CIVIL RIGHTS. 



SPEECH 


HON. THOMAS M. NORWOOD, 

OF GEORGIA, 


\ 

\ 


DEt.rV'ERED IX THE 


UNITED STATES SENATE, 



April 30 and May 4, 1874. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 










SPEECH 


* 


OF 

HON. THOMAS M. NORWOOD. 


The Senate having under consideration the hill (S. No. 1) supplementary to an act 
entitled “An act to protect all citizens of the United States in their civil rights, 
and to furnish the means for their vindication,” passed April 9, 1866, the pending 
question being on the amendment of the Senator from Ohio [Mr. Thurman] to the 
amendment made as in Committee of the Whole, to strike out the second section— 

Mr. NORWOOD said: 

Mr. President : Believing in the “ete’rnal fitness of things,” and 
that everything should be done decently and in order,” I have always 
endeavored to adapt my speech to the solemnity of the occasion and 
the dignity of the subject to be considered. And though I shall faith¬ 
fully attempt to adhere to this salutary rule, it is with a painful con¬ 
sciousness that it is impossible for me to rise to the grandeur of either 
the occasion or the subject. And nothing sustains me but the ambi¬ 
tion to share with the Senator from New Jersey the imperishable 
honor of bringing about the happy consummation foreshadowed by 
him on yesterday, when the white man and black, the mulatto and 
quadroon, the coolie and Digger Indian, shall be gathered together, 
a united family, in one unbroken circle, around one common soup-, 
bowl and using the same spoon, while shielded by the Stars and 
Stripes and regaled by the martial measure and inspiring strain of— 
John Brown’s soul is marching on. 

“When the morning stars first sang together for joy” it might have 
been worth some dollars to the American people and the balance of 
mankind, if there be any, had the republican party been present. And 
though a matter of minor consideration, perhaps, it might also have 
saved much blood. For when the Almighty said, “ Let us make man,” 
this Senate would have given its advice, and with equal certainty, 
would never have consented to man’s creation, except in accordance 
with the Declaration of Independence. That party would have cau¬ 
cused on the question and have resolved “ to fight it out on that line 
if it takes all summer.” The flowers of the field might vary, in splen¬ 
dor and beauty; the lion might be made monarch among beasts; one 
star might differ from another star in glory; but absolute equality, 
moral, mental, physical, political, social, in churches, in theaters 



* 


4 


graveyards, every where in the world and out of it, must bo ordained 
among men, women, and children. Diiferences in color, dilFereuces 
in form and capabilities, were and are all mistakes, and we are now 
engaged, with such decent respect for the opinion of the Author of 
these errors as the necessity for votes next fall will allow, in making 
the necessary correction. 

A famous sculptor once left his studio in charge of his servant. 
The servant, conceiving his genius superior to that of his master, 
attempted an improvement in a favorite statue. The master returned 
to find his idol—the labor of years—converted into a torso. But skep¬ 
tical would he be, indeed; ignorant of the progressive strides made 
in this country in the decade past, must he be, who doubts the success 
of this small creative job. Nine years ago four million slaves were- 
set free; the next year, clothed with civil rights; the third, armed 
with the ballot, like blind Polyphemus with his club; the fourth,, 
makers of laws, of governments, and rulers of men, their former mas¬ 
ters. Within this brief time they were graduated in the school of 
republican statesmanship, passing at a bound to the degree of doctor 
of their learned laws; and in ten States the whites were dismissed 
from office, and these learned republican doctors were set up on end 
like ten-pins, and put in charge. History furnishes no parallel to 
this triumph in the plastic art since God made man of clay. 

There is but one recorded instance which the boldest fancy would 
dare suggest as a fit comparison, and that is, the redemption of the 
Jews from Egyptian bondage in a single night. But in that one fact 
only is the comparison good; for though they were under the guid¬ 
ance and instruction of Omniscience for forty years, they did not make 
the advance in statesmanship which the “man and brother ” attained, 
under the new dispensation, in forty days. Of the six hundred 
thousand who went out from Egypt, but two were found wortliy in forty 
years to give and administer law. The republican party manufac¬ 
tured over six hundred thousand law-givers in forty minutes. The 
Jews were instructed by signs and wonders, by miracles, and in the 
Decalogue, and that by the Almighty himself. The negroes were 
regenerated without any instruction, and by the republican party^ 
Moses was taken by divine appointment from his bulrush cradle 
and educated for many years to fit him to be a ruler; but the “ man 
and brother,” while standing in the corn-field, hoe in hand, and with¬ 
out any warning of the approaching calamity, was made a republican 
statesman by act of Congress. His superior wisdom was needed by 
the republican party to guide their councils, and they called him, 
like another Cincinnatus, from the plow, and placed him at the helm 
of State. How this wonderful change was wrought in these politi¬ 
cal neophytes in the twinkling of an eye, making them masters of 
the science of republican statesmanship, whose tortuous ways and 



eccentricity linve set at defiance all liiimau learning and experience, 
it is impossible to conceive, excejit upon the supposition that a miracle 
was performed, or on the more reasonable hypothesis that Providence, 
foreseeing their inevitable^destiny to become republican statesmen, 
benevolently prepared for their easy advent, by grading and leveling 
the dominant order of statesmanship to the full measure of their 
natural capacity. But it is only just to say, before leaving this 
comparative view, that in the opinion of some exegetes, who are 
not rei)ublicans, if the redeemer of the Jews, instead of trying to 
elevate them in moral stature, instead of seeking to fit them for a 
liigh and great destiny, had only desired their votes to x>rolong His 
rule, the negroes might not have so far surpassed the Jews in intel¬ 
lectual growth and statesmanship. 

But while history fails to furnish a parallel to this transformation, 
fiction and fable are not so much at fault, and yet even they can fur¬ 
nish but few such instances. 

One not familiar with the imhievement; who has not studied its 
exrprisite tracery and stood in awe while contemplating its colossal 
grandeur; and remembering that out of the smoke, the din and roar 
of surging battle the negro sprang into the sunlight of freedom, would, 
without due reflection, suggest in comparison; the rising of the god¬ 
dess of love and beauty from the depths of ocean, more radiant,in 
loveliness than her own bright chariot of pearl, or the sjiringing of 
Minerva—the embodiment of wisdom—full-armed from the head of 
.Jove, cleft by the forger of the thunderbolts of war. But in these 
we see only an illustration of the perfection of the new-born states¬ 
man, while the power and devotion of his creator are lost to view. 
To catch a glimi^se of the burning passion of the republican party 
for their colored equal; and of the heavenly art displayed in his 
divine transformation; and to faintly realize the depth of darkness 
from which in an instant he was raised to the level of republican 
statesmanship, we must recur to the moment of transition, when the 
cold, dull, marble statue, at once the creation and the adoration of 
Pygmalion, transfused with the fervor of his passion, and rapturously 
quivering into life, gracefully glided into his amorous arms, match¬ 
less in form and moving, the paragon of beauty. 

Tliere is much of resemblance also in the brief but touching biog¬ 
raphy of the noted Solomon Grundy: 

“ He was born on Monday, 

Christened on a Tuesday, 

Married on Wednesday, 

Took ill on Thursday, 

Worse on Friday, 

Died on Saturday, 

Wa;? buried on Sunday 


G 


And the 'biographer, at this point, plaintively tells ns that “ this was 
the end of Solomon Grundy.” [Laughter.] 

These were the seven stages in the brief but eventful life of Sol¬ 
omon Grundy, and our colored friends ^ave with equal rapidity 
passed six stages, and the morning of the seventh is about to dawn. 
One day, a slave; the next, a freeman; the next, invested with civil 
rights; the fourth, a voter; the fifth, a ruler; the sixth, a citizen—for 
let it be remembered that they were voters and rulers before they 
were citizens—and the seventh, to be placed on social equality. Surely 
these are glories enough even for the republican party. The world 
has watched its handiwork and marked with increasing wonder, the 
steady improvement so visible in each'production of its magic power, 
even down to the nnveiling of its chef d'oeuvre in the execution of 
Lonisiana. 

This grand achievement lacks nothing but originality. The ori¬ 
ginal of this excruciating model, though inferior in the execution, is 
superior in conception. It exhausted the combined genius of the 
three greatest sculptors of the city of Khodes. It is the statue of La- 
ocoon and his tender children slowly but STirely meeting death under 
the contractile power of a serpent’s coil, and in the temple of his wor¬ 
ship, because he offended a jealous heathen god by giving warning 
of approaching danger, and striking in defense of home and country. 
The Greeks even of to-day proudly boast of the chryselephantine 
statue of Juj)iter, the masterpiece of Phidias, himself the master of 
all masters in all ages of the world. And as long as under republican 
rule and interpretation, self-government means one-man power; as 
long as freedom means despotism; the bayonet means the ballot; vice 
means virtue, and ignorance statesmanship, the republican party 
can point despots and tyrants, with exultant air, to the satrapy of 
Louisiana as the pride and glory of republican civilization. 

' But let ns indulge the hope—as “it is pleasing to man to indulge 
in the illusions of hope,” however faint—that there is nothing omi¬ 
nous to the republican party, on either its white or colored side, in the 
sudden birth, the rapid growth, and the speedy demise of the lamented 
Solomon Grundy. There is a terrible resemblance in their birth and 
growth; but we must remember that the lamented Grundy married 
early, whereas this prodigal youth—the republican party—remains 
not only single, but is singularly unique, being xinlike anything 
created or spontaneons; though for eight long years he has been co¬ 
quetting with and affianced to the American branch of the Ethiopian 
family, commonly known as the “ colored people.” Rather prodigal, I 
say, he has been, though he started in life on high moral ideas, and, 
like the brakeman on the East Tennessee and Georgia Railroad, he 
promised, in the beginning, to run his train “ on high moral principles.” 
But he has fallen from grace. Between ventures in Credit Mobilier 


7 


stock. Jayuo contracts, Sanborn contracts, and otker moiety contracts, 
custom-house rings, District rings, railroad schemes, the business of 
manufacturing States and statesmen, robbing his southern neighbors, 
and other speculations and peculations, he has become diseased in 
reputation. He is reputed to be dividing his time and honors between 
philanthropy when it pays and public plunder as a trade. His Uncle 
Sam has lost confidence in his finances, his friends are falling olF, cred¬ 
itors are sweeping his estates, and his colored inamorata charges that 
he has trifled with her affections, and threatens to abandon him, unless 
he will call in the high j)riest (Congress,) at once, and solemnize the 
marriage. 

And now, Mr. President, these “two high contracting parties” are 
before us for the sixth time to be made one political flesh; and as 
the iron tongue of Time has called the hour of twelve meridian on the 
first Monday in December of each year for many weary years, we have 
seen this sorrowful bride, melancholy as Evangeline seeking for her 
long-lost Gabriel, enter this Chamber with slow and mournful step 
and head with modest droop, and thus march down yon aisle and 
stand before that hymenial altar to fulfill her nuptial vow. From the 
sidereal precision with which she has annually swept within our view, 
one with poetic fancy might have imagined her a planet of the sun, 
if the close pursuit of her numerous bridesmaids, robed in white illu¬ 
sion, had not at once suggested the coming of a comet with its nucleus 
in total eclipse. Unpoetic as I am, I have thought that astronomers, 
are wrong, who say, the seventh of the weeping Pleiades is lost. She- 
has not been lost. Her brightness was only obscured, and it wa.s 
reserved for the telescopic eye of the republican party, eight years 
ago, while sweeping heaven and earth in search of votes, and turning' 
heavenward, for the first and it is thought the only time, to discover 
her in right ascension and surpassing glory, and to fix itself in selfish 
adoration on her charms. 

If the entrancing power of one wandering Pleiad can thus move the 
greatest power of the globe, well might Job inquire, “Canst thou 
set bounds to the sweet influences of Pleiades ? ” 

Here, again, I have said, is this lonely pilgrim weeping and waiting 
for that tardy groom and that tardier nuptial joy. Panged beside^ 
her again stand her ever-faithful bridesmaids clothed in white, sym¬ 
bolic that in this iinion, as in a ray of light, all color will be absorbed,, 
and this dark bride shall be pure white. Foremost and first among 
them is one bearing over her serene bosom the general motto “ With¬ 
out distinction of race, color, or previous condition of servitude.” Be¬ 
side her is another adorned with the motto “ Equal enjoyment of the^ 
accommodations, advantages, facilities, and privileges of cemeteries.” ’ 
But time will not allow a notice of them all. My eyes, however, fall' 
on one who is rather advanced in years, but bearing herself with alii 


8 




lie iiinoceuce and playfulness of cliildliood. Her levity really is in 
pointed contrast with the sober, solemn bearing of all the rest. Upon 

the brow she wears a wreath of flowers, slightly faded, however, ^ 

about like Atalanta’s after she stooped to take the golden apples. 

From her seeming familiarity with the bride it might be supposed she 
could say of her as the Teuton said when asked if he knew a certain 
member of the porcine family, “ We were raised together.’' Her zeal 
to have the nuptials solemnized is shown by being adorned with two 
mottoes, either most aesthetic, appropriate, and suggestive, whether 
adopted from “internal suggestion, or the bias of jurisprudence.” 

The one reads, “ Full and equal enjoyment for the bride in circuses and 
menageries, especially of the clown, for Motley’s the wear.’” The 
mother, “ A little learning is a dangerous thing.” 

But tempting as is the loveliness of this scene to make me linger 
rand dwell upon its ever-springing beauties, I must pass on. I have 
risen as the friend of innocence to solemnly protest against these 
bans. This trusting Ethiopian for eight years of unrequited faith 
has been the victim of misplaced confidence. That scape-grace has 
deceived her trusting heart from the beginning of their courtship. 

He has broken time and again the honeyed vows he has so often made 

to her. The first tender pledge by which he won her heart has not 

boon kept. He promised if she would obey, love, and honor him, and ^ 

elevate him to offices ef profit, he would give her “forty acres and a 

mule.” 

This promise he has not only broken, but he has added deceit to 
perfidy. For strolling forth with her, hand in hand, in the Land of 
Flowers, under the glimpses of the moon, in the sweet spring time of 
nature and of reconstruction, among blossoming oranges, and feeling 
like Adam, and Eve in paradise, but looking like a lovely brace of 
Diana’s foresters, and carrying in his other hand all his worldly 
goods, his lares and penates—the immortal carpet-bag—after pa.ss- 
ing out of sight, he tenderly pressed her hand and bid her pause, as 
he had come to set the boundaries of her land. Then gently placing 
that sacred depository of the reconstruction acts and his extra striped 
shirt upon the ground, and untying therefrom the cotton string 
which a few nights before he had borrowed from a colored friend 
while he was sleeping, and murmuring meanwhile his oft-repeated 
protestations of devotion to his fair betrothed, whose chuckle spoke, 
responsively, her great delight, he dre w forth four streaked stakes, such 
as Jacob used when he walked forth to swindle Laban out of his 
.flocks, and measuring olf a rood or two of laud, stuck down the stakes ^ 

.and told her that was her domain. Then sadly lingering, as only 
do vers can when doubts arise, 

“If e’er again should meet those mutual eyes,” * 


9 


with touching teuderaess they exchanged fit emblems of their mu¬ 
tual regard and trust. In token of her own she gave, at his request, 
a paper with emerald finish on the back and bearing on its face a 
printed promise of his Uncle Sam “never to pay five dollars to the 
bearer,” while he, determined that the family reputation for plighted 
faith and non-performance should never be dishonored at his hands, 
gave in return an autographic manuscript which breathed the depth 
of his devotion, and then he went his usual devious way in darkness 
to his den. That manuscript, upon interpretation to that bewildered 
baron, was found to read as follows : “As Moses lifted up the serpent 
in the wilderness, so* have I lifted his last five dollars out of poor old 
Joe.” [Laughter.] 

The energy displayed by this prodigal is the old courtship of Justice 
Shallow seeking to confer the honor of his armigero and Ciist-alorum on 
Mrs. Anne Page. That learned pundit did not discover the charms, 
the graces, the social equality of Mrs. Anne until Sir Hugh Evans gen¬ 
erously suggested that she possessed the attractive virtue of seven 
hundred xiouuds. “Seven hundred pounds, and possibilities, is good 
gifts,” said that hymenial diplomat. Eiglit hundred thousand votes 
and possibilities are a mighty ally, says the republican Machiavelli. 
And here lies the secret of this billing and cooing. The eight hundred 
thousand votes cannot be had unless the owner of them be received on 
social equality. The doweragess must go with the dower. But when 
he takes her for better or for worse it remains to be seen whether he 
will secure the gifts and j^ossibilities. 

Let us suppose the wooing twain made one; and the bride, blushing 
modestly, receives the congratulations of exultant friends. The friends 
retire, and the happy groom and bride are left alone; he to dream of 
glory, of power, of empire, through the dower and expected possi¬ 
bilities, she of equality at fUes and executive receptions and sen¬ 
atorial entertainments, and in hotels, theaters, circuses, churches, and 
cemeteries. Ecstatic over his matrimonial success, he revels in con¬ 
templation of the triumphs by which his freedom a century ago was 
won; he regales her with an eloquent rehearsal of the heroic deeds 
done at Concord, Ticonderoga, Monmouth, Trenton, Savannah, and 
Yorktown. At the close of this patriotic rehearsal the bride yawns, 
and lovingly inquires when the next circus will come to town. Passing 
at a bound from the Revolution of ^76 to the war of 1861, he tells his 
beloved of the glorious triumphs in arms which were begun for and 
resulted in her liberation. He is eloquent in portraying the injustice 
of Providence in permitting her to be enslaved, and grows compla¬ 
cently grand in demonsHating that he, despite Providence, struck off 
her chains and set her free. Then, “turning to see the smile her 
cheeks put on,” as in trusting innocence she reclines on that fountain 
of philanthropy, his gushing bosom, he finds his beloved fast asleep 
and sonorously snoring. 


10 


Being a ruler and the head of inimmerahle money-coteries—vul¬ 
garly known as ‘‘rings”—whose gravitating center for twelve years 
past has keen the pocket of his wealthy Uncle Sam, he has credit, 
of course, and establishes his respectability by taking a bridal tour. 
They visit their Long Branch—formerly known as Louisiana, but 
which has recently been let by him to a military commission consist¬ 
ing of the Federal Executive and judiciary to make experiments in* 
testing the relative merits of a despotism and a republic. True, tho 
enraptured tourists will not see the Execiitive there in jierson, but the 
brightness of his glory will gleam in his bristling bayonets. But they 
Avill be measurably compensated for this loss,,in beholding his judi¬ 
cial lieutenant (Durell) playing the role of Bottom, the weaver, 
kindly attended by his prompter and keeper, (Kellogg,) who constantly 
coys his amiable cheeks. Jumping or kicking down all barriers set 
upon him, the creature strays at large, bearing in blazoned capitals 
between his CA^er-lengtheuing ears his advertisement, so comforting 
to this young man’s heart: “ States made to order,- despotisms guar¬ 

anteed.” Visiting their Newport—South Carolina—they see Moses and 
Ids profits; not the Moses of- old, nor the jirophets of old, but Moses of 
the negro millennium and the profits of insatiable Mammon; .not Moses 
of the Ked Sea, but Moses in the dead sea—the sea of dead thrift, dead 
consciences, dead hopes, dead hearts, everything dead or dying except 
the crawling, squirming, slimy, icy worms that fatten on the body of 
this death. 

But while our prodigal hero is treading this primrose path, his lease- 
liold estates are falling away. Judgments are rendered against him in 
Ohio, New Hampshire, and Connecticut by tribunals from Avhich there 
is no appeal, except by the novel remedy insisted on by the Senator from 
Wisconsin, to poll the jury, set aside the verdict, and order a new trial 
by act of Congress. 

Thefalltermsareapproaching,othertrialsarepending,andif defeated 
he must vacate other and much larger premises. With true knightly 
chivalry he has hitherto refrained from calling, on his bride for help, 
lest she might suspect the alliance Avas mercenary. But the time 
for delicate forbearance is past. His needs are inexorable. In ac¬ 
cents as tender as old Rip’s when stealing his bottle from Gretchen’s 
pocket, he confesses his bankruptcy unless she will redeem him. The 
Congress-made statesman as tenderly replies that she intends, like 
other republican statesmen, to “place her votes Avhere they Avill do 
the most good.” In Amin does he invoke to his aid the tender mem¬ 
ories of the past, and portray in frightful colors his ruined condition 
should she desert him. The forty-minute statesman cruelly responds 
AAuth the worldly philosophy of Mr. Pickwick, that she goes Avith the 
strongest side. Inspired by despair he rises “ to the height of his great 
argument.” He recounts again in fervid eloquence the glories of Ticou- 


11 


cleroga, of Brandywine, of Cowpens, and of Yorktown. The machine- 
made statesman unconsciously revealing her rich stores of historic 
knowledge, sharply retorts that brandy and wine have been his ruin, 
and upbraids him because he had never told her before that he owned 
any cow-pens. [Laughter..] As a last hope, he strikes for the tenderest 
chord in a mother’s heart—the love of her offspring. He points to 
rtieir dead—to Georgia, Virginia, and Texas, those dismal babes who 
were sown in corruption, but raised in incorruption. He points to 
their sick infants, Arkansas, North Carolina, and others, and finally, 
as “hope elevates and joy brightens his crest,” he reminds her of their 
beautiful, blooming, lovely, lively republican twins, Louisiana and 
South Carolina. 

The miracle-wrought statesman, assorting her rank of doctor of the 
learned laws rejoins in language at once characteristic and patho¬ 
logical, that she cares nothing for their dead; that their sick babes 
would soon die, and that the tAvins had crushed his spinal column 
Avhile carrying them in his arms on offensive exhibition to the world. 

Mr. President, our hero is not happy. He determines on a divorce, 
and straightway rushes to his guardian senatorial uncle. The case is 
stated with all the indignant emphasis of one who feels he has been 
swindled, and he raves of his loss. The counselor perceiving the sit¬ 
uation, gives his opinion that the husband is entitled to the property 
of his wife—that he can hold her and all she possesses. The ward, 
aroused, appeals to know if a divorce be possible. The guardian, 
equal to the occasion, pockets that opinion, draws forth another, and 
demonstrates that the wife at the time of the union was clearly non 
compos mentis, and that marriage being but a civil contract must be 
supported by a consideration. And as the consideration—the votes— 
for which he had conferred social equality and the blessings of “full 
and equal enjoyment of menageries and cemeteries” had Avholly 
failed, the contract is void. He advises the unhappy Jeremy Diddler 
to repair to Chicago, organize himself into a convention, and dissolve 
the bonds. 

Mr. President, let no one suppose from the illustrations I have 
given of the degree of intelligence possessed by the colored people 
that I mean to ridicule their ignorance. My purpose is far from that. 
Nt) one deplores their benighted condition more than I do. Were they 
intelligent, educated, they would not be the tools and dupes they are 
of wicked adventurers. They would spurn their serpent-like ap¬ 
proach with indignation and contempt. Education would be to 
them Ithuriel’s spear to unmask these ugly and venomous toads who 
carry not even that precious jewel in their heads. 

No, sir; I have thus spoken of the average intelligence of the negro 
race in the South—and which I might have illustrated in a thousand 
ways—to lay bare the folly, the wickedness, the crime of raising them 


12 


from Egyptian darkness and semi-barbarism to tbe high, the responsi¬ 
ble, position imposfng duties and intellectual effort to which the ge¬ 
nius and training of the Websters, Clays, Calhouns, the Adamses, 
Hamiltous, and others not unworthy to be named with them, were 
only equal, and none superior. It was a crime against civilization 
and liberty which has no parallel in the course of time, and doqe 
solely to perpetuate party domination. 

But the democrats, and especially those from the South, are con¬ 
tinually charged by the republicans with prejudice against tlie 
negroes. If they mean to say that we are so far prejudiced as not to 
be willing to accord to them all the rights of citizenship which we 
claim for ourselves, it is not true. But if it means that we are opposed 
to social equality, it is true of both democrats and republicans, and 
any profession of a republican that he is not opposed to social equal¬ 
ity with the negro race is sheer hypocrisy. 

When he spreads the feast, and beauty and wit are summoned to 
revel for a season in the luxury of intellectual foil, why is it that the 
perfumed messenger of hospitality visits not, like pale Death, with 
equal pace the door of the noble black man ? Is it because there are 
none eloquent and witty among this million of republican states¬ 
men? Verily, no ! The eloquence of one now no more hjis so often 
rung ill this Chamber in depicting the high oratory and intellectual 
power of the colored man, that its weird echo still lingers ui)on these 
walls. And whenever a democrat in the other wing of this Capitol 
thrusts his spear in the side of this hollow horse, the republicans 
stuff at once and set upon his legs some son of Ham to reply, and 
the republican press the following day regale the whole country with 
full particulars of the native, cannibalistic art by which the democrat, 
in the space of five minutes, was torn in pieces, devoured, and digested 
by his voracious adversary. 

Is it because the colored man can boast no genealogy; or can dis¬ 
play no family tree; or wears no coat of heraldry ? Certainly not. 
It is the pride and boast of every true republican that he has no gen¬ 
ealogy, and it requires a trip across the Atlantic, at the public expense, 
to subdue his contempt for all armorial distinction. 

Is it because there are none brave among them ? The republican 
party has often assured us that in the late war ‘Hhe colored troops 
fought nobly,” and the Senator from New Jersey repeated the decla¬ 
ration in our hearing on yesterday. It is true, that interwoven with 
the dreadful realities of that struggle, there is much of fiction and 
romantic episode; many imaginary instances of inspiring heroism, 
displayed by the colored troops. Fact and fiction are lamentably 
mingled in inextricable confusion. But there is one exceptionable 
instance of daring and of death, and so notably established on the 
testimony of a single eye-witness, that the Senate must remember it. 


13 


aud it is '^’ortliy of recounting even in this august presence. I see 
that the quick perception and historic learning of this body have 
already anticipated my discovery, and I would even now forego the 
thrilling narration, hut for the fear, that some future Munchausen 
might charge me with prejudice against the objects of the Judiciary 
Committee’s special devotion, should I decline to furnish so valuable 
a contribution to his peculiar style and school of history. I refer, as 
you know, to the Balaklava-charge made by the colored troops, at 
the witching hour of dawn, on empty stomachs—bayonets fixed, 
nipples uncovered—and under command of a general of renown, on 
the 29th of September, 1864, at New Market Heights. The historian— 
who was the general then commanding, and who seems to have been 
the only survivor of those colored troops—tells us the story with 
charming simplicity and with the eloquence of unbridled fancy. He 
says, that being himself in the rear, where he intended to remain, 
and wholly uncertain whether the charge Avonld be feebly to the 
front or with frantic heroism to the rear, he ordered, as a precaution 
for personal security, the nipples of the guns to be uncapped, and 
offering up the prayer of ‘Falstaff, “ God, keep lead out of me,” he gave 
the order “Charge!” [Laughter.] He says that there fell, within a 
parallelogram just ten feet wide and three hundi-ed yards in length, 
the exact number of five hundred and forty-three of his colored asso¬ 
ciates, orone man to every twenty andthree-tenths inches; that as soon 
as they fell, mounted on his fiery Pegasus, like feathered, or “ Harry ” 
Mercury, he marched solitary and alone to one end of that slaughtered 
heap, and fixing one eye weepingly pendent over the dead aud cock¬ 
ing the other fiercely on the enemy—the one tearful as Niobe’s, the 
other glowing like fiery ^Mars’—he rode, with arms akimbo, through 
that parallelngram, over that hecatomb of his companions, to the 
farther end—his horse meanwhile dancing a minuet in the benevo¬ 
lent endeavor to find ground on which to plant its rcA^erential feet. 

This was an exploit worthy of deification. Pity it is, it had not 
been performed in the pre-IIomeric or Hesiodic age, as that genera¬ 
tion, so appreciative o‘f horse gymnastics, would have deified and 
translated the heroic actor, and he would now be enjoying the beati¬ 
tude of hero-worship in the constellation of Aries or Taurus; or, 
happier still, he and that horse might now be a bright, particular con¬ 
stellation in themselves, under the propet name of Equus-anthropos, 
Avhich lovers, at parting, would designate to gaze upon at the tender 
hour “when twilight dews are falling fast,” and renew their Amws of 
devotion. 

But why that humane general should have ridden that tender-hearted 
horse over the dead bodies of his colored associates, instead of making 
a brilliant flank movement along that geometric holocaust, such as 
only he can Avhen moving on a custom-house, I have fatigued my imag- 


14 


inatiou iu the vain endeavor to discover. Perhaps, like Mrs. Malaprop, 
he was trying to*ascertain the “perpendiculars’^ of the slaughter; 
perhaps it was to accommodate the angle of his vision; perhaps to 
test the sensibilities of that horse. But conjecture is all in vain. It 
was simply one of those direct forward movements over the bodies of 
one’s friends, so often witnessed in political strategy, and never known 
in military tactics, that it must remain a moral wonder until lapse of 
time and oft repeating shall consecrate it as a truth, or until some cruel 
CEdipus shall rise to solve the riddle and destroy its artful inventor. 

But gallant as was that fatal charge, and heroic and solemn as was 
that perilous equestrian exploit, they pale into paltriness in ijresence 
of the sublime sequel to this military evolution as given in the simple 
story of this historian. He says that having finished that horse cou- 
ranto —consisting of a coupee, then a high step, then a balance—he 
sounded a solemn halt, faced mournfully about, fixed his eyes again as 
already described, gave the order, “Attention, General!” and in chronic 
absence of the Bible, drew from his holster-case a pocketedition of the 
Massachusetts Pilgrim’s Progress issued under the Maine liquor law, 
and kissing one end devoutly with his face turned upward, he adminis¬ 
tered to himself a solemn, corporal, and general oath, that so long as 
his surviving colored companions would vote to make him governor of 
Massachusetts or a Representative in Congress, he would spasmodi¬ 
cally devote the idle moments of the remainder of his political and 
ofiicial life, in a feeble eftbrt to secure to them the great constitutional 
right to attend “ without distinction of race, color, or previous condi¬ 
tion of servitude” every theater, circus, and menagerie in the United 
States of America and the Territories thereof. [Laughter, and man¬ 
ifestations of applause in the galleries.] 

The PRESIDENT pro tempore. Order! Applause is out of order. 
The Chair will remind those persons occupying the galleries that if 
the rules of the Senate are violated the galleries will be cleared. 

Mr. NORWOOD. He then sealed his oath by pressing his feverish 
lips once more to the bibulous end of that cherished volume, and call¬ 
ing in the eye which had meanwhile stood sentinel on the enemy, he 
dismissed himself from the parade. • 

Such is a tame picture of the heroism displayed on that tearful 
day. Truly and wittily has it been said that history is his story! 
But true in every essential, or false in every particular, as may be 
the grandiloquent descriptmn of that charge, it serves my purpose 
with equal force. For I am not trying to sift the truth from history. 
I am arraigning the republican party for the manner in which they 
treat the colored freemen of America in refusing to recognize them in 
all the social relations of life, while endeavoring by national legisla¬ 
tion to force the poorer class of whites, who are their constituents, 
into social equality with the blacks. For, sir, this is the true issue 


15 


made by this bill, and they cannot blink it under the flimsy pretext 
of securing civil rights. 

Do the republicans refuse social equality to the negroes because 
there are none among them intellectual or learned? Why, sir, a few 
months ago a colored man delivered in the House of Representatives 
a dissertation on civil rights so full of classic lore, historic research, and 
illogical conclusions, that base envy has even hinted the name of 
more than one republican Senator as the author of that production. 
Besides, many of them fill eminent chairs of learning, professorships 
in colleges, and petty offices by grace of executive patronage. In¬ 
deed, in every locality in the Southern States where it is necessary 
to gain the votes of the many through the influence of a few retain¬ 
ers, a tub is thrown to the whale, and here and there, with a rarity 
that is chillingly exceptional, we see a colored man beguiled, through 
the gift of a petty office, into the flattering delusion that he is held 
in cordial regard by the republican party. 

And when the inaugural ball came off last year in that grand 
structure which “ rose like an exhalation from the deep,” “ as by the 
stroke of the euchantei'^s wand,” when at night— 

‘‘ The nation’s capital had gathered then, 

Her beauty and her chivalry, and bright 
The lamps shone o’er fair women and brave men”— 
what post of honor and distinction was there assigned to these 
dusky children of the sun who by their votes had raised their leader, 
that day inaugurated, to his toppling, dizzy height ? Why did we not 
then behold some of those fair jeweled arms, weary with the weight 
of their glittering wealth, also adorned by a few of these charcoal 
diamonds so much treasured at the polls by the pale masters of those 
ceremonies? And of the thousands who on that night ‘^chased the 
glowing hours with flying feet,” dancing, like Miriam, in joy at the 
nation’s redemption from the enemies of the colored race, why was it 
that there skulked and flitted here and there but a baker’s dozen of 
the nation’s wards, who came, too, in such “ qiiestionable shape” and 
in such Caucasian disguise, that Nott and Gliddon, had they kept the 
door, 'would have resigned their posts from mortification and disgust 
in the desperate eftbrt to determinine their ethnology ? And yet these 
few, as they floated and spun in sequestered knots among that white 
multitude, were, to their joy on that occasion, like a dead fly in the 
apothecary’s ointment. 

Were the managers of that festivity southern men and women ? 
Were they democrats ? Were the invited guests southerners only? 
Were there no republican fathers and sons, mothers and daughters, 
in that exclusive assemblage ? Tickets were distributed to Senators 
and Representatives to be issued by them to their friends and con¬ 
stituents “without distinction of race, color, or previous condition of 


16 


servitude.” Aud wiiicli Seuator here, with blandest suavity, or even 
by act perfunctory, solicited the pleasure and honor of the corai>any 
of his friend, Scipio Africanus, or of his sister, Miss Cleopatra Congo, 
or even of his distant relative. Miss Angelina Octoroon ? 

Why did not some enterprising statesman in the republican party, 
with eyes fixed upon the White House—if possibly there be one among 
them who has sunk so low—pluck the ripened oi>portunity so golden 
in promise and thus seal to himself a million voters ? 

Republican Senators Avish to compel common carriers to open their 
cars and ships to all comers alike ; in other words, to force the whites 
to this intimate association and close contact, or to stay at home or 
provide their own coiweyance. The poor are here to be the \Tctims. 
Tlie rich can gather up their velA^et trains and sweep contemptuously 
by the poor whites and negroes banked and huddled together, and 
take luxurious refuge iu a palace car. Thus money is to establish 
class and caste. The millionaire—the shoddyite who during the war 
risked one and gained four—like another worm that retires and rests 
secure in its oavii cocoon, can fold himself Avith dignified reserve in 
robes of silk, and with complacent smile AAUiA'e, as Avith a golden 
Avand, the black man to a respectful distance. 

Here in tlie shadow of this Capitol we see in miniature the Avorking 
of this laAv. Here, too, w'e see how the honorable Senators who faAmr 
this theoretical etiuality carry it out in practice. Two lines of street¬ 
cars come to the doors of this temple Avhere worship the deAmtees of 
social equality, hooded and consecrated under the name of “ equality 
before the law.” Over one the fare is fi\’e, over the other seven cents. 
Over one passes no dead-head; the car blazes Avith the warning, in 
otfensive prominence, “ No one rides free OA^er this line.” This is not 
only the anti-dead-head, but it is also the more expeusiA’^e line. The 
other company not only charge but five cents for a single ride, but, 
moved by that Aucious custom AAdiich has almost become a laAV, they 
issue to all Congressmen free passes for the year. OA-er this line ride 
the poor, both AA’hite and black, but where does—not the ungodly, but— 
the Congressman appear ? When he has finished his sublime philippic 
against the tyrant. Prejudice, and folded his toga around his towering 
form and steps forth a walking advertisement of social equality, or, 
if he prefer, “ equality before the law,” he moves of course, with log- 
icaljnstinct, straight to the black man’s car, and demonstrates in prac¬ 
tice all he has taught by precejit. Strange to say, his instinct—un¬ 
mixed with prejudice of course—carries him the other way. This 
seems strange to the unsophisticated. No doubt it does to the black 
man, AA'ho is just beginning to discern the delicate shade of distinc¬ 
tion drawn by his republican friends between himself and a ballot- 
box. He knows they stuft’ the box with ballots, but he is just begin¬ 
ning to realize, from his unsatisfied appetite,,that they have been 


17 


stuffing his small capacity with soft sawder, or, in his own expressive 
language, with “ solf sawdust.” 

But it would be grossly unjust to intimate that the honorable 
friends of the colored man avoid the avenue line because he is ever 
to be found aboard. There must be other reasons. No doubt they 
ride on the Metropolitan line because it is anti-dead-head. No Sena¬ 
tor ever rides as a dead-head. He would scorn himself; yes, scorn 
any man who Avould offer to pass him as a dead-head. He would as 
soon submit to have his salary increased as to be classed among the 
dead-heads. And I do not know a subject on which all Senators, ex¬ 
cept eight or ten, are so desperately resolved and determined as in their 
opposition to an increase of salary. Nothing short of mandatory in¬ 
structions from their constituents could overcome their heroism on 
this subject. He will not use the avenue line because he would be a 
dead-head. His money would remain in his pocket. “ The love of 
money is the root of all evil,” and he resorts to this delicate device 
to drop his salary along the highways as a contribution to the poor— 
the railroad companies in the land. His refined sensibility is wounded 
at the thought that his traveling colored companion, who pays, should 
see him riding free, and he scrupulously avoids giving offense to a • 
brother. This is kind, it is noble, it is heroic and self-denying, it is 
the very essence of Christianity,- and because it is the essence of 
Christianity, or a great moral idea, the advocates of social equality 
avoid the avenue line. 

Thus we see that the prejudice is not peculiar to the democrats. It 
belongs to us all. It is nature, it is instinct, it is reason. But I will 
go one step further in this direction and then turn to another branch 
of this subject. Let us suppose a case. And without doing violence 
to the hypothesis, we will suppose that after some champion of this 
bill to establish social equality has by his vote conferred upon his 
poor white constituents the honor of free association in schools with 
negroes, those constituents should meet in convention and resolve, 
that they have taxed his patriotism long enough and will not impose 
upon him the burden of serving them in Congress any longer, but 
will permit him to take rest in the bosom of his family and among 
his colored associates, even against his earnest protest that he is 
willing to sacrifice himself further in their behalf. Fortune mean¬ 
time deserts him and he becomes poor—for even a congressman, after 
his terra is ended, may become poor—and from necessity, has sent his 
daughter to a mixed school. When she attains sweet sixteen a young 
gentleman of African descent, of untainted blood, who can trace it 
back in its ethnological purity as far as Noah and the flood—educated 
and refined, exquisite in dress as Beau Brummell, as worthy to lead 
the fashion as Beau Nash, wealthy as a moiety contract, a custom¬ 
house ring or District ring can make him, and appreciating the ad- 
2 N 


# 


18 


rantages of civil rights, calls to ask of that ex-champion of social 
rights the honor of his daughter’s hand. Does any one doubt from 
which extremity of that ex-champion the instant reply would come— 
whether fi’om his head or Ids heel ? He would not reply categorically; 
but with a few vigorous utterances, not strictly canonical, he would 
impinge on that astonished Adonis with both ends in action like a 
supple-jack and battering-ram combined. 

But, turning, he finds his sweet sixteen in spasms, and on inquiry 
for the cause, ho hoars a tale that makes him cry with old Brabantio, 
‘Who would be a father ?” She tells that doting father, that civil- 
rights advocate, that political trader, who in trying to buy the negro 
vote cheap has sold his daughter dearly, that the ejected gentleman is 
her affianced lover ; that she has doted on him from her youth up ; 
that in the same school where her philanthropic father placed her at 
ten, close at her side sat, day by day, for years, that idol of her heart; 
that her first lessons in Peter Parley and Ovid’s Art of Love rippled 
in melodious accent from his angelic lips— 

“O, it came o’er my ear like the sweet south, 

That breathes upon a bank of violets, 

• Stealing, and giving odor”— 

that when to the theater and to church she went, the Apollo of her 
bosom followed and took a seat near by, and thus and thus he had 
won her heart. 

^d finally, in love’s rhapsody and with Cassandra’s inspiration, 
she forewarns him that her life, like his political party, must be a 
f ailm*e, and, like Ophelia’s, end in “ muddy death,” unless he will bless 
the bans, and after death lay herself and darling side by side in the 
same grave-yard beneath a damask rose and a lovely black-jack— 
or quercus nigra —as emblems of their homogeneous union, and chosen 
by his poetic soul as the happiest tyi^e of civil rights. [Laughter.] 

Let us pause for a moment and consider whether this advocate for 
civil rights would thus act. If there be one who would not, let him 
avow the fact. If any white man would, under any circumstances 
consent to such an alliance by a member ‘of his family, let him declare 
it and put himself in Coventry. If he would not, the conduct of the 
champion is true to nature. But would it be logical from his stand¬ 
point ? He denies that he has any prejudice to the negro race! Then 
why not intermarry with themf He has no feeling of hostility! 
Then, all other things being equal, why oppose his marrying a rela¬ 
tive I The question admits of but one answer, and that is the answer 
that God has put in the mouth of every white man since he created 
man in his diversity. That answer is, it is repugnant; it is loath¬ 
some ; it is unnatural. The feeling, the prejudice, the repugnance is 
universal. Such an alliance is unnatural; and what is unnatural is 
forbidden, and what is forbidden is unlawful.* I say this prejudice 


19 


is universal. Climes do not change it. Education does not subdue 
it. Christianity does not abate it. Civilization but intensifies it, 
* and science has demonstrated its wisdom and its benefit to the phys¬ 

ical, intellectual, and moral iiower and greatness of the white race. 
^ It had its birth at creation, has survived the ages, the graves of em¬ 

pires, the subjugation of races, and will ever live and perish only 
with the last expiring man. The question of its universal existence 
no more admits of doubt or argument than the proposition that black 
is not white, or that the races are distinct. 

But it is said, “Admit it, then what of it? We do not mean that 
blacks and whites shall marry.” Well, if you do not, then be consist¬ 
ent, be logical. Let precej)t and example be in harmony. If you 
would not marry them, then coerce no conditions in life among the 
poor, who cannot protect themselves, by which you increase the dan¬ 
ger of such relation. You would not encourage marriage between the 
two races, but you compel them to associate in every social condition. 
You tell your child not to gamble, but that he must associate with 
gamblers. You tell him not to drink, but he must affiliate with drunk¬ 
ards. You instruct him not to lie, but chain him neck to neck with 
liars. You caution him not to make companions of negroes—not to 
marry one—but you tie him side by side in the tenderest age of life 
with negroes. And thus you tell him the negro is as good as he. 
I You make them playmates, partakers of common joys and sorrows, 

■associates at school, associates in pleasure, associates in church, in 
public conveyances, at meals, when traveling, and lay them away to 
sleep their last sleej;) side by side. Every act is a declaration of social 
equality, and every word is a denial of yom- acts. 

How such a father shall at'the lips of his own child escape the con¬ 
demnation pronounced against the hypocrite will turn on either his 
being a greater hyimcrite or the preferable alternative of his being 
' a natural fool. 

Woe be unto the political party which shall declare to the toiling 
yeoman, the honest laboring poor of this country, “Your children 
are no better than a negro’s. If you think so, you shall not practice 
on that opinion. We are the rulers; you are the servants! We know 
what is best for you and your children. We, the millionaires— 
we who are paid out of your pockets, will take your money and will 
send our children to select high schools, to foreign lands, where no 
negroes are; but you, you who are too poor to pay, shall send your 
ragged, hungry urchins to the common schools on such terms as we 
dictate, or keep them away to stray among the treacherous quick¬ 
sands and shoals of life; to wander on the streets and learn to sylla- 
t ble the alphabet of vice and crime, or stay at home and, like blind 

Samson, in mental darkness, tramp, barefoot, the tread-mill of unceas¬ 
ing toil.” 

To constrain the traveling public to distasteful situations; to com- 


1>0 


pel the pleasure-seeker to stay at home or submit to aiiiioyance greater 
than the j^leasure; to make a battle-ground of public schools, or drive 
the poor away from their doors—these iniquities are not enough for 
the republican party. They must take one step more ; they must 
torture the living by stepping into the graves and disturbing the rest 
of their cherished dead. They say to the poor man whose departed 
loved ones must be buried in the public cemetery, and may be at the 
public cost, “ Bury your dead where we say, or throw them out in the 
potter’s field like dogs; bury your wife, your cliild, side by side with 
the negro, or any one we name.” And if in time the bloody scythe of 
Death has filled the ground until, in files, the sleeping soldiers of the 
Cross lie elbov/ touching elbow, and the files must be now doubled, you 
command the sexton to open the grave of the poor man’s wife or child 
and bury a negro there, though he died by the hangman’s rope for a 
crime that should debar him Christian burial, or he shall forfeit his- 
money to the villain’s kin and waste in a prison cell. 

If I have thus far treated this subject with too great solemnity, 
may I not indulge the hope that the Senate will extend to me its 
charity, at least until I may be heard ? One less reverential might 
deport himself in the presence of this dignified question Avith some 
degree of levity. Far be that from me. But when a few days ago 
the Senator from New Jersey [Mr. Frelinghuysen] solemnly rose 
and as solemnly announced that this interesting nuptial ceremonj'- 
was temporarily postponed, because one was absent who desired to 
participate in the joy of the occasion, I felt funereal, because tho 
Senator looked funereal. It is natural to some men to feel funereal, 
and it is natural to some men to look funereal. And if I have thus 
felt and spoken on this momentous occasion, Avere it deemed ne- 
essary or even coiiA'^entionally appropriate to oftor any suggestion by 
way of extenuation, I could only point to a temperament somber 
enough indeed by nature, but greatly heightened in lugubrious tone 
by the colors of the dark and gloomy subject which has for several 
years commanded and received our profoundest consideration and 
respect. 

For, sir, we are engaged in determining a question of the greatest 
moment to the American people. 

The great question is how Ave shall maintain “ equality before the 
law,” or, expressed in equivalent terms, how the republican party can 
get the negro vote and thus be saved. Upon the correct solution of 
this political conundrum may turn the destiny of this and all repub¬ 
lics. Happily for this generation and the fate of unborn millions— 
the genius of the republican party, hitherto equal to every undertak¬ 
ing which could work disaster to the country, has not been found 
wanting in grand conception to lift from the gloomy future its Cim¬ 
merian veil. Liglit breaks in upon us, and torturing shadows fiee 


21 


iiway. The whole country breathed with freedom and delight on 
hearing it announced, through the rex)ort made by the Senator from 
New Jersey, that the Senate Judiciary Committee, after a laborious 
and anxious session extending over several months, had solved the 
most perplexing national embarrassment of this or any other age, by 
the eminently wise and profound conclusion that the easiest, most 
dignified, and patriotic measure which they can devise is, that Con¬ 
gress shall enter, without delay, upon a general cemetery and hotel 
business. 

Sir, I shall not commit the folly of entering upon any extended 
argument in the vain hope of adding anything in support of the able 
report of that committee; nor will I perform a work of supererogation 
by enumerating the inestimable blessings to flow in perennial stream 
to the American people, if the republican party, or even the dominant 
majority of the present Congress, should resolve on establishing a 
cemetery, even though, as with everything else within their reach in 
the United States, they should appropiate the advantages and enjoy¬ 
ment of that peaceful institution exclusively to their own use. Such 
an act would be so singularly patriotic, and so signalized as their only 
peaceful step, that it would be hailed with unanimous acclaim by an 
indignant but grateful jicople. 

It requires but a casual reference to the report of the committee to 
show that my encomium on that production is but too tame and 
feeble. The Judiciary Committee have discovered what Christians 
and pagans in all ages have vainly sought to know. Their labor for 
mouths has not been in vain. They have penetrated the veil, have 
held converse with dwellers in the mystic land—but not with that 
host of republicans which no man can number, who are wandering on 
the Stygian shore without obuli, and unable to cross, because Charon 
refuses to take their irredeemable currency—and have returned to 
earth with the joyful tidings that there is happiness in the grave. 
They tell us in their report that there is such a bliss as “ enjoyment 
of a cemetery,’’ and with a broad philanthropy never known to man 
before, they have declared their unselfish desire, most felicitously ex¬ 
pressed by themselves, (as I quote,) that “all persons within the juris¬ 
diction of the United States shall be entitled to the full and equal 
enjoyment of the accommodations, advantages, facilities, and privileges 
of cemeteries.'’' [Laughter.] 

It may be that this discovery is not original with the Judiciary 
Committee of the United States Senate. It may be that suicides, 
(and by this word I mean not to intimate the fate of the republican 
party,) finding no happiness in this life, are given a glimpse of the joy 
to be found in a cemetery, and philosojdiically rush to its embrace. 
But it is only just to the Judiciary Committee that I should state, 
they tell us there is joy only in a cemetery “supported by general 


oo 

taxation.” What joy there is in anything in this world, or ont of it, 
that springs from general taxation, puzzled my understanding before 
I read the report of the Judiciary Committee. Had I been left to 
my unguided reason to learn why there is enjoyment in a public cem¬ 
etery and none in solitary burial, with the provisions and aims of this 
bill before me, I would have supposed it is, because in one we ^ould 
have “the full and equal privilege” of colored society, while in the 
other we should lie “ in cold obstruction ” and in cheerless solitude. 

But, happy committee, who have made the comforting discovery 
that there is one spot on this sad earth where general taxation brings 
joy to its inhabitants! And happier, still, should be the American 
people, as, under republican rule, they are enjoying more “general 
taxation” than any j)eople on the face of the globe. What joy has 
not that party in reserve for us? They have given us the joy of 
reconstruction—the joy of Holden, of Scott, of Bullock, of Eeed, of 
Smith, of Ames, of Warmoth, and Kellogg, and, greater than all, of 
Durell; the joy of ten States burdened with irredeemable debt; the 
joy of one State politically dead ; the joy of another under acknowl¬ 
edged despotism; the joy of a third in the throes of internecine war; 
the joy of an irredeemable pax)er currency; the joy of financial dis¬ 
aster; the joy of ceaseless investigation of their public officers; the 
joy of innumerable “rings” whose radii reach every nook in the land 
where a coxDiier can be stolen; the joy of taxation by wholesale and 
by detail; the joy of negro dominion and white subjection ; and now 
they prox) 08 e to honor us with “'equal and full association” with ne¬ 
groes, and to give us as a final bequest, to be enjoyed after death, the 
enjoyment of a cemetery!^’ 

The history of tlie j>arty itself is a demonstration that it needs a 
cemetery. Argument Avould but weaken the conclusion. The people 
see it. They have long felt it. A dozen or twenty States stand 
willing and eager to donate liberally their ground. Indeed, sir, the 
people themselves, in proportion as they are zealous for the public 
good and have been watching the movements of that philanthropic 
jiarty andschool of statesmen in their concentric and eccentric “rins’s,” 

O / 

have been, in like degree, generously moved, themselves, to inaugurate 
this mortuary enterprise. They have determined, that these states¬ 
men, white and black, who have signalized themselves by such dis¬ 
tinguished service—a service, sir, in which they have made a voluntary 
sacrifice of everything except themselves—shall by the coming of the 
grand centennial celebration of our nation’s birth, find “ free and 
equal accommodation” in the hospitable chambers of a retired sepul¬ 
chral home, “ without distinction of race, color, or previous condition 
of servitude,” where they may “rest from their labors,” and enjoy, in 
eternal seclusion, the earnest prayer of every patriot, that “ their 
works do follow them.” 


23 


Tliese republican statesmen have heard the sentence pronounced 
upon them by the people, the tribunal of last resort, and they know 
it will be carried into execution as surely as the day appointed shall 
come. But the Judiciary Committee, with that repugnance to being 
buried alive so natural to all politicians, have reported this cunningly 
devised measure for the purpose of avoiding the sentence. This bill, 
to bury negroes and whites together, is but an indirect and covert 
attempt to drive the people to adopt the system of cremation. The 
committee, however, need not be alarmed as to the method by which 
their party will be taken oif. The people care little or nothing for 
the manner of their departure. All they desire is, that they will not 
“ stand on the order of their going, but go at once.” Whether they 
complete the work of suicide which they have been slowly commit¬ 
ting for nine years past, or whether they wait to be buried alive, or to 
take their first ujjward tendency and flight in the fumes and ashes 
of cremation, is with the people a matter of trifling moment. And I 
think I may safely say, speaking as one of the people, that on peti¬ 
tion to them by a delegation or two of the money-kings of Boston and 
New York, whose influence seems to be more potent with the Ameri¬ 
can throne of grace than the expressed will of the laboring masses, 

. the people would kindly reduce the judgment passed to bury the 
republican party alive to that of incremation.' 

I The question is, how shall we save the republican party ? But the 

answer to the question, I confess very frankly, i)asses my uudersttind- 
ing. It involves too much erudition in surgery, therapeutics, anti¬ 
septics, and prophylactics, for my limited store of learning. When 
the President sinks back in despair before its impossible solution, the 
case may be considered without remedy. He was deeply and pain¬ 
fully impressed with the necessity for immediate and omnipotent help, 
and after most thoughtful deliberation concluded, there was but one 
remedy, one hope—and that was by unloading. He commenced, but 
finding, even if he could finish the work within his natural life, that 
at the end, there would be nothing left of his party but the cart, mule, 
and negro driver—the only innocent things he could find about it—he 
stopped, ordered up the tail-board, and is now driving heroically on 
to the chasm. 

An earthquake produced an abyss in the forum of Rome, which her 
citizens endeavored in vain to fill. A noble youth who had endeared 
himself to his country by many deeds of valor, hearing that the abyss, 
which threatened the destruction of Rome, could never be closed 
without a sacrifice of human life, clad himself in full armor, mounted 
his charger, and leax)ed into the chasm, which closed, and his country 

I. was saved. 

Between the two sections of this Union the thunderbolts of war 
have made a deep and bloody chasm. The good and true i)atriot8 


24 


have vainly tried, for ten years past, to close it up. The evil genius of 
the republican party has thwarted every attempt. But the country 
has found, at last, a Curtiusin the hero of the Northern Army. That 
leader has performed many martial acts for which he is cherished in 
the hearts of the majority of his countrymen. But his patriotism 
never shone with such ettulgence as at this moment, when we behold 
him with closed eyes and clenched teeth, driving his cart loaded with 
his party and the bondholders recently mounted behind, full tilt into 
that bloody chasm to save his country from destruction. The desper¬ 
ation of the imminent leajj would excite enthusiastic admiration, did 
we not know, that the tragic performance is of necessity and not of 
choice. The blending in one red burial of party and cart, negro and 
mule, would make every patriot sad, but for the pleasing conscious¬ 
ness, that their loss will be their country’s gain. And when we remem¬ 
ber how luxuriously they have lived, reveling in purple and marble 
halls, and spending in lavish waste the profusion of a nation’s wealth, 
our pity might be aroused that those, who have so much to make them 
cherish and cling to life, will so soon and forever pass out of view, 
did we not know that they will go full-handed, and will leave noth¬ 
ing behind but a bankrupt estate, and creditors divided in feeling 
between indignation at the loss of their debts and joy at riddance of 
the debtor. 

It is also equally clear that Congress should without delay enter 
upon the enterprise of keeping a hotel. The power of Congress to 
keep a hotel is plainly given in and by the words ‘‘ to promote the 
general welfare;” or may be drawn from the Declaration of Inde¬ 
pendence; or the preamble to the Constitution so often cited in sup¬ 
port of propositions equally as clear as this, by the honorable Senator 
from New Jersey. 

Peace and order are necessary to the general welfare. And without 
consuming time in demonstrating, cxegetically or pathologically, the 
far-reaching influence of gastronomic eciuilibrium, I may rest content, 
in this enlightened i^resence, with a statement of the general proposi¬ 
tion, that no plan more philosophical, humane,,and patriotic than the 
one recommended by our Judiciary Committee, could possibly have 
been devised for the purpose of preventing sectional rebellion and civil 
war. For history, which is but a panorama of arms and human gore, 
does not contain one single well-authenticated instance of a people 
rising from a full and hearty meal, and rushing, juior to digestion, 
into insurrection. 

But still more salutary will be this wise enactment, because with¬ 
out it absolute “equality before the law” cannot be maintained. 

The objective aim of this republican statesmanship is at the rebel¬ 
lious spirit of the keepers of liotels in all America. It is to guaranty 
abdominal equality to all guests, black and white. To do this. Con- 


gress itself must act iu carrying out the law. This is a body of dele¬ 
gated powers. Fotestas delegata, non potest delegari. The power of 
Congress to keep a hotel being a special delegated power, we cannot 
delegate that power to another. It will be necessary", therefore, to or¬ 
ganize a special committee, which, without intending to infringe upon 
the prerogatives, which, in this great work, belong exclusively to the 
Judiciary Committee, I, with all deference, suggest, might be called 
^‘The United States Grand Eclectic, Peripatetic, Special Committee 
on Education, Grave-yards, and Hotels.” [ Laughter. ] From this grand 
committee a sub-committee can be appointed, to be called the dining¬ 
room committee, to be adorned with white aprons, white cravats, and 
roundaboute; to be armed with stomach-j^umps ; and having their hair 
parted in the middle, to signify their high justiciary office and com¬ 
mission to make an equal victualary division to both whites and 
blacks, and thus “to establish justice and insure domestic tranquil¬ 
lity.” They must superintend the seating of the guests; first a black, 
then a white, like spots on a checker-board, and take their stand as 
vestal virgins behind the chairs of the colored guests. And to insure 
“full and equal accommodation to all,” (in the felicitous language of 
the committee,) whenever Java coftee and loaf sugar, linen nap¬ 
kins, ivory-handled knives and silver forks, boned turkey, and hams, 
with champagne sauce, be given to the whites, this vigilant commit¬ 
tee must see to it, that bean coft'Ce and brown sugar, cotton napkins, 
buck-handled knives and two-tine forks, bacon and greens, rancid 
butter and ancient eggs, are not given to the blacks. [Great laughter 
on the floor and in the galleries, with indications of applause.] 

The PRESIDENT pro tempore. Applause is out of order, and if it 
be repeated in the galleries the Chair will order them to be cleared. 

Mr. NORWOOD. And if at any time after the guests are seated, 
and the committee have inquired if all are ready, and the chairman 
has given the word “ Go,” they should detect any voracious white 
rebel disregarding the will of the republican party and the majesty 
of this law, and attempting to evade its equitable and just intent by 
smuggling in more than his share, the sub-committee should promptly 
warn him of their high mission to enforce “ equal and full accom¬ 
modation” in that hotel; and that unless he desist, “equality before 
the law” will be maintained by active and exhaustive use of a stom¬ 
ach-pump, enforced, in case of resistance, by the posse comitatus of 
the Army and Navy of the United States. And while I would do 
nothing to arouse a feeling of jealousy growing out of personal am¬ 
bition for priority or precedence in the organization of this sub-com¬ 
mittee, I would merely suggest, that the Judiciary Committe, who 
have given the details of this intricate and delicate enterprise most 
careful consideration, and no doubt sent for persons and papers, 
should be presumed to possess more accurate knowledge on this gus¬ 
tatory service than any other members of the Senate. 


26 


The Jiicliciary Committee have also wisely concluded that Congims 
shall keep a school, or rather many schools. The power of Congress 
to regulate the public schools is found in the grant of power to declare 
war. Thepower to declare war is unlimited. Congress can declare war 
with or without cause. It may make war as well against friends as 
toes. In support of this proposition I have only to cite its course 
toward the southern people for the past eight years. This being- 
true, Congress can unquestionably declare war between white chil¬ 
dren and black children in the public schools. I maintain further 
that it can, thereafter, declare war among the xiarents, white and 
black, of those innocent, little children. I advance a ste]^ still be¬ 
yond. I maintain that as the jiower to make war necessarily carries 
with it the power to destroy. Congress can go further and even destroy 
the piiblic schools! In support of these conclusions I plant myself, 
with confidence, uj)on the report of the Judiciary Committee of the 
Senate. 

That Congress should go into the school business is even still more 
clear. No constitutional lawyer at least will hesitate to give his 
hearty assent. I am proud to say, that on this one branch of the 
committee’s report, the whole peoj)le of the United States are agreed 
with a unanimity never sui-jmssed, and only equaled by the vote of the 
Pickw ick club, that Mr. Pickwick might travel and jiay his owm ex¬ 
penses. 

Yes, Mr. President; let Congress establish and regulate at least one 
public school, and let it be oi)eued in this high Chamber. Let the first 
text-book in the curriculum be the Constitution of our country. After 
that, let us study the mysteries of the volume of humanity. Its les¬ 
sons we can better learn by looking inward, for they are wu-itten on 
the tablets of our hearts, more enduring than stone, and as truthful 
and unchanging as the decalogue. We can next turn to history and 
learn the philosophy of its teachings. If its ponderous volume make 
us shrink from entering ux)on the labor of the search, we still can 
find extracted and in condensed form its richest treasures. Buckle, 
Mill, Comte, Huxley, Spencer, and a score of other masters, in the 
quiet of secluded life, far removed from the bias of party, the fever 
of political strife, from sectional hate, from selfishness, and the insid¬ 
ious motive to gain or retain power, have taught us the hygiene of 
government, whose laws we can no more disregard than we can vio¬ 
late with impunity a law of physics. And if there be one law w'hose 
truth is demonstrated, it is that legislation, wise or unwise, in all free 
l^opular governments, is the reflex of social order, of social progress or 
decay; and that social order or juiblic ox)inion never can be created or 
controlled by coercive legislation. 

Laws not founded on ijublic will and favor either drop still-bom, 
or being only irritating thorns, nature soon throws them off. No wise 


27 


statesman ever runs counter to well-defined popular feeling or opin¬ 
ion. He does not attempt to overcome it by compression from with¬ 
out, or by prisons and dungeons. He applies liis remedy within. He 
moves on the foimtaiu head, and saves himself the mortification of 
certain failure in attempting to dam up a never-ceasing stream that 
swells and rises and gathers power from obstruction. So will the re¬ 
publican party do if it act wisely. It is entering on the dangerous 
experiment, one which tyrants in church and state have tried with¬ 
out success, of forcing a people to change opinions. An d though the 
contemplated law, I regret to say, is intended to be sectional in its 
operation, to bear and grate upon the South, still it makes war upon 
a feeling common to the white race of our common countrj^ The 
late Senator from Massachusetts declared in his place in this Chamber 
that it exists in Massachusetts as strongly, though not so widely, as 
elsewhere in the Union. 

Let us look for a moment at the existence and very gradual decline 
of this sentiment in the New England States. 

Connecticut made a blow at the slave trade as early as 1774; pa¬ 
trolled free negroes, as if they were slaves, as late as 1797, and pun¬ 
ished for educating “ persons, not inhabitants of the State, of the 
African race ” as late as 1833. 

New Hampshire abolished slavery over eighty years ago. In 1815 
she forbade by law the enrollment of negroes among her militia; and 
this law was retained on her statute-book till 1855. 

Rhode Island abolished slavery in 1784, but as late as 1844 her peo¬ 
ple expressed their prejudice against the negro in terms not to be 
misunderstood. It was by solemn statute which forbade the joining 
in marriage any white person with any negro or mulatto, under pen¬ 
alty of $200, and making the children of such pretended marriage ille¬ 
gitimate. 

And the last I shall notice is Massachusetts. 

In 1705 Massachusetts forbade by statute the marriage of whites with 
negroes or mulattoes, punishing the ministers or officers officiating, 
by fine of $250, declaring the marriage null and void, and degrading 
the issue by fixing on them the stain of illegitimacy. The title to 
that act is singularly suggestive to us now. It read, An act for the 
better preventing of a spurious and mixed issue,” and contained these 
words: 

“ If any negro or mulatto shall presume to smite or strike any person of the Eng¬ 
lish or other Christain nation, such negro or mulatto shall he severely whipped,” &c. 

This law, in a careful revision of her code, was solemnly re-enacted 
in 1836. And Chancellor Kent asserts that, as late as 1848, in no part 
of the country except in Maine, did the African race, in point of fact, 
participate equally with the whites in the exercise of civil and politi¬ 
cal rights. 


28 


If New England with all her philosophy, with all her Christian 
charity, and with so verj" few of the black subjects on whom to bestow 
that abounding charity, and without any irritating obstruction, has 
not been able to overcome her prejndice in more than half a century, 
how does she expect us of the South, goaded and embittered as we 
have been by strife continually aroused between whites and blacks 
by intermeddling carpet-baggers and hostile congressional legisla¬ 
tion, to subdue onr life-long antipathy tn social equality among the 
races ? 

“ Thou hypocrite, first cast out the beam out of thine own eye; and 
then shalt thou see clearly to cast out the mote out,of thy brother’s 
eye.” Unless you do, “ your righteousness shall not exceed the right¬ 
eousness of the scribes and pharisees.” 

The injustice of this bill is manifest and gross. Owners and lessees 
of hotels, railroads, and so on, are to be punished only because they 
act in obedience to public sentiment; because they respect a feeling 
common to republicans and democrats. Whether their guests be 
black or white would not give hotel-keepers a moment’s thought if 
public sentiment were different. But they know that no hotel could 
maintain itself, which should throw open its doors to blacks as well 
as whites. Yet these men who are guilty of no offense, but are merely 
carrying out the universal sentiment of the American white race, are 
to be made the victims and suffer, vicariously, for what the public 
do. This cruelty would be a refinement on that of the wolf, which 
devoured the lamb for what the wolf himself had done. For repub¬ 
licans and democrats both, by refusing to patronize hotels where ne¬ 
groes are received on equality, compel the proi)rietors to exclude the 
blacks, and now the republicans propose to punish such proprietors 
for complying with this general demand of the traveling j)ublic. 

I shall now consider this question in the light of the Constitution, 
a;nd inquire whether such legislation be warranted by that once 
sacred instrument. 

Mr. Justice Swayne, in deciding a case which arose in Kentucky 
under the thirteenth amendment to the Constitution, (reported in 1 
Abbott Circuit Court Reports, page 44,) used the following words: 

“ What is unwarranted or forbidden by the Constitution can no more be done in 
oneway than in another. The authority of the national Government is limited, 
thongh supreme in the sphere of its operation. As compared ^vith the State govern- 
')nents, the subjects tipon which it operates are few in number. Its objects are all 
national. It is one wholly of delegated powers, and * * * tchenever a n act of that 
Government is challenged, a grant of power must be shown or the act is void." 

These words announce no new construction, but they are valuable 
as emanating from a judge generally believed to be latitudinal in 
his opinions of the extent of Federal power, and as one of the three 
justices who dissented from the opinion of the majority in the cases 
from Louisiana commonly called the Slaughter-house cases. 


29 


The power of Congress to pass this bill must be shown hj those 
who advocate its passage. It is not pretended that Congress, prior 
to the adoption of the last three amendments, had the power to enact 
such a law ; nor is it claimed that any but the fourteenth amendment 
confers such iiower. On this amendment the supporters of the meas¬ 
ure rest the case. It reads; 

All persons born or naturalized in the United States, and subject to the jurisdic¬ 
tion 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 im¬ 
munities 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. 

* * ***** 

Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article. 

To detenuiiie this question it is necessary to understand clearly— 

First. What are the privileges and immunities that belong to a 
citizen of a State, as such citizen ? • 

Second. What are the privileges and immunities of a citizen of 
the United States, as such citizen 1 ? 

A correct analysis of these respective classes of privileges and 
immunities must show to which class the rights or privileges and 
immunities to be enforced by this bill belong, and that result must 
I » necessarily determine the question as to whether they are the proper 

subject of congressional control. 

There was a time when there w as no other citizenship than that of 
a State. That time was between the 4th day of July, 1776, and the 
17th day of September, 1787. This proposition no one will deny. It 
is equally clear that between those dates there were no privileges and 
immunities other than those conferred by and derived from citizen¬ 
ship of a State. 

Before the Constitution was adopted, citizenship of a State w'as an 
entirety. A citizen of New York, or Georgia, owed allegiance to but 
one government. That government was his State. He could look to 
but one power on earth for protection. That power was his own 
State. From that State he derived and enjoyed every kind of priv¬ 
ilege and immunity which could belong to him as a citizen. But the 
privileges and immunities which he possessed were only such as were 
bestowed by the law of his State. Hence the privileges and immuni¬ 
ties of the citizens of the several thirteen States varied, and none 
were exactly alike unless their laws were the same. And this im¬ 
portant fact was wisely considered by our fathers* in framing the 
Federal Constitution. They foresaw that the full benefits had in 
V: view' and to flow from the Union of the States could not be realized 

unless the advantages of citizenship in each State should be open to 


30 


participation by tlio citizens of the other States. Hence they inserted 
the second section of the fourth article of'the Constitution, that— 

The citizens of each State— 

Not the citizens of the United States— 
shall be entitled to all inivileges and immunities of citizens in the several States. 

Now, what were and are the privileges and immunities referred to 
here ? They are clearly such and only such as each State could and 
might confer on her own citizens. And yrhat were they ? They were 
such as belonged to the citizen of each State before that State became 
a member of the Union under the name of the United States. They 
were such as the organic and statute law of that State allowed, or 
might afterward allow—no more, no less—and had Georgia not changed 
her constitution or her laws from 1787 to this time, the privileges and 
immunities of a citizen of that State would be to-day just what they 
were then. To attemj)t to enumerate them would be worse than folly. 

It would be an attempt to state every right which a citizen of a free 
government enjoys. It would be to designate every benefit which is 
derived from Magna Charta, the Bill of Rights, the common law, and 
the statute law. 

Mr. Justice Washington in Corfield vs. Coryell, 4 Washington’s 
Circuit Court Reports, answered the question, ‘‘ What are the privi¬ 
leges and immunities of a citizen of a State ? ” by a statement whose 
generality shows that his mind shrunk instinctively from the imprao- • 
•ticable labor of enumeration, but whose comprehensiveness is so just 
that from the day of its utterance to the delivery of the decision in 
the Slaughter-house cases, no court has attempted a correction, and all 
judges, who ha'\’^) had the question under consideration, have adopted 
it as their own definition. He said: 

We feel no hesitation in confining these expressions to those, privileges and im¬ 
munities which are, in their nature, fundamental; which belong of right to citizens 
of all free governments, and which have at all times been enjoyed by the citizens of 
the several States which compose the Union from the time of their becoming free, 
independent, and sovereign. What these fimdamental principles are it would per¬ 
haps be more tedious than difficult to enumerate. They may, however, be all com¬ 
prehended under the following general heads: “Protection by the government, 
the enjoyment of life and liberty, with the right to acquire and possess property of 
every kind, and to pursue and obtain happiness and safety; subject, nevertheless, 
to such restraints as the government may justly prescribe for the general good of 
the whole.” ‘ • 

Suck is Ms language, and the Supreme Court of the United States 
including the three justices who dissent, approve the definition. And just 
here I will make a remark that it will be well to bear in mind as we 
proceed. It is this: I take it as granted, without argument, that no 
one, lawyer or layman, will deny that every privilege named in this 
bill before the adoption of the fourteenth amendment, was derived by 
those who enjoyed them exclusively from the States of which they 


31 


wore citizens. To keep a public inn; to bury tlie dead; to construct 
and manage railroads and other modes of conveyance; to ojien and 
manage a theater, are iirivileges conferred by each State. They be¬ 
longed to the citizen of each State before the Union was formed; they 
have been granted by the States ever since the Union was formed. 

They have been regulated, modified, enlarged, given, and taken away 
by the States exclusively. 

Having advanced thus far, it may be assumed as incontrovertible 
that all the privileges and immunities enjoyed by citizens of a State 
at the time the Constitution w as adopted, except as modified by State 
, statute, remain as his possession, or as the heritage of his children 

under the State, unless it can be shown affirmatively, that they have 
been taken aw ay or modified by the Federal Constitution. If the 
‘ Federal Government claims that any of these rights have been sur¬ 

rendered to its control, the affirmative must be shown by express grant 
in the Constitution. If it assumes control over any one of these 
privileges, on being “challenged,” in the language of Justice Swayne, 
t must give the pass-word—it must show written authority. 

Let us ascertain w'hether and to what extent, if any, the control / 

or protection of the privileges and immunities of citizens of a State 
were transferred to the Federal Government. 

We have already seen that the citizenship of a State was not eii- 
l tirely changed, if at all, to that of the United States on the adoption • 

of the Federal Constitution. We have also seen that the great funda¬ 
mental jirivileges and immunities of citizens of the respective States 
remained under exclusive control of the States after the Union was 
formed, unless it shall appear that in express terms their control was 
transferred to the United States Government. 

I repeat, that citizenship is an entirety. No one can be a citizen of 
two independent governments w'hich are absolutely sovereign. Citi¬ 
zenship necessarily implies allegiance and obedience. It necessarily 
implies protection. If the government be absolute and in every es¬ 
sential sovereign, the control over its citizens and subjects must be 
equally unlimited. But should the government be not absolute and 
sovereign, but limited and qualified, its control over its citizens and 
subjects must also be limited to its qualified authority. If it be 
established to accomplish certain, special, designated objects and no 
others, its control over the life, liberty, and property of the citizen 
must be limited to a control which is necessary to accomjilish those 
objects. And should there be any i)rivileges and immunities, any 
rights or freedom of the citizen, wTiose control is not necessary to the 
accomplishment of those objects, the government thus limited can- 
not exercise control or jurisdiction over those rights and privileges. 

To illustrate: if the Federal Government had not power to declare 
war, levy taxes, or regulate commerce, it could not control the citi- 


32 


zen’s person for the Army or Navy, nor liis money, nor his produce ;■ 
and these would clearly remain under State control. 

It would really seem unnecessary to go further than this to show 
the utter ahsnl’dity of the proposition contained in this hill. The 
objects of the Federal Government, says Mr. Justice Swayue, “are 
all national.” “The subjects upon which it operates are few in num¬ 
ber.” Is it a national object to regulate theaters, hotels, cemeteries f 
Is it a national object to see that a negro shall sit in the same coach 
with a white man ? Is it a national object to provide that a negro 
shall sit at the same table with a diplomat on a Potomac River steam¬ 
boat ? Is it a national object to regulate manners or to control preju¬ 
dices ? 

But, again, Mr. Justice Swayne truly says that the subjects upon 
which this Government operates are few in number compared with 
those under State authority. If Congress shall regulate the manage¬ 
ment “of theaters, cemeteries, hotels, pray tell me what is there on 
earth, within the States, that Congress cannot regulate ? Where is 
the limit ? Can it not regulate fairs, circuses, hippodromes, menage¬ 
ries, and organ-grinders ? The Judiciary Committee must believe that 
Congress has this power, because they report in favor of regulating 
theaters and other places of public amusement. 

Without levity or jest I state it as a legal proposition, that if Con¬ 
gress can protect the citizens of the United States in the manner here 
proposed, it can protect them in the enjoyment of every general priv¬ 
ilege and immunity known to an American citizen, whether it bo de¬ 
rived from citizenship in a State or of the General Government. More 
than this. Congress can punish for interference with any general priv¬ 
ilege or immunity of a citizen by any person, no matter whence that 
privilege or immunity be derived. And if this can be done, then this 
result logically and inevitably follows: that the awssnmption of juris¬ 
diction to protect these rights of a citizen necessarily ousts the juris¬ 
diction of every State over the same subject-matter. By the Federal 
Constitution, since the adoption of the fourteenth amendment it is one 
of the immunities of every American citizen that he should not twice be 
put in jeopardy of life and limb. And when the Federal Government 
assumes jurisdiction of any cause, civil or criminal, the State cannot 
act, and an offender once punished by a Federal court cannot, for the 
same offense, be punished by a State court. A power delegated to 
Congress is not reserved to any State. E converso, every power is 
reserved except those expressly delegated. A State may exercise 
certairi, powers which are delegated to the General Government, but 
only so long as Congress declines or refuses to exercise the power. 
A State may establish rules of bankruptcy if Congress remain silent. 
But when Congress establishes a rule of bankruptcy, the State law 
is instantly made inoperative. But Congress has ho jurisdiction over 


33 


subjects sucli as these named in this hill, unless it can he shown that 
the privileges and immunities referred to hy the fourteenth amend¬ 
ment include those general privileges and immunities which a citi¬ 
zen of a State possesses. 

But I will resume the direct line of argument I was pursuing. 

Whether the citizen of a State, before the fourteenth amendment, 
was also a citizen of the United States is not essential to a correct 
and clear solution of this question. For if a dual citizenship did exist, 
it is clear from conclusions already arrived at, that neither could in 
the nature of things he an absolute entirety. As before remarked, 
no man can owe entire allegiance to two sovereigns. No American 
citizen could owe undivided obedience to, aud claim every protection 
which belongs to a citizen or subject from, two distmct governments 
at one and the same time. If there is a dual citizenship, the obe¬ 
dience due to either, aud the protection guaranteed in return by either 
government, must necessarily depend on the nature and extent of the 
respective governments. If the control of either government is re¬ 
stricted by limitations, the protection afforded to its citizens must 
necessarily be limited in like manner and to the same extent. If one 
be permitted to exercise only certain delegated powers, the control 
over the citizen by the other must be the complement of the whole 
I)Ower of the two. This lirings us to a point at which we can see 
the conclusiou, which, it seems to me, is logically inevitable. And 
to arrive at it, it is only necessary to analyze the Constitution of the 
United States to find what rights are therein guaranteed, and thus 
determine the second inquiry, to wit: What are the privileges and 
immunities of a citizen of the United States as distinguished from 
those of a citizen of a State? 

To my mind they are as separate and distinct as is the government 
of a State from that of the United States. They are so well defined 
that a child can learn l)y rote and designate on its fingers the priv¬ 
ileges and immunities of a citizen of the United States. It seems to 
me, that no case can arise in which any man can be at a loss to tell in 
a moment whether redress for violation of any privilege or immunity 
must be sought in a State or a Federal court; for the conclusiou to 
which I arrive is, that all the privileges aud immunities of a citizen 
of the United States are designated and named in and derived exclu¬ 
sively from the Constitution of the United States. 

Before I proceed in further consideration of this x)roposition, let mo 
briefly recapitulate 

■ The privileges and immunities of citizens of the original thirteen 
States were, prior to the Federal Union, such as they possessed under 
their own State, and were, therefore, subject ifco the exclusive control 
of the States respectively. When the Union was formed, the priv- 

3n 


I 


34 

ileges and immunities of tlie citizen remained tlie same, except that 
a few others were conferred by the formation of the Union. Those 
privileges and immunities (excepting the few thus i dled) still re¬ 
mained under State control, exceijt a few which w( re confided to 
the General Government. But the regulation of any rights of the 
citizen by the General Government was restricted in proimrtion as 
that Government was itself limited in its authority. The authority 
given to the General Government was strictly and expressly limited; 
and it could exercise no control over the life, liberty, ov proim'ty of a 
citizen of any State, or of a citizen of the United States, (if such citi¬ 
zenship existed prior to the fourteenth amendment,) excej)t for cer¬ 
tain enumerated purposes. 

But to resume. I say the privileges and immunities of a citizen of 
the United States are distinctly designated in and derived from the 
Constitution. Let us examine this proposition closely—test its 
strength ; for on its soundness depends the safety of our dual, com- 
l)lex government and the existence and perpetuity of State-rights, 
unless the people of the States grow alarmed at the dangerous power 
conferred by the fourteenth amendment and tear it from the Consti¬ 
tution. 

The Supreme Court, including the three dissenting justices, say in 
the Slaughter-house cases that the fourteenth amendment declares, if 
it does not create, a citizenship of the United States separate from 
that of a State. The necessary sequence to this proposition is, that 
there must be privileges and immunities of a citizen of the United 
States different from those which belong to a citizen of a State. For 
if there be two citizenships, there must be also two classes of duties 
and obligations imposed on the citizens of the respective governments. 
There must be also different laws under the two governments, as 
otherwise there would be two governments enforcing the same 
laws, to the same extent, for the same purposes, and against or for 
the benefit of the same persons; for the citizens of the States are now 
the same persons as citizens of the United States. This would evi¬ 
dently be not only an absurdity, but would, in effect, make the two 
governments one. But the governments being separate and distinct, 
the objects of either being separate and different, the powers of one 
being the complement of the powers of the pther, and these powers 
being different, it must also follow that the privileges and immuni¬ 
ties of a citizen of the State, which are but the result of the laws of 
the State, must be different from his privileges and immunities as a 
citizen of the United States, which are the result of the Constitution 
and laws pursuant thereto. And it must also be true, that the protection 
of the privileges and immunities derived from citizenship must he givm hy 
the government from which they are denved; for it would he manifestly 
absurd to say, that the rights derived hy a citizen from one government are 


35 


under the protection of another. To show that this is true, we have only 
to ask, What are the privileges and immunities of a citizen of the 
United States who does not reside in any State ? What are his rights 
^ as a resident in a Territory—in Colorado ? It is clear that they are not 

. ^ those which a citizen of New York derives from citizenship in that 

State. Nor can he possess the privileges and immunities conferred hy 
the local law of any State until he comes in person, or hy interest, 
within the territorial jurisdiction of that State. He may avail himself 
of some of the privileges and immunities enjoyed hy a citizen of a 
State, hut this must he done within the limits of that State. The 
local law in New York which confei's henelits on her own citizens does 
not extend to and protect and henelit him as a resident of Colorado. 

Again, a citizen of New York may enjoy certain privileges under 
her local law in that State which citizens of other States do not. 
New York may prohibit the traffic in spirituous liquors, while the citi¬ 
zens of New Jersey may sell them without restraint. New York might 
enact that the right to vote shall depend on a certain degree of edu¬ 
cation, while in theTerritory sulfrage might he unrestricted. But the 
resident of Colorado, if native or naturalized, is a citizen of the United 
States, and he has certain rights as a citizen. He cannot he said to 
possess the rights which flo^ from citizenship in any State, because 
he is not a citizen of any State. The rights referred to in the fourth 
I ^ article, second section, are not his. He has the right to go into any 

State and to have while there equal protection with every citizen of 
that State, hut this right is only potential, to he exercised at will, 
and is hut a single privilege at best. But he has other privileges 
and he has immunities which are something in possession, something 
he enjoys hourly, that go with him at every breath he draws. For 
instance, one right is protection to life, liberty, and property. But 
no State atfords him this protection. He looks to some other govern¬ 
ment, and as a citizen of that government's entitled to its protection. 

Now, it is clear that all citizens of the United States possess the 
same privileges and immunities. In their relation as citizens of the 
Federal Government, are not the rights of all citizens precisely the 
same ? No one can deny it. Then, as we have seen that the rights 
of a citizen of the United States residing in a Territory are not the 
same as the rights of a citizen of the United States residing in a State, 
whence does the difference arise ? It arises from the difference be¬ 
tween citizenship of a State and citizenship of the United States. It 
comes from the difference between the two classes of rights which 
spring from those separate citizenships. The citizen of a Territory 
may have as many privileges and immunities as a citizen of a State,. 
. hut he cannot derive them from, nor would they he under the control 
of, the same government. As a citizen of the United States residing 
in a Territory, Congress may confer on him very enlarged rights, hut 
it would be done under the power of Congress to establish all needful 


/ 


36 


rules aud regulations for tlio government of the Territories. But 
these rights he would not possess as either a citizen of a State or of 
the United States. He would acquire and enjoy them as a resident 
of the Territory under the laws Congress might adopt for its regula- ' ^ 

tion, hut an alien resident there might enjoy the same rights. His 
rights as a citizen of the United States would remain the same, and 
such as even Congress cannot impair. His right to hear arms, to free¬ 
dom of religious opinion, freedom of speech, and all others enumer¬ 
ated in the Constitution would still remain indefeasihly his, whether 
he remained in the Territory or removed to a State. 

And these and certain others are the privileges and immunities 
which belong to him in common with every citizen of the United 
States, and whicli no State can take away or abridge, and they are 
given and protected by the Constitution. For the Constitution is the 
charter of the United States. It is the be-all and end-all of that Gov¬ 
ernment, and as all laws of the United States must be in conformity 
to the Constitution, it is literally true that no citizen of the United 
States, as such, can x>ossibly i^ossess a single privilege or immunity 
which does not flow directly from the Federal Constitution. 

And here the privileges and immunities of a citizen of a State, aud 
his privileges and immunities as a citizen of the United States, divide. 

His rights as a citizen of a State are general, full, almost numberless. 

They embrace all that free republican government can confer, and | 

they are limited only by State laws, organic aud statute. Those be¬ 
longing to him as a citizen of the United States are special, few, 
and some of them are but a part of what he possessed as a citizen of 
a State before the General Government was formed. The one are as 
the Atlantic, broad, expansive, generous, free, unrestrained except by 
its own bounds. The other is like the Gulf Stream, originating in the 
Atlantic, flowing through the Atlantic, and ending in the Atlantic, 
narrow in its scope, confined within fixed limits, and contracting or 
expanding, only as the waters of its origiu and its home will allow. 

And now let ns see what are these privileges and immunities of a 
citizen of the United States. A few of them were created by the forma¬ 
tion of the Constitution ; some were transferred from the State to the 
United States for protection and control; aud, if I am correct, some 
were secured by the fourteenth amendment. All these are, of course, 
protected by the operation of the Constitution. Perhaps all the 
privileges and immunities of a citizen of a State, which were created 
by the Constitution, are the following : 

Free transit through all the States; the right to reside in any State ; 
to carry his property to any State ; to acquire property in any State, ^ 

and enjoy in any State all the privileges and immunities which the 
laws of that State confer on its own citizensof access to the seat 
of the Federal Govorniuent; of access to all sea-ports and centers 


t 

\ 


of trade; to have the heiiefit of the public acts, records, and judicial 
proceedings of other States; riparian and littoral rights; immunity 
from ex post facto laws; from attainder; from laws impairing the 
obligation of contracts; from having anything but gold and silver 
coin made a tender in payment of debts by a State ; from the laying 
by any State of imposts or duties on imports or exports except what 
may be absolutely necessary for executing its inspection laws ; from 
the laying of any duty on tonnage by a State. 

One of his iwivileges is protection from injury to person or proj;)- 
erty on the high seas and in foreign lands, but this i)rotection was 
simply transferred from the State to the General Government. It 
was not created by the Constitution. 

The following are most, if not all, the privileges and immunities of 
a citizen of the United States : 

The right to the writ of habeas corpus; of peacable assembly and 
of petition; to the free exercise of religious belief; to freedom of 
speech; to a free i)ress; to keep and bear arms; to life, liberty, 
and property until deprived thereof by due process of law; to trial 
in the State and district wherein tlie alleged crime shall have been 
committed; to a public and speedy trial; to be confronted with the 
witnesses against him; to compulsory process for attendance of his 
own witnesses; to have counsel on his trial; to be informed of the 
nature and cause of the accusation; to trial by jury ; immunity from 
bill of attainder; from expost facto laws; from capitation or other 
direct tax, unless in proportion to the census; from tax or duty 
on articles exported from a State; from j^refereuce to the ports of 
any State over those of another by regulation of commerce or reve¬ 
nue ; from paying duties on vessels bound to or from one State to 
another; from conviction of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in open court; from 
the establishment of any religion; from troops being quartered in 
his house in time of peace or in time of war, unless in a manner to 
be prescribed by law; from unreasonable searches and seizures; from 
trial for a caiiital or otherwise infamous crime unless on presentment 
or indictment of a grand jury ; from being put twice in jeopardy of 
life or limb ; from being compelled to testify against himself; from 
having his property taken for public use without just comj)ensation; 
from excessive bail; from excessive fines; from cruel and unusual 
punishment; from the condition of slavery or involuntary servitude, 
except as a punishment; from being deprived the right to vote on 
account of race, color, or previous condition of servitude. 

I do not assert that these are all the privileges and immunities of a 
citizen of the United States as distinguished from his rights as a citi¬ 
zen of a State, but I do say that any others, whether’few or many, will 
be found enumerated in the Constitution of the United States. Before 
tlie fiuirteenth amendment was adopted the first class of privileges and 


38 


immunities enumerated above belonged to citizens of tbe States by 
operation of tbe Federal Constitution. Some were permanently se¬ 
cured to him by inbibition on tbe State, as, for instance, immunity from 
attainder, ex post facto laws, and impairing tbe obligation of contracts, 
while some were conferred by tbe Constitution, as transit tbrougb and 
residence in other States, protection to person and proj)erty in other 
States. 

I wish to notice at this point, the construction placed on tbe four¬ 
teenth amendment by tbe tlnee dissenting justices in the Slaughter¬ 
house cases, and by tbe Judiciary Committee of tbe Senate in their 
report on tbe petition of Susan B. Anthony and others for tbe right 
t)f suffrage, submitted to tbe Senate January 25, 1872. 

On page 95, 16 Wallace, Mr. Justice Field, delivering the -dissen¬ 
tient opinion, says: 

The first clause of tbe fourtecuth ameuclment changes this whole subject, and re¬ 
moves it from the region of discussion and doubt. It recognizes in express terms, 
if it does not create, citizens of the United States, and it makes their citizenship 
dependent upon the place of their birth, or the fact of their adoption, and not upon 
the Constitution or laws of any State or the condition of their ancestry. A citizen 
of a State is now only a citizen of the United States residing in that State. The 
fundamental rights, privileges, and immunities which belong to him as a free man 
and a free citizen now belong to him as a citizen of the United States, and are not 
dependent upon his citizenship of any State. The exercise of these rights and priv¬ 
ileges, and the degree of enjoyment received from such exercise, are always more 
or less affected by the condition and the local institutions of the State, city, or town 
where he resides. Thej^ are thus affected in a State by the wisdom of its laws the 
ability of its officers, the efficiency of its magistrates, the education andmoralsof its 
people, and by many other considerations. This is a result which follows from the 
constitution of society, and can never be avoided, but in no other way can they be 
affected by the action of the State, or by the residence of the citizen therein. They 
do not derive their existence from its legislation, and cannot he destroyed by its 
power. 

The amendment does not attempt to confer any nevj privileges or immunities upon 
citizens, or to enumerate or define those already existing. It assumes that there 
are such privileges and immunities which belong of right to citizens as such, and 
ordains that they shall not be abridged bj’^ State legislation. If this inhibition has 
no reference to privileges and immunities of this character, hut only refers, as held 
by the majority of the court, in their opinion, to .such privileges and immunities as 
were before its adoption specially de.signated in the Constitution, or necessarily im¬ 
plied as belongijig to citizens of the United States, it was a vain and idle enactment, 
which accomplished nothing, and most unnecessarily excited Congress and the 
people on its passage. AYith privileges and immunities thus designated or implied 
no State could ever have interfered by its laws, and no new constitutional provis¬ 
ion was required to inhibit sucli interference. The supremacy of the Constitution 
and the laws of the United States always controlled any State legislation of that 
character. But if the amendment refers to the natural and iualiejiable rights which 
belong to all citizens, the inhibition has a profound significance and consequence. 

The Judiciary Committee say: 

The clause of the fourteenth, “Xo State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United States,” does 
not, in the opinion of the committee, refer to privileges and immunities of citizens 


30 


\ 


of the TJuitecI States other than those privileges and immunities embraced in the 
original text of the Constitution, article 4, section 2. The fourteenth amendment, 
it is believed, did not add to the j)rivileges orimmunities before mentioned, hut was 
deemed necessary for their enforcement as an express limitation upon the States. 

^ It had been judicially determined that the first eight articles of amendment of the 

Constitution were not limitations on the powers of the States, and it was appre¬ 
hended that the same might he held of the provisions of the second section, fourth 
article. 

The dissenting justices say: 

The amendment (fourteenth) does not attempt to confer any neic privileges and 
immunities upon citizens. 

The Committee say: 

The fourteenth amendment, it is believed, did not add to the i>rivileges or immu¬ 
nities before mentioned, (article 4, section 2,) but was deemed necessary for their 
enforcement as an express limitation upon the States. 

The justices and committee are in accord in holding, that no 7i&w 
privileges and immunities were conferred by the fourteenth amend¬ 
ment. 

Is this opinion that no new rights were conferred strictly true ? In 
one sense it is; in another it is not. No new rights are enumerated; 
the amendment simply refers to existing rights, and in this sense no * 
new privileges were conferred ; nor has it taken away any rights. It 
has declared, simply, that certain existing rights should not he 
J abridged by States, and nothing more. 

But*.in another sense, and in the sense referred to by the dissenting 
justices and the committee, the fourteenth amendment, while not 
technically conferring new rights, has given additional protection to 
existing: rights. And in this sense the fourteenth article is not only 
not “ vain and idle,” but is comprehensive and efficient, as I shall now 
' endeavor to show. 

The Supreme Court, in an unbroken series of decisions, has held 
that the first eleven amendments to the Constitution were limitations 
on the powers of the Federal Government. And, without referring to 
all the many cases, I will quote a j)Jii’agraph from the decision in 3 
Howard, (Permoli vs. First Municipality of New Orleans:) 

The Constitution makes no provision for protecting the citizens of the respective 
States in their religious liberties ; that is left to the State constitution and laws ; 
nor is there any inhibition iinx)Osed by the Constitution of the United States in this 
respect on the States. 

And so it has been held as to all of the first eight" of those articles 
of amendment. Whether these decisions be a correct reading of the 
Constitution is not material; but one fact cannot be denied, which 
is, that these decisions were the law of the land. Being rendered by 
t the Supreme Court, a supreme co-ordinate branch of the General Gov¬ 

ernment, no power on earth, except itself, could change the law fixed 
V by those decisions without first changing the Constitution. 


40 


In view of this law, how is it j^ossihle to maintain, that no new privi¬ 
leges or immunities were conferred by the fourteenth amendment ? Be¬ 
fore its adoption any State might have established a particular re¬ 
ligion, or restricted freedom of speech and of the press, or the right 
to bear arms, compelled a prisoner to testify against himself, imposed 
excessive tines and bail, inflicted nnnsual and cruel punishment, and so 
on. A State could have deprived its citizens of any of the privileges 
and immunities contained in those eight articles, but the Federal gov¬ 
ernment could not. But can a State do so now ? If not, why ? If 
the fourteenth amendment did not confer privileges and immuni¬ 
ties on the citizens of the States as citizens of the United States, or, 
what is virtually the same, did not give additional guaranty of exist¬ 
ing rights, what prevents a State now from forbidding him -to bear 
arms, or from taking his property for public use without just com¬ 
pensation, or from doing any of the acts which the Federal Gov¬ 
ernment cannot do because of the first eight amendments to the Con¬ 
stitution ? The reason is, that the citizens of the States have new guar¬ 
antees under the fourteenth amendment; and though new privileges 
were not thereby conferred, additional guaranties were. It matters 
• not whether they were technically citizens of the United States before 
the adojition of the fourteenth article or were not. If they were, 
which is the stronger view for the dissenting jtistices and the Judi¬ 
ciary Committee, still they did not have these guaranties which they 
now possess. The Federal Government could not legally invade 
them; but what of that, if the Sta te could ? A citizen of a State 
could not be deprived of his x>roperty without just compensation by 
the Federal Government, but he could by another government, to 
wit, his State. As a citizen residing in Wisconsin he could not be 
made a witness against himself by the Federal Government, but by 
the State of Wisconsin he might. Even if there were citizens of the 
United States', in the proper sense of the word, citizens, before the 
fourteenth article, they did not have many, very many, immunities 
which that amendment has secured. 

The people of the United States thereby laid upon the States the 
same inhibition which they laid seventy years ago on the United 
States. They by that article declared, “that we are henceforth citi¬ 
zens of the United States as well as of oiu’ resx>ective States; we enjoy 
certain rights or privileges and immunities secured to us in and by the 
Constitution of the United States as against their power and interfer¬ 
ence; but some of them are at the mercy of the States by the law of the 
land, by the Constitution itself, and we therefore declare that these 
privileges and immunities shall not be taken away or abridged by any 
State.And the instant the fourteenth amendment became a x>art of 
the Constitution, every State was that moment disabled from making, 
or enforcing any law which would deprive any citizen of a State of 


41 


tlie benefits enjoyed by citizens of tbe United States under the first 
eight amendments to tbe Federal Constitution. And as the first eight 
amendments were a prohibition on the General Government as to the 
privileges and immunities of the citizens of the States named in those 
amendments, so the fourteenth amendment was and is a prohibition 
on the States, forbidding them to abridge the same privileges and 
immunities. So that the citizens of the American Republic, without 
reference to State lines or national boundary, are entitled to enjoy 
every privilege and immunity which is named in the Constitution. 

This construction makes the operation of the State and Federal 
Governments harmonious. No conflict of authority between the two 
‘ governments can possibly occur with a pure and honest judiciary. 
It will be only necessary to look to the Constitution to determine if a 
privilege or immunity of a citizen of the United States is abridged 
by a State, and a tyro can answer the question. 

The dissenting justices say, (page 96, already quoted,) “with the 
privileges and immunities thus designated or implied ”— i. e., in the 
Constitution —“ no State could ever have interfered by its laws, and no 
new constitutional provision was required to inhibit such interfei'ence. The 
supremacy of the Constitution and the laws of the United States al¬ 
ways controlled any State legislation of that character.’^ And they 
therefore say, that if this was the object of the fourteenth amend¬ 
ment, “ it was a vain and idle enactment which accomplished nothing 
and most unnecessarily excited Congress and the i^eople on its pas¬ 
sage.” 

This opinion, as I have shown, is at variance in toto with repeated 
decisions of the Supreme Court, that every privilege and immunity 
named in the first eight amendments to the Constitution were under 
control of the States. And them conclusion is so far from being cor¬ 
rect, that the converse of their proposition is the acknowledged law. 
The States could have interfered. The Judiciary Committee in the 
report referred to above recognize this law, and to that extent disa¬ 
gree with the dissenting justices. And had the words “and no State 
shall make or enforce any law which shall abridge the privileges and 
immunities of citizens of the United States” been omitted, while 
the amendment would not have been altogether “vain and idle,” 
still the privileges and immunities which I have enumerated above, 
as those secimed by the first eight amendments to the Constitution, 
would have been left subject to abridgment and even abrogation by 
the States. 

I have said, that, if this be the true and correct construction of the 
■ fourteenth amendment, our complex system of government will still 
move on in harmony. But should the views of the dissenting jus¬ 
tices and of the Judiciary Committee, and of those who favor this bill, 
be right, let us look at some of the consequences which will inevita¬ 
bly flow from that construction. 


42 


Tlie first I shall call attention to is marked and startling. The jus¬ 
tices say: 

A citizen of a State is no-w only a citizen of the United States residing in that 
State. fundamental rights, privileges, and immunities which belong to him as 
a free man and a free citizen now belong to him as a citizen of the United States, 
and are not dependent upon his citizenshii) of any State. 

The italics are my own. If this he true, what rights that are in 
any sense those of a free man and a free citizen can a man derive 
from a State? Notone. What government must protect him in the 
enjoyment of erery right, privilege, and immunity which he can possi¬ 
bly have as a free man and a free citizen ? Bui one. For it is clear 
that the government which confers entire, full citizenship, and confers 
with it certain rights and privileges, must also he the power to j)ro- 
tect them. Therefore, every fundamental right of a citizen of a 
State (who, it is said, is only a citizen of the United States residing 
in that State) is under the protection of the United States Govern¬ 
ment. This is one of the inevitable consequences of the opinion of 
the three dissenting justices. But this is not all; itisnothalf. If this 
he law, then the fourteenth amendment has destroyed the government 
of every State in this Union. It has struck down the legislative power, 
paralyzed the executive arm, and swept the State judiciary, in its appel¬ 
late authority, from the earth. Like Aaron’s rod, this one article has 
swallowed up all others. Every decision from every appellate State 
court under this construction is now subject to review by the Supreme 
Court of the United States, whenever any fundamental right of a citizen 
may be involved. The right to life is fundamental. Therightto liberty, 
to property, is fundamental. And when a citizen’s life is in danger 
he has the right to appeal to the Supreme Court of the United States. 
When his liberty or property may be involved, the same right of ap¬ 
peal is his. The way is open from every yyiepoudre court of the hun¬ 
dred thousand in the States and Territories to this Capitol. More 
than this. If these rights are under Federal protection, whenever 
Congress sees fit to exercise the power for their protection, the au¬ 
thority of the State is forever gone. The exercise of jiu'isdiction by 
the Federal Government and by a State over the same subject-mat¬ 
ter at the same time cannot exist, and the State must, by the Con¬ 
stitution, yield. But I will not further enlarge. Illustrations innu¬ 
merable might be given of the unlimited x>ower which Congress has 
to protect the fundamental rights of a citizen, if the opinion of the 
dissenting justices and the Judiciary Committee be the true construc¬ 
tion of the fourteenth amendment. I will give but one. 

Let me briefly state the premises. The fourteenth amendment, it 
is said, protects every fundamental right of a citizeiTof a State, and 
Congress has the poAver to enact any law which they may think ap¬ 
propriate to protect those rights and to punish the invader or offender. 
One of these fundamental rights is personal liberty and security 


43 


from personal harm. The person of every citizen in the United States 

is, therefore, under the direct protection of Congress. Well, a man’s 
nose is a part of his person. It is a xirominent part, and one which 
every American citizen cherishes with such devotion, that he follows 
it right or wrong, straight or turned awry, whether it leads him to 
his own business, or to intermeddle with the affairs of others. And I 
know of no jiart of an American citizen which, on being invaded, he 
will defend quicker, or with greater indignation and to the last ex¬ 
tremity or the last ditch. Now, should any one with malice prepense 
imll the nose of a colored citizen of the United States, residing in the 
State of New Jersey, to what power should he axijily to jirotect that 
nose ? I always thought he must go to a State tribunab and jiroceed 
for “ assault and battery.” But under the new reading of the Con¬ 
stitution by the minority of the Supreme Court and the Judiciary 
Committee, he must apply to Congress to throw their protecting arms 
around that nose and shield it from invasion. He reads the argu¬ 
ment of the Senator from New Jersey, and being convinced thereby 
that his x^rotection is within the x>ower of Congress, he ax)plies to 
that Senator to x^rotect his nose. The honorable Senator introduces 
a bill, as in duty bound both by his logic and his obligation to his 
colored constituents, to be entitled “An act for the xu'otection of the 
noses of American citizens from invasion and dexiredation,” and he 
rises to advocate its x^assage. 

If I misstate the line of argument he would follow, as I understand 

it, from his x>osition, I beg to be corrected. His first premise would 
be, that the fourteenth amendment x^rotects every fundamental x^riv- 
ilege and immunity of all citizens of the United States; second, that 
citizens of the States are but citizens of the United States; third, that 
X^ersonal security is a fundamental right; fourth, that pulling a 
man’s nose is a violation of his x^ersonal security, and, therefore. Con¬ 
gress has the x^ower to xu'otect his nose. But this of itself would be 
a very dry x'>resentation of the case, and he could go further and dem¬ 
onstrate the necessity for action by Congress. The organ invaded 
is by all dearly treasured, and wMi very many it is a most x^rominent 
feature and an index of character. Geograx)hically sx^eaking, it may be 
called a white man’s x>romontory and a colored man’s plateau. Many 
physiognomists contend that it is the organ and index of character. 
And hence the imxiortance of x)rotccting it in its normal state. For 
should it be xuilled often, it would ])e elongated and destroy the man’s 
identity. His friends could not recognize him, and the detective 
Xiolice could not identify him. Besides, wlien the index to character 
is destroyed, tlie owner of the index loses his character. His charac¬ 
ter is changed, and lie thus sustains a double injury. And unless this 
foul invasion bo 8toi>ped by act of Congress, tlie man’s nose, like that 
of Solomon’s beloved, would become “ as the tower of Lebanon that 


44 


I 

i 


looketh toward Damascus.” And tlius we see that Congress, if it 
should see proper, can j)ass “An act for the protection of the noses of 
American citizens from invasion.” If this he not a logical sequence, 

I will thank any member of the Judiciary Committee to set me right. 

Surely the people of the States did not mean such results as this 
when they adopted that amendment. They meant something practi¬ 
cal, something sensible. They did not mean to lay the knife to the 
throat of each State in this sweeping, suicidal manner. They did 
not mean for Congress to swallow up the State Legislatures, for the 
President to be the ruler of the United States, and governor of each 
State besides; and for the Federal Judiciary to supxilaut entirely and 
forever all State courts. They did not mean that every case of i^etit 
larceny should be drawn to the Sujireme Court of the United States. 

I am amazed when I see gentlemen confessedly learned in constitu¬ 
tional law Jurying into the fourteenth amendment to discover such 
innnitesimal jiower as this. I would not be more sur^irised were I to 
walk forth someday after a long drought and see one of my honorable 
friends sitting and eagerly watching for the bob of his cork, while 
fishing in a dry well for minnows, and using as his hook an anchor 
of the Great Eastern baited with a copy of the Congressional Globe. 

A construction more dangerous to the existence of the States than 
this cannot be conceived. The most devoted federalist, the most ar¬ 
dent advocate of absolute consolidation, could not go further in his " 
wildest dreams and desire for one government, one x)Ower, comx)lete 
unification. 

The minority of the Sux)reme Court Avere not unaware that their view 
of the fourteenth amendment excites alarm in the minds of constitu¬ 
tional lawyers for the safety of the States; for Mr. Justice Bradley 
says, (page 123, 16 Wallace:) 

But great fears are expressed, that this construction of the amendment will lead 
to enactments by Congress interfering with the internal affairs of the States, and 
establishing therein civil and criminal codes of law for the gOTernment of the citi¬ 
zens, and thus abolishing the State governments in everything but name ; or else, 
that it will lead the Federal courts to draw to their cognizance the supervision of 
State tribunals on every subject of judicial inquiry, on the plea of ascertaining 
whether the privileges and immunities of citizens have not been abridged. 

In my judgment no such practical inconveniences would arise. Very little, if 
any, legislation on the part of Congress would be required to carry the amendment 
into effect. Like the prohibition against passing a law impairing the obligation of 
a contract, it would execute itself. The i)oint would be regularly raised in a suit 
at law, and settled by final reference to a Federal court. As the privileges and 
immunities i>rotected are only those fundamental ones which belong to every citi¬ 
zen, they would soon become so far defined as to cause but a slight accumulation 
of business in the Federal courts. Besides, the recognized existence of the law 
would prevent its frequent violation. But even if the business of the national 
courts should be increased. Congress could easily supply the remedy by increasing 
their number and efliciency. The great question is, what is the true construction 
of the amendment ? "When once we find that, we shall find the means of giving it 


45 


effect. The argument from inconvenience ought not to have a very controlling 
influence in (luestions of this sort. The national will and national interest are of 
far greater importance. 

It appears from this extract, that he does not deny the stretch of 
Federal power which must follow the opinion of the minority. He 
says, “Great fears are expressed that this construction ” will abolish 
the State governments in everything but name, &c., and without com¬ 
bating this opinion, he says that in his judgment “no such practical 
inconveniences would arise.’’ He does not deny that Congress under 
the fourteenth amendment, as construed by him, can “interfere with 
the internal affairs of the States,” can establish therein “ civil and 
criminal codes of law for the government of the citizens,” can “con¬ 
fer on the Federal courts power to draw to their cognizance the super¬ 
vision of State tribunals on every subject of inquiry on the plea of 
ascertaining whether the privileges and immunities of citizens have 
not been abridged,” and can thus “ abolish the State governments in 
everything but namebut he meets the suggestion of these inevita¬ 
ble consequences by saying, “very liUleit any legislation on the part of 
Congress wonld be required to carry the amendment into effect.” I 
agree with him that “ very little legislation on the part of Congress 
would be required to carry the amendment into effect,” as that amend¬ 
ment is construed by him. It would require but a single statute, estab¬ 
lishing a civil and criminal code for all citizens of the United States, 
and giving the jurisdiction to the Federal courts. I agree with 
him, that “ the point would be regularly raised in a suit at law and 
settled hy final reference to a Federal court.” I agree with him, that 
“ if the business of the national courts should be increased. Congress 
could easily supply the remedy by increasing their number and effi¬ 
ciency.” But, sir, what a spectacle would all this present. The civil 
and criminal codes of the States swept away; the legislative power 
of the States abolished; the executive of each State a mere shadow; 
his approval of laws, civil and criminal, transferred to the Federal 
Executive ; his power to execute State laws given to the Federal Ex¬ 
ecutive; his xiaidoning x^ower x)laced in the hands of the President; 
the State courts left with their ermine, and not a case involving a 
fundamental right of any citizen left ux)onthe docket, and sheriffs and 
constables suxqilanted by marshals and their deputies. But I desist, 
for the scene is sickening; for it presents an army of Federal judges, 
backed by an army of Federal attorneys and Federal marshals and 
deputies, marching out from Washington into all the States, and 
followed, if need be, by the Army of the United States, to try every 
cause in which a fundamental right of any citizen might be involved. 

But I do not agree with ISIr. Justice Bradley, that these fundamen¬ 
tal xuivileges and immunities “would soon become so far defined as - 
to cause but a slight accumulation of business in the Federal courts.” 


I 


4G 

I do not agree with him that “the recognized existence of the law 
would prevent its frequent violation.’^ Why, sir, are not the funda¬ 
mental rights of every citizen already defined? Do we not know 
what they are ? Does it remain for aFederal judge to teach an Amer¬ 
ican citizen what his rights are? This is a political, not a judicial 
question. Judges are not appointed to define our political rights, our 
civil rights. They decide whether a right already existing has been 
forfeited, as the right to life, liberty, or property; they decide 
whether A or B has the title to certain property; but God forbid that 
the determination of whart are the fundamental civil and political 
rights of an American citizen shall ever depe7xd on the opinion or de¬ 
cision of a Federal court. 

But, again, does the recognized existence of any law prevent its 
frequent violation ? Does the recognition of the fundamental right of 
A to his life, his liberty, his property, prevent B from violating that 
right? Does it prevent murder, arson, robbery, forgery, false im¬ 
prisonment, and a hundred other crimes, each one of which is a viola¬ 
tion of a citizen’s fundamental rights ? The reasons assigned by Mr. 
Justice Bradley to show that no such inconveniences would arise from 
his construction of the 'fourteenth amendment, may hold w^hen the 
millennium shall come, when there shall be wars and rumors of wars 
no more; when the lion and lamb shall lie down together; when man 
shall no longer be man, but an angel. 

The next inquiry is, how is a citizen of the United States to be pro¬ 
tected in the enjoyment of his privileges and immunities. Is he to be 
protected by Congress ? He may, but not jnlmarily. The fourteenth 
article declares that “no State” shall abridge his rights as a citizen of 
the United States, and that Congress may enforce that article by ap- 
I)ropriate legislation. But until a State shall attempt to abridge his 
rights. Congress has no power to act. But has he no protection under 
the fourteenth amendment except in a case w^here a State shall seek 
to abridge his rights ? Clearly he has. His redi'ess is in the courts. 
If a privilege which he enjoys as a citizen of the United States— 
that is, aright given and secured to him by the Constitution—be 
invaded by any one, he has his remedy, as in any other case of inva¬ 
sion of any of his fundamental rights as a citizen of a State. And 
his remedy does not stop with the State courts. For by the Con¬ 
stitution, the Federal judiciary, has jurisdiction over all questions 
arising under the Constitution and the laws .passed in pursuance 
tliereof. So that an appeal will lie from the State court to the Fed¬ 
eral court in any case where a right is involved whose existence de¬ 
pends on the Federal Constitution. And this again shows that, if the 
minority of the Suiueme Court be correct, this clause of the Federal 
Constitution is so broad, that everj^ case involving a fundamental right 
of a citizen would be subject to review in th6 Federal courts, and 


47 


go by ax)peal or Avrit of error to the Supreme Court of the United 
States. 

The Constitution forbids any State to impair the obligation of con¬ 
tracts, and before the fourteenth article Congress had the power to 
enforce all its delegated poAvers by appropriate legislation. But did 
any lawyer ever dream that Congress had the power to pass a law 
punishing a State or an indiAddual for impairing the obligations of a 
contract? And yet the inhibition on the States in that instance is 
precisely like the one imposed by the fourteenth amendment. Neither 
confers any poAver on Congress except to prevent a State from in¬ 
fringing by legislation or otherwise the rights of the citizen thereby 
secured. The remedy under the proAusion forbidding the State to 
impair the obligation of a contract or to pass any ex post facto law is 
just the same; and that is, as has been the practice under the Go\'- 
ernment from its foundation, by ai^xieal from a State court, where a 
law is sought to be enforced against a citizen which is in violation of 
any of these provisions of the Constitution, to the Federal courts, 
which have ajApellate jurisdiction of all questions arising under the 
Constitution of the United States or the laAvs of Congress i^assed in 
pursuance thereof. 

Thus, Mr. President, I haA^e endeavored to trace what I believe to 
be the princij^le that underlies the fourteenth amendment. I will 
not stop to apjdy it to the various provisions of this bill. I believe 
that it is the correct reading of the fourteenth amendment. 

The question may be asked, Is it not dangerous to the States ? My 
answer is, no; that it involves no danger to the States or to State- 
rights. For what does it amount to under this construction ? Simply 
this: that rights which the citizen of the United States enjoys under 
the Federal Constitution, and which the Federal Government cannot 
deprive him of, shall not be abridged by the State. In other words 
it is an extension of the guarantees of liberty and of the Bill of Rights 
that are laid down for the citizens of the United States in the first 
eight articles of the amendments to the Constitution, over all the 
citizens of the States, preventing the States themselves from dej)riving 
their citizens of those guarantees. In that view of the case, I can 
conceive of no evil that can arise to the States or to State-rights by 
this construction. 

If it is not the true reading of that amendment, then that portion 
of it which I have been considering, either means nothing, or it means 
much more than the people of the United States ever intended; for 
it is a transfer of the reserved rights of the States, of their legisla¬ 
tive, executwe, and judicial powers, to the Federal Government, to 
be exercised at the will of Congress. 


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