17-4 Black Code of Mississippi,

1865

In the aftermath of Emancipation, southern states passed a variety of laws known as "Black Codes. " Although these codes varied from state to state, they were all aimed at tightly controlling the lives and labor of newly freed people. The codes angered Congress and the northern public, who viewed them as southern attempts to roll back Emancipation and subvert Reconstruction. The Civil Rights Act of 1866, the Fourteenth Amendment, and the Military Reconstruction Act Of 1867 were all designed in part to counter the Black Codes.

SOURCE: Henry Steele Commager. Documents in American History (1973); Laws of Mississippi. 1865. p. 82ff

1. CIVIL RIGHTS OF FREEDMEN IN MISSISSIPPI

Sec. 1. Be it enacted, . . . That all freedmen, free negroes, and mulattoes may sue and be sued, implead and be impleaded, in all the courts of law and equity of this State, and may acquire personal property, and choses in action, by descent or purchase, and may dispose of the same in the same manner and to the same extent that white persons may: Provided, That the provisions of this section shall not be so construed as to allow any freedman, free negro, or mulatto to rent or lease any lands or tenements except in incorporated cities or towns, in which places the corporate authorities shall control the same....

Sec. 3. . .. All freedmen, free negroes, or mulattoes who do now and have herebefore lived and cohabited together as husband and wife shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate for all purposes; that it shall not be lawful for any freedman, free negro, or mulatto to intermarry with any white person; nor for any white person to intermarry with any freedman, free negro, or mulatto; and any person who shall so intermarry, shall be deemed guilty of felony, and on conviction thereof shall be confined in the State penitentiary for life; and those shall be deemed freedmen, free negroes, and mulattoes who are of pure negro blood, and those descended from a negro to the third generation, inclusive, though one ancestor in each generation may have been a white person....

Sec. 6.... All contracts for labor made with freedmen, free negroes, and mulattoes for a longer period than one month shall be in writing, and in duplicate, attested and read to said freedman, free negro, or mulatto by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to be performed, of which each party shall have one; and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.

Sec. 7.... Every civil officer shall, and every person may, arrest and carry back to his or her legal employer any freedman, free negro, or mulatto who shall have quit the service of his or her employer before the expiration of his or her term of service without good cause; and said officer and person shall be entitled to receive for arresting and carrying back every deserting employee aforesaid the sum of five dollars, and ten cents per mile from the place of arrest to the place of delivery; and the same shall be paid by the employer, and held as a set-off for so much against the wages of said deserting employee: Provided, that said arrested party, after being so returned, may appeal to the justice of the peace or member of the board of police of the county, who, on notice to the alleged employer shall try summarily whether said appellant is legally employed by the alleged employer, and has good cause to quit said employer; either party shall have the right to appeal to the county court, pending which the alleged deserter shall be remanded to the alleged employer or otherwise disposed of, as shall be right and just; and the decision of the county court shall be final....

Sec. 9.... If any person shall persuade or attempt to persuade, entice, or cause any freedman, free negro, or mulatto to desert from the legal employment of any person before the expiration of his or her term of service, or shall knowingly employ any such deserting freedman, free negro, or mulatto, or shall knowingly give or sell to any such deserting freedman, free negro, or mulatto, any food, raiment, or other thing, he or she shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty-five dollars and not more than two hundred dollars and the costs; and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding two months' imprisonment in the county jail and he or she shall moreover be liable to the party injured in damages: Provided, if any person shall, or shall attempt to, persuade, entice, or cause any freedman, free negro, or mulatto to desert from any legal employment of any person, with the view to employ said freedman, free negro, or mulatto without the limits of this State, such person, on conviction, shall be fined not less than fifty dollars, and not more than five hundred dollars and costs; and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding six months imprisonment in the county jail....

2. MISSISSIPPI APPRENTICE LAW

Sec. 1. . . . It shall be the duty of all sheriffs, justices of the peace, and other civil officers of the several counties in this State, to report to the probate courts of their respective counties semi-annually, at the January and July terms of said courts, all freedmen, free negroes, and mulattoes, under the age of eighteen, in their respective counties, beats or districts, who are orphans, or whose parent or parents have not the means or who refuse to provide for and support said minors; and thereupon it shall be the duty of said probate court to order the clerk of said court to apprentice said minors to some competent and suitable person, on such terms as the court may direct, having a particular care to the interest of said minor: Provided, that the former owner of said minors shall have the preference when, in the opinion of the court, he or she shall be a suitable person for that purpose.

Sec. 3.In the management and control of said apprentice, said master or mistress shall have the power to inflict such moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law. Provided, that in no case shall cruel or inhuman punishment inflicted.

Sec. 4. . . . If any apprentice shall leave the employment of his or her master or mistress, without his or her consent, said master or mistress may pursue and recapture said apprentice, and bring him or her before any justice of the peace of the county, whose duty it shall be to remand said apprentice to the service of his or her master or mistress; and in the event of a refusal on the part of said apprentice so to return, then said justice shall commit said apprentice to the jail of said county, on failure to give bond, to the next term of the county court; and it shall be the duty of said court at the first term thereafter to investigate said case, and if the court shall be of opinion that said apprentice left the employment of his or her master or mistress without good cause, to order him or her to be punished, as provided for the punishment of hired freedmen, as may be from time to time provided for by law for desertion, until he or she shall agree return to the service of his or her master or mistress: ... if the court shall believe that said apprentice had good cause to quit his said master or mistress, the court shall discharge said apprentice from said indenture, and also enter a judgment against the master or mistress for not more than one hundred dollars, for the use and benefit of said apprentice....

3. MISSISSIPPI VAGRANT LAW

Sec. 1. Be it enacted, etc., . . . That all rogues and vagabonds, idle and dissipated persons, beggars, jugglers, or persons practicing unlawful games or plays, runaways, common drunkards, common night-walkers, pilferers, lewd, wanton, or lascivious persons, in speech or behavior, common railers and brawlers, persons who neglect their calling or employment, misspend what they earn, or do not provide for the support of themselves or their families, or dependents, and all other idle and disorderly persons, including all who neglect all lawful business, habitually misspend their time by frequenting houses of ill-fame, gaming-houses, or tippling shops, shall be deemed and considered vagrants, under the provisions of this act, and upon conviction thereof shall be fined not exceeding one hundred dollars, with all accruing costs, and be imprisoned at the discretion of the court, not exceeding ten days.

Sec. 2. . . . Al I freedmen, free negroes and mulattoes in this State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time, and all white persons so assembling themselves with freedmen, free negroes or mulattoes, or usually associating with freedmen, free negroes or mulattoes, on terms of equality, or living in adultery or fornication with a freed woman, free negro or mulatto, shall be deemed vagrants, and on conviction thereof shall be fined in a sum not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars, and a white man two hundred dollars, and imprisoned at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months...

4. PENAL LAWS OF MISSISSIPPI

Sec. 1. Be it enacted, . . . That no freedman, free negro, or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife, and on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed to trial in default of bail.

Sec. 2. . . . Any freedman, free negro, or mulatto committing riots, routs, affrays, trespasses, malicious mischief, cruel treatment to animals, seditious speeches, insulting gestures, language, or acts, or assaults on any person, disturbance of the peace, exercising the function of a minister of the Gospel without a license from some regularly organized church, vending spirituous or intoxicating liquors, or committing any other misdemeanor, the punishment of which is not specifically provided for by law, shall, upon conviction thereof in the county court, be fined not less than ten dollars, and not more than one hundred dollars, and may be imprisoned at the discretion of the court, not exceeding thirty days.

Sec. 3. . . . If any white person shall sell, lend, or give to any freedman, free negro, or mulatto any firearms, dirk or bowie knife, or ammunition, or any spirituous or intoxicating liquors, such person or persons so offending, upon conviction thereof in the county court of his or her county, shall be fined not exceeding fifty dollars, and may be imprisoned, at the discretion of the court, not exceeding thirty days....

Sec. 5.... If any freedman, free negro, or mulatto, convicted of any of the misdemeanors provided against in this act, shall fail or refuse for the space of five days, after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs, and take said convict for the shortest time.

17-5 Frederick Douglass, Speech

to the American Anti-Slavery

Society,1865

Congress approved the Thirteenth Amendment abolishing slavery in February, 1865, and the Union's final military victory over the Confederacy that spring assured the destruction of the slave system. The American Anti-Slavery Society, long in the forefront of the abolitionist movement, met in May, 1865, to discuss its future. Black leader Frederick Douglass addressed the Society, urging it not to disband but to continue the fight against racial discrimination.

SOURCE: Philip S. Foner, ed The Life and Writings of Frederick Douglass, Vol. IV (1955).

... I do not wish to appear here in any fault-finding spirit, or as an impugner of the motives of those who believe that the time has come for this Society to disband. I am conscious of no suspicion of the purity and excellence of the motives that animate the President of this Society [William Lloyd Garrison], and other gentlemen who are in favor of its disbandment. I take this ground; whether this Constitutional Amendment [the thirteenth] is law or not, whether it has been ratified by a sufficient number of States to make it law or not, I hold that the work of Abolitionists is not done. Even if every State in the Union had ratified that Amendment, while the black man is confronted in the legislation of the South by the word "white," our work as Abolitionists, as I conceive it, is not done. I took the ground, last night, that the South, by unfriendly legislation, could make our liberty, under that provision, a delusion, a mockery, and a snare, and I hold that ground now. What advantage is a provision like this Amendment to the black man, if the Legislature of any State can to-morrow declare that no black man's testimony shall be received in a court of law? Where are we then? Any wretch may enter the house of a black man, and commit any violence he pleases; if he happens to do it only in the presence of black persons, he goes unwhipt of justice ["Hear, hear."] And don't tell me that those people down there have become so just and honest all at once that they will not pass laws denying to black men the right to testify against white men in the courts of law. Why, our Northern States have done it. Illinois, Indiana and Ohio have done it. Here, in the midst of institutions that have gone forth from old Plymouth Rock, the black, man has been excluded from testifying in the courts of law; and if the Legislature of every Southern State to-morrow pass a law, declaring that no Negro shall testify in any courts of law, they will not violate that provision of the Constitution. Such laws exist now at the South, and they might exist under this provision of the Constitution, that there shall be neither slavery not involuntary servitude in any State of the Union....

Slavery is not abolished until the black man has the ballot. While the Legislatures of the South retain the right to pass laws making any discrimination between black and white, slavery still lives there. [Applause.] As Edmund Quincy once said, "While the word 'white' is on the statute-book of Massachusetts, Massachusetts is a slave State. While a black man can be turned out of a car in Massachusetts, Massachusetts is a slave State. While a slave can be taken from old Massachusetts, Massachusetts is a slave State." That is what I heard Edmund Quincy say twenty-three or twenty-four years ago. I never forget such a thing. Now, while the black man can be denied a vote, while the Legislatures of the South can take from him the right to keep and bear arms, as they can-they would not allow a Negro to walk with a cane where I came from, they would not allow five of them to assemble together the work of the Abolitionists is not finished. Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged, the black man has never had the right either to keep or bear arms; and the Legislatures of the States will still have the power to forbid it, under this Amendment. They can carry on a system of unfriendly legislation, and will they not do it? Have they not got prejudice there to do it with? Think you, that because they are for the moment in the talons and beak of our glorious eagle, instead of the slave being there, as formerly, that they are converted? I hear of the loyalty at Wilmington, the loyalty at South Carolina-what is it worth?

They are loyal while they see 200,000 sable soldiers, with glistening bayonets, walking in their midst. [Applause.] But let the civil power of the South be restored, and the old prejudices and hostility to the Negro will-revive. Aye, the very fact that the Negro has been used to defeat this rebellion and strike down the standards of the Confederacy will be a stimulus to all their hatred, to all their malice, and lead them to legislate with greater stringency towards this class than ever before. [Applause.] The American people are bound by their sense of honor (I hope by their sense of honor, at least, by a just sense of honor), to extend the franchise to the Negro; and I was going to say, that the Abolitionists of the American Anti-Slavery Society were bound to "stand still, and see the salvation of God," until that work is done. [Applause.] Where shall the black man look for support, my friends, if the American AntiSlavery Society fails him? ["Hear, hear."] From whence shall we expect a certain sound from the trumpet of freedom, when the old pioneer, when this Society that has survived mobs, and martyrdom, and the combined efforts of priest-craft and state-craft to suppress it, shall all at once subside, on the mere intimation that the Constitution has been amended, so that neither slavery not involuntary servitude shall hereafter be allowed in this land? What did the slaveholders of Richmond say to those who objected to arming the Negro, on the ground that it would make him a freeman? Why, they said, "The argument is absurd. We may make these Negroes fight for us; but while we retain the political power of the South, we can keep them in their subordinate positions." That was the argument; and they were right. They might have employed the Negro to fight for them, and while they retained in their hands power to exclude him from political rights, they could have reduced him to a condition similar to slavery. They would not call it slavery, but some other name. Slavery has been fruitful in giving itself names. It has been called "the peculiar institution," "the social system," and the "impediment," as it was called by the General conference of the Methodist Episcopal Church. It has been called by a great many names, and it will call itself by yet another name; and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth. [Loud applause.]

17-6 The Civil Rights Act of 1866

Passed over President Johnson's veto in April, 1866, the Civil Rights Act provided the first statutory definition of American citizenship. By conferring citizenship rights upon freed people, it negated the Supreme Court's Dred Scott decision of 1857, which had held that a black person could not be a citizen of the United States. The Civil Rights Act proposed that the federal government guarantee the principle of equality before the law, regardless of race.

SOURCE: Henry Steele Commager Documents of American History (19"), pp. 14-15: U.S. Statutes at Large, Vol. XIV. p. 27ff

An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

SEC. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.

SEC. 3. And be it further enacted, That the district courts the United States, . . . shall have, exclusively of

the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act....

SEC. 4. And be it further enacted, That the district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers and agents of the Freedmen's Bureau, and every other officer who may be specially empowered by the President of the United States, shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as by this act has cognizance of the offence....

SEC. 8. And be it further enacted, That whenever the President of the United States shall have reason to believe that offences have been or are likely to be committed against the provisions of this act within any judicial district, it shall be lawful for him, in his discretion, to direct the judge, marshal, and district attorney of such district to attend at such place within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of this act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated.

SEC. 9. And be it further enacted, That it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act.

SEC. 10. And be it further enacted, That upon all questions of law arising in any cause under the provisions of this act a final appeal may be taken to the Supreme Court of the United States.

1. How does the act specifically define civil rights and those who may enjoy them?

2. What provisions does the act make for enforcement of these rights?

17-7 President Johnson's Veto of

the Civil Rights Act, 1866

The Civil Rights Act was the first major piece of legislation to become law over a president's veto. Johnson's veto message helped make the estrangement between Congress and the President irreparable. Johnson's constitutional arguments induced Congress to enact the Fourteenth Amendment, which forbade individual states to deprive citizens of the "equal protection of the laws. "

SOURCE: Richardson. ed Messages and Papers. Vol VI p. 405ff

WASHINGTON, D. C., March 27, 1866. To the Senate of the United States:

I regret that the bill, which has passed both Houses of Congress, entitled "An act to protect all persons in the United States in their civil rights and furnish the means of their vindication," contains provisions which I can not approve consistently with my sense of duty to the whole people and my obligations to the Constitution of the United States. I am therefore constrained to return it to the Senate, the House in which it originated, with my objections to its becoming a law.

By the first section of the bill all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.... It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of Federal citizenship is with Congress.

The right of Federal citizenship thus to be conferred on the several excepted races before mentioned is now for the first time proposed to be given by law. If, as is claimed by many, all persons who are native born already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill can not be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself whether, when eleven of the thirty-six States are unrepresented in Congress at the present time, it is sound policy to make our entire colored population and all other excepted classes citizens of the United States. Four millions of them have just emerged from slavery into freedom.... It may also be asked whether it is necessary that they should be declared citizens in order that they may be secured in the enjoyment of the civil rights proposed to be conferred by the bill. Those rights are, by Federal as well as State laws, secured to all domiciled aliens and foreigners, even before the completion of the process of naturalization; and it may safely be assumed that the same enactments are sufficient to give like protection and benefits to those for whom this bill provides special legislation. Besides, the policy of the Government from its origin to the present time seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States. The bill in effect proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just now been suddenly opened....

The first section of the bill also contains an enumeration of the rights to be enjoyed by these classes so made citizens "in every State and Territory in the United States." These rights are "to make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property," and to have "full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens." So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none other. Thus a perfect equality of the white and colored races is attempted to be fixed by Federal law in every State of the Union over the vast field of State jurisdiction covered by these enumerated rights. In no one of these can any State ever exercise any power of discrimination between the different races....

Hitherto every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States. They all relate to the internal police and economy of the respective States. They are matters which in each State concern the domestic condition of its people, varying in each according to its own peculiar circumstances and the safety and well-being of its own citizens. I do not mean to say that upon all these subjects there are not Federal restraints as, for instance, in the State power of legislation over contracts there is a Federal limitation that no State shall pass a law impairing the obligations of contracts; and, as to crimes, that no State shall pass an ex postfacto law; and, as to money, that no State shall make anything but gold and silver a legal tender; but where can we find a Federal prohibition against the power of any State to discriminate, as do most of them, between aliens and citizens, between artificial persons, called corporations, and natural persons, in the right to hold real estate? If it be granted that Congress can repeal all State laws discriminating between whites and blacks in the subjects covered by this bill, why, it may be asked, may not Congress repeal in the same way all State laws discriminating between the two races on the subjects of suffrage and office? If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have the right to sit as a juror or as a judge, to hold any office, and, finally, to vote "in every State and Territory of the United States." As respects the Territories, they come within the power of Congress, for as to them the lawmaking power is the Federal power; but as to the States no similar provision exists vesting in Congress the power "to make rules and regulations" for them.

The object of the second section of the bill is to afford discriminating protection to colored persons in the full enjoyment of all the rights secured to them by the preceding section....

This provision of the bill seems to be unnecessary, as adequate judicial remedies could be adopted to secure the desired end without invading the immunities of legislators, always important to be preserved in the interest of public liberty; without assailing the independence of the judiciary, always essential to the preservation of individual rights; and without impairing the efficiency of ministerial officers, always necessary for the maintenance of public peace and order. The remedy proposed by this section seems to be in this respect not only anomalous, but unconstitutional; for the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction, subject only to the restriction that in cases of conflict with the Constitution and constitutional laws of the United States the latter should be held to be the supreme law of the land....

The fourth section of the bill provides that officers and agents of the Freedmen's Bureau shall be empowered to make arrests, and also that other officers may be specially commissioned for that purpose by the President of the United States. It also authorizes circuit courts of the United States and the superior courts of the Territories to appoint, without limitation, commissioners, who are to be charged with the performance of quasi judicial duties. The fifth section empowers the commissioners so to be selected by the courts to appoint in writing, under their hands, one or more suitable persons from time to time to execute warrants and other processes described by the bill. These numerous official agents are made to constitute a sort of police, in addition to the military, and are authorized to summon a posse comitatus, and even to call to their aid such portion of the land and naval forces of the United States, or of the militia, "as may be necessary to the performance of the duty with which they are charged." This extraordinary power is to be conferred upon agents irresponsible to the Government and to the people, to whose number the discretion of the commissioners is the only limit, and in whose hands such authority might be made a terrible engine of wrong, oppression, and fraud....

The ninth section authorizes the President, or such person as he may empower for that purpose, "to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act." This language seems to imply a permanent military force, that is to be always at hand, and whose only business is to be the enforcement of this measure over the vast region on where it is intended to operate....

In all our history, in all our experience as people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race. They interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same State-an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers and break down the barriers which preserve the rights of the States. It is another step, or rather stride, toward centralization and the concentration of all legislative powers in the National Government. The tendency of the bill must be to resuscitate the spirit of rebellion and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace....

1. What is Johnson's "states rights" argument against the notion of federal citizenship?

2. How do Johnson's racial views mesh with his constitutional interpretation?

3. How and why does Johnson extend his argument to a critique of the Freedmen's Bureau?

18-1 The Oklahoma Land Rush,

1889

Beginning in 1884 white settlers began entering the "Oklahoma District, " a fertile area of rich land in the center of Indian Territory owned by no one tribe. Public pressure on Congress mounted to open the chapter region to settlers under the terms of the Homestead Act. President Harrison announced that the district would be open to homesteaders on April 22, 1889, and thousands

of would-be settlers, held back by Army troops, lined up to stake their claims. The following eye-witness account captures the bedlam of the "Sooner" land rush.

SOURCE "The Rush to Oklahoma. - Harper's Weekly 33 (May 18, 1889). p. 391.

The preparations for the settlement of Oklahoma had been complete, even to the slightest detail, for weeks before the opening day. The Santa Fe Railway, which runs through Oklahoma north and south, was prepared to take any number of people from its handsome station at Arkansas City, Kansas, and to deposit them in almost any part of Oklahoma as soon as the law allowed; thousands of covered wagons were gathered in camps on all sides of the new Territory waiting for the embargo to be lifted. In its picturesque aspects the rush across the border at noon on the opening day must go down in history as one of the most noteworthy events of Western civilization. At the time fixed, thousands of hungry home-seekers, who had gathered from all parts of the country, and particularly from Kansas and Missouri, were arranged in line along the border, ready to lash their horses into furious speed in the race for fertile spots in the beautiful land before them. The day was one of perfect peace. Overhead the sun shone down from a sky as fair and blue as the cloudless heights of Colorado. The whole expanse of space from zenith to horizon was spotless in its blue purity. The clear spring air, through which the rolling green billows of the promised land could be seen with unusual distinctness for many miles, was as sweet and fresh as the balmy atmosphere of June among New Hampshire's hills.

As the expectant home-seekers waited with restless patience, the clear, sweet notes of a cavalry bugle rose and hung a moment upon the startled air. It was noon. The last barrier of savagery in the United States was broken down. Moved by the same impulse, each driver lashed his horses furiously; each rider dug his spurs into his willing steed, and each man on foot caught his breath hard and darted forward. A cloud of dust rose where the home-seekers had stood in line, and when it had drifted away before the gentle breeze, the horses and wagons and men were tearing across the open country like fiends. The horsemen had the best of it from the start. It was a fine race for a few minutes, but soon the riders began to spread out like a fan, and by the time they had reached the horizon they were scattered about as far as eye could see. Even the fleetest of the horsemen found upon reaching their chosen localities that men in wagons and men on foot were there before them. As it was clearly impossible for a man on foot to outrun a horseman, the inference is plain that Oklahoma had been entered hours before the appointed time. Notwithstanding the assertions of the soldiers that every boomer had been driven out of Oklahoma, the fact remains that the woods along the various streams within Oklahoma were literally full of people Sunday night. Nine-tenths of these people made settlement upon the land illegally. The other tenth would have done so had there been any desirable land left to settle upon. This action on the part of the first claim-holders will cause a great deal of land litigation in the future, as it is not to be expected that the man who ran his horse at its utmost speed for ten miles only to find a settler with an ox team in quiet possession of his chosen farm will tamely submit to this plain infringement of the law.

Some of the men who started from the line on foot were quite as successful in securing desirable claims as many who rode fleet horses. They had the advantage of knowing just where their land was located. One man left the line with the others, carrying on his back a tent, a blanket, some camp dishes, an axe, and provisions for two days. He ran down the railway track for six miles, and reached his claim in just sixty minutes. Upon arriving on his land he fell down under a tree, unable to speak or see. I am glad to be able to say that his claim is one of the best in Oklahoma. The rush from the line was so impetuous that by the time the first railway train arrived from the north at twenty-five minutes past twelve o'clock, only a few of the hundreds of boomers were anywhere to be seen. The journey of this first train was well-nigh as interesting as the rush of the men in wagons. The train left Arkansas City at 8:45 o'clock in the forenoon. It consisted of an empty baggage car, which was set apart for the use of the newspaper correspondents, eight passenger coaches, and the caboose of a freight train. The coaches were so densely packed with men that not another human being could get on board. So uncomfortably crowded were they that some of the younger boomers climbed to the roofs of the cars and clung perilously to the ventilators. An adventurous person secured at great risk a seat on the forward truck of the baggage car.

In this way the train was loaded to its utmost capacity. That no one was killed or injured was due as much to the careful management of the train as to the ability of the passengers to take care of themselves. Like their friends in the wagons, the boomers on the cars were exultant with joy it the thought of at last entering into possession of the promised land. At first appearances the land through which the train ran seemed to justify all the virtues that had been claimed for it. The rolling, grassy uplands, and the wooded river-bottoms, the trees, which were just bursting into the most beautiful foliage of early spring, seemed to give a close reality to the distant charm of green and purple forest growths, which rose from the trough of some long swell and went heaving away to meet the brighter hues in the far-off sky. Throughout all the landscape were clumps of trees suggesting apple orchards set in fertile meadows, and here and there were dim patches of gray and white sand that might in a less barbarous region be mistaken for farm-houses surrounded by hedges and green fields. Truly the Indians have well-named Oklahoma the "beautiful land." The landless and home-hungry people on the train might be pardoned their mental exhilaration, when the effect of this wonderfully beautiful country upon the most prosaic mind is fully considered. It was an eager and an exuberantly joyful crowd that rode slowly into Guthrie at twenty minutes past one o'clock on that perfect April afternoon. Men who had expected to lay out the town site were grievously disappointed at the first glimpse of their proposed scene of operations. The slope east of the railway at Guthrie station was dotted white with tents and sprinkled thick with men running about in all directions.

"We're done for," said a town-site speculator, in dismay. "Some one has gone in ahead of us and laid out the town."

"Never mind that," shouted another town-site speculator, "but make a rush and get what you can."

Hardly had the train slackened its speed when the impatient boomers began to leap from the cars and run up the slope. Men jumped from the roofs of the moving cars at the risk of their lives. Some were so stunned by the fall that they could not get up for some minutes. The coaches were so crowded that many men were compelled to squeeze through the windows in order to get a fair start at the head of the crowd. Almost before the train had come to a standstill the cars were emptied. In their haste and eagerness, men fell over each other in heaps, others stumbled and fell headlong, while many ran forward so blindly and impetuously that it was not until they had passed the best of the town lots that they came to a realization of their actions.

I ran with the first of the crowd to get a good point of view from which to see the rush. When I had time to look about me I found that I was standing beside a tent, near which a man was leisurely chopping holes in the sod with a new axe.

"Where did you come from, that you have already pitched your tent?" I asked.

"But it is not legal for a deputy United States marshal, or any one in the employ of the government, to take up a town lot in this manner."

"That may all be, stranger; but I've got two lots here, just the same; and about fifty other deputies have got lots in the same way. In fact, the deputy-marshals laid out the town."

At intervals of fifteen minutes, other trains came from the north loaded down with home-seekers and town-site speculators. As each succeeding crowd rushed up the slope and found that government officers had taken possession of the best part of the town, indignation became hot and outspoken; yet the marshals held to their lots and refused to move. Bloodshed was prevented only by the belief of the home-seekers that the government would set the matter right.

This course of the deputy United States marshals was one of the. most outrageous pieces of imposition upon honest home-seekers ever practised in the settlement of a new country. That fifty men could, through influence, get themselves appointed as deputy United States marshals for the sole purpose of taking advantage of their positions in this way is creditable neither to them nor to the man who made their appointment possible. This illegal seizure thus became the first matter of public discussion in the city of Guthrie....

It is estimated that between six and seven thousand persons reached Guthrie by train from the north the first afternoon, and that fully three thousand came in by wagon from the north and east, and by train from Purcell on the south, thus making a total population for the first day of about ten thousand. By taking thought in the matter, three-fourths of these people had provided themselves with tents and blankets, so that even on the first night they had ample shelter from the weather. The rest of them slept the first night as best they could, with only the red earth for a pillow and the starry arch of heaven for a blanket. At dawn of Tuesday the unrefreshed home-seekers and town-site speculators arose, and began anew the location of disputed claims. The tents multiplied like mushrooms in a rain that day, and by night the building of frame houses had been begun in earnest in the new streets. The buildings were by no means elaborate, yet they were as good as the average frontier Structure, and they served their purpose, which was all that was required.

On that day the trains going north were filled with returning boomers, disgusted beyond expression with the dismal outlook of the new country. Their places were taken by others who came in to see the fun, and perhaps pick up a bargain in the way of town lots or commercial speculation.

Born and raised in Massachusetts, Helen Hunt Jackson wrote articles and poems for popular magazines after the Civil War. In 1875 she relocated to Colorado Springs with her husband. She became interested in the plight of Indian peoples and conducted extensive research into the history of their mistreatment by the federal government. In 1881 she published A Century of Dishonor and sent a copy to ever y member of Congress. The book inspired a reform movement aimed at helping Indians become full members of American society, ultimately leading to passage of the Dawes Act in 1887

SOURCE: Helen Hunt Jackson, A Century of Dishonor (Boston: Roberts Brothers. 1881).

There is not among these three hundred bands of Indians [in the United States] one which has not suffered cruelly at the hands either of the Government or of white settlers. The poorer, the more insignificant, the more helpless the band, the more certain the cruelty and outrage to which they have been subjected. This is especially true of the bands on the Pacific slopes. These Indians found themselves of a sudden surrounded by and caught up in the great influx of gold-seeking settlers, as helpless creatures on a shore are caught up in a tidal wave. There was not time for the Government to make treaties; not even time for communities to make laws. The tale of the wrongs, the oppressions, the murders of the Pacific slope Indians in the last thirty years would be a volume by itself, and is too monstrous to be believed.

It makes little difference, however, where one opens the record of the history of the Indians; every page and every year has its dark stain. The story of one tribe is the story of all, varied only by differences of time and place; but neither time nor place makes any difference in the main facts. Colorado is as greedy and unjust in 1880 as was Georgia in 1830, and Ohio in 1895; and the United States Government breaks promises now as deftly as then, and with added ingenuity from long practice.

One of its strongest supports in so doing is the wide-spread sentiment among the people of dislike to the Indian, of impatience with his presence as a "barrier to civilization," and distrust of it as a possible danger. The old tales of the frontier life, with its horrors of Indian warfare, have gradually, by two or three generations, telling, produced in the average mind something like an hereditary instinct of unquestioning and unreasoning aversion which it is almost impossible to dislodge or soften.

There are hundreds of pages of unimpeachable testimony on the side of the Indian; but it goes for nothing, is set down as sentimentalism or partisanship, tossed aside and forgotten.

President after president has appointed commission after commission to inquire into and report upon Indian affairs, and to make suggestions as to the best methods of managing them. The reports are filled with eloquent statements of wrongs done to the Indians, of perfidies on the part of the Government; they counsel, as earnestly as words can, a trial of the simple and unperplexing expedients of telling truth, keeping promises, making fair bargains, dealing justly in all ways and all things. These reports are bound up with the Government's Annual Reports, and that is the end of them. It would probably be no exaggeration to say that not one American citizen out of ten thousand ever sees them or knows that they exist, and yet any one of them, circulated throughout the country, read by the right-thinking, right-feeling men and women of this land, would be of itself a "campaign document" that would initiate a revolution which would not subside until the Indians' wrongs were, so far as is now left possible, righted.

In 1869 President Grant appointed a commission of nine men, representing the influence and philanthropy of six leading States, to visit the different Indian reservations, and to "examine all matters appertaining to Indian affairs."

In the report of this commission are such paragraphs as the following: "To assert that 'the Indian will not work' is as true as it would be to say that the white man will not work.

'Why should the Indian be expected to plant corn, fence lands, build houses, or do anything but get food from day to day, when experience has taught him that the product of his labor will be seized by the white man to-morrow? The most industrious white man would become a drone under similar circumstances. Nevertheless, many of the Indians" (the commissioners might more forcibly have said 130,000 of the Indians) "are already at work, and furnish ample refutation of the assertion that 'the Indian will not work.' There is no escape from the inexorable logic of facts.

"The history of the Government connections with the Indians is a shameful record of broken treaties and unfulfilled promises. The history of the border, white man's connection with the Indians is a sickening record of murder, outrage, robbery, and wrongs committed by the former, as the rule, and occasional savage outbreaks and unspeakably barbarous deeds of retaliation by the latter, as the exception.

"Taught by the Government that they had rights entitled to respect, when those rights have been assailed by the rapacity of the white man, the arm which should have been raised to protect them has ever been ready to sustain the aggressor....

To assume that it would be easy, or by any one sudden stroke of legislative policy possible, to undo the mischief and hurt of the long past, set the Indian policy of the country right for the future, and make the Indians at once safe and happy, is the blunder of a hasty and uninformed judgment. The notion which seems to be growing more prevalent, that simply to make all Indians at once citizens of the United States would be a sovereign and instantaneous panacea for all their ills and all the Government's perplexities, is a very inconsiderate one. To administer complete citizenship of a sudden, all round, to all Indians, barbarous and civilized alike, would be as grotesque a blunder as to dose them all round with any one medicine, irrespective of the symptoms and needs of their diseases. It would kill more than it would cure. Nevertheless, it is true, as was well stated by one of the superintendents of Indian Affairs in 1857, that, "so long as they are not citizens of the United States, their rights of property must remain insecure against invasion. The doors of the federal tribunals being barred against them while wards and dependents, they can only partially exercise the rights of free government, or give to those who make, execute, and construe the few laws they are allowed to enact, dignity sufficient to make them respectable. While they continue individually to gather the crumbs that fall from the table of the United States, idleness, improvidence, and indebtedness will be the rule, and industry, thrift, and freedom from debt the exception. The utter absence of individual title to particular lands deprives every one among them of the chief incentive to labor and exertion-the very mainspring on which the prosperity of a people depends."

All judicious plans and measures for their safety and salvation must embody provisions for their becoming citizens as fast as they are fit, and must protect them till then in every right and particular in which our laws protect other "persons" who are not citizens.

There is a disposition in a certain class of minds to be impatient with any protestation against wrong which is unaccompanied or unprepared with a quick and exact scheme of remedy. This is illogical. When pioneers in a new country find a tract of poisonous and swampy wilderness to be reclaimed, they do not withhold their hands from fire and axe till they see clearly which way roads should run, where good water will spring, and what crops will best grow on the redeemed land. They first clear the swamp. So with this poisonous and baffling part of the domain of our national affairs-let us first "clear the swamp."

However great perplexity and difficulty there may be in the details of any and every plan possible for doing at this late day anything like justice to the Indian, however hard it may be for good statesmen and good men to agree upon the things that ought to be done, there certainly is, or ought to be, no perplexity whatever, no difficulty whatever, in agreeing upon certain things that ought not to be done, and which must cease to be done before the first steps can be taken toward righting the wrongs, curing the ills, and wiping out the disgrace to us of the present condition of our Indians.

Cheating, robbing, breaking promises-these three are clearly things which must cease to be done. One more thing, also, and that is the refusal of the protection of the law to the Indian's rights of property, "of life, liberty, and the pursuit of happiness."

When these four things have ceased to be done, time, statesmanship, philanthropy, and Christianity can slowly and surely do the rest. Till these four things have ceased to be done, statesmanship and philanthropy alike must work in vain, and even Christianity can reap but small harvest.