of our fathers when they framed this Republic. Beginning in a wilderness world, they wrought unfettered by precedent, untrammeled by custom, unawed by kings or dynasties. With the history of other nations before them, they surveyed the new field. In the progress of their work they encountered these antagonistic ideas to which I have referred. They attempted to trace through that neutral ground the boundary line across which neither force should pass. The result of their labors is our Constitution and frame of government. I never contemplate the result without feeling that there was more than mortal wisdom in the men who produced it. It has seemed to me that they borrowed their thought from Him to a confederacy, a mere league between sovereign States. But we have now vindicated and secured the centripetal power; let us see that the centrifugal force is not destroyed, but that the grand and beautiful equipoise may be maintained. LOCAL SELF-GOVERNMENT. No more beautiful thought was embodied in the structure of our Republic than this: that our fathers did so distribute the powers of gov. ernment that no one power should be able to swallow, absorb, or destroy the others. In this distribution, it is provided that many, indeed most of the functions of government, shall be exercised immediately under the eyes of the who constructed the universe and put it in the system of taxation in my own State. I have people themselves. Let me illustrate this by motion. For nothing more aptly describes the character of our Republic than the solar system, launched into space by the hand of the Creator, where the central sun is the great power around which revolve all the planets in their appointed orbits. But while the sun holds in the grasp of its attractive power the whole system, and imparts its light and heat to all, yet each individual planet is under the sway of laws peculiar to itself. Under the sway of terrestrial laws, winds blow, waters flow, and all the tenantries of the planet live and move. So, sir, the States move on in their orbits of duty and obedience, bound to the central Government by this Constitution, which is their supreme law; while each State is making laws and regulations of its own, developing its own energies, maintaining its own industries, managing its local affairs in its own way, subject only to the supreme but beneficent control of the Union. When State rights run-mad, put on the form of secession, and attempted to drag the States out of the Union, we saw the grand lesson taught, in all the battles of the late war, that a State could no more be hurled from the Union without ruin to the nation, than could a planet be thrown from its orbit without dragging after it, to chaos and ruin, the whole solar universe. Sir, the great war for the Union has vindicated the centripetal power of the nation, and has exploded, forever I trust, the disor ganizing theory of State sovereignty which slavery attempted to impose upon this country. But we should never forget that there is danger in the opposité direction. The destruction or serious crippling of the principle of local gov. ernment would be as fatal to liberty as secession would have been fatal to the Union. The first experiment which our fathers tried in government-making after the War of Independence was a failure, because the central power conferred in the Articles of Confederation was not strong enough. The second, though nobly conceived, became almost a fail. ure because slavery attempted so to interpret the Constitution as to reduce the nation again here a statement of the taxation of the State of Ohio for the last year. There were raised in 1870, under State laws, nearly twenty-four millions of dollars. Less than five millions of the twenty-four found their way to the State Treasury at Columbus. Less than four millions, indeed, were used for central purposes. Nineteen of the twenty-four millions were levied within the townships and the counties, under the direction of township trustees, city and county officers; and, in accordance with the general laws of the State, these sums were expended at home, under the direction of the very men who specially consented that the tax should be levied. Twelve and a half millions were raised and expended in the townships. Mr. Speaker, how often have you heard of embezzlement or defalcation by township officers; though, as in Ohio, more than half of all the taxes raised are kept in the treasuries of the townships? Where in the the nation is there so wise and so honest an administration of affairs as in the townships, under the eye of the people who have approved the levy, and who watch the expenditure of the money? We have sometimes heard of defalcations of county treasurers, because they live some distance away from the Argus-eyes which watch over their proceedings. We have oftener heard of State defalcations, because State officers are still further away. And oftener still we hear of national defalcations, where the power is exercised still further away from the people who grant it. I mention this as an illustration of the character of our Government. The illustration might be extended with equal force to the administration of justice in townships and counties, where offenses against persons and property are tried before judges of the people's own choosing, and before jurors who are the neighbors of the parties, and who can administer justice far better than is possible at distant and remote points, where both court and jury are strangers to the parties. But I turn from these general remarks to the consideration of those features of our Constitution which relate more immediately to the subject of the bill now before the House. PROTECTION OF PERSONS AND PROPERTY BEFORE THE LATE AMENDMENTS. I presume it will not be denied, that before the adoption of the last three amendments it was the settled interpretation of the Constitution that the protection of the life and property of private citizens within the States belonged to the State governments exclusively. I will, however, fortify this position by a few authorities which will not be questioned. Mr. Madison says, in the forty fifth number of the Federalist: "The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." In the celebrated case of Cohens vs. Virginia (6 Wheaton, page 424) the Supreme Court takes the same ground; and Mr. Story, in his Commentaries on the Constitution, section twelve hundred and twenty six, quotes with approval the following passage from that opinion of the court: Congress has a right to punish murder in a fort or other place within its exclusive jurisdiction, but has no general right to punish murder committed within any of the States.' In February, 1866, while debating a proposed amendment to the Constitution, which in its final form became the fourteenth article, my colleague [Mr. BINGHAM] quoted the passage from the Federalist which I have already quoted, and then said: "These words of Madison are very significant. The fact is that Congress has never, by official enactment in all the past, attempted to enforce these rights of the people in any State of the Union."-Globe, Thirty-Ninth Congress, page 1093. In the same debate he also said: "We have not now the power, in time of peace, to enforce the citizen's right to life, liberty, and property within the limits of South Carolina, after her State government shall be recognized and her constitutional relations restored." On the 9th of March, 1866, when the civil rights bill was under debate, Mr. BINGHAM also said: "The Constitution does not delegate to the United States a power to punish offenses against the life, liberty, and property of citizens in the States; nor does it prohibit that power to the States, but leaves it as the reserved right of the States, to be by them exercised."-Globe, page 1291. And again, in the same speech: "I have always believed that protection in time of peace within the States of all rights of persons and citizens was of the powers reserved to the States, and so I still believe."-Globe, page 1293. While the first section of the civil rights bill was under debate my colleague [Mr. SHELLABARGER] said: "If this section did in fact assume to confer or define or regulate these civil rights which are named by the words contract, sue, testify, inherit, &c., then it would, as seems to me, be an assumption of the reserved rights of the States and of the people."Globe, page 1293. The bill does not reach mere private wrongs, but only those done under color of State authority, and that authority must be extended on account of race or color. It is meant, therefore, not to usurp the powers of the States to punish offenses generally against the rights of citizens in the several States, but its whole force is expended in defeating an attempt, under State laws, to deprive races and the members thereof, as such, of the rights enumerated in this act. This is the whole of it."-Globe, page 1294. In the same debate Mr. Delano, of Ohio, now Secretary of the Interior, speaking of the Constitution said: "It was never designed to take away from the States the right of controlling their citizens in respect to property, liberty, and life. If we now go on in a system of legislation based upon the assumption that Congress possesses the right of supreme Control in this respect, I submit whether we are not assisting to build up a consolidated Government in view of the powers of which we may well tremble."-Appendix, page 158. Authorities might be cited to a much greater length. They all concur in the statement with which I set out, that the power to protect the life and property of private citizens within the States, was left by the Constitution exclusively to the State governments. PROTECTION OF PERSONS AND PROPERTY UNDER THE LATE AMENDMENTS. Now, three amendments, the thirteenth, fourteenth, and fifteenth, have been added to the Constitution, and it will not be denied that each of these amendments has so modified the Constitution as to change the relation of Congress to the citizens of the States. They have to some extent enlarged the functions of Congress, and, within prescribed limits, have extended its jurisdiction within the States. I now inquire how far this jurisdiction has been extended. The thirteenth amendment provides that slavery shall never exist within the United States, or any place subject to their jurisdiction, and Congress is empowered to enforce this provision on every inch of soil covered by our flag. Congress may by its legislation prevent any person from being made a slave by any law, usage, or custom, or by any act direct or indirect This, I presume, will not be denied; and Congress has effectually carried out this provision. In the fifteenth amendment, the last of the three, the rights of citizens of the United States to vote shall not be denied or abridged, either by the United States or by any State, in consequence of race, color, or previous condition of servitude. And that, taken in connection with the clause in the main text of the regulate the time, place, and manner of holdConstitution, which authorizes Congress to ing elections, arms Congress with the full power to protect the ballot box at all elections, at least of officers of the United States, FIRST SECTION OF THE FOURTEENTH AMENDMENT. I now come to consider last in order, for it is the basis of the pending bill, the fourteenth amendment. I ask the attention of the House to the first section of that amendment, as to its scope and meaning. I hope gentlemen will bear in mind that this debate, in which so many have taken part, will become historical, as the earliest legislative construction given to this clause of the amendment. Not only the words which we put into the law, but what shall be said here in the way of defining and interpreting the meaning of the clause, may go far to settle its interpretation and its value to the country hereafter. No thorough discussion of this clause is pos sible which does not include a history of some of the leading facts connected with its origin and its adoption by Congress. I will therefore state briefly the proceedings of this House on the first form of amendment proposed on the subject embraced in the first section of the fourteenth amendment, as it now stands in the Constitution. THE REJECTED AMENDMENT. On the 13th February, 1866, Mr. BINGHAM reported, from the joint Committee on Reconstruction, a joint resolution proposing the following amendment to the Constitution of the United States: "ARTICLE. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property." The debate proceeded at great length, and the necessity for increased protection to those who had lately been slaves, against the hostile Mr. HALE, of New York, opposed the amendment. He said that under it "All State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overriden, may be repealed, and abolished, and the law of Congress established instead. I maintain that in this respect it is an utter departure from every principle ever dreamed of by the men who framed our Constitution."-Globe, page 1063. On the 28th of February my colleague [Mr. BINGHAM] made a very able and elaborate speech in defense of the amendment. He based its necessity on the fact that Congress had then no power to legislate for life, liberty, and property within the States. He affirmed, also, that the guarantees of the rights of property and person named in the fifth article of amendments to the Constitution were not limitations on the State governments, but only on Congress. To support this position he quoted the case of Barron vs. The Mayor and City Council of Baltimore, (7 Peters, page 247;) also, Lessee of Livingston vs. Moore, (7 Peters, page 251;) also, 3 Webster, page 471; and then said, (Globe, page 1090:) "The question is simply whether you will give by this amendment, to the people of the United States, the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution." In the course of Mr. BINGHAM's speech, Judge Hale, of New York, asked him "Whether, in his opinion, this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal." Mr. BINGHAM. I believe it does in regard to life, liberty, and property, as I have heretofore stated it, the right to real estate being dependent on the State law, except when granted by the United States. Mr. HALE. I desire to know if he means to imply that it extends to personal estate. 'Mr. BINGHAM. Undoubtedly it is true." Mr. CONKLING, now a Senator from the State of New York, during the same debate said of this amendment: "It was introduced several weeks ago, and con legislation of the States, was strongly urged.sidered in a committee of fifteen. At that time and I will quote a few paragraphs from the debate, to show some of the leading reasons that were urged for and against the proposition. always I felt constrained to withhold from it my support as one of the committee, and when the consent of the committee was given to its being reported I did not concur in the report."-Globe, page 1094. Mr. HOTCHKISS, of New York, said: "I understand the amendment, as now proposed by its terms, to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power.' Mr. Higby, of California, insisted that this amendment was necessary in order to protect the lives and property of the citizens in the South. He showed how, under the thirteenth amendment, the laws of the States might be so administered as to put black men into slavery under pretense of sentencing them for crime, and that without additional power given to Con- I have been thus particular in reviewing the gress the General Government could not pre-history of this debate, in order to show the vent such a result. (Globe, February 27, page 1056.) Others urged the amendment on the same and similar grounds. sentiment that then prevailed in this House in regard to one of the theories which we are asked to adopt in this debate. Now, let it be remembered that the proposed on that point now. Mr. GARFIELD, of Ohio. My colleague can make but he cannot unmake history. I not only heard the whole debate at the time, but I have lately read over, with scrupulous care, every word of it as recorded in the Globe. I will show my colleague that Mr. Stevens did speak specially of this very section. amendment was a plain, unambiguous propo-vision, none at all. That is all I have to say sition to empower Congress to legislate directly upon the citizens of all the States in regard to their rights of life, liberty, and property. Mark the action of the House. After a debate of two weeks, the record of which covers more than one hundred and fifty columns of the Globe, and in which the proposed amendment was subjected to a most searching examination, it became evident that many leading Republicans of this House would not consent to so radical a change in the Constitution, and the bill was recommitted to the joint select committee. Mr. BINGHAM. The gentleman is mistaken. A motion was made to lay that amendment on the table. There were 41 votes in favor of the motion and 110 against it. I voted myself in favor of a postponement; but the measure was not recommitted, for I was a member of the committee and knew what it could do. Mr. GARFIELD, of Ohio. My colleague is technically right in saying that the measure was postponed. Of course the majority did not allow it to be laid on the table on motion of a member of the opposité party, and the motion was voted down, as my colleague has said. But the consideration of the measure was postponed on motion of Mr. CONKLING, who had opposed it from the start, and it did in fact go back to the committee, and was never again discussed in this House. What is more, it was never debated at all in the Senate, though it was introduced into that body by Mr. Fessenden the same day that Mr. BINGHAM introduced it into the House. The whole history of the case shows that it became perfectly evident, both to the members of the Senate and of the House, after the House debate, that the measure could not command a twothirds vote of Congress, and for that reason the proposition was virtually withdrawn. Its consideration was postponed February 28 by a vote of 110 to 37. THE AMENDMENT AS ADOPTED. The debate on this new proposition, which afterward became the fourteenth amendment, was opened by Mr. Stevens, May 8th, in a characteristic and powerful speech. He spoke of the difficulties which the joint committee on reconstruction had encountered, and of the long struggle they had had to reach any proposition on which the friends of the amendinent could unite. He said: "The proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion." * ** The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, and property, or of denying to any person within their jurisdiction the equal' protection of the laws. "I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shail punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford equal' protection to the black man, Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in the courts or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination and crush to death the hated freedmen."-Globe, page 2459. In the long debate which followed this section of the amendment was considered as equivalent to the first section of the civil rights bill, except that a new power was added in the clause which prohibited any State from depriv More than a month passed after this postponement, or recommittal, without further action in either House. On the 30th April, 1866, the fourteenth amendment was introduced into the House, and the first section was precisely as it now stands in the Consti-ing any person within its jurisdiction of the tution, except that the first sentence of the present text was not in the draft. The new form of amendment was also debated at great length. The gentleman who reported it from the committee, the late Mr. Stevens, of Pennsylvania, said that it came far short of what he wished, but after full consideration, he believed it the most that could be obtained. Mr. BINGHAM. My colleague will allow me to correct him again. The remark of Mr. Stevens had no relation whatever to that pro equal protection of the laws. The interpretation of this first section, as given by Mr. Stevens, was the one followed by almost every Republican who spoke on the measure. It was throughout the debate, with scarcely an exception, spoken of as a limitation of the power of the States to legislate unequally for the protection of life and property. On the 9th of May Mr. Eliot, of Massachusetts, said: "I support the first section because the doctrine it declares is right, and if under the Constitution as it now stands Congress has not the power to prohibit State legislation discriminating against any classes of citizens or depriving any persons of life, liberty, and property without due process of law, or denying to any persons within the State the equal protection of the laws, then, in my judgment, such power should be distinctly conferred."-Page 2511. Mr. FARNSWORTH approved the amendment but said that the first section might as well be reduced to these words: "No State shall deny to any person within its jurisdiction the equal protection of the laws," for that was the only provision in it which was not already in the Constitution. (Page 2539.) It is noticeable also that no member of the Republican party made any objection to this section on the grounds on which so many had opposed the former resolution of amendment; but many expressed their regret that the arti cle was not sufficiently strong. Mr. Shanklin, of Kentucky, a Democrat, said: "The first section of this proposed amendment to the Constitution is to strike down the reserved rights of the States and invest all the power in the Federal Government."-Page 2500. Mr. Rogers, of New Jersey, a Democrat, took similar ground. (Page 2538.) These are the only declarations I find in the House debates, either by Democrats or Republicans, indicating that this clause was regarded as placing the protection of the fundamental rights of life and property directly in the control of Congress; and these declarations of Shankling and Rogers were general and sweeping charges, not sustained even by specific statement. I close this citation of speeches on the amendment by quoting the view taken of the scope and meaning of this first section by my colleague, [Mr. BINGHAM.] He said: "This section gives power to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by unconstitutional acts of any State. Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws, or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy."-Page 2542. After a debate on this new proposition which lasted several days and evenings, the amendment passed the House May 10, 1866, by a vote of 128 ayes to 37 noes, not one Republican voting against it. It will not be denied, as a matter of history, that this form of amendment received many Republican votes that the first form to which I have referred could not have received. In the Senate there was but little debate on the first section and no change was made in it, except that, on the motion of Mr. Howard, of Michigan, these words were added at the beginning of the section: 66 'All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside." Other changes were made by the Senate in other sections of the amendment, and the whole, as amended, passed June 8, by a vote of 33 to 11. On the 13th of June the House passed the article, with the Senate amendments, by a vote of 120 to 32, every Republican present voting for it. THE REJECTED AND THE ADOPTED AMENDMENTS COMPARED. With this review of the history of the clause rejected and that adopted in our minds, I ask gentlemen to consider the difference between the two. Putting the fifth clause of the amendment first, and, to make the comparison closer, omitting the definition of citizenship, the section as adopted reads thus: "The Congress shall have power to enforce, by appropriate legislation, the following provisions"To wit: "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." And this is the rejected clause: "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property." The one exerts its force directly upon the States, laying restrictions and limitations upon their power and enabling Congress to enforce these limitations. The other, the rejected proposition, would have brought the power of Congress to bear directly upon the citizens, and contained a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States. The first limited but did not oust the jurisdiction of the State over these subjects. The second gave Congress plenary power to cover the whole subject with its jurisdiction, and, as it seems to me, to the exclusion of the State authorities. Mr. Speaker, unless we ignore both the history and the language of these clauses we cannot, by any reasonable interpretation, give to the section, as it stands in the Constitution, the force and effect of the rejected clause. POWERS GRANTED IN THE FIRST SECTION. Mr. Speaker, I now inquire to what extent this section does enlarge the powers of Congress. On the proper answer to this inquiry |