exercising the power of removing from office the President elected by the people and appointing another in his place, under the form of a trial, but without the pretence of actual crime, or anything more than a mere difference of opinion.

It has menaced the Judiciary: at one time proposing to create by law an incapacity in the Supreme Court to act by a majority in any case where it should disagree with Congress; at another time proposing to divest that tribunal of jurisdiction, exercised by it from the foundation of the government, to decide between an ordinary law and the Constitution, which is the fundamental and supreme law. There is reason to believe also that a plan has been matured to overthrow the Court by the creation of new judges, to make a majority more subservient to Congress than the judges appointed by Mr. Lincoln are found to be.

These changes are organic. They would revolutionize the very nature of the government. They would alter every important part of its structure on which its authors relied to secure good laws and good administration, and to preserve civil liberty. They would convert it into an elective despotism. The change could not by possibility stop at that stage.

I avow the conviction, founded on all history and on the concurring judgment of all our great statesmen and patriots, that such a system, if continued, would pass into imperialism. I feel not less certain that the destruction of all local self-government in a country so extensive as ours, and embracing such elements of diversity in habits, manners, opinions, and interests, and the exercise by a single, centralized authority of all the powers of society over so vast a region and over such populations, would entail upon us an indefinite series of civil commotions, and repeat here the worst crimes and worst calamities of history.

Samuel J. Tilden, Writings and Speeches (edited by John Bigelow, New York, 1885), I, 399–407 passim.

CHAPTER XXV- PROCESS OF RECON

STRUCTION

151. Legislation on the Freedmen (1865-1866)

BY SOUTHERN LEGISLATURES

These laws respecting the freedmen, commonly called the "vagrant" laws, were passed by the legislatures of southern states reconstructed under Johnson's proclamation of May 29, 1865. The legislatures were controlled by those recently in arms against the Union; and this legislation was one of the main causes of the passage of the fourteenth amendment. Bibliography as in No. 145 above.

A.

MISSISSIPPI: "THE VAGRANT ACT," NOVEMBER 24, 1865

EC. 2 provides that all freedmen, free negroes, and mulattoes in this

in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time. . . shall be deemed vagrants, and on conviction thereof shall be fined in the sum of not exceeding . . fifty dollars . . . and imprisoned, at the discretion of the court not exceeding ten

SEC. 5 provides that . . . in case any freedman, free negro or mulatto, shall fail for five days after the imposition of any fine or forfeiture upon him or her, for violation of any of the provisions of this act to pay the same, that it shall be, and is hereby made, the duty of the sheriff of the proper county to hire out said freedman, free negro or mulatto, to any person who will, for the shortest period of service, pay said fine or forfeiture and all costs: Provided, A preference shall be given to the employer, if there be one, in which case the employer shall be entitled to deduct and retain the amount so paid from the wages of such freedman, free negro or mulatto, then due or to become due; and in case such freedman, free negro or mulatto cannot be hired out, he or she may be dealt with as a pauper.

SEC. 6 provides that . . . it is hereby made the duty of the boards of county police of each county in this State, to levy a poll or capitation tax on each and every freedman, free negro or mulatto, between the ages of eighteen and sixty years, not to exceed the sum of one dollar annually to each person so taxed, which tax when collected shall be paid into the county treasurer's hands, and constitute a fund to be called the freedmen's pauper fund, which shall be applied by the commissioners of the poor for the maintenance of the poor of the freedmen, free negroes and mulattoes.

SEC. 7 provides that if any freedman, free negro or mulatto shall fail or refuse to pay any tax levied according to the provisions of the sixth section of this act, it shall be prima facie evidence of vagrancy.

B. FLORIDA: "AN ACT IN RELATION TO CONTRACTS OF PERSONS OF COLOR," JANUARY 12, 1866

SEC

EC. 1 Provides that all contracts with persons of color shall be made in writing and fully explained to them before two credible witnesses . . . with the affidavit of one or both witnesses, setting forth that the terms and effect of such contract were fully explained to the colored person, and that he, she, or they had voluntarily entered into and signed the contract and no contract shall be of any validity against any person of color unless so executed and filed: Provided, That contracts for service or labor may be made for less time than thirty days by parol.

SEC. 2 Provides, that whereas it is essential to the welfare and prosperity of the entire population of the State that the agricultural interest be sustained and placed upon a permanent basis, it is provided that when any person of color shall enter into a contract as aforesaid, to serve as a laborer for a year, or any other specified term, on any farm or plantation in this State, if he shall refuse or neglect to perform the stipulations of his contract by wilful disobedience of orders, wanton impudence or disrespect to his employer, or his authorized agent, failure or refusal to perform the work assigned to him, idleness, or abandonment of the premises or the employment of the party with whom the contract was made, he or she shall be liable, upon the complaint of his employer or his agent, made under oath before any justice of the peace of the county, to be arrested and tried before the criminal court of the county, and upon conviction shall be subject to all the pains and penalties

prescribed for the punishment of vagrancy: Provided, That it shall be optional with the employer to require that such laborer be remanded to his service, instead of being subjected to the punishment aforesaid: Provided, further, That if it shall on such trial appear that the complaint made is not well founded, the court shall dismiss such complaint, and give judgment in favor of such laborer against the employer, for such sum as may appear to be due under the contract, and for such damages as may be assessed by the jury.

C. FLORIDA: AN ACT PRESCRIBING ADDITIONAL PENALTIES FOR THE COMMISSION OF OFFENSES AGAINST THE

STATE," JANUARY 15, 1866

EC. 12 provides that it shall not be lawful for any negro, mulatto, or other person of color, to own, use, or keep in his possession or under his control any bowie-knife, dirk, sword, fire-arms, or ammunition of any kind, unless he first obtain a license to do so from the judge of probate of the county in which he may be a resident for the time being; and the said judge of probate is hereby authorized to issue license, upon the recommendation of two respectable citizens of the county, certifying to the peaceful and orderly character of the applicant; and any negro, mulatto, or other person of color, so offending, shall be deemed to be guilty of a misdemeanor, and upon conviction shall forfeit to the use of the informer all such fire-arms and ammunition, and in addition thereto, shall be sentenced to stand in the pillory for one hour, or be whipped, not exceeding thirty-nine stripes, or both, at the discretion of the jury.

SEC. 14 provides that if any negro, mulatto, or other person of color, shall intrude himself into any religious or other public assembly of white persons, or into any railroad car or other public vehicle set apart for the exclusive accommodation of white people, he shall be deemed to be guilty of a misdemeanor, and upon conviction shall be sentenced to stand in the pillory for one hour, or be whipped, not exceeding thirty-nine stripes, or both, at the discretion of the jury; nor shall it be lawful for any white person to intrude himself into any religious or other public assembly of colored persons, or into any railroad car or other public vehicle, set apart for the exclusive accommodation of persons of color, under the same penalties.

Edward McPherson, A Political Manual for 1866 (Washington, 1866), 30-40 passim.

152. The Fourteenth Amendment (1866)

BY REPRESENTATIVE THADDEUS STEVENS

From the beginning of the Civil War Stevens was the leader of the radical Republicans in the House. He was intolerant of compromises; as chairman of the Committee on Ways and Means, prompt and unsparing in enabling the government to meet its financial obligations; urgent for confiscation; and defiant to "rebels, traitors, and copperheads." His theory of reconstruction was that the southern states had forfeited all their rights, and under his leadership this theory became the foundation of the congressional action on this question; but his extreme views often had to be modified before they were acceptable to the majority. He was chairman of the House reconstruction committee, and reported the fourteenth amendment. the House had passed the amendment the Senate modified it, leniency of which Stevens disapproved. For Stevens, see S. W. McCall, Thaddeus Stevens. Bibliography as in No. 145 above.

TH

After

HIS proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. I say nineteen, for I utterly repudiate and scorn the idea that any State not acting in the Union is to be counted on the question of ratification. It is absurd to suppose that any more than three fourths of the States that propose the amendment are required to make it valid; that States not here are to be counted as present. Believing, then, that this is the best proposition that can be made effectual, I accept it.

The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the "equal" protection of the laws.

I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the