as adequate judicial remedies could be adopted to secure the desired end without invading the immunities of legislators, always important to be preserved in the interest of public liberty; without assailing the independence of the judiciary, always essential to the preservation of individual rights; and without impairing the efficiency of ministerial officers, always necessary for the maintenance of public peace and order. The remedy proposed by this section seems to be, in this respect, not only anomalous, but unconstitutional; for the Constitution guarantees nothing with certainty, if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction, subject only to the restriction that, in cases of conflict with the Constitution and constitutional laws of the United States, the latter should be held to be the supreme law of the land. The third section gives the district courts of the United States exclusive “cognizance of all crimes and offenses committed against the provisions of this act,” Legislative Achievements

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and concurrent jurisdiction with the circuit courts of the United States of all civil and criminal cases “affecting persons who are denied or can not enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section.” The construction which I have given to the second section is strengthened by this third section, for it makes it clear what kind of denial or deprivation of the rights secured by the first was in contemplation. It is a denial or deprivation of such rights “in the courts or judicial tribunals of the State.” It stands, therefore, clear of doubt, that the offense and the penalties provided in the second section are intended for the State judge, who, in the clear exercise of his function as a judge, not acting ministerially, but judicially, shall decide contrary to this Federal law. In other words, when a State judge, acting upon a question involving a conflict between a State law and a Federal law, and bound, according to his own judgment and responsibility, to give an impartial decision between the two, comes to the conclusion that the State law is valid and the Federal law is invalid, he must not follow the dictates of his own judgment, at the peril of fine and imprisonment. The legislative department of the Government of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer, bound to decree according to the will of Congress. It is clear that States which deny to persons whose rights are secured by the first section of the bill any one of those rights, all criminal and civil cases affecting them will, by the provisions of the third section, come under the exclusive cognizance of the Federal tribunals. It follows that if, in any State which denies to a colored person any one of those rights, that person should commit a crime against the laws of the State—murder, arson, rape, or any other crime—all protection and punishment through the courts of the State are taken away, and he can only be tried and punished in the Federal courts. How is the criminal to be tried? If the offense is provided for and punished by Federal law, that law, and not the State law, is to govern. It is only when the offense does not happen to be within the purview of the Federal law that the Federal courts are to try and punish him under any other law; then resort is to be had to “the common law, as modified and changed” by State legislation, “so far as the same is not inconsistent with the Constitution and laws of the United States.” So that over this vast domain of criminal jurisprudence, provided by each State for the protection of its own citizens, and for the punishment of all persons who violate its criminal laws, Federal law, wherever it can be made to apply, displaces State law. The question here naturally arises, from what source Congress derives the power to transfer to Federal tribunals certain classes of cases embraced in this section? The Constitution expressly declares that the judicial power of the United States “shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime 164

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jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming land under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.” Here the judicial power of the United States is expressly set forth and defined; and the act of September 24, 1789, establishing the judicial courts of the United States, in conferring upon the Federal courts jurisdiction over cases originating in State tribunals, is careful to confine them to the classes enumerated in the above recited clause of the Constitution. This section of the bill undoubtedly comprehends cases, and authorizes the exercise of powers that are not, by the Constitution, within the jurisdiction of the courts of the United States. To transfer them to those courts would be an exercise of authority well calculated to excite distrust and alarm on the part of all the States; for the bill applies alike to all of them—as well to those that have as to those that have not been engaged in rebellion. It may be assumed that this authority is incident to the power granted to Congress by the Constitution, as recently amended, to enforce, by appropriate legislation, the article declaring that— Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

It can not, however, be justly claimed that, with a view to the enforcement of this article of the Constitution, there is, at present, any necessity for the exercise of all the powers which this bill confers. Slavery has been abolished, and, at present, nowhere exists within the jurisdiction of the United States; nor has there been, nor is it likely there will be, any attempt to revive it by the people of the States. If, however, any such attempt shall be made, it will then become the duty of the General Government to exercise any and all incidental powers necessary and proper to maintain inviolate this great constitutional law of freedom. The fourth section of the bill provides that officers and agents of the Freedmen’s Bureau shall be empowered to make arrests, and also that other officers may be specially commissioned for that purpose by the President of the United States. It also authorizes circuit courts of the United States and the superior courts of the Territories to appoint, without limitation, commissioners, who are to be charged with the performance of quasi judicial duties. The fifth section empowers the commissioners so to be selected by the courts to appoint, in writing, under their hands, one or more suitable persons, from time to time, to execute warrants and other processes described by the bill. These numerous official agents are made to constitute a sort of police, in addition to the military, and are authorized to summon a posse comitatus and even to call to their aid such portion of the land and naval forces of Legislative Achievements

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the United States, or of the militia, “as may be necessary to the performance of the duty with which they are charged.” This extraordinary power is to be conferred upon agents irresponsible to the Government and to the people, to whose number the discretion of the commissioners is the only limit, and in whose hands such authority might be made a terrible engine of wrong, oppression, and fraud. The general statutes regulating the land and naval forces of the United States, the militia, and the execution of the laws, are believed to be adequate for every emergency which can occur in time of peace. If it should prove otherwise, Congress can, at any time, amend those laws in such a manner as, while subserving the public welfare, not to jeopard the rights, interest, and liberties of the people. The seventh section provides that a fee of ten dollars shall be paid to each commissioner in every case brought before him, and a fee of five dollars to his deputy, or deputies, “for each person he or they may arrest and take before any such commissioner,” “with such other fees as may be deemed reasonable by such commissioner,” “in general for performing such other duties as may be required in the premises.” All these fees are to be “paid out of the Treasury of the United States,” whether there is a conviction or not; but, in case of conviction, they are to be recoverable from the defendant. It seems to me that, under the influence of such temptations, bad men might convert any law, however beneficent, into an instrument of persecution and fraud. By the eighth section of the bill, the United States courts, which sit only in one place for white citizens, must migrate, with the marshal and district attorney (and necessarily with the clerk, although he is not mentioned), to any part of the district, upon the order of the President, and there hold a court “for the purpose of the more speedy arrest and trial of persons charged with a violation of this act;” and there the judge and the officers of the court must remain, upon the order of the President, “for the time therein designated.” The ninth section authorizes the President, or such person as he may empower for that purpose, to employ such part of the land and naval forces of the United States, or of the militia, “as shall be necessary to prevent the violation and enforce the due execution of this act.” This language seems to imply a permanent military force, that is to be always at hand, and whose only business is to be the enforcement of this measure over the vast region where it is to operate. I do not propose to consider the policy of this bill. To me the details of the bill seem fraught with evil. The white race and the black race of the South have hitherto lived together under the relation of master and slave—capital owning labor. Now, suddenly, that relation is changed, and, as to the ownership, capital and labor are divorced. They stand, now, each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and, if left to the laws that regulate capital and labor, it is confidently believed that they will satisfactorily work out the problem. Capital, it is true, has 166

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more intelligence; but labor is never so ignorant as not to understand its own interests, not to know its own value, and not to see that capital must pay that value. This bill frustrates this adjustment. It intervenes between capital and labor, and attempts to settle questions of political economy through the agency of numerous officials, whose interest it will be to foment discord between the two races; for, as the breach widens, their employment will continue, and when it is closed, their occupation will terminate. 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. My lamented predecessor, in his proclamation of the 1st of January, 1863, ordered and declared that all persons held as slaves within certain States and parts of States therein designated, were and thenceforward should be free; and, further, that the Executive Government of the United States, including the military and naval authorities thereof, would recognize and maintain the freedom of such persons. This guarantee has been rendered especially obligatory and sacred by the amendment of the Constitution abolishing slavery throughout the United States. I, therefore, fully recognize the obligation to protect and defend that class of our people whenever and wherever it shall become necessary, and to the full extent compatible with the Constitution of the United States. Entertaining these sentiments, it only remains for me to say that I will cheerfully cooperate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process under equal and impartial laws, in conformity with the provisions of the Federal Constitution. I now return the bill to the Senate, and regret that, in considering the bills and joint resolutions—forty-two in number—which have been thus far submitted for my approval, I am compelled to withhold my assent from a measure that has received the sanction of both houses of Congress. Andrew Johnson Legislative Achievements

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Civil R ights Act, A pril 9, 1866 U.S. Statutes at Large 14:27–29.

The nation’s first civil rights act passed to enforce the Thirteenth Amendment of 1865, this legislation reflects the assumptions of the Republican majority in the Congress that the United States was a nation and that “all persons born in the United States” possessed certain fundamental national rights, which included the newly freed black population. Interestingly, the rights delineated in this statute are overwhelmingly economic rights or rights of access to the state and local courts so that aggrieved persons could defend themselves through the law. Free persons would use the law to protect their economic interests and their access to the local forums of order. By this statute, if the local/state courts failed to abide by and enforce these rights, then defendants could remove the action to federal district or circuit courts for a hearing. Enacted over the March 27, 1866, veto of President Andrew Johnson, this statute charged the federal district courts, the federal district attorneys, and federal marshals to oversee these rights and prevent interference with persons exercising their rights pursuant to this legislation and went so far as to authorize the president to use the military to enforce the act. Sections four, five, six, and seven provided routine and lengthy enabling language to carry out the protection of the rights listed in section one. Important public policy concerns that defined the rights and the changed location in United States federalism about where rights of citizens will be protected, and by whom, are contained in these sections. Chap. XXXI.—An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication. 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, see, 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. Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Sec. 3. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the “Act relating to habeas corpus and regulating judicial proceedings in certain cases,” approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as 170

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modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause, and, if of a criminal nature, in the infliction of punishment on the party found guilty. . . . Sec. 8. And be it further enacted, That whenever the President of the United States shall have reason to believe that offences have been or are likely to be committed against the provisions of this act within any judicial district, it shall be lawful for him, in his discretion, to direct the judge, marshal, and district attorney of such district to attend at such place within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of this act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated. Sec. 9. And be it further enacted, That it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act. Sec. 10. And be it further enacted, That upon all questions of law arising in any case under the provisions of this act a final appeal may be taken to the Supreme Court of the United States. Schuyler Colfax, Speaker of the House of Representatives. La Fayette S. Foster, President of the Senate, pro tempore.

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The F reedmen ’s Bureau Act, July 16, 1866 U. S., Statutes at Large 14:173–77.

This act extended the life of the 1865 Freedmen’s Bureau two additional years and did so over two vetoes by President Andrew Johnson. The statute clarified the powers of the agents of the Bureau (one of Johnson’s objections) and clarified where the Bureau could operate. Sections 6 through 12 dealt with the touchy issue of land claims under the Bureau and how to arbitrate land claimed by freedmen and original owners. Section 13 mandated that the Bureau cooperate with benevolent associations establishing schools and aiding the freedmen in need, and section 14 clarified the rights of the freedmen in local and state courts by restating the language of section 1 of the Civil Rights Act of 1866. The 1865 Freedmen’s Bureau Act and this extension established what would become in time a tradition of federally funded and directed social service agencies in the United States operating within states and at the local level. Chap. CC.—An Act to continue in force and to amend “An Act to establish a Bureau for the relief of Freedmen and Refugees,” and for other Purposes. Be it enacted by the Senate and House of representatives of the United States of America in Congress assembled, That the act to establish a bureau for the relief of freedmen and refugees, approved March third, eighteen hundred and sixty-five, shall continue in force for the term of two years from and after the passage of this act. Sec. 2. And be it further enacted, That the supervision and care of said bureau shall extend to all loyal refugees and freedmen, so far as the same shall be necessary to enable them as speedily as practicable to become self-supporting citizens of the United States, and to aid them in making the freedom conferred by proclamation of the commander-in-chief, by emancipation under the laws of the States, and by constitutional amendment, available to them and beneficial to the republic. Sec. 3. And be further enacted, That the President shall, by and with the advice and consent of the Senate, appoint two assistant commissions, in addition to

those authorized by the act to which this is an amendment, who shall give like bonds and receive the same annual salaries provided in said act, and each of the assistant commissioners of the bureau shall have charge of one district containing such refugees or freedmen, to be assigned him by the commissioner with the approval of the President. And the commissioner shall, under the direction of the President, and so far as the same shall be, in his judgment, necessary for the efficient and economical administration of the affairs of the bureau, appoint such agents, clerks, and assistants as may be required for the proper conduct of the bureau. Military officers or enlisted men may be detailed for service and assigned to duty under this act; and the President may, if in his judgment safe and judicious so to do, detail from the army all the officers and agents of the bureau; but no officer so assigned shall have increase of pay or allowances. Each agent or clerk, not heretofore authorized by law, not being a military officer, shall have an annual salary of not less than five hundred dollars, nor more than twelve hundred dollars, according to the services required of him. And it shall be the duty of the commissioner, when it can be done consistently with public interest, to appoint, as assistant commissioners, agents, and clerks, such men as have proved their loyalty by faithful service in the armies of the Union during the rebellion. And all persons appointed to service under this act and the act to which this is an amendment, shall be so far deemed in the military service of the United States as to be under the military jurisdiction, and entitled to the military protection of the government while in discharge of the duties of their office. Sec. 4. And be it further enacted, That officers of the veteran reserve corps or of the volunteer service, now on duty in the Freedmen’s Bureau as assistant commissioners, agents, medical officers, or in other capacities, whose regiments or corps have been or may hereafter be mustered out of service, may be retained upon such duty as officers of said bureau, with the same compensation as is now provided by law for their respective grades; and the Secretary of War shall have power to fill vacancies until other officers can be detailed in their places without detriment to the public service. Sec. 5. And be it further enacted, That the second section of the act to which this is an amendment shall be deemed to authorize the Secretary of War to issue such medical stores or other supplies and transportation, and afford such medical or other aid as here may be needful for the purposes named in said section: Provided, That no person shall be deemed “destitute,” “suffering,” or “dependent upon the government for support,” within the meaning of this act, who is able to find employment, and could, by proper industry or exertion, avoid such destitution, suffering, or dependence. Sec. 6. Whereas, by the provisions of an act approved February sixth, eighteen hundred and sixty-three, entitled “An act to amend an act entitled ‘An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,’ approved June seventh, eighteen hundred and sixty-two,” 174

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certain lands in the parishes of St. Helena and Saint Luke, South Carolina, were bid in by the United States at public tax sales, and by the limitation of said act the time of redemption of said lands has expired; and whereas, in accordance with instructions issued by President Lincoln on the sixteenth day of September, eighteen hundred and sixty-three, to the United States direct tax commissioners for South Carolina, certain lands bid in by the United States in the parish of Saint Helena, in said State, were in part sold by the said tax commissioners to “heads of families of the African race,” in parcels of not more than twenty acres to each purchaser; and, whereas, under said instructions, the said tax commissioners did also set apart as “school farms” certain parcels of land in said parish, numbered on their plats from one to thirty-three, inclusive, making an aggregate of six thousand acres, more or less: Therefore, be it further enacted, That the sales made to “heads of families of the African race” under the instructions of President Lincoln to the United States direct tax commissioners for South Carolina, of date of September sixteenth, eighteen hundred and sixty-three, are hereby confirmed and established; and all leases which have been made to such “heads of families,” by said direct tax commissioners, shall be changed into certificates of sale in all cases wherein the lease provides for such substitution; and all the lands now remaining unsold, which come within the same designation, being eight thousand acres, more or less, shall be disposed of according to said instructions. Sec. 7. And be it further enacted, That all other lands bid in by the United States at tax sales, being thirty-eight thousand acres more or less and now in the hands of the said tax commissioners as the property of the United States, in the parishes of Saint Helena and Saint Luke, excepting the “school farms,” as specified in the preceding section, and so much as may be necessary for military and naval purposes at Hilton Head, Bay Point, and Land’s End, and excepting also the city of Port Royal, on Saint Helena Island, and the town of Beaufort, shall be disposed of in parcels of twenty acres, at one dollar and fifty cents per acre to such persons and to such only as have acquired and are now occupying lands under and agreeably to the provisions of General Sherman’s special field order, dated at Savannah, Georgia, January sixteenth, eighteen hundred and sixty-five; and the remaining lands, if any, shall be disposed of in like manner to such persons as had acquired land agreeably to the said order of General Sherman, but who have been dispossessed by the restoration of the same to former owners: Provided, That the lands sold in compliance with the provisions of this and the preceding section shall not be alienated by their purchasers within six years from and after the passage of this act. Sec. 8. And be it further enacted, That the “farm schools” in the parish of Saint Helena, South Carolina, shall be sold, subject to any leases of the same, by the said tax commissioners, at public auction, on or before the first day of January, eighteen hundred and sixty-seven, at not less than ten dollars per acre; and the lots in the city of Port Royal, as laid down by the said tax commissioners, and the Legislative Achievements

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lots and houses in the town of Beaufort, which are still held in like manner, shall be sold at public auction; and the proceeds of said sales, after paying expenses of the surveys and sales, shall be invested in United States bonds, the interest of which shall be appropriated, under the direction of the commissioner, to the support of schools, without distinction of color or race, on the island in the parishes of Saint Helena and Saint Luke. Sec. 9. And be it further enacted, That the assistant commissioners for South Carolina and Georgia are hereby authorized to examine all claims to lands in their respective States which are claimed under the provisions of General Sherman’s special field order, and to give each person having a valid claim a warrant upon the direct tax commissioners for South Carolina for twenty acres of land; and the said direct tax commissioners shall issue to every person, or to his or her heirs, but in no case to any assigns, presenting such warrant, a lease of twenty acres of land, as provided for in section seven, for the term of six years; but at any time thereafter, upon the payment of a sum not exceeding one dollar and fifty cents per acre, the person holding such lease shall be entitled to a certificate of sale of said tract of twenty acres from the direct tax commissioner or such officer as may be authorized to issue the same; but no warrant shall be held valid longer than two years after the issue of the same. Sec. 10. And be it further enacted, That the direct tax commissioners for South Carolina are hereby authorized and required at the earliest day practicable to survey the lands designated in section seven into lots of twenty acres each, with proper metes and bounds distinctively marked, so that the several tracts shall be convenient in form, and as near as practicable have an average of fertility and woodland; and the expense of such surveys shall be paid from the proceeds of sales of said lands on these islands, or if sooner required, out of any moneys received for other lands on these islands, sold by the United States for taxes, and now in the hands of the direct tax commissioners. Sec. 11. And be it further enacted, That restoration of lands occupied by freedmen under General Sherman’s field order dated at Savannah, Georgia, January sixteenth, eighteen hundred and sixty-five, shall not be made until after the crops of the present year shall have been gathered by the occupants of the said lands, nor until a fair compensation shall have been made to them by the former owners of such lands, or their legal representatives, for all improvements or betterments erected or constructed thereupon, and after due notice of the same being done shall have been given by the assistant commissioner. Sec. 12. And be it further enacted, That the commissioners shall have power to seize, hold, use, lease, or sell all buildings and tenements, and any lands appertaining to the same, or otherwise, formerly held under color of title by the late so-called confederate states, and not heretofore disposed of by the United States, and any buildings or lands held in trust for the same by any person or persons, and to use the same or appropriate the proceeds derived therefrom to the educa176

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tion of the freed people; and whenever the bureau shall cease to exist, such of said so-called confederate states as shall have made provision for the education of their citizens without distinction of color shall receive the sum remaining unexpended of such sales or rentals, which shall be distributed among said states for educational purposes in proportion to their population. Sec. 13. And be it further enacted, That the commissioner of this bureau shall at all times co-operate with private benevolent associations of citizens in aid of freedmen, and with agents and teachers, duly accredited and appointed by them, and shall hire or provide by lease buildings for purposes of education whenever such associations shall, without cost to the government, provide suitable teachers and means of instruction; and he shall furnish such protection as may be required for the safe conduct of such schools. Sec. 14. And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, and until the same shall be fully restored, and in every State or district whose constitutional relations to the government have been practically discontinued by the rebellion, and until such State shall have been restored in such relations, and shall be duly represented in the Congress of the United States, the right 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 have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all citizens of such States or district without respect to race or color, or previous condition of slavery. And whenever in either of said States or districts the ordinary course of judicial proceedings has been interrupted by the rebellion, and until the same shall be fully restored, and until such State shall have been restored in its constitutional relations to the government, and shall be duly represented in the Congress of the United States, the President, through the Secretary of War, shall prescribe, extend military protection and have military jurisdiction over all cases and questions concerning the free enjoyment of such immunities and rights, and no penalty or punishment for any violation of law shall be imposed or permitted because of race or color, or previous condition of slavery, other or greater than the penalty or punishment to which white persons may be liable by law for the like offense. But the jurisdiction conferred by this section upon the officers of the bureau shall not exist in any State where the ordinary course of judicial proceedings has not been interrupted by the rebellion, and shall cease in every State when the courts of the State and the United States are not disturbed in the peaceable course of justice, and after such State shall be fully restored in it constitutional relations to the government, and shall be duly represented in the Congress of the United States. Sec. 15. And be it further enacted, That all officers, agents, and employés of this bureau, before entering upon the duties of their office shall take the oath Legislative Achievements

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prescribed in the first section of the act to which this is an amendment; and all acts or parts of acts inconsistent with the provisions of this act are hereby repealed. Schuyler Colfax, Speaker of the House of Representatives. La Fayette S. Foster, President of the Senate pro tempore.

In the House of Representatives, U.S., July 16, 1866

The President of the United States having returned to the House of Representatives, in which it originated, the bill entitled “An act to continue in force and to amend ‘An act to establish a bureau for the relief of freedmen, and refugees,’ and for other purposes,” with his objections thereto, the House of Representatives proceeded, in pursuance of the Constitution, to reconsider the same; and Resolved, That the said bill pass, two thirds of the House of Representatives agreeing to pass the same. Attest: EWD. McPherson Clerk H. Reps, U.S.

In the Senate of the United States, July 16, 1866

The Senate having proceeded, in pursuance of the Constitution, to reconsider the bill entitled “An act to continue in force and to amend ‘An act to establish a bureau for the relief of freedmen, and refugees,’ and for other purposes,” returned to the House of Representatives by the President of the United States, with his objections, and sent by the House of Representatives to the Senate with the message of the President returning the bill; Resolved, That the bill do pass, two thirds of the Senate agreeing to pass the same. Attest: J. W. Forney Secretary of the Senate, U.S.

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P resident A ndrew Johnson F reedmen ’s Bureau Veto M essage , July 16, 1866 James D. Richardson, comp., A Compilation of the Messages and Papers of the Presidents, 1789-1897 (Washington, D.C.: Government Printing Office, 1897), 6:422–26.

After President Andrew Johnson vetoed and sent back to the Senate and the House of Representatives Congress’ first bill to extend the Freedmen’s Bureau, the Congress went back to work on the legislation. In July 1866, they sent Johnson a new bill, which he again vetoed on several grounds. Johnson argued that with the war over, Congress lacked the power to establish or extend an agency such as the Freedmen’s Bureau because the crises had passed. He argued that the local, state, and federal district courts were now open and thus this legislation was unnecessary. Johnson conceded that the nation was experiencing a wave of violence, but he denied that it was located only in the South; the problem was a national one that the Freedmen’s Bureau did not address. He feared that individual agents of the Freedmen’s Bureau had abused their power and authority (and some undoubtedly had) and that rightful owners of land in certain parishes of South Carolina had been excluded from reclaiming their land. But, Johnson’s primary concern was that the Freedmen’s Bureau bill constituted “class legislation,” a governmentprovided advantage to one group of people over the general population. Class legislation meant support of that class of person regardless of their own actions, own responsibilities, own choices to labor or not to labor. Congress was not impressed and was growing weary of Johnson’s opposition to their plans for Reconstruction; as a result, Congress overrode Johnson’s veto of their bill that same day. Washington, D.C., July 16, 1866 To the House of Representatives: A careful examination of the bill passed by the two Houses of Congress entitled, “An act to continue in force and to amend ‘An act to establish a bureau for the relief of freedmen and refugees, and for other purposes’” has convinced

me that the legislation which it proposes would not be consistent with the welfare of the country, and that it falls clearly within the reasons assigned in my message of the 19th of February last, returning, without my signature, a similar measure which originated in the Senate. It is not my purpose to repeat the objections which I then urged. They are yet fresh in your recollection, and can be readily examined as a part of the records of one branch of the National Legislature. Adhering to the principles set forth in that message, I now reaffirm them and the line of policy therein indicted. The only ground upon which this kind of legislation can be justified is that of the war-making power. The act of which this bill is intended as amendatory was passed during the existence of the war. By its own provisions it is to terminate within one year from the cessation of hostilities and the declaration of peace. It is therefore yet in existence, and it is likely that it will continue in force as long as the freedmen may require the benefit of its provisions. It will certainly remain in operation as a law until some months subsequent to the meeting of the next session of Congress, when, if experience shall make evident the necessity of additional legislation, the two Houses will have ample time to mature and pass the requisite measures. In the meantime the questions arise, Why should this war measure be continued beyond the period designated in the original act, and why in time of peace should military tribunals be created to continue until each “State shall be fully restored in its constitutional relations to the Government and shall be duly represented in the Congress of the United States”? It was manifest, with respect to the act approved March 3, 1865, that prudence and wisdom alike required that jurisdiction over all cases concerning the free enjoyment of the immunities and rights of citizenship, as well as the protection of person and property, should be conferred upon some tribunal in every State or district where the ordinary course of judicial proceedings was interrupted by the rebellion, and until the same should be fully restored. At that time, therefore, an urgent necessity existed for the passage of some such law. Now, however, war has substantially ceased; the ordinary course of judicial proceedings is no longer interrupted; the courts, both State and Federal, are in full, complete, and successful operation, and through them every person, regardless of race and color, is entitled to and can be heard. The protection granted to the white citizen is already conferred by law upon the freedman; strong and stringent guards, by way of penalties and punishments, are thrown around his person and property, and it is believed that ample protection will be afforded him by due process of law, without resort to the dangerous expedient of “military tribunals,” now that the war has been brought to a close. The necessity no longer existing for such tribunals, which had their origin in war, grave objections to their continuance must present themselves to the minds of all reflecting and dispassionate men. Independently of the danger, in representative republics, of conferring upon the military, in time of peace, extraordinary powers—so carefully guarded against by the patriots and 180

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statesmen of the earlier days of the Republic, so frequently the ruin of governments founded upon the same free principles, and subversive of the rights and liberties of the citizen—the question of practical economy earnestly commends itself to the consideration of the lawmaking power. With an immense debt already burdening the incomes of the industrial and laboring classes, a due regard for their interests, so inseparably connected with the welfare of the country, should prompt us to rigid economy and retrenchment, and influence us to abstain from all legislation that would unnecessarily increase the public indebtedness. Tested by this rule of sound political wisdom, I can see no reason for the establishment of the “military jurisdiction” conferred upon the officials of the Bureau by the fourteenth section of the bill. By the laws of the United States and of the different States competent courts, Federal and State, have been established and are now in full practical operation. By means of these civil tribunals ample redress is afforded for all private wrongs, whether to the person or property of the citizen, without denial or unnecessary delay. They are open to all, without regard to color or race. I feel well assured that it will be better to trust the rights, privileges, and immunities of the citizen to tribunals thus established, and presided over by competent and impartial judges, bound by fixed rules of law and evidence, and where the right of trial by jury is guaranteed and secured, than to the caprice or judgment of an officer of the Bureau, who it is possible may be entirely ignorant of the principles that underlie the just administration of the law. There is danger, too, that conflict of jurisdiction will frequently arise between the civil courts and these military tribunals, each having concurrent jurisdiction over the person and the cause of action—the one judicature administered and controlled by civil law, the other by the military. How is this conflict to be settled, and who is to determine between the two tribunals when it arises? In my opinion, it is wise to guard against such conflict by leaving to the courts and juries the protection of all civil rights and the redress of all civil grievances. The fact can not be denied that since the actual cessation of hostilities many acts of violence, such, perhaps, as had never been witnessed in their previous history, have occurred in the States involved in the recent rebellion. I believe, however, that public sentiment will sustain me in the assertion that such deeds of wrong are not confined to any particular State or section, but are manifest over the entire country, demonstrating that the cause that produced them does not depend upon any particular locality, but is the result of the agitation and derangement incident to a long and bloody civil war. While the prevalence of such disorders must be greatly deplored, their occasional and temporary occurrence would seem to furnish no necessity for the extension of the Bureau beyond the period fixed in the original act. Besides the objections which I have briefly stated, I may urge upon your consideration the additional reason that recent developments in regard to the practical Legislative Achievements

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operations of the Bureau in many of the States show that in numerous instances it is used by its agents as a means of promoting their individual advantage, and that the freedmen are employed for the advancement of the personal ends of the officers instead of their own improvement and welfare, thus confirming the fears originally entertained by many that the continuation of such a Bureau for any unnecessary length of time would inevitably result in fraud, corruption, and oppression. It is proper to state that in cases of this character investigations have been promptly ordered, and the offender punished wherever his guilt has been satisfactorily established. As another reason against the necessity of the legislation contemplated by this measure, reference may be had to the “civil-rights bill,” now a law of the land, and which will be faithfully executed so long as it shall remain unrepealed and may not be declared unconstitutional by courts of competent jurisdiction. By that act it is enacted— 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, see, 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. By the provisions of the act full protection is afforded through the district courts of the United States to all persons injured, and whose privileges, as thus declared, are in any way impaired; and heavy penalties are denounced against the person who willfully violates the law. I need not state that that law did not receive my approval; yet its remedies are far more preferable than those proposed in the present bill—this one being civil and the other military. By the sixth section of the bill herewith returned certain proceedings by which the lands in the “parishes of St. Helena and St. Luke, South Carolina,” were sold and bid in, and afterwards disposed of by the tax commissioners, are ratified and confirmed. By the seventh, eighth, ninth, tenth, and eleventh sections provisions by law are made for the disposal of the lands thus acquired to a particular class of citizens. While the quieting of titles is deemed very important and desirable, the discrimination made in the bill seems objectionable, as does the attempt to confer upon the commissioners judicial powers by which citizens of the United States are to be deprived of their property in a mode contrary to that provision of the Constitution which declares that no person shall “be deprived of .

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life, liberty, or property without due process of law.” As a general principle, such legislation is unsafe, unwise, partial, and unconstitutional. It may deprive persons of their property who are equally deserving objects of the nation’s bounty as those whom by this legislation Congress seeks to benefit. The title to the land thus to be portioned out to a favored class of citizens must depend upon the regularity of the tax sales under the law as it existed at the time of the sale, and no subsequent legislation can give validity to the right thus acquired as against the original claimants. The attention of Congress is therefore invited to a more mature consideration of the measures proposed in these sections of the bill. In conclusion I again urge upon Congress the danger of class legislation, so well calculated to keep the public mind in a state of uncertain expectation, disquiet, and restlessness and to encourage interested hopes and fears that the National Government will continue to furnish to classes of citizens in the several States means of support and maintenance regardless of whether they pursue a life of indolence or of labor, and regardless also of the constitutional limitations of the national authority in times of peace and tranquility. The bill is herewith returned to the House of Representatives, which it originated, for its final action. Andrew Johnson

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Judicial Circuits Act, July 23, 1866 U.S. Statutes at Large 14:209.

Congress controls the composition of the lower federal courts as well as the total number of United States Supreme Court justices. The 1787 Constitution states in Article 3 that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Partly as a streamlining measure, partly as a costcutting measure, and partly out of fear that the Supreme Court might meddle with Congress’ reconstruction policies, Congress reduced the size the United States Supreme Court and rearranged the circuits. This act demonstrates the will of Congress to see its policies carried out without interference from the federal judiciary. Chap. CCX—An Act to fix the Number of Judges of the Supreme Court of the United States, and to change certain Judicial Circuits. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six; and thereafter the said supreme court shall consist of a chief justice of the United States and six associate justices, any four of whom shall be a quorum; and the said court shall hold one term annually at the seat of government, and such adjourned or special terms as it may find necessary for the despatch [sic] of business. Sec. 2. And be it further enacted, That the first and second circuits shall remain as now constituted; that the districts of Pennsylvania, New Jersey, and Delaware shall constitute the third circuit; that the districts of Maryland, West Virginia, Virginia, North Carolina, and South Carolina shall constitute the fourth circuit; that the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas shall constitute the fifth circuit; that the districts of Ohio, Michigan, Kentucky, and Tennessee shall constitute the sixth circuit; and the districts of Indiana, Illinois, and Wisconsin shall constitute the seventh circuit; that the districts

of Minnesota, Iowa, Missouri, Kansas, and Arkansas shall constitute the eighth circuit; and the districts of California, Oregon, and Nevada shall constitute the ninth circuit. Approved, July 23, 1866.

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H abeas Corpus Act, F ebruary 5, 1867 U.S. Statutes at Large 14:385–87.

This extension and elaboration of the Habeas Corpus Act of 1863 establishes what is essentially the modern basis of jurisdiction for habeas corpus. The “great writ” of liberty is both a procedural mechanism that begins a judicial inquiry into why a person is being held by public authorities and a traditional protection of liberty from arbitrary detention. It is not enough to demonstrate that the individual is being held appropriately; rather, the inquiry has to go to the substantive issues behind and supporting the detention of the individual. In the United States federal system, the question of the jurisdiction of habeas corpus was at issue prior to the Civil War. While federal courts had jurisdiction over federal prisoners and the state courts had jurisdiction over state prisoners, did the state courts have habeas corpus oversight of federal prisoners? The United States Supreme Court in Ableman v. Booth 21 Howard (62 U.S.) 506 (1859) held that state courts could not issue habeas corpus orders to release federal prisoners. If state courts could issue habeas corpus against federal prisoners, then state courts could frustrate the application of federal law within states. Though habeas corpus by the state against a federal holding of a person was not barred by this decision, the exceptions to this rule are few and far between. The other side of the coin is the ability of the federal courts to issue a habeas corpus for a person held by state law. Prior to this 1867 act, the federal courts did not have such power; but, this act and its general language extends federal court habeas corpus oversight “in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Thus, this broad jurisdiction extended to federal oversight of state prisoners and constitutes the basis of modern grounds for habeas corpus and forms one of the bulwarks of United States liberty.

Chap. XXVIII.—An Act to amend “An act to establish the judicial Courts of the United States,” approved September twenty-forth, seventeen hundred and eighty-nine. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to authority already conferred by law, shall have the power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and if beyond the distance of twenty miles and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days. And upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the United States, which allegations or denials shall be made on oath. The said return may be amended by leave of the court or judge before or after the same is filed, as also may all suggestions made against it, that thereby the material facts may be ascertained. The said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or the laws of the United States, he or she shall forthwith be discharged and set at liberty. And if any person or persons to whom such writ of habeas corpus may be directed shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine not exceeding one thousand dollars, and by imprisonment not exceeding one year, or by either, according to the nature and aggravation of the case. From the final decision of any judge, justice, 188

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or court, inferior to the circuit court of the United States for the district in which said cause is heard, and from the judgment of said circuit court to the Supreme Court of the United States, on such terms and under such regulations and orders, as well for the custody and appearance of the person alleged to be restrained of his or liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus return, thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default of such, as the judge hearing the case may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such person so alleged to be restrained of his or her liberty in any State court, or by or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void. Sec. 2. And be it further enacted, That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decisions against their validity, or where is drawn in question the validity of a statute or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States; and the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same, and award execution, or remand the same to an inferior court. This act shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United States, charged with any military offense, or with having aided or abetted rebellion against the government of the United States prior to the passage of this act. Approved, February 5, 1867.

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The R econstruction Act [F irst], M arch 2, 1867 U.S. Statutes at Large 14:428–29.

Over the veto of President Andrew Johnson, Congress took control of Reconstruction policy with this first (and most important) of the Reconstruction acts. Instead of relatively mild and fast Reconstruction, Congress, supported by political majorities in the North and Midwest, established a slower and harder Reconstruction for the state governments of the so-called Confederacy. This act wiped out the Reconstruction plans state governments had established either under President Lincoln’s December 1863 plan or under President Johnson’s May 1865 plan. Congress employed the army to oversee the Reconstruction of loyal state governments. This act continued the position established by the Lincoln administration that the states could not be out of the nation, but that insurrectionist bands of men had taken over state governments and led the people of the South into civil war. Thus for Congress, Reconstruction constituted establishing a procedure for developing and ensuring loyal state governments in southern states. Once loyal state governments could be built, then the state governments could apply for readmission for representation in the House of Representatives and Senate. Notice that Congress envisioned black political participation in these state Reconstruction governments where, in Section 5, it is provided that delegates who were male and twenty-one years old or older “of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election” constituted the political community of the state. Thus, Congress set the groundwork for the state governments established under this act to be biracial and a symbol of how far congressional majorities sought to change southern political traditions at the local, county, and state level. Chap. CLIIL.—An Act to provide for the more efficient Government of the Rebel States.

WHEREAS no legal State governments or adequate protection for life or property now exist in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: Therefore Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said rebel States shall be divided into military districts and made subject to the military authority of the United States, as hereinafter prescribed, and for that purpose Virginia shall constitute the first district; North Carolina and South Carolina the second district; Georgia, Alabama, and Florida the third district; Mississippi and Arkansas the fourth district; and Louisiana and Texas the fifth district. Sec. 2. And be it further enacted, That it shall be the duty of the President to assign to the command of each of said districts an officer of the army, not below the rank of brigadier-general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned. Sec. 3. And be it further enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose; and all interference under color of State authority with the exercise of military authority under this act shall be null and void. Sec. 4. And be it further enacted, That all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted; and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district, and the laws and regulations for the government of the army shall not be affected by this act, except in so far as they conflict with its provisions: Provided, That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President. Sec. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as 192

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may be disfranchised for participation in the rebellion, or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-Ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and Senators and Representatives shall be admitted therefrom on their taking the oaths prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention. Sec. 6. And be it further enacted, That until the people of said rebel states shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment. Schuyler Colfax, Speaker of the House of Representatives. La Fayette S. Foster, President of the Senate, pro tempore. In the House of Representatives, U.S., March 2, 1867.

The President of the United States, having returned to the House of Representatives, in which it originated, the bill entitled “An Act to provide for the more efficient Government of the Rebel States,” with his objections thereto, the House of Representatives proceeded, in pursuance of the Constitution, to reconsider the same; and Legislative Achievements

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Resolved, That the bill do pass, two-thirds of the House of Representatives agreeing to pass the same. Attest: Edwd. Mcpherson. Clerk H. R. U. S. In the Senate of the United States, March 2, 1867. The Senate having proceeded, in pursuance of the Constitution, to reconsider the bill entitled “An Act to provide for the more efficient Government of the Rebel States,” returned to the House of Representatives by the President of the United States, with his objections, and sent by the House of Representatives to the Senate, with the message of the President returning the bill: Resolved, That the bill do pass, two thirds of the Senate agreeing to pass the same. Attest: J. W. Forney, Secretary of the Senate.

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P resident A ndrew Johnson’s Veto of the F irst Military R econstruction Act, M arch 2, 1867 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press, 1995), 12:82–94.

In 1866, when voters of the North and Midwest regions demonstrated their support of the congressional Republicans and their policies versus the arguments, antics, and policies of President Andrew Johnson and the Democratic Party in the off-year elections, the Republican Party increased its majorities in both the House of Representatives and the Senate. With that vote of confidence, the Republicans moved to take Reconstruction policy away from the president and make Reconstruction a congressionally directed policy. Not surprisingly, as President Johnson’s estrangement from the Republican leadership in Congress increased, and feeling stung by his repudiation at the polls, Johnson continued his obstruction of the Republicans and their policies in the wake of the Civil War. When Congress passed a Reconstruction act that shifted the oversight of Reconstruction from the president to Congress with a bill that also slowed and made it more difficult for southern state majorities to meet the required standards for their return to the nation, Johnson vetoed the act. In a rambling statement, Johnson pointed to genuine issues with the Reconstruction bill, but he also hurt his own cause by not crafting a more careful and prudent response. Yet despite his occasional valid points, everyone understood that while Johnson’s opposition resulted from his worries about constitutional and legal precedent, most of his opposition was politically based. Johnson had reached the point that if the Republicans supported an idea or a public policy, then he opposed it regardless of the policy’s value. In his veto, Johnson stated his opposition to the act for two primary reasons. He worried that the act established an “absolute domination of military rulers,” a denial of civil government over the South and southern populations, and the establishment of military government and martial law. Also, Johnson worried

about the power of the federal government to override, even abandon, the tradition of recognizing the states as the primary location of public political power. Thus, to Johnson, Congress’ Reconstruction plan was overly broad, without precedent, without authority, and outside the United States’ legal and constitutional tradition. Regardless of Johnson’s concerns and veto, Congress easily overrode his veto, and proceeded to set and guide Reconstruction policy. Washington, March 2, 1867. To The House Of Representatives: I have examined the bill “to provide for the more efficient government of the rebel States” with the care and anxiety which its transcendent importance is calculated to awaken. I am unable to give it my assent for reasons so grave, that I hope a statement of them may have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimately rest. The bill places all of the people of the ten States therein named under the absolute domination of military rulers; and the preamble undertakes to give the reason upon which the measure is based, and the ground upon which it is justified. It declares that there exists in these States no legal Governments, and no adequate protection for life or property, and asserts the necessity of enforcing peace and good order within their limits. Is this true as matter of fact? It is not denied that the States in question have each of them an actual Government, with all the powers, executive, judicial, and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs. And existing de facto Government, exercising such functions as these, is itself the law of the State upon all matters within its jurisdiction. To pronounce the supreme law-making power of an established State illegal, is to say that law itself is unlawful. The provisions which these Governments have made for the preservation of order, the suppression of crime, and the redress of private injuries, are in substance and principle the same as those which prevail in the Northern States and in other civilized countries. They certainly have not succeeded in preventing the commission of all crime, nor has this been accomplished anywhere in the world. There, as well as elsewhere, offenders sometimes escape for want of vigorous prosecution, and occasionally, perhaps, by the inefficiency of courts or the prejudice of jurors. It is undoubtedly true that these evils have been much increased and aggravated, North and South, by the demoralizing influences of civil war, and by the rancorous passions which the contest has engendered. But that these people are maintaining local Governments for themselves which habitually defeat the object of all government and render their own lives and property insecure, is in it196

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self utterly improbable, and the averment of the bill to that effect is not supported by any evidence which has come to my knowledge. All the information I have on the subject convinces me that the masses of the Southern people and those who control their public acts, while they entertain diverse opinions on questions of Federal policy, are completely united in the effort to reorganize their society on the basis of peace, and to restore their mutual prosperity as rapidly and as completely as their circumstances will permit. The bill, however, would seem to show upon its face that the establishment of peace and good order is not its real object. The fifth section declares that the preceding sections shall cease to operate in any State where certain events shall have happened. These events are—First, the selection of delegates to a State Convention by an election at which negroes shall be allowed to vote. Second, the formation of a State Constitution by the Convention so chosen. Third, the insertion into the State Constitution of a provision which will secure the right of voting at all elections to negroes, and to such white men as may not be disfranchised for rebellion or felony. Fourth, the submission of the constitution for ratification to negroes and white men not disfranchised, and its actual ratification by their vote. Fifth, the submission of the State Constitution to Congress for examination and approval, and the actual approval of it by that body. Sixth, the adoption of a certain amendment to the Federal Constitution by a vote of the legislature elected under the new Constitution. Seventh, the adoption of said amendment by a sufficient number of other States to make it a part of the Constitution of the United States. All these conditions must be fulfilled before the people of any of these States can be relieved from the bondage of military domination; but when they are fulfilled, then immediately the pains and penalties of the bill are to cease, no matter whether there be peace and order or not, and without any reference to the security of life or property. The excuse given for the bill in the preamble is admitted by the bill itself not to be real. The military rule which it establishes is plainly to be sued—not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment. I submit to Congress whether this measure is not, in its whole character, scope, and object, without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure. The ten States named in the bill are divided into five districts. For each district an officer of the army, not below the rank of brigadier general, is to be appointed to rule over the people; and he is to be supported with an efficient military force to enable him to perform his duties and enforce his authority. Those duties and that authority, as defined by the third section of the bill, are, “to protect all persons Legislative Achievements

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in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish or cause to be punished all disturbers of the public peace or criminals.” The power thus given to the commanding officer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. The law of the States is now the only rule applicable to the subjects placed under his control, and that is completely displaced by the clause which declares all interference of State authority to be null and void. He alone is permitted to determine what are rights of person or property, and he may protect them in such way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hindrance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history, or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence; there is indeed no provision by which he is authorized or required to take any evidence at all. Everything is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. He is not bound to keep any record, or make any report of his proceedings. He may arrest his victims wherever he finds them, without warrant, accusation or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do. To a casual reader of the bill, it might seem that some kind of trial was secured by it to persons accused of crime; but such is not the case. The officer “may allow local civil tribunals to try offenders,” but of course this does not require that he shall do so. If any State or Federal court presumes to exercise its legal jurisdiction by the trial of a malefactor without his special permission, he can break it up, and punish the judges and jurors as being themselves malefactors. He can save his friends from justice, and despoil his enemies contrary to justice. It is also provided that “he shall have power to organize military commissions or tribunals;” but this power he is not commanded to exercise. It is merely permissive, and is to be used only “when in his judgment it may be necessary for the trial of offenders.” Even if the sentence of a commission were made a prerequisite to the punishment of a party, it would be scarcely the slightest check upon the officer, who has authority to organize it as he pleases, prescribe its mode of proceeding, appoint its members from among his own subordinates, and revise all its decision. Instead of mitigating the harshness of his single rule, such a tribunal would be used much more probably to divide the responsibility of making it more cruel and unjust. Several provisions, dictated by the humanity of Congress, have been inserted in the bill, apparently to restrain the power of the commanding officer; but it seems to me that they are of no avail for that purpose. The fourth section provides—First. That trials shall not be unnecessarily delayed; but I think I have 198

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shown that the power is given to punish without trial, and if so, this provision is practically inoperative. Second. Cruel or unusual punishment is not to be inflicted; but who is to decide what is cruel and what is unusual? The words have acquired a legal meaning by long use in the courts. Can it be expected that military officers will understand or follow a rule expressed in language so purely technical, and not pertaining in the least degree to their profession? If not, then each officer may define cruelty according to his own temper, and if it is not usual, he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and the almost insupportable forms of torture invested for military punishment, lie within the range of choice. Third. The sentence of a commission is not to be executed without being approved by the commander, if it affects life or liberty, and a sentence of death must be approved by the President. This applies to cases in which there has been a trial and sentence. I take it to be clear, under this bill, that the military commander may condemn to death without even the form of a trial by a military commission, so that the life of the condemned may depend upon the will of two men, instead of one. It is plain that the authority here given to the military officer amounts to absolute despotism. But, to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint; for it declares that he shall “punish or cause to be punished.” Such a power has not been wielded by any monarch in England for more than five hundred years. In all that time no people who speak the English language have borne such servitude. It reduces the whole population of the ten States—all persons, of every color, sex, and condition, and every stranger within their limits—to the most abject and degrading slavery. No master ever had a control so absolute over his slaves as this bill gives to the military officers over both white and colored persons. It may be answered to this that the officers of the army are too magnanimous, just, and humane to oppress and trample upon a subjugated people. I do not doubt that army officers are as well entitled to this kind of confidence as any other class of men. But the history of the world has been written in vain, if it does not teach us that unrestrained authority can never be safely trusted in human hands. It is almost sure to be more or less abused under any circumstances, and it has always resulted in gross tyranny where the rulers who exercise it are strangers to their subjects, and come among them as the representatives of a distant power, and more especially when the power that sends them is unfriendly. Governments closely resembling that here proposed have been fairly tried in Hungary and Poland, and the suffering endured by those people roused the sympathies of the entire world. It was tried in Ireland, and, though tempered at first by principles of English law, it gave birth to cruelties so atrocious that they are never recounted without just indignation. The French Convention armed its deputies with this power, and sent them to the Southern departments of the Republic. The massacres, murders, and other atrocities which they committed show what the passions of the ablest men Legislative Achievements

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in the most civilized society will tempt them to do when wholly unrestrained by law. The men of our race in every age have struggled to tie up the hands of their Governments and keep them within the law; because their own experience of all mankind taught them that rules could not be relied on to concede those rights which they were not legally bound to respect. The head of a great empire has sometimes governed it with a mild and paternal sway; but the kindness of an irresponsible deputy never yields what the law does not extort from him. Between such a master and the people subject to his domination there can be nothing but enmity; he punishes them if they resist his authority, and, if they submit to it, he hates them for their servility. I come now to a question which is, if possible, still more important. Have we the power to establish and carry into execution a measure lie this? I answer, certainly not, if we derive our authority from the Constitution, and if we are bound by the limitations which it imposes. This proposition is perfectly clear—that no branch of the Federal Government, executive, legislative, or judicial, can have any just powers, except those which it derives through and exercise under the organic law of the Union. Outside of the Constitution, we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our functions, and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place, more than in another, that which the Constitution says we shall not do at all. If therefore, the Southern States were in truth out of the Union, we could not treat their people in a way which the fundamental law forbids. Some persons assume that the success of our arms in crushing the opposition which was made in some of the States to the execution of the Federal laws, reduced those States and all their people—the innocent as well as the guilty—to the condition of vassalage, and gave us a power over them which the Constitution does not bestow, or define, or limit. No fallacy can be more transparent than this. Our victories subject the insurgents to legal obedience, not to the yoke of an arbitrary despotism. When an absolute sovereign reduces his rebellious subjects, he may deal with them according to his pleasure, because he had that power before. But when a limited monarch puts down an insurrection, he must still govern according to law. If an insurrection should take place in one of our States against the authority of the State Government, and end in the overthrow of those who planned it, would that take away the rights of all the people of the counties where it was favored by a part or a majority of the population? Could they, for such a reason, be wholly outlawed and deprived of their representation in the Legislature? I have always contended that the [G]overnment of the United States was sovereign within its constitutional sphere; that it executed its laws, like the 200

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States themselves, by applying its coercive power directly to individuals; and that it could put down insurrection with the same effect as a State, and no other. The opposite doctrine is the worst heresy of those who advocated secession, and cannot be agreed to without admitting that heresy to be right. Invasion, insurrection, rebellion, and domestic violence were anticipated when the Government was framed, and the means of repelling and suppressing them were wisely provided for in the Constitution; but it was not thought necessary to declare that the States in which they might occur should be expelled from that Union. Rebellions, which were invariably suppressed, occurred prior to that out of which these questions grow; but the States continued to exist and the Union remained unbroken. In Massachusetts, in Pennsylvania, in Rhode Island, and in New York, at different periods in our history, violent and armed opposition to the United States was carried on; but the relations of those States with the Federal Government were not supposed to be interrupted or changed thereby, after the rebellious portions of their population were defeated and put down. It is true that in these earlier cases there was no formal expression of a determination to withdraw from the Union, but it is also true that in the Southern States the ordinances of secession were treated by all friends of the Union as mere nullities, and are not acknowledged to be so by the States themselves. If we admit that they had any force or validity, or that they did in fact take the States in which they were passed out of the Union, we sweep from under our feet all the grounds upon which we stand in justifying the use of Federal force to maintain the integrity of the Government. This is a bill passed by Congress in time of peace. There is not in any one of the States brought under its operation either war or insurrection. The laws of the States and of the Federal Government are all in undisturbed and harmonious operation. The courts, State and Federal, are open, and in the full exercise of their proper authority. Over every State comprised in these five military districts, life, liberty, and property are secured by State laws and Federal laws, and the National Constitution is everywhere in force and everywhere obeyed. What, then, is the ground on which this bill proceeds? The title of the bill announces that it is intended “for the more efficient government” of these ten States. It is recited by way of preamble that no legal State Governments, “nor adequate protection for life or property,” exist in those States, and that peace and good order should be thus enforced. The first thing which arrests attention upon these recitals, which prepare the way for martial law, is this—that the only foundation upon which martial law can exist under our form of government is not stated or so much as pretended. Actual war, foreign invasion, domestic insurrection—none of these appear; and none of these in fact exist. It is not even recited that any sort of war or insurrection is threatened. Let us pause here to consider, upon this question of constitutional law and the power of Congress, a recent decision of the Supreme Court of the United States in ex parte Milligan. Legislative Achievements

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I will first quote from the opinion of the majority of the Court: “Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.” We see that martial law comes in only when actual war closes the courts and deposes the civil authority; but this bill, in time of peace, makes martial law operate as though we were in actual war, and become the cause, instead of the consequence of the abrogation of civil authority. One more quotation: “It follows from what has been said on this subject that there are occasions when martial law can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, if is allowed to govern by martial rule until the laws can have their free course.” I now quote from the opinion of the minority of the Court, delivered by Chief Justice Chase: “We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail.” This is sufficiently explicit. Peace exists in all the territory to which this bill applies. It asserts a power in Congress, in time of peace, to set aside the laws of peace and to substitute the laws of war. The minority, concurring with the majority, declares that Congress does not possess that power. Again, and, if possible, more emphatically, the Chief Justice, with remarkable clearness and condensation, sums up the whole matter as follows: There are under the Constitution three kinds of military jurisdiction—one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of the States maintaining adhesion to the National government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rule and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion or 202

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of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

It will be observed that of the three kinds of military jurisdiction which can be exercised or created under our Constitution, there is but one that can prevail in time of peace, and that is the code of laws enacted by Congress for the government of the national forces. That body of military law has no application to the citizen, nor even to the citizen soldier enrolled in the militia in time of peace. But this bill is not part of that sort of military law, for that applies only to the soldier and not to the citizen, whilst, contrariwise, the military law provided by this bill applies only to the citizen and not to the solider. I need not say to the Representatives of the American people that their Constitution forbids the exercise of judicial power in any way but one—that is by the ordained and established courts. It is equally well known that in all criminal case a trial by jury is made indispensable the express words of that instrument. I will not enlarge on the inestimable value of the right thus secured to every freeman, or speak of the danger to public liberty in all parts of the country which must ensure from a denial of it anywhere or upon any pretence. A very recent decision of the Supreme Court has traced the history, vindicated the dignity, and made known the value of this great privilege so clearly that nothing more is needed. To what extent a violation of it might be excused in time of war or public danger may admit of discussion, but we are providing now for a time of profound peace, where there is not an armed soldier within our borders except those who are in the service of the Government. It is in such a condition of things that an act of Congress is proposed which, if carried out, would deny a trial by the lawful courts and juries to nine millions of American citizens, and to their posterity for an indefinite period. It seems to be scarcely possible that any one should seriously believe this consistent with a Constitution which declares, in simple, plain, and unambiguous language, that all persons shall have that right, and that no person shall ever in any case be deprived of it. The Constitution also forbids the arrest of the citizen without judicial warrant founded on probable cause. This bill authorizes an arrest without warrant, at the pleasure of a military commander. The Constitution declares that “no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury.” This bill holds every person, not a soldier, answerable for all crimes and all charges without any presentment. The Constitution declares that “no person shall be deprived of life, liberty or property without due process of law.” This bill sets aside all process of law, and makes the citizen answerable in his person and property to the will of one man, and as to his life to the will of two. Finally, the Constitution declares that “the privileged of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it;” whereas this bill declares martial law (which of itself suspends this great writ) in time of peace, and authorizes the Legislative Achievements

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military to make the arrest, and gives to the prisoner only one privilege, and that is a trial “without unnecessary delay.” He has no hope of release from custody, except the hope, such as it is, of release by acquittal before a military commission. The United States are bound to guarantee to each State a republican form of government. Can it be pretended that this obligation is not palpably broken if we carry out a measure like this, which wipes away every vestige of republican government in ten States, and puts the life, property, liberty, and honor of all the people in each of them under the domination of a single person clothed with unlimited authority? The Parliament of England, exercising the omnipotent power which it claimed, was accustomed to pass bills of attainder; that is to say, it would convict men of treason and other crimes by legislative enactment. The person accused had a hearing, sometimes a patient and fair one; but generally party prejudice prevailed, instead of justice. It often became necessary for Parliament to acknowledge its error and reverse its own action. The fathers of our country determined that no such thing should occur here. They withheld the power from Congress, and thus forbade its exercise by that body; and they provide in the Constitution that no State should pass any bill of attainder. It is therefore, impossible for any person in this country to be constitutionally convicted or punished for any crime by a legislative proceeding of any sort. Nevertheless, here is a bill of attainder against nine millions of people at once. It is based upon an accusation so vague as to be scarcely intelligible, and found to be true upon no credible evidence. Not one of the nine millions was heard in his own defence. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands, and degrades them all—even those who are admitted to be guiltless—from the rank of freemen to the condition of slaves. The purpose and object of the bill—the general intent which pervades it from beginning to end—is to change the entire structure and character of the State Governments, and to compel them by force to the adoption of organic laws and regulations which they are unwilling to accept, if left to themselves. The negroes have not asked for the privilege of voting—the vast majority of them have no idea what it means. This bill not only thrusts it into their hands, but compels them, as well as the whites, to use it in a particular way. If they do not form a Constitution with prescribed articles in it, and afterwards elect a Legislature which will act upon certain measures in a prescribed way, neither blacks nor whites can be relieved from the slavery which the bill imposes upon them. Without pausing here to consider the policy or impolicy of Africanizing the southern Part of our territory, I would simply ask the attention of Congress to that manifest, well-known, and universally acknowledged rule of constitutional law, which declares that the Federal Government has no jurisdiction, authority, or power to regulate such 204

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subjects for any State. To force the right of suffrage out of the hands of the white people and into the hands of the negroes is an arbitrary violation of this principle. This bill imposes martial law at once, and its operations will begin so soon as the General and his troops can be put in place. The dread alternative between its harsh rule and compliance with the terms of this measure is not suspended, nor are the people afforded any time for free deliberation. The bill says to them, take martial law first, then deliberate. And when they have done all that this measure requires them to do, other conditions and contingencies, over which they have no control, yet remain to be fulfilled before they can be relieved from martial law. Another Congress must first approve the Constitutions made in conformity with the will of this Congress, and must declare these States entitled to representation in both Houses. The whole question thus remains open and unsettled, and must again occupy the attention of Congress, and in the meantime the agitation which now prevails will continue to disturb all portions of the people. The bill also denies the legality of the Governments of ten of the States which participated in the ratification of the amendment to the Federal Constitution abolishing slavery forever within the jurisdiction of the United States, and practically excludes them from the Union. If this assumption of the bill be correct, their concurrence cannot be considered as having been legally given, and the important fact is made to appear that the consent of three-fourths of the states— the requisite number—has not been constitutionally obtained to the ratification of that amendment, thus leaving the question of slavery where it stood before the amendment was officially declared to have become a part of the Constitution. That the measure proposed by this bill does not violate the Constitution in the particulars mentioned, and in many other ways which I forbear to enumerate, is too clear to admit of the least doubt. It only remains to consider whether the injunctions of that instrument ought to be obeyed or not. I think they ought to be obeyed, for reasons which I will proceed to give as briefly as possible. In the first place, it is the only system of free government which we can hope to have as a nation. When it ceases to be the rule of our conduct, we may perhaps take our choice between complete anarchy, a consolidated despotism, and a total dissolution of the Union; but national liberty, regulated by law, will have passed beyond our reach. It is the best frame of government the world ever saw. No other is or can be so well adapted to the genius, habits, or wants of the American people. Combining the strength of a great empire with unspeakable blessings of local selfgovernment—having a central power to defend the general interests, and recognizing the authority of the States as the guardians of industrial rights, it is “the sheet-anchor of our safety abroad and our peace at home.” It was ordained “to form a more perfect union, establish justice, insure domestic tranquility, promote the general welfare, provide for the common defence, and secure the blessings of liberty to ourselves and our posterity.” These great ends have been attained Legislative Achievements

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heretofore, and will be again, by faithful obedience to it, but they are certain to be lost if we treat with disregard its sacred obligations. It was to punish the gross crime of defying the constitution, and to vindicate its supreme authority that we carried on a bloody war of four years’ duration. Shall we now acknowledge that we sacrificed a million of lives and expended billions of treasure to enforce a Constitution which is not worthy of respect and preservation? Those who advocated the right of secession alleged in their own justification that we had no regard for law, and that their rights of property, life, and liberty would not be safe under the Constitution, as administered by us. If we now verify their assertion, we prove that they were in truth and in fact fighting for their liberty, and instead of branding their leaders with the dishonoring name of traitors against a righteous and legal Government, we elevate them in history to the rank of self-sacrificing patriots, consecrate them to the administration of the world, and place them by the side of Washington, Hampden, and Sydney. No, let us leave them to the infamy they deserve, punish them as they should be punished, according to law, and take upon ourselves no share of the odium which they should bear alone. It is a part of our public history which can never be forgotten that both Houses of Congress in July 1861, declared in the form of a solemn resolution that the war was and should be carried on for no purpose of subjugation, but solely to enforce the Constitution and laws; and that when this was yielded by the parties in rebellion, the contest should cease, with the constitutional rights of the States and individuals unimpaired. This resolution was adopted and sent forth to the world unanimously by the Senate, and with only two dissenting voices in the House. It was accepted by the friends of the Union in the South, as well as in the North, as expressing honestly and truly the object of the war. On the faith of it, many thousands of persons in both sections gave their lives and their fortunes to the cause. To repudiate it now by refusing to the States and to the individuals within them the rights which the Constitution and laws of the Union would secure to them, is a breach of our plighted honor for which I can image no excuse, and to which I cannot voluntarily become a party. The evils which spring from the unsettled state of our Government will be acknowledged by all. Commercial intercourse is impeded, capital is in constant peril, public securities fluctuate in value, peace itself is not secure, and the sense of moral and political duty is impaired. To avert these calamities from our country, it is imperatively required that we should immediately decide upon some course of administration which can be steadfastly adhered to. I am thoroughly convinced that any settlement, or compromise, or plan of action which is inconsistent with the principles of the Constitution will not only be unavailing, but mischievous; that it will but multiply the present evils, instead of removing them. The Constitution, in its whole integrity and vigor, throughout the length and breadth of the 206

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land, is the best of all compromises. Besides, our duty does not, in my judgment, leave us a choice between that and any other. I believe that it contains the remedy that is so much needed, and that if the co-ordinate branches of the Government would unite upon its provisions, they would be found broad enough and strong enough to sustain in time of peace the nation which they bore safely through the ordeal of protracted civil war. Among the most sacred guaranties of that instrument are those which declare that “each State shall have at least one Representative,” and that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Each House is made the “judge of the elections, returns, and qualifications of its own members,” and may, “with the concurrence of twothirds, expel a member.” Thus, as heretofore urged, “in the admission of Senators and Representatives from any and all of the States, there can be no just ground of apprehension that persons who are disloyal will be clothed with the powers of legislation; for this could not happen when the Constitution and the laws are enforced by a vigilant and faithful Congress.” “When a Senator or Representative presents his certificate of election, he may at once be admitted or rejected; or, should there be any question as to his eligibility, his credentials may be referred for investigation to the appropriate committee. If admitted to a seat, it must be upon evidence satisfactory to the House of which he thus becomes a member, that he possesses the requisite constitutional and legal qualifications. If refused admission as a member for want of due allegiance to the Government, and returned to his constituents, they are admonished that none but persons loyal to the United States will be allowed a voice in the Legislative Councils of the Nation, and the political power and moral influence of Congress are thus effectively exerted in the interests of loyalty to the Government and fidelity to the Union.” And is it not far better that the work of restoration should be accomplished by simple compliance with the plain requirements of the Constitution, than a recourse to measures which in effect destroy the States, and threaten the subversion of the General Government? All that is necessary to settle this simple but important question, without further agitation or delay, is a willingness on the part of all to sustain the Constitution and carry its provisions into practical operation. If to-morrow either branch of Congress would declare that, upon the presentation of their credentials, members constitutionally elected and loyal to the General Government would be admitted to seats in Congress, while others would be excluded, and their places remain vacant until the selection by the people of loyal and qualified persons; and if, at the same time, assurance were given that this policy would be continued until all the States were represented in Congress, it would send a thrill of joy throughout the entire land, as indicating the inauguration of a system which must speedily bring tranquillity to the public mind. While we are legislating upon subjects which are of great importance to the whole people, and which must affect all parts of the country, not only during the life of the present generation, but for ages to come, we should remember that Legislative Achievements

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all men are entitled at least to a hearing in the councils which decide upon the destiny of themselves and their children. At present ten States are denied representation, and when their Fortieth Congress assembles on the fourth day of the present month, sixteen States will be without a voice in the House of Representatives. This grave fact, with the important questions before us, should induce us to pause in a course of legislation which, looking solely to the attainment of political ends, fails to consider the rights it transgresses, the law which it violates, or the institutions which it imperils. ANDREW JOHNSON.

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Tenure of Office Act, M arch 2, 1867 U.S. Statutes at Large 14:430–32.

A product of the contest for power and authority between President Andrew Johnson and the Republican-controlled Congress, and enacted over the veto of the president, this act sought to protect the holdover Lincoln cabinet officers who supported Congress’ plans for Reconstruction from removal by President Johnson. Section 1 states that any officer appointed with the advice and consent of the Senate should hold office until his/her successor had been confirmed. Cabinet officers were to hold their offices for the term of the president who appointed them, plus one month, “subject to removal by and with the advice and consent of the Senate.” Later section provided for interim appointments and removals if Congress was not in session. This act limited the president’s traditional power to remove cabinet officers and others on his own without any oversight by Congress; the president’s removal power constitutes a gray area in the Constitution, which Congress tried to clarify with this act. Yet, this act is political and aimed at limiting President Johnson from interfering with Congress’ and the Republicans’ plans for Reconstruction. In February 1868, when President Johnson removed Secretary of War Edwin M. Stanton without informing Congress or following the terms of this act, Congress impeached Johnson. While impeached, Johnson was acquitted by the Senate and not removed from office. President Johnson always maintained that the Tenure of Office Act was unconstitutional. No legal challenge to this act ever occurred, and in 1877, Congress repealed it. Chap. CLIV.—An Act regulating the Tenure of certain Civil Offenses. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and

every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate. Sec. 2. And be it further enacted, That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for his actions in the case, and the name of the person so designated to perform the duties of such office. And if the Senate shall concur in such suspension and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended: Provided, however, That the President, in case he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office. Sec. 3. And be it further enacted, That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate; 210

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and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office. Sec. 4. And be it further enacted, That nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law. Sec. 5. And be it further enacted, That if any person shall, contrary to the provisions of this act, accept any appointment to or employment in any office, or shall hold exercise or attempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared to be, guilty of a high misdemeanor, and upon trial and conviction thereof, he shall be punished therefore by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court. Sec. 6. And be it further enacted, That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court: Provided, That the President shall have power to make out and deliver, after the adjournment of the Senate, commissions for all officers who appointment shall have been advised and consented to by the Senate. Sec. 7. And be it further enacted, That it shall be the duty of the Secretary of the Senate, at the close of each session thereof, to deliver to the Secretary of the Treasury, and to each of his assistants, and to each of the auditors, and to each of the comptrollers in the treasury, and to the treasurer, and to the register of the treasury, a full and complete list, duly certified, of all the persons who shall have been nominated to and rejected by the Senate during such session, and a like list of all the offices to which nominations shall have been made and not confirmed and filled at such session. Sec. 8. And be it further enacted, That whenever the President shall, without the advice and consent of the Senate, designate, authorize, or employ any person to perform the duties of any office, he shall forthwith notify the Secretary of the Treasury thereof; and it shall be the duty of the Secretary of the Treasury thereupon to communicate such notice to all the proper accounting and disbursing officers of his department. Sec. 9. And be it further enacted, That no money shall be paid or received from the treasury, or paid or received from or retained out of any public moneys or funds of the United States, whether in the treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or holding or exercising the duties or functions of any office contrary to the provisions of this act; nor shall Legislative Achievements

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any claim, account, voucher, order, certificate, warrant, or other instrument providing for or relating to such payment, receipt, or retention, be presented, passed, allowed, approved, certified, or paid by any officer of the United States, or by any person exercising the functions or performing the duties of any office or place of trust under the United States, for or in respect to such office, or the exercising or performing the functions or duties thereof; and every person who shall violate any provisions of this section shall be deemed guilty of a high misdemeanor, and, upon trial and conviction thereof, shall be punished therefore by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both said punishments, in the discretion of the court. Schuyler Colfax Speaker of the House of Representatives La Fayette S. Foster President of the Senate, pro tempore

*** In the Senate of the United States, March 2, 1867.

The President of the United States having returned to the Senate, in which it originated, the bill entitled, “An act regulating the tenure of certain civil offices,” with his objections thereto, and the Senate proceeded, in pursuance of the Constitution, to reconsider the same; and Resolved, That the said bill do pass, two thirds of the Senate agreeing to pass the same. Attest: J. W. Forney Secretary of the Senate

*** In the House of Representatives U.S. March 2, 1867,

The House of Representatives having proceeded, in pursuance of the Constitution, to reconsider the bill entitled, “An act regulating the tenure of certain civil offices,” returned to the Senate by the President of the United States, with his objections, and sent by the Senate to the House of Representatives, with the message of the President returning the bill: Resolved, That the bill do pass, two thirds of the House of Representatives agreeing to pass the same. Attest: Edwd. McPherson Clerk 212

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P resident A ndrew Johnson Veto of the Tenure of Office Act, M arch 2, 1867 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press, 1995), 12:95–101.

As tensions grew between President Andrew Johnson and congressional Republicans during Reconstruction, the Republicans sought to protect the holdover Lincoln cabinet officers who still served in Johnson’s administration. In particular, Congress wanted to protect Secretary of War Edwin M. Stanton, who had become disenchanted with Johnson and who favored a congressionally led Reconstruction. To achieve this goal, on March 2, 1867, Congress passed the Tenure of Office Act, which President Johnson vetoed that same day. Congress then overrode the veto and the bill became a law. In Article II, §2, paragraph 2, the Constitution is clear that the president can appoint people to office with the advice and consent of the Senate. But, the Constitution is silent on the removal of officials. Did the president have to consult with the Senate to remove an officeholder he had nominated and the Senate approved; or, could the president simply remove officeholders at his discretion? Into that murky constitutional area Congress stepped with the Tenure of Office Act, which at its crux required congressional approval for presidential removal of executive officers appointed by him with the advice and consent of the Senate. Not surprisingly, Johnson vetoed the bill, arguing that from the Constitution and the history of the presidency the president, and only the president, held removal power. Though a judicial decision on this issue did not arise, a later Republican-controlled Congress allowed the Tenure of Office Act to lapse without renewal. As evidenced by a history of ongoing judicial interpretations—Myers v. United States, 272 U.S. 52 (1926) and Humphrey’s Executor v. United States, 295 U.S. 602 (1935)—the removal power remains at issue in constitutional interpretation.

Washington, March 2, 1867. To the Senate of the United States: I have carefully examined the bill “to regulate the tenure of certain civil offices.” The materials portion of the bill is contained in the first section, and is of the effect following, namely: That every person holding any civil office to which he has been appointed, by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been appointed by the President, with the advice and consent of the Senate, and duly qualified; and the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

These provisions are qualified by a reservation in the fourth section, “that nothing contained in the bill shall be construed to extend the term of any office the duration of which is limited by law.” In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill in this respect conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States is a principle which has been not more distinctly declared by judicial authority and judicial commentators than it has been uniformly practiced upon by the legislative and executive departments of the Government. The question arose in the House of Representatives so early as the 16th of June, 1789, on the bill for establishing an Executive Department denominated “the Department of Foreign Affairs.” The first clause of the bill, after recapitulating the functions of that officer and defining his duties, had these words: “To be removable from office by the President of the United States.” It was moved to strike out these words and the motion was sustained with great ability and vigor. It was insisted that the President could not constitutionally exercise the power of removal exclusively of the Senate; that the Federalists so interpreted the Constitution when arguing for its adoption by the several States; that the Constitution had nowhere given the President power of removal, either expressly or by strong implication, but, on the contrary, had distinctly provided for removals from office by impeachment only. A construction which denied the power of removal by the President was further maintained by arguments drawn from the danger of the abuse of the power; 214

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from the supposed tendency of an exposure of public officers to capricious removal to impair the efficiency of the civil service; from the alleged injustice and hardship of displacing incumbents dependent upon their official stations without sufficient consideration; from a supposed want of responsibility on the part of the President, and from an imagined defect of guaranties against a vicious President who might incline to abuse the Power. On the other hand, an exclusive power of removal by the President was defended as a true exposition of the text of the Constitution. It was maintained that there are certain causes for which persons ought to be removed from office without being guilty of treason, bribery, or malfeasance, and that the nature of things demands that it should be so. “Suppose,” it was said, “a man becomes insane by the visitation of God and is likely to ruin our affairs; are the hands of the Government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment; is the error not to be corrected? Suppose he acquires vicious habits and incurable indolence or total neglect of the duties of his office, which shall work mischief to the public welfare; is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures he pursues—and this he may do without committing any positive offense against the law; must be preserve his office in despite of the popular will? Suppose him grasping for his own aggrandizement and the elevation of his connections by every means short of the treason defined by the Constitution, hurrying your affairs to the precipice of destruction, endangering your domestic tranquillity, plundering you of the means of defense, alienating the affections of your allies and promoting the spirit of discord; must the trendy, tedious, desultory road by way of impeachment be traveled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the Government? The nature of things, the great objects of society, the express objects of the Constitution itself, require that this thing should be otherwise. To unite the Senate and the President in the exercise of the Power,” it was said, “would involve us in the most serious difficulty. Suppose a discovery of any of those events should take place when the Senate is not in session; how is the remedy to be applied? The evil could be avoided in no other way than by the Senate sitting always.” In regard to the danger of the power being abused if exercised by one man it was said “that the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions;” “that such a body is more likely to misuse the power of removal than the man whom the united voice of America calls to the Presidential chair. As the nature of government requires the power of removal,” it was maintained, “that it should be exercised in this way by the hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution as the executive officer of the Government.” Mr. Madison, whose adverse opinion in the Federalist had been relied upon by those who denied the exclusive power, now participated in the debate. He Legislative Achievements

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declared that he had reviewed his former opinions, and he summed up the whole case as follows: The Constitution affirms that the executive power is vested in the President. Are there exceptions to this proposition? Yes; there are. The Constitution says that in appointing to office the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct. Have we (that is, Congress) a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority. The question now resolves itself into this: Is the power of displacing an executive power? I conceive that if any power whatsoever is in the Executive it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office by associating the Senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such appointment? Should we be authorized in defiance of that clause in the Constitution, “The executive power shall be vested in the President,” to unite the Senate with the President in the appointment to office? I conceive not. If it is admitted that we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first one is authorized by being excepted out of the general rule established by the Constitution in these words: “The executive power shall be vested in the President.”

The question, thus ably and exhaustively argued, was decided by the House of Representative, by a vote of 34 to 20, in favor of the principle that the executive power of removal is vested by the Constitution in the Executive, and the Senate by the casting vote of the Vice-President. The question has often been raised in subsequent times of high excitement, and the practice of the Government has, nevertheless, conformed in all cases to the decision thus early made. The question was revived during the Administrative of President Jackson, who made, as is well recollected, a very large number of removals, which were made an occasion of close and rigorous scrutiny and remonstrance. The subject was long and earnestly debated in the Senate, and the early construction of the Constitution was, nevertheless, freely accepted as binding and conclusive upon Congress. The question came before the Supreme Court of the United States in January, 1839, ex parte Henne. It was declared by the court on that occasion that the power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of the Government. 216

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This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, and the great question was whether the removal was to be by the President alone or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment; but it was very early adopted as a practical construction of the Constitution that this power was vested in the President alone, and such would appear to have been the legislative construction of the Constitution, for in the organization of the three great Departments of State, War, and Treasury, in the year 1789, provision was made for the appointment of a subordinate officer by the head of the Department, who shall have charge of the records, books, and papers appertaining to the office when the head of the Department should be removed from office by the President of the United States. When the Navy Department was established, in the year 1798, provision was made for the charge and custody of the books, records, and documents of the Department in case of vacancy in the office of Secretary by removal or otherwise. It is not here said “by removal of the President,” as is done with respect to the heads of the other Departments, yet there can be no doubt that he holds his office with the same tenure as the other Secretaries and is removable by the President. The change of phraseology arose, probably, from its having become the settled and well-understood construction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer is by the President and Senate. (13 Peters, p. 139) Our most distinguished and accepted commentators upon the Constitution concur in the construction thus early given by Congress, and thus sanctioned by the Supreme Court. After a full analysis of the Congressional debate to which I have referred, Mr. Justice Story comes to this conclusion: After a most animated discussion, the vote finally taken in the House of Representatives was affirmative of the power of removal in the President, without any cooperation of the Senate, by the vote of 34 members against 20. In the Senate the clause in the bill affirming the power was carried by the casting vote of the Vice-President. That the final decision of this question so made was greatly influenced by the exalted character of the President then in office was asserted at the time and has always been believed; yet the doctrine was opposed as well as supported by the highest talents and patriotism of the country. The public have acquiesced in this decision, and it constitutes, perhaps, the most extraordinary case in the history of the Government of a power conferred by implication on the Executive by the assent of a bare majority of Congress which has not been questioned on many occasions. Legislative Achievements

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The commentator adds: Nor is this general acquiescence and silence without a satisfactory explanation.



Chancellor Kent’s remarks on the subject are as follows: On the first organization of the Government it was made a question whether the power of removal in case of officers appointed to hold at pleasure resided nowhere but in the body which appointed, and of course, whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution, while it was pending for ratification before the State conventions, by the author of the Federalist. But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. The words of the act (establishing the Treasury Department) are: “And whenever the same shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act.” This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as a decisive authority in the case. It applies equally to every other officer of the Government appointed by the President, whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of the department, because he is invested generally with the executive authority, and the participation in that authority by the Senate was an exception to a general principle and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it.

Thus has the important question presented by this bill been settled, in the language of the late Daniel Webster (who, while dissenting from it, admitted that it was settled), by construction, settled by precedent, settled by the practice of the Government, and settled by statute. The events of the last war furnished a practical confirmation of the wisdom of the Constitution as it has hitherto been maintained in many of its parts, including that which is now the subject of consideration. When the war broke out, rebel enemies, traitors, abettors, and sympathizers were found in every Department of the Government, as well as in the civil service as in the land and naval military service. They were found in Congress and among the keepers of the Capitol; in foreign missions; in each and all the Executive Departments; in the judicial service; in the post-office, and among the agents for conducting Indian affairs. Upon probable suspicion they 218

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were promptly displaced by my predecessor, so far as they held their offices under executive authority, and their duties were confided to new and loyal successors. No complaints against that power or doubts of its wisdom were entertained in any quarter. I sincerely trust and believe that no such civil war is likely to occur again. I can not doubt, however, that in whatever form and on whatever occasion sedition can arise an effort to hinder or embarrass or defeat the legitimate action of this Government, whether by preventing the collection of revenue, or disturbing the public peace, or separating the States, or betraying the country to a foreign enemy, the power of removal from office by the Executive, as it has heretofore existed and been practiced, will be found indispensable. Under these circumstances, as a depositary of the executive authority of the nation, I do not feel at liberty to unite with Congress in reversing it by giving my approval to the bill. At the early day when this question was settled, and, indeed, at the several periods when it has subsequently been agitated, the success of the Constitution of the United States, as a new and peculiar system of free representative government, was held doubtful in other countries, and was even a subject of patriotic apprehension among the American people themselves. A trial of nearly eighty years, through the vicissitudes of foreign conflicts and of civil war, is confidently regarded as having extinguished all such doubts and apprehensions for the future. During that eighty years the people of the United States have enjoyed a measure of security, peace, prosperity, and happiness never surpassed by any nation. It can not be doubted that the triumphant success of the Constitution is due to the wonderful wisdom with which the functions of government were distributed between the three principal departments—the legislative, the executive, and the judicial—and to the fidelity with which each has confined itself or been confined by the general voice of the nation within its peculiar and proper sphere. While a just, proper, and watchful jealousy of executive power constantly prevails, as it ought ever to prevail, yet it is equally true that an efficient Executive, capable, in the language of the oath prescribed to the President, of executing the laws and, within the sphere of executive action, of preserving, protecting, and defending the Constitution of the United States, is an indispensable security for tranquillity at home and peace, honor, and safety abroad. Governments have been erected in many countries upon our model. If one or many of them has thus far failed in fully securing to the people the benefits which we have derived from our system, it may be confidently asserted that their misfortune has resulted from their unfortunate failure to maintain the integrity of each of the three great departments while preserving harmony among them all. Having at an early period accepted the Constitution in regard to the Executive office in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction or in any assumed necessity of the times for changing those opinions. For these reasons I return the bill to the Senate, in which House it Legislative Achievements

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originated, for the further consideration of Congress which the Constitution prescribes. Insomuch as the several parts of the bill which I have not considered are matters chiefly of detail and are based altogether upon the theory of the Constitution from which I am obliged to dissent, I have not thought it necessary to examine them with a view to make them an occasion of distinct and special objections. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitutions for the self-government of free states and nations. But I think experience has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitutions of selfgovernment when once happily established. I know no other way in which they can be preserved and maintained except by a constant adherence to them through the various vicissitudes of national existence, with such adaptations as may become necessary, always to be effected however, through the agencies and in the prescribed in the original constitutions themselves. Whenever administration fails or seems to fail in securing any of the great ends for which republican government is established, the proper course seems to be to renew the original spirit and forms of the Constitution itself. Andrew Johnson.

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A nti-P eonage Act, M arch 2, 1867 U.S. Statutes at Large 14:546.

Peonage is a form of debt slavery. A laborer who owes a debt is held to service in a slave-like status because of the monetary debt owed to another. After the Civil War, peonage appeared among the labor force in New Mexico and in parts of the South when blacks were arrested, usually for “vagrancy,” and could not pay the fine. The laborer would then be hired out to an employer to work off this debt. In effect, peonage became another form for involuntary servitude. This act outlawed the practice and did so not only in New Mexico, but “in any other Territory or State of the United States”; thus nationally. Holding a person as a peon became a felony under this often overlooked act that advanced individual liberty. Chap. CLXXXVII.—An Act to establish and forever prohibit the System of peonage in the territory of New Mexico and other Parts of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the holding of any person to service or labor under the system known as peonage is hereby declared to be unlawful, and the same is hereby abolished and forever prohibited in the territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other Territory or State of the United States, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, be, and the same are hereby, declared null and void; and any person or persons who shall hold, arrest, or return, or cause to be held, arrested, or returned, or in any manner aid in the arrest or return of any person or persons to a condition of peonage, shall, upon conviction, be punished by fine not less than one thousand nor more than five thousand dollars, or by imprisonment not less than one nor more than five years, or both, at the discretion of the court.

Sec. 2. And be it further enacted, That it shall be the duty of all persons in the military or civil service of the Territory of New Mexico to aid in the enforcement of the foregoing section of this act; and any person or persons who shall obstruct or attempt to obstruct, or in any way interfere with, or prevent the enforcement of this act, shall be liable to the pains and penalties hereby provided; and any officer or other person in the military service of the United States who shall so offend, directly or indirectly, shall, on conviction before a court-martial, be dishonorably dismissed [from] the service of the United States, and shall thereafter be ineligible to reappointment to any office of trust, honor, or profit under the government. Approved, March 2, 1867.

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The R econstruction Act [Second], M arch 23, 1867 U.S. Statutes at Large 15:2–5.

This second of the Reconstruction Acts should be read as an amendment and extension of the first Reconstruction Act passed on March 2. Like the first act, Congress enacted this public policy over President Andrew Johnson’s veto. In this act, Congress established some of the details used in the process of reconstructing loyal state governments, such as establishing the oath to be taken by persons participating in the state Reconstruction process. That oath disfranchises the majority of the South’s white population, who could not swear the oath of past loyalty because of their direct participation in the rebellion or their having given aid or comfort to the rebellious state governments. On the flip side, the African American male population over twenty-one years old could participate because they could swear this so-called “iron clad” oath of both past loyalty and future loyalty. Once again, Congress’ intent to build biracial state political communities and state governments are exhibited in this statute. Chap. VI—An Act supplementary to an act entitled “An act to provide for the more efficient government of the rebel states,” passed March second, eighteen hundred and sixty-seven, and to facilitate restoration. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That before the first day of September, eighteen hundred and sixty-seven, the commanding general in each district defined by an act entitled “An Act to provide for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-seven, shall cause a registration to be made of the male citizens of the United States, twenty-one years of age and upwards, resident in each county or parish in the State or States included in his district, which registration shall include only those persons who are qualified to vote for delegates by the act aforesaid, and who shall have taken and subscribed the following oath or affirmation: “I, _____, do solemnly swear, (or affirm,) in the presence of Almighty God, that I am a citizen of the State of

_____; that I have resided in said State for _____ months next preceding this day, and now reside in the county of _____, or the parish of _____, in said State, (as the case may be;) that I am twenty-one years old; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do, so help me God”; which oath or affirmation may be administered by any registering officer. Sec. 2. And be it enacted further, That after the completion of the registration hereby provided for in any State, at such time and places therein as the commanding general shall appoint and direct, of which at least thirty days’ public notice shall be given, an election shall be held of delegates to a convention for the purpose of establishing a constitution and civil government for such state loyal to the Union, said convention in each State, except Virginia, to consist of the same number of members as the most numerous branch of the State legislature of such State in the year eighteen hundred and sixty, to be apportioned among the several districts, counties, or parishes of such State by the commanding general, giving to each representation in the ratio of voters registered as aforesaid, as nearly as may be. The convention in Virginia shall consist of the same number of members as represented the territory now constituting Virginia in the most numerous branch of the legislature of said State in the year eighteen hundred and sixty, to be apportioned as aforesaid. Sec. 3. And be it enacted further, That at said election the registered voters of each State shall vote for or against a convention to form a constitution therefor under this act. Those voting in favor of such a convention shall have written or printed on the ballots by which they vote for delegates, as aforesaid, the words “For a convention,” and those voting against such a convention shall have written or printed on such ballots the words “Against a convention.” The person appointed to superintend said election, and to make return of the votes given thereat, as herein provided, shall count and make return of the votes given for and against a convention; and the commanding general to whom the same shall have been returned shall ascertain and declare the total vote in each State for and against a convention. If a majority of the votes given on that question shall be for a convention, then such convention shall be held as hereinafter provided; but if a 224

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majority of said votes shall be against a convention, then no such convention shall be held under this act: Provided, That such convention shall not be held unless a majority of all such registered voters shall have voted on the question of holding such convention. Sec. 4. And be it enacted further, That the commanding general of each district shall appoint as many boards of registration as may be necessary, consisting of three loyal officers or persons, to make and complete the registration, superintend the election, and make return to him of the votes, lists of voters, and of the persons elected as delegates by a plurality of the votes cast at said election; and upon receiving said returns he shall open the same, ascertain the persons elected as delegates according to the returns of the officers who conducted said election, and make proclamation thereof; and if a majority of the votes given on that question shall be for a convention, the commanding general, within sixty days from the date of election, shall notify the delegates to assemble in convention, at a time and place to be mentioned in the notification, and said convention, when organized, shall proceed to frame a constitution and civil government according to the provisions of this act and the act to which is it supplementary; and when the same shall have been so framed, said constitution shall be submitted by the convention for ratification to the persons registered under the provisions of this act at an election to be conducted by the officers or persons appointed or to be appointed by the commanding general, as hereinbefore provided, and to be held after the expiration of thirty days from the date of notice thereof, to be given by said convention; and the returns thereof shall be made to the commanding general of the district. Sec. 5. And be it enacted further, That if, according to said returns, the constitution shall be ratified by a majority of the votes of the registered electors qualified as herein specified, cast at said election, (at least one half of all the registered voters voting upon the question of such ratification,) the president of the convention shall transmit a copy of the same, duly certified, to the President of the United States, who shall forthwith transmit the same to Congress, if then in session, and if not in session, then immediately upon its next assembling; and if it shall, moreover, appear to Congress that the election was one at which all the registered and qualified electors in the State had an opportunity to vote freely and without restraint, fear, or the influence of fraud, and if the Congress shall be satisfied that such constitution meets the approval of a majority of all the qualified electors in the State, and if the said constitution shall be declared by Congress to be in conformity with the provisions of the act to which this is supplementary, and the other provisions of said act shall have been complied with, and the said constitution shall be approved by Congress, the State shall be declared entitled to representation, and Senators and Representatives shall be admitted therefrom as therein provided. Sec. 6. And be it enacted further, That all elections in the States mentioned in the said “Act to provide for the more efficient government of the rebel States,” Legislative Achievements

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shall, during the operation of said act, be by ballot; and all officers making the said registration of voters and conducting said elections shall, before entering upon the discharge of their duties, take and subscribe the oath prescribed by the act approved July second, eighteen hundred and sixty-two, entitled “An act to prescribe an oath of office”: Provided, That if any person shall knowingly and falsely take and subscribe any oath in this act prescribed, such person so offending and being thereof duly convicted, shall be subject to the pains, penalties, and disabilities which by law are provided for the punishment of the crime of wilful and corrupt perjury. Sec. 7. And be it enacted further, That all expenses incurred by the several commanding generals, or by virtue of any orders issued, or appointments made, by them, under or by virtue of this act, shall be paid out of any moneys in the treasury not otherwise appropriated. Sec. 8. And be it enacted further, That the convention for each State shall prescribe the fees, salary, and compensation to be paid to all delegates and other officers and agents herein authorized or necessary to carry into effect the purposes of this act not herein otherwise provided for, and shall provide for the levy and collection of such taxes on the property in such State as may be necessary to pay the same. Sec. 9. And be it enacted further, That the word article, in the sixth section of the act to which this is supplementary, shall be construed to mean “section.” Schulyer Colfax, Speaker of the House of Representatives. B.F. Wade, President of the Senate pro tempore.

In the House of Representatives, U.S., March 23, 1867. The President of the United States, having returned to the House of Representatives, in which it originated, the bill entitled “An Act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel states,’ passed March second, eighteen hundred and sixty-seven, and to facilitate restoration,” with his objections thereto, the House of Representatives proceeded, in pursuance of the Constitution, to reconsider the same; and Resolved, That the bill do pass, two-thirds of the House of Representatives agreeing to pass the same. Attest: Edwd. McPherson. Clerk H. R. U. S.

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In the Senate of the United States, March 23, 1867. The Senate having proceeded, in pursuance of the Constitution, to reconsider the bill entitled “An Act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel states,’ passed March second, eighteen hundred and sixty-seven, and to facilitate restoration” returned to the House of Representatives by the President of the United States, with his objections, and sent by the House of Representatives to the Senate, with the message of the President returning the bill: Resolved, That the bill do pass, two thirds of the Senate agreeing to pass the same. J. W. Forney, Attest: Secretary.

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P resident A ndrew Johnson Veto of the Second Military R econstruction Act, M arch 23, 1867 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville: University of Tennessee Press, 1995), 12:176–80.

Because congressional Reconstruction included the southern African American population as political participants, President Johnson opposed Congress’ Reconstruction. While Johnson’s first veto message spoke to structural and accountability issues that provided some cover for his racial bias, such language is not present in this second veto message. As Johnson wrote, “When I contemplate the millions of our fellow-citizens of the South with no alternative left but to impose upon themselves this fearful and untried experiment of complete negro enfranchisement,” combined with the disfranchisement of the white majority, left Johnson with no alternative than to veto the bill. On March 2, Congress enacted over Johnson’s veto the first Reconstruction Act, but that statute contained no machinery that enabled the southern states to act to start the Reconstruction process. The supplementary second Reconstruction Act required the generals in charge of the five southern districts to register eligible voters (whites as well as blacks) and start the process of state Reconstruction. This supplement Johnson vetoed; Congress overrode his veto and continued to set and control Reconstruction policy. Washington, March 23, 1867. To the House of Representatives: I have considered the bill entitled “An act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel States,’ passed March 2, 1867, and to facilitate restoration,” and now return it to the House of Representatives with my objections. This bill provides for elections in the ten States brought under the operation of the original act to which it is supplementary. Its details are principally directed to the lections for the formation of the State constitutions, but by the sixth section

of the bill “all elections” in these States occurring while the original act remains in force are brought within its purview. Referring to these details, it will be found that, first of all, there is to be a registration of the voters. No one whose name has not been admitted on the list is to be allowed to vote at any of these elections. To ascertain who is entitled to registration, reference is made necessary, by the express language of the supplement, to the original act and to the pending bill. The fifth section of the original act provides, as to voters, that they shall be “male citizens of the State, 21 years old and upward, of whatever race, color, or previous condition, who have been residents of the State for one year.” This is the general qualification, followed, however, by many exceptions. No one can be registered, according to the original act, “who may be disfranchised for participation in the rebellion”—a provision which left undetermined the question as to what amounted to disfranchisement, and whether without a judicial sentence the act itself produced that effect. This supplemental bill superadds an oath, to be taken by every person before his name can be admitted upon the registration, that he has “not been disfranchised for participation in any rebellion or civil war against the United States.” It thus imposes upon every person the necessity and responsibility of deciding for himself, under the peril of punishment by a military commission if he makes a mistake, what works disfranchisement by participation in rebellion and what amounts to such participation. Almost every man—the negro as well as the white—above 21 years of age who was resident in these ten States during the rebellion, voluntarily or involuntarily, at some time and in some way did participate in resistance to the lawful authority of the General Government. The question with the citizen to whom this oath is to be proposed must be a fearful one, for while the bill does not declare that perjury may be assigned for such false swearing nor fix any penalty for the offense, we must not forget that martial law prevails; that every person is answerable to a military commission, without previous presentment by a grand jury, for any charge that may be made against him, and that the supreme authority of the military commander determines the question as to what is an offense and what is to be the measure of punishment. The fourth section of the bill provides “that the commanding general of each district shall appoint as many boards of registration as may be necessary, consisting of three loyal officers or persons.” The only qualification stated for these officers is that they must be “loyal.” They may be persons in the military service or civilians, residents of the State or strangers. Yet these persons are to exercise most important duties and are vested with unlimited discretion. They are to decide what names shall be placed upon the register and from their decision there is to be no appeal. They are to superintend the elections and to decide all questions which may arise. They are to have custody of the ballots and to make return of the persons elected. Whatever frauds or errors they may commit must pass without redress. All that is left for the commanding general is to receive the returns of the elections, open the same and ascertain who are chosen “according to the returns 230

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of the officers who conducted said elections.” By such means and with this sort of agency are the conventions of delegates to be constituted. As the delegates are to speak for the people, common justice would seem to require that they should have authority from the people themselves. No convention so constituted will in any sense represent the wishes of the inhabitants of these States, for under the all-embracing exceptions of these laws, by a construction which the uncertainty of the clause as to disfranchisement leaves open to the board of officers, the great body of the people may be excluded from the polls and from all opportunity of expressing their own wishes or voting for delegates who will faithfully reflect their sentiments. I do not deem it necessary further to investigate the details of this bill. No consideration could induce me to give my approval to such an election law for any purpose, and especially for the great purpose of framing the constitution of a State. If ever the American citizen should be left to the free exercise of his own judgment it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it can not properly be taken out of his hands. All this legislation proceeds upon the contrary assumption that the people of each of these States shall have no constitution except such as may be arbitrarily dictated by Congress and formed under the restraint of military rule. A plain statement of facts makes this evident. In all of these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not “loyal and republican,” and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State “loyal and republican”? The original act answers the question: It is universal negro suffrage—a question which the Federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now than when these States, four of which were members of the original thirteen, first became members of the Union. Congress does not now demand that a single provision of their constitution be changed except such as confine suffrage to the white population. It is apparent, therefore, that these provisions do not conform to the standard of republicanism which Congress seeks to establish. That there may be no mistake, it is only necessary that reference should be made to the original act, which declares “such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications therein stated for electors of delegates.” What class of persons is here meant clearly appears in the same section; that is to say, “the male citizens of said State 21 years old and upward, of whatever race, color, Legislative Achievements

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or previous condition, who have been resident in said State for one year previous to the day of such election.” Without these provisions no constitution which can be framed in any one of the ten States will be of any avail with Congress. This, then, is the test of what the constitution of a State of this Union must contain to make it republican. Measured by such a standard, how few of the States now composing the Union have republican constitutions! If in the exercise of the constitutional guaranty that Congress shall secure to every State a republican form of government universal suffrage for blacks as well as white is a sine qua non, the work of reconstruction may as well begin in Ohio as in Virginia, in Pennsylvania as in North Carolina. When I contemplate the millions of our fellow-citizens of the South with no alternative left but to impose upon themselves this fearful and untried experiment of complete negro enfranchisement—and white disfranchisement, it may be, almost complete—or submit indefinitely to the rigor of martial law, without a single attribute of freemen, deprived of all the sacred guaranties of our Federal Constitution, and threatened with even worse wrongs, if any worse are possible, it seem to me their condition is the most deplorable to which any people can be reduced. It is true that they have been engaged in rebellion and that their object being a separation of the States and a dissolution of the Union there was an obligation resting upon every loyal citizen to treat them as enemies and to wage war against their cause. Inflexibly opposed to any movement imperiling the integrity of the Government, I did not hesitate to urge the adoption of all measures necessary for the suppression of the insurrection. After a long and terrible struggle the efforts of the Government were triumphantly successful, and the people of the South, submitting to the stern arbitrament, yielded forever the issues of the contest. Hostilities terminated soon after it became my duty to assume the responsibilities of the chief executive officer of the Republic, and I at once endeavored to repress and control the passions which our civil strife had engendered, and, no longer regarding these erring millions as enemies, again acknowledged them as our friends and our countrymen. The war had accomplished its objects. The nation was saved and that seminal principle of mischief which from the birth of the Government had gradually but inevitably brought on the rebellion was totally eradicated. Then, it seemed to me, was the auspicious time to commence the work of reconciliation; then, when these people sought once more our friendship and protection, I consider it our duty generously to meet them in the spirit of charity and forgiveness and to conquer them even more effectually by the magnanimity of the nation than by the force of arms. I yet believe that if the policy of reconciliation then inaugurated, and which contemplated an early restoration of these people to all of their political rights, had received the support of Congress, every one of these ten States and all their people would at this moment be fast anchored in the Union and the great work which gave the war all its sanction and made it just and 232

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holy would have been accomplished. Then over all the vast and fruitful regions of the South peace and its blessings would have prevailed, while now millions are deprived of rights guaranteed by the Constitution to every citizen and after nearly two years of legislation find themselves placed under an absolute military despotism. “A military republic, a government founded on mock elections and supported only by the sword,” was nearly a quarter of a century since pronounced by Daniel Webster, when speaking of the South American States, as “a movement, indeed, but a retrograde and disastrous movement, from the regular and old-fashioned monarchical systems;” and he added: If men would enjoy the blessings of republican government, they must govern themselves by reason, by mutual counsel and consultation, by a sense and feeling of general interest, and by the acquiescence of the minority in the will of the majority, properly expressed; and, above all, the military must be kept, according to the language of our bill of rights, in strict subordination to the civil authority. Wherever this lesson is not learned and practiced there can be no political freedom. Absurd, preposterous is it, a scoff and a satire on free forms of constitutional liberty, for frames of government to be prescribed by military leaders and the right of suffrage to be exercised at the point of the sword.

I confidently believe that a time will come when these States will again occupy their true positions in the Union. The barriers which now seem so obstinate must yield to the force of an enlightened and just public opinion, and sooner or later unconstitutional and oppressive legislation will be effaced from our statute books. When this shall have been consummated, I pray God that the errors of the past may be forgotten and that once more we shall be a happy, united, and prosperous people, and that at last, after the bitter and eventful experience through which the nation has passed, we shall all come to know that our only safety is in the preservation of our Federal Constitution and in according to every American citizen and to every State the rights which that Constitution secures. Andrew Johnson.

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R econstruction Act [Third], July 19, 1867 U.S. Statutes at Large 15:14-16.

This third Reconstruction Act closed some of the loopholes left open by the first two Reconstruction Acts, and clarified a variety of technical issues with the statute and public policy. Chap. XXX.—An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twentythird day of March, eighteen hundred and sixty-seven. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it is hereby declared to have been the true intent and meaning of the act of the second day of March, one thousand eight hundred and sixty-seven, entitled “An act to provide for the more efficient government of the rebel States,” and of the act supplementary thereto, passed on the twentythird day of March, in the year one thousand eight hundred and sixty-seven, that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas were not legal State governments; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress. Sec. 2. And be it further enacted, That the commander of any district named in said act shall have power, subject to the disapproval of the General of the army of the United States, and to have effect till disapproved, whenever in the opinion of such commander the proper administration of said act shall require it, to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment or authority derived from, or granted by, or claimed under, any so-called State or the government thereof, or any municipal or other division thereof, and upon such suspension or removal such commander, subject to the disapproval of the General as aforesaid, shall have power to provide from time to time for the performance of the said duties of such officer or person so suspended

or removed, by the detail of some competent officer or soldier of the army, or by the appointment of some other person, to perform the same, and to fill vacancies occasioned by death, resignation, or otherwise. Sec. 3. And be it further enacted, That the General of the army of the United States shall be invested with all the powers of suspension, removal, appointment, and detail granted in the preceding section to district commanders. Sec. 4. And be it further enacted, That the acts of the officers of the army already done in removing in said districts persons exercising the functions of civil officers, and appointing others in their stead, are hereby confirmed: Provided, That any person heretofore or hereafter appointed by any district commander to exercise the functions of any civil office, may be removed either by the military officer in command of the district, or by the General of the army. And it shall be the duty of such commander to remove from office as aforesaid all persons who are disloyal to the government of the United States, or who use their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of this act and the acts to which it is supplementary. Sec. 5. And be it further enacted, That the boards of registration provided for in the act entitled “An act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel States,” passed March two, eighteen hundred and sixty-seven, shall have power, and it shall be their duty before allowing the registration of any person, to ascertain, upon such facts or information as they can obtain, whether such person is entitled to be registered under said act, and the oath required by said act shall not be conclusive on such question, and no person shall be registered unless such board shall decide that he is entitled thereto; and such board shall also have power to examine, under oath, (to be administered by any member of such board,) any one touching the qualification of any person claiming registration; but in every case of refusal by the board to register an applicant, and in every case of striking his name from the list as hereinafter provided, the board shall make a note or memorandum, which shall be returned with the registration list to the commanding general of the district, setting forth the grounds of such refusal or such striking from the list: Provided, That no person shall be disqualified as member of any board of registration by reason of race or color. Sec. 6. And be it further enacted, That the true intent and meaning of the oath prescribed in said supplementary act is, (among other things,) that no person who has been a member of the legislature of any State, or who has held any executive or judicial office in any State, whether he has taken an oath to support the Constitution of the United States or not, and whether he was holding such office at the commencement of the rebellion, or had held it before, and who has afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof, is entitled to be registered or to vote; and the words “executive or judicial office in any State” in said oath mentioned shall be 236

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construed to include all civil offices created by law for the administration of any general law of a State, or for the administration of justice. Sec. 7. And be it further enacted, That the time for completing the original registration provided for in said act may, in the discretion of the commander of any district, be extended to the first day of October, eighteen hundred and sixtyseven; and the boards of registration shall have power, and it shall be their duty, commencing fourteen days prior to any election under said act, and upon reasonable public notice of the time and place thereof, to revise, for a period of five days, the registration lists, and upon being satisfied that any person not entitled thereto has been registered, to strike the name of such person from the list, and such person shall not be allowed to vote. And such board shall also, during the same period, add to such registry the names of all persons who at that time possess the qualifications required by said act who have not been already registered; and no person shall, at any time, be entitled to be registered or to vote by reason of any executive pardon or amnesty for any act or thing which, without such pardon or amnesty, would disqualify him from registration or voting. Sec. 8. And be it further enacted, That section four of said last-named act shall be construed to authorize the commanding general named therein, whenever he shall deem it needful, to remove any member of a board of registration and to appoint another in his stead, and to fill any vacancy in such board. Sec. 9. And be it further enacted, That all members of said boards of registration and all persons hereafter elected or appointed to office in said military districts, under any so-called State or municipal authority, or by detail or appointment of the district commanders, shall be required to take and to subscribe the oath of office prescribed by law for officers of the United States. Sec. 10. And be it further enacted, That no district commander or member of the board of registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States. Sec. 11. And be it further exacted, That all provisions of this act and of the acts to which this is supplementary shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out. Schulyer Colfax Speaker of the House of Representatives. B. F. Wade President of the Senate pro tempore.

In the House of Representatives, U.S., July 19th, 1867. The President of the United States, having returned to the House of Representatives, in which it originated, the bill entitled “An Act supplementary to an Legislative Achievements

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Act entitled ‘An Act to provide for the more efficient Government of the Rebel States,’ passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twenty-third day of March, eighteen hundred and sixty-seven,” with his objections thereto, the House of Representatives proceeded, in pursuance of the Constitution, to reconsider the same; and Resolved, That the bill do pass, two-thirds of the House of Representatives agreeing to pass the same. Edwd. McPherson. Attest: Clerk H. R. U. S. In the Senate of the United States, July 19, 1867. The Senate having proceeded, in pursuance of the Constitution, to reconsider the bill entitled “An Act supplementary to an Act entitled “An Act to provide for the more efficient Government of the Rebel States,” passed on the second day of March, eighteen hundred and sixty-seven, and the Act supplementary thereto, passed on the twenty-third day of March, eighteen hundred and sixty-seven,” returned to the House of Representatives by the President of the United States, with his objections, and sent by the House of Representatives to the Senate, with the message of the President returning the bill: Resolved, That the bill do pass, two thirds of the Senate agreeing to pass the same. J. W. Forney, Attest: Secretary, By W. J. McDonald, Chief Clerk,

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Veto of the Third Military R econstruction Act, July 19, 1867 Paul H. Bergeron, ed., The Papers of Andrew Johnson (Knoxville, University of Tennessee Press, 1995), 12:415–23.

Throughout Reconstruction President Andrew Johnson took a goslow obstructionist approach to the administration of the law. Under the first and second Reconstruction Acts, military commanders had removed white political officeholders because of their lack of loyalty to the nation during war. Johnson asked his Attorney General, Henry Stanbery, for an opinion on the legality of these removals. Stanbery replied, interpreting the Reconstruction Acts as narrowly as possible. Military commanders could only carry out police actions, commanders could not remove civilian officeholders—only those officeholders who had taken the oath to support the Constitution before the war could be removed—and local registrars had to accept on their face the loyalty of the prospective voter. Needless to say, the narrowness of this decision worried the military commanders in the districts. On July 17, Congress closed these loopholes in the third Reconstruction Act. This act declared all of the provisional southern governments subordinate to the military, confirmed the power of the commanders to remove southern officeholders, and authorized local voter registrars to reject any claim of loyalty if they believed it had been sworn falsely. Johnson vetoed the bill, claiming that it was overly broad, was outside the legal and constitutional traditions of the United States, and threatened the role and status of the states in the federal system. Regardless, Congress overrode Johnson’s veto and continued Republican-led, congressional Reconstruction. Washington, D.C. March 23, 1867. To the House of Representatives of the United States: I return herewith the bill entitled “An act supplementary to an act entitled ‘An act to provide for the more efficient government of the rebel States,’ passed on

the 2d day of march, 1867, and the act supplementary thereto, passed on the 23d day of march, 1867,” and will state as briefly as possible some of the reasons which prevent me from giving it my approval. This is one of a series of measures passed by Congress during the last four months on the subject of reconstruction. The message retuning the act of 2d of March last states at length my objections to the passage of that measure. They apply equally well to the bill now before me, and I am content merely to refer to them and to reiterate my conviction that they are sound and unanswerable. There are some points particular to this bill, which I will proceed at once to consider. The first section purports to declare “the true intent and meaning,” in some particulars, of the two prior acts upon this subject. It is declared that the intent of those acts was, first, that the existing governments in the ten “rebel States” “were not legal State governments,” and, second, “that thereafter said governments, if continued, were to be subject in all respects to the military commanders of the respective districts and to the paramount authority of Congress.” Congress may by a declaratory act fix upon a prior act a construction altogether at variance with its apparent meaning, and from the time, at least, when such a construction is fixed the original act will be construed to mean exactly what it is stated to mean by the declaratory statute. There will be, then, from the time this bill may become law no doubt, no question, as to the relation in which the “existing governments” in those States, called in the original act “the provisional governments,” stand toward the military authority. As those relations stood before the declaratory act, these “governments,” it is true, were made subject to absolute military authority in many important respects, but not in all, the language of the act being “subject to the military authority of the United States, as hereinafter prescribed.” By the sixth section of the original act these governments were made “in all respects subject to the paramount authority of the United States.” Now by this declaratory act it appears that Congress did not by the original act intend to limit the military authority to any particulars of subjects therein “prescribed,” but meant to make it universal. Thus over all of these ten States this military government is now declared to have unlimited authority. It is no longer confined to the preservation of the public peace, the administration of criminal law, the registration of voters, and the superintendence of elections, but “in all respects” is asserted to be paramount to the existing civil governments. It is impossible to conceive any state of society more intolerable than this; and yet it is to this condition that 12,000,000 American citizens are reduced by the Congress of the United States. Over every foot of the immense territory occupied by these American citizens the Constitution of the United States is theoretically in full operation. It binds all the people there and should protect them; yet they are denied every one of its sacred guaranties. 240

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Of what avail will it be to any one of these Southern people when seized by a file of soldiers to ask for cause of arrest or for the production of the warrant? Of what avail to ask for the privilege of bail when in military custody, which knows no such thing as bail? Of what avail to demand a trial by jury, process for witnesses, a copy of the indictment, the privilege of counsel, or that greater privilege, the writ of habeas corpus? The veto of the original bill of the 2d of March was based on two distinct grounds—the interference of Congress in matters strictly appertaining to the reserved powers of the States and the establishment of military tribunals for the trials of citizens in time of peace. The impartial reader of that message will understand that all that it contains with respect to military despotism and martial law has reference especially to the fearful power conferred on the district commanders to displace the criminal courts and assume jurisdiction to try and punish by military boards; that, potentially, the suspension of habeas corpus was martial law and military despotism. The act now before me not only declares that the intent was to confer such military authority, but also to confer unlimited military authority over all the other courts of the State and over all the officers of the State—legislative, executive, and judicial. Not content with the general grant of power, Congress, in the second section of this bill, specifically gives to each military commander the power “to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment, or authority derived from, or granted by, or claimed under any so-called State, or the government thereof, or any municipal or other division thereof.” A power that hitherto all the departments of the Federal Government, acting in concert or separately, have not dared to exercise is here attempted to be conferred on a subordinate military officer. To him, as a military officer of the Federal Government, is given the power, supported by “a sufficient military force,” to remove every civil officer of the State. What next? The district commander, who has thus displaced the civil officer, is authorized to fill the vacancy by the detail of an officer or soldier of the Army, or by the appointment of “some other person.” This military appointee, whether an officer, a soldier, or “some other person,” is to perform “the duties of such officer or person so suspended or removed.” In other words, an officer or soldier of the Army is thus transformed into a civil officer. He may be made a governor, a legislator, or a judge. However unfit he may deem himself for such civil duties, he must obey the order. The officer of the Army must, if “detailed,” go upon the supreme bench of the State with the same prompt obedience as if he were detailed to go upon a court-martial. The soldier, if detailed to act as a justice of the peace, must obey as quickly as if he were detailed for picket duty. What is the character of such a military officer? This bill declares that he shall perform the duties of the civil office to which he is detailed. It is clear, however, Legislative Achievements

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that he does not lose his position in the military service. He is still an officer or soldier of the Army; he is still subject to the rules and regulations which govern it, and must yield due deference, respect, and obedience toward his superiors. The clear intent of this section is that the officer or soldier detailed to fill a civil office must execute its duties according to the laws of the State. If he is appointed a governor of a State, he is to execute the duties as provided by the laws of that State, and for the time being his military character is to be suspended in his new civil capacity. If he is appointed a State treasurer, he must at once assume the custody and disbursement of the funds of the State, and must perform those duties precisely according to the laws of the State, for he is intrusted with no other official duty or other official power. Holding the office of treasurer and intrusted with funds, it happens that he is required by the State laws to enter into bond with security and to take an oath of office; yet from the beginning of the bill to the end there is no provision for any bond or oath of office, or for any single qualification required under the State law, such as residence, citizenship, or anything else. The only oath is that provided for in the ninth section, by the terms of which everyone detailed or appointed to any civil office in the State is required “to take and subscribe the oath of office prescribed by law for officers of the United States.” Thus an officer of the Army of the United States detailed to fill a civil office in one of these States gives no official bond and takes no official oath for the performance of his new duties, but as a civil office of the State only takes the same oath which he had already taken as a military officer of the United States. He is, at last, a military officer performing civil duties, and the authority under which he acts is federal authority only; and the inevitable result is that the Federal Government, by the agency of its own sworn officers, in effect assumes the civil government of the State. A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by Federal officers, who are to perform the very duties imposed on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal government by the same Federal agency. In this connection I must call attention to the tenth and eleventh sections of the bill, which provide that none of the officers or appointees of these military commanders “shall be bound in his action by any opinion of any civil officer of the United States,” and that all the provisions of the act “shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.” It seems Congress supposed that this bill might require construction, and they fix, therefore, the rule to be applied. But where is the construction to come from? Certainly no one can be more in want of instruction than a soldier or an officer of the Army detailed for a civil service, perhaps the most important in a State, with the duties of which he is altogether unfamiliar. This bill says he shall 242

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not be bound in his action by the opinion of any civil officer of the United States. The duties of the officer are altogether civil, but when he asks for an opinion he can only ask the opinion of another military officer, who, perhaps, understands as little of his duties as he does himself; and as to his “action,” he is answerable to the military authority, and to the military authority alone. Strictly, no opinion of any civil officer other than a judge has a binding force. But these military appointees would not be bound even by a judicial opinion. They might very well say, even when their action is in conflict with the Supreme Court of the United States, “That court is composed of civil officers of the United States, and we are not bound to conform our action to any opinion of any such authority.” This bill and the acts to which it is supplementary are all founded upon the assumption that these ten communities are not States and that their existing governments are not legal. Throughout the legislation upon this subject they are called “rebel States,” and in this particular bill they are denominated “so-called States,” and the vice of illegality is declared to pervade all of them. The obligations of consistency bind a legislative body as well as the individuals who compose it. It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867. During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States as States of the Union can only be districted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits. They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment—seven of which votes were given by seven of these ten States—it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky, not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State government be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish Legislative Achievements

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slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery. As to the other constitutional amendment, having reference to suffrage, it happens that these States have not accepted it. The consequence is that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both Houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States. Again, in the machinery of the internal-revenue laws these States are districted, not as “Territories,” but as “States.” So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States. That august tribunal, from first to last, in the administration of its duties in banc and upon the circuit, has never failed to recognize these ten communities as legal States of the Union. The cases depending in that court upon appeal and writ of error from these States when the rebellion began have not been dismissed upon any idea of the cessation of jurisdiction. They were carefully continued from term to term until the rebellion was entirely subdued and peace reestablished, and then they were called for argument and consideration as if no insurrection had intervened. New cases, occurring since the rebellion, have come from these States before that court by writ of error and appeal, and even by original suit, where only “a State” can bring such a suit. These cases are entertained by that tribunal in the exercise of its acknowledged jurisdiction, which could not attach to them if they had come from any political body other than a State of the Union. Finally, in the allotment of their circuits made by the judges at the December term, 1865, every one of these States is put on the same footing of legality with all the other States of the Union. Virginia and North Carolina, being a part of the fourth circuit, are allotted to the Chief Justice. South Carolina, Georgia, Alabama, Mississippi, and Florida constitute the fifth circuit, and are allotted to the late Mr. Justice Wayne. Louisiana, Arkansas, and Texas are allotted to the sixth circuit, as to which there is a vacancy in the bench. The Chief Justice, in the exercise of his circuit duties, has recently held a circuit court in the State of North Carolina. If North Carolina is not a State of this Union, the Chief Justice had no authority to hold a court there, and every order, judgment, and decree rendered by him in that court were coram non judice and void. Another ground on which these reconstruction acts are attempted to be sustained is this: That these ten States are conquered territory; that the constitutional relation in which they stood as States toward the Federal Government prior to 244

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the rebellion has given place to a new relation; that their territory is a conquered country and their citizens a conquered people, and that in this new relation Congress can govern them by military power. A title by conquest stands on clear ground; it is a new title acquired by war; it applies only to territory; for goods or moveable things regularly captured in war are called “booty,” or, if taken by individual soldiers, “plunder.” There is not a foot of the land in any one of these ten States which the United States holds by conquest, save only such lands as did not belong to either of these States or to any individual owner. I mean such lands as did belong to the pretended government called the Confederate States. These lands we may claim to hold by conquest. As to all other land or territory, whether belonging to the States or to individuals the Federal Government has now no more title or right to it than it had before the rebellion. Our own forts, arsenals, navy-yards, custom-houses, and other Federal property situate in those States we now hold, not by title of conquest, but by our old title, acquired by purchase or condemnation for public use, with compensation to former owners. We have not conquered these places, but have simply “repossessed” them. If we require more sites for forts, custom-houses, or other public use, we must acquire the title to them by purchase or appropriation in the regular mode. At this moment the United States, in the acquisition of sites for national cemeteries in these States, acquires title in the same way. The Federal courts sit in court-houses of the States. The United States pays each of these States for the use of its jails. Finally, the United States levies its direct taxes and its internal revenue upon the property in these States, including the production of the lands within their territorial limits, not by way of levy and contribution in the character of a conqueror, but in the regular way of taxation, under the same laws which apply to all the other States of the Union. From first to last, during the rebellion and since, the title of each of these States to the lands and public buildings owned by them has never been disturbed, and not a foot of it has ever been acquired by the United States, even under a title by confiscation, and not a foot of it has ever been taxed under Federal law. In conclusion I must respectfully ask the attention of Congress to the consideration of one more question arising under this bill. It vests in the military commander, subject only to the approval of the general of the Army of the United States, an unlimited power to remove from office any civil or military officer in each of these ten States, and the further power, subject to the same approval, to detail or appoint any military officer or soldier of the United States to perform the duties of the officer so removed, and to fill all vacancies occurring in those States by death, resignation, or otherwise. The military appointee thus required to perform the duties of a civil office according to the laws of the State, and, as such, required to take an oath, is for the time being a civil officer. What is his character? Is he a civil officer of the Legislative Achievements

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State or a civil officer of the United States, where is the Federal power under our Constitution which authorizes his appointment by any Federal officer? If, however, he is to be considered a civil officer of the United States, as his appointment and oath would seem to indicate, where is the authority for his appointment vested by the Constitution? The power of appointment of all officers of the United States, civil or military, where not provided for in the Constitution, is vested in the President, by and with the advice and consent of the Senate, with this exception, that Congress “may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of Departments.” But this bill, if these are to be considered inferior officers within the meaning of the Constitution, does not provide for their appointment by the President alone, or by the courts of law, or by the heads of Departments, but vests the appointment in one subordinate executive officer. So that, if we put this question and fix the character of this military appointee either way, this provision of the bill is equally opposed to the Constitution. Take the case of a soldier or an officer appointed to perform the office of judge in one of these States, and, as such, to administer the proper laws of the State. Where is the authority to be found in the Constitution for vesting in a military or an executive officer strict judicial functions to be exercised under State law? It has been again and again decided by the Supreme Court of the United States that acts of Congress which have attempted to vest executive powers in the judicial courts or judges of the United States are not warranted by the Constitution. If Congress can not clothe a judge with merely executive duties, how can they clothe an officer or soldier of the Army with judicial duties over citizens of the United States who are not in the military or naval service? So, too, it has been repeatedly decided that Congress can not require a State officer, executive or judicial, to perform any duty enjoined upon him by a law of the United States. How, then, can Congress confer power upon an executive officer of the United States to perform such duties in a State? If Congress could not vest in a judge of one of these States any judicial authority under the United States by direct enactment, how can it accomplish the same thing indirectly, by removing the State judge and putting an officer of the United States in his place? To me these considerations are conclusive of the unconstitutionality of this part of the bill now before me, and I earnestly commend their consideration to the deliberate judgment of Congress. Within a period less than a year the legislation of Congress has attempted to strip the executive department of this government of some of its essential powers. The Constitution and the oath provided in it devolve upon the President the power and duty to see the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the power to exercise that constitutional 246

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duty is effectually taken away. The military commander is as to the power of appointment made to take the place of the President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretense of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the Army. If there were no other objection than this to this proposed legislation, it would be sufficient. Whilst I hold the chief executive authority of the United States, whilst the obligation rests upon me to see that all the laws are faithfully executed, I can never give my assent to be responsible for the faithful execution of laws, and at the same time surrender that trust and the powers which accompany it to any other executive officer, high or low, or to any number of executive officers. If this executive trust, vested by the Constitution in the President, is to be taken from him and vested in a subordinate officer, the responsibility will be with Congress in clothing the subordinate with unconstitutional power and with the officer who assumes its exercise. This interference with the constitutional authority of the executive department is an evil that will inevitably sap the foundations of our federal system; but it is not the worst evil of this legislation. It is a great public wrong to take from the President powers conferred on him along by the Constitution, but the wrong is more flagrant and more dangerous when the powers so taken from the President are conferred upon subordinate executive officers, and especially upon military officers. Over nearly one-third of the States of the Union military power, regulated by no fixed law, rules supreme. Each one of the five district commanders, though not chosen by the people or responsible to them, exercises at this hour more executive power, military and civil, than the people have ever been willing to confer upon the head of the executive department, though chosen by and responsible to themselves. The remedy must come from the people themselves. They know what it is and how it is to be applied. At the present time they can not, according to the forms of the Constitution, repeal these laws; they can not remove or control this military despotism. The remedy is, nevertheless, in their hands; it is to be found in the ballot, and is a sure one if not controlled by fraud, overawed by arbitrary power, or, from apathy on their part, too long delayed. With abiding confidence in their patriotism, wisdom, and integrity, I am still hopeful of the future, and that in the end the rod of despotism will be broken, the armed heel of power lifted from the necks of the people, and the principles of a violated Constitution preserved. Andrew Johnson.

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A rticles of I mpeachment P resented against P resident A ndrew Johnson, F ebruary 24, 1868 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors (Washington D.C.: Government Printing Office, 1868), 1:6–10.

In February 1868, Congress made constitutional history when it voted to impeach President Andrew Johnson—the first presidential impeachment in United States history. What in time proved a political and legal calculation, Congress took this extreme step in response to Johnson’s obstruction of Congress’ plans for proceeding with Reconstruction, and because Johnson violated the March 2, 1867, Tenure of Office Act by removing Secretary of War Edwin M. Stanton from his office while installing Major-General Lorenzo Thomas in his place. Because of the president’s actions that supported the defeated South, because Johnson had vetoed each and every significant bill passed by Congress to deal with the status of African American, such as the Civil Rights Act of 1866, and because congressional leaders believed they, and not the president, should establish Reconstruction policy, Congress impeached Johnson. Although the congressional leadership had warned President Johnson not to interfere with Congress regaining the direction of legislative policy as it had done prior to the Civil War, Johnson ignored their advice and obstructed the plans and visions of the large majorities of Republicans in the House and Senate. Better reflecting the sense of the northern and midwestern electorate in the country, Republicans had the political majorities to carry into law any bill vetoed by Johnson, which they regularly did. Regardless of their warnings to Johnson in meetings with him and by passing legislation over his veto, the president continued to resist the policies of Congress; and, when Johnson’s clash with Stanton crescendoed to Stanton’s removal by the chief executive, contrary to the Tenure of Office Act, Congress acted and impeached Johnson. The House Judiciary Committee met and handed down ten articles that outlined the charges against the sitting president. After

a trial in the Senate, the body acquitted Johnson, but by only one vote. Thus, while Johnson may have won the battle of impeachment by not being removed from the office of the president, he lost the political war to set and guide Reconstruction policy. On Monday, February the 24th, 1868, the House of Representatives of the Congress of the United States resolved to impeach Andrew Johnson, President of the United States, of high crimes and misdemeanors, of which the Senate was apprised and arrangements were made for the trial. On Monday the 2d of March, articles of impeachment were agreed upon by the House of Representatives, and on the 4th they were presented to the Senate by the managers on the part of the House, who were accompanied by the House, the grand inquest of the nation, as a Committee of the Whole on the state of the Union. Mr. Bingham, chairman of the managers, read the articles as follows: Articles exhibited by the House of Representatives of the United States, in the name of themselves and all the people of the United States, against Andrew Johnson, President of the United States, in maintenance and support of their impeachment against him for high crimes and misdemeanors in office. Article I. That said Andrew Johnson, President of the United States, on the twentyfirst day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, unmindful of the high duties of his office, of his oath of office, and of the requirement of the Constitution that he should take care that the laws be faithfully executed, did unlawfully and in violation of the Constitution and laws of the United States issue and order in writing for the removal of Edwin M. Stanton from the office of Secretary for the Department of War, said Edwin M. Stanton having been theretofore duly appointed and commissioned, by and with the advice and consent of the Senate of the United States, as such Secretary, and said Andrew Johnson, President of the United States, on the twelfth day of August, in the year of our Lord one thousand eight hundred and sixty-seven, and during the recess of said Senate, having been suspended by his order Edwin M. Stanton from said office, and within twenty days after the first day of the next meeting of said Senate, that is to say, on the twelfth day of December, in the year last aforesaid, having reported to said Senate such suspension, with the evidence and reasons for his action in the case and the name of the person designated to perform the duties of such office temporarily until the next meeting of the Senate, and said Senate thereafterwards, on the thirteenth day of January, in the year of our Lord one thousand eight hundred and sixty-eight, having duly considered the evidence and reasons reported by said Andrew Johnson for said suspension, and having been refused to concur in said 250

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suspension, whereby and by force of the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, said Edwin M. Stanton did forthwith resume the functions of his office, whereof the said Andrew Johnson had then and there due notice, and said Edwin Stanton, by reason of the premises, on said twenty-first day of February, being lawfully entitled to hold said office of Secretary for the Department of War, which said order for the removal of said Edwin M. Stanton is, in substance, as follows, that is to say: Executive M ansion, Washington, D.C., February 21, 1868

Sir: By virtue of the power and authority vested in me, as President by the Constitution and laws of the United States, you are hereby removed from the office of Secretary for the Department of War, and your functions as such will terminate upon receipt of their communication. You will transfer to Brevet Major-General L. Thomas, Adjutant-General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all books, paper and other public property now in your custody and charge. Respectfully yours, Andrew Johnson. To the Hon. E. M. Stanton, Secretary of War Which order was unlawfully issued, and with intent then are there to violate the act entitled “An act regulating the tenure of certain civil office,” passed March second, eighteen hundred and sixty-seven, and with the further intent contrary to the provisions of said act, and in violation thereof, and contrary to the provisions of the Constitution of the United States, and without the advice and consent of the Senate of the United States, the said Senate then and there being in session, to remove said Edwin M. Stanton from the office of Secretary for the Department of War, the said Edwin M. Stanton being then and there Secretary of War, and being then and there in the due and lawful execution of the duties of said office, whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office. Article II. That on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, said Andrew Johnson, President of the United States, unmindful of the high duties of his office, of his oath of office, and in violation of the Constitution of the United States, and contrary to the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, without the advice and consent of the Senate of the United States, Legislative Achievements

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said Senate then and there being in session, and without authority of law, did, with intent to violate the Constitution of the United States and the act aforesaid, issue and deliver to one Lorenzo Thomas a letter of authority, in substance as follows, that is to say: Executive Mansion, Washington, D.C., February 21, 1868

Sir: The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers and other public property now in his custody and charge. Respectfully yours,



Andrew Johnson

To Brevet Major-General Lorenzo Thomas Adjutant General United States Army, Washington, D.C.

Then and there being no vacancy in said office of Secretary for the Department of War: whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office. Article III. That said Andrew Johnson, President of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixtyeight, at Washington in the District of Columbia, did commit, and was guilty of a high misdemeanor in office, in this, that, without authority of law, while the Senate of the United States was then and there in session, he did appoint one Lorenzo Thomas to be Secretary for the Department of War, ad interim, without the advice and consent of the Senate, and with intent to violate the Constitution of the United States, no vacancy having happened in said office of Secretary for the Department of War during the recess of the Senate, and no vacancy existing in said office at the time, and which said appointment so made by Andrew Johnson, of said Lorenzo Thomas is in substance as follows, that is to say: Executive Mansion, Washington, D.C., February 21, 1868

Sir: The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. 252

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Mr. Stanton has been instructed to transfer to you all the records, books, papers and other public property now in his custody and charge. Respectfully yours,



Andrew Johnson

To Brevet Major-General Lorenzo Thomas, Adjutant General United States Army, Washington, D.C.

Article IV. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office, and of his oath of office, in violation of the Constitution and laws of the United States, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons to the House of Representatives unknown, with intent by intimidation and threats unlawfully to hinder and prevent Edwin M. Stanton, then and there, the Secretary for the Department of War, duly appointed under the laws of the United States, from holding said office of Secretary for the Department of War, contrary to and in violation of the Constitution of the United States, and of the provisions of an act entitled “An act to define and punish certain conspiracies,” approved July thirty-first, eighteen hundred and sixty-one, whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of high crime in office. Article V. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the twenty-first of February, in the year of our Lord one thousand eight hundred and sixty-eight, and on divers others days and time in said year before the second day of March, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, and with other persons in the House of Representatives unknown, to prevent and hinder the execution of an act entitled “An act regulating the tenure of certain civil office,” passed March second, eighteen hundred and sixty-seven, and in pursuance of said conspiracy, did attempt to prevent Edwin M. Stanton, then and there being Secretary for the Department of War, duly appointed and commissioned under the laws of the United States, from holding said office, whereby the said Andrew Johnson, President of the United States, did then and there commit and was guilty of high misdemeanor in office. Article VI. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, on the twenty-first day of Legislative Achievements

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February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas, by force to seize, take, and possess the property of the United States in the Department of War, and then and there in the custody and charge of Edwin M. Stanton, Secretary for said Department, contrary to the provisions of an act entitled “An act to define and punish certain conspiracies,” approved July thirty-one, eighteen hundred and sixty-one, and with intent to violate and disregard an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, whereby said Andrew Johnson, President of the United States, did then and there commit a high crime in office. Article VII. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office, and of his oath of office, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully conspire with one Lorenzo Thomas with intent unlawfully to seize, take, and possess the property of the United States in the Department of War, in the custody and charge of Edwin M. Stanton, Secretary of said Department, with intent to violate and disregard the act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, whereby said Andrew Johnson, President of the United States, did then and there commit a high misdemeanor in office. Article VIII. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, did unlawfully and contrary to the provisions of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and in violation of the Constitution of the United States, and without the advice and consent of the Senate of the United States, and while the Senate was then and there in session, there being no vacancy in the office of Secretary for the Department of War, with intent to violate and disregard the act aforesaid, then and there issue and deliver to one Lorenzo Thomas a letter of authority in writing, in substance as follows, that is to say:

Executive Mansion, Washington, D.C., February 21, 1868

Sir: The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empow254

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ered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers and other public property now in his custody and charge. Respectfully yours,



Andrew Johnson

To Brevet Major-General Lorenzo Thomas, Adjutant General United States Army, Washington, D.C.

Whereby said Andrew Johnson, President of the United States, did then and there commit and was guilty of a high misdemeanor in office. Article IX. That said Andrew Johnson, President of the United States, on the twentysecond day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Washington, in the District of Columbia, in disregard of the Constitution and the laws of the United States, duly enacted, as Commanderin-Chief of the Army of the United States, did bring before himself, then and there William H. Emory, a Major-General by brevet in the Army of the United States, actually in command of the department of Washington, and the military forces thereof, and did and there, as such Commander-in-Chief, declare to, and instruct said Emory, that part of a law of the United States, passed March second, eighteen hundred and sixty-seven, entitled “An act for making appropriations for the support of the army for the year ending June thirtieth, eighteen hundred and sixty-eight, and for other purposes,” especially the second section thereof, which provides, among other things, that “all orders and instructions relating to military operations issued by the President or Secretary of War, shall be issued through the General of the Army, and, in case of his inability, through the next in rank,” was unconstitutional, and in contravention of the commission of said Emory, and which said provision of law had been theretofore duly and legally promulgated by general order for the government and direction of the Army of the United States, as the said Andrew Johnson then and there well knew, with intent thereby to induce said Emory, in his official capacity as Commander of the department of Washington, to violate the provisions of said act, and to take and receive, act upon and obey such orders as he, the said Andrew Johnson, might make and give, and which should not be issued through the General of the Army of the United States, according to the provisions of said act, and with the further intent thereby to enable him, the said Andrew Johnson, to prevent the execution of an act entitled “An act regulating the tenure of certain civil offices,” passed March second, eighteen hundred and sixty-seven, and to unlawfully prevent Edwin M. Stanton, then being Secretary for the Department of War, from holding said office and discharging the duties thereof, whereby said Andrew Johnson, President of the Legislative Achievements

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United States, did then and there commit, and was guilty of a high misdemeanor in office. And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles, or other accusation or impeachment against said Andrew Johnson, President of the United States, and also of replying to his answers which he shall make unto the articles herein proffered against him, and of offering proof to the same, and every part thereof, and to all and every other article, accusation, or impeachment which shall be exhibited by them, as the case shall require, DO DEMAND that the said Andrew Johnson may be put to answer the high crimes and misdemeanors in office herein charged against him, and that such proceedings, examinations, trials, and judgments may be thereupon had and given as may be agreeable to law and justice. Article X. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof, (which all officers of the government ought inviolably to preserve and maintain,) and to excite the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly and before divers assemblages of citizens of the United States, convened in divers parts thereof, to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterward, make and declare, with a loud voice certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say: Specification first. In this, that at Washington, in the District of Columbia, in the Executive Mansion, to a committee of citizens who called upon the President of the United States, speaking of and concerning the Congress of the United States, heretofore, to wit: On the eighteenth day of August, in the year of our Lord, one thousand eight hundred and sixty-six, in a loud voice, declare in substance and effect, among other things, that is to say: 256

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“So far as the Executive Department of the government is concerned, the effort has been made to restore the Union, to heal the breach, to pour oil into the wounds which were consequent upon the struggle, and, to speak in a common phrase, to prepare, as the learned and wise physician would, a plaster healing in character and co-extensive with the wound. We thought and we think that we had partially succeeded, but as the work progresses, as reconstruction seemed to be taking place, and the country was becoming reunited, we found a disturbing and moving element opposing it. In alluding to that element it shall go no further than your Convention, and the distinguished gentleman who has delivered the report of the proceedings, I shall make no reference that I do not believe, and the time and the occasion justify. “We have witnessed in one department of the government every endeavor to prevent the restoration of peace, harmony and union. We have seen hanging upon the verge of the government, as it were, a body called or which assumes to be the Congress of the United States, while in fact it is a Congress of only part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of States inevitable. “We have witnessed in one department of the government every endeavor to prevent the restoration of peace, harmony and union. We have seen hanging on the verge of the government, as it were, a body called, or which assumes to be, the Congress of the United States, while, in fact, it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of the State inevitable. * * * We have seen Congress gradually encroach, step by step, upon constitutional rights, and violate day after day, and month after month, fundamental principles of the government. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation. We have seen a Congress in a minority assume to exercise power which, if allowed to be consummated, would result in despotism or monarchy itself.” Specification second. In this, that at Cleveland, in the State of Ohio, heretofore to wit: On the third day of September, in the year of our Lord, one thousand eight hundred and sixty-six, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say: “I will tell you what I did do? I called upon your Congress that is trying to break up the Government.” ************ “In conclusion, beside that Congress had taken much pains to poison the constituents against him, what has Congress done? Have they done anything to restore the union of the States? No: On the contrary, they had done everything Legislative Achievements

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to prevent it: and because he stood now where he did when the rebellion commenced, he had been denounced as a traitor. Who had run greater risks or made greater sacrifices than himself? But Congress, factions and domineering, had undertaken to poison the minds of the American people.” Specification third. In this case, that at St. Louis, in the State of Missouri, heretofore to wit: On the eighth day of September, in the year of our Lord one thousand eight hundred and sixty-six, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of acts concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say: “Go on. Perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do, and if you will go back and ascertain the cause of the riot at New Orleans, perhaps you will not be so prompt in calling out ‘New Orleans.’ If you will take up the riot of New Orleans and trace it back to its source and its immediate cause, you will find out who was responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the Radical Congress, you will find that the riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will understand that they knew that a convention was to be called which was extinct by its powers having expired; that it was said that the intention was that a new government was to be organized, and on the organization of that government the intention was to enfranchise one portion of the population, called the colored population, and who had been emancipated, and at the same time disfranchise white men. When you design to talk about New Orleans you ought to understand what you are talking about. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that convention sat, you will find that speeches were made incendiary in their character, exciting that portion of the population, the black population, to arm themselves and prepare for the shedding of blood. You will also find that convention did assemble in violation of law, and the intention of that convention was to supersede the organized authorities in the State of Louisiana, which had been organized by the government of the United States, and every man engaged in that rebellion, in the convention, with the intention of superseding and upturning the civil government which had been recognized by the Government of the United States, I say that he was a traitor to the Constitution of the United States, and hence you find that another rebellion was commenced, having its origin in the Radical Congress. ************ “So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed, and every drop of blood that was shed is upon their skirts and they are responsible. I could test this thing a little closer, but will not do it here to-night. But when you talk about the causes and consequences that resulted from proceedings of that kind, perhaps, as I have been introduced here and 258

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you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this Radical Congress in connection with New Orleans and the extension of the elective franchise. “I know that I have been traduced and abused. I know it has come in advance of me here, as elsewhere, that I have attempted to exercise an arbitrary power in resisting laws that were intended to be forced upon the government; that I had exercised that power; that I had abandoned the party that elected me, and that I was a traitor, because I exercised the veto power in attempting, and did arrest for a time, that which was called a “Freedmen’s Bureau” bill. Yes, that I was a traitor. And I have been traduced; I have been slandered; I have been maligned; I have been called Judas Iscariot, and all that. Now, my countrymen, here to-night, it is very easy to indulge in epithets; it is easy to call a man a Judas, and cry out traitor, but when he is called upon to give arguments and facts he is very often found wanting. Judas Iscariot? Judas! There was a Judas, and he was one of the twelve Apostles. O, yes, the twelve Apostles had a Christ, and he never could have had a Judas unless he had twelve Apostles. If I have played the Judas who has been my Christ that I have played the Judas with? Was it Thad. Stevens? Was it Wendell Phillips? Was it Charles Sumner? They are the men that stop and compare themselves with the Savior, and everybody that differs with them in opinion, and tries to stay and arrest their diabolical and nefarious policy is to be denounced as a Judas.”

************ “Well, let me say to you, if you will stand by me in this action, if you will stand by me in trying to give the people a fair chance-soldiers and citizens-to participate in these offices. God be willing, I will kick them out. I will kick them out just as fast as I can. “Let me say to you, in concluding, that what I have said is what I intended to say; I was not provoked into this, and care not for their menaces, the taunts and the jeers. I care not for threats, I do not intend to be bullied by enemies, nor overawed by my friends. But, God willing, with your help, I will veto their measures whenever any of them come to me.” Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. Article XI. That the said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, and in disregard of the Constitution and laws of the United States, did, heretofore, to wit, on the eighteenth Legislative Achievements

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day of August, A.D. eighteen hundred and sixty-six, at the city of Washington, and in the District of Columbia, by public speech, declare and affirm in substance, that the Thirty-Ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same; but, on the contrary, was a Congress of only part of the States, thereby denying and intending to deny, that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying the power of the said ThirtyNinth Congress to propose amendments to the Constitution of the United States. And in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterwards, to wit, on the twenty-first day of February, A.D. eighteen hundred and sixty-eight, at the city of Washington, D.C., did, unlawfully and in disregard of the requirements of the Constitution that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled “An act regulating the tenure of certain civil office,” passed March second, eighteen hundred and sixty-seven, by unlawfully devising and contriving and attempting to devise and contrive means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension therefore made by the said Andrew Johnson of said Edwin M. Stanton from said office of Secretary for the Department of War; and also by further unlawfully devising and contriving, and attempting to devise and contrive, means then and there to prevent the execution of an act entitled “An act making appropriations for the support of the army for the fiscal year ending June thirtieth, eighteen hundred and sixty-eight, and for other purposes,” approved March second, eighteen hundred and sixty-seven; and, also, to prevent the execution of an act entitled “An act to provide for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-seven, whereby the said Andrew Johnson, President of the United States, did then, to wit, on the twenty-first day of February, A.D. eighteen hundred and sixty-eight, at the city of Washington, commit and was guilty of a high misdemeanor in office. Attest:

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Schuyler Colfax, Speaker of the House of Representatives. Edward McPherson, Clerk of the House of Representatives.

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R econstruction Act [Fourth], M arch 11, 1868 U.S. Statutes at Large 15:41.

This fourth Reconstruction Act amends and clarifies the previous Reconstruction Acts to make clear who could vote and how those votes were to be counted. Although President Andrew Johnson vetoed the previous three Reconstruction Acts, he did not veto this act; instead, he allowed the bill to become law without his signature. He chose not to veto this act and further irritate Congress because of the ongoing impeachment process that Congress had initiated against him. Chap. XXV.—An Act to amend the Act passed March twenty-third, eighteen hundred and sixty-seven, entitled “An Act supplementary to ‘An Act to provide for the more efficient Government of the rebel States’ passed March second, eighteen hundred and sixtyseven, and to facilitate their Restoration.” Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter any election authorized by the act passed March twenty-three, eighteen hundred and sixty-seven, entitled “An act supplementary to ‘An act to provide for the more efficient government of the rebel States,’ passed March two [second] eighteen hundred and sixty-seven, and to facilitate their restoration,” shall be decided by a majority of the votes actually cast; and at the election in which the question of the adoption or rejection of any constitution is submitted, any person duly registered in the State may vote in the election district where he offers to vote when he has resided therein for ten days next preceding such election, upon presentation of his certificate of registration, his affidavit, or other satisfactory evidence, under such regulations as the district commanders may prescribe. Sec. 2. And be it further enacted, That the constitutional convention of any of the States mentioned in the acts to which this is amendatory may provide that at the time of voting upon the ratification of the constitution the registered voters may vote also for members of the House of Representatives of the United States, and for all elective officers provided for by the said constitution; and the same election officers who shall make the return of the votes cast on the ratification or

rejection of the constitution, shall enumerate and certify the votes cast for members of Congress. Schuyler Colfax Speaker of the House of Representatives. B. F. Wade President of the Senate pro tempore. Indorsed by the President: “Received February 28, 1868.” [Note by the Department of State.—The forgoing act having been presented to the President of the United States for his approval, and not having been returned by him to the House of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval.]

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Fourteenth A mendment, Passed by Congress, June 13, 1866, and R atified July 9, 1868 Known as the “Second Constitution,” the Fourteenth Amendment dealt with immediate issues arising from the era of the Civil War and Reconstruction and, in Section 1, reworked the fundamental political basis of the nation and the balance in federalism between the states and the federal government. Sections 2 through 4 dealt with how to punish the South by diminishing its representation in the Congress and repudiating the so-called Confederate debt. Section 5 is the Constitution’s second enforcement clause authorizing Congress to act to enforce this amendment. Like the enforcement clause of the Thirteenth Amendment, the clause is a broad grant of power to Congress to enforce this amendment. While Sections 2 through 5 met political needs at the time of its drafting and ratification, it is Section 1 that has, over time, come to dominate United States jurisprudence and constitutional theory because of its broad, sweeping language. Building on the language of the Civil Rights Act of 1866, Section 1 made “all persons born or naturalized in the United States” dual citizens: citizens of the nation and citizens of their state. Sentence two of the first section of the Fourteenth Amendment provides the constitutional language that continues to be debated, litigated, discussed, and adjudicated, such as “privileges and immunities,” due process,” “equal protection of the laws,” and “life, liberty, and property.” It is ironic that during ratification of this crucial amendment, members of Congress and state legislators concerned themselves more with the disfranchisement sections of this amendment and the debt clause, but did not stress the broad, suggestive language of Section 1. It is not an exaggeration to argue that the Fourteenth Amendment and the constitutional end of slavery in the Thirteenth Amendment are the most important legislative/constitutional changes that occurred in the era of Abraham Lincoln, the Civil War, and Reconstruction.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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F ifteenth A mendment, Passed by Congress, F ebruary 26, 1869 and R atified F ebruary 3, 1870 Often misunderstood, this amendment granted the vote to no one. All this constitutional amendment did was place a new federal restriction on the states not to deny the vote to persons “on account of race, color, or previous condition of servitude.” The United States Supreme Court agreed in its 1876 decision of United States v. Reese, 92 U.S. 214. In its history, this amendment fit the needs of the Republican Party, which wanted to maintain the loyalty of black voters in the states and the African American community, who believed that this federal amendment would guarantee access to the polls in the states and in their localities. Although those blacks who could vote remained loyal to the Republican Party until the 1930s, southern and Border State localities and states found other political methods to disfranchise the black community, such as literacy tests and poll taxes. Thus, though important as the third of the Reconstruction constitutional amendments, the Fourteenth Amendment has come to overshadow the Fifteenth as well as the Thirteenth Amendment. This Fifteenth Amendment met the needs of that historical moment but over time has not risen to the significance of other amendments. Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2: The Congress shall have power to enforce this article by appropriate legislation.

The Enforcement Act of 1870, M ay 30, 1870 U.S. Statutes at Large 16:140–46.

This act and its companion, the Enforcement Act of April 20, 1871 (the so-called Ku Klux Klan Act), constitute the Force Acts. In 1870 and 1871, some of the western counties of South Carolina descended back into rebellion, and a wave of violence and political repression broke out there, directed at the black population and their white Republican supporters. In response, President Ulysses S. Grant requested and Congress enacted, with Grant’s signature, these Force Acts. This act prohibited all forms of intimidation and threats to rights as a violation of the Fifteenth Amendment. Section 6 of this act made it a federal felony to enter a conspiracy or to appear disguised for the purpose preventing or hindering “his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.” It allowed the president to use the military to enforce this act. Congress passed an extension on February 27, 1871 (U.S. Statutes at Large 16:433-40) that provided federal supervision of voter registration and to prevent voter intimidation. With the use of this statute and the Enforcement Act of April 20, 1871, the federal government crushed the violence in South Carolina and re-established federal law and the public peace in those areas. In United States v. Reese, 92 U.S. 214 (1876), the United States Supreme Court held Sections 5, 10, and 23 unconstitutional because the Fifteenth Amendment did not grant the vote to anyone. Chap. CXIV.—An Act to enforce the Right of the Citizens of the United States to vote in the several States of this Union, and for other Purposes. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That all citizens of the United States who are or shall be otherwise qualified to vote at any election by the people in any State or territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections,

without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or territory, or by or under its authority, to the contrary notwithstanding. Sec. 2. And be it further enacted, That if by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to be become qualified to vote, it shall be the duty of every of every person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to the section, he shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also, for every such offense, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 3. And be it further enacted, That whenever, by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any judge, inspector, or other officer of election whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen upon the presentation by him of his affidavit stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall for every offense forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action of the case, with full costs, and such allowances for counsel fees as the court shall deem just, and shall also for every offense be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. 268

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Sec. 4. And be it further enacted, That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall for every offense forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs and such allowances for counsel fees as the court shall deem just, and shall also for every offense be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 5. And be it further enacted, That if any person shall prevent, hinder, control, or intimidate, or shall attempt to prevent, hinder, control, or intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States, by means of bribery, threats, or threats of depriving such persons of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, such person so offending shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of a felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,— and shall, moreover, be thereafter ineligible to, and disabled from holding, any office, or place of honor, profit, or trust created by the Constitution or the laws of the United States. Sec. 7. And be it further enacted, That if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender, on conviction of such violation of said sections, shall be punished for the same with such punishments as are attached to the said felonies, crimes, and misdemeanors by the laws of the State in which the offense may be committed. Sec. 8. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several Legislative Achievements

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States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, arising under this act, except as herein otherwise provided, and the jurisdiction hereby conferred shall be exercised in conformity with the laws and practice governing United States courts; and all crimes and offenses committed against the provisions of this act may be prosecuted by the indictment of a grand jury, or, in cases of crimes and offenses not infamous, the prosecution may be either by indictment or information filed by the district attorney in a court having jurisdiction. Sec. 9. And be it further enacted, That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, and every other officer who may be specially empowered by the President of the United States, shall be, and are hereby, specifically authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as has cognizance of the offense. And with a view to afford reasonable protection to all persons in their constitutional right to vote without distinction of race, color, or previous condition of servitude, and to the prompt discharge of the duties of this act, it shall be the duty of the circuit courts of the United States, and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of this act; and such commissioners are hereby authorized and required to exercise and discharge all the powers and duties conferred on them by this act, and the same duties with regard to offenses created by this act as they are authorized by law to exercise with regard to other offenses against the laws of the United States. Sec. 10. And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof be fined in the sum of one thousand dollars, to the use of the person deprived of the rights conferred by this act. And the better to enable the said commissioners to execute their duties faithfully and efficiently in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their districts respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties, and the persons so appointed to execute any 270

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warrant or process as aforesaid shall have authority to summon and call to their aid the bystanders or posses comitatus of the proper county, or such portion of the land and naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the fifteenth amendment to the Constitution of the United States; and such warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued. Sec. 11. And be it further enacted, That any person who shall knowingly and willfully obstruct, hinder, or prevent any officer or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer or other person or persons, or those lawfully assisting as aforesaid, when so arrested pursuant to the authority herein given and declared, or shall aid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape from the custody of the officer or other person legally authorized as aforesaid, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued as aforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, shall, for either of said offenses, be subject to a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both, at the discretion of the court, on conviction before the district or circuit court of the United States for the district or circuit in which said offense may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized territories of the United States. Sec. 12. And be it further enacted, That the commissioners, district attorneys, the marshals, their deputies, and the clerks of the said district, circuit, and territorial courts shall be paid for their services the like fees as may be allowed to them for similar services in other cases. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of this act shall be entitled to the usual fees allowed to the marshal for an arrest for each person he or they may arrest and take before any such commissioner as aforesaid, with such other fees as may be deemed reasonable by such commissioner for such additional services as may be necessarily performed by him or them, such as attending at the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention and until the final determination of such commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county as near as may be practicable, and paid out of the treasury of the United States on the certificate of the judge of the district within Legislative Achievements

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which the arrest is made, and to be recoverable from the defendant as part of the judgment in the case of conviction. Sec. 13. And be it further enacted, That it shall be lawful for the President of the United States to employ such part of the land and naval forces of the United States, or of the militia, as shall be necessary to aid the execution of judicial process issued under this act. Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution to the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court. Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall, be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court. Sec. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the 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, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void. Sec. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his 272

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color or race, than is prescribed for the punishment of citizens, shall be deemed guilt of a misdemeanor, and on conviction, shall be punished by fine not to exceed one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Sec. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act. Sec. 19. And be it further enacted, That if at any election for representative or delegate in the Congress of the United States any person shall knowingly personate and vote, or attempt to vote, in the name of any other person, whether living or dead, or fictitious; or vote more than once at the same election for any candidate for the same office; or vote at a place where he may not be lawfully entitled to vote; or vote without having a lawful right to vote; or do any unlawful act to secure a right or an opportunity to vote for himself or any other person; or by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or otherwise unlawfully prevent any qualified voter of any State of the United States of America, or of any Territory thereof, from freely exercising the right of suffrage, or by any such means induce any voter to refuse to exercise such right; or compel or induce by any such means, or otherwise, any officer of an election in any such State or Territory to receive a vote from a person not legally qualified or entitled to vote; or interfere in any manner with any officer of said elections in the discharge of their duties; or by any of such means, or other unlawful means, induce any officer of an election, or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and willfully receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote; or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made a crime, or to omit to do any duty the omission of which is hereby made a crime, or attempt to do so, every such person shall be deemed guilty of a crime, and shall for such crime be liable to prosecution in any court of the United States of competent jurisdiction, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term not exceeding three years, or both, in the discretion of the court, and shall pay the costs of prosecution. Sec. 20. And be it further enacted, That if, at any registration of voters for an election for representative or delegate in the Congress of the United States, any person shall knowingly personate and register, or attempt to register, in the name of any other person, whether living, dead, or fictitious, or fraudulently register, or fraudulently attempt to register, not having a lawful right to do so; or Legislative Achievements

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do any unlawful act to secure registration for himself or any other person; of by force, threat, menace, intimidation, bribery, reward, or offer, or promise thereof, or other unlawful means, prevent or hinder any person having a lawful right to register from duly exercising such right; or compel or induce, by any such means, or other unlawful means, any officer of registration to admit to registration any person not legally entitled thereto, or interfere in any manner with any officer of registration in the discharge of his duties, or by any such means, or other unlawful means, induce any officer to registration to violate or refuse to comply with his duty, or any law regulating the same; or knowingly and willfully receive the vote of any person not entitled to vote, or refuse to receive the vote of any person entitled to vote, or aid, counsel, procure, or advise any such voter, person, or officer to do any act hereby made crime, or to omit any act, the omission of which is hereby made a crime, every such person shall be deemed guilty of a crime, and be liable to prosecution and punishment therefore, as provided in section nineteent of this act for persons guilty of any of the crimes therein specified: Provided, That every registration made under the laws of any State or territory, for any State or other election at which such representative or delegate in Congress shall be chosen, shall be deemed to be a registration within the meaning of this act, notwithstanding the same shall also be made for the purposes of any State, territorial, or municipal election. Sec. 21. And be it further enacted, That whenever by the laws of any State or Territory, the name of any candidate or person to be voted for as representative or delegate in Congress shall be required to be printed, written, or contained in any ticket or ballot with other candidates or persons to be voted for at the same election for State, territorial, municipal, or local officers, it shall be sufficient prima facie evidence, either for the purpose of indicting or convicting any person charged with voting, or attempting or offering to vote, unlawfully under the provisions of the preceding sections, or for committing either of the offenses thereby created, to prove that the person so charged or indicted, voted, or attempted or offered to vote, such ballot or ticket, or committed either of the offenses named in the preceding sections of this act with reference to such ballot. And the proof and establishment of such facts shall be taken, held, and deemed to be presumptive evidence that such person voted, or attempted or offered to vote, for such representative or delegate, as the case may be, or that such offense was committed with reference to the election of such representative or delegate, and shall be sufficient to warrant his conviction, unless it shall be shown that any such ballot, when cast, or attempted or offered to be cast, by him, did not contain the name of any candidate for the office or representative or delegate in the Congress of the United States, or that such offense was not committed with reference to the election of such representative or delegate. Sec. 22. And be it further enacted, That any officer of any election at which any representative or delegate in the Congress of the United States shall be voted 274

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for, whether such officer of election be appointed or created by or under any law or authority for the United States, or by or under any State, territorial, district, or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal, or destroy any certificate of record so required by law respecting, concerning, or pertaining to the lection of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure, or advise any voter, person, or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefore, as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified. Sec. 23. And be it further enacted, That whenever any person shall be defeated or deprived of his election to any office, except elector of President or VicePresident, representative or delegate in Congress, or member of a State legislature, by reason of the denial to any citizen or citizens who shall offer to vote, of the right to vote, on account of race, color, or previous condition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and such person may bring an appropriate suit or proceeding to recover possession of such office, and in cases where it shall appear that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And said circuit or district court shall have, concurrently with the State courts, jurisdiction thereof so far as to determine the right of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of the United States, and secured by this act. Approved, May 31, 1870.

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The Enforcement Act of 1871, A pril 20, 1871 U.S. Statutes at Large 17:13–15.

Popularly called the Ku Klux Klan Act of 1871 (perhaps more accurately, it ought to be called the Anti–Ku Klux Klan Act), this second and most important of the Force Acts of 1870 and 1871 is also an act that federal prosecutors continue to use. Section 2 provides federal authorities the power to act to prosecute actions denying the rights of U.S. citizens. Since the 1868 Fourteenth Amendment, United States citizens possess dual citizenship— citizenship of their state and citizenship of the nation. Those two citizenships are not identical, and it might be possible for states to act (or not act) in a fashion that denies or abridges a person’s rights or privileges as a U.S. citizen. This act provides the federal government the abilities to prosecute persons who deny individuals their rights as national citizens. And, as the second sentence of Section 2 makes clear, any person whose federal rights have been abridged can seek a remedy for the denial of civil rights in the federal courts. Although the immediate cause of this statute was the outbreak of violence in the western counties of South Carolina against the black and Unionist populations, this section has proven useful to federal prosecutors in more recent times. Now located in 42 U.S.C.A. §1983, §1983, prosecutions usually occur when a state proceeding has occurred and resulted in an acquittal of a crime; but, the individual has still sustained an injury so that the same action can be prosecuted in federal courts as a denial of civil rights. To use a famous example from the 1990s, the police officers videotaped beating Rodney King in California were tried in state court for the assault, and found innocent. The local federal prosecutor then brought a §1983 prosecution against them for denying King his civil right not to be beaten; the federal jury found the officers guilty of denying him his civil rights. Thus, this Reconstruction statute casts a long shadow in United States history and culture and continues to find use into the twenty-first century.

Chap. XXII.—An Act to enforce the provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceedings to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provision of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect persons in the United States in their civil rights, and to furnish the means of their vindication”; and other remedial laws of the United States which are in their nature applicable in such cases. Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, of by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or by force, intimidate, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such a juror, or shall conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any 278

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person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of Congress of the United States, or injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime, and upon conviction thereof in any district or supreme court of any Territory of the United States having jurisdiction of similar offenses, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of the conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain and action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and all other remedies provided in like cases in such courts under the provisions of the act of April 9, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.” Sec. 3. That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State ofany of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, Legislative Achievements

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or whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the United States or the due execution thereof, or impede or obstruct the due course of justice under the same, it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppression of such insurrection, domestic violence, or combination; and any person who shall be arrested under the provisions of this act and the preceding section shall be delivered to the marshal of the proper district, to be dealt with according to law. Sec. 4. That whenever in any State or part of a State the unlawful combinations named in the preceding section of this act shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State, and of the United States within each State, or when the constituted authorities are in complicity with, or shall connive at the unlawful purposes of, such powerful and armed combinations; and whenever, by reason of either or all of the causes aforesaid, the conviction of such offenders and the preservation of the public safety shall become in such district impracticable, in every such case such combination shall be deemed a rebellion against the government of the United States, and during the continuance of the such rebellion, and within the limits of the district which shall be so under the sway thereof, such limits to be prescribed by proclamation, it shall be lawful for the President of the United States, when in his judgment the public safety shall require it, to suspend the privileges of the writ of habeas corpus, to the end that such rebellion may be overthrown: Provided, That all the provisions of the second section of an act entitled “An act relating to habeas corpus, and regulating judicial proceedings in certain cases,” approved March third, eighteen hundred and sixty-three, which relate to the discharge of prisoners other than prisoners of war, and to the penalty for refusing to obey the order of the court, shall be in full force so far as the same are applicable to the provisions of this section: Provided further, That the President shall first have made proclamation, as now provided by law, commanding such insurgents to disperse: And provided also, That the provisions of this section shall not be in force after the end of the next regular session of Congress. Sec. 5. That no person shall be a grand or petit juror in any court of the United States upon any inquiry, hearing, or trial of any suit, proceeding, or prosecution based upon or arising under the provisions of this act who shall, in the judgment of the court, be in complicity with any such combination or conspiracy; and every such juror shall, before entering upon any such inquiry, hearing, or trial, take and subscribe an oath in open court that he has never, directly or indirectly, counseled, advised, or voluntarily aided any such combination or conspiracy; and each and every person who shall take this oath, and shall therein swear falsely, shall be guilty of perjury, and shall be subject to the pains and penalties declared 280

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against that crime, and the first section of the act entitled, “An Act defining additional causes of challenge and prescribing an additional oath for grand jurors in the United States courts,” approved June seventeenth, eighteen hundred and sixty-two, be, and the same is hereby, repealed. Sec. 6. That any person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse so to do, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, for all damages caused by any such wrongful act which such first-named person or persons by reasonable diligence could have prevented; and such damages may be recovered in an action on the case in the proper circuit court of the United States, and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in such action: Provided, That such action shall be commenced within one year after such cause of action shall have accrued; and if the death of any person shall be caused by any such wrongful act and neglect, the legal representatives of such deceased person shall have such action therefor, and may recover not exceeding five thousand dollars damages therein, for the benefit of the widow of such deceased person, if any there be, or if there be no widow, for the benefit of the next of kin of such deceased person. Sec. 7. That nothing herein contained shall be construed to supersede or repeal any former act or law except so far as the same may be repugnant thereto; and any offenses heretofore committed against the tenor of any former act shall be prosecuted, and any proceeding already commenced for the prosecution thereof shall be continued and completed, the same as if this act had not been passed, except so far as the provisions of this act may go to sustain and validate such proceedings. Approved, April 20, 1871.

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Civil R ights Act, M arch 1, 1875 U.S. Statutes at Large 18:335–37.

On March 11, 1874, the senior senator from Massachusetts and longtime abolitionist and civil rights supporter Charles Sumner died. He had long sought the passage of a national civil rights act that prohibited discrimination on race, color, or condition of previous servitude in public accommodations such as railroads, steamboats, hotels, and restaurants. In March 1875 Congress passed, and President Ulysses S. Grant signed, the Civil Rights Act of 1875 in honor of Sumner. At the time, legislators and the president questioned its constitutionality because it prohibited private discriminations by property owners on their own railroads or public accommodations, but they left the final determination of the statute’s status to the federal courts. Not unexpectedly, in the Civil Rights Cases, 109 U.S. 3 (1883), the United States Supreme Court found the 1875 Civil Rights Act unconstitutional, asserting that the federal government did not have the power to prevent discrimination by private persons, only discriminations undertaken by the states or by officers of the states acting under color of law. This act constitutes Congress’ last Reconstruction statute and Congress’ last civil rights act passed until 1957. Chap. CXIV.—An Act to Protect All Citizens in Their Civil and Legal Rights. Whereas it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the

conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid or to proceed under their rights at common law and State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively. Sec. 3. That the district and circuit courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses against, and violations of, the provisions of this act; and actions for the penalty given by the preceding section may be prosecuted in the territorial, district, or circuit courts of the United States wherever the defendant may be found, without regard to the other party; and the district attorneys, marshals, and deputy marshals of the United States, and commissioners appointed by the circuit and territorial courts of the United States, with the powers of arresting and imprisoning or bailing offenders against the laws of the United States, are hereby specially authorized and required to institute proceedings against every person who shall violate the provisions of this act, and cause him to be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States or territorial court, as by law has cognizance of the offense, except in respect of the right of action accruing to the person aggrieved; and such district attorneys shall cause such proceedings to be prosecuted to their termination as in other cases: Provided, That nothing contained in this section shall be construed to deny or defeat any right of civil action accruing to any person, whether by reason of this act or otherwise; and any district attorney who shall willfully fail to institute and prosecute the proceedings herein required, shall, for every offense, forfeit and pay the sum of five hundred dollars to every person aggrieved thereby, to be recovered by an action of debt, with full costs, and shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than one thousand nor more than five thousand dollars: And provided further, That a judgment for the penalty in 284

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favor of the party aggrieved against any such district attorney, or a judgment upon an indictment against any such district attorney, shall be a bar to either prosecution respectively. Sec. 4. That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars. Sec. 5. That all cases arising under the provisions of this act in the courts of the United States shall be renewable by the Supreme Court of the United States, without regard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court. Approved, March 1, 1875.

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Congressional Elector al Commission Act, January 29, 1877 U.S. Statutes at Large 19:227–29.

This extraordinary piece of legislation met the needs of an extraordinary time and situation. The presidential election of 1876 resulted in a constitutional and political crisis because the speaker of the House received contradictory sets of electoral votes from the states of South Carolina, Louisiana, and Florida and an issue regarding a disputed elector in Oregon. Those states had two legislatures meeting: one, a legislature that Congress had established under the Reconstruction Acts that returned electoral votes in favor of the Republican candidate, Rutherford B. Hayes of Ohio; and a second, redeemed, legislature of previously disfranchised voters who represented the white majorities in those states who sent their electoral votes in support of the Democratic Party candidate, Samuel Tilden of New York. Tilden won a majority of the popular vote, but he lacked one vote in the Electoral College to win the presidency. These two sets of electoral votes presented a problem because the 1787 Constitution states in Article 2, paragraph 3, only that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall be counted.” But, the Democrats who controlled the House of Representatives objected to this procedure, arguing that the Republican president of the Senate would ignore the set of certificates that favored their candidate. They argued that no objections should be allowed unless both bodies concurred in the objection. Their insistence resulted in stopping the counting of all of the electoral votes and started the search for a compromise. This act constitutes that compromise. Congress established a special and extra-constitutional committee—an Electoral Commission. It was composed of five members of the House of Representatives, five members of the Senate, and five associate justices of the United States Supreme Court. Congress tasked these fifteen persons to review the electoral votes from the disputed states

and Oregon’s issue and decide which set of state electoral votes to award to which candidate, thus deciding the 1876 presidential election. Tilden needed to receive just one of the twenty votes in dispute to receive the requisite number of electoral votes to be elected, while Hayes needed to receive all twenty of the disputed electoral votes. But the structural make-up of the Electoral Commission mattered little; what did matter was the party affiliation of those who sat on the commission. As first constituted, the commission contained seven Democrats, seven Republicans, and one political independent—Associate Justice David Davis. But, in late January 1877, just as the commission was being appointed, the Illinois state legislature elected Davis to the United States Senate. He resigned his seat from the United States Supreme Court so he could become Illinois’ senator. In his place, the four associate justices already serving on the commission appointed an associate justice known for his independence who was also a Republican—Associate Justice Joseph P. Bradley. His presence proved crucial, for when the commission reached the point of awarding the disputed electoral votes, it split along party lines—all of the disputed electoral votes went to the Republican Hayes on a commission vote of eight to seven. As a result, on March 2, 1877, Congress declared that Hayes had won the electoral vote and on March 5, Rutherford B. Hayes became president of the United States. This statute represents a creative piece of legislative compromise in a time of political crisis. Chap. 37—An act to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon, for the term commencing March fourth, anno Domini eighteen hundred and seventy-seven. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Senate and House of Representatives shall meet in the hall of the House of Representatives, at the hour of one o’clock post meridian, on the first Thursday in February, anno Domini eighteen hundred and seventy-seven; and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates, and papers purporting to be certificates, of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers having then read the same in the presence and hearing of the two houses shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted as 288

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in this act provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, and the names of the persons, if any, elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice President of the United States, and, together with a list of the votes, be entered on the journals of the two houses. Upon such reading of any such certificate or paper when there shall be only one return from a State, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw and such objections shall be submitted to the Senate for its decision, and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision, and no electoral vote or votes from any State from which but one return has been received shall be rejected except by the affirmative vote of the two houses. When the two houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the question submitted. Section 2. That if more than one return, or paper purporting to be a return from a State, shall have been received by the President of the Senate, purporting to be the certificates of electoral votes given at the last preceding election for President and Vice President in such State (unless they shall be duplicates of the same return,) all such returns and papers shall be opened by him in the presence of the two houses when met as aforesaid, and read by the tellers, and all such returns and papers shall thereupon be submitted to the judgment and decision as to which is the true and lawful electoral vote of such State, of a commission constituted as follows, namely: During the session of each house on the Tuesday next preceding the first Thursday in February, eighteen hundred and seventy-seven each house shall, by viva voce vote, appoint five of its members who with the five associate justices of the Supreme Court of the United States, to be ascertained as hereinafter provided, shall constitute a commission for the decision of all questions upon or in respect of such double returns named in this section. On the Tuesday next preceding the first Thursday in February, anno Domini eighteen hundred and seventy-seven, or as soon thereafter as may be, the associate justices of the Supreme Court of the United States now assigned to the first, third, eighth, and ninth circuits shall select, in such manner as a majority of them shall deem fit, another of the associate justices of said court, which five persons shall be members of said commission, and the person longest in commission of said five justices shall be the president of said commission. The members of said commission shall respectively take and subscribe the following oath: “I,_____ ____ , do solemnly swear (or affirm, as the case may be) that I will impartially examine and Legislative Achievements

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consider all questions submitted to the commission of which I am a member, and a true judgment give thereon, agreeably to the Constitution and the laws: so help me God,” which oath shall be filed with the Secretary of the Senate. When the commission shall have been thus organized, it shall not be in the power of either house to dissolve the same, or to withdraw any of its members; but if any such Senator or member shall die or become physically unable to perform the duties required by this act, the fact of such death or physical inability shall be by said commission, before it shall proceed further, communicated to the Senate or House of Representatives, as the case may be, which body shall immediately and without debate proceed by viva voce vote to fill the place so vacated, and the person so appointed shall take and subscribe the oath hereinbefore prescribed, and become a member of said commission, and, in like manner, if any of said justices of the Supreme Court shall die or become physically incapable of performing the duties required by this act, the other of said justices, members of the said commission, shall immediately appoint another justice of said court a member of said commission and, in such appointments, regard shall be had to the impartiality and freedom from bias sought by the original appointments to said commission, who shall thereupon immediately take and subscribe the oath hereinbefore prescribed, and become a member of said commission to fill the vacancy so occasioned. All the certificates and papers purporting to be certificates of the electoral votes of each State shall be opened, in the alphabetical order of the States as provided in section one of this act; and when there shall be more than one such certificate or paper, as the certificate and papers from such State shall so be opened, (excepting duplicates of the same return,) they shall be read by the tellers, and thereupon the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one member of the House of Representatives before the same shall be received. When all such objections so made to any certificate, vote, or paper from a State shall have been received and read, all such certificates, votes, and papers so objected to, and all papers accompanying the same, together with such objections, shall be forthwith submitted to said commission, which shall proceed to consider the same, with the same powers, if any, now possessed for that purpose by the two houses acting separately or together, and, by a majority of votes, decide whether any and what votes from such State are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State, and, may therein take into view such petitions, depositions, and other papers, if any, as shall, by the Constitution and now existing law, be competent and pertinent in such consideration; which decision shall be made in writing, stating briefly the ground thereof, and signed by the members of said commission agreeing therein; whereupon the two houses shall again meet, and such decision shall be read and entered in the journal of each house, and the counting of the 290

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votes shall proceed in conformity therewith, unless, upon objection made thereto in writing by at least five Senators and five members of the House of Representatives, the two houses shall separately concur in ordering otherwise, in which case such concurrent order shall govern. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of. Sec. 3. That while the two houses shall be in meeting, as provided in this act, no debate shall be allowed and no question shall be put by the presiding officer, except to either house on a motion to withdraw, and he shall have power to preserve order. Sec. 4. That when the two houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or upon objection to a report of said commission, or other question arising under this act, each Senator and Representative may speak to such objection or question ten minutes, and not oftener than once; but after such debate shall have lasted two hours, it shall be the duty of each house to put the main question without further debate. Sec. 5. That at such joint meeting of the two houses, seats shall be provided as follows: For the President of the Senate, the Speaker’s chair; for the Speaker, immediately upon his left; the Senators in the body of the hall upon the right of the presiding officer; for the Representatives, in the body of the hall not provided for the Senators, for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk’s desk; for the other officers of the two houses, in front of the Clerk’s desk and upon each side of the Speaker’s platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this act, in which case it shall be competent for either house, acting separately, in the manner hereinbefore provided, to direct a recess of such house not beyond the next day, Sunday excepted, at the hour of ten o’clock in the forenoon. And while any question is being considered by said commission, either house may proceed with its legislative or other business. Sec. 6. That nothing in this act shall be held to impair or affect any right now existing under the Constitution and laws to question by proceeding in the judicial courts of the United States, the right or title of the person who shall be declared elected or who shall claim to be President or Vice President of the United States, if any such right exists. Sec. 7. That said commission shall make its own rules, keep a record of its proceedings, and shall have power to employ such persons as may be necessary for the transaction of its business and the execution of its powers. Approved, January 29, 1877.

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Posse Comitatus Act, June 18, 1878 U.S. Statutes at Large 20:145, 152.

Now amended to include the United States Air Force and currently found in the United States Code Annotated at 18 U.S.C.A.§1385, this statute forms the basis of the tradition of prohibiting the use of the military forces within the United States in essentially police activities. This tradition can be traced back to the English experience and, in recent times, using the military within the boundaries of the country has become an issue once again since the 2001 terrorist attacks. At the time of its enactment, the purpose of Section 15 was to prevent the federal marshals from calling on the military to help the marshals enforce Reconstruction statutes and requirements within southern states. Because the Posse Comitatus Act was a rider attached to the 1878 Army Appropriations Act, parts of this statute have been reproduced here to provide a sense of the entire act. Like any appropriations act, the statute specified the pay of the military grade of enlisted personnel, the costs of telegrams, quartermaster rules, and appropriations for the purchase of horses, quarters, uniforms, military hospitals, and cemeteries, to mention just a few of the details. Another rider, Section 14, deals with a joint committee to investigate reassigning the Indian Bureau, and Section 15 is the Posse Comitatus Act. Chap. 263.—An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, for the support of the Army, for the year ending June thirtieth, eighteen hundred and seventy-nine, as follows:

For expenses of the commanding general’s office, two thousand five hundred dollars. For expenses of recruiting and transportation of recruits, seventy-five thousand dollars. And no money appropriated by this act shall be paid for recruiting the Army beyond the number of twenty-five thousand enlisted men, including Indian scouts and hospital-stewards. Nothing, however, in this act shall be construed to prevent enlistments for the Signal Service, which shall hereafter be maintained as now organized and as provided by law, with a force of enlisted men not exceeding four hundred and fifty, after present terms of enlistment have expired. For contingent expenses of the Adjutant-General’s Department at the headquarters of military divisions and departments, three thousand dollars. For expenses of the Signal Service of the Army, purchase, equipment, and repair of electric field-telegraphs and signal-equipments, ten thousand five hundred dollars. . . . Sec. 14. That three Senators to be appointed by the President of the Senate, and five Representatives, to be appointed by the Speaker of the House, are hereby constituted a joint committee who shall take into consideration the expediency of transferring the Indian Bureau to the War Department. Said committee shall be authorized to send for persons and papers, to employ a clerk and stenographer and to sit during the recess of Congress. It shall be the duty of said committee to make final report to Congress on or before the first day of January eighteen hundred and seventy-nine. And the sum of five thousand dollars, or so much thereof as may be necessary is hereby appropriated out of any money in the Treasury not otherwise appropriated, to de fray the expenses of said committee, to be expended under the direction of the chairman thereof. Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by an act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment. Sec. 16. That all acts and parts of acts inconsistent with the provisions of this act be, and they are hereby, repealed. Approved, June 18, 1878.

294

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Chronology 1850

Fugitive Slave Act, September 18, 1850

1854

Kansas-Nebraska Act, May 30, 1854

1856

American (Know-Nothing) Party Platform, February 21, 1856 Democratic Party Platform, June 2, 1856 Republican Party Platform, June 18, 1856

1857

Dred Scott v. Sanford, 19 Howard (60 U.S.) 393 (1857), March 5, 1857

1858

Lincoln’s House Divided Speech, June 16, 1858

1859

Ableman v. Booth, 21 How. (62 U.S.) 506 (1859), March 2, 1859 Virginia Indictment of John Brown, October 16, 1859

1860

Abraham Lincoln, Cooper Union Speech, February 27, 1860 Lemmon v. People, 20 NY 562 (1860), March 1860 Frederick Douglass, The American Constitution and the Slave, March 26, 1860 Constitutional Union Party Platform, May 8, 1860 Republican Party Platform, May 17, 1860 Democratic Party Platform (Douglas Faction), June 18, 1860 Democratic Party Platform (Breckinridge Faction) , June 18, 1860 Attorney General Jeremiah Black on Secession, November 20, 1860

Crittenden Compromise, December 18, 1860 South Carolina Ordinance of Secession, December 20, 1860

1861

Alabama Ordinance of Secession, January 11, 1861 Georgia Ordinance of Secession, January 19, 1861 President James Buchanan, State of the Union, January 29, 1861 Inauguration Speech of Jefferson Davis, February 22, 1861 Proposed 13th Amendment of 1860, March 2, 1861 First Inaugural of Abraham Lincoln, March 4, 1861 Lincoln’s Presidential Order of April 15, 1861 Lincoln’s Proclamation of Blockade and Jefferson Davis’s Proclamation of Marque, April 19, 1861 R. E. Lee’s resignation from the U.S. Army, April 20, 1861 Jefferson Davis, Message to Congress: “Our Cause is Just and Holy,” April 29, 1861 Ex parte Merryman, 17 Fed. Cas. 144, Case # 9,487 (1861), April 1861 Kentucky Resolution of Neutrality and Governor’s Statement, May 16, 1861. Lincoln’s Special Message to Congress, “A People’s Contest,” July 4, 1861 Crittenden-Johnson Resolutions, July 22/23, 1861 General Benjamin Butler on “Contraband,” July 30, 1861 Seditious Conspiracy Act, July 31, 1861 First Confiscation Act, August 6, 1861 General John C. Fremont’s martial law/emancipation policy, August 30, 1861 Karl Marx on the Civil War, October 11, 1861

1862

Thaddeus Stevens’s Speech on Emancipation, January 22, 1862 Abolishment of Slavery in the District of Columbia Act, April 16, 1862 Confederate Conscription Act, April 17, 1862 Homestead Act, May 20, 1862 Pacific Railroad Act, July 1, 1862 Morrill Land Grant Act, July 2, 1862 Non-Issued Lincoln Veto to Second Confiscation Act, July 12, 1862 Supplement, Abolishment of Slavery in the District of Columbia Act, July 12, 1862 Judiciary Act, July 15, 1862 Militia Act, July 17, 1862 296

Documentary History of the American Civil War Era

Second Confiscation Act, July 17, 1862 Supplement to Second Confiscation Act, July 17, 1862 Lincoln to Greeley, “I would save the Union,” August 22, 1862 Preliminary Emancipation Proclamation, September 22, 1862 Confederate Conscription Act, “Twenty Slave” Amendment, October 11, 1862 President Lincoln’s Message to Congress, December 1, 1862 West Virginia Act, December 31, 1862

1863

Emancipation Proclamation, January 1, 1863 National Banking Act, February 25, 1863 Federal Conscription Act of March 3, 1863 Habeas Corpus Act, March 3, 1863 Prize Cases, 2 Black (67 U.S.) 635 (1863), March 10, 1863 General Order 100, Lieber Code, April 23, 1863 Grant to Lincoln on use of African-American troops, August 23, 1863 Lincoln’s 10% Plan, December 8, 1863

1864

Gelpke v. City of Dubuque, 1 Wallace (68 U.S.) 175 (1864), January 11, 1864 Ex parte Vallandigham, 1 Wallace (68 U.S.) 243 (1864), February 15, 1864 Republican (National Union) Party Platform, June 8, 1864 Wade/Davis Plan of July 2, 1864 Pocket Veto and Wade/Davis Manifesto, August 5, 1864 Grant on Reconstruction, August 16, 1864 Democratic Party Platform, August 29, 1864 Lincoln to Sherman, ‘Needs Soldier Vote,’ September 19, 1864

1865

Freedmen’s Bureau Act, March 3, 1865 Lincoln’s Second Inaugural, March 4, 1865 Attorney General James Speed, Opinion on Lincoln Murder Trial, April 28, 1865 President Johnson’s Proclamation of Amnesty, May 29, 1865 President Johnson’s Proclamation of Concerning the Government of North Carolina, May 29, 1865 Attorney General James Speed, Extended Opinion on Lincoln Murder Trial, July —, 1865 Chronology

297

Thaddeus Stevens, September 9, 1865, Lancaster Speech Thirteenth Amendment, December 6, 1865 Thaddeus Stevens, Reconstruction, December 18, 1865 Grant Southern Tour Report, December 18, 1865

1866

U.S. v. Rhodes, 27 Fed. Cas. 785, Case # 16,151 (1866), 1866 President Johnson’s veto of Freedmen’s Bureau Act, February 19, 1866 President Johnson’s Veto of Civil Rights Act of March 27, 1866 Ex parte Milligan, 4 Wallace (71 U.S.) 2 (1866), April 3, 1866 Civil Rights Act of April 9, 1866 Freedmen’s Bureau Act, July 16, 1866 President Johnson’s Veto of Freedman’s Bureau Act, July 16, 1866 Judicial Circuits Act, July 23, 1866 Union Party Convention, August 7, 1866 Republican National Convention, September 3, 1866.

1867

Cummings v. Missouri, 4 Wallace (71 U.S.) 277 (1867), January 14, 1867 Ex parte Garland, 4 Wallace (71 U.S.) 333 (1867), January 14, 1867 Habeas Corpus Act, February 5, 1867 [First] Reconstruction Act, March 2, 1867 President Johnson’s Veto of [First] Reconstruction Act, March 2, 1867 Tenure of Office Act, March 2, 1867 President Johnson’s Veto of Tenure of Office Act, March 2, 1867 Anti-Peonage Act of March 2, 1867 [Second] Reconstruction Act, March 23, 1867 President Johnson’s Veto of the [Second] Reconstruction Act, March 23, 1867 West Chester and Philadelphia Railroad Co. v. Miles, 55 Pa. 209 (1867), April 1, 1867 [Third] Reconstruction Act, July 19, 1867 President Johnson’s Veto of the Third Reconstruction Act, July 19, 1867

1868

Georgia v. Stanton, 6 Wallace (73 U.S.) 50 (1867), February 10, 1868 Articles of Impeachment of President Andrew Johnson, February 24, 1868 [Fourth] Reconstruction Act, March 11, 1868

298

Documentary History of the American Civil War Era

Republican Party Platform, May 20, 1868 Democratic Party Platform, July 4, 1868 Fourteenth Amendment, July 9, 1868

1869

Grant’s First Inaugural, March 4, 1869 Texas v. White, 7 Wallace (74 U.S.) 700 (1869), April 12, 1869 Ex parte McCardle, 7 Wallace (74 U.S.) 506 (1869), April 12, 1869 Ex parte Yerger, 8 Wallace (75 U.S.) 85 (1869), December 1869

1870

Fifteenth Amendment, February 3, 1870 Hepburn v. Griswold, 8 Wallace (75 U.S.) 603 (1870), February 7, 1870 Enforcement Acts of May 30, 1870

1871

Enforcement Act of April 20, 1871 Second Legal Tender Cases, 12 Wallace (79 U.S.) 457 (1871), May 1, 1871 Virginia v. West Virginia, 11 Wallace (78 U.S.) 39 (1871), December 1871 Blyew v. U.S., 13 Wallace (80 U.S.) 581 (1872), December 1871

1872

Liberal Republican Platform, May 2, 1872 Republican Party Platform, June 5, 1872 Democratic Party Platform, June 9, 1872

1873

Grant’s Second Inaugural, March 4, 1873 Slaughterhouse Cases, 16 Wallace (83 U.S.) 36 (1873), April 14, 1873 Bradwell v. Illinois, 16 Wallace (83 U.S.) 130 (1873), April 15, 1873 Civil Rights Act of March 1, 1875

1875 1876

U.S. v. Cruikshank, 92 U.S. 542 (1876), March 27, 1876 U.S. v. Reese, 92 U.S. 214 (1876), March 27, 1876 Republican Party Platform, June 14, 1876 Democratic Party Platform, June 22, 1876

Chronology

299

1877

Congressional Electoral Commission, January 29, 1877 Hayes Inaugural, March 5, 1877

1878

Hall v. DeCuir, 95 U.S. 485 (1878), January 14, 1878 Posse Commitatus Act of June 18, 1878

1883

U.S. v. Harris, 106 U.S. 629 (1883), January 22, 1883 Civil Rights Cases, 109 U.S. 3 (1883), October 15, 1883

1896

Plessy v. Ferguson, 163 U.S. 537 (1896), May 18, 1896

300

Documentary History of the American Civil War Era

Selected R eadings Baker, Jean. James Buchanan. Times Books, 2004.

Belz, Herman. A New Birth of Freedom: The Republican Party and Freedman’s Rights, 1861–1866. Westport, CN.: Greenwood Press, 1976.

———. Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era. New York: W.W. Norton, 1978.

———. Reconstructing the Union: Theory and Policy during the Civil War. Ithaca, NY.: Cornell University Press, 1969.

Benedict, Michael Les. A Compromise of Principle: Congressional Republicans and Reconstruction. New York: W.W. Norton, 1974.

———, The Impeachment and Trial of Andrew Johnson. New York: W.W. Norton, 1999. ———, The Fruits of Victory: Alternatives in Restoring the Union, 1865–1877. Lanham: University Press of America, 1986.

Bentley, George R. A History of the Freedman’s Bureau. Philadelphia: University of Pennsylvania, 1955. Bogue, Allen G. The Congressman’s Civil War. New York: Cambridge University Press, 1989.

———. The Earnest Men: Republicans of the Civil War Senate. Ithaca, NY.: Cornell University Press, 1981.

Brodie, Fawn N. Thaddeus Stevens: Scourge of the South. New York: W.W. Norton & Co., 1959.

Burlingame, Michael. Abraham Lincoln: A Life, 2 Vols. Baltimore, MD.: The Johns Hopkins University Press, 2008. Burton, Orville Vernon. The Age of Lincoln. New York: Hill & Wang, 2007.

Carnahan, Burrus M. Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War. Lexington: University Press of Kentucky, 2007. ———. Lincoln on Trial: Southern Civilians and the Law of War. Lexington: University Press of Kentucky, 2010.

Carter, Dan. When the War Was Over: The Failure of Self-Reconstruction in the South, 1865–1867. Baton Rouge: Louisiana State University Press, 1985.

Carwardine, Richard. Lincoln: A Life of Purpose and Power. New York: Knopf, 2006.

Castle, Albert. The Presidency of Andrew Johnson. Lawrence: Regents Press of Kansas, 1979.

Cooper, Jr., William J. Jefferson Davis, American. New York: Knopf, 2000.

Cox, LaWanda. Lincoln and Black Freedom: A Study in Presidential Leadership. Columbia: University of South Carolina Press, 1981.

Cox, LaWanda, and John Cox. Politics, Principle, and Prejudice, 1865–1866: The Dilemma of Reconstruction America. New York: Free Press of Glencoe, 1963. Currie, David P. Constitution in Congress: Descent into the Maelstrom, 1829–1861. Chicago: University of Chicago Press, 2005.

———. Constitution in the Supreme Court: The First Hundred Years, 1789–1888. Chicago: University of Chicago Press, 1985. Curry, Leonard P. Blueprint for Modern America: Non-Military Legislation of the First Civil War Congress. Nashville, TN.: Vanderbilt University Press, 1968.

Curtis, Michael Kent. No State Shall Abridge: The 14th Amendment and the Bill of Rights. Durham, NC.: Duke University Press, 1986.

Dollar, Kent T., Larry H. Whiteaker, and W. Calvin Dickinson, eds. Sister States, Enemy States: The Civil War in Kentucky and Tennessee. Lexington: University Press of Kentucky, 2009.

Donald, David Herbert. Civil War and Reconstruction. New York: W.W. Norton, 2001.

———, ed. Inside Lincoln’s Cabinet: The Civil War Diaries of Salmon P. Chase. New York: Longmans, Green and Co, 1954.

———. Liberty and Union: The Crisis of Popular Government, 1830–1890. Boston: Little, Brown and Co., 1978. ———. Lincoln. New York: Simon and Schuster, 1995.

———. Lincoln’s Herndon. New York: Alfred A. Knopf, Inc., 2007.

———. Politics of Reconstruction, 1863–1867. Cambridge: Harvard University Press, 1984. Epps, Garrett. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America. New York: Henry Holt, 2006.

Ehrlich, Walter. They Have No Rights: Dred Scott’s Struggle for Freedom. Westport, CN.: Greenwood Press, 1979.

Eicher, David J. The Civil War in Books: An Analytical Bibliography. Urbana: University of Illinois Press, 1997.

Fairman, Charles. Reconstruction and Reunion, 1864-1888: Part One. New York: Macmillin, 1971.

Farber, Daniel. Lincoln’s Constitution. Chicago: University of Chicago Press, 2003.

Fehrenbacher, Don E. The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press, 1978. ———. Prelude to Greatness: Lincoln in the 1850s. Stanford, CA.: Stanford University Press, 1962. Ferrell, Claudine L. Reconstruction. Westport, CN.: Greenwood Press, 2003.

Finkelman, Paul. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press, 1980.

———. Dred Scott v. Sanford: A Brief History with Documents. Boston: Bedford/St. Martin’s, 1997. 302

Documentary History of the American Civil War Era

———, ed. His Soul Goes Marching On: Responses to John Brown and the Harper Ferry Raid. Charlottesville: University Press of Virginia, 1995.

———. Slavery in the Courtroom: An Annotated Bibliography of American Cases. Washington, D.C.: Library of Congress, 1985. Foner, Eric. The Fiery Trial: Abraham Lincoln and American Slavery. New York: W.W. Norton, 2010.

———. Forever Free: The Story of Emancipation and Reconstruction. New York: Knopf, 2005.

———. Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War. New York: Oxford University Press, 1995.

———, Nothing but Freedom: Emancipation and Its Legacy. Baton Rouge: Louisiana State University Press, 1983. ———. Politics and Ideology in the Age of the Civil War. New York: Oxford University Press, 1980.

———. Reconstruction: America’s Unfinished Revolution, 1863–1877. New York: Harper & Row, 1988. ———. Slavery and Freedom in Nineteenth-Century America. New York: Oxford University Press, 1994.

Foner, Eric, and Olivia Mahoney. A House Divided: America in the Age of Lincoln. Chicago: Chicago Historical Society, 1990. Ford, Lacy K., ed. A Companion to the Civil War and Reconstruction. Malden, MA.: Blackwell Publishing, 2005.

Franklin, John Hope. The Emancipation Proclamation. Garden City, NY.: Doubleday, 1963. Fredrickson, George E. The Inner Civil War: Northern Intellectuals and the Crisis of the Union. New York: Harper & Row, 1965. Freehling, William W. The Road to Disunion: Volume II: Secessionists Triumphant, 1854–1861. New York: Oxford University Press, 2007.

Gillette, William. Retreat from Reconstruction, 1869–1879. Baton Rouge: Louisiana State University Press, 1979. ———. The Right to Vote: Politics and the Passage of the Fifteenth Amendment. Baltimore, MD.: The Johns Hopkins University Press, 1965. Guelzo, Allen C. Lincoln’s Emancipation Proclamation: The End of Slavery in America. New York: Simon & Schuster, 2004.

Halliday, Paul D. Habeas Corpus: From England to Empire. Cambridge, MA.: Belknap Press of Harvard University Press, 2010.

Hamilton, Daniel W. The Limits of Sovereignty: Property Confiscation in the Union and Confederacy during the Civil War. Chicago: University of Chicago Press, 2007.

Harris, William C. With Charity for All: Lincoln and the Restoration of the Union. Lexington: University Press of Kentucky, 1997.

Hoffer, Peter Charles, Williamjames Hull Hoffer, and N.E.H. Null. The Supreme Court: An Essential History. Lawrence, KS.: University Press of Kansas, 2007.

Selected Readings

303

Holt, Michael L. By One Vote: The Disputed Election of 1876. Lawrence: University of Kansas Press, 2008.

Holzer, Harold. Lincoln at Cooper Union: The Speech That Made Abraham Lincoln President. New York: Simon and Schuster, 2004. ———. Lincoln President-Elect: Abraham Lincoln and the Great Secession Winter, 1860– 1861. New York: Simon and Schuster, 2008.

Hoogenboom, Ari Arthur. The Presidency of Rutherford B. Hayes. Lawrence: University Press of Kansas, 1988.

———. Rutherford B. Hayes: Warrior and President. Lawrence: University Press of Kansas, 1995.

Huebner, Timothy S. Taney Court: Justices, Rulings, and Legacy. Santa Barbara, CA.: ABC-Clio, 2003.

Hyman, Harold Melvin. Era of the Oath: Northern Loyalty Tests During the Civil War and Reconstruction. Philadelphia: University of Pennsylvania Press, 1954.

———. A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution. New York: Alfred A. Knopf, Inc., 1973. ———. The Reconstruction Justice of Salmon P. Chase: In Re Turner and Texas v. White. Lawrence: University Press of Kansas, 1997.

———. To Try Men’s Souls: Loyalty Tests in American History. Santa Barbara: Greenwood Press, 1982. Hyman, Harold Melvin, and William W. Wiecek. Equal Justice Under Law: Constitutional Development, 1835–1875. New York: HarperCollins Publishers, 1982.

Kaczorowski, Robert J. The Politics of Judicial Interpretation: Federal Courts, the Department of Justice, and Civil Rights, 1866–1876. Dobbs Ferry, NY.: Oceana Publications, 1985. Keith, LeeAnna. The Colfax Massacre: The Untold Story of Black Power, White Terror, & The Death of Reconstruction. New York: Oxford University Press, 2008.

Klein, Phillip Shriver. James Buchanan, A Biography. University Park: Pennsylvania State University Press, 1962. Konig, David T., Paul Finkelman, and Christopher A. Bracey, eds. The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law. Athens: Ohio University Press, 2010.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

Labbé, Ronald M. and Jonathan Lurie. The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment. Lawrence: University Press of Kansas, 2003.

Lewis, H. H. Walker. Without Fear or Favor: A Biography of Chief Justice Roger B. Taney. Boston: Houghton Mifflin, 1965.

Lofgren, Charles A. The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987.

Maltz, Earl M. Civil Rights, the Constitution, and Congress, 1863–1869. Lawrence: University Press of Kansas, 1990.

304

Documentary History of the American Civil War Era

———. Slavery and the Supreme Court, 1825–1861. Lawrence: University Press of Kansas, 2009.

Mantell, Martin E. Johnson, Grant, and the Politics of Reconstruction. New York: Columbia University Press, 1973. McFeeley, Frederick Douglass. New York: W. W. Norton & Co., 1991. ———. Grant: A Biography. New York: W. W. Norton & Co., 1981.

McGinty, Brian. John Brown’s Trial. Cambridge, MA.: Harvard University Press, 2009.

———. Lincoln & the Court. Cambridge, MA.: Harvard University Press, 2008.

McPherson, James M. Abraham Lincoln. Oxford: Oxford University Press, 2009.

———. Abraham Lincoln and the Second American Revolution. New York: Oxford University Press, 1990. ———. Battle Cry of Freedom: The Civil War Era. New York: Oxford University Press, 1988.

———. Lincoln and the Strategy of Unconditional Surrender. Gettysburg: Gettysburg College, 1984. ———. Marching Toward Freedom: Blacks in the Civil War, 1861–1865. New York: Facts on File, 1965.

———. The Negro’s Civil War: How American Negroes Felt and Acted during the War for the Union. New York: Ballantine Books, 1991.

———. Ordeal by Fire: The Civil War and Reconstruction. New York: Knopf, 1982.

———. The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction. Princeton: Princeton University Press, 1964.

———. Tried by War: Abraham Lincoln as Commander in Chief. New York: Penguin Press, 2008.

Morris, Thomas D. Southern Slavery and the Law, 1619–1860. Chapel Hill: University of North Carolina Press, 1996. Neely, Mark E., Jr. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.

———. The Last Best Hope of Earth: Abraham Lincoln and the Promise of America. Cambridge, MA.: Harvard University Press, 1993.

———. Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. Charlottesville: University of Virginia Press, 1999.

Neff, Stephen C. Justice in Blue and Gray: A Legal History of the Civil War. Cambridge, MA.: Harvard University Press, 2010.

Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge: Harvard University Press, 1998.

Niven, John. Salmon P. Chase: A Biography. New York: Oxford University Press, 1995.

Nevins, Allan. Ordeal of the Union, 8 Vols. New York: Charles Scribner’s Sons, 1947–71.

Newmyer, R. Kent. Supreme Court under Marshall and Taney. New York: Cromwell, 1968. Nieman, Donald G. Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991.

Selected Readings

305

———. To Set the Law in Motion: The Freedman’s Bureau and the Legal Rights of Blacks, 1865–1868. Millwood, NY.: KTO Press, 1979.

Oates, Stephen B. To Purge This Land With Blood: A Biography of John Brown. Amherst: University of Massachusetts Press, 1970.

———. With Malice Toward None: A Life of Abraham Lincoln. New York: Harper & Row, 1977.

Paludan, Phillip Shaw. A Covenant With Death: The Constitution, Law, and Equality in the Civil War Era. Champaign: University of Illinois Press, 1975. ———. “A People’s Contest”: The Union and Civil War 1861–1865. Lawrence: University Press of Kansas, 1996.

———. The Presidency of Abraham Lincoln. University Press of Kansas, 1994.

Perman, Michael. Reunion Without Compromise: The South and Reconstruction, 1865– 1868. Cambridge: Cambridge University Press, 1973.

Polakoff, Keith Ian. The Politics of Inertia: The Election of 1876 and the End of Reconstruction. Baton Rouge: Louisiana State University Press, 1973. Potter, David. The Impending Crisis, 1848–1861. New York: Harper & Row, 1976.

Rawley, James A. Race and Politics: “Bleeding Kansas” and the Coming of the Civil War. Philadelphia: Lippincott, 1969.

Richardson, Heather Cox. The Death of Reconstruction: Race, Labor, and Politics in the Post–Civil War North, 1865–1901. Cambridge, MA.: Harvard University Press, 2001.

———. The Greatest Nation of the Earth: Republican Economic Policies During the Civil War. Cambridge, MA.: Harvard University Press, 1997.

———. West from Appomattox: The Reconstruction of America after the Civil War. New Haven, CT.: Yale University Press, 2007.

Riddleberger, Patrick W. 1866: The Critical Year Revisited. Carbondale: Southern Illinois University Press, 1979.

Russo, Peggy A. and Paul Finkelman, eds. Terrible Swift Sword: The Legacy of John Brown. Athens: Ohio University Press, 2005.

Sefton, James E. Andrew Johnson and the Uses of Constitutional Power. Boston: Little, Brown, 1980.

———. The United States Army and Reconstruction, 1865–1877. Baton Rouge: Louisiana University Press, 1967. Sibley, Joel H. A Respectable Minority: The Democratic Party in the Civil War Era, 1860–1868. New York: W.W. Norton & Co., 1977.

Siddali, Silvanna R. From Property to Person: Slavery and the Confiscation Acts, 1861–1862. Baton Rouge: Louisiana State University Press, 2005.

Silver, David M. Lincoln’s Supreme Court. Urbana: University of Illinois Press, 1956.

Simon, John F. Lincoln and Chief Justice Taney: Slavery, Secession and the President’s War Power. New York: Simon & Schuster, 2006.

Simpson, Brooks D. Let Us Have Peace: Ulysses S. Grant and the Politics of War and Reconstruction, 1861–1868. Chapel Hill: University of North Carolina Press, 1991. 306

Documentary History of the American Civil War Era

———. The Reconstruction Presidents. Lawrence: University Press of Kansas, 1998. Swisher, Carl B. Roger B. Taney. New York: Macmillan Co., 1935.

Tap, Bruce. Over Lincoln’s Shoulder: The Committee on the Conduct of the War. Lawrence: University Press of Kansas, 1998.

TenBroeck, Jacobus. Equal Under Law: Anti-Slavery Origins of the Fourteenth Amendment. New York: Collier, 1965. Trefousse, Hans L. Andrew Johnson: A Biography. New York: W.W. Norton, 1997.

———. Benjamin Franklin Wade: Radical Republican from Ohio. New York: Twayne Publishers Inc., 1963.

———. Causes of the Civil War: Institutional Failure or Human Blunder. Malabar: Krieger Publishing Co., 1983.

———. First Among Equals: Abraham Lincoln’s Reputation During His Administration. Bronx: Fordham University Press, 2005.

———. Impeachment of a President: Andrew Johnson, the Blacks, and Reconstruction. Bronx: Fordham University Press, 1999. ———. The Radical Republicans: Lincoln’s Vanguard for Racial Justice. Baton Rouge: Louisiana State University Press, 1969. ———. Reconstruction: America’s First Effort at Radical Democracy. Malabar: Krieger Publishing Co., 1999. ———. Rutherford B. Hayes. Times Books, 2002.

———. Thaddeus Stevens: Nineteenth-Century Egalitarian. Knoxville: University of Tennessee Press, 1982. Trefousse, Hans L. and Arthur M. Schlesinger, Jr., ed. Rutherford B. Hayes. New York: Times Books, 2002.

U.S. War Department. The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, 70 Vols. Washington, D.C.: Government Printing Office, 1880–1901. Vorenberg, Michael. Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment. New York: Cambridge University Press, 2001. Waugh, Joan. U.S. Grant: American Hero, American Myth. Chapel Hill: University of North Carolina Press, 2009.

Weigley, Russell F. A Great Civil War: A Military and Political History, 1861–1865. Bloomington: Indiana University Press, 2000. White, Ronald C., Jr. A. Lincoln: A Biography. New York: Random House, 2009.

Williams, Lou Falkner. The Great South Carolina Ku Klux Klan Trials, 1871–1872. Athens: University of Georgia Press, 1996.

Woodward, C. Vann. The Strange Career of Jim Crow, 3rd ed. New York: Oxford University Press, 1989. Wooster, Ralph A. The Secession Conventions of the South. Princeton, NJ.: Princeton University Press, 1962.

Selected Readings

307

Index Ableman v. Booth (1859), 187, 295 Abolishment of Slavery in the District of Columbia Act (1862), xii, xvi, 3, 51–54, 89, 296; Supplement (1862), 89–90, 296 Anderson, Major Robert, 37 Anti-Peonage Act (1867), 3, 221–22, 298 Arizona Territory Act, Confederate, xviii–xix Articles of Impeachment (1868), 3, 249–60, 298 Bingham, John A., 250 Black Codes, 149, 159 Bradley, Associate Justice Joseph P., 288 Breckinridge, John C., 35, 295 Brown, John, xviii, 295 Buchanan, James, xvii, 33–35, 296 Cameron, Simon, 40 Cass, Lewis, 11, 63 Chase, Salmon P., xiv, xvi, 12, 107, 202 Civil Rights Act (1866), xii, xiv, xvii, 3, 149, 159, 169–171, 173, 249, 263, 298 Civil Rights Act (1875), 3, 283–85, 299 Civil Rights Cases (1883), 283, 300 Clay, Henry, 29 Colfax, Schuyler, 171, 178, 193, 212, 226, 237, 260, 262 Compromise of 1850, 3, 5, 47–48, 51 Confiscation Act (1861), xvii, 47–48, 97, 296

Congressional Electoral Commission Act (1877), 287–91, 300 Confederate Conscription Act (1862), xvii, 55–59, 129, 296–97 Crittenden Compromise (1860), 29, 296 Crittenden-Johnson Resolutions (1861), 45–46, 296 Crittenden, John Jordon, 29, 45, 296 Davis, Associate Justice David, 288 Davis, Jefferson, xv, xvi–xviii, 41, 43–44, 296 Democratic Party, 12, 195, 287, 295, 298, 299 Douglas, Stephen A., 11–12, 63, 295 Dred Scott v. Sanford (1857), xv, xviii, 51, 295 Emancipation Proclamation (1863), xii, xvii, 4, 149, 297 Emory, General William H., 255 Enforcement Act (1870), 267–75, 299 Enforcement Act (1871), 277–81, 299 Federal Conscription Act (1863), xvii, 129–37, 297 Federalism, xii, xvi, 159–60, 263 Fifteenth Amendment (1870), xvii, 265, 267, 299 First Confiscation Act (1861), 47–48, 97, 296 Forney, J. W., 178, 194, 212, 227, 238

Foster, La Fayette S., 171, 178, 193, 212 Fourteenth Amendment, xii, xvi–xviii, 3, 263, 265, 277–78, 299 Freedmen’s Bureau Act (1865), 4, 145–47, 151, 173, 297 Freedmen’s Bureau Act (1866), 3, 4, 151, 152, 154–55, 158, 165, 173–78, 179, 259, 298 Fugitive Slave Act (1793), 5 Fugitive Slave Act (1850), xvi, 3, 5–10, 295 General Order 100 (1863), xvii, 297 Grant, Ulysses S., xvii, 267, 283, 297–99 Habeas Corpus Act (1863), 3, 139–143, 187, 297 Habeas Corpus Act (1867), 3, 187–89, 298 Harrison, Lowell, 39 Hayes, Rutherford B., xvii, 287–88, 300 Holmes, Oliver Wendell, Jr., xi–xii Homestead Act of 1862, xv, xvii, 3, 63–66, 81, 296 Howard, General Oliver O., 145 Humphrey’s Executor v. United States (1935), 213 Johnson, Andrew, xvi–xvii, 3, 45–46, 63, 149, 151, 158–59, 160, 167, 169, 173, 179, 183, 191, 195–96, 208–9, 213, 220, 223, 229, 233, 239, 247, 249–60, 261, 297–98; Veto of Civil Rights Bill (1866), 3, 159–67, 298; Veto of First Military Reconstruction Act (1867), 3, 195–208, 298; Veto of Freedmen’s Bureau Act (1866), 151–58, 298; Veto of Freedmen’s Bureau Act (1866), 3, 179–83, 298; Veto of Second Military Reconstruction Act (1867), 3, 229–33, 298; Veto of Tenure of Office Act (1867), 213–220, 298; Veto of Third Military Reconstruction Act (1867), 3, 239–47, 298

310

Judiciary Act (1862), 91–92, 296 Judicial Circuits Act (1866), xv, 185–86, 298 Kansas-Nebraska Act (1854), 11–28, 295 Kentucky Resolution of Neutrality (1861), 40, 296 King, Rodney, 277 Ku Klux Klan Act. See Enforcement Act (1871) Land Ordinance (1785), 81 Lee, Robert Edward, xvii, 296 Lieber, Francis, xvii, 297 Lincoln, Abraham, xii–xviii, 3, 12, 33–34, 37–39, 41–43, 45, 47, 51–52, 63, 85, 91, 97, 101, 103, 105, 139, 145, 149, 151, 175, 191, 209, 213, 263, 295–97 Lincoln’s Proclamation (1861), 37–38, 296 Magoffin, Beriah, xv, 39–40, 296 Marx, Karl, xvii, 296 McDonald, W. J., 238 McPherson, Edward, 178, 194, 212, 226, 238, 260 McPherson, James M., 129 Merryman, Ex parte (1861), xviii, 296 Militia Act (1862), 93–96, 296 Milligan, Ex parte (1866), 201, 298 Morrill, Justin, 81 Morrill Land Grant Act (1862), 3, 81–84, 296 Myers v. United States (1926), 213 National Banking Act (1863), 3, 107–28, 297 Non-Issued Veto to Second Confiscation Act (1862), 3, 85–88, 296 Northwest Ordinance (1787), 11

Index

Pacific Railroad Act (1862), xvii, 3, 67–79, 296 Pennington, William, 35 Plessy v. Ferguson (1896), xviii, 300 Popular Sovereignty, 11, 63 Posse Comitatus Act (1878), xvi, 3, 293–94, 300 Potter, David, 51 Preliminary Emancipation Proclamation (1862), xvii, 297 Proclamation on Blockade and Marque, xvi, 41–44, 296 Proposed Thirteenth Amendment (1860–61), 33–35, 296 Reconstruction Act [First] (1867), xvii, 3, 191–194, 223, 298 Reconstruction Act [Fourth] (1868), xvii, 3, 261–62, 298 Reconstruction Act [Second] (1867), xvii, 3, 223–27, 298 Reconstruction Act [Third] (1867), xvii, 3, 235–38, 298 Republican Party, xvii, 4, 12, 29, 63, 169, 195, 209, 213, 239, 265, 267, 287–88, 295, 297, 298–99 Second Confiscation Act (1862), 3, 85, 97–100, 297; Supplement, Second Confiscation Act (1862), 101, 297 Seditious Conspiracy Act (1861), 3, 49, 296

Index

Seward, William H., 34–35, 38, 42 Sherman, General William T., 175–76, 297 Slaughter-House Cases (1873), xii, xviii, 299 Speed, James, xvii, 297 Stanbery, Henry, 239 Stanton, Edwin M., 209, 213, 249–54, 260 Stevens, Thaddeus, xvii, 296–97 Sumner, Charles, 259, 283 Taney, Roger B., 51 Tenure of Office Act (1867), 209–213, 298 Texas v. White (1869), xiv, xvi, xviii, 299 Thirteenth Amendment (1865), xii, xvii, 4, 12, 17, 24, 149, 151, 169, 263, 265, 298 Thomas, General Lorenzo, 249–53, 255 Tilden, Samuel, 287 Toombs, Robert, 44 Twenty Negro Amendment (1862), xvii, 59–62, 297 United States v. Reese (1876), 267 Vallandigham, Ex parte (1864), xviii, 297 Virginia v. West Virginia (1871), 103, 299 Wade, Benjamin F., 226, 237, 262, 297 West Virginia Act (1862), 103–105, 297 Whig Party, 12

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A Documentary History of the American Civil War Era was designed and typeset on a Macintosh OS 10.4 computer system using InDesign software. The body text is set in 10/13 Adobe Caslon Pro and display type is set in Adobe Caslon Pro bold. This book was designed and typeset by Stephanie Thompson.